[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Proposed Rules]
[Pages 39217-39227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13369]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 99-25; FCC 05-75]


Creation of a Low Power Radio Service

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on ownership 
and eligibility issues related to low power FM (LPFM) authorizations, 
including: whether LPFM authorizations should be transferable and, if 
so, whether transferability should be broadly permitted or limited to 
special circumstances; whether to extend the deadline for submission of 
a time-share proposal after a mutually exclusive group of LPFM 
applicants is announced; whether to permit renewal of licenses granted 
under involuntary time-sharing, successive license term procedures; 
whether to permanently restrict ownership of LPFM stations to local 
entities; and whether to permanently prohibit multiple ownership of 
LPFM stations. The Commission also seeks comment on technical issues 
related to LPFM authorizations, including: whether to extend the LPFM 
construction period to 36 months; whether to allow applicants 
submitting a time-share proposal to relocate the transmitter to a 
central location, notwithstanding the site relocation limits for minor 
amendments; whether and, if so, under what conditions LPFM applications 
should be treated as having ``primary'' status with respect to prior-
filed FM translator applications and existing FM translator stations; 
and whether an LPFM station should be permitted to continue to operate 
even when interference is predicted to occur within the 70 dBu contour 
of a subsequently-authorized second- or third-adjacent channel full 
service FM station.

DATES: Comments must be filed on or before August 8, 2005, and reply 
comments must be filed on or before August 22, 2005. Written comments 
on the proposed information collection requirements contained in the 
document must be submitted by the public, the Office of Management and 
Budget (OMB), and other interested parties on or before September 6, 
2005.

ADDRESSES: You may submit comments, identified by MM Docket No. 99-25, 
by any of the following methods:

[[Page 39218]]

     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Natalie Roisman, [email protected], of the 
Media Bureau, Policy Division, (202) 418-2120. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, contact Cathy 
Williams, Federal Communications Commission, 445 12th St., SW., Room 1-
C823, Washington, DC 20554, or via the Internet to 
[email protected]. If you would like to obtain or view a copy of 
this revised information collection, you may do so by visiting the FCC 
PRA Web page at: http://www.fcc.gov/omd/pra.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Further Notice of Proposed Rulemaking 
(FNPRM) FCC 05-75, adopted on March 16, 2005, and released on March 17, 
2005. The full text of this document is available for public inspection 
and copying during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 12th Street, SW., CY-A257, 
Washington, DC 20554. These documents will also be available via ECFS 
(http://www.fcc.gov/cgb/ecfs/). (Documents will be available 
electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete 
text may be purchased from the Commission's copy contractor, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554. To request this 
document in accessible formats (computer diskettes, large print, audio 
recording, and Braille), send an e-mail to [email protected] or call the 
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Initial Paperwork Reduction Act of 1995 Analysis

    This FNPRM contains proposed information collection requirements. 
It will be submitted to the Office of Management and Budget (OMB) for 
review under section 3507(d) of the Paperwork Reduction Act of 1995 
(PRA), Pub. L. 104-13. The Commission, as part of its continuing effort 
to reduce paperwork burdens, invites the general public and OMB to 
comment on the proposed information collection requirements contained 
in this FNPRM, as required by the PRA. Written comments on the PRA 
proposed information collection requirements must be submitted by the 
public, OMB, and other interested parties on or before September 6, 
2005. Comments should address: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology. In 
addition, pursuant to the Small Business Paperwork Relief Act of 2002, 
Pub. L. 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.''

    OMB Control Number: 3060-0031.
    Title: Application for Consent to Assignment of Broadcast Station 
Construction Permit or License; Application for Consent to Transfer 
Control of Entity Holding Broadcast Station Construction Permit or 
License; Section 73.3580, Local Public Notice of Filing of Broadcast 
Applications.
    Form Number: FCC Form 314 and FCC Form 315.
    Type of Review: Revision of a currently approved collection.
    Respondents: Business or other for-profit entities; not-for-profit 
institutions.
    Number of Respondents: 4,510.
    Frequency of Response: On occasion reporting requirement; third 
party disclosure requirement.
    Estimated Time Per Response: 1 hour to 6 hours.
    Total Annual Burden: 15,890 hours.
    Total Annual Costs: $33,349,150.
    Privacy Impact Assessment: No impact(s).
    Needs and Uses: On March 16, 2005 the Commission adopted a 2nd 
Order on Reconsideration and Further Notice of Proposed Rulemaking 
(FNRPM), In the Matter of the Creation of a Low Power Radio Service, MM 
Docket No. 99-25, FCC 05-75. The FNPRM proposes to permit the transfer 
and/or assignment of Low Power FM (LPFM) authorizations.
    FCC Forms 314 and 315 have been revised to encompass the assignment 
of LPFM authorizations, as proposed in the FNPRM, and to reflect the 
ownership and eligibility restrictions applicable to LPFM permittees 
and licensees.
    FCC Form 314 and the applicable exhibits/explanations are required 
to be filed when applying for consent for assignment of an AM, FM, TV 
or Low Power FM (LPFM) broadcast station construction permit or 
license. In addition, the applicant must notify the Commission when an 
approved assignment of a broadcast station construction permit or 
license has been consummated.
    FCC Form 315 and applicable exhibits/explanations are required to 
be filed when applying for transfer of control of an entity holding an 
AM, FM, TV or LPFM broadcast station construction permit or license. In 
addition, the applicant must notify the Commission when an approved 
assignment of a broadcast station construction permit or license has 
been consummated.


    OMB Control Number: 3060-0009.
    Title: Application for Consent to Assignment of Broadcast Station 
Construction Permit or License or Transfer of Control of Corporation 
Holding Broadcast Station Construction Permit or License.
    Form Number: FCC Form 316.
    Type of Review: Revision of a currently approved collection.
    Respondents: Business or other for-profit entities; not-for-profit 
institutions; State, local or tribal government.
    Number of Respondents: 730.
    Frequency of Response: On occasion reporting requirement.
    Estimated Time Per Response: 1-4 hours.
    Total Annual Burden: 775 hours.
    Total Annual Costs: $423,720.
    Privacy Impact Assessment: No impact(s).
    Needs and Uses: On March 16, 2005 the Commission adopted a 2nd 
Order on Reconsideration and Further Notice of Proposed Rulemaking 
(FNRPM), In the Matter of the Creation of a Low Power Radio Service, MM 
Docket No. 99-25, FCC 05-75. The FNPRM proposes to permit the 
assignment or transfer of control of Low Power FM (LPFM) authorizations 
where there is a change in the governing board of the permittee

[[Page 39219]]

or licensee or in other situations analogous to ``pro forma'' 
assignments or transfers of control for other types of broadcast 
authorizations. FCC Form has been revised to encompass the assignment 
and transfer on control of these LPFM authorizations.

