Policies To Promote Rural Radio Service and To Streamline Allotment and Assignment Procedures, 9797-9808 [2010-3491]
Download as PDF
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
using the search function for WT Docket
No. 10–18 on the ECFS Web page at
https://www.fcc.gov/cgb/ecfs/.
BILLING CODE 6560–50–P
1. The Wireless Telecommunications
Bureau (Bureau) makes a conforming
amendment to a recent Commission
FEDERAL COMMUNICATIONS
order and corrects errors in the Federal
COMMISSION
Register summary of that order, which
47 CFR Part 1
made procedural amendments to section
1.2105 of the Commission’s competitive
[WT Docket No. 10–18; DA 10–288]
bidding rules.
2. On January 7, 2010, the
Procedural Amendments to
Commission issued an Order which
Commission Competitive Bidding
amended the rule specifying how to
Rules
report potential violations of 47 CFR
AGENCY: Federal Communications
1.2105(c) and amended the rules
Commission.
specifying how quickly applicants must
ACTION: Correcting amendment.
modify pending auction applications to
satisfy the requirements of 47 CFR
SUMMARY: The Federal Communications
1.65(a) and 1.2105(b). The Order also
Commission published a document in
modified the heading of paragraph 47
the Federal Register at 75 FR 4701,
CFR 1.2105(c). A summary of the Order
January 29, 2010, revising Commission
was published in the Federal Register,
rules. This summary corrects the final
75 FR 4701, January 29, 2010, but the
rules by amending the headings of 47
changes made therein were not
CFR 1.2105 and 1.2105(c) and the
consistent with the Order as released.
statutory authority for part 1. The
3. The Bureau now amends the
change and restoration of language
heading of 47 CFR 1.2105 to read:
conforms the headings to the
Bidding application and certification
Commission’s intent. These corrections
procedures; prohibition of certain
make no change to the substance of the
communications. The Order
rule, or the Commission’s interpretation
inadvertently preserved the phrase
or application of the rule.
prohibition of collusion in the heading,
DATES: Effective March 4, 2010.
and the Federal Register summary of
FOR FURTHER INFORMATION CONTACT:
the Order inadvertently deleted a
Wireless Telecommunications Bureau,
portion of the rule’s heading. This
Auctions and Spectrum Access Division: change and restoration of language
Sayuri Rajapakse at (202) 418–0660.
conforms the heading to the
Commission’s intent underlying the
SUPPLEMENTARY INFORMATION: This is a
Order. In the Order, the Commission
summary of the Commission’s Part 1
recognized that collusion is a term used
Procedural Amendments Order and
in many contexts, legal and economic,
Errata adopted February 24, 2010, and
and that its use in connection with 47
released on February 24, 2010. The
CFR 1.2105’s prohibition of certain
complete text of the Part 1 Procedural
communications by auction applicants
Amendments Order and Errata is
may cause confusion. This amendment
available for public inspection and
makes no change to the substance of the
copying from 8 a.m. to 4:30 p.m. ET
rule, or the Commission’s interpretation
Monday through Thursday or from
8 a.m. to 11:30 a.m. ET on Fridays in the or application of the rule.
4. The Bureau also confirms the
FCC Reference Information Center, 445
Commission’s intention to amend the
12th Street, SW., Room CY–A257,
heading of paragraph 1.2105(c) to read
Washington, DC 20554. The Part 1
Prohibition of certain communications
Procedural Amendments Order and
rather than Prohibition of collusion.
Errata may be purchased from the
While this change is reflected in the
Commission’s duplicating contractor,
Best Copy and Printing, Inc. (BCPI), 445 Order, the Federal Register summary
inadvertently omitted this language
12th Street, SW., Room CY–B402,
from the paragraph’s heading.
Washington, DC 20554, telephone 202–
488–5300, fax 202–488–5563, or you
5. The Bureau amends the list of
may contact BCPI at its Web site:
statutory authorities for part 1 to correct
https://www.BCPIWEB.com. When
inaccuracies that exist in the current
ordering documents from BCPI, please
version of the Code of Federal
provide the appropriate FCC document
Regulations.
number, for example, DA 10–288. The
List of Subjects in 47 CFR Part 1
Part 1 Procedural Amendments Order
Administrative practice and
and Errata is also available on the
procedures, Competitive bidding,
Internet at the Commission’s Web site:
Telecommunications.
https://wireless.fcc.gov/auctions, or by
*
*
*
*
*
srobinson on DSKHWCL6B1PROD with RULES
[FR Doc. 2010–4325 Filed 3–3–10; 8:45 am]
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
PO 00000
Frm 00045
Fmt 4700
Sfmt 4700
9797
Federal Communications Commission.
Jane E. Jackson,
Associate Chief, Wireless
Telecommunications Bureau.
Correcting Amendment
Accordingly, 47 CFR part 1 is
corrected by the following amendments:
■
PART 1—PRACTICE AND
PROCEDURE
1. The authority citation for part 1 is
revised to read as follows:
■
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C.
151, 154(i), 154(j), 155, 157, 225, 303(r), and
309.
2. Amend § 1.2105 by revising the
section heading and the heading to
paragraph (c) to read as follows:
■
§ 1.2105 Bidding application and
certification procedures; prohibition of
certain communications.
*
*
*
*
*
(c) Prohibition of certain
communications. * * *
*
*
*
*
*
[FR Doc. 2010–4425 Filed 3–3–10; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket No. 09–52; FCC 10–24]
Policies To Promote Rural Radio
Service and To Streamline Allotment
and Assignment Procedures
AGENCY: Federal Communications
Commission.
ACTION: Final rule.
SUMMARY: In this document, the
Commission adopted a number of
procedures, procedural changes, and
clarifications of existing rules and
procedures, designed to promote
ownership and programming diversity,
especially by Native American tribes,
and to streamline processing of AM and
FM auction applications.
DATES: Effective April 5, 2010.
FOR FURTHER INFORMATION CONTACT:
Peter Doyle, Chief, Media Bureau,
Audio Division, (202) 418–2700 or
Peter.Doyle@fcc.gov; Thomas Nessinger,
Attorney-Advisor, Media Bureau, Audio
Division, (202) 418–2700 or
Thomas.Nessinger@fcc.gov. For
additional information concerning the
Paperwork Reduction Act information
collection requirements contained in
this document, contact Cathy Williams
at 202–418–2918, or via the Internet at
Cathy.Williams@fcc.gov.
