21002 Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 

Maps are available for inspection at the Township Building, 705 Municipal Drive, Southampton, PA 17257. 

Township of Washington 

Maps are available for inspection at the Washington Township Building, 13013 Welty Road, Waynesboro, PA 17268. 

■ 6. On page 76059, under the 

ADDRESSES heading, the following text 

should read as set forth below: 

Borough of New Beaver 

Maps are available for inspection at the New Beaver Borough Office, 778 Wampum New Galilee Road, New Galilee, PA 16141. 

Borough of Wampum 

Maps are available for inspection at the Borough Secretary’s Office, 355 Main Street, Wampum, PA 16157. 

Township of Hickory 

Maps are available for inspection at the Hickory Township Hall, 127 Eastbrook-Neshannock Falls Road, New Castle, PA 16105. 

Township of Mahoning 

Maps are available for inspection at the Mahoning Township Municipal Building, 4538 West State Street, Hillsville, PA 16132. 

Township of Perry 

Maps are available for inspection at the Perry Township Hall, 284 Reno Road, Portersville, PA 16051. 

Township of Pulaski 

Maps are available for inspection at the Township Hall, 1172 State Route 208, Pulaski, PA 16117. 

Township of Taylor 

Maps are available for inspection at the Taylor Township Board of Supervisors Office, 218 Industrial Street, West Pittsburg, PA 16160. 

Township of Union 

Maps are available for inspection at the Union Township Board of Supervisors Office, 1910 Wilson Drive, New Castle, PA 16101. 

Township of Wilmington 

Maps are available for inspection at the Wilmington Township Hall, 669 Wilson Mill Road, New Castle, PA 16105. 

[FR Doc. C1–2011–31276 Filed 4–6–12; 8:45 am] 

BILLING CODE 1501–05–D 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 74 

[MB Docket No. 99–25; MB Docket No. 07– 

172, RM–11338, FCC 12–29] 

Creation of a Low Power Radio 

Service; Amendment of Service and 

Eligibility Rules for FM Broadcast 

Translator Stations 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission adopts LPFM and 

translator licensing policies that 

conform to the Local Community Radio 

Act (‘‘LCRA’’). The LCRA requires the 

FCC to balance the competing demands 

of LPFM and translator applicants when 

making licensing decisions. Section 5 of 

the Act requires the Commission to 

ensure that: licenses are available for 

both LPFM and translator stations; 

licensing decisions are based on 

community needs; and translator and 

LPFM stations remain equal in status. 

The item finds that a previously 

adopted cap on translator applications 

pending from Auction No. 83 is 

inconsistent with the LCRA’s directives, 

and adopts a market-specific processing 

policy. The item finds that this 

approach most faithfully implements 

Section 5’s directives, and will allow 

the Commission to resume the 

processing of approximately 6,500 

translator applications that have been 

pending since 2003, while also ensuring 

that the upcoming LPFM window will 

provide a real opportunity for 

significant community radio licensing 

in major metropolitan areas. 

The item also adopts national and 

market caps to prevent the trafficking of 

translator construction permits. Finally, 

the item relaxes the May 1, 2009, date 

restriction to allow pending translator 

applications from Auction No. 83 that 

are subsequently granted to rebroadcast 

the signals of AM stations at night. 

DATES: The amendment to 47 CFR 

74.1232(d) of the Rules will be effective 

May 9, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Peter Doyle, (202) 418–2789. 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. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Fourth 

Report and Order (Fourth R&O), FCC 

12–29, adopted March 19, 2012, and 

released March 19, 2012. The full text 

of the Fourth R&O is available for 

inspection and copying during regular 

business hours in the FCC Reference 

Center, 445 12th Street SW., Room CY– 

A257, Portals II, Washington, DC 20554, 

and may also be purchased from the 

Commission’s copy contractor, BCPI, 

Inc., Portals II, 445 12th Street SW., 

Room CY–B402, Washington, DC 20554. 

Customers may contact BCPI, Inc. via 

their Web site, http://www.bcpi.com, or 

call 1–800–378–3160. This document is 

available in alternative formats 

(computer diskette, large print, audio 

record, and Braille). Persons with 

disabilities who need documents in 

these formats may contact the FCC by 

email: FCC504@fcc.gov or phone: 202– 

418–0530 or TTY: 202–418–0432. 

Paperwork Reduction Act of 1995 

Analysis 

This Fourth R&O adopts new 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995 (PRA) (Pub. L. 104–13, 109 Stat 

163 (1995) (codified in 44 U.S.C. 3501– 

3520)). These information collection 

requirements will be submitted to the 

Office of Management and Budget 

(OMB) for review under section 3507(d) 

of the PRA. The Commission will 

publish a separate notice in the Federal 

Register inviting comment on the new 

information collection requirements 

adopted in this document. The 

requirements will not go into effect until 

OMB has approved them and the 

Commission has published a notice 

announcing the effective date of the 

information collection requirements. In 

addition, the Commission notes that 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 21003 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

it previously sought specific comment 

on how the Commission might ‘‘further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees.’’ 

Synopsis of Order 

1. On July 12, 2011, the Commission 

released a Third Further Notice of 

Proposed Rule Making (‘‘Third Further 

Notice’’) in this proceeding, seeking 

comment on the impact of the 

enactment of the Local Community 

Radio Act of 2010 (‘‘LCRA’’) on the 

procedures previously adopted to 

process the approximately 6,500 

applications that remain pending from 

the 2003 FM translator window. There, 

the Commission tentatively concluded 

that the previously adopted translator 

licensing procedures, which would 

limit each applicant to ten pending 

applications, would be inconsistent 

with the LCRA’s goals. It proposed to 

modify those procedures and instead 

adopt a market-specific translator 

application dismissal process, 

dismissing pending translator 

applications in identified spectrumlimited markets in order to preserve 

adequate low power FM (‘‘LPFM’’) 

licensing opportunities. It also sought 

comment on whether, based on the 

enactment of the LCRA, the Commission 

should modify its rules permitting only 

those translator stations authorized on 

or prior to May 1, 2009, to rebroadcast 

the signals of AM stations. 

2. In this Fourth Report and Order, we 

adopt the market-specific translator 

application processing and dismissal 

policies proposed in the Third Further 

Notice, incorporating certain 

modifications proposed by commenters. 

These policies are designed to fully and 

faithfully effectuate the licensing 

directives set forth at section 5 of the 

LCRA while also taking into account the 

constraints of limited spectrum and 

technical licensing requirements. We 

are founding these procedures on our 

extensive spectrum availability studies 

set forth in Appendices A and B, which 

establish that limited LPFM licensing 

opportunities remain in many markets. 

We have determined, based on these 

studies, that the next LPFM window 

presents a critical, and indeed possibly 

a last, opportunity to nurture and 

promote a community radio service that 

can respond to unmet listener needs and 

underserved communities in many 

urban areas. As explained herein, we 

find that it is necessary to dismiss 

significant numbers of translator 

applications in spectrum limited 

markets to fulfill that opportunity. 

Nevertheless, these procedures are also 

designed to facilitate to the maximum 

extent possible the grant of the pending 

translator applications in all markets— 

whether spectrum is limited or 

abundant. In adopting these procedures, 

we note that neither the Commission 

nor any commenter has identified a 

fundamentally different approach that 

would both satisfy section 5’s mandate 

and permit the rapid and efficient 

licensing of both LPFM and translator 

stations. With regard to the 6,500 

applications that remain pending from 

the 2003 FM translator window, we also 

adopt a national cap of 50 applications 

and a market-based cap of one 

application per applicant per market for 

the 156 markets identified in Appendix 

A to minimize the potential for 

speculative licensing conduct. Finally, 

we modify the May 1, 2009, date 

restriction to allow pending FM 

translator applications that are granted 

to be used as cross-service translators. 

3. In the Third Order on 

Reconsideration, we also dismiss 

petitions for reconsideration of the 

Third Report and Order as they relate to 

the now-abandoned ten-application cap 

processing policy. 

I. Discussion 

A. Section 5 of the LCRA: Broad 

Interpretive Principles 

1. Background 

4. The LCRA, signed into law by 

President Obama on January 4, 2011, 

expands LPFM licensing opportunities 

by repealing the requirement that LPFM 

stations be certain minimum distances 

from nearby stations operating on 

‘‘third-adjacent’’ channels. Section 5 of 

the LCRA also sets forth criteria that the 

Commission must take into account 

when licensing FM translator, FM 

booster and LPFM stations. 

5. In the Third Further Notice, we 

proposed to interpret section 5 to 

establish the following broad principles: 

D Section 5(1) requires the 

Commission to adopt licensing 

procedures that ensure some minimum 

number of licensing opportunities for 

both LPFM and translator services 

across the nation; 

D Read together with section 5(2), 

section 5(1) requires the Commission to 

provide licensing opportunities for both 

services in as many local communities 

as possible; and 

D We tentatively concluded that our 

primary focus under section 5(1) must 

be to ensure that translator licensing 

procedures do not foreclose or unduly 

limit future LPFM licensing, because the 

more flexible translator licensing 

standards will make it much easier to 

license new translator stations in 

spectrum-limited markets than new 

LPFM stations. 

6. In addition, we sought comment on 

whether to consider existing stations in 

making a ‘‘licenses are available’’ 

finding under section 5(1), pointing out 

that because of the large number of 

existing translators within the top 200 

Arbitron-rated markets, ‘‘taking into 

account existing translators ... would 

militate in favor of the dismissal of 

[pending] translator applications, at 

least in markets where there is little or 

no remaining spectrum for future LPFM 

stations or where substantially fewer 

licensing opportunities remain.’’ We 

tentatively concluded that the 

suspended national cap of ten translator 

applications per applicant in the 

Auction No. 83 pool of pending 

translator applications is inconsistent 

with the statutory mandate to ensure 

some minimum number of LPFM 

licensing opportunities in as many local 

communities as possible. Instead, we 

proposed a market-specific process of 

dismissing all pending translator 

applications in certain spectrum-limited 

markets in order to preserve a certain 

number of LPFM licensing 

opportunities, while allowing 

processing of translator applications 

outside those markets. 

2. Comments 

7. Among all the parties submitting 

comments in response to the Third 

Further Notice, there is broad support 

for eliminating the cap of ten translator 

applications and using market-specific 

spectrum availability metrics to 

implement section 5 requirements. 

However, on the issue of interpreting 

section 5, divergent arguments were 

presented by translator supporters, on 

the one hand, and LPFM supporters on 

the other. Their positions are 

summarized in the following sections, 

addressing interpretive issues presented 

by sections 5(1)–(3) of the LCRA. We 

also note that Senators Cantwell and 

McCain and Representatives Doyle and 

Terry, the original sponsors of the 

LCRA, submitted a letter expressing 

their support for our interpretation of 

section 5 of the LCRA and for our 

proposed approach to effectuating the 

statute. 

a. Section 5(1)—Ensuring That Licenses 

Are Available 

8. LPFM advocates support our view 

that section 5(1) of the LCRA requires 

the Commission to ensure that the 

processing of translator applications 

does not preclude future opportunities 

for new LPFM licenses. Prometheus 

cites to the Congressional history of the 

LCRA and the Sponsors’ Letter to 


pmangrum on DSK3VPTVN1PROD with RULES
21004 Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 

support this position. LPFM supporters 

contend that Congress intended that the 

Commission take existing licenses into 

account when assessing whether its 

licensing procedures would ensure that 

licenses are available rather than 

establish a ‘‘going forward’’ only 

standard that ignores legacy licensing. 

