Via Electronic Mail November 12, 2010 Marlene H. Dortch Federal Communications Commission Office of the Secretary Room TW-A35 445 12 th Street, SW Washington, DC 20554 Re: LPFM Proceeding, MM Docket No. 99-25 Dear Ms. Dortch: Common Frequency (“CF”) previously submitted a letter and study on September 28, 2010 to the FCC concerning the shortcomings of implementing a ten application processing cap for pending translators in Auction No. 83. Since then a smattering of comments on translator processing and questions regarding the comment have beckoned CF to provide further clarification in this follow-up. In this comment, CF responds to questions about our earlier study, addresses the proposals from other parties, and provides a second study with a more exhaustive methodology to provide better insight on our position. The translator preclusion study submitted by CF was produced to communicate that the ten application cap did not appear effective at providing more opportunity for LPFM in urban areas. At the heart of the matter, in our simulation, if ~97% of the top 150 urban MXs are taken by translators then there would be no difference in these urban markets if there was a ten application cap or was no ten application cap . Although we additionally expressed that very few channels would be left for LPFM in major urban areas—a generalization that could require the processing of further data on CF’s part to be exact —this observation is separate from reporting that 97% of the top urban MXs being consumed, which was foremost reported in CF’s executive summary. The latter topic focuses on the efficacy of a ten application processing cap that was suggested within the Third Report and Order and Second Further Notice of Proposed Rulemaking of Creation of A Low Power Radio Service , MM Docket No. 99-25 (“LPFM Order”). The FCC made it clear in the LPFM Order that the ten application processing cap, in addition to contour-based methodology, was proposed to remedy the impact of Auction No. 83 for LPFM availability. This was emphasized directly within the LPFM Order: Although precise preclusionary calculations are not possible, we believe that processing all of the approximately remaining 7,000 translator applications would frustrate the development of the LPFM service and our efforts to promote localism .1 [underline added for emphasis] In order to further our twin goals of increasing the number of LPFM stations and promoting localism , we find it necessary to take action. Accordingly we will limit further processing of applications submitted during the auction no. 83 filing window to ten proposals per applicant. 2 [underline added for emphasis] As demonstrated by the filing of over 13,000 applicants in the 2003 filing window for the new non-reserved band FM translator construction permits, adoption of this standard would vastly expand LPFM licensing opportunities throughout the nation and create the possibility of locating new LPFM stations in a number of major and spectrum congested markets .3 [underline added for emphasis] The FCC appears to have prescribed the cap to “increase the number of LPFM stations” and elected the use of contour based methodology to license “new LPFM stations in a number of major and spectrum congested markets.” Thus, if the ten application processing cap has little or no forecasted efficacy, it would be in the public interest to optimize that policy. Frequency Availability in Markets The FCC enacted a translator processing cap because there were not ample urban channels for LPFM outside of the pending Auction No. 83 application pool of mutually exclusive channels . The earlier CF study did not formally study the availability of LPFM frequencies outside those applied for by Auction 83 translators. The study was intended to consider the efficacy of the ten cap of translator applications on preserving LPFM availability, and demonstrated that the ten cap does not, in fact, achieve this. No other data has been presented to contradict this conclusion . If the processing cap would not accomplish its intended goal, the Commission must consider alternatives, using the sentiment within the LPFM Order as the guiding policy for further translator processing . That sentiment is the “twin goals of increasing the number of LPFM stations and promoting localism” by “limit[ing] further processing of applications”. 4 CF realizes that translator applicants are eager for the FCC to process the remaining applications. However, those seeking to serve their communities with LPFM stations have waited even longer. Abandoning the sentiment conveyed in the LPFM 1 Paragraph 53, Third Report and Order and Second Further Notice of Proposed Rulemaking of Creation of A Low Power Radio Service , MM Docket No. 99-25. 2 Paragraph 56, Ibid. 3 Paragraph 79, Ibid. 4 Supra . Footnote 2. 