[Federal Register Volume 78, Number 6 (Wednesday, January 9, 2013)]
[Rules and Regulations]
[Pages 2078-2109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30975]



[[Page 2077]]

Vol. 78

Wednesday,

No. 6

January 9, 2013

Part V





 Federal Communications Commission





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





47 CFR Part 73





 Implementation of the Local Community Radio Act of 2010; Revision of 
Service and Eligibility Rules for Low Power FM Stations; Final Rule

  Federal Register / Vol. 78, No. 6 / Wednesday, January 9, 2013 / 
Rules and Regulations  

[[Page 2078]]


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

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 99-25; FCC 12-144]


Implementation of the Local Community Radio Act of 2010; Revision 
of Service and Eligibility Rules for Low Power FM Stations

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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

SUMMARY: In this document, the Commission modifies its rules in order 
to implement provisions of the Local Community Radio Act of 2010 
(``LCRA''). It also proposes changes to its rules intended to promote 
the low power FM service's localism and diversity goals, reduce the 
potential for licensing abuses, and clarify certain rules.

DATES: Effective February 8, 2013, except for amendments to Sec. Sec.  
73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860, 73.872 which 
contain information collection requirements that are not effective 
until approved by the Office of Management and Budget (``OMB''). The 
FCC will seek Paperwork Reduction Act comments via a separate notice in 
the Federal Register. The FCC will publish a document in the Federal 
Register announcing the effective date for those sections.

FOR FURTHER INFORMATION CONTACT: Peter Doyle (202) 418-2789.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Sixth 
Report and Order (``Sixth R&O''), FCC No. 12-144, adopted November 30, 
2012. The full text of the Order is available for inspection and 
copying during normal business hours in the FCC Reference Center (Room 
CY-A257), 445 12th Street SW., Washington, DC 20554. The full text may 
also be downloaded at: http://www.fcc.gov.

Summary of Sixth Report and Order

    1. On March 19, 2012, we released a Fourth Further Notice of 
Proposed Rule Making (``Fourth FNPRM'') in this proceeding, seeking 
comment on proposals to amend the rules to implement provisions of the 
LCRA and to promote a more sustainable community radio service. These 
proposed changes were intended to advance the LCRA's core goals of 
localism and diversity while preserving the technical integrity of all 
of the FM services. We also sought comment on proposals to reduce the 
potential for licensing abuses.
    2. In this Sixth R&O, we adopt an LPFM service standard for second-
adjacent channel spacing waivers (``second-adjacent waivers''), in 
accordance with section 3(b)(2)(A) of the LCRA. We also specify the 
manner in which a waiver applicant can satisfy this standard and the 
manner in which we will handle complaints of interference caused by 
LPFM stations operating pursuant to second-adjacent waivers. As 
specified in section 7 of the LCRA, we establish separate third-
adjacent channel interference remediation regimes for short-spaced and 
fully-spaced LPFM stations. Finally, as mandated by section 6 of the 
LCRA, we modify our rules to address the potential for predicted 
interference to FM translator input signals from LPFM stations 
operating on third-adjacent channels.
    3. We also make a number of other changes to our rules to better 
promote the core localism and diversity goals of LPFM service. 
Specifically, we modify our rules to clarify that the localism 
requirement set forth in Sec.  73.853(b) applies not just to LPFM 
applicants but also to LPFM permittees and licensees. We revise our 
rules to permit cross-ownership of an LPFM station and up to two FM 
translator stations, but we adopt a number of restrictions on such 
cross-ownership in order to ensure that the LPFM service retains its 
extremely local focus. In the interests of advancing the Commission's 
efforts to increase ownership of radio stations by federally recognized 
American Indian Tribes and Alaska Native Villages (``Tribal Nations'') 
or entities owned or controlled by Tribal Nations, we revise our rules 
to explicitly provide for the licensing of LPFM stations to Tribal 
Nations or entities owned and controlled by Tribal Nations 
(collectively, ``Tribal Nation Applicants''), and to permit Tribal 
Nation Applicants to own or hold attributable interests in up to two 
LPFM stations. In addition, we modify the point system that we use to 
select from among MX LPFM applications. Specifically, we revise the 
established community presence criterion; retain the local program 
origination criterion; and add new criteria to promote the 
establishment and staffing of a main studio, radio service proposals by 
Tribal Nation Applicants to serve Tribal lands, and new entry into 
radio broadcasting. Given these changes, we revise the existing 
exception to the cross-ownership rule for student-run stations. We also 
modify the way in which involuntary time sharing works, shifting from 
sequential to concurrent license terms and limiting involuntary time 
sharing arrangements to three applicants. We adopt mandatory time 
sharing, which previously applied to full-service NCE stations but not 
LPFM stations, for the LPFM service. We also revise our rules to 
eliminate the LP10 class of LPFM facilities and eliminate the 
intermediate frequency (``I.F.'') protection requirements applicable to 
LPFM stations. Finally, we briefly discuss administrative aspects of 
the upcoming filing window for LPFM stations.

A. Waiver of Second-Adjacent Channel Minimum Distance Separation 
Requirements

    4. Section 3(b)(2)(A) of the LCRA explicitly grants the Commission 
the authority to waive the second-adjacent channel spacing requirements 
set forth in Sec.  73.807 of the rules. It permits second-adjacent 
waivers where an LPFM station establishes, ``using methods of 
predicting interference taking into account all relevant factors, 
including terrain-sensitive propagation models,'' that its proposed 
operations ``will not result in interference to any authorized radio 
service.'' In the Fourth FNPRM, we tentatively concluded that this 
waiver standard supersedes the interim waiver processing policy adopted 
by the Commission in 2007. We sought comment on this tentative 
conclusion. The three commenters that addressed this tentative 
conclusion agreed with it. As we noted in the Fourth FNPRM, the interim 
waiver processing policy requires the Commission to ``balance the 
potential for new interference to the full-service station at issue 
against the potential loss of an LPFM station.'' This balancing is 
inconsistent with the language of section 3(b)(2)(A) of the LCRA 
described above, which does not contemplate such a balancing. 
Accordingly, we affirm our tentative conclusion that the waiver 
standard set forth in the LCRA and discussed herein supersedes the 
interim waiver processing policy previously adopted by the Commission.
    5. In the Fourth FNPRM, we sought comment on the factors relevant 
to and showings appropriate for second-adjacent waiver requests. Some 
commenters express support for a requirement that waiver applicants 
demonstrate there are no fully-spaced channels available, a potential 
waiver standard about which we specifically sought comment. One 
commenter--the National Association of Broadcasters (``NAB'')--proposes 
additional requirements for second-adjacent waivers. These commenters 
argue that the plain language of the LCRA and its

[[Page 2079]]

legislative history require that the Commission grant second-adjacent 
waivers ``only in strictly defined circumstances.'' In contrast, 
Prometheus and others argue that ``[b]eyond a showing of non-
interference as required by the statute, no other showing should be 
required for LPFM applicants seeking waivers.'' Prometheus states that 
``[t]he Commission is bound by the LCRA's terms'' and cannot ``infer a 
wide range of additional limitations or prescriptions that appear 
nowhere in the statute.''
    6. We have reviewed both the text of the LCRA and the legislative 
history. The plain language of section 3(b)(2)(A) of the LCRA permits 
the Commission to grant second-adjacent waivers where a waiver 
applicant demonstrates that its proposed operations ``will not result 
in interference to any authorized radio service.'' Nothing in the LCRA 
or its legislative history suggests that Congress intended to require 
that waiver applicants make any additional showings. The statute does 
not mandate any further conditions on the grant of such waivers, and it 
does not prescribe the burden of proof. We conclude that Congress 
intended to ensure that LPFM stations operating pursuant to second-
adjacent waivers do not cause interference to full-service FM and other 
authorized radio stations. We find that additional limitations are not 
needed to achieve this goal. Indeed, to require additional showings of 
waiver applicants would impose requirements that go beyond those 
established in the LCRA that we do not believe are either necessary to 
the implementation of its interference protection goals or consistent 
with the localism and diversity goals underlying the LPFM service. 
Accordingly, we will not further restrict the availability of second-
adjacent waivers. Likewise, we will not consider any of the other 
factors proposed in the Fourth FNPRM in determining whether to grant a 
waiver request, none of which received any support in the comments.
    7. We find unconvincing the policy arguments made by supporters of 
requiring additional showings of waiver applicants. For instance, we 
are not persuaded that any additional limits are needed to preserve the 
technical integrity of the FM service. Neither NAB nor any other 
commenter has offered evidence to support the claim that granting 
second-adjacent waivers that satisfy the LCRA requirements will harm 
audio quality or disrupt the expectations of listeners. Indeed, we are 
not sure how any commenter could since waivers will only be granted 
where an applicant makes a showing that its proposed operations will 
not cause interference. Moreover, we note that many FM translators 
successfully operate on second-adjacent channels, often at higher 
effective radiated powers (``ERPs'') and heights above average terrain 
(``HAAT'') than LPFM stations, under a protection scheme that permits 
second-adjacent channel operations at less than LPFM distance 
separation requirements. We believe LPFM stations can operate just as 
successfully. Should interference occur, the interference remediation 
obligations set forth in section 3(b)(2)(B) of the LCRA will serve as a 
backstop to ensure that the technical integrity of the FM band is 
maintained.
    8. We find equally unpersuasive the argument that imposing 
additional limits on second-adjacent waivers is in the best interest of 
LPFM applicants. LPFM applicants may lack broadcast experience and 
technical expertise, and therefore, may have difficulty predicting 
interference issues. However, Commission staff will review each waiver 
request and will deny any request that they determine would cause 
interference. In addition, while the interference remediation 
obligations may prove burdensome to LPFM licensees and may require some 
LPFM stations to cease operations, we do not see this as a reason to 
limit waivers. We agree with Prometheus that the potential benefit of 
promoting a locally-based non-commercial radio service in potentially 
thousands of communities nationwide vastly outweighs the risks that 
individual LPFM licensees may face. In this regard, we note that, in 
spectrum-congested markets, few LPFM opportunities would exist without 
the use of second-adjacent waivers. For instance, applicants will be 
able to select from 19 unique LPFM channels in the Denver Arbitron 
Metro market and 18 in the New Haven Arbitron Metro market if second-
adjacent waivers are available. If these waivers are not available, an 
applicant will have a much more limited selection--four unique LPFM 
channels in the Denver Arbitron Metro market and three in the New Haven 
Arbitron Metro market.
    9. We turn to the manner in which waiver applicants can 
``establish, using methods of predicting interference taking into 
account relevant factors, including terrain-sensitive propagation 
models, that their proposed operations will not result in interference 
to any authorized radio service.'' In the Fourth FNPRM, we asked 
whether we should permit LPFM applicants to make the sort of showings 
we routinely accept from FM translator applicants to establish that 
``no actual interference will occur.'' A number of commenters offer 
general support for this proposal. Prometheus grounds its support in 
the fact that, read together, sections 3(b)(2)(A) and (B) of the LCRA 
``set out a second adjacent waiver standard substantially identical to 
the rules allocating translators on the second adjacent frequency.'' 
NAB opposes the use of these showings by waiver applicants, arguing 
that it could lead to ``over-packing of the FM band, unwanted 
interference, and the degradation of listeners' experience.'' NAB, 
however, does not offer any evidence to support its claims. Nor does 
NAB explain why the operations of the very large number of FM 
translators that have relied on these showings do not cause the same 
interference and signal degradation problems they predict as a result 
of LPFM second-adjacent waivers. NPR also opposes allowing LPFM 
applicants to make the same showings as FM translators. NPR argues that 
there are ``significant differences'' between the LPFM and FM 
translator services. However, it does not explain how these 
differences--the ability to originate programming or lack thereof, the 
highly local nature of the LPFM service, the relative inexperience of 
LPFM licensees when compared to FM translator licensees--would justify 
different waiver standards for FM translators and LPFM stations. We are 
not persuaded that the differences that NPR cites have any impact on 
whether a station will cause interference. Rather, the potential for 
interference is principally dependent on the propagation 
characteristics of the ``protected'' and ``interfering'' FM signals and 
the quality of the utilized FM receiver.
    10. We will permit waiver applicants to demonstrate that ``no 
actual interference will occur'' in the same manner as FM translator 
applicants. Put another way, we will permit waiver applicants to show 
that ``no actual interference will occur'' due to ``lack of 
population'' and will allow waiver applicants to use an undesired/
desired signal strength ratio methodology to define areas of potential 
interference when proposing to operate near another station operating 
on a second-adjacent channel. Although the LCRA does not require the 
Commission to incorporate for second-adjacent channels the FM 
translator regime that Congress incorporated for third-adjacent channel 
interference protection, as Prometheus notes the second-adjacent waiver 
provisions of the LCRA establish a regime similar to that governing FM 
translators. Given the discretion afforded by Congress to the 
Commission

[[Page 2080]]

for determining appropriate ``methods of predicting interference,'' our 
experience in connection with methods for doing so in the analogous 
context of FM translators, and the similarities between the regime 
established in sections 3(b)(2)(A) and (B) and the regime applicable to 
FM translator stations, we believe it is appropriate to grant waiver 
applicants the same flexibility as FM translator applicants to 
demonstrate that, despite predicted contour overlap, interference will 
not in fact occur due to an absence of population in the overlap area. 
We note that, like FM translator stations, LPFM stations operating 
pursuant to second-adjacent waivers may not cause any actual 
interference.
    11. We also will permit waiver applicants to propose use of 
directional antennas in making these showings. This is consistent with 
our treatment of FM translator applicants and supported by the vast 
majority of commenters. We clarify that, like FM translator applicants, 
waiver applicants may use ``off the shelf'' antenna patterns and will 
not be required to submit information regarding the characteristics of 
the pattern with the construction permit application. In addition, as 
requested by Prometheus and Common Frequency, we will permit waiver 
applicants to propose lower ERPs and differing polarizations in order 
to demonstrate that their operations will not result in interference to 
any authorized radio service. We expect that this flexibility will 
facilitate the expansion of the LPFM service while still protecting the 
technical integrity of the FM band. In terms of proposals specifying 
lower ERPs, we will not accept proposals to operate at less than 
current LPFM minimum permissible facilities (i.e., power levels of less 
than 50 watts ERP at 30 meters HAAT, or its equivalent). Since the 
proposed operating parameters of a waiver applicant will be available 
in our Consolidated Database System (``CDBS'') and since we do not 
require other applicants seeking waivers of our technical rules to 
serve their waiver requests on potentially affected stations, we will 
not require an LPFM applicant seeking a second-adjacent waiver to serve 
its waiver request on any potentially affected station. We will, 
however, instruct the Media Bureau to identify specifically all 
potentially affected second-adjacent channel stations in the public 
notice that accepts for filing an application for an LPFM station that 
includes a request for a second-adjacent waiver.
    12. We remind potential LPFM applicants that the LCRA permits the 
Commission to grant waivers only of second-adjacent, and not co- and 
first-adjacent, spacing requirements. The flexibility discussed above 
regarding lower power, polarization and directional patterns extends 
only to waiver applicants seeking to demonstrate that their proposed 
operations will not result in any second-adjacent channel interference. 
We also caution LPFM applicants against using this technical 
flexibility to limit the already small service areas of LPFM stations 
to such an extent that, while their LPFM applications are grantable, 
the LPFM stations will not be viable. As the Media Bureau noted 
recently ``the limitations on the maximum power of LPFM stations 
substantially reduce the number of potential listeners they can 
serve.'' The Media Bureau went on to note that ``[t]he low power of an 
LPFM station affects not only its geographic reach and coverage area, 
but also the quality of its signal and the ability of listeners to 
receive its signal consistently inside the station's coverage area.'' 
Finally, we take this opportunity to make clear the protection 
obligations of FM translators toward LPFM stations operating with lower 
powers, differing polarizations and/or directional antennas. To 
simplify matters and provide clear guidance to FM translator 
applicants, we will require FM translator modification applications and 
applications for new FM translators to treat such LPFM stations as 
operating with non-directional antennas at their authorized power.
    13. We turn now to what happens if an LPFM station operating 
pursuant to a second-adjacent channel waiver causes interference. 
Section 3(b)(2)(B) provides a framework for handling an interference 
complaint resulting from an LPFM station operating pursuant to a 
second-adjacent waiver ``without regard to the location of the station 
receiving interference.'' Upon receipt of a complaint of interference 
caused by an LPFM station operating pursuant to a second-adjacent 
waiver, the Commission must notify the LPFM station ``by telephone or 
other electronic communication within 1 business day.'' The LPFM 
station must ``suspend operation immediately upon notification'' by the 
Commission that it is ``causing interference to the reception of any 
existing or modified full-service FM station.'' It may not resume 
operations ``until such interference has been eliminated or it can 
demonstrate * * * that the interference was not due to [its] 
emissions.'' The LPFM station, however, may ``make short test 
transmissions during the period of suspended operation to check the 
efficacy of remedial measures.''
    14. In the Fourth FNPRM, we proposed to incorporate these 
provisions into our rules. We will do so. We believe including these 
provisions in the rules will provide a clear framework for the 
efficient resolution of interference complaints.
    15. We also requested comment on whether to define a ``bona fide 
complaint'' for the purpose of triggering these interference 
remediation procedures. Prometheus urges us to do so and to handle 
interference complaints against LPFM stations operating pursuant to 
second-adjacent waivers in a manner similar to complaints against FM 
translators and similar to the former third adjacent channel 
remediation requirements. As we described in the Fourth FNPRM, for FM 
translators, Sec.  74.1203(a) prohibits ``actual interference to * * 
*[t]he direct reception by the public of the off-the-air signals of any 
authorized broadcast station* * *.'' It specifies that ``[i]nterference 
will be considered to occur whenever reception of a regularly used 
signal is impaired by the signals radiated by'' the interfering FM 
translator station. An interfering FM translator station must remedy 
the interference or cease operation. The Commission has interpreted 
this rule broadly. It places no geographic or temporal limitation on 
complaints. It covers all types of interference. The reception affected 
can be that of a fixed or mobile receiver. The Commission also has 
interpreted ``direct reception by the public'' to limit actionable 
complaints to those that are made by bona fide listeners. Thus, it has 
declined to credit claims of interference or lack of interference from 
station personnel involved in an interference dispute. More generally, 
the Commission requires that a complainant ``be `disinterested,' e.g., 
a person or entity without a legal stake in the outcome of the 
translator station licensing proceeding.'' The staff has routinely 
required a complainant to provide his name, address, location(s) at 
which FM translator interference occurs, and a statement that the 
complainant is, in fact, a listener of the affected station. Moreover, 
as is the case with other types of interference complaints, the staff 
has considered only those complaints of FM translator interference 
where the complainant cooperates in efforts to identify the source of 
interference and accepts reasonable corrective measures. Accordingly, 
when the Commission concludes that a bona fide listener has made an 
actionable complaint of uncorrected interference from an FM

[[Page 2081]]

translator, it will notify the station that ``interference is being 
caused'' and direct the station to discontinue operations.
    16. We conclude that it is appropriate to handle complaints in a 
manner similar to that used to handle complaints of interference caused 
by FM translators. As we noted above, we believe that the LCRA affords 
the Commission the discretion to rely on our successful FM translator 
experience in implementing the interference protection regime for 
second-adjacent LPFM stations. Accordingly, we will adopt the same 
requirements for complaints that we apply in the FM translator context. 
As described above, that means that a complaint must come from a 
disinterested listener and must include the listener's name and 
address, and the location at which the interference occurs. We are 
unconvinced by NPR's argument that a listener complaint is unnecessary. 
While NPR is correct that section 3(b)(2)(B)(iii) refers simply to ``a 
complaint of interference'' and does not specify the source of such 
complaint, we find this statutory term to be ambiguous. We conclude 
that it may reasonably be interpreted to refer to listener complaints. 
We note that we have interpreted Sec.  74.1203 of the rules to require 
that complaints of interference in the FM translator context be filed 
by listeners. We also note that the scope of the rule prohibiting 
translator stations from causing ``actual interference to * * * direct 
reception,'' and that of section 3(b)(2)(B) which prohibits LPFM 
stations from causing ``interference to the reception of an existing or 
modified full-service station,'' are essentially equivalent. The 
Commission previously has interpreted the ``direct reception'' language 
included in Sec.  73.1203(a) as limiting actionable complaints to those 
that are made by bona fide listeners. We believe it is appropriate to 
interpret the ``reception'' language in section 3(b)(2)(B) of the LCRA 
as imposing this same limit.
    17. Once the Commission receives a bona fide complaint of 
interference from an LPFM station operating pursuant to a second-
adjacent waiver and notifies the LPFM station of the complaint, the 
LPFM station must ``suspend operation immediately'' and stay off the 
air until it eliminates the interference or demonstrates that the 
interference was not due to its emissions. We conclude that an LPFM 
station may demonstrate that it is not the source of the interference 
at issue by conducting an ``on-off'' test. ``On-off'' tests have been 
used by the FM translator and other services to determine whether 
identified transmissions are ``the source of interference.'' In 
addition, the Commission specifically authorized LPFM stations to use 
``on-off'' tests for determining ``whether [third-adjacent 
interference] is traceable to [an] LPFM station.'' As the Commission 
did in that context, we require the full-service station(s) involved to 
cooperate in these tests.

