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Proposed Rule

Digital Audio Broadcasting Systems and Their Impact on the Terrestrial Radio Broadcast Service

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Start Preamble

AGENCY:

Federal Communications Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

In this document, the Commission seeks comment on policies it may adopt to encourage broadcasters to convert from an analog-only radio service to a hybrid analog/digital radio service, and eventually, to an all-digital radio service. The Commission seeks comment on what changes and amendments to its technical rules are necessary to further the introduction of digital audio broadcasting (“DAB”). The Commission seeks specific comment on proposals to allow AM nighttime digital service. The Commission asks whether a radio station should be allowed to offer a high definition service, a multiplexed service, a datacasting service, or a combination of all of these possibilities. The Commission also seeks comment on which of its existing programming and operational rules should be applied to DAB.

DATES:

Comments due June 16, 2004; reply comments are due July 16, 2004.

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ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. For further filing information, see SUPPLEMENTARY INFORMATION.

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FOR FURTHER INFORMATION CONTACT:

Ben Golant, 202-418-7111 or Ben.Golant@fcc.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

This is a synopsis of the Further Notice of Proposed Rulemaking portion of the Commission's Further Notice of Proposed Rulemaking (“FNPRM”) and Notice of Inquiry, FCC 04-99, adopted April 15, 2004 and released April 20, 2004. The full text of the Commission's FNPRM is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257) at its headquarters, 445 12th Street, SW., Washington, DC 20554, or may be purchased from the Commission's copy contractor, Qualex International, (202) 863-2893, Portals II, Room CY-B402, 445 12th St., SW., Washington, DC 20554, or may be reviewed via Internet at http://www.fcc.gov/​mb.

Synopsis of the Further Notice of Proposed Rulemaking

1. In the Digital Audio Broadcasting Report and Order (“DAB R&O”), 67 FR 78193-01 (Dec. 23, 2002) we selected in-band, on-channel (“IBOC”) as the technology enabling AM and FM radio broadcast stations to commence digital operations. We announced notification procedures that will allow operating AM and FM radio stations to begin digital transmissions immediately on an interim basis using the IBOC system developed by iBiquity Digital Corporation (“iBiquity”). We concluded that the adoption of a single IBOC transmission standard will facilitate the development of digital services for terrestrial broadcasters. We also stated that the dramatic improvement in digital audio quality would outweigh any limits on analog operations and those broadcasters concerned about the loss of bandwidth may nevertheless continue to operate in an analog-only mode. We, however, deferred consideration of final operational requirements and related broadcast licensing and service rule changes to a future date. In this Further Notice of Proposed Rule Making (“FNPRM”), we seek comment on what rule changes are necessary due to the advent of digital audio broadcasting (“DAB”). Through this proceeding, we seek to foster the development of a vibrant terrestrial digital radio service for the public and seek to ensure that radio broadcasters will successfully implement DAB.

2. iBiquity's IBOC DAB technology provides for enhanced sound fidelity, improved reception, and new data services. IBOC is a method of transmitting near-CD quality audio signals to radio receivers along with new data services such as station, song and artist identification, stock and news information, as well as local traffic and weather bulletins. This technology allows broadcasters to use their current radio spectrum to transmit AM and FM analog signals simultaneously with new higher quality digital signals. These digital signals eliminate the static, hiss, pops, and fades associated with the current analog radio system. IBOC was designed to bring the benefits of digital audio broadcasting to analog radio while preventing interference to the host analog station and stations on the same channel and adjacent channels. IBOC technology makes use of the existing AM and FM bands (In-Band) by adding digital carriers to a radio station's analog signal, allowing broadcasters to transmit digitally on their existing channel assignments (On-Channel). iBiquity IBOC technology will also allow for radios to be “backward and forward” compatible, allowing them to receive traditional analog broadcasts from stations that have yet to convert and digital broadcasts from stations that have converted. Current analog radios will continue to receive the analog portions of the broadcast.

3. The iBiquity IBOC systems evaluated by the DAB Subcommittee of the National Radio Systems Committee (“NRSC”) are “hybrids” in that they permit the transmission of both the analog and digital signals within the spectral emission mask of a single AM or FM channel. In the hybrid mode, the iBiquity system places digital information on frequencies immediately adjacent to the analog signal. The digital signals are transmitted using orthogonal frequency division multiplexing (“OFDM”). The FM IBOC system has an extended hybrid mode, with greater digital capacity than the hybrid mode. However, neither the extended hybrid FM system nor the all-digital systems have been tested by the NRSC.

4. The digital system uses perceptual coding to discard information that the human ear cannot hear. This reduces the amount of digital information, and therefore the frequency bandwidth, required to transmit a high-quality digital audio signal. In addition, the iBiquity hybrid system is designed to blend to FM analog when digital reception fails. This blending feature eliminates a digital “cliff effect,” that would otherwise result in the complete and abrupt loss of reception at locations where the digital signal fails.

5. In 1990, the Commission first considered the feasibility of terrestrial and satellite digital radio services. As to the former, the Commission concluded that the digital terrestrial systems then under consideration were undeveloped and that it was premature to engage in discussions regarding DAB standards, testing, licensing, and policy issues. In 1999, the Commission, recognizing that the appropriate technology had matured, commenced this proceeding to foster the further development of IBOC systems and develop a record regarding the issues raised by the introduction of DAB. In the DAB NPRM, the Commission, inter alia, proposed criteria for the evaluation of DAB models and systems and considered certain DAB system testing, evaluation, and standard selection issues.

6. Meanwhile, the DAB Subcommittee of the NRSC conducted extensive laboratory tests of several DAB systems. The report of the DAB subcommittee of the NRSC, released on December 3, 2001, evaluated comprehensive field and laboratory tests of the FM IBOC system. The NRSC FM report concluded “that the iBiquity FM IBOC system as tested by the NRSC should be authorized by the FCC as an enhancement to FM broadcasting in the U.S., charting the course for an efficient transition to digital broadcasting with minimal impact on existing analog FM reception and no new spectrum requirements.” The Commission sought comment on the NRSC FM report and its conclusions with respect to the Commission's stated DAB policy goals and selection criteria. Thereafter, on April 16, 2002, the NRSC filed its evaluation of iBiquity's AM hybrid system, on which the Commission sought comment in a subsequent public notice. The NRSC AM report concluded that iBiquity “has developed an attractive solution to improve AM listening based on the best of today's available technology.” NRSC recommended that iBiquity IBOC should be authorized as a daytime-only enhancement to AM broadcasting, pending further study of AM IBOC performance under nighttime propagation conditions. Based on the record developed in this proceeding at that time, iBiquity and others urged the Commission to permit broadcasters to initiate IBOC transmission on an interim basis prior to the adoption of new licensing rules and procedures.

7. In the DAB R&O, we selected the hybrid AM and FM IBOC systems tested by the NRSC as de facto standards for interim digital operation. As of the Start Printed Page 27876effective date of the DAB R&O, we stated we would no longer entertain any proposal for digital radio broadcasting other than IBOC. We stated that IBOC was the best way to advance our DAB policy goals. We found that this technology was supported in the broadcast industry and was the only approach that could be implemented in the near future. We also found that the iBiquity IBOC system was spectrum-efficient in that it can accommodate digital operations for all existing AM and FM radio stations with no additional allocation of spectrum. The NRSC tests, as explained in the DAB R&O, showed that both AM and FM IBOC systems offer enhanced audio fidelity and increased robustness to interference and other signal impairments. The tests also indicated that coverage for both systems would be at least comparable to analog coverage. We stated that audio fidelity and robustness will greatly improve when radio stations move to digital operations.

