[Federal Register: July 7, 2005 (Volume 70, Number 129)]
[Rules and Regulations]
[Page 39182-39186]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jy05-6]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 99-25; FCC 05-75]
Creation of a Low Power Radio Service
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission modifies its rules governing
minor changes to low power FM (LPFM) authorized facilities and minor
technical amendments to LPFM applications. The Commission clarifies the
definition of locally originated programming for purposes of resolving
mutually exclusive LPFM applications. The Commission also establishes
standards for waiver of the LPFM 18-month construction deadline and the
prohibition on assignment of LPFM authorizations or transfer of control
of LPFM permittees or licensees. The Commission imposes a six-month
freeze on the grant of FM translator new station construction permits.
DATES: The rules in this document contain information collection
requirements that have not been approved by the Office of Management
and Budget (OMB). The Commission will publish a document in the Federal
Register announcing the effective date of these rules.
ADDRESSES: All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission, 445 12th
Street, SW., Room TW-A325, Washington, DC 20554. See Supplementary
Information for filing instructions. In addition to filing comments
with the Office of the Secretary, a copy of any comments on the
Paperwork Reduction Act information collection requirements contained
herein should be submitted to Cathy Williams Federal Communications
Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or
via the Internet to Cathy.Williams@fcc.gov.
[[Page 39183]]
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Natalie Roisman, Natalie.Roisman@fcc.gov, of the
Media Bureau, Policy Division, (202) 418-2120. For additional
information concerning the Paperwork Reduction Act information
collection requirements contained in this document, contact Cathy
Williams, Federal Communications Commission, 445 12th St, SW., Room 1-
C823, Washington, DC 20554, or via the Internet to
Cathy.Williams@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Second Order on Reconsideration (2nd
Reconsideration) FCC 05-75, adopted on March 16, 2005, and released on
March 17, 2005. The full text of this document is available for public
inspection and copying during regular business hours in the FCC
Reference Center, Federal Communications Commission, 445 12th Street,
SW., CY-A257, Washington, DC 20554. These documents will also be
available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be
available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The
complete text may be purchased from the Commission's copy contractor,
445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request
this document in accessible formats (computer diskettes, large print,
audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call
the Commission's Consumer and Governmental Affairs Bureau at (202) 418-
0530 (voice), (202) 418-0432 (TTY).
Paperwork Reduction Act of 1995 Analysis
This 2nd Reconsideration contains modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burden, invites the general public and the OMB to
comment on the modified information collection requirements contained
in this 2nd Reconsideration, as required by the Paperwork Reduction Act
of 1995, Pub. L. 104-13. Written comments on the modified information
collection requirements must be submitted by the public, the Office of
Management and Budget (OMB), and other interested parties on or before
September 6, 2005. In addition, we note that, pursuant to the Small
Business Paperwork Relief Act of 2002, Pub. L. 107-198, see 44 U.S.C.
3506(c)(4), we previously sought specific comment on how the Commission
might ``further reduce the information collection burden for small
business concerns with fewer than 25 employees.''
Summary of the 2nd Reconsideration
I. Introduction
1. In January 2000, the Commission adopted a Report and Order
establishing the low power FM (LPFM) service, Creation of Low Power
Radio Service, 65 FR 7616, February 15, 2000. The Commission authorized
the LPFM service to provide opportunities for new voices to be heard,
while at the same time maintaining the integrity of existing FM radio
service and preserving its ability to transition to a digital
transmission mode. In the Report and Order, the Commission authorized
two classes of LPFM service: The LP100 class, consisting of stations
with a maximum power of 100 watts effective radiated power (ERP) at 30
meters antenna height above average terrain (HAAT), providing an FM
service radius (1 mV/m or 60 dBu) of approximately 3.5 miles (5.6
kilometers), and the LP10 class, consisting of stations with a maximum
power of 10 watts ERP at 30 meters HAAT, providing an FM service radius
of approximately one to two miles (1.6 to 3.2 kilometers). The Report
and Order also imposed separation requirements for LPFM with respect to
full power stations.
2. In the Report and Order, the Commission also established
ownership and eligibility rules for the LPFM service. The Commission
restricted LPFM service to noncommercial educational (NCE) operation by
non-profit entities and public safety radio services. With certain
narrow exceptions, the Commission restricted ownership to entities with
no attributable interest in any other broadcast station or other media
subject to our ownership rules. The Commission prohibited the sale or
transfer of an LPFM station. For the first two years of the LPFM
service, the Commission prohibited multiple ownership of LPFM stations
and limited ownership to locally-based entities. To resolve mutually
exclusive applications, the Commission established a point system that
favors local ownership and locally-originated programming, with time-
sharing and successive license terms as tie-breakers.
