83 FR 32255 - New FM Radio Broadcast Class C4 and To Modify the Requirements for Designating Short-Spaced Assignments

FEDERAL COMMUNICATIONS COMMISSION

Federal Register Volume 83, Issue 134 (July 12, 2018)

In this document, the Commission adopted a Notice of Inquiry (NOI), based on a petition for rulemaking filed by SSR Communications, Inc., in which the Commission sought comment on a proposal to create a new class of FM radio stations, Class C4, and to establish a procedure for designating certain FM stations.

[Federal Register Volume 83, Number 134 (Thursday, July 12, 2018)]
[Proposed Rules]
[Pages 32255-32259]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-14880]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 18-184; FCC 18-69]


New FM Radio Broadcast Class C4 and To Modify the Requirements 
for Designating Short-Spaced Assignments

AGENCY: Federal Communications Commission.

ACTION: Notice of inquiry.

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SUMMARY: In this document, the Commission adopted a Notice of Inquiry 
(NOI), based on a petition for rulemaking filed by SSR Communications, 
Inc., in which the Commission sought comment on a proposal to create a 
new class of FM radio stations, Class C4, and to establish a procedure 
for designating certain FM stations.

DATES: Comments may be filed on or before August 13, 2018 and reply 
comments may be filed on or before September 10, 2018.

ADDRESSES: You may submit comments, identified by MB Docket No. 18-184, 
by any of the following methods:
     Federal Communications Commission's Website: http://

[[Page 32256]]

www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     People With Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-
0530 or TTY: (202) 418-0432. For detailed instructions for submitting 
comments and additional information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Chief, Media Bureau, 
Audio Division, (202) 418-2721; James Bradshaw, Deputy Division Chief, 
Media Bureau, Audio Division, (202) 418-2739. Direct press inquiries to 
Janice Wise at (202) 418-8165.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Inquiry, FCC 18-69, adopted June 4, 2018, and released June 5, 2018. 
The full text of this document is available electronically via the 
FCC's Electronic Document Management System (EDOCS) website at http://
https://www.fcc.gov/edocs or via the FCC's Electronic Comment Filing 
System (ECFS) website at http://https://www.fcc.gov/ecfs/. (Documents 
will be available electronically in ASCII, Microsoft Word, and/or Adobe 
Acrobat.) This document is also available for public inspection and 
copying during regular business hours in the FCC Reference Information 
Center, which is located in Room CY-A257 at FCC Headquarters, 445 12th 
Street SW, Washington, DC 20554. The Reference Information Center is 
open to the public Monday through Thursday from 8:00 a.m. to 4:30 p.m. 
and Friday from 8:00 a.m. to 11:30 a.m. Alternative formats are 
available for people with disabilities (braille, large print, 
electronic files, audio format), by sending an email to [email protected] 
or calling the Commission's Consumer and Governmental Affairs Bureau at 
(202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis of Notice of Inquiry