    OMB Control Number: 3060-0920.
    Title: Application for Construction Permit for a Low Power FM 
Broadcast Station; Report and Order in MM Docket No. 99-25 Creation of 
Low Power Radio Service.
    Form Number: FCC Form 318.
    Type of Review: Revision of a currently approved collection.
    Respondents: Not-for-profit institutions; State, local or tribal 
government.
    Number of Respondents: 16,422.
    Frequency of Response: Recordkeeping requirement; on occasion 
reporting requirement; third party disclosure requirement.
    Estimated Time Per Response: 15 minutes-12 hours.
    Total Annual Burden: 33,866 hours.
    Total Annual Costs: $23,850.
    Privacy Impact Assessment: No impact(s).
    Needs and Uses: On March 16, 2005 the Commission adopted a 2nd 
Order on Reconsideration and Further Notice of Proposed Rulemaking 
(FNRPM), In the Matter of the Creation of a Low Power Radio Service, MM 
Docket No. 99-25, FCC 05-75. The FNPRM proposes to amend 47 CFR 73.870 
and 73.871 to permit voluntary time-share applicants to relocate an 
LPFM transmitter to a central location by filing amendments to their 
pending FCC Form 318 applications.
    FCC Form 318 is required to: (1) apply for a construction permit 
for a new LPFM station, (2) to make changes in the existing facilities 
of such a station or (3) to amend a pending FCC Form 318 application.

Summary of the Further Notice of Proposed Rulemaking

I. Introduction

    1. In January 2000, the Commission adopted a Report and Order 
establishing the low power FM (LPFM) service, Creation of Low Power 
Radio Service, 65 FR 7616, February 15, 2000. The Commission authorized 
the LPFM service to provide opportunities for new voices to be heard, 
while at the same time maintaining the integrity of existing FM radio 
service and preserving its ability to transition to a digital 
transmission mode. In the Report and Order, the Commission authorized 
two classes of LPFM service: The LP100 class, consisting of stations 
with a maximum power of 100 watts effective radiated power (ERP) at 30 
meters antenna height above average terrain (HAAT), providing an FM 
service radius (1 mV/m or 60 dBu) of approximately 3.5 miles (5.6 
kilometers), and the LP10 class, consisting of stations with a maximum 
power of 10 watts ERP at 30 meters HAAT, providing an FM service radius 
of approximately one to two miles (1.6 to 3.2 kilometers). The Report 
and Order also imposed separation requirements for LPFM with respect to 
full power stations.
    2. In the Report and Order, the Commission also established 
ownership and eligibility rules for the LPFM service. The Commission 
restricted LPFM service to noncommercial educational (NCE) operation by 
non-profit entities and public safety radio services. With certain 
narrow exceptions, the Commission restricted ownership to entities with 
no attributable interest in any other broadcast station or other media 
subject to our ownership rules. The Commission prohibited the sale or 
transfer of an LPFM station. For the first two years of the LPFM 
service, the Commission prohibited multiple ownership of LPFM stations 
and limited ownership to locally-based entities. To resolve mutually 
exclusive applications, the Commission established a point system that 
favors local ownership and locally-originated programming, with time-
sharing and successive license terms as tie-breakers.
    3. The Report and Order directed the Mass Media Bureau to announce 
by public notice the opening of a national filing window for LP100 
applications. In March 2000, the Mass Media Bureau announced that it 
would accept LPFM applications in five separate filing windows, each 
limited to an application group of ten states and at least one other 
U.S. jurisdiction, in order to ``ensure the expeditious implementation 
of the LPFM service and to promote the efficient use of Commission 
resources.'' See FCC Announces Five-Stage National Filing Window for 
Low Power FM Broadcast Station Applications, DA 00-621 (MMB rel. Mar. 
17, 2000). The Commission conducted a lottery to determine the order of 
the application groups, and the Mass Media Bureau announced that the 
first LPFM filing window would open on May 30, 2000. Subsequent filing 
windows opened on August 28, 2000, January 16, 2001, and June 11, 2001. 
The fourth and fifth LPFM application groups were consolidated into a 
single window in order to speed the filing process for applicants in 
these states.
    4. On reconsideration in September 2000, the Commission issued some 
revisions and clarifications, but generally affirmed the decisions 
reached in the Report and Order. See 65 FR 67289, November 9, 2000. The 
Making Appropriations for the Government of the District of Columbia 
for FY 2001 Act (2001 DC Appropriations Act), Pub. L. 106-553 632, 
required the Commission to modify its rules to prescribe LPFM station 
third-adjacent channel spacing standards and to prohibit any applicant 
from obtaining an LPFM station license if the applicant previously had 
engaged in the unlicensed operation of a station. As a result of rule 
revisions adopted pursuant to the 2001 DC Appropriations Act, 
facilities proposed in a number of otherwise technically sufficient 
applications filed in the first two LPFM filing windows became short-
spaced to existing full-power FM and/or FM translator stations, and 
were subsequently dismissed. The 2001 DC Appropriations Act also 
instructed the Commission to conduct an experimental program to 
evaluate whether LPFM stations would interfere with existing FM 
stations if the LPFM stations were not subject to the additional 
channel spacing requirements, and to submit a report to Congress, 
including the Commission's recommendations to Congress regarding 
reduction or elimination of the minimum separations for third-adjacent 
channels. The Commission selected an independent third party, the Mitre 
Corporation (Mitre), to conduct the field tests. On February 19, 2004, 
the Commission staff submitted the required report to Congress and, 
based on the Mitre study, recommended that Congress ``modify the 
statute to eliminate the third-adjacent channel distant separation 
requirements for LPFM stations.''
    5. On February 8, 2005, the Commission held a forum on LPFM. The 
forum was intended to inform the Commission of achievements by LPFM 
stations and the challenges faced as the service marks its fifth year. 
As of March 2005, more than 1,175 LPFM construction permits have been 
granted. Of these 1,175 permits, approximately 590 stations are on the 
air, serving mostly mid-sized and smaller markets.
    6. Since the LPFM service was created, the experiences of LPFM 
applicants, permittees, and licensees have demonstrated that the 
Commission's LPFM rules may need some adjustment in order to ensure 
that the Commission maximize the value of the LPFM service without 
harming the interests of full-power FM stations or other Commission 
licensees. The Commission's actions in this FNPRM,

[[Page 39220]]

based in part on testimony received at the LPFM forum, are designed to 
increase the number of LPFM stations on the air and strengthen the 
viability of those stations that are already operating. The Commission 
seeks comment on a number of technical and ownership issues related to 
LPFM.

II. Further Notice of Proposed Rulemaking

    7. In ex parte meetings and filings and at the recent LPFM forum 
hosted by the Commission, members of the LPFM community have urged the 
Commission to revise certain LPFM rules. Five years after the 
establishment of LPFM, the Commission believes it is now appropriate to 
assess the practical ramifications of the LPFM rules. The Commission 
believes that some of the LPFM community's proposals are appropriate 
for further consideration, and seeks comment on them as discussed 
below.

