[Federal Register Volume 88, Number 72 (Friday, April 14, 2023)]
[Proposed Rules]
[Pages 22980-22990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07660]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 23-126; FCC 23-23; FR ID 134736]
In the Matter of Implementation of the Low Power Protection Act
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) implements the Low Power Protection Act (LPPA or Act), as
enacted on January 5, 2023. The LPPA provides certain low power
television (LPTV) stations with a limited window of opportunity to
apply for primary spectrum use status as Class A television stations.
The LPPA sets forth eligibility criteria for stations seeking
[[Page 22981]]
Class A designation that are similar to the eligibility criteria under
the Community Broadcasters Protection Act of 1999 (CBPA), which
permitted certain LPTV stations to convert to Class A status. This
document seeks comment on how to implement the LPPA consistent with
Congressional direction, including, inter alia, which stations are
eligible to apply for Class A status under the LPPA, the application
period and application filing requirements, and ongoing eligibility
requirements.
DATES: Comments may be filed on or before May 15, 2023, and reply
comments may be filed on or before June 13, 2023.
ADDRESSES: You may submit comments and reply comments, identified by MB
Docket No. 23-126, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Website: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
People With Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-
0530 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Kim Matthews, Media Bureau, Policy
Division, at (202) 418-2154, or by email at [email protected], or
Joyce Bernstein, Media Bureau, Video Division, at (202) 418-1647, or by
email at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 23-23, adopted on March 29, 2023 and
released on March 30, 2023. The full text of this document is available
for public inspection and copying during regular business hours in the
FCC Reference Center, Federal Communications Commission, 445 12th
Street SW, Room CY-A257, Washington, DC 20554. The complete text may be
purchased from the Commission's copy contractor, 445 12th Street SW,
Room CY-B402, Washington, DC 20554. This document will also be
available via ECFS at http://fjallfoss.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
Background
1. The Commission created the LPTV service in 1982 to bring
television service, including local service, to viewers ``otherwise
unserved or underserved'' by existing full power service providers.
From its creation, the LPTV service has been a secondary service,
meaning LPTV stations may not cause interference to, and must accept
interference from, full power television stations as well as certain
land mobile radio operations and other primary services. As a result of
their secondary status, LPTV stations can also be displaced by full
power stations that seek to expand their service area, or by new full
power stations seeking to enter the same area as the LPTV station.
2. Currently, there are approximately 1,912 licensed LPTV stations.
These stations operate in all states and territories, and serve both
rural and urban audiences. LPTV stations were required to complete a
transition from analog to digital operation in 2021 and all such
stations must now operate in digital format. As the name suggests, LPTV
stations have lower authorized power levels than full power TV
stations. Because they operate at reduced power levels, LPTV stations
serve a much smaller geographic region than full power stations and can
be fit into areas where a higher power station cannot be accommodated
in the Table of TV Allotments.
3. In 2000, the Commission established a Class A television service
to implement the Community Broadcasters Protection Act of 1999 (CBPA),
codified at 47 US.C 336(f). The CBPA allowed certain qualifying LPTV
stations to become Class A stations, which provided those television
stations primary status, and thereby a measure of interference
protection from full service television stations.
4. Congress sought in the CBPA to provide certain LPTV stations a
limited window of opportunity to apply for primary status. Among other
matters, the CBPA set out certain certification and application
procedures for LPTV licensees seeking Class A designation and
prescribed the criteria for eligibility for a Class A license.
Specifically, under the CBPA, an LPTV station could qualify for Class A
status if, during the 90 days preceding the date of enactment of the
statute, the station: (1) broadcast a minimum of 18 hours per day; (2)
broadcast an average of at least 3 hours per week of programming
produced within the market area served by the station, or the market
area served by a group of commonly controlled low-power stations that
carry common local programming produced within the market area served
by such group; and (3) was in compliance with the Commission's
requirements for LPTV stations. In addition, the CBPA required that,
from and after the date of its application for a Class A license, the
station must be in compliance with the Commission's operating rules for
full power television stations. As directed by the CBPA, within 60 days
of the date of enactment of the CBPA, stations seeking Class A status
were required to submit to the Commission a certification of
eligibility based on the applicable qualification requirements. In
addition, the Commission required LPTV licensees seeking Class A
designation to submit an application to the Commission within 6 months
after the effective date of the rules adopted in the Class A
proceeding.
5. In addition to these qualifying requirements, the CBPA gave the
Commission discretion to determine that the public interest,
convenience, and necessity would be served by treating a station as a
qualifying LPTV station under the CBPA, or that a station should be
considered to qualify for such status for other reasons, even if it did
not meet the qualifying requirements in the statute discussed above. In
implementing the CBPA, the Commission concluded, however, that it would
not accept applications under the CBPA from LPTV stations that did not
meet the statutory criteria and that did not file a certification of
eligibility by the statutory deadline, absent compelling circumstances.
6. Like the CBPA, the Low Power Protection Act (LPPA), Public Law
117-344, 136 Stat. 6193 (2023), is intended ``to provide low power TV
stations with a limited window of opportunity'' to apply for primary
status as a Class A television licensee. The Act gives LPTV stations
one year to apply for a Class A license, from the date that the
Commission's rules become effective.
[[Page 22982]]
7. The LPPA sets forth eligibility criteria for stations seeking
Class A designation that are similar to the eligibility criteria under
the CBPA, as discussed above. Specifically, the statute provides that
the Commission ``may approve'' an application submitted by an LPTV
station if the station meets the following eligibility criteria:
during the 90-day period preceding the date of enactment
of the LPPA (i.e., between October 7, 2022 and January 5, 2023), the
station satisfied the same requirements applicable to stations that
qualified for Class A status under the CBPA, ``including the
requirements . . . with respect to locally produced programming;''
the station satisfies the requirements of 47 CFR
73.6001(b) through (d) or any successor regulation;
the station demonstrates that it will not cause any
interference as described in the CBPA;
during that same 90-day period, the station complied with
the Commission's requirements for LPTV stations; and
as of January 5, 2023, the station operated in a
Designated Market Area with not more than 95,000 television households;
Finally, the LPPA requires that a station accorded Class A status must
(1) be subject to the same license terms and renewal standards as a
license for a full power television broadcast station (except as
otherwise expressly provided in the LPPA) and (2) remain in compliance
with paragraph (c)(2)(B) of the statute during the term of the license.
Discussion
8. In this Notice of Proposed Rulemaking (NPRM), we propose rules
to provide LPTV stations with a limited opportunity to apply for
primary spectrum use status as Class A television stations, consistent
with Congress's directive in the LPPA.