    1. Introduction. In this Notice of Inquiry (NOI), the Commission 
explores the possibility of amending part 73 of the Commission's Rules 
to create an intermediate class of FM broadcast stations in Zone II 
between Class A and Class C3, to be designated Class C4. Commission 
staff estimates that 127 Class C3 stations, or 14 percent of the total 
number of Class C3 stations, are operating with facilities that are 
less than the proposed Class C3 minimums and thus could be subject to 
reclassification to Class C4. It also explores the possibility of 
establishing a procedure whereby an FM station in the non-reserved band 
(Channels 221-300), regardless of Zone or station class, could be 
designated as a Section 73.215 facility, resulting in such station 
receiving interference protection based on its actual authorized 
operating parameters rather than the maximum permitted parameters for 
its station class.
    2. Class C4 proposal. This proceeding was initiated by a petition 
for rulemaking filed by SSR Communications, Inc. (SSR). SSR advocates 
the creation of a new Class C4 with an effective radiated power (ERP) 
that must exceed 6 kilowatts, a maximum ERP of 12 kilowatts, and a 
reference HAAT of 100 meters. The ERP that Class C3 stations must 
exceed would increase from 6 kilowatts to 12 kilowatts, but the maximum 
ERP would remain at 25 kilowatts. In addition, under the current rules, 
a station can operate below the minimum ERP for its class provided its 
HAAT allows it to exceed the class contour distance for the next lower 
class (for example, a Class C3 station must exceed the Class A contour 
distance of 28 kilometers). Under the SSR proposal, the next lower 
class for a Class C3 station would be Class C4, with a contour distance 
of 33 kilometers. SSR proposes amending Sections 73.207(b)(1), 
73.210(a), 73.210(b), 73.211(a)(1), 73.211(b), and 73.215(e) of the 
Rules to implement these changes. SSR argues that a new Class C4 would 
provide upgrade opportunities for Class A facilities, particularly 
minority-owned stations, and create consistent ERP intervals between FM 
classes.
    3. Affected stations and their listeners. Would the creation of a 
Class C4 materially benefit existing Class A stations by providing them 
with an opportunity to upgrade that is not possible today based on the 
current Class C3 parameters? Would Class A stations and their 
listeners, particularly in rural or underserved areas, benefit from the 
new Class C4? Is there a significant demand for the rule changes 
proposed by SSR? How many stations are likely to be affected by such a 
rule change? As suggested by SSR, would the creation of a Class C4 be 
particularly beneficial for minority-owned Class A stations by 
providing them with an opportunity to upgrade? Would this action 
encourage diversity of ownership in the FM broadcast industry? Would 
there be a detrimental effect on existing stations and/or their 
listeners generally, either from increased interference or 
reclassification (upgrade or downgrade)?
    4. Secondary services. How would a new Class C4 affect secondary 
services (FM translators and LPFM stations), as well as AM primary 
stations that rebroadcast on FM translator stations? Are there lawful 
ways to mitigate or eliminate the impact of this proposal on secondary 
services, and, if so, what measures would be effective or appropriate? 
To what extent, if any, does the Local Community Radio Act of 2010 
(LCRA) impact the Commission's ability to protect existing FM 
translator and LPFM stations? In particular, would such protections be 
consistent with the LCRA directive that the ``Federal Communications 
Commission, when licensing new FM translators, FM booster stations, and 
low-power FM stations . . . ensure . . . that . . . (3) [these 
stations] remain equal in status and secondary to existing and modified 
full-service FM stations''? In this respect, the Commission notes that 
it would be reluctant to adopt any proposal in this area that would 
have a significantly negative impact on FM translators and LPFM 
stations.
    5. Allocation goals. Given the maturity of the FM service, would an 
increased density of signals resulting from Class A stations upgrading 
to Class C4 provide improved FM service coverage, or merely contribute 
to a higher ``noise floor'' overall while only modestly benefiting 
individual stations? Would upgrades to Class C4 increase the overall 
number of radio stations available to listeners or create interference 
that would degrade reception for stations in areas where there is 
currently a listenable signal, resulting in fewer listening choices for 
listeners? More generally, is there a ``tipping point'' at which 
increasingly granular station classifications are no longer conducive 
to efficient signal coverage and, if so, has that point been reached?
    6. Implementation procedures. What is the appropriate balance of 
interests between the anticipated benefit of creating a new class of FM 
stations and the disruption entailed in the reclassification of 
existing stations? If a new class is created, should the Commission 
implement a blanket reclassification process, as it did in 1983 and 
1989, by requiring existing Class C3 stations to file for modification 
to meet the proposed revised minimum facility

