[Federal Register Volume 87, Number 117 (Friday, June 17, 2022)]
[Proposed Rules]
[Pages 36440-36449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12813]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[OMB Docket No. 03-185; FCC 22-40; FR ID 91304]


Amendment of the Commission's Rules To Establish Rules for 
Digital Low Power Television and Television Translator Stations

AGENCY: Federal Communications Commission.

ACTION: Proposed rules.

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SUMMARY: In this Fifth Notice of Proposed Rulemaking (NPRM), FCC 22-40, 
released June 7, 2022, the Commission seeks comment on the operation of 
analog FM radio services by channel 6 digital low power television 
stations. The Commission also seeks comment on a proposal by National 
Public Radio to license additional noncommercial educational FM radio 
stations on 82-88 MHz in areas where channel 6 low power television and 
full-power stations are currently not operating. Finally, the 
Commission seeks comment on whether to eliminate or revise the 
television channel 6 distance separation rules for FM radio stations 
operating on reserved band FM channels 201-220.

DATES: 
    Comment Date: July 18, 20220.
    Reply Comment Date: August 1, 2022.

ADDRESSES: You may submit comments, identified by MB Docket No. 03-185, 
FCC 22-40, by any of the following methods:
    [ssquf] Federal Communications Commission's Website: https://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
    [ssquf] Mail: Office of the Secretary, Federal Communications 
Commission, 45 L Street NE, Washington, DC 20554.
    [ssquf] People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: <a href="/cdn-cgi/l/email-protection#397f7a7a0c090d795f5a5a175e564f"><span class="__cf_email__" data-cfemail="eea8adaddbdedaae888d8dc0898198">[email protected]</span></a> or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Shaun Maher, Media Bureau, at (202) 
418-2324 or <a href="/cdn-cgi/l/email-protection#ffac979e8a91d1b29e979a8dbf999c9cd1989089"><span class="__cf_email__" data-cfemail="44172c25312a6a09252c2136042227276a232b32">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Pursuant to sections 1.415 and 1.419 of the 
Commission's rules, 47 CFR 1.415, 1.419, interested parties may file 
comments and reply comments on or before the dates indicated on the 
first page of this document. Comments may be filed using the 
Commission's Electronic Comment Filing System (ECFS). See Electronic 
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
    <bullet> Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    <bullet> Filings can be sent by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail

[[Page 36441]]

and Priority Mail) must be sent to 9050 Junction Drive, Annapolis 
Junction, MD 20701. U.S. Postal Service first-class, Express, and 
Priority mail must be addressed to 45 L Street NE, Washington, DC 
20554.
    <bullet> Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="3d5b5e5e080d097d5b5e5e135a524b">[email protected]</a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
    Paperwork Reduction Act of 1995 Analysis: This document proposes 
new or modified information collection requirements. The Commission, as 
part of its continuing effort to reduce paperwork burdens and pursuant 
to the Paperwork Reduction Act of 1995, Public Law 104-13, invites the 
general public and the Office of Management and Budget (OMB) to comment 
on these information collection requirements. In addition, pursuant to 
the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might 
further reduce the information collection burden for small business 
concerns with fewer than 25 employees.

Synopsis

    1. In this NPRM, the Commission seeks comment on the operation of 
analog FM radio services by channel 6 digital low power television 
stations (FM6 operations). The Commission has been considering this 
issue since 2014, when, in the LPTV DTV Third NPRM in this proceeding, 
it sought comment on whether to allow analog channel 6 low power 
television (LPTV) stations to provide FM6 operations after they 
converted to digital operations on July 13, 2021--the LPTV digital 
transition deadline. The Commission asked if LPTV stations operating on 
digital channel 6 could be allowed to continue their FM6 radio 
operations on an ancillary or supplementary basis.
    2. The LPTV digital transition is now complete, with analog 
television operations terminated and channel 6 LPTV stations operating 
in digital. However, the Commission has granted STAs to 13 channel 6 
LPTV stations to continue providing analog FM6 service. In these 
circumstances, the Commission seeks comment on whether allowing 
continued FM6 analog radio operations by existing digital channel 6 
LPTV stations serves the public interest. In addition, the Commission 
seeks comment on whether to eliminate or revise the television channel 
6 (TV6) distance separation rules for low power FM (LPFM), 
noncommercial educational (NCE) FM, Class D (10 watt) FM, and FM 
translator stations operating on reserved band FM Channels 201-220.

Public Interest Benefits of Continued FM6 Operations

    3. With the LPTV digital transition complete, the Commission seeks 
comment on whether it is in the public interest to allow continued FM6 
operations in the digital LPTV world, and whether it should be 
authorized to continue in any capacity. Throughout this proceeding, FM6 
supporters have trumpeted the merits of FM6 operations by maintaining 
that they provide diverse, niche, and local programming that is not 
otherwise available in the stations' communities. The FM6 stations 
state that ``[t]he multi-dimensional use of analog channel 6 has given 
a voice to diverse constituencies and ethnic groups unable to find a 
home anywhere else on the FM dial.'' Importantly, FM6 commenters state 
that their LPTV television stations provide vital video content 
including weather, traffic, community event calendars, news and sports 
tickers and more.
    4. Prior to the LPTV digital transition, the Commission estimates 
that there were close to 30 FM6 stations, based on representations made 
in the record in this proceeding. Today, it is believed that only 13 
FM6 stations remain, in light of the impact on digital transition on 
channel 6 operations. The Commission seeks comment on whether this 
belief is correct and whether the reduction in the number of FM6 
stations is the result of stations having to convert to digital last 
year. In addition, the Commission seeks comment on the extent to which 
in the post-LPTV digital transition world, consumers rely on FM6 
programming. It is noted that the Commission has historically been 
reluctant to regulate based upon programming decisions made by 
broadcasters. With that policy in mind, the Commission reminds 
commenters that FM6 station programming can be changed--FM6 stations, 
like other broadcast stations, are not required to air any particular 
type of programming. Thus, even to the extent that some of these 
stations do provide useful programming to local and niche audiences, 
that could change at any time. The Commission also notes that many FM6 
stations have longstanding programming with entrenched audiences. The 
Commission seeks comment on whether these programming concerns should 
enter into our public interest analysis of FM6 services.
    5. The Commission asks commenters to weigh the current radio 
programming benefits of FM6 stations against the lost opportunities 
from expanded adjacent NCE FM service or digital LPTV service on 
channel 6. For example, the Channel 6 Commenters maintain that LPTV 
licensees should be allowed to make ``the most efficient use of 
spectrum'' by providing FM6 services on an ancillary or supplementary 
basis. PCPC argues that allowing digital television stations to offer 
additional services on existing channels is efficient spectrum use. On 
the other hand, FM6 opponents contend that FM6 operations are not an 
efficient use of spectrum--using a full 6 MHz television channel to 
provide a 200 KHz aural service is not, according to these commenters, 
maximizing the potential of this scarce resource. In addition, 
opponents argue that because there are no programming rules for LPTV 
stations, FM6 stations could, in the absence of such requirements, 
provide only minimal visual programming. While the Commission notes 
that providing visual programming has been a condition of the current 
FM6 STAs, it recognizes that some FM6 stations have a history of such 
minimal video service. These opponents also argue that FM6 is at odds 
with the underlying statutory purpose of permitting ancillary or 
supplementary services: to enhance the use of existing spectrum, 
consistent with the Commission's basic statutory responsibility to 
manage the radio-frequency spectrum in the public interest. The 
Commission seeks comment on these assertions and whether continued FM6 
operation is an efficient use of Commission spectrum. Does allowing 
continued analog FM6 operations comport with recent Commission efforts 
to adopt more efficient and innovative use of digital television 
spectrum?
    6. To the extent that FM6 programming is fulfilling a programming 
need, the Commission seeks comment on whether it could be provided 
through other means of delivery. Specifically, the Commission seeks 
comment on whether FM6 programming could be delivered as a