8. AM radio has presented certain challenges and concerns in this proceeding. In the DAB R&O, we held that AM stations must transmit IBOC signals during daytime hours only, pending a favorable evaluation of AM IBOC under nighttime propagation conditions. Moreover, AM stations implementing IBOC digital transmissions may not simultaneously transmit analog C-QUAM AM stereo. We stated that while we were concerned about the loss of the “legacy” AM analog service, each broadcaster had the voluntary option of implementing IBOC. We found that the technical limitations of the analog technology, including narrow bandwidth and susceptibility to manmade and natural noise, continued to undermine its viability. Additionally, we found that the record in this proceeding presented compelling evidence that AM IBOC had the potential to revitalize AM broadcasting and substantially enhance radio service for the listening public.

9. As of December 31, 2003, there were 11,011 commercial radio stations, as well as 2,552 FM educational radio stations in the United States. Of the commercial stations, 6,217 were FM stations and 4,794 were AM stations. There were also 3,834 FM translator and booster stations. As of March 2004, there were 3,285 owners of commercial radio stations across the nation. Also on that date, there were 56 radio station owners with 20 or more stations.

10. Currently, 108 million U.S. households, or 98% of all U.S. households, have a radio device. We estimate that there are, on average, 5 radios per household or about 500 million receivers. We also estimate that by the end of 2003, there were about 225 million motor vehicles on the road with radios. There are also millions of radios in use in other vehicles, such as commercial trucks and watercraft, as well as commercial establishments such as restaurants and hotels. All in all, we estimate that there are nearly 800 million radio sets in use in the United States.

11. Terrestrial radio broadcast service competes against new digital audio technologies offering consumers enhanced sound fidelity and other services, including satellite digital audio radio service. For example, Sirius Satellite Radio Inc. (“Sirius”) and XM Satellite Radio Holdings (“XM”) have built subscription radio services that provide national programming, delivering up to 100 channels of digital music, news, and entertainment directly from satellites to vehicles, homes, and portable radios in the United States. Each company holds one of the two licenses issued by the Commission to build, launch, and operate a national satellite radio system. Both companies launched their services in 2001. XM has about 1,680,000 subscribers and Sirius has over 260,000 subscribers.

12. As of October 1, 2003, over 280 radio stations encompassing more than 100 markets have licensed iBiquity's technology and have begun digital audio broadcasting or are in the process of converting. Cumulatively, these markets include over 145 million listeners or nearly two-thirds of the Arbitron-ranked, listening public. Within each of the six cities—New York, Los Angeles, Chicago, San Francisco, Miami and Seattle “ previously identified by iBiquity as launch markets for DAB, a minimum of ten stations and up to 18 stations have already licensed iBiquity's technology. Stations in 35 states as well as the District of Columbia and Puerto Rico have demonstrated their commitment to digital audio broadcasting as well. Radio manufacturers have slowly begun selling digital radio receivers directly to the public this year.

13. According to iBiquity, the estimated costs for a station to implement its hybrid IBOC system range from $30,000 to $200,000, with an average cost of $75,000. Conversion costs vary depending on the age and other characteristics of a station's transmitter plant and studio equipment. For example, most new broadcast transmitters are IBOC-compatible. In contrast, some stations may need to replace older transmitters, studio-transmitter links, or studio equipment in order to transmit IBOC. Radio broadcasters can implement IBOC using their existing towers, antennas, and transmission lines, making the technology inherently less costly than, for example, the digital television conversion. In addition, broadcasters may begin interim IBOC operations on a voluntary basis, deferring costs as they deem appropriate.

14. iBiquity submitted test results for both AM and FM all-digital modes. The all-digital tests were not performed under the auspices of the NRSC, unlike the tests on iBiquity's hybrid IBOC systems. iBiquity requested that the Commission endorse its all-digital systems as well as the hybrid systems. In the DAB R&O, we recognized that although a fully digital terrestrial radio service is the ultimate goal, it was premature to endorse systems that have not been subject to comprehensive and impartial testing. We also stated that the adoption of an all-digital standard requires the consideration of novel and complex technical and policy issues that arise only when the constraints of “designing around” the legacy analog transmission standard are eliminated, and we therefore deferred any action on these matters. We recognize that the standard setting bodies have much work to do on an all-digital radio system and we have no standard to evaluate or seek comment upon. Instead, we seek comment on the pace of the analog to hybrid radio conversion and the possibility of an all-digital terrestrial radio system in the future.

15. Congress codified December 31, 2006, as the analog television termination date, but also adopted certain exceptions to that deadline. There is no analogous Congressional mandate for the termination of analog radio broadcasting. We have not considered a date certain when radio stations should commence digital broadcast operations because radio stations are not using additional spectrum to provide digital service, as is the case with digital television, and band-clearing is not required by statute. Based on these factors, we see no immediate need to consider mandatory transition policies of the type contemplated with respect to DTV. However, we recognize the spectrum efficiencies and related new service opportunities inherent in the IBOC system. We also want to enable terrestrial radio broadcasters to better compete with satellite radio services now in operation. As such, we seek comment on what changes in our rules would likely encourage radio stations to convert to a hybrid or an all-digital format. Start Printed Page 27877

16. We ask whether the government, the marketplace, or both, should determine the speed of conversion from analog to hybrid, and eventually, to digital radio service, at this time. We understand that the interests of radio listeners are paramount and we do not want to disadvantage any member of the public by forcing the purchase of new radios. In many ways, the move to DAB is similar to the transition from black and white to color television in the 1950s and 1960s, where consumers could continue to receive local television signals even though they may not have had a color television to receive programming in color. In the color television transition, marketplace forces stimulated the introduction of color sets. As a result, television producers eventually ended program production in a black and white format. Here, we anticipate that the more DAB receivers sold, the more radio stations will have an incentive to convert to DAB, and the cycle will repeat itself until all consumers have DAB receivers. We intend to rely on the marketplace to the greatest extent feasible. However, if the marketplace falters, we seek comment on other means to advance the introduction of DAB. In this context, we ask whether we should conduct periodic reviews, in terms of DAB receivers on the market and the number of DAB stations on-the-air, to help us decide what is in the best interests of the public and the broadcasting industry. If so, how frequently should we initiate such reviews?

17. The DAB system provides broadcasters with new flexibility and new capabilities. For example, DAB allows a radio station to scale the digital portion of its hybrid FM broadcast from 96 kbps to lower rates in order to set aside capacity for other associated services. The FM system can be scaled from 96 kbps to 84 kbps or 64 kbps to obtain 12 to 32 kbps for other services. The system also allows broadcasters to use the “extended hybrid modes” whereby the digital sidebands are extended closer to the analog signal. This allows the broadcaster to obtain 12.5 to 50 kbps of capacity for other services. Broadcasters will be capable of providing through DAB not only a vastly improved high definition audio signal, but also multiple streams of digital audio programming. In addition, the system is capable of non-broadcast uses that are non-audio and/or subscription-based in nature. A flexible DAB service policy would likely increase the ability of broadcasters to compete in an increasingly competitive marketplace, and would allow them to serve the public with new and innovative services. Flexibility could also allow for a more rapid conversion to digital radio. While we tentatively find that a flexible service policy is in the public interest, we seek comment on the following issues before making a final determination.

