Rule2023-28619
Low Power Protection Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 10, 2024
Effective
February 9, 2024
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) adopts rules to implement the Low Power Protection Act (LPPA or Act), which was enacted on January 5, 2023. The LPPA provides certain low power television (LPTV) stations with a limited window of opportunity to apply for primary spectrum use status as Class A television stations. With limited exceptions, the rules adopted herein are consistent with the Commission's proposals in the Notice of Proposed Rulemaking (NPRM) in this proceeding. In this Order, we further the implementation of the LPPA by establishing the period during which eligible stations may file applications for Class A status, eligibility and interference requirements, and the process for submitting applications.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 7 (Wednesday, January 10, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 7 (Wednesday, January 10, 2024)]
[Rules and Regulations]
[Pages 1466-1478]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28619]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 23-126; FCC 23-112; FR ID 192684]
Low Power Protection Act
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) adopts rules to implement the Low Power Protection Act
(LPPA or Act), which was enacted on January 5, 2023. The LPPA provides
certain low power television (LPTV) stations with a limited window of
opportunity to apply for primary spectrum use status as Class A
television stations. With limited exceptions, the rules adopted herein
are consistent with the Commission's proposals in the Notice of
Proposed Rulemaking (NPRM) in this proceeding. In this Order, we
further the implementation of the LPPA by establishing the period
during which eligible stations may file applications for Class A
status, eligibility and interference requirements, and the process for
submitting applications.
DATES: Effective February 9, 2024; except for 47 CFR 73.6030(c) and
73.6030(d) which are delayed. The Federal Communications Commission
will publish a document announcing the effective dates of the delayed
amendments in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Kim Matthews, Media Bureau, Policy
Division, 202-418-2154, <a href="/cdn-cgi/l/email-protection#a3c8cace8dcec2d7d7cbc6d4d0e3c5c0c08dc4ccd5"><span class="__cf_email__" data-cfemail="a5ceccc88bc8c4d1d1cdc0d2d6e5c3c6c68bc2cad3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order (Report and Order), in MB Docket No. 23-126; FCC 23-112,
adopted on December 11, 2023 and released on December 12, 2023. The
full text of this document is available for download at <a href="https://docs.fcc.gov/public/attachments/FCC-23-112A1.pdf">https://docs.fcc.gov/public/attachments/FCC-23-112A1.pdf</a>. To request materials
in accessible formats for people with disabilities (braille, large
print, electronic files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#21474242141115614742420f464e57"><span class="__cf_email__" data-cfemail="4e282d2d7b7e7a0e282d2d60292138">[email protected]</span></a>
or call the Consumer & Governmental Affairs Bureau at 202-418-0530
(voice), 202-418-0432 (tty).
Paperwork Reduction Act of 1995 Analysis
This document contains new or modified information collection
requirements. The Commission, as part
[[Page 1467]]
of its continuing effort to reduce paperwork burdens, will invite the
general public to comment on the information collection requirements
contained in this Report and Order as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002 (SBPRA), we will seek
specific comment on how the Commission might further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
Synopsis
I. Introduction
1. In this Report and Order, we adopt rules to implement the Low
Power Protection Act (LPPA or Act), Low Power Protection Act, Public
Law 117-344, 136 Stat. 6193 (2023), which was enacted on January 5,
2023. With limited exceptions, the rules adopted herein are consistent
with the Commission's proposals in the Notice of Proposed Rulemaking
(NPRM), Implementation of the Low Power Protection Act, 88 FR 22980
(April 14, 2023), in this proceeding.
II. Background
A. Low Power Television Service
2. The Commission created the LPTV service in 1982 to bring
television service, including local service, to viewers ``otherwise
unserved or underserved'' by existing full power service providers.
From its creation, the LPTV service has been a secondary service,
meaning LPTV stations may not cause interference to, and must accept
interference from, full power television stations as well as certain
land mobile radio operations and other primary services.
3. Currently, there are 1,889 licensed LPTV stations. These
stations operate in all states and territories, and serve both rural
and urban audiences. LPTV stations were required to complete a
transition from analog to digital operation in 2021, and all such
stations must now operate in digital format.
B. Class A Television Stations
4. In 2000, the Commission established a Class A television service
to implement the Community Broadcasters Protection Act of 1999 (CBPA).
The CBPA allowed certain qualifying LPTV stations to become Class A
stations, which provided those television stations primary status, and
thereby a measure of interference protection from full service
television stations.
5. Congress sought in the CBPA to provide certain LPTV stations a
limited window of opportunity to apply for primary status. Among other
matters, the CBPA set out certain certification and application
procedures for LPTV licensees seeking Class A designation and
prescribed the criteria for eligibility for a Class A license.
Specifically, under the CBPA, an LPTV station could qualify for Class A
status if, during the 90 days preceding the date of enactment of the
statute, the station: (1) broadcast a minimum of 18 hours per day; (2)
broadcast an average of at least 3 hours per week of programming
produced within the market area served by the station, or the market
area served by a group of commonly controlled low-power stations that
carry common local programming produced within the market area served
by such group; and (3) was in compliance with the Commission's
requirements for LPTV stations.
6. In addition to these qualifying requirements, the CBPA gave the
Commission discretion to determine that the public interest,
convenience, and necessity would be served by treating a station as a
qualifying LPTV station under the CBPA, or that a station should be
considered to qualify for such status for other reasons determined by
the Commission, even if it did not meet the qualifying requirements in
the statute discussed above. In implementing the CBPA, the Commission
concluded, however, that it would not accept applications under the
CBPA from LPTV stations that did not meet the statutory criteria and
that did not file a certification of eligibility by the statutory
deadline, absent compelling circumstances.
C. Low Power Protection Act
7. Like the CBPA, the LPPA is intended ``to provide low power TV
stations with a limited window of opportunity'' to apply for primary
status as a Class A television licensee. The Act gives LPTV stations
one year to apply for a Class A license, from the date that the
Commission's rules implementing the LPPA become effective.
8. The LPPA sets forth eligibility criteria for stations seeking
Class A designation that are similar to the eligibility criteria under
the CBPA, as discussed above. Specifically, the LPPA provides that the
Commission ``may approve'' an application submitted by an LPTV station
if the station meets the following eligibility criteria:
<bullet> during the 90-day period preceding the date of enactment
of the LPPA (i.e., between October 7, 2022 and January 5, 2023), the
station satisfied the same requirements applicable to stations that
qualified for Class A status under the CBPA, ``including the
requirements . . . with respect to locally produced programming;''
<bullet> the station satisfies the Class A service requirements in
47 CFR 73.6001(b)-(d) or any successor regulation;
<bullet> the station demonstrates that it will not cause any
interference as described in the CBPA;
<bullet> during that same 90-day period, the station complied with
the Commission's requirements for LPTV stations; and
<bullet> as of January 5, 2023, the station operated in a
Designated Market Area with not more than 95,000 television households.
Finally, the LPPA requires that a station accorded Class A status
must (1) be subject to the same license terms and renewal standards as
a license for a full power television broadcast station (except as
otherwise expressly provided in the LPPA) and (2) remain in compliance
with the LPPA's eligibility criteria during the term of the station's
license.
III. Discussion
9. The rules and policies we adopt herein to implement the LPPA are
largely consistent with the Commission's proposals in the NPRM, with
one exception. We adopt the proposals regarding the application period,
the definition of a low power TV station and eligibility criteria,
applicable interference requirements, and use of the Nielsen Local TV
Station Information Report (Local TV Report) to determine the DMA where
the LPTV station's transmission facilities are located for purposes of
eligibility. We do not, however, adopt in full the proposal to require
that all licensees that convert to Class A status pursuant to the LPPA
remain in compliance with the LPPA's DMA eligibility requirement for
the term of their Class A license. Instead, we conclude that LPPA Class
A stations will not be required to continue to comply with the 95,000
TV household threshold if the population in the station's DMA later
exceeds the threshold amount for specific reasons beyond the station's
control. Finally, we adopt the NPRM proposals regarding the process for
applying for Class A status pursuant to the LPPA, decline to amend our
rules, as requested, to give LPPA Class A stations must carry rights
equivalent to full service stations, and decline to adopt a requested
de minimis exception to the LPPA's DMA eligibility requirement.