[[Page 36442]]

digital audio-only stream on one of the LPTV station's multicast 
channels, via a lease of digital subchannels on local FM or LPFM 
stations, through the internet, or by entities obtaining an FM or LPFM 
radio license. Would these alternatives be more spectrally efficient? 
What is unique about FM6 operations that merits continued service 
through its existing means of delivery?

FM6 Operations as Ancillary or Supplementary Services

    7. The Commission has twice sought comment on whether FM6 
operations comply with the ancillary or supplementary provisions in the 
Act and the Commission's rules, whether the operation of analog FM 
radio services in conjunction with a digital television service would 
cause impermissible interference to other licensees, and, if permitted 
to continue, how best to authorize FM6 operations. The Commission once 
again seeks comment on these issues and whether and how recent 
developments in the LPTV service should affect its analysis.

Compliance With the Communications Act and Commission Rules

    8. If the Commission permits FM6 operations as an ancillary or 
supplementary service, it seeks comment on whether to adopt a rule to 
formally authorize such operations and whether such a rule should 
include provisions requiring FM6 operations be subject to any or all of 
the conditions that were included in the FM6 engineering STAs. 
Throughout this proceeding, the Commission has asked whether a digital 
LPTV station can provide an analog FM radio-type service as an 
ancillary or supplementary service consistent with the Act and our 
rules. The Commission specifically focused on the rule requirement that 
digital LPTV stations, when operating, must transmit an over-the-air 
video program signal at no direct charge to viewers. In addition, the 
Commission has pointed to section 336(b)(1) of the Act that mandates 
that the Commission permit ancillary or supplementary services only 
``if the use of a designated frequency for such services is consistent 
with the technology or method designated by the Commission for the 
provision of advanced television services.'' The Commission questioned 
whether a digital LPTV station offering FM6 services on an ancillary or 
supplementary basis would be able to satisfy these requirements.
    9. Would adopting a rule for FM6 operations that would codify 
conditions like those found in the FM6 engineering STAs help satisfy 
compliance with these rule and statutory provisions? As noted above, 
the engineering STAs that FM6 stations are currently operating under 
contain conditions including: (1) a requirement that FM6 operations be 
conducted in ATSC 3.0 digital format; (2) FM6 operations may only be 
conducted on 87.75 MHz; (3) no interference is permitted to any other 
licensed user, including but not limited to broadcast television or 
radio users; (4) the station's audio and video coverage must reach 
similar populations; (5) the station must submit written reports, 90 
days from the date of grant of the STA and again 180 days later 
detailing any reports of interference and a demonstration that the 
station's audio and video coverage reach similar populations; (6) the 
station must provide at least one stream of synchronized video and 
audio programming on the ATSC 3.0 portion of the spectrum on a full 
time (24x7) basis; (7) the station's technical facilities may not be 
modified; and (8) the station may not be assigned or transferred. The 
Commission seeks comment on whether to require that FM6 stations 
operate subject to a similar set of rules, with some modifications and 
omissions and in the proposed rule, as a means to resolve the 
outstanding issues surrounding FM6 operations as an digital LPTV 
station's ancillary or supplementary service.
    10. ATSC 3.0, 87.75 MHz and No Interference Requirements. The 
Commission proposes that FM6 stations be operating in ATSC 3.0 digital 
format; that FM6 operations may only be conducted on 87.75 MHz; and 
that no interference be permitted to any other licensed user, including 
but not limited to broadcast television or radio users. By adopting a 
rule that authorizes service pursuant to these requirements, the 
Commission seeks to prevent the types of interference that were a 
concern for FM6 stations operating in ATSC 1.0. As discussed more fully 
below, unlike ATSC 1.0, the ATSC 3.0 digital format appears to be more 
configurable and allows for the digital TV signal to be made narrower 
purportedly helping to overcome the harmful interference to FM radio 
stations that FM6 opponents suggest could emanate from FM6 operations. 
The Commission seeks comment on these rule provisions.
    11. Separately, the Commission seeks comment on whether requiring 
FM6 services to be conducted only in conjunction with an ATSC 3.0 
digital operation also has the benefit of satisfying the requirement of 
section 336(b)(1) of the Act that the ``use of a designated frequency 
for [ancillary or supplementary] services is consistent with the 
technology or method designated by the Commission for the provision of 
advanced television services.'' Specifically, commenters were asked to 
address whether and how analog use of a digital channel is ``consistent 
with'' the digital technology mandated by the Commission for the 
provision of advanced television services. FM6 opponents have 
maintained throughout this proceeding that a digital LPTV station 
providing FM6 services was not consistent with existing the ATSC 
digital standard, which at the time they commented was ATSC 1.0. They 
contended that a revision to the digital standard would have to be 
adopted in order for FM6 to be permitted. FM6 stations disagreed, 
saying digital LPTV stations providing an analog FM radio service would 
be in compliance with the Commission's digital broadcast television 
transmission standard as set forth in section 74.795(b) of the rules 
that provides that digital transmitters be designed to produce digital 
television signals that can be ``satisfactorily viewed'' on consumer 
receiving equipment based on the digital broadcast television 
transmission standard in section 73.682(d) the rules. FM6 stations 
argued that they would provide a ATSC 3.0 digital television signal 
that would meet the requirements of section 74.795(b) in addition to 
the separate analog FM radio signal.
    12. Has the fact that FM6 services are now being offered via ATSC 
3.0 digital stations changed these arguments? The Commission notes that 
the ATSC 3.0 standard also does not have a provision specific to FM6. 
And, as NPR notes, in the Commission's ATSC 3.0 R&O released in 
December 2020, the Commission amended the definition of the minimum 
standard definition digital television signal for full-power stations, 
removed all references to the analog standard, and confirmed that it 
``continue[d] to `expect that the fundamental use of the 6 MHz DTV 
license will be for the provision of free over-the-air television 
service.' '' Given the fact that analog television is now truly a 
legacy service, does operation of an analog FM radio service on an ATSC 
3.0 digital channel meet the requirements of section 336(b)(1) of the 
Act? Furthermore, should the fact that the number of U.S. households 
that possess an ATSC 3.0 capable television receiver remains limited 
affect our determination?
    13. Similar Coverage and One Free Synchronized Stream Requirements. 
The Commission proposes that FM6 stations comply with the following 
operational requirements: the FM6 coverage area must be contained 
within