18. High Definition Digital Audio Broadcasting. We seek comment on whether or not we should require broadcasters to provide a minimum amount of high definition audio and, if so, what minimum amount should be required. The public may be served by such a policy because radio stations would provide a free programming alternative to satellite radio and compact discs. We also seek comment on the amount of capacity necessary to allow radio stations to broadcast a high quality digital signal and permit the introduction of new datacasting and supplemental audio services. If we adopt a high definition service requirement, should we have separate rules for AM and FM stations?

19. Digital Audio Multicasting. The DAB system permits a radio station to broadcast multiple audio programming services within its assigned channel. National Public Radio in fact, is now testing such a broadcasting model under the auspices of its “Tomorrow Radio Project.” DAB makes it possible for hybrid and digital radio stations to air not only more music programming, but also public safety services (e.g., national security announcements), assisted living services (e.g., radio reading services), non-English language programming, and news services to underserved populations. We seek comment on how many audio streams a radio station can transmit using IBOC without causing interference or degrading audio quality. Will the availability of additional audio streams spur public demand for digital audio receivers? We seek comment on the ways broadcasters can use this technology to provide greater access to radio for all people. How can the availability of additional audio streams further our diversity goals, particularly for people with disabilities and minority or underserved segments of the community? We tentatively conclude that adopting DAB service rules that encourage more audio streams would promote program diversity, and that, once the Commission adopts a policy in this area, radio stations will no longer need to obtain experimental authority to broadcast multiplexed digital programming.

20. We seek comment on to what extent we should permit radio stations to lease unused or excess airtime to unaffiliated audio programmers. In this context, an unaffiliated entity would schedule the programming output of a particular digital audio stream for a period of time under a contract with the licensee. Radio stations may benefit from leasing unused or excess airtime because they would have additional funds to invest into new programming, which in turn, would benefit the public. We seek comment on whether our diversity goals will be furthered if we allow independent programmers to lease excess capacity from broadcast licensees? How should current regulations, such as our sponsorship identification rules, be applied in this situation? Should the licensee be responsible for ensuring the fulfillment of all regulatory obligations, as is the case for digital television stations? How does section 310(d) of the Act, regarding transfers of control, apply in this situation? Moreover, how would the Commission's broadcast ownership limits and attribution rules be affected if an unaffiliated programmer, that is also the licensee of another station in the same market, leases one of the additional audio streams? Should there be an overall limit to the amount of programming time a particular radio station can lease to others?

21. Section 73.277 of the Commission's rules pertains to the permissible transmissions of an FM licensee. Under our rules, an FM broadcast licensee or permittee cannot enter into any agreement to supply on its main channel background music or other subscription service (including storecasting) for reception in the place of business of any subscriber. We seek comment on how this rule should apply to digital audio multicasting. Specifically, should this rule be applied to any additional audio services that may be broadcast or should such additional audio channels be exempt from the rule?

22. Datacasting. All FM analog stations are authorized to transmit secondary services via an automatic subsidiary communications authorization (“SCA”) under § 73.295 of the Commission's rules. Subsidiary communication services are those transmitted on a subcarrier within the FM baseband signal, not including services that enhance the main program broadcast service or exclusively relate to station operations. Subsidiary communications include, but are not limited to, services such as functional music, specialized language programs, radio reading services, utility load management, market and financial data and news, paging and calling, traffic control signal switching, bilingual television audio, and point to point or Start Printed Page 27878multipoint messages. Some FM broadcasters currently provide emergency alert system notifications and paging functions.

23. Section 73.593 of the Commission's rules pertains to subsidiary communications services broadcast by noncommercial educational FM radio stations. Under our rules, the licensee of a noncommercial educational FM station is not required to use its subcarrier capacity, but if it chooses to do so, it is governed by the SCA rules for commercial FM stations regarding the types of permissible subcarrier uses and the manner in which subcarrier operations are conducted. A significant difference from the commercial FM SCA rules, however, is the requirement that the remunerative use of a noncommercial educational station's subcarrier capacity not be detrimental to the provision of existing or potential radio reading services for the blind or otherwise inconsistent with its public broadcasting responsibilities.

24. Section 73.127 of the Commission's rules is analogous to §§ 73.295 and 73.593 and discusses the use of multiplex transmissions by AM stations. Specifically, the licensee of an AM broadcast station may use its AM carrier to transmit signals not audible on ordinary consumer receivers for both broadcast and non-broadcast purposes. AM carrier services are of a secondary nature under the authority of the AM station authorization, and the authority to provide such communications services may not be retained or transferred in any manner separate from the station's authorization. The grant or renewal of an AM station permit or license is not furthered or promoted by proposed or past multiplexed transmission service. The licensee must establish that the broadcast operation is in the public interest wholly apart from the subsidiary communications services provided. For both AM and FM services, the licensee must retain control over all material transmitted in a broadcast mode via the station's facilities and has the right to reject any material that it deems inappropriate or undesirable.

25. iBiquity, in association with broadcasters and equipment manufacturers, has developed first generation IBOC data services. Using an established standard ID3 format, information services will provide listeners more information on the song, CD title, and artist. In addition, information and host profiles will complement audio commercials and talk radio formats. In the future, Synchronized Multimedia Integration Language (“SMIL”), a protocol used by iBiquity as the foundation for Advanced Application Services (“AAS”), will provide the foundation for the creation and delivery of innovative DAB services. Such advanced services will include commercial applications like: (1) Enhanced information services such as breaking news, sports, weather, and traffic alerts delivered to DAB receivers as a text and/or audio format; (2) listener controlled main audio services providing the ability to pause, store, fast-forward, index, and replay audio programming via an integrated program guide with simplified and standard user interface options; and (3) supplementary data delivery that will spur the introduction of in-vehicle telematics, navigation and rear-seat entertainment programming.

26. We seek comment on whether we should adopt a flexible policy permitting radio stations to produce and distribute any and all types of datacasting services. Alternatively, are there certain types of services that a radio station must provide, such as enhanced emergency alerts, before it is permitted to offer other data services? Are there certain services that should be prohibited? How should §§ 73.127, 73.295, and 73.593 of our rules be amended? How should our sponsorship identification rules apply? As for noncommercial radio stations, we seek comment on what SCA services would be inconsistent with the public broadcasting responsibilities of hybrid or all-digital noncommercial educational stations.

27. DAB interference with analog SCA services has been an issue in this proceeding. iBiquity performed field tests which showed that, in some circumstances, analog SCA receivers may receive significant new interference from IBOC stations operating on second-adjacent channels. Following the tests, NPR commissioned a study using average receiver performance to estimate the number of listeners potentially affected by additional interference from IBOC in the top 16 radio markets. The results show that, on average, additional interference from IBOC could affect 2.6 percent of eligible receivers within an FM station's service area. In the DAB R&O, we raised concerns about this level of interference and its potential impact on radio reading services. We now seek comment on measures to protect established SCA services from interference.

