Supporting Statement OMB 3060-0920(2010)

OMB Control Number: 3060-0920 March 2011

Title: Application for Construction Permit for a Low Power FM Broadcast Station; Report and Order in MM Docket No. 99-25 Creation of Low Power Radio Service; Sections 73.807, 73.809, 73.865, 73.870, 73.871, 73.872, 73.877, 73.878, 73.318, 73.1030, 73.1207, 73.1212, 73.1230, 73.1300, 73.1350, 73.1610, 73.1620, 73.1750, 73.1943, 73.3525, 73.3550, 73.3598, 11.61(ii), FCC Form 318

SUPPORTING STATEMENT

A. Justification:

1. The Commission is requesting OMB approval/clearance of this information collection for an additional three years.

History:

On December 11, 2007, the FCC released a Third Report and Order and Second Further Notice of Proposed Rulemaking, Creation of a Low Power Radio Service, MM Docket No. 99-25, FCC 07-204. In the Third Report and Order, the FCC extended the local standards for rural markets. Under the old Rules, an LPFM applicant was deemed local if it was physically headquartered or had a campus within ten miles of the proposed LPFM transmitter site, or if 75 percent of its board members resided within ten miles of the proposed LPFM transmitter site. The Third Report and Order modified the ten-mile requirement to twenty miles for all LPFM applicants for proposed facilities in other than the top fifty urban markets, for both the distance from transmitter and residence of board member standards. We have revised the Form 318 to reflect this extension of local standards for rural markets. While the overall number of respondents increases because the Rule change¹ expands the universe of eligible applicants, there are no new information collection requirements with respect to completion of the Form 318.

In the Third Report and Order, the Commission also delegated to the Media Bureau the authority to consider Section 73.807 waiver requests from certain LPFM stations. When implementation of a full-service station community of license modification would result in an increase in interference caused to the LPFM station or its displacement, the LPFM station may seek a second-adjacent channel short spacing waiver in connection with an application proposing operations on a new channel.

The Third Report and Order also allows LPFM stations to file waiver requests of Section 73.809 of the Rules if: (1) it is at risk of displacement by an encroaching full-service station modification application and no alternative channel is available, and (2) it can demonstrate that it has regularly provided at least eight hours per day of locally originated programming. LPFM stations that wish to make a showing under this waiver standard must file an informal objection to the “encroaching” community of license modification application.

FCC Form 318 is required: (1) to apply for a construction permit for a new Low Power FM (LPFM) station; (2) to make changes in the existing facilities of such a station; or (3) to amend a pending FCC Form 318 application.

This information collection does not affect individuals or households; thus, there are no impacts under the Privacy Act. Statutory authority for this collection of information is contained in Sections 154(i), 303, 308 and 325(a) of the Communications Act of 1934, as amended.

On January 20, 2000, the Commission adopted a Report and Order authorizing the licensing of two new classes of LPFM stations: Low Power (LP) 100 and Low Power (LP) 10.² The Report and Order imposed separation requirements for LPFM stations to protect full-power FM stations operating on the co-, first-, and second-adjacent channels, as well as stations operating on intermediate frequency (“IF”) channels. The Report and Order also established ownership and eligibility rules for the LPFM service.

The Commission revised and clarified some of its LPFM rules in a September 2000 Memorandum Opinion and Order on Reconsideration. Among other things, the Reconsideration Order addressed a number of technical and ownership issues and clarified the eligibility rules for certain groups.

In the March 2005 Second Order, the Commission reexamined some of the rules governing the LPFM service, noting that the rules might need adjustment in light of the experiences of LPFM applicants and licensees. In the accompanying FNPRM, the Commission sought comment on a number of issues with respect to LPFM ownership restrictions and eligibility. In addition, the Commission also proposed certain changes to the Rules governing the formation and duration of voluntary and involuntary time-sharing arrangements among mutually exclusive LPFM applicants. Among other things, the FNPRM also considered a number of changes to the LPFM technical rules. The FNPRM also sought comment on the relationship between the LPFM and full-power FM services. The Commission also sought comment on whether LPFM stations should be protected from interference from subsequently authorized FM stations.

