# Creation of Low Power Radio Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A00-2718 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** February 15, 2000 - **Citation:** 65 FR 7616 ## Text FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 11, 73 and 74 [MM Docket No. 99-25; FCC 00-19; RM 9208, 9242] Creation of Low Power Radio Service AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document establishes rules authorizing the operation of two new classes of low power FM (LPFM) radio stations. LP100 stations will operate at a maximum power of 100 watts and LP10 stations at a maximum power of 10 watts. The LPFM service will provide opportunities for new voices to be heard and will be implemented in a manner that best serves the public interest. DATES: Effective April 17, 2000. FOR FURTHER INFORMATION CONTACT: Julie Barrie, (202) 418-2130, Policy and Rules Division, Mass Media Bureau; Engineering Contact: Keith Larson, (202) 418-2600, Mass Media Bureau. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report and Order (“ R&O ”), FCC 00-19, adopted January 20, 2000; released January 27, 2000. The full text of the Commission's R&O is available for inspection and copying during normal business hours in the FCC Dockets Branch (Room TW-A306), 445 12 St. SW, Washington, DC. The complete text of this R&O may also be purchased from the Commission's copy contractor, International Transcription Services (202) 857-3800, 1231 20th St., NW, Washington, DC 20036. Synopsis of Report and Order I. Introduction 1. With this Report & Order , we authorize the licensing of two new classes of FM radio stations—one operating at a maximum power of 100 watts and one at a maximum power of 10 watts. Both types of stations, known as low power FM stations (LPFM), will be authorized in a manner that protects existing FM service. They will be operated on a noncommercial educational basis by entities that do not hold an attributable interest in any other broadcast station or other media subject to our ownership rules. Initially, only entities located in the communities the stations serve will be eligible to participate in this service. Even once this eligibility criterion is relaxed, we will grant a significant selection preference to locally-based applicants. We believe that the LPFM service authorized in this proceeding will provide opportunities for new voices to be heard and will ensure that we fulfill our statutory obligation to authorize facilities in a manner that best serves the public interest. 2. In establishing this new service, we are determined to preserve the integrity and technical excellence of existing FM radio service, and not to impede its transition to a digital future. In this regard, our own technical studies and our review of the record persuade us that 100-watt LPFM stations operating without 3rd-adjacent channel separation requirements will not result in unacceptable new interference to the service of existing FM stations. Moreover, imposing 3rd-adjacent channel separation requirements on LPFM stations would unnecessarily impede the opportunities for stations in this new service, particularly in highly populated areas where there is a great demand for alternative forms of radio service. We will not, therefore, impose 3rd-adjacent channel separation requirements. To avoid any possibility of compromising existing service, given the new nature of the LPFM service, we will impose separation requirements for low power with respect to full power stations operating on co-, 1st- and 2nd-adjacent and intermediate frequency (IF) channels. We believe that the rules we are adopting will maintain the integrity of the FM band and preserve the opportunity for a transition to a digital radio service in the future, while affording significant opportunities for new radio service. II. Issue Analysis A. Goals 3. The Notice of Proposed Rulemaking (NPRM) we adopted on January 28, 1999, (64 FR 7577, February 16, 1999) responded to petitions for rule making and related comments indicating substantial interest in, and public support for, increased citizens' access to the airwaves. In the year since we issued the NPRM, proposing rules authorizing the operation of new low power FM radio stations, we have received comments and letters from thousands of individuals and groups seeking licenses for new radio stations. Many of these comments, which will be discussed in greater detail below, included comprehensive engineering studies and valuable suggestions for service rules. These comments—from churches or other religious organizations, students, labor unions, community organizations and activists, musicians, and other citizens—reflect a broad interest in service from highly local radio stations strongly grounded in their communities. In authorizing this new service today, we enhance locally focused community-oriented radio broadcasting. 4. Our goal in creating a new LPFM service is to create a class of radio stations designed to serve very localized communities or underrepresented groups within communities. To that end, in the NPRM we proposed to establish two classes of low power FM radio service: a 1000-watt primary service and a 100-watt secondary service. We also sought comment on whether to establish a secondary class of stations operating between one and 10 watts. Commenters supporting low power radio generally argued for the creation of an LPFM service consisting of 100 or 10 watt stations. Most commenters did not support the creation of 1000 watt stations, arguing that the local aspect of LPFM service could be diminished by the size of the service area of such stations. Some commenters opposing the institution of 1000 watt service argued that 1000 watt stations present a greater interference potential than 100 or 10 watt stations. We also stated in the NPRM a hope that the largest of the proposed LPFM stations, at 1000 watts, could serve as a proving ground and an “entry” opportunity for new entrants into the full-power broadcasting industry. While we continue to view this as a worthwhile goal, we are persuaded by commenters that establishment of a 1000 watt service would not best fulfill our goals at the present time. Our establishment of a low power radio service consisting of two classes operating at maximums of 100 watts and 10 watts will allow licensees to serve their local communities, and will permit a greater number of new stations to be authorized, fostering a diversity of new voices on the airwaves. 5. Another goal expressed in the NPRM was that any new LPFM service specifically include the voices of community based schools, churches and civic organizations. In the NPRM, we raised the question of whether the LPFM service should include both commercial and noncommercial licensees or whether it should be entirely noncommercial. We also proposed that any stations of one to 10 watts be exclusively noncommercial, as we did not see commercial potential in stations with such limited service areas. Many of the commenters supporting LPFM strongly supported the establishment of an entirely noncommercial service. We tentatively concluded that auctions would be required if mutually exclusive applications for commercial LPFM facilities were filed, but noted that licenses for noncommercial educational or public broadcast stations are specifically exempted from auction by section 309(j). Given the overwhelming support for the establishment of a noncommercial service, and the tendency of auctions to skew the allocation of licenses away from noncommercial entities that are more likely to serve underrepresented sections of the community, we conclude that eligibility for LPFM licenses should be limited to noncommercial, educational entities and public safety entities. 6. Finally, in proposing the creation of a new LPFM service, we made clear that we will not compromise the integrity of the FM spectrum. We are committed to creating a low power FM radio service only if it does not cause unacceptable interference to existing radio service. The NPRM proposed that current restrictions on 3rd-adjacent channel operations might be eliminated in order to establish an LPFM service and also sought comment as to whether 2nd-adjacent channel separations are necessary. The modification of our existing rules concerning channel separations has generated extensive comment, as well as extensive engineering studies. Our Office of Engineering and Technology has conducted its own engineering tests, and has comprehensively reviewed the studies submitted by commenters. The rules adopted today reflect our well-considered conclusion that the elimination of 3rd-adjacent channel separation requirements for LPFM stations will not cause unacceptable levels of interference to existing radio stations. We recognize that the elimination of restrictions on both the 2nd-and 3rd-adjacent channels would create many more opportunities for community-based LPFM stations, but, given the ambiguity in the record on this issue and our commitment to ensure that the new LPFM service does not unacceptably interfere with existing radio services or impede a digital future for radio broadcasting, we must proceed cautiously. Accordingly, we will impose 2nd-adjacent channel separation requirements on LPFM stations. B. Classes of Service 7. Background. In the NPRM, the Commission proposed to authorize two classes of LPFM stations: (1) an LP1000 class which would be for primary stations operating with an effective radiated power (ERP) of between 500 and 1,000 watts and with an antenna height above average terrain (HAAT) up to 60 meters, and (2) an LP100 class which would be for stations operating on a secondary basis with between 50 and 100 watts ERP and with antennas up to 30 meters HAAT. We also sought comment on a very low power secondary LP10 service with an ERP between one and 10 watts. For each proposal, the Commission sought comment on the power levels associated with each class, the eligibility for such stations and the effects that each class may have on the full power radio service. 8. Comments. LP1000. Generally speaking, the proposal to authorize LP1000 stations generated the most controversy among the commenters. The topic was one of the few areas that generated opposition by both current full service broadcasters and low power radio proponents, although for different reasons. Commenters connected to the existing broadcast industry and the Association of Federal Communications Consulting Engineers (AFCCE) expressed their concerns regarding the large potential for interference posed by such operations. Additionally, AFCCE, as well as commenters that generally support the LP1000 proposal, expressed concerns that the service could preclude other lower powered LPFM stations. Most commenters supporting the LP1000 proposal proposed to limit LP1000 stations to rural areas or areas where sufficient spectrum could be found for both LP1000 and LP100 classes of service. 9. LP100. The proposal for LP100 stations generated the most positive comments. Commenters generally felt that LP100 stations would provide a reasonable coverage area while remaining small enough to continue focusing on local needs. From an engineering standpoint, various commenters, stated that the LP100 proposal appears “reasonable” and the proposed power range would allow the use of equipment, such as exciters and simple single bay antennas, that are already available. Not all comments were favorable, however. In general most negative comments shared the view stated by Disney that “[a] secondary LP100 service is undesirable for two reasons: first, because it would be difficult to establish a procedural and enforcement framework that would adequately protect FM broadcasters from interference; and second, because LP100 stations would create only marginal new radio listenership given the overriding levels of interference they would receive from full service stations.” 10. LP10. The Commission's proposal for an LP10 service operating with 10 watts or less elicited both highly favorable support and vociferous opposition. Most support for the proposal came from individuals and public interest groups. The comments in favor of LP10 generally viewed such a service as suitable for school campuses and local community organizations that wish to serve small areas and do not have the resources to construct and operate a higher-powered facility. Furthermore, given what they saw as a smaller potential for interference, these groups considered LP10 as the best option for crowded urban areas where higher-powered facilities are not likely to fit. On the other hand, most comments opposing the LP10 proposal came from broadcasters and individuals concerned that the Commission would not be able to enforce its rules against the numerous LP10 stations and that widespread interference would result. 11. Decision. We will not authorize 1000 watt stations. We will, however, authorize LP100 and LP10 stations, in two separate stages. First, we will license LP100 stations. These stations generally will provide coverage appropriate to community needs and interests expressed in the record in this rule making. The Mass Media Bureau is delegated authority to issue an initial and subsequent public notices inviting the filing of applications for LP100 stations on dates consistent with this Order and processing requirements. After a period of time sufficient to process the initial LP100 applications, the Mass Media Bureau is authorized to open a filing window for applications for LP10 stations, which can also serve very localized community needs. We adopt this sequential process in order to provide the larger (100 watt) stations with their greater service areas the first opportunity to become established. Given that some LP10 stations can be sited where LP100 stations cannot, we expect that opportunities will remain for LP10 after the initial demand for LP100 stations has been accommodated. Additionally, our own resources will be better spent first advancing service to relatively greater areas. 12. However, the record, including comments from both current broadcasters and public interest groups who were opposed to stations as large as 1000 watts, convinces us that licensing such a service is not in the public interest. As argued by commenters, 1000 watt stations may pose a greater interference concern for existing broadcasters and are not necessary to meet the most pressing and widespread demand for service expressed in the record. Moreover, LP1000 stations could have a significant preclusive effect on the licensing of LP100 and LP10 stations. Yet, these lower powered stations will permit many more opportunities for community-oriented service than would 1000-watt stations. 