Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations 73545

affect small governments, as described B. Submission to Congress and the PM2.5 2002 base year emissions in the Unfunded Mandates Reform Act Comptroller General inventory portion of the West Virginia of 1995 (Pub. L. 104–4); The Congressional Review Act, 5 SIP may not be challenged later in • Does not have Federalism U.S.C. 801 et seq., as added by the Small proceedings to enforce its requirements. implications as specified in Executive Business Regulatory Enforcement (See section 307(b)(2).) Order 13132 (64 FR 43255, August 10, Fairness Act of 1996, generally provides List of Subjects in 40 CFR Part 52 1999); that before a rule may take effect, the agency promulgating the rule must Environmental protection, Air • Is not an economically significant submit a rule report, which includes a pollution control, Carbon monoxide, regulatory action based on health or copy of the rule, to each House of the Incorporation by reference, Nitrogen safety risks subject to Executive Order Congress and to the Comptroller General dioxide, Particulate matter, Reporting 13045 (62 FR 19885, April 23, 1997); of the United States. EPA will submit a and recordkeeping requirements, Sulfur • Is not a significant regulatory action report containing this action and other oxides, Volatile organic compounds. subject to Executive Order 13211 (66 FR required information to the U.S. Senate, Dated: November 21, 2012. 28355, May 22, 2001); the U.S. House of Representatives, and W.C. Early, • Is not subject to requirements of the Comptroller General of the United Acting Regional Administrator, Region III. Section 12(d) of the National States prior to publication of the rule in the Federal Register. A major rule 40 CFR part 52 is amended as follows: Technology Transfer and Advancement cannot take effect until 60 days after it Act of 1995 (15 U.S.C. 272 note) because is published in the Federal Register. PART 52—APPROVAL AND application of those requirements would This action is not a ‘‘major rule’’ as PROMULGATION OF be inconsistent with the CAA; and defined by 5 U.S.C. 804(2). IMPLEMENTATION PLANS • Does not provide EPA with the C. Petitions for Judicial Review ■ discretionary authority to address, as 1. The authority citation for part 52 appropriate, disproportionate human Under section 307(b)(1) of the CAA, continues to read as follows: health or environmental effects, using petitions for judicial review of this Authority: 42 U.S.C. 7401 et seq. practicable and legally permissible action must be filed in the United States methods, under Executive Order 12898 Court of Appeals for the appropriate Subpart XX—West Virginia (59 FR 7629, February 16, 1994). circuit by [Insert date 60 days from date of publication of this document in the ■ 2. In § 52.2520, the table in paragraph In addition, this rule does not have Federal Register]. Filing a petition for (e) is amended by adding at the end of tribal implications as specified by reconsideration by the Administrator of the table an entry for 2002 Base Year Executive Order 13175 (65 FR 67249, this final rule does not affect the finality Emissions Inventory for the 1997 fine November 9, 2000), because the SIP is of this action for the purposes of judicial particulate matter (PM2.5) standard to not approved to apply in Indian country review nor does it extend the time read as follows: located in the state, and EPA notes that within which a petition for judicial it will not impose substantial direct review may be filed, and shall not § 52.2520 Identification of plan. costs on tribal governments or preempt postpone the effectiveness of such rule * * * * * tribal law. 5 U.S.C. 804(2). or action. This action pertaining to the (e) * * *

Name of non-regulatory State submittal Additional SIP revision Applicable geographic area date EPA approval date explanation

******* 2002 Base Year Emissions Inven- West Virginia portion of the Hun- 5/28/09 12/11/12 [Insert page number 52.2531(b) tory for the 1997 fine particulate tington-Ashland, WV-KY-OH where the document begins]. matter (PM2.5) standard. nonattainment area.

■ 3. § 52.2531 is amended by revising of point sources, non-road mobile FEDERAL COMMUNICATIONS the section heading, designating the sources, area sources, on-road mobile COMMISSION existing paragraph as paragraph (a), and sources, and biogenic sources. The adding paragraph (b). The amendments pollutants that comprise the inventory 47 CFR Part 73 read as follows: are nitrogen oxides (NO ), volatile X [MM Docket No. 99–25; FCC 12–144] § 52.2531 Base year emissions inventory. organic compounds (VOCs), PM2.5, coarse particles (PM ), ammonia (NH ), * * * * * 10 3 Implementation of the Local and sulfur dioxide (SO2). Community Radio Act of 2010; (b) EPA approves as a revision to the [FR Doc. 2012–29763 Filed 12–10–12; 8:45 am] Revision of Service and Eligibility West Virginia State Implementation Rules for Low Power FM Stations Plan the 2002 base year emissions BILLING CODE 6560–50–P inventory for the Huntington-Ashland, AGENCY: Federal Communications WV-KY-OH fine particulate matter Commission. (PM2.5) nonattainment area submitted by ACTION: Denial and/or dismissal of the West Virginia Department of petitions for reconsideration. Environmental Protection on May 28, 2009. The 2002 base year emissions SUMMARY: In this document, the inventory includes emissions estimates Commission acts on six petitions for that cover the general source categories reconsideration of the Fourth Report

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with 73546 Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations

and Order, challenging the per-market Summary of Fifth Order on adequate LPFM licensing opportunities. and/or the national caps adopted in the Reconsideration At the same time, we tentatively Fourth Report and Order in this I. Introduction concluded that these new procedures proceeding. In response to the petitions would not be sufficient to address the for reconsideration, the Commission 1. In this Fifth Order on potential for licensing abuses with modifies the national cap to allow each Reconsideration and Sixth Report and respect to the thousands of pending applicant to pursue up to 70 Order, we take various actions to translator applications. Accordingly, we applications, so long as no more than 50 implement the Local Community Radio asked for comments on appropriate of them are in the spectrum-limited Act of 2010 (‘‘LCRA’’), safeguard the processing policies for those radio markets identified in the Fourth integrity of our FM translator licensing applications, including a potential Report and Order; increases the per- procedures and modify licensing and national cap of 50–75 applications and market cap for spectrum-limited service rules for the low power FM a potential cap of one or a few markets to allow up to three (‘‘LPFM’’) service. In the Fifth Order on applications in any particular market. Reconsideration we affirm with slight 3. The Commission released the applications per applicant for each modifications and clarifications the Fourth R&O on March 19, 2012. The market, subject to certain conditions; comprehensive plan for licensing FM Commission affirmed its decision to and clarifies the application of the per- translators and LPFM stations adopted reject the prior national cap of 10 market cap in ‘‘embedded’’ markets. in the Fourth Report and Order (Fourth translator applications per applicant. It DATES: Effective January 10, 2013. R&O). In response to petitions for adopted a modified market-specific reconsideration, we modify the national translator licensing scheme which FOR FURTHER INFORMATION CONTACT: cap to allow each applicant to pursue incorporated a number of commenter Peter Doyle (202) 418–2789. up to 70 applications, so long as no proposals. To minimize the potential for SUPPLEMENTARY INFORMATION: This is a more than 50 of them are in the speculative licensing conduct, the summary of the Commission’s Fifth Appendix A markets. We also increase Commission established a national cap Order on Reconsideration in MM Docket the per-market cap for radio markets of 50 applications and a local cap of one No. 99–25, FCC 12–144, adopted identified in Appendix A of the Fourth application per applicant per market for November 30, 2012, and released R&O to allow up to three applications the 156 Arbitron Metro markets December 4, 2012. The full text of this for each market, subject to certain identified in Appendix A of the Fourth document is available for inspection conditions. We also clarify the R&O. and copying during regular business application of the per-market cap in 1. Rationale for the Translator hours in the FCC Reference Center, 445 those Appendix A markets with Application Caps Twelfth Street SW., Room CY–A257, ‘‘embedded’’ markets. In the Sixth Report and Order we complete the 4. When the Commission opened the Portals II, Washington, DC 20554, and March 2003 filing window for Auction may also be purchased from the implementation of the LCRA and make a number of additional changes to 83 FM translator applications, there Commission’s copy contractor, BCPI, were 3,818 licensed FM translators. Inc., Portals II, 445 Twelfth Street SW., promote the localism and diversity goals of the LPFM service and a more 13,377 translator applications were filed Room CY–B402, Washington, DC 20554. in that window—approximately three Customers may contact BCPI, Inc. via sustainable community radio service. When effective, these orders will permit times as many applications as the their Web site, http://www.bcpi.com, or number of FM translators licensed since call 1–800–378–3160. This document is the Commission to move forward with the long-delayed processing of over 1970. From that group, 3,476 new available in alternative formats authorizations were issued before the 6,000 FM translator applications and (computer diskette, large print, audio Commission’s freeze on further establish a timeline for the opening of record, and Braille). Persons with processing of applications from that an LPFM window. disabilities who need documents in window took effect. Of those 3,476 these formats may contact the FCC by II. Fifth Order on Reconsideration authorizations, 926 (more than 25 percent) were never constructed and email: [email protected] or phone: 202– A. Background 418–0530 or TTY: 202–418–0432. 1,358 (almost 40 percent) were assigned 2. On July 12, 2011, the Commission Paperwork Reduction Act Analysis. to a party other than the applicant. released a Third Further Notice of This Order on Reconsideration does not Although 97 percent of all filers filed Proposed Rule Making (Third FNPRM) fewer than 50 applications, the adopt any new or revised information in this proceeding, seeking comment on remaining three percent accounted for a collection requirements subject to the the impact of the LCRA on the total of 8,163 applications, representing Paperwork Reduction Act of 1995 procedures previously adopted to 61 percent of the total. The two largest (PRA), Public Law 104–13 (44 U.S.C. process the approximately 6,000 filers, commonly-owned Radio Assist 3501–3520). In addition, therefore, it applications that remain pending from Ministries, Inc. and Edgewater does not contain any new or modified the 2003 FM non-reserved band Broadcasting, Inc. (collectively, ‘‘information collection burden for translator window. There, the ‘‘RAM’’), filed 4,219 applications and small business concerns with fewer than Commission tentatively concluded that received 1,046 grants before the 25 employees,’’ pursuant to the Small those licensing procedures, which processing freeze took effect. When we Business Paperwork Relief Act of 2002, would limit each applicant to ten adopted the cap of ten applications in Public Law 107–198, see 44 U.S.C. pending applications, would be 2007, we noted that RAM had sought to 3506(c)(4). inconsistent with the LCRA’s goals. We assign more than 50 percent of the Report to Congress. The Commission proposed to modify those procedures construction permits it had received and will send a copy of this Order on and instead adopt a market-specific consummated more than 400 Reconsideration to Congress and the translator application dismissal process, assignments of such permits. We based Government Accountability Office dismissing pending translator the cap of ten applications on the need pursuant to the Congressional Review applications in identified spectrum- to preserve spectrum for future LPFM Act, see 5 U.S.C. 801(a)(1)(A). limited markets in order to preserve availability and the need to protect the

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations 73547

integrity of our translator licensing number of authorized stations that were 11. We also adopted a per-market cap process. either assigned to another party or never of one application per market in the 5. In the Third FNPRM, when we constructed are strong indicia of radio markets listed in Appendix A to proposed to replace the cap of ten applications filed for speculative the Fourth R&O, consisting of the top translator applications with a market- purposes (either for potential sale or to 150 Arbitron Metro markets (per the BIA specific processing system, we game the auction system) rather than a Fall 2011 database, as defined in tentatively concluded that such a good faith intent to construct and Appendix A) plus six additional processing system would not be operate the proposed stations. Based on markets where more than four translator sufficient to address the potential these concerns, we sought comment on applications are pending. We noted that abuses in translator licensing and whether a national cap of 50 or 75 some applicants had filed dozens of trafficking. We noted that the vast applications would force filers with a applications for a particular market, majority of applicants hold only a few large number of applications to when it was inconceivable that a single applications, but the top 20 applicants concentrate on those proposals and entity would construct and operate so collectively account for more than half markets where they have bona fide many stations there. We concluded that of the pending applications. Similar service plans. We also asked whether such applications were clearly filed for imbalances exist in particular markets applicants should be limited to one or speculative reasons or to skew our and regions. For instance, one applicant a few applications in a particular auction procedures. Given the volume holds 24 of the 24 translator market, noting that such a restriction of pending applications, we found that applications proposing operation within ‘‘could limit substantially the it was administratively infeasible to 20 kilometers of Houston’s reference opportunity to warehouse and traffic in conduct a case-by-case assessment of coordinates and 73 applications in translator authorizations while these applications to determine whether Texas. Two applicants hold 66 of the 74 promoting diversity goals.’’ they could satisfy our rule limiting the applications proposing service to the 8. The Fourth R&O concluded that grant of additional translator New York City radio market. both a national cap and a per-market authorizations to a party that can make 6. We also described a number of cap for the 156 Appendix A markets a ‘‘showing of technical need for such factors that create an environment were appropriate to limit speculative additional stations’’ (the ‘‘Technical which promotes the acquisition of licensing conduct and necessary to Need Rule’’). Accordingly, we adopted a translator authorizations solely for the bolster the integrity of the remaining cap of one translator application per purpose of selling them. First, we expect Auction 83 licensing. We stated that market in the Arbitron Metro markets that a substantial portion of the non-feeable application procedures, listed in Appendix A to the Fourth R&O. remaining translator grants will be made flexible auction rules, and flexible For applications outside those markets, pursuant to our settlement (i.e., non- translator settlement and transfer/ where only a small number of auction) procedures. Second, translator assignment rules ‘‘clearly have applications will require analysis, we construction permits may be sold facilitated and encouraged the filing of decided to apply the Technical Need without any limitation on price. Third, speculative proposals * * *. While we Rule on a case-by-case basis. permittees are not required to construct recognize that high-volume filers did or operate newly authorized facilities not violate our rules (‘‘Rules’’), these 12. Appendix A to the Fourth R&O before they can sell their authorizations. types of speculative filings are lists several ‘‘embedded’’ radio markets Collectively, these factors created an fundamentally at odds with the core that are part of a larger market also incentive for speculative filings and Commission broadcast licensing listed in Appendix A: (1) Nassau- trafficking in translator authorizations. policies and contrary to the public Suffolk (Long Island), NY (Arbitron Such behavior damages the integrity of interest.’’ Metro market #18, embedded in the our licensing process, which assigns 9. The Fourth R&O rejected other New York Arbitron Metro market); (2) valuable spectrum rights to parties potential anti-trafficking proposals Hudson Valley, NY (Arbitron Metro based on a system that gives priority to offered by commenters, stating that market #39, partially embedded in the applications filed in one filing window application caps were the most New York Arbitron Metro market); (3) over subsequent applications based on administratively feasible solution for Middlesex-Somerset-Union, NJ the assumption that the applications processing this large group of long- (Arbitron Metro market #41, embedded filed in the earlier window are filed in pending applications. We stated that we in the New York Arbitron Metro good faith by applicants that intend to considered caps to be the only approach market); (4) Monmouth-Ocean, NJ construct and operate their proposed that would not only limit trafficking in (Arbitron Metro market #53, partially stations to serve the public. The history translator authorizations but also fulfill embedded in the New York Arbitron of the Auction 83 translator applications our mandate under the LCRA to provide Metro market); (5) Morristown, NJ strongly supports our view that the fastest path to additional translator (Arbitron Metro market #117, embedded speculative applications delay the and LPFM licensing in areas where the in the New York Arbitron Metro processing of bona fide applications, need for additional service is greatest. market); (6) Stamford-Norwalk, CT thereby impeding efforts to bring new 10. We adopted a national cap of 50 (Arbitron Metro market #148, embedded service to the public. These speculative additional translators per applicant. We in the New York Arbitron Metro translator applications have also found that this cap, of itself, would market); (7) San Jose, CA (Arbitron delayed the introduction of new LPFM affect no more than 20 of the Metro market #37, embedded in the San service pursuant to our mandate under approximately 646 total applicants in Francisco Arbitron Metro market); (8) the LCRA to provide licensing this group, and that this was a Santa Rosa, CA (Arbitron Metro market opportunities for both LPFM and reasonable number of stations to #121, embedded in the San Francisco translator stations. construct and operate as proposed and Arbitron Metro market); and (9) 7. The extraordinarily high number of would place restraints on trafficking of Fredericksburg, VA (Arbitron Metro applications filed in the Auction 83 permits on the open market. We also market #147, partially embedded in the window, particularly by certain noted that there was some agreement on Washington, DC Arbitron Metro applicants (both nationally and in such a limit even among translator market). The Fourth R&O stated that the certain markets), and the significant advocates. one-per-market cap would apply to all