A. Application Period
9. The LPPA provides LPTV stations a period of one year to apply
for Class A status. We tentatively conclude that the application window
will be limited to the one year application window specified in the
Act. We note that the LPPA provides that the Commission may approve an
application for Class A status if the application satisfies Sec.
336(f)(2) of the Communications Act of 1934, as amended (which codifies
the CBPA). This provision sets forth the eligibility criteria for
stations qualifying for Class A status, and gives the Commission
discretion to determine whether a station not satisfying such criteria
should otherwise qualify. In the Class A Order, the Commission declined
either to expand these eligibility criteria or to allow ongoing
conversion to Class A status beyond the 6 month window contemplated in
the CBPA. The Commission reasoned that the basic purpose of the CBPA
was to afford existing LPTV stations a window of opportunity to convert
to Class A stations. The Commission also determined that the intent of
Congress in enacting the CBPA was to establish the rights of a
specific, already-existing group of LPTV stations, and that the public
interest would not be served by the ongoing conversion of LPTV stations
to Class A status under the CBPA in the future. The Commission noted
that LPTV stations were originally licensed on a secondary basis and
allowed to convert to Class A status only under limited eligibility
criteria established in the CBPA based upon their beneficial past
service to the public, and that it was not appropriate to expand
generally the group of LPTV stations eligible to convert to Class A
beyond that established by Congress. The Commission did, however, state
that, where potential applicants ``face circumstances beyond their
control that prevent them from filing'' a Class A application within
the 6-month time frame that applied to Class A conversions, the
Commission ``would examine those instances on a case-by-case basis to
determine their eligibility for filing.''
10. Similar to the CBPA, we tentatively find that the purpose of
the LPPA is to provide for a one-time conversion of a discrete pool of
eligible LPTV stations that meet the specific criteria set forth in the
LPPA. We tentatively find that the public interest would not be served
by providing for conversion to Class A status beyond the one year
period contemplated in the LPPA, nor do we find anything in the LPPA to
suggest that Congress intended anything more than a limited window of
opportunity. Although we tentatively conclude that the application
window will be limited to the one year application window specified in
the Act, we propose that if a potential applicant faces circumstances
beyond its control that prevents them from filing by the application
deadline, we will examine those instances on a case-by-case basis to
determine the potential applicant's eligibility for filing. We invite
comment on this approach.
B. Eligibility Requirements
1. Definition of Low Power TV Station
11. We propose to apply the Commission's recently updated
definition of an LPTV station for purposes of determining which
stations are eligible for Class A status under the LPPA. The LPPA
provides that the term ``low power TV station'' has the meaning given
the term ``digital low power TV station'' in Sec. 74.701 of our rules,
or any successor regulation. Section 74.701 formerly contained a
definition of the term ``digital lower power TV station'' but we
recently revised that rule to remove references to digital and analog
television service, as all LPTV stations have now ceased analog
operations and there is no further need to differentiate between
digital and analog in the rules. In place of the prior Sec. 74.701
definition, Sec. 74.701(k) of our current rules defines a low power TV
station as: ``[a] station . . . that may retransmit the programs and
signals of a television broadcast station, may originate programming in
any amount greater than 30 seconds per hour . . . and, subject to a
minimum video program service requirement, may offer services of an
ancillary or supplementary nature, including subscription-based
services.'' We propose to apply this recently updated definition of an
LPTV station for purposes of determining which stations are eligible
for Class A status under the LPPA. We invite comment on this approach.
12. Consistent with this definition, we tentatively conclude that
eligibility for Class A status under the LPPA should be limited to LPTV
stations, and that television translator stations should not be
eligible. Translator stations ``operate for the purpose of
retransmitting the programs and signals of a television broadcast
station, without significantly altering any characteristic of the
original signal other than its frequency and amplitude,'' and thus, are
not permitted to ``originate programming'' as defined in the rules.
Given this limitation, for the following reasons we tentatively
conclude that ``television broadcast translator stations'' as defined
under our rules would not be able to satisfy the locally produced
programming eligibility requirement of the LPPA. While the LPPA does
not expressly require that the locally produced content aired by a low
power station be produced by that station itself, we tentatively
conclude that translators would be unlikely to qualify under the
locally produced programming provisions of the LPPA due to the manner
in which translators operate.
[[Page 22983]]
Translator stations are generally located outside their primary
station's noise limited contour in order to bring service to remote
areas. Thus, while a translator's primary station(s) may be airing
programming produced in the primary station's noise limited contour, it
is unlikely that programming was locally produced within the noise
limited contour of the translator. For similar reasons, the Commission
specifically found that translator stations were not eligible for Class
A status under the CBPA, and there is no indication that Congress
intended to be more inclusive in the LPPA. In addition, we tentatively
conclude that the LPPA's inclusion of reference to ``low power''
stations and failure to specifically reference ``translator'' stations
can be read as an intentional inclusion of the former and exclusion of
the latter and is the best reading of the statute. We invite comment on
this tentative conclusion that translator stations should not be
eligible for Class A status under the LPPA.
13. We tentatively conclude that LPTV stations that have not
completed their digital transition are not eligible to apply for Class
A designation. A small number of analog LPTV stations have not yet
completed construction of their digital facilities and have been
granted additional time to do so. Since analog television operations
are no longer permitted, these LPTV stations are silent and must remain
silent until such time as they complete construction of their digital
facilities. The LPPA requires that, to be eligible to convert to Class
A status, an LPTV station must meet the statutory programming
requirements for the 90-day period preceding the date of enactment of
the LPPA. As any LPTV station that was silent during this period would
not meet these requirements, we tentatively conclude that such stations
would not be eligible to apply for Class A designation under the LPPA.
We invite comment on this interpretation.
2. Eligibility Criteria
14. We propose to codify in our rules the eligibility criteria set
forth in the LPPA. As noted above, the LPPA sets forth eligibility
criteria for stations seeking Class A designation that are similar to
the eligibility criteria under the CBPA. Specifically, the LPPA
provides that the Commission ``may approve'' an application submitted
by an LPTV station under the LPPA if the station, during the 90-day
period preceding the date of enactment of the LPPA, meets the same
requirements in 47 U.S.C. 336(f)(2) applicable to stations that
qualified for Class A status under the CBPA, ``including the
requirements . . . with respect to locally produced programming.''
