[Federal Register Volume 73, Number 12 (Thursday, January 17, 2008)]
[Rules and Regulations]
[Pages 3202-3218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-783]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 99-25; FCC 07-204]


Creation of a Low Power Radio Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Commission adopts rules and provides 
guidance to efforts to promote the operation and expansion of the low 
power FM (LPFM) service. The Commission solicited and reviewed comments 
regarding the status of LPFM service, and found that to promote the 
service, it was necessary to make rule changes related to ownership and 
technical issues.

DATES: The rules will become effective March 17, 2008.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Holly Saurer, [email protected] of the Media 
Bureau, Policy Division, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Report and Order, FCC 07-204, adopted on November 27, 2007, and 
released on December 11, 2007. 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

[[Page 3203]]

Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Summary of the Third Report and Order

I. Introduction

    1. In March 2005, the Commission released a Second Order on 
Reconsideration (Second Order), 70 FR 39182, July 7, 2005 and Further 
Notice of Proposed Rulemaking (FNPRM), 70 FR 39217, July 7, 2005 as 
part of its ongoing efforts to promote the operation and expansion of 
the low power FM (LPFM) service. In the Second Order, the Commission 
made minor changes to the LPFM rules. The accompanying FNPRM sought 
comment on a number of issues related to ownership and eligibility 
restrictions for LPFM licensees, as well as technical matters related 
to the LPFM service. This Third Report and Order resolves the issues 
raised in the FNPRM. In so doing, this Order advances the Commission's 
goal ``to ensure that we maximize the value of LPFM service without 
harming the interests of full-power FM stations or other Commission 
licensees.'' In light of changed circumstances since we last considered 
the issue of protection rights for LPFM stations from subsequently 
authorized full-service stations, we also find it necessary to consider 
certain rule changes to avoid the potential loss of LPFM stations. 
Accordingly, we issue a Second Further Notice of Proposed Rulemaking 
(Second FNPRM) to seek comment on these changes.

II. Background

    2. In January 2000, the Commission adopted rules to establish two 
classes of LPFM facilities: (a) 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 dB[mu]) of approximately 3.5 miles (5.6 
kilometers); and (b) the LP10 class, consisting of stations with a 
maximum 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, 65 FR 7615, February 15, 2000 announcing those 
classes imposed separation requirements for LPFM stations to protect 
full-power FM stations operating on the co-, first-, and second-
adjacent channels, as well as stations operating on intermediate 
frequency (IF) channels. The Report and Order concluded, however, that 
imposition of a third-adjacent channel separation requirement would 
restrict unnecessarily the number of LPFM stations that could be 
authorized, and therefore declined to impose that requirement.
    3. The Report and Order also established ownership and eligibility 
rules for the LPFM service. The Commission restricted LPFM service to 
noncommercial educational (NCE) operations, restricted licensee 
eligibility to applicants with no attributable interests in any other 
broadcast station or other media subject to our ownership rules, and 
prohibited the assignment or transfer of LPFM stations. The Commission 
also determined that, during the two years following the first LPFM 
filing window, no entity would be permitted to own more than one LPFM 
station and that ownership should be restricted to local entities. To 
choose among entities filing mutually exclusive applications for LPFM 
licenses, the Report and Order set forth a point system that favors 
local ownership and locally-originated programming, with ties between 
competing applicants resolved by either voluntary time-sharing 
agreements between such applicants or, in the event that they cannot so 
agree, the imposition of ``involuntary time-sharing,'' with each tied 
and grantable applicant awarded an equal, successive and non-renewable 
license term of no less than one year, for a combined total eight-year 
term. Finally, the Report and Order directed the then-Mass Media Bureau 
to establish filing windows for LP100 applications.
    4. The Commission revised and clarified some of its LPFM rules in a 
September 2000 Memorandum Opinion and Order on Reconsideration 
(Reconsideration Order), 65 FR 67289, November 9, 2000. The 
Reconsideration Order declined to adopt the more restrictive channel 
separation requirements urged by certain petitioners. Instead, the 
Commission adopted complaint and license modification procedures to 
address unexpected third-channel interference problems caused by LPFM 
stations. The Reconsideration Order modified spacing standards to 
require LPFM stations to protect radio reading services. Beyond the 
issue of interference, the Commission increased ownership flexibility 
for universities, state and local governments, and entities operating 
public safety or transportation services. Finally, the Reconsideration 
Order addressed a number of technical and ownership issues and 
clarified the eligibility rules for certain groups.
    5. After the Commission declined to impose third-adjacent channel 
separation requirements in the Reconsideration Order, Congress directed 
the agency to do so in the Making Appropriations for the Government of 
The District of Columbia for FY 2001 Act (2001 DC Appropriations Act). 
In that legislation, Congress instructed the Commission to prescribe 
third-adjacent channel spacing standards for LPFM stations and to deny 
LPFM applications of applicants that previously had engaged in the 
unlicensed operation of a radio station. The 2001 DC Appropriations Act 
also directed the Commission to evaluate the likelihood of interference 
to existing FM stations if LPFM stations were not subject to the third-
adjacent channel spacing requirement.
    6. As a result of the spacing requirement imposed by the 2001 DC 
Appropriations Act, a number of facilities proposed in otherwise 
technically grantable applications became short-spaced to existing 
full-power FM stations or translators, leading to the eventual 
dismissal of those applications. To evaluate the likelihood of 
interference in the absence of a third-adjacent channel separation 
requirement, the Commission selected an independent third party--the 
Mitre Corporation--to conduct field tests. The Commission then sought 
public comment on Mitre's reported findings. In February 2004, the 
Commission submitted its report to Congress, recommending that, based 
on the Mitre study, Congress ``modify the statute to eliminate the 
third-adjacent channel distan[ce] separation requirements for LPFM 
stations.''
    7. In the March 2005 Second Order, the Commission reexamined some 
of the rules governing the LPFM service, noting that the rules might 
need adjustment in light of the experiences of LPFM applicants and 
licensees. The Commission also took into account comments made at a 
February 2005 forum on LPFM that had addressed ``achievements by LPFM 
stations and the challenges faced as the service mark[ed] its fifth 
year.'' The Second Order clarified that ``local program origination,'' 
as that term is used in Sec.  73.872(b)(2) of the Commission's rules, 
does not include the airing of satellite-fed programming. The Second 
Order also modified slightly the definitions of ``minor change'' and 
``minor amendment.''
    8. In the accompanying FNPRM, the Commission sought comment on a 
number of issues with respect to LPFM ownership restrictions and 
eligibility. The Commission asked whether LPFM licenses should be 
assignable or transferable and whether the temporary restrictions on 
multiple ownership of

[[Page 3204]]

LPFM stations and on non-local ownership should be extended or allowed 
to sunset. Because ``introducing some level of transferability to the 
LPFM service is critical,'' the Commission delegated to the Media 
Bureau the authority to waive the prohibition on the assignment or 
transfer of a LPFM station contained in Sec.  73.865 of the rules on a 
case-by-case basis and cited examples of circumstances in which the 
grant of such a waiver might be appropriate:

    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 operation. * * *

The Commission noted, however, that ``until we have further considered 
the transferability issue, we do not believe that waiver is 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.''
    9. The Commission also proposed certain changes to the rules 
governing the formation and duration of voluntary and involuntary time-
sharing arrangements among mutually exclusive LPFM applicants. The 
FNPRM also considered a number of changes to the LPFM technical rules. 
The Commission proposed to extend the construction period for LPFM 
stations and to allow time-sharing applicants greater flexibility to 
amend their applications to relocate the transmitter to a central 
location. The FNPRM also sought comment on the relationship between the 
LPFM and full-power FM services. Noting that thousands of FM translator 
applications remained pending from the 2003 filing window, the 
Commission froze the processing of those applications and sought 
comment on possible adjustments to the co-equal status of LPFM stations 
and FM translators with regard to interference between them. The 
Commission also sought comment on whether LPFM stations should be 
protected from interference from subsequently authorized FM stations. 
Finally, the Commission denied a request by the Media Access Project 
(MAP) to schedule ``regular'' filing windows for LPFM new station 
applications and major modification applications.
    10. During the seven years since we created the LPFM service, that 
service has flourished for the most part, but also has encountered 
unique obstacles. To date, the Media Bureau has received 3236 
applications for new LPFM construction permits, of which 1,286 have 
been granted. Currently, there are 809 LPFM stations operating 
throughout the country. At the same time, the Media Bureau was 
compelled to cancel 17 station licenses and 95 construction permits for 
failure by the holder to satisfy certain procedural and/or technical 
requirements. In view of this practical experience with LPFM service, 
we now turn to the issues raised in the FNPRM. In resolving those 
issues, we seek to increase the number of LPFM stations that are on the 
air and providing service to the public, and to promote the continued 
operation of LPFM stations already broadcasting, while avoiding 
interference to existing FM service.

III. Discussion

A. Ownership and Eligibility

1. Alienability of Authorizations
a. Changes in Board Membership
    11. Section 73.865 of the rules 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.'' The Reconsideration Order clarified that the 
gradual change of a licensee's governing board or membership body is a 
permissible ``insubstantial change,'' even if the majority of current 
members joined after the station's authorization was granted. As the 
FNPRM noted, however, ``[o]ur rules * * * do not permit a sudden change 
in the board or membership of an LPFM licensee, which would constitute 
an impermissible transfer of control.'' Panelists at the February 2000 
LPFM forum and other parties concerned with the viability of LPFM 
stations remarked that the proscription of sudden changes in governing 
board membership causes unnecessary complications for LPFM licensees. 
Responding to that concern, the FNPRM proposed to amend our rules to 
permit sudden changes of more than 50 percent of the membership of 
governing boards.
    12. As commenters have since observed, frequent elections and 
changes in governing board membership are common among volunteer 
organizations and other entities that operate LPFM stations. As LPFM 
station KVLP-LP noted, experience on the board of an LPFM station can 
confer valuable leadership experience to community members, leading 
community groups to encourage frequent shuffling of board membership. 
Unsurprisingly, then, most commenters favor amending our rules to 
permit transfers of control in the case of a sudden change in a 
majority of a governing board's membership so long as the overall 
mission of the organization remains unchanged.
    13. We agree. In crafting our LPFM rules, the Commission intended 
to preserve the integrity of the LPFM service and of the local 
organizations operating LPFM stations. We did not intend, however, to 
hamper the customary governance procedures of those organizations or to 
make LPFM less ``accessible to community groups.'' To the extent that 
our rules have blocked that access, we now remove that inadvertent 
barrier and adopt the FNPRM's proposal to allow sudden changes of more 
than 50 percent of the membership of governing boards. Accordingly, we 
will amend Sec.  73.865 of our rules to clarify that transfers of 
control involving a sudden change of more than 50 percent of an LPFM 
licensee's governing board shall not be deemed ``a substantial change 
in ownership and control.''
b. Assignments and Transfers
    14. The FNPRM sought comment on whether the rules should permit the 
sale of LPFM authorizations, for some or no consideration, and whether 
they should impose a holding period by the initial permittee and 
licensee. Noting that at least 221 construction permits have lapsed due 
to the permittee's failure to construct facilities, REC Networks (REC) 
argues that an LPFM permittee or licensee should be able to convey its 
authorization when doing so would prevent the loss of the permit. 
Indeed, most commenters support amending the rules to permit sales in 
at least some circumstances, although they express diverse views with 
respect to when such transactions should be allowed. At one extreme are 
those commenters who maintain that LPFM stations should be transferable 
without restriction because there is little risk of manipulation or 
take-over in the ``market'' for LPFM authorizations. At the opposite 
end of the spectrum are those who contend that transfers of control or 
assignments should be limited to those situations in which the assignee 
or transferee ``represents the community'' and no consideration is 
involved. Prometheus argues that the Commission should not allow 
transfers or assignments to be made in exchange for consideration, as 
such a rule could lead to speculation by those with substantial 
resources, at the expense of local community groups that lack funding.

