[Federal Register Volume 66, Number 91 (Thursday, May 10, 2001)]
[Rules and Regulations]
[Pages 23861-23863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11763]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR PART 73

[MM Docket No. 99-25; FCC 01-100]


Creation of a Low Power Radio Service

AGENCY: Federal Communications Commission

ACTION: Final rule.

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SUMMARY: This document amends our Low Power Radio Service (``LPFM'') 
regulations to implement section 632(a) of the ``Making Appropriations 
for the Government of the District of Columbia for FY 2001'' Act (the 
``Act''). Specifically, the Second Report and Order codifies the Act's 
requirements that the Commission prescribe LPFM station third adjacent 
channel interference protection standards and prohibit the grant of an 
LPFM station license if the applicant has engaged in the unlicensed 
operation of a station in violation of section 301 of the 
Communications Act of 1934, as amended. This document also defines the 
scope of permissible minor amendments that may be filed by LPFM 
applicants outside window filing periods.

DATES: Effective June 11, 2001.

FOR FURTHER INFORMATION CONTACT: Peter Doyle, Federal Communications 
Commission, Mass Media Bureau, Audio Services Division, 445 12 Street, 
SW., Washington, DC 20554 (202) 418-2700, Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Second Report and Order, adopted March 22, 2001, and released April 2, 
2001. The complete text of the Second Report and

[[Page 23862]]

Order is available for inspection and copying during normal business 
hours in the FCC Reference Center (Room CY-A257), 445 12 Street, SW., 
Washington, DC, and also may be purchased from the Commission's copy 
contractor, International Transcription Service, (202) 857-3800, 1231 
20th Street, NW., Washington, DC 20036. The Commission believes that 
these actions are exempt from the notice and comment requirements of 
section 553 of the Administrative Procedure Act, and that the minor 
amendment rule is a rule of procedure to which notice and comment 
requirements are inapplicable.