E:\FR\FM\04MRR1.SGM
04MRR1
9798
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
This is a
synopsis of the Commission’s First
Report and Order (First R&O), FCC 10–
24, adopted January 28, 2010, and
released February 3, 2010. The full text
of the First R&O is available for
inspection and copying during regular
business hours in the FCC Reference
Center, 445 Twelfth Street, SW., Room
CY–A257, Portals II, Washington, DC
20554, and may also be purchased from
the Commission’s copy contractor,
BCPI, Inc., Portals II, 445 Twelfth Street,
SW., Room CY–B402, Washington, DC
20554. Customers may contact BCPI,
Inc. via their Web site, https://
www.bcpi.com, or call 1–800–378–3160.
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
Brian.Millin@fcc.gov.
SUPPLEMENTARY INFORMATION:
srobinson on DSKHWCL6B1PROD with RULES
Paperwork Reduction Act of 1995
Analysis
This First Report and Order (First
R&O) adopts new or revised information
collection requirements, subject to the
Paperwork Reduction Act of 1995 (PRA)
(Pub. L. 104–13, 109 Stat. 163 (1995)
(codified in 44 U.S.C. 3501–3520)).
These information collection
requirements will be submitted to the
Office of Management and Budget
(OMB) for review under Section 3507(d)
of the PRA. The Commission will
publish a separate notice in the Federal
Register inviting comment on the new
or revised information collection
requirements adopted in this document.
The requirements will not go into effect
until OMB has approved them and the
Commission has published a notice
announcing the effective date of the
information collection requirements. In
addition, we note that pursuant to the
Small Business Paperwork Relief Act of
2002, Public Law 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.’’
Synopsis of Order
With this First R&O, the Commission
addresses some, but not all, of the
proposals set forth in the Rural NPRM.
It adopts, with modification, its
proposal in the Rural NPRM for a Tribal
Priority, as well as a number of other
proposals codifying or clarifying auction
procedures. The record provides ample
support for immediate action on these
matters. Accordingly, in this First R&O
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
the Commission adopts the Tribal
Priority with modifications. With regard
specifically to AM application
processing, the Commission adopts,
with certain modifications, the proposal
to prohibit the downgrading of proposed
AM facilities that receive a dispositive
preference under Section 307(b) and
thus are not awarded through
competitive bidding. It also adopts the
proposal that technical proposals for
AM facilities filed with Form 175
applications meet certain minimum
technical standards to be eligible for
further auction processing, with some
modifications, and adopts the proposal
to grant the Media Bureau and the
Wireless Telecommunications Bureau
(collectively, the ‘‘Bureaus’’) delegated
authority to cap the number of AM
applications that may be filed in an AM
auction filing window. The Commission
also adopts proposals to streamline
auction application processing; to
codify the permissibility of nonuniversal engineering solutions and
settlement proposals; to give the staff
delegated authority and flexibility in
setting the post-auction long-form
application filing deadline; to clarify
application of the new entrant bidding
credit unjust enrichment rule; and to
clarify maximum new entrant bidding
credit eligibility.
In the Rural NPRM, Commission
tentatively concluded that it would be
in the public interest to provide
federally recognized Native American
Tribes and Alaska Native Villages
(Tribes) with a priority under Section
307(b) of the Communications Act of
1934, as amended (47 U.S.C. 307(b)),
when proposing FM allotments, and
when filing AM and noncommercial
educational (NCE) FM filing window
applications. As set forth in the Rural
NPRM, an applicant would qualify for
the Tribal Priority if: (1) The applicant
(including a party filing a Petition for
Rule Making to amend the FM Table of
Allotments, 47 CFR 73.202) is either a
federally recognized Tribe or tribal
consortium, a member of a Tribe, or an
entity more than 70 percent owned or
controlled by members of a Tribe or
Tribes; (2) at least 50 percent of the
daytime principal community contour
of the proposed facilities covers tribal
lands; (3) the applicant proposed a first
(Priority (1)) or second (Priority (2))
aural (reception) service to more than a
de minimis population, or proposed a
first local transmission service (Priority
(3)) at the proposed community of
license; and (4) the proposed
community of license is located on
tribal lands. The Commission further
proposed that such a Tribal Priority
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
rank between the current Priority (1)
and co-equal Priorities (2) and (3), that
is, the Tribal Priority would not take
precedence over a proposal to provide
first reception service to a greater than
de minimis population, but would take
precedence over a proposal to provide
second local reception service or first
local transmission service. The
proposed Tribal Priority would apply
only at the allotment stage of the
commercial FM licensing procedures; as
part of the threshold Section 307(b)
analysis with respect to commercial or
NCE AM applications filed during an
AM filing window; and as the first part
of the fair distribution analysis of
applications filed in an NCE FM filing
window, before application of the ‘‘first
or second reserved channel NCE
service’’ criterion set forth in 47 CFR
73.7002(b). NCE applicants also would
be required to meet all NCE eligibility
and licensing requirements (47 CFR
73.503 and 73.561). Certain ‘‘holding
period’’ restrictions, commencing with
the award of a construction permit until
the completion of four years of on-air
operation, would apply to any station or
allotment awarded pursuant to the
Tribal Priority. In the case of an AM or
NCE FM construction permit awarded
pursuant to a Tribal Priority, the
permittee/licensee would be prohibited
during this period from making any
change in ownership that would lower
tribal ownership below the required
threshold, changing the station’s
community of license, or implementing
a facility modification that would cause
the principal community contour to
cover less than 50 percent of tribal
lands. In the case of a commercial FM
allotment, the restriction would apply
only to any proposed change of
community of license or technical
change as described in the preceding
sentence. However, even a non-tribal
owner that is awarded a permit would
still be required to provide broadcast
service primarily to tribal lands for four
years.