LPFM advocates also argue that section 

5(1) requires the Commission to 

preserve a significant number of 

licensing opportunities for new LPFM 

stations in all markets where this is 

possible. 

9. Translator supporters disagree with 

these positions. These commenters 

oppose an interpretation of section 5(1) 

that, in their view, would favor LPFM 

stations over translators and urge the 

Commission not to devise licensing 

procedures to redress perceived 

imbalances in past licensing. NPR 

argues that our proposal unduly favors 

future LPFM service at the expense of 

the pending FM translator applicants by 

taking into account the number of 

existing LPFM and translator stations. 

NPR also argues that ‘‘ensuring that 

licenses are available’’ includes current 

and future FM translator station 

applicants. Similarly, EMF notes that 

the LCRA never ‘‘directly’’ references 

applications from Auction No. 83, and 

emphasizes Congress’ use of ‘‘new’’ at 

the beginning of section 5 to argue that 

section 5(1) ‘‘requires that ‘new’ licenses 

for both translators and LPFM stations 

be made available.’’ NAB argues that a 

policy of dismissing translator 

applications where translators but not 

LPFM stations could be located would 

counter section 5(1)’s mandate that 

licenses be available for translator 

stations. 

b. Section 5(2)—Assessing the ‘‘Needs of 

the Local Community’’ 

10. Commenters are divided also in 

interpreting section 5(2) of the LCRA. 

LPFM advocates suggest that section 

5(2) should be interpreted as a mandate 

favoring localism, and in particular 

LPFM stations, which they argue 

provide the greatest localism benefit of 

any broadcast service. Indeed, 

commenters note that the LPFM service 

was established in part to address the 

perceived loss of local programming 

during a period of significant radio 

consolidation. Some parties argue that 

translators, which do not originate 

programming, fail to serve local 

community needs and are not truly 

local, while LPFM stations better serve 

the goals of localism. LPFM proponents 

also suggest that, when making 

licensing decisions, the Commission 

could address the needs of local 

communities by considering 

demographic data. Specifically, they 

argue that urban communities, well 

served by commercial and 

noncommercial services, have less need 

for translator services and more need for 

local community-level programming, 

while rural communities, poorly served 

by full-service facilities, have need for 

both translators and LPFM stations. 

11. On the other hand, translator 

advocates argue that translators can 

serve the needs of the local community 

and note that the Commission and 

Congress have found that to be the case. 

For example, translators can provide 

emergency information, as well as 

regional and state news. Translators can 

also serve the local community by 

providing a format not currently 

available in that area. Thus, they argue 

it is wrong to assume that LPFM stations 

better serve local community needs than 

do translators. NPR criticizes our 

analysis of section 5(2) on the ground 

that we focused on the differences 

between translators and LPFM stations, 

rather than focusing on how both 

services serve the needs of the local 

community by expanding the 

programming choices available to 

listeners. NPR also argues that some 

communities might actually have a 

greater need for a translator than for an 

LPFM station because a translator may 

be filling a coverage gap for a significant 

full-power station. Common Frequency 

replies that urban communities served 

by multiple translators have more need 

for a first LPFM station. 

c. Section 5(3)—‘‘Equal in Status’’ 

12. The Third Further Notice noted 

that section 5(3) refers specifically to 

‘‘stations’’ rather than to ‘‘applications,’’ 

suggesting that it could be applied only 

to existing stations and that future 

LPFM applications could have priority 

over pending FM translator 

applications. However, the Third 

Further Notice also recognized that the 

Commission had used the terms 

‘‘stations’’ and ‘‘applications’’ 

interchangeably in discussing the ‘‘coequal status’’ of LPFM stations and FM 

translator stations and that the 

Commission had framed this issue in 

terms of whether to follow or waive the 

current ‘‘cut-off’’ rules which protect 

prior-filed Auction No. 83 translator 

applications from subsequently-filed 

LPFM station applications. The Third 

Further Notice stated that it seems 

reasonable to assume that Congress 

intended the same meaning when it 

used the word ‘‘station’’ in the LCRA. 

13. Translator proponents argue that, 

for regulatory purposes, the terms 

‘‘stations’’ and ‘‘applications’’ are 

interchangeable. Translator proponents 

argue that either changing the 

Commission’s market-based approach or 

waiving the cut-off rules in favor of 

future-filed LPFM applications would 

not be consistent with section 5(3). 

Mullaney Engineering argues that the 

services are not ‘‘equal in status’’ if 

LPFM applicants are allowed to 

invalidate the cut-off protection rights of 

previously-filed translator applications. 

NPR likewise believes that waiving cutoff rules to give preference to later-filed 

LPFM applications would violate the 

‘‘equal in status’’ mandate. Other 

translator supporters express concern 

that this approach would 

disproportionately favor the licensing of 

future LPFM stations and thereby 

violate section 5(3)’s equal in status 

mandate. They claim that trying to make 

LPFM and translators equal in numbers 

would suppress translator licensing and 

artificially encourage unwanted LPFMs. 

14. LPFM supporters disagree, arguing 

that, while the grant of a station license 

conveys certain vested and statutorily 

protected interests to a licensee, those 

interests do not attach to a pending 

application. Prometheus argues that 

section 5(3) does not refer to the cut-off 

rule, but instead merely requires that 

translators and LPFM stations be 

secondary to full-service stations and 

equal to each other. Prometheus further 

asserts that section 5(3) does not 

prohibit the Commission from giving 

LPFM applicants priority over translator 

applicants, particularly when read in 

the context of section 5(2)’s requirement 

that licensing serve the needs of local 

communities and section 307(b)’s 

requirement that the Commission 

distribute radio service in the public 

interest. Prometheus states that the 

Commission should balance the two 

services by aiding in the development of 

LPFM. 

15. Other LPFM advocates argue that 

the cut-off protection rule is a regulatory 

custom that the Commission can waive 

if it serves the public interest. Some 

commenters argue for giving LPFM 

stations priority because translators 

consume valuable radio spectrum while 

failing to provide original local 

programming. LPFM advocates also 

argue that the Commission must 

compensate for the ‘‘head start’’ that the 

translator service has to the 

comparatively new LPFM service. 

Commenters further argue that the 

current rules favor translators. Some 

suggest that, in order to achieve a true 

equality between the LPFM service and 

translators, the technical rules 

governing the LPFM service should be 

changed to match those of translators. 

Common Frequency contends that 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 21005 

section 5(3) calls for a goal of equal 

spectrum for each service. 

3. Analysis 

16. We adopt the interpretations of 

the three section 5 licensing standards 

proposed in the Third Further Notice. In 

its broadest terms, section 5(1) clearly 

requires the Commission to ensure that 

some minimum number of FM 

translator and LPFM ‘‘licenses are 

available’’ throughout the nation when 

licensing new FM translator and LPFM 

stations. We also find that section 5 is 

most reasonably interpreted to require 

consideration of existing licenses. As we 

observed in the Third Further Notice, 

the word ‘‘new’’ appears in the first 

clause of section 5 but not in 

subparagraph 1, suggesting that we 

should consider the availability of both 

new and existing stations in ensuring 

that ‘‘licenses are available’’ for both 

services. In addition, our interpretation 

is consistent with the title of section 5, 

‘‘Ensuring Availability of Spectrum for 

Low-Power FM Stations,’’ as well as the 

Commission’s longstanding license 

allocation policies under section 307(b) 

of the Communications Act of 1934, as 

amended (‘‘Act’’), which directs the 

Commission to ensure ‘‘a fair, efficient, 

and equitable distribution of radio 

service’’ ‘‘among the several States and 

communities.’’ In contrast, interpreting 

section 5 to require us to license new 

translator and LPFM stations without 

regard to the number of operating 

stations in each service, as EMF 

advocates, would be inconsistent with 

ensuring the availability of spectrum for 

both services, as well as section 307(b)’s 

direction. We also find support for our 

interpretation in the comments of LPFM 

advocates discussed above. 

Accordingly, we conclude that the 

mandate of section 5(1) to ensure that 

‘‘licenses are available’’ is reasonably 

interpreted to require consideration of 

both existing and future licenses in the 

translator and LPFM services when 

licensing new stations in those services. 

17. We reject arguments that 

interpreting section 5(1) to require 

consideration of existing licenses is 

unreasonable because such an 

interpretation would ‘‘favor’’ LPFM 

licensing. The LCRA necessarily 

requires the Commission to make 

choices between licensing new LPFM 

and translator stations in some cases, 

given that the two services compete for 

the same limited spectrum. Making such 

choices based on the overall spectrum 

available to each service does not 

‘‘favor’’ one service over the other. On 

the contrary, the fact that our 

interpretation of section 5(1) enables us 

to account for the present disparities 

between the two services in terms of the 

number of licensed stations supports its 

reasonableness. We also reject EMF’s 

argument that the LCRA ‘‘says nothing’’ 

about the processing of the applications 

which remain pending from the 2003 

translator window because it does not 

expressly address them. These 

applications are unquestionably subject 

to section 5 requirements which apply 

‘‘when licensing new FM translator 

stations * * * .’’ Rather, we agree with 

NPR that the language of section 5(1) 

encompasses pending as well as future 

applications. 

18. We also adopt our proposed 

interpretation of sections 5(1) and (2) 

together to require that LPFM and 

translator licenses be available in as 

many ‘‘local communit[ies]’’ as possible, 

according to their needs. We recognize 

that translators and LPFM stations both 

serve the needs of communities, albeit 

in different ways, and conclude that we 

must take these factors into 

consideration in implementing section 

5(2). In particular, translators, which are 

inexpensive to construct and operate, 

can effectively bring service to rural and 

under-served areas. LPFM stations, on 

the other hand, which typically utilize 

volunteer staffs, operate under great 

budget constraints, and serve smaller 

geographic areas, may be less effective 

in meeting the needs of small 

communities and areas of low 

population density. Translators also are 

essential components of local and 

regional transmission systems that 

efficiently deliver valued programming 

to listeners. Nevertheless, as we 

explained in the Third Further Notice, 

the Commission has historically 

accorded no weight to translators in 

assessing the comparative needs of a 

community for radio service under its 

section 307(b) licensing policies. In 

contrast, the LPFM service was created 

‘‘to foster a program service responsive 

to the needs and interests of small 

community groups, particularly 

specialized community needs that have 

not been well served by commercial 

broadcast stations.’’ Numerous LPFM 

service and comparative licensing 

criteria are designed to promote these 

goals. These criteria include a 

requirement that licensees be local, a 

licensing preference for those applicants 

with an established community 

presence, and a licensing preference for 

those applicants that pledge to locally 

originate at least eight hours of 

programming per day. In addition, 

ownership restrictions and time-share 

rules necessarily result in expanded 

ownership diversity. Based on these 

factors, we find that LPFM stations are 

uniquely positioned to meet local needs, 

particularly in areas of higher 

population density where LPFM service 

is practical and sustainable. 