B. Third-Adjacent Channel Interference Complaints and Remediation

    18. As instructed by section 3 of the LCRA, in the Fifth Report and 
Order (``Fifth R&O''), we eliminated the third-adjacent channel spacing 
requirements. We then sought comment on the associated interference 
remediation obligations, set forth in section 7 of the LCRA, that 
Congress paired with this change. We conclude that section 7 of the 
LCRA creates two different LPFM interference protection and remediation 
regimes, one for LPFM stations that would be considered short-spaced 
under the third-adjacent channel spacing requirements in place when the 
LCRA was enacted, and one for LPFM stations that would be considered 
fully spaced under those requirements. We discuss this conclusion and 
each of the regimes below.
1. LPFM Interference Protection and Remediation Requirements
    19. Two Distinct Regimes. Sections 7(1) and 7(3) of the LCRA both 
address the interference protection and remediation obligations of LPFM 
stations on third-adjacent channels. Only section 7(1) specifies 
requirements for ``low-power FM stations licensed at locations that do 
not satisfy third-adjacent channel spacing requirements * * *.'' With 
regard to such stations (``Section 7(1) Stations''), section 7(1) 
instructs the Commission to adopt ``the same interference protections 
that FM translator stations and FM booster stations are required to 
provide as set forth in Section 74.1203 of [the] rules.'' Section 7(3), 
in contrast, directs the Commission to require ``[LPFM] stations on 
third-adjacent channels * * * to address interference complaints within 
the protected contour of an affected station'' and encourages such LPFM 
stations to address ``all other interference complaints.'' In the 
Fourth FNPRM, we tentatively concluded that, through these two 
provisions, Congress intended to create two different interference 
protection and remediation regimes--one that applies to Section 7(1) 
Stations and one that applies to all other LPFM stations (``Section 
7(3) Stations''). We explained that the intended regimes differed both 
with respect to the locations at which an affected station's signal is 
protected from third-adjacent interference from an LPFM station and the 
extent of the remediation obligations applicable when interference 
occurs at these locations. We sought comment on our tentative 
conclusion.
    20. Commenters addressing this question support our tentative 
conclusion. Accordingly, we find that section 7 of the LCRA creates two 
different interference protection and remediation regimes--one that 
applies to Section 7(1) Stations and one that applies to Section 7(3) 
Stations. As we noted in the Fourth FNPRM, were we to conclude 
otherwise, Section 7(1) Stations would be subject to different and 
conflicting interference protection and remediation obligations. 
Specifically, under section 7(1), which incorporates the requirements 
for FM translators and boosters, Section 7(1) Stations must 
``eliminate'' any actual interference they cause to the signal of any 
authorized station in areas where that station's signal is ``regularly 
used.'' Section 7(3), on the other hand, would obligate such stations 
only to ``address'' complaints of interference occurring within an 
affected station's protected contour. We conclude that this statutory 
interpretation is necessary to read section 7 as a harmonious whole.
    21. As we noted in the Fourth FNPRM, we can also reasonably 
conclude that Congress intended to impose more stringent interference 
protection and remediation obligations on LPFM stations that are 
located nearest to full-service FM stations and, therefore, have a 
greater potential to cause interference. The LCRA provides greater 
flexibility by eliminating third-adjacent channel spacing requirements 
for LPFM stations, but counterbalances that flexibility with a 
prohibition on LPFM stations that would be short-spaced under such 
requirements causing any actual interference to other stations. 
Accordingly, our reading is consistent with the general licensing rule 
of counterbalancing flexible technical standards with more stringent 
interference remediation requirements.
    22. Retention of Third-Adjacent Channel Spacing Requirements for 
Reference. We tentatively concluded that, although section 3(a) of the 
LCRA mandates the elimination of the third-adjacent channel spacing 
requirements, we should retain them solely for reference purposes in 
order to implement section 7(1) of the LCRA. We sought comment on this 
tentative conclusion and also on whether, if the spacing tables are 
retained in the rules,

[[Page 2082]]

to include them in Sec.  73.807 or a different rule section.
    23. Commenters addressing this issue agree that the rules should 
reference the former third-adjacent channel distance separation 
requirements, but are divided on the best approach. REC expresses 
concern that references to third-adjacent spacing in Sec.  73.807 could 
confuse new applicants. Common Frequency asserts that it would be 
confusing to eliminate the third-adjacent spacing provisions, rename 
them, and then insert them in a table elsewhere in the rules.
    24. We will retain the third-adjacent channel spacing provisions in 
Sec.  73.807 for reference purposes only. It is necessary to reference 
the former third-adjacent channel spacing requirements in order to 
clarify which stations must adhere to the section 7(1) regime. We are 
sympathetic to commenters' concerns of confusion. However, we believe 
that licensees will find it easier and more convenient to have all the 
spacing standards (reference or otherwise) in one section of the rules. 
We make clear in the new version of Sec.  73.807 that LPFM stations 
need not satisfy these standards, and that they are included solely to 
determine which third-adjacent interference regime applies.
    25. Applicability of sections 7(4) and (5) of the LCRA. Sections 
7(4) and (5) of the LCRA establish a number of protection and 
interference remediation requirements. These provisions mandate that 
the Commission allow LPFM stations on third-adjacent channels to 
collocate and establish certain complaint procedures and standards. In 
the Fourth FNPRM, we tentatively concluded these sections apply only to 
Section 7(3) Stations.
    26. We affirm our tentative conclusion, which was supported by 
Prometheus, the sole commenter on this issue. We believe this is the 
most reasonable reading of these provisions. Sections 7(4) and (5) use 
the same ``low-power FM stations on third-adjacent channels'' language 
as section 7(3), not the more specific ``low-power FM stations licensed 
at locations that do not satisfy third-adjacent channel spacing 
requirements'' language set forth in section 7(1). In addition, as 
discussed above, Section 7(1) Stations are subject to the well-
established and comprehensive interference protection and remediation 
regime set forth in Sec.  74.1203 of the rules. We therefore will not 
apply sections 7(4) and 7(5), which establish discrete requirements 
inconsistent with the Sec.  74.1203 regime, to Section 7(1) stations.
    27. Third-Adjacent Channel Interference Only. We tentatively 
concluded that sections 7(1), (2), (3), (4) and (5) of the LCRA apply 
only to third-adjacent channel interference. We affirm our conclusion, 
which commenters support. Although Congress did not specify the type of 
interference to which these provisions apply, we believe this is the 
most reasonable reading. In each of these provisions, Congress refers 
specifically to LPFM stations on third-adjacent channels or LPFM 
stations that do not satisfy the third-adjacent channel spacing 
requirements. These references reflect a focus on LPFM stations causing 
interference to stations located on third-adjacent channels. Our 
conclusion is further supported by the fact that Congress separately 
addressed the possibility of second-adjacent channel interference in 
section 3 of the LCRA.

2. Regime Applicable to Section 7(1) Stations

    28. General Requirements. Section 7(1) Stations are subject to the 
same interference protection and remediation regime applicable to FM 
translator and booster stations. These requirements, set forth in Sec.  
74.1203 of the rules, are more stringent than those currently 
applicable to LPFM stations. Sec.  74.1203(a) prohibits ``actual 
interference to * * * [t]he direct reception by the public of the off-
the-air signals of any authorized broadcast station * * * .'' It 
specifies that ``[i]nterference will be considered to occur whenever 
reception of a regularly used signal is impaired by the signals 
radiated by'' the interfering FM translator station. An interfering FM 
translator station must remedy the interference or cease operation. As 
previously noted, the rule has been interpreted broadly.
    29. Southwestern Ohio Public Radio (``SOPR''), the only commenter 
to address this issue, comments that ``it appears that the requirements 
in Section 7(1) give the Commission very little leeway in its 
interpretation.'' Section 7(1) is explicit in its direction to 
``provide the same interference protections that FM translator stations 
and FM booster stations are required to provide as set forth in Section 
74.1203.'' There is no evidence in the statute or legislative history 
that Congress intended the Sec.  74.1203 requirements to be merely a 
list of minimum criteria that could be supplemented or modified; 
indeed, the statute expressly says that the interference protections 
must be ``the same.'' Further, the LCRA refers to the particular 
version of Sec.  74.1203 ``in effect on the date of enactment of this 
Act'' (i.e., January 4, 2011). Accordingly, we will apply the relevant 
sections of Sec.  74.1203, without modification, to Section 7(1) 
Stations. We will interpret these provisions in the same manner as we 
have in the FM translator context. In addition, we will consider 
directional antennas, lower ERPs and/or differing polarizations to be 
suitable techniques for eliminating third-adjacent channel 
interference. FM translators have the flexibility to employ all of 
these options in their operations. Thus, permitting LPFM stations to 
use these same remedial techniques is consistent with Congress' 
decision to require the wholesale adoption of the well-established and 
comprehensive regime in Sec.  74.1203 of the rules.
    30. Periodic Announcements. We also requested comment on requiring 
newly constructed Section 7(1) Stations to make the same periodic 
announcements required of Section 7(3) Stations under section 7(2) of 
the LCRA. We questioned whether we could reasonably distinguish between 
listeners of stations that may experience interference as a result of 
the operations of Section 7(1) Stations and those that may experience 
interference as a result of the operations of Section 7(3) Stations for 
such purposes. We noted, however, that section 7(1) explicitly requires 
the Commission to ``provide the same [LPFM] interference protections 
that FM translator stations * * * are required to provide as set forth 
in section 74.1203 of its rules,'' and that Sec.  74.1203 does not 
require an FM translator station to broadcast periodic announcements 
that alert listeners to the potential for interference. Thus, we asked 
commenters to address whether we could and, if so, whether we should 
impose the periodic announcement requirement on Section 7(1) Stations.
    31. Commenters addressing this issue were divided. SOPR states that 
the Commission must strictly adhere to the requirements of Sec.  
74.1203, in accordance with the section 7(1) mandate, and therefore, 
periodic announcements should not be required of Section 7(1) Stations. 
Similarly, Common Frequency highlights the inconsistency of the 
Commission finding distinctions between Section 7(1) and 7(3) Stations, 
but then conversely stating that there is no reason to distinguish 
between Section 7(1) Stations and Section 7(3) Stations for purposes of 
periodic announcements. REC, on the other hand, argues that the section 
7(2) periodic announcement requirement applies to Section 7(1) 
Stations. It believes ``that the differences in references to how a 
LPFM station operating on a third adjacent channel in respect to a 
full-service FM station may be due to how the 2010 version of the LCRA 
was marked-up by Congress,'' and

[[Page 2083]]

that Congress intended the periodic announcement requirement to apply 
to all LPFM stations constructed on third-adjacent channels.
    32. We believe that Congress, in framing section 7, did not intend 
to apply the periodic announcement requirement to Section 7(1) 
Stations. If it had wished to apply this requirement to Section 7(1) 
Stations, it could have done so explicitly in the LCRA. Instead, 
Congress required our wholesale adoption of the well-established and 
comprehensive Sec.  74.1203 regime for Section 7(1) Stations. That 
regime does not include any form of periodic announcements. We agree 
with Common Frequency that it is incongruous to find clear distinctions 
between the section 7(1) and 7(3) Station interference protection and 
remediation regimes, as we have done, but then to ignore these 
distinctions in this context. Accordingly, for the reasons discussed 
above, we will not impose a periodic announcement requirement on 
Section 7(1) Stations.
3. Regime Applicable to Other LPFM Stations
    33. Section 7(3) of the LCRA requires the Commission to modify 
Sec.  73.810 of the rules to require Section 7(3) Stations ``to address 
interference complaints within the protected contour of an affected 
station'' and encourage them to address all other interference 
complaints, including complaints ``based on interference to a full-
service FM station, an FM translator station or an FM booster station 
by the transmitter site of a low-power FM station on a third-adjacent 
channel at any distance from the full-service FM station, FM translator 
station or FM booster station.'' As noted above, we conclude that 
sections 7(2), (4) and (5) apply only to Section 7(3) Stations. We 
discuss the general interference remediation requirements set forth in 
Section 7(3) and these other provisions below.
    34. ``Addressing'' Complaints of Third-Adjacent Channel 
Interference. Unlike section 7(1), section 7(3) does not specifically 
refer to Sec.  74.1203 of the rules. While section 7(1) instructs the 
Commission to require Section 7(1) Stations ``to provide'' interference 
protections, section 7(3) merely instructs the Commission to require 
Section 7(3) Stations ``to address'' complaints of interference. 
Section 7(2) of the LCRA--which we conclude applies only to Section 
7(3) Stations--further mandates that we require newly constructed 
Section 7(3) Stations on third-adjacent channels to cooperate in 
``addressing'' any such interference complaints. Therefore, in the 
Fourth FNPRM, we sought comment on (1) what a Section 7(3) Station must 
do to ``address'' a complaint of third-adjacent channel interference; 
(2) whether to specify the scope of efforts which a Section 7(3) 
Station must undertake; (3) whether to relieve a Section 7(3) Station 
of its obligations in instances where the complainant does not 
reasonably cooperate with the Section 7(3) Station's remedial efforts; 
and (4) whether the more lenient interference protection obligations 
currently set forth in Sec.  73.810 should continue to apply to Section 
7(3) Stations.
    35. Commenters offer varied interpretations of the actions a 
Section 7(3) Station must take to ``address'' a complaint of third-
adjacent channel interference. SOPR argues that ``to address'' means 
``to respond to the complaint with reasonable effort to remediate the 
interference based on accepted engineering practices and with the 
cooperation of the complainant.'' It urges the Commission to clearly 
specify the scope of required efforts. Common Frequency proposes that 
``addressing'' interference complaints ``could mean visiting the 
impacted area, turning on the receiver in question, and shutting down 
temporarily.'' NPR, in contrast, contends that this phrase imposes the 
full scope of section 7(1) remediation requirements on Section 7(3) 
Stations when interference occurs within the protected contour of the 
affected station. Notwithstanding these divergent interpretations, we 
find unanimous support for relieving Section 7(3) Stations of their 
obligations in instances where a complainant does not reasonably 
cooperate with an LPFM station's remedial efforts. Finally, in lieu of 
applying the interference protection obligations currently set forth in 
Sec.  73.810 to Section 7(3) Stations, one commenter suggests that we 
instead employ the current FM translator rules, which, it asserts, 
``have worked for decades and [are] seen as `tried and tested.'''
    36. We find that it is most reasonable to conclude that the 
substantial differences between the language of sections 7(1) and 7(3) 
reflect Congress's intention to establish differing remediation regimes 
for these two classes of stations. Moreover we find a clear difference 
in meaning between the Sec.  74.1203 obligation to ``eliminate'' 
interference and the lesser section 7(3) obligation to ``address * * * 
interference complaints.'' Accordingly, we will define ``address'' in 
accordance with the current version of Sec.  73.810 of the rules, 
meaning ``an LPFM station will be given a reasonable opportunity to 
resolve all interference complaints.'' We will not require Section 7(3) 
Stations to cease operations while resolving interference complaints, 
and we decline to specify the scope of remedial efforts Section 7(3) 
Stations must undertake. Section 7(3) Stations fully comply with the 
Commission's former third-adjacent spacing requirements, a stringent 
licensing standard, which is based on a proven methodology for ensuring 
interference-free operations between nearby stations. Accordingly, 
similarly stringent interference remediation obligations are 
unnecessary. We expect Section 7(3) Stations, however, to make good 
faith and diligent efforts to resolve any complaints received. For 
example, a Section 7(3) Station may agree to provide new receivers to 
impacted listeners or to install filters at the receiver site. Section 
7(3) Stations also may wish to consider colocation, a power reduction 
and/or other facility modifications (e.g., use of directional antennas 
or differing polarizations) to alleviate the interference. Finally, we 
will continue to consider a complaint resolved if the complainant does 
not reasonably cooperate with a Section 7(3) Station's investigatory 
and remedial efforts.
    37. Complaints. Section 7(3) requires the Commission to provide 
notice to the licensee of a Section 7(3) Station of the existence of 
interference within 7 calendar days of the receipt of a complaint from 
a listener or another station. Further, section 7(5) of the LCRA 
expands the universe of interference complaints which Section 7(3) 
Stations must remediate. Section 7(5) states:

    The Federal Communications Commission shall --(A) permit the 
submission of informal evidence of interference, including any 
engineering analysis that an affected station may commission; (B) 
accept complaints based on interference to a full-service FM 
station, FM translator station, or FM booster station by the 
transmitter site of a low-power FM station on a third-adjacent 
channel at any distance from the full-service FM station, FM 
translator station, or FM booster station; and (C) accept complaints 
of interference to mobile reception.

    38. We requested comment on whether any of the four criteria for 
bona fide complaints set forth in Sec.  73.810(b) of the rules remain 
relevant. We tentatively concluded that section 7(5) of the LCRA 
requires us to delete Sec. Sec.  73.810(b)(1) (bona fide complaint must 
allege interference caused by LPFM station that has its transmitter 
site located within the predicted 60 dBu contour of the affected 
station), (2) (bona fide complaint must be in form of affidavit and 
state the nature and

[[Page 2084]]

location of the alleged interference) and (3) (bona fide complaint must 
involve a fixed receiver located within the 60 dBu contour of the 
affected station and not more than 1 kilometer from the LPFM 
transmitter site). We asked commenters to address whether we should 
retain the remaining criterion set forth in Sec.  73.810(b)(4), which 
requires a bona fide complaint to be received within one year of the 
date an LPFM station commenced broadcasts. We also sought comment on 
whether to establish certain basic requirements for complaints.
    39. No commenter opposes our conclusion that section 7(5) of the 
LCRA mandates that we delete Sec. Sec.  73.810(b)(1) and (b)(3) from 
our rules. One commenter, however, proposes that we add a provision 
limiting complaints to those involving interference within the 100 dBu 
contour of the affected station. With respect to Sec.  73.810(b)(2) 
(bona fide complaint must be in form of affidavit and state the nature 
and location of the alleged interference), several commenters recommend 
that we retain some semblance of the former rule and also establish 
additional basic requirements for complaints. For instance, Athens 
Community Radio Foundation asserts that bona fide complaints should 
state the nature and location of the alleged interference, the call 
letters of the stations involved, and accurate contact information. 
Similarly, Common Frequency argues that an actionable complaint must 
specify the location and date of interference, the type of receiver, 
channel, time/day of interference, whether ongoing or intermittent, and 
contact information for the complainant. Several commenters also assert 
that the Commission should require complainants to file copies of their 
complaints with the Audio Division, and that the Commission should 
consider only complaints from bona fide listeners who are 
``disinterested.'' Finally, those discussing it unanimously agree that 
we should retain the criterion set forth in Sec.  73.810(b)(4), which 
requires a bona fide complaint to be received within one year of the 
date an LPFM station commenced broadcasts.
    40. We will, as proposed, eliminate Sec. Sec.  73.810(b)(1) and 
(b)(3) from our rules. These distance restrictions conflict with the 
explicit mandate of section 7(5) of the LCRA to ``accept complaints 
based on interference * * * at any distance from the full-service FM 
station, FM translator station, or FM booster station.'' In addition, 
the Sec.  73.810(b)(3) fixed receiver limitation is inconsistent with 
section 7(5)(C) of the LCRA, which requires us to accept complaints of 
interference at fixed locations and to mobile reception.
    41. In this same vein, we decline to adopt the proposal to limit 
complaints to those occurring within the 100 dBu contour of the 
affected station. We agree, however, with commenters' suggestions that 
we impose explicit, basic requirements for complaints. A list of 
minimum criteria likely will help LPFM stations quickly address issues 
while also curbing the risk of frivolous filings. Accordingly, while we 
will delete the Sec.  73.810(b)(2) criterion that the complaint be in 
the form of an affidavit, we retain the requirement that the complaint 
state the nature and location of the alleged interference. We will also 
require complainants to specify: (1) The call signs of the LPFM station 
and the affected full-service FM, FM translator or FM booster station; 
(2) the type of receiver; and (3) current contact information. We 
strongly encourage listeners to file copies of the complaints with the 
Media Bureau's Audio Division to ensure proper oversight. LPFM stations 
also must promptly forward copies of complaints to the Audio Division 
for resolution. However, an affected station may forward copies of 
complaints that it receives to the Audio Division as a courtesy to the 
complainant listeners. When complainants fail to include all the 
necessary information listed above, Audio Division staff will take 
efforts to correct any deficiencies. We also limit actionable listener 
complaints to those that are made by bona fide ``disinterested'' 
listeners (e.g., persons or entities without legal, economic or 
familial stakes in the outcome of the LPFM station licensing 
proceeding). Finally, we will preserve the Sec.  73.810(b)(4) 
criterion, which requires a bona fide complaint to be received within 
one year of the date an LPFM station commenced broadcasts with its 
currently authorized facilities. Any interference caused by a Section 
7(3) Station should be detectable within one year after it commences 
such operations. This time restriction will reasonably limit 
uncertainty regarding the potential modification or cancellation of an 
LPFM station's license and such station's financial obligation to 
resolve interference complaints. We believe that the efficient, limited 
complaint procedure that we are adopting is fully consistent with the 
LCRA and fairly balances the interests of full-service broadcasters 
against the benefits of fostering the LPFM radio service.
    42. Periodic Broadcast Announcements. Section 7(2) of the LCRA 
directs the Commission to amend Sec.  73.810 of the rules to require a 
newly constructed Section 7(3) Station to broadcast periodic 
announcements that alert listeners to the potential for interference 
and instruct them to contact the station to report any interference. 
These announcements must be broadcast for a period of one year after 
construction. We sought comment on whether we should adopt specific 
announcement language and whether we should mandate the timing and 
frequency of these announcements.
    43. Commenters agree that the Commission should provide some 
guidance regarding the text of the announcements. One commenter 
recommends that the Commission specify explicit uniform language. Other 
commenters state that the Commission should merely suggest language and 
allow operators of Section 7(3) Stations the flexibility to modify the 
wording. REC emphasizes that broadcasters need to have ``latitude to 
word the message in a way to get the points across without overwhelming 
listeners with technical jargon.''
    44. With respect to the timing and frequency of the mandatory 
announcements, REC argues that we should aim to achieve ``a balance 
between educating radio listeners of changes in the `dialscape' as a 
result of the new [LPFM] station while * * * not confus[ing] the 
listener or excessively burden[ing] the [LPFM] broadcaster.'' Jeff 
Sibert (``Sibert'') and Prometheus each urge us to address the 
announcements in a manner that is simple, flexible and imposes a 
minimum burden on new Section 7(3) Stations. One commenter suggests 
that we allow the affected full-power station to waive the Section 7(3) 
Station's periodic announcement requirement.
    45. Several commenters recommend that we use the pre-filing and 
post-filing license renewal announcement schedule as a template. REC, 
in particular, suggests a very detailed schedule based on a modified 
version of the renewal announcement schedule. It argues that any bona 
fide interference will be discovered in the first month of the Section 
7(3) Station's operation, and accordingly, it is necessary to air the 
highest frequency of announcements during the first month. Sibert 
asserts that the requirement to broadcast the announcement should be no 
greater than once per day between the hours of 6 a.m. and midnight for 
the first three months, and once per week during the same hours for the 
last nine months.
    46. We agree that we should provide licensees of newly constructed 
Section 7(3) Stations explicit guidance on the language to be used in 
the periodic