Ownership and Eligibility

A. Transferability
    8. In the Report and Order, the Commission declined to allow the 
sale of LPFM stations. The Commission determined that a prohibition on 
transfers or assignments of construction permits and licenses for LPFM 
stations would best promote the Commission's interest in ensuring 
spectrum use for low power operations as soon as possible, without the 
delay associated with license speculation. The Commission concluded 
that the goals of the LPFM service would be best met if unused permits 
and licenses were returned to the Commission. 47 CFR 73.865 provides 
that ``[a]n LPFM authorization may not be transferred or assigned 
except for a transfer or assignment that involves: (1) Less than a 
substantial change in ownership or control; or (2) An involuntary 
assignment of license or transfer of control.'' Based on forum 
testimony, ex parte presentations, and requests for waiver of section 
73.865 filed with the Media Bureau's Audio Division, the Commission now 
believes that the rule prohibiting transfer or assignment of LPFM 
construction permits or licenses may be unduly restrictive and may 
hinder, rather than promote, LPFM service. The Commission therefore 
seeks comment on whether to permit the transfer and/or assignment of 
LPFM authorizations and, if so, whether transfer or assignment should 
be broadly permitted or limited to special circumstances. The 
Commission also seeks comment on the effect, if any, of a change in 
transferability with respect to ownership amendments to pending LPFM 
new and major change applications.
    9. First, the Commission seeks comment on whether to amend its 
rules to permit the transfer of control of LPFM licensee entities. If 
the Commission permits the transfer of control of LPFM licensees, 
should any restrictions be imposed on such transfers, beyond the 
requirement that the licensee entity continue to meet the LPFM 
eligibility criteria? The Commission seek comment regarding the types 
of organizational structures utilized by LPFM licensees and how 
transfers of control of LPFM licensees, if permitted, would be 
effectuated. For example, are LPFM licensees likely to undergo 
transfers of control by virtue of changes in governing boards, shifting 
composition of membership bodies, acquisition of a licensee by another 
organization, or other means? Because the question has been raised 
frequently on the record, the Commission seeks comment more 
specifically on whether and how to amend our rules to permit the 
transfer of control of an LPFM licensee in the case of a sudden change 
in the majority of a governing board. On reconsideration in 2000, the 
Commission clarified that the gradual change of a governing board or 
membership body to the point that a majority of its members are new 
since the authorization was granted will not, by itself, constitute a 
prohibited transfer of control. The Commission's rules, however, do not 
permit a sudden change in the board or membership of an LPFM licensee, 
which would constitute an impermissible transfer of control. Several 
panelists at the recent LPFM forum testified that this restriction 
causes unnecessary complications for LPFM licensees. The Media Access 
Project (MAP) has requested that the Commission modify its rules so 
that typical board changes on a non-profit board will be permissible 
under the Commission's rules. Prometheus Radio Project (Prometheus) 
argues that if the LPFM service is to be accessible to community 
groups, its regulations must take into account that changes in 
governing boards are part of the nature of existence of such groups. 
Based on the record, the Commission proposes to amend its rules to 
permit changes of more than 50 percent of the membership of governing 
boards that occur suddenly, in addition to the gradual board changes 
that are currently permitted under the rules. The Commission seeks 
comment on this proposal.
    10. Similarly, the Commission seeks comment on whether to amend the 
rules to permit the assignment of LPFM authorizations from the licensee 
to another entity. If LPFM authorizations may be assigned and control 
of LPFM licensees may be transferred, should the Commission allow 
consideration for these transactions? In short, should the Commission 
permit the sale of LPFM stations? If so, should the Commission 
establish a holding period during which a station may not be sold at 
all, or may not be sold for more than the licensee's legitimate and 
prudent expenses? The Commission seeks comment below on whether to 
permanently restrict eligibility for LPFM authorizations to local 
entities and/or permanently prohibit multiple ownership of LPFM 
stations and how any actions in that regard should affect assignments 
and transfers.
    11. Finally, assuming that the Commission amends the rules to 
permit transfer and/or assignment of LPFM authorizations, what 
procedures should be implemented to ensure the integrity of the process 
and the promotion of local service? Can general guidelines be 
established for the transfer of control or assignment of LPFM stations, 
or should the Commission delegate to the Media Bureau authority to 
review proposed transfers and assignments on a case-by-case basis? In 
particular, the Commission seeks comment on the process by which LPFM 
permittees and licensees may request approval for or report transfers 
of control. For LPFM licensees with a traditional corporate 
organizational structure, should the Commission apply the rules 
governing transfers of control of stock corporations? (With respect to 
traditional corporations, the Commission has developed general 
guidelines for determining where control resides, what constitutes a 
transfer of control, and how permittees and licensees may seek approval 
of such transfers). Given the non-profit nature of LPFM licensees, it 
is likely that many LPFM authorizations are held by non-stock 
corporations. The Commission has never formally adopted a policy 
setting forth a clear standard for transfers of control by non-stock 
corporations. In 1989, the Commission issued a notice of inquiry (NOI) 
regarding transfers of non-stock corporations, but the proceeding did 
not reach the rulemaking stage. Nevertheless, this notice of inquiry 
may provide helpful guidance in establishing the process by which the 
Commission will consider transfers of control of LPFM licensees, if 
such transfers are permitted. In the NOI, the Commission proposed that 
gradual changes in the governing boards of membership

[[Page 39221]]