[[Page 36443]]

and may not exceed the coverage area of the LPTV station's synchronized 
video/audio programming stream; and the LPTV station must provide at 
least one stream of synchronized video and audio programming on the 
ATSC 3.0 portion of the spectrum, at any time the station is operating. 
By requiring that the station's FM6 coverage not exceed its video 
coverage, and that stations provide at least one stream of synchronized 
video and audio programming on the digital portion of the spectrum at 
any time the station is operating, the Commission seeks to ensure that 
the spectrum is being used efficiently and in the public interest.
    14. Conditions similar to these provisions were included in the FM6 
engineering STAs. The requirement that the LPTV station's FM6 and video 
coverage reach similar populations was imposed to address the concerns 
of FM6 opponents that FM6 stations would configure their LPTV station's 
technical facilities in such a manner that would favor their FM6 
operation over their digital TV operation. The Commission proposes a 
similar provision here that would limit the FM6 coverage area to not 
greater than the LPTV station's coverage area for similar reasons and 
it believes this limit will help to allay these concerns and ensure 
that digital LPTV stations providing FM6 operations continue to focus 
their attention on the operation of their digital LPTV station--the 
primary purpose of their station license. The Commission seeks comment 
on this proposal.
    15. As for its proposed rule provision requiring that FM6 stations 
provide at least one stream of synchronized video and audio programming 
on the ATSC 3.0 portion of the spectrum, at any time the station is 
operating, a similar condition was included in the FM6 engineering 
STAs. The Commission proposes to adopt a slightly different version in 
our FM6 rules. The STA condition required that the one stream of 
synchronized video and audio programming be provided on ``a full time 
(24x7) basis.'' Because the Commission's rules provide that LPTV 
stations are ``not required to adhere to any regular schedule of 
operation,'' the Commission finds it more appropriate to propose a 
revised version of this condition that requires that FM6 stations 
provide at least one stream of synchronized video and audio programming 
on the ATSC 3.0 portion of the spectrum ``at any time the station is 
operating.'' The reason the synchronized video and audio programming 
condition was originally imposed on the FM6 engineering STAs was to 
ensure that digital LPTV stations providing FM6 operations continued to 
provide adequate television service to viewers. Prior to the LPTV 
digital television transition in July 2021, when FM6 operations were 
being conducted as part of the LPTV station's analog channel 6 
operation, most FM6 stations were not offering any type of meaningful 
television service. Because the audio signal for their analog TV 
station was dedicated to providing the FM6 service, these stations 
would often times offer minimal television service on their stations 
such as community bulletin boards. FM6 stations appeared to be focusing 
their resources on their radio FM6 operation over their television 
operation. The Commission seeks comment on whether requiring the FM6 
stations be subject to the separate synchronized video and audio 
programming requirement will address the concerns of FM6 opponents and 
ensure that FM6 stations continue to provide adequate television 
service to viewers.
    16. Limits on Technical Modifications. The Commission proposes to 
adopt a rule, similar to the condition contained in FM6 engineering 
STAs, that would limit LPTV stations providing FM6 operations from 
modifying their facilities during the time that FM6 operations are 
being conducted. This condition was placed on FM6 engineering STAs in 
an effort to ``lock'' the FM6 station facilities in place while they 
were being operated pursuant to STA to prevent the station from making 
changes to their facilities that could impact the potential for 
interference from FM6 operations to other users. The Commission seeks 
comment on whether codification of such a modification limit could be a 
useful way to prevent FM6 stations from causing interference. By 
locking FM6 stations into their existing facilities, that have already 
been shown to not cause interference, the Commission would seek to 
preserve the status quo and prevent technical changes that could upset 
the current interference-free environment. The Commission proposes to 
define ``existing facilities'' as the FM6 station's licensed technical 
facilities on the release date of this NPRM. While the Commission is 
required to consider requests for waivers of its rules, it also seeks 
comment on whether to provide for an exception to this rule that would 
allow for technical modifications if certain criteria are met. The 
Commission seeks comment on such criteria, such as a showing of no 
potential interference to affected licensees and/or a demonstration 
that all affected licensees have consented to the modification. The 
Commission seeks comment on these issues.
    17. Transfers. In the STAs, the Commission limited FM6 stations 
from being transferred while FM6 operations are being conducted. The 
Commission seeks comment as to whether inclusion of such a limit in its 
FM6 rules would serve the public interest. The Media Bureau imposed 
this condition in an effort to prevent parties from seeking to operate 
an FM6 station without any intention of continuing FM6 operations and 
for the sole purpose of immediately selling the station to another 
party. Given the fact that the Commission is proposing to limit FM6 to 
only those stations that are providing FM6 operations on the release 
date of this NPRM, and thereby preventing parties from ``speculating'' 
in FM6 stations, it seeks comment as to whether inclusion of a 
limitation on transfer of FM6 stations in its rules would serve the 
public interest.
    18. Periodic Reporting. As a condition to their FM6 STAs, FM6 
stations were required to submit reports, 90 and 180 days after the 
grant of their STAs, detailing any reports of interference and a 
demonstration that the station's FM6 and video coverage reach similar 
populations. The Media Bureau included this reporting requirement in 
the FM6 engineering STAs so that it could monitor the ongoing STA 
operations of FM6 stations for reports of interference and to see if 
FM6 stations were complying with the condition that their digital 
television and analog FM radio operations were serving similar 
populations. The Commission is now proposing to adopt rule provisions 
that would mandate that FM6 operations be conducted without 
interference to other users and that an FM6 station's FM6 and video 
coverage reach similar populations. Accordingly, the Commission 
tentatively concludes that such a reporting requirement is not 
necessary given the force and effect of our proposed FM6 rule. It seeks 
comment on this tentative conclusion.

