[Federal Register Volume 86, Number 45 (Wednesday, March 10, 2021)]
[Rules and Regulations]
[Pages 13660-13664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28063]


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

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[MB Docket No. 18-119; FCC 20-141; FRS 17304]


FM Translator Interference

AGENCY: Federal Communications Commission.

ACTION: Final rule; dismissal and denial of petitions.

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

SUMMARY: In this document, the Federal Communications Commission 
(Commission) addresses four petitions for reconsideration of a final 
rule (Petitions) filed by: Charles M. Anderson; the LPFM Coalition; 
KGIG-LP, Salida, California/Fellowship of the Earth; and Skywaves 
Communications LLC. The Petitions seek reconsideration of the 
Commission's report and order in the FM translator interference 
proceeding (Report and Order). The Commission dismisses or denies the 
arguments set forth in the Petitions and amends a rule to correct a 
cross-reference.

DATES: The filing of the Petitions was published at 84 FR 37228 on July 
31, 2019. The Commission adopted the Order on Reconsideration 
dismissing and denying the Petitions and amending part 74 on October 6, 
2020. The dismissals and/or denials of the Petitions will be effective 
April 9, 2021. The rule amendment adopted in the Order on 
Reconsideration will be effective March 9, 2021.

FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Chief, Media Bureau, 
Audio Division, (202) 418-2721; Lisa Scanlan, Deputy Division Chief, 
Media Bureau, Audio Division, (202) 418-2704; Christine Goepp, Attorney 
Advisor, Media Bureau, Audio Division, (202) 418-7834.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration (Reconsideration Order), MB Docket No. 18-119; FCC 
20-141, released October 6, 2020. The full text of the Reconsideration 
Order is available electronically via the FCC's Electronic Document 
Management System (EDOCS) website at http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment Filing System (ECFS) 
website at http://www.fcc.gov/ecfs. (Documents will be available 
electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) 
Alternative formats are available for people with disabilities 
(braille, large print, electronic files, audio format), by sending an 
email to [email protected] or calling the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Synopsis

    1. Introduction. In this Reconsideration Order, adopted and 
released on October 6, 2020, the Commission addresses petitions for 
reconsideration (Petitions) of the Report and Order, published at 84 FR 
27734 (June 14, 2019) (Report and Order) in the FM translator 
interference proceeding. The Commission dismisses or denies the 
arguments raised in the Petitions. It also corrects a cross reference 
contained in the rules established by the Report and Order.
    2. Background. In the Report and Order, the Commission adopted new 
rules to improve the FM translator interference complaint and 
resolution process. Specifically, it: (1) Gave FM translators the 
flexibility, upon a showing of interference to or from any other 
broadcast station, to change channels to any available same-band 
channel using a minor modification application; (2) standardized the 
information that must be compiled and submitted by any station claiming 
interference, including the minimum number of listener complaints 
proportionate to the signal coverage of the complaining station and 
undesired-to-desired (U/D) data demonstrating the relative signal 
strength at each listener location (zone of potential interference); 
and (3) established an outer contour limit of 45 dBu signal strength of 
the complaining station within which interference complaints will be 
considered actionable.
    4. Discussion. The Commission dismisses or denies the arguments 
raised in the Petitions, as summarized below. It also corrects a cross 
reference contained in the rules established by the Report and Order.
    5. Channel Changes. The Commission rejects the argument that it 
erred in the Report and Order by not requiring that low power FM (LPFM) 
preclusion studies be submitted with each minor change application 
filed by an FM translator operator to operate on a non-adjacent 
channel. It affirms its earlier conclusion that neither the plain 
language of section 5(1) of the Local Community Radio Act of 2010 
(LCRA) nor subsequent case law mandates preclusion studies for 
translator minor change applications, explaining that LCRA section 5 
pertains only to the licensing of new rather than existing stations. 
Moreover, the Commission finds that its previous efforts to preserve 
LPFM availability in the context of