1. LP100 Service 13. LP100 stations will be authorized to operate with maximum facilities equivalent to 100 watts ERP at 30 meters (100 feet) HAAT and minimum facilities equivalent to 50 watts at 30 meters (100 feet). This would permit a maximum 1 mV/m contour (60 dBu) with a radius of approximately 5.6 kilometers (3.5 miles), subject to the radio environment. Depending on population density, such a station could serve hundreds or thousands of listeners. This service will allow LPFM licensees to broadcast affordably to communities of moderate size and interest groups that are geographically proximate, such as ethnic, professional, industry and student groups, and retirement neighborhoods. Spectrum rights and responsibilities for this service are addressed below. 2. LP10 Service 14. LP10 stations will operate at between one and 10 watts ERP and an antenna height of up to 30 meters (100 feet) HAAT. Such stations will produce a 60 dBu signal out to about 1.6 to 3.2 kilometers (1 to 2 miles) from the antenna site. Such stations will fit in some locations where LP100 stations cannot, due to separation requirements, and will provide groups with the opportunity to operate stations that reach smaller communities or groups with a common interest. Spectrum rights and responsibilities for this service are addressed below. C. Nature of Service and Licensees 1. Noncommercial Educational Service 15. Background. In proposing the creation of a new LPFM service, the Commission set forth its goals of encouraging diverse voices on the nation's airwaves and creating opportunities for new entrants in broadcasting. We raised the question of whether the service should be noncommercial in nature. We noted that while mutually exclusive commercial broadcast applications are subject to auction, certain noncommercial stations are specifically exempted from our auction authority. 16. Comments. Of those commenters supporting LPFM, an overwhelming majority endorsed establishing it as a noncommercial service. Commenters stressed the diversity that would be created by a noncommercial service, and argued that noncommercial radio is the best way to serve local communities. Other commenters, however, argued that low-power FM licensees should be available to both noncommercial and commercial licensees. 17. Decision. We will establish LPFM as a noncommercial educational service. Our goals in establishing this new service are to create opportunities for new voices on the air waves and to allow local groups, including schools, churches and other community-based organizations, to provide programming responsive to local community needs and interests. We believe that a noncommercial service is more likely to fulfill this role effectively than a commercial service. Commercial broadcast stations, by their very nature, have commercial incentives to maximize audience size in order to improve their ratings and thereby increase their advertising revenues. We are concerned that these commercial incentives could frustrate achievement of our goal in establishing this service: to foster a program service responsive to the needs and interests of small local community groups, particularly specialized community needs that have not been well served by commercial broadcast stations. We believe that noncommercial licensees, which are not subject to commercial imperatives to maximize audience size, are more likely than commercial licensees to serve small, local groups with particular shared needs and interests, such as linguistic and cultural minorities or groups with shared civic or educational interests that may now be underserved by advertiser-supported commercial radio and higher powered noncommercial radio stations. We note that commenters addressing this issue favored establishing LPFM as a noncommercial service by a substantial margin, though some have argued that a commercial service could provide ownership opportunities for new entrants. While we have considered the entrepreneurial opportunities that low power radio stations might create, we nonetheless conclude that a noncommercial service would best serve the Commission's goals of bringing additional diversity to radio broadcasting and serving local community needs in a focused manner. 18. Establishing LPFM as a noncommercial service will have the added benefit of giving us additional flexibility to assign licenses for this service in a manner that is most likely to place them in the hands of local community groups that are in the best position to serve local community needs. As a general matter, where mutually exclusive applications are filed for initial commercial licenses or construction permits, the licenses or permits must be awarded by competitive bidding pursuant to 47 U.S.C. 309(j). Licenses for noncommercial educational broadcast stations, as described in section 397(6) of the Act, however, are not subject to competitive bidding. Accordingly, having decided to establish LPFM as a noncommercial service, we will require that LPFM licensees comply with the eligibility requirements of section 397(6) of the Act. 19. Section 397(6) of the Act defines “noncommercial educational broadcast station” as a station which: (A) Under the rules and regulations of the Commission in effect on the effective date of this paragraph, is eligible to be licensed by the Commission as a noncommercial educational radio or television broadcast station and which is owned and operated by a public agency or nonprofit private foundation, corporation, or association; or (B) Is owned and operated by a municipality and which transmits only noncommercial programs for education purposes. Since the statute incorporates by reference the Commission's noncommercial eligibility rules, we must look to those rules in determining noncommercial eligibility under section 397(6) of the Act. The Commission's rules limit eligibility for noncommercial radio stations to nonprofit educational organizations that show that the station will be used “for the advancement of an educational program.” In applying this rule, the Commission has required that applicants be (a) a government or public educational agency, board or institution, or (b) a private, nonprofit educational organization, or (c) a nonprofit entity with a demonstrated educational purpose. We require that an applicant described in (a) or (b) have an educational program and demonstrate how its programming will be used for the advancement of that program. An applicant applying as (c) must specifically show (i) that it is in fact a nonprofit educational organization, (ii) that it has an educational objective, and (iii) how its programming will further that objective. 20. The requirement that NCE licensees provide programming that advances an educational objective may be satisfied by a variety of programs, including but not limited to “instructional programs, programming selected by students, bible study, cultural programming, in-depth news coverage, and children's programs such as Sesame Street that entertain as they teach.” We have also stated that “in order to qualify as an educational station, it is not necessary that the proposed programming be exclusively educational.” Given the latitude that entities have under our rules to qualify as NCEs, we do not believe that limiting eligibility for LPFM licenses to NCEs will unduly limit the range of groups that will be eligible to apply for LPFM licenses or the services that they can provide. 2. Public Safety and Transportation 21. Background. One appropriate use of LPFM stations is use by public safety or transportation organizations. Although the NPRM did not specifically raise this issue, a number of commenters proposed it. 22. Comments. We received a number of comments from public safety and transportation entities arguing that they would use LPFM stations to serve communities' need for public safety and traffic information. 23. Decision. The public safety and transportation commenters propose important uses for low power FM stations. LPFM stations could be used by state or local governments or other not-for-profit entities to provide traffic, weather, and other public safety information to local communities. The use of LPFM stations for public safety purposes will further our goal of better serving local communities. Certain of these entities already hold TIS or other broadcast licenses. We emphasize, however, that we will not exempt these licenses from the cross-ownership restrictions, described below, and will therefore require TIS licensees or other public safety or transportation licensees, to return their existing licenses upon the initiation of LPFM service. Thus, in addition to noncommercial, educational organizations, associations or entities as described above, public safety radio services used by state or local governments or not-for-profit organizations, as defined in 47 U.S.C. 309(j)(2)(A), will be eligible for LPFM licenses. D. Eligibility and Ownership 24. In order to further our diversity goals and foster local, community-based service, we will not allow any broadcaster or other media entity subject to our ownership rules to control or to hold an attributable ownership interest in an LPFM station or enter broadcast related operating agreements with an LPFM licensee. Additionally, to foster the local nature of LPFM service, we are limiting eligibility to local entities during the first two years LPFM licenses are available. We are also adopting a significant local ownership preference to be applied in resolving mutually exclusive applications. After local entities have had an opportunity to apply for construction permits, we will permit applications by qualified non-local applicants. After the first two years, we will permit multiple ownership of LPFM stations nationally, but only up to a maximum of 10 LPFM stations over a phased-in period. 25. Throughout this discussion we use the term “community” in a manner different from our traditional use of the term. Here, we use the term to refer to the very small area and population group that will make up the potential service area and audience of an LPFM station. Given the very small nature of LPFM service contours and prospective audiences, we do not expect LPFM service areas to be coincident with traditional political boundaries that we use to define communities in other contexts, such as our allocations process. 1. Cross-Ownership Restrictions 26. Background. In the NPRM, the Commission tentatively concluded that strict cross-ownership restrictions would be appropriate for low power radio. We proposed to prohibit any person or entity with an attributable interest in a broadcast station from having an ownership interest in any LPFM station in any market. We sought comment on whether the proposed strict cross-ownership restrictions would unnecessarily prevent individuals and entities with valuable broadcast experience from contributing to the success of the LPFM service. We also asked for comment on whether broadcasters with an attributable interest in broadcasting stations should be allowed to establish an LPFM station in a community where they do not have an attributable broadcast interest. We proposed to prohibit joint sales agreements, time brokerage agreements, local marketing or management agreements, and similar arrangements between full power broadcasters and low power radio entities. We also sought comment on whether the cross-ownership restriction should be extended to prevent common ownership of LPFM stations with cable systems, newspapers, or other mass media. 27. Comments. Several commercial broadcasters, educational broadcasters and individuals propose that cross ownership be allowed. Some commenters propose that current broadcasters be allowed to apply for LPFM stations, but that they should be required to give up their current station license prior to initiating operations at the LPFM station. Others propose that full service station owners not be barred, so long as the LPFM station is in another market. 28. Most commenters, however, oppose cross-ownership of full-service stations and LPFM stations. Most commenters also support the Commission's proposal to prohibit arrangements between full service broadcasters and LPFM entities, such as joint sales and time brokerage agreements. 29. Decision. We will prohibit common ownership of LPFM and any other broadcast station, including translators and low power television stations, as well as other media subject to our ownership rules. See: 47 CFR 73.3555, 76.501.) Thus, no broadcaster or other media entity, or any party with an attributable interest in them, can hold any attributable ownership interest in an LPFM licensee. One of the most important purposes of establishing this service is to afford small, community-based organizations an opportunity to communicate over the airwaves and thus expand diversity of ownership—a purpose inconsistent with common ownership of LPFM stations and existing broadcast facilities or other media interests. Moreover, many of the commenters' remarks favoring cross ownership are directed to the establishment of the proposed LP1000 service. These arguments regarding efficiencies and economies and competitive standing for stations that might compete commercially, however, are less applicable to noncommercial educational LP100 and LP10 stations. Similarly, our own expressed concern that cross-ownership limits could retard the development of low power radio by excluding entities with broadcast experience is less pressing in the absence of commercial 1000 watt stations. We conclude that our interest in providing for new voices to speak to the community, and providing a medium for new speakers to gain experience in the field, would be best served by barring cross-ownership between LPFM licensees and existing broadcast owners and other media entities. This prohibition is national and absolute in nature, unlike our existing cross-media ownership rules. Thus, for example, a newspaper cannot have an attributable interest in any LPFM station, regardless of whether the newspaper and LPFM station are co-located. We believe our interest in promoting diversity warrants such a strict approach. 30. We have also decided to prohibit operating agreements in any form, including time brokerage agreements, local marketing or management agreements, and similar arrangements, between full power broadcasters and LPFM broadcasters, or between two or more low power licensees. Many commenters strongly oppose allowing any form of operating agreement that would dilute new ownership in the low power service. We are concerned that such agreements too readily could undermine the strict cross-ownership restriction adopted by allowing an ineligible entity to program or manage an LPFM station. We see no harm, however, in permitting any existing licensee to apply for an LPFM station on the condition that it is otherwise qualified and it represents that it will divest its interest prior to commencement of LPFM operations. 