Potential for Interference

    19. Throughout this proceeding, concern about the potential for 
analog FM6 operations to interfere with or disrupt the LPTV station's 
digital TV service has been paramount. Section 336(b)(2) of the Act 
provides that the Commission shall ``limit the broadcasting of 
ancillary or supplementary services on designated frequencies so as to 
avoid derogation of any advanced television services, including high 
definition television broadcasts, that the Commission may

[[Page 36444]]

require using such frequencies.'' The Commission has also sought 
comment on whether the analog FM6 radio transmitter could cause 
interference to FM radio licensees. FM6 opponents previously expressed 
concern about the potential for interference, citing studies conducted 
in 2014 by Linley Gumm and Charles Rhodes to support their claims. FM6 
stations responded that there had not been a single report of 
interference from the numerous FM6 stations operating their LPTV 
stations in analog mode. FM6 opponents counter that lack of current 
interference is not probative given the existence of Commission rules 
preventing interference.
    20. The Commission recognizes that previous questions and analysis 
about the potential for FM6 interference were based on the assumption 
that the digital LPTV station would be operating in ATSC 1.0. However, 
all existing FM6 stations are instead operating in ATSC 3.0 digital 
mode and there have been no reports of interference from these 
stations. The results of a more recent 2019 ``Perry Priestly'' study 
submitted by PCPC seem to show that, unlike ATSC 1.0, the ATSC 3.0 
digital format is more configurable and allows for the TV signal to be 
made narrower to reduce that interference and/or have its settings 
modified to have increased error correction, helping it overcome such 
interference. Thus, PCPC concludes ``stations that transition directly 
to the ATSC 3.0 standard can provide both the most robust video signals 
available today and a strong analog audio signal.''
    21. In light of this more recent study, the Commission seeks 
comment on whether the fact that FM6 stations are operating in ATSC 3.0 
digital mode changes the potential for their analog FM6 operations to 
interfere with or disrupt the LPTV station's ATSC 3.0 digital TV 
service. The Commission seeks to determine if an ATSC 3.0 digital LPTV 
station will be able to operate an analog FM radio transmitter without 
interfering or derogating its co-channel digital operation. The 
Commission observes that the Perry Priestly study indicates that an 
ATSC 3.0 station would typically reduce the width of its digital TV 
signal and/or increase the level of error correction to make this 
operation possible, both of which would seem to reduce the amount of 
available throughput of the ATSC 3.0 signal. The Commission seeks 
comment on whether these changes in configuration constitute a 
``derogation'' of its digital operation. Should the Commission decide 
to allow FM6 operations, should it be limited to those stations 
operating in ATSC 3.0? As before, the Commission encourages commenters 
to study the question of FM6 interference and to provide the results of 
these studies in their comments.

Application of Part 73 FM Radio Rules

    22. If the Commission decides to permit digital channel 6 LPTV 
stations to provide analog FM6 services on an ancillary or 
supplementary basis, it must still resolve the outstanding question of 
whether such operations should be subject to the Part 73 rules 
applicable to FM radio stations. Section 336(b)(3) of the 
Communications Act mandates that the Commission ``apply to any other 
ancillary or supplementary service such of the Commission's regulations 
as are applicable to the offering of analogous services by any other 
person . . . .'' Commenters previously maintained that the Commission, 
as part of its decision in this proceeding, would need to amend its 
Part 73 and 74 rules to accommodate the FM6 service.
    23. The Commission once again seeks comment on whether FM6 
operations are ``analogous to other services subject to regulation by 
the Commission'' within the meaning of section 336(b)(3) of the Act and 
the Commission's implementing rules and, if so, which of the Part 73 
rules should apply to FM6 operations. The Commission previously asked 
whether it should apply to FM6 operations the Part 73 rules requiring 
that an FM radio station file an application for a construction permit 
and license to operate, that stations be located on channels 88.1 MHz 
through 107.9 MHz, that primary FM channels be allotted through 
rulemaking, that such stations maintain a public inspection file, and 
that the use of such frequencies in border areas be coordinated with 
Canada and Mexico. The Commission seeks comment on whether these 
questions are still relevant, whether other Part 73 rules, including 
technical rules, should apply, and whether its analysis should be 
affected by the fact that it may limit channel 6 LPTV stations 
providing FM6 services to operating only in ATSC 3.0 digital mode and 
from modifying their technical facilities while providing FM6 
operations.

Application of Five Percent Ancillary or Supplementary Fee

    24. To the extent it permits digital channel 6 LPTV stations to 
provide FM6 services on an ancillary or supplementary basis, the 
Commission must resolve the question of whether FM6 services should be 
subject to a five percent fee. The ancillary or supplementary rule 
provides that digital television stations ``must annually remit a fee 
of five percent of the gross revenues derived from all ancillary and 
supplementary services . . . which are feeable . . . .'' ``Feeable'' 
services are defined as ``[a]ll ancillary or supplementary services for 
which payment of a subscription fee or charge is required in order to 
receive the service.'' ``Feeable'' services are also defined as ``[a]ny 
ancillary or supplementary service for which no payment is required 
from consumers in order to receive the service . . . if the DTV 
licensee directly or indirectly receives compensation from a third 
party in return for the transmission of material provided by that third 
party (other than commercial advertisements used to support 
broadcasting for which a subscription fee is not required).'' As 
previously observed, FM6 operations, thus far, appear to have been 
available to the general public without subscription. Comments were 
previously split on this question. Because FM6 services are provided 
free of charge, some commenters believed that no fee should apply. 
Other commenters argued that, because the FM6 operation is not 
available on a DTV receiver, and can be only be received on a separate 
FM radio receiver, we should view FM6 operations as ``point-to-point or 
point-to-multi point'' operation that section 73.624(c) of the rules 
describes as an ``ancillary or supplementary'' service. Channel 6 
Commenters agreed that ``a supplementary 87.7 MHz audio signal 
qualifies as an ancillary service, which entitles the government to 5% 
of its revenue.''
    25. The Commission seeks comment on whether, and under what 
circumstances, an LPTV station's ancillary or supplementary FM6 service 
provided without a subscription fee should be deemed ``feeable'' and 
subject to the five percent fee. To the extent an LPTV station leases 
its spectrum to a third party to provide the programming transmitted 
using FM6 and receives compensation from that third party, such FM6 
operation would be feeable under section 336(e)(1)(B) of the Act 
because the station ``receives compensation from a third party in 
return for transmitting material furnished by such third party.'' In a 
scenario, however, where the FM6 station does not lease its spectrum 
and instead itself provides a free, over-the-air radio service without 
a subscription fee, is there any basis to deem such a service 
``feeable'' and thus subject to the five percent fee? The Commission 
seeks comment on this issue.