2 Order simply to rush a decision will not serve the Commission’s goals or these communities. In the simulation below, CF pursued a second simulation, providing insight into LPFM channel availability in seven separate markets after a ten translator application cap has been employed by the FCC. The study examines all the commercial channels in the immediate core city area of each specified radio market. Because these studies are labor intensive, seven markets were preliminarily selected for study here, with more studies submitted later if needed. Like CF’s previous study, we again selected ten applications per applicant, but this time we chose one selectee per engineering-based MX and dismissed the rest of the applications in each MX. CF then viewed the contours of each existing commercial radio channel, looking for contour-based LPFM frequency openings (30 m HAAT at 0.1 kW, omnidirectional antenna) in the central cities. Note that contour-based (Section 74.1204) methodology is a more liberal approach to finding available channels. If CF used the current distance-spacing regulations currently on the books, this would result in fewer useable LPFM channels being found . Appendix A lists the channel studies of the markets New York, Los Angeles, Chicago, San Francisco, Houston, Seattle, and Portland (the applications with strike- through represent applications that were dismissed in the MX). Within the spreadsheet, columns nine and ten report (contour based) LPFM channel availability. Table , below, summarizes the results. Viable Marginal 2003 Total Channels Channels Translators Translators for LPFM for LPFM Existing Awarded (Existing & after Ten after Ten Commercial After the Existing Ten Cap Cap Cap Market Translators Ten Cap LPFMs Simulation) Simulation Simulation New York 2 13-14 0 15-16 1* Los Angeles 0 8 0 8 0 Chicago 3 7 0 10 1 2** San Francisco 3 6 0 9 2*** Houston 2 8 0 10 2**** Seattle 5 8 0 13 1 1***** Portland 9 7 0 16 0 2****** Table: Select City Simulations: Translator/LPFM Use in Immediate City. LPFM availability is listed in last two columns. Footnotes regarding channels found for LPFM use * Not in Central New York City—but Brooklyn towards Coney Island ** One directly Lake Michigan with incoming full power interference, one with limitation *** Possible near Daly City (Southern edge of San Francisco), one near Pacific Coast. **** One with possible I.F. issue. ***** Possible strong incoming interference from co-channel full power and Tacoma co-channel translator. ****** One in the east metro , possible co-channel interference; one in east suburb to protect west suburb LPFM, none seen downtown. 3 Average total translators per market (15 + 8 + 10 + 9 +10 + 13 + 16)/ 7 = 11.6 per central market Average possible LPFM (1 + 0 + 3 + 2 + 2 + 2 + 2) = 1.7 per available in market Total translators projected for each market average in the double digits. Total LPFM availability hovers at one to two, with some cities not being able to accommodate central city LPFMs. For many markets, estimating LPFM availability with contour (“translator”, or Section 74.1204) methodology is a complex process. Because translator methodology can ignore varying degrees of incoming interference generalized by F(50,10) contours, actual interference received and imparted does not always infer black and white availability. Under a scenario in which translator applications are processed first, translator applicants get first pick of the “low hanging fruit” channels—channels that interfere less with established full power stations. In our tested markets, LPFM got the “scraps” of remaining usable channels. These channels could become liabilities for both the LPFM applicants and the FCC. With some of these LPFM channels licensed within the full power station’s co-channel 40 dBu F(50,10) contours, disputes with full power licensees could be inevitable in certain cases, and LPFM predicted service areas could be curtailed in other cases. In addition to the threat of analog interference, perceived LPFM interference to HD channels could result in increased litigation. For example, KZFX-LP in Fall City, Washington, has applied for a second adjacent channel since it was displaced by encroachment. That application is already being challenged due to theorized second adjacent LPFM interference to a full power station’s HD signal. Further south, Portland, Oregon is already facing displaced Class D, regional (not-Portland specific) LPFM encroachment, and translator displacement due to full power licensees moving from rural to urban communities of license. There simply are not enough channels to accommodate a large amount translators licensed from Auction No. 83, followed by an LPFM filing window. It is important to realize that all secondary service channels do not exist with equal amounts of interference. If translator applicants obtain the first ten open secondary service channels in a market (the “low hanging fruit”), the remaining channels could have more complex interference properties. Regarding Comments of NPR The October 12, 2010 letter from NPR to Marlene H. Dortch regarding MM Docket No.