2. Requirement That Applicant Be Community-Based 31. Background. In the NPRM, we sought comment on whether to establish a local residency requirement, although we were not inclined, at that time, to do so. We were concerned that a residency requirement would limit the pool of potential owners of low power stations and would deny opportunity to individuals and entities who resided in a location where no frequency is available, as there will not be low power frequencies available in every community. We also noted that we expected in the case of LP100s and LP10 stations, in particular, that the very nature of the stations would attract primarily local or nearby residents. We note that given our decision to restrict eligibility to noncommercial educational entities, the term “residency” is somewhat misleading. The issue now is whether we should limit applicants to entities based within the local community they wish to serve and, if so, how we should define whether or not they are community-based. Nonetheless, given that the NPRM and comments are cast in terms of residency, we will continue to use the term, but do so in the organizational or institutional sense noted here. 32. Comments. Most commenters support a requirement that LPFM licensees be locally based. They argue that local residents are more likely to be aware of issues of importance to the local community, and to gear their programming accordingly. On the other hand, many commenters oppose the imposition of a residency requirement. Some argue that a local residency requirement would be struck down under the standards set forth by Bechtel v. FCC. Some point out that a residency requirement is incompatible with a five-to ten-station national ownership cap. 33. Decision. We continue to be concerned about the potentially preclusive effect of a strict local “residency” requirement and do not believe that local sources are the only valuable sources of information and service. Nonetheless, this service is intended to respond to the highly local interests that are not necessarily being met by full-power stations. Furthermore, since LPFM will be a noncommercial educational service, we cannot rely on commercial market forces and business incentives to ensure that local needs are fulfilled. Given the small coverage of LPFM stations, and our intention that the particular needs and interests of these small areas be served, local familiarity is more significant than it might be for a station serving a larger area and population. We thus conclude, after consideration of the comments and on further reflection, that the disadvantages of imposing a requirement that applicants be community-based are outweighed by the benefits to be gained by maximizing the likelihood that LPFM stations are operated by entities grounded in the communities they serve. Accordingly, for the initial and subsequent windows opened within two years after the first filing window for LPFM service has been opened, all LPFM applicants must be based within 10 miles of the station they seek to operate. This means that the applicant must be able to certify that it or its local chapter or branch is physically headquartered, has a campus, or has 75 percent of its board members residing within 10 miles of the reference coordinates of the proposed transmitting antenna. We chose the 10-mile distance as proportionate to most stations' likely effective reach. We are concerned that a larger distance, in many areas of the country, could lead to ownership outside the bounds of the station's real community and the people they will actually serve. We are concerned that a smaller area would too severely and unduly restrict the opportunities presented by LPFM. An organization providing public safety radio services will be considered community-based in the area over which it has jurisdiction. Beginning two years after the first window for LPFM service has been opened, non-local applicants will be eligible to apply in subsequent windows for those classes of stations pursuant to public notices issued by the Mass Media Bureau. By this approach, we intend to make it more likely that local entities will operate this service. If no local entities come forward, however, we do not want the available spectrum to go unused. 34. We do not find convincing the argument made by some commenters that imposition of a local residency eligibility requirement here would pose the same legal problems as the “integration of ownership and management” factor formerly employed as a comparative criterion in the commercial broadcast service. While that comparative criterion was overturned as arbitrary and capricious in the Bechtel case, that case did not invalidate a preference for locally based applicants per se. Rather, it rejected a preference for a particular form of business organization—in which station owners worked more than a certain number of hours per week at their station—that had not been shown to provide superior service even though the preference had been used for many years. The preference for local licensees here, in contrast, rests on our predictive judgment that local entities with their roots in the community will be more attuned and responsive to the needs of that community, which have heretofore been underserved by commercial broadcasters. We believe that local residence should carry particular weight here because we envision LPFM as a uniquely local service designed to serve local community needs. We note that while the court invalidated the integration criterion in the Bechtel decision, it recognized that an applicant who is familiar with the community is likely to be aware of its special needs. 35. Furthermore, we believe that local roots are particularly important in a noncommercial educational service like LPFM. As noted above, we cannot rely on commercial market forces to ensure that LPFM licensees are responsive to local needs because they will be noncommercial entities providing noncommercial program services. Indeed, Congress and the Commission have long recognized the unique role played by local entities in providing noncommercial educational programming, and we have favored local entities in providing other noncommercial educational services. 36. Finally, we do not believe that our preference for local applicants here raises the concerns voiced by the court in Bechtel . The court was concerned in Bechtel that the integration preference elevated quantitative factors—the number of hours the station owners promised to work at the station—over arguably more important qualitative factors such as broadcast experience and established local residence. In contrast, the community-based requirement that we adopt today does not rest on quantitative factors and is not based on promises of future conduct. Rather, we are adopting a simple, straightforward requirement that applicants be based in the local community. In addition, a primary concern underlying the court's decision was that there was no obligation for a successful applicant in the commercial broadcast service to adhere to its integration proposal, and there was no evidence indicating the extent to which licensees had done so in the past. In contrast, LPFM licenses will not be transferable, so we can be assured that a local entity that is awarded the license will continue to operate the station. For these reasons, we do not believe that the community-based requirement that we adopt today suffers from the problems identified by the court in the Bechtel decision. 3. National Ownership Limits 37. Background. In the NPRM, we also sought comment on the issue of a national multiple ownership cap. In particular, we asked whether a limit of five or ten stations nationally would provide a reasonable opportunity to attain efficiencies of operation while preserving the availability of the stations to a wide range of applicants and their essentially local character. 38. Comments. Comments on this issue are wide-ranging in their opinions. Some groups favor an absolute nationwide one-station-per-owner limit, arguing that a one-station-per-entity cap would distribute the low power stations as widely as possible and create the opportunity for the most diverse ownership. Some commenters support a less strict national cap, arguing that some national cap will promote greater diversity in the service, but that a one-per-owner limit is excessively restrictive. Several commenters agree with the Commission's suggested range of five to ten stations, nationally. Finally, some groups oppose any type of national cap. 39. Decision. We are adopting a staged rule, which will initially foster diversity by disallowing any common ownership of LPFM stations, but eventually permit the accumulation of additional stations where local applicants fail to come forward. This will increase the service available to the public and permit the efficiencies that can be achieved by multiple ownership where there is not an immediate local interest in operating a station. To achieve this, we will require that for the first two years of LPFM service, any one entity may own only one LPFM station. The two year-long period will begin on the day that the first LP100 filing window opens for applications. After the first two years, to bring into use whatever low power stations remain available but unapplied for, we will allow one entity to own up to five stations nationally, and after the first three years of this service, we will allow an entity to own up to ten stations nationwide. 40. In addition to ensuring the fullest use of LPFM spectrum in the long term, we believe that this tiered system will balance the interests of local entities, which we expect to be the first entrants in this service, and national noncommercial educational entities, which may be interested in additional local outlets to increase their reach and to achieve certain efficiencies of operation. We note the attribution exception for national or other large entities with local community-based chapters, discussed below in the attribution section, which will allow the local chapters to apply as individual entities and thus not be constrained by this national ownership provision. 41. In the NPRM, we tentatively concluded that Section 202 of the Telecommunications Act of 1996 (the 1996 Act) eliminating national multiple ownership restrictions for existing full power commercial stations does not apply to a new broadcast service. Given our decision to limit LPFM to noncommercial educational broadcasters, section 202 clearly does not apply to LPFM and we need not discuss this issue further. 4. Local Ownership Limits 42. Background. In the NPRM, we proposed to prohibit entities from owning more than one LPFM station in the same community. We were concerned that it would be difficult to achieve wide new entry into the broadcasting market and enhance diversity if more than one low power station in an area were under common control. At the same time, we sought comment on whether such a restriction would inappropriately deny to LPFM licensees the efficiencies achievable through multiple ownership, and on what cooperative arrangements might facilitate the development of LPFM service without unduly diluting its benefits. We also sought comment on the appropriate definition of “market” or “community” for the purposes of LPFM service. 43. Comments. Many commenters agree strongly with the Commission's proposal that LPFM ownership should be limited to one station per community. They argue that allowing multiple ownership in a local area would reduce the number and diminish the diversity of new entrants. Most contend that the demand for stations from local owners will be plentiful and that there will be no need to allow outside owners to own low power stations. A few commenters address the issue of the definition of “community” for the purpose of determining the limitations of local ownership but none offered specific alternative definitions. Some commenters expressed concern that the current Commission definition of a “community” is ambiguous and therefore subject to inequitable application. 44. Decision. We will restrict local ownership and allow one entity to own only one LPFM station in a “community.” We concur with those commenters who expressed concern over the potential for diminution of diversity in ownership if one entity were allowed to control more than one station in their community. The comments opposing the restriction seem directed to and more appropriate in the context of the proposed 1000 watt service, which could have operated commercially. The primary benefit of local multiple ownership, increased efficiency, is less compelling with respect to LP100 and LP10 noncommercial educational stations, particularly as compared to the benefit to a community of multiple community-based voices. As noted, we use the term community in this Report and Order to refer to the very small population group that makes up a station's potential audience. For purposes of the local ownership limits, we will require that no entity own or have an attributable interest in two or more LPFM stations located within 7 miles of each other. That is, to comply with our local ownership limits, the antennas of commonly-owned stations must be separated by at least seven miles. We believe seven miles is appropriate given the approximately 3.5 mile signal reach of LP100 stations. Although the signal reach of LP10 stations is smaller, for the sake of simplicity we will apply the seven-mile ownership separation to both classes of service. 45. In the NPRM we noted that section 202 of the 1996 Act permitted significant local multiple ownership of full power commercial radio stations but questioned whether this standard would apply to a new low power service. Our decision here, however, to limit LPFM stations to noncommercial educational service renders this question moot. As discussed above regarding the national multiple ownership issue, section 202, by its terms, does not apply to noncommercial stations. 46. We note that the attribution exception for local chapters of national entities, discussed in the next section, will allow local chapters to apply as individual entities and thus avoid the bar that the national ownership rules would otherwise impose. 5. Attribution 47. Background. Given the significance we have accorded the ownership of LPFM stations, the strict cross-and multiple-ownership rules and the community-based eligibility and selection criteria we are adopting, determining who “owns” or constitutes a low power radio applicant or licensee is critically important. In the NPRM , we sought comment on what interests or relationships should be attributable in this regard. 48. Comments. Comments on attribution vary widely. Some commenters express concern that if the existing attribution rules were applied to these stations, some entities with large national organizations and small chapters would be unable to hold multiple licenses even though they maintain a local presence and would provide community-oriented programming. Other commenters propose that attribution rules be waived in the case of accredited educational institutions, so that they can hold a full power station and also an LPFM station. 