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with 73548 Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations

markets listed in Appendix A but did 17. Hope Christian Church of Marlton, in the grid for the Appendix A market not explain how this cap would apply Inc. (‘‘Hope’’), Bridgelight, LLC or at the proposed transmitter site; and to the listed embedded markets. (‘‘Bridgelight’’) and Calvary Chapel of (3) the applicant agrees to accept a 13. In addition to those embedded the Finger Lakes, Inc. (‘‘CCFL’’) condition on the construction permit markets, there are three more embedded (collectively, the ‘‘Joint Petitioners’’) that disallows sale of the authorization markets that are not listed in Appendix filed a joint Petition for Partial for a period of four years after the A due to their smaller size: (1) New Reconsideration (‘‘Joint Petition’’) station commences operation. Bedford-Fall River, MA (Arbitron Metro seeking reconsideration to revise the 19. Conner Media, Inc. (together with market #180, embedded in the one-per-market cap to include a waiver the commonly-controlled Conner Media Providence-Warwick-Pawtucket, RI process. Hope is the licensee of Corporation, ‘‘Conner’’) filed a Petition Arbitron Metro market); (2) Frederick, WVBV(FM), Medford Lakes, NJ for Partial Reconsideration (‘‘Conner MD (Arbitron Metro market #195, (Philadelphia, PA Arbitron Metro Petition’’) of the Fourth R&O. Conner is embedded in the Washington, DC market); WWFP(FM), Brigantine, NJ the licensee of WAVQ(AM), Arbitron Metro market); and (3) (Atlantic City-Cape May, NJ Arbitron Jacksonville, NC (Greenville-New Bern- Manchester, NH (Arbitron Metro market Metro market); and WZBL(FM), Jacksonville, NC Arbitron Metro #196, partially embedded in the Barnegat Light, NJ (Monmouth-Ocean, market). Conner states that it filed Portsmouth-Dover-Rochester, NH NJ embedded market). Hope has 46 translator applications in five different Arbitron Metro market). The Fourth pending translator applications from the locations to serve the Greenville-New R&O did not explain whether Auction 83 window, of which 45 are in Bern-Jacksonville, NC Arbitron Metro applications filed in those embedded Appendix A markets and one is outside market, which comprises ten diverse markets would be subject to the per- the Appendix A markets. Hope received counties. Conner expresses interest in market cap imposed on the larger 21 translator grants before the assigning additional permits from its markets within which they are processing freeze, primarily in the pending applications to other AM embedded. Philadelphia and Baltimore Arbitron broadcasters who would benefit from Metro markets. Hope constructed all of the nighttime service available on a 2. Petitions for Reconsideration those proposed stations. Bridgelight is translator. Conner argues that any local 14. Five petitions for reconsideration the licensee of WRDR(FM), Freehold translator cap should be per- were filed following Federal Register Township, NJ (Monmouth-Ocean, NJ community, not per-market. 20. Western North Carolina Public publication of the Fourth R&O. embedded market); and WJUX(FM), Radio, Inc. (‘‘WNC’’) is the licensee of Educational Media Foundation (‘‘EMF’’) Monticello, NY (outside the Appendix noncommercial educational (‘‘NCE’’) filed a Petition for Reconsideration A markets). Bridgelight has 16 pending stations WCQS(FM), Asheville, NC; (‘‘EMF Petition’’) seeking applications from the Auction 83 WFSQ(FM), Franklin, NC; and reconsideration as to both the national window. Bridgelight received five WYQS(FM), Mars Hill, NC (all in the translator grants before the processing cap of 50 applications and the per- Asheville, NC Arbitron Metro market). freeze (primarily in the New York market cap of one application. The WNC filed a Petition for Arbitron Metro market), but assigned all remaining petitions only addressed the Reconsideration (‘‘WNC Petition’’) of them to other parties. CCFL is the latter cap. arguing that its Arbitron Metro market, licensee of WZXV(FM), Palmyra, NY 15. EMF currently has 292 pending Asheville, NC, should not be included (Rochester, NY Arbitron Metro market). translator applications from the Auction in Appendix A or, alternatively, that the CCFL has 16 pending translator 83 window. EMF received 259 translator community of Black Mountain, NC, grants from that window before we froze applications from the Auction 83 should not be considered part of that the processing of such applications. window, of which eight are in market because it is separated by a 16. EMF first contends that the Appendix A markets (five in the mountain range from Asheville and Commission must clarify the definition Buffalo, NY Arbitron Metro market and therefore requires its own translator of the term ‘‘radio market’’ as used in three in the Rochester, NY Arbitron service. WNC notes that Asheville is the the Fourth R&O. EMF argues that the Metro market). CCFL received 14 159th Arbitron Metro market, but was term could mean census-designated translator grants before the processing included in Appendix A because more urban areas, metropolitan statistical freeze (primarily in the Buffalo and than four translator applications are areas, Arbitron Metro markets, or some Rochester Arbitron Metro markets), but pending in that market. definition connected to the ‘‘grids’’ used assigned five of those to other parties 21. Kyle Magrill (‘‘Magrill’’) filed a in determining whether markets are and cancelled another one. Petition for Reconsideration (‘‘Magrill ‘‘spectrum limited’’ or not. 18. The Joint Petition maintains that Petition’’). Magrill is a translator Additionally, EMF argues that both the the one-per-market cap unfairly harms applicant under the corporate name of national cap and the per-market cap are local and regional applicants that have CircuitWerkes, Inc. and the d/b/a name arbitrary and capricious. EMF argues filed applications in a limited number of of CircuitWerkes. Magrill has seven that the Commission did not adequately markets for the purpose of reaching pending translator applications from the explain the ‘‘abusive’’ licensing activity distant communities in geographically Auction 83 window in four Appendix A relating to Auction 83 filings and did large markets. The Joint Petition argues markets in Florida. Magrill received not adequately explain why other ‘‘more that the one-per-market cap should be three translator grants before the direct’’ measures to combat speculation supplemented with a waiver process processing freeze took effect. Magrill are not being used. EMF also argues that that allows for waivers (with no limit on argues that the Commission did not the Commission did not adequately the number of authorizations in a propose per-market caps in the Third explain how the caps square with the market) under three conditions: (1) The FNPRM, but instead called for Commission’s own conclusion that the 60 dBu contour of the translator processing all translator applications in LCRA requires it to make available application cannot overlap the 60 dBu non-spectrum limited markets. Magrill licensing opportunities for both contour of any commonly-controlled argues that the number of translator translators and LPFM stations ‘‘in as application; (2) the application would sales has not been so high as to present many local communities as possible.’’ not preclude a future LPFM application a problem. Magrill notes that many