[[Page 3205]]

    15. The for-profit sale of LPFM authorizations to any buyer is 
fundamentally inconsistent with the Commission's desire to promote 
local, community based use and ownership of LPFM stations. Transfers of 
control or assignments for consideration will create a market for LPFM 
licenses and may facilitate trafficking in licenses by those who have 
no interest in providing LPFM services to the public. Such a state of 
affairs would likely interfere with, rather than spur development of, 
community-based programming and hamper the ability of community-based 
entities to obtain LPFM authorizations. Therefore, we will not permit 
the sale of LPFM licenses for consideration exceeding the depreciated 
fair market value of the physical equipment and facilities of the 
station, and will not allow under any circumstances the transfer or 
assignment of construction permits.
    16. With respect to the imposition of eligibility restrictions on a 
transferee or assignee of an LPFM license, some commenters suggest that 
we permit the sale of an LPFM authorization to any willing buyer. 
Others suggest that we limit the universe of eligible assignees and 
transferees to other local nonprofits. We conclude that the appropriate 
balance is struck by requiring the assignee or transferee of an LPFM 
license to satisfy ownership and eligibility criteria existing at the 
time of the assignment or transfer. That restriction will prevent 
entities from using intermediaries to circumvent our LPFM eligibility 
requirements and will further address our concern about potential 
trafficking in LPFM authorizations by ensuring that future LPFM 
licensees meet the Commission's criteria for LPFM service. At the same 
time, permitting assignments or transfers among qualified parties will 
allow newly-``merged'' local entities, consisting of several eligible 
organizations, to pool their resources to provide the necessary 
financial support for quality local programming when, standing alone, 
those entities would be otherwise incapable of constructing and 
operating an LPFM station.
    17. For all transfers and assignments, we will require a three year 
holding period from the issuance of license, during which a licensee 
cannot transfer or assign the license, and must operate the station, as 
suggested by Prometheus. That restriction will prevent entities from 
using the LPFM assignment and transfer process to undermine the 
Commission's LPFM policies and will ensure that the benefits to the 
public which were the basis for the license grant will be realized.
c. Procedures
    18. The FNPRM asked what procedures would be appropriate to allow 
assignments and transfers while ensuring the integrity of the LPFM 
service. Because many LPFM permittees and licensees are entities that 
do not issue ownership shares, the Commission drew attention to the 
Non-Stock Transfer NOI for guidance in establishing the procedures for 
transfers of control of such licensees. The Non-Stock Transfer NOI 
proposed to treat a sudden change of a governing board's majority as an 
insubstantial transfer for which approval must be sought on an FCC Form 
316 (short form) broadcast application. The FNPRM sought comment on 
adopting a similar approach for changes in the governing boards of LPFM 
permittees and licensees that are non-stock entities. The FNPRM also 
sought comment on the process by which LPFM stations should seek 
approval of assignments and transfers of control.
    19. Few commenters addressed the issue of the appropriate 
procedures for transfers of control or assignments of LPFM 
authorizations. Christian Community Broadcasters proposed using a 
modified FCC Form 318 LPFM construction permit application to cover all 
instances of ownership changes or changes in board membership. 
Limestone Community Radio suggested instead that entities use a 
modified FCC Form 316 for ``typical'' changes in station ownership. 
Still other commenters suggest that the Commission should take a more 
active role in overseeing any LPFM ownership changes to ensure 
``ethical use'' of LPFM licenses.
    20. We will use existing FCC forms for the conveyance of LPFM 
licenses, rather than adopting new forms and filing procedures. We see 
no reason to depart from the filing procedures that currently are used 
for other broadcasting services. Accordingly, we direct LPFM licensees 
to use modified FCC Forms 314 and 315 for assignments and transfers of 
control, respectively, and FCC Form 316 for pro forma changes in 
ownership. We will apply the Non-Stock Transfer NOI to appropriate LPFM 
licensees, and thus, will interpret a sudden change of a governing 
board's majority as an insubstantial transfer for which approval must 
be sought on an FCC Form 316 (``short form'') broadcast application. 
Use of these forms offers many advantages, particularly to smaller 
entities that have few resources to dedicate to the application 
process, such as the ability to retrieve and submit the forms 
electronically.
2. Ownership and Eligibility Limitations
    21. As discussed above, the rules required that, during the two 
years following the first LPFM filing window, no entity was permitted 
to own more than one LPFM station, and ownership was restricted to 
local entities. The rules gradually relaxed these restrictions. 
Currently, the rules limit the number of LPFM stations a single entity 
may own up to ten stations and the rule that allows only local entities 
to apply for LPFM licenses has sunsetted. As we explained in the FNPRM, 
the Commission's intention in gradually increasing the ownership 
limitation from one to ten stations and in allowing the local entity 
restriction to sunset ``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.'' In 
connection with its query of whether to allow the sale of LPFM 
stations, the FNPRM asked if either the ownership limitation or the 
restriction to local entities should be extended or reinstated.
    22. Several organizations urge the Commission to maintain ``strict 
local and multiple ownership requirements,'' to ensure that LPFM 
service continues to advance the public's interest in localism and 
diversity. According to some of these commenters, any relaxation of 
either the multiple ownership restriction or the locality-based 
restriction is fundamentally at odds with the ``community radio'' 
rationale that justifies the existence of LPFM stations. Prometheus 
Radio Project argues that, even when no local entity applies for an 
LPFM authorization, non-local entities should be barred from applying, 
because ``LPFM is not a goal in itself, rather it is a means to promote 
localism.''
    23. We agree. As emphasized in our Report and Order, our two 
primary goals in establishing the LPFM service were to ``create 
opportunities for new voices on the airwaves and to allow local groups, 
including schools, churches, and other community-based organizations, 
to provide programming responsive to local community needs and 
interests.'' The Report and Order also stated that the potential 
benefit of allowing multiple ownership--increased efficiency--was 
clearly outweighed by ``the benefit to a community of multiple 
community-based voices.'' By amending the rules to permanently limit 
LPFM eligibility, we protect the public interest in localism and foster 
greater diversity of programming from community sources. Thus, we will 
reinstate the prohibition

[[Page 3206]]

on the ownership of more than one LPFM station.
    24. In addition, we agree with those parties that suggest that we 
reinstate the local ownership restrictions. Although growing in both 
usage and recognition, LPFM service is still in its nascence and doing 
away with the locality restriction could threaten its predominantly 
local character, in particular the hallmark of a LPFM station's local 
character, its local origination of programming. In upholding the local 
origination selection criterion for mutually exclusive applications, 
our Second Order emphasized that local origination is ``intended to 
encourage licensees to maintain production facilities and a meaningful 
staff presence within the community served by the station.'' Even 
outside the limited context of mutually exclusive applications, we view 
local origination as a central virtue of the LPFM service and therefore 
will reinstate the eligibility restriction contained in Sec.  73.853(b) 
of the rules to encourage local origination. We also wish to clarify 
our definition of local origination. According to Prometheus, a 
licensee could theoretically create one program, continually repeat it 
on a tape loop, and still claim it meets the definition of local 
origination. Prometheus asserts that in order to meet the local 
origination requirement, programming cannot be automated, including 
randomized songs or long blocks of locally produced programming run 
multiple times, and cannot be aired more than two times. We agree that 
there is room for abuse here, and as such, we clarify that repetitious 
automated programming does not meet the local origination requirement. 
We will only allow a program to be broadcast twice in order to meet the 
local origination requirement. After its initial broadcast a program 
can be rebroadcast once and still meet our requirement. After that, the 
program cannot count toward the local origination requirement.
    25. Finally, we adopt the suggestion by Prometheus that we extend 
the local standard for rural markets. Pursuant to Sec.  73.853(b) of 
the rules, an LPFM applicant is deemed local if it is physically 
headquartered or has a campus within ten miles of the proposed LPFM 
transmitter site, or if 75 percent of its board members reside within 
ten miles of the proposed LPFM transmitter site. The ten-mile limit was 
adopted based on the ``station's likely effective reach.'' Prometheus' 
comments express concern that this ten-mile local entity standard is 
difficult to meet for rural applicants, especially in finding board 
members who reside within ten miles of the proposed transmitter site. 
Prometheus states that people in rural communities often listen to and 
participate in stations that are outside of their home coverage area, 
because they listen to the station while driving to and from work. As 
such, Prometheus requests modifying the ten-mile requirement to twenty 
miles for all LPFM applicants for proposed facilities in other than the 
top fifty urban markets, for both the distance from transmitter and 
residence of board member standards. We agree with Prometheus that 
applicants for stations located in rural communities find it 
particularly challenging to meet the current ten-mile standard. We also 
agree that the concept of ``local'' should be more expansive in rural 
areas. Accordingly, we will revise Sec.  73.853(b) of the rules to 
reflect Prometheus' proposal.
3. Time-Sharing
    26. The Report and Order established a comparative point system for 
determining which among mutually exclusive LPFM applicants should 
receive the authorization that they commonly seek. If such applicants 
have the same point total, two or more of the tied applicants may 
propose to share use of the LPFM frequency by submitting a time-share 
proposal within 30 days of the release of a public notice announcing 
their tie. If the tie among the applicants is not resolved through a 
voluntary time-sharing agreement, the tied applicants submitting 
grantable applications are placed in an involuntary time-sharing 
arrangement, and granted equal, successive, non-renewable license terms 
for the applied-for facility of no less than one year each, for a total 
combined term of eight years. The FNPRM proposed amending the rules 
governing mutually exclusive LPFM applications in two key respects. 
First, in response to a request by MAP, the FNPRM proposed to extend, 
from 30 to 90 days, the period allowed for applicants to submit a 
voluntary time-sharing agreement. Second, the FNPRM proposed to amend 
the rules to permit the renewal of licenses granted under the 
involuntary time-sharing successive licensing procedures. We address 
those proposals in turn.
a. Deadline for Submission of Voluntary Time-Sharing Agreements
    27. In its Petition for Reconsideration of the Report and Order, 
MAP observed that ``LPFM applicants are largely comprised of small 
organizations with few administrative resources,'' and that few 
applicants ``have access to the expertise of professional engineers.'' 
Accordingly, few applicants are able to identify mutually exclusive 
applications before receiving notice from the Commission that they are 
tied with others, leaving them only 30 days to contact the other 
applicants, complete negotiations and execute and file their agreements 
with the Commission. Because those negotiations likely will be 
conducted by inexperienced volunteers, MAP argues, reaching a 
successful compromise within that time frame is very unlikely. Finding 
MAP's argument persuasive, the FNPRM proposed to extend to 90 days the 
time period within which mutually exclusive LPFM applicants must reach 
and file a voluntary time-sharing arrangement.
    28. All commenters who addressed the issue favor adoption of the 
proposal to so extend the negotiation and filing period to 90 days. 
NPR, ``recogniz[ing] the fundamental importance of a diversity of 
programming services and station ownership,'' observes that allowing 
LPFM applicants more time to enter into voluntary time-sharing 
arrangements will promote that diversity. Similarly, REC contends that 
30 days is not enough time in which to reach and file a viable time-
sharing agreement. REC sought to assist applicants with negotiations of 
universal settlements, but found that often basic contact information 
supplied on the applications was inaccurate. Drawing from that 
experience and similar considerations, REC urges the Commission to 
extend the period of time in which mutually exclusive applicants may 
negotiate and file time-sharing agreements.
    29. We agree with the views of NPR, REC, and others, and therefore 
adopt the FNPRM's proposal to extend the negotiating and filing period 
to 90 days. Mutually exclusive LPFM applicants should be given every 
opportunity to arrive at a negotiated time-sharing arrangement before 
the LPFM rules impose a successive-term licensing scheme on the 
applicants. To the extent that the 30-day time period in Sec.  73.872 
of the rules has impeded the successful negotiation of time-sharing 
arrangements, we remove that impediment and hope that this will reduce 
considerably the likelihood that involuntary time-sharing arrangements 
with multiple successive license terms will be necessary.
b. License Renewal Procedures for Parties to Time-Sharing Arrangements
    30. Section 73.872(d) of the rules provides that an LPFM 
authorization issued under involuntary time-sharing arrangements, under 
which mutually exclusive applicants are granted