49. Decision. We will apply rules similar to the existing commercial attribution rules to determine a licensee's compliance with the ownership limits set forth above. Because many of the entities that will hold LPFM licenses will be non-stock corporations (or other non-stock entities), we will attribute the interests of the applicant, its parents, its subsidiaries, their officers and members of their governing boards. If an entity that holds an LPFM license does have stock, then the existing attribution rules will apply and voting stock interest of 5% or more will be attributable unless the investor is passive in nature, in which case voting stock interests of 20% or more will be attributable. Partners and non-insulated limited partners are attributable, as are officers and directors. Non-voting stock and debt are not attributable unless they satisfy the “equity-debt-plus” standards set forth in our recent attribution order. Thus, for example, if a full-power broadcaster in a community were to invest in an LPFM licensee in that same community and the investment accounted for more than 33% of the LPFM's total capitalization, the investment would be attributable and would violate the cross-ownership ban discussed above. Similarly, if a director of the same full power broadcaster were to act as an officer of the LPFM, the director would be attributed with both stations and would violate the ban. Consistent with the existing commercial attribution rules, however, an exception will apply to certain officers and directors of the parent of an LPFM applicant or licensee. Such an officer or director may hold otherwise attributable interests in a broadcast licensee or other media entity subject to our ownership rules without making the LPFM applicant ineligible, provided the duties and responsibilities of the officer or director are wholly unrelated to the LPFM station and the officer or director recuses himself or herself from consideration of any matters affecting the LPFM station. This exception will avoid making ineligible entities that will serve the purposes of this service well, such as universities or schools, which may have large and diverse board membership, while protecting against control of an LPFM licensee by ineligible media owners. For the same reason, in the LPFM context we will extend the exception to officers and directors of the LPFM applicant or licensee itself, if that entity is a multifaceted organization, such as a university, and the duties and responsibilities of the officer or director are wholly unrelated to the LPFM station and the officer or director recuses himself or herself from consideration of any matters affecting the LPFM station. We emphasize that these exceptions are narrow in scope. An individual holding an attributable media interest may not act as an officer of the LPFM station, nor function in any other attributable role. 50. We will, moreover, include an attribution exception for local chapters of national or other large organizations. In the event that a local chapter can demonstrate that it: (1) Is separately incorporated, and (2) has a distinct local presence and mission, the local chapter can apply for a license in its own right and the national entity's “ownership” will not be attributed to it. In order to meet this standard, the local entity must be able to show a significant membership within the community, as well as a local purpose that can be distinguished from its national purpose. For example, the general purpose of raising awareness of the toxic waste problem in the United States would not suffice, but raising awareness of the toxic waste problem in particular local areas would meet the local purpose standard. 6. General Character Qualifications and Unlicensed Broadcasters 51. Background. In the NPRM , we generally proposed to apply the same standards for character qualification requirements to all LPFM broadcasters as we do to full power broadcasters. The Commission asked if commenters saw any reason to distinguish between full and low power radio licensees for this purpose. In addition, we sought comment on whether to disqualify unlicensed broadcasters who once violated or who still are violating Commission rules. We sought comment on whether the Commission should adopt a middle ground and accept applications from parties who have broadcast illegally, but who either (1) promptly ceased operation when advised by the Commission to do so, or (2) voluntarily ceased operation within ten days of the publication of the NPRM in the Federal Register . 52. Comments. Many individuals insist that without radio “pirates,” LPFM would not have been created. Others, such as Amherst and UCC, et al., support the middle ground set forth in the NPRM, saying that it is most fair to the interests of future low power broadcasters and to the public. Many commenters believe that anyone who has operated illegally should not be eligible for a license. Some object to restricting parties with an interest in a broadcast station from owning an LPFM station, but allowing “pirates” to own them. 53. Decision. We have decided, as we proposed, to apply the same character qualification requirements to low power station licensees as we currently apply to full power licensees. The Commission's character policy is underpinned by our interest in a licensee's truthfulness and reliability. We have a critical need to ascertain whether a licensee will in the future be forthright in its dealings with the Commission and operate its station in a manner consistent with the requirements of the Communications Act and the Commission's rules and policies. No commenter showed a reason to distinguish between full and low power broadcasters on this basis, and we do not believe one exists. 54. The most significant specific question that character concerns raise in the context of this proceeding, as discussed in the NPRM, is how past illegal broadcast operations reflect on that entity's proclivity “to deal truthfully with the Commission and to comply with our rules and policies,” and thus on its basic qualifications to hold a license. We are persuaded to adopt our original proposal and accept a low power applicant who, if it at some time broadcast illegally, certifies, under penalty of perjury, that: (1) It voluntarily ceased engaging in the unlicensed operation of any station no later than February 26, 1999, without specific direction to terminate by the FCC; or (2) it ceased engaging in the unlicensed operation of any facility within 24 hours of being advised by the Commission to do so. Applicants will be required to make such certifications as part of their applications for an LPFM station. Such certifications will be made with respect to the applicant as well as all parties to the application ( i.e., any party with an attributable interest in the applicant). Submission of false or misleading certifications will subject the applicant to enforcement action including fines, revocation of license and criminal penalties. 55. Contrary to some commenters arguments, this rule does not unconstitutionally infringe on the First Amendment rights of unlicensed broadcasters. Disqualification under this rule is based solely on lack of compliance with statutory and regulatory requirements. All parties should note, however, that as licensed broadcasters, ignorance, whatever its cause, is not considered an excuse for violation, and full compliance with our rules will be required. Moreover, as implied by the provisions of the NPRM , the illegality of unauthorized broadcasting must now be presumed to be well-known, and any unlicensed broadcast operation occurring more than 10 days after the NPRM was issued will make the applicant ineligible for low power, full power, or any other kind of license and will be subject to fines, seizure of their equipment, and criminal penalties. E. Technical Rules 1. Spectrum for Low Power Radio 56. Background. In the NPRM , the Commission stated that it did not intend to allocate new spectrum for a low power radio broadcasting service. The utilization of new spectrum would require listeners to purchase new equipment to receive the service, which would significantly delay the benefits of the service to the public. We proposed to authorize low power radio stations within the FM band only. This determination was based partly on the extent of congestion within the AM band, with numerous existing stations experiencing significant interference. Furthermore, we recognized that low power AM stations were capable of causing significantly higher levels of interference as a result of AM signal propagation characteristics. With regard to the use of the FM band, we concluded that the large number of existing FM stations precluded us from designating any specific frequencies for LPFM service, as no such channels are available throughout the country. Thus we sought comment on whether we should allow LPFM stations to operate throughout the entire band or restrict the reserved portion of the FM band (Channels 201-220) for noncommercial educational (NCE) stations. We also contemplated that low power radio stations would desire to use auxiliary broadcast frequencies, where available—for example, for studio-to-transmitter links and transmissions of remote broadcasts—and sought comment in this regard. 57. Comments. No commenters specifically supported the allocation of new spectrum for the proposed service. Many commenters agreed that existing interference within the AM band and the relative complexity of AM facilities should preclude consideration of a low power AM service. Some commenters, however, argue that an AM low power station should be an option in areas where the FM spectrum is too crowded to permit new stations. With regard to the FM band, most commenters support the view that the reserved band should continue to be reserved for NCE use only. However, several other commenters are particularly concerned that the introduction of numerous new stations in the reserved band would potentially increase interference to existing stations, especially in areas beyond their protected contours. At the same time, other commenters expressed the desire to allow NCE low power stations throughout the FM band. 58. Decision. We will authorize low power radio stations throughout the FM band, where the stations will fit, but not in the AM band. Although FM band crowding may preclude or limit LPFM opportunities in certain markets, we are not persuaded that the creation of an AM low power radio service is warranted. We note that we are adopting minimum distance separations between LPFM and full-service stations based upon the assumption that full service stations operate with maximum height and power for their class. Therefore, an LPFM station would generally provide greater protection to stations operating in the reserved band than that afforded to them by other full service stations, for which station facilities are spaced more closely on the basis of the contour protection methodology. Because LPFM stations will be licensed throughout the FM band, they will not be concentrated in the reserved portion of the FM spectrum. We note, however, that LPFM stations, regardless of their location in the FM band, are reserved to qualified NCEs. We will apply the same interference protection and other technical standards for LPFM operations in the reserved and nonreserved bands. This will facilitate application processing and uniform LPFM technical operating requirements. 59. In view of their relatively smaller service areas, we believe that most LPFM stations will co-locate program origination and transmission facilities. As a result, these stations would not require studio-to-transmitter links (STL) between these facilities. However, we will not foreclose LPFM operators the use of broadcast auxiliary frequencies used by full-service radio stations for this purpose. LPFM stations may also desire to air programming relayed from a remote location, such as an athletic event, or in connection with news gathering. Generally, we will permit entities authorized to operate LPFM stations to use remote pickup frequencies and radio broadcast auxiliary frequencies in the manner in which full-service stations use these frequencies, pursuant to the technical rules and procedures given in subparts D and E of part 74 of our rules. However, we will require that LPFM operations on auxiliary frequencies be secondary to that of full-service broadcast stations and other primary users, given the congestion of frequency use in some locales. We note that TV auxiliary frequencies are licensed to low power TV stations on this basis. An entity seeking to operate an LPFM station may apply for broadcast auxiliary license only after it has been authorized to construct the LPFM station. 2. LPFM Spectrum Rights and Responsibilities 60. Background. In the NPRM , we raised issues regarding the spectrum priority of the contemplated classes of LPFM service. We recognized that our resolution of these issues would affect where LPFM stations could locate and the stability of their operations. Additionally, LPFM interference protection rights and responsibilities could affect existing and future FM radio service. The NPRM proposed a 1000-watt primary service and a 100-watt secondary service. It sought comment on a 10-watt class of LPFM station that would be secondary to all other FM radio services. As proposed, LP100 and LP10 stations would not be permitted to interfere within the protected service contours of existing and future primary stations and would not be protected against interference from these stations. We sought comment on whether LP100 stations should be permitted to select channels without regard to interference received and on the extent to which LP100 stations should protect FM translator and booster stations. 61. Comments: Given our decision not to create a 1000-watt LPFM station class, this summary is limited to the issue of spectrum priorities for LP100 and LP10 stations. The comments were divided on whether LPFM stations should have a primary or secondary regulatory status. Several commenters supported primary status for all LPFM stations, mainly to help ensure their survival. Some commenters supported a modified form of primary status for LPFM. Other commenters, including some broadcast licensees, supported a secondary status for LPFM stations. 