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations 73549

markets are geographically and Communications, Inc. filed reply confusion over the fact that Appendix A ethnically diverse and also notes that comments arguing for separation of refers to Arbitron Metro markets. In any HD channels have increased the need embedded markets from the core event, we clarify here that the markets for multiple translators in certain market, particularly in the case of San listed in Appendix A are Arbitron Metro locations. Magrill argues that the per- Francisco, San Jose and Santa Rosa. markets. market cap particularly hurts local 28. EMF also argues that the Fourth B. Discussion service providers who did not exceed R&O did not spell out how an the national cap. Magrill argues that the 25. For the reasons explained below, application would be deemed to be cap should be revisited and at least we will grant the petitions for within an Appendix A market. We eased in markets that are not spectrum reconsideration in part and clarify the disagree. Both the Third FNPRM and the limited. treatment of translator applications in Fourth R&O consistently referred to the embedded markets. We will modify the proposed transmitter site as the 3. Responsive Pleadings national cap to allow each applicant to determining factor for whether an 22. Prometheus Radio Project pursue up to 70 applications, provided application would be considered to be (‘‘Prometheus’’) filed an Opposition that no more than 50 of them are in the within a particular market. In fact, the (‘‘Prometheus Opposition’’) to the Appendix A markets. We will also Third FNPRM adopted a processing petitions for reconsideration. modify the per-market cap from one freeze on ‘‘any translator modification Prometheus argues that the Commission translator application per market to application that proposes a transmitter properly defined the ‘‘market’’ for the three, subject to two conditions: (1) To site for the first time within any one-per-market translator caps as the avoid dismissal under the cap [spectrum-limited] market,’’ while Arbitron Metro market. Prometheus procedures, the 60 dBu contour of a allowing any translator modification rejects Magrill’s claim about lack of translator application may not overlap application ‘‘which proposes to move its notice, noting that the Commission the 60 dBu contour of another translator transmitter site from one location to specifically asked for comments on application filed by that party or another within the same spectrum- whether translator applicants should be translator authorization held by that limited market.’’ Our detailed market- limited to one or a few applications in party as of the release date of this specific translator processing policy any particular market and that this decision; and (2) the translator adopted in the Fourth R&O specifically material was published in the Federal application may not preclude grant of a refers to the proposed transmitter site as Register. Prometheus then argues that future LPFM application in the grid for the determining factor, and the the caps will prevent speculation and that market or at the proposed out of translator cap discussion in the Fourth preserve radio market diversity. grid transmitter site, in accordance with R&O likewise refers to proposed Prometheus opposes any waiver process the processing policy delineated in the transmitter locations. In any event, we that would delay the LPFM application Fourth R&O. In all other respects, we clarify here that a translator application window. deny the petitions. is considered within an Arbitron Metro 23. REC Networks (‘‘REC’’) partially market for purposes of the per-market opposes the petitions for 1. Market Definitions translator caps if it specifies a reconsideration. REC supports the 26. The Fourth R&O adopted ‘‘both a transmitter site within that Arbitron national cap of 50 applications, but national cap and a market-based cap for Metro market. believes the per-market cap may be the markets identified in Appendix A.’’ 29. On the other hand, we agree that overly restrictive. REC argues for Appendix A contained a spreadsheet we should clarify the treatment of adoption of a waiver standard that is with eight top-level columns. Appendix ‘‘embedded’’ markets. An embedded more stringent than the one proposed in A also contained a paragraph entitled market is a unique marketing area for the Joint Petition. REC suggests the ‘‘Detailed Column Information’’ for the buying and selling of radio air time. following additional criteria: (1) The which the following information It is contained, either in whole or in applicant must accept a condition on its appeared in bold for the spreadsheet’s part, within the boundaries of a larger construction permit that for a four-year first three top-level columns: ‘‘parent’’ market. Most, but not all, period after commencing operations, the embedded markets are among the 156 translator must be commonly owned Arb#/Rank—Arbitron Market Ranking radio markets listed in Appendix A. with the primary station and must CF#/Rank—Common Frequency 30. Our intent was, and is, to treat rebroadcast the primary analog output Arbitron Market Ranking each embedded market listed in of that station; (2) the 60 dBu contour Appendix A as a separate radio market of the translator application must not Fall 2011 Arbitron Rankings—Arbitron for purposes of the per-market cap. For overlap (i) a 30 kilometer radius around Market Name example, the San Francisco market the center of markets 1–20, (ii) a 20 27. Appendix A made it clear that we (Arbitron Metro market #4) includes the kilometer radius around the center of were referring to Arbitron Metro San Jose (Arbitron Metro market #37) spectrum limited markets 21–50, or (iii) markets rather than non-Arbitron data and Santa Rosa (Arbitron Metro market a 10 kilometer radius around the center such as census data. Although we did #122) embedded markets. Accordingly, of spectrum limited markets 51–100; not describe the markets as Arbitron the per-market cap would apply to each and (3) applications grantable under this Metro markets, the only alternative type of three markets: (1) The core San waiver must also comply with the of Arbitron radio market is an Arbitron Francisco market (consisting of national cap of 50 applications. Total Survey Area. Appendix A could Alameda, Contra Costa, Marin, Napa, 24. In reply comments, Conner, the not be interpreted to mean Arbitron San Francisco, San Mateo and Solano Joint Petitioners and Magrill reiterate Total Survey Area, however, because Counties); (2) the San Jose market their prior positions. Four Rivers there is no Arbitron Total Survey Area (consisting of Santa Clara County); and Community Broadcasting Corporation for many of the markets listed in (3) the Santa Rosa market (consisting of filed a reply arguing for a waiver Appendix A, particularly the largest Sonoma County). Thus, an application standard similar to the standard radio markets. Accordingly, contrary to for a translator in San Jose would not suggested by the Joint Petition. One EMF’s claim, we do not believe there count against the per-market cap for that Ministries, Inc. and Life On The Way could reasonably have been any applicant in either the core San