Synopsis of Order

    1. With this Second Report and Order, the Commission implements the 
Act's requirement that the Commission prescribe LPFM station third 
adjacent channel interference protection standards. We accomplish this 
requirement by including in our rules minimum distance separations 
which LPFM applicants must meet with respect to full power FM and FM 
translator stations on third adjacent channels. We also, in accordance 
with the Act, prohibit any applicant from obtaining an LPFM station 
license if the applicant has engaged in the unlicensed operation of a 
station in violation of section 301 of the Communications Act of 1934, 
as amended.
    2. The third adjacent channel protection standards affect 652 
otherwise technically acceptable LPFM applications that were filed in 
the first two LPFM filing windows, rendering them short-spaced to 
existing full power FM and/or FM translator stations operating on third 
adjacent channels. Under well-established processing policies, only 
minor amendments may be filed outside the window period. Although the 
LPFM rules define the permissible scope of minor changes in authorized 
facilities, they do not define the scope of minor amendments to pending 
applications, an issue now critical to the large group of newly short-
spaced applicants. The Second Report and Order adds new rule 
Sec. 73.871 to permit LP100 applicants to file minor change technical 
amendments for site relocations of less than two kilometers and to 
permit LP10 applicants to file minor change technical amendments for 
site relocations of less than one kilometer. Section 73.871 will permit 
the filing after the close of the pertinent filing window of non-
technical minor amendments that do not improve an applicant's 
comparative position. Amendments adversely affecting an applicant's 
comparative position will be accepted and considered as part of the 
mutually exclusive application selection procedures. Ownership 
amendments will be limited to changes where the original parties to an 
application retain more than a fifty percent ownership interest in the 
application as originally filed.
    3. Applications impacted by the new third adjacent channel spacing 
requirements are listed in Appendices A and B of the Second Report and 
Order. Appendix A lists those applications which involve short spacings 
of less than two kilometers. These applicants may be able to file minor 
amendments to eliminate the prohibited short spacings. The staff is 
prepared to assist, if requested, each of these applicants to determine 
whether a feasible site exists which would meet both the Commission's 
distance separation requirements and the applicant's service needs. 
Curative minor amendments (site relocations of less than two 
kilometers) must be filed within thirty days of the publication of this 
Summary in the Federal Register. Appendix B lists those applications 
that have third adjacent short spacings of two or more kilometers. 
These cannot be cured by permissible minor amendments filed outside an 
LPFM window. The Commission therefore directs the staff to open an 
additional remedial filing window following the completion of the 
currently scheduled window process for those applicants listed in 
Appendices A and B. We will retain these applications in pending 
status. The remedial filing window will provide these applications with 
the opportunity to submit major amendments specifying technical 
facilities that meet the new spacing requirements.
    4. Appendix C of the Second Report and Order lists those LPFM 
applications that stated that either the applicant and/or any party to 
the application engaged in the unlicensed operation of any station in 
violation of section 301 of the Communications Act of 1934, as amended. 
Prior to the Second Report and Order, the Commission's rules permitted 
the grant of an LPFM station application if the party engaged in 
illegal broadcast operations but certified that it ceased such 
unlicensed operations within 24 hours of a Commission directive to do 
so or, in the alternative, that it voluntarily ceased engaging in such 
operations if no directive was issued no later than February 26, 1999. 
The Second Report and Order modifies Sec. 73.854 of the LPFM rules and 
instructs the staff to modify FCC Form 318 to conform the statutory 
language prohibiting any applicant from obtaining an LPFM license if 
the applicant engaged in any manner in the unlicensed operation of any 
station in violation of section 301 of the Communications Act of 1934, 
as amended. All applications responding ``No'' to FCC Form 318, Section 
III, Question 8(a) will be dismissed.
    5. The Commission does not believe that the notice and comment 
requirements of section 553 of the Administrative Procedure Act 
(``APA'') apply to the rule revisions adopted herein. We find that the 
amendments of the interference protection and unlicensed operations 
rules are exempt from notice and comment under the APA's ``good cause'' 
exemption. The third adjacent channel protection requirements adopted 
were proposed in the LPFM NPRM, are consistent with current full power 
FM station third adjacent channel protection levels, and implement a 
Congressional requirement. Amendment of the unlicensed operation rule 
is a non-discretionary action codifying a Congressional requirement. 
The minor amendment rule is one of procedure to which notice and 
comment requirements are inapplicable.

Supplemental Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (``RFA'') \1\ requires that an 
agency prepare a regulatory flexibility analysis for notice-and-comment 
rulemaking proceedings. In the Notice of Proposed Rulemaking, Report 
and Order, and Memorandum Opinion and Order, the Commission included, 
respectively, an Initial Regulatory Flexibility Analysis, Final 
Regulatory Flexibility Analysis, and Supplemental Final Regulatory 
Flexibility Analysis. Creation of Low Power Radio Service, MM Docket 
No. 99-25, Notice of Proposed Rule Making, 64 FR 7577 (February 16, 
1999), 14 FCC Rcd 2471 (1999); Report and Order, 65 FR 7616 (February 
15, 2000), 15 FCC Rcd 2205 (2000); Memorandum Opinion and Order, 65 FR 
67289 (November 9, 2000), __ FCC Rcd __ (2000). In this Order, however, 
the rule changes adopted on our own motion in response to the Act's 
mandate do not require a regulatory flexibility analysis.
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601, has been 
amended by the Contract with America Advancement Act of 1996, Public 
Law No. 104-121, 110 Stat. 847 (1996) (``CWAAA''). Title II of the 
CWAAA is the Small Business Regulatory Enforcement Fairness Act of 
1996 (``SBREFA'').
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Minimizing Impact on Small Business LPFM Applicants

    LP100 and LP10 stations will be noncommercial, educational 
stations, and so will not compete with small

[[Page 23863]]

business commercial broadcasters for advertising revenue.