62. Decision. In crafting interference protection rights and responsibilities for an LPFM service, we seek to balance our vital interest in maintaining the technical integrity of existing radio services with our desire to create a supple and viable community-oriented radio service. First and foremost, we must require that new LPFM stations protect radio reception within the service areas of existing full-service stations, as well as the existing services of FM translator and booster stations. Second, LPFM stations, with their much smaller service areas and fewer service regulations, should not prevent FM stations from modifying or upgrading their facilities, nor should they preclude opportunities for new full-service stations. Additionally, LPFM applications will be required to protect vacant FM allotments. Subject to these constraints, however, we want to foster a stable and enduring LPFM service. Once an LPFM station is built and operating, we wish to permit it to continue operating on its channel, wherever possible, as the radio environment changes around it. We want to minimize, to the extent possible, the situations in which we would require an LPFM station to change its channel or cease operating. This measure of stability, we believe, would assist LPFM station applicants or operators in obtaining financing to construct and operate stations and to better serve their communities. It may also create an incentive for the operation of a first local radio station in many communities or radio service that would be responsive to other unmet needs. We believe the approach set forth below appropriately balances the above objectives. 63. Protection to existing FM radio services: Applicants for new or modified LP100 or LP10 facilities will be required to meet minimum station separation distances to protect the service contours of authorized commercial and noncommercial FM stations of all classes, including Class D. In the same manner, they will be required to protect the existing service of FM translator and booster stations and LP100 stations. We will also require LPFM applicants to protect full-service FM, FM translator and LP100 facilities proposed in applications (for example, FM minor change applications) filed before a public notice announcing an LPFM application filing window. Applications filed after the release date of an LPFM window notice will not be protected against LPFM applications filed in that window. However, full-service applicants will not be required to protect the facilities proposed in LPFM applications. We believe this approach fairly balances the interests of full-service and LPFM applicants. LPFM station proposals to operate on channels 201-220 will also be required to protect television stations operating on TV Channel 6. Applicants for LP100 stations will not be required to protect authorized LP10 stations or LP10 application proposals, given the relatively smaller service areas of LP10 stations. 64. The extent of interference protection from LPFM stations to existing FM, LPFM and FM translator and booster service generally will be that afforded by minimum station separation requirements. These were designed to provide the same degree of interference protection that full-service stations provide each other. We have added a 20-kilometer buffer to the separations for protecting co-channel and first adjacent channel full-service stations. This buffer will help to protect FM radio facilities that were modified or upgraded in a manner that would create a short-spacing with an operating LPFM station. LPFM stations will not be required to eliminate interference caused to FM stations by their lawful operations. They will, however, be required to eliminate interference caused by operations that violate the terms of the station's authorization or the Commission's Rules; for example, radiation of excessive emissions outside of the station's authorized channel. LPFM station operators will also be required to respond to complaints of “blanketing” interference. They will also be subject to international agreements regarding the elimination of interference to primary Canadian or Mexican broadcast stations. Until these agreements are modified, we believe it is appropriate to apply to LPFM stations the international provisions applicable to FM translators, which operate at comparable power levels. 65. LPFM rights and responsibilities with respect to subsequently modified, upgraded or new full-service FM stations. We are not adopting for the LPFM service many of the regulations applicable to full-service stations; for example LPFM stations will not be required to have a main studio. LPFM stations also will service much smaller areas than full-service stations. For these reasons, we do not believe that an LPFM station should be given an interference protection right that would prevent a full-service station from seeking to modify its transmission facilities or upgrade to a higher service class. Nor should LPFM stations foreclose opportunities to seek new full-service radio stations. Accordingly, operating LPFM stations will not be protected against interference from subsequently authorized full-service facility modifications, upgrades, or new FM stations. Because we will not protect LPFM from future FM facilities, we will not require LPFM applicants to meet minimum distance separation requirements to protect their service areas against interference received. However, as a guide to LPFM applicants, the attached rules includes minimum station separation distances necessary to protect an LPFM station's 60 dBu contour. 66. We expressed our desire to provide a measure of stability to operating LPFM stations. For this purpose, we will permit LPFM stations to continue operating even though they would cause interference within the protected service contours of a subsequent authorized FM service, including new stations and facilities modifications or upgrades of existing stations. In such situations, the LPFM operator would decide whether interference received to its service would permit the station to continue operating on its channel. However, we must make one exception to this policy. FM stations have a core responsibility to service their principal communities. Therefore, we will not permit an operating LPFM station to cause interference within a commercial or NCE FM station's 3.16 mV/m (70 dB) contour. This issue can only arise in connection with a subsequently filed full-service new station or modification application. If grant of such an application would result in predicted interference within the 3.16 mV/m (70 dBu) contour of the proposed station, the affected LPFM station will be provided an opportunity to demonstrate that interference is unlikely to occur within this contour due to, for example, terrain shielding. If the LPFM station fails to make a sufficient showing, it will be directed to cease operations upon the commencement of program tests by the commercial or NCE FM station. 67. We recognize that actual interference within the 3.16 mV/m contour might still be possible where the LPFM station has demonstrated that it is unlikely. In these circumstances, a complaint of actual interference must be served on the LPFM station and filed with the Commission, attention Audio Services Division. The LPFM station must suspend operations within twenty-four hours of the receipt of a complaint unless the interference has been eliminated by the application of suitable techniques and to the satisfaction of the complainant. An LPFM station may resume operations only at the direction of the Commission. If the Commission determines that a complainant has refused to permit the LPFM station to apply remedial techniques that demonstrably will eliminate the interference without impairment of the original reception of the full-service station, the licensee of the LPFM station will be absolved of further responsibility. As a practical matter we believe that in many cases involving FM station modifications or upgrades, interference to new or expanded areas will be offset by the conservative separation distances met by the LPFM station when it was initially authorized, particularly because of the 20-kilometer interference protection buffer. 3. Minimum Distance Separation Requirements 68. Background. The NPRM tentatively concluded that minimum distance separation requirements for LPFM stations would provide the most efficient means to process a large number of applications while ensuring the overall technical integrity of the FM service. We proposed minimum spacings to protect full-service station operation on the same channel, first-adjacent channel and intermediate frequency (IF) channels. We proposed to exclude third-adjacent channel protection and questioned the need for second-adjacent channel spacing requirements. We noted that the use of a contour overlap methodology could significantly delay the implementation of the LPFM service because it would require substantial preparation on the part of applicants and the Commission and would increase the processing burden on the staff. The NPRM included spacing tables for the proposed LPFM classes based on the interference protection ratios that underlie full-service radio separations and the assumption that stations operate at the maximum height and power for their station class. We sought comment on the accuracy of the specific values listed in these tables. In addition, we requested comment as to whether alternate approaches, including contour overlap methodology and/or more sophisticated terrain modeling programs, should be used at a later time, based on our initial experience in authorizing LPFM service. 69. Comments. No comments challenge any of the specific values listed in our proposed minimum distance separation tables. However, one suggests an alternate methodology based upon a full service station's 44 dBu F(50,50) protected service contour, instead of the 60 dBu contour that defines the protected service contours for all NCE and many commercial stations. Although it does not calculate distance separations, some commenters argue that our separation requirements should protect actual service areas beyond protected contours. Several commenters urged either the use of a contour overlap methodology or a combination of contour overlap and separation requirements in order to accommodate the licensing of additional LPFM stations. 70. Decision. We recognize that a distance separation methodology will preclude new LPFM stations in some areas. However, we are not persuaded that the potential benefit of some additional stations is substantial enough to warrant the preparation of more complex and costly engineering exhibits based on contour protection and the resulting delays in the authorization of LPFM service. Therefore, we are adopting minimum separation requirements for the LPFM service as the means of protecting full service commercial and noncommercial educational stations. We also adopt spacing rules to protect FM translator stations and other LPFM stations, as well as a spacing table for LPFM stations operating on Channels 201 through 220 with respect to protection of TV Channel 6. As we proposed in the NPRM, we will not establish minimum separations between LPFM stations that operate two or three channels apart. Special case spacing tables are also being adopted for Puerto Rico and the U.S. Virgin Islands. Additionally, appropriate spacings will be used for the approximately 20 “grandfathered superpowered” stations operating in the reserved band. Superpowered stations will be protected under the distance separations for the class of station that most closely approximates its facilities. This determination will be made based upon the stations 1 m V/m reference contour and the procedures for determining class listed in § 73.211. LPFM applicants should be mindful of the fact that the minimum separation distances being adopted will not protect LPFM stations against interference from the full service stations, but are designed to prevent the LPFM station from causing interference to the protected service areas of full-service FM and other protected stations. However, as a guide to LPFM applicants, we are including in the rules a table giving the minimum separations necessary to avoid interference within the LPFM station service areas. 71. The minimum distance separation requirements that we adopt here for LPFM stations do not apply to full-service stations and FM translators. To prevent subsequently filed FM translator stations from causing interference to existing LPFM stations, we will expand the current FM translator interference protection rules to include a requirement that previously authorized LPFM stations be protected. As noted, we will permit a full service station to modify its facility in a manner that reduces these separations to LPFM stations. However, in such cases we generally will not require the LPFM station to cease operation. Instead, the affected stations will have to bear any interference caused by facilities changes, such as an FM transmitter site move. However, so as to reduce the potential impact on the affected stations, the spacing rules we adopt today include a 20 km “buffer” for co-channel and first-adjacent channel LPFM-to-full-service-FM stations. This additional separation is included for two reasons. First of all, we recognize that the FM band is not static. For example, broadcast stations often change transmitter sites to provide better service to their communities and service areas. Same-station-class transmitter site moves are generally less than 20 km from the original site. Therefore, inclusion of the 20 km buffer spacing allows full-service stations room to move while also reducing the potential impact on existing LPFM stations. Second, and equally important, the additional separation affords the LPFM station an increased likelihood that its operation would not cause interference within a full service station's community of license. This additional 20 km separation will apply only to the initial establishment of the LPFM station. Subsequent site moves by the LPFM station would either need to meet this distance separation requirement, or if the existing spacing were already less than this amount due to a prior site move by a full service station, the spacing could not be less than the currently existing separation. 72. International Coordination Provisions. We are also adopting provisions for LP10 and LP100 stations which lie within 320 km of the Canadian or Mexican borders, consonant with existing international agreements between the respective countries. We will apply the existing FM translator rule, 47 CFR 74.1235, and current international coordination procedures to LPFM stations in these areas. In the rules, we include distance separation tables that were intended to ensure compliance with the appropriate international agreements. We will adopt these tables to the extent that foreign stations are provided the appropriate protection. We have also derived similar tables for LP10 stations. We will only accept LPFM proposals that meet these distances. Such proposals will be coordinated as required by the pertinent agreements. In addition, LP10 and LP100 applicants in the U.S. Virgin Islands should be aware that international coordination may be required with the British Virgin Islands in some instances. 