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[Senate Report 111-160]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 310

111th Congress 
 2d Session                      SENATE                          Report
                                                                111-160
_______________________________________________________________________

                                     

                                                       

 
                   LOCAL COMMUNITY RADIO ACT OF 2009

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 592

                                     

                 March 9, 2010.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                     one hundred eleventh congress
                             second session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        JOHN ENSIGN, Nevada
BARBARA BOXER, California            JIM DeMINT, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
MARIA CANTWELL, Washington           ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey      GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas                 JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri           DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota             SAM BROWNBACK, Kansas
TOM UDALL, New Mexico                MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
                     Ellen Doneski, Staff Director
                   James Reid, Deputy Staff Director
                     Bruce Andrews, General Counsel
             Ann Begeman, Acting Republican Staff Director
              Brian Hendricks, Republican General Counsel
                Todd Bertoson, Republican Senior Counsel

                                                       Calendar No. 310
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-160

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

                   LOCAL COMMUNITY RADIO ACT OF 2009

                                _______
                                

                 March 9, 2010.--Ordered to be printed

                                _______
                                

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

                                 REPORT

                         [To accompany S. 592]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 592) to implement the 
recommendations of the Federal Communications Commission (FCC) 
report to the Congress regarding low-power FM service, having 
considered the same, reports favorably thereon with an 
amendment (in the nature of a substitute) and recommends that 
the bill (as amended) do pass.

                          Purpose of the Bill

  The purpose of S. 592 is to implement the recommendations of 
the FCC 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. In 
addition, the FCC recommended that Congress remove statutory 
requirements for additional testing on the possibility of 
interference and economic impact from LPFM stations to 
commercial broadcasters.

                          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 January 
2010, the FCC had granted 1,320 construction permits for LPFM 
stations. Of those construction permits issued, 864 stations 
have been fully licensed and are on the air. 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 inserted a provision in the Fiscal Year 
(FY) 2001 Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriations Act (Public Law 
106-553) 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 channel; (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 at an expense of over 
$2 million. 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 raised questions 
about the methodology and results of the study. For example, 
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 have on 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. The FCC has estimated that an 
additional study would cost over $800,000 to complete.

                          Legislative History

  In the 108th Congress, Senator McCain introduced S. 2505, a 
bill to implement the 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. 
The bill (as amended) was reported favorably by a vote of 12-
10. In the 109th Congress, Senator McCain offered a similar 
amendment to H.R. 5252, which was adopted as an amendment to 
Title XI of the bill by a vote of 14-7.
  In the 110th Congress, Senator Cantwell introduced S. 1675, a 
bill substantially similar to S. 2505, as introduced, from the 
108th Congress. The Committee reported the bill, as amended, 
favorably by voice vote.
  On March 12, 2009, Senator Cantwell introduced S. 592, 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. The bill is cosponsored by Senators McCain, Durbin, 
Feingold, Leahy, Merkley, Sanders and Schumer.
  On November 19, 2009, the Committee held an executive session 
at which S. 592 was considered. 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 
Committee also adopted two amendments offered by Senator Snowe. 
The first would direct the FCC to conduct a study on the 
economic impact that LPFM stations will have on full-power 
commercial FM stations. Such study, however, shall not prevent 
the FCC from expeditiously modifying its rules to eliminate 
third-adjacent minimum distance separation requirements, as 
required by the bill. The second amendment would maintain the 
prohibition on obtaining an LPFM license if an applicant has 
engaged in the unlicensed operation of any station in violation 
of section 301 of the Communications Act of 1934. The bill, as 
amended, was approved by voice vote.

                            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:

                                                  December 9, 2009.
Hon. John D. Rockefeller IV,
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. 592, the Local 
Community Radio Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 592--Local Community Radio Act of 2009