3. The Report and Order directed the Mass Media Bureau to announce
by public notice the opening of a national filing window for LP100
applications. In March 2000, the Mass Media Bureau announced that it
would accept LPFM applications in five separate filing windows, each
limited to an application group of ten states and at least one other
U.S. jurisdiction, in order to ``ensure the expeditious implementation
of the LPFM service and to promote the efficient use of Commission
resources.'' See FCC Announces Five-Stage National Filing Window for
Low Power FM Broadcast Station Applications, DA 00-621 (MMB rel. Mar.
17, 2000). The Commission conducted a lottery to determine the order of
the application groups, and the Mass Media Bureau announced that the
first LPFM filing window would open on May 30, 2000. Subsequent filing
windows opened on August 28, 2000, January 16, 2001, and June 11, 2001.
The fourth and fifth LPFM application groups were consolidated into a
single window in order to speed the filing process for applicants in
these states.
4. On reconsideration in September 2000, the Commission issued some
revisions and clarifications, but generally affirmed the decisions
reached in the Report and Order. See 65 FR 67289 (MO&O). The Making
Appropriations for the Government of the District of Columbia for FY
2001 Act (2001 DC Appropriations Act), Pub. L. No. 106-553 632,
required the Commission to modify its rules to prescribe LPFM station
third-adjacent channel spacing standards and to prohibit any applicant
from obtaining an LPFM station license if the applicant previously had
engaged in the unlicensed operation of a station. As a result of rule
revisions adopted pursuant to the 2001 DC Appropriations Act,
facilities proposed in a number of otherwise technically sufficient
applications filed in the first two LPFM filing windows became short-
spaced to existing full-power FM and/or FM translator stations, and
were subsequently dismissed. See 66 FR 23861, May 10, 2001 (2nd R&O).
The 2001 DC Appropriations Act also instructed the Commission to
conduct an experimental program to evaluate whether LPFM stations would
interfere with existing FM stations if the LPFM stations were not
subject to the additional channel spacing requirements, and to submit a
report to Congress, including the Commission's recommendations to
Congress regarding reduction or elimination of the minimum separations
for third-adjacent channels. The Commission selected an independent
third party, the Mitre Corporation (Mitre), to conduct the field tests.
On February 19, 2004, the Commission staff submitted the required
report to Congress and, based on the Mitre study, recommended that
[[Page 39184]]
Congress ``modify the statute to eliminate the third-adjacent channel
distant separation requirements for LPFM stations.''
5. On February 8, 2005, the Commission held a forum on LPFM. The
forum was intended to inform the Commission of achievements by LPFM
stations and the challenges faced as the service marks its fifth year.
As of March 2005, more than 1,175 LPFM construction permits have been
granted. Of these 1,175 permits, approximately 590 stations are on the
air, serving mostly mid-sized and smaller markets.
6. Since the LPFM service was created, the experiences of LPFM
applicants, permittees, and licensees have demonstrated that the
Commission's LPFM rules may need some adjustment in order to ensure
that the Commission maximizes the value of the LPFM service without
harming the interests of full-power FM stations or other Commission
licensees. The Commission's actions in this 2nd Reconsideration, based
in part on testimony received at the LPFM forum, are designed to
increase the number of LPFM stations on the air and strengthen the
viability of those stations that are already operating.
II. Second Reconsideration Order
Ownership and Eligibility
7. In the Report and Order, the Commission established a point
system for resolving mutual exclusivity among LPFM applicants. The
point system includes three selection criteria for mutually exclusive
applicants. First, applicants that have an established community
presence of at least two years' duration are awarded one point. Second,
applicants that pledge to operate at least 12 hours per day are
assigned one point. Finally, applicants that pledge to originate
locally at least eight hours of programming per day are assigned one
point. The Commission defined local origination for purposes of
resolving mutual exclusivity in LPFM applications as the production of
programming within 10 miles of the reference coordinates of the
proposed transmitting antenna.
8. On reconsideration in 2000, the Commission considered a request
to broaden the definition of locally originated programming to include
programming that ``covers local persons and/or their activities and/or
local issues.'' The Commission agreed that clarification was warranted,
but declined to adopt the proposed language. Instead, the Commission
explained that because the intent of awarding a point for a pledge to
provide locally originated programming is to encourage licensees to
maintain production facilities and a meaningful staff presence within
the community served by the station, a definition of local program
origination as the production of programming by the licensee within 10
miles of the proposed transmitting site is most appropriate. The
Commission clarified explicitly that this rule does not necessarily
preclude an applicant from claiming a point for local origination based
on coverage of a high school away game played more than 10 miles away,
so long as the production involves facilities located within a 10-mile
radius of the antenna.