4. Second and Third Adjacent Channel Protection 73. Background. In the NPRM we sought comment on the interference protection criteria to be used to govern the authorization of low power radio services. We stated that low power stations would be subject to existing co-channel and 1st-adjacent channel protections but that to the extent possible we were inclined to authorize low power service without any 2nd- and 3rd-adjacent channel protection standards. We stated our belief that a strong case could be made for not requiring 3rd-adjacent channel protection to or from any of the contemplated classes of LPFM stations. We indicated that such an approach would entail little risk of interference to existing radio service. We noted that areas of potential interference to a full power station would be very small and occur only in the immediate vicinity of the low power transmission facility. We further indicated that such interference would generally only occur if the low power station were located at, or very near, the outer edge of the full power station's service contour where the full power station's signal is the weakest. We noted that 3rd-adjacent channel protection was eliminated for certain grandfathered and short-spaced full power stations in 1997. On balance, we stated that creating opportunities for a new LPFM service should outweigh any small risks of interference to and from LP1000 and LP100 stations. 74. With regard to 2nd-adjacent channel protection, we noted that “grandfathered” short-spaced FM facilities were permitted to modify their facilities without regard to 2nd- and 3rd-adjacent channel spacings during the period from 1964 to 1987, and from 1997 to the present. We indicated that no interference complaints were received as a result of those modifications and found that the small risk of interference was outweighed by improved service. Similarly, we noted that we have been willing in the past to accept small amounts of potential 2nd- and 3rd-adjacent channel interference in the noncommercial FM service where such interference is counterbalanced by substantial service gains. We sought comment on the state of receiver technology and the ability of receivers to operate satisfactorily in the absence of 2nd-adjacent channel protection. We also sought comment on the impact of eliminating 2nd-adjacent channel protection on the possible conversion of existing analog radio services to a digital mode, in particular with regard to in-band-on-channel (IBOC) technology. In this regard, we noted that one IBOC proponent, suggested that 2nd-adjacent channel signals from analog FM stations in the existing radio environment would not pose an interference threat to its digital IBOC signal. 75. Comments. Technical studies of FM receivers were filed in response to the NPRM by Consumer Electronics Manufacturers Association; by National Association of Broadcasters; and by National Lawyers' Guild, Committee on Democratic Communications. In addition, the Commission's Office of Engineering and Technology conducted a receiver study and placed it in the record of this proceeding. Supplementary findings and critiques were filed with reply comments. 76. Decision. We find that the record in this proceeding, including the technical data and other studies submitted, supports a conclusion that any risk of interference from LPFM stations of 100 watts or less is small and, on balance, is outweighed by the benefits of this new service. We conclude that it is not necessary to apply 3rd-adjacent channel protection requirements to or from such stations. We believe that 100-watt or lower LPFM stations operating on 3rd-adjacent channels will not result in significant new interference to the service of existing FM stations. Nor do we believe such operations are likely to have an adverse effect on digital IBOC signals. 77. With regard to 2nd-adjacent channel protection requirements, it appears that the risk of interference from LPFM signals on 2nd-adjacent channels may be somewhat higher. We find that this would also be true with regard to LPFM stations at power levels higher than 100 watts and antenna heights higher than 30 meters. Therefore, we will retain 2nd-adjacent channel protection requirements. 5. Other Technical Standards and Provisions 78. Background. In the NPRM, we sought comment on which part 73 technical operating requirements for full-service stations should be applied to LPFM stations. In general, most commenters stated that, although some requirements must remain to ensure a quality service, the LP100 and LP10 stations should be held to less stringent requirements than full service stations. While we do not want to overly burden LPFM operators, we nevertheless believe that the technical rules set forth below should apply to the LPFM stations. By doing so, we will not only facilitate technically sound LPFM operations and the use of available equipment, but will permit LPFM stations to engage in services such as those obtained through the multiplexing of FM subcarriers. There are some requirements applicable to full-service stations which we believe can be relaxed or not applied. Accordingly, we will apply certain rules to LP10 stations that apply to existing stations that operate with ten watts transmitter power output (TPO) or less. The following paragraphs set forth the principal technical requirements and provisions for LPFM stations. These technical matters were generally non-controversial to parties who filed comments in this proceeding. Other technical requirements for LPFM stations are given in the rules. 79. Power/Height restrictions. Several commenters expressed the desire to operate facilities at heights in excess of those specified as the maximum/minimum facilities for the class. This would enable stations to use existing structures at sites where the localized elevation is such that the 30 meter HAAT would be exceeded regardless of the height of the structure. One commenter, believes we should impose strict maximum height restrictions on LPFM stations since, due to the nature of the Commission's F(50,10) interference prediction curves, equivalent 1 mV/m (60 dBu) reference contours do not always guarantee proportionally sized interfering contours. We will allow LPFM stations to exceed the class-defined upper height restrictions as long as there is an offsetting decrease in the station's effective radiated power. For this purpose, we will authorize equivalent height and power combinations to produce the 60 dBu contour generated by the maximum and minimum permitted facilities for the LP100 and LP10 stations; e.g., the maximum LP100 facilities of 100 watts and 30 meters produce a 60 dBu contour at a distance of 5.6 km. 80. We recognize that computing a station's HAAT requires access to terrain database and numerous calculations. Therefore, in order to streamline the application process, the staff will utilize a computer program to calculate the antenna HAAT based upon information provided by the LPFM applicant (the coordinates of the proposed antenna, the site elevation above mean sea level, and the antenna height above ground level (AGL)). If the calculated HAAT is less than or equal to 30 meters, the LPFM station will be authorized to operate with any ERP within the maximum and minimum limits for its class. If the HAAT is calculated to exceed 30 meters, the permit will specify maximum and minimum ERP values that would produce the reference 60 dBu contours. 81. Directional antennas. Under our current rules, full service FM stations may specify directional antennas to avoid interference to other stations. Such facilities are subject to several strict installation and pattern requirements ( see 47 CFR 73.316). Processing these applications is staff intensive. Construction permits for directional facilities generally contain numerous conditions. Since we are relying on a minimum distance separation methodology—rather than a contour-based approach—to provide interference protection, we see no need for stations to employ directional antennas. Accordingly, to simplify applicant requirements and facilitate application processing and ensure that service can be implemented as expeditiously as possible, we will not authorize directional antennas for LPFM stations. 82. Transmission standards. The NPRM asked whether different transmission standards should be employed for an LPFM service; for example, whether the bandwidth could be reduced from 200 kHz to some smaller value as a means of reducing the potential interference from LPFM stations. To ensure technically sound station operations, we have decided to apply to LPFM several transmission standards presently in use for commercial and noncommercial educational FM stations. In most cases, these standards will be met through the use of type certified equipment without need for further adjustment by the LPFM licensee. LPFM stations will be required to adhere to the 200 kHz channel bandwidth applicable to full service stations, as well as the out-of-channel signal attenuation requirements in 47 CFR 73.317, the center frequency drift limits in 47 CFR 73.1545(b), and the limits on modulation in 47 CFR 73.1570(a) and (b). In addition, LPFM stations may, at their option, engage in monophonic or stereophonic broadcasting. LPFM stations may also transmit additional information via inaudible subcarriers during those periods when the audible FM signal is on the air. 83. Antenna polarization. We will permit LP10 and LP100 stations throughout the FM band to use horizontally polarized, vertically polarized, or circularly or elliptically polarized antennas, as desired by the applicant. We note that vertical-only polarized antennas have been used in the noncommercial educational FM service to protect reception of TV Channel 6 for nearly 15 years now, without adverse impact. This will afford LPFM stations a wider selection of antennas for use at LPFM stations. 84. Protection of AM radio radiation patterns. LPFM applicants should also be aware that antenna structure construction within 3.2 km (2 miles) of a directional AM station or 0.8 km (0.5 miles) of a nondirectional AM station will subject the LPFM station to the requirements of 47 CFR 73.1692. This section requires the affected AM station to make before and after measurements of its installation to insure that the new antenna structure does not aversely affect the signal pattern through reflections of the AM signal produced by the new structure. The LPFM applicant is financially responsible for conducting the measurements and any corrective measures that may need to be undertaken. The measurements can be quite expensive to conduct, and correction even more so. Therefore, we encourage LPFM applicants to locate the antenna more than 3.2 km from any directional AM station, or more than 0.8 km from any AM nondirectional station. 85. Tower Height/FAA Coordination Requirements. Any proposal before the Commission that specifies an antenna supporting structure in excess of 61 meters above ground level is subject to the Commission's requirements for antenna structure registration requirements. Certain lower structures located close to air facilities are also subject to these requirements. All structures subject to registration requirements must obtain an FAA Determination of No Air Hazard for the structure before the tower may be registered. In a letter dated June 1, 1999, the FAA expressed some concern regarding the impact LP1000 stations may have upon nearby air facilities. No specific questions were raised regarding the lower powered facilities. Since we are not authorizing an LP1000 service at this time, we will continue determining compliance with our tower registration requirements in the manner set forth. 86. Blanketing Interference. For one year after the commencement of transmissions with new or modified facilities, all FM stations are required to take remedial action to resolve blanketing interference complaints occurring within the immediate vicinity of the antenna site. A station's specific blanketing interference radius is defined by our rules. The blanketing contour for an LP100 station would extend approximately 125 meters from the transmitter site and a 10-watt LP10 blanketing contour would extend 39 meters. Thus, the blanketing area of either type of station is very small. We conclude that LPFM stations should be required to resolve blanketing interference complaints in the same manner applicable to full power stations. Although the potential for blanketing interference from LPFM stations may be quite limited, affected parties are entitled to relief from such interference caused by a new source of radiation, whether it is a full-power commercial station or a new low power community broadcaster. Accordingly, we will apply the requirements in § 73.318 to all LPFM stations, in accordance with established precedents. 87. Potential Television Channel 6 Interference. Presently, noncommercial educational FM applicants are required to consider the impact of their operations on reception of television Channel 6, which operates on a frequency band (82 to 88 MHz) just below the FM band (88 to 108 MHz) in accordance with the provisions of 47 CFR 73.525. Determining the affected interference area pursuant to this section usually requires complex calculations and detailed contour studies. Given the very limited potential for interference caused by LPFM stations, in order to simplify processing and lessen the filing burden on applicants, we will utilize a spacing table to protect TV Channel 6 stations. The values given in the table utilize the protection ratios of § 73.525 and worst case facilities for the TV Channel 6 and the LP10 and LP100 stations. On this basis, we do not anticipate that interference will occur. However, we will require LPFM applicants to correct any complaints of interference caused to Channel 6 reception in accordance with our blanketing interference requirements (as are Channel 6 complaints regarding full service stations). In most cases, this will require the installation of simple filters on affected television sets. LPFM applicants will not be required to coordinate their proposals with any potentially affected Channel 6 television station. 