[Federal Register Volume 74, Number 112 (Friday, June 12, 2009)]
[Proposed Rules]
[Pages 27985-27988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13865]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 99-325; DA 09-1127]


FM Digital Power Increase and Associated Technical Studies

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission seeks 
comment on four issues, discussed below in the Synopsis, that are 
related to a request by certain private parties, identified below, that 
the technical specifications for FM digital audio broadcasting 
(``DAB'') set forth in the Commission's rules be amended to increase 
the maximum permissible operating power from the current level of 1 
percent of a station's authorized analog power (-20 dB) up to a maximum 
of 10 percent of a station's authorized analog power (-10 dB). This 
document establishes a period for public comment on these issues and on 
two related technical studies.

DATES: Comments for this proceeding are due on or before July 6, 2009. 
Reply comments are due on or before July 17, 2009.

ADDRESSES: You may submit comments, identified by MM Docket No. 99-325, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     Mail: 445 12th Street, SW., Washington, DC 20554, with a 
copy to the Commission's duplicating contractor, Best Copy and 
Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Peter H. Doyle, Chief, Audio Division, 
Media Bureau, at (202) 418-2700.

SUPPLEMENTARY INFORMATION: This is a summary of a Public Notice 
released by

[[Page 27986]]

the Media Bureau on May 22, 2009. The full text of this document is 
available for public inspection and copying during regular business 
hours in the Commission's Reference Information Center, Portals II, 445 
12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text 
of this document also may be purchased from the Commission's copy 
contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554, telephone (202) 488-5300, 
facsimile (202) 488-5563 or via e-mail [email protected]. The full text 
may also be downloaded at: http://www.fcc.gov. Pursuant to Sec. Sec.  
1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, 
interested parties may file comments and reply comments on or before 
the dates indicated on the first page of this document. Comments may be 
filed using: (1) The Commission's Electronic Comment Filing System 
(ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by 
filing paper copies. See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
     For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to [email protected], and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although we continue to experience delays in receiving U.S. 
Postal Service mail). All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (Voice), 202-
418-0432 (TTY).

Summary of Public Notice

    On October 23, 2008, the Media Bureau released the ``October 23, 
2008, Public Notice'' soliciting comment on both a request filed June 
10, 2008, asking the Commission to modify the technical specifications 
for FM digital audio broadcasting (DAB), and on two related technical 
studies. Comment Sought on Joint Parties Request for FM Digital Power 
Increase and Associated Technical Studies, MM Docket No. 99-325, Public 
Notice, DA 08-2340 (MB rel. Oct. 23, 2008). The request was filed by a 
group consisting of 18 broadcasters that operate over 1200 commercial 
and noncommercial educational (``NCE'') FM radio stations throughout 
the United States and the 4 largest manufacturers of broadcast 
transmission equipment, collectively identifying themselves as the 
``Joint Parties.'' The Joint Parties requested that the Commission 
increase the maximum permissible digital operating power of FM stations 
from the current level of 1 percent of a station's authorized analog 
power (-20 dB) to a maximum of 10 percent of a station's authorized 
analog power (-10 dB) (the ``Joint Parties' Request'').
    The October 23, 2008, Public Notice also sought comment on two 
related technical studies. Filed concurrently with and in support of 
the Joint Parties' Request was a technical report prepared by iBiquity 
Digital Corporation (``iBiquity''). In addition, National Public Radio 
(``NPR'') submitted on July 18, 2008, its Corporation for Public 
Broadcasting (``CPB'')-supported research on digital radio coverage and 
interference. The October 23, 2008, Public Notice sought comment on the 
Joint Parties' Request and these related technical studies.
    Developments since the release of the October 23, 2008, Public 
Notice prompt the solicitation of further public comment. Specifically, 
in response to the October 23, 2008, Public Notice, the Media Bureau 
has received comments and reply comments both supporting and opposing 
the Joint Parties' Request. The Joint Parties have urged the Commission 
to move expeditiously on its request to ameliorate the coverage 
shortfalls and reception difficulties that result from digital 
transmissions at currently authorized power levels. NPR has announced 
the commencement of additional CPB-supported testing of FM DAB. NPR, 
NPR Labs Launches CPB-Funded Study on Power Increase for HD Radio 
(press release), http://www.npr.org/about/press/2009/040209.CPBLabs.html, Apr. 2, 2009. See also NPR ex parte filings, MM 
Docket No. 99-325. NPR states that its additional testing will result 
in a recommendation of the amount of power increase needed to improve 
digital radio coverage while also protecting analog FM signals, 
including subcarrier transmissions, from interference. The study also 
proposes to consider the minimum spacing distances needed to protect 
analog signals from higher powered digital operations. NPR states that 
the findings of its study will be presented in September 2009. Letter 
from Gregory A. Lewis, Counsel for NPR, to Marlene H. Dortch, 
Secretary, FCC, Attach. (Mar. 30, 2009). In response to the record 
before the Commission, as well as NPR's plans for additional testing of 
FM DAB, the Media Bureau solicits further comment on the previously 
submitted iBiquity and NPR technical studies and on the following 
issues: (1) Whether the Bureau should defer consideration of the Joint 
Parties' requested power increase until the completion of and comment 
on the further NPR studies; (2) whether the record in this proceeding, 
the real world experience gained from over 1,400 FM stations operating 
for several years in the hybrid mode and the record of experimental 
authorizations at higher digital power levels warrant an increase in 
maximum digital operating power as proposed by the Joint Parties or 
support a provisional power increase of some lesser extent