[[Page 36445]]

Limiting FM6 to Existing Operators

    26. If the Commission decides to allow FM6 operations to continue 
in the future, it proposes to limit the scope of FM6 operations to only 
those LPTV channel 6 stations with ``active'' FM6 engineering STAs on 
the release date of this NPRM. The Commission proposes to define 
``active'' as an initial engineering STA that is granted and unexpired 
or a request for extension of an engineering STA that is granted or 
pending at the time of the release date of this NPRM. The Commission 
seeks comment on this proposal. The Commission assumes that stations 
holding an active FM6 STA or with a pending FM6 STA extension request 
are actually providing FM6 service to the public. It seeks comment on 
this assumption and whether there are other measures it should take to 
ensure its rules cover only those stations actually providing FM6 
service to the public on the release date of this NPRM.
    27. The record is filled with examples of local, niche programming 
being provided by FM6 stations and we seek to minimize disruption to 
listeners that have come to rely on these services. Limiting the number 
of FM6 stations to those currently in operation (and that have 
demonstrated that they do not cause interference to other users) and 
limiting the technical modifications permitted by these stations could 
also help to serve our goal of preventing harmful interference to other 
services. Would such a limitation allay the concerns of some commenters 
that have opposed FM6 operations?
    28. Would this limitation also ensure continued service to 
consumers who have relied upon this service? With regard to any parity 
concerns of limiting FM6 authorization to existing FM6 stations, the 
Commission notes that all channel 6 LPTV stations had the opportunity 
to provide an FM analog service and chose not to do so. Moreover, the 
Commission's examination of whether to permit the continuation of such 
services has extended over decade, so it believes that all channel 6 
LPTV stations have been placed on adequate notice of a potential change 
in Commission rules. Further, if a channel 6 LPTV station has not 
requested that the Commission permit it to continue to provide FM6 
operations by now (since terminating analog operations in July 2021), 
it seems unlikely that there is consumer reliance on the programming. 
The Commission seeks comment on this proposal, other cut-off dates, or 
alternate ways to limit eligibility to ensure continued service to the 
established listeners of FM6 operations.
    29. The Commission seeks comment on whether it should also permit 
FM6 operations by LPTV stations that, as of the release date of this 
NPRM, have pending applications for construction permits and that have 
a significant history of providing FM6 to the public to also be 
grandfathered. We recognize that there may be a limited number of 
stations that stopped providing FM6 service in July 2021, at the time 
of the LPTV digital transition, but intend to resume such service once 
new facilities are approved and constructed. Would permitting such 
stations to resume providing FM6 services, subject to the conditions 
discussed above, be consistent with the rationale discussed above to 
ensure continued service to consumers who have relied upon this 
service? Are the conditions discussed above adequate to address any 
technical concerns? Because such stations are not yet operational, does 
the Commission need to consider additional technical conditions to 
address unforeseen potential interference? The Commission seeks comment 
on the implications of expanding the scope of continued FM6 service in 
this manner.

Licensing Additional NCE FM Stations

    30. The Commission also takes this opportunity to seek comment on 
National Public Radio's (NPR) proposal to repurpose television channel 
6 (TV channel 6) spectrum (82-88 MHz) for FM services in locations 
where the channels are not being used to provide ``actual television 
programming.'' As previously described, NPR believes that the continued 
use of a digital TV channel 6 to provide an analog FM radio service 
(aka FM6) is contrary to the statute and poor public policy. Instead, 
NPR contends, ``TV channel 6 spectrum is a valuable resource the 
Commission should use to expand opportunities for existing and 
prospective radio broadcasters whose demand for spectrum cannot be 
satisfied in the crowded FM radio band.'' Specifically, NPR maintains 
that the spectrum occupied by a single TV channel 6 station could 
potentially accommodate up to 30 new FM stations, exponentially 
increasing the variety of programming available for a diverse audience. 
Repurposing this spectrum to allow new FM radio stations to be 
authorized, NPR maintains, would increase the diversity of voices and 
programming available to the public and be a ``far better use of a 
scarce resource'' than the analog audio operations (FM6) that exist in 
some locations today. NPR also argues that it would increase the 
opportunities for diverse providers to provide local public interest 
programming for unserved and underserved audiences, especially in the 
rural parts of the country. The Commission seeks comment on these 
issues.
    31. If it decides to allow new FM stations to operate on 82-88 MHz, 
the Commission seeks comment on whether such stations should be limited 
to noncommercial educational (NCE) FM stations or whether commercial FM 
stations should be allowed to operate on these new frequencies as well, 
consistent with TV6 stations currently occupying this spectrum. The 
Commission notes that the adjacent FM channels 201-220 (87.9 MHz to 
91.9 MHz) are reserved for NCE FM station use. The Commission seeks to 
determine whether to adopt a similar restriction were it to allow 
additional FM stations to operate on 82-88 MHz.
    32. The Commission invites commenters to study the current use of 
TV channel 6 by television broadcasters and the extent to which TV 
channel 6 could accommodate additional FM radio stations without 
causing interference to existing TV channel 6 licensees. The Commission 
also seeks comment on the technical feasibility of NPR's proposal. 
First, it notes that, although there are in theory 30 available 200 kHz 
FM radio channels in the band that comprises TV channel 6, in practice, 
it would not be possible to use all 30 channels in one place given 
interference considerations. Practically speaking, the number of 
channels for use by new FM radio stations in any one area would be 
significantly less. The Commission seeks comment on whether this 
technical reality should affect its consideration of NPR's proposal. 
Furthermore, the Commission seeks comment on whether NPR's argument, 
that FM6 is not an efficient use of spectrum, would be allayed by its 
proposal to limit FM6 operations to only the limited number of TV 
channel 6 LPTV stations that are currently providing such services and 
to further require that such stations provide a separate video offering 
at all times they are providing FM6 operations.
    33. In addition, the Commission seeks comment on whether radio 
listeners will be able to receive new FM radio stations on the 
frequencies that NPR suggests should be allowed for new FM radio 
station operations--82-88 MHz. The Commission notes that FM radio 
receivers currently only receive the top-most portion of the 82-88 MHz 
band (87.7 or 87.9 MHz) of the 6 MHz channel that comprises TV channel 
6. Today's FM radio receivers cannot tune down to the rest of the 
spectrum--82.1-

[[Page 36446]]

87.5 MHz. The Commission invites comment on how this technical 
roadblock should influence our consideration of this issue. The 
Commission also seeks comment on whether changes would need to be made 
to the Domestic Table of Frequency Allocations (Table) to reflect this 
change. The Commission notes that the 76-88 MHz band is generally 
allocated as ``Broadcasting'' but seek comment on whether the Table 
contemplates radio uses at 82-88 MHz. In addition, should it adopt 
NPR's proposal, the Commission seeks comment on whether there are other 
technical issues to consider such as the establishment of separation 
distances for co-channel operations.
    34. Finally, the Commission seeks comment on the benefits of 
expanding FM radio service to all of TV channel 6 to create new FM 
radio stations versus the costs of precluding existing TV stations from 
using the currently unused locations where TV channel 6 is viable and 
foreclosing new TV stations on channel 6. The Commission also seeks 
comment on how allowing additional FM radio stations on the 82-88 MHz 
band would affect other entities that use these frequencies including 
wireless microphones and white space device users. Finally, the 
Commission notes that one of its concerns about authorizing the 
continued provision of FM6 services is the interference potential they 
may pose. The Commission addresses this concern through its proposal of 
limiting any technical modifications by these FM6 stations. The 
Commission seeks comment on the potential for interference if it 
permitted new FM radio services as contemplated by NPR. Would such 
services pose the threat of interference with existing services in this 
band? If so, how should these concerns be mitigated to extent the 
Commission pursues such an expansion?