[[Page 2085]]

announcements. Therefore, we will amend our rules to specify sample 
language that may be used in the announcements. Specific language will 
make it easier for licensees of new Section 7(3) Stations to comply 
with this section 7(2) requirement. We will not, however, mandate that 
licensees of Section 7(3) Stations follow the sample text verbatim, but 
rather, allow licensees the discretion to modify the exact wording, as 
the vast majority proposed. To ensure consistency, the announcement 
must, however, at a minimum: (1) Alert listeners of a potentially 
affected third-adjacent channel station of the potential for 
interference; (2) instruct listeners to contact the Section 7(3) 
Station to report any interference; and (3) provide contact information 
for the Section 7(3) Station. Further, the message must be broadcast in 
the primary language of both the newly constructed Section 7(3) Station 
and any third-adjacent station that could be potentially affected.
    47. We will, as the commenters suggest, dictate the timing and 
frequency of the required announcements. We believe that an explicit 
schedule will promote compliance with this requirement. We also believe 
that the schedule specified below achieves the benefits of effectively 
notifying listeners of the potential for interference while minimizing 
the costs of doing so for the new Section 7(3) Station.
    48. We agree with REC that any interference is likely to be 
detected within the first month of the new Section 7(3) Station's 
operation. Accordingly, during the first thirty-days after a new 
Section 7(3) Station is constructed, we direct such station to 
broadcast the announcements at least twice daily. One of these daily 
announcements shall be made between the hours of 7 a.m. and 9 a.m. or 4 
p.m. and 6 p.m. The second daily announcement shall be made outside of 
these time slots. Between days 31 and 365 of operation, the station 
must broadcast the announcements a minimum of twice per week. The 
required announcements shall be made between the hours of 7 a.m. and 
midnight.
    49. Finally, we decline to allow an affected full-power station to 
waive the newly constructed Section 7(3) Station's periodic 
announcement obligation, as one commenter suggests. Section 7(2) of the 
LCRA explicitly mandates that newly constructed Section 7(3) Stations 
broadcast periodic announcements. The announcement is intended to 
benefit listeners, by alerting them of the potential for interference. 
Allowing potentially affected stations to waive the announcements would 
be inconsistent with section 7(2) of the LCRA and deprive listeners of 
its intended benefits.
    50. Technical Flexibility. Section 7(4) of the LCRA requires the 
Commission, to the extent possible, to ``grant low-power FM stations on 
third-adjacent channels the technical flexibility to remediate 
interference through the colocation of the transmission facilities of 
the low-power FM station and any stations on third-adjacent channels.'' 
In the Fourth FNPRM, we tentatively concluded that, other than 
eliminating the third-adjacent channel spacing requirements as mandated 
by section 3(a) of the LCRA, we need not modify or eliminate any other 
provisions of our rules to implement section 7(4).
    51. Two commenters propose additional modifications to our rules in 
order to implement section 7(4). REC argues that LPFM stations should 
have the flexibility to co-locate with or operate from a site ``very 
close to the third-adjacent full-service station as long as no new 
short spacing is created, even if this means moving the transmitter 
site to a location that may be outside the current service contour of 
the LPFM station.'' REC points out that, under existing rules, such a 
change would constitute a ``major change'' and an applicant seeking 
authority to make such a change would have to do so during a filing 
window. We infer that REC would like us to modify our rules to clarify 
that we will treat as a ``minor change'' a proposal to move a Section 
7(3) Station's transmitter site, including a move outside its current 
service contour, in order to co-locate or operate from a site close to 
a third-adjacent channel station and remediate interference to that 
station. We will adopt REC's proposed modification. We note that 
section 7(4) of the LCRA explicitly requires the Commission to grant 
``low-power FM stations on third-adjacent channels the technical 
flexibility to remediate interference through the colocation of the 
transmission facilities of the low-power FM station and any stations on 
third-adjacent channels.'' We believe that REC's suggested expansion of 
the definition of ``minor change'' will provide Section 7(3) Stations 
the sort of ``technical flexibility'' that Congress intended. We also 
will treat as a ``minor change'' an LPFM proposal to locate ``very 
close'' to a third-adjacent channel station. Although the LCRA does not 
explicitly direct the Commission to employ ``flexible'' licensing 
standards in this context, colocation and ``very close'' locations can 
eliminate the potential for interference for exactly the same reason 
(i.e., they result in acceptable signal strength ratios between the two 
stations at all locations). Generally, this will limit LPFM site 
selections and relocations pursuant to this policy to transmitter 
within 500 meters of stations operating on third-adjacent channels. The 
approach we adopt will advance the overarching goal of section 7 to 
prevent third-adjacent channel interference by LPFM stations. 
Accordingly, we will modify Sec.  73.870(a) of our rules to treat these 
moves as ``minor changes,'' and we will routinely grant applications 
for authority to make these moves, upon a showing of potential 
interference from the authorized site, and provided that the licensee 
would continue to satisfy all eligibility requirements and maintain any 
comparative attributes on which the grant of the station's initial 
construction permit was predicated.
    52. If interference is remediated through colocation, Common 
Frequency recommends that we consider allowing ``flexible operating 
proposals,'' such as upgrades to LP250 if the colocation takes the LPFM 
transmitter far from the existing transmitter site, the use of 
different or directional antennas, and the use of close-by towers 
instead of colocation. We decline to permit Section 7(3) Stations 
seeking to remediate interference by co-locating their transmission 
facilities with those of an affected full-service FM station to operate 
at powers exceeding 100 watts ERP at 30 meters HAAT. We will, however, 
permit Section 7(3) Stations to propose lower powers, use of 
directional antennas and use of differing polarizations to remediate 
interference. This is consistent with our decision to afford applicants 
seeking second-adjacent waivers the flexibility to employ these 
methods.
4. Additional Interference Protection and Remediation Obligations
    53. One additional provision of section 7--section 7(6)--requires 
the Commission to impose additional interference protection and 
remediation obligations on one class of LPFM stations. It directs the 
Commission to create special interference protections for ``full-
service FM stations that are licensed in significantly populated States 
with more than 3,000,000 population and a population density greater 
than 1,000 people per square mile land area.'' The obligations apply 
only to LPFM stations licensed after the enactment of the LCRA. Such 
stations must remediate actual interference to full-service FM stations 
licensed to the significantly populated states specified

[[Page 2086]]

in section 7(6) and ``located on third-adjacent, second-adjacent, 
first-adjacent or co-channels'' to the LPFM station and must do so 
under the interference and complaint procedures set forth in Sec.  
74.1203 of the rules. In the Fourth FNPRM, we found that the section 
7(6) interference requirements are, with one exception, unambiguous. We 
sought comment on whether to interpret the term ``States'' to include 
the territories and possessions of the United States. We noted that 
only New Jersey and Puerto Rico satisfy the population and population 
density thresholds set forth in section 7(6).
    54. Commenters are divided how we should construe the term 
``States.'' REC and SOPR argue that Congress did not intend to include 
Puerto Rico as a ``State'' for purposes of section 7(6). REC contends 
that, following lobbying from the New Jersey Broadcasters Association 
(``NJBA''), Congress amended the Act to include the current section 
7(6), and that Congress intended this section to apply solely to the 
state of New Jersey. Arso Radio Corporation (``Arso''), in contrast, 
asserts that ``States'' should include the territories and possessions 
of the United States, and therefore, the more restrictive section 7(6) 
interference protections should apply to both New Jersey and Puerto 
Rico. Although Arso acknowledges that an examination of the legislative 
history ``does not yield any clues as to congressional intent regarding 
use of the word `States,''' it insists that Congress intended to define 
the words ``States'' in the same way as it defined ``States'' in 
section 153(47) of the Communications Act of 1934, as amended 
(``Act''), which provides that the term ``State'' includes the District 
of Columbia and the Territories and possessions.
    55. We recognize that the term ``States'' is susceptible to 
different interpretations. It is unclear from the statutory text 
whether Congress intended the term ``States'' to mean the definition of 
``States'' as it appears in the Act, which includes all territories and 
possessions, or whether Congress intended to use the word ``State'' in 
its literal sense. We believe, however, that the best construction of 
this term, based on context and the current record before us, is that 
``State'' means one of the 50 states. Congress knows how to implement 
its directives as amendments to the Communications Act, and chose not 
to do so in the LCRA. Thus, there is no basis for expanding on the 
common meaning of the term ``states'' here to include territories. We 
also agree with REC that New Jersey is ``in a unique situation where 
there are two significant out-of-state metro markets (New York and 
Philadelphia) on each side of the state.'' With the New York and 
Philadelphia Arbitron Metro markets dominating much of the state, full 
power radio stations in New Jersey generally operate with lower powers 
and smaller protected contours than other full power radio stations. 
This could make them uniquely susceptible to interference from LPFM and 
FM translator stations. Moreover, we note that this provision of the 
LCRA was introduced by Senator Lautenburg, the senior Senator from New 
Jersey. This legislative history provides additional support for our 
conclusion that the term ``States'' in section 7(6) was not intended to 
include territories.

C. Protection of Translator Input Signals

    56. Section 6 of the LCRA requires the Commission to ``modify its 
rules to address the potential for predicted interference to FM 
translator input signals on third-adjacent channels set forth in 
Section 2.7 of the technical report entitled `Experimental Measurements 
of the Third-Adjacent Channel Impacts of Low Power FM Stations, Volume 
One--Final Report (May 2003).''' Section 2.7 of this report finds that 
``significant interference to translator input signals does not occur 
for [desired/undesired ratio] values of -34 dB or higher at the 
translator input.'' Section 2.7 sets out a formula (``Mitre Formula'') 
that allows calculation of the minimum LPFM-to-translator separation 
that will ensure a desired/undesired ratio equal to or greater than -34 
dB.
    57. In the Fourth FNPRM, we noted that the Commission requires LPFM 
stations to remediate actual interference to the input signal of an FM 
translator station but has not established any minimum distance 
separation requirements or other protection standards. Based on the 
language of section 6, which requires the Commission to ``address the 
potential for predicted interference,'' we tentatively concluded that 
our existing requirements regarding remediation of actual interference 
must be recast as licensing rules designed to prevent any predicted 
interference. No commenter suggested another interpretation of section 
6 of the LCRA. Thus, we affirm our tentative conclusion that section 6 
of the LCRA requires us to adopt rules designed to prevent predicted 
interference to FM translator input signals on third-adjacent channels.
    58. In the Fourth FNPRM, we sought comment on whether we should 
require LPFM applicants to protect the input signals of only those 
translators receiving third-adjacent channel full-service FM station 
signals, or whether we also should require them to protect the input 
signals of translators that receive third-adjacent channel translator 
signals directly off-air. Commenters' opinions vary on this issue. 
Prometheus argues that the protections should be limited to translators 
receiving input signals from FM stations. Prometheus believes that any 
protections beyond those to translators receiving off-air signals from 
FM stations would violate section 5 of the LCRA, which requires the 
Commission to ensure that LPFM stations and FM translators remain 
``equal in status.'' NPR and Western Inspirational, on the other hand, 
assert that the protections should extend to translators receiving 
input signals from other FM translators. NPR claims that, by its plain 
terms, section 6 of the LCRA requires protection of all signal inputs 
to translators. NPR notes that this interpretation is consistent with 
the Commission's current rule protecting translator input signals. 
Western Inspirational asserts that, with increased spectrum congestion, 
it has found it necessary for many of its translators to use an off-air 
input from another translator, not the originating FM station, in order 
to obtain a reliable input signal.
    59. After considering the comments and reviewing the text of the 
LCRA, we conclude that LPFM applicants must protect the reception 
directly, off-air of third-adjacent channel input signals from any 
station, including full-service FM stations and FM translator stations. 
Section 6 of the LCRA asks the Commission to address predicted 
interference to ``FM translator input signals on third adjacent 
channels.'' This unqualified mandate is consistent with our rules, 
which require LPFM stations to operate without causing actual 
interference to the input signal of an FM translator or FM booster 
station.
    60. We turn next to the issue of a predicted interference standard 
for processing LPFM applications. We adopt the basic threshold test 
proposed in the Fourth FNPRM, which received overwhelming support from 
commenters. This threshold test closely tracks the interference 
standard developed by Mitre but for the reasons stated below does not 
require an LPFM applicant to obtain the receive antenna technical 
characteristics that are incorporated into the Mitre Formula. It 
provides that an applicant for a new or modified LPFM construction 
permit may not propose a transmitter site within the ``potential 
interference area'' of any FM translator station that receives its 
input signal directly off-air from a full-service FM or FM translator 
station on a third-adjacent channel. For

[[Page 2087]]

these purposes, we define the ``potential interference area'' as both 
the area within 2 kilometers of the translator site and also the area 
within 10 kilometers of the translator site within the azimuths from -
30 degrees to +30 degrees of the azimuth from the translator site to 
the site of the FM station being rebroadcast by the translator.
    61. As proposed in the Fourth FNPRM and supported by commenters, we 
will permit an LPFM applicant proposing to locate its transmitter 
within the ``potential interference area'' to use either of two methods 
to demonstrate that LPFM station transmissions will not cause 
interference to an FM translator input signal. First, as indicated in 
Section 2.7 of the Mitre Report, an LPFM applicant may show that the 
ratio of the signal strength of the LPFM (undesired) proposal to the 
signal strength of the FM (desired) station is below 34 dB at all 
locations. Second, an LPFM applicant may use the equation provided in 
Section 2.7 of the Mitre Report. As requested by Prometheus, we also 
will permit an LPFM applicant to reach an agreement with the licensee 
of the potentially affected FM translator regarding an alternative 
technical solution.
    62. We do not authorize FM translator receive antenna locations. 
However, we believe that most receive and transmit antennas are co-
located on the same tower. Accordingly, we proposed to assume that the 
translator receive antenna is co-located with its associated translator 
transmit antenna. We received no comment on this proposal. We continue 
to believe that assuming colocation of translator receive and transmit 
antennas will facilitate the use of the methods described above. We 
noted that the Mitre Formula would require the horizontal plane pattern 
of the FM translator's receive antenna--information that is not 
typically available publicly or in CDBS. Therefore, we also proposed to 
allow the use of a ``typical'' pattern in situations where an LPFM 
applicant is not able to obtain this information from the FM translator 
licensee, despite reasonable efforts to do so. Both Prometheus and 
Common Frequency support this proposal. No commenter opposes it. 
Accordingly, we adopt our proposal to allow use of a ``typical'' 
pattern when an LPFM station makes reasonable efforts but is unable to 
obtain the horizontal plane pattern of an FM translator station from 
that station.
    63. Prometheus proposes that we relieve an LPFM applicant of its 
obligation to protect an FM translator's input signal if, despite 
reasonable efforts to do so, the applicant is unable to determine the 
delivery method or input channel for that translator. We will not adopt 
this proposal because the LCRA requires us to ``address the potential 
for predicted interference'' in this context. We lack authority to 
adopt a processing rule that abdicates this responsibility. For this 
same reason, we also reject Prometheus' proposal to relieve an LPFM 
station applicant from this protection obligation if a translator 
licensee fails to maintain accurate and current Commission records 
regarding its primary station and input signal. In any event, we note 
that we specify the primary station call sign, frequency and community 
of license in FM translator authorizations. In addition, we require 
each FM translator licensee to identify its primary station when filing 
its renewal application. We strongly recommend that FM translator 
licensees update the Commission if they have changed their primary 
stations since they last filed renewal applications.
    64. We proposed to dismiss as defective an LPFM application that 
specifies a transmitter site within the third-adjacent channel 
``potential interference area'' but fails to include an exhibit 
demonstrating lack of interference to the off-air reception by that 
translator of its input signal. We proposed to permit an LPFM applicant 
to seek reconsideration of the dismissal of its application and to 
request reinstatement nunc pro tunc. We also proposed that an LPFM 
applicant seeking reconsideration and reinstatement nunc pro tunc 
demonstrate that its proposal would not cause any predicted 
interference using either the undesired/desired ratio or the Mitre 
Formula discussed above. Commenters support these proposals. We 
continue to believe it is appropriate to treat an application dismissed 
on these grounds the same as an application dismissed for violation of 
other interference protection requirements. Accordingly, we adopt our 
proposal to allow an applicant to seek reconsideration and 
reinstatement nunc pro tunc by making one of the showings discussed 
herein. In addition, consistent with our decision to permit applicants 
to do so at the application filing stage, we will permit applicants to 
reach an agreement with the licensee of the potentially affected FM 
translator regarding alternative technical solutions.

D. Other Rule Changes

    65. The Fourth FNPRM proposed changes to our rules intended to 
promote the LPFM service's localism and diversity goals, reduce the 
potential for licensing abuses, and clarify certain rules. We sought 
comment on whether the proposed changes were consistent with the LCRA 
and whether they would promote the public interest. We discuss each 
proposed change in turn below.
1. Eligibility and Ownership
a. Requirement That Applicants Remain Local
    66. The LPFM service is reserved solely for non-profit, local 
organizations. In the Fourth FNPRM, we expressed concern that, because 
our rules define ``local'' in terms of ``applicants'' and their 
eligibility to ``submit applications,'' applicants and licensees might 
not understand that the localism requirement extends beyond the 
application stage. We proposed to clarify this by revising Sec.  
73.853(b) to read: ``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, at the time of application, that it 
meets the criteria listed below and if such applicant continues to 
satisfy the criteria at all times thereafter * * *.''
    67. Prometheus and SOPR support our proposal. Prometheus notes that 
to require otherwise (i.e., to require that an organization be local 
only at the time it submits its application) ``would controvert the 
LCRA and the policies of the Commission.'' SOPR asserts that this 
clarification may prevent abuse. Catholic Radio Association (``CRA'') 
suggests language it believes will better achieve our policy objective.
    68. Given the limited reach of LPFM stations, we continue to 
believe that LPFM entities must be local at all times and we will 
clarify that requirement by amending Sec.  73.853(b). At CRA's 
suggestion, we will adopt language slightly different from that 
originally proposed. Our revised rule (with the new language 
underlined) will read: ``Only local organizations will be permitted to 
submit applications and to hold authorizations in the LPFM service. For 
the purposes of this paragraph, an organization will be deemed local if 
it can certify, at the time of application, that it meets the criteria 
listed below and if it continues to satisfy the criteria at all times 
thereafter * * *.'' We address changes we proposed to the criteria used 
to define ``local,'' later in this decision.
b. Cross-Ownership of LPFM and FM Translator Stations
    69. From the outset, the Commission has prohibited common ownership 
of an LPFM station and any other media subject to the Commission's 
ownership

[[Page 2088]]

rules. This prohibition fosters one of the most important purposes of 
establishing the LPFM service--``to afford small, community-based 
organizations an opportunity to communicate over the airwaves and thus 
expand diversity of ownership.'' In the Fourth FNPRM, we sought comment 
on whether to allow LPFM station licensees to own or hold attributable 
interests in one or more FM translator stations. We noted that this 
could enable LPFM stations to expand their listenership and provide 
another way for FM translators to serve the needs of communities. We 
asked whether it was possible to achieve such benefits without changing 
the extremely local nature of the LPFM service. We further asked 
whether we should limit cross-ownership of FM translators and LPFM 
stations by, for example, requiring that (1) any cross-owned FM 
translator rebroadcast the programming of its co-owned LPFM station; 
(2) the 60 dBu contours of the co-owned LPFM and FM translator stations 
overlap; and/or (3) the co-owned LPFM and FM translator stations be 
located within a set distance or geographic limit of each other. 
Finally, we asked whether to permit an LPFM station to use alternative 
methods to deliver its signal to a commonly owned FM translator.
    70. A few commenters oppose cross-ownership. These commenters 
express concerns about the impact of LPFM/FM translator cross-ownership 
on the local character of the LPFM service and the availability of 
spectrum for new LPFM stations. NPR points out that the Commission, in 
creating the LPFM service, considered but ultimately rejected the 
option of allowing cross-ownership of LPFM and other broadcast 
stations, finding that its interest in providing for new voices to 
speak to the community and providing a medium for new speakers to gain 
broadcasting experience would be best served by barring cross-
ownership.
    71. In contrast, many commenters support LPFM/FM translator cross-
ownership. REC and Nexus/Conexus assert that cross-ownership would 
enable LPFM stations to better reach their intended communities. REC 
observes that FM translator stations owned by unrelated entities have 
been rebroadcasting LPFM signals for over a decade. REC does not 
believe that limited common ownership of FM translator and LPFM 
stations would change the nature of the LPFM service. National Lawyers 
Guild and Media Alliance state that translators might be useful if a 
terrain obstruction blocks an LPFM signal within the LPFM station's 
primary contour. Several commenters contend that cross-ownership could 
enhance localism because many communities are larger than the typical 
reach of an LPFM station's signal. They contend that FM translators 
could allow stations to serve their entire intended service area, such 
as a single county.
    72. Most commenters qualify their support for cross-ownership, 
suggesting various limits or restrictions to ensure that any co-owned 
FM translator enhances an LPFM station's local mission. Commenters 
support (1) establishing a distance or geographic limit on FM 
translator cross-ownership, (2) requiring the service contours of co-
owned LPFM and FM translator stations to overlap; (3) limiting the 
number of FM translators an LPFM licensee may own to a ``modest'' 
number, such as one or two; and/or (4) requiring co-owned translators 
to rebroadcast only the LPFM station. Commenters also support requiring 
an LPFM station to feed the FM translator with an off-air signal, the 
same delivery restriction that applies to non-reserved band FM 
translators.
    73. We believe that commenters on both sides of this issue raise 
valid points. As many observe, use of FM translators to rebroadcast 
LPFM stations could be beneficial, improving local service to oddly-
shaped communities and to rural communities that could receive, at 
best, only partial LPFM coverage. However, as others aptly note, cross-
ownership without adequate safeguards poses a potential danger to the 
local character of the LPFM service. On balance, we believe that the 
benefits of FM translator ownership by LPFM licensees will outweigh any 
disadvantages, provided that we take steps to limit potential risks.
    74. Accordingly, we will amend Sec.  73.860 of our rules to allow 
LPFM/FM translator cross-ownership. We will limit cross-ownership, 
however, in order to prevent large-scale chains and ``leapfrogging'' 
into unconnected, distant communities. We adopt the following five 
limits on cross-ownership, which are intended to ensure that the LPFM 
service retains its extremely local focus. First, we will permit 
entities--other than Tribal Nation Applicants--to own or hold 
attributable interests in one LPFM station and a maximum of two FM 
translator stations. Second, we will require that the 60 dBu contours 
of a commonly-owned LPFM station and FM translator station(s) overlap. 
Third, we will require that an FM translator receive the signal of its 
co-owned LPFM station off-air and directly from the LPFM station, not 
another FM translator station. Fourth, we will limit the distance 
between an LPFM station and the transmitting antenna of any co-owned 
translator to 10 miles for applicants in the top 50 urban markets and 
20 miles for applicants outside the top 50 urban markets. An LPFM 
station may use either its transmitter site or the reference 
coordinates of its community of license to satisfy these distance 
restrictions. Fifth, we will require the FM translator station to 
synchronously rebroadcast the primary analog signal of the commonly-
owned LPFM station (or for ``hybrid'' stations, the digital HD-1 
program-stream) at all times.
    75. We believe that allowing cross-ownership of an LPFM station and 
up to two FM translator stations will provide maximum flexibility, 
while the requirement that these translators link directly to their 
commonly-owned LPFM station rather than to each other will prevent the 
type of chained-networks of concern to commenters. To keep the service 
provided by the LPFM/FM translator combinations locally focused, we 
will limit the placement of co-owned FM translators to conform to the 
same ten- and twenty-mile distances which define ``local'' applicants 
in the top 50 and all other markets, respectively. We believe that such 
a requirement is more easily understood and achieved than alternatives 
phrased in terms of a signal's ability to stay within political 
boundaries of a county or city. Our requirement that an FM translator 
rebroadcast the primary signal of its co-owned LPFM station addresses 
Grant County's concern that LPFM stations may begin to broadcast 
multiple digital streams and that stations operating in such a hybrid 
mode might use translators to network secondary, less locally-oriented 
programming rather than the station's primary program stream. We are 
aware of only one LPFM station currently operating in hybrid mode, so 
this issue is currently of limited applicability. Nevertheless, we 
adopt Grant County's suggestion that co-owned translators 
simultaneously rebroadcast the LPFM station's analog programming, as a 
forward-looking protection to preserve the service's local nature as 
more LPFM stations avail themselves of technological advances. We 
further agree with commenters that alternative signal delivery of LPFM 
signals to FM translators could regionalize LPFM service. Accordingly, 
we will require that an FM translator receive the signal of its co-
owned LPFM station off-air and directly from the LPFM station itself in 
order to maintain the service's local character.
c. Ownership Issues Affecting Tribal Nations
    76. We posed additional ownership-related questions in the Fourth 
FNPRM,