28. Subscription Services. Radio stations may wish to offer certain digital audio or data content under a subscription model. In this context, subscription services may be available for a fee or the listener may simply need a code to access the service. We seek comment on whether to permit such a use of the broadcast spectrum. Should we allow for subscription services as long as the licensee provides at least one free digital audio stream, as we do for digital television? One proposal would be to permit subscription services as long as they do not derogate the free services a radio station broadcasts. Section 336 of the Act requires the Commission to collect fees from digital television stations if they use their spectrum to offer subscription ancillary and supplementary services. However, there is no analogous requirement for digital audio broadcasting. We seek comment on whether we should impose spectrum fees for that portion of the spectrum used by broadcasters to provide subscription services. Does the Commission have the authority to impose such fees? Under what provisions? What interest would such a fee serve? What factors should the Commission consider in setting the fee level?

29. Equipment issues. According to iBiquity, its systems provide extensibility in that the first generation receivers are designed to operate both in the interim hybrid and in all-digital modes. In the DAB R&O, we stated that this is an area in which definitive evaluations can only be undertaken after we resolve a number of all-digital issues, such as issues relating to signal architecture. Recognizing the flexibility of the IBOC model, and the possibility of new auxiliary services, we stated that we will address receiver issues in more detail when a formal standard is considered. We seek comment on whether the issues raised, and the policies proposed, in this FNPRM require us to address receiver issues at this stage of DAB development. For example, how would the adoption of a high definition audio requirement affect receiver manufacturers? Would current receiver specifications need to be changed if we permit multicasting or subscription services?

30. It is incumbent upon the Commission to ensure that broadcasters serve the “public interest, convenience and necessity.” Broadcasters are required to air programming responsive to community needs and interests and have other service obligations. We remain committed to enforcing our statutory mandate to ensure that broadcasters serve the public interest. Our current public interest rules, including those implementing specific statutory requirements, were developed for broadcasters essentially limited by technology to a single, analog audio programming service and minor Start Printed Page 27879ancillary services. The potential for more flexible and dynamic use of the radio spectrum, as a result of IBOC, gives rise to important questions about the nature of public interest obligations in digital broadcasting.

31. As stated above, our future rules may allow broadcasters to use their radio frequencies to provide a high definition audio service, multiple standard definition audio services and perhaps other services, some of which may be on a subscription basis. Digital broadcast licensees have public interest obligations. We seek comment on how to apply such obligations to DAB. For example, if a broadcaster chooses to provide multiple digital audio streams, how should public interest obligations apply? We also seek comment on how certain public interest obligations may be applied to subscription-based DAB services.

32. Community Needs. One of a broadcaster's fundamental public interest obligations is to air programming responsive to the needs and interests of its community of license. Another well recognized obligation is for a broadcast licensee to respond to the public's need for emergency information. Digital technology may allow a broadcaster to better fulfill these obligations. We seek comment on ways that a broadcaster can implement digital technology to better and more fully meet the needs of its community of license. How does the ability to multicast affect a broadcaster's ability to fulfill these public interest obligations?

33. Local Programming. Localism has been a core requirement of broadcast licensees since the inception of the Act 70 years ago. We seek comment on how digital technology can be used to promote localism in the terrestrial radio service. For example, we seek comment on whether to impose a minimum local origination requirement on digital radio transmissions. If a radio station multiplexes its signal, should each audio stream have a local component? If so, how much? Should that local component include some news or other public affairs programming? In the alternative, should we allow a radio station to carry national programming on one or more of its streams if it devotes one of its streams to local programming?

34. We seek comment on how DAB, and future digital audio services, mesh with current statutory requirements, obligations, and prohibitions. We ask whether the change to digital audio broadcasting justifies changes in the Commission's rules and regulations that implement the following provisions and regulations. We also seek comment on any other specific statutory provisions or regulations, not listed below, that may be affected.

35. Political Broadcasting. Sections 312 and 315 of the Act contain the political advertising rules for broadcast stations. Section 312(a)(7) of the Act, as amended, requires broadcasters to allow legally qualified candidates for federal office reasonable access to their facilities. Section 315(a) of the Act, as amended, provides candidates with equal opportunities for broadcast time. We seek comment on how each of these political broadcasting rules should be applied in the DAB context. We also seek comment more generally on whether DAB can enhance political discourse and candidate access to radio in other ways.

36. Emergency Alert System. Section 73.1250 of the Commission's rules addresses the broadcasting of emergency information. Under our rules, and if requested by government officials, a station may, at its discretion, and without further FCC authority, transmit emergency point-to-point messages for the purpose of requesting or dispatching aid and assisting in rescue operations. If the Emergency Alert System (“EAS”) is activated for a national emergency while a local area or state emergency operation is in progress, the national level EAS operation must take precedence. AM stations may, without further FCC authority, use their full daytime facilities during nighttime hours to broadcast emergency information when necessary to the safety of life and property, in dangerous conditions of a general nature, and when adequate advance warning cannot be given with the facilities authorized. All emergency alerts must be conducted on a noncommercial basis, but recorded music may be used to the extent necessary to provide program continuity. We tentatively conclude that it is in the public interest to apply the rules provided in § 73.1250 to all audio streams broadcast by a radio station. The purpose of the rule is to fully inform the public of major emergencies and this mandate can only be fulfilled if it is broadly applied.

37. We realize that by requiring AM and FM radio broadcast stations to comply with § 73.1250 of our rules for all audio streams (both analog and DAB), such stations may have to update and/or replace their EAS decoders to accommodate the digital portion of the stream. Nevertheless, we believe that access to emergency information is critical. We seek comment on the costs and timing involved in such compliance. Comments should specifically address the costs to the broadcasters relevant to ensuring that the DAB portion of the audio stream is compliant with § 73.1250 simultaneous with a station's rollout of DAB. Comments should also address the costs to equipment vendors relevant to ensuring that all product development and related certification by the FCC would be complete in time to allow broadcasters to roll out DAB that is compliant with our emergency alert rules.

38. Station Identification. Under § 73.1201 of the Commission's rules, broadcast station identification announcements must be made at the beginning and end of each time of operation, and as close to the hour as feasible, at a natural break in program offerings. Official station identification consists of the station's call letters immediately followed by the community or communities specified in its license as the station's location. The name of the licensee or the station's frequency or channel number, or both, as stated on the station's license may be inserted between the call letters and station location. We seek comment on whether the station identification rules would apply to all digital audio content of a radio station. How should a station identify audio channels other than the main channel? Should there be separate call letters for separate streams? There are special rules for simultaneous AM (535-1605 kHz) and (1605-1705 kHz) broadcasts. If the same licensee operates an AM broadcast station in the 535-1605 kHz band and an AM broadcast station in the 1605-1705 kHz band with both stations licensed to the same community and simultaneously broadcasts the same programs over the facilities of both such stations, station identification announcements may be made jointly for both stations for periods of such simultaneous operations. We seek comment on how any proposed rule should differ, if at all, for AM radio stations.

39. There are a host of other programming and operational rules that are relevant here. These include: (1) §§ 73.132 and 73.232—territorial exclusivity for AM and FM stations; (2) § 76.1208—broadcast of taped or recorded material; (3) § 73.1740—minimum hours of operation; (4) § 76.1212—sponsorship identification; (5) § 76.4180—payment disclosure; (6) § 73.4055—cigarette advertising; and (7) § 508 of the Act—prohibited contest practices. We tentatively conclude that the conversion to DAB will not require changes to the content of these regulations. However, we seek comment on how the rules should be applied to Start Printed Page 27880multicast services and whether the requirements apply to subscription services.