[[Page 32257]]

requirements for Class C3 stations within a set time frame or be 
reclassified based on their actual operating facilities? Should the 
mere filing for a modification be sufficient to avoid reclassification 
or should the Commission also require construction to be completed by a 
date certain? If a date certain is set for filing a modification or 
completing construction, what would be a reasonable amount of time for 
licensees to comply? Would a blanket reclassification provide more 
reliable and timely opportunities for upgrade than the show cause 
procedure outlined in the next paragraph?
    7. Alternatively, should the Commission adopt a show cause 
procedure similar to that currently in use for Class C0, whereby a 
Class C3 station operating below the proposed revised minimum facility 
requirements for Class C3 stations would be reclassified only after the 
filing of a ``triggering'' application that requires it to be 
reclassified to Class C4? Should the affected Class C3 station have the 
opportunity to preserve its Class C3 status by filing a construction 
permit application to upgrade its facility to meet Class C3 minimums? 
The Commission notes that the Commission's licensing staff has found 
that the Class C0 show cause procedure appears to incentivize delay and 
contention between the parties. Have licensees experienced delay or 
other difficulties using the Class C0 show cause procedure? Is the 
blanket reclassification process described in the preceding paragraph 
preferable for that reason? Are there other implementation approaches 
the Commission should consider that might address or avoid problems 
identified with this show cause procedure?
    8. Other issues. To what extent, if any, does the LCRA impact the 
Commission's creation of a new class of FM stations or reclassification 
of existing FM stations; in particular, the provision that the 
Commission ``shall not amend its rules to reduce the minimum co-channel 
and first- and second-adjacent channel distance separation requirements 
in effect on [January 4, 2011] between--(A) low-power FM stations; and 
(B) full-service FM stations''? Are there specific rule changes that 
would be necessary or advisable to implement any of the foregoing 
proposals? The Commission also invites commenters to make suggestions 
as to how the Commission's forms and databases should be modified to 
implement the above proposals.
    9. Section 73.215 proposal. SSR argues that, by providing 
interference protection to a station's contours based on maximum class 
facilities, as opposed to the actual facilities, the Commission's rules 
overprotect stations operating with facilities below their class 
maximum. Accordingly, SSR proposes an amendment to Section 73.3573 of 
the Rules that would require such ``sub-maximum'' stations to be 
designated as Section 73.215 facilities using a procedure similar to 
the existing Class C0 show cause and reclassification procedure. 
Designation as a Section 73.215 facility would result in the sub-
maximum station receiving interference protection based on its actual 
authorized operating parameters rather than the maximum permitted 
parameters for its station class. Under SSR's proposed procedure, 
stations not already authorized under Section 73.215 that, for ten 
years prior to the filing of a triggering application, have 
continuously operated with a HAAT or ERP below that of the class 
maximum (or equivalent class maximum HAAT and ERP combination in the 
case of station operating with a HAAT exceeding its reference HAAT) 
would be given an opportunity to upgrade to maximum class facilities or 
be subject to designation as a Section 73.215 facility.
    10. SSR recommends a show cause procedure to implement its Section 
73.215 proposal. Specifically, the procedure would be initiated by the 
filing of a ``triggering'' application that specifies facilities that 
require the designation of the affected sub-maximum station as a 
Section 73.215 facility. Triggering applications may utilize Section 
73.215 and must certify that no alternative channel is available for 
the proposed service. Copies of a triggering application and related 
pleadings would be required to be served on the licensee of the 
affected sub-maximum station. If the staff concludes that a triggering 
application is acceptable for filing, it would issue an order to show 
cause why the affected sub-maximum station should not be designated as 
a Section 73.215 station. The order to show cause would provide the 
licensee of the sub-maximum station 30 days to express in writing an 
intention to seek authority to modify its technical facilities to its 
maximum class HAAT and ERP (or equivalent combination thereof) or to 
otherwise challenge the triggering application. If no such intention is 
expressed and the triggering application is not challenged, the 
affected sub-maximum station would be designated as a Section 73.215 
station and processing of the triggering application would be 
completed. If such intention is expressed within the 30-day period, an 
additional 180-day period would be provided during which the licensee 
of the sub-maximum station would be required to file an acceptable 
construction permit application to increase HAAT and/or ERP to its 
class maximum values (or equivalent combination thereof). Upon grant of 
such a construction permit application, the triggering application 
would be dismissed. As with Class C0 reclassifications, the licensee of 
the sub-maximum station would be required to serve on triggering 
applicants copies of any FAA submissions related to the application 
grant process. If the construction is not completed as authorized, the 
affected sub-maximum station would be automatically designated as a 
Section 73.215 facility. SSR's proposal raises issues similar to those 
posed by the Class C4 proposal, and the Commission seeks comment 
generally on the costs and benefits of the proposal.
    11. Affected stations and their listeners. Would the proposed 
Section 73.215 mechanism materially benefit stations seeking to upgrade 
and their listeners? What is the demand for such upgrades? Would there 
be a corresponding detrimental effect on listeners regarding loss of 
existing interference-free service provided by sub-maximum stations? 
The Commission has explained that its policy of protecting all stations 
as if they are operating at maximum permitted height or power for their 
class, even if they are in fact operating at or near the minimum 
permitted height and power for their class, ``permits stations to 
improve technical facilities over time and provides a certain degree of 
flexibility for transmitter relocations.'' To what extent would 
adoption of the Section 73.215 proposal undermine this policy? Is this 
policy still desirable in the mature FM service? What are the relevant 
factors that might affect the sub-maximum station's ability to upgrade 
to the class maximums, and have those factors changed due to 
technological or other developments? If a station has operated below 
maximum facilities for a sufficient period of time, can the Commission 
conclude that the station is either unwilling or unable to operate at 
maximum facilities, thereby justifying protecting such station based on 
actual operating parameters and allowing for more efficient utilization 
of FM spectrum? Is ten years of continuous ``sub-maximum'' operation 
the appropriate period of time before a station would be subject to 
involuntary Section 73.215 designation, as suggested by SSR, or is 
another period of time

