[Federal Register Volume 75, Number 67 (Thursday, April 8, 2010)]
[Rules and Regulations]
[Pages 17874-17878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8012]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 99-325; DA 10-208]


Digital Audio Broadcasting Systems and Their Impact on the 
Terrestrial Radio Broadcast Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Media Bureau adopts changes in the digital audio 
broadcasting (DAB) rules to permit FM radio stations to voluntarily 
increase FM hybrid digital effective radiated power (ERP), and 
implements interference mitigation and remediation procedures to 
resolve promptly allegations of digital interference to authorized 
full-service FM analog stations resulting from an FM digital ERP 
increase undertaken pursuant to the procedures adopted. The increase in 
FM hybrid digital ERP will allow an FM station's digital coverage area 
to more closely replicate its licensed analog coverage area, and the 
interference mitigation and remediation procedures will make certain 
that permissible increases in FM digital ERP do not adversely affect 
existing FM analog operations. These rule changes balance the immediate 
need for improved FM digital coverage with the continued need to limit 
interference from digital FM facilities to FM analog stations.

DATES: Effective May 10, 2010.

FOR FURTHER INFORMATION CONTACT: Peter H. Doyle or Susan N. Crawford, 
Media Bureau, Federal Communications Commission, 202-418-2700.

SUPPLEMENTARY INFORMATION: This is a summary of the Media Bureau's 
Order in MM Docket No. 99-325, adopted January 27, 2010, and released 
January 29, 2010.

Background and Related Documents

    In the First Report and Order in MM Docket No. 99-325 (See 67 FR 
78193, December 12, 2002), the Commission adopted rules permitting 
terrestrial radio stations to begin hybrid digital operations, i.e. the 
simultaneous transmission of analog and digital signals, using the in 
band-on channel (IBOC) DAB system developed by iBiquity Digital 
Corporation (iBiquity). As adopted, the IBOC DAB system permitted an FM 
station to operate with digital effective radiated power (ERP) equal to 
one percent (1%) of its analog ERP.
    In 2007, after over four years of real-world hybrid digital 
operation by over 1,100 FM stations, it was apparent to both FM station 
licensees and the IBOC system developer that the coverage from an FM 
station's hybrid digital facilities was significantly less than the 
coverage from its analog facilities, and that this digital coverage 
shortfall was a direct result of the very low FM digital ERP permitted. 
Several FM station licensees and the IBOC system developer undertook an 
experimental field test program to determine the FM digital ERP 
required for hybrid digital coverage to replicate analog coverage. 
Based on their results, in June 2008, a group of FM stations licensees 
and FM transmission equipment manufacturers (Joint Parties) submitted a 
technical report of these studies prepared by iBiquity, and asked the 
Commission to increase maximum permissible FM digital ERP to ten 
percent (10%) of analog ERP for nearly all FM stations. The Joint 
Parties also requested that the Commission establish procedures to

[[Page 17875]]

investigate and resolve allegations of harmful interference from 
increased power digital operations. Shortly thereafter, National Public 
Radio (NPR) submitted a technical study disputing the results of the 
iBiquity study and opposing an unqualified increase in FM digital ERP 
based on its prediction of substantial interference to authorized 
analog FM operations. The Commission sought public comment on issues 
and technical studies related to the proposed FM digital ERP increase 
by Public Notice DA 08-2340 on October 23, 2008, and Public Notice DA 
09-1127 on May 22, 2009 (See 74 FR 27985, June 12, 2009). Over 60 
parties filed comments in response to each of these notices. In 
November 2009, NPR filed an additional technical study. Based on the 
results of that study, NPR reached an agreement with iBiquity on an 
increase in FM Digital ERP acceptable to both parties. NPR and iBiquity 
jointly filed this agreement, along with their proposal requesting that 
the Commission permit a blanket increase in FM Digital ERP to four 
percent (4%) of analog ERP for all FM stations except those with 
licensed facilities exceeding their allowable class maximum, and permit 
FM stations meeting certain criteria to increase digital ERP up to a 
maximum of 10% of analog ERP. Additionally, they requested that the 
Commission adopt specific procedures and requirements to address and 
resolve complaints of interference to licensed full-service analog FM 
stations resulting from increased FM digital ERP operation, and asked 
that the Commission reserve the right to revisit the FM digital ERP 
increase issue should harmful interference be widespread.