[[Page 27987]]

than that requested by the Joint Parties; (3) if the Commission does 
adopt a power increase, whether it should also establish standards to 
ensure the lack of interference to the analog signals of stations 
operating on first adjacent channels; and whether such standards should 
apply to, i.e., require the protection of, LPFM stations operating on 
first adjacent channels; and (4) if the Commission does adopt a power 
increase, whether it should also establish more explicit procedures to 
resolve digital-into-analog interference complaints.
    The Joint Parties' Request and the iBiquity and NPR technical 
studies are available electronically at http://fjallfoss.fcc.gov//prod/ecfs/comsrch_v2.cgi under MM Docket No. 99-325, or from the 
Commission's duplicating contractor, Best Copy and Printing, Inc. 
(``BCPI''), 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 
1-800-378-3160. The Media Bureau seeks comment on the issues identified 
above. The Bureau also seeks comment on the Initial Regulatory 
Flexibility Analysis below. This action is taken under delegated 
authority pursuant to Sec. Sec.  0.61 and 0.283 of the Commission's 
rules, 47 CFR 0.61, 0.283, and the Second Report and Order, 22 FCC Rcd 
at 10383, ] 99.

Paperwork Reduction Act

    The proposal under consideration may result in a new or revised 
information collection requirement being adopted by the Commission when 
the final rules are adopted. If the Commission adopts any new or 
revised information collection requirement, the Commission will publish 
a separate notice in the Federal Register inviting the public to 
comment on the requirement, as required by the Paperwork Reduction Act 
of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), the Commission will seek specific comment on 
how it might ``further reduce the information collection burden for 
small business concerns with fewer than 25 employees.''

Ex Parte Restrictions

    This proceeding has been designated ``permit but disclose'' for 
purposes of the Commission's ex parte rules, 47 CFR 1.1200-1.1216. Ex 
parte presentations will be governed by the procedures set forth in 47 
CFR 1.1206 applicable to non-restricted proceedings.

Initial Regulatory Flexibility Analysis

    1. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\1\ the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (IRFA) of the possible significant 
economic impact on a substantial number of small entities by the 
policies and rules proposed. Written public comments are requested on 
this IRFA. Comments must be identified as responses to the IRFA and 
must be filed by the deadlines for comments on the proposed rule as 
provided in the ``Dates'' paragraph of the item. The Commission will 
send a copy of the proposed rule, including this IRFA, to the Chief 
Counsel for Advocacy of the Small Business Administration (SBA).\2\ In 
addition, the proposed rule and IRFA (or summaries thereof) will be 
published in the Federal Register.\3\
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \2\ See 5 U.S.C. 603(a).
    \3\ See id.
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A. Need for and Objectives of the Proposed Rules

    2. This document seeks comment on issues, discussed infra in 
paragraph 4, concerning the Joint Parties' proposed increase in maximum 
permissible digital operating power for FM stations utilizing DAB from 
the current level of 1 percent of a station's authorized analog power 
(-20 dB) up to a maximum of 10 percent of a station's authorized analog 
power (-10 dB). The proposed voluntary increase by FM stations to any 
digital power level up to 10% of a station's authorized analog power 
would serve to facilitate the ability of FM stations to achieve digital 
replication of their analog signals and to overcome in-building digital 
reception problems.
    3. This document seeks comment on relevant technical studies 
submitted by iBiquity and NPR. The iBiquity study, filed in support of 
the Joint Parties' Request, examined the benefits to digital 
broadcasting, the compatibility with analog broadcasting, and the 
potential interference effects resulting from the proposed increase in 
maximum permissible FM digital operating power. The iBiquity study 
concluded that an increase in authorized FM digital power levels to 10 
percent of a station's authorized analog power would significantly 
improve digital coverage while avoiding, in the majority of instances, 
increased interference to reception of analog signals of FM stations 
operating on first adjacent channels. The NPR study concluded that, 
although such an increase in authorized FM digital power levels would 
improve digital coverage in most instances, it could also result in 
substantial interference to reception of the analog signals of FM 
stations operating on first and second adjacent channels, and that 
further testing would be necessary to determine if increased digital 
operating power should be permitted for FM stations.
    4. In response to the record before the Commission in MM Docket 99-
325, as well as NPR's announced plans for additional testing of FM 
DAB,\4\ the Media Bureau also solicits comment on the following issues: 
(1) Whether the Bureau should defer consideration of the Joint Parties' 
requested power increase until the completion of and comment on the 
further NPR studies; (2) whether the record in this proceeding, the 
real world experience gained from over 1,400 FM stations operating for 
several years in the hybrid mode and the record of experimental 
authorizations at higher digital power levels warrant an increase in 
maximum digital operating power as proposed by the Joint Parties or 
support a provisional power increase of some lesser extent than that 
requested by the Joint Parties; (3) if the Commission does adopt a 
power increase, whether it should also establish standards to ensure 
the lack of interference to the analog signals of stations operating on 
first adjacent channels, and whether such standards should apply to, 
i.e., require the protection of, LPFM stations operating on first 
adjacent channels; and (4) if the Commission does adopt a power 
increase, whether it should also establish more explicit procedures to 
resolve digital-into-analog interference complaints.
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    \4\ See Letter from Gregory A. Lewis, Counsel for NPR, to 
Marlene H. Dortch, Secretary, FCC (Mar. 30, 2009).
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B. Legal Basis