[[Page 2089]]

including whether Tribal Nations are eligible and, if not, whether they 
should be eligible to own LPFM stations. We also sought comment on 
whether they should be permitted to own more than one LPFM station and/
or to own or hold an attributable interest in an LPFM station in 
addition to a full-power station. We address each of these proposals 
below.
    77. Basic Eligibility. Sec.  73.853 of the rules currently provides 
for the licensing of an LPFM station to a state or local government, 
but does not explicitly establish the eligibility of a Tribal Nation 
Applicant. Notwithstanding this omission, it is well established that 
Tribal Nations are inherently sovereign Nations, with the obligation to 
``maintain peace and good order, improve their condition, establish 
school systems, and aid their people in their efforts to acquire the 
arts of civilized life,'' within their jurisdictions. The Commission, 
as an independent agency of the United States Government, has an 
historic federal trust relationship with Tribal Nations, and a 
longstanding policy of promoting Tribal self-sufficiency and economic 
development. To this end, the Commission has taken steps to aid in 
their efforts to provide educational and other programming to their 
members residing on Tribal Lands, as well as to assist them in 
acquiring stations for purposes of business and commercial development.
    78. In view of our commitment to assist Tribal Nations in 
establishing radio service on Tribal lands and our consideration of 
whether to include a Tribal Nation selection criterion in the LPFM 
comparative analysis, in the Fourth FNPRM we proposed to recognize 
explicitly the eligibility of Tribal Nation Applicants to hold LPFM 
licenses. We proposed to rely on the definitions of the terms ``Tribal 
applicant'' and ``Tribal lands'' as they are currently defined in our 
rules governing full-power NCE FM licensing. By specifically cross-
referencing the definition of ``Tribal applicant'' set forth in Sec.  
73.7000 of the rules, which includes a reference to the term ``Tribal 
coverage,'' we implicitly proposed to incorporate the definition of 
``Tribal coverage'' set forth therein.
    79. Commenters, including NPM and NCAI, supported without 
significant discussion the proposal to expand the LPFM eligibility rule 
to include Tribal Nation Applicants. No commenter opposed this 
proposal. Accordingly, we will amend Sec.  73.853(a) to clarify that 
Tribal Nation Applicants are eligible to hold LPFM licenses. This rule 
amendment further underscores the Commission's commitment to recognize 
the sovereignty of Tribal Nations and to ensure their equal treatment 
under our rules. However, we will not, as originally proposed, rely on 
the definition of ``Tribal applicant'' or ``Tribal coverage'' currently 
used in the NCE FM context. The definition of ``Tribal coverage'' set 
forth in the NCE FM rules includes a coverage requirement and a 
requirement that the proposed station serve at least 2,000 people 
living on Tribal Lands. As NPM and NCAI note, the limited scope of LPFM 
coverage and the scattered populations on lands occupied by Tribal 
Nations warrant a departure from the definition of ``Tribal coverage'' 
set forth in Sec.  73.7000. Unlike NPM and NCAI, however, we believe 
that not only the 2,000 person threshold but also the coverage 
requirements are unsuitable for the LPFM context. Instead, for LPFM 
licensing purposes, we will define a ``Tribal applicant'' by retaining 
the requirement that the applicant be a Tribe or entity that is 51 
percent or more owned or controlled by a Tribe. Such action is 
consistent with the localism and diversity goals of the LPFM service 
and will better achieve our goal of assisting Tribal Nations in 
establishing radio service to their members on Tribal Lands. Tribal 
stations currently account for less than one-third of one percent of 
the more than 14,000 radio stations in the United States. Thus, it is 
self-evident that expanding Tribal radio ownership opportunities will 
help bring needed new service to chronically underserved communities. 
Moreover, restricting ownership to Tribes and Tribally controlled 
entities, which are obligated to preserve their histories, languages, 
cultures and traditions, will promote the licensing of stations to 
entities that are uniquely capable of providing radio programming 
tailored to local community needs and interests.
    80. Finally, as NPM and NCAI propose, we will consider a Tribal 
Nation Applicant local throughout its Tribal lands, so long as such 
lands are within the LPFM's station's service area. We are persuaded 
that this better recognizes the sovereign status of Tribal Nations than 
our original proposal to consider a Tribal Nation Applicant local only 
if it proposed to locate the transmitting antenna of the proposed LPFM 
station on its Tribal lands. Moreover, this is consistent with the 
rules applicable to Tribal Nations and state and local governments 
operating full-service NCE-FM and Public Safety land mobile services.
    81. Ownership of Multiple LPFM stations. The Commission currently 
prohibits entities from owning more than one LPFM station unless they 
are ``[n]ot-for-profit organizations with a public safety purpose.'' 
This prohibition is intended to further diversity of ownership and 
foster a local, community-based LPFM service. In the Fourth FNPRM, we 
sought comment on whether to permit Tribal Nation Applicants to seek 
more than one LPFM construction permit to ensure adequate coverage of 
Tribal lands. For instance, we noted that ownership of multiple LPFM 
stations might be appropriate if Tribal Nation Applicants seek to serve 
large, irregularly shaped or rural areas that could not be covered 
adequately with one LPFM station. We explained that we believed that 
permitting Tribal Nations to hold more than one LPFM license could 
advance the Commission's efforts to enhance the ability of Tribal 
Nations to produce programming tailored to their specific needs and 
cultures, and expand Tribal Nation LPFM station ownership 
opportunities. We questioned, however, whether we should limit 
ownership of multiple LPFM stations by a Tribal Nation Applicant to 
situations where channels also are available for other applicants, 
thereby eliminating the risk that a new entrant would be precluded from 
offering service. Finally, we sought comment on whether to implement 
this policy through amendment of Sec.  73.855(a) of the rules or by 
rule waivers.
    82. A number of commenters support Tribal Nation ownership of 
multiple LPFM stations on Tribal lands to permit more complete coverage 
than would be achieved with a single LPFM station. NPM and NCAI note 
that Tribal Nations already are eligible to own multiple LPFM stations 
as governmental entities under the public safety exception to our ban 
on multiple ownership of LPFM stations. They and REC believe Tribal 
Nations should also be able to own multiple LPFM stations for other 
noncommercial purposes.
    83. Common Frequency, NLG and Media Alliance believe that multiple 
ownership by Tribal Nations is appropriate on Tribal lands, and in 
rural areas and small towns where there would be few other 
organizations interested in applying for LPFM stations. REC, however, 
would allow Tribal Nation Applicants to own or hold attributable 
interests in multiple LPFM stations only if Tribal lands constitute at 
least 50 percent of the land area covered by each additional LPFM 
station licensed to a Tribal Nation Applicant.
    84. CRA, Matt Tuter (``Tuter'') and William Spry (``Spry'') urge us 
to eliminate the ban on multiple ownership of LPFM stations altogether.

[[Page 2090]]

CRA and Tuter contend that maintaining multiple ownership restrictions 
for all applicants except for Tribal Nation Applicants is mistaken 
``because it proceeds from a false notion that only Tribal governments 
can serve the interests of Tribal Americans.'' Spry, on the other hand, 
argues that allowing multiple ownership of LPFM stations is no 
different than permitting cross-ownership of an LPFM station and FM 
translator stations. According to Spry, ``Multiple licenses are 
multiple licenses. The service should not matter.''
    85. We will allow Tribal Nation Applicants to seek up to two LPFM 
construction permits to ensure adequate coverage of Tribal lands. Our 
rules already permit governments, including Tribal Nations, to own 
multiple LPFM stations for public safety purposes, provided that they 
designate one application as a priority and provided that non-priority 
applications do not face MX applications. Consistent with our decision 
above, we will permit each such co-owned LPFM station to retransmit its 
signal over two FM translator stations, creating the potential for a 
Tribal Nation Applicant to have attributable interests in a total of 
two LPFM stations and four FM translator stations. We believe that this 
action will significantly further opportunities for LPFM service by 
Tribal Nations to their members. We will not eliminate our prohibition 
on multiple ownership altogether as CRA, Tuter and Spry urge. In the 
Fourth Report and Order in this proceeding we found that limited 
licensing opportunities remain for future LPFM stations in many larger 
markets while abundant spectrum is available in the more sparsely 
populated areas where Tribal Nation stations would operate 
predominantly. Moreover, the voluminous record of this proceeding 
testifies to the unmet demand for community radio stations. Given the 
imbalance between spectrum supply and applicant demand in larger 
markets, eliminating the current prohibition entirely could undermine 
the LPFM service goal to promote diversity of ownership. Nor will we 
restrict Tribal Nation ownership of multiple LPFM stations as proposed 
by REC. Tribal Nation Applicants will need to satisfy our localism 
requirement in order to be eligible to hold LPFM licenses. We believe 
this will provide adequate assurance that Tribal Nation ownership of 
multiple LPFM stations furthers our goal of promoting service to Tribal 
lands and members.
    86. Finally, we note that, in the past, the Commission has 
prohibited an LPFM applicant from filing more than one application in a 
filing window. In doing so, it relied upon the fact that ``no one may 
hold an attributable interest in more than one LPFM station'' and noted 
that ``a second application filed by an applicant in [a] window would 
be treated as a `conflicting' application subject to dismissal under 
Section 73.3518.'' As discussed above, we are creating a limited 
exception to the ban on multiple ownership of LPFM stations for Tribal 
Nation Applicants. Accordingly, we will permit Tribal Nation Applicants 
to file up to two applications in a filing window.
    87. Cross-Ownership of LPFM and Full Power Stations. We also sought 
comment on whether to permit a full-service radio station permittee or 
licensee that is a Tribal Nation Applicant to file for an LPFM station 
and hold an attributable interest in such station. As discussed 
previously, our rules prohibit cross-ownership in order ``to afford 
small, community-based organizations an opportunity to communicate over 
the airwaves and thus expand diversity of ownership.'' We stated that 
we believed that adding an exception for Tribal Nations would enhance 
their ability to provide communications services to their members on 
Tribal lands without significantly undermining diversity of ownership. 
We asked commenters to discuss whether such an exception should be 
limited to situations where the Tribal Nation Applicant demonstrates 
that it would serve currently unserved Tribal lands or populations.
    88. Few commenters discussed this proposal. NPM, NCAI and Common 
Frequency express general support. CRA supports cross-ownership of LPFM 
and full-power stations but believes this option should be available to 
all applicants. REC supports the proposal but would impose certain 
cross-ownership restrictions.
    89. After considering the comments, we do not believe that there is 
a sufficient record on which to modify our rules to provide for Tribal 
Nation cross-ownership of LPFM and full-service stations. The record at 
this time does not demonstrate that this is necessary or would provide 
significant public interest benefit. A Tribal Nation with an LPFM 
authorization may file at any time a rulemaking petition for a Tribal 
allotment, provided that it pledges to divest the LPFM station. 
Although we recognize that cross-ownership could permit a Tribal Nation 
to program separately for different audiences, we remain concerned that 
this type of cross-ownership might undermine the diversity goals of the 
LPFM service. It is also not clear, on the record before us, how it 
would advance our goal of expanding service to Tribal lands and 
members. Finally, the record did not identify a demonstrated need 
unique to Tribal Nations that this change would address. Accordingly, 
we decline at this time to adopt a cross-ownership exception that would 
allow a Tribal Nation Applicant to hold both LPFM and full-power radio 
station authorizations. A Tribal Nation Applicant that can demonstrate 
that a waiver would advance our LPFM goals, and advance our goal of 
expanding service to Tribal lands and members or is otherwise in the 
public interest, may seek a waiver of this ownership restriction. 
Moreover, in light of the trust relationship we share with federally 
recognized Tribal Nations, the Commission will endeavor, through 
efforts coordinated by the Office of Native Affairs and Policy and the 
Audio Division, to engage in further consultation with Tribal Nations 
and coordination with inter-Tribal government organizations on this 
cross-ownership issue.
d. Ownership of Student-Run Stations
    90. Two commenters ask us to make changes to the exception to the 
cross-ownership prohibition for student-run stations, which is set 
forth in Sec.  73.860(b) of the rules. Currently, we permit an 
accredited school that has a non-student-run full power broadcast 
station also to apply for an LPFM station that will be managed and 
operated by students of that institution, provided that the LPFM 
application is not subject to competing applications. The Commission 
dismisses the student-run LPFM application if competing applications 
are filed.
    91. REC and Common Frequency propose that we consider applications 
for student-run stations even if there are competing applications, so 
that all applicants can participate in settlements and time sharing 
negotiations. We agree that it would serve the public interest to 
eliminate this automatic dismissal requirement. When the Commission 
first adopted this exception to the general prohibition on cross-
ownership, it was seeking to strike a balance between an LPFM service 
comprised entirely of new entrants and one which would enable new 
speakers including students to gain experience in the broadcast field, 
even if their universities held other broadcast interests. The 
Commission believed that the exception properly balanced the interests 
of local groups in acquiring a first broadcast facility and of 
university licensees in providing a distinct media outlet for students. 
Our decision today, however,

[[Page 2091]]

alters the LPFM comparative process by adding a selection criterion for 
applicants with no other broadcast interests. Given this change, we 
believe it is appropriate to eliminate our limitation on eligibility 
for student-run LPFM applications by schools with non-student run full 
power broadcast stations.
    92. Common Frequency also proposes that we allow university systems 
with multiple campuses serving distinct regions, such as those in New 
York, Georgia, and California, to apply for student-run LPFM stations 
at any campus without another station, provided that the 60 dBu service 
contours do not overlap. For example, Common Frequency argues that the 
newest campus of the University of California at Merced could benefit 
from a student-run LPFM station but cannot apply because the university 
owns full-power stations at other campuses. We do not believe that a 
rule change is needed, however, concerning multiple campuses. Under our 
rules, a local chapter of a national or other large organization is not 
attributed with the interests of the larger organization, provided that 
the local chapter is separately incorporated and has a distinct local 
presence and mission. In 2000, the Commission clarified that this LPFM 
attribution exception for ``local chapters'' applies to schools that 
are part of the same school system, including university systems with 
multiple campuses, provided that the ``local chapter'' seeks its own 
licenses. Thus, in Common Frequency's example, the University of 
California's ownership of full power broadcast stations licensed to 
separate campus institutions would not prevent the University of 
California at Merced from applying for an LPFM new station construction 
permit for a student-run station. We note, however, that ``local 
chapters'' of larger organizations that hold broadcast interests will 
not qualify for a ``new entrant'' point, as discussed below. Any 
broadcast interests held by the ``parent'' organization will be 
considered attributable for the purposes of this criterion only.
2. Selection Among Mutually Exclusive Applicants
    93. The Commission accepts applications for new LPFM stations or 
major changes to authorized LPFM stations only during filing windows. 
After the close of an LPFM filing window, the Commission makes mutual 
exclusivity determinations with regard to all timely and complete 
filings. The staff then processes any applications not in conflict with 
any other application filed during the window, and offers applicants 
identified as MX with other applicants the opportunity to settle their 
conflicts. If conflicts remain, the Commission applies the LPFM point 
system. Specifically, under our current rules, the Commission awards 
one point to each applicant that has an established community presence, 
one point to each applicant that pledges to operate at least twelve 
hours per day, and one point to each applicant that pledges to 
originate locally at least eight hours of programming per day. The 
Commission takes the pledges made by applicants seriously. We will 
consider complaints that a licensee is not making good on a pledge it 
made during the application process and take appropriate enforcement 
action if we find a licensee has not followed through on its pledge. 
Moreover, as we noted in establishing the point system, ``As with other 
broadcast applications, the Commission will rely on certifications but 
will use random audits to verify the accuracy of the certifications.'' 
In the event of a tie, the Commission employs voluntary time sharing as 
the initial tie-breaker. As a last resort, the Commission awards each 
tied and grantable applicant an equal, successive and non-renewable 
license term of no less than one year, for a combined total eight-year 
term.
    94. In the Fourth FNPRM, we proposed certain changes to our 
existing criteria, suggested that we award a point to Tribal Nation 
Applicants, and requested suggestions for new selection criteria that 
would improve the efficiency of the selection process. As discussed in 
more detail below, we adopt a revised point system. We will award one 
point to applicants for each of the following: (1) Established 
community presence; (2) local program origination; (3) main studio/
staff presence (with an extra point going to those applicants making 
both the local program origination and main studio pledges); (4) 
service to Tribal lands by a Tribal Nation Applicant; and (5) new entry 
into radio broadcasting. We will continue to accept voluntary timeshare 
arrangements, and will continue to accept partial settlements not 
involving timeshare arrangements, as an additional means to eliminate 
ties, discourage gamesmanship in timesharing arrangements, and reduce 
involuntary timeshare outcomes. We eliminate successive timeshare 
arrangements as the last resort, and will instead allow remaining 
qualified applicants to share time designated in the manner described 
below. Finally, we revise our rules to extend mandatory time sharing to 
LPFM stations that meet the Commission's minimum operating requirements 
but do not operate 12 hours per day each day of the year.
a. Point System Structure, and Elimination of Proposed Operating Hours 
Criterion
    95. REC and Prometheus each offer modifications to the current 
point system, but also submit alternative or enhanced methods by which 
to resolve MX groups. Each party maintains that the purpose of its 
proposed structure is to decrease the number of potential timeshares 
and successive licensees. Prometheus proposes a multistage ``waterfall 
evaluation process'' in which there are multiple opportunities for a 
single winner to emerge. It notes that, under this system, the 
Commission would be able to emphasize its ``top priority'' criteria by 
placing them in the first tier, and explains the process as follows:

    In this system, each criterion would be worth a single point and 
would be placed--according to priority--into one of several tiers. 
The Commission would first compare applications using only the 
criteria in ``Tier 1.'' If, after relying only on the criteria in 
Tier 1, a single applicant receives more points than any of its 
competitors, that winning applicant becomes the tentative selectee. 
However, in the event of a tie between two or more applicants with 
the most points, those tied applicants would then advance to Tier 2. 
Applicants with fewer points would be dismissed. These procedures 
would then be repeated to evaluate the remaining applicants using 
Tier 2 and, if necessary, Tier 3 criteria.

    96. REC, on the other hand, suggests that we retain the established 
community presence and local programming criteria, and award additional 
points as follows:

--One point to any applicant that is a municipal or state agency 
eligible under Part 90 of the rules and provides emergency service;
--One point to any applicant that is an accredited school and will use 
the proposed LPFM station for a ``hands on'' educational experience in 
broadcasting;
--One point to any applicant proposing to broadcast children's 
programming for at least 3 hours per week;
--One point to any applicant that will maintain a main studio staff 
presence for at least 40 hours per week;
--One point to any applicant volunteering to maintain an online public 
file;
--One point to any applicant that is owned or controlled by a 
recognized Tribal Nation that currently has no attributable interests 
in any other broadcast facility, proposes a

[[Page 2092]]

transmitter site located within the boundaries of a Tribal Nation, and 
has not received a point under this criterion in connection with 
another LPFM station for which the applicant holds a construction 
permit or license;
--One point to any applicant that pledges to create a public access 
broadcasting regime that solicits and presents programming created by 
and directly submitted by members of the public within the proposed 
LPFM station's service contour; and
--One point to any applicant willing to accept a time share agreement 
in lieu of being allowed to broadcast full time.

    97. We continue to believe that our basic points structure remains 
the most effective and efficient method of resolving mutual 
exclusivities. This conclusion is based in part on our recent 
experience with NCE applications filed during the 2007 and 2010 
windows, where we have successfully resolved hundreds of groups of MX 
applications based on a very similar point system process. We decline 
to adopt Prometheus' proposed ``waterfall'' system. While doing so may 
reduce the likelihood of involuntary timesharing outcomes, we do not 
believe, as Prometheus suggests, that it would ``reduce the 
administrative complexity'' of the comparative process generally. 
Indeed, we believe that it would have the opposite effect, as it would 
also create the potential for ``waterfall'' levels of comparative 
analysis and re-analysis. For example, for every successful challenge 
to the tentative selection of an applicant in a tiered category, the 
Commission would be forced to re-evaluate the group as a whole to 
determine which applicant, if any, should proceed to the next tier. If 
the new applicant in the next tier was successfully challenged, the 
Commission would have to repeat the evaluation process. This outcome is 
much less efficient than the current points system, which allows the 
Commission to weigh all points claimed by all applicants 
simultaneously. Even if we were to conclude that this approach was 
administratively feasible, we believe that we would need a far more 
comprehensive record, developed through a supplemental rulemaking, 
before we could attempt to ``rank'' the LPFM selection criteria into 
``tiers.''
    98. As discussed below, however, we adopt some of the new criteria 
suggested by REC, which we believe will enhance the localism and 
diversity policies underlying the LPFM service and anticipate will 
reduce the number of involuntary timesharing outcomes. We reject the 
remaining criteria suggested by REC and others, as they fail to 
demonstrate any unmet need that warrants preferences for particular 
types of programming, would be difficult and time-consuming to 
administer or enforce, or would not substantially further the 
Commission's localism goals.
    99. Finally, REC, Prometheus and others suggest that we eliminate 
the proposed operating hours criterion, noting that, because of 
automation software, ``even one-person LPFM stations easily meet this 
standard.'' We agree with the commenters that this criterion does not 
meaningfully distinguish among applicants. Thus, we eliminate it.
b. Established Community Presence
    100. Currently, under the LPFM selection procedures for MX LPFM 
applications set forth in Sec.  73.872 of the rules, the Commission 
awards one point to an applicant that has an established community 
presence. The Commission deems an applicant to have such a presence if, 
for at least two years prior to application filing, the applicant has 
been headquartered, has maintained a campus or has had three-quarters 
of its board members residing within ten miles of the proposed 
station's transmitter site. In the Fourth FNPRM, we proposed to revise 
the language of Sec.  73.872(b)(1) to clarify that an applicant must 
have had an established local presence for a specified period of time 
prior to filing its application and must maintain that local presence 
at all times thereafter. We noted that while Sec.  73.872(b)(1) 
currently does not include the requirement that an applicant maintain a 
local presence, we believed that was the only reasonable interpretation 
of the rule. Commenters that addressed this proposal agreed that this 
was a reasonable interpretation. Accordingly, we adopt this proposed 
revision.
    101. In addition, we sought comment on other changes to the rule. 
First, we requested comment on whether to revise our definition of 
established community presence to require that an applicant have 
maintained such a presence for a longer period of time, such as four 
years. Commenters largely disagreed with this proposal, asserting that 
the duration of a nonprofit organization's existence is not indicative 
of its level of responsiveness to local concerns. Others noted that the 
proposal could ``shut out'' suitable applicants or have ``unintended 
discriminatory consequences.'' A few commenters, however, generally 
embraced our proposal to maintain the two-year threshold but supported 
an award of an additional point to applicants that have a substantially 
longer established community presence (e.g., four years).
    102. We continue to believe that established local organizations 
are more likely to be aware of community needs and better able to ``hit 
the ground running'' upon commencement of broadcast operations. 
However, we are persuaded by commenters that organizations that have 
been established in the community for four years will not necessarily 
be more responsive to community needs or likely to establish a viable 
community radio station than those who have been present for two. We 
likewise agree that extending the length to four years may 
unnecessarily limit the pool of qualified organizations. Finally, 
parties supporting a ``bonus'' point for applicants with more 
established ties to the community failed to offer any demonstration of 
greater responsiveness supporting its adoption. Accordingly, we will 
retain the current two-year standard.
    103. We also solicited comment on whether we should modify Sec.  
73.872(b)(1) to extend the established community presence standard to 
20 miles in rural areas. We will adopt this modification as proposed. 
We note that the Commission extended the ``local'' standard in Sec.  
73.853(b) to 20 miles only for rural areas, based on a record 
indicating special challenges for rural stations. While many commenters 
support an extension of the established community presence standard to 
20 miles in all areas, not just rural areas, we are unconvinced that 
limiting our extension of the standard to rural areas only is unduly 
harsh or will create disadvantages to applicants with geographically 
dispersed board member residences, as some commenters suggest.
    104. Finally, we sought comment on whether to allow local 
organizations filing as consortia to receive one point under the 
established community presence criterion for each organization that 
qualifies for such a point. Most commenters rejected this proposal, 
noting that it would encourage gamesmanship and unethical behavior. 
Amherst Alliance and others state that they are ``deeply concerned that 
unethical LPFM applicants could manufacture `paper partners' in order 
to gain a dramatic advantage over their rivals,'' predicting that the 
paper partners would eventually either leave the scene or simply 
``rubber stamp'' the station operator's actions. Prometheus notes that 
the proposal could lead to discrimination, and potentially lead to a 
contest ``favoring the best connected,