Elimination of TV6 Interference Protection

    35. The Commission seeks comment on an issue that the Commission 
previously raised and that is related to its consideration of whether 
to permit continued FM6 operations. That is the question of whether to 
completely eliminate the television channel 6 (TV6) distance separation 
(interference protection) rules for Low Power FM radio (LPFM), NCE FM 
radio, Class D FM radio (10 watt), and FM translator stations operating 
on reserved band FM channels 201-220, or to alternatively revise and 
update them for a post-digital transition world. The Commission last 
considered this issue in the context of its efforts to improve the LPFM 
technical rules based on suggestions made by REC Networks in a 2018 
petition for rulemaking. The Commission seeks comment on this issue now 
that the LPTV digital transition is complete and all TV6 stations are 
no longer operating in analog, and in light of our proposals related to 
FM6 in this proceeding.
    36. To provide LPFM stations relief from TV6 protection rules, the 
Commission, in its LPFM NPRM, proposed to eliminate TV6 protections 
entirely on July 13, 2021--the date of the LPTV digital transition. The 
Commission noted that it had been requiring FM stations on channels 201 
to 220 to protect television stations operating on TV6 since 1985. The 
Commission cited to REC Networks arguments that the LPFM TV6 protection 
rules ``significantly overprotect TV6 stations and could be reduced 
with little impact.'' REC Networks pointed out that this was because 
the rules were designed when television was operating with analog 
technology. The Commission also noted studies performed by NPR in 
conjunction with the 2009 digital television transition that showed 
that newer digital television technologies have better filters and 
synchronous detection to reject unwanted FM signals. The Commission 
tentatively accepted NPR's conclusion that digital television receivers 
are substantially less vulnerable to FM-induced TV6 interference than 
analog sets. The Commission sought comment on whether this conclusion 
was still valid ``after so many additional years of experience with 
digital broadcasts.'' The Commission sought comment on its expectation 
that the proposed elimination of LPFM/TV6 spacing requirements will not 
result in any interference to TV6 stations and it tentatively 
concluded, upon July 13, 2021, to eliminate the distance separate 
requirement between LPFM stations and all television stations operating 
on TV6.
    37. A limited number of commenters weighed in on the Commission's 
proposal and were evenly split for and against elimination of the TV6 
protections. For instance, in response to support from petitioners, 
Disney posited that that the record did ``not provide actual evidence 
demonstrating that the full-power Channel 6 Protections are 
unnecessary,'' and that the TV6 protection rules ``have functioned 
quite well to protect full-power television stations from interference, 
and have done so without imposing significant burdens on FM reserved 
band stations.'' The Commission in its 2020 Report and Order deferred 
consideration of this issue to a future proceeding finding that it 
``will be in a better position to reach an informed decision by 
addressing TV6 issues in a separate proceeding with a more developed 
record on this issue.''
    38. Since that decision, events have occurred that could affect our 
previous analysis as to the continued need for TV6 protection rules. 
The post-Incentive Auction transition was completed in July 2020 and 
repacked stations have settled into their new post-auction channel 
assignments. And, given the digital transition, analog television is 
now truly a legacy service. With the completion of the Incentive 
Auction and the LPTV digital transition, the Commission now has 
experience with respect to TV6 and whether interference has been 
occurring with respect to digital TV6 stations and FM radio stations.
    39. Therefore, the Commission seeks comment on the continued need 
for TV6 interference protection rules. Specifically, the Commission 
seeks comment on whether the interference protection provisions, 
adopted while television stations were operating in analog mode, 
continue to be necessary in light of the fact that all TV6 stations 
have now converted to digital. The Commission invites commenters to 
analyze the number of current TV6 stations, their current locations and 
the potential for TV6-FM radio cross-service interference. The 
Commission notes that it has not received reports of interference to 
either TV or radio services from stations in their counterpart 
services. Does the lack of reports indicate the protections are no 
longer necessary, or that they are fulfilling their purpose? 
Alternatively, the Commission seeks comment on whether to preserve the 
existing protections but revise and update them for digital TV6 
operations, and if so, how to update them. In that circumstance, the 
Commission seeks comment on whether those protections should apply to 
currently authorized channel 6 stations or to future channel 6 stations 
or to both.
    40. The Commission notes that retention or revision of the TV6 
interference protection rules could potentially be impacted by its 
decision whether to permit continued FM6 operations. Given this, the 
Commission seeks comment on whether the elimination of TV6 protection 
by LPFM and other FM radio stations would be compatible with FM6 
operations if it determines to permit such operations to continue. That 
is, if FM6 and LPFM and NCE FM stations are allowed to come

[[Page 36447]]

into closer proximity if the TV6 protection rules are eliminated, would 
that increase concerns about interference from FM6 to LPFM/NCE FM 
stations--an important factor in our FM6 considerations? The Commission 
notes that one of the conditions it is seeking to impose on continued 
FM6 operations is that the LPTV station not be permitted to modify its 
facilities while providing FM6 operations, thus locking into place the 
technical facilities by which the LPTV station provides its FM6 
operations. If it limits station modifications in this manner, would 
this impact the Commission's analysis of whether elimination of TV6 
protection by LPFM and other FM radio stations would be compatible with 
FM6 operations?
    41. The Commission's goal in this proceeding, as with any 
proceeding involving interference protection, is to ensure that 
licensees can operate in an environment in which the potential for 
interference is minimized. The Commission stresses that interference 
protections are essential to spectrum usage rights to prevent licensees 
from unduly affecting other licensees in terms of system operation or 
cost. Nonetheless, the Commission attempts to establish rules that are 
no more restrictive than necessary to achieve our goals in order to 
provide maximum flexibility to our licensees. Therefore, commenters 
suggesting that the existing interference provisions be retained, 
revised or updated should demonstrate that their proposed restrictions 
are necessary to achieve these goals.