9. The United Church of Christ, Office of Communication, Inc. (UCC)
requests that the Commission further clarify the definition of locally
originated programming. UCC states that it is concerned that certain
LPFM applicants are construing this term liberally and intend to time-
shift programming obtained via satellite and rebroadcast it in an
attempt to meet the local program origination pledge. The Commission
does not believe that there is any reason for concern that the
definition of locally originated programming, as clarified on
reconsideration, may be construed broadly enough to encompass
programming delivered by satellite. Nevertheless, we will take this
opportunity to re-emphasize that the local origination selection
criterion is intended to encourage licensees to maintain production
facilities and a meaningful staff presence within the community served
by the station. Programming that is produced outside of the 10-mile
radius and does not involve any local production facilities does not
serve this goal. Accordingly, the Commission clarifies that such
programming, including time-shifted programming obtained via satellite,
may not be used to fulfill a locally originated programming pledge made
as part of the mutually exclusive LPFM application selection process.
Technical Rules
10. In the Report and Order, the Commission adopted a window filing
process for applications for new LPFM stations and major modifications
in the facilities of authorized LPFM stations. New station and major
modification applications are accepted only during window filing
periods specified by the Commission. An application proposing a ``minor
change'' to authorized LPFM facilities, however, may be filed at any
time. See 47 CFR 73.870. The Report and Order defined a minor change as
a transmitter site relocation of less than two kilometers for an LP100
station and a relocation of less than one kilometer for an LP10
station. Minor change applications may also propose a change to an
adjacent or IF frequency or, upon a technical showing of reduced
interference, to any other frequency. As noted, new station and major
modification applications may be amended only during specified window
filing periods. Only ``minor amendments'' to such applications may be
filed outside a filing window. In implementing the 2001 DC
Appropriations Act in the 2nd R&O, the Commission determined that it
was necessary to adopt a more restrictive approach for ``minor
amendments'' to pending applications, compared with the approach
adopted for ``minor changes'' to authorized facilities, in order to
facilitate the expeditious processing of the numerous applications
filed in the initial LPFM windows. Accordingly, the Commission barred
channel change amendments outside window filing periods. The Commission
concluded, however, that the goal of promptly licensing LPFM stations
would not be compromised by permitting applicants to change proposed
station locations by small distances. Thus, in order to provide ``some
flexibility for applicants that lose a proposed transmitter site or
become aware of a more desirable nearby site after the close of a
filing window,'' the Commission defined minor amendments to include
transmitter site relocations of less than two kilometers for LP100
stations and relocations of less than one kilometer for LP10 stations--
identical to the transmitter site relocation limits permissible in
applications seeking minor changes to authorized facilities. See 47 CFR
73.871(c).
11. In its petition for reconsideration of the 2nd R&O, UCC
requests that the Commission amend the definition of minor change
(i.e., an application that seeks modifications to authorized facilities
and is permissibly filed outside a filing window) to include
transmitter site relocation of up to 5.6 kilometers for LP100 licensees
and 3.2 kilometers for LP10 licensees. Although UCC does not explicitly
request that the Commission also amend the definition of minor
amendment (i.e., an amendment to a pending new station or major
modification application that is permissibly filed outside a filing
window) to parallel the requested expansion of the definition of minor
change, the Commission interprets UCC's request to encompass both the
minor change and minor amendment definitions, both of which were
[[Page 39185]]
addressed in the 2nd R&O. UCC claims that many LPFM applicants have not
been able to obtain local government approval for their first choice
transmitter locations and must apply for alternative sites. UCC states
that the practical experience of UCC, LPFM applicants, and their
technical advisors demonstrates that while a two kilometer limit often
precludes a workable solution in such situations, a 5.6 kilometer limit
will often provide the necessary flexibility for applicants to
relocate.
12. The Commission recognizes that LPFM licensees have faced a
number of legal and practical constraints in identifying, securing, and
retaining transmitter sites. The Commission is also aware that in some
circumstances, developments that occur during the pendency of an
application may make it difficult or even impossible for an LPFM
applicant to use the site originally proposed. Permitting transmitter
site relocation of up to 5.6 kilometers for LP100 licensees and 3.2
kilometers for LP10 licensees would provide needed flexibility.