Based on its examination of the record
in this proceeding, the Commission
adopts a Section 307(b) priority for
Tribes or tribal consortia, and entities
majority owned or controlled by Tribes,
proposing service to tribal lands as
proposed in the Rural NPRM. The Tribal
Priority as adopted includes some
modifications suggested by commenters.
In addition, on its own motion the
Commission clarifies the application of
the Tribal Priority in commercial and
NCE contexts, and modifies ownership
requirements, eliminating the priority
for individual members of Tribes or
entities owned by such individuals, and
E:\FR\FM\04MRR1.SGM
04MRR1
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
srobinson on DSKHWCL6B1PROD with RULES
instead extending the Tribal Priority
only to Tribes, consortia of Tribes, and
to entities that are majority owned or
controlled by a Tribe or Tribes.
The Commission finds that
application of its traditional allocation
priorities has not realized Section
307(b)’s mandate to ‘‘make such
distribution of licenses * * * among the
several States and communities as to
provide a fair, efficient, and equitable
distribution of radio service’’ with
regard to tribal lands.1 Tribal
governments have a unique legal
relationship with the federal
government as domestic dependent
nations with inherent sovereign powers
over their members and territory.
Because of their status as sovereign
nations responsible for, among other
things, maintaining and sustaining their
sacred histories, languages, and
traditions, tribal-owned radio stations
have a vital role to play in serving the
needs and interests of their local
communities, yet only 41 radio stations
currently are licensed to federallyrecognized Indian Tribes or affiliated
groups. The Commission concludes that
the establishment of an allocation
priority for the provision of radio
service to tribal lands by Indian tribal
government-owned stations will
advance its Section 307(b) goals and
serve the public interest by enabling
Indian tribal governments to provide
radio service tailored to the needs and
interests of their local communities that
they are uniquely capable of providing.
The Commission also finds that the
Tribal Priority will advance the
1 As used here, ‘‘tribal lands’’ means both
‘‘reservations’’ and ‘‘near reservation’’ lands.
‘‘Reservations’’ is defined as any federally
recognized Indian tribe’s reservation, pueblo or
colony, including former reservations in Oklahoma,
Alaska Native regions established pursuant to the
Alaska Native Claims Settlements Act (85 Stat. 688),
and Indian allotments. 47 CFR 54.400(e). ‘‘Near
reservation’’ is defined as ‘‘those areas or
communities adjacent or contiguous to reservations
which are designated by the Department of
Interior’s Commission of Indian Affairs upon
recommendation of the Local Bureau of Indian
Affairs Superintendent, which recommendation
shall be based upon consultation with the tribal
governing body of those reservations, as locales
appropriate for the extension of financial assistance
and/or social services on the basis of such general
criteria as: Number of Indian people native to the
reservation residing in the area; a written
designation by the tribal governing body that
members of their tribe and family members who are
Indian residing in the area, are socially, culturally
and economically affiliated with their tribe and
reservation; geographical proximity of the area to
the reservation and administrative feasibility of
providing an adequate level of services to the area.’’
Id. Thus, ‘‘tribal lands’’ includes American Indian
Reservations and Trust Lands, Tribal Jurisdiction
Statistical Areas, Tribal Designated Statistical
Areas, Hawaiian Homelands, and Alaska Native
Village Statistical Areas, as well as the communities
situated on such lands.
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
Commission’s longstanding
commitment, in accordance with the
federal trust relationship, to ensure,
through its regulations and policy
initiatives, that Indian Tribes have
adequate access to communications
services. The new Tribal Priority will
promote Tribes’ sovereign rights by
enabling them to provide vital radio
services to their communities. Further,
the Commission concludes that the
establishment of a Tribal Priority will
promote the policies and purposes of
the Communications Act favoring
diversity of media voices, and
strengthening the diverse and robust
marketplace of ideas that is essential to
our democracy.
In response to the Commission’s
query regarding the constitutionality of
the Tribal Priority, Native Public Media
and the National Congress of American
Indians (NPM/NCAI) concluded that the
Tribal Priority would not trigger the
strict scrutiny analysis of the case of
Adarand Constructors, Inc. v. Pena, 515
U.S. 200 (1995), but rather a rational
basis standard of review. This is
because, as stated in the Supreme Court
case of Morton v. Mancari, 417 U.S. 535
(1974), the proposed benefit would be
granted to Tribes and their members not
as a discrete racial group, but, rather, as
members of quasi-sovereign tribal
entities whose lives and activities are
governed in a unique fashion. The
Commission agrees that the priority
established herein for the benefit of
federally recognized Tribes is not
constitutionally suspect because it is
based on the unique legal status of
Indian Tribes under Federal law.
Accordingly, the Commission believes
that the Tribal Priority is consistent
with the Equal Protection Clause of the
Fifth Amendment to the United States
Constitution.
As proposed, the Tribal Priority also
tied the application preference to the
needs of tribal communities by
requiring that, to qualify for the priority,
commercial applicants must propose
either a first or second aural service, or
a first local transmission service at a
community located on tribal lands. The
existence of a non-tribal commercial
station or stations at a community
located on tribal lands should not
preclude the establishment of a first
local transmission service owned by a
Tribe or Tribes. Thus, the Commission
modifies the service criterion for the
Tribal Priority to require that a
qualifying commercial applicant
propose first or second aural (reception)
service, or a first local tribal-owned
transmission service at the proposed
community. Thus, a commercial tribalowned applicant may qualify for a
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
9799
Tribal Priority, notwithstanding the fact
that a tribal-owned NCE station is
licensed at the same community. As the
Commission proposed in the Rural
NPRM, however, the Tribal Priority will
not take precedence over a bona fide
proposal to provide first reception
service to a significant population.
