[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3731 Introduced in House (IH)]







109th CONGRESS
  1st Session
                                H. R. 3731

    To implement the recommendations of the Federal Communications 
   Commission report to the Congress regarding low-power FM service.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 13, 2005

  Ms. Slaughter (for herself, Mr. Case, Ms. Woolsey, Mr. Hinchey, Ms. 
 Schakowsky, and Ms. Watson) introduced the following bill; which was 
            referred to the Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
    To implement the recommendations of the Federal Communications 
   Commission report to the Congress regarding low-power FM service.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

     This Act may be cited as the ``Enhance and Protect Local Community 
Radio Act of 2005''.

SEC. 2. FINDINGS.

     Congress makes the following findings:
            (1) The passage of the Telecommunications Act of 1996 led 
        to increased ownership consolidation in the radio industry.
            (2) At a hearing before the Senate Committee on Commerce, 
        Science, and Transportation, on June 4, 2003, all 5 members of 
        the Federal Communications Commission testified that there has 
        been, in at least some local radio markets, too much 
        consolidation.
            (3) Local communities have sought to launch radio stations 
        to meet their local needs. Opportunities for starting new 
        stations have been scarce since the late 1970's.
            (4) In a record setting rulemaking, over 3500 formal 
        comments were filed at the FCC, overwhelmingly in favor of some 
        form of low power radio service.
            (5) In January, 2000, the Federal Communications Commission 
        authorized a new, affordable community radio service called 
        ``low-power FM'' to ``enhance locally focused community-
        oriented radio broadcasting''.
            (6) Through the creation of LPFM, the Commission sought to 
        ``create opportunities for new voices on the air waves and to 
        allow local groups, including schools, churches, and other 
        community-based organizations, to provide programming 
        responsive to local community needs and interests''.
            (7) The Commission made clear that the creation of LPFM 
        would not compromise the integrity of the FM radio band by 
        stating, ``We are committed to creating a low-power FM radio 
        service only if it does not cause unacceptable interference to 
        existing radio service.''.
            (8) Currently, FM translator stations can operate on the 
        second- and third-adjacent channels to full power radio 
        stations, up to an effective radiated power of 250 watts, 
        pursuant to part 74 of title 47, Code of Federal Regulations, 
        using the very same transmitters that LPFM stations will use. 
        The Commission based its LPFM rules on the actual performance 
        of these translators that already operate without undue 
        interference to FM stations. The actual interference record of 
        these translators in their current implementation is far more 
        useful than any results that further testing could yield.
            (9) Small rural broadcasters were particularly concerned 
        about a lengthy and costly interference complaint process. 
        Therefore, in September 2000, the Commission created a simple 
        process to address interference complaints regarding LPFM 
        stations on an expedited basis.
            (10) In December 2000, Congress delayed the full 
        implementation of LPFM until an independent engineering study 
        was completed and reviewed. This delay was due to some 
        broadcasters' concerns that LPFM service would cause 
        interference in the FM band.
            (11) Approximately 600 LPFM stations were allowed to 
        proceed despite the congressional action. These stations are 
        currently on the air and are run by local government agencies, 
        groups promoting arts and education to immigrant and indigenous 
        peoples, artists, schools, religious organizations, 
        environmental groups, organizations promoting literacy, and 
        many other civically-oriented organizations.
            (12) After 2 years and the expenditure of $2,193,343 in 
        taxpayer dollars to conduct this study (the ``MITRE Study''), 