[[Page 3207]]

successive license terms, is not renewable. The FNPRM also proposed 
that we change this provision and make such authorizations renewable. 
The FNPRM sought comment on how the renewal process should operate, 
given that increased flexibility in the rules governing assignments and 
transfers of control may lead licensees under such arrangements to 
negotiate voluntary time-sharing agreements among themselves.
    31. REC is one of the few commenters to respond to our queries 
about involuntary time-sharing arrangements. In its submission, REC 
suggests that if licensees under an involuntary time-sharing 
arrangement ``come up with a universal settlement to engage in a 
conventional time-share arrangement * * * the Commission should grant 
such an arrangement and remove the non-renewable condition of the 
permit and/or license.'' REC further proposes that, at the end of the 
eight-year term, all licensees in a successive license term group 
should each be permitted to file a renewal application.
    32. The FNPRM tentatively proposed to make renewable all viable 
licenses under both voluntary and involuntary time-sharing 
arrangements. Making renewable only the authorizations of those 
organizations that can reach a mutually acceptable agreement with 
respect to scheduling, however, will provide a powerful incentive to 
licensees that thus far have been unable to reach such agreement. This 
will lead to more efficient use of the spectrum. Accordingly, we agree 
with REC that when organizations subject to an involuntary time-sharing 
arrangement reach a ``universal settlement'' with respect to the 
allocation of time on the relevant frequency, the non-renewable 
condition of their authorizations should be removed.
    33. For the same reasons, we also agree with REC that stations 
subject to involuntary time-sharing under successive license terms that 
subsequently enter into a voluntary time-sharing agreement should be 
permitted to file a renewal application. However, we are not persuaded 
that we should accommodate those licensees with successive license 
terms that fail to reach a universal voluntary agreement with the 
ability to renew. By doing this, we would be rewarding such applicants' 
unwillingness or inability to reach such agreements. We note that, of 
the more than 1,200 construction permits granted in the LPFM service, 
currently no stations hold authorizations for involuntary time sharing. 
In this Order, we have extended the 30-day time period in Sec.  73.872 
of the rules for applicants to negotiate and file universal voluntary 
time-share agreements to 90 days. We have also enabled those applicants 
originally issued involuntary time-share permits that reach such 
agreements to ultimately acquire renewable licenses. We believe that 
these measures will greatly reduce the likelihood that involuntary 
time-sharing arrangements will be necessary. Therefore, we decline to 
provide a renewal expectancy for involuntary time-share licensees. We 
strongly encourage any such permittees and licensees and future 
mutually exclusive applicants to enter into universal voluntary time-
share agreements.
    34. Making renewable the authorizations of parties who time-share 
who have reached voluntary time-sharing agreements raises a number of 
practical questions with respect to how and when those arrangements 
will supersede involuntary ones. First, we must determine when a 
voluntary time-sharing agreement should replace the successive-term 
structure of the involuntary arrangement. As we noted in the FNPRM, it 
is likely that licensees will reach universal time-sharing agreements 
prior to seeking renewal. We will therefore construe the superseding 
agreement as a ``minor change,'' allowing the licensees who seek to 
operate under a universal voluntary time-sharing agreement to file the 
minor change application as soon as the agreement is reached, rather 
than having to wait for a filing window. Expediting our approval of 
voluntary time-sharing arrangements in this manner will encourage 
prompt negotiations among licensees operating under involuntary time-
sharing arrangements and, it is hoped, promote a more efficient use of 
scarce LPFM spectrum than that under the successive licensing terms 
that apply to involuntary time-sharing arrangements. Accordingly, we 
will revise the rules to facilitate those voluntary agreements. We 
stress, however, that voluntary time-sharing agreements must be 
genuinely universal, involving all permittees and licensees of a 
particular LPFM facility. That is, to give rise to a renewal 
expectancy, all of those in a time-share group must be parties to the 
time-sharing agreement.
    35. To ensure that voluntary time-sharing arrangements will result 
in the most efficient use of LPFM spectrum, we also must address how to 
apportion unused airtime among licensees in a time-share group. This 
circumstance may arise in a number of ways. For example, a permittee in 
that group could fail to construct its facilities, decide to cease 
operations, or have its authorization revoked for a serious violation 
of the rules. There might also be situations in which no permittee or 
licensee has come forward requesting to operate during a certain part 
of the day or week. REC points to an example in Visalia, California, 
where one licensee, KFSC-LP, broadcasts from 5 to 9 a.m. Monday through 
Saturday and a second licensee, KQOF-LP, broadcasts from 5 to 9 p.m. 
Monday through Saturday. No licensee broadcasts other than those times. 
REC proposes that, prior to the opening of a new filing window, new 
entrants who can reach a universal settlement with existing stations 
should be allowed to do so. REC also argues that new entrants should be 
allowed to apply for periods of unused time once a window for new 
applications has opened.
    36. We agree with REC that, during filing windows for new 
applications, new parties should be permitted to apply for unused and 
unwanted time on a particular frequency. We will not entertain such 
applications outside of an open filing window, however, even when the 
potential new entrant could successfully negotiate a universal 
settlement with existing licensees. Aside from the administrative 
burden that such out-of-window filings could create, allowing a new 
entrant to act before a formally-announced filing window could 
prejudice unfairly other potential applicants who, under the 
comparative criteria set forth in Sec.  73.872(b) of the rules, would 
be entitled to a preference over the would-be new entrant's mutually 
exclusive application. Restricting applications for unwanted time to 
new filing windows does raise a potential concern in that the 
restriction will leave periods of time on a particular frequency vacant 
until the Commission elects to open a filing window for new 
applications. To alleviate that concern, and to promote a more 
efficient use of available LPFM frequency, we will allow existing 
stations in a voluntary time-share group to apportion among themselves 
any time that, for any reason, becomes unused. As with the negotiation 
and execution of voluntary time-sharing agreements by parties in an 
involuntary time-share arrangement, we will deem amendments to a 
voluntary time-sharing agreement to account for unused time requests to 
be minor modifications that may be filed at any time.

B. Technical Rules

1. Construction Period
    37. The Report and Order established an 18-month construction 
period for all LPFM facilities, stating that deadlines

[[Page 3208]]