The Commission makes certain
modifications to the Tribal Priority
suggested by commenters. First, the
Commission will allow assignments or
transfers within the four-year holding
period provided that the assignee/
transferee also qualifies for the Tribal
Priority in all respects. Second, the
Commission will permit gradual
changes in the governing board of an
NCE permittee or licensee during the
four-year holding period, as is the case
with other NCE holding period
restrictions, as long as the majority
tribal control threshold (discussed
below) is maintained. Third, the
Commission finds that the goals
underlying the Tribal Priority are not
undermined by allowing Tribes to claim
the Tribal Priority for both commercial
and NCE stations in the same
community. A tribal-owned NCE
applicant may qualify for a Tribal
Priority, notwithstanding the fact that a
tribal-owned commercial station is
licensed to the same community (in the
same way that the existence of a tribalowned NCE station does not preclude
use of the priority by a commercial
applicant, as discussed above). The
Commission thus modifies the third
prong of the test for tribal-owned NCE
applicants to state that, to qualify for the
Tribal Priority, a tribal applicant seeking
NCE facilities will promote Section
307(b) goals by meeting the tribal lands
50 percent signal coverage and
community of license requirements, and
also by demonstrating that it will
provide the first tribal-owned NCE
transmission service at the proposed
community of license. If a tribal NCE
applicant meets these criteria, it will not
be compared to other mutually
exclusive applicants on a fair
distribution basis, but will be the
tentative selectee. As is the case with
commercial applicants, the Tribal
Priority for an NCE applicant will not
take precedence over a bona fide
proposal to provide first aural reception
service to a significant population. If
two or more mutually exclusive
proposals from tribal NCE applicants
qualify for a Tribal Priority, proposing
first local tribal-owned NCE service at
the same community, the tentative
selectee will be the applicant proposing
service to the greatest population on
tribal lands. The Commission will not
E:\FR\FM\04MRR1.SGM
04MRR1
srobinson on DSKHWCL6B1PROD with RULES
9800
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
require the 5,000-person population
differential that exists in the current
NCE analysis, but adds the ‘‘on tribal
lands’’ requirement so as to award the
permit to the applicant most
successfully meeting the Tribal
Priority’s goal of providing service to
underserved tribal communities that
meets their unique cultural needs.
Moreover, the Commission will make
this comparison even if the mutually
exclusive tribal applicants propose first
local NCE service at different
communities, unlike the usual Priority
(3) analysis, under which the most
populous community receives a
dispositive Section 307(b) preference.
The goals of the Tribal Priority are better
served by selecting a smaller
community that provides greater
reception service than by choosing a
more remote, but slightly larger,
community. Thus, the foregoing
comparison will be applied between
mutually exclusive NCE applicants
claiming the Tribal Priority, whether
they propose the same or different
communities of license. For the same
reason, mutually exclusive applicants
claiming the Tribal Priority for
commercial facilities, and proposing
first local transmission service at the
same community or at different
communities, will be compared based
on service to the greatest population on
tribal lands.
The Commission also modifies the
Tribal Priority on its own motion. Upon
its consideration of the Rural NPRM,
and review of pertinent federal law, the
Commission is no longer convinced that
extending the Tribal Priority to
individual members of Tribes, or
entities owned by individuals without
ownership by the Tribes themselves,
advances the Commission’s interest in
helping promote tribal self-sufficiency
and economic development, and
endeavoring to ensure that Tribes and
tribal communities have adequate
access to communications services. It is
well established that the Commission’s
trust relationship is with the Tribes and
tribal governments themselves, rather
than individual members of Tribes. As
an independent federal agency, the
Commission looks to the tribal
governments, rather than to individual
members of Tribes, to determine
communications policies that best serve
the unique needs of their respective
communities, and fulfill the needs of all
tribal citizens. Individual members of
tribes are not necessarily bound to take
such factors into account. By limiting
the Tribal Priority to Tribes themselves,
the Commission not only furthers the
legitimate governmental objective of
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
preserving Native American culture, but
also promotes the federal government’s
interest in furthering tribal selfgovernment. Thus, the Commission
concludes that the Tribal Priority
should extend only to (1) Tribes; (2)
tribal consortia; or (3) entities that are
51 percent or more owned or controlled
by a Tribe or Tribes. The Commission’s
general attribution rules (found in 47
CFR 73.3555 and Notes 1 and 2 to that
rule) shall determine the ownership or
control of any such qualifying entities.
Qualifying Tribes or tribal entities must
be those at least a portion of whose
tribal lands lie within the proposed
station’s principal community contour.
The principal community contour must
still cover at least 50 percent of tribal
lands (subject to the provisos proposed
in the Rural NPRM, including those on
‘‘checkerboarded’’ tribal lands), but they
need not all be the same Tribe’s lands.
Tribes whose lands are not covered by
the proposed facility may invest or sit
on controlling boards, but their
investments or board membership will
not count toward the 51 percent
threshold.
The Commission therefore adopts the
Tribal Priority as proposed in the Rural
NPRM with the following modifications:
(1) It will allow assignments or transfers
of permits or licenses obtained using the
Tribal Priority during the four-year
holding period, provided that the
assignee/transferee also qualifies for the
Tribal priority in all respects; (2) with
regard to NCE permittees or licensees
who obtained their authorization using
the Tribal Priority, it will permit gradual
changes in the governing board during
the four-year holding period, as long as
the 51 percent tribal control threshold is
maintained; (3) eligibility to claim the
Tribal Priority is limited to Tribes, tribal
consortia, or entities 51 percent or more
owned or controlled by a Tribe or
Tribes; (4) with regard to entities 51
percent or more owned or controlled by
Tribes, the 51 or greater percent need
not consist of a single Tribe, but the
qualifying entity must be 51 percent or
more owned or controlled by Tribes at
least a portion of whose tribal lands lie
within the facility’s principal
community contour, as defined in the
Commission’s Rules; (5) the requirement
of principal community coverage of 50
percent or more of tribal lands does not
require that those lands belong to the
same Tribe; (6) to qualify for the
priority, a tribal commercial applicant
must propose first or second aural
(reception) service or first local
commercial tribal-owned transmission
service at the proposed community of
license; and (7) to qualify for the
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
priority, a tribal NCE applicant must
propose a first local NCE tribal-owned
transmission service at the proposed
community of license.