        the broadcasters' concerns were demonstrated to be 
        unsubstantiated.
            (13) In March 2003, while Congress waited for the results 
        of this study, the Commission opened a filing window for FM 
        translator stations. FM Translators, which extend the range of 
        incumbent full power stations or, in some cases, receive 
        national programming from a satellite feed, fill similar unused 
        gaps in the spectrum as LPFM stations.
            (14) The commission received over 13,000 applications in 
        the March 2003 Window, almost four times the number of 
        translators in existence prior to the March 2003 Window. As a 
        result of this unanticipated surge of applications, the grant 
        of all applications would virtually eliminate any opportunity 
        to grant LPFM licenses in the future, even if Congress repealed 
        the current legislative prohibitions on LPFM spacing.
            (15) Detailed analysis of the 13,000 applications also 
        raises grave concerns that the grant of all pending 
        applications in the March 2003 Window would compromise the goal 
        of promoting localism central to Federal regulation of 
        broadcasting: only 15 organizations account for more than 50 
        percent of the applications. Two corporations (with identical 
        corporate officers) account for more than 4,220 applications.
            (16) The sheer number and geographic scope of these 
        applications suggests that it would disserve the Federal 
        interest in promoting local content by allowing these 
        applications to take precedence over LPFM licensees.
            (17) Furthermore, the Commission has received complaints 
        that parties receiving construction permits as a result of the 
        March 2003 Window have marketed and sold these permits without 
        making any effort to construct facilities and provide service. 
        This suggests that the Commission failed to create adequate 
        safeguards to prevent trafficking in the March 2003 Window, as 
        required by section 309(j)(4)(E) of the Communications Act of 
        1934, rendering the March 2003 Window suspect and requiring 
        Congressional action.
            (18) LPFM stations have what is known as ``secondary 
        status''. They can be displaced at any time by any full power 
        station, because full power stations have ``primary status''. 
        Because full power stations are primary to LPFM, and because of 
        the mandatory spacing rules, the newly expanded full power 
        signal ``encroaches'' on the pre-existing LPFM signal and 
        requires the pre-existing LPFM to reduce its coverage area or 
        shut down altogether.
            (19) New digital broadcast technologies in radio enable the 
        delivery of more content using the same amount of channel 
        space. This technology holds great promise for incumbent full 
        power radio licensees, who will have the capacity to provide 
        greater public service to their communities. At the same time, 
        the efficiencies from these new technologies can create 
        opportunities for new entrants to broadcasting increasing the 
        diversity of media voices available and creating new 
        opportunities for local programming.
            (20) In implementing these new technologies, the Commission 
        is charged with examining how best to balance the interests of 
        enhancing the existing full-power radio broadcasting service, 
        providing opportunities for new entrants, and Congress' 
        longstanding policy of promoting localism, diversity, and 
        competition. In particular, the Commission should consider the 
        success of the LPFM service in providing quality local content 
        and enhancing the diversity of local voices available to their 
        communities.
            (21) The conversion to digital broadcasting may also create 
        new opportunities and challenges for incumbent analog LPFM 
        stations. The current Federal Communications Commission rules 
        for digital radio transition make no provision for 
        opportunities for new entrants in radio. Certain configurations 
        of the technology can create additional channels. Currently 
        incumbent licensees can use these newly possible second 
        channels, while new entrants have no opportunity to take 
        advantage of these new digital opportunities.