[[Page 32258]]

appropriate? To what extent should transfers of control or assignments 
of licensees impact the relevant time period? That is, should the time 
period apply per station or per licensee? For example, if the relevant 
time period is ten years and a station that has operated below class 
maximums for nine years is transferred or assigned to a third-party, 
should the new licensee have ten additional years to upgrade to class 
maximums free from potential designation as a Section 73.215 facility?
    12. Secondary services. The Commission seeks comment on the likely 
impact of full service station upgrades using the proposed Section 
73.215 procedure on nearby secondary services or AM primary stations 
that rebroadcast on FM translator stations. Are there lawful ways to 
mitigate or eliminate the impact of this proposal on secondary 
services, and, if so, what measures would be effective or appropriate?
    13. Allocation goals. Would SSR's Section 73.215 proposal, if 
adopted, result in increased interference levels in the FM band? In 
particular, would the increased density of signals resulting from 
upgraded stations provide improved FM service coverage, or merely 
contribute to a higher ``noise floor'' overall while only modestly 
benefiting individual stations? Is this proposal in tension with the 
original purpose of Section 73.215 to afford applicants greater 
flexibility in the selection of transmitter sites? Should the 
Commission significantly expand the applicability of Section 73.215 as 
proposed by SSR, and what would be the policy and legal justifications 
for doing so? Does the Commission's long history of licensing thousands 
of stations in the reserved band--using a contour methodology based on 
stations' authorized facilities--show that expanding eligibility for 
Section 73.215 processing would result in increased or decreased 
services for listeners?
    14. Implementation procedures. If the Section 73.215 proposal is 
adopted, should the Commission follow SSR's suggested procedures, which 
are based on those currently in use for Class C0? Should the triggering 
applicant be required to certify that no alternative channel is 
available for the proposed service? Should the Commission use a show 
cause procedure, and if so, what deadlines would be appropriate?
    15. Alternatively, should the Commission adopt a more streamlined 
procedure whereby all sub-maximum stations would be provided a date 
certain by which they must file an upgrade application or automatically 
become subject to immediate designation as a Section 73.215 facility 
upon the filing of an acceptable application from another licensee 
seeking to upgrade its facilities? What would be a reasonable amount of 
time to allow sub-maximum stations to file upgrade applications before 
becoming subject to automatic designation as a Section 73.215 facility? 
Would such a procedure avoid unnecessary delays in providing new FM 
service and incentivize more stations to upgrade to their class 
maximums? Would there be any disadvantages with this approach? Are 
there other streamlined implementation approaches the Commission should 
consider?
    16. Other issues. The Commission invites comment on other details 
of SSR's Section 73.215 proposal. Which applicants should be permitted 
to use the proposed Section 73.215 procedure? Does ``sub-maximum'' 
include all stations operating at less than class maximums, or should 
the Commission establish a cutoff whereby a station would not be 
subject to designation as a Section 73.215 facility if it operates at a 
minimal distance below its class maximum contour distance, such as two 
kilometers? How would the proposal affect stations that are short-
spaced under Section 73.213 of the Rules? Are there specific rule 
changes that would be necessary to implement the proposal? The 
Commission also invites commenters to make suggestions as to how its 
forms and databases should be modified to implement the Section 73.215 
proposal.
    17. Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rule. None.