In the Rural NPRM, the Commission
stated that when a mutually exclusive
AM auction filing window applicant
receives a dispositive preference under
Section 307(b), it should not be allowed
to downgrade that proposal to serve a
smaller population, or otherwise negate
the factors that led to the award of the
dispositive preference, so as not to
encourage ‘‘gaming’’ of the Section
307(b) process. The Commission
tentatively concluded that AM licensees
or permittees receiving Section 307(b)
preferences should be required, for a
period of four years, to provide service
substantially as proposed in their shortform tech box submissions. The
Commission adopts a modified version
of its proposal to limit the downgrading
of proposed AM facilities that receive a
dispositive Section 307(b) preference,
recognizing that a certain level of
flexibility in implementing AM
proposals will help expedite the
commencement of new service and
reduce the possibility of unbuildable
construction permits. Thus, to the
extent underserved populations or
service totals are relevant to a Section
307(b) analysis, the Commission adopts
the proposal as follows: an AM licensee
or permittee receiving a dispositive
Section 307(b) preference may modify
its facilities so long as it continues to
provide the same priority service to
substantially the same number of
persons who would have received such
service under the initial proposal, even
if the population is not the same
population that would have received
service under the initial proposal. As
used here, ‘‘substantially’’ means that
any proposed modification must not
result in a decrease of more than 20
percent of any population figure that
was a material factor in obtaining the
dispositive Section 307(b) preference.
For example, if an AM licensee or
permittee receives a dispositive Priority
(4) preference for proposing to provide
a third aural service to a population of
500 persons and service to an overall
population of 100,000, it may not file an
FCC Form 301 application that would
provide a third aural service to fewer
than 400 persons or service to an overall
population of less than 80,000. The
same analysis applies to any party that
receives a dispositive Priority (1) or
Priority (2) preference. In some cases
this may result in a reduction of service
below that presented by a competing
proposal in the Section 307(b) analysis,
but there is no guarantee that the
E:\FR\FM\04MRR1.SGM
04MRR1
srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
competing proposal could have been
effectuated as proposed in such cases.
Additionally, a licensee or permittee
that has received a dispositive
preference under Priority (3) will be
prohibited from changing its community
of license. These restrictions will be
imposed for a period of four years of onair operations, consistent with
Commission rules governing NCE FM
stations. Construction permits and
licenses issued to these parties will
contain conditions delineating these
restrictions.
In the Rural NPRM, the Commission
observed that its current auction
processing rules limit technical review
of basic engineering data filed with AM
short-form applications only to the
extent necessary to determine the
mutually exclusive groups of
applications. Originally designed to
conserve staff resources and expedite
auction processing, this practice has
contributed to the filing of patently
defective applications, potentially
undermining the accuracy and
reliability of mutual exclusivity and
Section 307(b) determinations, and
frustrate the staff’s ability to manage the
window filing process efficiently. Such
defective applications may preclude the
filing of meritorious modification
applications by existing facilities, which
must protect the prior-filed defective
applications. In the Rural NPRM the
Commission tentatively concluded that
47 CFR 73.3571(h)(1)(ii) should be
modified to require that applicants in
future AM broadcast auctions must, at
the time of filing, meet the following
basic technical eligibility criteria:
community of license coverage (day and
night); and protection of existing AM
facilities and prior-filed proposed AM
facilities (daytime and nighttime). It also
tentatively concluded that the rules
should be modified to prohibit the
amendment of applications that, at time
of filing, are technically ineligible to
proceed with auction processing, and
prohibit applicants that propose such
technically ineligible applications from
participating in the auction process.
This would preclude attempts to amend
or correct data submitted in Form 175
or the tech box, including proposals to
change community of license before an
applicant has been awarded a
construction permit. The Commission
adopts the proposed rule changes set
forth in the Rural NPRM. To alleviate
concerns raised by some commenters,
the Commission will provide applicants
with a one-time opportunity to file a
curative amendment to its short-form
application. Specifically, if the staff
review shows that an application does
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
not meet one or more of the eligibility
criteria, it will be deemed ‘‘technically
ineligible for filing’’ and will be
included on a Public Notice
(Technically Ineligible Notice), which
will list defective applications
identified by the staff during their initial
review of the application, identify
which of the defects that the applicant
must correct, and set the deadline for
doing so. Only applicants whose
applications are included in the
Technically Ineligible Notice may file a
curative amendment. Applicants may
not modify any part of a proposal not
directly related to an identified
deficiency in their curative
amendments. Applicants may only
modify the AM technical parameters of
the short-form application, such as
power, class (within the limits set forth
in 47 CFR 73.21), antenna site or other
antenna data.
Amendments seeking to change a
proposed community of license or
frequency will not be accepted.
Notwithstanding this rule change, full
technical review of applications will not
occur until winning bidders file longform applications after an auction. This
opportunity to cure is not to be
considered a settlement opportunity
under 47 CFR 73.5002(d). The
opportunity to file a curative
amendment will occur prior to the
disclosure by the Commission of any
information on applications submitted
during the short-form filing window.
Notwithstanding the broadcast anticollusion rules, which generally apply
upon the filing of a short-form
application, 47 CFR 73.5002(d) provides
applicants in certain mutually exclusive
groups (MX Groups) a limited
opportunity to communicate during
specified settlement periods in order to
resolve conflicts by means of technical
amendment or settlement. This
exception applies only to those MX
Groups that include either (1) At least
one AM major modification; (2) at least
one NCE application; or (3) applications
for new stations in the secondary
broadcast services. Currently, the rule
neither prohibits the Commission from
accepting non-universal technical
amendments or settlement proposals—
which reduce the number of applicants
in a group but do not completely resolve
the mutual exclusivities of that group—
nor requires it to do so. Given the
success of staff auction practice in
accepting non-universal technical
amendments and settlement proposals,
the Commission adopts its proposal to
codify the permissibility of nonuniversal engineering solutions and
settlement proposals as proposed in the
Rural NPRM, as long as this process
PO 00000
Frm 00049
Fmt 4700
Sfmt 4700
9801
results in at least one singleton
application that proceeds to long-form
processing. Accordingly, the
Commission revises its rules to permit
non-universal technical amendments
and settlement proposals that result in
at least one singleton application from
an MX Group. An applicant submitting
a technical amendment pursuant to this
policy is required only to resolve all
mutual exclusivities for at least one
application in the relevant MX Group,
but need not resolve all technical
conflicts among all applications in that
group.