SEC. 3. REPEAL OF PRIOR LAW.

     Section 632 of the Departments of Commerce, Justice, and State, 
the Judiciary, and Related Agencies Appropriations Act, 2001 (Public 
Law 106-553; 114 Stat. 2762A-111), is repealed.

SEC. 4. SPECIAL REGULATIONS WITH REGARD TO THE CREATION OF LOW POWER FM 
              STATIONS.

    Section 309 of the Communications Act of 1934 (47 U.S.C. 309) is 
amended by adding at the end the following new subsection:
    ``(l) Special Regulations With Regard to the Creation of Low Power 
FM Stations.--
            ``(1) Minimum distance separation requirements.--The 
        Commission shall modify its rules to eliminate third-adjacent 
        minimum distance separation requirements between--
                    ``(A) LPFM stations; and
                    ``(B) full-service FM stations, FM translator 
                stations, and FM booster stations.
            ``(2) Protection of radio reading services.--The Commission 
        shall retain its rules that provide third-adjacent channel 
        protection for full-power FM stations that broadcast radio 
        reading services via a subcarrier frequency from potential LPFM 
        station interference.
            ``(3) Ensuring availability of spectrum for lpfm 
        stations.--
                    ``(A) Restrictions on licensing fm translator 
                stations.--When licensing FM translator stations, the 
                Commission shall--
                            ``(i) ensure that licenses are available to 
                        both FM translator stations and LPFM stations 
                        by, among other means, use of more 
                        sophisticated technical options, such as 
                        contour overlap and mapping based on the 
                        Individual Location Longley-Rice model set 
                        forth by the Federal Communications Commission 
                        in Docket No. 98-201, and ensure to capture the 
                        full usage possibility of the spectrum, rather 
                        than using the simplest minimum distance 
                        spacing methods in allocating LPFM station and 
                        FM translator station licenses; and
                            ``(ii) provide priority to licensees 
                        producing and broadcasting at least 8 hours of 
                        locally originated programming per day.
                    ``(B) Ownership limitations; number of repeaters 
                per station.--The Commission shall not permit--
                            ``(i) any entity to own or have an 
                        attributable interest in more than twenty FM 
                        translator stations, nationwide; or
                            ``(ii) any single FM radio station to have 
                        its broadcast signal repeated more than 20 
                        times through the use of FM translator 
                        stations.
                    ``(C) Secondary status of translators.--
                            ``(i) Preference for locally originated 
                        programming.--The Commission shall require that 
                        all FM translators, except for fill-in 
                        translators, shall, regardless of the order in 
                        which their licenses were applied for or 
                        granted, be operated as secondary to LPFM 
                        stations that produce and broadcast at least 8 
                        hours per day of locally originated 
                        programming.
                            ``(ii) Definitions.--For purposes of this 
                        subsection--
                                    ``(I) the term `fill-in 
                                translators' means a station operating 
                                pursuant to 47 CFR 74.1201(g), (h), and 
                                (i); and
                                    ``(II) the term `secondary' means 
                                that a station shall be subject to the 
                                condition that no harmful interference 
                                is caused to other radio broadcast 
                                stations.
            ``(4) Schedule of low power radio opportunities.--
                    ``(A) Schedule of windows for low-power fm 
                licensing.--The Commission shall establish and publish 
                a schedule for low-power radio licensing windows, with 
                licensing opportunities for both stations with 
                effective radiated power of 100 and 10 watts, 
                respectively (referred to as `LP-100' and `LP-10' 
                licenses), available no less frequently than every 
                three years. The Commission shall plan the allocation 
                of its resources to meet the published schedule.
                    ``(B) Availability in each state.--In accordance 
                with section 307(b), the Commission shall ensure that, 
                to the greatest extent possible under its rules as in 
                effect on the date of enactment of the Enhance and 
                Protect Local Community Radio Act of 2005, at least one 
                LPFM station licensing window shall be available in 
                each State at least once each 3 years.
                    ``(C) Processing deadlines.--The Commission shall 
                grant or deny each LPFM station license application 
                within 2 years of the date of its submission. If the 
                Commission has not granted or denied the license 
                application within such 2 years, the license will be 
                deemed granted, except that--
                            ``(i) any delay caused by the failure of 
                        the applicant to provide necessary information 
                        required by the Commission's rules or requested 
                        by the Commission shall not count against the 
                        2-year deadline;
                            ``(ii) nothing in this subsection shall 
                        prohibit an applicant from waiving the 2-year 
                        limit, but such waiver shall be in writing and 
                        shall include a date certain by which the 
                        Commission will act; and
                            ``(iii) in cases where applications 
                        conflict or are otherwise contested, the 
                        Commission shall adhere to the 2-year limit 
                        unless all parties agree to extend the deadline 
                        pursuant to clause (ii).
            ``(5) Use of new digital capacity for community 
        broadcasting.--
