[Federal Register Volume 77, Number 66 (Thursday, April 5, 2012)]
[Rules and Regulations]
[Pages 20555-20558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8129]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 99-25; FCC 12-28]


Implementation of the Local Community Radio Act of 2010; Revision 
of Service and Eligibility Rules for Low Power FM Stations

AGENCY: Federal Communications Commission.

ACTION: Final rule; denial of petitions for reconsideration.

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SUMMARY: In this document, the Commission modifies its rules in order 
to implement provisions of the Local Community Radio Act of 2010 
(``LCRA'') that unambiguously require the Commission to eliminate its 
third-adjacent channel spacing requirements and to maintain the spacing 
requirements currently in place to protect radio reading services. The 
Commission also dismisses and/or denies various petitions for 
reconsideration of the Third Report and Order in MM Docket No. 99-25 
and terminates a Second Further Notice of Proposed Rulemaking in that 
docket.

DATES: Effective June 4, 2012.

FOR FURTHER INFORMATION CONTACT: Peter Doyle (202) 418-2789.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
document in MM Docket No. 99-25, FCC No. 12-28, adopted March 19, 2012. 
A synopsis of the proposed rulemaking segment of this decision will be 
published in a later issue of the Federal Register. The full text of 
the Fifth Report and Order, Fourth Further Notice of Proposed 
Rulemaking and Fourth Order on Reconsideration is available for 
inspection and copying during normal business hours in the FCC 
Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 
20554. The full text may also be downloaded at: http://www.fcc.gov.
    Paperwork Reduction Act Analysis. This Report and Order does not 
adopt any new or revised information collection requirements subject to 
the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C. 
3501-3520). In addition, therefore, it does not contain any new or 
modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).
    Report to Congress. The Commission will send a copy of this Fifth 
Report & Order to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Summary of Fifth Report and Order and Fourth Order on Reconsideration

I. Introduction

    1. In the Fifth Report and Order, we modify our rules to implement 
certain provisions of the Local Community Radio Act of 2010 (``LCRA''), 
which unambiguously require the Commission to eliminate its third-
adjacent channel spacing requirements and to maintain the spacing 
requirements currently in place to protect radio reading services. In 
the Fourth Order on Reconsideration, we dismiss in part and deny in 
part a petition for reconsideration of the Third Report and Order in 
this docket, which the Commission released in 2007, and terminate the 
Second Further Notice of Proposed Rulemaking (Second FNPRM) that 
accompanied that order.

II. Background

    2. In January 2000, the Commission adopted a Report and Order 
establishing the LPFM service. In doing so, the Commission sought ``to 
create a class of radio stations designed to serve very localized 
communities or underrepresented groups within communities.'' The 
Commission created two classes of LPFM facilities. The LP100 class 
consists of stations with a maximum power of 100 watts effective 
radiated power (``ERP'') at 30 meters antenna height above average 
terrain (``HAAT''), providing an FM service radius (1 mV/m or 60 dBu) 
of approximately 3.5 miles. The LP10 class consists of stations with a 
maximum of 10 watts ERP at 30 meters HAAT, providing an FM service 
radius of approximately one to two miles. ``[T]o preserve the integrity 
and technical excellence of existing FM radio service,'' the Commission 
adopted separation requirements for LPFM stations operating on co-, 
first- and second-adjacent channels to full-service FM, FM translator 
and FM booster stations. The Commission, however, declined to impose 
third adjacent channel distance separation requirements, and declined 
to adopt special protections for radio reading services. The Commission 
specified that LPFM stations operate on a ``secondary'' basis. In other 
words, LPFM stations generally cannot cause interference to existing 
and future full-service FM and other ``primary'' stations and are not 
protected against interference from these stations.