19. We also adopt our tentative 

conclusion that our primary focus under 

section 5 must be to ensure that 

translator licensing procedures do not 

foreclose or unduly limit future LPFM 

licensing, because the more flexible 

translator licensing standards will make 

it much easier to license new translator 

stations in spectrum-limited markets 

than new LPFM stations. Our marketspecific analyses, which are set forth in 

Appendices A and B, establish that few 

LPFM licenses have been issued and 

limited LPFM licensing opportunities 

remain in many markets due to the 

relatively inflexible LPFM technical 

rules and high spectrum utilization. In 

contrast, given the more flexible 

translator licensing standards and the 

limited LPFM licensing opportunities in 

many markets, the next round of LPFM 

licensing will have only a modest 

impact on licensing opportunities for 

future translator stations. Thus, our 

principal challenge in effectuating the 

mandates of sections 5(1) and 5(2) is to 

identify and preserve LPFM licensing 

opportunities where few or no LPFM 

stations currently operate. We note that 

this goal is fully consistent with 

Congress’s decisions to eliminate third 

adjacent channel distance separation 

requirements and to permit second 

adjacent channel spacing waivers, and 

thereby, expand the LFPM service. 

20. Our interpretation of section 5 has 

clear implications for the translator 

processing and dismissal procedures we 

adopt in this proceeding. These 

procedures must be responsive to two 

different situations. The first concerns 

markets where, taking into account both 

licensed stations and the potential for 

additional stations, ample LPFM 

licensing opportunities are present. 

Procedures in these markets must 

balance translator and LPFM licensing 

in a manner that ‘‘ensures’’ a level of 

future LPFM licensing that the 

Commission determines is sufficient to 

satisfy statutory requirements. 

Secondly, in markets where insufficient 

spectrum remains to satisfy these 

requirements, the translator processing 

and dismissal procedures, including 

amendment and settlement procedures, 

should preserve all identified LPFM 

licensing opportunities, i.e., should 

facilitate the grant of only those 

translator applications that would not 

diminish or ‘‘block’’ future LPFM 

licensing in these markets. 

21. On the other hand, we agree with 

NAB that, consistent with our statutory 

interpretation, our policies should seek 


pmangrum on DSK3VPTVN1PROD with RULES
21006 Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 

to avoid the dismissal of translator 

applications where LPFM stations 

‘‘cannot’’ be licensed. We note that, 

however, that capacity to identify such 

situations is limited. The FM database is 

dynamic, with LPFM filing 

opportunities being created, eliminated 

or modified daily due to FM application 

and allotment filings. Moreover, revised 

LPFM technical licensing rules that are 

now under consideration will materially 

affect licensing opportunities. Given the 

limited LPFM licensing opportunities in 

many markets, the modest impact that 

LPFM licensing will have on future 

translator licensing in those markets and 

the difficulties in establishing with 

certainty that a translator application 

‘‘cannot’’ preclude an LPFM filing, we 

conclude that adoption of a conservative 

processing regime that fully protects 

scarce spectrum for future LPFM 

stations would be consistent with 

section 5, read as a whole. 

22. We adopt our tentative conclusion 

that the nationwide ten translator 

application-cap dismissal policy we 

established prior to the LCRA’s 

enactment is inconsistent with section 5 

because it would not provide a certain 

and effective way to ensure that LPFM 

‘‘licenses are available’’ for local 

communities in many markets. Under 

that policy, translator applications that 

prevent or ‘‘block’’ LPFM licensing 

opportunities would likely be eligible 

for processing in markets where the 

need for LPFM licensing opportunities 

is greatest and spectrum most limited. 

Based on the market-specific analyses 

set forth in Appendices A and B, we 

also conclude that no or limited useful 

spectrum for LPFM stations is likely to 

remain in numerous specific radio 

markets where typically few or no 

LPFM stations now operate unless 

translator dismissal procedures reliably 

result in the dismissal of all ‘‘blocking’’ 

translator applications. 

23. With regard to section 5(3), we 

asked in the Third Further Notice 

whether the requirement that translator 

and LPFM stations remain ‘‘equal in 

status’’ prohibits waivers of the LPFM 

cut-off rule, which prioritizes pending 

FM translator applications over laterfiled LPFM applications, explaining that 

such an interpretation would require the 

Commission to dismiss any pending FM 

translator applications that it 

determines must make way for LPFM 

licensing opportunities, rather than 

deferring action on such applications 

and later processing any that remain 

pending after the completion of 

dismissal and settlement procedures 

adopted to implement section 5. We 

identified several factors that support 

such an interpretation. The cut-off rules 

are a principal characteristic of the two 

services, establishing their ‘‘equal’’ 

status as to each other. While 

acknowledging that section 5(3) refers to 

‘‘stations,’’’ we noted in the Third 

Further Notice that the Commission has 

used ‘‘stations’’ and ‘‘applications’’ 

interchangeably in considering whether 

to give priority to applications filed in 

the upcoming LPFM window, a central 

issue in this proceeding since 2005. 

Thus, we explained, section 5(3) could 

be reasonably interpreted to prohibit 

waivers of the LPFM cut-off rule. 

24. Prometheus disagrees with this 

reasoning, pointing out that the ‘‘plain 

language’’ of section 5(3) does not refer 

to the Commission’s cut-off rules. It 

contends that section 5(3) merely 

‘‘authorizes the existing arrangements 

between licensed LPFM and translator 

stations as they relate to full-service 

stations. Both can be displaced by 

primary stations but neither can 

displace the other; and in this sense 

these stations should remain equal.’’ 

Prometheus concludes that section 5(3) 

is not a bar to giving priority to LPFM 

applications filed in the upcoming 

window. Based on this interpretation, 

Prometheus advocates a processing 

policy under which action on certain 

translator applications would be 

deferred. Those applications that remain 

pending would be subject to dismissal 

if a conflicting LPFM application is 

filed. Prometheus, however, also 

recognizes that the translator dismissal 

procedures proposed in the Third 

Further Notice would be permissible 

under Prometheus’s differing section 

5(3) interpretation. 

25. We are not persuaded that 

Prometheus’s narrow interpretation of 

section 5(3) is reasonable. For the 

reasons discussed above, we believe that 

the equality mandated by section 5(3) 

for FM translator stations vis-a`-vis 

LPFM stations is most reasonably 

interpreted to encompass applications 

as well as authorized stations in order 

to be meaningful. That view is 

consistent with the Commission’s 

treatment of the issue of the relative 

status of LPFM and translator stations 

prior to the LCRA’s enactment, and 

nothing in the legislative history 

supports a contrary interpretation. Our 

interpretation also is consistent with the 

fact that the section 5 mandates apply 

‘‘when licensing new FM translator 

stations, FM booster stations and lowpower FM stations.’’ That is, section 5 

as a whole concerns the processing of 

applications. Thus, we believe that 

Prometheus’s interpretation is 

inconsistent with section 5(3) when it is 

considered in the context of section 5 as 

a whole. 

26. Although we find that the ‘‘equal 

in status’’ requirement of section 5(3) is 

most reasonably interpreted to bar 

LPFM cut-off rule waivers, we need not 

resolve this issue. Assuming arguendo 

that we could give priority to LPFM 

applications filed in the upcoming 

window over pending translator 

applications, we nevertheless conclude 

that the processing regime we adopt 

herein more rapidly and efficiently 

effectuates the LCRA’s goals than would 

Prometheus’s alternate approach. Most 

importantly, it avoids the translator 

licensing delays that would result from 

a deferral approach. Under such an 

approach, all translator application 

processing would remain frozen until 

all LPFM applications are on file and 

have been analyzed. Only at that point 

could the Commission attempt to 

process ‘‘non-conflicting’’ translator and 

LPFM applications simultaneously. In 

addition to these delays, translator 

grants under Prometheus’s approach 

would have to be conditioned on 

subsequent LPFM licensing decisions, 

with the risk of displacement 

potentially discouraging or delaying 

construction efforts. Alternatively, the 

Commission could delay translator 

application processing until initial 

licensing actions from the LPFM 

window are substantially completed, a 

process that would likely take a number 

of years. In contrast, as set forth in detail 

below, our tailored market-specific 

processing scheme is likely to allow the 

rapid licensing of at least one 1000 

additional translator stations. Thus, we 

agree with the sponsors of the LCRA 

that the approach we adopt herein 

‘‘takes into account the needs of 

translator applicants’’ as well as 

potential LPFM applicants. 

27. We also conclude that the 

approach Prometheus advocates would 

be administratively burdensome and 

resource intensive. Prometheus’s 

approach would require the 

Commission to identify with certainty 

the potential preclusive impact of 

pending LPFM window filings in order 

to determine which deferred FM 

translator applications may be acted on, 

yet the potential for LPFM application 

amendments and settlements would 

make it difficult to identify with 

certainty the breadth of the potential 

preclusive impact of pending LPFM 

window filings. Moreover, Prometheus’s 

approach could lead to inequitable 

treatment of FM translator applications 

filed in the same window, with the 

opportunity for technical amendments 

resulting in certain translator 

applications that are deemed ready for 

processing before others receiving 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 21007 

preferential access to limited spectrum. 

Thus, we conclude for policy reasons 

that the problems associated with 

deferring action on pending FM 

translator applications that otherwise 

would be subject to dismissal under the 

policies we adopt herein substantially 

outweigh any benefits. 

B. Implementing Section 5 of the LCRA: 

Proposed Market-Based Processing 

Policy 

1. Background 

28. Having tentatively concluded that 

the ten-application cap dismissal policy 

would run contrary to the LCRA’s 

mandate, the Commission considered 

three alternative processing regimes and 

tentatively concluded that a marketspecific, spectrum availability-based 

translator application dismissal policy 

would most faithfully implement 

section 5 of the LCRA. To determine 

LPFM opportunities in major markets, 

the Bureau undertook a nationwide 

LPFM spectrum availability analysis. 

The Bureau studied all top 150 radio 

markets, as defined by Arbitron, and 

smaller markets where more than four 

translator applications are pending. It 

centered a thirty-minute latitude by 

thirty-minute longitude grid over the 

center-city coordinates of each studied 

market. Each grid consisted of 961 

points—31 points running east/west by 

31 points running north/south. The 

Bureau analyzed each of the 100 FM 

channels (88.1 mHz—107.9 mHz) at 

each grid point to determine whether 

any channels remained available for 

future LPFM stations at that location. 

Only channels that fully satisfied co-, 

first- and second adjacent channel 

LPFM spacing requirements to all 

authorizations and applications, 

including pending translator 

applications, were treated as available. 