Cost-Benefit and Diversity, Equity and Inclusion Analysis

    42. Finally, the Commission seeks comment on the benefits and costs 
associated with adopting the proposals set forth in this NPRM. In 
addition to any benefits to the public at large, are there also 
benefits to industry through adoption of any of its proposals? The 
Commission also seeks comment on any potential costs that would be 
imposed on licensees and regulatees if it adopts the proposals 
contained in this NPRM. Comments should be accompanied by specific data 
and analysis supporting claimed costs and benefits.
    43. As part of its continuing effort to advance digital equity for 
all, including people of color, persons with disabilities, persons who 
live in rural or Tribal areas, and others who are or have been 
historically underserved, marginalized, or adversely affected by 
persistent poverty or inequality, the Commission invites comment on how 
the proposals set forth in the NPRM can advance equity in the provision 
of broadcast services for all people of the United States, without 
discrimination on the basis of race, color, religion, national origin, 
sex, or disability. Specifically, the Commission seeks comment on how 
its proposals may promote or inhibit advances in diversity, equity, 
inclusion, and accessibility, as well the scope of the Commission's 
relevant legal authority.

Initial Regulatory Flexibility Act Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), The Third Notice of Proposed Rulemaking in this proceeding 
included an Initial Regulatory Flexibility Analysis (IRFA) pursuant to 
5 U.S.C. 603, exploring the potential impact on small entities of the 
Commission's proposals. Because this Fifth Notice of Proposed 
Rulemaking (NPRM) contains new proposals, the Commission requests 
written public comments on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
specified in the NPRM. The Commission will send a copy of the NPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA). In addition, the NPRM and IRFA (or 
summaries thereof) will be published in the Federal Register.

Need for, and Objectives of, the Proposed Rules

    The NPRM seeks comment on whether to permit digital low power 
television (LPTV) stations on channel 6 to continue to operate analog 
FM radio-type services and, if so, how to authorize these services. 
Prior to the July 13, 2021 LPTV digital transition deadline, a number 
of analog LPTV stations licensed on channel 6 operated with very 
limited visual programming and an audio signal that is programmed like 
a radio station (FM6). FM radio listeners were able to receive the 
audio portion of these LPTV stations at 87.75 MHz, which is adjacent to 
noncommercial educational (NCE) FM channel 201 (88.1 MHz). When these 
LPTV stations converted to digital, however, they would be unable to 
continue providing such radio service because the digital audio portion 
of their signal could no longer be received by standard FM receivers. 
Currently, some digital channel 6 LPTV stations have converted to ATSC 
3.0 digital format and are operating pursuant to engineering special 
temporary authority (STA) with a separate analog FM radio transmitter.
    In an effort to bring a final resolution to the FM6 question, the 
Commission seeks comment on whether FM6 operations are serve the public 
interest and should be authorized to continue in any capacity. The NPRM 
also seeks comment on whether FM6 should be authorized as ``ancillary 
or supplementary'' services as suggested previously in this proceeding. 
The NPRM seeks comment on whether the Commission can and should limit 
future FM6 operations to only those LPTV channel 6 stations with active 
FM6 engineering STAs on the release date of the NPRM.
    The NPRM alternatively seeks comment on whether to license 
additional FM radio stations on 82-88 MHz in areas where channel 6 LPTV 
and full-power stations are currently not operating.
    Finally, regardless of whether it decides to permit continued FM6 
operations or license additional FM radio stations on 82-88 MHz, the 
NPRM seeks comment on whether to eliminate or revise the TV6 distance 
separation rules for LPFM, NCE, Class D (10 watt), and FM translator 
stations operating on reserved band FM Channels 201-220.

Legal Basis

    The proposed action is authorized under Sections 151, 154(i), 
154(j), 303, 307, 316, 336, and 403 of the Communications Act of 1934, 
as amended, 47 U.S.C. 151, 154(i), 154(j), 303, 307, 316, 336, and 403.

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rules Will Apply

    The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rule revisions, if adopted. The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act (SBA). 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 
SBA. Below, we provide a description of such small entities, as well as 
an estimate of the number of such small entities, where feasible.
    Television Broadcasting. This industry is comprised of 
``establishments primarily engaged in broadcasting images together with

[[Page 36448]]

sound.'' These establishments operate television broadcast studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in turn 
broadcast the programs to the public on a predetermined schedule. 
Programming may originate in their own studio, from an affiliated 
network, or from external sources. The SBA small business size standard 
for this industry classifies businesses having $41.5 million or less in 
annual receipts as small. 2017 U.S. Census Bureau data indicate that 
744 firms in this industry operated for the entire year. Of that 
number, 657 firms had revenue of less than $25,000,000. Based on this 
data we estimate that the majority of television broadcasters are small 
entities under the SBA small business size standard.
    The Commission estimates that as of March 2022, there were 1,373 
licensed commercial television stations. Of this total, 1,280 stations 
(or 93.2%) had revenues of $41.5 million or less in 2021, according to 
Commission staff review of the BIA Kelsey Inc. Media Access Pro 
Television Database (BIA) on June 1, 2022, and therefore these 
licensees qualify as small entities under the SBA definition. In 
addition, the Commission estimates as of March 2022, there were 384 
licensed noncommercial educational (NCE) television stations, 383 Class 
A TV stations, 1,840 LPTV stations and 3,231 TV translator stations. 
The Commission however does not compile, and otherwise does not have 
access to financial information for these television broadcast stations 
that would permit it to determine how many of these stations qualify as 
small entities under the SBA small business size standard. 
Nevertheless, given the SBA's large annual receipts threshold for this 
industry and the nature of these television station licensees, we 
presume that all of these entities qualify as small entities under the 
above SBA small business size standard.
    Radio Stations. This industry is comprised of ``establishments 
primarily engaged in broadcasting aural programs by radio to the 
public.'' Programming may originate in their own studio, from an 
affiliated network, or from external sources. The SBA small business 
size standard for this industry classifies firms having $41.5 million 
or less in annual receipts as small. U.S. Census Bureau data for 2017 
show that 2,963 firms operated in this industry during that year. Of 
this number, 1,879 firms operated with revenue of less than $25 million 
per year. Based on this data and the SBA's small business size 
standard, we estimate a majority of such entities are small entities.
    The Commission estimates that as of September 2021, there were 
4,519 licensed commercial AM radio stations, 6,682 licensed commercial 
FM radio stations and 4,211 licensed noncommercial (NCE) FM radio 
stations. The Commission however does not compile, and otherwise does 
not have access to financial information for these radio stations that 
would permit it to determine how many of these stations qualify as 
small entities under the SBA small business size standard. 
Nevertheless, given the SBA's large annual receipts threshold for this 
industry and the nature of radio station licensees, we presume that all 
of these entities qualify as small entities under the above SBA small 
business size standard.
    The Commission notes, however, that in assessing whether a business 
concern qualifies as ``small'' under the above definition, business 
(control) affiliations must be included. Its 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. In addition, 
another element of the definition of ``small business'' requires that 
an entity not be dominant in its field of operation. The Commission is 
unable at this time to define or quantify the criteria that would 
establish whether a specific radio or television broadcast station is 
dominant in its field of operation. Accordingly, the estimate of small 
businesses to which the rules may apply does not exclude any radio or 
television station from the definition of a small business on this 
basis and is therefore possibly over-inclusive. An additional element 
of the definition of ``small business'' is that the entity must be 
independently owned and operated. Because it is difficult to assess 
these criteria in the context of media entities, the estimate of small 
businesses to which the rules may apply does not exclude any radio or 
television station from the definition of a small business on this 
basis and similarly may be over-inclusive.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    As a condition to be allowed to continue their FM6 operations on an 
ancillary or supplementary basis, the Commission seeks comment on 
whether FM6 stations should be required to submit written reports, 
every 90 days, detailing any reports of interference and a 
demonstration that the station's FM6 and video coverage reach similar 
populations. The NPRM tentatively concludes that such a reporting 
requirement is not necessary. Should the Commission ultimately decide 
to adopt this requirement, this proposed reporting requirement would 
result in a new paperwork obligation. If adopted, the Commission will 
seek approval and the corresponding burdens to account for this 
reporting requirement.