[[Page 20556]]

    3. To ensure that any new LPFM service included the voices of 
community-based schools, churches and civic organizations, the 
Commission established ownership and eligibility rules for the LPFM 
service. Specifically, the Commission restricted LPFM service to 
noncommercial educational (``NCE'') operations, and restricted licensee 
eligibility to applicants with no attributable interests in any other 
broadcast station or other media subject to the Commission's ownership 
rules. The Commission also limited eligibility to local entities during 
the first two years LPFM licenses were available. To choose among 
entities filing mutually exclusive applications for LPFM licenses, the 
Commission adopted a point system that favors local ownership and 
locally-originated programming, with ties between competing applicants 
resolved by either voluntary time-sharing agreements between such 
applicants or, in the event that the applicants cannot agree, the 
imposition of ``involuntary time-sharing,'' with each tied and 
grantable applicant awarded an equal, successive and non-renewable 
license term of no less than one year, for a combined total eight-year 
term.
    4. In September 2000, the Commission adopted a Memorandum Opinion 
and Order on Reconsideration. In the Reconsideration Order, the 
Commission revised and clarified some of its LPFM rules, including the 
local program origination criterion adopted for the point system. The 
Commission again declined to impose third-adjacent channel separation 
requirements. Instead, it adopted complaint and license modification 
procedures to address any unexpected, significant third-adjacent 
channel interference problems caused by LPFM stations. It also modified 
the spacing standards to protect radio reading services and adopted 
procedures for addressing any interference caused by an LPFM station to 
the input signal of an FM translator or FM booster station.
    5. Shortly thereafter, in December 2000, Congress enacted the 
Making Appropriations for the Government of the District of Columbia 
for FY 2001 Act (``2001 DC Appropriations Act''). Therein, Congress 
directed the Commission to prescribe third-adjacent channel spacing 
requirements for LPFM stations, which the Commission did in April 2001. 
Congress also directed the Commission to conduct an experimental 
program to evaluate the likelihood of interference to existing full-
service FM stations and FM translator stations if LPFM stations were 
not subject to third-adjacent channel spacing requirements, and to 
submit a report that included the Commission's recommendations 
regarding reduction or elimination of the spacing requirements for 
third-adjacent channels. The Commission selected an independent third 
party, the Mitre Corporation (``Mitre''), to conduct field tests. Mitre 
submitted a report to the Commission, which, in turn, sought comment on 
the report. In February 2004, the Commission submitted a report to 
Congress on this issue. Based on the Mitre study, the Commission 
recommended that Congress ``modify the statute to eliminate the third-
adjacent channel distan[ce] separation requirements for LPFM 
stations.''
    6. In March 2005, the Commission adopted a Second Order on 
Reconsideration and Further Notice of Proposed Rulemaking. In the 
Second Order, the Commission modified some of the rules governing the 
LPFM service, noting that the rules needed adjustment in light of the 
experiences of LPFM applicants and licensees. In the accompanying 
FNPRM, the Commission sought comment on a number of issues with respect 
to LPFM ownership restrictions and eligibility. The Commission also 
proposed certain changes to the rules governing the formation and 
duration of voluntary and involuntary time-sharing arrangements among 
mutually exclusive LPFM applicants. Finally, the Commission sought 
comment on a number of changes to the LPFM technical rules.
    7. In December 2007, the Commission released the Third Report and 
Order and Second FNPRM. In the Third Report and Order, the Commission 
resolved the issues raised in the FNPRM. Among other things, the 
Commission set forth an interim processing policy that it would use to 
consider requests for waiver of the second-adjacent channel spacing 
requirements from certain LPFM stations, reinstated the local ownership 
requirement, and clarified its definition of local origination. The 
Commission also modified the rules governing the formation and duration 
of voluntary and involuntary time-sharing arrangements among mutually 
exclusive LPFM applicants. In the Second FNPRM, the Commission proposed 
certain rule changes designed to avoid the potential loss of LPFM 
stations. The Commission made these proposals ``[i]n light of changed 
circumstances since [it] last considered the issue of protection rights 
for LPFM stations from subsequently authorized full-service stations.'' 
The Commission sought comment on whether to codify the procedures for 
LPFM stations seeking a waiver of the second-adjacent channel spacing 
requirements, whether rule changes were warranted to provide additional 
flexibility to propose LPFM station modifications, whether to require 
full-service new station and modification applicants to provide 
technical and/or financial assistance to potentially impacted LPFM 
stations, whether to adopt contour protection-based licensing standards 
for LPFM stations, and whether to modify the LPFM-FM translator 
protection priorities.
    8. On January 4, 2011, President Obama signed the LCRA into law. 
Through the LCRA, Congress expanded LPFM licensing opportunities. 
Specifically, Congress repealed the requirement that LPFM stations 
operate a minimum distance from nearby stations operating on third-
adjacent channels, and required the Commission to eliminate its third-
adjacent channel minimum distance separation requirements. Congress 
also authorized the Commission to waive the second-adjacent channel 
spacing requirements if an LPFM station demonstrates that its proposed 
operations will not result in interference to any authorized radio 
service. Further, it set forth criteria that the Commission must take 
into account when licensing FM translator, FM booster and LPFM 
stations.
    9. As Congress expanded LPFM licensing opportunities, it also took 
steps to provide enhanced interference protection to existing full-
service FM, FM translator and FM booster stations. Specifically, while 
Congress eliminated the third-adjacent channel spacing requirements, it 
required the Commission to retain the spacing requirements that apply 
to LPFM stations operating on a third-adjacent channel to FM stations 
that broadcast radio reading services. Congress also required the 
Commission to modify its rules to ``address the potential for predicted 
interference to FM translator input signals on third-adjacent 
channels,'' and to modify the interference protection and remediation 
requirements applicable to LPFM stations operating on third-adjacent 
channels.