The area encompassed by the grid was 

designed to approximate ‘‘core’’ market 

locations that could serve significant 

populations. The results of that analysis 

were presented in the Third Further 

Notice, and identified the number of 

channels (‘‘LPFM Channels’’) currently 

available for LPFM use in each studied 

market. In calculating ‘‘available’’ LPFM 

channels, it included both the identified 

vacant channels and those channels 

currently licensed to LPFM stations 

which are authorized to operate at 

locations within each market’s thirtyminute latitude by thirty-minute 

longitude grid. 

29. The Commission proposed to 

dismiss all pending applications for 

new FM translators in any market in 

which the number of available LPFM 

Channels was below a specified LPFM 

channel floor (a ‘‘dismiss all’’ market), 

and to process all pending applications 

for new translators in markets in which 

the number of available LPFM channels 

met or exceeded the applicable LPFM 

channel floor (a ‘‘process all’’ market). 

In proposing the channel floors, the 

Commission was guided by the number 

of top 150-market NCE FM full power 

stations, noting that this service was 

most comparable to the LPFM service. 

• Markets 1–20: 8 LPFM Channels 

• Markets 21–50: 7 LPFM Channels 

• Markets 51–100: 6 LPFM Channels 

• Markets 101–150 and, in addition, smaller 

markets where more than 4 translator 

applications are pending: 5 LPFM 

Channels 

30. The Commission sought comment 

on the methodology of its study, and 

whether a market-tier approach was a 

reasonable means for effectuating both 

section 5(1) and 5(2) directives. It also 

sought comment on whether use of 

Arbitron market-based assessments as 

used therein was reasonable for 

purposes of implementing section 5 of 

the LCRA, and tentatively concluded 

that a market-based analysis would 

provide a reasonable ‘‘global’’ 

assessment of LPFM spectrum 

availability in particular areas. It sought 

comment on whether defining the 

section 5(2) term ‘‘local community’’ in 

terms of markets was reasonable and 

whether it was appropriate to use the 

same definition for LPFM and translator 

purposes. 

31. The Commission also sought 

comment on whether it should impose 

restrictions on the translator settlement 

process in the ‘‘process all’’ markets to 

ensure that engineering solutions to 

resolve application conflicts would not 

reduce the number of channels available 

for LPFM stations in these markets. 

Finally, in order to preserve the status 

quo during the pendency of this 

proceeding, it proposed to suspend the 

processing of any translator 

modification application that proposes a 

transmitter site for the first time within 

any market that has fewer LPFM 

channels available than the proposed 

channel floor. It also imposed an 

immediate freeze on the filing of 

translator ‘‘move-in’’ modification 

applications and directed the Bureau to 

dismiss any such application filed after 

the adoption of the Third Further 

Notice. It noted that the freeze would 

continue until the close of the upcoming 

LPFM filing window, but would not 

apply to any translator modification 

application which proposes to move its 

transmitter site from one location to 

another within the same spectrumlimited market. It sought comment on 

these proposals. 

2. Comments 

32. With a few exceptions, most 

commenters generally agreed that some 

form of the Commission’s market-based 

approach was an acceptable 

methodology to carry out the mandate of 

section 5. However, many commenters 

suggested modifications to the proposal. 

Some commenters suggest changes that 

would potentially foster more 

opportunities for LPFM stations (which 

could result in the dismissal of more 

pending FM translator applications), 

while others favor processing more 

translator applications from the 2003 

window (which also could result in 

fewer LPFM opportunities). We discuss 

them in turn below. 

a. Defining the Market and Channel 

Floors 

33. Prometheus and other LPFM 

proponents suggest that the Commission 

analyze the top markets using a smaller 

grid (21x21), arguing that the 31x31 grid 

studies an area ‘‘far too large to 

adequately evaluate spectrum 

availability in most urban areas.’’ 

Prometheus and REC each note that 

many available LPFM opportunities are 

located in sparsely populated (or 

unpopulated) areas on the fringe of the 

31x31 grid. LPFM advocates likewise 

urge the Commission to separately 

evaluate named cities in hyphenated 

Arbitron markets, to set higher channel 

floors, to count only channels (and not 

locations) as counting toward a channel 

floor, and to only count new licensing 

opportunities when assessing LPFM 

channel availability. 

34. Translator advocates largely 

disagree with these suggestions. NPR 

and NAB assert that a 21x21 grid 

‘‘provides a skewed analysis of market 

conditions’’ and would violate the 

LCRA mandate that the two services 

remain equal in status because it would 

result in the dismissal of more translator 

applications. Indeed, they maintain that 

even the Commission’s proposed 31x31 

grid is too small, and argue that use of 

Arbitron market boundaries would 

provide a more accurate measure of 

current LPFM and FM translator station 

locations and potential LPFM licensing 

opportunities. EMF and other translator 

proponents likewise disagree with 

Prometheus’s view that only channels 

should apply to the channel floors, 

maintaining that potential ‘‘locations’’ 

for LPFM stations should also count. By 

looking solely at channels, EMF 

maintains that the Commission is 

understating the number of potential 

LPFM stations that could actually be 


pmangrum on DSK3VPTVN1PROD with RULES
21008 Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 

constructed in the market. It argues that 

if LPFM is truly a localized service to 

small populations, channel re-use 

within a market is ‘‘to be expected.’’ 

b. Translator Amendment and 

Settlement Procedures 

35. In ‘‘Dismiss All’’ Markets. NAB 

and others assert that we should process 

translator applications where an 

application grant would not obstruct a 

particular LPFM opportunity or where a 

dismissal would not create an 

additional LPFM opportunity. LPFM 

advocates oppose these suggestions. 

With respect to the former, they argue 

that this proposal in practice would 

likely result in the loss of significant 

LPFM licensing opportunities. With 

respect to the latter, they argue that the 

second-adjacent waiver process will 

create many LPFM opportunities in 

markets that otherwise appear to have 

no available LPFM channels (such as 

New York and Chicago). Common 

Frequency further urges the 

Commission to take into account LP–10 

availability and the potential for 

intermediate frequency (‘‘I.F.’’) and 

second adjacent channel waivers in 

determining whether a particular 

translator application could preclude an 

LPFM licensing opportunity. 

36. In ‘‘Process All’’ Markets. NPR and 

others argue that the Commission 

should not restrict the ability of pending 

translator applicants to make minor 

amendments to their applications, 

arguing that circumstances may have 

changed considerably since their 

applications were filed in 2003. NAB 

argues that the Commission should 

allow applicants to choose other 

channels as part of the settlement 

process, so long as the availability of 

LPFM opportunities is not reduced 

below the LPFM channel floor for that 

market. It does not, however, propose 

procedures to select among competing 

translator applicants while also 

safeguarding the pertinent LPFM 

channel floor. It notes that in many 

‘‘process all’’ markets, the number of 

available LPFM channels far exceeds the 

channel floor. 

37. LPFM advocates disagree, arguing 

that the ‘‘availability of settlements 

negates the FCC’s systemic approach to 

defining clear channel floors.’’ Common 

Frequency maintains that the 

availability of settlements ‘‘provides for 

an open-ended scenario where 

translator applicants could effectively 

cherry-pick the best channels, leaving 

the channels at the edges of the gridarea for LPFM applicants.’’ 

3. Analysis—Revised Translator 

Application Processing and Dismissal 

Policies 

38. Despite the divergence of views 

about interpreting the LCRA, there is 

relatively broad agreement with respect 

to our proposal to effectuate section 5 

with market-specific spectrum 

availability metrics. Significantly, no 

commenter provided a comprehensive 

statutory interpretation pointing to a 

fundamentally different approach. 

Accordingly, we adopt, with certain 

modifications, the market-specific 

processing approach outlined in the 

Third Further Notice. As discussed 

above, our principal challenge in 

effectuating section 5(1) of the LCRA is 

to identify and preserve those LPFM 

licensing opportunities where few or no 

LPFM stations currently operate. The 

processing approach we adopt today 

furthers this goal by ensuring that LPFM 

licensing opportunities in spectrumlimited markets remain ‘‘available.’’ At 

the same time, we adopt translator 

application and amendment procedures 

that will permit the immediate licensing 

of certain pending translator 

applications in both ‘‘dismiss all’’ and 

‘‘process all’’ markets, consistent with 

section 5(1) and 5(2) directives and the 

procedures set forth below. To conform 

our terminology to the revised 

processing standards, we will use the 

names ‘‘spectrum limited’’ and 

‘‘spectrum available’’ markets to refer to 

what were previously characterized as 

‘‘dismiss all’’ and ‘‘process all’’ markets, 

respectively. 

39. We believe certain modifications 

are necessary to better ensure that our 

licensing decisions are based on 

community needs, as required by 

section 5 of the LCRA. As we noted in 

the Third Further Notice and as 

discussed above, LPFM stations are best 

suited to serve more densely populated 

markets. We have reviewed our grid 

studies and have determined that in 

some smaller ‘‘spectrum available’’ 

markets, many of the channels 

identified as available for LPFM are on 

the fringe of the 31x31 grid in 

unpopulated or very lightly populated 

areas. Indeed, in some cases, the 

population of the 21x21 grid represents 

more than 90 percent of the population 

of the 31x31 grid. We believe that LPFM 

stations can best serve the needs of local 

communities in areas with significant 

populations where LPFM service is 

practical and sustainable. Accordingly, 

we find that adoption of a smaller grid 

is appropriate in certain markets to 

compensate for low population levels 

on the outer fringes of the grid. We 

believe that use of a smaller grid in 

these markets will more faithfully 

implement section 5(2) of the LCRA 

than our original proposal because it 

identifies and preserves LPFM 

opportunities in core city areas, where 

the LPFM service can best serve 

community needs. We likewise find that 

this revised approach is more faithful to 

our interpretation of sections 5(1) and 

5(2) of the LCRA. As set forth above, 

these sections, when read together, 

require us to ensure a certain level of 

future LPFM licensing in ‘‘spectrum 

available’’ markets. However, we believe 

that licensing opportunities identified 

as ‘‘available’’ in these smaller markets 

should be limited to those locations that 

are likely to be able to support viable 

LPFM stations. Our adoption of a 21x21 

grid in certain markets will enable us to 

more accurately identify such 

opportunities. 

40. Different considerations apply to 

the largest markets. Our analysis 

establishes that there are few or no 

LPFM licensing opportunities within 

the core areas of most of the top 50 

markets, especially when compared to 

the number of licensed translator 

stations and the number of pending 

translator applications in these markets. 

Using the methodology set forth in 

paragraph 41 below, we have 

determined that only seven of the top 50 

markets which are classified as 

‘‘spectrum limited’’ exhibit the high 

population concentrations within the 

grid that occur in a number of smaller 

markets. That is, based on both raw 

population numbers and population 

distributions, the largest markets are 

more likely to include population 

centers outside core market locations 

that LPFM stations could serve. Thus, 

we find that our translator processing 

procedures must not preclude LPFM 

licensing opportunities beyond the 

studied 31x31 grids in the top 50 

spectrum limited markets. 