Need For and Objectives of the Memorandum Opinion and Order

    In the Report and Order, the Commission established technical 
standards based on minimum distance requirements to co-channel, first 
and second-adjacent channel, and IF channel spacings to full power FM 
and FM translator stations, and co-channel and first adjacent channel 
spacings to other LPFM stations. The Report and Order also provided to 
a limited extent that applicants previously engaging in unlicensed 
operations in violation of section 301 of the Communications Act of 
1934, as amended, would be able to receive grant of their applications. 
The Act modifies the Commission's prior approach, requiring that the 
LPFM rules be expanded to provide protection to third adjacent channel 
full power FM and FM translator stations and that the rules be modified 
to reject any relief to applicants previously in violation of the 
unlicensed station provisions of section 301 of the Communications Act.

Significant Alternative Considered

    The Commission considered an alternative to its rule governing the 
amendment of pending LPFM applications that such applicants be 
permitted to amend their technical proposals to specify a different 
channel that might resolve conflicts with co and first adjacent channel 
LPFM new station applications filed in the same filing window. This 
alternative was rejected in the interest of administrative orderliness. 
The expeditious processing of the hundreds of applications filed in the 
initial LPFM windows requires a relatively fixed database of technical 
proposals. Providing the opportunity to amend to different channels 
after the close of a window makes staff determinations of mutual 
exclusivity and the administration of the selection procedure for these 
applications inherently subject to duplicative reevaluations.

Report to Congress

    The Commission will send a copy of the Second Report and Order to 
Congress pursuant to the Congressional Review Act. See 5 U.S.C. 
801(a)(1)(A). In addition, the Commission will send a copy of this 
Second Report and Order, to the Chief Counsel for Advocacy of the Small 
Business Administration. A copy of the Second Order and Order (or 
summary thereof) will also be published in the Federal Register 
pursuant to 5 U.S.C. 604(b).

List of Subjects in 47 CFR Parts 73

    Radio broadcasting.

Federal Communications Commission
Magalie Roman Salas,
Secretary.

Regulatory Text

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICES

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

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


    2. Section 73.807 is amended by revising the last sentence in the 
introductory text as set forth and by revising the fourth column 
headings of the tables in paragraphs (a), (b), (c), and (d) which 
previously read ``Second-adjacent channel minimum separation (km) 
required'' to read ``Second- and third-adjacent channel minimum 
separation (km) required.''


Sec. 73.807  Minimum distance separation between stations.

    * * * For second- and third-adjacent channels and IF channels, the 
required minimum distance separation is sufficient to avoid 
interference received from other stations.
* * * * *

    3. Section 73.854 is revised to read as follows:


Sec. 73.854  Unlicensed operations.

    No application for an LPFM station may be granted unless the 
applicant certifies, under penalty of perjury, that neither the 
applicant, nor any party to the application, has engaged in any manner 
including individually or with persons, groups, organizations or other 
entities, in the unlicensed operation of any station in violation of 
Section 301 of the Communications Act of 1934, as amended, 47 U.S.C. 
301.

    4. Add Sec. 73.871 to subpart G to read as follows:


Sec. 73.871  Amendment of LPFM broadcast station applications.

    (a) New and major change applications may be amended without 
limitation during the pertinent filing window.
    (b) Amendments that would improve the comparative position of new 
and major change applications will not be accepted after the close of 
the pertinent filing window.
    (c) Only minor amendments to new and major change applications will 
be accepted after the close of the pertinent filing window. Subject to 
the provisions of this section, such amendments may be filed as a 
matter of right by the date specified in the FCC's Public Notice 
announcing the acceptance of such applications. For the purposes of 
this section, minor amendments are limited to:
    (1) Site relocations of less than one kilometer for LP10 stations;
    (2) Site relocations of less than two kilometers for LP100 
stations;
    (3) Changes in ownership where the original party or parties to an 
application retain more than a 50 percent ownership interest in the 
application as originally filed; and
    (4) Other changes in general and/or legal information.
    (d) Unauthorized or untimely amendments are subject to return by 
the FCC's staff without consideration.

[FR Doc. 01-11763 Filed 5-9-01; 8:45 am]
BILLING CODE 6712-01-P