In December 2007, the Commission released a Third Report and Order resolving the issues raised in the FNPRM. In light of changed circumstances regarding the issue of protection rights for LPFM stations from subsequently authorized full-service stations, the Commission also found it necessary to consider certain rule changes to avoid the potential loss of LPFM stations. Accordingly, the Commission issued a Second Further Notice of Proposed Rulemaking (“Second Further Notice”) to seek comment on those changes.

LPFM Rules and Related Rules and Policies with Information Collection Requirements:

47 CFR 73.807 sets forth minimum distance separation requirements for LPFM stations. The Third Report and Order allows LPFM stations to file second-adjacent channel waiver requests of this Rule by filing a Form 318 if it is at risk of displacement by an encroaching full-service station application.

47 CFR 73.809(b) states that an LPFM station will be provided an opportunity to demonstrate in connection with the processing of the commercial or NCE FM application that interference as described in paragraph (a) of this section is unlikely. If the LPFM station fails to so demonstrate, it will be required to cease operations upon the commencement of program tests by the commercial or NCE FM station.

47 CFR 809(c) states complaints of actual interference by an LPFM station subject to paragraphs (a) and (b) of this section must be served on the LPFM licensee and the Federal Communications Commission, attention Audio Services Division. The LPFM station must suspend operations within twenty-four hours of the receipt of such complaint unless the interference has been resolved to the satisfaction of the complainant on the basis of suitable techniques. An LPFM station may only resume operations at the direction of the Federal Communications Commission. If the Commission determines that the complainant has refused to permit the LPFM station to apply remedial techniques that demonstrably will eliminate the interference without impairment of the original reception, the licensee of the LPFM station is absolved of further responsibility for the complaint.

47 CFR 73.809(e) states that in each instance where suspension of operation is required, the licensee shall submit a full report to the FCC in Washington, DC, after operation is resumed, containing details of the nature of the interference, the source of the interfering signals, and the remedial steps taken to eliminate the interference.

47 CFR 73.865 allows a change in the name of an LPFM licensee where no change in ownership or control is involved to be accomplished by a written notification by the licensee to the Commission. This section also prohibits assignment of an LPFM authorization or transfer of control of an LPFM permittee or licensee if (a) consideration exceeds the depreciated fair market value of the physical equipment and facilities, and/or (b) the transferee or assignee is incapable of satisfying all eligibility criteria that apply to a LPFM licensee. Transfers of control involving a sudden change of more than 50 percent of an LPFM’s governing board shall not be deemed a substantial change in ownership or control, subject to the filing of an FCC Form 316.

47 CFR 73.870 and 73.871 allow licensees and permittees to file minor change applications and minor amendments to pending FCC Form 318 applications by requesting authority for transmitter site relocation of up to 5.6 kilometers for LP100 facilities and up to 3.2 kilometers for LP10 facilities. The Third Report and Order amended these Rules to also allow LPFM applicants with mutually exclusive applications to file minor amendments and minor changes that reflect changes to time-sharing agreements, including universal agreements that supersede involuntary arrangements.

47 CFR 73.870 and 73.871 allow voluntary time-share applicants³ to relocate an LPFM transmitter to a central location by filing amendments to their pending FCC Form 318 applications.

47 CFR 73.870(d) state petitions to deny such mutually exclusive LPFM applications may be filed within 30 days of such public notice and in accordance with the procedures set forth at § 73.3584. A copy of any petition to deny must be served on the applicant.

47 CFR 73.872(c) states if mutually exclusive⁴ applications have the same point total⁵, any two or more of the tied applicants may propose to share use of the frequency⁶ by submitting, within 90 days of the release of a public notice announcing the tie, a time-share proposal. Such proposals shall be treated as minor amendments to the time-share proponents' applications, and shall become part of the terms of the station authorization. Where such proposals include all of the tied applications, all of the tied applications will be treated as tentative selectees; otherwise, time-share proponents points will be aggregated to determine the tentative selectees.

(1) Time-share proposals shall be in writing and signed by each time-share proponent, and shall satisfy the following requirements:

(i) The proposal must specify the proposed hours of operation of each time-share proponent;

(ii) The proposal must not include simultaneous operation of the time-share proponents; and

(iii) Each time-share proponent must propose to operate for at least 10 hours per week.