[[Page 1468]]
A. Application Period
10. For the reasons discussed in the NPRM and described below, we
adopt the NPRM's proposals regarding the application period. In the
NPRM, the Commission proposed to provide LPTV stations a period of one
year to apply for Class A status under the LPPA. The Commission also
tentatively concluded that the public interest would not be served by
providing for conversion to Class A status beyond the one year period
contemplated by the LPPA. The Commission proposed, however, that,
similar to its approach in implementing the CPBA, if a potential
applicant faces circumstances beyond its control that prevents it from
filing by the application deadline, the Commission would examine those
instances on a case-by-case basis to determine the potential
applicant's eligibility for filing. No commenter addressed these
issues.
11. The LPPA provides LPTV stations a period of one year to apply
for Class A status. The LPPA also provides that the Commission may
approve an application for Class A status if the application satisfies
section 336(f)(2) of the Communications Act of 1934, as amended (which
codifies the CBPA). This provision sets forth the eligibility criteria
for stations qualifying for Class A status, and gives the Commission
discretion to determine whether a station that does not satisfy such
criteria should otherwise qualify. In the Class A Order, the Commission
declined either to expand these eligibility criteria or to allow
ongoing conversion to Class A status beyond the 6 month window
contemplated in the CBPA. Absent comment on this issue, we find no
reason to deviate from these prior determinations and the tentative
conclusions in the NPRM that the application window will be limited to
the one-year application window specified in the LPPA, but that we will
examine on a case-by-case basis a potential applicant's claim that it
was prevented from filing by the application deadline due to
circumstances beyond its control.
B. Eligibility Requirements
1. Definition of Low Power TV Station
12. As proposed in the NPRM, we apply the Commission's recently
updated definition of a ``low power TV station'' for purposes of
determining which stations are eligible for Class A status under the
LPPA. The LPPA provides that the term ``low power TV station'' has the
meaning given the term ``digital low power TV station'' in Sec. 74.701
of our rules, or any successor regulation. No commenter addressed this
proposal. We will apply this recently updated definition of an LPTV
station for purposes of determining which stations are eligible for
Class A status under the LPPA.
13. We adopt the tentative conclusion in the NPRM that television
translator stations are unlikely to satisfy the eligibility
requirements of the LPPA. As explained in the NPRM, translator stations
``operate for the purpose of retransmitting the programs and signals of
a television broadcast station, without significantly altering any
characteristic of the original signal other than its frequency and
amplitude,'' and thus, are not permitted to ``originate programming''
as defined in the rules. The sole commenter to address this issue,
News-Press & Gazette Broadcasting (NPG), agrees that excluding
television translator stations from eligibility under the LPPA ``is a
practical approach for most translators'' but argues that ``additional
flexibility is warranted'' for TV translator stations such as NPG's
translator.
14. KXPI-LD, Pocatello, Idaho, retransmits the signal of full power
station KIDK, (Fox), Idaho Falls, Idaho. According to NPG, ``KXPI-LD is
classified in the Commission's records as a digital TV translator
station, but it functions more like an originator of programming than a
translator; it is a primary Fox Network affiliate providing local news,
weather, and information to the Pocatello community. . . .'' NPG argues
that KXPI-LD meets all of the LPPA's eligibility requirements, ``except
its ministerial technical classification as a digital TV translator.''
NPG also argues that ``the FCC's `low power TV station' definition,
Rule 74.701(k), encompasses stations like KXPI-LD that retransmit the
signal of a TV broadcast station, and does not require program
origination.'' NPG urges that the Commission permit stations like KXPI-
LD to be eligible for the Class A filing opportunity afforded by the
LPPA.
15. We affirm our tentative conclusion that translator stations are
unlikely to satisfy the eligibility requirements of the LPPA. NPG's
argument that the Commission's definition of a low power TV station
encompasses stations like KXPI-LD that retransmit the signal of a TV
broadcast station, and does not require program origination, is
misplaced. LPAA section 2(c)(2)(B)(i)(I) requires that, during the 90-
day eligibility period, an LPTV station must broadcast an average of at
least three hours per week of programming produced within the market
area served by the station. As a translator station, KXPI-LD
retransmits the programming feed it obtains from full-power station
KIDK. NPG does not demonstrate that the KIDK programming that KXPI-LD
is retransmitting was produced in KXPI-LD's own noise limited contour.
Thus, NPG has failed to demonstrate how a translator station like KXPI-
LD can satisfy the requirement of LPAA section 2(c)(2)(B)(i)(I) to
broadcast an average of at least three hours per week of programming
produced within the market area served by the translator station.
2. Eligibility Criteria
16. As noted above, the LPPA sets forth eligibility criteria for
stations seeking Class A designation that are similar to the
eligibility criteria under the CBPA. Specifically, the LPPA provides
that the Commission ``may approve'' an application submitted by an LPTV
station if the station, during the 90-day period preceding the date of
enactment of the LPPA, meets the same requirements in section 336(f)(2)
of the Communications Act applicable to stations that qualified for
Class A status under the CBPA, ``including the requirements . . . with
respect to locally produced programming.'' Thus, to qualify for Class A
status, in the 90 days preceding the LPPA's January 5, 2023 effective
date (between October 7, 2022 and January 5, 2023) an LPTV station must
have met the following requirements: (1) the station must have
broadcast a minimum of 18 hours per day; (2) the station must have
broadcast an average of at least 3 hours per week of programming that
was produced within the market area served by such station, or the
market area served by a group of commonly controlled LPTV stations that
carry common local programming produced within the market area served
by such group; and (3) the station must have been in compliance with
the Commission's requirements applicable to LPTV stations. In addition,
from and after the date of its application for a Class A license, the
station must be in compliance with the Commission's operating rules for
full power television stations.
17. Locally Produced Programming. We will define locally produced
programming for purposes of the LPPA as that ``produced within the
predicted noise-limited contour (see Sec. 73.619(c)) of a Class A
station broadcasting the program or within the contiguous predicted
noise-limited contours of any of the Class A stations in a commonly
owned group.'' Block supports this proposed definition of ``locally
produced programming,'' and with the exception of REC's request for
clarification addressed below, no other
[[Page 1469]]
commenter addressed this issue. As proposed in the NPRM, we will apply
this definition to define ``programming produced within the market area
served by the station'' for purposes of determining eligibility for
Class A status under section 2(c)(2)(B)(i)(I) of the LPPA.
18. We decline at this time to adopt REC's proposal that we clarify
the definition of ``locally produced programming'' for purposes of the
LPPA. REC advocates that the Commission (1) clarify that local
programming may not be repeated within the same week to satisfy the
weekly locally produced programming requirement; (2) require that local
programming be aired on the same programming stream and not aggregated
among multiple streams to meet the minimum requirement; (3) clarify
that the local programming requirement need only be satisfied on one
programming stream of simultaneous video and related audio programming;
and (4) require that the programming must be simultaneous video and
audio programming where the audio portion of the programming directly
relates to the video portion of the programming. We note that the
concerns underlying REC's proposed clarifications are equally
applicable to existing Class A stations under the CBPA. Any change to
the definition of ``locally produced programming'' to address such
concerns should be considered with respect to all Class A stations, not
just those stations that convert to Class A status pursuant to the
LPPA. Because the Commission did not propose to revise the definition
of locally produced programming for purposes of Class A stations
generally, we find REC's proposals to be outside the scope of this
proceeding. Accordingly, we decline to pursue REC's proposals at this
time.
19. Operating Requirements. For the reasons contained in the NPRM
and discussed below, we adopt the NPRM's proposals related to operating
requirements. The NPRM tentatively concluded that all applicants
seeking to convert to Class A status under the LPPA must certify that
they have complied with the Commission's requirements for LPTV stations
during the 90-day eligibility period. The NPRM also proposed that a
station applying to convert to Class A status must comply, beginning on
the date of its application for a Class A license and thereafter, with
the same Commission Part 73 operating rules that apply to Class A
stations that converted pursuant to the CBPA. This includes the
requirement that existing Class A stations comply with children's
programming and online public inspection file (OPIF) regulations. No
commenter opposed this approach. Absent objection, we adopt these
proposals. Regarding our requirement that Class A TV applicants and
licensees maintain an OPIF, NPG notes that LPTV stations have no OPIF
and are therefore unable to upload records to the system. The
Commission will activate an OPIF for LPTV stations that apply to
convert to Class A status pursuant to the LPPA and inform applicants
when that station's OPIF is ready for the applicant to upload documents
required to be maintained in OPIF.