The Commission observed in the
Rural NPRM that the Rules currently do
not limit the number of AM Tech Box
applications that may be filed with FCC
Form 175 during an AM short-form
filing window. It noted that an
increasing number of applicants had
availed themselves of the opportunity to
file multiple technical submissions, and
questioned whether a significant
percentage of AM short-form filing
window applications were merely
speculative. Accordingly, the
Commission sought comment on
whether (1) to delegate to the Bureaus
authority to limit, in an AM short-form
filing window, the number of tech box
submissions that an applicant could file
with its Form 175 and, if so, the
appropriate limitation on this
delegation; and (2) to apply Commission
attribution standards to determine the
number of filings submitted by any
party, to guard against the use of
affiliates or even sham entities to
circumvent such a cap. The Commission
finds that delegating authority to the
Bureaus to impose application caps in
AM short-form filing windows will help
to prevent speculative applications,
decreasing the likelihood of mutually
exclusive applications, and in turn
decreasing the likelihood of large,
technically complex, and
administratively burdensome MX
Groups. A cap can also help expedite
application processing and prevent
abuses of licensing procedures, and will
enable the Bureaus to open AM shortform filing windows more frequently,
thereby promoting—rather than
restricting—new entrant opportunities.
Accordingly, the Commission delegates
authority to the Bureaus to determine,
for each AM short-form window,
whether to limit the number of AM
applications that may be filed by an
applicant and, if so, the appropriate
application cap based on the particular
circumstances presented by future
auctions. The Commission also
delegates to the Bureaus authority to
adopt attribution standards to effectuate
E:\FR\FM\04MRR1.SGM
04MRR1
srobinson on DSKHWCL6B1PROD with RULES
9802
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
the goals of an application cap, and to
ensure compliance with this restriction.
It directs the Bureaus to provide notice
and an opportunity for comment on a
cap limit and attribution standards prior
to imposing these potential filing
restrictions. Any such cap limit and
attribution standards will be announced
in the Public Notice establishing the
dates for the Form 175 filing window.
The Commission’s Rules currently
provide, without exception, that each
winning bidder in a broadcast auction
must submit an appropriate long-form
application within thirty (30) days
following the close of bidding. In the
Rural NPRM, the Commission observed
that this inflexible 30-day time frame
has, at times, proved to be problematic,
for example, when the close of an
auction causes the long-form
application filing deadline to fall during
the December holiday season,
inconveniencing applicants and their
consultants. The Commission therefore
modifies 47 CFR 73.5005(a) as set forth
in the Rural NPRM, to delegate
authority to the Bureaus to extend the
filing deadline for the post-auction
submission of long-form applications.
To promote the objectives of 47 U.S.C.
309(j) and further its long-standing
commitment to broadcast facility
ownership diversity, the Commission
adopted a tiered new entrant bidding
credit (NEBC) for broadcast auction
applicants with no, or very few, other
media interests. To meet the statutory
obligation to prevent unjust enrichment,
and to ensure that the NEBC would aid
eligible individuals and entities to
participate in broadcast auctions, the
Commission adopted rules requiring,
under certain circumstances,
reimbursement of bidding credits used
to obtain broadcast licenses. In the Rural
NPRM, the Commission proposed to
clarify certain issues concerning the
unjust enrichment provisions of the
NEBC that had been raised during
previous broadcast auctions. First,
under 47 CFR 73.5007(b), a winning
bidder is not eligible for the NEBC if it,
or any party with an attributable interest
in the winning bidder, has an
attributable interest in any existing
media facility in the ‘‘same area’’ as the
proposed new facility, that is, if
specified service contours of the two
facilities overlap. In the FM service, in
the pre-auction Form 175 application,
an applicant may submit a set of
‘‘preferred site coordinates’’ as an
alternative to the reference coordinates
for the vacant FM allotment upon which
it intends to bid. The preferred site
coordinates specified by prospective
auction participants would be entered
into the Commission’s database and
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
protected from subsequent filings. In the
Rural NPRM, the Commission sought to
clarify that, for purposes of defining the
‘‘same area’’ restriction for the NEBC, the
contour of the proposed FM facility
would be identified by the maximum
class facilities at the FM allotment site,
so that applicants could not attempt to
avoid the overlap of contours which
defines ‘‘same area,’’ and thereby qualify
for the bidding credit, by specifying
preferred site coordinates in their Form
175 application. The Commission
adopts this proposal, which will
provide certainty to applicants and help
safeguard the diversity and competition
goals on which the NEBC is based by
eliminating potential applicant
manipulation of our ‘‘new entrant’’
standards. The Commission also
clarifies, under 47 CFR 73.5007(b)(3),
that it will base this proposed FM
facility contour standard on an
assumption of uniform terrain, which
results in a perfectly circular standard
70 dBu contour.
Second, to prevent unjust enrichment
by parties that acquire permits through
the use of a NEBC, 47 CFR 73.5007(c)
requires reimbursement to the
Commission of all or part of the credit
upon a subsequent assignment or
transfer, if the proposed assignee or
transferee is not eligible for the same
percentage of bidding credit. The rule is
routinely applied to ‘‘long form’’
assignment or transfer of control
applications filed on FCC Forms 314
and 315, but does not distinguish
between pro forma and non-pro forma
assignments or transfers of control. In
the Rural NPRM the Commission
invited comment as to whether the
unjust enrichment analysis should also
apply to voluntary or involuntary pro
forma assignments or transfers filed on
Form 316. The Commission tentatively
concluded that the unjust enrichment
provisions should apply to pro forma
assignment and transfer of control
applications, thus eliminating any
applicant confusion on the issue. The
Commission finds it appropriate
generally to apply the unjust
enrichment provisions contained in 47
CFR 73.5007(c) to pro forma
applications to assign or transfer
broadcast licenses and permits,
pursuant to 47 CFR 73.3540(f), in order
to help preserve the integrity of the
designated entity measures adopted in
prior auction orders. A pro forma
assignment or transfer can include new
parties, including parties with
attributable interest holdings that would
nullify or diminish the eligibility of the
assignee or transferee for the bidding
credit. This is especially the case in
PO 00000
Frm 00050
Fmt 4700
Sfmt 4700
transactions eligible for pro forma
treatment involving corporate
reorganizations where a new
attributable interest holder with other
media interests is added. Moreover,
such an unjust enrichment analysis
allows for consistency in the application
of the rule. It further ensures that
applicants do not use the summary pro
forma assignment and transfer
procedures to circumvent the unjust
enrichment requirements. Thus, the
Commission adopts the unjust
enrichment analysis recommended in
the Rural NPRM, but will only apply the
unjust enrichment analysis to voluntary
pro forma transactions, and not to
involuntary pro forma transactions.
