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Federal Register / Vol. 86, No. 45 / Wednesday, March 10, 2021 / Rules and Regulations
interference complaints, it reduces the risk to translator stations rather than increasing it. In this respect, the Commission clarifies that the 45 dBu contour limit does not affect any stations existing protected contour under the rules, including LPFM
stations. It affirms that the 45 dBu contour limit represents a carefully considered balance between protecting translator stations from specious interference claims on one hand while preserving existing protections for other broadcast stations on the other.
14. The Commission dismisses as already raised and rejected the argument that the Commission relied on misleading data when it determined that there is significant listenership beyond many stations 54 dBu signal strength contours. In doing so, the Commssion considered all arguments on this point and concluded that the data presented in the record formed an adequate basis for approximating nationwide listenership at various signal strength contours. On alternative and independent grounds, the Commission denies this argument on the merits, noting that the Nielsen data in the record was supplemented and corroborated by independent listenership data submitted by other broadcasters from various markets nationwide. Therefore, while acknowledging that CUME, zip codebased, and home address-based information may be overor underinclusive in individual cases for example, when a zip code centroid is within a certain signal strength contour but the listening occurs outside it, the Commission finds that this data is sufficiently reliable with respect to broad listenership patterns to support the conclusion that a significant amount of FM listening occurs beyond the average 54 dBu contour and that setting a limit on actionable complaints at this signal strength would be economically damaging to many broadcasters.
15. The Commission dismisses as previously raised and rejected the argument that the new rules contravene LCRA section 53. The applicability of the LCRA equal in status provision was raised by other commenters earlier in the proceeding and addressed in the Report and Order. The Commission affirms its conclusion that LCRA does not prohibit the establishment of an outer contour limit on translator interference claims.
16. The Commission denies the argument that it acted with bias against the LPFM services by rejecting objections filed by LPFM advocates to pending translator applications in other proceedings. This complaint ignores the
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Commissions longstanding stewardship of this valuable and unique service as well as the fact that many of the measures taken in the Report and Order have equivalent rules already applicable to the LPFM service, such as the ability to change channels to resolve interference and the contour limitation on listener complaints. Thus, the new rules do not prioritize translator service over LPFM service but bring the two services into closer harmony with each other. Finally, the Commission explains that improving the translator interference process benefits all parties concerned, including LPFM stations, by providing a clearly defined, expeditious, and fair process for resolving translator interference complaints.
17. Pending Proceedings. The Commission affirms the holding in the Report and Order that the rules adopted therein apply to any pending applications or complaints that have not been acted upon as of the date the new rules became effective. It rejects the argument that doing so imposes impermissible retroactive burdens on those with pending translator interference complaints. None of the three ways in which a rule can be retroactive are demonstrated here. First, applying the new rules to pending translator interference complaints does not increase complainants liability for past conduct. Second, applying the new rules to pending translator interference complaints does not impose new duties with respect to transactions already completed. Third, applying the new rules to pending translator interference complaints does not impair rights a party possess when it acted. In this respect, the Commission finds that Petitioners do not demonstrate or provide support for the position that the mere filing of an interference complaint endows the complainant with vested rights, or that such rights, if established, would be impaired by application of the new rules. The Commission explains that the purpose of the interference complaint regime addressed in the Report and Order is to resolve complaints that FM translators are causing interference to listeners of FM
and LPFM stations. Nothing in the Report and Order eliminated the ability of complainants, including those with pending complaints, to avail themselves of the Commissions processes to resolve such interference concerns.
Rather, the rules adopted in the Report and Order changed only the way in which these claims are adjudicated by requiring more specific evidence.
Moreover, pending complainants were provided with the opportunity to
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supplement their complaints to meet the new requirements. If a pending complaint is dismissed for failure to comply with the new rules, nothing precludes that same complainant from pursuing a new interference complaint in the future that complies with the new rules. Therefore, the Commission concludes, applying the new rules to pending complaints does not impair rights a party possessed when it acted because both before and after the effective date of the new rules, FM
translators are prohibited from causing interference to listeners of FM and LPFM stations and the Commission provides a complaint process for resolving such interference complaints.
It therefore denies the contention that applying the new rules to interference complaints pending against translator stations had an impermissible retroactive effect.
Procedural Matters 18. Paperwork Reduction Act Analysis. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 10413. Therefore, it does not contain any new or modified information collection burdens for small business concerns with fewer than 25
employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107198.
19. Congressional Review Act. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs that these rules are non-major under the Congressional Review Act, 5
U.S.C. 8042. The Commission will send a copy of this Order on Reconsideration to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801a1A.
20. Final Regulatory Flexibility Certification. 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

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