Ex Parte Rules

    18. Permit But Disclose. The proceeding this NOI initiates shall be 
treated as a ``permit-but-disclose'' proceeding in accordance with the 
Commission's ex parte rules. Ex parte presentations are permissible if 
disclosed in accordance with Commission rules, except during the 
Sunshine Agenda period when presentations, ex parte or otherwise, are 
generally prohibited. Persons making ex parte presentations must file a 
copy of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. Memoranda must contain a 
summary of the substance of the ex parte presentation and not merely a 
listing of the subjects discussed. More than a one or two sentence 
description of the views and arguments presented is generally required. 
If the presentation consisted in whole or in part of the presentation 
of data or arguments already reflected in the presenter's written 
comments, memoranda or other filings in the proceeding, the presenter 
may provide citations to such data or arguments in his or her prior 
comments, memoranda, or other filings (specifying the relevant page 
and/or paragraph numbers where such data or arguments can be found) in 
lieu of summarizing them in the memorandum. Documents shown or given to 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with Sec.  1.1206(b) 
of the rules. In proceedings governed by Sec.  1.49(f) of the rules or 
for which the Commission has made available a method of electronic 
filing, written ex parte presentations and memoranda summarizing oral 
ex parte presentations, and all attachments thereto, must be filed 
through the electronic comment filing system available for that 
proceeding, and must be filed in their native format (e.g., .doc, .xml, 
.ppt, searchable .pdf). Participants in this proceeding should 
familiarize themselves with the Commission's ex parte rules.

Filing Procedures

    19. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, 1.419, interested parties may file comments and 
reply comments on or before the dates indicated on the first page of 
this document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). Electronic Filers: Comments may be filed 
electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
    [ssquf] Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
    [ssquf] Paper Filers: Parties who choose to file by paper must file 
an original and one copy of each filing. If more than one docket or 
rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    [ssquf] Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or

[[Page 32259]]

overnight U.S. Postal Service mail. All filings must be addressed to 
the Commission's Secretary, Office of the Secretary, Federal 
Communications Commission.
    [ssquf] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to FCC Headquarters at 445 
12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 
8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes and boxes must be disposed of 
before entering the building.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW, Washington DC 20554.
    [ssquf] People with Disabilities: To request materials in 
accessible formats for people with disabilities (braille, large print, 
electronic files, audio format), send an email to [email protected] or 
call the Consumer & Governmental Affairs Bureau at 202-418-0530 
(voice), 202-418-0432 (tty).

Ordering Clause

    20. It is further ordered that, pursuant to the authority contained 
in Sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and 319 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 
301, 303, 307, 308, 309, 316, and 319, this Notice of Inquiry is 
adopted.


Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2018-14880 Filed 7-11-18; 8:45 am]
BILLING CODE 6712-01-P