(2) Where a station is authorized pursuant to a time-sharing proposal, a change of the regular schedule set forth therein will be permitted only where a written agreement signed by each time-sharing permittee or licensee and complying with requirements in paragraphs (c)(1)(i) through (iii) of this section is filed with the Commission, Attention: Audio Division, Media Bureau, prior to the date of the change.

47 CFR 73.872(d)(1) states if a tie among mutually exclusive applications is not resolved through voluntary time-sharing in accordance with paragraph (c) of this section, the tied applications will be reviewed for acceptability and applicants with tied, grantable applications will be eligible for equal, successive, non-renewable license terms of no less than one year each for a total combined term of eight years, in accordance with § 73.873. Eligible applications will be granted simultaneously, and the sequence of the applicants' license terms will be determined by the sequence in which they file applications for licenses to cover their construction permits based on the day of filing, except that eligible applicants proposing same-site facilities will be required, within 30 days of written notification by the Commission staff, to submit a written settlement agreement as to construction and license term sequence. Failure to submit such an agreement will result in the dismissal of the applications proposing same-site facilities and the grant of the remaining, eligible applications.

47 CFR 73.872(d)(2) states groups of more than eight tied, grantable applications will not be eligible for successive license terms under this section. Where such groups exist, the staff will dismiss all but the applications of the eight entities with the longest established community presences, as provided in paragraph (b)(1) of this section. If more than eight tied, grantable applications remain, the applicants must submit, within 30 days of written notification by the Commission staff, a written settlement agreement limiting the group to eight. Failure to do so will result in dismissal of the entire application group.

47 CFR 73.877 requires each LPFM station to maintain a station log. Each log entry must include the time and date of observation and the name of the person making the entry. This log must contain entries of the information specified in this section.

47 CFR 73.878 requires licensees to make available to FCC representatives during regular business hours, the station records and logs. Upon request of the FCC, the licensee must mail (by either registered mail, return receipt requested, or certified mail, return receipt requested) the station records and logs. The licensee must retain the return receipt until such records are returned to the licensee.

Unattended operation. The Report and Order requires that LPFM stations that will operate unattended will be required to advise the Commission by letter of the unattended operation and provide an address and telephone number where a responsible party can be reached during such times.⁷

47 CFR 73.318 requires LPFM stations to resolve all complaints received on blanketing interference occurring within the immediate vicinity of the antenna site for one year after commence of transmissions with new or modified facilities. Licensee shall provide technical information, notifications or assistance to complainants on remedies for blanketing interference.

47 CFR 73.1030 requires LPFM stations to coordinate, notify, and provide protection to the radio quiet zones at Green, West Virginia and at Boulder, Colorado. In addition, LPFM applicants in Puerto Rico will need to coordinate and notify Cornell University regarding the radio coordination zone on that island. This requirement is necessary to ensure that research work at these installations will not be disrupted.

47 CFR 73.1207 requires that licensees of broadcast stations obtain written permission from an originating station prior to retransmitting any program or any part thereof. A copy of the written consent must be kept in the station's files and made available to the FCC upon request. 47 CFR Section 73.1207 also requires stations that use the National Bureau of Standards ("NBS") time signals to notify the NBS semiannually of use of time signals.

47 CFR 73.1212 requires a broadcast station to identify the sponsor of any matter for which consideration is provided. For matter advertising commercial products or services, generally the mention of the name of the product or service constitutes sponsorship identification. In addition, when an entity rather than an individual sponsors the broadcast of matter that is of a political or controversial nature, licensee is required to retain a list of the executive officers, or board of directors, or executive committee, etc., of the organization paying for such matter. Sponsorship announcements are waived with respect to the broadcast of "want ads" sponsored by an individual but the licensee shall maintain a list showing the name, address and telephone number of each such advertiser. These lists shall be made available for public inspection.

47 CFR 73.1230 requires that the station license and any other instrument of station authorization be posted in a conspicuous place at the place the licensee considers to be the principal control point of the transmitter.

47 CFR 73.1300 allows broadcast stations to be operated either attended or unattended. Regardless of which method is employed, licensees must employ written procedures and have them in the station’s files to ensure compliance with the rules governing the Emergency Alert System.

47 CFR 73.1350 requires licensees of LPFM broadcast stations operating by remote control points at places other than the main studio or transmitter site locations to send written notifications containing the remote locations to the FCC within three days after commencing remote control operations from such points.