[[Page 2093]]

best resourced groups'' in a given community. It further notes that 
non-consortium applicants competing with consortium applicants would 
almost always lose, even if the non-consortium applicants have received 
points that are arguably more ``directly related'' to a licensee's 
potential to serve its community. Finally, Common Frequency notes that 
the proposal would ``discourage diversity,'' effectively rewarding 
consortia organizations that hold similar viewpoints over single 
minority groups, such as foreign-language speakers and LGBT 
organizations.
    105. The few commenters supporting the proposal note that the 
consortia proposal could speed up the licensing process by lessening 
the Commission's burden of sorting out MX applications, and would help 
avoid involuntary time sharing by applicants whose proposed programming 
formats are incompatible and likely to confuse potential audiences. To 
help deter potential abuse, Cynthia Conti (``Conti'') suggests that the 
Commission require consortia applicants to submit with their 
applications proof of their intention to coexist at their future 
station, such as a ``joint plan of action'' that would include 
descriptions of the participating organizations, their individual and 
collective intentions for the station, and a proposed programming 
schedule.
    106. We are persuaded by commenters that the risk of licensing 
abuses and the potential for excluding unrepresented or 
underrepresented niche communities far outweigh potential service 
benefits or mere administrative efficiencies. Even if we were to 
require supporting documentation at the application stage, we would 
still have no reliable mechanism, given our limited administrative 
resources, to ultimately ensure that such consortia relationships are 
being meaningfully maintained throughout the license period. Thus, we 
do not adopt the consortia proposal.
c. Local Program Origination
    107. The Commission currently encourages LPFM stations to originate 
programming locally by awarding one point to each MX applicant that 
pledges to provide at least eight hours per day of locally originated 
programming. The rules define ``local origination'' as ``the production 
of programming, by the licensee, within ten miles of the coordinates of 
the proposed transmitting antenna.'' In adopting the local program 
origination criterion, the Commission reasoned that ``local program 
origination can advance the Commission's policy goal of addressing 
unmet needs for community-oriented radio broadcasting'' and concluded 
that ``an applicant's intent to provide locally-originated programming 
is a reasonable gauge of whether the LPFM station will function as an 
outlet for community self-expression.''
    108. In the Fourth FNPRM, we sought comment on whether to place 
greater emphasis on this selection factor by awarding two points for 
this criterion instead of the current one point. Alternatively, we 
sought comment on whether to impose a specific requirement that all new 
LPFM licensees provide locally-originated programming. We asked parties 
supporting such a requirement to explain why our prior finding that it 
was not necessary to impose specific requirements for locally 
originated programming no longer is valid and to identify problems or 
short-comings in the current LPFM licensing and service rules that such 
a change would remedy. We also asked parties supporting a locally-
originated programming requirement to address potential constitutional 
issues.
    109. Many commenters generally support the adoption of a locally 
originated programming obligation, but provide little or no analysis. 
Prometheus, which devotes the most significant discussion to this 
issue, would require every LPFM station to air at least 20 hours per 
week of locally originated programming, maintaining that such a 
requirement would more effectively ensure that a station would serve 
community needs, would be consistent with the Commission's policy goal 
of promoting localism, and would help remediate the ``drastic decline'' 
of local programming in the media. Prometheus asserts that today, 
approximately 20 percent of all licensed LPFM stations produce no local 
programming whatsoever, and states that, without such a requirement, a 
``significant number'' of LPFM stations will not offer any local 
programming. It further maintains that a local program origination 
requirement is constitutionally sound, pointing to the fact that 
``federal legislation, Commission decisions and Supreme Court precedent 
support the importance of local programming* * * and support Commission 
actions to adopt content-neutral broadcaster obligations that embrace 
substantial broadcaster discretion.'' In particular, Prometheus cites 
proceedings in which the Commission has regulated children's television 
and network programming.
    110. Several commenters do not agree with Prometheus' position, 
instead arguing that local program origination should remain a 
comparative criterion. REC fears that ``during tough times,'' stations 
may not have the financial resources to generate 20 hours weekly of 
local programming. Other commenters observe that local program 
origination is ``an easily manipulated requirement,'' is of ``limited 
value'' with no enforcement mechanism in place, and is not necessarily 
more responsive to community needs than non-local content. Conti states 
that, ``given the concern over the constitutionality of requiring 
programming, the addition of a locally-originated programming 
requirement could make LPFM rules vulnerable to complaints'' and does 
not ``think it is worth the risk considering that the criterion does 
not necessarily result in its stated goal.''
    111. After careful consideration of the record, we decline to 
impose a local program origination requirement. When we first created 
the LPFM service, we sought comment on whether to impose a local 
program origination requirement. We noted that listeners benefit from 
locally originated programming because it often reflects needs, 
interests, circumstances or perspectives that may be unique to a 
community. However, we also found that programming need not be locally 
originated to be responsive to local needs. Ultimately, we concluded 
that the nature of the LPFM service, combined with eligibility criteria 
and preferences, would ensure that LPFM licensees would provide locally 
originated programming or programming that would otherwise respond to 
local needs.
    112. Nothing in the record persuades us that these findings are no 
longer valid. The Commission has consistently maintained that non-local 
programming can serve community needs. While Prometheus points to a 
decline in the production of local programming as support for a local 
program origination requirement, it has failed to counter the argument 
that non-locally produced programming can serve community needs. 
Indeed, as commenters have noted, non-local programming can serve the 
unique needs of a community. For instance, a foreign language station 
may carry programming ``from home,'' other LPFM stations may broadcast 
public affairs programming from a neighboring county, and still other 
LPFM stations may broadcast religious programming.
    113. We also continue to believe that the nature of the service 
inherently ensures that LPFM stations will be responsive to community 
needs. The record supports this conclusion. Last year, in the INC 
Report, we noted several LPFM ``success'' stories in which LPFM 
stations were serving their

[[Page 2094]]

communities. Moreover, while Prometheus points to the fact that 20 
percent of all LPFM licensees currently produce no locally originated 
programming as evidence of a local media crisis, we believe this is a 
``glass half empty'' perspective, and are instead encouraged by the 
fact that 80 percent of all LPFM licensees are producing some local 
programming.
    114. Moreover, given the current economic climate, we believe a 
local program origination requirement could unnecessarily restrict LPFM 
licensees and jeopardize their financial health. Many, if not all, of 
these stations are run by volunteers and operate on a shoestring 
budget. LPFM licensees often have difficulty finding underwriters to 
support their stations. Prometheus argues that LPFM stations could 
arguably afford to produce locally originated programming. However, our 
own records show that, as a whole, the LPFM service remains financially 
vulnerable. This is evidenced by the fact that, of the 1,286 LPFM 
construction permits granted out of the last LPFM application filing 
window, only 903 LPFM stations ultimately became fully licensed. 
Moreover, 84 of these station licenses now have either expired or been 
cancelled, with nearly half of these expirations/cancellations 
occurring in the last two years. Of the remaining 819 licensed 
stations, 26 are currently silent. Given these alarming statistics, we 
believe it is essential to provide LPFM licensees with maximum 
flexibility to choose their own programming as a measure to ensure 
their continued viability.
    115. Finally, we recognize that Prometheus' support of a local 
program origination requirement is based on its belief that this option 
will most effectively further the Commission's goal of ensuring that 
the LPFM service will ``enhance locally focused community-oriented 
radio broadcasting.'' We agree that this goal is one of the bedrocks of 
the LPFM service. However, we find that there are better, alternative 
ways of furthering this goal without imposing further regulatory 
restrictions. Specifically, as discussed in more detail below, we 
believe we can better effectuate our localism goals by retaining a one-
point preference for local program origination and supplementing that 
preference with two additional selection criteria that award points to 
those applicants best positioned to locally originate programming. 
Accordingly, given the lack of a clear record basis to support its 
adoption, we decline to adopt a program origination requirement for 
LPFM stations. In short, while our selection criteria seek to promote 
local origination, we believe the benefits of imposing it as a 
requirement are far outweighed by the costs to a financially vulnerable 
fledgling sector of the industry.
    116. That said, we note that the comments filed in this proceeding 
reflect some misunderstanding of what constitutes ``locally originated 
programming'' under our previous orders, and we take this opportunity 
to provide additional guidance to current and prospective LPFM 
licensees. In the Second Order on Reconsideration in this docket, the 
Commission held that time-shifted, non-local, satellite-fed programming 
does not qualify toward the local origination pledge. Commenters 
indicate that some licensees believe that such programming is local 
provided that it is delivered in a way other than satellite. This 
inference is incorrect. Any non-local programming, whether delivered by 
satellite, over the Internet or other means, does not qualify as 
locally originated programming. Similarly, in the Third Report and 
Order, we clarified that repetitious automated programming does not 
meet the definition of local origination, and specifically stated that 
once a station has broadcast a program twice it can no longer count it 
as locally originated. According to commenters, some LPFM licensees 
believe that this is a daily restriction (i.e., cannot repeat 
programming more than twice in one day), while others believe that a 
program becomes ``new'' for local purposes if musical selections within 
a program are re-shuffled. Again, these inferences are incorrect. Once 
a station has broadcast a program twice it can never again be counted 
toward the local program origination pledge. Likewise, programs that 
have been ``tweaked'' or reorganized do not count toward the 
requirement if the underlying program has already been played twice. 
Generally speaking, locally originated programming--whether locally 
created content (e.g., live call-in shows or news programs), or locally 
curated content (e.g., a music program reflecting non-random song 
choices)--must involve a certain level of local production (i.e., 
creation of new content, in order for the programming to be considered 
locally originated). Each of the examples discussed above lacks this 
critical element. Our deliberations in this proceeding, including the 
clarification we provide today, have been consistent with this 
underlying principle. Accordingly, we will revise Sec.  73.872 of our 
rules, as well as the FCC Form 318, to incorporate these 
clarifications.
d. Main Studio
    117. REC, Common Frequency and Prometheus each suggest that we 
modify our rules to award one point to applicants that pledge to 
maintain a main studio with a staff presence. They assert that an 
organization that maintains a staffed main studio within the community 
served by its LPFM station will be better resourced to serve its 
community's needs. We agree. The local program origination selection 
criterion was created in part ``to encourage licensees to maintain 
production facilities and a meaningful staff presence within the 
community served by the station.'' The Commission has long held that 
the maintenance of a main studio is integral to a station's ability to 
serve community needs and produce programming that is responsive to 
those needs. As indicated by commenters, however, some licensees have 
chosen not to maintain a main studio and have instead originated 
programming using automated software, iPods, or CD players. While 
applicants claiming the local program origination point will retain the 
discretion to determine the origination point of their programming, we 
believe that a separate main studio criterion will better effectuate 
the intent underlying the creation of the local program origination 
pledge. Accordingly, we will award one point to any organization that 
pledges to maintain a meaningful staff presence (i.e., staffed by 
persons whose duties relate primarily to the station and not to non-
broadcast related activities of licensee) in a publicly accessible main 
studio location that has local program origination capability for at 
least 20 hours per week between 7 a.m. and 10 p.m. Staff may be paid or 
unpaid, and staffing may alternate among individuals. We will not 
require stations to have ``management'' staff present during main 
studio hours. The main studio should be located within 10 miles of the 
proposed site for the transmitting antenna for applicants in the top 50 
urban markets, and 20 miles for applicants outside the top 50 urban 
markets. We will require applicants to list the proposed main studio 
address in their applications, as well as the local telephone number to 
be maintained by the main studio at all times. Applicants failing to 
include this information will not receive credit for this point.
    118. In addition, we will revise Sec.  73.872 of our rules to 
provide that applicants that claim both the local program origination 
point and the main studio point will receive a total of three points. 
We find that the creation of this ``bonus'' point will more effectively

[[Page 2095]]

foster the production of focused community-oriented radio programming 
than would a general local program origination requirement, as it will 
reward those applicants best situated to further this goal in a 
meaningful way. We believe that an applicant that plans to originate 
programming from a main studio will be in a better position to provide 
programming reflecting community needs and interests than an applicant 
that will originate programming elsewhere. As the Commission has noted 
previously, the maintenance of a main studio in the station's community 
can help ``promote the use of local talent and ideas,'' can ``assure 
meaningful interaction between the station and the community,'' and can 
``increase the ability of the station to provide information of a local 
nature to the community of license.'' Indeed, both our main studio 
rules and the LPFM service were created for the same purpose: to ensure 
that stations would serve as an outlet for community self-expression. 
The Commission implicitly recognized this nexus when it created the 
local program origination criterion as a way to ``advance the 
Commission's policy goal of addressing unmet needs for community 
oriented radio broadcasting'' and as a means to encourage licensees to 
maintain production facilities. Moreover, these attributes, of 
themselves, reflect our core vision of and animating purpose for 
community radio: licensees that make their stations accessible to their 
local communities and that are committed to responding to unmet local 
programming needs.
    119. Many LPFM stations fulfill their local program origination 
commitments without the benefit of equipment and facilities that could 
be reasonably characterized as ``main studios.'' We also anticipate 
that some applicants in the upcoming LPFM window may conclude that 
maintaining and staffing a main studio is not feasible or necessary. On 
the other hand, the ``bonus'' point will provide a substantial 
incentive to applicants to assume these responsibilities 
notwithstanding the associated costs. It is also likely to permit 
resolution of mutual exclusivities based on Commission policy goals 
rather than complex tie-breaking procedures and also avoid voluntary 
and involuntary time sharing arrangements--outcomes that many 
commenters view negatively. Given commenters' general support of local 
program origination, our longstanding policy goal of ensuring that the 
LPFM service provides an outlet for local community voices, and the 
benefits that would result from implementation of a more robust point 
system that promotes this goal, we conclude that the record supports 
our award of a total of three points to those applicants that make both 
the local program origination and main studio pledges.
e. Tribal Nations
    120. In the Fourth FNPRM, we sought comment on whether to give a 
point to Tribal Nation Applicants when they propose new radio services 
that primarily would serve Tribal lands. We proposed to modify Sec.  
73.872(b) of our rules to include a Tribal Nations criterion. As with 
our proposed revisions to the LPFM eligibility requirements set forth 
at Sec.  73.853 of the rules, we proposed to rely on the definitions of 
the terms ``Tribal Applicant,'' ``Tribal Coverage,'' and ``Tribal 
Lands'' as they are currently defined in our rules for this comparative 
criterion.
    121. Commenters largely supported the creation of a Tribal Nation 
criterion. As we stated in the Fourth FNPRM, we believe that adding 
this criterion will further our efforts to increase ownership of radio 
stations by Tribal Nation Applicants and enable Tribal Nation 
Applicants to serve the unique needs and interests of their 
communities. We find unpersuasive the argument of NPM and NCAI that we 
should create a ``Tribal Priority,'' i.e., a dispositive preference, 
for LPFM Tribal Applicants as the rules now provide for in the full 
power NCE and commercial radio services. The expansion of Tribal 
stations unquestionably advances our section 307(b) policies. However, 
as we have explained, Tribes, which hold sovereign responsibilities for 
the welfare and improvement of their Members, are well-positioned to 
advance the localism and diversity goals of the LPFM service. Thus, it 
is reasonable to treat this factor as we have the other comparative 
factors that also advance these same LPFM goals. Finally, we find no 
basis in the record for elevating this criterion to a dispositive 
factor. Accordingly, we adopt our proposal to create a Tribal Nation 
point criterion.
    122. We will not, as originally proposed, rely on the definitions 
of ``Tribal Applicant'' or ``Tribal Coverage.'' For the reasons 
discussed above, we instead will define a ``Tribal Applicant'' as a 
Tribe or entity that is 51 percent or more owned and controlled by a 
Tribe. We will, however, require that any Tribal Nation Applicant 
claiming a point under the Tribal Nation criterion propose to locate 
the transmitting antenna for its proposed station on its Tribal lands. 
While NPM and NCAI oppose the imposition of such a requirement, arguing 
``it is easy to imagine circumstances in which the site which delivers 
the best, most affordable service to Tribal Lands is a developed 
antenna site located near, but not on, Tribal Lands,'' we are not 
persuaded that this requirement will hinder the provision of LPFM 
service on Tribal lands. Many Tribal Nations occupy unserved or 
underserved areas. We believe it is highly unlikely that there will be 
developed antenna sites located near most Tribal lands. However, in the 
event that there is a developed antenna site near, but not on, the 
Tribal lands of a Tribal Nation Applicant and the Tribal Nation 
Applicant can demonstrate that the use of such site will better promote 
our goals of increasing ownership of radio stations by Tribal Nations 
and enabling Tribal Nations to serve the unique needs and interests of 
their communities, we will entertain requests to waive the requirement 
that the transmitting antenna for the proposed LPFM station be located 
on the Tribal lands of the Tribal Nation Applicant. Finally, we note 
that we will not, as REC proposes, require a Tribal Nation Applicant to 
have no attributable interests in any other broadcast facility in order 
to qualify for a point under the Tribal Nation criterion. We believe 
our adoption of a new entrant criterion adequately addresses the 
concerns underlying REC's proposal. At bottom, through its proposal, 
REC seeks to ensure that diversity of ownership remains an important 
goal underlying the LPFM service. By adopting a new entrant criterion, 
which awards a point to applicants with no attributable interests in 
other broadcast facilities, we retain an emphasis on diversity of 
ownership without deemphasizing the importance of promoting the 
provision of service by Tribal Nation Applicants to Tribal lands and 
citizens of Tribal Nations.
f. New Entrants
    123. As discussed above, we are relaxing our ownership rules to 
allow LPFM licensees to own or apply for other broadcast interests. 
Among other things, we are allowing Tribal Nation Applicants to own up 
to two LPFM stations. In response to this revision, REC suggests that 
we only allow a Tribal Nation Applicant to claim a point under the 
Tribal Nations criterion if it is applying for its first LPFM station. 
We agree with REC's proposal to the extent that it suggests that 
multiple ownership should be a relevant factor in our analysis. Indeed, 
we raised this issue in the Fourth FNPRM. However, we

[[Page 2096]]

believe that a Tribal Nation Applicant should be eligible to receive a 
point under the Tribal Nation criterion regardless of whether or not it 
owns or has applied for other LPFM stations, and that any restriction 
of a Tribal Nation Applicant's eligibility to claim this point would 
run contrary to our commitment to increase the ownership of radio 
stations by Tribal Nations and to increase service to Tribal lands and 
citizens of Tribal Nations. However, we also believe that our selection 
process should encourage new entrants to broadcasting and foster a 
diverse range of community voices. We find that allocating a point to 
new entrants strikes the appropriate balance between these two 
competing goals. Likewise, adding a new entrants criterion addresses 
concerns raised by REC and Common Frequency regarding student-run 
stations. Accordingly, we will award one point to an applicant that can 
certify that it has no attributable interest in any other broadcast 
station.
g. Tiebreakers--Voluntary and Involuntary Time Sharing
    124. As noted above, in the event the point analysis results in a 
tie, the Commission releases a public notice announcing the tie and 
gives the tied applicants the opportunity to propose voluntary time 
sharing arrangements. Some or all parties in an MX group may enter into 
a timeshare agreement and aggregate their points. Where applicants 
cannot reach either a universal settlement or a voluntary time sharing 
arrangement, the Commission awards each tied and grantable applicant in 
the MX group an equal, successive and non-renewable license term of no 
less than one year, for a combined total eight-year term.
    125. Several commenters voiced dissatisfaction with both the 
voluntary and involuntary timesharing processes. REC asserts that we 
should eliminate point aggregation in voluntary time sharing because it 
``can lead to discriminatory behavior intended to silence [other] 
voices * * *.'' As an alternative, it suggests that applicants move 
straight to an involuntary time sharing process in cases where parties 
cannot agree on a voluntary time share (without aggregating points) or 
other settlement arrangement. Under REC's proposed process, an 
applicant would have the option to select an ``involuntary time share 
trigger point'' as a points criterion. In the event of a tie in an MX 
group, the involuntary time share point would be reviewed. At this 
point, one of the following scenarios could take place: (1) If all or 
no applicants claim the point, then they would all proceed to the time 
share process; or (2) if one or some applicants claim the trigger 
point, then those claiming the point would proceed to the time share 
process and remaining applications would be dismissed. Under REC's 
proposal, applicants reaching the time sharing process would either 
voluntarily agree on a time sharing arrangement, or be subject to a 
``last resort'' method that would allocate time to the top three 
applicants based on the date of the organization's establishment in the 
community (i.e., the applicant with the oldest community presence date 
would get the first opportunity to select its time share slot). REC 
notes that ``an effective time share group should have no more than 
three members.''
    126. Brown Student Radio also argues that allowing a ``partial 
settlement'' for the purposes of aggregating points invites the 
potential for abuse in the LPFM licensing process, where dominant 
applicants can effectively ``squeeze out'' fellow timeshare applicants 
by forcing them to accept minimal and suboptimal air time. It cites two 
examples from the last LPFM filing window in which the dominant 
applicant in a timesharing arrangement claimed virtually all of the 
shared air time and left only the required minimum of 10 hours a week 
(during suboptimal air time) for the other applicants. As such, it 
urges the Commission to allow parties to partially settle, but without 
the benefit of aggregating points, or otherwise revise the share-time 
rules to increase the minimum number of hours that must be awarded to 
each party to a settlement. Brown Broadcast Services notes that 
settlements involving less than all of the MX parties were explicitly 
allowed for in the full-power NCE filing window of 2007, when the 
action resulted in a grantable singleton application and no new mutual 
exclusivities were created. Common Frequency likewise supports the use 
of partial settlements involving technical changes, and additionally 
suggests that the Commission set up an online settlement process that 
will allow competing applicants to monitor for potential gamesmanship.
    127. While we are cognizant of the potential for gamesmanship in 
the voluntary timesharing process, we continue to believe that it is 
one of the most efficient and effective means of resolving mutual 
exclusivity among tied LPFM applicants. We are not persuaded that REC's 
proposal, which essentially eliminates voluntary timesharing as a tie 
breaker and replaces it with an involuntary time sharing regime, will 
better serve the public interest. We are doubtful that a group of 
unaffiliated applicants with different formats, budgets and levels of 
broadcast experience would work together to operate a station under a 
forced time sharing arrangement as successfully as a group of 
applicants that have voluntarily agreed to share time. We further 
believe that we must allow as much flexibility as possible for LPFM 
stations, especially those subject to time sharing arrangements, to 
allow them to build and maintain audiences. It is possible that some 
LPFM applicants may not desire to operate for more than a few hours a 
week, and in such cases, pooling resources with a timeshare applicant 
wishing to use more time would result in more diversity and more 
efficient use of spectrum. Accordingly, we will not revise our time 
sharing rules, and will continue to allow existing time share 
participants to reach voluntary arrangements that allow them to 
apportion the time as they see fit, subject to our requirements under 
Sec.  73.872(c) of the rules. While we will not set up an online 
process designed specifically to monitor settlements, as Common 
Frequency suggests, we note that the Commission has recently upgraded 
CDBS to permit the electronic filing of pleadings. This feature makes 
electronically filed pleadings promptly available to the general 
public, thereby increasing the transparency of the broadcast licensing 
processes. We will require a party submitting a timeshare agreement or 
other settlement agreement to file it through CDBS. As such, parties to 
an MX group should be able to sufficiently monitor competing 
applications for any developments within their respective group.
    128. We turn next to the suggestion that we entertain partial 
settlements. During the last LPFM filing window, we accepted partial 
``technical'' settlements (i.e., technical amendments that eliminated 
all conflicts between at least one application and all other 
applications in the same MX group). Thus, through a technical 
settlement, the Commission can grant one or more applications 
immediately, with the remaining applicants in that MX group considered 
separately under the LPFM comparative criteria. These partial 
settlements worked well during the 2007 NCE FM filing window, where we 
granted dozens of settlements that resulted in the disposal of hundreds 
of applications. We will continue to accept such settlements in the 
upcoming LPFM window, as they provide an additional means for 
applicants to resolve mutual exclusivities. To provide increased 
flexibility to this process, we will also, as suggested by Brown 
Broadcast