III. Fifth Report and Order

    10. The LCRA unambiguously requires the Commission to eliminate its 
third-adjacent channel spacing requirements and to maintain the spacing 
requirements currently in place to protect radio reading services. We 
do so in this Fifth Report and Order. We take these steps without 
providing prior public notice and comment because they involve no 
discretion. We merely are revising our rules in the manner specified in 
the legislation. Notice and

[[Page 20557]]

comment would serve no purpose and thus are unnecessary. Our actions 
fall within the ``good cause'' exception of the Administrative 
Procedure Act (``APA'').

A. Third-Adjacent Channel Minimum Distance Separation Requirements

    11. Section 2 of the LCRA amends section 632 of the 2001 DC 
Appropriations Act to delete the requirements that the Commission 
establish and maintain minimum distance separations for third-adjacent 
channels. It essentially lays the groundwork for section 3(a) of the 
LCRA, which requires the Commission to ``modify its rules to eliminate 
third-adjacent minimum distance separation requirements between--(1) 
low-power FM stations; and (2) full service FM stations, FM translator 
stations, and FM booster stations.'' Section 73.807 of the Commission's 
rules currently sets forth these spacing requirements. We hereby delete 
the provisions requiring protection of third-adjacent channel stations 
set forth in that section, with the exception of Sec.  73.807(a)(2), 
(b)(2) and (g) of our rules.

B. Protection of Radio Reading Services

    12. Radio reading services provide access to printed news and other 
information sources for blind or print-disabled persons. They are 
transmitted on one of several standardized subcarrier frequencies 
within a 200 kHz FM channel. These transmissions cannot be received on 
a standard radio. Listeners must use special radios that tune 
subcarrier signals to receive these services. When the Commission 
established the LPFM service in 2000, it initially did not adopt any 
additional interference protections for radio reading services. The 
Commission reasoned that subcarrier programming is transmitted within a 
broadcast station's assigned frequency and thus receives the same 
protection from interference as the main broadcast programming of the 
station.
    13. The Commission reconsidered this decision shortly thereafter 
due to concerns about the greater vulnerability of radio reading 
service receivers to third-adjacent channel interference. It noted 
that, because of their designs, the subcarrier receivers used for radio 
reading services are more susceptible to interference than mass 
marketed receivers. The Commission therefore modified the spacing 
standards set forth in Sec.  73.807 of the rules to require LPFM 
stations to satisfy the second-adjacent channel spacing requirements 
with respect to any third-adjacent channel FM station that broadcasts a 
radio reading service via a subcarrier frequency.
    14. The Commission took this step because, at the time, it had 
declined to adopt generally applicable third-adjacent channel spacing 
requirements. It later adopted such requirements at the direction of 
Congress. These spacing requirements were identical to the second-
adjacent channel spacing requirements. Accordingly, while the 
Commission did not delete the protections specific to FM stations 
providing radio reading services from the rules, the protections became 
redundant. Now, however, with the elimination of the third-adjacent 
spacing requirements, these provisions again have relevance. In this 
regard, section 4 of the LCRA directs the Commission to ``comply with 
existing minimum distance separation requirements'' for stations that 
broadcast radio reading services. Accordingly, we conclude that we must 
retain without modification Sec. Sec.  73.807(a)(2) and (b)(2) of our 
rules to implement section 4.