    S. 592 would amend rules that limit the number of low-power 
radio stations that may be licensed by the Federal 
Communications Commission (FCC). Low-power stations are 
operated by noncommercial entities and broadcast very weak 
signals (100 watts or less) that reach a limited geographic 
area. The bill would direct the FCC to eliminate some 
engineering requirements on low-power radio stations and ensure 
the availability of radio spectrum for both low-power FM 
stations and stations that translate FM signals initially 
transmitted by other stations (known as FM translators). 
Finally, S. 592 would require the FCC to report to the Congress 
on the economic impact of low-power FM stations on full-power 
commercial FM stations.
    Based on information from the FCC, CBO estimates that 
implementing S. 592 would cost about $1 million over the 2010-
2014 period, subject to the availability of appropriated funds. 
We expect the number of applications for low-power licenses to 
increase as a result of the bill, which along with the new 
reporting requirement would increase the FCC's administrative 
costs. There would be no change in the FCC's offsetting 
collections, however, because noncommercial entities do not pay 
fees for such licenses. Provisions affecting the allocation of 
spectrum between low-power FM stations and FM translators could 
affect offsetting receipts from future spectrum auctions, but 
CBO estimates that those changes are unlikely to affect 
proceeds from the auctions that will be held before the FCC's 
authority to auction the spectrum expires at the end of 2013.
    S. 592 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (URA). 
To the extent that public entities choose to apply for and 
develop new radio stations, they would voluntarily incur some 
costs.
    On October 28, 2009, CBO transmitted a cost estimate for 
H.R. 1147, the Local Community Radio Act of 2009, as ordered 
reported by the House Committee on Energy and Commerce on 
October 15, 2009. Both bills affect low-power radio stations, 
but S. 592 would require the FCC to prepare additional reports 
for the Congress. The CBO cost estimates reflect that 
difference. CBO has determined that neither bill contains an 
intergovernmental mandate; we determined that H.R. 1147 could 
impose a private-sector mandate that would fall well below the 
annual threshold established in UMRA for private-sector 
mandates ($139 million in 2009, adjusted annually for 
inflation).
    The CBO staff contacts for this estimate are Susan Willie 
and Matthew Pickford. The estimate was approved by Theresa 
Gullo, Deputy 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. 592 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. 592 would expand the number of radio stations available 
for potential licensees and promote a new media outlet for 
consumers and advertisers.

                                PRIVACY

  S. 592 is not expected to have an adverse effect on the 
personal privacy of any individuals that will be impacted by 
this legislation.

                               PAPERWORK

  S. 592 has minimal or no impact on current paperwork levels 
as the FCC is already issuing LPFM station licenses.

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis

Section 1. Short title

  Section 1 would establish the short title of the Act as the 
Local Community Radio Act of 2009.

Section 2. Findings

  Section 2 would set forth a number of Congressional findings 
concerning, among other things, the increase in radio ownership 
consolidation during the past decade, the importance and 
difficulty of establishing local radio stations, and the 
developments and implications of Federal policies on LPFM 
stations to date.

Section 3. Repeal of Prior Law

  Section 3 would repeal the language in the FY 2001 
Departments of Commerce, Justice, and State, the Judiciary, and 
Related Agencies Appropriations Act that requires the FCC to 
delay the licensing of LPFM stations on third-adjacent channels 
to full-power FM stations. However, the FCC would retain 
authority to prohibit any applicant from obtaining an LPFM 
license if the applicant has violated section 301 of 
Communications Act of 1934. 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).

Section 4. Minimum Distance Separation Requirements

  Section 4 would require the FCC to modify its rules to 
eliminate third-adjacent minimum distance separation 
requirements between LPFM stations and full-service FM, FM 
translator, and FM booster stations.

Section 5. Protection of Radio Reading Services

  Section 5 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.

Section 6. Ensuring Availability of Spectrum for LPFM Stations

  Section 6 would require that the FCC ensure that licenses are 
available to both FM translator stations and LPFM stations. 
Further, the FCC must consider the needs of the local community 
in such licensing decisions.

Section 7. Prohibitions on Certain Applicants

  Section 7 would direct the FCC to retain its rules which bar 
any applicant who has engaged in the unlicensed operation of 
any station in violation of section 301 of the Communications 
Act of 1934 from obtaining an LPFM license.

Section 8. Federal Communications Commission Rules

  Section 8 would direct the FCC to retain its third-adjacent 
channel protection for full-power FM stations that are licensed 
in significantly populated States.

Section 9. FCC Study on Impact of LPFM on Full-Power Commercial FM 
        Stations

  Section 9 would direct the FCC to conduct an economic study 
on the impact that LPFM stations will have on full-power 
commercial FM stations.

                        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.]
  Sec. 632. 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 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).

                                  
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