[[Page 2097]]

Services, temporarily waive our rules to allow MX applicants to move to 
any available channel during the prescribed settlement period. 
Amendments proposing new channels will be processed in accordance with 
established first-come, first-served licensing procedures.
    129. We agree with commenters that the system of serial license 
terms as a tie breaker of last resort has proven unworkable. Of the 
more than 1,200 construction permits granted in the LPFM service, not a 
single station currently holds an authorization for involuntary time 
sharing. While we have little historical data on involuntary 
timesharing outcomes from the last LPFM window, we presume this is the 
case either because (1) involuntary time share permittees did not want 
to invest in building out facilities that would be used by them for as 
little as one year, or (2) involuntary time share situations proved to 
be unworkable. To promote more efficient use of available LPFM 
frequencies, time shares under the final tie breaker will run 
concurrently and not serially. As suggested by CMAP and, to some extent 
REC, each party to the involuntary time share will be assigned an equal 
number of hours per week. We agree with REC that time share situations 
involving more than three parties may prove cumbersome. As REC 
proposes, we will limit involuntary time sharing arrangements under 
this final tie breaker to the three applicants that have been 
``established'' in their respective communities for the longest periods 
of time. Accordingly, each applicant will be required to provide, as 
part of its application, its date of establishment. If more than three 
applications are tied and grantable, we will dismiss the applications 
of all but the three longest ``established'' applicants. We will offer 
these applicants an opportunity to voluntarily reach a time sharing 
arrangement. If they are unable to do so, we will ask these applicants 
to simultaneously and confidentially submit their preferred time slots 
to the Commission. To ensure that there is no gamesmanship, we will 
require that these applicants certify that they have not colluded with 
any other applicants in the selection of time slots. We will use the 
information provided by the applicants to assign time slots to them. 
The staff will give preference to the applicant with the longest 
``established community presence.'' However, it will award time in 
units as small as four hours per day to accommodate competing demands 
for airtime to the maximum extent possible. We believe these procedures 
are a more sustainable and practical solution to involuntary time share 
arrangements than our previous measures, and will revise our rules and 
FCC Form 318 accordingly.
    130. Turning to the final issues raised in the Fourth FNPRM on 
share time arrangements, we asked whether we should open a ``mini-
window'' for the filing of applications for the abandoned air-time in 
such arrangements, rather than allowing remaining time share licensees 
to re-apportion the remaining air time. We did not receive any 
substantive comments voicing strong opinions on this proposal. We 
believe that opening such mini-windows would pose a great 
administrative burden on Commission staff. Such a burden would 
significantly outweigh the modest benefits that would be realized by 
filling such limited portions of a broadcast day with additional 
programming provided by a new timeshare licensee. Moreover, we believe 
that our adoption of the mandatory timesharing procedures discussed 
below will provide adequate opportunities to applicants that wish to 
apply for abandoned airtime. Accordingly, we do not adopt this 
proposal.
3. Operating Schedule
    131. Currently, the Commission requires LPFM stations to meet the 
same minimum operating hour requirements as full-service NCE FM 
stations. Like NCE FM stations, LPFM stations must operate at least 36 
hours per week, consisting of at least 5 hours of operation per day on 
at least 6 days of the week. However, while the Commission has mandated 
time sharing for NCE FM stations that meet the Commission's minimum 
operating requirements but do not operate 12 hours per day each day of 
the year, it has not done so for LPFM stations. We sought comment on 
whether we should extend such mandatory time sharing to the LPFM 
service. We noted that we believe that doing so could increase the 
number of broadcast voices and promote additional diversity in radio 
voices and program services.
    132. Only CRA commented on this proposal. It urges the Commission 
to ``reject this impulse,'' noting that LPFM applicants need as much 
flexibility as possible to ensure the viability of these small 
stations. We continue to believe that this measure will increase the 
number of broadcast voices and promote additional diversity in radio 
voices and program services in the most administratively efficient 
manner. However, we find merit to CRA's concerns and will adopt this 
proposal with safeguards designed to ensure that LPFM licensees have as 
much opportunity and flexibility as needed to ensure their success. 
Specifically, in order to provide sufficient ``ramp up'' time, we will 
not accept applications to share time with any LPFM licensee that has 
been licensed and operating its station for less than three years. 
Accordingly, we adopt this proposal, with the modification just 
described.
4. Classes of Service
    133. Currently, there are two classes of LPFM facilities: LP100 and 
LP10. To date, we have licensed only LP100 stations. In the Fourth 
FNPRM, we proposed to eliminate the LP10 class. We also sought comment 
on whether to create a new, higher power LP250 class. We specifically 
sought comment on how the creation of an LP250 class of LPFM facilities 
could be harmonized with the LCRA, which was ``presumably grounded on 
the current LPFM maximum power level.''
    134. A number of LPFM proponents urge us to retain the LP10 class 
of service, arguing that it is needed to ensure that LPFM opportunities 
are available in urban areas. Other commenters advocate eliminating the 
LP10 class. They point out that, from an engineering standpoint, the 
LP10 class is spectrally inefficient. We agree that the existing LP10 
class is an inefficient utilization of spectrum. LP10 stations offer 
more limited service but are more susceptible to interference than 
LP100 stations. Given the increasingly crowded nature of the FM band, 
we find it appropriate to take this into account. We also are concerned 
that the reach of LP10 stations would be too small for the stations to 
be economically viable. As the Media Bureau recently noted, even 
higher-powered LP100 stations have small service areas and are 
constrained in ``their ability to gain listeners'' and ``appeal to 
potential underwriters.'' Because we find that licensing LP10 stations 
would be an inefficient use of available spectrum and are concerned 
that LP10 stations would have an even higher failure rate than LP100 
stations, we eliminate the LP10 station class.
    135. Faced with the loss of the LP10 class, some commenters propose 
that we create other classes that would transmit at less than 100 
watts. Many in the LPFM community support a proposal to replace the 
LP10 class with an LP50 class, which would allow licensees to transmit 
at any ERP from 1 to 50 watts. In support, they argue that LP50 
stations would offer higher quality service than LP10 stations and may 
permit station locations closer to city centers. In contrast, NAB 
opposes creation of an LP50 class, arguing that such action would 
exceed the intent of Congress.

[[Page 2098]]

NAB also asserts that the proposal is not a logical outgrowth of the 
Fourth Further Notice and, therefore, is untimely. Finally, NAB asserts 
that, like the LP10 class of stations, an LP50 class would be 
``technically inefficient.''
    136. We will not create an LP50 class. In the Fourth FNPRM, we 
proposed to eliminate the LP10 class, retain the LP100 class and 
introduce a new LP250 class. We proposed these changes in order to 
address our concerns with the efficiency and viability of stations 
operating at powers at or below those authorized for LP100 stations. We 
agree with NAB that a decision to introduce a new LP50 class could not 
have been reasonably anticipated by all interested parties. Moreover, 
we believe that LP50 stations would suffer many of the same technical 
deficiencies as LP10 stations. Accordingly, we have decided not to 
adopt the proposed LP50 class.
    137. The LPFM community offers broad support for the creation of a 
new LP250 class. These commenters cite benefits including improved LPFM 
station viability through better access to underwriting, more 
consistent signal coverage throughout the community served by the LPFM 
station, and the ability to serve areas of low population density and/
or more distant communities. Several commenters, however, strenuously 
oppose the creation of an LP250 class. These commenters do not dispute 
the benefits cited by those supportive of an LP250 class. Instead, they 
argue that an LP250 class would pose a greater interference risk to 
full power stations, is unnecessary given the availability of 250 watt 
Class A licenses, would be a departure from the local character of the 
LPFM service, and goes beyond the intent of Congress in enacting the 
LCRA.
    138. At this time, we will not adopt our proposal to create an 
LP250 class. Given the disagreement among commenters about, among other 
things, LP250 station location restrictions and technical parameters, 
we believe the issue of increasing the maximum facilities for LPFM 
stations requires further study. We note, however, that the LCRA does 
not contain any language limiting the power levels at which LPFM 
stations may be licensed. We also find unpersuasive NAB's and NPR's 
reliance on certain statements in the legislative history. These 
statements merely describe the rules governing LPFM service at the time 
Congress was considering the LCRA. Since we have decided not to adopt 
the proposal, we need not definitively resolve the question.
5. Removal of I.F. Channel Minimum Distance Separation Requirements
    139. In the Fourth FNPRM, we noted that LPFM stations are currently 
required to protect full-service stations on I.F. channels while 
translator stations operating with less than 100 watts are not. To 
address this disparity, we proposed to remove I.F. protection 
requirements for LPFM stations operating with less than 100 watts. We 
noted that we believe the same reasoning that the Commission applied in 
exempting FM translator stations operating with less than 100 watts ERP 
from I.F. protection requirements would apply for LPFM stations 
operating at less than 100 watts ERP. These stations too are the 
equivalent of Class D FM stations, which are not subject to I.F. 
protection requirements. We further noted that FM allotments would 
continue to be protected on the I.F. channels based on existing 
international agreements. We sought comment on this proposal.
    140. Commenters generally support removal of the I.F. protection 
requirements applicable to LPFM stations. Some ground their support in 
the need to put LPFM stations and translators on an ``equal footing'' 
while others assert that improvements in receiver technology render 
I.F. protection requirements unnecessary. NPR is the lone commenter 
urging retention of I.F. protection requirements. NPR infers an intent 
to retain the I.F. protections from the fact that Congress specifically 
addressed minimum distance separations but did not eliminate those 
related to I.F. We find NPR's argument unpersuasive. In the absence of 
explicit direction in the LCRA regarding I.F. protection requirements, 
and in light of the fact that Congress explicitly required retention of 
the co-channel and first- and second-adjacent channel spacing 
requirements, we believe that it is reasonable to read the statute not 
to require the Commission to retain I.F. protection requirements. Had 
Congress wished to ensure that the I.F. protections remained in place, 
we believe that it would have done so in the text of the LCRA.
    141. NPR also requests that the Commission study the impact of its 
decision ``roughly 20 years ago'' to exempt from I.F. protection 
requirements FM translator stations operating with less than 100 watts 
ERP. NPR urges us to complete this study prior to acting on our 
proposal. Common Frequency asserts, however, that the Commission would 
have investigated I.F. interference by now if it had proved a problem. 
Common Frequency is correct. We have not received any recent complaints 
regarding I.F. interference from FM translators exempted from the I.F. 
protection requirements. Indeed, it is telling that NPR has not cited a 
single instance of such interference. Therefore, and in light of the 
fact that a receiver does not distinguish between the signal of an LPFM 
station or an FM translator, we find that the proposed change will not 
result in significant I.F. interference.
    142. Accordingly, we adopt this proposal. We find this change 
necessary to ensure parity between LPFM stations and FM translator 
stations, which, for I.F. interference purposes, are indistinguishable. 
As requested by commenters, we will eliminate these requirements for 
LPFM stations operating at or below 100 watts ERP. We had originally 
proposed to exempt only LPFM stations operating at less than 100 watts 
ERP from the I.F. protection requirements. However, commenters pointed 
out that, if we adopted the proposal set forth in the Fourth FNPRM, 
LP100 stations would remain subject to I.F. protection requirements. 
These commenters argue that there is little difference between LPFM 
stations operating at 99 versus 100 watts ERP and urge us to eliminate 
the I.F. protection requirements for LPFM stations operating at 100 
watts or less ERP. We agree. Moreover, since going forward we will 
license LPFM stations to operate at ERPs ranging from 50 watts to 100 
watts, we find that eliminating the I.F. protection requirements for 
stations operating at 100 watts or less ERP is the more sensible 
choice.

E. Window Filing Process

    143. Several commenters voiced concern about the timing and 
mechanics of the upcoming LPFM application filing window. Several LPFM 
advocates ask that ``adequate time'' be given for applicants to prepare 
their applications after adoption of the revised rules. Prometheus 
urges the Commission to give six to nine months lead time up to the 
filing window, maintaining that applicants need time to raise funds, 
hire a consulting engineer and assess spectrum availability. REC, on 
the other hand, opposes any ``artificial'' delay, stating that any 
delay between the issuance of final rules and the window should occur 
naturally. To some extent, this debate is moot as there is a 
substantial cushion of time organically built into the process for the 
final rules we adopt or modify today, as well as any related form 
changes. Moreover, to maximize LPFM filing opportunities it is critical 
for the Media Bureau to

[[Page 2099]]

complete substantially all of its processing of the pending FM 
translator applications prior to the opening of the LPFM window. Thus, 
the window will open approximately nine months from the effective date 
of the Fifth Order on Reconsideration. To help potential LPFM 
applicants prepare for the upcoming window, we announce a target date 
of October 15, 2013. However, we delegate authority to the Media Bureau 
to adjust this date in the event that future developments affect window 
timing. In sum, there will be ample time for all LPFM applicants to 
familiarize themselves with the rules and plan accordingly before the 
filing window opens.
    144. Commenters also suggest multiple windows in order to ease the 
demand for affordable engineering assistance immediately before the 
opening of the window. Prometheus further suggests that we bifurcate 
the application into short and long forms, with second-adjacent waiver 
showings submitted in the long form. Prometheus argues that multiple 
filing windows and a short form/long form application process would 
help address the scarcity issue of qualified, affordable consulting 
engineers and allow more interested parties to file. Common Frequency 
echoes these concerns, reporting that in the 2007 NCE window ``[s]ome 
applicants could not file because they could not find engineers, and 
others were priced-out from applying because an engineer and lawyer 
could run as much as $5000.'' We recognize these concerns. Thus, in 
order to ease upfront technical burdens and engineering costs, we will 
accept a threshold second-adjacent waiver technical showing when an 
applicant seeks to make a ``no interference'' showing based on lack of 
population in areas where interference is predicted to occur. Under 
this procedure an applicant would use ``worst-case'' assumptions about 
the area of potential interference in combination with a USGS map or a 
Google map to demonstrate ``lack of population'' within this area. 
Applicants should be able to complete this simple showing without the 
use of a consulting engineer. In light of our adoption of this 
threshold showing, we see no need to bifurcate our application process 
into short and long forms or to open multiple filing windows. We 
believe that this alternative showing will ease some of the technical 
and financial burdens of application filing and will help ensure that 
new entrants in underserved communities are not ``priced out'' of the 
opportunity to file an LPFM application in the upcoming window. We 
further believe that these measures will help alleviate any obstacles 
applicants face due to an ``engineering shortage,'' as those applicants 
that choose to make the threshold showing will no longer need to hire a 
consulting engineer.

II. Procedural Matters

A. Final Regulatory Flexibility Analysis

    145. As required by the Regulatory Flexibility Act (``RFA''), an 
Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in 
the Fourth FNPRM in MM Docket No. 99-25. The Commission sought written 
public comment on the proposals in the Fourth FNPRM, including comment 
on the IRFA. We received no comments specifically directed toward the 
IRFA. This Final Regulatory Flexibility Analysis (``FRFA'') conforms to 
the RFA.
    146. Need For, and Objectives of, the Proposed Rules. This 
rulemaking proceeding was initiated to seek comment on how to implement 
certain provisions of the LCRA. The Sixth R&O amends certain technical 
rules to implement the LCRA. The Sixth R&O adopts the waiver standard 
for second-adjacent channel spacing waivers set forth in section 
3(b)(2)(A) of the LCRA. It specifies the manner in which a waiver 
applicant can satisfy this standard and the manner in which the 
Commission will handle complaints of interference caused by LPFM 
stations operating pursuant to second-adjacent channel waivers. As 
required by section 7 of the LCRA, the Sixth R&O modifies the regimes 
applicable if an LPFM station causes third-adjacent channel 
interference. As specified by the LCRA, the Sixth R&O applies the 
protection and interference remediation requirements applicable to FM 
translator stations to those LPFM stations that would have been short-
spaced under the third-adjacent channel spacing requirements eliminated 
in the Fifth R&O in MM Docket No. 99-25. The Sixth R&O states that the 
Commission will consider directional antennas, lower ERPs and/or 
differing polarizations to be suitable techniques for eliminating 
third-adjacent channel interference. The Sixth R&O applies the more 
lenient interference protection obligations currently applicable to 
LPFM stations that would have been fully-spaced under the third-
adjacent channel spacing requirements eliminated in the Fifth R&O 
(``fully-spaced LPFM stations''). The Sixth R&O addresses the timing, 
frequency and content of the periodic broadcast announcements that 
newly constructed fully-spaced LPFM stations must make pursuant to 
section 7(2) of the LCRA. It revises the rules to treat as a ``minor 
change'' a proposal to move a fully-spaced LPFM station's transmitter 
outside its current service contour in order to co-locate or operate 
from a site close to a third-adjacent channel station and remediate 
interference to that station. Finally, the Sixth R&O implements section 
6 of the LCRA, modifying the Commission's rules to address the 
potential for predicted interference to FM translator input signals 
from LPFM stations operating on third-adjacent channels. It adopts a 
basic threshold test designed to identify applications that are 
predicted to cause interference to FM translator input signals on 
third-adjacent channels and states that the Commission will dismiss any 
application that does not satisfy this threshold test as unacceptable 
for filing.
    147. The Sixth R&O also makes a number of other changes to the 
Commission's rules to better promote localism and diversity, which are 
at the very heart of the LPFM service. It clarifies that the localism 
requirement set forth in Sec.  73.853(b) of the rules applies not just 
to LPFM applicants but also to LPFM permittees and licensees. The Sixth 
R&O revises the rules to permit cross-ownership of an LPFM station and 
up to two FM translator stations but, at the same time, establishes a 
number of restrictions on such cross-ownership in order to ensure that 
the LPFM service retains its extremely local focus.
    148. In the interests of advancing the Commission's efforts to 
increase ownership of radio stations by federally recognized Tribal 
Nations or entities owned or controlled by Tribal Nations, the Sixth 
R&O amends the Commission's rules to explicitly provide for the 
licensing of LPFM stations to Tribal Nation Applicants, and to permit 
Tribal Nation Applicants to own or hold attributable interests in up to 
two LPFM stations.
    149. In addition, the Order modifies the point system that the 
Commission uses to select among MX LPFM applications. Specifically, the 
Sixth R&O eliminates the proposed operating hours criterion, revises 
the established community presence criterion, affirms the local program 
origination criterion, and adds new criteria related to maintenance and 
staffing of a main studio, offering by Tribal Nation Applicants of new 
radio services that primarily serve Tribal lands, and new entry into 
radio broadcasting. Given these changes, the Sixth R&O also revises the 
existing exception to the cross-ownership rule for student-run