20. We also require that all stations that receive a Class A
license under the LPPA comply with all Class A regulations, as proposed
in the NPRM. As discussed in the NPRM, the LPPA requires that LPPA
Class A stations ``remain in compliance'' with the Act's eligibility
criteria ``during the term of the license.'' This includes, among other
things, the requirements to broadcast a minimum of 18 hours per day and
to broadcast an average of at least three hours per week of locally
produced programming each quarter. In addition, the station must
continue to comply with the interference requirements adopted herein.
Further, we adopt the tentative conclusion in the NPRM that there is no
reason to exempt LPTV stations converting to Class A status under the
LPPA from other rules applicable to LPTV stations that converted to
Class A status under the CBPA, given that the service requirements in
the LPPA closely track those in the CBPA and thus it makes sense for
Class A rules generally to apply. No commenter addressed these issues.
21. Finally, we conclude that the requirement to comply with the
Class A eligibility requirements begins when an LPTV station's Class A
application is submitted. The LPPA states that the ``Commission may
approve an application [for Class A status] if the low power TV station
submitting the application--satisfies--paragraphs (b), (c), and (d) of
73.6001,'' which contains the requirements that Class A stations
broadcast a minimum of 18 hours per day and broadcast an average of at
least three hours per week of locally produced programming each
quarter. This requirement is distinct from the separate statutory
obligation to meet the eligibility requirements during the 90-day
eligibility period of October 7, 2022 to January 5, 2023. No commenter
addressed this issue. As discussed above, the LPPA requires that
applicants continue to broadcast a minimum of 18 hours per day and to
broadcast an average of at least three hours per week of locally
produced programming each quarter after a Class A license is granted.
We conclude that the language quoted above would be rendered
superfluous if we did not interpret it to apply these requirements from
the time the Class A application is submitted. Thus, the requirement to
broadcast a minimum of 18 hours per day and broadcast an average of at
least three hours per week of locally produced programming each quarter
begins when a station submits an application to convert to Class A
status pursuant to the LPPA and continues for the term of the Class A
license.
22. License Application and Documentation. As proposed in the NPRM,
we will require an applicant to certify in its application that its
station meets the operating and programming requirements of the LPPA.
No commenter objected to these proposals. We believe these
certification requirements will assist us with the orderly processing
of applications received under the LPPA, and thus we adopt the
proposals. Finally, we also require that an applicant certify that it
was in compliance with the Commission's requirements applicable to LPTV
stations.
23. Consistent with the tentative conclusion in the NPRM, we
require an applicant to submit, as part of its application, documents
to support its certification that it meets the operating and
programming requirements of the LPPA. As noted in the NPRM, the
Commission staff may later determine that additional documentation is
needed to evaluate an application and may at that time require an
applicant to submit additional, specific documentation during
consideration of the application. We believe this approach will ensure
eligibility while preserving flexibility for applicants. We decline to
permit applicants to certify that they meet operating and programming
requirements without submission of supporting documentation, as Block
suggests. We believe such an approach would lack the information
necessary for the Commission staff to undertake a sufficient review of
the application in these circumstances. NAB suggests that we require
stations to provide ``a statement concerning the station's operating
schedule and a list of locally produced programs'' at the application
stage. We will adopt NAB's suggestion and require applicants to provide
with their application a statement concerning the station's operating
schedule during the 90 days preceding January 5, 2023 as well as a list
of locally produced programs aired during that time period. We believe
that requiring applicants to
[[Page 1470]]
submit this basic information in support of their certification that
they meet the LPPA's eligibility criteria will assist us in processing
applications. In addition, an applicant should submit whatever
additional documents available to the applicant that it believes best
support its certification that it meets the operating and programming
requirements of the Act. For example, to support its certification that
the station was on the air at least 18 hours each day during the
eligibility period, a station could provide electric power bills from a
third party vendor that specify the station's broadcast facility
location for the designated period, and/or copies of any program
guides, EAS logs, or agreements to purchase and air programming on the
specified station during the times of operation in an amount sufficient
to satisfy this operating requirement. If the station was silent during
any portion of the eligibility period, the station must identify any
silent periods and the reasons why the station was silent. To support
its certification that a station aired an average of at least three
hours of locally produced programming each week, the station could, for
example, submit copies of any agreements to purchase and air such
programming and/or identify the producer of any programming it claims
is locally produced, the location where the programming was produced,
and records of advertisements aired during locally produced programming
showing that the programming was in fact aired.
24. Apart from a statement regarding the station's operating
schedule and a list of locally produced programming aired during the 90
days preceding January 5, 2023, we decline to mandate the form of the
additional documents that applicants submit to support their
applications. We recognize that some applicants may not have specific
types of documentation, or that a specific document may not be in a
form that supports the applicant's certification. In light of that, we
permit each applicant to provide with the station's application,
documents that it has that best support its certification that it met
the operational and programming requirements of the LPPA during the
eligibility period. The Commission staff will review the documentation
on a case-by-case basis and determine if it will need to request
additional documentation before it can make a determination whether to
grant a Class A license application.
25. Alternative Eligibility Criteria. As proposed in the NPRM, we
will allow deviation from the strict statutory eligibility criteria
under the LPPA only where deviations are insignificant or where there
are compelling circumstances such that equity mandates a deviation. No
commenter disagreed with this approach.
26. We conclude that, similar to the Commission's approach in
implementing the CBPA, we will allow deviation from the strict
statutory eligibility criteria in the LPPA only where such deviations
are insignificant or where there are compelling circumstances such that
equity mandates a deviation. We will consider any such requests on a
case-by-case basis. As the Commission tentatively concluded in the
NPRM, we believe that the LPPA provides precise and limited eligibility
criteria and, except in very limited circumstances, we are not inclined
to expand the specific qualifying criteria beyond that identified in
the statute.
3. Interference Requirements
27. We adopt the tentative conclusions in the NPRM that our
interference rules applicable to existing Class A stations, including
requirements that were adopted subsequent to enactment of the CBPA in
1999, will apply to stations that convert to Class A status pursuant to
the LPPA. This approach will ensure that LPTV stations converting to
Class A status under the LPPA will not cause interference to the
licensed or previously proposed facilities of digital broadcast
stations, including full power, Class A, LPTV and TV translator
stations.
28. NPG generally supports that the current interference rule
rather than the old analog rule should be applied. However, NPG would
have us provide flexibility to permit interference beyond what is
permitted in our current rules. NPG states that the Commission should
adopt a ``flexible approach'' granting applications that would violate
the rule ``if the applicant is able to demonstrate no actual
interference, acceptance by the licensee subject to such interference,
or other showing that the public interest is served by the applicant
obtaining Class A status.'' We are not persuaded to grant this request.
First, we do not anticipate any scenarios where interference is
predicted, but the applicant is able to demonstrate a lack of actual
interference. The TVStudy software used to prepare and process
applications already considers the elements likely to cause actual
interference. Specifically, TVStudy makes full use of terrain shielding
and Longley-Rice terrain propagation methods to determine whether a
proposed facility is predicted to cause impermissible interference
consistent with OET Bulletin No. 69, accounting for unique
characteristics such as terrain. For this reason, we do not believe
there would be merit in accepting other methods of determining
interference. Second, the Commission's rules already allow applicants
and licensees to accept interference subject to Commission approval,
and the Media Bureau will continue to consider and accept interference
agreements in processing Class A license applications filed pursuant to
the LPPA without the need to adopt additional flexibility. Finally, we
reject NPG's suggestion that waiver of television broadcast
interference protection rules should be considered upon undefined
public interest arguments. NPG provides no example--and we can imagine
none--where we have granted an LPTV station primary status that caused
interference to a licensed (or previously proposed) broadcast facility
entitled to protection. Congress clearly intended the LPPA to apply to
a discrete number of LPTV stations that satisfy specific eligibility
requirements and protect existing stations and previously proposed
facilities. We decline to adopt an exception that would contravene this
careful balance.
29. Protection of Land Mobile Stations. The LPPA provides that the
Commission may approve an application by an LPTV station if it
``demonstrates to the Commission that the Class A station for which the
license is sought will not cause any interference described in section
336(f)(7) of the Communications Act of 1934. . . .'' Section
336(f)(7)(C) of the CBPA provides that the Commission may not grant a
Class A license or modification of license where the Class A station
will cause interference within the protected contour of land mobile
stations. We adopt the proposal in the NPRM that Class A applications
will not be grantable where the Class A station will cause interference
within the protected contour of land mobile stations which have been
allocated the use of TV channels 14-20 in certain urban areas of the
country, as well as channel 16 in the New York City metropolitan area.