Thus, to qualify for Class A status in the 90 days preceding the LPPA's
January 5, 2023 effective date, an LPTV station must have met the
following requirements between October 7, 2022 and January 5, 2023 (the
90 day eligibility period): (1) the station must have broadcast a
minimum of 18 hours per day; (2) the station must have broadcast an
average of at least 3 hours per week of programming that was produced
within the market area served by such station, or the market area
served by a group of commonly controlled LPTV stations that carry
common local programming produced within the market area served by such
group; and (3) the station must have been in compliance with the
Commission's requirements applicable to LPTV stations. In addition,
from and after the date of its application for a Class A license, the
station must be in compliance with the Commission's operating rules for
full power television stations.
15. Locally Produced Programming. In implementing the LPPA, we
propose to define ``locally produced programming'' in the same manner
as our rules that apply to stations that converted to Class A status
pursuant to the CBPA. As noted above, the LPPA requires that, during
the 90 day eligibility period, LPTV stations must have broadcast an
average of at least 3 hours per week of programming produced within the
market area served by the station. Section 73.6000 of our rules
contains a definition of ``locally produced programming'' applicable to
Class A stations. In the Part 73 Amendment NPRM, the Commission has
proposed to update its definition of locally produced programming for
Class A stations in Sec. 73.6000 of the rules, as ``programming
produced within the predicted noise-limited contour . . . of a Class A
station broadcasting the program or within the contiguous predicted
noise-limited contours of any of the Class A stations in a commonly
owned group.'' We propose to apply the definition in Sec. 73.6000 of
the rules, including any future changes, to define ``programming
produced within the market area served by the station'' for purposes of
determining eligibility for Class A status under section
2(c)(2)(B)(i)(I) of the LPPA and invite comment on this approach.
16. Operating Requirements. We tentatively conclude that all
applicants seeking to convert to Class A status under the LPPA be
required to certify that they have complied with the Commission's
requirements for LPTV stations, during the 90 day eligibility period.
As noted above, to qualify for Class A status under the LPPA, an LPTV
station must have been in compliance with the Commission's requirements
for LPTV stations during the 90 day eligibility period. We seek comment
on this tentative conclusion.
17. The LPPA requires that a station ``be in compliance with the
Commission's operating rules for full-power stations'' beginning on the
date of its application for a Class A license and thereafter. In the
Class A Order that implemented the CBPA, the Commission determined
certain part 73 rules would apply to applicants for Class A status and
to stations awarded Class A licenses. For example, existing Class A
stations must comply with children's programming and online public
inspection file regulations. We propose to take this same approach with
respect to stations that seek to convert to Class A status pursuant to
the LPPA. We propose that applicants for Class A designation pursuant
to the LPPA, and Class A stations awarded licenses pursuant to that
statute, will be required to comply with the same part 73 rules applied
in implementing the CBPA. We invite comment on this approach.
18. We also propose that all stations that receive a Class A
license under the LPPA must comply with all Class A regulations. LPPA
section (2)(c)(3)(B) provides that a Class A license granted pursuant
to the rules established under the LPPA shall ``require the low power
TV station to remain in compliance with [Sec. (2)(c)(2)(B) of the
LPPA] during the term of the license.'' This includes, among other
things, the requirements to broadcast a minimum of 18 hours per day and
to broadcast an average of at least three hours per week of locally
produced programming each quarter. Beyond the requirements specified in
Sec. (2)(c)(2)(B) of the LPPA, we also tentatively conclude there is
no reason to exempt LPTV stations converting to Class A status under
the LPPA from other rules applicable to LPTV stations converting to
Class A status under the CBPA, given that the service requirements in
the LPPA closely track those in the CBPA and that the stations will be
converting to Class A status and so it makes sense for Class A rules
generally to apply. We seek comment on this approach.
19. We also seek comment on whether the requirement to comply with
the Class A eligibility requirements set forth in LPPA section
(2)(c)(2)(B) should run from when an LPTV station's application is
submitted. To that end, we note that LPPA section 2(c)(2)(B)(i)(II)
states that the ``Commission may approve an application [for Class A
status] if the
[[Page 22984]]
low power TV station submitting the application--satisfies--paragraphs
(b), (c), and (d) of 73.6001,'' which contains the requirements that
Class A stations broadcast a minimum of 18 hours per day and broadcast
an average of at least three hours per week of locally produced
programming each quarter. We seek comment on how to interpret the
statutory language providing that the station ``submitting the
application'' must ``satisfy'' these requirements. We note that this
requirement is distinct from the separate statutory obligation to meet
the eligibility requirements during the 90 day eligibility period of
October 7, 2022 to January 5, 2023. Should this language be interpreted
to require the applicant for a Class A license to satisfy the
requirements of 47 CFR 73.6001(b) through (d) from the time it submits
its application? Indeed, because LPPA section (2)(c)(3)(B) applies
these requirements after a Class A license is granted, would LPPA
section 2(c)(2)(B)(i)(II) be rendered superfluous if we did not
interpret it to apply these requirements from the time the Class A
application is submitted?
20. License Application and Documentation. In order to assist with
the orderly processing of all applications received under the LPPA, we
propose that an applicant will be required to certify that its station
meets the operating and programming requirements of the LPPA.
Specifically, with respect to the statutory requirement that stations
air 18 hours of programming each day during the 90 day eligibility
period, we propose to require applicants to certify that the station
was fully operational for at least 18 hours on each day during the 90
day eligibility period. In addition, with respect to the requirement
that stations air three hours of locally produced programming, we
propose to require an applicant to certify that it was providing such
programming during each day during the 90 day eligibility period. We
invite comment generally on this approach.
21. We tentatively conclude that an applicant be required to
submit, as part of its application, documents to support its
certification that it meets the operating and programming requirements
of the LPPA. We seek comment on the kind of documentation that we
should require stations to submit in support of their application in
order to ensure orderly processing. Should we require specific
documents or categories of documentation or should we provide examples
of the kinds of documentation that stations could provide thereby
giving stations more latitude with respect to the types of
documentation they may use to support their application? To support its
certification that the station was on the air at least 18 hours each
day during the eligibility period, a station could, for example, submit
electric power bills from a third party vendor that specify the station
or station's broadcast facility location for the designated period,
and/or copies of any program guides, EAS logs, or agreements to
purchase and air programming on the specified station in an amount
sufficient to satisfy this programming requirement. If the station was
silent during any portion of this period of time, we will require the
station to identify any silent periods and the reasons why the station
was silent. To support its certification that a station aired three
hours of locally produced programming, the station could, for example,
submit copies of any agreements to purchase and air such programming
and/or identify the producer of any programming it claims is locally
produced, the location where the programming was produced, and records
of advertisements aired during locally produced programming showing
that the programming was in fact aired. We invite commenters to provide
examples of other kinds of documentation a station could provide to
support its certifications that it meets the eligibility requirements
of the LPPA. In order to expedite processing, and ensure the Commission
maximizes opportunities for applicants, Commission staff may request
additional documentation if necessary during consideration of the
application.