[[Page 13661]]

waivers for FM translator long-distance ``hops'' are not relevant to 
the channel change applications at issue here. Therefore, the 
Commission both dismisses this argument as previously raised and 
considered and denies it on the merits.
    6. The Commission also dismisses and, on alternative and 
independent grounds, denies the argument that the non-adjacent channel 
change rule violates the Ashbacker doctrine. This argument could have 
been raised earlier in the proceeding. Moreover, the Ashbacker right to 
comparative consideration for mutually exclusive applications does not 
apply to prospective applicants, as here. Rather, the Commission may 
promulgate rules that limit the ability of parties to file mutually 
exclusive applications. The Commission finds that it is in the public 
interest to do so here by allowing FM translator stations to remediate 
interference by changing channels and treating changes as minor, 
thereby foreclosing competing applications. Doing so provides a low-
cost way to resolve interference with little or no reduction in service 
area and help keep translators on the air. The Commission finds that to 
treat these changes as major, and therefore subject to competing 
applications, would undermine the Commission's efforts to provide FM 
translator stations with an efficient means to remediate interference.
    7. Required Contents of Translator Interference Claims. The 
Commission affirms three as the appropriate minimum number of listener 
complaints that must be submitted by an LPFM station with fewer than 
5,000 people within its protected contours, dismissing the argument 
that this limit should be set at six. This argument was considered and 
rejected earlier in the proceeding. The Commission also denies this 
argument on the alternative and independent ground that the three-
listener complaint minimum is a targeted and proportionate requirement, 
which in any case is applicable only to a small subset of LPFM 
stations.
    8. The Commission rejects the arguments that it violated the 
Administrative Procedure Act (APA) and the petition clause of the U.S. 
Constitution (Petition Clause) by holding that multiple listener 
complaints from the same building will not be applied toward the 
listener complaint minimum. The APA does not prevent the Commission 
from adopting a final rule that differs from a proposal in an NPRM. To 
the contrary, the APA requires that, after providing the public with an 
opportunity to comment, an agency must then consider the relevant 
matter presented. In this case, although the NPRM proposed to allow 
multiple complaints from a single building, in the Report and Order the 
Commission agreed with commenters that the new rules should ensure that 
listener complaints come from multiple, unique, locations to 
demonstrate a real and consistent interference problem. By carefully 
reviewing the record and modifying its earlier proposal in response to 
it, the Commission complied with APA requirements.
    9. The Commission also denies the argument that the Report and 
Order denied radio listeners their right under the Petition Clause to 
petition the government for a redress of grievances. Petitioners do not 
cite to any court or agency precedent to support the assertion that the 
Petition Clause requires the Commission to accept and consider all 
listener complaints of translator interference. To the contrary, the 
Supreme Court has held that nothing in the First Amendment suggests 
that the rights to speak, associate, and petition require government 
policymakers to listen or respond to communications of members of the 
public on public issues. Moreover, the Commission explains, from a 
practical standpoint, it is not necessary to obtain multiple listener 