would be strictly enforced. However, as a temporary measure, the FNPRM 
adopted an interim waiver policy to allow permittees with soon-to-
expire permits to request additional time to construct their 
facilities. Under that policy, the Media Bureau has the authority to 
consider and grant requests for an additional 18 months to construct 
facilities, upon a showing that the permittee reasonably can be 
expected to complete construction within the extended period.
    38. As a permanent solution, the FNPRM proposed extending the 
construction period for LPFM stations to 36 months, the construction 
period afforded to all other broadcast permittees. During the six years 
since the release of the 2000 Report and Order, our assumption that 
LPFM facilities would require significantly less time to build than 
that required to construct full-power FM facilities has proven to be 
overly optimistic. LPFM licensees have encountered varying difficulties 
in locating suitable transmitter sites, raising sufficient funds for 
the proposed facilities, and obtaining the necessary zoning permits. 
The FNPRM thus proposed extending the construction period in order ``to 
maximize the likelihood that LPFM permittees will get on the air.''
    39. Many commenters favor extending the construction period. Some 
state that the blanket adoption of a 36-month construction period has 
administrative advantages over a conditional extension or case-by-case 
review of individual waiver requests. Moreover, extending the 
construction period to 36 months would put the LPFM and full-power FM 
services on equal footing and avoid disenfranchising able, willing, but 
inexperienced, LPFM permittees. Prometheus Radio Project and others 
contend that the better approach is to grant an 18-month extension to 
complete construction, but only upon demonstration of good cause. 
Prometheus argues that such a procedure would give able and willing 
LPFM permittees a total of 36 months to construct their facilities but 
prevent unable or unwilling LPFM permittees from warehousing valuable 
spectrum, without service to the public, for an extended period of 
time.
    40. We seek to encourage permittees to construct their facilities 
within 18 months, and therefore, decline to adopt a blanket 36-month 
construction period for LPFM. We agree with Prometheus that this 
approach will prevent unwilling/unable applicants from sitting on 
valuable spectrum. We recognize, however, that some permittees may face 
difficulties in meeting this deadline. Therefore, we will amend the 
rules to allow all permittees, including current ones whose 
construction permits have yet to expire, the opportunity to seek an 18-
month extension to complete construction of their facilities upon a 
showing of good cause. Because any such extension should account 
adequately for the delays resulting from the potential inexperience of 
the permittee, as well as for potential obstacles that may arise during 
the zoning or permitting processes, that extended construction deadline 
will be strictly enforced, as it is with all other radio broadcast 
stations; we do not expect to entertain, and most likely will not 
grant, waiver requests or those for further extensions.
2. Technical Amendments
    41. Section 73.871 of the rules limits the ability of applicants to 
propose site changes by minor amendment to relocations of 3.2 
kilometers or less for an LP10 station, and 5.6 kilometers or less for 
an LP100 station. That rule prevents time-sharing applicants from 
relocating their transmitters to a central location unless the site 
falls within those distance limits. To increase flexibility for time-
sharing applicants and thereby promote voluntary time-sharing 
agreements, the FNPRM proposed to allow time-sharing applicants to file 
minor amendments to relocate their transmitters to a central location, 
notwithstanding the site relocation limits imposed by Sec.  73.871 of 
the rules.
    42. Few commenters have responded to our queries about technical 
amendments by time-sharing applicants under Sec.  73.871 of the rules. 
In 2001, UCC requested that we amend the rules to allow applicants that 
submit a voluntary time-share agreement to relocate the transmitter to 
a central location, provided that one is available. The Commission has 
a long-standing policy of providing mutually exclusive applicants with 
maximum flexibility to enter into time-share agreements in order to 
facilitate rapid licensing in the service. For instance, in 2003, the 
Commission by public notice waived Sec.  73.871 of the rules for a time 
to permit all LPFM settling applicants the ability to file major change 
amendments specifying new FM channels. Permitting parties to file time-
share agreements to specify a ``central location'' beyond the current 
minor amendment distance limitations would remove one more potential 
impediment to such agreements. Accordingly, we amend Sec.  73.871 of 
the rules to permit time-sharing applicants to specify a central 
transmitter location with a minor amendment without regard to the 
respective 3.2 and 5.6 kilometer limitations on such amendments. These 
agreements, which permit a number of different organizations to reach 
local audiences, promote diversity. Providing applicants additional 
flexibility and the opportunity to avoid the construction of duplicate 
facilities also serves the public interest. For the same reason, we 
amend that rule to allow permittees and licensees that reach a 
voluntary time-sharing agreement after their permits have been granted 
to submit such site change applications by minor submission. We 
anticipate that this rule change will encourage time-share applicants, 
permittees and licensees to consolidate transmission and studio 
facilities.
3. LPFM-FM Translator Interference Priorities
    43. The FNPRM identified several possible ways to modify the LPFM-
FM translator interference protection requirements. Currently, stations 
in these two services operate on a substantially co-equal basis, with a 
facility proposed in an application having ``priority'' over one 
specified in any subsequently filed application. The FNPRM sought 
comment on whether, and if so, under what circumstances LPFM 
applications should be treated as having priority status over prior-
filed FM translator applications and granted authorizations. In 
particular, the Commission sought comment on how to overcome the 
significant preclusive impact of the 2003 Auction No. 83 translator 
filing window, asking among other things whether all pending 
applications for new FM translator stations filed during the window 
should be dismissed. The FNPRM explained that the staff already had 
granted approximately 3,500 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,'' that 7,000 applications remained on file, that 
very few opportunities for LPFM stations in major markets remained 
prior to the 2003 translator filing window, and that the Auction No. 83 
filing would have a ``significant preclusive impact on future LPFM 
licensing opportunities.'' The voluminous comments submitted in 
response to the priority issue focus on two possible theories 
supporting modification of the current rule: (1) That LPFM provides a 
``preferred'' radio service to that offered by translators; and (2) 
that priority status for LPFM applications is necessary to overcome

[[Page 3209]]

the preclusive impact of the over 13,000 technical proposals filed 
during the 2003 Auction No. 83 FM translator window.
    44. LPFM advocates contend that their service is preferable to 
translator service. They note that the rules require LPFM stations to 
be locally owned and permit local program origination. They note that, 
in contrast, many translators merely rebroadcast satellite-distributed 
national programming. Some LPFM advocates request priority status for 
only those LPFM stations that originate programming. Others request 
priority status over all ``distant'' translators, i.e., translators 
that rebroadcast the signals of non-local stations.
    45. NAB, NPR, the various state broadcast associations, and 
virtually all full-service commercial and NCE broadcasters support 
retention of the current interference protection rules. They argue that 
there are no simple ways to distinguish preferred stations or 
programming. They also claim that there is no such thing as a typical 
LPFM or FM translator station. They reject as unfounded the contention 
that program origination or local ownership correlates to more 
desirable programming. They note that LPFM licensees have limited 
service responsibilities with regard to their communities of license: 
LPFM stations need not originate programming; many serve the needs of 
niche interest groups rather than their entire communities of license; 
they are not required to maintain a main studio or public file; and 
they are required to operate for only 35 hours per week. Many 
broadcasters contend that, because the LPFM service is still in its 
infancy, it is premature to reassess the ``co-equal'' status of LPFM 
and FM translator stations. NCE and public radio broadcasters argue 
that giving LPFMs priority over operating FM translator stations would 
significantly disrupt established and valued translator service to 
millions of listeners, particularly those in rural areas and in 
situations in which broadcasters rely on ``chains'' of translators to 
distribute programming. The public radio commenters note that 
translators are a critical component of the public radio 
infrastructure. A number of other commenters urge that a ``fill-in'' 
translator should be treated as the equivalent of its associated 
primary full-service station and, therefore, always preferred to an 
LPFM station.
    46. With regard to the potentially preclusive impact of the over 
13,000 FM translator applications filed in 2003, some commenters argue 
that the LPFM service is not entitled to any special consideration 
because LPFM applicants had the first opportunity during the 2000-2001 
national LPFM windows to apply for new stations. Translator advocates 
note that their last opportunity for non-reserved band FM translators 
occurred in 1997. Edgewater Broadcasting, Inc. (Edgewater) submits an 
extensive analysis of the preclusive impact of the construction permits 
issued out of the 2003 translator filing window and the more limited 
impact of the over 1,000 permits issued to it and its commonly-owned 
Radio Assist Ministries. Edgewater contends that the preclusive impact 
has been ``miniscule,'' notes that the Commission received no LPFM 
applications to serve many of the areas specified in its translator 
filings, and argues that its studies demonstrate that vast areas in the 
country remain available for new LPFM stations. REC also submits both 
national and market-specific analyses and identifies several 
communities in which 2003 window filings have allegedly precluded or 
diminished LPFM station licensing opportunities.
    47. The Station Resource Group, an alliance of 45 public radio 
broadcasters that operate 168 radio stations, contends that the chief 
contributor to LPFM station preclusion is a ``maxed out spectrum 
situation'' which prevents any broadcasters, NCE or commercial, 
translators or LPFM stations, from obtaining new licenses in virtually 
all major markets and many medium-sized markets. Several commenters 
argue that the statutory third-adjacent channel LPFM protection 
requirement blocks many otherwise-licensable LPFM opportunities.
    48. A number of commenters argue that the Commission's concern is 
misdirected. They urge the Commission to instead move vigorously 
against alleged FM translator filing abuses, speculators, and deficient 
application filings. They suggest imposing numerical application filing 
limits, either on a prospective basis or with regard to the still-
pending translator applications. Several contend that the high demand 
for new FM translators is unsurprising, given the extended freeze on 
non-reserved band licensing.
    49. As demonstrated by the comments filed on this issue, the LPFM 
and FM translator services are each valuable components of the nation's 
radio infrastructure. We agree with the advocates for each of these 
services regarding the important programming that these stations can 
provide to their local communities. We do not reach the merits of the 
priority rules between these two services here. Instead, we seek 
further comment in the attached Second FNPRM to develop a better record 
on whether and how our current rule affects our core goals of localism, 
diversity and competition. The current rules will remain in effect 
until the Commission resolves the issue in that proceeding.
    50. We also must consider the question of whether Auction No. 83 
filing activity has adversely impacted our goal to provide to both LPFM 
and translator applicants reasonable access to limited FM spectrum in a 
manner which promotes the ``fair, efficient, and equitable distribution 
of radio service * * *. '' This issue has taken on much greater 
significance over the past few years as demand for new radio stations 
has increased dramatically while the spectrum for such stations has 
become increasingly scarce, particularly in many mid-sized communities 
and in virtually all urbanized areas. Station Resource Group is 
correct--the primary licensing impediment is the nation's ``maxed out'' 
spectrum situation. New Jersey LPFM licensing activity is illustrative 
of the limited new station opportunities in spectrum-congested areas. 
Only 29 New Jersey LPFM applications were filed during that state's 
June 2001 window. Of those submissions, the Media Bureau has issued 
only eleven construction permits and only one additional authorization 
possibly may be granted. Only seven LPFM stations are currently 
operating in the state. We find these statistics more probative of the 
LPFM service's growth potential than the studies completed by Edgewater 
because LPFM stations, due to their limited service area potential, 
generally require higher population densities to be viable. It seems 
unlikely that the availability of spectrum in the vast rural portions 
of the nation will generate significant levels of LPFM station 
licensing.
    51. Demand for radio spectrum is, if anything, increasing. The 
number of applications filed during the AM new and major change windows 
jumped from 258 in 2000 to more than 1,300 in 2004. Competitive bidding 
activity for FM new station construction permits has been robust since 
the commencement of open FM auctions in 2004. The 2003 FM translator 
window provides further evidence of this trend, especially when 
compared to historic licensing levels for this service. As of September 
30, 1990, a total of 1,847 licensed FM translators and (co-channel) 
boosters operated throughout the nation. As of December 31, 1997, 
shortly after the date on which the Commission imposed a freeze on new 
non-reserved band translator filings (but not on new boosters or new 
reserved band stations), a total of 2,881 FM