47 CFR 73.1610 requires the permittee of a new broadcast station to notify the FCC of its plans to conduct equipment tests for the purpose of making adjustments and measurements as may be necessary to assure compliance with the terms of the construction permit and applicable engineering standards.

47 CFR 73.1620 requires that upon completion of construction of a LPFM station, the licensee may begin program tests upon notification to the Commission.

47 CFR 73.1750 requires a broadcast licensee to notify the FCC of permanent discontinuance of operation and to forward the station license and other instruments of authorization immediately after discontinuance of operation.

47 CFR 73.1943 requires licensees of broadcast stations to keep and permit public inspection of a complete record of all requests for broadcast time, together with an appropriate notation showing the disposition made by the licensee of such request.

47 CFR 73.3525 requires applicants for a construction permit for a broadcast station to obtain approval from the FCC to withdraw, dismiss or amend its application pursuant to a settlement agreement when that application is in conflict with another application pending before the FCC. This request for approval to withdraw, dismiss or amend an application should contain a copy of the agreement and an affidavit of each party to the agreement. In the event that the proposed withdrawal of a conflicting application would unduly impede achievement of a fair, efficient and equitable distribution of radio service, the FCC must issue an order providing further opportunity to apply for the facilities specified in the application(s) withdrawn.

47 CFR 73.3550 requests for call sign assignment for a LPFM station must be made using the Commission's electronic call sign system.

47 CFR 73.3598 allows an LPFM permittee unable to complete construction within the timeframe specified in the original construction permit may apply for an eighteen month extension upon a showing of good cause.

47 CFR 11.61(ii) states DBS providers, analog and digital class D non-commercial educational FM stations, and analog and digital LPTV stations are required to log the receipt of emergency alert system transmissions.

This submission contains revised FCC Form 318, Application for Construction Permit for a Low Power FM Broadcast Station and its accompanying instructions and worksheets.

The statutory authority for this collection of information is contained in Sections 154(i), 303, 308 and 325(a) of the Communications Act of 1934, as amended.

2. Agency Use of Information: The data is used by FCC staff to determine whether an applicant meets basic statutory and regulatory requirements to become a Commission licensee and to ensure that the public interest would be served by grant of the application. In addition, the information contained within this information collection ensures that (1) the integrity of the FM spectrum is not compromised, (2) unacceptable interference will not be caused to existing radio services, (3) statutory requirements are met, and (4) the stations operate in the public interest.

3. Consideration Given to Information Technology: The Commission has developed an electronic filing system for FCC Form 318 applications based on the data and other information contained in this form. The specific details concerning the method for electronically filing these applications were announced in a Commission public notice. Applicants had the choice of filing electronically or using paper copies during the initial windows. Electronic filing is now mandatory.

In addition, this information collection contains notification and recordkeeping requirements. The use of information technology is not feasible in these situations.

4. Effort to Identify Duplication and Use Similar Information: This agency does not impose a similar collection on the respondents. There is no similar data available.

5. Effort to Reduce Small Business Burden: This information collection will not have a significant economic impact on a substantial number of small entities/businesses.

6. Less Frequent Data Collection: The frequency for filing the FCC Form 318 applications for new stations and for major changes in existing stations will be limited to the Commission opening filing windows. For the filing of minor changes to existing facilities, the frequency of filing is determined by the respondents. However, no new or modified LPFM facility construction permits can be obtained without using FCC Form 318. If this information is not collected, the Commission cannot authorize new LPFM station construction permits.

With regard to the recordkeeping and notification requirements, the frequency for these collections of information is determined by respondents, as necessary.

7. Information Collection Circumstances: This collection of information is consistent with the guidelines in 5 CFR 1320.5(d)(2).

8. Consultations with Persons Outside the FCC: The Commission published a Federal Register Notice seeking public comment on the information collection requirements contained in this supporting statement (76 FR 3630) on January 20, 2011. No comments were received from the public.

9. Payment or Gift: No payment or gift was provided to respondents.

10. Confidentiality of Information: There is no need for confidentiality with this information collection.

11. Justification for Sensitive Questions: This collection of information does not address any private matters of a sensitive nature.