[[Page 2100]]

stations. The Sixth R&O announces the Commission will continue to 
entertain partial ``technical'' settlements in the LPFM context and 
modifies the way in which involuntary time sharing works, shifting from 
sequential to concurrent license terms and limiting involuntary time 
sharing arrangements to three applicants. It adopts mandatory time 
sharing, which currently applies to full-service noncommercial 
educational translator stations but not LPFM stations.
    150. Finally, the Sixth R&O eliminates the LP10 class of LPFM 
facilities and removes all of the I.F protection requirements 
applicable to LPFM stations except those established by international 
agreements.
    151. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. None.
    152. Description and Estimate of the Number of Small Entities to 
Which 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 rules. 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 SBA.
    153. Radio Broadcasting. The policies apply to radio broadcast 
licensees, and potential licensees of radio service. The SBA defines a 
radio broadcast station as a small business if such station has no more 
than $7 million in annual receipts. Business concerns included in this 
industry are those primarily engaged in broadcasting aural programs by 
radio to the public. According to Commission staff review of the BIA 
Publications, Inc. Master Access Radio Analyzer Database as of 
September 15, 2011, about 10,960 (97 percent) of 11,300 commercial 
radio stations have revenues of $7 million or less and thus qualify as 
small entities under the SBA definition. We note, however, that, in 
assessing whether a business concern qualifies as small under the above 
definition, business (control) affiliations must be included. Our 
estimate, therefore, likely overstates the number of small entities 
that might be affected by our action, because the revenue figure on 
which it is based does not include or aggregate revenues from 
affiliated companies.
    154. In addition, an element of the definition of ``small 
business'' is that the entity not be dominant in its field of 
operation. We are unable at this time to define or quantify the 
criteria that would establish whether a specific radio station is 
dominant in its field of operation. Accordingly, the estimate of small 
businesses to which the rules apply does not exclude any radio station 
from the definition of a small business on this basis and therefore may 
be over-inclusive to that extent. Also as noted, an additional element 
of the definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.
    155. FM translator stations and low power FM stations. The policies 
adopted in the Sixth R&O affect licensees of FM translator and booster 
stations and low power FM (LPFM) stations, as well as potential 
licensees in these radio services. The same SBA definition that applies 
to radio broadcast licensees would apply to these stations. The SBA 
defines a radio broadcast station as a small business if such station 
has no more than $7 million in annual receipts. Currently, there are 
approximately 6,105 licensed FM translator stations and 824 licensed 
LPFM stations. In addition, there are approximately 646 applicants with 
pending applications filed in the 2003 translator filing window. Given 
the nature of these services, we will presume that all of these 
licensees and applicants qualify as small entities under the SBA 
definition.
    156. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements. The Sixth R&O modifies existing requirements 
and imposes additional paperwork burdens. The Sixth R&O modifies the 
Commission's policy regarding waivers (``second-adjacent waivers'') of 
the second-adjacent channel minimum distance separations set forth in 
Sec.  73.807 of the rules. As required by the LCRA, the Sixth R&O 
requires an applicant seeking a second-adjacent waiver to submit a 
showing that demonstrates that its proposed operations will not result 
in interference to any authorized radio service. The Sixth R&O 
specifies that a waiver applicant can make this showing in the same 
manner as an FM translator applicant (i.e., by showing that no 
interference will occur due to lack of population and using undesired/
desired signal strength ratio methodology to narrowly define areas of 
potential interference). The Sixth R&O also permits certain applicants 
to propose to use directional antennas and/or differing antenna 
polarizations to make the required showing. The Sixth R&O mandates that 
complaints about interference from stations operating pursuant to 
second-adjacent waivers include certain information. For instance, a 
complaint must include the listener's name and address and the location 
at which the interference occurs. The Sixth R&O specifies that the 
Commission will treat as a ``minor change'' a proposal to move the 
transmitter site of an LPFM station operating pursuant to a second-
adjacent waiver outside its current service contour in order to co-
locate or operate from a site close to a second-adjacent channel 
station and remediate interference to that station.
    157. The Sixth R&O modifies the regime governing complaints about 
and remediation of third-adjacent channel interference caused by LPFM 
stations. As required by the LCRA, the Sixth R&O modifies the 
requirements applicable to complaints about third-adjacent channel 
interference caused by stations that do not satisfy the third-adjacent 
minimum distance separations set forth in Sec.  73.807 of the rules. It 
also permits such stations to propose to use directional antennas and/
or differing antenna polarizations in order to eliminate third-adjacent 
channel interference caused by their operations. The Sixth R&O modifies 
the requirements applicable to complaints about third-adjacent 
interference caused by LPFM stations that satisfy the third-adjacent 
minimum distance separations set forth in Sec.  73.807 of the rules and 
strongly encourages that such complaints be filed with the Media 
Bureau's Audio Division. As in the second-adjacent channel context, the 
Sixth R&O explains that the Commission will treat proposals from LPFM 
stations seeking to remediate third-adjacent channel by co-locating or 
operating from a site close to a third-adjacent channel station as 
``minor changes.'' As required by the LCRA, the Sixth R&O requires 
newly constructed LPFM stations that satisfy the third-adjacent minimum 
distance separations set forth in Sec.  73.807 of the rules to make 
periodic announcements. It also adopts requirements related to the 
timing and content of these announcements.
    158. The Sixth R&O adopts certain New Jersey-specific provisions 
regarding complaints of interference. The Sixth R&O also adopts a 
threshold test to determine whether an LPFM applicant adequately 
protects translator input signals. In order to ensure that an LPFM 
applicant protects the correct input signal for an FM translator, the

[[Page 2101]]

Sixth R&O recommends that FM translator licensees update the Commission 
if they have changed their primary station since they last filed a 
renewal application. If an applicant proposes to locate its transmitter 
within the ``potential interference area'' for another station, the 
applicant must demonstrate that it will not cause interference by 
making one of three showings. The Sixth R&O provides that an applicant 
can make these same showings in the context of a petition for 
reconsideration and reinstatement nunc pro tunc.
    159. The Sixth R&O modifies the rules governing eligibility to hold 
licenses for LPFM stations. Specifically, it alters the eligibility 
rule to authorize issuance of an LPFM license to a Tribal Nation 
Applicant. The Sixth R&O also revises the localism requirement to 
clarify that an LPFM applicant must certify that, at the time of 
application, it is local and must pledge to remain local at all times 
thereafter. In addition, the Sixth R&O revises the definition of 
``local'' to specify that a Tribal Nation Applicant is considered 
``local'' throughout its Tribal lands.
    160. The Sixth R&O revises the rules to permit multiple ownership 
of LPFM stations by Tribal Nation Applicants and cross-ownership of 
LPFM and FM translator stations. As a result, the Commission is 
revising the ownership certifications set forth in FCC Form 318.
    161. The Sixth R&O makes a number of changes to the point system 
used to select among MX applications for LPFM stations. It extends the 
established community presence standard from 10 to 20 miles in rural 
areas. The Commission is revising FCC Form 318 to reflect this change. 
The Sixth R&O also adopts four new points criteria. Specifically, it 
adopts a new main studio criterion and requires an applicant seeking to 
qualify for a point under this criterion to submit certain information 
(i.e., an address and telephone number for its proposed main studio) on 
FCC Form 318. In addition, the Sixth R&O specifies that the Commission 
will award a point to an LPFM applicant that makes both the local 
program origination and main studio pledges and adopts Tribal Nations 
and new entrant criteria. The Commission is revising FCC Form 318 to 
reflect these new criteria.
    162. The Sixth R&O makes a number of changes related to time 
sharing. It adopts a requirement that parties submit voluntary time 
sharing agreements via the Commission's Consolidated Database System. 
It also revises the Commission's involuntary time sharing policy, 
shifting from sequential to concurrent license terms and limiting 
involuntary time sharing arrangements to three applicants. As a result 
of these changes, an LPFM applicant must submit, on FCC Form 318, the 
date on which it qualified as having an ``established community 
presence'' and may be required to submit information to the Commission 
regarding the time slots it prefers. Finally, the Sixth R&O adopts a 
mandatory time sharing policy similar to that applicable to full-
service NCE FM stations. Applicants seeking to time-share pursuant to 
this policy must submit applications on FCC Form 318 and include an 
exhibit related to mandatory time sharing.
    163. 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.
    164. Consideration of alternative methods to reduce the impact on 
small entities is unnecessary because the passage of the LCRA required 
the Commission to make changes to a number of its technical rules. 
Moreover, the changes made to the Commission's non-technical rules 
benefit small businesses and existing LPFM licensees, offering them 
greater flexibility and additional licensing opportunities.
    165. The LPFM service has created and will continue to create 
significant opportunities for small businesses, allowing them to 
develop LPFM service in their communities. To the extent that any 
modified or new requirements set forth in the Sixth R&O impose any 
burdens on small entities, we believe that the resulting impact on 
small entities would be favorable because the rules would expand 
opportunities for LPFM applicants, permittees, and licensees to 
commence broadcasting and stay on the air. Among other things, the 
Sixth R&O allows limited cross-ownership of LPFM and FM translator 
stations. This is prohibited under the current rules. Likewise, the 
Sixth R&O permits Tribal Nation Applicants to own or hold attributable 
interests in up to two LPFM stations to ensure adequate coverage of 
Tribal lands. Today, multiple ownership of LPFM stations is prohibited. 
The Sixth R&O also modifies the point system that the Commission uses 
to select among MX LPFM applications to award a point to an applicant 
that can certify that it has no attributable interest in any other 
broadcast station. Finally, the Sixth R&O extends mandatory time 
sharing to the LPFM service. If the licensee of an LPFM station does 
not operate the station 12 hours per day each day of the year, another 
organization may file an application to share-time with that licensee.
    166. Report to Congress. The Commission will send a copy of the 
Sixth R&O, including this FRFA, in a report to be sent to Congress 
pursuant to the SBREFA. In addition, the Commission will send a copy of 
the Sixth R&O, including the FRFA, to the Chief Counsel for Advocacy of 
the SBA. A copy of the Sixth R&O and the FRFA (or summaries thereof) 
will also be published in the Federal Register.

B. Paperwork Reduction Act

    167. The Sixth R&O contains new information collection requirements 
subject to the Paperwork Reduction Act of 1995 (``PRA''). The 
requirements will be submitted to the Office of Management and Budget 
for review under section 3507(d) of the PRA. The Commission will 
publish a separate notice in the Federal Register inviting comments on 
the new information collection requirements adopted in this document. 
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 describe impacts that might affect 
small businesses, which includes most businesses with fewer than 25 
employees, in the FRFA in Appendix B, infra.

C. Congressional Review Act

    168. The Commission will send a copy of this Sixth R&O 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).

III. Ordering Clauses

    169. It is further ordered that pursuant to the authority contained 
in sections 1, 4(i), 4(j), 303, 307, 309(j), and 316 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j),

[[Page 2102]]

303, 307, 309(j), and 316, and the Local Community Radio Act of 2010, 
Public Law 111-371, 124 Stat. 4072 (2011), this Sixth Report and Order 
is hereby adopted and Part 73 of the Commission's rules is amended as 
set forth in Appendix C, effective 30 days after publication in the 
Federal Register, except pursuant to paragraph 140 below.
    170. It is further ordered that the rules adopted herein that 
contain new or modified information collection requirements that 
require approval by the Office of Budget and Management under the 
Paperwork Reduction Act will become effective after the Commission 
publishes a notice in the Federal Register announcing such approval and 
the relevant effective date.
    171. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Sixth Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects in 47 CFR Part 73

    Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
    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 for part 73 continues to read as follows:

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


0
2. Section 73.807 is revised to read as follows:


Sec.  73.807  Minimum distance separation between stations.

    Minimum separation requirements for LPFM stations are listed in the 
following paragraphs. Except as noted below, an LPFM station will not 
be authorized unless the co-channel, and first- and second-adjacent 
channel separations are met. An LPFM station need not satisfy the 
third-adjacent channel separations listed in paragraphs (a) through (c) 
of this section in order to be authorized. The third-adjacent channel 
separations are included for use in determining for purposes of Sec.  
73.810 which third-adjacent channel interference regime applies to an 
LPFM station. Minimum distances for co-channel and first-adjacent 
channel are separated into two columns. The left-hand column lists the 
required minimum separation to protect other stations and the right-
hand column lists (for informational purposes only) the minimum 
distance necessary for the LPFM station to receive no interference from 
other stations assumed to be operating at the maximum permitted 
facilities for the station class. For second-adjacent channel, the 
required minimum distance separation is sufficient to avoid 
interference received from other stations.
    (a)(1) An LPFM station will not be authorized initially unless the 
minimum distance separations in the following table are met with 
respect to authorized FM stations, applications for new and existing FM 
stations filed prior to the release of the public notice announcing an 
LPFM window period, authorized LPFM stations, LPFM station applications 
that were timely-filed within a previous window, and vacant FM 
allotments. LPFM modification applications must either meet the 
distance separations in the following table or, if short-spaced, not 
lessen the spacing to subsequently authorized stations.

----------------------------------------------------------------------------------------------------------------
                                   Co-channel minimum separation  First-adjacent channel minimum    Second and
                                               (km)                      separation  (km)         third adjacent
                                 ----------------------------------------------------------------     channel
                                                      For no                          For no          minimum
 Station class protected by LPFM                   interference                    interference     separation
                                     Required      received from     Required      received from       (km)
                                                    max. class                      max. class   ---------------
                                                     facility                        facility        Required
----------------------------------------------------------------------------------------------------------------
LPFM............................              24              24              14              14            None
D...............................              24              24              13              13               6
A...............................              67              92              56              56              29
B1..............................              87             119              74              74              46
B...............................             112             143              97              97              67
C3..............................              78             119              67              67              40
C2..............................              91             143              80              84              53
C1..............................             111             178             100             111              73
C0..............................             122             193             111             130              84
C...............................             130             203             120             142              93
----------------------------------------------------------------------------------------------------------------

     (2) LPFM stations must satisfy the second-adjacent channel minimum 
distance separation requirements of paragraph (a)(1) of this section 
with respect to any third-adjacent channel FM station that, as of 
September 20, 2000, broadcasts a radio reading service via a subcarrier 
frequency.
    (b) In addition to meeting or exceeding the minimum separations in 
paragraph (a) of this section, new LPFM stations will not be autorized 
in Puerto Rico or the Virgin Islands unless the minimum distance 
separations in the following tables are met with respect to authorized 
or proposed FM stations:

[[Page 2103]]



----------------------------------------------------------------------------------------------------------------
                                   Co-channel minimum separation  First-adjacent channel minimum
                                               (km)                      separation  (km)           Second and
                                 ---------------------------------------------------------------- third adjacent
                                                      For no                          For no          channel
 Station class protected by LPFM                   interference                    interference       minimum
                                     Required      received from     Required      received from    separation
                                                    max. class                      max. class    (km)--required
                                                     facility                        facility
----------------------------------------------------------------------------------------------------------------
A...............................              80             111              70              70              42
B1..............................              95             128              82              82              53
B...............................             138             179             123             123              92
----------------------------------------------------------------------------------------------------------------

    Note to paragraphs (a) and (b): Minimum distance separations 
towards ``grandfathered'' superpowered Reserved Band stations are as 
specified. Full service FM stations operating within the reserved band 
(Channels 201-220) with facilities in excess of those permitted in 
Sec.  73.211(b)(1) or (b)(3) shall be protected by LPFM stations in 
accordance with the minimum distance separations for the nearest class 
as determined under Sec.  73.211. For example, a Class B1 station 
operating with facilities that result in a 60 dBu contour that exceeds 
39 kilometers but is less than 52 kilometers would be protected by the 
Class B minimum distance separations. Class D stations with 60 dBu 
contours that exceed 5 kilometers will be protected by the Class A 
minimum distance separations. Class B stations with 60 dBu contours 
that exceed 52 kilometers will be protected as Class C1 or Class C 
stations depending upon the distance to the 60 dBu contour. No stations 
will be protected beyond Class C separations.
    (c) In addition to meeting the separations specified in paragraphs 
(a) and (b), LPFM applications must meet the minimum separation 
requirements in the following table with respect to authorized FM 
translator stations, cutoff FM translator applications, and FM 
translator applications filed prior to the release of the Public Notice 
announcing the LPFM window period.

----------------------------------------------------------------------------------------------------------------
                                   Co-channel minimum separation  First-adjacent channel minimum    Second and
                                               (km)                       separation (km)         third adjacent
Distance to FM translator 60 dBu ----------------------------------------------------------------     channel
             contour                                  For no                          For no          minimum
                                     Required      interference      Required      interference     separation
                                                     received                        received     (km)--required
----------------------------------------------------------------------------------------------------------------
13.3 km or greater..............              39              67              28              35              21
Greater than 7.3 km, but less                 32              51              21              26              14
 than 13.3 km...................
7.3 km or less..................              26              30              15              16               8
----------------------------------------------------------------------------------------------------------------

     (d) Existing LPFM stations which do not meet the separations in 
paragraphs (a) through (c) of this section may be relocated provided 
that the separation to any short-spaced station is not reduced.
    (e)(1) Waiver of the second-adjacent channel separations. The 
Commission will entertain requests to waive the second-adjacent channel 
separations in paragraphs (a) through (c) of this section on a case-by-
case basis. In each case, the LPFM station must establish, using 
methods of predicting interference taking into account all relevant 
factors, including terrain-sensitive propagation models, that its 
proposed operations will not result in interference to any authorized 
radio service. The LPFM station may do so by demonstrating that no 
actual interference will occur due to intervening terrain or lack of 
population. The LPFM station may use an undesired/desired signal 
strength ratio methodology to define areas of potential interference.
    (2) Interference. (i) Upon receipt of a complaint of interference 
from an LPFM station operating pursuant to a waiver granted under 
paragraph (e)(1) of this section, the Commission shall notify the 
identified LPFM station by telephone or other electronic communication 
within one business day.
    (ii) An LPFM station that receives a waiver under paragraph (e)(1) 
of this section shall suspend operation immediately upon notification 
by the Commission that it is causing interference to the reception of 
an existing or modified full-service FM station without regard to the 
location of the station receiving interference. The LPFM station shall 
not resume operation until such interference has been eliminated or it 
can demonstrate to the Commission that the interference was not due to 
emissions from the LPFM station. Short test transmissions may be made 
during the period of suspended operation to check the efficacy of 
remedial measures.
    (f) Commercial and noncommercial educational stations authorized 
under subparts B and C of this part, as well as new or modified 
commercial FM allotments, are not required to adhere to the separations 
specified in this rule section, even where new or increased 
interference would be created.
    (g) International considerations within the border zones. (1) 
Within 320 km of the Canadian border, LPFM stations must meet the 
following minimum separations with respect to any Canadian stations:

----------------------------------------------------------------------------------------------------------------
                                                                      Second-                      Intermediate
     Canadian station class         Co-channel    First-adjacent     adjacent     Third-adjacent  frequency (IF)
                                       (km)        channel  (km)   channel  (km)   channel  (km)   channel  (km)
----------------------------------------------------------------------------------------------------------------
A1 & Low Power..................              45              30              21              20               4
A...............................              66              50              41              40               7

[[Page 2104]]

 
B1..............................              78              62              53              52               9
B...............................              92              76              68              66              12
C1..............................             113              98              89              88              19
C...............................             124             108              99              98              28
----------------------------------------------------------------------------------------------------------------

     (2) Within 320 km of the Mexican border, LPFM stations must meet 
the following separations with respect to any Mexican stations:

----------------------------------------------------------------------------------------------------------------
                                                                                    Second- and    Intermediate
              Mexican station class                 Co-channel    First-adjacent  third-adjacent  frequency (IF)
                                                       (km)        channel  (km)   channel  (km)   channel  (km)
----------------------------------------------------------------------------------------------------------------
Low Power.......................................              27              17               9               3
A...............................................              43              32              25               5
AA..............................................              47              36              29               6
B1..............................................              67              54              45               8
B...............................................              91              76              66              11
C1..............................................              91              80              73              19
C...............................................             110             100              92              27
----------------------------------------------------------------------------------------------------------------

     (3) The Commission will notify the International 
Telecommunications Union (ITU) of any LPFM authorizations in the US 
Virgin Islands. Any authorization issued for a US Virgin Islands LPFM 
station will include a condition that permits the Commission to modify, 
suspend or terminate without right to a hearing if found by the 
Commission to be necessary to conform to any international regulations 
or agreements.
    (4) The Commission will initiate international coordination of a 
LPFM proposal even where the above Canadian and Mexican spacing tables 
are met, if it appears that such coordination is necessary to maintain 
compliance with international agreements.

0
3. Section 73.809 is amended by revising paragraph (a) introductory 
text 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 that is caused by 
such LPFM station operating on the same channel or first-adjacent 
channel provided that the interference is predicted to occur and 
actually occurs within:
* * * * *

0
4. Section 73.810 is revised to read as follows:


Sec.  73.810  Third adjacent channel interference.

    (a) LPFM Stations Licensed at Locations That Do Not Satisfy Third-
Adjacent Channel Minimum Distance Separations. An LPFM station licensed 
at a location that does not satisfy the third-adjacent channel minimum 
distance separations set forth in Sec.  73.807 is subject to the 
following provisions:
    (1) Such an LPFM station will not be permitted to continue to 
operate if it causes any actual third-adjacent channel interference to:
    (i) The transmission of any authorized broadcast station; or
    (ii) The reception of the input signal of any TV translator, TV 
booster, FM translator or FM booster station; or
    (iii) The direct reception by the public of the off-the-air signals 
of any authorized broadcast station including TV Channel 6 stations, 
Class D (secondary) noncommercial educational FM stations, and 
previously authorized and operating LPFM stations, FM translators and 
FM booster stations. Interference will be considered to occur whenever 
reception of a regularly used signal on a third-adjacent channel is 
impaired by the signals radiated by the LPFM station, regardless of the 
quality of such reception, the strength of the signal so used, or the 
channel on which the protected signal is transmitted.
    (2) If third-adjacent channel interference cannot be properly 
eliminated by the application of suitable techniques, operation of the 
offending LPFM station shall be suspended and shall not be resumed 
until the interference has been eliminated. Short test transmissions 
may be made during the period of suspended operation to check the 
efficacy of remedial measures. If a complainant refuses to permit the 
licensee of the offending LPFM station to apply remedial techniques 
which demonstrably will eliminate the third-adjacent channel 
interference without impairment to the original reception, the licensee 
is absolved of further responsibility for that complaint.
    (3) Upon notice by the Commission to the licensee that such third-
adjacent channel interference is being caused, the operation of the 
LPFM station shall be suspended within three minutes and shall not be 
resumed until the interference has been eliminated or it can be 
demonstrated that the interference is not due to spurious emissions by 
the LPFM station; provided, however, that short test transmissions may 
be made during the period of suspended operation to check the efficacy 
of remedial measures.
    (b) LPFM Stations Licensed at Locations That Satisfy Third-Adjacent 
Channel Minimum Distance Separations. An LPFM station licensed at a 
location that satisfies the third-adjacent channel minimum distance 
separations set forth in Sec.  73.807 is subject to the following 
provisions:
    (1) Interference Complaints and Remediation. (i) Such an LPFM 
station is required to provide copies of all complaints alleging that 
its signal is causing third-adjacent channel interference to or 
impairing the reception of the signal of a full power FM, FM translator 
or FM booster station to such affected station and to the Commission.