40. AM Definitions. Section 73.14 of the Commission's rules contains the AM broadcast definitions. For example, the definition of AM broadcast channel is “the band of frequencies occupied by the carrier and the upper and lower sidebands of an AM broadcast signal with the carrier frequency at the center. Channels are designated by their assigned carrier frequencies. The 117 carrier frequencies assigned to AM broadcast stations begin at 540 kHz and progress in 10 kHz steps to 1700 kHz.” Numerous references are also made to amplitude modulation in § 73.14. We seek comment on what changes in this section are necessary to accommodate the introduction of digital AM service.

41. AM Nighttime Operations. Two characteristics of the AM service have posed challenges to the development of AM IBOC. First, the nominal audio bandwidth of AM radio is insufficient to pass a full-fidelity monaural audio signal. Second, AM propagation characteristics vary drastically between day and night, resulting in two completely different allocation schemes (and, consequently, different daytime and nighttime facilities for most AM stations). During daytime hours, AM signals propagate principally via currents conducted through the earth, called groundwave propagation. Useful groundwave signals have a range of only about 200 miles for the most powerful AM stations, and less than 50 miles for many stations. After sunset, changes in the upper atmosphere cause the reflection of AM signals back to earth, resulting in the transmission of skywave signals over paths that may extend thousands of miles. Nighttime skywave propagation results in a much greater potential for inter-station interference. With the exception of powerful clear channel stations and relatively low-power local stations, many AM stations are required to cease operation at sunset. Most of those that remain on the air at night must reduce power or use directional antenna systems, or both.

42. In the DAB R&O, we noted NRSC's finding that “[t]he design of the AM IBOC system is such that its addition to an AM broadcast signal will cause a reduction in the host analog signal-to-noise performance [i.e., an increase in background noise, perceived as degradation in audio quality] at the receiver.” The NRSC stated that if the passband of the receiver extends beyond 5 kHz, the receiver will detect the secondary digital carriers, which extend from approximately 5 kHz to 10 kHz above and below the AM carrier frequency. The test results indicated, however, that audio quality should not be degraded sufficiently to impact listening. With regard to the effect on other stations, the NRSC concluded that introduction of hybrid AM IBOC should not cause additional co-channel interference. Because the IBOC digital signal shares spectrum with the analog signal of a first adjacent AM station, however, the NRSC concluded that first adjacent channel compatibility is a significant issue for AM IBOC. We found that the hybrid AM IBOC system proposed by iBiquity had the potential to provide the benefits of digital broadcasting within the framework of the existing AM allocation scheme. We nevertheless agreed with NRSC that significant uncertainty remains with respect to the potential for first adjacent channel interference under nighttime skywave propagation conditions. We therefore deferred authorizing nighttime use of AM IBOC until further testing has been completed.

43. NAB, through its Radio Board, recently submitted recommendations to the Commission concerning nighttime operation of AM IBOC. NAB suggests several steps the Commission should take regarding AM digital service: (1) The current interim authorization for IBOC service should be extended to allow AM IBOC nighttime broadcasts; (2) nighttime authorization should extend to all AM stations currently authorized for nighttime broadcasts; (3) nighttime authorization should be established on a blanket basis for all digital AM stations rather than requiring broadcasters to seek a separate nighttime authorization; and (4) the Commission should address instances of unexpected levels of interference on a case-by-case basis. NAB also suggested that, in the event that there are reductions in stations' primary nighttime analog service areas, the Commission should take steps to address those problems. NAB states that its suggested measures will allow AM stations to “better understand the opportunities and challenges of IBOC” and will provide incentives for receiver manufacturers to market IBOC equipment. The staff has issued a Public Notice seeking comment on NAB's recommendations and proposing that AM stations who wish to implement nighttime IBOC service immediately do so under the Commission's STA procedures. We request comment here on expansion of interim IBOC procedures to allow all AM stations to implement IBOC service at night without prior authority, as NAB proposes. How else can we help facilitate improvement in the IBOC standard so that AM digital radio service can be received throughout the day and night?

44. Interference. In the interest of striking a balance between interference concerns and the strong interest of maximizing coverage, we adopted in the DAB R&O, a three-pronged approach to the issue of primary sideband power levels for AM. This approach was designed to provide a streamlined process to safeguard current reception of analog signals. First, we authorized AM stations to commence operation with the hybrid AM IBOC system tested by the NRSC, in accordance with the special temporary authorization and notification procedures specified in the DAB R&O. Second, when interference problems are anticipated prior to commencement of interim IBOC operations, or when actual interference occurs, we permit licensees to adjust the power level of the primary digital subcarriers downward by as much as 6 dB. Licensees are required to notify the Commission of any such power adjustments. Third, in cases in which the hybrid AM IBOC operation of one station results in complaints of actual interference within another station's protected service contour and the respective licensees are unable to reach agreement on a voluntary power reduction, we may order power reductions for the primary digital carriers or, in extreme cases, termination of interim IBOC operation. In such cases, an affected station may file an interference complaint with the Commission. This complaint must describe any test measures used to identify IBOC-related interference and fully document the extent of such interference. The Media Bureau is charged with resolving each complaint within ninety days. In the event the Bureau fails to issue a decision within ninety days of the date on which a complaint is filed, we held that the interfering station shall reduce immediately its primary digital subcarrier power level by 6 dB. We seek comment on whether this complaint process is working, and, if so, whether we should make the process permanent when final IBOC standards are adopted. Are there any related instances where the Commission may delegate authority to the Media Bureau to resolve matters in an expeditious manner?

45. AM Stereo. Section 73.128 of the Commission's rules sets forth the parameters for AM stereophonic broadcasting. Under this rule, an AM broadcast station may, without specific authority from the Commission, transmit stereophonic programs upon Start Printed Page 27881installation of type-accepted stereophonic transmitting equipment and the necessary measuring equipment to determine that the stereophonic transmissions conform to specific modulation characteristics. The Commission's existing rules favor stations providing AM stereo. For example, stations in the expanded AM band are required to adopt stereo broadcasts for various reasons. Because the DAB system is not designed to work with AM stereo broadcasts, stations converting to digital must discontinue stereo for their analog broadcasts. We seek comment on what rule changes are necessary in this context.

46. FM Definitions. Section 73.310 of the Commission's rules contains the technical definitions specific to the FM service. For example, an FM broadcast channel is defined as a band of frequencies 200 kHz wide and designated by its center frequency. Channels for FM broadcast stations begin at 88.1 MHz and continue in successive steps of 200 kHz to and including 107.9 MHz. We seek comment on which definitions, including the definition of FM broadcast channel, need to be changed or modified because of the introduction of DAB.

47. FM Operating Power. Section 73.211 of the Commission's rules addresses power and antenna height requirements for FM stations. Generally, analog FM stations must operate with a minimum effective radiated power (“ERP”) as follows: (1) The minimum ERP for Class A stations is 0.1 kW; (2) the ERP for Class B1 stations must exceed 6 kW; (3) the ERP for Class B stations must exceed 25 kW; (4) the ERP for Class C3 stations must exceed 6 kW; (5) the ERP for Class C2 stations must exceed 25 kW; (6) the ERP for Class C1 stations must exceed 50 kW; and (7) the minimum ERP for Class C and C0 stations is 100 kW. Class C0 stations must have an antenna height above average terrain (“HAAT”) of at least 300 meters (984 feet). Class C stations must have an antenna height above average terrain of at least 451 meters (1480 feet). Stations of any class except Class A may have an ERP less than that specified in § 73.211, provided that the reference distance exceeds the distance to the class contour for the next lower class. Class A stations may have an ERP less than 100 watts provided that the reference distance equals or exceeds 6 kilometers.