22. Alternative Eligibility Criteria. As discussed above, the LPPA
provides that the Commission may approve an application for Class A
status if the application satisfies Sec. 336(f)(2) of the
Communications Act of 1934, codified as part of the CBPA. The CBPA
provided the Commission with additional discretion in evaluating
applicants for Class A status if ``the Commission determines that the
public, interest, convenience, and necessity would be served by
treating the station as a qualifying low-power television station for
purposes of this section, or for other reasons determined by the
Commission.'' In the Class A Order, the Commission determined that it
would allow deviation from the strict statutory eligibility criteria in
the CBPA ``only where such deviations are insignificant or when we
determine that there are compelling circumstances, and that in light of
those compelling circumstances, equity mandates such a deviation.'' The
Commission gave as an example of such compelling circumstances ``a
natural disaster or interference conflict which forced the station off
the air during the 90 day period before enactment of the CBPA.''
23. We tentatively conclude that we should apply this same approach
in the context of the LPPA. Accordingly, we propose to allow deviation
from the strict statutory eligibility criteria under the LPPA only
where deviations are insignificant or where there are compelling
circumstances such that equity mandates a deviation. We tentatively
conclude that the LPPA provides precise and limited eligibility
criteria and, except in very limited circumstances, we are not inclined
to expand the specific qualifying criteria beyond that identified in
the statute. We invite comment on this approach.
3. Interference Requirements
24. We tentatively conclude that LPTV stations proposing to convert
to Class A status under the LPPA must demonstrate compliance with the
interference protection standards set forth in Sec. 336(f)(7) of the
Communications Act of 1934, with the exception of those provisions that
are now obsolete given the transition of all television stations from
analog to digital operations. The LPPA provides that the Commission may
approve an application by an LPTV station if it ``demonstrates to the
Commission that the Class A station for which the license is sought
will not cause any interference described in Sec. 336(f)(7) of the
Communications Act of 1934 . . . .'' Section 336(f)(7) describes the
interference protection requirements for LPTV stations that sought
Class A status under the CBPA vis-[agrave]-vis full power television,
LPTV, TV translator, and land mobile stations. Because the CBPA was
adopted in 1999, Sec. 336(f)(7) refers to a number of interference
protection standards that are now obsolete.
25. We tentatively conclude that LPTV stations proposing to convert
to Class A status must satisfy the requirement in section
2(c)(2)(B)(ii) of the LPPA by demonstrating compliance with the same
operating rules and policies, including interference requirements,
applicable to existing digital Class A licensees, including
requirements that were adopted subsequent to the enactment of Sec.
336(f)(7). When LPTV stations converted to Class A status pursuant to
the CBPA in 2000, they began their primary status operations as analog
stations. In 2004, the Commission adopted rules and policies to allow
LPTV and Class A stations to operate with digital facilities. In 2011,
the Commission established a hard deadline
[[Page 22985]]
of September 1, 2015 for all Class A stations to terminate analog
operations. With very limited exceptions, all existing LPTV stations
are now operating in digital format. Our rules applicable to Class A
stations set forth the interference protection Class A stations now
must provide to digital full power, Class A, LPTV, and TV translator
stations, and supersede certain interference requirements referenced in
the CBPA, as that statute was adopted prior to the digital transition.
We recognize that the LPPA specifically referenced the interference
requirements ``described in Sec. 336(f)(7).'' Nonetheless, we
tentatively find that this does not evince an intent on the part of
Congress to compel applicants, in fulfilling the requirements under the
LPPA, to demonstrate compliance with outdated and superseded
interference rules referenced in Sec. 336(f)(7). Rather, we
tentatively find that by requiring applicants to demonstrate compliance
with current interference requirements applicable to Class A stations,
we will ensure that the purpose of the statutory provision--i.e., to
ensure that a Class A station will not cause interference--will be
served because the licensed or previously proposed facilities of full
power, low power and TV translator, and land mobile stations will be
afforded interference protection when LPTV stations convert to Class A
status pursuant to the LPPA. Accordingly, we tentatively conclude that
our rules applicable to existing Class A stations, including
interference requirements, will apply to stations that convert to Class
A status pursuant to the LPPA. We seek comment generally on this
analysis and tentative conclusion.
26. Protection of Full Power Television Stations. We tentatively
conclude that Class A-eligible LPTV stations need not comply with
certain CBPA interference showings that are obsolete due to the
completion of the digital transition. These obsolete provisions would
include the following: (1) prohibition on causing interference to the
predicted Grade B contour of an analog full power television station or
a modification application filed on or before November 1, 1999; (2)
protection of the original DTV Table of Allotments, which has now been
superseded and deleted from the Commission's rules; and (3) two
additional requirements that are both obsolete due to the passage of
time. We seek comment on our tentative conclusion.
27. Further, we tentatively conclude that Class A-eligible stations
seeking primary status under the LPPA must demonstrate that they do not
cause interference to areas protected under our rules, including any
future updates to those rules. Section 336(f)(7)(A)(ii)(II) of the CBPA
required LPTV stations to demonstrate that they did not cause
interference ``to the areas protected in the Commission's digital
television regulations (47 CFR 73.622(e) and (f)).'' We recently
proposed updates to these requirements. Accordingly, we tentatively
conclude that these rule changes to Sec. Sec. 73.622(e) and 73.622(f),
if adopted, will also apply to Class A-eligible LPTV stations seeking
primary status under the LPPA and seek comment on this tentative
conclusion.
28. Protection of Low Power and Television Translator Stations. We
tentatively conclude that an LPTV station that files an application to
convert to Class A status under the LPPA will be required to protect
LPTV and TV translator stations. The LPPA references the CBPA in
requiring the protection of previously authorized LPTV/TV stations, as
well as previously filed applications for these facilities. We note
that when the CBPA was implemented, the Commission required Class A
stations to protect ``the LPTV and TV translator protected contours on
the basis of the standards given in Sec. 74.707, i.e., on the basis of
compliance with certain desired-to-undesired signal strength ratios of
the LPTV rules.'' We recently deleted this provision. The digital-to-
digital interference protection standards are now found in Sec. Sec.
74.792 and 74.793. We tentatively conclude that LPTV stations that file
applications to convert to Class A station under the LPPA will be
required to make an absence of interference showing using these updated
digital-to-digital rules, and seek comment on this tentative
conclusion.