complaints from a single location to determine whether that location is 
experiencing interference. It also clarifies that although multiple 
listener complaints will not count toward the minimum number of 
listener complaints, the translator operator must still remediate all 
valid complaints from the same building if all threshold requirements 
are otherwise met.
    10. Because the Reconsideration Order corrects a cross-reference 
within new Sec. Sec.  74.1203(a)(3) and 74.1204(f) to refer to Sec.  
74.1204(b) rather than previously cross-referenced Sec.  73.313, the 
Commission dismisses as moot any objection to the new rules based on 
Sec.  73.313.
    11. The Commission upholds the requirement set out in the Report 
and Order that each station submitting a translator interference claim 
package must include U/D data demonstrating that at each listener 
location the ratio of undesired to desired signal strength exceeds -20 
dB for co-channel situations, -6 dB for first-adjacent channel 
situations or 40 dB for second- or third-adjacent channel situations, 
calculated using the Commission's standard contour prediction 
methodology. The Commission declines to allow listener complaints from 
anywhere within the complaining station's protected contour, even if 
the listener location does not satisfy this U/D requirement. The U/D 
requirement serves as a threshold test to eliminate obvious instances 
where the translator could not be the source of the alleged 
interference. Including listener complaints from areas within the 
complaining station's protected contour that do not satisfy the U/D 
test would undermine this purpose. Moreover, the Commission explains, 
the strength of the complaining station's signal within its protected 
contour makes the likelihood of translator interference within the 
protected contour exceedingly small. In the rare event that a valid U/D 
showing could be made for a location within a complaining station's 
protected contour, the Commission states that it would accept a 
listener complaint at that location if it otherwise met the complaint 
requirements set out in the Report and Order. Finally, the Commission 
anticipates that if a real and consistent interference problem caused 
by a translator should occur, the affected station will be able to 
readily obtain the required minimum number of listener complaints from 
within the zone of potential interference as defined in the Report and 
Order.
    12. In response to Skywaves Communications LLC, who points out that 
the Report and Order does not specify F(50,50) or F(50,10) propagation 
curves with respect to the 45 dBu contour limit and the U/D zone of 
potential interference test, the Commission makes a technical change to 
Sec. Sec.  74.1203(a)(3) and 74.1204(f) to cross-reference Sec.  
74.1204(b) rather than Sec.  73.313. Section 74.1204(b) includes 
guidance on using F(50, 50) curves for protected contours and F(50, 10) 
curves for interfering contours and is therefore appropriate for the 
purpose of making a U/D zone of potential interference showing under 
the new rules.
    13. Contour Limit on Translator Interference Complaints. The 
Commission dismisses as previously raised and considered the argument 
that existing translator stations will be harmed by the establishment 
of an outer contour limit of 45 dBu signal strength of the complaining 
station within which interference complaints will be considered 
actionable. On alternative and independent grounds, the Commission 
denies this argument on the merits, noting that under the previous 
rules, any interference complaint, at any distance from the complaining 
station, could have forced a translator station to cease operations. 
Because the new contour limit protects translator stations from 
specious