organizations and governmental entities--even if the changes ultimately 
resulted in the replacement of a majority of the original board 
members--would not be considered transfers of control within the 
meaning of the Act, and would need to be reported only as appropriate 
on the licensee's ownership reports. This approach is consistent with 
the Commission's clarification regarding LPFM stations on 
reconsideration in 2000. Under the proposal in the NOI, a sudden change 
in a majority of the governing board of a membership organization or 
governmental entity would be considered an insubstantial transfer of 
control, subject to a modified ``short form'' consent procedure, 
including the filing of an FCC Form 316. The Commission seeks comment 
on whether to adopt a similar approach for changes in governing boards 
of LPFM licensees that are non-stock entities.
    12. As discussed in detail above, the current rule prohibiting the 
transfer of LPFM stations is hampering the LPFM service by, for 
example, impeding routine transitions to new governing boards and 
limiting the ability of an LPFM licensee to assign its license to a 
new, jointly-controlled entity composed of several similarly focused 
organizations. Introducing some level of transferability to the LPFM 
service is critical, and delaying relief to LPFM stations until this 
proceeding is completed will not serve the public interest. 
Accordingly, the Commission delegates to the Media Bureau authority to 
consider, on a case-by-case basis, requests for waivers of 47 CFR 
73.865. The Media Bureau may grant a waiver upon determination that 
such waiver will maximize spectrum use for low power FM operations. For 
example, waiver may be appropriate, assuming the public interest would 
be served, in certain circumstances: a sudden change in the majority of 
a governing board with no change in the organization's mission; 
development of a partnership or cooperative effort between local 
community groups, one of which is the licensee; and transfer to another 
local entity upon the inability of the current licensee to continue 
operations. This is not an exhaustive list of circumstances appropriate 
for waiver. However, until the Commission has further considered the 
transferability issue, waiver is not appropriate to permit the for-
profit sale of an LPFM station to any entity or the transfer of an LPFM 
station to a non-local entity or an entity that owns another LPFM 
station.
B. Ownership and Eligibility Limitations
    13. In the Report and Order, the Commission placed certain 
restrictions on LPFM ownership for the first two years after the 
opening of the first filing window for the LPFM service. First, for the 
first two years, no entity may own more than one LPFM station. After 
the first two years, one entity may own up to five stations nationally, 
and after the first three years, an entity may own up to ten stations 
nationwide. No entity may own more than 10 LPFM stations. Second, for 
the initial and subsequent windows opened within two years of the first 
filing window for LPFM, all LPFM applicants were required to be based 
within 10 miles of the station they sought to operate. Beginning two 
years after the first window for LPFM service opened, non-local 
applicants were eligible to apply for LPFM stations. UCC requests that 
the Commission permanently prohibit multiple ownership and either 
permanently restrict eligibility to local entities or extend the 
restriction for an additional period of time.
    14. The Commission adopted these rules in order to foster diversity 
and to maximize the opportunities for applicants to obtain LPFM 
authorizations by disallowing any common ownership of LPFM stations 
during the start-up of the service. After the start-up phase was over, 
however, the Commission allowed the accumulation of additional stations 
where local applicants had not applied. The Commission stated in the 
Report and Order that, in addition to ensuring the fullest use of LPFM 
spectrum in the long term, this approach would balance the interests of 
local entities, whom the Commission expected to be the first entrants 
in the service, and national NCE entities, which the Commission 
anticipated would be interested in additional local outlets to increase 
their reach and achieve certain efficiencies of operation. Our 
intention was to make it more likely that local entities would operate 
this service, but to ensure that if no local entities came forward, the 
available spectrum would not go unused. On reconsideration, the 
Commission considered a request from UCC to extend the two-year time 
periods for the community-based requirement and the national cap, and 
concluded that the Report and Order struck an appropriate balance 
between the interests of local groups and the Commission's interest in 
ensuring that the LPFM service is used fully. Accordingly, the 
Commission declined to modify these rules at that time.
    15. Now that more than two years has passed since the first set of 
LPFM filing windows, the Commission seeks comment regarding whether to 
amend the rules to reinstate for a period of time or make permanent the 
restrictions regarding local entities and multiple ownership. Would a 
continued limitation on multiple ownership foster diversity of 
programming and viewpoint or would it prevent LPFM licensees from 
achieving economies of scale? Does an eligibility restriction for local 
entities ensure local service for listeners or might it result in some 
communities losing LPFM service because no local entity seeks to 
provide it? Should the Commission permanently restrict eligibility to 
local entities but grant a waiver of such restriction in cases in which 
the applicant can demonstrate that no local entity has sought to 
provide service? The Commission further seeks comment regarding the 
relationship between any such restrictions and our consideration 
regarding transferability of LPFM stations. Specifically, if the 
Commission makes permanent the local entity eligibility restriction and 
the prohibition on multiple ownership, how should such limitations be 
considered in the context of applications for assignment or transfer of 
control of LPFM stations, discussed above?
C. Time-Sharing
    16. In the Report and Order, the Commission established a point 
system for resolving mutual exclusivity among LPFM applicants. If 
mutually exclusive applicants have the same point total, any two or 
more of the tied applicants may propose to share use of the frequency 
by submitting a time-share proposal within 30 days of the release of a 
public notice announcing the tie. Such proposals are treated as 
amendments to the time-share proponents' applications and become part 
of the terms of the station's license. MAP asserts that because LPFM 
applicants have few resources, the 30-day deadline for the submission 
of a time-share proposal is too short. MAP has requested that the 
Commission extend the submission deadline to 90 days from the date a 
mutually exclusive group is announced. The Commission agrees that 30 
days may not afford sufficient time for two or more small organizations 
to commence and complete negotiations and prepare a time-share proposal 
for the Commission's consideration. Accordingly, the Commission 
proposes to extend the period to 90 days and seeks comment on this 
proposal.

[[Page 39222]]

    17. If a tie among mutually exclusive applications is not resolved 
through time-sharing, the tied applications are reviewed for 
acceptability and applicants with tied, grantable applications are 
eligible for equal, successive, non-renewable license terms of no less 
than one year each for a total combined term of eight years. In the 
Report and Order, although LP100 and LP10 licensees were provided with 
the same license terms and renewal expectancy as full-power FM radio 
stations, the Commission determined not to extend a renewal expectancy 
to licenses granted under these final tie-breaker procedures. The 
Commission now believes that the public interest would be better served 
by permitting the renewal of viable time-share arrangements, rather 
than subjecting operating stations to the uncertainty of window filing 
schedules and the risks of the LPFM comparative process. Accordingly, 
the Commission tentatively proposes to permit the renewal of licenses 
granted under involuntary time-sharing successive license term 
procedures. The Commission seeks comment on this proposal and the means 
of implementing such renewal expectancy. Should licenses be renewed in 
the same order as they are granted, i.e., the sequence in which the 
parties file applications for licenses to cover their construction 
permits? Increased flexibility in transferability of LPFM licenses, 
combined with a renewal expectancy, may result in involuntary time-
sharing licensees modifying their time-sharing arrangements prior to 
seeking renewal. The Commission seeks comment on how best to 
accommodate such developments in the renewal process.