29. Protection of Land Mobile Stations. We tentatively conclude
that an LPTV station that converts to a Class A station under the LPPA
will continue to be required to protect land mobile stations. LPTV
stations are currently required to protect land mobile stations.
Section 336(f)(7)(C) of the CBPA provides that the Commission may not
grant a Class A license or modification of license where the Class A
station will cause interference within the protected contour of land
mobile stations. This protects land mobile radio services which have
been allocated the use of TV channels 14-20 in certain urban areas of
the country, as well as channel 16 in the New York City metropolitan
area. In implementing the CBPA, the Commission implemented these
protections in the manner prescribed in Sec. 74.709 of the LPTV rules.
These rules have not changed. Thus, we tentatively conclude that LPTV
stations that file applications to convert to Class A station under the
LPPA will be required to make an absence of interference showing using
these land mobile protection rules.
4. Designated Market Area
30. We seek comment on multiple issues involving the LPPA's
requirements related to Designated Market Areas (DMAs). The LPPA
requires that an LPTV station must demonstrate that as of January 5,
2023, the station ``operates in a Designated Market Area with not more
than 95,000 television households.'' The LPPA further states that DMA
means ``(A) a [DMA] determined by Nielsen Media Research or any
successor entity; or (B) a [DMA] under a system of dividing television
broadcast station licensees into local markets using a system that the
Commission determines is equivalent to the system established by
Nielsen Media Research . . .'' We seek comment on: (1) the meaning of
the word ``operates'' in the LPPA, and (2) whether we should adopt the
Nielsen Local TV Station Information Report (Local TV Report) for
determining DMAs or an equivalent alternative local market system.
31. In limiting eligibility to LPTV stations operating in a DMA or
an equivalent with not more than 95,000 television households (a
``qualifying DMA''), Congress apparently intended to convey the
benefits of primary Class A status under the LPPA to small market LPTV
stations that reach a relatively small number of potential viewers.
``Operate'' in the LPPA could mean that an LPTV station's protected
contour extends into the geographic area of a qualifying DMA. It could
also mean that the station's transmission facilities, which includes
the tower or building on which its antenna is mounted, are located
within the qualifying DMA. We tentatively conclude that the LPTV
station applying for Class A status under the LPPA must demonstrate
that its transmission facilities are located within the qualifying DMA.
We believe this interpretation is consistent with the apparent
Congressional intent to limit Class A status to stations currently
operating in small markets. We also propose that in order to make the
necessary demonstration, applicants be required to provide the
following information, as it existed as of the enactment date of the
LPPA, January 5, 2023: (1) the coordinates of the station's
transmission facilities (i.e., the tower or building on which its
antenna is mounted); (2) the city/town/village/or other municipality
and county in which the transmission facilities are located;
[[Page 22986]]
and (3) the qualifying DMA in which the station's transmission
facilities are located. We seek comment on this proposal.
32. We propose to use the Nielsen Local TV Station Information
Report (Local TV Report) in determining the DMA where the LPTV
station's transmission facilities were located as of January 5, 2023
consistent with the Commission's recent Nielsen DMA Determination
Update Order, and seek comment on this proposal. In November 2022, we
adopted Nielsen's monthly Local TV Report as the successor publication
to Nielsen's Annual Station Index and Household Estimates and
determined that the Local TV Report should be used to define ``local
market'' as stated in other statutory provisions and rules relating to
carriage, including retransmission consent, distant signals,
significantly viewed, and field strength contour. The record in that
proceeding indicated that the Local TV Report is the sole source of
information regarding DMA determinations and that there is no company
currently accredited to determine the local market area of broadcast
television stations.
33. As noted above, the LPPA also permits the Commission to adopt
an equivalent alternative local market system to Nielsen's DMA. The
LPTV Broadcasters' Association (LPTVBA) requests that the Commission
use, for purposes of the LPPA, Metropolitan Statistical Areas (MSAs)
and Rural Service Areas (RSAs) as defined by the Office of Management
and Budget (OMB). The general concept of an MSA is that of a core area
containing a substantial population nucleus, together with adjacent
communities having a high degree of economic and social integration
with that core. The Census Bureau does not actually define ``rural.''
Rather, rural areas include all geographic areas that are not
classified as urban. LPTVBA does not specify or explain which areas,
which are based on Census Bureau data, it would have us use. We also
note that these classifications, which are based on population, appear
to have nothing to do with market assignment information or determining
television broadcast station markets, unlike Nielsen DMAs. We seek
comment on LPTVBA's position and on any alternative means of
delineating DMAs using a system of dividing television broadcast
station licensees into local markets that is equivalent to the system
established by the Nielsen Media Research. Any commenter suggesting an
alternative publication to the Nielsen Local TV Report should identify
the publication as well as the similarities and differences in
assigning stations to television markets, and explain why the
alternative publication is preferable.
5. License Standards (Ongoing Eligibility Requirements)
34. The LPPA provides that licenses issued to stations that convert
to Class A status are subject to full power television station license
terms and renewal standards, with certain exceptions, and that such
licensees are required to remain in compliance with the LPPA's
eligibility requirements for the term of their Class A license. We
propose to implement these provisions as discussed below.
35. As discussed above, we propose to require that converting
stations comply with the Commission's operating rules for full power
stations. We invite comment on this proposal.
36. Next, we propose to require that these converting stations
remain in compliance with eligibility requirements set forth above. As
described in section III.B.2. above, such stations must continue,
during the term of the Class A license, to: (1) broadcast a minimum of
18 hours of programming per day, and (2) broadcast an average of at
least 3 hours per week of ``locally produced programming,'' as defined
above. In addition, the station must continue to comply with the
interference requirements adopted in this proceeding. We invite comment
on this proposal.
37. Finally, we believe that in order to fulfill the continuing
compliance mandate, stations that convert to Class A status must
continue to operate in DMAs with not more than 95,000 television
households in order to maintain their Class A status. We invite comment
on this proposed interpretation. Also, under our proposal, a station
that converted to Class A pursuant to the LPPA would no longer be
eligible to retain Class A status if the population in its DMA later
grows to more than 95,000 television households and propose to consider
compliance with this element during the license renewal process. We
seek comment on this proposal. What if Nielsen or another equivalent
entity were to merge a qualifying DMA into another DMA such that the
combined DMA has more than 95,000 television households? How likely is
this to occur? Should a station affected by a decision of Nielsen to
combine DMAs for purposes of the station's Class A eligibility under
these proposed rules be allowed to file a complaint with the FCC and if
so what procedure should be implemented to consider such challenges?