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with 73550 Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations

Francisco market or the Santa Rosa from the dismissal process discussed in erroneous assumption that translator market. Accordingly, subject to the Section III.B of the Third FNPRM. Based applicants with higher numbers of processing rules described below, an on those tentative conclusions, we pending applications do not intend to applicant could prosecute three asked for comments on processing construct all of those proposed stations. applications in each of those three policies to address the potential for Second, EMF points out that the markets. In contrast, the Washington, speculative abuses among the remaining Commission chose a cap of 50 as the DC market (Arbitron Metro market #8) translator applications: most ‘‘administratively feasible solution includes one county from the For example, we seek comment on whether for processing this large group of long- Fredericksburg, VA market (Arbitron to establish an application cap for the pending applications’’ instead of ‘‘more Metro market #147, with Stafford applications that would remain pending in direct means’’ of curbing speculation, County being the embedded portion of non-spectrum limited markets and unrated such as limits on sales of new translator that market) and all of the Frederick, markets. Would a cap of 50 or 75 construction permits or the prices at MD market (Arbitron Metro market applications in a window force high filers to which they can be sold. #197). In that situation, an application concentrate on those proposals and markets 36. EMF’s first objection proposing a site in Stafford County where they have bona fide service mischaracterizes our decision on the would be treated as an application in aspirations? In addition or alternatively, national cap by treating it as an should applicants be limited to one or a few unverified assumption about the the Fredericksburg, VA Arbitron Metro applications in any particular market? market rather than an application in the number of stations that applicants could Washington, DC Arbitron Metro Market. 32. Clearly, the point of Section III.C. build or wish to build. We acknowledge The per-market cap (as revised below) of the Third FNPRM was to seek that we cannot divine an applicant’s will apply to all applications proposing comments on potential national caps intentions based on simple statistics, a site in the Fredericksburg, VA and per-market caps as a processing but that is not what we attempted to do. Arbitron Metro market, because that policy separate from the market-based Rather, we developed a processing market is listed in Appendix A. On the translator dismissal policy discussed in policy that would reasonably balance other hand, an application proposing a Section III.B. We specifically noted that competing goals. The cap of 50 does not site in Frederick County, MD would be this processing policy could apply to assume that an applicant could only treated as an application in the applications in ‘‘non-spectrum-limited’’ intend to construct, or be able to Frederick, MD Arbitron Metro market markets and unrated markets. We construct, 50 new translator stations, rather than the Washington, DC received substantial comments on the but it will require applicants to Arbitron Metro market. Because the proposals for a national cap and per- prioritize their filings and focus on Frederick, MD Arbitron Metro market is market caps. In fact, Magrill himself applications in those locations where not listed in Appendix A, the per- commented on the issue by proposing they have a bona fide interest in market cap does not apply to any an alternative system that would limit providing service and on applications application proposing a site there. With applications in both ‘‘spectrum that are most likely to be grantable, the exclusion of Stafford County, VA available’’ markets and ‘‘spectrum while deferring their pursuit of other and Frederick County, MD from the limited’’ markets based on the total opportunities until a future filing Washington, DC market for the purposes number of applications filed nationally window. In this regard, we reiterate that of the per-market cap, the cap for the by a particular applicant. Accordingly, our conclusion here about speculative Washington, DC market would apply we reject Magrill’s claim that we failed filings by high-volume applicants is only to applications proposing to give adequate notice that per-market supported by the data showing that an operation from a site in the core of that caps might apply in ‘‘spectrum unusually large number of the translator market, which is any part of the market available’’ markets. grants from this filing window were not other than those two counties. 33. Similarly, the Joint Petition claims constructed or were assigned to a party that a one-per-market cap on translator other than the applicant. We believe 2. Notice of Appendix A Per-Market Cap applications ‘‘had never previously been applicants subject to the cap are likely Proposal proposed prior to the Fourth R&O.’’ The to choose applications that (1) they 31. We next address Magrill’s claim language quoted above from the Third expect to be granted, (2) they plan to that we violated the Administrative FNPRM shows that this claim is construct and operate, and (3) will fill Procedure Act’s notice and comment unfounded. Accordingly, we reject this an unmet need, thereby improving requirements by failing to give notice claim by the Joint Petitioners. competition and diversity. EMF has not that the per-cap limit would apply to all shown that this expectation is 3. The National Cap of 50 Applications Appendix A markets rather than just unreasonable. ‘‘spectrum limited’’ Appendix A 34. EMF is the only party to challenge 37. EMF’s second argument overlooks markets. Magrill’s comments focus on the national cap of 50 applications. As many relevant considerations. First, the Commission’s market-specific we noted above, EMF received 259 EMF fails to note that most of the translator dismissal process, with its translator grants from its Auction 83 applicants subject to the cap received distinction between ‘‘spectrum limited’’ applications before our processing many grants before the processing freeze markets and ‘‘spectrum available’’ freeze took effect. Approximately 20 took effect. EMF itself received 259 markets, as delineated in Section III.B of percent of those grants were never grants, so for EMF the cap translates the Third FNPRM. However, in Section constructed and therefore were into 259 granted applications, plus as III.C of the Third FNPRM, we then cancelled. Altogether, 72 out of EMF’s many additional applications that EMF stated our tentative conclusion that this 259 grants (almost 30 percent of those selects that result in grants. translator dismissal process would not authorizations) were sold, were not built 38. Second, as the Commission be sufficient to address the problem of and therefore were cancelled, or were previously noted, future translator speculation among Auction 83 filers. otherwise terminated. windows will provide additional new We tentatively concluded that nothing 35. EMF focuses its challenge to the station licensing opportunities. With in the LCRA limits the Commission national cap of 50 translator our flexible translator licensing from addressing such speculation applications on two claims. First, EMF standards, we expressed confidence that through processing policies separate claims that the cap is based on an ‘‘comparable licensing opportunities