Synopsis of Order

    Based on seven years of hybrid digital operation by over 1,500 FM 
stations that were free of well-documented interference complaints, and 
review and analysis of detailed technical studies and voluminous public 
comments submitted to the Commission, the Media Bureau concluded that 
it is necessary and prudent to increase maximum permissible FM digital 
ERP to improve FM digital coverage, and to eliminate regulatory 
impediments to FM digital radio's ability to realize its full potential 
and deliver its promised benefits. Specifically, this Order takes the 
following actions:
    1. Increases maximum permissible hybrid FM digital ERP to 10% of 
authorized analog power.
    2. Permits most FM stations to immediately commence operation with 
FM digital ERP equal to 4% of authorized analog power without prior 
approval from the Commission.
    3. Establishes application procedures for FM stations desiring to 
increase FM digital ERP to more than 4% of authorized analog ERP.
    4. Establishes interference remediation procedures that require the 
Media Bureau to review and resolve each bona fide interference 
complaint within 90 days of Bureau receipt of the complaint, and 
details required tiered digital ERP reductions for the alleged 
interfering digital station should the Bureau fail to act in the 
allowable 90-day period.
    5. Reserves the right of the Commission to revisit the issue of FM 
digital ERP levels if harmful and significant interference results to 
existing analog FM operations.

Document Availability

    The full text of this document and all related documents are 
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, and may also be 
purchased from the Commission's copy contractor, BCPI, Inc., Portals 
II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers 
may contact BCPI, Inc. via their Web site, http://www.bcpi.com, or by 
telephone at 1-800-378-3160. Additionally, all documents are available 
for download using the Commission's Electronic Comment Filing System at 
http://fjallfoss.fcc.gov/ecfs/. This document is available in 
alternative formats (computer diskette, large print, audio record and 
Braille). Persons with disabilities who need documents in these formats 
may contact Brian Millin at (202) 418-7426 (voice), (202) 418-7365 
(TTY), or via e-mail at [email protected].
    Final Paperwork Reduction Act Analysis. This Order adopts a new or 
revised information collection requirement(s) subject to the Paperwork 
Reduction Act of 1995 (``PRA''), Public Law 104-13 (44 U.S.C. 3501-
3520). The requirement will be submitted to the Office of Management 
and Budget (OMB) for review under section 3507 of the PRA. The 
Commission published a separate notice in the Federal Register inviting 
comment on the new or revised information collection requirement(s) 
adopted in this document (See 75 FR 10266, March 5, 2010). The 
requirement(s) will not go into effect until OMB has approved it and 
the Commission has published a notice announcing the effective date of 
the information collection requirement(s). In addition, we note that 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), 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 find that the modified information collection 
requirements must apply fully to small entities (as well as to others) 
to ensure compliance with our FM rules, as described in the Report and 
Order.
    Final Regulatory Flexibility Act Analysis. As required by the 
Regulatory Flexibility Act (RFA),\1\ as amended, an Initial Regulatory 
Flexibility Analysis (IRFA) was incorporated in the FM Digital Power 
Increase and Associated Technical Studies Notice of Proposed Rules in 
this proceeding (See 74 FR 27985, June 12, 2009). The Commission sought 
written public comment on the proposals in the Notice of Proposed Rules 
section, including comment on the IRFA. The Commission received no 
comments specifically on the IRFA. This Final Regulatory Flexibility 
Analysis (FRFA) conforms to the RFA.
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Pub. L. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA 
is the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA).
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    Need For and Objectives of the Proposed Rules. The Commission's 
current rules limit the maximum permissible digital effective radiated 
power for FM stations (FM Digital ERP) to 1 percent of a station's 
authorized analog effective radiated power (Analog ERP) (20 decibels 
below carrier (-20 dBc)). Operating pursuant to that limitation, many 
stations have observed deficiencies in their digital signal coverage as 
compared to the coverage of their analog signal, particularly with 
regard to portable and indoor listening. 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,'' filed 
with the Commission a request that the maximum permissible FM Digital 
ERP be increased to 10 percent of a station's authorized Analog ERP (-
10 dBc) to allow stations to improve their digital coverage (Joint 
Parties' Request). Filed concurrently with and in support of the Joint 
Parties' Request was a technical report on the proposed increase, 
prepared by iBiquity Digital Corporation (``iBiquity''). National 
Public Radio

[[Page 17876]]