We received no specific objection to this proposal. We note that in
implementing the CBPA, the Commission implemented the same interference
protections and procedures which are prescribed in Sec. 74.709 of the
rules, and these rules have not changed.
30. We decline to adopt as both unnecessary and outside the scope
of this proceeding, the County of Los Angeles, California's request
that we incorporate by reference comments in a proceeding requested by
the Land
[[Page 1471]]
Mobile Communications Council regarding rules governing separation
between land mobile stations and television stations located in the T-
Band. Unless and until there is a change in the applicable rules, we
will apply our existing land mobile protection requirements in
considering applications to convert to Class A status pursuant to the
LPPA. We note that in limiting eligibility to LPTV stations operating
in a DMA or an equivalent with not more than 95,000 television
households, Congress intended to convey the benefits of Class A status
under the LPPA to LPTV stations operating in smaller DMAs. T-band radio
systems, which are used for public safety and industrial/business land
mobile communications, operate on 470-512 MHz (television channels 14
through 20) in 13 large cities, located in the largest DMAs with more
than 1,000,000 television households. LPTV stations operating in larger
DMAs or an equivalent television market are not eligible for Class A
status under the LPPA and thus, it is unlikely that land mobile
operations in the T-band will be affected by the LPPA.
4. Designated Market Area
31. The LPPA requires that an LPTV station must demonstrate that as
of January 5, 2023, the station ``operates in a Designated Market Area
with not more than 95,000 television households.'' The LPPA further
states that DMA means ``(A) a [DMA] determined by Nielsen Media
Research or any successor entity; or (B) a [DMA] under a system of
dividing television broadcast station licensees into local markets
using a system that the Commission determines is equivalent to the
system established by Nielsen Media Research . . .'' The Commission
sought comment in the NPRM on (1) the meaning of the word ``operates''
in the LPPA, and (2) whether to adopt the Nielsen Local TV Station
Information Report (Local TV Report) for determining DMAs or an
equivalent alternative local market system. We address each of these
issues below.
32. ``Operates'' in the DMA. As proposed in the NPRM, we conclude
that ``operates'' means that the LPTV station applying for Class A
status under the LPPA must demonstrate that its transmission
facilities, which include the structure on which its antenna is
mounted, are located within the qualifying DMA. No commenters addressed
this issue. We find that this requirement is consistent with Congress's
intent to limit Class A status to stations located in small DMAs, as
evidenced by its limiting eligibility for Class A status under the LPPA
to LPTV stations operating in a DMA or an equivalent with not more than
95,000 television households. To make the necessary demonstration, we
will require applicants to provide the following information as it
existed on January 5, 2023, as proposed in the NPRM: (1) the
coordinates of the station's transmission facilities (i.e., the
structure on which its antenna is mounted); (2) the city/town/village/
or other municipality and county in which the transmission facilities
are located; and (3) the qualifying DMA in which the station's
transmission facilities are located.
33. Use of Nielsen to Determine DMAs. We also adopt the proposal in
the NPRM to use the Nielsen Local TV Report in determining the DMA
where the LPTV station's transmission facilities were located as of
January 5, 2023. First, the decision is fully consistent with the LPPA
which contemplates the use of Nielsen. Furthermore, as explained in the
NPRM, use of the Nielsen Local TV Report is consistent with the
Commission's Nielsen DMA Determination Update Order, which adopted
Nielsen's monthly Local TV Report as the successor publication to
Nielsen's Annual Station Index and Household Estimates and determined
that the Local TV Report should be used to define ``local market'' as
stated in other statutory provisions and rules relating to carriage,
including retransmission consent, distant signals, significantly
viewed, and field strength contour. When the Commission sought comment
on what publication to use for DMA determinations in that proceeding,
commenters unanimously supported use the Local TV Report. Thus, we note
that the record in that proceeding indicated that the Local TV Report
was the sole source of information regarding DMA determinations and
that there was no company currently accredited to determine the local
market area of broadcast television stations. In addition, some
commenters in this proceeding support our decision to use the Nielsen
Local TV Report for purposes of implementing the LPPA. As NAB points
out, the Commission and the television industry have long relied on
Nielsen DMA data to define television markets. REC notes that the
Nielsen Local TV Report provides a ``cut-and-dry'' determination of a
station's DMA, and that the ``debate and development of any alternative
system would further delay the process.''
34. While the LPPA defines a DMA as ``a [DMA] determined by Nielsen
Media Research or any successor entity,'' it also provides that a DMA
may be ``a [DMA] under a system of dividing television broadcast
station licensees into local markets using a system that the Commission
determines is equivalent to the system established by Nielsen Media
Research. . . .'' The NPRM sought comment on alternatives to the
Nielsen Local TV Report that would be ``equivalent to the system
established by Nielsen Media Research.'' For the reasons discussed
below, we decline to adopt any of the alternatives proposed. The NPRM
specifically sought comment on the LPTV Broadcasters' Association
(LPTVBA) requests that the Commission use Metropolitan Statistical
Areas (MSAs) and Rural Service Areas (RSAs) as defined by the Office of
Management and Budget (OMB) using census data to implement the LPPA.
Some commenters support the suggestion. Flood contends that MSA market
definitions ``more accurately reflect the characteristics of the LPTV
station's service area that are pertinent to determining eligibility''
under the LPPA. Flood also argues that the Nielsen DMAs are
``geographically overbroad'' and group some of the most rural areas in
the U.S. with distant major cities, rendering some stations in rural
areas ineligible for Class A status. Flood also notes that, under a DMA
approach, similarly situated LPTV stations in immediately adjacent
counties would receive inconsistent eligibility determinations, and, in
some situations, stations in densely populated, larger counties would
be eligible while those in adjacent, smaller, less densely populated
counties would be ineligible. The Identical Commenters urge the
Commission to ``create a TV market definition system that relies on . .
. MSAs as the primary criteria for determining a set of geographic
areas equivalent to the Nielsen DMA metric of 95,000 households or
fewer.'' They also note that the Nielsen DMA system does not include
LPTV stations in its assessments and that ``Nielsen's data is private
and requires costly fees for access.''
35. We decline to use market classifications based on Census data,
such as MSAs or RSAs, for purposes of implementing the LPPA. The LPPA
specifically directs that the Commission use either Nielsen DMAs or a
``system of dividing television broadcast station licensees into local
markets'' that is ``equivalent'' to the system established by Nielsen.
Census classifications are not a ``system of dividing television
broadcast station licensees into local markets,'' and thus cannot be
considered ``equivalent'' to the system established by Nielsen. Such
[[Page 1472]]
classifications do not reflect television stations in the market, the
reach of those local stations, the location of the populations they
serve, or local viewing patterns. On the other hand, a Nielsen DMA is
an ``exclusive geographic area in which the home market television
stations hold a dominance of total hours viewed'' and ties specifically
to television viewing markets. Thus, we conclude census-based
categories are not ``equivalent'' to the system established by Nielsen.
In addition, we note that classifications based on Census data are
based on population and group urban areas (the population ``nucleus'')
with outlying counties ``that have a high degree of integration'' with
the population nucleus based on commuting trends. OMB itself warns that
such classifications do not themselves adequately differentiate between
urban and rural areas. Thus, these census classifications do not
address the concerns raised by those commenters who argue that Nielsen
DMAs are geographically overbroad. We also note that the kind of
inconsistent eligibility results that some commenters argue would occur
using Nielsen DMAs are inevitable with any system that divides the
country into geographic markets, and are not unique to Nielsen.
Furthermore, we decline Identical Commenters' invitation that the
Commission fabricate a new classification system based on Census data
because we find that such an exercise is unnecessary due to the
availability of Nielsen data which is appropriate for this purpose. We
also believe that such an exercise would significantly delay our
ability to implement the LPPA. We also do not believe the failure of
Nielsen to assign LPTV stations to DMAs is relevant because the
eligibility requirement is that the station ``operate'' in the DMA
(that is, its transmission facilities are located within the qualifying
DMA), not that it be assigned to the DMA. Finally, reference to the
fact that Nielsen is a private company that charges for some of its
materials is not a barrier to our decision here. Nielsen has
represented that it will provide to stations at no charge information
about the DMA to which the station is assigned, and information about
the number of TV households in each DMA is publicly available.
36. We also reject RCC's argument that our proposed adoption of an
approach that limits eligibility under the LPPA to LPTV stations in
DMAs with no more than 95,000 TV households is ``nonsensical.'' This
commenter points out that, under this approach, only thirty-three
Nielsen DMAs would qualify under the LPPA (in other words, only 33 out
of 210 DMAs), amounting to only 1.6% of TV households. As a result, RCC
argues that Congress could not have intended for use of Nielsen DMAs.