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations 73551

will remain available in a future Appendix A markets. All selected WNC claims that it filed multiple translator filing window’’ with respect applications outside the Appendix A applications to serve ‘‘various clusters to applications dismissed pursuant to markets must meet certain conditions. of communities’’ in the Asheville the application caps and our market- Specifically, the applications outside market, it has not explained how its based processing policy. the Appendix A markets must (1) proposed service would achieve that 39. Third, EMF overlooks our explicit comply with the restriction against result with respect to Black Mountain, balancing of ‘‘the competing goals of overlap with the applicant’s other NC, which is the focus of the WNC deterring speculation and expanding pending translator applications and Petition. All of WNC’s applications translator service to new communities.’’ authorizations set forth in paragraph 58 there specify Black Mountain as the In doing so, we selected the number of below with respect to the per-market community of license and, with only 50 applications to affect no more than cap, and (2) protect at least one channel one exception, propose the same 20 applicants, representing only three for LPFM filing opportunities at the transmitter site. In addition, WNC fails percent of the pool of Auction 83 proposed transmitter site for each short to show any error in the Commission’s applicants but approximately half of the form application specifying such site, as analysis of the need to apply the market pending applications. Thus, a national shown in the type of ‘‘out of grid’’ cap of 50 applications would allow 97 preclusion study described in paragraph cap to those markets listed in Appendix percent of applicants to prosecute all of 59 below with respect to the per-market A that are outside of the top 150 their pending applications, and it will cap. In addition, to ensure that these markets, or any valid justification for allow approximately 50 percent of all authorizations will not be relocated to departing from Arbitron Metro market pending applications to be processed, Appendix A markets, we will impose a definitions. Arbitron Metro market while curbing the excessive number of condition restricting their relocation. definitions are based on multiple applications filed by 3 percent of the Specifically, during the first four years demographic/geographic factors, filers. of operation, none of these including terrain issues. Accordingly, 40. With respect to the choice of an authorizations can be moved to a site we deny WNC’s request to exclude application cap over other options such from which (calculated in accordance Asheville, NC from Appendix A or in as anti-trafficking rules, EMF claims with Section 74.1204(b) of our Rules) the alternative exclude the community erroneously that our objective was to there is no 60 dBu contour overlap with of Black Mountain from the Asheville limit the number of applications we had the 60 dBu contour proposed in the market. to process. We chose an application cap application as of the release date of this 44. Proposed Alternative. Conner ‘‘both [to] deter trafficking and provide Fifth Order on Reconsideration. Our the fastest path to additional translator argues that any local application cap on decision to establish a national cap is an translators should be per-community, and LPFM licensing in areas where the exercise in line-drawing that is based on the number of service- need for additional service is greatest.’’ committed to agency discretion. Our restricted AM stations in any given This approach benefits both translator choice of a limit of 70 applications and LPFM applicants and the public nationally, with no more than 50 community. Magrill similarly points out they seek to serve. An application cap applications in the Appendix A that there is increased demand for FM provides an immediate solution to the markets, reasonably balances competing translators, both to rebroadcast AM trafficking issue and also ameliorates goals based on a careful evaluation of stations and to rebroadcast HD radio the impact of translator applications on the record. streams. However, we have an LPFM service while avoiding the lead obligation to address abusive time necessary to develop and adopt 4. The Need for a Per-Market Cap application conduct, as described above, new anti-trafficking rules or the 42. EMF characterizes the per-market regardless of the supply/demand resources needed to enforce such rules. cap as arbitrary and capricious. balance in the marketplace. In fact, This is why we described application However, the record here clearly trafficking in translator authorizations caps as ‘‘the most administratively demonstrates that speculative translator could only occur where there is feasible solution for processing this filing activity was not only a national demand, so the existence of such large group of long-pending problem but also a local market demand supports, rather than applications.’’ Advocates of anti- problem. In the Third FNPRM, we undercuts, our rationale for curbing trafficking rules, such as EMF, have not described exactly this situation, noting speculation. With respect to Conner’s shown that this conclusion is flawed. that one applicant held 25 of the 27 suggested cap based on the proposed 41. We will, however, grant translator applications proposing community of license rather than the reconsideration with respect to the locations within 20 kilometers of Arbitron Metro market, this would be national cap of 50 applications in order Houston’s center city coordinates and impractical from an administrative to better ensure equitable distribution of 75 applications in Texas. We also noted standpoint. radio service between urban and rural that two applicants held 66 of the 74 areas. We recognize that parties applications proposing service to the 45. The record in this proceeding restricted to 50 applications will tend to New York City Arbitron Metro market. strongly supports a limit on translator choose applications in urban areas, EMF has not shown that our analysis as applications within each Arbitron Metro because those applications offer to speculative filings activity within market identified in Appendix A to potential service to the greatest number Appendix A markets is incorrect. protect the integrity of our licensing of people. We believe a modest 43. Non-top 150 Markets in Appendix process. We recognize that EMF relaxation of this restriction can provide A. Appendix A to the Fourth R&O proposes anti-trafficking restrictions as additional service to rural areas without includes six non-top 150 markets, an alternative approach, but our sacrificing the integrity of our licensing including Asheville, NC, because they rationale for rejecting those restrictions process or opportunities for new LPFM have more than four translator in favor of a national cap applies service. Accordingly, we will allow applications pending. Such a large equally to the per-market cap. applicants to prosecute up to 70 number of applications for markets Accordingly, we reject the claim that a applications nationally, provided that outside the top 150 markets suggests per-market cap is arbitrary and no more than 50 of those are in speculative filing activity. Although capricious.

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with 73552 Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations

5. Revision of the Per-Market Cap the per-market cap will not reduce 53. Based on our analysis of pending 46. Based on the information opportunities for LPFM licensing applications, we believe that a limit of presented in the reconsideration because, as we explain below, all three applications per applicant in the petitions and responsive pleadings, we translator applicants taking advantage of Appendix A markets is appropriate, conclude that an adjustment of the per- that change will need to protect LPFM subject to the conditions described market cap will improve competition filing opportunities when they do so. below. With those conditions, we and diversity in the Appendix A Our adjustment of the per-market cap in believe this relaxation in the per-market markets without sacrificing LPFM filing this order will not negatively affect cap will improve diversity and opportunities or the policy objectives LPFM licensing opportunities. competition in under-served areas of the 50. The Joint Petition proposes a behind the per-market cap. As discussed Appendix A markets without waiver process under which the one- precluding LPFM filing opportunities or below, we are increasing the per-market per-market cap would remain in place, increasing significantly the potential for cap for radio markets identified in but waivers would be available for licensing abuses. Appendix A of the Fourth R&O to allow applications meeting certain criteria: (1) 54. The relaxed limit of three up to three applications for each market, The 60 dBu contour of the translator applications per market will only apply subject to certain conditions. station would not overlap the 60 dBu to an applicant that shows that its 47. Although the petitioners do not contour of any commonly controlled applications meet the conditions challenge our conclusion that it is application; (2) the application will not described in paragraphs 58–59. As we infeasible to apply the Technical Need preclude the approval of a future LPFM indicate below, we instruct the Media Rule to the thousands of pending application in the grid or at the Bureau to issue a public notice asking translator applications, they argue that proposed facility’s transmitter site; and any applicant that is subject to the one translator can only serve a small (3) the applicant agrees to accept a national cap or the per-market cap to portion of most markets in Appendix A. condition on its construction permit identify the applications they wish to The Joint Petition focuses on the Joint that disallows the for-profit sale of the prosecute consistent with the caps and Petitioners’ attempts to build regional authorization for four years after the to show that those applications comply networks of translators to rebroadcast station begins operation. REC agrees with the caps. If a party has more than the signals of their NCE stations. REC with these conditions, but proposes one application in an Appendix A independently analyzed the additional requirements: (1) The market but fails to submit a showing applications of the Joint Petitioners and translator station, for four years after pursuant to the public notice, or agrees that many of these applications beginning operation, must be co-owned submits a deficient showing, we will not propose operations very distant from the with the primary station and analyze their applications center of the Arbitron Metro market. rebroadcast that station’s primary analog independently to assess whether they REC agrees that, with appropriate limits, signal; (2) the 60 dBu contour of the comply with the conditions that there allowing such applications to be translator must not overlap the central be no 60 dBu overlap with that party’s processed would improve diversity and core of the market; and (3) additional other applications or authorizations and competition in underserved areas, applications being prosecuted under that there be no preclusion of LPFM without impinging on LPFM filing this waiver would remain subject to the filing opportunities. Accordingly, in opportunities. national cap. those situations we will process only 48. We believe the Joint Petition and 51. We agree with certain elements of the first filed application for that party the REC Partial Opposition raise a valid the Joint Petition and the REC Partial in that market. point as to whether the one-per-market Opposition, but our revised per-market 55. In deciding on an adjustment to cap is overly restrictive. The Joint cap will vary in certain respects. First, the per-market cap, we are balancing the Petition states that the Joint Petitioners we will not rely on an anti-trafficking competing interests of adding new are prosecuting their pending translator condition. As we explained above, we service to underserved areas by applications not to speculate in believe such conditions are subject to translators versus preserving the translator permits or to manipulate the circumvention, and monitoring integrity of our licensing process by auction process, but in hopes of compliance with an anti-trafficking dismissing applications filed for increasing the reach of their NCE condition would be unduly resource- speculative reasons or to skew our stations. Based on its analysis of Joint intensive and could delay processing. auction procedures. The factors cited by Petitioners’ applications, REC agrees 52. Second, we believe it is the petitioners and REC, particularly the that the Joint Petition demonstrates that unnecessary to allow parties to limited service area of a translator the one-per-market cap is overly prosecute a large number of translator compared to the size of the Appendix A restrictive. applications within an Appendix A markets, weigh in favor of allowing 49. Prometheus urges that the one- market, as would be possible under the more than one translator application in per-market cap be retained as ‘‘a crucial waiver procedures advocated in the an Appendix A market, provided that way to address the existing disparity’’ Joint Petition. As we have shown above, each translator would serve a different between the number of authorized the Joint Petitioners and other part of the market than any of an translators and the number of applicants already have received a applicant’s existing translators or other authorized LPFM stations. This significant number of translator grants pending translator applications. On the argument appears to assume that any from the Auction 83 application other hand, the abusive filing conduct expansion in FM translator licensing process. Further, our clarification of described above, combined with the will reduce opportunities for LPFM embedded markets will help these considerations set forth in paragraph 52, licensing. Clearly, that is not the case. parties prosecute more applications suggest that any relaxation be limited to With our market-based translator within embedded markets. As we have a small number of applications per processing policy, as well as our previously stated, we also expect that Appendix A market. In addition, the national and per-market caps on translator applicants will not be need to protect LPFM filing translator applications, we have put foreclosed from comparable application opportunities, for the reasons delineated strong limits in place to preserve LPFM opportunities in the next translator in the Fourth R&O, supports a condition filing opportunities. The expansion of filing window. that none of the Appendix A translator

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations 73553

applications would preclude an LPFM (60 dBu) contour (also calculated in translator stations in the future. This filing opportunity. We conclude that a accordance with Section 74.1204(b) of condition is consistent with that broad limited relaxation of the per-market cap, our Rules) of any other translator principle. combined with conditions that will application filed by that applicant or 60. Under the procedure proposed in protect LPFM filing opportunities and translator authorization held by that the Joint Petition and the REC Partial prevent duplicative translator service applicant, as of the date of the release Opposition, compliance with the areas, would promote competition and of this Fifth Order on Reconsideration. conditions described above would not diversity in Appendix A markets by Because our goal is to expedite the be required for an applicant’s first expanding translator service to processing of applications, we will not translator application in an Appendix A underserved areas without threatening accept an alternative contour prediction market, but instead would only be the integrity of our licensing process or method study to establish lack of 60 required as part of a showing for precluding LPFM filing opportunities. dBu contour overlap. The concern we additional applications in that market. Thus, we believe that the benefits of our have about service duplication applies We believe, however, that it is action will outweigh any potential costs. even more strongly when a party appropriate to impose these conditions 56. In considering the change in the already has an existing translator station on all of the applications if a party per-market cap, we analyzed applicants providing service to the same area chooses to prosecute more than one with 1–5 pending applications per proposed by that party in an application in an Appendix A market so market in all Arbitron-rated markets. In application. Accordingly, we are that translator applicants will have an doing so, we have not taken certain expanding the proposed condition to incentive to provide more service to variables into account because it was include outstanding authorizations as underserved areas of the Appendix A not feasible to do so. Those variables are well as applications. However, we will markets. the impact of the national cap on the not extend this condition to limit 61. If a party instead elects to number of pending applications and the applications based on parties’ prosecute only one application in an impact of the two conditions proposed attributable interests or common control Appendix A market, then it need not in connection with an adjustment of the of applicant and licensee entities. The make a showing that the application one-per-market cap. The cap of one pending Auction 83 applications lack complies with the conditions described would affect two-thirds of those any information about parties to the in paragraphs 58 and 59 when the local applicants, whereas a cap of three applications, and so we lack sufficient cap compliance showings are submitted. would affect less than one-third of those information to make determinations (However, if a party prosecutes only one applicants, meaning that a substantial about attributable interests in other application and it proposes substantial majority of applicants could prosecute applications or common control of overlap with an existing translator all of their pending applications. Thus, applicant entities. Asking applicants to authorization held by that party, the relaxation of the cap from one to three amend their applications to provide this Technical Need Rule and FCC Form 349 applications per market could benefit a information would delay our efforts to will require the party to show a significant number of translator ensure expeditious processing of technical need for the second translator applicants who do not have an translator and LPFM applications, and when the Form 349 application is due excessive number of applications resolving disputes over whether an in order to justify a grant of that pending in any market (i.e., more than application is commonly controlled application.) We are providing this five). However, as indicated above and with another application or flexibility so that the revised policy is in the Joint Petition and the REC Partial authorization would further delay this Opposition, any such relaxation should not more restrictive than the original effort. Accordingly, consistent with the be subject to certain conditions to one-per-market cap for any translator approach taken in the Fourth R&O, we preserve LPFM filing opportunities and applicant. We note that none of the are limiting this condition to the integrity of our licensing process. petitions for reconsideration or 57. With respect to the Joint applications filed by and authorizations responsive pleadings argue that the one- Petitioners’ proposal to prohibit 60 dBu issued to the named applicant entity. per-market policy should be tightened overlap between commonly-controlled 59. We agree with the condition through the imposition of conditions on applications, we generally agree that advocated by the Joint Petitioners and a single application. this is an appropriate condition. For the REC that the proposed translator station 62. REC also proposes that reasons shown above, we believe that cannot preclude approval of a future applications grantable under the relaxed multiple translator applications in a LPFM application in the grid for that per-market standard be subject to the single area suggest an attempt to game market, under the processing policy national cap of 50 applications adopted the auction system or to obtain permits delineated in Section II.B of the Fourth in the Fourth R&O. We agree that the for the purpose of selling them. Such a R&O, or at the proposed out of grid national cap should be uniform for all restriction also would advance the goal transmitter site. To satisfy this applicants. The relaxation of the per- of the Technical Need Rule to limit the condition, applicants must submit an market cap leaves undisturbed an licensing of multiple translators serving LPFM preclusion study demonstrating applicant’s obligation to comply with the same area to a single licensee. As we that grant of the proposed translator the national cap of 70 applications, with have explained, attempting a case-by- station will not preclude approval of a no more than 50 applications in case analysis of the thousands of future LPFM application. As we Appendix A markets. pending translator applications for explained in the Fourth R&O, one of our 63. With the cap of three-per-market compliance with that rule is not broad principles for implementation of in place, we find it unnecessary to adopt feasible. the LCRA is that our primary focus the additional waiver conditions 58. For these reasons, we adopt the under Section 5(1) must be to ensure suggested by REC. The principal following processing policies: The that translator licensing procedures do conditions suggested by REC would not protected (60 dBu) contour (calculated not foreclose or unduly limit future preserve LPFM filing opportunities or, in accordance with Section 74.1204(b) LPFM licensing, because the more in our opinion, curb speculation by of our Rules) of the proposed translator flexible translator licensing standards translator applicants. We also believe station may not overlap the protected will make it much easier to license new they would constrain competition in