[[Page 13662]]

interference complaints, it reduces the risk to translator stations 
rather than increasing it. In this respect, the Commission clarifies 
that the 45 dBu contour limit does not affect any station's existing 
protected contour under the rules, including LPFM stations. It affirms 
that the 45 dBu contour limit represents a carefully considered balance 
between protecting translator stations from specious interference 
claims on one hand while preserving existing protections for other 
broadcast stations on the other.
    14. The Commission dismisses as already raised and rejected the 
argument that the Commission relied on misleading data when it 
determined that there is significant listenership beyond many stations' 
54 dBu signal strength contours. In doing so, the Commssion considered 
all arguments on this point and concluded that the data presented in 
the record formed an adequate basis for approximating nationwide 
listenership at various signal strength contours. On alternative and 
independent grounds, the Commission denies this argument on the merits, 
noting that the Nielsen data in the record was supplemented and 
corroborated by independent listenership data submitted by other 
broadcasters from various markets nationwide. Therefore, while 
acknowledging that CUME, zip code-based, and home address-based 
information may be over- or under-inclusive in individual cases (for 
example, when a zip code centroid is within a certain signal strength 
contour but the listening occurs outside it), the Commission finds that 
this data is sufficiently reliable with respect to broad listenership 
patterns to support the conclusion that a significant amount of FM 
listening occurs beyond the average 54 dBu contour and that setting a 
limit on actionable complaints at this signal strength would be 
economically damaging to many broadcasters.
    15. The Commission dismisses as previously raised and rejected the 
argument that the new rules contravene LCRA section 5(3). The 
applicability of the LCRA ``equal in status'' provision was raised by 
other commenters earlier in the proceeding and addressed in the Report 
and Order. The Commission affirms its conclusion that LCRA does not 
prohibit the establishment of an outer contour limit on translator 
interference claims.
    16. The Commission denies the argument that it acted with bias 
against the LPFM services by rejecting objections filed by LPFM 
advocates to pending translator applications in other proceedings. This 
complaint ignores the Commission's longstanding stewardship of this 
valuable and unique service as well as the fact that many of the 
measures taken in the Report and Order have equivalent rules already 
applicable to the LPFM service, such as the ability to change channels 
to resolve interference and the contour limitation on listener 
complaints. Thus, the new rules do not prioritize translator service 
over LPFM service but bring the two services into closer harmony with 
each other. Finally, the Commission explains that improving the 
translator interference process benefits all parties concerned, 
including LPFM stations, by providing a clearly defined, expeditious, 
and fair process for resolving translator interference complaints.
    17. Pending Proceedings. The Commission affirms the holding in the 
Report and Order that the rules adopted therein apply to any pending 
applications or complaints that have not been acted upon as of the date 
the new rules became effective. It rejects the argument that doing so 
imposes ``impermissible retroactive burdens'' on those with pending 
translator interference complaints. None of the three ways in which a 
rule can be retroactive are demonstrated here. First, applying the new 
rules to pending translator interference complaints does not increase 
complainants' liability for past conduct. Second, applying the new 
rules to pending translator interference complaints does not impose new 
duties with respect to transactions already completed. Third, applying 
the new rules to pending translator interference complaints does not 
impair rights a party possess when it acted. In this respect, the 
Commission finds that Petitioners do not demonstrate or provide support 
for the position that the mere filing of an interference complaint 
endows the complainant with vested rights, or that such rights, if 
established, would be impaired by application of the new rules. The 
Commission explains that the purpose of the interference complaint 
regime addressed in the Report and Order is to resolve complaints that 
FM translators are causing interference to listeners of FM and LPFM 
stations. Nothing in the Report and Order eliminated the ability of 
complainants, including those with pending complaints, to avail 
themselves of the Commission's processes to resolve such interference 
concerns. Rather, the rules adopted in the Report and Order changed 
only the way in which these claims are adjudicated by requiring more 
specific evidence. Moreover, pending complainants were provided with 
the opportunity to supplement their complaints to meet the new 
requirements. If a pending complaint is dismissed for failure to comply 
with the new rules, nothing precludes that same complainant from 
pursuing a new interference complaint in the future that complies with 
the new rules. Therefore, the Commission concludes, applying the new 
rules to pending complaints does not impair rights a party possessed 
when it acted because both before and after the effective date of the 
new rules, FM translators are prohibited from causing interference to 
listeners of FM and LPFM stations and the Commission provides a 
complaint process for resolving such interference complaints. It 
therefore denies the contention that applying the new rules to 
interference complaints pending against translator stations had an 
impermissible retroactive effect.

Procedural Matters

    18. Paperwork Reduction Act Analysis. This document does not 
contain new or modified information collection requirements subject to 
the Paperwork Reduction Act of 1995, Public Law 104-13. Therefore, it 
does not contain any new or modified information collection burdens for 
small business concerns with fewer than 25 employees, pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198.
    19. Congressional Review Act. The Commission has determined, and 
the Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget, concurs that these rules are ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The 
Commission will send a copy of this Order on Reconsideration to 
Congress and the Government Accountability Office pursuant to 5 U.S.C. 
801(a)(1)(A).
    20. Final Regulatory Flexibility Certification. The Regulatory 
Flexibility Act of 1980, as amended (RFA), requires that a regulatory 
flexibility analysis be prepared for notice-and-comment rule making 
proceedings, unless the agency certifies that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' The RFA generally defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act. A small 
business concern is one which: (1) Is independently owned and operated; 
(2)