88. Radio Reading Services. Several radio reading services have expressed concerns about interference from LPFM stations to their service to persons who are blind or who have low vision. Programming provided by radio reading services is transmitted on subcarrier frequencies of a broadcast station, which are not audible on a standard radio. As the subcarrier frequencies are transmitted within the 200 kHz bandwidth of the broadcast station, they receive the same protection from interference as does the main broadcast programming. Thus, insofar as the transmitted subcarrier signal is concerned, there will be no increase in interference. With respect to subcarrier receivers used by the radio reading service audience, the Commission does not set technical standards for radio receivers. Thus, we cannot consider whether additional interference might affect SCA reception in the vicinity of an LPFM station, or whether different receiver construction could reduce possible interference. However, we note that the 20 km buffer between LPFM stations and co-channel or 1st adjacent channel full service FM stations adopted in this document should afford additional protection to subcarrier reception than was proposed in the NPRM. 89. Transmitter Certification. In the NPRM, we tentatively concluded LPFM stations should utilize only transmitters deemed “type certified” by the Commission's Office of Engineering and Technology (OET) to ensure the integrity of the FM radio spectrum. Type certification would prevent the use of transmitters with excessive bandwidth or modulation, spurious emissions, excessive power output, or insufficient frequency stability, which could cause interference to other existing stations. A large majority of commenters concurred with this conclusion. A few licensed amateur radio operators felt that they should be exempt from this requirement, asserting that many amateurs were capable of creating suitable equipment. However, we remain concerned about the significant potential for interference caused by non-type certified transmitters, particularly given the interference-protection standards we are adopting. Nor do we believe that type certification of equipment by the manufacturer will add appreciably to the cost of equipment for a low power broadcast radio station. Accordingly, we will adopt the certification requirement as proposed in the NPRM. We emphasize that the use of non-type certified transmitters will not be tolerated. Use of non-type certified transmitters will subject the licensee to enforcement action including, but not limited to, fines. 90. Unattended Operation. We anticipate that many LPFM stations will be run as “attended operations,” since the transmitter sites will be located at the source of program origination. However, LPFM stations may also be operated in “unattended” mode. During these times, there may be no personnel at the studio or transmitter site to monitor operation. LPFM stations that will operate unattended will be required to advise the Commission by simple letter of the unattended operation, and provide an address and telephone number where a responsible party can be reached during such times. The responsible party must be able at all times to turn off the transmitter within 3 hours of receiving notice from the FCC that the equipment is not functioning properly. In addition, we encourage the use of monitoring equipment that can automatically shut off the transmitter within 3 hours if a fault (such as operation at excessive power operation or center frequency drift) occurs. Finally, during periods when the LPFM station is not transmitting programming on its regular channel, the transmitter must be turned off. 91. Station Logs. Station logs provide a mechanism for verifying proper operation of a station, as they require the licensee to examine the operation before making a log entry. Logging requirements for LPFM stations will be minimal. The station log for LPFM will contain only the following entries: (1) Daily observation of proper function of tower obstruction lighting (if required by section 17.47 of the Commission's Rules); (2) dates and a brief explanation regarding station outages due to equipment malfunctioning, servicing or replacement; (3) any operation not in accordance with the station license; (4) receipt of weekly EAS (Emergency Alert System) test; (5) name of person making the entry. 92. These minimal requirements will not impose any significant burden on LPFM licensees. Except for any required daily tower lighting checks, entries need only be made when necessary. Logs must be retained for two years from the date of the last entry, and station logs must be made available to FCC personnel upon request. 93. Environmental Requirements. As with any applicant for a Commission license, an LPFM proponent will have to certify compliance with the environmental requirements of section 1.1307 of our rules. In order to facilitate the preparation and processing of LPFM applications, we will simplify the environmental compliance worksheets included in the current FCC Form 301 to account for the low operating power of LPFM stations. 94. Radio Astronomy Installation Notifications. Low power FM broadcast stations will be required to coordinate with and provide protection to the radio quiet zones at Green, West Virginia and at Boulder Colorado, as is required for full service FM stations by § 73.1030. In addition, low power FM applicants in Puerto Rico will need to coordinate with Cornell University regarding the radio coordination zone on that island. This requirement is necessary to ensure that research work at these installations will not be disrupted. Because of the low power and antenna height of LPFM stations, we anticipate that this requirement will affect very few applicants. F. Application Processing 1. Electronic Filing 95. Background. The Commission recently mandated the electronic filing of broadcast applications after a transition period of six months from the date that each form becomes available for filing electronically. Likewise, we proposed in the NPRM to require that LPFM applications be filed electronically. We stated that mandatory electronic filing could speed the introduction of LPFM service by enabling the staff to process more quickly and efficiently the large number of LPFM applications that we expect to receive. In addition, we indicated that electronic filing software could be designed to assist applicants with technical issues related to their applications, such as determining what frequencies are available based on current information in the Commission's database. We requested comment as to whether Internet access is sufficiently universal to warrant mandatory electronic filing of LPFM applications. 96. Comments. Commenters that addressed the matter generally support the use of electronic filing, but are divided as to whether it should be mandatory. Several commenters express concern that electronic filing is untried and may delay the introduction of LPFM service. Several commenters urge that, regardless of whether electronic filing is required, LPFM filing procedures should be as simple and inexpensive as possible. 97. Decision. We anticipate that electronic forms will be made available via the Commission's World Wide Web site prior to the opening of the first LPFM filing window. Based on our consideration of the record, however, we will not adopt a mandatory electronic filing system for LPFM application forms at this time. Rather, assuming availability of the forms, we will make electronic filing permissive for the first LPFM filing window, which we intend to open for LP100 stations shortly after the effective date of this document. Whether electronic filing is permissive for the second window that we anticipate opening for LP10 stations, as well as for any subsequent LPFM filing windows, will be resolved at a later date and will depend on several factors, including our experience with both electronic and paper filing during the first LPFM window and the time that elapses between the first and second windows. 98. We recognize that, as some commenters point out, there may be disparities among potential LPFM applicants in terms of Internet access and/or computer skills. We believe that making electronic filing permissive at this time will accommodate applicants that might be disadvantaged by mandatory electronic filing. We previously have discussed the significant advantages of a mandatory electronic filing system in terms of realizing savings and efficiencies. We do not believe that electronic filing would necessarily constitute an undue burden or expense for potential LPFM applicants, as the costs of computer and modem equipment continue to fall, and Internet access increasingly is becoming available at minimal cost commercially and at public institutions such as libraries. In addition, the Commission has made, and will continue to make, great efforts to create a simple, user-friendly electronic filing system. However, at present we are determined to be cautious with the first applications for a new service filed by applicants whose resources and familiarity with Commission processes may be very limited. We will reassess our electronic filing decision after our experience during the first filing window. We can better determine at that time whether the first filing window has provided a reasonable opportunity for interested parties to understand and arrange for Internet access and familiarize themselves with our Web site and electronic filing system. We can then determine whether the public interest benefits of mandatory electronic filing will outweigh any difficulties encountered or inequities expected, and decide whether electronic filing will remain voluntary or be mandated for use by all. 99. Although electronic filing will be permissive, we strongly encourage applicants to take advantage of electronic filing, and expect that many will do so. The forms will be accessible to anyone with a computer and a modem, without the need to purchase any special computer software. The Commission's software will make filing more certain for applicants by automatically notifying them of critical errors or omissions in their applications, and allowing them to correct the applications prior to submission. This software also will provide applicants with immediate verification that their applications have been received by the Commission. In addition, it will allow applicants to submit amendments, make corrections to their previously-filed applications, and submit narrative, explanatory exhibits. Furthermore, we intend to design additional software that will be available on the Commission's Web site to assist interested parties in making a preliminary determination as to which frequencies are available for LPFM use, based on current information in the Commission's database. Thus, LPFM applicants using the electronic filing system also will have access to a form of automated technical assistance in preparing their applications. 2. Window Filing Process 100. Background. We proposed in the NPRM to adopt a window filing approach for LPFM applications, with short filing windows of a few days each to “lessen the occurrence of mutually exclusive applications and speed service to the public.” The Commission recently substituted a uniform window filing procedure for the various application procedures for new commercial broadcast stations, and for major changes to existing stations. Under this procedure, the Commission announces by public notice a “window” or specific time period during which applications may be filed. When the window closes, the staff reviews the applications filed to determine whether any request mutually exclusive authorizations and, therefore, are subject to competitive bidding. Non-mutually exclusive applications are processed in accordance with our general procedures. Groups of mutually exclusive applications are identified by public notice and proceed to auction. The Commission also is considering substituting a window procedure for the two-step, cut-off list procedures now in place for full-service NCE broadcast applications. 101. In the NPRM, we also asked for comment as to whether a first come-first served process might serve the public interest better than a window process by more effectively avoiding mutual exclusivity among LPFM applications. We speculated that electronic filing “might give us the capacity to ascertain the precise sequence in which applications are submitted by different parties.” Thus, applications conflicting with ones filed “even a moment earlier” might be rejected as unacceptable for filing, avoiding mutual exclusivity in many cases. We noted a number of drawbacks to this approach, however, including the possibility that applicants might lose filing rights based solely on the quality of their Internet connections. 102. Comments. Many commenters support a window filing approach, and offer various suggestions as to the appropriate duration of filing windows. Some commenters favor a first come-first served filing system, generally contending that it would be a better means of avoiding mutual exclusivity than a window approach. Several commenters suggest hybrid approaches combining elements of window and first come-first served systems. 103. Decision. Based on our consideration of the record, we will adopt a window filing process for LPFM applications. We previously stated that a window process “provides the staff with a mechanism to control effectively the filing and processing of broadcast applications.” We believe that such a mechanism is important here because of the large number of LPFM applications that we expect to receive. In addition, the first-come first-served approach envisioned in the NPRM, which would determine filing priority based on the exact time that applications are filed, is feasible only if electronic filing is required, which will not be the case, at least initially. Moreover, we are concerned that such an approach, by placing a premium on filing at the earliest possible moment, might unfairly disadvantage certain applicants based solely on the quality of their Internet connections. The filing of hundreds or thousands of applications at once also might place unbearable strains on the LPFM electronic filing system. A window filing process avoids these pitfalls, as applicants will be able to file at any time over a period of several days without losing filing rights. 104. Once this document becomes effective, the Mass Media Bureau, pursuant to delegated authority, will promptly release a public notice announcing a national filing window for LP100 applications. We anticipate that this window will open in May. The notice will be issued at least thirty days in advance of the opening of the filing window. Full power broadcast applications filed on or after the date of release of a public notice announcing the opening of an LPFM window will not preclude the filing of conflicting LPFM applications filed during that window. However, where the conflict ultimately is determined to relate to service inside the city grade contours of the full power station, the LPFM application will be dismissed. The window itself will be open for a period of five business days. We believe that five days, combined with thirty days' specific advance notice and the additional time between the release of this document and the public notice announcing the window, should give interested parties sufficient time to prepare and file their LPFM applications, while minimizing the number of mutually exclusive LPFM applications. We emphasize that applications filed before or after the dates specified in the public notice will not be accepted. 