Technical Rules

A. Construction Period
    18. In the Report and Order, the Commission established an 18-month 
construction period for both LP10 and LP100 services. The Commission 
believed that most permittees would be able to and would have 
sufficient incentive to construct their low power stations in a much 
shorter time period than other broadcast permittees, given the relative 
technical simplicity of such stations. The Commission recognized, 
however, that zoning and permitting processes could, in some cases, 
delay construction. Accordingly, the Commission afforded permittees 18 
months to construct, and stated that the 18-month deadline would be 
strictly enforced. The Commission is aware that some LPFM permittees 
have met the construction deadline only with great difficulty, and that 
some have been unable to complete construction within the 18-month 
period. MAP has requested that the Commission waive or extend 
construction deadlines to avoid forfeit of LPFM construction permits 
for failure to construct. However, the Commission's current policy 
regarding all broadcast station construction deadlines is to extend 
such deadlines only in extremely limited situations that dictate the 
tolling of the construction period: Acts of God; administrative or 
judicial review of a construction permit grant; failure of a 
Commission-imposed condition precedent on the permit; or judicial 
action related to necessary local, state, or federal requirements. See 
47 CFR 73.3598. Thus, although some LPFM permittees may face delays 
that are outside of their control, if such delays do not qualify under 
the tolling rules, a permittee must either complete construction or 
forfeit the permit. The policy regarding extension of broadcast station 
construction deadlines generally serves the public interest. The 
Commission recognizes, however, that the LPFM 18-month construction 
period may be too short in some cases. The Commission's intention is to 
maximize the likelihood that LPFM permittees will get on the air. 
Accordingly, the Commission proposes to extend the LPFM construction 
period to three years, the same period afforded other broadcast 
permittees, and seeks comment on this proposal.
    19. Some LPFM construction permits are scheduled to expire in the 
near future, while the Commission is considering this issue, and other 
LPFM permittees with expired permits have requests pending before the 
Media Bureau for additional time to construct. The Commission adopts an 
interim waiver policy to increase the likelihood that these permittees 
will complete construction and commence operation. Although the rules 
do not generally permit waiver of broadcast construction permit 
deadlines, all other broadcast permittees are afforded 36 months to 
construct facilities. See 47 CFR 73.3598. Here, where the construction 
period is half as long, the Commission finds that waivers generally are 
warranted to extend outstanding LPFM construction permits to three 
years. Pending Commission action on this FNPRM, the Commission 
delegates to the Media Bureau the authority to consider requests for 
waiver of the construction period even if the requirements under the 
tolling rules are not met. The Media Bureau may determine that a waiver 
is appropriate if an LPFM permittee demonstrates that it cannot 
complete construction within the allotted 18 months for reasons beyond 
its control, that it reasonably expects to be able to complete 
construction within the additional 18 months that the construction 
extension would provide, and that the public interest would be served 
by the extension.
B. Technical Amendments
    20. In the Order on Reconsideration accompanying this FNPRM, the 
Commission amends 47 CFR 73.871 to permit greater flexibility for 
applicants to file minor amendments to relocate transmitter sites. 
However, the amended rule will continue to preclude time-sharing 
applicants from relocating the transmitter to a central location, 
unless such location falls within the new distance limits. UCC has 
requested that the Commission amend its rules to allow applicants that 
submit a time-share agreement to relocate the transmitter to a central 
location, provided one is available in the channel finder. The 
Commission agrees that increasing flexibility for time-sharing 
applicants to relocate the transmitter will facilitate time-share 
arrangements and expedite grant of LPFM licenses. Accordingly, the 
Commission proposes to permit applicants that submit a time-sharing 
proposal to file a minor amendment proposing to relocate the 
transmitter to a central location, notwithstanding the site relocation 
limits set forth in 47 CFR 73.871, and seeks comment on this proposal.
C. Interference Protection Requirements
    21. As part of the overall plan to protect FM stations from 
interference from new LPFM stations, the Report and Order adopted 
minimum distance separation requirements for LPFM stations. The 
Commission concluded that minimum spacing rules would provide the most 
efficient means to process a large number of applications while 
ensuring the overall technical integrity of the FM service. Because FM 
translator and booster stations generally do not have specific class 
limitations, LPFM-FM translator separation requirements were determined 
by analyzing the 60 dBu contours of authorized translator stations and 
grouping them into three cohorts based on station power and height. The 
Report and Order also amended certain part 74 rules to require that FM 
translator and booster stations protect the 60 dBu contour of LP100 
stations. On reconsideration, the Commission stated that the 
interference protections ``place LPFM stations and FM translators on 
essentially equal footing'' with respect

[[Page 39223]]

to protecting each other from interference. However, Commission policy 
treats translators as a secondary service and a ``proper role of FM 
translators among aural services to the public is to provide secondary 
service to areas in which direct reception of signals from FM broadcast 
stations is unsatisfactory due to distance or intervening terrain 
obstructions.'' The Commission declined on reconsideration to eliminate 
the protections afforded to LP100 stations because such modifications 
would have rendered LPFM stations secondary to translators.
    22. LPFM advocates now request that the Commission reassess the 
relationship between FM translators and LPFM stations for licensing 
purposes. Prometheus argues that because NCE translators may be fed by 
satellite, see 47 CFR 74.1231(b), such translators often are used to 
retransmit distant signals, contrary to the intended purpose of the 
translator service to merely extend the reach of local stations. 
Prometheus contends that every new translator that does not expand the 
reach of a station originating local programming takes the place of a 
potential LPFM station that will originate local programming. In 
particular, Prometheus argues that the Commission's March 2003 filing 
window for translator applications opened in major cities before a full 
LPFM filing window opened, thereby eliminating virtually all 
opportunities for new LPFM stations in top-25 markets. Prometheus also 
claims that translator applications are being filed not by members of 
local communities, but by non-local organizations applying for large 
numbers of translator licenses. To overcome the preclusive impact of 
the 2003 translator window, Prometheus requests that the Commission 
give locally controlled and operated LPFM stations priority over 
translators.
    23. The Commission agrees that it is appropriate to reevaluate the 
current co-equal status of LPFM and FM translator stations as a result 
of the extraordinary volume of FM translator construction permit 
applications--more than 13,000--filed with the Commission during the 
March 2003 filing window. The Media Bureau's Audio Division already has 
granted approximately 3,300 new station construction permit 
applications from the singleton filings, a number nearly equal to the 
total number of FM translator stations licensed and operating prior to 
the filing window. Approximately 8,000 applications remain on file. New 
LPFM station applications must protect each of these authorized 
facilities and pending applications. Because LPFM and FM translator 
stations are licensed under fundamentally different technical rules, it 
is impossible to determine the precise extent to which the 2003 window-
filed FM translator applications have impacted the potential licensing 
of new LPFM stations. In this regard, Prometheus's contention that 
every new translator ``takes the place'' of a potential LPFM station is 
incorrect. Nonetheless, the Commission is confident that these filings 
have had a significant preclusive impact on future LPFM licensing 
opportunities based solely on application volume. This impact is of 
particular concern because the 2000-2001 national LPFM window filing 
process demonstrated that very few opportunities for LPFM stations 
remained in major markets at that time. Moreover, as Prometheus notes, 
many of the translator applications were filed by a relatively small 
number of non-local filers without any apparent connection to the 
communities specified in the applications.
    24. On the other hand, ``translator-based delivery of broadcast 
programming is an important objective,'' and the Commission continues 
to support this objective. Some FM translators provide important aural 
services to unserved and underserved areas. Translators also are used 
to deliver syndicated national programming to well-served communities. 
The Commission's rules impose strict ownership limits on commercial 
translator licensees, see 47 CFR 74.1232(d), and require the use of 
off-air signal delivery systems, see 47 CFR 74.1231(b), for both 
commercial and NCE translators operating in the non-reserved FM band. 
(The March 2003 window was limited to proposals for non-reserved band 
stations, none of which may rebroadcast signals delivered direct to the 
station via satellite; thus, the Commission finds misplaced 
Prometheus's attempt to link the ``problem'' of the 2003 window to the 
satellite delivery rules). These rules generally prohibit a commercial 
FM station from using translators to expand service beyond its 
protected contour. In contrast, an NCE licensee may own and operate 
translators that reach listeners far beyond the service area of its co-
owned primary station. Thus, many NCE licensees use FM translators to 
distribute programming throughout the country. Notwithstanding 
Prometheus's complaint regarding non-local filers in the March 2003 
translator window, this is not a recent development in the FM 
translator service.
    25. In a notice of inquiry in the broadcast localism proceeding, 
the Commission sought comment on how best to harmonize the licensing 
processes for FM translators and LPFM stations to enhance localism. See 
19 FCC Rcd 12425. As the Commission asked, ``[r]ecognizing that both 
LPFM stations and translators provide valuable service, what licensing 
rule changes should the Commission adopt to resolve competing demands 
by stations in these two services for the same limited spectrum?'' The 
Commission seeks comment on whether and, if so, under what conditions 
LPFM applications should be treated as having ``primary'' status to 
prior-filed FM translator applications and authorized FM translator 
stations. Should all LPFM applications have primary status because LPFM 
stations are permitted to originate local programming? Should primary 
status be limited to LPFM applicants that pledge to originate locally 
at least eight hours of programming per day? Should the Commission 
provide ``grandfathered'' protection rights to certain classes of FM 
translators? Possible class designations include currently licensed and 
operating stations; stations licensed prior to the adoption of the 
Report and Order; currently authorized translator stations, including 
the construction permits issued to the 2003 window filers; and/or 
``fill-in'' FM translators but not ``other area'' translator stations. 
Should the Commission dismiss all pending applications for new FM 
translator stations and make potential refilings subject to the 
resolution of the licensing issues raised in this proceeding? Should 
the Commission dismiss the pending mutually exclusive FM translator 
applications? As an interim measure while considering these important 
questions, the Commission directs the Media Bureau to stop granting FM 
translator new station construction permits for which short-form 
applications were filed in the 2003 window. This freeze is effective 
upon the release of this FNPRM and shall remain in effect for six 
months.
    26. In addition to requesting that the Commission grant LPFM 
stations priority with respect to FM translators, some LPFM advocates 
have requested that the Commission adopt more flexible technical 
licensing rules for the LPFM service as a partial remedy to the 
preclusive impact of the FM translator filings and limited LPFM 
spectrum availability in many large and medium-sized communities. 
Specifically, they have requested that LPFM applicants be permitted to 
utilize the contour overlap interference protection approach, rather 
than mileage separations. Adoption of a

