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Federal Register / Vol. 86, No. 45 / Wednesday, March 10, 2021 / Rules and Regulations waivers for FM translator long-distance hops are not relevant to the channel change applications at issue here.
Therefore, the Commission both dismisses this argument as previously raised and considered and denies it on the merits.
6. The Commission also dismisses and, on alternative and independent grounds, denies the argument that the non-adjacent channel change rule violates the Ashbacker doctrine. This argument could have been raised earlier in the proceeding. Moreover, the Ashbacker right to comparative consideration for mutually exclusive applications does not apply to prospective applicants, as here. Rather, the Commission may promulgate rules that limit the ability of parties to file mutually exclusive applications. The Commission finds that it is in the public interest to do so here by allowing FM
translator stations to remediate interference by changing channels and treating changes as minor, thereby foreclosing competing applications.
Doing so provides a low-cost way to resolve interference with little or no reduction in service area and help keep translators on the air. The Commission finds that to treat these changes as major, and therefore subject to competing applications, would undermine the Commissions efforts to provide FM translator stations with an efficient means to remediate interference.
7. Required Contents of Translator Interference Claims. The Commission affirms three as the appropriate minimum number of listener complaints that must be submitted by an LPFM
station with fewer than 5,000 people within its protected contours, dismissing the argument that this limit should be set at six. This argument was considered and rejected earlier in the proceeding. The Commission also denies this argument on the alternative and independent ground that the threelistener complaint minimum is a targeted and proportionate requirement, which in any case is applicable only to a small subset of LPFM stations.
8. The Commission rejects the arguments that it violated the Administrative Procedure Act APA
and the petition clause of the U.S.
Constitution Petition Clause by holding that multiple listener complaints from the same building will not be applied toward the listener complaint minimum. The APA does not prevent the Commission from adopting a final rule that differs from a proposal in an NPRM. To the contrary, the APA
requires that, after providing the public with an opportunity to comment, an
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agency must then consider the relevant matter presented. In this case, although the NPRM proposed to allow multiple complaints from a single building, in the Report and Order the Commission agreed with commenters that the new rules should ensure that listener complaints come from multiple, unique, locations to demonstrate a real and consistent interference problem. By carefully reviewing the record and modifying its earlier proposal in response to it, the Commission complied with APA requirements.
9. The Commission also denies the argument that the Report and Order denied radio listeners their right under the Petition Clause to petition the government for a redress of grievances.
Petitioners do not cite to any court or agency precedent to support the assertion that the Petition Clause requires the Commission to accept and consider all listener complaints of translator interference. To the contrary, the Supreme Court has held that nothing in the First Amendment suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues.
Moreover, the Commission explains, from a practical standpoint, it is not necessary to obtain multiple listener complaints from a single location to determine whether that location is experiencing interference. It also clarifies that although multiple listener complaints will not count toward the minimum number of listener complaints, the translator operator must still remediate all valid complaints from the same building if all threshold requirements are otherwise met.
10. Because the Reconsideration Order corrects a cross-reference within new 74.1203a3 and 74.1204f to refer to 74.1204b rather than previously cross-referenced 73.313, the Commission dismisses as moot any objection to the new rules based on 73.313.
11. The Commission upholds the requirement set out in the Report and Order that each station submitting a translator interference claim package must include U/D data demonstrating that at each listener location the ratio of undesired to desired signal strength exceeds 20 dB for co-channel situations, 6 dB for first-adjacent channel situations or 40 dB for secondor third-adjacent channel situations, calculated using the Commissions standard contour prediction methodology. The Commission declines to allow listener complaints from anywhere within the complaining
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stations protected contour, even if the listener location does not satisfy this U/
D requirement. The U/D requirement serves as a threshold test to eliminate obvious instances where the translator could not be the source of the alleged interference. Including listener complaints from areas within the complaining stations protected contour that do not satisfy the U/D test would undermine this purpose. Moreover, the Commission explains, the strength of the complaining stations signal within its protected contour makes the likelihood of translator interference within the protected contour exceedingly small. In the rare event that a valid U/D showing could be made for a location within a complaining stations protected contour, the Commission states that it would accept a listener complaint at that location if it otherwise met the complaint requirements set out in the Report and Order. Finally, the Commission anticipates that if a real and consistent interference problem caused by a translator should occur, the affected station will be able to readily obtain the required minimum number of listener complaints from within the zone of potential interference as defined in the Report and Order.
12. In response to Skywaves Communications LLC, who points out that the Report and Order does not specify F50,50 or F50,10 propagation curves with respect to the 45 dBu contour limit and the U/D zone of potential interference test, the Commission makes a technical change to 74.1203a3 and 74.1204f to cross-reference 74.1204b rather than 73.313. Section 74.1204b includes guidance on using F50, 50 curves for protected contours and F50, 10 curves for interfering contours and is therefore appropriate for the purpose of making a U/D zone of potential interference showing under the new rules.
13. Contour Limit on Translator Interference Complaints. The Commission dismisses as previously raised and considered the argument that existing translator stations will be harmed by the establishment of an outer contour limit of 45 dBu signal strength of the complaining station within which interference complaints will be considered actionable. On alternative and independent grounds, the Commission denies this argument on the merits, noting that under the previous rules, any interference complaint, at any distance from the complaining station, could have forced a translator station to cease operations.
Because the new contour limit protects translator stations from specious
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