(NPR) subsequently submitted its Corporation for Public Broadcasting 
(CPB)-supported research on FM digital radio coverage and interference 
at higher power levels and expressed its opposition to the Joint 
Parties' Request, citing interference concerns. The Media Bureau 
(Bureau) issued a public notice seeking comment on the Joint Parties' 
Request and the iBiquity and NPR technical studies.\2\
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    \2\ Comment Sought on Joint Parties Request for FM Digital Power 
Increase and Associated Technical Studies, Public Notice, DA 08-2340 
(MB rel. Oct. 23, 2008).
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    NPR subsequently announced that it would complete additional 
studies on FM DAB at higher power levels, which it stated would be 
released in September 2009. The Bureau thereafter issued a second 
public notice in which it specifically asked whether an increase in 
maximum authorized FM digital operating power is warranted, and whether 
it should defer consideration of a power increase until completion of 
and comment on the further NPR studies.\3\ In response, the majority of 
commenters stated that improvements to FM digital coverage are 
necessary for the successful consumer adoption of FM DAB technology. 
Some commenters stated, however, that the Bureau should delay any 
increase until completion of and comment on the further NPR studies, in 
order to ensure that higher-powered digital operation does not cause 
unacceptable interference to first adjacent analog stations.
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    \3\ Comment Sought on Specific Issues Regarding Joint Parties' 
Request for FM Digital Power Increase and Associated Technical 
Studies, Public Notice, 24 FCC Rcd (MB 2009) (DA 09-1127).
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    On November 4, 2009, NPR submitted the results of its additional FM 
Digital ERP increase studies, ``Report to the FCC on the Advanced IBOC 
Coverage and Compatibility Study'' (AICCS Project Report), to the 
Commission. Based on its AICCS Project Report findings, NPR concluded 
that a blanket 6 dB increase in FM Digital ERP (from -20 dBc to -14 
dBc) was acceptable for most FM stations, and that using a formula it 
developed based on its testing, certain FM stations could increase FM 
Digital ERP up to a maximum of 10 dB (from -20 dBc to -10 dBc).
    Based on the results of the AICCS Project Report and the five years 
of generally interference-free FM hybrid digital operations by 
approximately 1500 stations, the Order adopts rule changes to allow 
eligible authorized FM stations to commence operation of FM digital 
facilities with operating power up to -14 dBc upon notice to the 
Commission (licensees of a super-powered FM station \4\ must file an 
informal request for any increase in the station's FM Digital ERP). The 
rule changes will further allow licensees to submit an application to 
the Media Bureau, in the form of an informal request, for any increase 
in FM Digital ERP beyond 6 dB. Licensees submitting such a request must 
use a simplified method set forth in the Order to determine the 
proponent station's maximum permissible FM Digital ERP. In situations 
where the simplified method is not applicable due to unusual terrain or 
other environmental or technical considerations or when it produces 
anomalous FM Digital ERP results, the Bureau will accept applications 
for FM Digital ERP in excess of -14 dBc. Such an application must be 
accompanied by a detailed showing containing a complete explanation of 
the prediction methodology used as well as data, maps and sample 
calculations. The Media Bureau will evaluate these applications on a 
case-by-case basis. Finally, the Order implements interference 
mitigation and remediation procedures to resolve promptly allegations 
of digital interference to an authorized FM analog facility resulting 
from an FM Digital ERP power increase undertaken pursuant to the 
procedures adopted in the Order. Specifically, if an analog FM station 
is receiving verifiable listener complaints of interference within its 
protected contour from FM digital facilities operating with FM Digital 
ERP in excess of -20 dBc, the licensee of the affected analog FM 
station must contact the licensee of the station operating the FM 
digital facilities. Stations are required to work cooperatively to 
confirm the instances of interference. If the stations fail to reach 
agreement on appropriate interference remediation measures, the 
licensee of the affected analog FM station may file an interference 
complaint with the Bureau.
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    \4\ Super-powered FM stations are stations that have effective 
radiated powers in excess of the maximum permitted for their class, 
or stations with authorized facilities that produce a reference 
contour that exceeds the pertinent maximum class contour distance, 
as specified in Sec.  73.211.
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    The rule changes adopted in the Order balance the pressing need for 
improved FM digital coverage with the continued need to limit 
interference to first-adjacent analog stations. The rules will allow an 
FM station's digital signal to more closely approximate the coverage of 
their analog signal, improving service to listeners, and provide a 
detailed mechanism for resolving interference complaints, thus 
providing regulatory certainty as this relatively new service continues 
to develop.
    Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA. In the IRFA, the Bureau sought comment regarding how small 
entities would be affected if the Commission were to adopt an increase 
in maximum digital operating power, whether such adoption could result 
in the disparate treatment of small entities with limited financial 
and/or technical resources, and any information on alternative 
approaches to alleviate any potential burdens on small entities. The 
Commission received no comments specifically in response to the IRFA.
    Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply. The RFA directs the Commission to 
provide a description of and, where feasible, an estimate of the number 
of small entities that will be affected by the proposed rules.\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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    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