[[Page 39224]]

contour overlap approach is statutorily barred at this time. Congress 
has mandated the use of a distance separation methodology to protect FM 
stations from LPFM station interference by directing the Commission to 
prescribe co-, first-, second-, and third-adjacent channel ``minimum 
distance separations'' for LPFM stations. Thus, the Commission may not 
use the fundamentally different contour methodology to license LPFM 
stations.
    27. Even if the Commission were not statutorily prohibited from 
adopting a contour approach, significant policy considerations weigh in 
favor of continuing to license LPFM stations in accordance with the 
minimum distance separation methodology adopted in the Report and 
Order. This protection scheme is modeled on the certain ``go-no go'' 
predicted interference licensing methodology utilized for commercial FM 
stations. Although this methodology is more restrictive than the FM 
translator contour methodology, implementation of LPFM minimum distance 
separation requirements has proven to be simple and reliable, and 
therefore appropriate for the LPFM service. Because adoption of a 
contour methodology would require the preparation of complex and costly 
engineering exhibits, such approach would inevitably result in higher 
application error rates, extended processing time frames, and licensing 
delays. The Media Bureau has processed over 3000 applications from the 
first LPFM window. At this point, it is abundantly clear that many LPFM 
applicants had significant problems successfully preparing basic 
technical showings, completing simplified application forms, and 
responding to staff requests for required amendments. Excluding the 
Congressionally mandated dismissals of applications that failed to 
protect full service stations operating on third-adjacent channels, the 
staff dismissed approximately one-third of all applications for basic 
technical and legal defects. The Commission believes that the more 
complex contour methodology would create even more processing problems. 
In addition, the choice of a distance separation methodology was 
critically important in the Audio Division's development of the 
extremely accessible and successful LPFM channel finder tool utility.
    28. An equally important policy consideration is that an integral 
part of the more flexible translator rules, 47 CFR 74.1203(a), would be 
wholly inappropriate for the LPFM service. Under this rule, an FM 
translator may not cause any actual interference to any authorized 
broadcast station. (In contrast, an LPFM station may continue to 
operate when it would cause interference within the 60 dBu contour, but 
not 70 dBu contour, of a full service FM station; in addition, if an 
LPFM station is predicted to cause interference within a full service 
station's 70 dBu contour, it may continue to operate if it can show 
that actual interference would be unlikely). This rule is a necessary 
complement to the more flexible translator contour rule, essentially 
shifting to translator applicants, permittees, and licensees the risk 
that a translator must go off the air if interference cannot be 
eliminated. The 47 CFR 73.1203(a) interference complaint procedure 
regularly results in the cancellation of FM translator authorizations 
by the Media Bureau. The risks associated with a rule prohibiting any 
interference, such as the rule applicable to translators, far outweigh 
the potential benefit of additional LPFM licensing opportunities that 
use of the contour method might afford. The Commission believes that it 
would be inappropriate to expose community organizations with limited 
funds and little technical and legal sophistication to this kind of 
uncertainty, particularly given the effort invested by organization 
members, station management, and numerous volunteers. Given the high 
level of uncertainty associated with the more flexible translator 
allocation scheme, adoption of this approach for LPFM seems ill-advised 
in light of the interest expressed by many LPFM operators for greater 
``primary'' status and for greater protection against ``encroachments'' 
from new full power stations and facility modifications by existing 
stations.
D. Protection From Subsequently Authorized Full Service FM Stations
    29. Full-service FM stations, including subsequently authorized new 
stations, facility modifications, and upgrades, are not required to 
protect facilities specified in LPFM applications or authorizations. In 
order to provide a measure of stability to operating LPFM stations, 
however, the Commission concluded in the Report and Order that an LPFM 
station generally may continue to operate even if it is predicted to 
cause interference within the protected service contour of a 
subsequently authorized FM service, including new stations and 
facilities modifications or upgrades of existing stations. Under 47 CFR 
73.809, LPFM stations are responsible for resolving all allegations of 
actual interference to the reception of a co-channel or first-, second-
, or third-adjacent channel full service station within the full 
service station's 70 dBu contour. This rule requires an LPFM station to 
cease operations if the LPFM station cannot demonstrate that 
interference is unlikely to occur.
    30. Although to date only one LPFM station has been forced off the 
air pursuant to this procedure, operating LPFM stations have expressed 
concerns about the potential impact of ``encroaching'' full-service 
stations. MAP has requested that the Commission adopt a ``processing 
policy'' that would permit the denial of a full service FM station's 
modification application if ``grant of the application will deny a 
local community content by reducing the coverage area available to LPFM 
stations.'' Such an ad hoc processing policy would afford any degree of 
certainty to operating LPFM stations. Moreover, the Commission 
disagrees with the basic thrust of this proposal, which effectively 
would provide primary status to LPFM stations with respect to 
subsequently filed applications for new or modified full service 
station facilities. As stated in the Report and Order, ``[w]e do not 
believe that an LPFM station should be given an interference protection 
right that would prevent a full-service station from seeking to modify 
its transmission facilities or upgrade to a higher service class. Nor 
should LPFM stations foreclose opportunities to seek new full-service 
radio stations.'' It would be useful, however, to consider whether to 
limit the 47 CFR 73.809 interference procedures to situations involving 
co- and first-adjacent channel predicted interference, where the 
predicted interference areas are substantially greater than for second- 
and third-adjacent channel interference. Although the effective service 
area of an LPFM station could be diminished as a result of a second-or 
third-adjacent channel full service station ``move-in,'' the predicted 
interference area to the full service station would be limited to a 
small area in the immediate vicinity of the LPFM station transmitter 
site. In these circumstances, the public interest may favor continued 
LPFM second- and third-adjacent channel operations over a subsequently 
authorized upgrade or new full service station.
    31. The Commission seeks comment on whether to amend 47 CFR 73.809. 
Should an LPFM station be permitted to continue to operate even when 
interference is predicted to occur within the 70 dBu contour of an 
``encroaching'' second-or third-adjacent channel full service station? 
Should an LPFM station be permitted to remain on the air if the area of 
predicted interference does not