We disagree. Congress clearly intended that eligibility under the LPPA
be limited, as the Act expressly provides that eligibility is limited
to DMAs with no more than 95,000 TV households. As NAB notes, elevating
LPTV stations from secondary to primary Class A status comes at the
cost of ``effectively block[ing] coverage and service improvements by
full-service stations.'' In turn, Congress sought to allow certain LPTV
stations in only smaller DMAs (not all small LPTV stations or all LPTV
stations in rural areas) to elevate to primary status. We decline to
read the LPPA as promoting maximum elevation of LPTV stations to
primary status; rather, Congress adopted a much more balanced approach.
37. We also decline to use Comscore data as an alternative to the
Nielsen Local TV Report for purposes of the LPPA, as advocated by
several commenters. Like Nielsen, Comscore is a media analytics company
that produces a list of television market areas and a calculation of
the number of television households in each market. Because Comscore,
like Nielsen, has a proprietary market system and requires payment for
access, LPTVBA opposes adoption of Comscore data as an alternative
local market system. REC comments that ``the debate and development of
any alternate system'' to Nielsen ``would further delay the process and
could defeat the purpose of limiting'' Class A conversions to rural
areas, but also noted that Comscore markets ``could be'' comparable to
Nielsen DMAs and should be considered. While it is possible that
Comscore could qualify as a ``system of dividing television broadcast
station licensees into local markets'' that is ``equivalent'' to the
system established by Nielsen, we find that the record here does not
establish any material benefits from use of Comscore either in addition
to or in place of Nielsen for purposes of the LPPA, nor that any such
benefits would outweigh the uncertainty and delay that use of Comscore
would have in issuing Class A licenses. In particular, we are concerned
about introducing uncertainty into the application review process, in
the instance where Comscore's market classifications may differ from
Nielsen. The lack of a compelling reason to select a different
classification system instead of Nielsen weighs in favor of our
decision to use Nielsen Local TV Report for purposes of implementing
the LPPA.
38. Finally, we decline the requests of three other commenters who
argue in favor of other alternatives to Nielsen DMAs. One Ministries
advocates that the Commission should allow LPTV stations to demonstrate
that the geographic area covered by the station is a subset of a larger
DMA, such as when the station is in a hyphenated DMA, i.e., Chico-
Redding. One Ministries argues that Nielsen identifies Chico and
Redding separately for purposes of radio markets, that LPTV stations
cover roughly the same area as radio stations, and that no LPTV station
in Chico-Redding covers both of those cities. The LPPA directs that the
Commission define DMA using Nielsen or an ``equivalent'' system of
local TV markets, and dividing Nielsen hyphenated markets into separate
markets for purposes of the LPPA would not be ``equivalent'' to the
system established by Nielsen. As NAB notes, more than 40 percent of
Nielsen markets are hyphenated, and allowing these markets to be
treated as separate markets would create a system that is dramatically
different from the current Nielsen DMA market definitions. JB Media
Group argues that Nielsen DMAs do not account for variables such as
interference that ``can significantly impact viewership'' and urges
``an alternative approach that takes into account interference, actual
households, and signal power under different weather conditions.'' We
find that it would be impractical and lead to delay in implementing the
LPPA for Commission staff to define markets based on factors such as
weather and actual viewership, and JB Media Group does not offer an
existing alternative market definition based on these factors. Finally,
RCC argues that the Commission should allow all LPTV stations whose
``Section 307(b) community of license has fewer than 95,000 TV
households'' to convert to Class A status. We conclude that such a
system of defining local TV markets would be very different than the
one required by the LPPA to be ``equivalent'' to the system established
by Nielsen, which defines larger geographic regions than community of
license.
5. License Standards (Ongoing Eligibility Requirements)
39. We will not require LPPA Class A stations to continue to comply
with the 95,000 TV household threshold if the population in the
station's DMA later exceeds the threshold amount as a result of changes
beyond the station's control. In the NPRM, the Commission stated its
[[Page 1473]]
belief that the LPPA requirement that stations remain in compliance
with the Act's eligibility requirements for the term of the Class A
license means that stations that convert to Class A status must
continue to operate in DMAs with not more than 95,000 television
households in order to maintain their Class A status. The Commission
noted that, under this interpretation of the Act, a station that
converted to Class A status pursuant to the LPPA would no longer be
eligible to retain Class A status if the population in its DMA later
grows to more than 95,000 television households.
40. All of the commenters that addressed this interpretation of the
Act oppose requiring LPPA Class A stations to remain in DMAs that meet
the threshold population restriction, at least without some exceptions.
Commenters argue that if the Commission were to require continued
compliance with this restriction, licensees would lack regulatory
certainty to pursue Class A status, which would undermine the economic
viability of Class A stations, and thus fewer stations would likely
apply. Commenters also contend that it would be unfair to mandate that
a station lose rights through no fault of its own if the population
rose above the 95,000 threshold, that the proposal would limit a
licensee's ability to modify its facilities in the future (e.g., by
relocating), and that the proposal would impose different license terms
for LPPA Class A stations than for existing Class A stations, which
face no similar possible loss of their Class A status.
41. Commenters also argue that the Commission proposal is not
required by the statute. Section 2(c)(2)(B)(iii) of the LPPA states
that the Commission may approve conversion to Class A status for a
station that ``as of the date of enactment of this Act, operates in a
Designated Market Area with not more than 95,000 television
households.'' While section 2(c)(3)(B) directs that a converted station
is to remain in compliance with paragraph (2)(B)'s eligibility
requirements during the term of the license, commenters argue that this
language is properly interpreted to require only that a station be in
compliance with the DMA requirement ``as of'' the date of enactment of
the LPPA (January 5, 2023), not that it remain in compliance going
forward.
42. We are persuaded by commenters who argue that a station, once
it converts to Class A status pursuant to the LPPA, should not later
lose eligibility and therefore be required to revert back to an LPTV
station with secondary spectrum use status as a result of changes
beyond the station's control. We conclude that Congress did not intend
for LPPA Class A stations to subsequently lose Class A status through
DMA changes that are not under the control of the station because
Congress intended that the communities served by these stations should
be able to rely on uninterrupted service from the stations.
Accordingly, we will not require LPPA Class A stations to continue to
comply with the 95,000 TV household threshold if the population in the
station's DMA later exceeds the threshold amount as a result of changes
beyond the station's control. We find that the reasons that a station
may no longer comply with the 95,000 TV household threshold that are
beyond the station's control are a change in the market size through
(1) population growth, (2) a change in the boundaries of a qualifying
DMA such that the population of the DMA exceeds 95,000 television
households, or (3) the merger of a qualifying DMA into another DMA such
that the combined DMA exceeds the threshold amount.
43. We will not, however, permit an LPPA Class A station to
maintain its Class A status if the size of the market it serves
increases beyond 95,000 television households due to a change within
the control of the station. For instance, we will not permit an LPPA
Class A station to initiate a move to a different DMA that does not
meet the LPPA population threshold at the time of the move and still
retain the station's Class A status. We interpret the LPPA's continuing
compliance mandate to preclude changes under the station's control that
would result in the station's failure to continue to comply with the
Act's eligibility requirements. We disagree with those commenters who
argue that the Act requires only that the station be in compliance with
the DMA requirement as of January 5, 2023. This reading of section
2(c)(2)(B)(iii) of the Act is contrary to the language of section
2(c)(3)(B), which does not carve out the 95,000 TV household threshold
requirement from the continuing compliance mandate. Such an
interpretation would also undercut the purpose of the LPPA to
strengthen protections for TV stations located in smaller DMAs, as it
would allow LPPA Class A stations to move to DMAs with larger
populations, depriving smaller DMAs of the service these stations
provide. We also disagree with those commenters who argue that stations
that convert to Class A status pursuant to the LPPA should be able to
initiate later site changes that would move the station to a non-
qualifying DMA. The language of the Act requires that LPPA Class A
licensees remain in compliance with the LPPA's eligibility requirements
for the term of their Class A license, including the requirement that
they operate in a DMA with no more than 95,000 TV households. Apart
from changes to a DMA that are beyond the station's control, we will
require that LPPA Class A licensees remain in compliance with the
95,000 TV household threshold DMA requirement for the term of the Class
A license. Stations that choose to pursue a non-compliant modification
may do so, but will have to surrender their Class A status.