IV. Fourth Order on Reconsideration

    15. As noted above, in the Third Report and Order, the Commission 
adopted an interim waiver processing policy. The Commission also 
revised Sec.  73.809 and other provisions of the rules in order to 
protect and preserve the LPFM service. Ace Radio Corporation (``Ace 
Radio'') filed a petition for reconsideration (``Ace Radio Petition'') 
of the Third Report and Order, which opposed both the interim waiver 
processing policy and the revisions made to Sec.  73.809. For the 
reasons discussed below, we deny in part the Petition and defer 
consideration of the remainder of the Ace Radio's arguments.
    16. Ace Radio challenges the interim waiver processing policy. 
However, in the Fourth FNPRM, we tentatively conclude that section 
3(b)(2) of the LCRA supersedes this policy. We believe it is 
appropriate to defer consideration of Ace Radio's arguments regarding 
the interim waiver processing policy until we have resolved this issue. 
To the extent Ace Radio's arguments remain relevant, we will consider 
them at that time.
    17. We reject Ace Radio's arguments regarding our revisions to 
Sec.  73.809 of the rules to remove second-adjacent channels from the 
interference complaint procedures set forth therein. Ace Radio first 
argues that it did not have an opportunity to comment on the 
Commission's proposal to modify Sec.  73.809 of the rules to remove 
second-adjacent channels from the rule. It also asserts that the 
revisions to Sec.  73.809 are not justified by the record and, when 
coupled with the Commission's interim waiver processing policy, will 
allow LPFM stations to operate within a full-service station's 70 dBu 
contour, resulting in interference holes, otherwise known as the 
``swiss cheese'' effect.
    18. The Commission provided ample public notice that it was 
considering modification of Sec.  73.809 of the rules to remove second-
adjacent channels. In the FNPRM, the Commission explicitly raised the 
issue of ``encroachment'' and whether a relaxation of the second-
adjacent channel interference restrictions found in Sec.  73.809 of the 
rules was necessary to prevent LPFM stations from being displaced. 
While Ace Radio argues that ``the number of city of license 
applications filed does not justify [the Commission's] action,'' it 
fails to raise any facts or questions of law showing that the 
Commission's decision was incorrect. Contrary to Ace Radio's suggestion 
that the number of LPFM stations at risk of displacement is 
insignificant, the Bureau identified 44 LPFM stations that could be 
forced to cease operations as a result of the filing activity resulting 
from the January 2007 lifting of the freeze on the filing of FM 
community of license modification proposals combined with the 
implementation of new streamlined licensing procedures.
    19. We also note that Ace Radio has mischaracterized the effects 
this rule modification will have on signal reception within a full-
service station's 70 dBu contour. The diagram provided by Ace Radio 
portrays the full 60 dBu contour of 118 hypothetical LPFM stations 
within the 70 dBu contour of a full-service station. The fact that an 
LPFM station has a 60 dBu contour on a second- or third-adjacent 
channel inside the 70 dBu contour of a full-service station does not 
establish that the LPFM station would cause interference. Any potential 
interference received by the full-service station would be only in the 
immediate vicinity of the low-power transmitter site, and can be 
substantially reduced or eliminated through various technical measures. 
Finally, contrary to Ace Radio's assertion, the Commission did not, in 
its modification of Section 73.809, remove the second-adjacent 
restriction for the general allocation processes for LPFMs. Rather, 
this rule change is limited to situations involving a full-service 
station that is authorized subsequent to an LPFM station. As such, Ace 
Radio's concerns are without merit.