Notwithstanding this decision, it will
continue to address, on a case-by-case
basis, any conduct engaged in by
auction participants with the evident
intention of manipulating the eligibility
standards for, or frustrating the purpose
of, the NEBC.
As described in the Rural NPRM,
applicants to participate in broadcast
auctions are required to establish their
qualifications for the NEBC on their
short-form applications (FCC Form 175),
Application to Participate in an FCC
Auction, which is the sole opportunity
for the applicant to claim bidding credit
eligibility. Applicants meeting the
eligibility criteria set forth in 47 CFR
73.5007 qualify for a bidding credit
representing the amount by which a
winning bidder’s gross bid is
discounted. The size of a NEBC depends
on the number of ownership interests in
other media of mass communications
that are attributable to the bidder-entity
and its attributable interest-holders. In
accordance with 47 CFR 73.5008(c),
when determining an applicant’s
eligibility for the NEBC, the interests of
the applicant, and of any individuals or
entities with an attributable interest in
the applicant, in other media of mass
communications are considered. An
auction applicant’s attributable
interests, and therefore its maximum
NEBC eligibility, are determined as of
the Form 175 filing deadline.
Consequently, the Commission has
consistently held, and has announced in
auction Public Notices, that bidders
cannot qualify for a bidding credit, nor
increase the size of a previously claimed
bidding credit, based upon ownership
or positional changes occurring after the
Form 175 filing deadline. Nonetheless,
as noted in the Rural NPRM, certain
parties have argued that their NEBC
eligibility is maintained or ‘‘frozen’’ as of
the Form 175 application filing.
Therefore, to prevent applicant
confusion, the Commission proposed to
E:\FR\FM\04MRR1.SGM
04MRR1
srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
amend 47 CFR 73.5007(a) to codify the
current policy, and state explicitly that
the NEBC eligibility set forth in an
applicant’s Form 175 application is the
maximum NEBC eligibility for that
auction, and that such bidding credit
may be reduced or lost upon post-filing
changes. The Commission adopts this
change, and modifies 47 CFR 73.5007(a)
to state unequivocally that: (1) An
applicant must specify its eligibility for
the NEBC in its Form 175 application;
(2) the NEBC specified in an applicant’s
Form 175 establishes that applicant’s
maximum NEBC eligibility for that
auction; (3) any post-Form 175 filing
(post-filing) change in the applicant’s
circumstances underlying its NEBC
eligibility claim, or that of any
attributable interest-holder in the
applicant, must be reported
immediately to the Commission, and no
later than five business days after the
change occurs; and (4) any such postfiling change may cause a reduction or
elimination of the NEBC claimed in the
applicant’s Form 175 application, if the
change would cause the applicant not to
qualify for the originally claimed NEBC
under the eligibility provisions of 47
CFR 73.5007, and the change occurred
prior to grant of the construction permit
to the applicant. Under no
circumstances will a post-filing change
increase an applicant’s NEBC eligibility
for that auction. The Commission also
emphasizes that all of ways in which
interests are attributed to individuals
and entities (as set forth in 47 CFR
73.3555 and Note 2 to that Section) will
be considered to affect NEBC eligibility
when they occur after the Form 175
filing deadline.
By auction Public Notices, bidders are
also instructed that any change that
results in the reduction or loss of the
NEBC originally claimed on the Form
175 application, must be reported
immediately, and no later than five
business days after the change occurs. In
the Rural NPRM the Commission
proposed to adjust the standard
reporting timeframe and codify this
immediate reporting requirement. In
keeping with the rule amendments it
recently adopted in Procedural
Amendments to Commission Part 1
Competitive Bidding Rules, Order, FCC
10–4 at 5 (rel. Jan. 7, 2010), the
Commission codifies the practice that
any changes affecting NEBC eligibility
must be reported immediately, and in
any event no later than five business
days after the change occurs, and
amends 47 CFR 73.5007(a) accordingly.
The Commission will continue to make
final determinations regarding an
applicant’s eligibility to hold a
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
construction permit, including
eligibility for and amount of the NEBC,
when it is ready to grant the postauction long form construction permit
application.
Final Regulatory Flexibility Analysis.
As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), 5 U.S.C. 601–612, an Initial
Regulatory Flexibility Analysis (IRFA)
was incorporated in the Rural NPRM.
The Commission sought written public
comment on the proposals in the Rural
NPRM, including comment on the IRFA.
The Commission received no comments
on the IRFA. This present Final
Regulatory Flexibility Analysis (FRFA)
conforms to the RFA.
Need for, and Objectives of, the
Report and Order. This First R&O
adopts rule changes and procedures to
codify or clarify certain allotment,
assignment, auction, and technical
procedures. The rules adopted by this
First R&O also create a new Tribal
Priority to assist Tribes or tribal
consortia, or entities controlled by
Tribes, in obtaining radio broadcast
stations designed to serve their tribal
communities.
We turn first to the Tribal Priority.
The Commission noted the marked
disparity in the Native American and
Alaskan Native population of the United
States, compared to the number of radio
stations licensed to, or providing
significant signal coverage to, lands
occupied by members of Tribes. Tribal
lands comprise 55.7 million acres, or 2.3
percent of the area of the United States
(exclusive of the State of Alaska).
Roughly one-third of the 4.1 million
American Indian and Alaska Native
population of the United States lives in
tribal lands, yet only 41 radio stations
currently are licensed to Tribes or
affiliated groups, representing less than
one-third of one percent of the more
than 14,000 radio stations in the United
States. This service disparity belies the
goal of fair distribution of radio service
mandated by Section 307(b) of the
Communications Act of 1934, as
amended, as well as the Commission’s
commitment to promoting diversity of
station ownership and programming.