Steps Taken To Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered

    The RFA requires an agency to describe any significant alternatives 
that it has considered in reaching its proposed approach, which may 
include the following four alternatives (among others): (1) the 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    The NPRM seeks to determine if continued provision of FM6 services 
by digital LPTV channel 6 stations serve the public interest and should 
FM6 be authorized to continue in any capacity. All of the licensees of 
FM6 stations are licensees of LPTV stations and most if not all are 
considered small entities by SBA definitions. Therefore, by allowing 
FM6 operations to continue, the Commission is seeking to help small 
entities and to preserve their current programming offerings. The 
alternative would be to force these entities to discontinue FM6 
operations that have proved to be a source of additional income for 
these small entities that have struggled to operate LPTV stations and 
that have operated with a disadvantage to their full power television 
brethren. Unlike full power television stations, LPTV stations operate 
without mandatory cable carriage rights and with secondary interference 
rights that can result in their operating channel being displaced and 
their having to find a new frequency.
    The NPRM seeks comment on whether to permit FM6 operations as 
``ancillary or supplementary'' services. This approach is an attempt to 
authorize existing FM6 operations in the easiest and least costly 
manner to reduce the administrative and financial burden on FM6 
stations, all of which are LPTV and most if not all are small entities. 
Using

[[Page 36449]]

existing rules and procedures will enable FM6 stations to easily become 
authorized through familiar and low cost measures.
    The Commission must balance the positive financial benefits for 
small entities of allowing all channel 6 LPTV stations to provide FM6 
operations against the possible negative effects of impermissible 
interference that could result between FM6 operations and other FM 
radio operators. Although it recognizes the positive benefits for small 
entities that may accrue from FM6 operations, the Commission proposes 
that it must limit FM6 operations to only those stations providing such 
services on the release date of the NPRM in order to limit the universe 
of FM6 stations that could potentially interfere with other users. The 
Commission notes that all channel 6 LPTV stations had the opportunity 
to provide an FM analog service and their failure to do so by now 
demonstrates that it was not in their interest to do so.
    Similarly, the Commission must balance whether to allow channel 6 
LPTV stations to continue providing FM6 operations versus entities 
interested in providing new FM radio service to operate on TV channel 6 
in areas where television service is currently not being offered. There 
are small entities in both the LPTV and FM radio services especially 
NCE FM stations whose operation is limited to only noncommercial 
educational entities most if not all of which are small entities. The 
Commission will have to consider the benefits and costs of allowing 
additional FM radio operations and whether it will negatively affect 
future TV operations on low VHF channels such as channel 6 that have 
technical limitations and that are not favored by television operators.
    The Commission also proposes to eliminate or modify a current 
protection for television stations operating on Channel 6 which are 
also small entities, a proposal which seeks to assist low power FM 
(LPFM), noncommercial educational (NCE), and FM translator stations. 
The Commission believes that any potential negative impact on such 
television stations is minimal because full power TV6 stations 
transitioned to digital operations in 2009; LPTV stations in 2021; and 
there has been a lack of interference complaints from these stations 
since their transitions. Further, digital television receivers are more 
selective than the analog the equipment that existed when the 
Commission adopted the TV6 protection requirement. The Commission is 
open to consideration of alternatives to the proposals under 
consideration including but not limited to alternatives that will 
minimize the burden on FM broadcasters, many of whom are small 
businesses, as well as TV6 broadcasters that are small entities. There 
may be unique circumstances these entities may face, and the Commission 
will consider appropriate action for small broadcasters when preparing 
a Report and Order in this matter.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    None.

Report to Congress

    The Commission will send a copy of the NPRM including the IRFA, in 
a report to be sent to Congress pursuant to the Congressional Review 
Act. In addition, the Commission will send a copy of the NPRM including 
the IRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the 
NPRM and IRFA (or summaries thereof) will also be published in the 
Federal Register.

List of Subjects in 47 CFR Part 74

    Low Power TV and TV translator stations.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 74 to read as 
follows:

PART 74--Experimental Radio, Auxiliary, Special Broadcast and Other 
Program Distributional Services

0
1. The authority citation for part 74 continues to read as follows:

    Authority:  47 U.S.C. 154, 302a, 303, 307, 309, 310, 336, and 
554.

0
2. Section 74.790 is revised by adding paragraph (l) as follows:


Sec.  74.790   Permissible service of digital TV translator and LPTV 
stations.

* * * * *
    (l) Provision of analog FM radio operations by digital LPTV channel 
6 stations (FM6). LPTV stations operating on television channel 6 may 
provide analog FM radio operations (FM6 operations) on an ancillary or 
supplementary basis subject to the following:
    (1) The LPTV station must have been providing FM6 operations 
pursuant to an active engineering special temporary authority on the 
release date of the Fifth Notice of Proposed Rulemaking in MB Docket 
No. 03-185;
    (2) The LPTV station must be operating in ATSC 3.0 digital format;
    (3) FM6 operations may only be conducted on 87.75 MHz;
    (4) no interference is permitted to any other licensed user, 
including but not limited to broadcast television or radio users;
    (5) the LPTV station's FM6 coverage area must be contained within 
and may not exceed the coverage area of the LPTV station's synchronized 
video/audio programming stream;
    (6) the LPTV station must provide at least one stream of 
synchronized video and audio programming on the ATSC 3.0 portion of the 
spectrum, at any time the station is operating; and
    (7) while FM6 operations are being conducted, the LPTV station's 
technical facilities may not be modified from those that existed on the 
release date of the Fifth Notice of Proposed Rulemaking in MB Docket 
No. 03-185.

[FR Doc. 2022-12813 Filed 6-16-22; 8:45 am]
BILLING CODE 6712-01-P


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