[[Page 20558]]

V. Termination of Second Further Notice of Proposed Rulemaking

    20. As noted above, the Commission issued a Second FNPRM in 2007. 
We find that all of the proposals made in the Second FNPRM are either 
inconsistent with or otherwise mooted by the LCRA. Specifically, the 
Commission proposed to codify the interim processing policy for second-
adjacent channel waiver requests that it adopted in the Third Report 
and Order. However, in the Fourth FNPRM, we conclude that the second-
adjacent channel waiver provisions of the LCRA supersede this interim 
policy. Accordingly, we find the Commission's proposal to codify the 
interim policy to be moot and will not pursue it further. Similarly, we 
find the Commission's proposal to adopt a contour overlap interference 
protection approach to be statutorily barred by section 3(b)(1) of the 
LCRA, which prohibits the Commission from modifying the current co-
channel and first- and second-adjacent channel distance separation 
requirements. We will not pursue this proposal either. Finally, the 
Commission proposed certain rule changes related to LPFM station 
displacement, the obligations of full-service new station and 
modification applicants to potentially impacted LPFM stations, and 
LPFM-FM translator protection priorities. We believe that Congress's 
adoption of the LCRA renders pursuit of those earlier proposals 
unnecessary at this time. Thus, we will not move forward with any of 
them. Given our findings regarding each of the proposals set forth by 
the Commission in the Second FNPRM, we consider the Second FNPRM to 
have been concluded.

VI. Adminstrative Matters

A. Congressional Review Act

    21. The Commission will send a copy of this Fifth Report and Order 
to Congress and the Government Accountability Office pursuant to the 
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

VII. Ordering Clauses

    22. Accordingly, It is ordered, pursuant to the authority contained 
in the Local Community Radio Act of 2010, Public Law 111-371, 124 Stat. 
4072 (2011), and sections 1, 2, 4(i), 303, 307, and 309(j) of the 
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 307, and 
309(j), that this Fifth Report and Order, Fourth Further Notice of 
Proposed Rulemaking and Fourth Order on Reconsideration is adopted.
    23. It is further ordered that pursuant to the authority contained 
in the Local Community Radio Act of 2010, Public Law 111-371, 124 Stat. 
4072 (2011), and sections 1, 2, 4(i), 303, and 307 of the 
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, and 307, 
the Commission's rules are hereby amended. 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.
    24. It is further ordered that the rules shall be effective June 4, 
2012.
    25. It is further ordered that the Petition for Rulemaking filed by 
REC Networks on July 16, 2004, is hereby dismissed, and Proceeding No. 
PRM-04-MB is terminated.
    26. It is further ordered that the Petition for Reconsideration 
filed by Ace Radio Corp. on February 19, 2008, is denied in part.
    27. It is further ordered that the Second Further Notice of 
Proposed Rulemaking in MM Docket No. 99-25 is terminated.
    28. It is further ordered that the Consumer and Governmental 
Affairs Bureau, Reference Information Center, shall send a copy of this 
Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking 
and Fourth Order on Reconsideration, including the Initial Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration, and shall cause it to be published in the 
Federal Register.

List of Subjects in 47 CFR Part 73

    Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 73 to read as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority citation for part 73 continues to read as follows:

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


0
2. Section 73.807 is amended by revising the introductory text to read 
as follows:


Sec.  73.807  Minimum distance separation between stations.

    Minimum separation requirements for LP100 and LP10 stations, as 
defined in Sec. Sec.  73.811 and 73.853, are listed in the following 
paragraphs. An LPFM station will not be authorized unless the co-
channel, first- and second-adjacent and IF channel separations are met. 
An LPFM station need not satisfy the third-adjacent channel separations 
listed in paragraphs (a) through (d) in order to be authorized. Minimum 
distances for co-channel and first-adjacent channel are separated into 
two columns. The left-hand column lists the required minimum separation 
to protect other stations and the right-hand column lists (for 
informational purposes only) the minimum distance necessary for the 
LPFM station to receive no interference from other stations assumed to 
be operating at the maximum permitted facilities for the station class. 
For second-adjacent channel and I.F. channels, the required minimum 
distance separation is sufficient to avoid interference received from 
other stations.
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[FR Doc. 2012-8129 Filed 4-4-12; 8:45 am]
BILLING CODE 6712-01-P