41. We have modified the LPFM 

spectrum availability study set forth in 

the Third Further Notice as follows. As 

before, we identified the number of 

available LPFM channels and licensed 

stations within the 31x31 grid and 

compared this number to each market’s 

channel floor. These results are set forth 

in Appendix A. We then analyzed 

‘‘spectrum available’’ markets to 

identify those where 75 percent or more 

of the total population in the 31x31 grid 

is located in the 21x21 grid. In these 

markets, the smaller grid contains the 

concentrated core population and, for 

the reasons explained in paragraph 39 

above, we used the smaller grid to 

determine both the number of licensed 

stations and the number of channels 

available for future LPFM stations. 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 21009 

Thus, ‘‘spectrum available’’ markets are 

those markets in which the number of 

LPFM channels within the applicable 

grid meets or exceeds the market’s 

channel floor. The results of our market 

studies using the 21x21 grid, where 

applicable, are presented in Appendix 

B. We did not subject the 31x31 

‘‘spectrum limited’’ markets to the 

21x21 population threshold test for 

several reasons. First, any such market 

would necessarily remain a ‘‘spectrum 

limited’’ market on the basis of a 21x21 

grid analysis. More importantly, the 

31x31 grid analysis in each of these 

markets establishes that few 

opportunities remain within the larger 

grid for new LPFM stations. Thus, we 

find that it is necessary that our 

‘‘spectrum limited’’ market translator 

application processing rules, as 

described below, protect all of the 

limited LPFM licensing opportunities 

within the larger grid in such markets. 

In addition, for the reasons stated above, 

we also will require a translator 

applicant in any top 50 spectrum 

limited market to demonstrate that its 

out-of-grid proposal would not preclude 

the only LPFM station licensing 

opportunity at that location (‘‘Top 50 

Market Preclusion Showing’’) by making 

the showing described below. We note 

that the analyses in Appendices A and 

B are based on updated BIA data, 

resulting in several changes from the 

analysis attached to the Third Further 

Notice, including the addition of three 

radio markets listed in the appendices 

and the removal of two markets 

previously listed in Appendix A. 

42. We next consider other proposed 

‘‘tweaks’’ to our methodology. 

Prometheus and REC first urge us to set 

higher channel floors, arguing that, 

given the ‘‘overstatement of LPFM 

availability in the Commission’s 

methodology, the proposed floors are 

too low to achieve the envisioned LPFM 

license availability.’’ They assert that 

there are a number of unknown factors 

in determining LPFM availability, 

including suitability and availability of 

the site, population levels, and demand 

for LPFM at these locations. 

43. We believe that our adoption of 

the smaller grid in those markets with 

a core concentrated population largely 

addresses these concerns because it 

excludes from our analysis LPFM 

opportunities in areas with little or no 

population. It is also the case that our 

studies demonstrate that multiple grid 

points are available for many of the 

identified channels and that more than 

one LPFM station can operate on 

identified channels in some markets. 

We find that these factors adequately 

counter-balance uncertainties regarding 

site availability, site suitability and local 

demand for LPFM licenses. We will also 

continue to count both identified vacant 

channels and those channels currently 

licensed to LPFM stations as 

‘‘available.’’ Excluding currently 

licensed LPFM channels from our 

‘‘available LPFM channels’’ findings, as 

proposed by Prometheus and REC, 

would be inconsistent with our 

interpretation of section 5(1) to require 

consideration of existing licenses as part 

of the ‘‘licenses are available’’ metric. 

Moreover, eliminating licensed 

channels from consideration would not 

create many (if any) new LPFM 

opportunities because it would not 

convert any top 50 ‘‘spectrum available’’ 

market into a ‘‘spectrum limited’’ 

market. Finally, we decline to break out 

hyphenated Arbitron markets into 

separate submarkets, as suggested by 

REC and others, because we believe that 

ample LPFM opportunities remain in 

most submarkets. Also, without clear 

delineation within the markets, there 

would be no reasonable way of 

determining which translators would be 

processed, should two cities within a 

market have different spectrum 

available/spectrum limited outcomes. 

44. NAB does not oppose the channel 

floors, per se, but urges us to count both 

channels and locations toward the 

channel floors. We reject this 

suggestion. As Prometheus notes, the 

Commission cannot determine whether 

there is demand for a future LPFM 

station at any identified location. 

Moreover, as we have emphasized 

previously, this may be the last 

opportunity to meaningfully expand 

opportunities to provide LPFM service 

due to the combined impacts of limited 

spectrum and the strict technical 

licensing standards mandated by the 

LCRA. In contrast, and as we also 

explained in the Third Further Notice, 

flexible translator licensing rules ensure 

that abundant translator licensing 

opportunities will remain after the 

forthcoming LPFM window. Thus, 

consistent with the broad interpretive 

principles set forth above, we find that 

it is appropriate to use conservative 

techniques to assess LPFM availability 

in a given market, including counting 

available LPFM channels, not locations. 

45. In the Third Further Notice, we 

proposed ‘‘LPFM Channel Floors’’ of 

potential LPFM licensing opportunities 

in the 150 largest markets, as well as 

smaller markets where more than four 

translator applications are pending. 

These channel floors range from 8 

potential LPFM channels in the top 20 

markets to 5 potential LPFM channels 

below the top 100 markets. We based 

these figures on a rough approximation 

of the number of noncommercial 

educational (‘‘NCE’’) stations in the top 

150 markets. We selected the NCE FM 

service as a point of reference because 

that service is the radio service most 

similar to the LPFM service and, 

therefore, the best gauge of local 

community needs for such service. 

Commenters who addressed our 

proposed channel floors disputed 

neither our reasoning nor the specific 

ranges of channel floors or markets 

selected for those ranges. Thus, based 

on our examination of the record, we 

conclude that the proposed channel 

floors are a reasonable standard. We 

find that these floors adequately further 

the development of the LPFM service in 

spectrum-limited markets, as intended 

by section 5(1) of the LCRA, and strike 

an effective balance by ensuring that 

licenses for both LPFM and translator 

services are available in as many 

communities as possible, as required by 

our collective reading of sections 5(1) 

and 5(2) of the LCRA. Accordingly, we 

adopt the channel floors as proposed in 

the Third Further Notice. 

46. We will, however, revise our 

processing approach with regard to 

certain translator applications in both 

‘‘spectrum limited’’ and ‘‘spectrum 

available’’ markets. As an initial matter, 

we recognize that our use of the 21x21 

grid in certain markets has turned some 

‘‘spectrum available’’ markets into 

‘‘spectrum limited’’ markets. For the 

reasons discussed above, we find that 

translators serve community needs, 

especially those in rural or underserved 

areas. As such, we agree with NAB that 

translator applicants in ‘‘spectrum 

limited’’ markets should be given an 

opportunity to demonstrate that their 

applications, if granted, would not 

preclude any LPFM opportunities. We 

also will permit minor amendments to 

meet this ‘‘no preclusion’’ test. 

Translator applicants proposing ‘‘movein’’ modifications and modification 

applications that propose to move into 

a ‘‘spectrum limited’’ market will also 

be allowed to make such a showing. 

This approach is also consistent with 

our combined reading of sections 5(1) 

and 5(2) because it furthers the statutory 

goal of ensuring that the Commission 

provide licensing opportunities for both 

services in as many communities as 

possible. Prometheus and others fail to 

explain how this narrow exception to 

allow continued translator processing in 

a ‘‘spectrum limited’’ market will 

preclude LPFM opportunities, given 

that, as described in more detail below, 

we will require translator applicants to 

protect all channel/point combinations 

with the assumption that all LPFM 


pmangrum on DSK3VPTVN1PROD with RULES
21010 Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 

applicants in these markets will be 

eligible for second-adjacent channel 

waivers. We likewise agree that 

translator applicants in ‘‘spectrum 

available’’ markets should be afforded 

some opportunity to amend their 

applications. As noted by many 

translator advocates, circumstances 

have changed since 2003, and 

transmitter sites may no longer be 

available. As described in more detail 

below, we will provide applicants with 

a limited opportunity to amend their 

applications so long as their proposals 

do not eliminate any LPFM channel/ 

point combination in any of the 156 

market grids and, where applicable, 

satisfy the Top 50 Market Preclusion 

Showing. We do not believe that 

allowing translator applicants these 

limited opportunities to amend their 

applications will impede our ability to 

guarantee licensing opportunities 

equivalent to the LPFM channel floors 

we adopt herein. 

47. Accordingly, we direct the Bureau 

to issue a public notice requiring all 

applicants affected by the national 

application cap and/or the one 

application per applicant per market 

limitation (discussed below) to identify 

applications for continued processing, 

consistent with these limits. The 

auctions anti-collusion rule will remain 

in effect during this process. Upon 

completion of this selection/dismissal 

process, the Bureau will process the 

remaining applications in ‘‘spectrum 

available’’ markets, starting with the 

singletons. Mutually exclusive 

applications from this group will then 

be placed on public notice and afforded 

a 60–90 day window to resolve their 

application conflicts via settlement or 

amendment. Any amendment of an 

application that precludes any LPFM 

channel/point combination identified in 

the grid studies will result in 

application dismissal. Amendments will 

be processed on a first-come, firstserved basis, with all unamended 

applications having cut-off protection 

against amendments filed during the 

settlement period. 

48. Applicants with proposals in 

‘‘spectrum limited’’ markets will be 

given one opportunity to modify their 

proposals to eliminate all preclusive 

impacts on protected LPFM channel/ 

point combinations. An applicant in a 

top 50 ‘‘spectrum limited’’ market 

proposing facilities outside the studied 

31x31 grid also will need to 

demonstrate either that no LPFM station 

could be licensed at the proposed 

transmitter site or, if an LPFM station 

could be licensed at the site, that an 

additional channel remains available for 

a future LPFM station at the same site. 

Applications that conflict with 

protected channel/point combinations 

or fail to make such a Top 50 Market 

Preclusion Showing and that are not 

amended to come into compliance with 

these requirements will be dismissed. 

As explained above, applications in 

31x31 grid ‘‘spectrum limited’’ markets 

must protect all channel/point 

combinations within this grid. 

Applicants in 21x21 grid ‘‘spectrum 

limited’’ markets must protect all 

channel/point combinations only within 

this grid. We limit ‘‘spectrum limited’’ 

grid protection requirements in these 

markets because, as noted above, we 

believe that this standard will protect 

those areas where LPFM stations can 

best serve the needs of local 

communities and, therefore, will most 

faithfully implement sections 5(1) and 

5(2). From this point, all remaining 

applications will generally proceed 

down the same singleton/MX/ 

settlement/auction/long form path. 

Amendments will be processed on a 

first-come, first-served basis, including 

for the purpose of determining whether 

an additional LPFM channel remains 

available at a specific location outside 

the grid. We terminate the freeze on the 

grant of pending Auction No. 83 

translator applications and direct the 

Bureau to resume application 

processing in accordance with these 

procedures. 