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with 73554 Federal Register / Vol. 77, No. 238 / Tuesday, December 11, 2012 / Rules and Regulations

Appendix A markets without any they seek further Commission III. Ordering Clauses countervailing public benefit. processing, consistent first with the 64. REC’s first additional waiver national cap, as revised in paragraph 41 A. Fifth Order on Reconsideration requirement would not allow more than above, and then with the revised per- 71. Accordingly, it is ordered that the one translator application to be market cap of three applications. They Petition for Partial Reconsideration filed prosecuted within certain geographic will also be required to demonstrate that by Hope Christian Church of Marlton, zones around the center of the the selected applications meet the Inc., Bridgelight, LLC and Calvary Appendix A markets. However, we have conditions described in (1) paragraph 41 Chapel of the Finger Lakes, Inc. on May already adopted a rigorous processing above with respect to applications standard for pending translator outside the Appendix A markets for 8, 2012, the Petition for Reconsideration applications in Appendix A markets, purposes of the national cap of 70 of Educational Media Foundation on and REC has not shown that this applications, and (2) paragraphs 58 and Fourth R&O and Third Order on additional constraint is needed. We 59 above if they elect to prosecute more Reconsideration on May 8, 2012, the believe this restriction would limit than one application in an Appendix A Petition for Partial Reconsideration of competition in the Appendix A markets market. Fourth R&O and Third Order on without providing a countervailing 67. The Fourth R&O described certain Reconsideration filed by Conner Media, benefit. REC’s proposal also could be translator amendment opportunities in Inc. on May 9, 2012, the Comments of circumvented by modifications to connection with the market-based Kyle Magrill and Petition for construction permits. processing policy. However, the Reconsideration filed by Kyle Magrill on 65. REC’s second additional waiver application caps we describe here will May 7, 2012, and the Petition for requirement would impose a condition be applied before any such amendment Reconsideration filed by Western North on the construction permit that, for four opportunity is available. This approach Carolina Public Radio, Inc. on May 8, years after beginning operation, the is consistent with our prior approach in 2012, are granted in part to extent set translator must be commonly-owned the Third Report and Order. This forth above and otherwise denied. with the primary station and must approach also will expedite our rebroadcast that station’s primary analog processing of the large volume of 72. It is further ordered that the Reply signal. REC claims that this condition is translator applications, which needs to of Four Rivers Community Broadcasting appropriate because translator be done before we can open an LPFM Corporation to Oppositions to Petitions permittees in some markets have filing window. for Reconsideration is dismissed to the entered into time brokerage deals with 68. Both pending long form and short extent set forth above. commercial broadcasters to air HD radio form applications will be subject to 73. It is further ordered that pursuant programming streams on NCE translator these applicant-based caps. In the event to pursuant to the authority contained stations. We view REC’s proposed that an applicant does not timely in sections 4(i), 301, 302, 303(e), 303(f) condition as more of a programming comply with these dismissal procedures and 303(r) of the Communications Act preference than an effort to curb or submits a deficient showing, we of 1934, as amended, 47 U.S.C. 154(i), speculation. We also believe diversity direct the staff to (1) first apply the and competition would be better served national cap, retaining on file the first 301, 302, 303(e), 303(f) and 303(r), and by giving translator applicants the 70 filed applications and dismissing (a) the Local Community Radio Act of flexibility to prosecute applications that those Appendix A applications within 2010, Pub. L. No. 111–371, 124 Stat. meet the revised per-market application that group of 70 applications that were 4072 (2011), the Fifth Order on cap described above. We expect those filed after the first 50 Appendix A Reconsideration is hereby adopted, parties to prosecute the applications applications, and (b) those applications effective January 10, 2013. that are most likely to be granted and outside the Appendix A markets for 74. It is further ordered that the most likely to provide a needed service which an adequate showing pursuant to Commission’s Consumer and without precluding a future LPFM filing paragraph 41 has not been submitted, Governmental Affairs Bureau, Reference opportunity. Moreover, as indicated and (2) then dismiss all but the first Information Center, shall send a copy of above with respect to the Joint Petition’s filed application by that applicant in the Fifth Order on Reconsideration, proposed anti-trafficking condition, each of the markets identified in including the Final Regulatory enforcement of REC’s proposed Appendix A. We believe that this Flexibility Analysis, to the Chief condition and processing waiver process will give applicants an Counsel for Advocacy of the Small requests would be unduly resource- incentive to file timely and complete Business Administration. intensive and could delay the showings so that they can maximize processing of applications. their future service to the public Federal Communications Commission. 66. As we indicated in the Fourth procedural matters Marlene H. Dortch, R&O, the burden will be on each Secretary. applicant to demonstrate compliance C. Fifth Order on Reconsideration [FR Doc. 2012–29877 Filed 12–10–12; 8:45 am] with the national and per-market 69. Supplemental Final Regulatory application caps. Any party with (1) Flexibility Analysis. Appendix A BILLING CODE 6712–01–P more than 70 applications pending contains a supplemental final regulatory nationally, (2) more than 50 flexibility analysis pursuant to the applications pending in Appendix A Regulatory Flexibility Act of 1980, as markets, and/or (3) more than one amended (‘‘RFA’’). pending application in any of the 70. Congressional Review Act. The markets identified in Appendix A Commission will send a copy of this (subject to the clarification above as to Fifth Order on Reconsideration in a embedded markets) will be required by report to be sent to Congress and the a forthcoming public notice to identify Government Accountability Office and affirm their continuing interest in pursuant to the Congressional Review those pending applications for which Act, see 5 U.S.C. 801(a)(1)(A).

VerDate Mar<15>2010 15:22 Dec 10, 2012 Jkt 229001 PO 00000 Frm 00014 Fmt 4700 Sfmt 9990 E:\FR\FM\11DER1.SGM 11DER1 rmajette on DSK2TPTVN1PROD with