                    ``(A) Digital radio proceeding on public interest 
                obligations.--The Commission shall initiate an inquiry 
                and rulemaking to explore the public interest 
                obligations of FM and AM digital terrestrial radio 
                licenses. The Commission shall complete the inquiry by 
                January 1, 2006.
                    ``(B) Report to congress.--Upon completion of the 
                inquiry required by subparagraph (A), the Commission 
                shall submit a report to Congress stating--
                            ``(i) what new public interest obligations 
                        the Commission will impose on full power 
                        broadcasters to reimburse the public for the 
                        free use of additional spectrum in the former 
                        guard bands and spectrum rights granted as part 
                        of the digital transition of full power radio 
                        broadcasters;
                            ``(ii) the impact of digital conversion on 
                        existing LPFM licensees and the LPFM service as 
                        a whole;
                            ``(iii) the opportunities to expand the 
                        number of LPFM licenses available as a 
                        consequence of the digital transition, 
                        including any changes to the Commission's rules 
                        that would increase the number of LPFM licenses 
                        available after the digital transition; and
                            ``(iv) any other changes in the 
                        Commission's rules or policies that would 
                        further the interests of localism, diversity of 
                        voices, and competition as a consequence of the 
                        digital transition.
                    ``(C) Action on rules.--The Commission shall issue 
                any rules based on the results of the inquiry not later 
                than June 1, 2006.
            ``(6) Proceeding to resolve the problem of encroachment.--
                    ``(A) Displacement.--The Commission shall ensure 
                that LPFM stations will not be displaced by the 
                granting of licenses to full-power FM stations for use 
                of the spectrum used by LPFM stations.
                    ``(B) Protection from interference.--If the 
                Commission considers an application for a new full-
                power FM station, or major or minor modification to a 
                full-power FM station, or an application for an FM 
                translator station, or other licensee operating on the 
                FM band, the Commission--
                            ``(i) shall consider any operating LPFM 
                        station as primary to the applicant; and
                            ``(ii) may not grant the application if the 
                        grant of the application will cause harmful 
                        interference to the existing LPFM station.
                    ``(C) Remedies for interference.--In the event the 
                grant of an application described in subparagraph (B) 
                does, in fact, cause harmful interference, the existing 
                LPFM station shall enjoy the same expedited procedures 
                to resolve interference complaints as existing, 
                unmodified full power FM stations enjoy against LPFM 
                stations.
                    ``(D) Local origination as prerequisite.--
                Subparagraph (B) shall only apply to LPFM stations 
                producing and broadcasting at least 8 hours of locally 
                originated programming per day.
            ``(7) Anti-trafficking provisions.--
                    ``(A) Future voluntary transfers prohibited.--After 
                the date of enactment of Enhance and Protect Local 
                Community Radio Act of 2005, the Commission shall not 
                allow any construction permit for a FM translator or FM 
                booster station to be voluntarily transferred from one 
                entity to another entity.
                    ``(B) Treatment of pending permits.--If a 
                construction permit for a FM translator or FM booster 
                station has been voluntarily transferred from one 
                entity to another entity prior to the date of enactment 
                of Enhance and Protect Local Community Radio Act of 
                2005, but the Commission has not yet granted a license 
                to operate such station, the Commission--
                            ``(i) shall require the holder of the 
                        construction permit to demonstrate that 
                        purchase of the construction permit did not 
                        convey an unjust enrichment to the original 
                        holder of the construction permit, or to any 
                        subsequent holder of the construction permit 
                        prior to request to operate;
                            ``(ii) shall require the holder of the 
                        construction permit to demonstrate that 
                        granting the right to operate the facility will 
                        not convey an unjust enrichment to the current 
                        holder of the construction permit or any prior 
                        holder of the construction permit;
                            ``(iii) shall determine separately that 
                        granting the license serves the public 
                        interest;
                            ``(iv) in making such public interest 
                        determination, shall not consider either the 
                        cost to the current holder for construction of 
                        the facility or the price the current holder 
                        paid for the construction permit; and
                            ``(v) shall approve such a license only by 
                        action of the full Commission, not at the media 
                        bureau level.
                    ``(C) Cancellation.--In the event the Commission 
                determines that purchase of the construction permit 
                created an unjust enrichment, or that an unjust 
                enrichment would result from grant of the license to 
                operate, or that grant of the license would not serve 
                the public interest, the Commission shall cancel the 
                construction permit.
            ``(8) Definition.--For purposes of this subsection, the 
        term `LPFM station' means a low-power FM station.''.
                                 <all>