105. In accordance with our window filing procedure for commercial broadcast applications, after the LPFM window closes, the staff initially will screen applications for the purpose of identifying those that are mutually exclusive and those that fail to protect existing broadcast stations in accordance with the standards adopted herein. Applications that fail to properly protect these existing stations will be dismissed without the applicant being afforded an opportunity to amend. This will increase the speed and efficiency with which LPFM applications can be processed by the staff. Technically acceptable non-mutually exclusive applications will be further reviewed for acceptability and processed by the staff in accordance with the Commission's general procedures. Groups of mutually exclusive applications will be identified in a subsequent public notice, and will be subject to the selection procedures set forth. After an application is tentatively selected from a mutually exclusive group, it will be reviewed for acceptability, and a public notice will be released announcing the finding that the application has been tentatively selected and is acceptable for filing. Petitions to deny the application will be due within 30 days of the release of the public notice of its acceptability for filing. Petitions and informal objections will not be considered unless and until the application has been tentatively selected for processing and found acceptable for filing. A tentative selectee whose application is found unacceptable for filing will be given a single opportunity to submit a curative amendment, provided that the amendment is minor and the amended application has the same number of points as originally claimed, or more than the points claimed by the next highest applicant. Tentative selectees whose applications remain unacceptable for filing after this opportunity will be removed from their mutually exclusive groups, and will not be provided with an additional opportunity to amend. 106. As stated, we are developing software to assist interested parties in determining whether specific frequencies may be available at specific locations for LPFM use. This software will not be able to determine conclusively whether a particular frequency will be available for an applicant, as frequency availability also will depend, among other things, on whether competing applications are filed during the LPFM filing window. Nevertheless, we anticipate that the software will help interested parties focus on potentially-available facilities, and will provide technical assistance for interested parties with limited financial resources. We anticipate that this software will be ready for use by the time we announce the first filing window for LPFM applications. The Mass Media Bureau will issue a public notice with information regarding how to access the software and the technical assistance it can provide. Such information also will be posted on the Commission's Web site. 3. Selection Among Mutually Exclusive Applications 107. Background. In the NPRM, we requested comment as to whether the proposed LPFM service should be restricted to NCE applicants or open to both commercial and NCE applicants. We tentatively concluded that, pursuant to statutory requirements, mutually exclusive applications for commercial LPFM facilities would be subject to auction. We asked for comment on alternative methods for resolving mutual exclusivity among NCE LPFM applicants. We specifically referred commenters to our proceeding reexamining full-service NCE comparative standards, where we sought comment on three possible methods for selecting among mutually exclusive applicants: (1) Comparative hearings; (2) a lottery process weighted in favor of certain applicants based on statutory requirements and other factors; and (3) a system assigning points to applicants based on various selection criteria. 108. Comments. Most commenters that address the matter oppose the use of competitive bidding, arguing that it would undermine the Commission's stated goals in establishing the LPFM service. Few commenters support the use of comparative hearings to resolve mutually exclusive NCE applications. There was support among commenters for the use of a lottery process, although most of these commenters argued the merits of lotteries over auctions, rather than over an alternative selection method. A number of commenters also favored the use of a point system. In addition, several commenters suggest that we impose arbitration to resolve mutual exclusivity, and one advocates the use of “conflict reduction methods” such as allowing “liberal channel and coverage changes.” Commenters also propose various selection factors for use within a comparative selection process. 109. Decision. Based on our consideration of the record, we shall adopt a point system for resolving mutual exclusivity among LPFM applicants. The point system will include three selection criteria: (1) Established community presence; (2) proposed operating hours; and (3) local program origination. The system will employ voluntary time-sharing as a tie-breaker, that is, tied applicants will have an opportunity to aggregate points by submitting time-share proposals. As a last resort, where a tie is not resolved through time-sharing or settlement, we shall award successive equal license terms totaling eight years (the normal license term), without renewal expectancy for any of the licensees. 110. We conclude that the point system we are adopting is superior to alternative selection methods. As discussed above, the LPFM service will be reserved for noncommercial, educational service, and we are precluded by statute from using auctions to award station licenses on channels reserved for NCE use. Accordingly, we need not discuss an auction-based selection mechanism. In our proceeding reexamining full-service NCE comparative standards, we tentatively rejected comparative hearings because they tend to be lengthy, cumbersome, and resource-intensive, without substantial offsetting benefits. These disadvantages make comparative hearings particularly ill-suited for selecting LPFM applicants. Like comparative hearings, mandatory arbitration and engineering solutions could impose significant delays on the LPFM authorization process and impose additional expenses on applicants. Moreover, although we will encourage individual settlements as a means of resolving mutual exclusivity among LPFM applicants, the Commission lacks the resources to administer a system that would require arbitration or the imposition of engineering solutions in every instance of mutual exclusivity. Finally, we conclude that a lottery system is comparatively inferior to a point system as an LPFM selection method. The primary benefits of a lottery system are the speed and ease with which it may be applied. As discussed, however, a point system offers like benefits. Moreover, there are unresolved legal and policy issues surrounding the use of a lottery system that pose a risk of delaying the introduction of LPFM service to the public. A point system does not entail similar risks. A lottery process is also inherently inferior to a point system in its ability to further the Commission's policy goals due its random nature. This randomness may be mitigated, but not eliminated, by weighting in favor of certain types of applicants. For these reasons, in the case of LPFM service, we reject all of these approaches in favor of a point system. 111. Point System. We believe that a point system is the best-suited selection methodology for promoting the Commission's policy goals for the LPFM service and speeding its introduction to the public. The Commission has used a point system procedure with success in the Instructional Television Fixed Service (ITFS). Like lotteries, point systems have the potential to be fast, inexpensive, and administratively efficient. Unlike lotteries, however, point systems make possible the selection of applicants based on objective criteria designed to best advance the public interest in the particular service at issue. Finally, the fact that LPFM licenses are non-transferable eliminates a major potential disadvantage of any system based on selection criteria; it prevents the integrity of the system from being undermined by the rapid assignment or transfer of station licenses by an entity that was awarded the license over other applicants on some merit basis that is not necessarily found in the buyer. 112. Point System Operation—Selection Criteria. Our point system will include three selection criteria for mutually exclusive applicants: (1) Established community presence; (2) proposed operating hours; and (3) local program origination. These criteria are directly related to the advancement of the public interest that the Commission has found warrants the introduction of this new service. To protect the integrity of the selection process and ensure that its full benefits may be realized, we have chosen clear-cut selection factors that are objective in nature and do not require burdensome documentation. 113. Established Community Presence. For the reasons set forth, first, applicants that have an established community presence of at least two years' duration will be awarded one point. An applicant will be deemed to have an established community presence where, for a period of at least two years prior to application, the applicant is able to certify that it has been physically headquartered, has had a campus, or has had 75 percent of its board members residing within 10 miles of the reference coordinates of the proposed transmitting antenna. This criterion will favor organizations that have been operating in the communities where they propose to construct an LPFM station and thus have “track records” of community service and established constituencies within their communities. We believe that such applicants, because of their longstanding organizational ties to their communities, are likely to be more attuned to, and have organizational experience addressing, the needs and interests of their communities. In this regard, a number of commenters suggest preferences based on prior community service and/or community support. These suggested factors could be subjective in nature, however, and could be burdensome to demonstrate and verify. In addition, we believe that preferring organizations that have been in existence and physically present in the community for two years will help prevent maneuvering of the point system by those who might otherwise establish multiple organizations to file LPFM applications. 114. As we stated in our discussion of the community-based eligibility requirement, we do not believe this preference for established local entities contravenes the court's concerns in Bechtel. In adopting such a comparative factor, we further note that the Bechtel court was concerned that quantitative integration factors worked to the virtual exclusion of other factors the court deemed potentially relevant in determining the relative quality of service that would be provided by an applicant. For LPFM, we are including other selection factors and giving them equivalent weight in the selection process. Moreover, while the two-year presence factor has a quantitative aspect, it is objectively verifiable and does not depend on promises of future performance, as the integration preference did. 115. Applicants claiming points for established community presence will be required to certify in their applications that they meet the above-stated conditions. The application form will identify appropriate documentation that must be made available for the point claimed. Applicants will be required to submit this information at the time of filing and it will be available in our public reference room. As with other broadcast applications, the Commission will rely on certifications but will use random audits to verify the accuracy of the certifications. This information also will enable applicants to verify that competing applicants qualify for the points they claim. 116. Proposed Operating Hours. Second, applicants that pledge to operate at least 12 hours per day will be assigned one point. As set forth below, the minimum operating hours for LPFM stations will be five hours per day. This criterion does not impose any additional requirement, but awards points to applicants that pledge longer hours of operation. Applicants that propose more intensive use of the broadcast frequencies they seek will advance the Commission's general policy objective of ensuring efficient spectrum use and providing more programming to serve their communities. 117. Local Program Origination. Finally, applicants that pledge to originate locally at least eight hours of programming per day will be assigned one point. For purposes of this criterion, local origination will be defined as the production of programming within 10 miles of the reference coordinates of the proposed transmitting antenna. This criterion derives from the service requirements for full-service broadcast stations, which are required to maintain the capacity to originate programming from their main studios. LPFM licensees will not be subject to main studio requirements, and will have discretion to determine the origination point of their programming. As a comparative selection factor, local program origination can advance the Commission's policy goal of addressing unmet needs for community-oriented radio broadcasting. In this regard, we believe that an applicant's intent to provide locally-originated programming is a reasonable gauge of whether the LPFM station will function as an outlet for community self-expression. 118. With regard to both the second and the third selection criteria, applicants will be required to certify in their applications that they will meet the qualifying conditions for the points claimed. We will require successful applicants to adhere to their operating hours and local program origination pledges. As these criteria are prospective in nature, they will not be subject to verification at the application stage. The Commission will use random audits to verify the accuracy of the certifications, and will consider written complaints regarding actual performance. Consistent with our current practice, the staff may issue letters of inquiry requiring submission of documentation in connection with such audits. Where analysis of the requested information indicates that licensees have not fulfilled their pledges, appropriate action will be taken, including the possibility of monetary forfeitures and revocation proceed [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A00-2718. Public record. Not legal advice.