[[Page 3210]]

translators operated nationally. The number of licensed stations 
continued to grow modestly over the next six years, chiefly as a result 
of ongoing reserved band filing activity. A total of 3,818 licensed 
stations were in operation in March 2003 when the Commission opened the 
FM translator window, a total of 3,897 licensed stations when the 
Commission imposed the Auction No. 83 construction permit freeze in 
March 2005.
    52. Measured against this historical licensing record, Auction No. 
83 window filing activity was significant. Proposals exceeded 
authorized stations by a factor of three in a service in which little 
licensing was done before the 1980s. The 2003 window already has nearly 
doubled the total number of authorized stations. To date, three times 
more translator stations have been authorized out of this one window 
than LPFM stations authorized through the initial LPFM window filing 
process. Approximately 7,000 translator applications remain pending. 
The Commission faces two chief difficulties in trying to balance 
spectrum allocations for LPFM stations and translators. First, FM 
translators are licensed under substantially more flexible technical 
rules. Thus, some of the Auction No. 83 filing activity involves 
spectrum which is unavailable for LPFM use. By the same token, LPFM 
station proponents have far fewer licensing opportunities in spectrum-
congested markets because LPFM technical rules are substantially less 
flexible. Second, it is impossible to accurately predict future demand 
for LPFM station licenses. While engineering studies can identify areas 
in which additional licensing is technically permissible, the interest 
of local organizations to apply for, construct, and operate new LPFM 
stations can only be determined at the time a window is opened.
    53. Although precise preclusionary calculations are not possible, 
we believe that processing all of the approximately remaining 7,000 
translator applications would frustrate the development of the LPFM 
service and our efforts to promote localism. Several factors support 
the adoption of some remedial measures. The sheer volume of Auction No. 
83 filings, when compared to historic translator and LPFM licensing 
levels, is a significant concern. We recognize that LPFM proponents had 
the ``first'' opportunity to file for the spectrum which Auction No. 83 
filers now propose to use. However, it is apparent that the translator 
filings have precluded or diminished LPFM filing opportunities in many 
communities. For example, a REC national study found that 16 percent of 
all census designated communities that otherwise would have LPFM 
channels available in their communities have been precluded by the 
translator filings and that the greatest preclusionary impact has been 
in the largest such communities. Moreover, the Media Bureau has found 
that its efforts to identify alternative channels for LPFM stations 
either causing or receiving interference have been significantly 
limited in numerous cases by the requirement to protect pending FM 
translator applications and authorizations granted out of the 2003 
window. The licensing asymmetries between these two services also 
support this finding. Translator filings can materially impact LPFM new 
station options which are far more limited than FM translator filing 
opportunities. In contrast, it is unlikely that LPFM filings will 
materially affect translator licensing options. FM translator contour-
based station licensing is substantially more flexible than the strict 
distance separation requirements which LPFM stations must satisfy. This 
difference is tied in part to the fact that unlike an LPFM station, an 
FM translator station must cease broadcast operations if it is causing 
``actual interference'' to any authorized broadcast station. In short, 
any translator station construction is at the risk of the permittee. 
The level of Auction No. 83 filing activity and the fact that many 
applications were filed for facilities in the top 100 markets both 
illuminate the significant difference in the licensing opportunities 
between these two services. The next LPFM window may provide the last 
meaningful opportunity to expand the LPFM service in spectrum-congested 
areas. In contrast, we expect significant filing activity in many 
future translator windows.
    54. Certain equitable considerations also tilt in favor of adopting 
remedial measures to limit the preclusive impact of Auction No. 83 
filings. Each applicant filing in Auction No. 83 submitted one Form 175 
Application to Participate in an FCC Auction and a separate Form 349 
``Tech Box'' for each translator proposal. 861 filers submitted 13,377 
such proposals in the window. Applicant filing activity divided between 
the hundreds of applicants who filed a limited number of applications 
and a very small number of applicants who filed for hundreds or 
thousands of construction permits. For example, approximately half the 
filers submitted one or two proposals. Approximately 80 percent of 
filers submitted 10 or fewer proposals. 97 percent filed 50 or fewer 
proposals. In contrast, the two most active filers, commonly-owned 
Radio Assist Ministries and Edgewater (collectively, RAM), filed 4,219 
proposals, constituting almost one-third of all Auction No. 83 filings. 
The fifteen most active filers were responsible for one-half of all 
Tech Box submissions.
    55. We are concerned that the heavily skewed filing activity in 
Auction No. 83 raises concerns about the integrity of our FM translator 
licensing procedures. Even if lawful, it is fair to question whether 
the acquisition of unprecedented numbers of FM translator 
authorizations by a handful of entities through our window filing 
application procedures promotes either diversity or localism. The rapid 
flipping of hundreds of permits acquired through the window process for 
substantial consideration does suggest that our current procedures may 
be insufficient to deter speculative conduct. Some commenters have been 
critical of RAM's business strategy. ``The [National Translator 
Association] considers those applicants who intend to obtain 
construction permits and then sell those permits to be simply 
speculators for profit.'' Most fundamentally, it appears that our 
assumption that our competitive bidding procedures would deter 
speculative filings has proven to be unfounded in the Auction No. 83 
context. RAM, alone, has sought to assign more than 50 percent of the 
1,046 construction permits it has been awarded through the window and 
has consummated assignments for over 400 of all such permits.
    56. In order to further our twin goals of increasing the number of 
LPFM stations and promoting localism, we find it necessary to take 
action. Accordingly, we will limit further processing of applications 
submitted during the Auction No. 83 filing window to ten proposals per 
applicant. Applicants with more than ten proposals pending will be 
provided an opportunity to identify those applications which they wish 
to have processed and those for which they seek voluntary dismissal. 
The Media Bureau is directed to complete its processing of the 
approximately 100 pending but frozen singleton long-form applications 
without regard to the ten application limit. However, construction 
permits granted from this group will count toward the limit for future 
Auction No. 83 licensing purposes. This cap will only apply to short-
form applications, and will not impact the ability of Auction No. 83 
filers with granted construction permits or pending long-form 
applications to obtain licenses to

[[Page 3211]]

cover. This limit will not have an adverse impact on the more than 80 
percent of those who filed ten or fewer proposals in the Auction No. 83 
filing window. It will require certain filers to identify priority 
proposals. This cut-off will limit the preclusive impact of Auction No. 
83 filings on LPFM licensing opportunities by barring the processing of 
thousands of applications filed by a very small number of applicants, 
without impacting the approximately 80 percent of filers who filed ten 
or fewer applications. Although we recognize the equitable interests of 
the remaining 20 percent of filers in the processing of all of their 
short-form applications, on balance we conclude that the public 
interest requires a bar on the processing of more than ten applications 
per filer. We are hopeful that as a result of this cap the Media Bureau 
will be able to shorten the period between windows for both new LPFM 
and FM translator stations. We direct the Media Bureau to issue a 
public notice announcing the opening of the settlement window required 
by Sec. Sec.  73.5002(c) and (d) of the rules. Applicants must select 
the ten applications they wish to preserve before the settlement window 
opens. With the imposition of this cap, we direct the Media Bureau to 
resume the processing of Auction No. 83 filings. Specifically, the 
Media Bureau is to expeditiously process the applications of any 
applicant that is now in compliance or brings itself into compliance 
with the ten proposal cap.
    57. We are mindful of the expenses that translator applicants have 
incurred in preparing their non-feeable Form 175 short-form 
applications and Form 349 Tech Box submissions but believe that the 
imposition of this cap treats all applicants equitably. We have 
attempted to accommodate applicants to the greatest extent possible, 
consistent with statutory requirements and competing Commission goals. 
All applicants will benefit from expedited processing and the Media 
Bureau's ability to open future windows more quickly. Thus, this action 
is entirely consistent with Commission's rules and precedent for the 
dismissal of pending applications as a necessary adjunct of efficient 
and effective rulemaking. Finally, we note that there is ample 
precedent for the mass dismissal of applications based on a rule or 
policy change. This procedural change is a reasonable exercise of the 
Commission's administrative discretion. Accordingly, we conclude that 
the imposition of a cap in these circumstances is lawful.
4. Interference Protection From Subsequently Authorized Full-Service FM 
Stations
    58. Background. The Report and Order establishing the LPFM service 
set minimum distance separation requirements to ensure that LPFM 
stations protect existing commercial and NCE full-service FM stations, 
as well as FM translator and booster stations. The Report and Order 
also concluded that existing full-service stations would not be 
required to protect proposed LPFM facilities. Moreover, ``operating 
LPFM stations will not be protected against interference from 
subsequently authorized full-service facility modifications, upgrades, 
or new FM stations.'' Conversely, an LPFM station is not permitted to 
cause interference within the 3.16 mV/m (70 dB[mu]) contour of a full-
service FM station. An LPFM station generally may continue to operate 
within that contour so long as it can demonstrate that actual 
interference is unlikely to occur. Section 73.809 of the rules sets 
forth detailed complaint procedures to resolve disputes over the 
likelihood of actual interference and the sufficiency of actions taken 
by LPFM stations to eliminate that interference.
    59. In September 2000, the Commission dismissed a motion to 
reconsider the regulatory status of LPFM stations. In the FNPRM, 
however, the Commission stated that ``it would be useful to consider 
whether to limit the Sec.  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.'' The Commission also 
asked whether an LPFM station should be permitted to remain on the air 
if the full-power FM station did not serve the area of predicted 
interference prior to the facilities modification (in the case of an 
existing station) or the grant of the construction permit (in the case 
of a new station). Similarly, the Commission sought comment on whether 
an LPFM station should be permitted to remain on the air if the full-
service station's community of license would not be subject to 
interference. Finally, the Commission asked whether an amendment to 
Sec.  73.809 of the rules would be consistent with Congress' directive 
mandating third-adjacent channel interference protection from LPFM 
stations.
    60. Although, to date, only one LPFM station has been forced off 
the air pursuant to the requirements of Sec.  73.809 of the rules, some 
commenters believe that numerous LPFM stations are under a significant 
threat of such ``encroachment.'' On March 5, 2007, the Commission 
received a petition for rulemaking requesting: (1) Immediate issuance 
of a moratorium on the displacement of licensed LPFM stations and Class 
D Educational stations by new, relocating and/or upgrading full-power 
radio stations, and (2) a proposed rule permanently prohibiting or 
otherwise restricting such displacement. See Petition for Rulemaking of 
the Amherst Alliance, Talk Radio of Pahrump, Midwest Christian Media, 
Providence Community Radio and Nickolaus E. Leggett N3NL at 1. In light 
of the discussion herein, we dismiss this petition. In 2005, REC 
released a study claiming that 134 LPFM construction permits and 
licenses were then at risk of being cancelled due to pending full-power 
station modification applications for vacant allotments. The study also 
claimed that hundreds of LPFM stations faced less significant levels of 
increased interference. REC has updated this analysis to assess the 
impact of applications filed under the recently-adopted rules that 
established streamlined community of license modification procedures. 
This study claims that 257 LPFM stations could suffer at least some 
signal degradation as a result of these facility changes and that 38 of 
these LPFM stations might be required to cease operations. Prometheus 
and other commenters call for the Commission to grant LPFM stations co-
equal protection status with full-power stations. Alternatively, they 
suggest that a full-power station proposing to eliminate or seriously 
degrade the listening area of an LPFM station be required to receive 
full Commission approval for such a modification. At a minimum, these 
commenters request that impacted LPFM stations be provided with the 
ability to make major engineering changes to preserve service.
    61. Conversely, many other commenters believe that no changes to 
Sec.  73.809 of the rules are warranted. Instead, NAB proposes that 
flexible procedures be put in place to encourage LPFM stations to 
relocate. NPR contends that the Commission should maintain the current 
interference protections between FM and LPFM stations. Indeed, NPR and 
others suggest that the Commission lacks statutory authority to 
eliminate second and third-adjacent channel protections. Educational 
Media Foundation states that relaxing Sec.  73.809 of the rules would 
be harmful to listener-supported NCE stations. Finally, NSBA contends 
that