49. We provide the following 

guidance on translator application 

processing. ‘‘Protected’’ LPFM channel/ 

point combinations will be determined 

differently in ‘‘spectrum available’’ and 

‘‘spectrum limited’’ markets. In a 

‘‘spectrum available’’ market, a channel/ 

point combination must be protected 

only if LPFM operations at the site 

would be fully spaced to all pending 

translator applications on co-, first- and 

second-adjacent channels (and, of 

course, would satisfy all other spacing 

requirements). Thus, a translator 

applicant in a ‘‘spectrum available’’ 

market that does not modify its 

technical proposal would always qualify 

for further processing because the 

proposed translator facility cannot 

conflict, by definition, with any 

protected channel/point combinations. 

‘‘Spectrum available’’ market 

amendments, however, may not conflict 

with protected LPFM channel/point 

combinations. ‘‘Spectrum limited’’ 

calculations, including Top 50 Market 

Preclusion Showing calculations, will 

assume the dismissal of all translator 

applications in the market. This 

differing treatment of pending translator 

applications is based on our 

determination that sufficient channels 

are/are not available if all translator 

applications remain pending. Moreover, 

the ‘‘spectrum limited’’ channel/point 

and Top 50 Market Preclusion Showing 

calculations, will not take into account 

second-adjacent channel spacings to 

authorized stations and other pending 

applications, i.e., will assume that an 

LPFM applicant could make a sufficient 

showing to obtain a second-adjacent 

channel spacing waiver. Finally, 

‘‘spectrum limited’’ calculations will 

not take into account I.F. spacing 

requirements. We find that these more 

restrictive ‘‘spectrum limited’’ market 

processing standards are necessary to 

safeguard LPFM licensing opportunities 

in these markets. As noted, the 

protection scheme for ‘‘spectrum 

available’’ markets 1–50 and for all 

other studied markets are limited to the 

particular grid used in each market. 

LPFM licensing opportunities outside 

the grid in these markets are not 

protected in either ‘‘spectrum limited’’ 

or ‘‘spectrum available’’ markets. Thus, 

a translator application specifying a site 

at a distance equal to or greater than the 

minimum LPFM-translator distance 

separation requirements and otherwise 

in compliance with licensing rules 

would be grantable under these 

processing standards in all ‘‘spectrum 

limited’’ markets 51 and smaller and all 

‘‘spectrum available’’ markets. 

C. Prevention of Trafficking in 

Translator Station Construction Permits 

and Licenses 

1. Background 

50. The Third Further Notice 

tentatively concluded that our proposed 

market-based translator application 

processing policy would not be 

sufficient to deter speculative licensing 

conduct because the remaining 

translator filings present significant 

issues of abuse of our licensing process. 

It tentatively concluded that nothing in 

the LCRA limits the Commission’s 

ability to address the potential for 

licensing abuses by any applicant in 

Auction No. 83, and sought comment on 

processing policies to deter the potential 

for speculative abuses among the 

remaining translator applicants. 

Specifically, it sought comment on 

whether to establish an application cap 

for the applications that would remain 

pending in non-spectrum limited 

markets and unrated markets, and asked 

whether a cap of 50 or 75 applications 

in a window would force filers with a 

large number of applications to 

concentrate on those proposals and 

markets where they have bona fide 

service aspirations. The Third Further 

Notice also asked whether applicants 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 21011 

should be limited to one or a few 

applications in any particular market, 

noting that a limitation of this sort could 

limit substantially the opportunity to 

warehouse and traffic in translator 

authorizations while promoting 

diversity goals. It also sought comment 

on alternative approaches to protect 

against abuses in the translator licensing 

process. 

2. Comments 

51. Many commenters support some 

form of cap, with several supporting a 

cap of 50 or 75 per applicant nationally, 

as proposed in the Third Further Notice. 

Alan W. Jurison suggests that such a 

high cap should be coupled with new 

translator ownership rules and a waiver 

system to allow bona fide applicants to 

file numerous applications nationally. 

Others support our suggestion of having 

a cap on the number of applications per 

market. Kyle Magrill suggests a tiered, 

market-based cap whereby the more 

applications an applicant files 

nationally, the further the number of 

applications per market must decrease. 

52. However, EMF opposes any cap at 

all, believing it will reduce translator 

services to smaller markets. Other 

commenters argue that caps fail to 

distinguish serious applicants from 

speculators and suppress competition. 

Some commenters simply disagree with 

the concerns over speculative filings 

described in the Third Further Notice. 

For example, Kyle Magrill suggests that 

non-commercial applicants may have 

filed large numbers of translator 

applications because they believed that 

it was the best way to ensure they 

would obtain a permit, and even those 

permits that were sold have resulted in 

new facilities on the air serving the 

public interest. Edgewater Broadcasting, 

Inc., and Radio Assist Ministry, Inc., 

also note that applicants accused of 

trafficking have not in fact violated any 

of the Commission’s Rules. 

53. Several commenters propose 

alternatives to caps or additional 

safeguards against trafficking: placing 

limitations on the number of 

outstanding translator construction 

permits an applicant can have; 

restricting sales of permits to allow 

applicants to only recover costs; or 

preventing outright the sale of unbuilt 

construction permits. NPR suggests 

establishing a holding period obligating 

future translator permittees to construct 

and operate newly authorized 

translators. 

3. Analysis 

54. We conclude that both a national 

cap and a market-based cap for the 

markets identified in Appendix A are 

appropriate to limit speculative 

licensing conduct and necessary to 

bolster the integrity of the remaining 

Auction 83 licensing. Without such 

caps, we believe that the translator 

licensing process we adopt herein could 

result in the prosecution of thousands of 

applications for the primary purpose of 

for-profit assignments of the issued 

translator authorizations. If the permits 

were issued in an auction, then we 

would be much less concerned about 

such speculation in permits. However, 

as we noted in the Third Further Notice, 

we expect that a substantial portion of 

the remaining grants will be made 

pursuant to our settlement procedures 

rather than through auctions. 

55. We first must address whether the 

adoption of national and per-market 

caps on the processing of pending 

translator applications to protect the 

integrity of the translator licensing 

process is consistent with section 5 of 

the LCRA. Although that provision 

mandates that the Commission consider 

the availability of translator licenses to 

serve the needs of local communities in 

licensing new translators, it does not 

limit the Commission’s authority under 

the Act to adopt measures to protect the 

integrity of its licensing processes. 

Accordingly, we conclude that adoption 

of the caps to safeguard the integrity of 

our licensing processes is consistent 

with section 5’s requirement to ensure 

that licenses are available to both LPFM 

and translator services. 

56. We next address the public 

interest benefits of translator application 

caps. As set forth above, the initiation 

of new translator service resulting from 

a grant of some of those applications 

may benefit the public interest. At the 

same time, we believe strongly that 

remedial limits are needed to protect the 

integrity of our licensing process. Nonfeeable application procedures and 

flexible auction and translator 

settlement rules clearly have facilitated 

and encouraged the filing of speculative 

proposals. Our CDBS database shows 

that successful Auction 83 applicants 

have sold more than 700 translator 

authorizations and let almost 1000 

permits expire without completing 

construction. In some markets, certain 

applicants have filed dozens of 

applications, even though it is 

inconceivable that one entity would 

construct and operate all of the 

proposed stations. The filers that will be 

affected by our national cap and by our 

per-market cap account for much of this 

licensing activity. While we recognize 

that high-volume filers did not violate 

our rules, these types of speculative 

filings are fundamentally at odds with 

the core Commission broadcast 

licensing policies and contrary to the 

public interest. 

57. Although we have considered a 

number of alternatives, we find that 

imposing a cap on applications is the 

most administratively feasible solution 

for processing this large group of longpending applications. As some 

comments suggest, a longer term 

solution may require structural changes 

to the translator licensing process, e.g., 

holding period and/or construction 

requirements, no-profit restrictions on 

the assignment of authorizations, a cap 

on application filings, etc. However, we 

believe that the caps we adopt today 

will both deter trafficking and provide 

the fastest path to additional translator 

and LPFM licensing in areas where the 

need for additional service is greatest. 

We emphasize that the cap procedures 

we adopt will give applicants the 

opportunity to elect which applications 

will be processed toward a grant. We 

expect that applicants will choose 

applications that will maximize new 

service to the public. Even with the 

dismissal of many of the pending 

translator applications pursuant to the 

application caps and our market-based 

processing policy, we are confident that 

the same or comparable licensing 

opportunities will remain available in a 

future translator filing window under 

our flexible translator licensing 

standards. In short, these dismissals will 

only delay, not deny, licenses to 

applicants whose translator applications 

are dismissed but who remain interested 

in effectuating their proposals. 

58. We believe that a national cap of 

50 applications per applicant from the 

pending Auction 83 applications is an 

appropriate limit. Because translators 

are relatively cheap to construct and 

operate, we believe it is feasible for the 

organizations that filed the highest 

volume of applications to construct and 

operate 50 additional stations. 

Accordingly, in balancing the 

competing goals of deterring speculation 

and expanding translator service to local 

communities, we conclude that a 

national cap of 50 applications is 

appropriate. We note that this cap is 

high enough to permit all but twenty 

applicants to prosecute all of their 

pending applications. We also note that 

even some translator advocates 

commented in support of a cap of 50 

applications. 

59. In addition to the national cap of 

50 applications, we believe that a permarket cap of one application in the 

markets identified in Appendix A is 

appropriate. Our translator rules 

contemplate that a party may receive an 

authorization for a second or third FM 

translator serving substantially the same 


pmangrum on DSK3VPTVN1PROD with RULES
21012 Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 

area as the first only after making a 

‘‘showing of technical need for such 

additional stations.’’ This is a spectrum 

efficiency rule based on our experience 

that parties rarely need such multiple 

translators. Yet in some cases, 

applicants in Auction 83 submitted 

dozens of applications for a particular 

market. These applications were clearly 

filed for speculative reasons or to skew 

our auction procedures, as it is 

inconceivable that a single entity would 

construct so many stations in a single 

market. Given the volume of pending 

applications, it is not administratively 

feasible to conduct a case-by-case 

assessment of technical need for such 

multiple applications within the 

markets identified in Appendix A. 

Accordingly, we will apply a cap of one 

translator application per applicant in 

the markets identified in Appendix A. 

For applications outside those markets, 

where the duplication issue is more 

manageable, we will apply our technical 

need rule on a case-by-case basis. 

60. For translator applicants, our 

revised processing policies provide a 

straightforward licensing path that will 

likely result in more than 1000 new 

construction permits, thereby increasing 

the total number of authorizations 

issued out of Auction 83 to over 4500. 

At the same time, the national and permarket caps will require each affected 

applicant to prioritize its filings and to 

focus on proposals at locations where it 

has a bona fide interest in providing 

service. We believe that these 

restrictions are necessary to impose on 

these applicants a level of discipline 

similar to that which competitive 

bidding procedures provide in full 

service station licensing. 