[[Page 2105]]

    (ii) A full power FM, FM translator or FM booster station shall 
review all complaints it receives, either directly or indirectly, from 
listeners regarding alleged third-adjacent channel interference caused 
by the operations of such an LPFM station. Such full power FM, FM 
translator or FM booster station shall also identify those that qualify 
as bona fide complaints under this section and promptly provide such 
LPFM station with copies of all bona fide complaints. A bona fide 
complaint:
    (A) Must include current contact information for the complainant;
    (B) Must state the nature and location of the alleged third-
adjacent channel interference and must specify the call signs of the 
LPFM station and affected full power FM, FM translator or FM booster 
station, and the type of receiver involved; and
    (C) Must be received by either the LPFM station or the affected 
full power FM, FM translator or FM booster station within one year of 
the date on which the LPFM station commenced broadcasts with its 
currently authorized facilities.
    (iii) The Commission will accept bona fide complaints and will 
notify the licensee of the LPFM station allegedly causing third-
adjacent channel interference to the signal of a full power FM, FM 
translator or FM booster station of the existence of the alleged 
interference within 7 calendar days of the Commission's receipt of such 
complaint.
    (iv) Such an LPFM station will be given a reasonable opportunity to 
resolve all complaints of third-adjacent channel interference within 
the protected contour of the affected full power FM, FM translator or 
FM booster station. A complaint will be considered resolved where the 
complainant does not reasonably cooperate with an LPFM station's 
remedial efforts. Such an LPFM station also is encouraged to address 
all other complaints of third-adjacent channel interference, including 
complaints based on interference to a full power FM, FM translator or 
FM booster station by the transmitter site of the LPFM station at any 
distance from the full power, FM translator or FM booster station.
    (v) In the event that the number of unresolved complaints of third-
adjacent channel interference within the protected contour of the 
affected full power FM, FM translator or FM booster station plus the 
number of complaints for which the source of third-adjacent channel 
interference remains in dispute equals at least one percent of the 
households within one kilometer of the LPFM transmitter site or thirty 
households, whichever is less, the LPFM and affected stations must 
cooperate in an ``on-off'' test to determine whether the third-adjacent 
channel interference is traceable to the LPFM station.
    (vi) If the number of unresolved and disputed complaints of third-
adjacent channel interference within the protected contour of the 
affected full power, FM translator or FM booster station exceeds the 
numeric threshold specified in paragraph (b)(1)(v) of this section 
following an ``on-off'' test, the affected station may request that the 
Commission initiate a proceeding to consider whether the LPFM station 
license should be modified or cancelled, which will be completed by the 
Commission within 90 days. Parties may seek extensions of the 90-day 
deadline consistent with Commission rules.
    (vii) An LPFM station may stay any procedures initiated pursuant to 
paragraph (b)(1)(vi) of this section by voluntarily ceasing operations 
and filing an application for facility modification within twenty days 
of the commencement of such procedures.
    (2) Periodic Announcements. (i) For a period of one year from the 
date of licensing of a new LPFM station that is constructed on a third-
adjacent channel and satisfies the third-adjacent channel minimum 
distance separations set forth in Sec.  73.807, such LPFM station shall 
broadcast periodic announcements. The announcements shall, at a 
minimum, alert listeners of the potentially affected third-adjacent 
channel station of the potential for interference, instruct listeners 
to contact the LPFM station to report any interference, and provide 
contact information for the LPFM station. The announcements shall be 
made in the primary language(s) of both the new LPFM station and the 
potentially affected third-adjacent channel station(s). Sample 
announcement language follows:

    On (date of license grant), the Federal Communications 
Commission granted (LPFM station's call letters) a license to 
operate. (LPFM station's call letters) may cause interference to the 
operations of (third-adjacent channel station's call letters) and 
(other third-adjacent channel stations' call letters). If you are 
normally a listener of (third-adjacent channel station's call 
letters) or (other third-adjacent channel station's call letters) 
and are having difficulty receiving (third-adjacent channel station 
call letters) or (other third-adjacent channel station's call 
letters), please contact (LPFM station's call letters) by mail at 
(mailing address) or by telephone at (telephone number) to report 
this interference.

    (ii) During the first thirty days after licensing of a new LPFM 
station that is constructed on a third-adjacent channel and satisfies 
the third-adjacent channel minimum distance separations set forth in 
Section 73.807, the LPFM station must broadcast the announcements 
specified in paragraph (b)(2)(i) of this section at least twice daily. 
The first daily announcement must be made between the hours of 7 a.m. 
and 9 a.m., or 4 p.m. and 6 p.m. The LPFM station must vary the time 
slot in which it airs this announcement. For stations that do not 
operate at these times, the announcements shall be made during the 
first two hours of broadcast operations each day. The second daily 
announcement must be made outside of the 7 a.m. to 9 a.m. and 4 p.m. to 
6 p.m. time slots. The LPFM station must vary the times of day in which 
it broadcasts this second daily announcement in order to ensure that 
the announcements air during all parts of its broadcast day. For 
stations that do not operate at these times, the announcements shall be 
made during the first two hours of broadcast operations each day. For 
the remainder of the one year period, the LPFM station must broadcast 
the announcements at least twice per week. The announcements must be 
broadcast between the hours of 7 a.m. and midnight. For stations that 
do not operate at these times, the announcements shall be made during 
the first two hours of broadcast operations each day.
    (iii) Any new LPFM station that is constructed on a third-adjacent 
channel and satisfies the minimum distance separations set forth in 
Sec.  73.807 must:
    (A) notify the Audio Division, Media Bureau, and all affected 
stations on third-adjacent channels of an interference complaint. The 
notification must be made electronically within 48 hours after the 
receipt of an interference complaint by the LPFM station; and
    (B) cooperate in addressing any third-adjacent channel 
interference.

0
5. Section 73.811 is revised to read as follows:


Sec.  73.811  LPFM power and antenna height requirements.

    (a) Maximum facilities. LPFM stations will be authorized to operate 
with maximum facilities of 100 watts ERP at 30 meters HAAT. An LPFM 
station with a HAAT that exceeds 30 meters will not be permitted to 
operate with an ERP greater than that which would result in a 60 dBu 
contour of 5.6 kilometers. In no event will an ERP less than one watt 
be authorized. No facility will be authorized in excess of one watt ERP 
at 450 meters HAAT.
    (b) Minimum facilities. LPFM stations may not operate with 
facilities less than 50 watts ERP at 30 meters HAAT or the

[[Page 2106]]

equivalent necessary to produce a 60 dBu contour that extends at least 
4.7 kilometers.

0
6. Section 73.816 is amended by revising paragraphs (b) and (c) to read 
as follows:


Sec.  73.816  Antennas.

* * * * *
    (b) Directional antennas generally will not be authorized and may 
not be utilized in the LPFM service, except as provided in paragraph 
(c) of this section.
    (c)(1) Public safety and transportation permittees and licensees, 
eligible pursuant to Sec.  73.853(a)(2), may utilize directional 
antennas in connection with the operation of a Travelers' Information 
Service (TIS) provided each LPFM TIS station utilizes only a single 
antenna with standard pattern characteristics that are predetermined by 
the manufacturer. Public safety and transportation permittees and 
licensees may not use composite antennas (i.e., antennas that consist 
of multiple stacked and/or phased discrete transmitting antennas).
    (2) LPFM permittees and licensees proposing a waiver of the second-
adjacent channel spacing requirements of Sec.  73.807 may utilize 
directional antennas for the sole purpose of justifying such a waiver.
* * * * *

0
7. Section 73.825 is amended by revising the Tables to paragraphs (a) 
and (b) to read as follows:


Sec.  73.825  Protection to reception of TV channel 6.

    (a) * * *

------------------------------------------------------------------------
                                                           LPFM to TV
                  FM channel number                      channel 6 (km)
------------------------------------------------------------------------
201..................................................                140
202..................................................                138
203..................................................                137
204..................................................                136
205..................................................                135
206..................................................                133
207..................................................                133
208..................................................                133
209..................................................                133
210..................................................                133
211..................................................                133
212..................................................                132
213..................................................                132
214..................................................                132
215..................................................                131
216..................................................                131
217..................................................                131
218..................................................                131
219..................................................                130
220..................................................                130
------------------------------------------------------------------------

     (b) * * *

------------------------------------------------------------------------
                                                           LPFM to TV
                  FM channel number                      channel 6 (km)
------------------------------------------------------------------------
201..................................................                 98
202..................................................                 97
203..................................................                 95
204..................................................                 94
205..................................................                 93
206..................................................                 91
207..................................................                 91
208..................................................                 91
209..................................................                 91
210..................................................                 91
211..................................................                 91
212..................................................                 90
213..................................................                 90
214..................................................                 90
215..................................................                 90
216..................................................                 89
217..................................................                 89
218..................................................                 89
219..................................................                 89
220..................................................                 89
------------------------------------------------------------------------


0
8. Section 73.827 is revised to read as follows:


Sec.  73.827  Interference to the input signals of FM translator or FM 
booster stations.

    (a) Interference to the direct reception of the input signal of an 
FM translator station. This subsection applies when an LPFM application 
proposes to operate near an FM translator station, the FM translator 
station is receiving its primary station signal off-air and the LPFM 
application proposes to operate on a third-adjacent channel to the 
primary station. In these circumstances, the LPFM station will not be 
authorized unless it is located at least 2 km from the FM translator 
station. In addition, in cases where an LPFM station is located within 
+/- 30 degrees of the azimuth between the FM translator station and its 
primary station, the LPFM station will not be authorized unless it is 
located at least 10 kilometers from the FM translator station. The 
provisions of this subsection will not apply if the LPFM applicant:
    (1) Demonstrates that no actual interference will occur due to an 
undesired (LPFM) to desired (primary station) ratio below 34 dB at all 
locations,
    (2) Complies with the minimum LPFM/FM translator distance 
separation calculated in accordance with the following formula: 
du = 133.5 antilog [(Peu + Gru - 
Grd - Ed)/20], where du = the minimum 
allowed separation in km, Peu = LPFM ERP in dBW, 
Gru = gain (dBd) of the FM translator receive antenna in the 
direction of the LPFM site, Grd = gain (dBd) of the FM 
translator receive antenna in the direction of the primary station 
site, Ed = predicted field strength (dBu) of the primary 
station at the translator site, or
    (3) Reaches an agreement with the licensee of the FM translator 
regarding an alternative technical solution.

    Note to paragraph (a): LPFM applicants may assume that an FM 
translator station's receive and transmit antennas are collocated.

    (b) An authorized LPFM station will not be permitted to continue to 
operate if an FM translator or FM booster station demonstrates that the 
LPFM station is causing actual interference to the FM booster station's 
input signal, provided that the same input signal was in use at the 
time the LPFM station was authorized.
    (c) Complaints of actual interference by an LPFM station subject to 
paragraph (b) of this section must be served on the LPFM licensee and 
the Federal Communications Commission, Attention: Audio Division, Media 
Bureau. The LPFM station must suspend operations upon the receipt of 
such complaint unless the interference has been resolved to the 
satisfaction of the complainant on the basis of suitable techniques. 
Short test transmissions may be made during the period of suspended 
operations to check the efficacy of remedial measures. An LPFM station 
may only resume full operation at the direction of the Federal 
Communications Commission. If the Commission determines that the 
complainant has refused to permit the LPFM station to apply remedial 
techniques that demonstrably will eliminate the interference without 
impairment of the original reception, the licensee of the LPFM station 
is absolved of further responsibility for the complaint.

0
9. Section 73.850 is amended by adding paragraph (c) to read as 
follows:


Sec.  73.850  Operating schedule.

* * * * *
    (c) All LPFM stations, including those meeting the requirements of 
paragraph (b) of this section, but which do not operate 12 hours per 
day each day of the year, will be required to share use of the 
frequency upon the grant of an appropriate application proposing such 
share time arrangement. Such applications must set forth the intent to 
share time and must be filed in the same manner as are applications for 
new stations. Such applications may be filed at any time after an LPFM 
station completes its third year of licensed operations. In cases where 
the licensee and the prospective licensee are unable to agree on time 
sharing, action on the application will be taken only in connection 
with a renewal application for the existing station filed on or after 
June 1, 2019. In order to be considered

[[Page 2107]]

for this purpose, an application to share time must be filed no later 
than the deadline for filing petitions to deny the renewal application 
of the existing licensee.
    (1) The licensee and the prospective licensee(s) shall endeavor to 
reach an agreement for a definite schedule of periods of time to be 
used by each. Such agreement must be in writing and must set forth 
which licensee is to operate on each of the hours of the day throughout 
the year. Such agreement must not include simultaneous operation of the 
stations. Each licensee must file the same in triplicate with each 
application to the Commission for initial construction permit or 
renewal of license. Such written agreements shall become part of the 
terms of each station's license.
    (2) The Commission desires to facilitate the reaching of agreements 
on time sharing. However, if the licensees of stations authorized to 
share time are unable to agree on a division of time, the prospective 
licensee(s) must submit a statement with the Commission to that effect 
filed with the application(s) proposing time sharing.
    (3) After receipt of the type of application(s) described in 
paragraph (c)(2) of this section, the Commission will process such 
application(s) pursuant to Sec. Sec.  73.3561 through 73.3568 of this 
Part. If any such application is not dismissed pursuant to those 
provisions, the Commission will issue a notice to the parties proposing 
a time-sharing arrangement and a grant of the time-sharing 
application(s). The licensee may protest the proposed action, the 
prospective licensee(s) may oppose the protest and/or the proposed 
action, and the licensee may reply within the time limits delineated in 
the notice. All such pleadings must satisfy the requirements of Section 
309(d) of the Act. Based on those pleadings and the requirements of 
Section 309 of the Act, the Commission will then act on the time-
sharing application(s) and the licensee's renewal application.
    (4) A departure from the regular schedule set forth in a time-
sharing agreement will be permitted only in cases where a written 
agreement to that effect is reduced to writing, is signed by the 
licensees of the stations affected thereby, and is filed in triplicate 
by each licensee with the Commission, Attention: Audio Division, Media 
Bureau, prior to the time of the proposed change. If time is of the 
essence, the actual departure in operating schedule may precede the 
actual filing of the written agreement, provided that appropriate 
notice is sent to the Commission in Washington, DC, Attention: Audio 
Division, Media Bureau.

0
10. Section 73.853 is amended by adding paragraph (a)(3), revising 
paragraph (b) introductory text, and adding paragraphs (b)(4) and (c) 
to read as follows:


Sec.  73.853  Licensing requirements and service.

    (a) * * *
    (3) Tribal Applicants, as defined in paragraph (c) of this section 
that will provide non-commercial radio services.
    (b) Only local organizations will be permitted to submit 
applications and to hold authorizations in the LPFM service. For the 
purposes of this paragraph, an organization will be deemed local if it 
can certify, at the time of application, that it meets the criteria 
listed below and if it continues to satisfy the criteria at all times 
thereafter.
* * * * *
    (4) In the case of a Tribal Applicant, as defined in paragraph (c) 
of this section, the Tribal Applicant's Tribal lands, as that term is 
defined in Sec.  73.7000, are within the service area of the proposed 
LPFM station.
    (c) A Tribal Applicant is a Tribe or an entity that is 51 percent 
or more owned or controlled by a Tribe or Tribes. For these purposes, 
Tribe is defined as set forth in Sec.  73.7000.

0
11. 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) Notwithstanding the general prohibition set forth in paragraph 
(a) of this section, Tribal Applicants, as defined in Sec.  73.853(c), 
may hold an attributable interest in up to two LPFM stations.
    (c) Notwithstanding the general prohibition set forth in paragraph 
(a) of this section, 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
12. Section 73.860 is revised to read as follows:


Sec.  73.860  Cross-ownership.

    (a) Except as provided in paragraphs (b), (c) and (d) of this 
section, no license shall be granted to any party if the grant of such 
authorization will result in the same party holding an attributable 
interest in any other non-LPFM broadcast station, including any FM 
translator or low power television station, or any other media subject 
to our broadcast ownership restrictions.
    (b) A party that is not a Tribal Applicant, as defined in Sec.  
73.853(c), may hold attributable interests in one LPFM station and no 
more than two FM translator stations provided that the following 
requirements are met:
    (1) The 60 dBu contours of the commonly-owned LPFM station and FM 
translator station(s) overlap;
    (2) The FM translator station(s), at all times, synchronously 
rebroadcasts the primary analog signal of the commonly-owned LPFM 
station or, if the commonly-owned LPFM station operates in hybrid mode, 
synchronously rebroadcasts the digital HD-1 version of the LPFM 
station's signal;
    (3) The FM translator station(s) receives the signal of the 
commonly-owned LPFM station over-the-air and directly from the 
commonly-owned LPFM station itself; and
    (4) The transmitting antenna of the FM translator station(s) is 
located within 16.1 km (10 miles) for LPFM stations located in the top 
50 urban markets and 32.1 km (20 miles) for LPFM stations outside the 
top 50 urban markets of either the transmitter site of the commonly-
owned LPFM station or the reference coordinates for that station's 
community of license.
    (c) A party that is a Tribal Applicant, as defined in Sec.  
73.853(c), may hold attributable interests in no more than two LPFM 
stations and four FM translator stations provided that the requirements 
set forth in paragraph (b) of this section are met.
    (d) Unless such interest is permissible under paragraphs (b) or (c) 
of this section, a party with an attributable interest in a broadcast 
radio station must divest such interest prior to the commencement of 
operations of an LPFM station in which the party also holds an 
interest. However, a party need not divest such an attributable 
interest if the party is a college or university that can certify that 
the existing broadcast radio station is not student run. This exception 
applies only to parties that:
    (1) Are accredited educational institutions;
    (2) Own an attributable interest in non-student run broadcast 
stations; and
    (3) Apply for an authorization for an LPFM station that will be 
managed and operated on a day-to-day basis by students of the 
accredited educational institution.

[[Page 2108]]

    (e) No LPFM licensee may enter into an operating agreement of any 
type, including a time brokerage or management agreement, with either a 
full power broadcast station or another LPFM station.

0
13. Section 73.870 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec.  73.870  Processing of LPFM broadcast station applications.

    (a) A minor change for an LPFM station authorized under this 
subpart is limited to transmitter site relocations of 5.6 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). These distance limitations also do not apply to 
an amendment or application proposing transmitter site relocation to a 
common location or a location very close to another station operating 
on a third-adjacent channel in order to remediate interference to the 
other station; provided, however, that the proposed relocation is 
consistent with all localism certifications made by the applicant in 
its original application for the LPFM station. Minor changes of LPFM 
stations may include:
* * * * *

0
14. Section 73.871 is amended by revising paragraphs (c)(1), (5), and 
(6) and adding paragraph (c)(7) to read as follows:


Sec.  73.871  Amendment of LPFM broadcast station applications.

* * * * *
    (c) * * *
    (1) Filings subject to paragraph (c)(5) of this section, site 
relocations of 5.6 kilometers or less for LPFM stations;
* * * * *
    (5) Other changes in general and/or legal information;
    (6) Filings proposing transmitter site relocation to a common 
location submitted by applications that are parties to a voluntary 
time-sharing agreement with regard to their stations pursuant to Sec.  
73.872 (c) and (e); and
    (7) Filings proposing transmitter site relocation to a common 
location or a location very close to another station operating on a 
third-adjacent channel in order to remediate interference to the other 
station.
* * * * *

0
15. Section 73.872 is amended by revising paragraphs (b), (c) 
introductory text, (c)(4), (d), and (e) to read as follows:


Sec.  73.872  Selection procedure for mutually exclusive LPFM 
applications.

* * * * *
    (b) Each mutually exclusive application will be awarded one point 
for each of the following criteria, based on certifications that the 
qualifying conditions are met and submission of any required 
documentation:
    (1) Established community presence. An applicant must, for a period 
of at least two years prior to application and at all times thereafter, 
have qualified as local pursuant to Sec.  73.853(b). Applicants 
claiming a point for this criterion must submit any documentation 
specified in FCC Form 318 at the time of filing their applications.
    (2) Local program origination. The applicant must pledge to 
originate locally at least eight hours of programming per day. For 
purposes of this criterion, local origination is the production of 
programming by the licensee, within ten miles of the coordinates of the 
proposed transmitting antenna. Local origination includes licensee 
produced call-in shows, music selected and played by a disc jockey 
present on site, broadcasts of events at local schools, and broadcasts 
of musical performances at a local studio or festival, whether recorded 
or live. Local origination does not include the broadcast of repetitive 
or automated programs or time-shifted recordings of non-local 
programming whatever its source. In addition, local origination does 
not include a local program that has been broadcast twice, even if the 
licensee broadcasts the program on a different day or makes small 
variations in the program thereafter.
    (3) Main studio. The applicant must pledge to maintain a publicly 
accessible main studio that has local program origination capability, 
is reachable by telephone, is staffed at least 20 hours per week 
between 7 a.m. and 10 p.m., and is located 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 the 
top 50 urban markets. Applicants claiming a point under this criterion 
must specify the proposed address and telephone number for the proposed 
main studio in FCC Form 318 at the time of filing their applications.
    (4) Local program origination and main studio. The applicant must 
make both the local program origination and main studio pledges set 
forth in paragraphs (b)(2) and (3) of this section.
    (5) Diversity of ownership. An applicant must hold no attributable 
interests in any other broadcast station.
    (6) Tribal Applicants serving Tribal Lands. The applicant must be a 
Tribal Applicant, as defined in Sec.  73.853(c), and the proposed site 
for the transmitting antenna must be located on that Tribal Applicant's 
``Tribal Lands,'' as defined in Sec.  73.7000. Applicants claiming a 
point for this criterion must submit the documentation set forth in FCC 
Form 318 at the time of filing their 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 electronically 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.
* * * * *
    (4) Concurrent license terms granted under paragraph (d) of this 
section may be converted into voluntary time-sharing arrangements 
renewable pursuant to Sec.  73.3539 by submitting a universal time-
sharing proposal.
    (d) Involuntary time-sharing. (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. Applicants with tied, grantable 
applications will be eligible for equal, concurrent, non-renewable 
license terms.
    (2) If a mutually exclusive group has three or fewer tied, 
grantable applications, the Commission will simultaneously grant these 
applications, assigning an equal number of hours per week to each 
applicant. The Commission will determine the hours assigned to each 
applicant by first assigning hours to the applicant that has been 
local, as defined in Sec.  73.853(b), for the longest uninterrupted 
period of time, then assigning hours to the applicant that has been 
local for the next longest uninterrupted period of time, and finally 
assigning hours to any remaining applicant. The Commission will offer 
applicants an opportunity to voluntarily reach a time-sharing 
agreement. In the event that applicants cannot reach such agreement, 
the

[[Page 2109]]

Commission will require each applicant subject to involuntary time-
sharing to simultaneously and confidentially submit their preferred 
time slots to the Commission. If there are only two tied, grantable 
applications, the applicants must select between the following 12-hour 
time slots 3 a.m.-2:59 p.m., or 3 p.m.-2:59 a.m. If there are three 
tied, grantable applications, each applicant must rank their preference 
for the following 8-hour time slots: 2 a.m.-9:59 a.m., 10 a.m.-5:59 
p.m., and 6 p.m.-1:59 a.m. The Commission will require the applicants 
to certify that they did not collude with any other applicants in the 
selection of time slots. The Commission will give preference to the 
applicant that has been local for the longest uninterrupted period of 
time. The Commission will award time in units as small as four hours 
per day. In the event an applicant neglects to designate its preferred 
time slots, staff will select a time slot for that applicant.
    (3) Groups of more than three tied, grantable applications will not 
be eligible for licensing under this section. Where such groups exist, 
the Commission will dismiss all but the applications of the three 
applicants that have been local, as defined in Sec.  73.853(b), for the 
longest uninterrupted periods of time. The Commission then will process 
the remaining applications as set forth in paragraph (d)(2) of this 
section.
    (4) If concurrent 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) Settlements. 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 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 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
16. Section 73.873 is revised to read as follows:


Sec.  73.873  LPFM license period.

    (a) Initial licenses for LPFM stations will be issued for a period 
running until the date specified in Sec.  73.1020 for full service 
stations operating in the LPFM station's state or territory, or if 
issued after such date, determined in accordance with Sec.  73.1020.
    (b) The license of an LPFM station that fails to transmit broadcast 
signals for any consecutive 12-month period expires as a matter of law 
at the end of that period, notwithstanding any provision, term, or 
condition of the license to the contrary.

[FR Doc. 2012-30975 Filed 1-8-13; 8:45 am]
BILLING CODE 6712-01-P