[[Page 3212]]

there is a strong likelihood of harmful interference to full-service FM 
stations if the rule is changed and that harm outweighs any speculative 
benefit to the public interest that would result from a rule change.
    62. Discussion. In the Report and Order, we declined to provide 
LPFM stations with an interference protection right that could prevent 
a full-service station from seeking to modify its transmission 
facilities or could foreclose future new full-service radio station 
licensing opportunities. Our experience to date confirms our belief 
that in most instances the interests of both full-service and LPFM 
stations can be accommodated. We applaud those full-service stations 
that have provided technical and/or financial assistance to LPFM 
stations that have been required to undertake facility modifications to 
remain on the air. We are particularly appreciative of those 
broadcasters that have consented to short-spacings to avoid LPFM 
station displacements. We urge licensees seeking community of license 
modifications or other changes that could lead to LPFM displacement or 
signal degradation to continue these cooperative efforts on a going-
forward basis. The Media Bureau also has played an important role in 
crafting technical solutions to preserve LPFM stations potentially at 
risk from new station and facility modification proposals. It already 
has taken action on dozens of LPFM modification applications that were 
filed to eliminate or reduce caused interference to or received 
interference from a full-service FM station. We direct the Media Bureau 
to continue to attempt to resolve conflicts between full-service and 
LPFM stations in ways that accommodate the interests of both services.
a. Section 73.809 Interference Procedures
    63. Circumstances have changed considerably since we last 
considered the issue of protection rights for LPFM stations from 
subsequently authorized full-service stations. Most importantly, the 
January 2007 lifting of the freeze on the filing of FM community of 
license modification proposals combined with the implementation of new 
streamlined licensing procedures resulted in a one-time flurry of 
filing activity, with approximately 100 FM community of license 
modification proposals submitted in the first week of the new rules. In 
all, over 200 community of license modification applications have been 
filed under the new rules. Increased filings under the new rules and 
the arguments of LPFM advocates persuade us that the Commission should 
put policies in place to address current and future LPFM station 
displacement threats. The Media Bureau has identified approximately 40 
LPFM stations that could be forced to cease operations. In these 
circumstances, we find that the rules should be amended to limit Sec.  
73.809 interference procedures to situations involving co- and first-
adjacent channel interference.
     Thus, Sec.  73.809 will no longer apply to situations involving 
predicted second-adjacent channel interference. We encourage full-
service and LPFM stations to work cooperatively to minimize or 
eliminate the impact of the full-service station proposal on both 
stations. In this regard, we encourage each ``encroaching'' full-
service station to provide technical and financial assistance to any 
LPFM station at risk from a full-service station facility proposal and 
to identify and facilitate the implementation of measures to ameliorate 
any potential increase in received interference by the LPFM station. As 
described in more detail below, second-adjacent channel interference to 
a full service station is generally predicted to occur only in the 
immediate vicinity of the LPFM station transmitter site. Predicted 
interference to listeners can be substantially reduced or eliminated in 
these situations by various techniques, e.g., increasing LPFM antenna 
height, relocating LPFM transmission facilities away from populated 
areas, etc.
b. Section 73.807 Second-Adjacent Channel Waiver Standard
    64. The Media Bureau has identified for many of the stations now at 
risk of displacement alternate channels that would require waivers of 
Sec.  73.807 of the rules because operations on the new channels would 
be short-spaced to full service stations operating on second-adjacent 
channels. Based on the potential harm to this small but not 
insignificant number of LPFM stations, we believe that it would be 
beneficial to establish a procedural framework for the consideration of 
showings from LPFM stations that may seek such waivers to avoid 
displacement, as well as to avoid unnecessary disruption of LPFM 
service to the public during such consideration. This procedure will 
apply to both pending applications and those filed, but not disposed 
of, prior to the effective date of any rule changes proposed in the 
Second FNPRM. The clarification of our second-adjacent channel LPFM 
waiver standards set forth below is intended to avoid the unwarranted 
loss of many LPFM stations while the Commission considers certain rule 
changes set forth in a Second FNPRM that we also adopt today. The 
interim procedural protections we establish in connection with such 
waiver standards are designed to safeguard the interests of all 
affected parties and to aid the Commission in identifying those 
situations in which strict compliance with our rules would not serve 
the public interest. We also provide guidance below regarding 
processing standards that the Commission will apply to full-service 
station modification applications where the modification would place an 
LPFM station at risk of displacement and no alternate channel is 
available. In such circumstances, we will consider waiving the 
Commission's rule making LPFM stations secondary to subsequently-
authorized full-service stations and denying the modification 
application to protect an LPFM station that is demonstrably serving the 
need of the public from being required to cease operations.
    65. In evaluating whether the public interest would be served by 
grant of a waiver of Sec.  73.807 of the rules for a second-adjacent 
channel short-spacing to an LPFM station at risk of displacement, the 
Commission must balance the potential for new interference to the full-
service station against the potential loss of an LPFM station. An LPFM 
station operating within the 60 dB[mu] contour of a second-adjacent 
channel full-service station would cause interference to the full-
service station in the immediate vicinity of the LPFM transmitter site. 
Based on desired-to-undesired (D/U) signal strength ratio calculations, 
in most circumstances interference would be predicted to extend from 
ten to two hundred meters from the LPFM station antenna. Clearly, it 
will be advantageous to an LPFM applicant's waiver showing to propose 
modifications that minimize the area of predicted interference, e.g., 
by proposing maximum possible antenna heights above average terrain, 
and by selecting transmitter sites not located near densely populated 
areas. We encourage the encroaching full-service station licensee to 
provide technical assistance to LPFM stations to develop modification 
proposals that would avoid impacting current radio listening patterns.
    66. The following procedures will be limited to those situations in 
which implementation of the full-service new station or modification, 
including community of license, proposal would result in the full-
service and LPFM stations operating at less than the minimum distance 
separations set forth in Sec.  73.807 of the rules. In addition,

[[Page 3213]]

implementation of the full-service proposal must result in either an 
increase in interference caused to the LPFM station or result in the 
displacement, i.e., the suspension or termination of LPFM station 
operations pursuant to Sec.  73.809 of the rules, of the LPFM station. 
These procedures will not be available where an alternate, fully-
spaced, and rule-compliant channel is available for the LPFM licensee 
or permittee. Finally, Special Temporary Authorizations (STA) will be 
available pursuant to these procedures only if the LPFM station is 
proposing a waiver (or waivers) of LPFM second-adjacent channel spacing 
requirements.
    67. We direct the Media Bureau to contact LPFM stations that are 
currently, or in the future may become, eligible to seek facility 
modifications under these procedures. To receive consideration, an LPFM 
station must file promptly an application on Form 318 and include a 
Sec.  73.807 of the rules waiver request and showing. If the Media 
Bureau determines that the request falls within the scope of these 
procedures, it will issue an order to show cause to the potentially 
impacted full-service station(s) as to why the modification of such 
station license(s) to allow a second-adjacent channel short-spacing 
would not be in the public interest. In the event that the Media Bureau 
concludes that the public interest would be better served by waiving 
Sec.  73.807 of the rules, it will retain the LPFM station's 
application in pending status and issue an STA for the proposed LPFM 
station modifications. STAs issued pursuant to these procedures will be 
subject to any action taken by the Commission in the Second FNPRM. The 
Commission will withhold final determination of the waiver request 
until action on the Second FNPRM proposals. We encourage each 
``encroaching'' full-service station to provide technical and financial 
assistance to any LPFM station which avails itself of these procedures. 
We also direct the Media Bureau to include a condition, as appropriate, 
in the ``encroaching'' full-service station's construction permit 
requiring such station to provide technical assistance and assume 
financial responsibility for all direct expenses associated with 
resolving actual interference complaints, e.g., the purchase of radio 
filters, etc.
c. LPFM Station Displacement
    68. In certain circumstances no alternative channel will be 
available for an LPFM station at risk of displacement. With regard to 
full-service modification applications filed after the release of this 
Third Report and Order, we provide the following guidance on the 
standards that the Commission will use to determine whether grant of 
such applications are in the public interest. Generally, the Commission 
will favor grant of the full-service station modification application. 
However, we believe that it is appropriate to apply a presumption that 
the public interest would be better served by a waiver of the 
Commission's rule making LPFM stations secondary to subsequently 
authorized full-service stations and the dismissal of an 
``encroaching'' community of license reallotment application when the 
threatened LPFM station can demonstrate that it has regularly provided 
at least eight hours per day of locally originated programming, as that 
term is defined for the LPFM service. This presumption will apply only 
when implementation of a community of license modification would result 
in the displacement of an LPFM station or result in such a significant 
increase in caused interference to the LPFM station such that continued 
operations are infeasible, i.e., when the LPFM transmitter site is 
located within the interfering contour of a co- or first-adjacent 
channel community of license modification proposal. This presumption 
will also be limited to those situations in which no ``suitable'' 
alternate channel is available for the LPFM station. This presumption 
will not apply where opportunities are available for the impacted LPFM 
station to alter operations in order to avoid conflict with a full-
service station.
    69. Our evaluation of these competing demands for scarce spectrum 
will take into account the benefits of the move-in proposal under 
section 307(b) of the Communications Act of 1934, as amended, the 
amount of locally originated programming by the LPFM station, the 
extent to which other LPFM stations are licensed to and/or provide 
service to the area currently served by the threatened LPFM station, 
the extent to which other noncommercial educational (NCE) radio 
stations are providing locally originated programming to listeners in 
the LPFM station's service area, the number of LPFM stations at risk of 
displacement from the proposed community of license modification 
proposal, and any other public interest factors raised by the full-
service and LPFM station applicants or other parties. LPFM stations 
that wish to make a showing under this waiver standard must file an 
informal objection to the ``encroaching'' community of license 
modification application within sixty days of the Federal Register 
notice of such application filing. Oppositions and replies may be filed 
in accordance with Sec.  1.45 of the rules. This presumption is 
rebuttable and does not bind the Commission to a particular result. We 
caution parties that even if the required showing is made, the 
Commission in the exercise of its discretion may conclude that denial 
of the full-service station application and grant of the waiver would 
not serve the public interest.
    70. We intend to narrowly limit this policy to the class of LPFM 
stations that are demonstrably serving the needs of local listeners. 
Moreover, this policy will not apply in a situation in which a full-
service station proposes a facility change to improve service to its 
current community of license. We emphasize that we will dismiss a 
community of license modification proposal only when no technically 
reasonable accommodation is available and the LPFM station makes the 
requisite waiver showing. We conclude that this processing policy 
appropriately balances the interests of full-service and LPFM stations, 
and recognizes the role that each service plays in promoting diversity 
and localism. The Commission is seeking comment on the presumption in 
the attached Second FNPRM and may modify it based on the comments 
received in response thereto.
    71. We believe that Sec.  73.807 of the rules and LPFM displacement 
standards will effectively balance the interests of LPFM and full-
service broadcasters while the Commission considers the Second FNPRM 
proposals. While REC has identified many LPFM stations that ultimately 
may be required to modify their facilities as a result of encroachment, 
we do not see this as a threat to the viability of the LPFM service, 
especially with the additional protections and procedures we adopt 
herein. REC's claim that many LPFM stations face interference merely 
describes a basic feature of the service in today's congested FM 
broadcast radio spectrum. Opportunities exist for many LPFM stations to 
change locations, reduce power, or change channels in the event that a 
conflict arises with a full-service station. Furthermore, the majority 
of the stations identified as ``less significant risks'' by REC solely 
exist today because of the flexible nature of the spacing rules under 
Sec.  73.807 of the rules. Section 73.807 clearly identifies the 
distance separations necessary for LPFM stations to avoid received 
interference but does not require LPFM stations to meet this stringent 
standard. This rule fully protects nearby full-power FM stations while 
also allowing interference to