61. We will require parties with more 

than 50 pending applications nationally 

and/or more than one pending 

application in the markets identified in 

Appendix A to identify and affirm their 

continuing interest in those pending 

applications for which they seek further 

Commission processing, consistent with 

these limits. Both pending long form 

and short form applications will be 

subject to these applicant-based caps. In 

the event that an applicant does not 

timely comply with these dismissal 

procedures, we direct the staff to first 

apply the national cap, retaining on file 

the first 50 filed applications and 

dismissing those that were subsequently 

filed. The staff will then dismiss all but 

the first filed application in each of the 

markets identified in Appendix A. 

D. Restrictions on the Use of FM 

Translators to Rebroadcast the Signals 

of AM Stations 

1. Background 

62. In 2009, the Commission 

authorized the use of FM translators 

with licenses or permits in effect as of 

May 1, 2009, to rebroadcast the signal of 

a local AM station. The limitation of 

cross-service translator usage to alreadyauthorized FM translators was adopted 

with the intention of preserving 

opportunities for future LPFM licensing. 

Two parties filed petitions for partial 

reconsideration of this aspect of the 

2009 Translator Order. Both petitions 

argue that the limitation of cross-service 

translators does not serve the public 

interest and is unfair to both AM 

stations and FM translator applicants. 

63. The practical effect of the date 

limit imposed in the 2009 Translator 

Order was to exclude pending Auction 

No. 83 FM translator applications as 

well as future FM translator 

applications from the pool of potential 

cross-service translators. In the Third 

Further Notice, we asked whether it 

would be appropriate to remove this 

limit on cross-service translators with 

respect to those pending applications. 

Specifically, we asked whether the limit 

should be removed for those 

applications which were on file as of 

May 1, 2009. We stated that resolving 

this issue before processing of the 

pending translator applications would 

align FM translator processing outcomes 

more closely with demand by enabling 

applicants to take the rebroadcasting 

option into account in the translator 

settlement and licensing processes, 

thereby advancing the goals of section 

5(2) of the LCRA. We also noted that 

allowing cross-service translators had 

been a very successful deregulatory 

policy. 

2. Comments 

64. Most commenters support 

removing the date restriction for 

pending FM translator applications. 

These commenters point to the public 

service benefits that FM translators have 

provided to AM stations. Some argue 

that the need for the date restriction is 

going away now that the Commission 

will be opening an LPFM window. 

65. To the extent that commenters 

take a contrary position, most argue for 

some type of restriction or limitation on 

cross-service translators in general. 

Some LPFM proponents argue for 

qualifying criteria for cross-service 

translators, such as local ownership, 

lack of in-market FM ownership by the 

AM licensee, diversity of ownership, 

amount of local programming, and 

quality of AM signal. REC Networks and 

Prometheus argue that the 250-watt 

power level allowed for ‘‘fill-in’’ AM 

translators should be reduced before 

cross-service translators are expanded. 

NPR argues that the date restriction 

should be kept in place unless the 

Commission adopts strong antitrafficking rules so that traffickers in the 

current pool of Auction 83 applicants 

will not benefit from the change. 

3. Analysis 

66. We will modify the date 

restriction to allow pending FM 

translator applications that are granted 

to be used as cross-service translators. 

As we explained in the Third Further 

Notice, the limitation of cross-service 

translator usage to already-authorized 

translators was adopted with the 

intention of preserving opportunities for 

future LPFM licensing. In the Third 

Further Notice, we decided to revisit 

this pre-LCRA policy. We proposed 

changes in the FM translator application 

processing rules designed to accomplish 

more effectively the goal of preserving 

spectrum for future LPFM licensing. 

Given those proposed changes, as stated 

above, we indicated that removing the 

date limit, at least for the pending 

translator applications, could align FM 

translator licensing outcomes more 

closely with demand, thereby advancing 

the goals of section 5(2) of the LCRA. 

67. With our adoption of the revised 

translator application processing 

policies described above, we believe we 

have effectively addressed the LPFM 

spectrum issue that prompted the preLCRA date limitation on cross-service 

translators. Having done so, we believe 

the translators that are put into service 

from the pool of pending applications 

should be put to their best use, 

consistent with the directive of section 

5(2) to carry out FM translator licensing 

‘‘based on the needs of the local 

community.’’ Our view is that, with the 

FM translator processing policies 

described above in effect, the public 

interest benefits from expanding crossservice translator service are 

considerably more significant than any 

downside from allowing any 

forthcoming Auction No. 83 

authorizations to be used for such 

service. 

68. With respect to the proposed 

restrictions or limitations on crossservice translators sought by LPFM 

proponents, most are essentially 

untimely petitions for reconsideration of 

the 2009 Translator Order. Accordingly, 

and because we intend to consider 

modifications to our FM translator rules 

and procedures more generally in a 

separate proceeding, as discussed 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 21013 

below, we decline to consider these 

arguments here. In any event, we 

believe the LPFM proponents who argue 

for such restrictions fail to recognize the 

significant public interest benefits that 

will accrue from expanding the pool of 

potential cross-service translators. In the 

2009 Translator Order, we described the 

substantial benefits to local listeners 

that cross-service translators were 

providing, for example, providing presunrise and post-sunset coverage of 

traffic, weather, news and sports 

programming and improving localism, 

competition and diversity in a number 

of radio markets. The record here 

confirms those benefits and supports a 

change in the date limitation to allow 

permits or licenses arising from pending 

FM translator applications to be used as 

cross-service translators. 

69. Again, we intend to revise our FM 

translator rules before the next FM 

translator auction window, so parties 

will have an opportunity to present 

their views at that time with respect to 

any appropriate modifications in our 

translator rules and procedures. If 

parties wish to argue that priority 

should be given in future translator 

auction windows to Class D AM stations 

or AM stations that lack a co-owned FM 

outlet, then they may do so in that 

proceeding. 

70. Accordingly, we grant 

reconsideration of the 2009 Translator 

Order to the extent of allowing 

authorizations arising from pending FM 

translator applications to be used as 

cross-service translators. With respect to 

future FM translator applications, we 

will address their potential use as crossservice translators in a future 

rulemaking to revise our FM translator 

rules. 

II. Third Order on Reconsideration 

71. In the Third Report and Order 

discussed above, the Commission 

established a going-forward limit of ten 

pending short-form applications per 

applicant from FM translator Auction 

No. 83, and directed the Bureau to 

resume processing the applications of 

those applicants in compliance with 

this numerical cap. 

72. Petitions for reconsideration 

opposing the cap were filed by CSN 

International, National Religious 

Broadcasters, Positive Alternative 

Radio, Inc., and Educational Media 

Foundation et. al. In light of our 

adoption of the market-specific 

translator application dismissal process 

described in this Fourth Report and 

Order, we dismiss them as moot. 

III. Procedural Matters 

73. Final Regulatory Flexibility 

Analysis. As required by the Regulatory 

Flexibility Act, 5 U.S.C. 603, the 

Commission has prepared a Final 

Regulatory Flexibility Analysis (FRFA) 

of the possible significant economic 

impact on small entities of the proposals 

suggested in this document. The FRFA 

is set forth in Appendix C. 

74. Paperwork Reduction Act. This 

document contains new information 

collection requirements subject to the 

Paperwork Reduction Act of 1995 

(PRA), Public Law 104–13 (U.S.C. 3501– 

3520). The requirements will be 

submitted to the Office of Management 

and Budget (OMB) for review under 

section 3507(d) of the PRA. The 

Commission will publish a separate 

notice in the Federal Register inviting 

comments on the new information 

collection requirements adopted in this 

document. In addition, we note that 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

we previously sought specific comment 

on how the Commission might further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees. We describe 

impacts that might affect small 

businesses, which includes most 

businesses with fewer than 25 

employees, in the FRFA in Appendix C, 

infra. 

75. Congressional Review Act. The 

Commission will send a copy of this 

Fourth Report and Order in a report to 

be sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

Final Regulatory Flexibility Analysis. 

76. As required by the Regulatory 

Flexibility Act (RFA), an Initial 

Regulatory Flexibility Analysis (IRFA) 

was incorporated in the Third Further 

Notice of Proposed Rulemaking (Third 

Further Notice) in MM Docket No. 99– 

25, and MB Docket No. 07–172, RM– 

11338. The Commission sought written 

public comment on the proposals in the 

Third Further Notice, including 

comment on the IRFA. We received no 

comments specifically directed toward 

the IRFA. This Final Regulatory 

Flexibility Analysis (FRFA) conforms to 

the RFA. 

A. Need for, and Objectives of, the 

Fourth Report and Order 

77. This rulemaking proceeding was 

initiated to seek comment on how the 

enactment of section 5 of the Local 

Community Radio Act of 2010 

(‘‘LCRA’’) would impact the procedures 

previously adopted to process the 

approximately 6,500 applications which 

remain from the 2003 FM translator 

window. The Commission previously 

established a processing cap of ten 

pending short-form applications per 

applicant from FM translator Auction 

No. 83. The Fourth Report and Order 

concludes that that this cap was 

inconsistent with the LCRA licensing 

criteria. It further concludes that a 

market-specific, spectrum availabilitybased translator application dismissal 

policy most faithfully implements 

section 5 of the LCRA. Specifically, it 

sets forth a dismissal policy in which 

the Commission will impose a national 

application cap and/or a one application 

per applicant per market in the markets 

identified in Appendix A of the Fourth 

Report and Order. It directs the Media 

Bureau to issue a Public Notice asking 

applicants to identify applications for 

continued processing, consistent with 

these limits. Upon completion of this 

selection/dismissal process, the Bureau 

will process the remaining applications 

in ‘‘spectrum available’’ markets, as 

defined in the Fourth Report and Order. 

Applicants will be able to file 

amendments demonstrating that their 

applications will not preclude any 

LPFM channel/point combination 

identified in the grid studies. Those 

applications that fail to do so will be 

dismissed. 

78. Applicants with proposals 

remaining in ‘‘spectrum limited’’ 

markets, as defined in the Fourth Report 

and Order, will also be given one 

opportunity to modify their proposals to 

eliminate all preclusive impacts on 

protected LPFM channel/point 

combinations. Applications that conflict 

with protected channel/point 

combinations and that are not amended 

to eliminate all such conflicts will be 

dismissed. 

79. The Fourth Report and Order also 

modifies certain recently adopted FM 

translator service rule changes as a 

result of the enactment of the LCRA. 

Specifically, it modifies the date 

restriction contained in § 74.1232(d) of 

the Rules to allow pending FM 

translator applications that are granted 

to be used as cross-service translators. 

B. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

80. None. 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules Will Apply 

81. The RFA directs the Commission 

to provide a description of and, where 


pmangrum on DSK3VPTVN1PROD with RULES
21014 Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 

feasible, an estimate of the number of 

small entities that will be affected by the 

proposed rules. The RFA generally 

defines the term ‘‘small entity’’ as 

encompassing the terms ‘‘small 

business,’’ ‘‘small organization,’’ and 

‘‘small governmental entity.’’ In 

addition, the term ‘‘small business’’ has 

the same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act. 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’’). 

82. Radio Broadcasting. The policies 

adopted in the Fourth Report and Order 

apply to radio broadcast licensees, and 

potential licensees of radio service. The 

SBA defines a radio broadcast station as 

a small business if such station has no 

more than $7 million in annual receipts. 