What if the boundaries of a DMA are changed such that the number of TV
households in the DMA increases to a number above the 95,000 TV
household threshold under the LPPA? Should our interpretation of the
LPPA DMA requirement depend on whether the station itself initiates a
move to a non-qualifying DMA, or whether the change is beyond the
station's control?
C. Application Process
38. Applications for Class A Status. We propose to evaluate Class A
status to eligible LPTV stations as a modification of the station's
existing license. We propose that, for purposes of the LPPA, Class A
applications be limited to the conversion of existing facilities as
they exist at the time of application, without consideration of
modifications to those facilities. We tentatively conclude that this
approach is consistent with the limited opportunity intended by the
LPPA. It will also allow expeditious consideration of all applications,
and will eliminate delays that could arise from the possibility of
mutual exclusivity between a Class A conversion application and other
licensed full power or Class A facilities, were we to entertain license
modifications during the application window. A licensed LPTV station
holding a construction permit to modify its facilities will either need
to license those permitted facilities before applying to convert to
Class A status, or may apply for a modification after the Commission
has processed the applications from the window. We invite comment on
this approach.
39. When implementing the CBPA, the Commission required stations
applying for Class A status to provide local public notice of
applications for Class A statues ``since the nature of the underlying
service is changing from secondary to primary service.'' We tentatively
conclude for the same reason that local public notice of applications
pursuant to the LPPA should also be required. We seek comment on this
tentative conclusion.
40. Application Form. We propose that an application for
modification of the LPTV station's existing license to convert to Class
A status be filed using FCC Form 2100, Schedule F. We propose to
require that such applications be filed electronically. Effective March
2, 2023, the filing fee for an application to convert to Class A
designation is $425. We invite comment on these matters.
[[Page 22987]]
D. TV Broadcast Incentive Auction, Post-Auction Transition, and
Reimbursement
41. The LPPA provides that it may not affect the Commission's work
related to the Broadcast Incentive Auction. In 2012, Congress passed
the Spectrum Act that authorized the Commission to reorganize the
ultra-high frequency (UHF) band using a two-sided incentive auction
that reallocated broadcast television spectrum for mobile broadband
services. The post-incentive auction transition period ended on July
13, 2020, by which time full power and Class A television stations that
were reassigned to new channels were required to vacate their pre-
auction channels. Although LPTV stations were not eligible to
participate in the incentive auction, some LPTV stations were displaced
as a result of the reorganization of broadcast spectrum, and the
Commission held a special displacement window to allow such LPTV
stations to request construction permits for new channels in the
smaller broadcast television band. The Spectrum Act also requires the
Commission to reimburse full power and Class A broadcast television
licensees for costs reasonably incurred in relocating to new channels
assigned in the repacking process. In 2018, Congress adopted the
Reimbursement Expansion Act (REA), directing the Commission also to
reimburse costs reasonably incurred by a eligible LPTV stations
consistent with authorizations awarded in the special displacement
window. Reimbursement of eligible relocation expenses is ongoing.
42. Given that the transition and reimbursement programs have
established rules and procedures and that substantial progress has been
made toward completion of the reimbursement process, we tentatively
conclude that nothing in the LPPA or in implementation of the LPPA with
a change in a station's status from LPTV to Class A, or in the
proposals herein, can or will affect the Commission's work related to
the Broadcast Incentive Auction. We seek comment on this tentative
conclusion.
E. Digital Equity and Inclusion
43. Finally, the Commission, as part of its continuing effort to
advance digital equity for all, including people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, invites comment on any
equity-related considerations and benefits (if any) that may be
associated with the proposals and issues discussed herein.
Specifically, we seek comment on how our proposals may promote or
inhibit advances in diversity, equity, inclusion, and accessibility, as
well the scope of the Commission's relevant legal authority.
F. Procedural Matters
44. Ex Parte Rules--Permit-But-Disclose. The proceeding this NPRM
initiates shall be treated as a ``permit-but-disclose'' proceeding in
accordance with the Commission's ex parte rules.\1\ Persons making ex
parte presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days
after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations
are reminded that memoranda summarizing the presentation must (1) list
all persons attending or otherwise participating in the meeting at
which the ex parte presentation was made, and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda, or other filings in the proceeding, the presenter may
provide citations to such data or arguments in his or her prior
comments, memoranda, or other filings (specifying the relevant page
and/or paragraph numbers where such data or arguments can be found) in
lieu of summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with rule 1.1206(b).
In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding, and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
---------------------------------------------------------------------------
\1\ 47 CFR 1.1200 et seq.
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45. Filing Requirements--Comments and Replies. Pursuant to
Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415,
1.419, interested parties may file comments and reply comments on or
before the dates indicated on the first page of this document. Comments
may be filed using the Commission's Electronic Comment Filing System
(ECFS). See Electronic Filing of Documents in Rulemaking Proceedings,
63 FR 24121 (1998).
46. Electronic Filers: Comments may be filed electronically using
the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
47. Paper Filers: Parties who choose to file by paper must file an
original and one copy of each filing.
48. Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
49. Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
50. U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 45 L Street NE, Washington, DC 20554.
51. Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
52. During the time the Commission's building is closed to the
general public and until further notice, if more than one docket or
rulemaking number appears in the caption of a proceeding, paper filers
need not submit two additional copies for each additional docket or
rulemaking number; an original and one copy are sufficient.
53. Regulatory Flexibility Act. The Regulatory Flexibility Act of
1980, as amended (RFA), requires that an agency prepare a regulatory
flexibility analysis for notice and comment rulemakings, unless the
agency certifies that ``the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' Accordingly, we have prepared an Initial Regulatory
Flexibility Analysis (IRFA) concerning the possible impact of potential
rule and/or policy changes contained in this NPRM on small
[[Page 22988]]
entities. The IRFA is set forth in Appendix B.
54. Paperwork Reduction Act. This document proposes new or modified
information collection requirements. The Commission, as part of its
continuing effort to reduce paperwork burdens and pursuant to the
Paperwork Reduction Act of 1995, Public Law 104-13, invites the general
public and the Office of Management and Budget (OMB) to comment on
these information collection requirements. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), we seek specific comment on how we might further
reduce the information collection burden for small business concerns
with fewer than 25 employees.
55. People with Disabilities. To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to [email protected] or call the
Consumer and Governmental Affairs Bureau at (202) 418-0530.