Accordingly, the Commission amends 47 CFR 73.870 and 73.871 to permit
the filing of minor change applications and minor amendments requesting
authority for transmitter site relocation of up to 5.6 kilometers for
LP100 licensees and 3.2 kilometers for LP10 licensees. Minor amendments
may be filed only to applications that are currently pending. (UCC
asserts that the 2001 DC Appropriations Act, which required the
Commission to establish third-adjacent channel spacing requirements for
LPFM, effectively reduced the number of available frequencies and
forced LPFM applicants to seek new locations for their transmitters;
however, applications dismissed for any reason, including pursuant to
the third-adjacent channel spacing requirements adopted in the 2nd R&O,
may not be amended because they are no longer pending).
13. Although the Commission expands the permissible distance for
transmitter site relocation in an amendment to a pending application,
the Commission continues to believe that efficient LPFM window
application processing requires a relatively fixed database of
technical proposals and, therefore, that a narrow definition of
``minor'' amendment remains necessary. Thus, the Commission does not
expand the definition of minor amendment to encompass channel changes.
Nevertheless, it is in the public interest to provide LPFM applicants
as much technical flexibility as possible. Accordingly, the Commission
delegates authority to the Media Bureau to open settlement windows for
closed LPFM groups to permit applicants entering into settlement
agreements to file major change amendments specifying new FM channels.
(In 2003, the Commission established a similar filing window which
successfully facilitated the rapid licensing of a number of LPFM
stations). For applications amended in such windows, the Commission
delegates authority to the Media Bureau to waive 47 CFR 73.871(a) on a
case-by-case basis upon a determination that such waiver will promote
expeditious application processing and maximize new LPFM station
licensing opportunities. Any settlement agreement submitted under these
procedures must be universal.
14. In the Further Notice of Proposed Rulemaking (FNPRM) issued
concurrently with this 2nd Reconsideration, the Commission seeks a
comment on a number of technical and ownership/eligibility issues
relating to LPFM authorizations. Among other issues, the Commission
seeks comment on whether to introduce some level of transferability to
the LPFM service. The Commission states that the current rule
prohibiting the transfer of LPFM stations is hampering the LPFM service
by, for example, impeding routine transitions to new governing boards
and limiting the ability of an LPFM licensee to assign its license to a
new, jointly-controlled entity composed of several similarly focused
organizations. The Commission believes that delaying relief to LPFM
stations until the proceeding is completed will not serve the public
interest. Accordingly, the Commission delegates to the Media Bureau
authority to consider, on a case-by-case basis, requests for waivers of
47 CFR 73.865. The Media Bureau may grant a waiver upon determination
that such waiver will maximize spectrum use for low power FM
operations. For example, waiver may be appropriate, assuming the public
interest would be served, in certain circumstances: a sudden change in
the majority of a governing board with no change in the organization's
mission; development of a partnership or cooperative effort between
local community groups, one of which is the licensee; and transfer to
another local entity upon the inability of the current licensee to
continue operations. This is not an exhaustive list of circumstances
appropriate for waiver. However, until the Commission has further
considered the transferability issue, waiver is not appropriate to
permit the for-profit sale of an LPFM station to any entity or the
transfer of an LPFM station to a non-local entity or an entity that
owns another LPFM station.
15. The FNPRM also proposes to extend the LPFM construction period
to three years, the same period afforded other broadcast permittees,
and seeks comment on this proposal. Some LPFM construction permits are
scheduled to expire in the near future, while the Commission is
considering this issue, and other LPFM permittees with expired permits
have requests pending before the Media Bureau for additional time to
construct. The Commission adopts an interim waiver policy to increase
the likelihood that these permittees will complete construction and
commence operation. Although the rules do not generally permit waiver
of broadcast construction permit deadlines, all other broadcast
permittees are afforded 36 months to construct facilities. Here, where
the construction period is half as long, the Commission believes that
waivers generally are warranted to extend outstanding LPFM construction
permits to three years. Pending Commission action on the FNPRM, the
Commission delegates to the Media Bureau the authority to consider
requests for waiver of the construction period even if the requirements
under the tolling rules are not met. The Media Bureau may determine
that a waiver is appropriate if an LPFM permittee demonstrates that it
cannot complete construction within the allotted 18 months for reasons
beyond its control, that it reasonably expects to be able to complete
construction within the additional 18 months that the construction
extension would provide, and that the public interest would be served
by the extension.
III. Procedural Matters
Regulatory Flexibility Act
16. This Final Regulatory Flexibility Analysis (FRFA) conforms to
the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 604.
Need for, and Objectives of, the Second Order on Reconsideration
17. The Commission received petitions for reconsideration of the
2nd R&O that requested reconsideration of a variety of issues. This 2nd
Reconsideration resolves those issues that were timely raised. We do
not change most of the determinations made in the 2nd R&O. We do,
however, amend the definitions of minor change and minor amendment to
permit greater flexibility in transmitter site relocation for LPFM
authorizations.