Business concerns included in this 

industry are those primarily engaged in 

broadcasting aural programs by radio to 

the public. According to Commission 

staff review of the BIA Publications, Inc. 

Master Access Radio Analyzer Database 

as of January 31, 2011, about 10,820 (97 

percent) of 11,100 commercial radio 

stations) have revenues of $7 million or 

less and thus qualify as small entities 

under the SBA definition. We note, 

however, that, in assessing whether a 

business concern qualifies as small 

under the above definition, business 

(control) affiliations must be included. 

Our estimate, therefore, likely overstates 

the number of small entities that might 

be affected by our action, because the 

revenue figure on which it is based does 

not include or aggregate revenues from 

affiliated companies. 

83. In addition, an element of the 

definition of ‘‘small business’’ is that the 

entity not be dominant in its field of 

operation. We are unable at this time to 

define or quantify the criteria that 

would establish whether a specific radio 

station is dominant in its field of 

operation. Accordingly, the estimate of 

small businesses to which rules may 

apply do not exclude any radio station 

from the definition of a small business 

on this basis and therefore may be overinclusive to that extent. Also, as noted, 

an additional element of the definition 

of ‘‘small business’’ is that the entity 

must be independently owned and 

operated. We note that it is difficult at 

times to assess these criteria in the 

context of media entities and our 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

84. FM translator stations and low 

power FM stations. The policies adopted 

in the Fourth Report and Order affect 

licensees of FM translator and booster 

stations and low power FM (LPFM) 

stations, as well as potential licensees in 

these radio services. The same SBA 

definition that applies to radio 

broadcast licensees would apply to 

these stations. The SBA defines a radio 

broadcast station as a small business if 

such station has no more than $7 

million in annual receipts. Given the 

nature of these services, we will 

presume that all of these licensees 

qualify as small entities under the SBA 

definition. Currently, there are 

approximately 6131 licensed FM 

translator stations and 860 licensed 

LPFM stations. In addition, there are 

approximately 646 applicants with 

pending applications filed in the 2003 

translator filing window. Given the 

nature of these services, we will 

presume that all of these licensees and 

applicants qualify as small entities 

under the SBA definition. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

85. In the Fourth Report and Order, 

we require Auction No. 83 applicants to 

identify which applications they wish to 

preserve to come into compliance with 

the national and market-based caps. 

This will enable the Commission to 

move quickly through a backlog of 

applications that have been pending 

since 2003 and open a new filing 

window for the LPFM service. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities and 

Significant Alternatives Considered 

86. 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. 

87. The Fourth Report and Order 

establishes a market-specific, spectrum 

availability-based approach to the 

processing of remaining translator 

applications. It also establishes national 

and market-specific application caps. In 

adopting these policies, several 

alternative approaches were considered: 

88. Size of Grid. The Commission 

considered alternatives to the 31x31 

market study grid proposed in the Third 

Further Notice. For example, it 

considered a smaller, 21x21 grid, as 

well as a larger grid based on Arbitron 

market boundaries. The Fourth Report 

and Order adopts a 31x31 grid, but 

adopts a 21x21 grid in markets where 75 

percent or more of the population is 

located in that smaller grid. 

89. Processing of Translator 

Application in Spectrum-Limited 

Markets. The Third Further Notice 

proposed to dismiss all applications in 

certain spectrum-limited markets. One 

alternative considered was to allow 

continued processing of certain 

translator applications in ‘‘spectrum 

limited’’ markets. The Fourth Report 

and Order adopts this policy. 

90. We believe that the adopted 

policies offer significant benefits to 

small entities. The market-based 

approach ensures additional spectrum 

for LPFM stations in markets in which 

it is most limited while also ensuring 

the immediate licensing of translator 

stations in communities in which ample 

spectrum remains for both services, 

including many major markets. Use of 

the smaller grid and allowing the 

processing of additional translators 

benefit small entities because they will 

increase licensing opportunities for both 

LPFM stations and translators. Adoption 

of the application caps will benefit 

translator and LPFM proponents 

because it will allow the Commission to 

quickly act on applications that have 

been pending for more than eight years 

and to open an LPFM window in the 

near future. 

91. We likewise believe that removing 

the date restriction contained in 

§ 74.1232(d) of the rules to allow 

pending FM translator applications that 

are granted to be used as cross-service 

translators will benefit small entities 

because it will expand opportunities for 

translator licensees to rebroadcast AM 

service. 

F. Report to Congress 

92. The Commission will send a copy 

of the Fourth Report and Order, 

including this FRFA, in a report to be 

sent to Congress pursuant to the 

SBREFA. In addition, the Commission 

will send a copy of the Fourth Report 

and Order, including the FRFA, to the 

Chief Counsel for Advocacy of the SBA. 

A copy of the Fourth Report and Order 

and the FRFA (or summaries thereof) 

will also be published in the Federal 

Register. 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 68 / Monday, April 9, 2012 / Rules and Regulations 21015 

Ordering Clauses 

93. Accordingly, it is ordered that the 

Petitions for Reconsideration filed by 

Robert A. Lynch on July 28, 2009, and 

Edward A. Schober on July 28, 2009, are 

granted in part to extent set forth above. 

94. It is further ordered that the 

Petitions for Reconsideration filed by 

CSN International on February 4, 2008; 

National Religious Broadcasters on 

February 15, 2008; and Positive 

Alternative Radio, Inc. and Educational 

Media Foundation on February 19, 

2008, are dismissed as moot. 

95. It is further ordered that pursuant 

to the authority contained in sections 

4(i), 301, 302, 303(e), 303(f) and 303(r) 

of the Communications Act of 1934, as 

amended, 47 U.S.C, 154(i), 301, 302, 

303(e), 303(f) and 303(r), and the Local 

Community Radio Act of 2010, Public 

Law 111–371, 124 Stat. 4072 (2011), this 

Fourth Report and Order is hereby 

adopted and Part 74 of the 

Commission’s rules are amended as set 

forth in Appendix D, effective 30 days 

after publication in the Federal 

Register. 

96. It is further ordered that the rules 

adopted herein will become effective 

thirty (30) days after publication in the 

Federal Register, except for any rules or 

requirements involving Paperwork 

Reduction Act burdens, which shall 

become effective upon announcement in 

the Federal Register of OMB approval 

and an effective date of the rule(s). 

97. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Fourth Report and Order, including 

the Final Regulatory Flexibility 

Analysis, to the Chief Counsel for 

Advocacy of the Small Business 

Administration. 

List of Subjects in 47 CFR Part 74 

Radio. 

Federal Communications Commission. 

Sheryl D. Todd, 

Deputy Secretary. 

Rule changes 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 74 to 

read as follows: 

PART 74—EXPERIMENTAL RADIO, 

AUXILIARY, SPECIAL BROADCAST 

AND OTHER PROGRAM 

DISTRIBUTIONAL SERVICES 

■ 1. The authority citation for part 74 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 307, 309, 

336, and 554. 

■ 2. Section 74.1232(d) is revised to 

read as follows: 

§ 74.1232 Eligibility and licensing 

requirements. 

* * * * * 

(d) An authorization for an FM 

translator whose coverage contour 

extends beyond the protected contour of 

the commercial primary station will not 

be granted to the licensee or permittee 

of a commercial FM radio broadcast 

station. Similarly, such authorization 

will not be granted to any person or 

entity having any interest whatsoever, 

or any connection with a primary FM 

station. Interested and connected parties 

extend to group owners, corporate 

parents, shareholders, officers, directors, 

employees, general and limited 

partners, family members and business 

associates. For the purposes of this 

paragraph, the protected contour of the 

primary station shall be defined as 

follows: the predicted 0.5mV/m contour 

for commercial Class B stations, the 

predicted 0.7 mV/m contour for 

commercial Class B1 stations and the 

predicted 1 mV/m field strength contour 

for all other FM radio broadcast stations. 

The contours shall be as predicted in 

accordance with § 73.313(a) through (d) 

of this chapter. In the case of an FM 

radio broadcast station authorized with 

facilities in excess of those specified by 

§ 73.211 of this chapter, a co-owned 

commercial FM translator will only be 

authorized within the protected contour 

of the class of station being rebroadcast, 

as predicted on the basis of the 

maximum powers and heights set forth 

in that section for the applicable class 

of FM broadcast station concerned. An 

FM translator station in operation prior 

to March 1, 1991, which is owned by a 

commercial FM (primary) station and 

whose coverage contour extends beyond 

the protected contour of the primary 

station, may continue to be owned by 

such primary station until March 1, 

1994. Thereafter, any such FM translator 

station must be owned by independent 

parties. An FM translator station in 

operation prior to June 1, 1991, which 

is owned by a commercial FM radio 

broadcast station and whose coverage 

contour extends beyond the protected 

contour of the primary station, may 

continue to be owned by a commercial 

FM radio broadcast station until June 1, 

1994. Thereafter, any such FM translator 

station must be owned by independent 

parties. An FM translator providing 

service to an AM fill-in area will be 

authorized only to the permittee or 

licensee of the AM radio broadcast 

station being rebroadcast, or, in the case 

of an FM translator authorized to 

operate on an unreserved channel, to a 

party with a valid rebroadcast consent 

agreement with such a permittee or 

licensee to rebroadcast that station as 

the translator’s primary station. In 

addition, any FM translator providing 

service to an AM fill-in area must have 

been authorized by a license or 

construction permit in effect as of May 

1, 2009, or pursuant to an application 

that was pending as of May 1, 2009. A 

subsequent modification of any such 

FM translator will not affect its 

eligibility to rebroadcast an AM signal. 

* * * * * 

[FR Doc. 2012–8404 Filed 4–6–12; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[Docket No. 110210132–1275–02] 

RIN 0648–XB116 

Atlantic Highly Migratory Species; 

Atlantic Bluefin Tuna Fisheries 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; inseason 

Angling category retention limit 

adjustment; southern area trophy fishery 

closure. 

SUMMARY: NMFS has determined that 

the Atlantic bluefin tuna (BFT) daily 

retention limit that applies to vessels 

permitted in the Highly Migratory 

Species (HMS) Charter/Headboat 

category (when fishing recreationally for 

BFT) should be adjusted for the 

remainder of 2012, based on 

consideration of the regulatory 

determination criteria regarding 

inseason adjustments and based on 

preliminary 2012 landings data. NMFS 

also closes the southern area Angling 

category fishery for large medium and 

giant (‘‘trophy’’) BFT. These actions are 

being taken consistent with the BFT 

fishery management objectives of the 

2006 Consolidated HMS Fishery 

Management Plan (Consolidated HMS 

FMP) and to prevent overharvest of the 

2012 Angling category quota. 

DATES: Effective April 7, 2012, through 

December 31, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Sarah McLaughlin or Brad McHale, 

978–281–9260. 

SUPPLEMENTARY INFORMATION: 

Regulations implemented under the 


pmangrum on DSK3VPTVN1PROD with RULES