56. Additional Information. For additional information on this
proceeding, contact Kim Matthews, [email protected], of the Policy
Division, Media Bureau, (202) 418-2154, or Joyce Bernstein,
[email protected], of the Video Division, Media Bureau, (202)
418-1647.
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(RFA), the Commission has prepared this Initial Regulatory Flexibility
Analysis (IRFA) concerning the possible significant economic impact on
small entities by the policies and rules proposed in the Notice of
Proposed Rulemaking (NPRM). Written public comments are requested on
this IRFA. Comments must be identified as responses to the IRFA and
must be filed by the deadlines for comments provided on the first page
of the NPRM. The Commission will send a copy of the NPRM, including
this IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (SBA). In addition, the NPRM and IRFA (or summaries
thereof) will be published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
The Commission initiates this rulemaking proceeding to implement
the Low Power Protection Act (LPPA or Act), as enacted on January 5,
2023. The LPPA provides certain low power television (LPTV) stations
with a ``limited window of opportunity'' to apply for primary spectrum
use status as Class A television stations. The NPRM also seeks comment
on how to implement the window consistent with Congressional direction.
We tentatively conclude that the application window will be limited
to the one year application window contemplated by the Act, and that an
application filed for Class A status must demonstrate that the LPTV
station operated in a Designated Market Area (DMA) with not more than
95,000 television households on January 5, 2023. We also tentatively
conclude that LPTV stations that convert to Class A status under the
LPPA must comply with the interference protection standards set forth
in Sec. 336(f)(7) of the Communications Act of 1934, with the
exception of those provisions that are now obsolete given the
transition of all television stations from analog to digital
operations. We propose to apply the Commission's recently updated
definition of an LPTV station for purposes of determining which
stations are eligible for Class A status under the LPPA and to codify
in our rules the eligibility criteria set forth in the LPPA. We also
propose to implement provisions of the LPPA which provide that licenses
issued to stations that convert to Class A status are subject to full
power television station license terms and renewal standards, with
certain exceptions, and that such licensees are required to remain in
compliance with the LPPA's eligibility requirements for the term of
their Class A license. We propose to evaluate Class A status to
eligible LPTV stations as a modification of the station's existing
license. We seek comment on our tentative conclusion that nothing in
the LPPA, or in the proposals in the NPRM, affects the Commission's
work related to the Broadcast Incentive Auction. Lastly, we seek
comment on how our proposals may promote or inhibit advances in
diversity, equity, inclusion, and accessibility, as well the scope of
the Commission's relevant legal authority.
B. Legal Basis
The proposed action is authorized pursuant to Sec. Sec. 1, 2,
4(i), 4(j), 303, 307, 309, 311, and 336(f) of the Communications Act of
1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 303, 307, 309,
311, 336(f) and the Low Power Protection Act, Pub. L. 117-344, 136
Stat. 6193 (2023).
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA. Below, we
provide a description of such small entities, as well as an estimate of
the number of such small entities, where feasible.
Television Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting images together with
sound.'' These establishments operate television broadcast studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in turn
broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studio, from an affiliated
network, or from external sources. The SBA small business size standard
for this industry classifies businesses having $41.5 million or less in
annual receipts as small. 2017 U.S. Census Bureau data indicate that
744 firms in this industry operated for the entire year. Of that
number, 657 firms had revenue of less than $25,000,000. Based on this
data we estimate that the majority of television broadcasters are small
entities under the SBA small business size standard.
As of December 31, 2022, there were 1,375 licensed commercial
television stations. Of this total, 1,282 stations (or 93.2%) had
revenues of $41.5 million or less in 2021, according to Commission
staff review of the BIAKelsey Media Access Pro Online Television
Database (MAPro) on January 13, 2023, and therefore these licensees
qualify as small entities under the SBA definition. In addition, the
Commission estimates as of December 31, 2022, there were 383 licensed
noncommercial educational (NCE) television stations, 383 Class A TV
stations, 1,912 LPTV stations, and 3,122 TV translator stations. The
Commission, however, does not compile and otherwise does not have
access to financial information for these television broadcast stations
that would permit it to determine how many of these stations qualify as
small entities
[[Page 22989]]
under the SBA small business size standard. Nevertheless, given the
SBA's large annual receipts threshold for this industry and the nature
of these television station licensees, we presume that all of these
entities qualify as small entities under the above SBA small business
size standard.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
In this section, we identify the reporting, recordkeeping, and
other compliance requirements proposed in the NPRM and consider whether
small entities are affected disproportionately by any such
requirements. In assessing the cost of compliance for small entities,
at this time the Commission cannot quantify the cost of compliance with
the proposed rules that may be adopted. Further, the Commission is not
in a position to determine whether, if adopted, the proposals and
matters upon which we seek comment in the NPRM will require small
entities to hire professionals to comply. We expect the information we
receive in comments, including cost information where requested, to
help the Commission identify and evaluate relevant compliance matters
for small entities, including compliance costs and other burdens that
may result from potential changes discussed in the NPRM.
The LPPA requires that, to be eligible for Class A status, during
the 90 days preceding the date of enactment of the LPPA an LPTV station
must have broadcast a minimum of 18 hours/day and an average of at
least 3 hours per week of programming produced within the ``market
area'' served by the station and have been in compliance with the
Commission's requirements for LPTV stations. We propose to require that
small and other applicants seeking to convert to Class A status under
the LPPA be required to certify in their application for Class A status
that they have complied with these eligibility requirements during the
90 days preceding the January 5, 2023 enactment of the statute. We also
propose to require applicants to provide documentation as part of their
application supporting their certifications, and we propose that the
Commission staff could also request additional documentation if
necessary during consideration of the application.
Beginning on the date of its application for a Class A license and
thereafter, a station ``must be in compliance with the Commission's
operating rules for full-power stations.'' We propose to apply to small
and other applicants for Class A status under the LPPA, and to stations
that are awarded Class A licenses under that statute, all part 73
regulations except for those that cannot apply for technical or other
reasons. For example, Class A stations must comply with the
requirements for informational and educational children's programming,
the political programming and political file rules, and the public
inspection file rule. The NPRM invites comment on this proposed
approach.