[[Page 17877]]

are similarly included.\12\ 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.
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    Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements. The increase of FM Digital ERP as authorized 
in the Order is at the option of the licensee. As noted above, a 
broadcast licensee may opt not to increase its power and will thus 
incur no costs. To the extent that a licensee chooses to increase its 
digital operating power, the associated burdens and costs depend on the 
nature of the increase. The rule changes will allow eligible authorized 
FM stations to commence operation of FM digital facilities with 
operating power up to -14 dBc upon notice to the Commission. The rule 
changes will further allow licensees to submit an application to the 
Media Bureau, in the form of an informal request, for any increase in 
FM Digital ERP beyond 6 dB (or, in the case of super-powered stations, 
any increase in its Digital ERP). Licensees submitting such a request 
must use a simplified method set forth in the Order to determine the 
proponent station's maximum permissible FM Digital ERP. In situations 
where the simplified method is not applicable due to unusual terrain or 
other environmental or technical considerations or when it produces 
anomalous FM Digital ERP results, the Bureau will accept applications 
for FM Digital ERP in excess of -14 dBc on a case-by-case basis when 
accompanied by a detailed showing containing a complete explanation of 
the prediction methodology used as well as data, maps and sample 
calculations.
    Steps Taken to Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered. 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.\13\
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    \13\ 5 U.S.C. 603(b).
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    In the Order, we take actions that may affect FM stations that are 
small entities by providing them the opportunity to operate at higher 
digital power levels. Prior to the instant rule changes, broadcasting 
in digital was optional for FM stations, and it will remain optional 
for FM stations following the rule changes. As a result, FM radio 
stations of all sizes may choose to take no action in response to the 
rule changes. In addition, FM radio stations already broadcasting in 
digital will not be required to take any action under the new rule if 
they continue operation at one percent of their Analog ERP levels, the 
maximum FM Digital ERP previously authorized, because the authorized 
increases in FM Digital ERP adopted in the Order are voluntary. In 
other words, small entities may continue to operate as authorized prior 
to today's rule changes if they lack, for instance, the resources to 
make investments in equipment necessary to implement a digital power 
increase. We acknowledge that an argument could be made by smaller 
entities that they could face an unacceptable disproportionate burden 
because of a comparative lack of capital and other resources. This 
argument suggests that the adopted rule changes places smaller entities 
at a resultant disadvantage in relation to larger entities. However, we 
reject such an argument because allowing such voluntary upgrades will 
ultimately provide: (1) Improved digital coverage; (2) the advancement 
of digital radio technology; (3) increased listenership; (4) greater 
regulatory certainty; (5) flexibility to licensees in the timing and 
scope of the rollout of their digital radio services; and (6) the 
facilitation of informed decisions regarding equipment purchases that 
will best serve licensees' needs. Allowing licensees to voluntarily 
increase their Digital ERP will, in the long run, prove to impose a 
lesser burden on smaller entities than alternative measures, such as 
making digital power increases compulsory or prohibiting increases 
altogether. In light of these considerations, the Bureau has determined 
that the rule changes will not have a significant disproportionate 
impact on small entities.
    Report to Congress. The Commission will send a copy of this Order, 
including the FRFA, in a report to be sent to Congress and the 
Government Accountability Office pursuant to the SBREFA.\14\
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    \14\ See 5 U.S.C. 801(a)(1)(A).
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Legal Basis

    The authority for the actions taken in this Order is contained in 
sections 1, 4(i), 301, 302, 303, 307, 308, 309, 319, and 324 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 301, 
302, 303, 307, 308, 309, 319, and 324, as well as the authority 
delegated to the Media Bureau by the Commission in the Second Report 
and Order (See 72 FR 45670, August 15, 2007) in this proceeding.

List of Subjects in 47 CFR Part 73

    Radio.

Federal Communications Commission.
William T. Lake,
Chief, Media Bureau.

Final Rules

0
For the 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 73.404 is amended by revising paragraphs (a) and (e)(5) as 
follows:


Sec.  73.404  Interim hybrid IBOC DAB operation.

    (a) The licensee of an AM or FM station, or the permittee of a new 
AM or FM station which has commenced program test operation pursuant to 
Sec.  73.1620, may commence interim hybrid IBOC DAB operation with 
digital facilities which conform to the technical specifications 
specified for hybrid DAB operation in the First Report and Order in MM 
Docket No. 99-325, as revised in the Media Bureau's subsequent Order in 
MM Docket No. 99-325. FM stations are permitted to operate with hybrid 
digital effective radiated power equal to one percent (-20 decibels 
below carrier (dBc)) of authorized analog effective radiated power and 
may operate with up to ten percent (-10 dBc) of authorized analog 
effective radiated power in accordance with the procedures set forth in 
the Media Bureau's Order in MM Docket No. 99-325. An AM or FM station 
may transmit IBOC signals during all hours for which the station is 
licensed to broadcast.
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[[Page 17878]]

    (e) * * *
    (5) FM digital effective radiated power used and certification that 
the FM analog effective radiated power remains as authorized;
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[FR Doc. 2010-8012 Filed 4-7-10; 8:45 am]
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