    5. The authority for this notice is contained in\\ Sections 1, 2, 
4(i) and (j), 301, 302, 303, 307, 308, and 309 of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and (j), 301, 302, 
303, 307, 308, and 309.

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

    6. 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

[[Page 27988]]

proposed rules.\5\ The RFA generally defines the term ``small entity'' 
as encompassing the terms ``small business,'' ``small organization,'' 
and ``small governmental entity.'' \6\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\7\ 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'').\8\ The 
proposed rules and policies potentially will apply to all FM radio 
broadcasting licensees and potential licensees.
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    \5\ 5 U.S.C. 603(b)(3).
    \6\ 5 U.S.C. 601(6).
    \7\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \8\ 15 U.S.C. 632.
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    7. The SBA defines a radio broadcasting station that has $7 million 
or less in annual receipts as a small business.\9\ A radio broadcasting 
station is an establishment primarily engaged in broadcasting aural 
programs by radio to the public.\10\ Included in this industry are 
commercial, religious, educational, and other radio stations.\11\ Radio 
broadcasting stations which primarily are engaged in radio broadcasting 
and which produce radio program materials are similarly included.\12\ 
However, radio stations that are separate establishments and are 
primarily engaged in producing radio program material are classified 
under a separate NAICS number.\13\ According to Commission staff review 
of the BIA Financial Network, Inc. Media Access Radio Analyzer Database 
as of February 19, 2009, about 10,600 (96 percent) of 11,050 commercial 
radio stations in the United States have revenues of $7 million or 
less. We note that many radio stations are affiliated with much larger 
corporations having much higher revenue. Our estimate, therefore, 
likely overstates the number of small entities that might be affected 
by our action.
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    \9\ See 13 CFR 121.201, NAICS Code 515112 (changed from 513112 
in October 2002).
    \10\ Id.
    \11\ Id.
    \12\ Id.
    \13\ Id.
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D. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements

    8. In the Second Report and Order, the Commission declined to 
establish a deadline for radio stations to convert to digital 
broadcasting, 22 FCC Rcd at 10351. Presently, radio stations may choose 
to commence DAB operation pursuant to Section 73.404 of the 
Commission's rules, 47 CFR 73.404, which requires in part that 
licensees provide notification to the Commission within 10 days of 
commencing DAB operation. The proposed rule change may impose 
additional reporting or recordkeeping requirements on FM radio stations 
choosing to upgrade DAB operating power above the current limitation of 
1 percent of a station's authorized analog power. For example, 
licensees choosing to increase DAB operating power above 1 percent of 
authorized analog power could be required to notify the Commission of 
the increase in power.

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

    9. 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.\14\ This document has proposed for commenter evaluation the 
issue of taking steps to minimize significant impact on small entities, 
focusing on the four issues, enumerated supra in paragraph 6, relevant 
to the Joint Parties' Request, as well as on any issues raised by the 
technical studies previously submitted by iBiquity and NPR. To assist 
in the analysis, commenters are requested to provide information, 
studies, and/or opinions regarding how small entities would be affected 
if the Commission were to adopt an increase in maximum digital 
operating power as proposed by the Joint Parties or a provisional power 
increase of some lesser extent than that requested by the Joint 
Parties, and whether such adoption could result in the disparate 
treatment of small entities with limited financial and/or technical 
resources. Commenters should also provide information, studies, and/or 
opinions on alternative approaches to alleviate any potential burdens 
on small entities.
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    \14\ 5 U.S.C. 603(b).
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F. Federal Rules Which Duplicate, Overlap, or Conflict With, the 
Commission's Proposals

    10. None.

Federal Communications Commission.
Robert H. Ratcliffe,
Acting Chief, Media Bureau.
[FR Doc. E9-13865 Filed 6-11-09; 8:45 am]
BILLING CODE 6712-01-P