12. Estimate of Burden and Burden Hour Cost: We assume that the respondents will complete FCC Form 318 themselves. The respondents have an average salary of $100,000/year ($48.08/hour). Also, the respondents would use a station engineer to complete the portions of this information collection pertaining to rules included in this collection. The station engineers would have an average salary of $100,000/year ($48.08/hour). The annual burden to the respondent is as follows:

Total

Hourly Annual

Applications or Number of Respondent’s Total Annual In-House In-House

Rule Sections Responses Burden Burden Hours Cost Cost

NEW LPFM

Applications 1,800⁸ 1.5 hours 2,700 hours $48.08 $129,816.00

LPFM Applications

w/ minor changes 80⁹ 0.75 hours 60 hours $48.08 $2,884.80

LPFM Applications

technically accept. 13 4 hours 52 hours $48.08 $2,500.16

LPFM Applications

w. major amendments 640 6 hours 3,840 hours $48.08 $184,627.20

waiver requests 50¹⁰ 1 50 hours $48.08 $2,404.00

73.809(b) 10 hours 2 hours 20 hours $48.08 $961.60

73.809(c) 30 0.5 hours 15 hours $48.08 $721.20

73.809(e) 3 1 hour 3 hours $48.08 $144.24

73.865 50 4 hours 200 hours $48.08 $9,616.00

73.870(d) 15 2 hours 30 hours $48.08 $1,442.40

73.872(c) 200 2 hours 400 hours $48.08 $19,232.00

73.872(d)(1) 120 1 hour 120 hours $48.08 $5,769.60

73.872(d)(2) 10 1 hour 10 hours $48.08 $480.80

73.877 1,200 12 hours 14,400 hours $48.08 $692,352.00

73.878 10 1 hour 10 hours $48.08 $480.80

11.61 1,200 0.5 hrs/mon. 7,200 hours¹¹ $48.08 $346,176.00

73.318 25 2 hours 50 hours $48.08 $2,404.00

73.1030 10 0.5 hours 5 hours $48.08 $240.40

73.1207 50 0.5 hours 25 hours $48.08 $1,202.00

50 2 hours 100 hours $48.08 $4,808.00

73.1212 12,000¹² 0.1 hours 1,200 hours $48.08 $57,696.00

1,200¹³ 0.0025 hours 3 hours $48.08 $144.60

73.1230 1,200 0.085 hours 102 hours $48.08 $4,904.16

73.1300 20 1 hour 20 hours $48.08 $961.60

73.1350 1 0.5 hours 0.50 hours $48.08 $24.04

73.1610 10 0.5 hours 5 hours $48.08 $240.40

73.1620 1,200 0.5 hours 600 hours $48.08 $28,848.00

73.1750 50 0.5 hours 25 hours $48.08 $1,202.00

73.1943 200 0.25 hours 50 hours $48.08 $2,404.00

73.3525 500 4 hours 2,000 hours $48.08 $96,160.00

73.3550 1,200 0.75 hours 900 hours $48.08 $43,272.00

73.3598 200 1 hour 200 hours $48.08 $9,616.00

Unattended operation

Letters 30 0.5 hours 15 hours $48.08 $721.20

TOTALS: 23,377 34,396 $1,654,457.10

(responses) hours

Total Number of Annual Respondents: 16,659 respondents (w/multiple responses)

Total Number of Annual Responses: 23,377 (responses)

Total Annual Burden Hours: 34,396 Hours

Total Annual “In-House” Cost: $1,654,457.10

These estimates are based on FCC staff's knowledge and familiarity with the availability of the data required.

13. Annual Cost Burden:

We assume that the respondent would use a consulting engineer ($250/hour) to complete some of the information collections. The rule sections involved include the following:

Section 73.318 25 responses x 4 hours x $250/hour = $25,000

Section 73.809¹⁴ 10 responses x 4 hours x $250/hour = $10,000

3 responses x 3 hours x $250/hour = $ 2,250

Section 73.1030 10 responses x 1 hour x $250/hour = $ 2,500

Total Annual Cost Burden: $39,750

14. Cost to the Federal Government. The Commission will use legal and engineering staff at the GS-14 level, step 5 ($57.14/hour), paraprofessional staff at the GS-11 level, step 5 ($33.92/hour) and clerical staff at the GS-5 level, step 5 ($18.50/hour) to process these applications, FCC Form 318. The Commission will use staff at the GS-11 step 5 ($33.92/hour) to process documents/notices received as a result of the rule sections involved with this information collection. The average processing time for these documents is 2 hours per document received.