[[Page 3214]]

LPFM stations in some instances. Therefore, LPFM stations at distances 
less than those specified in Sec.  73.807 of the rules in the column 
labeled ``for no interference received from max. class facility'' can 
expect to receive interference.

IV. Conclusion

    72. The rules and policies adopted herein will promote the 
continued operation and expansion of LPFM service. Our actions today 
further the public interest and ensure that we maximize the value of 
LPFM service without harming the interests of full-power FM stations or 
other Commission licensees. To further these goals, we also recommend 
to Congress that it remove the requirement that LPFM stations protect 
full-power stations operating on third adjacent channels.

V. Administrative Matters

A. Regulatory Flexibility Analysis

    73. Final Regulatory Flexibility Analysis. The Regulatory 
Flexibility Act of 1980, as amended (RFA), requires that a regulatory 
flexibility analysis be prepared for notice and comment rule making 
proceedings, unless the agency certifies that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' The RFA generally defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act. 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 Small Business 
Administration (SBA).
    74. As required by the Regulatory Flexibility Act, the Commission 
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to 
this Third Report and Order.
    75. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the FNPRM in this proceeding. The Commission sought 
written public comment on the proposals in the FNPRM, including comment 
on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms 
to the RFA.
Need for, and Objectives of, the Third Report and Order
    76. The policies and rules set forth herein are required to ensure 
that the Commission advances the goal of maximizing the value of LPFM 
service without harming the interests of full-power FM stations or 
other Commission licensees. In this Third Report and Order, the 
Commission (1) eases the paperwork burdens on LPFM licensees, by 
clarifying that transfers of control involving a sudden change of more 
than 50 percent of an LPFM licensee's governing board shall not be 
deemed ``a substantial change in ownership and control'', as LPFM 
boards can be subject to substantial turnover; (2) allows for the 
transfer and assignment of LPFM stations subject to certain conditions, 
such as: a cap on the sale price to the depreciated fair market value 
of the physical assets of the facility; (3) the imposition of a three 
year holding period during which the initial licensee must operate the 
station, a requirement that the assignee or transferee of an LPFM 
license is required to satisfy the ownership and eligibility criteria 
existing at the time of the assignment or transfer, and a prohibition 
on the assignment or transfer of construction permits; (4) reinstates 
the LPFM local ownership eligibility restriction; (5) allows an 18 
month extension for good cause of the LPFM construction period; and (6) 
provides for additional technical amendments, such as allowing time-
sharing applications to seek authority to place their transmitter at a 
central location, limiting the processing of applications submitted 
during the Auction No. 83 filing window to ten proposals per applicant, 
amending the rules to limit Sec.  73.809 interference procedures to 
situations involving co- and first-adjacent channel interference, and a 
procedural framework for the consideration of showings from LPFM 
stations that may seek waivers of Sec.  73.807 of the rules to avoid 
displacement, as well as to avoid unnecessary disruption of LPFM 
service to the public.
Summary of Significant Issues Raised by Public Comments in Response to 
the IRFA
    77. None.
Description and Estimate of the Number of Small Entities to Which the 
Adopted Rules Will Apply
    78. 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 rules adopted herein. The RFA generally defines the 
term ``small entity'' as encompassing the terms ``small business,'' 
``small organization,'' and ``small governmental entity.'' In addition, 
the term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. 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 Small Business Administration 
(SBA).
    79. LPFM Radio Stations. The proposed rules and policies 
potentially will apply to all low power FM radio broadcasting licensees 
and potential licensees. The SBA defines a radio broadcasting station 
that has $6.5 million or less in annual receipts as a small business. 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. Radio broadcasting stations which primarily are engaged in 
radio broadcasting and which produce radio program materials are 
similarly included. As of the date of release of this Third Report and 
Order, the Commission's records indicate that more than 1,225 LPFM 
construction permits have been granted. Of those permits, approximately 
820 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 do we know how many of these 
entities will be small entities. We expect, 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
    80. The rules adopted in this Third Report and Order will impose 
different reporting or recordkeeping requirements on existing LPFM 
stations. First, the clarification that transfers of control involving 
a sudden change of more than 50 percent of an LPFM licensee's governing 
board shall not be deemed ``a substantial change in ownership and 
control,'' will ease paperwork burdens upon licensees. The Third Report 
and Order will also involve additional paperwork burdens. First, as 
this Third Report and Order will allow for the transfer and assignment 
of LPFM licenses, the Commission will require the collection of 
information necessary for the purposes of processing such applications. 
Second, this Third Report and Order clarifies the renewal process for 
time-sharing entities, and the process for the administration of such 
applications. Third, Auction 83

[[Page 3215]]

applicants that filed more than 10 applications must select the ten 
applications they wish to preserve, versus those that will be 
automatically dismissed, after the Media Bureau issues a Public Notice 
on this subject. There is no disproportionate impact on small entities 
as these additional reporting and recordkeeping requirements since 
these requirements are imposed equally on large and small entities.
Steps Taken To Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered
    81. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    82. Consideration of alternatives methods to reduce the impact on 
small entities is unnecessary. The Third Report and Order decreases 
existing burdens on small entities and increases their flexibility. 
First, the clarification that transfers of control involving a sudden 
change of more than 50 percent of an LPFM licensee's governing board 
shall not be deemed ``a substantial change in ownership and control,'' 
will ease paperwork burdens upon LPFM station, many of which are small 
entities. Further, the changes in the ownership rules will allow 
greater flexibility for LFPM licensees. Finally, the changes in the 
technical rules will allow more small entity LPFM stations to exist. In 
addition, the Third Report and Order does not impose different burdens 
on large and small entities. The record keeping requirements will help 
facilitate the transfer and assignment of licenses and clarifies the 
renewal process for time-sharing entities, including the administration 
of such applications.
    83. LPFM service has created and will continue to create 
significant opportunities for new small businesses by allowing small 
businesses to develop LPFM service in their communities. In addition, 
the Commission generally has taken steps to minimize any burdensome 
regulation on existing small broadcasters. To the extent that the Third 
Report and Order imposes any burdens on small entities, these burdens 
are only incident to the benefits conferred: greater flexibility of 
LPFM stations in transferring, assigning and renewing LPFM stations.

B. Report to Congress

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

C. Paperwork Reduction Act Analysis

    85. This Third Report and Order contains new and modified 
information collection requirements which were proposed in the FNPRM, 
and are subject to the Paperwork Reduction Act of 1995 (PRA).
    86. We have assessed the effects of requiring documentation in 
relation to: (1) the proposed changes to Forms 314, 315 and 316 for the 
transfer and/or assignment of LPFM licenses; and (2) the proposed 
changes to Form 318 for the relocation of transmitter sites for 
voluntary time-share applicants. We find that to the extent that this 
Third Report and Order imposes any burdens on small entities, the 
resulting impact on small entities is favorable because the rules 
expand opportunities for LPFM applicants, permittees, and licensees to 
transfer and assign licenses, relocate transmitter sites, and extend 
construction deadlines. These information collection requirements were 
submitted to the Office of Management and Budget (OMB) for review under 
section 3507(d) of the PRA. In addition, the general public and other 
Federal agencies were invited to comment on these information 
collection requirements in the FNPRM. We further note that pursuant to 
the Small Business Paperwork Relief Act of 2002, we previously sought 
specific comment on how the Commission might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.'' We received no comments concerning these 
information collection requirements. On August 25 and 30, 2005, the 
Commission obtained OMB approval for these information collection 
requirements, encompassed by OMB Control Nos. 3060-0031 (Forms 314-
315), 3060-0009 (Form 316) and 3060-0920 (Form 318). This Third Report 
and Order adopts portions of the above information collection 
requirements, as proposed. Additional changes are necessary to Forms 
314, 315, 316 and 318, and will be submitted to OMB for approval.
    87. This document contains modified and new information collection 
requirements. In this Third Report and Order, we require documentation 
in relation to: (1) An optional 18-month extension of a construction 
permit upon a showing of good cause; (2) the voluntary withdrawal of 
Form 349 tech box proposals in order to come into compliance with the 
cap of 10 proposals; (3) the voluntary filing of a request, on Form 
318, for waiver of Sec.  73.807 of the rules for a second-adjacent 
short-spacing to an LPFM station at risk of displacement by a full-
service station; and (4) the voluntary filing of waiver of the 
Commission rule making LPFM stations secondary to subsequently 
authorized full-service stations, where an LPFM station at risk of 
displacement by a full-service station can demonstrate that it provides 
at least eight hours a day of locally originated programming and that 
no suitable alternate channel is available. As discussed above, 
additional changes are necessary to Forms 314, 315, 316 and 318, and 
will be submitted to OMB for review and approval under section 3507(d) 
of the PRA. The Commission will publish a separate Federal Register 
notice seeking these comments from the public. OMB, the general public, 
and other Federal agencies are invited to comment on the modified and 
new information collection requirements contained in this proceeding.