[[Page 13663]]

is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA.
    21. This Order on Reconsideration disposes of petitions for 
reconsideration in MB Docket No. 18-119. In the Report and Order in 
this proceeding, the Commission issued a Final Regulatory Flexibility 
Analysis (FRFA) that conforms to the RFA, as amended. The Commission 
received no petitions for reconsideration of that FRFA. This Order on 
Reconsideration does not alter the Commission's previous analysis under 
the RFA.
    22. In this Order on Reconsideration, the Commission corrects a 
cross-reference in the rules to direct broadcast applicants and 
licensees to a more comprehensive set of guidelines for calculating 
undesired-to-desired (U/D) signal strength ratios in the context of a 
translator interference claim. Specifically, although both the original 
cross-reference (47 CFR 73.313) and the new cross-reference (47 CFR 
74.1204(b)) accurately describes the Commission's standard contour 
prediction methodology, the amended cross-reference includes specific 
instructions for calculating interfering as well as protected contours, 
both of which are used when calculating U/D ratios. Thus, the amended 
cross-reference is substantially similar to the original cross-
reference but provides additional useful information and is more 
technically accurate for the type of calculation involved. This change 
is minor and is not anticipated to have any economic effect on 
broadcast licensees, including small entities. Therefore, we certify 
that the requirements of the Order on Reconsideration will not have a 
significant economic impact on a substantial number of small entities. 
The Commission will send a copy of the Order on Reconsideration, 
including a copy of this Final Regulatory Flexibility Certification, in 
a report to Congress pursuant to the Congressional Review Act. In 
addition, the Order on Reconsideration and this final certification 
will be sent to the Chief Counsel for Advocacy of the SBA and will be 
published in the Federal Register.

Ordering Clauses

    14. It is ordered that, pursuant to sections 1, 2, 4(i), 4(j), 301, 
303, 307, 308, 309, 319, and 405 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 303, 307, 308, 309, 
319, and 405, and Sec.  1.429 of the Commission's rules, 47 CFR 1.429, 
this Order on Reconsideration in MB Docket No. 18-119 is adopted and 
shall be effective 30 days after publication in the Federal Register.
    15. It is further ordered that part 74 of the Commission rules is 
amended as set forth in Appendix A and that such rule amendment shall 
be effective 30 days after publication in the Federal Register.
    16. It is further ordered that the Petition for Reconsideration 
filed by Louis P. Vito on July 16, 2019, is dismissed in its entirety.
    17. It is further ordered that the Petition for Reconsideration 
filed by Charles M. Anderson on July 11, 2019, is dismissed to the 
extent set out in paragraphs 9, 17, 20, and 21, supra, and is denied to 
the extent set out in paragraphs 9 and 19, supra.
    18. It is further ordered that the Petition for Reconsideration 
filed by the LPFM Coalition on July 15, 2019, is dismissed to the 
extent set out in paragraphs 4, and 21, supra, and is denied to the 
extent set out in paragraphs 7, 10-13, 21, and 23-25 supra.
    19. It is further ordered that the Petition for Reconsideration 
filed by KGIG-LP, Salida, California/Fellowship of the Earth on July 
15, 2019, is dismissed to the extent set out in paragraphs 4 and 8, 
supra, and is denied to the extent set out in paragraphs 5-6, 8 and 22, 
supra.
    20. It is further ordered that the Petition for Reconsideration 
filed by Skywaves Communications LLC on July 15, 2019, is dismissed to 
the extent set out in paragraph 17 and 19, supra, and is denied to the 
extent set out in paragraphs 15 and 18, supra.
    21. It is further ordered that the Stay Request filed by the LPFM 
Coalition on July 15, 2019, is dismissed as moot.
    22. It is further ordered that, should no further petitions for 
reconsideration or petitions for judicial review be timely filed, MB 
Docket No. 18-119 shall be terminated, and its docket closed.
    23. It is further ordered that the Commission shall send a copy of 
this Order on Reconsideration, including the Final Regulatory 
Flexibility Certification, 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).
    24. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Order on Reconsideration, including the Final Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
Small Business Administration.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 74 as follows:

0
1. The authority citation for part 74 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, 307, 309, 310, 336, and 
554.