48. Outside of their assigned channels, the emissions of analog FM radio signals must be attenuated below the level of the unmodulated carrier frequency: (1) By at least 25 dB at any frequency removed from the center frequency by 120 kHz up to 240 kHz; (2) by at least 35 dB at any frequency removed from the center frequency by 240 kHz up to and including 600 kHz; and (3) by at least 43 dB + 10 log (power, in watts) dB on any frequency removed by more than 600 kHz from the center frequency. This emission mask ensures that FM broadcast emissions are reasonably confined within the 200 kHz channel width. The digital component of the FM IBOC system operates 20 dB below the level of the analog carrier. When there is no analog carrier (i.e., all digital operations), it is not possible to set the digital power relative to the analog power level. Rather than specifying digital as 20 dB below analog, it may be preferable to set an absolute level for digital carriers that could be calculated without reference to analog. We seek comment on the appropriate means to measure and calculate power levels. We also seek comment on the appropriate measurement instruments for this exercise. How should any new rule take into account combiner and filter loss?

49. Radio stations with antennas at high elevations operate at relatively low power. Because the IBOC signal is transmitted at a fraction of analog power (1% in the FM case), the digital signals can be extremely low power in certain cases. In some cases, these digital signals may fall below the noise floor and become unlistenable. We seek comment on how to address this matter. Specifically, should the Commission establish a minimum digital power level, even if that would exceed 20 dB below the analog signal? Commenters should submit evidence to substantiate recommended power levels.

50. TV Channel 6. Section 73.525 of the Commission's rules addresses interference protection for TV Channel 6. An affected TV Channel 6 station is a TV broadcast station authorized to operate on Channel 6 that is located within certain distances of a noncommercial educational FM station operating on Channels 201-220. We seek comment on what, if any, rule changes are necessary to protect TV Channel 6 from interference caused by digital radio operations. We also ask whether new rules need to be developed to protect television station licensees that have converted to digital operations and are assigned to Channel 6 under our DTV Table of Allotments.

51. Antennas. The initial grant of interim IBOC authority restricted stations to use of facilities similar to those evaluated by the NRSC. As a result, stations were restricted to transmission systems that combine the digital and analog signals into one antenna. When a single antenna is used for IBOC, the analog and digital FM signals may be combined after amplification (high-level combining), a method which results in substantial power losses for the digital signal. Stations with lower effective radiated power may combine the analog and digital signals before amplification (low-level combining), in which case the transmitter efficiency is reduced. Many broadcasters have expressed interest in using separate antennas for the analog and digital signals. Consequently, the NAB convened an ad hoc technical group to determine whether broadcasters could use this approach without causing interference to the host station's analog signal or to other FM stations. Based on the completed field tests, the NAB report proposed that the Commission permit FM stations implementing IBOC operations to use separate antennas for digital transmissions provided that certain criteria are met. On December 9, 2003, the Media Bureau released a Public Notice seeking comments on the test results, conclusions, and recommendations in the report of the NAB ad hoc technical committee. The Media Bureau authorized the use of a dual antenna system under certain conditions earlier this year. While this issue has previously been addressed by the staff, we seek further comment on this matter and ask what other policies we may adopt that would provide broadcasters with the flexibility to make changes in their antenna configurations. For example, should we grant delegated authority to the Media Bureau to approve certain types of antenna modifications? Should we adopt a presumptive approach to antenna modifications by which a station can make any changes as long as it clears the change with adjacent stations?

52. Predicted Coverage. Section 73.313 of the Commission's rules concerns FM predicted coverage. With the analog FM system, all predictions of coverage are made without regard to interference and only on the basis of estimated field strengths. We seek comment on whether this rule needs to be modified to encompass the different nature of digital audio transmissions. If so, what should the rule require?

53. FM Booster and Translator Stations. FM booster and FM translator stations provide important service to many mountainous and rural areas of the country, where few other radio signals are available. By their nature, the translator and booster services present unique challenges for IBOC operation. An FM translator station receives a signal from its primary FM station and Start Printed Page 27882converts the signal for re-broadcasting on a different FM frequency. An FM booster station relays the primary station's programming on the same FM frequency. The implementation of IBOC should not affect the ability of translator and booster stations to continue the analog service they now provide. The record in this proceeding does not yet clearly establish, however, whether booster and translator stations will be able to relay the digital portion of IBOC signals. Tests performed by iBiquity indicate that an FM booster station will be able to relay the primary station's hybrid IBOC signal provided the booster is within 14 miles of the primary station. We received no test results or comments regarding use of IBOC by FM translator stations. Although some translator stations may be able to retransmit the digital component of an IBOC signal, we expect that many translator stations will need equipment modifications to do so. For these reasons, we solicit comment on issues relating to FM translator and booster stations. For example, should our rules facilitate the establishment of additional digital boosters to fill in areas with poor analog coverage? Will stations converting their main signal be required to simultaneously convert their boosters and/or translators?

54. Section 74.1231(b) currently restricts commercial FM translators not providing “fill-in” service from using alternate means of signal delivery; that is, such translators must rely on direct, over-the-air reception of the primary FM station. However, this may not be feasible for IBOC transmission. We seek comment on whether this rule should be modified for IBOC operation. How will this affect broadcast localism? If translators are allowed to use alternate delivery means, should there be some geographic or other limits to the delivery of the digital signal to the translator?

55. Standards. In the DAB R&O, we stated that the adoption of a standard will facilitate the rollout of digital audio broadcasting. We further stated that the Commission's support of a standard-setting process was designed to provide regulatory clarity and to compress the timeframe for finalizing the rules and policies that will affect the ultimate success of DAB. We solicited the assistance of a broad cross-section of interested parties in developing a formal AM and FM IBOC standard through a public and open standard-setting process. We stated that we were encouraged by the action of the NRSC to form an IBOC standards development working group, formally initiating a process designed to establish AM and FM IBOC standards. We encourage this group to provide us with significant input at this stage of the proceeding and seek comment from other parties on any such submissions.

56. Patents. In earlier stages of this proceeding, many parties stated that adoption of iBiquity's IBOC system would require the use of certain patented technologies. They expressed concern that the Commission's endorsement of the iBiquity system will create an opportunity for these patent holders to impose excessive licensing fees on broadcasters and listeners who have no alternative source for the technology. In response, iBiquity agreed to abide by the guidelines common to open standards, which require that licenses be available to all parties on fair terms. iBiquity also stated that it would adhere to the Commission's patent policy. The Commission stated that its decision to permit interim operations during the pendency of this proceeding provided an opportunity to assess whether iBiquity and other patent holders were entering into licensing agreements under reasonable terms and conditions that are demonstrably free of unfair discrimination. The Commission stated that it would monitor this situation and seek additional comment as warranted. We seek comment on iBiquity's conduct during the interim period. We also seek comment on whether this matter needs to be further addressed now or whether we should wait until radio station conversion has progressed to a point at which digital receivers have substantially penetrated the market.