0.083 hours data processing x 2,583 applications x $18.50/hour = $ 3,966.19

0.5 hours clerical x 2,583 applications x $18.50/hour = $ 23,892.75

1.5 hours legal x 2,583 applications x $57.14/hour = $221,388.93

1.5 hours engineer x 2,583 applications x $57.14/hour = $221,388.93

0.5 hour paraprofessional x 2,583 applications x $33.92/hour = $ 43,807.68

2 hours paraprofessional x 3,398 documents/notices x $33.92/hour = $ 230,520.32

Total Cost to the Federal Government: $7,444,964.74

15. There are no program changes to this collection. There are adjustments of +$15,900 to the annual cost burden. These adjustments are due to increases in consulting fees.

16. Plans for Publication: The data will not be published.

17. Display of OMB Approval Date: An extension of the waiver not to publish the expiration date on the form is requested. This will obviate the need for the Commission to update electronic forms upon the expiration of the clearance. OMB approval of the expiration date of the information collection will be displayed at 47 C.F.R. Section 0.408.

18. The Commission published a Federal Register Notice seeking public comment on the information collection requirements contained in this supporting statement (76 FR 3630) on January 20, 2011. In the notice the annual cost burden was stated as “$23,850.” The Commission corrects this number to read “$39,750.” There are no other exceptions to the Certification Statement.

B. Collections of information employing statistical methods.

No statistical methods are employed.

1 Pursuant to 47 CFR 73.853(b).

2 The Commission authorizes the licensing of two classes of Low Power FM (LPFM) radio stations: a Low Power (LP) 100 Class which is used for stations operating at 50-100 watts effective radiated power ^? (ERP) at an antenna height above average terrain (HAAT) of 30 meters; and a Low Power (LP) 10 Class which is used for stations operating at 1-10 watts ERP and an antenna height of 30 meters HAAT. These stations are operated on a noncommercial educational basis by entities that do not hold attributable interests in any other broadcast station or other media subject to the Commission's ownership rules. The LPFM service provides very localized service to communities or underrepresented groups within communities. The Commission uses a window filing process for LPFM applications. The opening of a window filing period is announced by Public Notice.

3 Voluntary time-share applicants are LPFM applicants who have the same point total and enter into an agreement together to share use of the frequency by submitting a time-share proposal within 30 days of the release of a public notice announcing the tie.

4 Mutually exclusive applicants are identified by the FCC as applications that conflict with each other.

5 ^? For mutually exclusive applications, the FCC will give each applicant points to determine who should receive the license. The FCC will announce the list of mutually exclusive applicants, and their point totals, including tied applicants. Applicants can cooperate with each other to remove the conflicts in two ways. First, if all the mutually exclusive applicants agree, virtually any proposal to allocate the licenses can be submitted to the FCC. Second, any number of tied applicants can pool their points if they agree to a time-sharing proposal that grants at least 10 hours per week to each applicant. Applicants will have 30 days; measured from the day the FCC makes the announcement, to submit their written time-sharing agreement to the FCC. The FCC will put the announcement on its website. It may or may not give applicants individual notice.

6 The range or frequencies between 10 kilocycles per second to 300,000 megacycles per second in which radio waves can be transmitted. It can also refer to a frequency used for a specific radio station.

10 Time-sharing proposals are written time-sharing agreements that grants at least 10 hours per week of broadcasting time to each applicant.

7 Report and Order, 15 FCC Rcd at 2251.

8 The increase in the number of filings is pursuant to 47 CFR 73.853(b).

9 Sections 73.870 and 73.871 are included in these filings which account for the increase in the total number of filings.

10 These new waiver filings are pursuant to 47 CFR 87.807 and 47 CFR 87.809.

11 This burden was calculated as follows: 1,200 responses x 0.5 hrs./month x 12 months = 7,200 hours.

12 The total number of responses was calculated as follows: 1,200 responses x 10 broadcast/station = 12,000 responses.

13 The total number of responses was calculated as follows: 1,200 responses x 1 broadcast/station = 1,200 responses.

14 Section 73.809A(c) does not have cost attached to it.

13