The LPPA requires that a station that converts to Class A status
pursuant to the statute continue to meet the eligibility requirements
of the LPPA during the term of the station's Class A license. To be
eligible under the LPPA, in addition to other eligibility requirements,
section 2(c)(2)(B)(iii) of the Act requires an LPTV station must ``as
of the date of enactment'' of the LPPA operate in a DMA with not more
than 95,000 television households. Section 2(c)(3)(B) of the Act,
however, requires that stations that convert to Class A status under
the LPPA ``remain in compliance'' with paragraph (2)(B) ``during the
term of the license.'' We propose to interpret section 2(c)(3)(B) to
require that stations that convert to Class A status, including small
entities, remain in DMAs with not more than 95,000 television
households in order to maintain their Class A status, and invite
comment on this proposed interpretation. In addition, licensed Class A
stations must also continue to meet the minimum operating requirements
for Class A status. Licensees unable to continue to meet the minimum
operating requirements for Class A television stations, or that elect
to revert to low power television status, must promptly notify the
Commission, in writing, and request a change in status. The NPRM also
proposes that stations that convert to Class A status pursuant to the
LPPA comply with all rules applicable to existing Class A stations,
including interference requirements.
The NPRM proposes to require small and other stations seeking to
convert to Class A designation pursuant to the LPPA to submit an
application to the Commission within one year of the effective date of
the rules adopted in this proceeding. The NPRM invites comment on
whether the Commission should continue to accept applications to
convert to Class A status under the LPPA beyond the one-year
application period set forth in the statute and/or allow deviation from
the strict statutory eligibility criteria under the statute.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
The RFA requires an agency to describe any significant,
specifically small business, 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 and
reporting requirements under the rule for such 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 such small
entities.''
The NPRM seeks comment generally on its proposals implementing the
LPPA's statutory mandates. In one area that may have a significant
impact on small entities, the LPPA gives the Commission discretion to
determine that ``the public interest, convenience, and necessity would
be served'' by treating a station as a qualifying LPTV station, or that
a station should be considered to qualify for such status ``for other
reasons determined by the Commission.'' In light of this discretion,
the NPRM invites comment on whether the Commission should continue to
accept applications to convert to Class A status under the LPPA beyond
the one-year application period set forth in the statute and/or allow
deviation from the strict statutory eligibility criteria set forth in
the statute, particularly when potential applicants are not able to
file in a timely manner based on circumstances beyond their control.
The NPRM also considers whether the Commission should require small and
other applicants to submit specific documents to support certification
or whether we should give stations more latitude with respect to the
types of documentation they submit with their application. Providing
this flexibility may reduce the economic burden for small entities.
Another action we take in the NPRM which could reduce the economic
impact for small entities is to seek comment on whether the Commission
should deviate from our strict statutory eligibility criteria for small
and other applicants where deviations of insignificant or compelling
circumstance such as equity require a deviation. In determining how an
applicant will demonstrate whether they operate within a DMA required
by the LPPA, we seek comment on whether we should use the Nielsen Local
TV
[[Page 22990]]
Station Information Report (Local TV Report) or consider requests to
use other reputable alternative data sources to make this
determination. In the NPRM, we also invite comment on the all the
proposed approaches and on any alternatives, which will provide the
Commission additional information on possible steps that can be taken
to minimize any significant impact on small entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
57. Accordingly, it is ordered that, pursuant to the authority
found in Sec. Sec. 1, 2, 4(i), 4(j), 303, 307, 309, 311, and 336(f) of
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
154(j), 303, 307, 309, 311, 336(f), and the Low Power Protection Act,
Pub. L. 117-344, 136 Stat. 6193 (2023), this Notice of Proposed
Rulemaking is adopted.
58. It is further ordered that the Commission's Consumer and
Government Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy
of the Small Business Administration.
List of Subjects in 47 CFR Part 73
Television.
Federal Communications Commission.
Marlene Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 73 to read as
follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The Authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
2. Add Sec. 73.6030 to read as follows:
Sec. 73.6030 Low Power Protection Act.
(a) Definitions. For purposes of the Low Power Protection Act, a
low power television station's Designated Market Area (DMA) shall be
defined as the DMA where its transmission facilities (i.e., the tower
or building on which its antenna is mounted) are located. DMAs are
determined by Nielsen Media Research and published in the Nielsen Local
TV Station Information Report. A low power television station shall be
defined in accordance with Sec. 74.701(k).
(b) Eligibility Requirements. In order to be eligible for Class A
status under the Low Power Television Protection Act, low power
television licensees must:
(1) have been operating in a DMA with not more than 95,000
television households as of January 5, 2023;
(2) have been broadcasting a minimum of 18 hours per day between
October 7, 2022 and January 5, 2023;
(3) have been broadcasting a minimum of at least three hours per
week of locally produced programming between October 7, 2022 and
January 5, 2023;
(4) have been operating in compliance with the Commission's
requirements applicable to low power television stations between
October 7, 2022 and January 5, 2023;
(5) be in compliance with the Commission's operating rules for
full-power television stations from and after the date of its
application for a Class A license; and
(6) demonstrate that the Class A station for which the license is
sought will not cause any interference described in 47 U.S.C.
336(f)(7).
(c) Application Requirements. Applications for conversion to Class
A status must be submitted using FCC Form 2100, Schedule F within one
year beginning on the date on which the Commission issues notice that
the rules implementing the Low Power Protection Act takes effect. The
licensee will be required to submit, as part of its application,
documentation sufficient to support its certification that the licensee
meets the eligibility requirements for a Class A license under the Low
Power Protection Act.
(d) Licensing Requirements. A Class A television broadcast license
will only be issued under the Low Power Protection Act to a low power
television licensee that files an application for a Class A Television
license (FCC Form 2100, Schedule F), which is granted by the
Commission.
(e) Service Requirements. Stations that convert to Class A status
pursuant to the Low Power Protection Act are required to meet the
service requirements specified in Sec. 73.6001(b) through (d) of this
chapter for the term of their Class A license. In addition, such
stations must remain in compliance with the programming and operational
standards set forth in the Low Power Protection Act for the term of
their Class A license. In addition, such stations must continue to
operate in DMAs with not more than 95,000 television households in
order to maintain their Class A status.
(f) Other regulations. From and after the date of applying for
Class A status under the Low Power Protection Act, stations must comply
with the requirements applicable to Class A stations specified in
Sec. Sec. 73.6001(b) through (d) and 73.6026 of this chapter for the
term of their Class A license.
Except as otherwise provided in this paragraph (Sec. 73.6030), the
regulations in part 73, subpart J of the Commission's rules (Sec. Sec.
73.6000 through 73.6029) shall apply to stations that apply to convert,
and that convert, to Class A status pursuant to the Low Power
Protection Act. Stations that convert to Class A status pursuant to the
Low Power Protection Act must comply with the requirements applicable
to Class A stations specified in Sec. 73.6026 of this chapter for the
term of their Class A license.
[FR Doc. 2023-07660 Filed 4-13-23; 8:45 am]
BILLING CODE 6712-01-P