C. Application Process
44. As proposed in the NPRM, we will evaluate applications to
convert to Class A status pursuant to the LPPA as a modification of the
LPTV station's existing license. No commenters addressed this issue.
For purposes of the LPPA, applications to convert to Class A status
will be limited to the conversion of existing LPTV facilities as they
exist at the time of application, without consideration of any pending
modifications to those facilities or unbuilt construction permits. This
approach will allow for expeditious consideration of all applications,
and will eliminate delays that could arise from the possibility of
mutual exclusivity between a Class A conversion application and other
licensed full power or Class A facilities, were we to entertain license
modifications during the application window. A licensed LPTV station
holding a construction permit to modify its facilities will either need
to license those permitted facilities before applying to convert to
Class A status, or may apply for a new modification after the
Commission has processed the applications from the window.
45. When implementing the CBPA, the Commission required stations
applying for Class A status to provide local public notice of
applications for Class A status ``since the nature of the underlying
service is changing from secondary to primary service.'' We adopt the
tentative conclusion in the NPRM, that for the same reason we will
require an applicant seeking Class A status pursuant to the LPPA to
provide local public notice of the application. No commenters addressed
this issue.
46. Application Form. As proposed in the NPRM, we will require that
applications for modification of an LPTV station's existing license to
convert to Class A status pursuant to the LPPA be filed using FCC Form
2100, Schedule F. Such applications must be filed electronically and
must include
[[Page 1474]]
the required filing fee. No commenters addressed these issues.
D. TV Broadcast Incentive Auction, Post-Auction Transition, and
Reimbursement
47. We affirm the tentative conclusion in the NPRM that nothing in
the LPPA or in our implementation of the Act can or will affect the
Commission's work related to the Broadcast Incentive Auction. No
commenters addressed this issue.
E. Digital Equity and Inclusion
48. The Commission sought comment in the NPRM on how its proposals
may promote or inhibit advances in diversity, equity, inclusion, and
accessibility. Only one commenter, REC, addressed this issue. In REC's
view, the overall impact to digital equity and inclusion of the LPPA
``is slightly negative'' as some LPTV stations on channels 5 and 6
could obtain primary status, thus limiting the ability in some areas to
implement full-service FM broadcasting as a part of REC's WIDE-FM
proposal, which REC asserts would increase the number of radio voices.
While REC notes that the language of the Act is outside the
Commission's control, REC asserts that its proposals in response to the
NPRM will help ensure that rural LPTV stations that provide a minimal
level of locally originated programming will be given ``a level of
expectation of longevity'' as a result of changing from secondary to
primary status, which ``could help persons who live in rural or Tribal
areas'' to continue to receive local TV service. In addition, REC
comments that requiring LPPA Class A stations to comply with full
service rules will allow the Commission to better measure diversity in
broadcast ownership and, through the public file process, require
stations to be more accountable to their local audiences.
49. We appreciate receiving REC's views and have considered them
fully in reaching our conclusions herein regarding implementation of
the LPPA. We acknowledge the importance of advancing diversity, equity,
inclusion, and accessibility, and we believe that the LPPA itself, and
the rules we adopt herein implementing the Act, will advance those
aims.
F. Other Issues
50. Must Carry Rights. Two commenters, RCC and Dockins, argue that
the Commission should amend its rules to give Class A stations must
carry status. RCC argues that the Commission should ``clarify'' that
Class A stations are incorrectly classified as ``low power stations,''
whose carriage is limited as provided in Sec. 76.55(d) of our rules,
but should instead be classified as ``local commercial television
stations'' which are entitled to more expansive carriage rights as
provided in Sec. 76.555(c). Dockins asserts that ``there is no logical
reason why the Commission cannot amend the rules to allow must-carry
status for Class A stations'' and that the ``historic failure'' of the
Commission to give Class A stations must-carry rights ``appears to be
an oversight'' that should be corrected.
51. Consistent with the Commission's conclusion in the Class A MO&O
with respect to LPTV stations that converted to Class A status pursuant
to the CBPA, we conclude that LPPA Class A stations have the same
limited must carry rights as LPTV stations, and do not have the same
must carry rights as full service commercial television stations under
Sec. 76.55(c) of our rules. In the Class A MO&O, the Commission noted
that both the language of the CBPA and the accompanying legislative
history were silent with respect to the issue of must carry rights for
Class A stations, and concluded that it is unlikely that Congress
intended to grant Class A stations full must carry rights, equivalent
to those of full-service stations, without addressing the issue
directly. The LPPA is also silent with respect to the issue of must
carry rights, and we similarly conclude therefore that Congress did not
intend to confer full must carry rights on LPPA Class A stations
equivalent to full-service stations, and different from the rights of
CBPA Class A stations, without addressing the issue in the statute.
Instead, we find that Congress intended LPPA Class A stations to have
the same limited must carry rights as LPTV stations and existing Class
A stations. We thus decline to revise our rules as RCC and Dockins
request.
52. De Minimis Exception to the 95,000 TV Household Requirement. We
also decline to adopt a de minimis exception to the LPPA's 95,000 TV
household eligibility requirement, as proposed by Lockwood. Lockwood
argues that the Commission should adopt an exception of up to 5 percent
to the 95,000 TV household amount to ``further the underlying purpose''
of the LPPA to afford eligibility for Class A protection to LPTV
stations serving smaller DMAs. Lockwood also argues that such an
exception would afford flexibility in the case of fluctuations in the
number of TV households in the DMA due to the methodology used to make
the calculation or changes related to seasonal tourism or college/
university populations. Finally, Lockwood argues that the Commission
has implemented de minimis exceptions to other of its regulatory
requirements and has discretion to do so with respect to the LPPA as
the Act expressly permits the Commission to select the appropriate
system for determining DMAs.
53. The language of the Act clearly requires that, to be eligible
for Class A status, a station must operate in a DMA with no more than
95,000 TV households. The Act also requires that LPPA Class A licensees
remain in compliance with the LPPA's eligibility requirements for the
term of their Class A license. With respect to the Act's DMA limit, as
discussed above we interpret this continuing compliance mandate to
preclude changes under the station's control that would result in the
station's failure to continue to comply with the 95,000 TV household
threshold.
54. As discussed above, while the LPPA provides the Commission with
additional discretion in evaluating applicants for Class A status to
treat a station as qualifying for Class A status if ``the Commission
determines that the public interest, convenience, and necessity would
be served'' or ``for other reasons determined by the Commission,'' we
are not inclined to expand the specific qualifying criteria beyond that
identified in the statute. The LPPA provides precise and limited
eligibility criteria and, except in very limited circumstances, we are
not inclined to expand the specific qualifying criteria beyond that
identified in the statute. Accordingly, we decline to adopt a blanket
de minimis exception to the DMA eligibility requirement. As discussed
above, we will allow deviation from the strict statutory eligibility
criteria in the LPPA only on a case-by-case basis where such deviations
are insignificant or where there are compelling circumstances such that
equity mandates a deviation.
IV. Procedural Matters
55. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Act Analysis (IRFA)
was incorporated into the NPRM released March 30, 2023. The Federal
Communications Commission (Commission) sought written public comment on
the proposals in the NPRM, including comment on the IRFA. No comments
were filed addressing the IRFA. This Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.
[[Page 1475]]
A. Need for, and Objectives of, the Report and Order
56. The Report and Order adopts rules to implement the Low Power
Protection Act (LPPA or Act), which was enacted on January 5, 2023. The
LPPA provides certain low power television (LPTV) stations with a
``limited window of opportunity'' to apply for primary spectrum use
status as Class A television stations. The rules adopted herein reflect
most of the Commission's proposals in the NPRM in this proceeding, with
limited exceptions. We establish herein the period during which
eligible stations may file applications for Class A status pursuant to
the LPPA, clarify eligibility and interference requirements, and
establish the process for submitting applications for Class A status
pursuant to the Act. Our rules provide eligible LPTV stations with a
limited opportunity to apply for primary spectrum use status as Class A
television stations, consistent with Congress's directive in the LPPA.