D. Congressional Review Act

    88. The Commission will send a copy of this Third Report and Order 
in a report to be sent to Congress and the Government Accountability 
Office pursuant to the Congressional Review Act, see 5 U.S.C. 
801(a)(1)(A).

E. Additional Information

    89. For additional information on this proceeding, please contact 
Peter Doyle, Audio Division, Media Bureau, at (202) 418-2700, or Holly 
Saurer, Policy Division, Media Bureau, at (202) 418-7283. For PRA-
related questions, please contact Cathy Williams, at (202) 418-2918 or 
via e-mail at [email protected].

VI. Ordering Clauses

    90. It is ordered that, pursuant to the authority contained in 
sections 1, 2, 4(i), 303, 403 and 405 of the Communications Act of 
1934, 47 U.S.C.

[[Page 3216]]

151, 152, 154(i), 303, 403, and 405, this Third Report and Order is 
adopted.
    91. It is further ordered that, pursuant to the authority contained 
in Sections 1, 2, 4(i), 303, 303(a), 303(b), and 307 of the 
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 303(a), 
303(b), and 307, the Commission's rules are hereby amended as set forth 
in Appendix B. It is our intention in adopting these rule changes that, 
if any provision of the rules is held invalid by any court of competent 
jurisdiction, the remaining provisions shall remain in effect to the 
fullest extent permitted by law.
    92. It is further ordered that the rules as revised in Appendix B 
shall be effective March 17, 2008. Changes to FCC Forms 314, 315, 316 
and 318 will be effective 60 days after Federal Register publication of 
OMB approval of the forms. With respect to renewal applications, we 
will evaluate compliance with these requirements in applications filed 
in the next renewal cycle. Licensee performance during any portion of 
the renewal term that predates the effective date of the rules in the 
Third Report and Order will be evaluated under current rules, and 
licensee performance that post-dates the effective date of the revised 
rules will be judged under the new provisions.
    93. It is further ordered that, pursuant to Sec. Sec.  0.201 
through .204 of the Commission's rules, 47 CFR 0.201 through .204, and 
section 5(c)(1) of the Communications Act of 1934, as amended, 47 
U.S.C. 155(c)(1), the Chief, Media Bureau, is delegated authority to 
act as described in paragraphs 40, 56, 62 and 67 herein.
    94. It is further ordered that the Petition for Rulemaking filed by 
the Amherst Alliance, Talk Radio of Pahrump, Midwest Christian Media, 
Providence Community Radio, and Nickolaus E. Leggett N3NL is hereby 
dismissed.
    95. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Third Report and Order and Second Further Notice of 
Proposed Rulemaking, including the Initial Regulatory Flexibility 
Analysis and the Final Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.
    96. It is further ordered that the Commission shall send a copy of 
this Third Report and Order and Second Further Notice of Proposed 
Rulemaking in a report to be sent to Congress and the General 
Accounting Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 73

    Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority citation for part 73 continues to read as follows:

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


0
2. Section 73.809 is amended by revising paragraphs (a) and (b) to read 
as follows:


Sec.  73.809  Interference protection to full service FM stations.

    (a) If a full service commercial or NCE FM facility application is 
filed subsequent to the filing of an LPFM station facility application, 
such full service station is protected against any condition of 
interference to the direct reception of its signal caused by such LPFM 
station that operates on the same channel, first-adjacent channel or 
intermediate frequency (IF) channel as or to such full service station, 
provided that the interference is predicted to occur and actually 
occurs within:
    (1) The 3.16 mV/m (70 dBu) contour of such full service station;
    (2) The community of license of such full service station; or
    (3) Any area of the community of license of such full service 
station that is predicted to receive at least a 1 mV/m (60 dBu) signal. 
Predicted interference shall be calculated in accordance with the 
ratios set forth in Sec.  73.215 paragraphs (a)(1) and (a)(2). 
Intermediate frequency (IF) channel interference overlap will be 
determined based upon overlap of the 91 dBu F(50,50) contours of the FM 
and LPFM stations. Actual interference will be considered to occur 
whenever reception of a regularly used signal is impaired by the signal 
radiated by the LPFM station.
    (b) An LPFM station will be provided an opportunity to demonstrate 
in connection with the processing of the commercial or NCE FM 
application that interference as described in paragraph (a) of this 
section is unlikely. If the LPFM station fails to so demonstrate, it 
will be required to cease operations upon the commencement of program 
tests by the commercial or NCE FM station.
* * * * *

0
3. Section 73.853 is amended by revising paragraph (b) to read as 
follows:


Sec.  73.853  Licensing requirements and service.

* * * * *
    (b) Only local applicants will be permitted to submit applications. 
For the purposes of this paragraph, an applicant will be deemed local 
if it can certify that:
    (1) The applicant, its local chapter or branch is physically 
headquartered or has a campus within 16.1 km (10 miles) of the proposed 
site for the transmitting antenna for applicants in the top 50 urban 
markets, and 32.1 km (20 miles) for applicants outside of the top 50 
urban markets;
    (2) It has 75% of its board members residing within 16.1 km (10 
miles) of the proposed site for the transmitting antenna for applicants 
in the top 50 urban markets, and 32.1 km (20 miles) for applicants 
outside of the top 50 urban markets; or
    (3) In the case of any applicant proposing a public safety radio 
service, the applicant has jurisdiction within the service area of the 
proposed LPFM station.

0
4. 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 or more LPFM stations.
    (b) Not-for-profit organizations and governmental entities with a 
public safety purpose may be granted multiple licenses if:
    (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.

0
5. Section 73.865 is revised to read as follows:


Sec.  73.865  Assignment and transfer of LPFM licenses.

    (a) Assignment/Transfer: No party may assign or transfer an LPFM 
license if:
    (1) Consideration promised or received exceeds the depreciated fair 
market value of the physical equipment and facilities; and/or
    (2) The transferee or assignee is incapable of satisfying all 
eligibility criteria that apply to a LPFM licensee.

[[Page 3217]]

    (b) 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.
    (c) Holding Period: A license cannot be transferred or assigned for 
three years from the date of issue, and the licensee must operate the 
station during the three-year holding period.
    (d) No party may assign or transfer an LPFM construction permit at 
any time.
    (e) Transfers of control involving a sudden change of more than 50 
percent of an LPFM's governing board shall not be deemed a substantial 
change in ownership or control, subject to the filing of an FCC Form 
316.

0
6. Section 73.870 is amended by revising paragraph (a) and adding 
paragraph (f) to read as follows:


Sec.  73.870  Processing of LPFM broadcast station applications.

    (a) A minor change for an LP100 station authorized under this 
subpart is limited to transmitter site relocations of 5.6 kilometers or 
less. A minor change for an LP10 station authorized under this subpart 
is limited to transmitter site relocations of 3.2 kilometers or less. 
These distance limitations do not apply to amendments or applications 
proposing transmitter site relocation to a common location filed by 
applicants that are parties to a voluntary time-sharing agreement with 
regard to their stations pursuant to Sec.  73.872 paragraphs (c) and 
(e). Minor changes of LPFM stations may include:
    (1) Changes in frequency to adjacent or IF frequencies or, upon a 
technical showing of reduced interference, to any frequency; and
    (2) Amendments to time-sharing agreements, including universal 
agreements that supersede involuntary arrangements.
* * * * *
    (f) New entrants seeking to apply for unused or unwanted time on a 
time-sharing frequency will only be accepted during an open filing 
window, specified pursuant to paragraph (b) of this section.

0
7. Section 73.871 is amended by revising paragraph (c) 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, minor amendments are limited to:
    (1) Filings subject to paragraph (c)(5), site relocations of 3.2 
kilometers or less for LP10 stations;
    (2) Filings subject to paragraph (c)(5), 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;
    (4) Universal voluntary time-sharing agreements to apportion vacant 
time among the licensees;
    (5) Other changes in general and/or legal information; and
    (6) Filings proposing transmitter site relocation to a common 
location submitted by applicants that are parties to a voluntary time-
sharing agreement with regard to their stations pursuant to Sec.  
73.872 paragraphs (c) and (e).
* * * * *

0
8. Section 73.872 is amended by revising paragraphs (c) and (d)(1), 
adding paragraph (d)(3) and revising paragraph (e) 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 minor amendments to the 
time-share proponents' applications, and shall become part of the terms 
of the station authorization. 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; and
    (iii) Each time-share proponent must propose to operate for at 
least 10 hours per week.
    (2) Where a station is authorized pursuant to a time-sharing 
proposal, a change of the regular schedule set forth therein will be 
permitted only where a written agreement signed by each time-sharing 
permittee or licensee and complying with requirements in paragraphs 
(c)(1)(i) through (iii) of this section is filed with the Commission, 
Attention: Audio Division, Media Bureau, prior to the date of the 
change.
    (3) Where a station is authorized pursuant to a voluntary time-
sharing proposal, the parties to the time-sharing agreement may 
apportion among themselves any air time that, for any reason, becomes 
vacant.
    (4) Successive license terms granted under paragraph (d) may be 
converted into voluntary time-sharing arrangements renewable pursuant 
to Sec.  73.3539 by submitting a universal time-sharing proposal.
    (d) Successive license terms. (1) If a tie among mutually exclusive 
applications is not resolved through voluntary 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, non-renewable 
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 
the 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.
* * * * *
    (3) If successive license terms granted under this section are 
converted into universal voluntary time-sharing arrangements pursuant 
to paragraph (c)(4) of this section, the permit or license is renewable 
pursuant to Sec. Sec.  73.801 and 73.3539.
    (e) Mutually exclusive applicants may propose a settlement at any 
time during the selection process after the release of a public notice 
announcing the mutually exclusive groups. Settlement proposals must 
include all of the applicants in a group and must comply with the 
Commission's rules and policies regarding settlements, including the 
requirements of Sec. Sec.  73.3525, 73.3588, and 73.3589. Settlement 
proposals may include time-share agreements that comply with the

[[Page 3218]]

requirements of paragraph (c) of this section, provided that such 
agreements may not be filed for the purpose of point aggregation 
outside of the 90 day period set forth in paragraph (c) of this 
section.

0
9. 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 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. Each 
original construction permit for the construction of a new LPFM station 
shall specify a period of eighteen months from the date of issuance of 
the construction permit within which construction shall be completed 
and application for license filed. A LPFM permittee unable to complete 
construction within the time frame specified in the original 
construction permit may apply for an eighteen month extension upon a 
showing of good cause. The LPFM permittee must file for an extension on 
or before the expiration of the construction deadline specified in the 
original construction permit.
* * * * *
[FR Doc. E8-783 Filed 1-16-08; 8:45 am]
BILLING CODE 6712-01-P