[[Page 39225]]

receive service from the full service station prior to the grant of a 
construction permit for a new station or facilities modification of an 
existing station? Should the LPFM station be permitted to remain on the 
air if the full service station's community of license would not be 
subject to predicted interference? It is always the case that an 
``encroachment'' issue involves the licensing of a subsequently filed 
full service station application. As such, would an amendment to 47 CFR 
73.809 be consistent with Congress's directive barring the reduction of 
third-adjacent channel distance separations for ``low-power FM radio 
stations''?

Filing Windows

    32. The Commission has not announced any upcoming filing windows 
for new or major change LPFM applications. MAP requests that the 
Commission establish ``regular'' filing windows for new LPFM stations. 
Currently, all licensable aural services use some form of a window 
filing process for new stations and for major modifications to 
authorized stations. As a general matter, the Commission agrees that 
windows should be scheduled at reasonable intervals for each of the 
aural services. However, it would be premature to schedule a window for 
the filing of LPFM new station and major modification applications at 
this time. First, it would be inefficient to open a window prior to the 
Commission completing consideration of the FM translator and other 
licensing issues raised in this FNPRM. Second, the Media Bureau has 
recently begun the process of awarding construction permits under the 
new NCE full-service comparative criteria. Following the resolution of 
the approximately 170 ``closed'' NCE groups (consisting of 
approximately 870 applications), the Commission will open a national 
filing window for new NCE stations and for major changes in authorized 
NCE facilities, the first such filing opportunity since April 21, 2000. 
Although the Commission recognizes the critically valuable service that 
LPFM stations can play in serving their communities, this NCE full 
service licensing process must remain a higher priority at this time. 
The Commission intends to proceed in a manner that takes into account 
the limited staff resources that can be devoted to processing 
applications for service in the FM band. This approach will, in the 
long run, permit the more prompt processing of applications filed in 
the next LPFM window, a goal endorsed by numerous LPFM advocates.

III. Procedural Matters

Regulatory Flexibility Act

    33. As required by the Regulatory Flexibility Act, the Commission 
has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the 
possible significant economic impact on a substantial number of small 
entities of the proposals addressed in this FNPRM. Written public 
comments are requested on the IRFA. These comments must be filed in 
accordance with the same filing deadlines for comments on the FNPRM, 
and they should have a separate and distinct heading designating them 
as responses to the IRFA. The Commission will send a copy of the FNPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA). See 5 U.S.C. 603(a).

Need for, and Objectives of, the Second Order on Reconsideration

    34. Since the LPFM service was created in 2000, the experiences of 
LPFM applicants, permittees, and licensees have demonstrated that the 
Commission's LPFM rules may need some adjustment in order to ensure 
that the Commission maximizes the value of the LPFM service without 
harming the interests of full-power FM stations or other Commission 
licensees. In this FNPRM, the Commission seeks comment on a number of 
technical and ownership issues related to LPFM. The Commission believes 
this proceeding will result in an improved LPFM service, while 
maintaining the integrity of the FM service.

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

    35. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the proposed rules, if adopted. See 5 U.S.C. 603(b)(3). 
The RFA generally defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' small organization,'' and 
``small government jurisdiction.'' 5 U.S.C. 601(6). In addition, the 
term ``small business'' has the same meaning as the term ``small 
business concern'' under the 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.
    36. The Small Business Administration (SBA) defines a radio 
broadcasting station that has $5 million or less in annual receipts as 
a small business. See 13 CFR 121.201. A radio broadcasting station is 
an establishment primarily engaged in broadcasting aural programs by 
radio to the public. Included in this industry are commercial, 
religious, educational, and other radio stations. The 1992 Census 
indicates that 96 percent (5,861 of 6,127) of radio station 
establishments produced less than $5 million in revenue in 1992.
    37. The Commission's LPFM rules apply to a new category of FM radio 
broadcasting service. As of the date of release of this FNPRM, the 
Commission's records indicate that more than 1,175 LPFM construction 
permits have been granted. Of these 1,175 permits, approximately 590 
stations are on the air, serving mostly mid-sized and smaller markets. 
It is not known how many entities ultimately may seek to obtain low 
power radio licenses. Nor does the Commission know how many of these 
entities will be small entities. The Commission expects, however, that 
due to the small size of low power FM stations, small entities would 
generally have a greater interest than large ones in acquiring them.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    38. The FNPRM seeks comment on a number of technical and ownership 
issues related to LPFM. The potential reporting requirements that could 
be adopted include: (i) applications to be filed to seek authority for 
assignment of an LPFM station or transfer of control of an LPFM 
permittee or licensee; (ii) waiver requests for assignment of an LPFM 
station or transfer of control of an LPFM permittee or licensee, 
pending the Commission's consideration of the issues raised in the 
FNPRM; (iii) forms to be filed by new applicants or proposed assignees 
or transferees to demonstrate local eligibility and/or compliance with 
a multiple ownership prohibition; (iv) renewal applications to be filed 
by involuntary time-share licensees; (v) waiver requests for extension 
of an LPFM construction period; and (vi) applications to be filed 
seeking approval to centrally relocate a transmitter site in the case 
of a voluntary time share proposal.

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

    39. 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

[[Page 39226]]

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. See 
5 U.S.C. 603(c)(1)-(c)(4).
    40. The LPFM service has created and will continue to create 
significant opportunities for new small businesses. In addition, the 
Commission generally has taken steps to minimize the impact on existing 
small broadcasters. To the extent that rules proposed in the FNPRM 
would impose any burdens on small entities, the Commission believes 
that the resulting impact on small entities would be favorable because 
the proposed rules, if adopted, would expand opportunities for LPFM 
applicants, permittees, and licensees to commence broadcasting and stay 
on the air.
    41. The Commission will send a copy of this FNPRM in a report to 
Congress and the Government Accountability Office pursuant to the 
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

Ex Parte Rules

    42. Permit-But-Disclose. This proceeding will be treated as a 
``permit-but-disclose'' proceeding subject to the ``permit-but-
disclose'' requirements under 47 CFR 1.1206(b). Ex parte presentations 
are permissible if disclosed in accordance with Commission rules, 
except during the Sunshine Agenda period when presentations, ex parte 
or otherwise, are generally prohibited. Persons making oral ex parte 
presentations are reminded that a memorandum summarizing a presentation 
must contain a summary of the substance of the presentation and not 
merely a listing of the subjects discussed. More than a one-or two-
sentence description of the views and arguments presented is generally 
required. Additional rules pertaining to oral and written presentations 
are set forth in 47 CFR 1.1206(b).

