Short title

This Act may be cited as the

Enhance and Protect Local Community Radio Act of 2005

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.

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.

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.