57. Certification. Section 2.907 of the Commission's rules concerns the certification of electronic equipment. Certification is an equipment authorization issued by the Commission, based on representations and test data submitted by the applicant. Certification attaches to all units subsequently marketed by the grantee which are identical to the sample tested except for permissive changes or other variations authorized by the Commission. We seek comment on what, if any, rules in part 2 of our regulations must be modified to allow manufacturers to obtain certification of digital exciters and digital-compatible transmitters. How should these rule changes be coordinated with other service rule changes possible in this proceeding?

58. Licensing. Under § 73.1695 of the Commission's rules, the Commission considers the question of whether a proposed change or modification of a transmission standard for a broadcast station would be in the public interest. Sections 73.3571 and 73.3573 of the Commission's rules discuss the processing of AM and FM broadcast station applications, respectively. We seek comment on what, if anything, the Commission should do to amend or replace these rules in the context of DAB.

59. Forms. Section 73.3500 of the Commission's rules lists the applications and report forms that must be filed by an actual or potential broadcast licensee in certain circumstances. We seek comment on which forms and applications must be modified because of DAB. The following forms may be at issue: (1) Form 301—Application for Authority To Construct or Make Changes in a Commercial Broadcast Station; (2) Form 302-AM—Application for AM Broadcast Station License; (3) Form 302-FM—Application for FM Broadcast Station License; (4) Form 313—Application for Authorization in the Auxiliary Broadcast Services; (5) Form 340—Application for Authority To Construct or Make Changes in a Noncommercial Educational Broadcast Station; (6) Form 349—Application for Authority To Construct or Make Changes in an FM Translator or FM Booster Station; and (7) Form 350—Application for an FM Translator or FM Booster Station License. We seek comment on any specific changes to these forms.

60. Noncommercial Radio. Noncommercial radio broadcasters face unique opportunities and challenges as they move to implement DAB. The Act defines a “noncommercial educational broadcast station” and “public broadcast station” as a television or radio broadcast station that is eligible under the Commission's rules to be licensed as “a noncommercial educational radio or television broadcast station which is owned and operated by a public agency or nonprofit private foundation, cooperation, or association” or “is owned and operated by a municipality and which transmits only noncommercial programs for educational purposes.” In 1981, Congress amended the Act to give public broadcasters more flexibility to generate funds for their operations. As amended, section 399B of the Act permits public stations to provide facilities and services in exchange for remuneration as long as those uses do not interfere with the stations' provision of public telecommunications services. Section 399B, however, does not permit public broadcast stations to make their facilities “available to any person for the broadcasting of any advertisement.” In addition, under § 73.621 of the Commission's rules, public television Start Printed Page 27883stations are required to furnish primarily an educational as well as a nonprofit and noncommercial broadcast service.

61. In 2001, the Commission concluded that noncommercial educational television licensees (“NCEs”) must use their entire digital television capacity primarily for nonprofit, noncommercial, educational broadcast services. In addition, the Commission held that the statutory prohibition against broadcasting of advertising on NCE television stations applies only to broadcast programming streams provided by NCE licensees, but does not apply to any ancillary or supplementary services presented on their excess DTV channels that do not constitute broadcasting. Like commercial DTV stations, NCE licensees must pay a fee of five percent of gross revenues generated by ancillary or supplementary services provided on their DTV service. In Office of Communication, Inc. of United Church of Christ v. F.C.C. (“UCC”), the U.S. Court of Appeals for the District of Columbia Circuit upheld our DTV NCE A&S Order, 67 FR 3622-01 (Jan. 25, 2002).

62. We seek comment on what, if any, special rules or considerations should apply to noncommercial radio stations in light of our DTV NCE A&S policy and the DC Circuit's UCC decision. Should we adopt the same approach for noncommercial radio stations as we adopted for NCE television licensees? Are there any differences between DTV and DAB that require special consideration in deciding this issue? Specifically, we ask whether a noncommercial radio station should be able to use excess digital audio spectrum capacity to generate revenue through the provision of supplementary services, such as fee-based services. Are there other ways of allowing a noncommercial radio station to exercise greater flexibility with its digital capacity? We also seek comment on how we can ensure noncommercial radio stations remain noncommercial in nature as the radio industry converts to DAB.

63. Low Power FM. In 2000, the Commission authorized the licensing of two new classes of FM radio stations, one operating at a maximum power of 100 watts and one operating at a maximum power of 10 watts. Both types of stations, known as low power FM stations (“LPFM”), were authorized in a manner that protects existing FM service. A 100 watt LPFM station can serve an area with a radius of approximately 3.5 miles. The Commission stated that LPFM stations would be operated on a noncommercial educational basis by entities that do not hold an attributable interest in any other broadcast station or other media subject to our ownership rules. The Commission established the new LPFM service to create new broadcasting opportunities for locally-based organizations to serve their communities.

64. In December 2000, Congress passed the Government of the District of Columbia Appropriations Act, FY 2001 (“DCAA”). That legislation required the Commission to prescribe third-adjacent channel spacing requirements for LPFM stations, and invalidate any existing licenses that did not comply with the new separation criteria. Congress instructed the Commission to conduct an experimental program to test whether LPFM stations would interfere with existing FM stations, if LPFM stations were not subject to third-adjacent channel spacing requirements. Congress also instructed that such tests determine whether LPFM will interfere with full power stations' digital audio broadcasting efforts. The DCAA directed the Commission to select an independent entity to conduct field tests and to “publish the results of the experimental program and field tests and afford an opportunity for the public to comment on such results.” The Commission selected the MITRE Corporation as the independent entity that would conduct the testing. On June 30, 2003, MITRE submitted its Final Report (“LPFM Report”) to the Commission. The Report describes the field measurement data collected and analyzes it with regard to the levels of harmful interference experienced. The LPFM Report also contains theoretical analysis, conclusions, and recommendations to the Commission. Pertinent to the discussion here, the Report found that LPFM will not interfere with DAB service provided by full power radio stations. On July 11, 2003, the Media Bureau issued a Public Notice seeking comment on the LPFM Report. On February 19, 2004, a Report to Congress on the LPFM interference testing program was issued in accordance with the DCAA. That Report reiterated the finding that third-adjacent channel LPFM stations will have little or no effect on terrestrial digital radio since third-adjacent channel LPFM interference to digital receivers is unlikely to occur beyond 130 meters from the LPFM transmitter. We do not seek further comment on the LPFM Report in this proceeding. Instead, we seek comment on the conversion of LPFM stations to digital operation, and the potential impact of such a conversion on other stations.

65. Ex Parte Rules. This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under § 1.1206(b) of the Commission's rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one-or two-sentence description of the views and arguments presented is generally required. Additional rules pertaining to oral and written presentations are set forth in § 1.1206(b).

66. Comments and Reply Comments. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties must file comments on or before June 16, 2004 and reply comments on or before July 16, 2004. Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Accessible formats (computer diskettes, large print, audio recording, and Braille) are available to persons with disabilities by contacting Brian Millin, of the Consumer & Governmental Affairs Bureau, at (202) 418-7426, TTY (202) 418-7365, or at brian.millin@fcc.gov.

67. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/​e-file/​ecfs.html. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

68. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service (although we continue to experience delays in receiving U.S. Start Printed Page 27884Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail, should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. For additional information on this proceeding, contact Ben Golant, ben.golant@fcc.gov, of the Media Bureau, Policy Division, (202) 418-7111.

69. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

70. As required by the RFA, an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the NPRM in MM Docket No. 99-325. The Commission sought written public comments on the proposals in the NPRM including comments on the IRFA. The Office of Advocacy, U.S. Small Business Administration (SBA) filed comments asserting that the Commission, in the IRFA, failed to adequately consider the potential impact of DAB on small businesses and did not discuss alternatives designed to minimize regulatory burdens on small entities. In the DAB R&O, the Commission promised to issue a FNPRM proposing final rules for digital audio broadcasting and stated it would consider the impact of any final rules on small entities in connection with that further proceeding. By the issuance of this FNPRM, we seek comment on the impact our suggested proposals would have on small business entities.

71. The Commission will send a copy of the FNPRM, including a copy of the Initial Regulatory Flexibility Act analysis, in a Report to Congress pursuant to the Congressional Review Act. In addition, a copy of the FNPRM will be sent to the Chief Counsel for Advocacy of the SBA, and will be published in the Federal Register.

72. This document is available in alternative formats (computer diskette, large print, audio record, and Braille). Persons with disabilities who need documents in these formats may contact Brian Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or via e-mail at bmillin@fcc.gov.

73. This FNPRM may lead to a Report and Order that would contain information collection(s) subject to the Paperwork Reduction Act of 1995 (“PRA”), Public Law 104-13. This FNPRM will be submitted to the Office of Management and Budget (“OMB”) for review under the PRA. OMB, the general public and other Federal agencies are invited to comment on the possible information collections, such as FCC form revisions, contained in this proceeding. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

74. Written comments on possible new and modified information collections must be submitted on or before 60 days after date of publication the Federal Register. In addition to filing comments with the Secretary, a copy of any Paperwork Reduction Act comments on the information collection(s) contained herein should be submitted to Leslie Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to Leslie Smith@fcc.gov, and to Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503 via the Internet to KristyL.LaLonde@omb.eop.gov or by fax to 202-395-5167. For additional information concerning the information collection(s) contained in this document, contact Leslie Smith at 202-418-0217, or via the Internet at Leslie.Smith@fcc.gov.

Initial Regulatory Flexibility Analysis

75. As required by the Regulatory Flexibility Act of 1980, as amended, the Commission has prepared this Initial Regulatory Flexibility Analysis of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM provided above. The Commission will send a copy of this entire FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). In addition, the FNPRM and the IRFA (or summaries thereof) will be published in the Federal Register.

76. Need For, and Objectives of, the Proposed Rules. This rulemaking proceeding is initiated to obtain comments concerning the Commission's proposals to foster the development and implementation of terrestrial digital audio broadcasting. In the FNPRM the Commission (1) reaffirms its commitment to providing radio broadcasters with the opportunity to take advantage of DAB technology; (2) identifies Commission public policy objectives resulting from the introduction of DAB service, such as more diverse programming serving local and community needs; (3) explores avenues for encouraging the adoption of DAB by providing radio stations with the ability to offer datacasting and subscription services; and (4) proposes technical service rules for DAB, such as the authority to commence AM nighttime service and permitting efficient equipment authorization.

77. Legal Basis. The authority for this proposed rulemaking is contained in Sections 1, 2, 4(i), 303, 307, 312(a)(7), 315, 317, 507, and 508 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 307, 312(a)(7), 315, 317, 508, and 509.

78. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. The RFA generally defines the term “small entity” as encompassing the terms “small business,” “small Start Printed Page 27885organization,” and “small governmental entity.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”).

79. Radio Stations. The proposed rules and policies potentially will apply to all AM and FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has no more than $6 million in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. However, radio stations which are separate establishments and are primarily engaged in producing radio program material are classified under another SIC number. As of December 31, 2003, official Commission records indicate that 11,011 commercial radio stations were operating, of which 4,794 were AM stations. Thus, the proposed rules will affect over 11,000 radio stations.

80. Electronics Equipment Manufacturers. Rules adopted in this proceeding could apply to manufacturers of DAB receiving equipment and other types of consumer electronics equipment. The SBA has developed definitions of small entity for manufacturers of audio and video equipment as well as radio and television broadcasting and wireless communications equipment. The former category includes companies employing 750 or fewer employees, the latter category includes companies employing 1000 or fewer employees. The Commission has not developed a definition of small entities applicable to manufacturers of electronic equipment used by consumers, as compared to industrial use by television licensees and related businesses. Therefore, we will use the SBA definitions applicable to manufacturers of audio and visual equipment and radio and television broadcasting and wireless communications equipment, since these are the two closest NAICS Codes applicable to the consumer electronics equipment manufacturing industry. However, these NAICS categories are broad and specific figures are not available as to how many of these establishments manufacture consumer equipment. According to the SBA's regulations, an audio and visual equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicates that there are 554 U.S. establishments that manufacture audio and visual equipment, and that 542 of these establishments have fewer than 500 employees and would be classified as small entities. The remaining 12 establishments have 500 or more employees; however, we are unable to determine how many of those have fewer than 750 employees and therefore, also qualify as small entities under the SBA definition. Under the SBA's regulations, a radio and television broadcasting and wireless communications equipment manufacturer must also have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicates that there 1,215 U.S. establishments that manufacture radio and television broadcasting and wireless communications equipment, and that 1,150 of these establishments have fewer than 500 employees and would be classified as small entities. The remaining 65 establishments have 500 or more employees; however, we are unable to determine how many of those have fewer than 750 employees and therefore, also qualify as small entities under the SBA definition. We therefore conclude that there are no more than 542 small manufacturers of audio and visual electronics equipment and no more than 1,150 small manufacturers of radio and television broadcasting and wireless communications equipment for consumer/household use.

81. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements. The proposed rules may impose additional reporting or recordkeeping requirements on existing radio stations, depending upon how the Commission chooses to update its forms in response to comments filed in this proceeding. We seek comment on the possible burden these requirements would place on small entities. Also, we seek comment on whether a special approach toward any possible compliance burdens on small entities might be appropriate.

82. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

83. In the First R&O in this proceeding, the Commission considered alternative standards for digital audio broadcasting. The Commission, after careful study and consideration, chose iBiquity's in-band on-channel technology over the competing Eureka 147 standard. In this FNPRM, the Commission seeks comment on what rules changes are in the public interest to reflect the advent of digital audio broadcasting using iBiquity's standard. The Commission proposes a flexible use policy for DAB, allowing radio stations to transmit high quality digital audio, multiplexed digital audio streams, and datacasting. At the same time, the Commission proposes to apply existing public interest requirements and operational rules to DAB. The Commission seeks comment on how to apply such requirements, understanding the burdens such regulation may impose on small as well as large entities affected by the rules we will adopt. In addition, rather than require all radio stations to convert to a digital format by a date certain, the Commission proposes to allow marketplace forces to dictate the conversion process.

84. Federal Rules Which Duplicate, Overlap, or Conflict With, the Commission's Proposals. None.

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List of Subjects

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Federal Communications Commission.

Marlene H. Dortch,

Secretary.

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[FR Doc. 04-11118 Filed 5-14-04; 8:45 am]

BILLING CODE 6712-01-P