Filing Requirements

    43. Comments and Replies. Pursuant to 47 CFR 1.415 and 1.419, 
interested parties may file comments and reply comments on or before 30 
days after publication in the Federal Register and reply comments on or 
before 45 days after publication in the Federal Register. Comments may 
be filed using: (1) The Commission's Electronic Comment Filing System 
(ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by 
filing paper copies.
    44. Electronic Filers: Comments may be filed electronically using 
the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the 
Federal eRulemaking Portal: http://www.regulations.gov. Filers should 
follow the instructions provided on the Web site for submitting 
comments. For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to [email protected], and include the following 
words in the body of the message: ``get form.'' A sample form and 
directions will be sent in response.
    45. Paper Filers: Parties who choose to file by paper must file an 
original and four copies of each filing. If more than one docket or 
rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although the Commission continues to experience 
delays in receiving U.S. Postal Service mail). All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
    46. In addition to filing comments with the Office of the 
Secretary, a copy of any comments on the Paperwork Reduction Act 
information collection requirements contained herein should be 
submitted to Cathy Williams Federal Communications Commission, Room 1-
C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet 
to [email protected], and to Kristy L. LaLonde, OMB Desk Officer, 
Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503, via 
Internet to [email protected], or via fax at 202-395-5167.
    47. Availability of Documents. Comments, reply comments, and ex 
parte submissions will be available for public inspection during 
regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street, SW., CY-A257, Washington, 
DC 20554. These documents will also be available via ECFS. Documents 
will be available electronically in ASCII, Word 97, and/or Adobe 
Acrobat.
    48. Accessibility Information. To request information in accessible 
formats (computer diskettes, large print, audio recording, and 
Braille), send an e-mail to [email protected] or call the FCC's Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY). This document can also be downloaded in Word and Portable 
Document Format (PDF) at: http://www.fcc.gov.

List of Subjects in 47 CFR Part 73

    Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rule Changes

    For the reasons discussed in the preamble, the FCC proposes to 
amend 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICES

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

    Authority: 47 U.S.C. 154, 303, 334, 336, and 339.

    2. Section 73.855 is revised to read as follows:


Sec.  73.855  Ownership limits.

    (a) No authorization for an LPFM station shall be granted to any 
party if the grant of that authorization will result in any such party 
holding an attributable interest in two LPFM stations.
    (b) Not-for-profit organizations and governmental entities with a 
public safety purpose may be granted multiple licenses if:

[[Page 39227]]

    (1) One of the multiple applications is submitted as a priority 
application; and
    (2) The remaining non-priority applications do not face a mutually 
exclusive challenge.
    3. Section 73.865 is revised to read as follows:


Sec.  73.865  Assignment and transfer of LPFM authorizations.

    A change in the name of an LPFM licensee where no change in 
ownership or control is involved may be accomplished by written 
notification by the licensee to the Commission.
    4. Section 73.870 is amended by revising paragraph (a) to read as 
follows:


Sec.  73.870  Processing of LPFM broadcast station applications.

    (a) Except as provided in Sec.  73.872(c), a minor change for an 
LP100 station authorized under this subpart is limited to transmitter 
site relocations of 5.6 kilometers or less. Except as provided in Sec.  
73.872(c), a minor change for an LP10 station authorized under this 
subpart is limited to transmitter site relocations of 3.2 kilometers or 
less. Minor changes of LPFM stations may include changes in frequency 
to adjacent or IF frequencies or, upon a technical showing of reduced 
interference, to any frequency.
* * * * *
    5. Section 73.871 is amended by revising paragraph (c) to read as 
follows:


Sec.  73.871  Amendment of LPFM broadcast station applications.

* * * * *
    (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, and except as provided in Sec.  73.872(c), minor 
amendments are limited to:
    (1) Site relocations of 3.2 kilometers or less for LP10 stations;
    (2) Site relocations of 5.6 kilometers or less 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.
* * * * *
    6. Section 73.872 is amended by revising paragraphs (c) 
introductory text, (c)(1), and (d)(1) to read as follows:


Sec.  73.872  Selection procedure for mutually exclusive LPFM 
applications.

* * * * *
    (c) Voluntary time-sharing. If mutually exclusive applications have 
the same point total, any two or more of the tied applicants may 
propose to share use of the frequency by submitting, within 90 days of 
the release of a public notice announcing the tie, a time-share 
proposal. Such proposals shall be treated as amendments to the time-
share proponents' applications and shall become part of the terms of 
the station license. Such proposals may include amendments to the 
applications proposing to relocate the transmitter to a central 
location between the proposed transmitter sites, notwithstanding the 
site relocation limits set forth in Sec. Sec.  73.870 and 73.871. Where 
such proposals include all of the tied applications, all of the tied 
applications will be treated as tentative selectees; otherwise, time-
share proponents' points will be aggregated to determine the tentative 
selectees.
    (1) Time-share proposals shall be in writing and signed by each 
time-share proponent, and shall satisfy the following requirements:
    (i) The proposal must specify the proposed hours of operation of 
each time-share proponent;
    (ii) The proposal must not include simultaneous operation of the 
time-share proponents;
    (iii) Each time-share proponent must propose to operate for at 
least 10 hours per week; and
    (iv) If the time-share proponents propose to relocate the 
transmitter site to a central location beyond the site relocation 
limits set forth in Sec.  73.871, the proposal must demonstrate that 
the proposed transmitter site is centrally located.
* * * * *
    (d) * * *
    (1) If a tie among mutually exclusive applications is not resolved 
through time-sharing in accordance with paragraph (c) of this section, 
the tied applications will be reviewed for acceptability and applicants 
with tied, grantable applications will be eligible for equal, 
successive license terms of no less than one year each for a total 
combined term of eight years, in accordance with Sec.  73.873. Eligible 
applications will be granted simultaneously, and the sequence of the 
applicants' license terms will be determined by the sequence in which 
they file applications for licenses to cover their construction permits 
based on the day of filing, except that eligible applicants proposing 
same-site facilities will be required, within 30 days of written 
notification by Commission staff, to submit a written settlement 
agreement as to construction and license term sequence. Failure to 
submit such an agreement will result in the dismissal of the 
applications proposing same-site facilities and the grant of the 
remaining, eligible applications.
* * * * *
    7. Section 73.3598 is amended by revising paragraph (a) to read as 
follows:


Sec.  73.3598  Period of construction.

    (a) Each original construction permit for the construction of a new 
TV, AM, FM, or International Broadcast; low power TV; TV translator; TV 
booster; FM translator; FM booster; or LPFM station, or to make changes 
in such existing stations, shall specify a period of three years from 
the date of issuance of the original construction permit within which 
construction shall be completed and application for license filed.
* * * * *
[FR Doc. 05-13369 Filed 7-6-05; 8:45 am]
BILLING CODE 6712-01-P