[[Page 39186]]
Description and Estimate of the Number of Small Entities to Which Rules
Will Apply
18. 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, if adopted. See 5 U.S.C. 603(b)(3).
The RFA generally defines the term ``small entity'' as having the same
meaning as the terms ``small business,'' small organization,'' and
``small government jurisdiction.'' 5 U.S.C. 601(6). In addition, the
term ``small business'' has the same meaning as the term ``small
business concern'' under the SBA. 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 SBA.
19. The Small Business Administration (SBA) defines a radio
broadcasting station that has $5 million or less in annual receipts as
a small business. See 13 CFR 121.201. 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. The 1992 Census
indicates that 96 percent (5,861 of 6,127) of radio station
establishments produced less than $5 million in revenue in 1992.
20. The Commission's LPFM rules apply to a new category of FM radio
broadcasting service. As of the date of release of this FNPRM, the
Commission's records indicate that more than 1,175 LPFM construction
permits have been granted. Of these 1,175 permits, approximately 590
stations are on the air, serving mostly mid-sized and smaller markets.
It is not known how many entities ultimately may seek to obtain low
power radio licenses. Nor does the Commission know how many of these
entities will be small entities. The Commission expects, however, that
due to the small size of low power FM stations, small entities would
generally have a greater interest than large ones in acquiring them.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
21. Most of the provisions of the 2nd R&O are unchanged by the 2nd
Reconsideration. Establishing the LPFM service requires the collection
of information for the purposes of processing applications for (among
other things) initial construction permits, assignments and transfers,
and renewals. We also require lower power radio stations to comply with
some of the reporting, recordkeeping, and other compliance requirements
as full power radio broadcasters. This 2nd Reconsideration amends the
definitions of minor change and minor amendment to permit increased
flexibility in transmitter site relocation for LPFM authorizations. In
order to receive authorization for such site relocation, LPFM
applicants, permittees, and licensees must file minor change
applications or minor amendments to pending applications.
Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
22. 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. See 5 U.S.C. 603(c)(1)-(c)(4).
23. The LPFM service has created and will continue to create
significant opportunities for new small businesses. In addition, the
Commission generally has taken steps to minimize the impact on existing
small broadcasters. To the extent the 2nd Reconsideration imposes any
burdens on small entities, the Commission believes that the resulting
impact on small entities is favorable because the proposed rules, if
adopted, would expand opportunities for LPFM applicants, permittees,
and licensees to commence broadcasting and stay on the air.
24. The Commission will send a copy of this 2nd Reconsideration in
a report to Congress and the Government Accountability Office pursuant
to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
25. Accessibility Information. To request information in accessible
formats (computer diskettes, large print, audio recording, and
Braille), send an e-mail to fcc504@fcc.gov or call the FCC's Consumer
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY). This document can also be downloaded in Word and Portable
Document Format (PDF) at: http://www.fcc.gov.
List of Subjects in 47 CFR Part 73
Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rule Changes
0
For the reasons discussed in the preamble, the FCC amends 47 CFR part
73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The citation authority for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
0
2. Section 73.870 is amended by revising paragraph (a) to read as
follows:
Sec. 73.870 Processing of LPFM broadcast station applications.
(a) A minor change for an LP100 station authorized under this
subpart is limited to transmitter site relocations of 5.6 kilometers or
less. A minor change for an LP10 station authorized under this subpart
is limited to transmitter site relocations of 3.2 kilometers or less.
Minor changes of LPFM stations may include changes in frequency to
adjacent or IF frequencies or, upon a technical showing of reduced
interference, to any frequency.
* * * * *
0
3. Section 73.871 is amended by revising paragraph (c) to read as
follows:
Sec. 73.871 Amendment of LPFM broadcast station applications.
* * * * *
(c) Only minor amendments to new and major change applications will
be accepted after the close of the pertinent filing window. Subject to
the provisions of this section, such amendments may be filed as a
matter of right by the date specified in the FCC's Public Notice
announcing the acceptance of such applications. For the purposes of
this section, minor amendments are limited to:
(1) Site relocations of 3.2 kilometers or less for LP10 stations;
(2) Site relocations of 5.6 kilometers or less for LP100 stations;
(3) Changes in ownership where the original party or parties to an
application retain more than a 50 percent ownership interest in the
application as originally filed; and
(4) Other changes in general and/or legal information.
* * * * *
[FR Doc. 05-13368 Filed 7-6-05; 8:45 am]
BILLING CODE 6712-01-P