57. We conclude that the application window will be limited to the
one year application window contemplated by the Act, and that an
application filed for Class A status must demonstrate that the LPTV
station operated in a Designated Market Area (DMA) with not more than
95,000 television households on January 5, 2023. We also conclude that
LPTV stations that convert to Class A status under the LPPA must comply
with the interference protection standards set forth in section
336(f)(7) of the Communications Act of 1934, with the exception of
those provisions that are now obsolete given the transition of all
television stations from analog to digital operations. We apply the
Commission's recently updated definition of an LPTV station for
purposes of determining which stations are eligible for Class A status
under the LPPA and codify in our rules the eligibility criteria set
forth in the LPPA. We also implement provisions of the LPPA which
provide that licenses issued to stations that convert to Class A status
are subject to full power television station license terms and renewal
standards, with certain exceptions. We conclude that LPPA Class A
licensees are required to remain in compliance with the LPPA's
eligibility requirements for the term of their Class A license, except
for changes to the station's DMA that are beyond the control of the
station. We conclude that we will evaluate Class A status to eligible
LPTV stations as a modification of the station's existing license, and
that nothing in the LPPA, or our rules implementing the Act, affects
the Commission's work related to the Broadcast Incentive Auction. We
address how our actions implementing the LPPA advance diversity,
equity, inclusion, and accessibility and, lastly, decline to amend our
rules to afford Class A stations must carry rights equivalent to full
service stations and decline to adopt a de minimis exception to the
LPPA's DMA eligibility requirement.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
58. There were no comments filed that specifically addressed the
rules and policies proposed in the IRFA.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
59. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments.
60. The Chief Counsel did not file any comments in response to the
proposed rules in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
61. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA. Below, we
provide a description of such small entities, as well as an estimate of
the number of such small entities, where feasible.
62. Television Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting images together with
sound.'' These establishments operate television broadcast studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in turn
broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studio, from an affiliated
network, or from external sources. The SBA small business size standard
for this industry classifies businesses having $41.5 million or less in
annual receipts as small. 2017 U.S. Census Bureau data indicate that
744 firms in this industry operated for the entire year. Of that
number, 657 firms had revenue of less than $25,000,000. Based on this
data we estimate that the majority of television broadcasters are small
entities under the SBA small business size standard.
63. As of September 30, 2023, there were 1,377 licensed commercial
television stations. Of this total, 1,258 stations (or 91.4%) had
revenues of $41.5 million or less in 2022, according to Commission
staff review of the BIA Kelsey Inc. Media Access Pro Television
Database (BIA) on October 4, 2023, and therefore these licensees
qualify as small entities under the SBA definition. In addition, the
Commission estimates as of September 30, 2023, there were 383 licensed
noncommercial educational (NCE) television stations, 380 Class A TV
stations, 1,889 LPTV stations and 3,127 TV translator stations. The
Commission, however, does not compile and otherwise does not have
access to financial information for these television broadcast stations
that would permit it to determine how many of these stations qualify as
small entities under the SBA small business size standard.
Nevertheless, given the SBA's large annual receipts threshold for this
industry and the nature of these television station licensees, we
presume that all of these entities qualify as small entities under the
above SBA small business size standard.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
64. In implementing the LPPA, the Report and Order adopts new or
additional reporting, recordkeeping or other compliance requirements
for small and other entities. For example, the LPPA requires that, to
be eligible for Class A status, during the 90 days preceding the date
of enactment of the LPPA an LPTV station must have broadcast a minimum
of 18 hours/day and an average of at least 3 hours per week of
programming produced within the ``market area'' served by the station
and have been in compliance with the Commission's requirements for LPTV
stations. The rules also require that small and other applicants
seeking to convert to Class A status under the
[[Page 1476]]
LPPA certify in their application for Class A status that they have
complied with these eligibility requirements during the 90 days
preceding the January 5, 2023 enactment of the statute. An applicant
must submit, as part of its application, a statement concerning the
station's operating schedule during the 90 days preceding January 5,
2023 and a list of locally produced programs aired during that time
period. The applicant may also submit other documentation to support
its certification that the licensee meets the eligibility requirements
for a Class A license under the Low Power Protection Act. In addition,
the Commission staff may also request additional documentation if
necessary during consideration of the application.
65. Beginning on the date of its application for a Class A license
and thereafter, a station ``must be in compliance with the Commission's
operating rules for full-power stations.'' We will apply to small and
other applicants for Class A status under the LPPA, and to stations
that are awarded Class A licenses under that statute, all Part 73
regulations except for those that cannot apply for technical or other
reasons. For example, Class A stations must comply with the
requirements for informational and educational children's programming,
the political programming and political file rules, and the public
inspection file rule.
66. The LPPA requires that a station that converts to Class A
status pursuant to the statute continue to meet the eligibility
requirements of the LPPA during the term of the station's Class A
license. To be eligible under the LPPA, in addition to other
eligibility requirements, section 2(c)(2)(B)(iii) of the Act requires
an LPTV station must ``as of the date of enactment'' of the LPPA
operate in a DMA with not more than 95,000 television households.
Section 2(c)(3)(B) of the Act, however, requires that stations that
convert to Class A status under the LPPA ``remain in compliance'' with
paragraph (2)(B) ``during the term of the license.'' We interpret
section 2(c)(3)(B) to require that stations that convert to Class A
status, including small entities, remain in DMAs with not more than
95,000 television households in order to maintain their Class A status
except for situations in which the population in the station's DMA
later exceeds the threshold amount through (1) population growth, (2) a
change in the boundaries of a qualifying DMA such that the population
of the DMA exceeds 95,000 television households, or (3) the merger of a
qualifying DMA into another DMA such that the combined DMA exceeds the
threshold amount. LPPA Class A stations will not be permitted to
initiate a move to a different DMA with more than 95,000 television
households at the time of the move and still retain their Class A
status. In addition, licensed Class A stations must also continue to
meet the minimum operating requirements for Class A stations. Licensees
unable to continue to meet the minimum operating requirements for Class
A television stations, or that elect to revert to low power television
status, must promptly notify the Commission, in writing, and request a
change in status. The Report and Order also requires that stations that
convert to Class A status pursuant to the LPPA comply with all rules
applicable to existing Class A stations, including interference
requirements.
67. The Report and Order requires small and other stations seeking
to convert to Class A designation pursuant to the LPPA to submit an
application to the Commission within one year of the effective date of
the rules adopted in this proceeding. The Report and Order concludes
that the Commission will not continue to accept applications to convert
to Class A status under the LPPA beyond the one-year application period
set forth in the statute. In addition, we will allow deviation from the
strict statutory eligibility criteria under the LPPA only where
deviations are insignificant or where there are compelling
circumstances such that equity mandates a deviation. In the NPRM, we
noted that one example of such compelling circumstances might be ``a
natural disaster or interference conflict which forced the station off
the air'' during the 90-day period preceding enactment of the statute.
68. We expect the actions we have taken in the Report and Order
achieve the goals of implementing the LPPA without placing significant
additional costs and burdens on small entities. At present, there is
not sufficient information on the record to quantify the cost of
compliance for small entities, or to determine whether it will be
necessary for small entities to hire professionals to comply with the
adopted rules. However, we anticipate that the compliance obligations
for small stations will be outweighed by the benefits provided through
the LPPA's granting of a limited opportunity for LPTV stations to apply
for primary status as a Class A television licensee.
F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities and Significant Alternatives Considered
69. The RFA requires an agency to provide, ``a description of the
steps the agency has taken to minimize the significant economic impact
on small entities . . . including a statement of the factual, policy,
and legal reasons for selecting the alternative adopted in the final
rule and why each one of the other significant alternatives to the rule
considered by the agency which affect the impact on small entities was
rejected.''
70. Through comments provided by interested parties during the
rulemaking proceeding, the Commission considered various proposals from
small and other entities. The adopted rules reflect the Commission's
efforts to implement the LPPA by balancing the Commission's proposals
in the NPRM with alternative proposals provided by the commenters and
weighing their benefits against their potential costs to small and
other entities. As discussed above, the LPPA provides a limited window
of opportunity for an LPTV station to attain primary status as a Class
A TV station, if the LPTV station meets the eligibility criteria set
forth in the LPPA. The Report and Order adopts most of the Commission's
proposals in the NPRM, with one significant exception. We do not adopt
the proposal to require that all licensees that convert to Class A
status pursuant to the LPPA remain in compliance with the LPPA's
requirement that the station be in a DMA with no more than 95,000 TV
households for the term of their Class A license. Instead, we conclude
that LPPA Class A stations will not be required to continue to comply
with the 95,000 TV household threshold if the population in the
station's DMA later exceeds the threshold amount either through (1)
population growth, (2) a change in the boundaries of a qualifying DMA
such that the population of the DMA exceeds 95,000 television
households, or (3) the merger of a qualifying DMA into another DMA such
that the combined DMA exceeds the threshold amount. This one change to
our approach in implementing the LPPA may minimize a potentially
significant impact on a small entity in circumstances where the station
is in a DMA that later exceeds the threshold TV household eligibility
amount for reasons beyond the station's control. We also considered but
did not, however, permit an LPPA Class A station to initiate a move to
a DMA that does not meet the 95,000 TV household eligibility
requirement and still retain its status as a Class A station.