0
2. Amend Sec.  74.1203 by revising paragraph (a)(3) to read as follows:


Sec.  74.1203  Interference.

    (a) * * *
    (3) The direct reception by the public of the off-the-air signals 
of any full-service station or previously authorized secondary station. 
Interference will be considered to occur whenever reception of a 
regularly used signal is impaired by the signals radiated by the FM 
translator or booster station, regardless of the channel on which the 
protected signal is transmitted; except that no listener complaint will 
be considered actionable if the alleged interference occurs outside the 
desired station's 45 dBu contour. Interference is demonstrated by:
    (i) The required minimum number of valid listener complaints as 
determined using Table 1 of this section and defined in Sec.  
74.1201(k) of this part;
    (ii) A map plotting the specific location of the alleged 
interference in relation to the complaining station's 45 dBu contour;
    (iii) A statement that the complaining station is operating within 
its licensed parameters;
    (iv) A statement that the complaining station licensee has used 
commercially reasonable efforts to inform the relevant translator 
licensee of the claimed interference and attempted private resolution; 
and
    (v) U/D data demonstrating that at each listener location the 
undesired to desired signal strength exceeds -20 dB for co-channel 
situations, -6 dB for first-adjacent channel situations or 40 dB for 
second- or third-adjacent channel situations, calculated using the 
methodology set out in Sec.  74.1204(b).

                     Table 1 to Sec.   74.1203(a)(3)
------------------------------------------------------------------------
                                                              Minimum
                                                             listener
                                                            complaints
           Population within protected contour             required for
                                                           interference
                                                               claim
------------------------------------------------------------------------
1-199,999...............................................               6
200,000-299,999.........................................               7

[[Page 13664]]

 
300,000-399,999.........................................               8
400,000-499,999.........................................               9
500,000-999,999.........................................              10
1,000,000-1,499,999.....................................              15
1,500,000-1,999,999.....................................              20
2,000,000 or more.......................................              25
LPFM stations with fewer than 5,000.....................               3
------------------------------------------------------------------------

* * * * *

0
3. Amend Sec.  74.1204 by revising paragraph (f) to read as follows:


Sec.  74.1204  Protection of FM broadcast, FM Translator and LP100 
stations.

* * * * *
    (f) An application for an FM translator station will not be 
accepted for filing even though the proposed operation would not 
involve overlap of field strength contours with any other station, as 
set forth in paragraph (a) of this section, if grant of the 
authorization will result in interference to the reception of a 
regularly used, off-the-air signal of any authorized co-channel, first, 
second or third adjacent channel broadcast station, including 
previously authorized secondary service stations within the 45 dBu 
field strength contour of the desired station. Interference is 
demonstrated by:
    (1) The required minimum number of valid listener complaints as 
determined using Table 1 to Sec.  74.1203(a)(3) of this part and 
defined in Sec.  74.1201(k) of this part;
    (2) A map plotting the specific location of the alleged 
interference in relation to the complaining station's 45 dBu contour;
    (3) A statement that the complaining station is operating within 
its licensed parameters;
    (4) A statement that the complaining station licensee has used 
commercially reasonable efforts to inform the relevant translator 
licensee of the claimed interference and attempted private resolution; 
and
    (5) U/D data demonstrating that at each listener location the 
undesired to desired signal strength exceeds -20 dB for co-channel 
situations, -6 dB for first-adjacent channel situations or 40 dB for 
second- or third-adjacent channel situations, calculated using the 
methodology set out in paragraph (b) of this section.
* * * * *

    Editorial Note: The Office of the Federal Register received this 
document on December 16, 2020.
[FR Doc. 2020-28063 Filed 3-9-21; 8:45 am]
BILLING CODE 6712-01-P