71. Additionally, in the Report and Order the Commission adopted a
simplified license application approach regarding the documentation
stations are required to submit as part of their application for a
Class A license. Rather
[[Page 1477]]
than mandating that an applicant provide specific additional documents
to support its application, the Report and Order permits an applicant
to provide whatever additional documentation the applicant has that
best support its certification that it met the operational and
programming requirements of the LPPA during the eligibility period.
This flexibility minimizes the impact on small LPTV stations, some of
which may have difficulty providing specific mandated documents because
they do not have the necessary documents or lack the resources
necessary to provide the document in a form that supports their
certification. We also took the step of reducing a potential economic
burden to small LPTV stations by adopting the proposal to use data from
the Nielsen Local TV Station Information Report (Nielsen Local TV
Report) in order to determine the DMA where the LPTV station's
transmission facilities are located for purposes of eligibility. The
Commission considered proposed alternatives such as using census data
for Metropolitan Statistical Areas (MSAs) and Rural Service Areas
(RSAs), or Comscore data. However, we have determined that using the
Nielsen Local TV Report would be less burdensome to small and other
LPTV stations based on current industry practices and because certain
data, such as DMA station assignment information, can be provided to
stations at no cost.
G. Report to Congress
72. The Commission will send a copy of the Report and Order,
including this FRFA, in a report to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Report and Order, including this FRFA, to the Chief Counsel for
Advocacy of the SBA. A copy of the Report and Order, and FRFA (or
summaries thereof) will also be published in the Federal Register.
73. Final Paperwork Reduction Act Analysis. This document contains
new information collection requirements subject to the Paperwork
Reduction Act of 1995 (PRA). The requirements will be submitted to the
Office of Management and Budget (OMB) for review under Section 3507(d)
of the PRA. OMB, the general public, and other Federal agencies will be
invited to comment on the information collection requirements contained
in this proceeding. The Commission will publish a separate document in
the Federal Register at a later date seeking these comments. In
addition, we note that, pursuant to the Small Business Paperwork Relief
Act of 2002 (SBPRA), we will seek specific comment on how the
Commission might further reduce the information collection burden for
small business concerns with fewer than 25 employees.
74. Congressional Review Act. The Commission has determined, and
the Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs, that these rules are non-
major under the Congressional Review Act, 5 U.S.C. 804(2). The
Commission will send a copy of the Report and Order to Congress and the
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
V. Ordering Clauses
75. Accordingly, it is ordered that, pursuant to the authority
found in sections 1, 2, 4(i), 4(j), 303, 307, 309, 311, and 336(f) of
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
154(j), 303, 307, 309, 311, 336(f), and the Low Power Protection Act,
Public Law 117-344, 136 Stat. 6193 (2023), this Report and Order is
adopted, effective thirty (30) days after the date of publication in
the Federal Register.
76. It is further ordered that the Commission's rules are hereby
amended as set forth in Appendix B of the Report and Order and such
amendments will be effective 30 days after publication in the Federal
Register, except for 47 CFR 73.6030(c) and 73.6030(d) which contain new
or modified information collection requirements that require review by
OMB under the PRA. The Commission directs the Media Bureau to announce
the effective date of that information collection in a document
published in the Federal Register after the Commission receives OMB
approval.
77. It is further ordered that, pursuant to 47 U.S.C. 155(c), the
Media Bureau is granted delegated authority for the purpose of amending
FCC Form 2100 as necessary to implement the licensing process adopted
herein and to establish the one-year application filing window once the
revised form is available for use by applicants, and for the purpose of
submitting the report to Congress required pursuant to the Low Power
Protection Act, Public Law 117-344, 136 Stat. 6193, Sec. 2(d) (2023).
78. It is further ordered that the Media Bureau is granted
delegated authority for the purpose of activating an OPIF for LPTV
stations that apply to convert to Class A status pursuant to the LPPA
and of informing applicants when their OPIF is ready for the applicant
to upload documents required to be maintained in OPIF.
79. It is further ordered that the Commission's Office of the
Secretary shall send a copy of this Report and Order, including the
Final Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
80. It is further ordered that Office of the Managing Director,
Performance Program Management, shall send a copy of this Report and
Order in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, 5
U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 73
Television.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
2. Amend Sec. 73.3580 by revising paragraphs (c) introductory text and
adding paragraph (c)(7) to read as follows:
Sec. 73.3580 Local public notice of filing of broadcast
applications.
* * * * *
(c) Applications requiring local public notice. The following
applications filed by licensees or permittees of the following types of
stations must provide public notice in the manner set forth in
paragraphs (c)(1) through (7) of this section:
* * * * *
(7) Applications by LPTV stations to convert to Class A status
pursuant to the Low Power Protection Act. The applicant shall both
broadcast on-air announcements and give online notice.
0
3. Add Sec. 73.6030 to read as follows:
Sec. 73.6030 Low Power Protection Act.
(a) Definitions. For purposes of the Low Power Protection Act, a
low power television station's Designated Market Area (DMA) shall be
defined as the DMA where its transmission facilities (i.e., the
structure on which its antenna is mounted) are located. DMAs are
determined by Nielsen Media Research. A low power television station
shall be defined in accordance with Sec. 74.701(k).
[[Page 1478]]
(b) Eligibility requirements. In order to be eligible for Class A
status under the Low Power Television Protection Act, low power
television licensees must:
(1) Have been operating in a DMA with not more than 95,000
television households as of January 5, 2023;
(2) Have been broadcasting a minimum of 18 hours per day between
October 7, 2022 and January 5, 2023;
(3) Have been broadcasting a minimum of at least three hours per
week of locally produced programming between October 7, 2022 and
January 5, 2023;
(4) Have been operating in compliance with the Commission's
requirements applicable to low power television stations between
October 7, 2022 and January 5, 2023;
(5) Be in compliance with the Commission's operating rules for
full-power television stations from and after the date of its
application for a Class A license; and
(6) Demonstrate that the Class A station for which the license is
sought will not cause any interference described in 47 U.S.C.
336(f)(7).
(c) Application requirements. Applications for conversion to Class
A status must be submitted using FCC Form 2100, Schedule F within one
year beginning on the date on which the Commission issues notice that
the rules implementing the Low Power Protection Act takes effect. The
licensee will be required to submit, as part of its application, a
statement concerning the station's operating schedule during the 90
days preceding January 5, 2023 and a list of locally produced programs
aired during that time period. The applicant may also submit other
documentation, or may be requested by Commission staff to submit other
documentation, to support its certification that the licensee meets the
eligibility requirements for a Class A license under the Low Power
Protection Act.
(d) Licensing requirements. A Class A television broadcast license
will only be issued under the Low Power Protection Act to a low power
television licensee that files an application for a Class A Television
license (FCC Form 2100, Schedule F), which is granted by the
Commission.
(e) Service requirements. Stations that convert to Class A status
pursuant to the Low Power Protection Act are required to meet the
service requirements specified in Sec. 73.6001(b) through (d) of this
chapter for the term of their Class A license. In addition, such
stations must remain in compliance with the programming and operational
standards set forth in the Low Power Protection Act for the term of
their Class A license. In addition, such stations must continue to
operate in DMAs with not more than 95,000 television households in
order to maintain their Class A status unless the population in the
station's DMA later exceeds 95,000 television households through
population growth, a change in the boundaries of a qualifying DMA such
that the population of the DMA exceeds 95,000 television households, or
the merger of a qualifying DMA into another DMA such that the combined
DMA exceeds 95,000 television households. LPPA Class A stations will
not be permitted to initiate a move to a different DMA with more than
95,000 television households at the time of the move and still retain
their Class A status.
(f) Other regulations. From and after the date of applying for
Class A status under the Low Power Protection Act, stations must comply
with the requirements applicable to Class A stations specified in
subpart J of this part (Sec. Sec. 73.6000 through 73.6029) and must
continue to comply with such requirements for the term of their Class A
license.
[FR Doc. 2023-28619 Filed 1-9-24; 8:45 am]
BILLING CODE 6712-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on January 10, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.