The Commission also noted its historic
trust relationship with Tribes, and the
federal policy goals of assisting Tribes
in promoting tribal culture and selfgovernment.
To remedy these problems, the
Commission concluded that Tribes
seeking new radio stations to serve their
citizens should receive a priority in the
award of allotments and construction
permits. To qualify for the Tribal
Priority, an applicant must demonstrate
that it meets all of the following
PO 00000
Frm 00051
Fmt 4700
Sfmt 4700
9803
eligibility criteria: (1) The applicant is
either a federally recognized Tribe or
tribal consortium, or an entity 51
percent or more of which is owned or
controlled by a Tribe or Tribes, at least
part of whose tribal lands (as defined in
note 30 of the Rural NPRM) are covered
by the principal community contour of
the proposed facility. Although the 51
or greater percent need not consist of a
single Tribe, the qualifying entity must
be 51 percent or more owned or
controlled by Tribes at least a portion of
whose tribal lands lie within the
facility’s principal community contour;
(2) at least 50 percent of the daytime
principal community contour of the
proposed facilities covers tribal lands;
(3) the proposed community of license
must be located on tribal lands; and (4)
the applicant proposes first aural,
second aural, or first local tribal-owned
transmission service at the proposed
community of license, in the case of
proposed commercial facilities, or at
least first local tribal-owned
noncommercial educational
transmission service, in the case of
proposed NCE facilities. In the event
that two or more applicants claiming the
Tribal Priority are mutually exclusive,
the one providing the highest level of
service to the greatest population will
prevail. The Tribal Priority ranks
between the current Priority (1) and coequal Priorities (2) and (3) in the case of
commercial applicants. Thus, the Tribal
Priority will not take precedence over a
proposal to provide first reception
service to a greater than de minimis
population, but will take precedence
over the provision of second local
reception service, or over a proposal for
first local non-tribal owned
transmission service. Likewise, an NCE
applicant qualifying for the Tribal
Priority will take precedence over all
mutually exclusive applications, except
those that propose bona fide first
reception service to a greater than de
minimis population.
The Tribal Priority will be applied
only at the allotment stage of the
commercial FM licensing procedures, to
commercial AM applications filed
during an AM filing window, as part of
the threshold Section 307(b) analysis,
and to applications filed in an NCE FM
filing window as the first part of the fair
distribution analysis. NCE applicants
must also meet all NCE eligibility and
licensing requirements. Holding period
restrictions, commencing with the
award of a construction permit until the
completion of four years of on-air
operation, will apply to any
authorization or allotment awarded
pursuant to the Tribal Priority. In the
E:\FR\FM\04MRR1.SGM
04MRR1
srobinson on DSKHWCL6B1PROD with RULES
9804
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
case of an AM or NCE FM authorization
awarded to a tribal applicant, the
permittee/licensee will be prohibited
during this period from making any
change that would lower tribal
ownership below the 51 percent
threshold, a change of community of
license, or a technical change that
would cause less than 50 percent of the
principal community contour to cover
tribal lands. However, gradual changes
in the composition of an NCE board that
do not change the nature of the
organization or break continuity of
control will not violate the four-year
holding period restrictions. In the case
of a commercial FM allotment, the
restrictions will apply only to any
proposed change of community of
license or technical change as described
above. The winner at auction of an FM
allotment added to the Table of
Allotments under a Tribal Priority,
whether Tribal or non-Tribal, must still
provide broadcast service primarily to
tribal lands for the entire four-year
holding period.
Additionally, in the First R&O the
Commission requires that applicants
receiving dispositive preferences for AM
facilities under section 307(b) of the
Communications Act of 1934, as
amended, be prohibited from
substantially downgrading the facilities
on which the Section 307(b) award was
based. This prohibition was designed to
provide basic fairness in the award of a
dispositive preference to one proposal
in a group of several mutually exclusive
proposals. That is, it would be unfair to
allow one member of a mutually
exclusive group to be awarded a
construction permit without auction,
based on the superior population
coverage in its proposal, only then to
allow it to downgrade its proposal to the
point where it would no longer be
significantly different from the other
mutually exclusive proposals.
The First R&O also establishes
procedures by which applicants in AM
auction filing windows must submit
technical proposals that meet minimum
technical eligibility criteria. The
Commission noted the number of
incomplete or technically defective
proposals filed in AM auction filing
windows. Such proposals undermine
the accuracy and reliability of our
mutual exclusivity and Section 307(b)
determinations, and frustrate the staff’s
ability to manage the window filing
process efficiently. Moreover, such
defective applications preclude the
filing of meritorious modification
applications by existing facilities, which
must protect the prior-filed defective
applications. In short, allowing the
filing of technically defective proposals
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
places a strain on the Commission’s
resources and, consequently, delays
consideration of meritorious proposals
and provision of new service to the
public.
Likewise, the First R&O contains two
other proposals designed to streamline
the AM auction process and speed new
service to the public: The grant of
delegated authority to the Media Bureau
to allow AM auction filing window
applicants to submit settlements or
technical resolutions that do not resolve
all the mutual exclusivities in a
mutually exclusive group, as long as the
proposal results in one ‘‘singleton’’
application from the group; and the
grant of delegated authority to the
Media Bureau and Wireless
Telecommunications Bureau to cap the
number of AM applications that may be
filed during a filing window. The
Commission also grants the Media and
Wireless Telecommunications Bureau’s
delegated authority to extend the
deadline for filing post-auction longform applications, as appropriate, thus
providing successful auction applicants
with greater flexibility in preparing such
applications.
Finally, in the First R&O the
Commission clarifies certain aspects of
the rules governing the new entrant
bidding credit (NEBC): That for
purposes of determining whether an
auctioned allotment is in the ‘‘same
area’’ as an applicant’s other media
properties, we will use the maximum
class facilities at the allotment site,
rather than applicant specified-preferred
coordinates; that unjust enrichment
payments by assignors who used the
NEBC in paying for their permit apply
even to pro forma assignments or
transfers filed on FCC Form 316; and
that an applicant’s maximum NEBC
eligibility is established as of the
deadline for filing short-form
applications, but that the eligibility may
be lost or diminished based on postfiling changes in the applicant’s
situation. In clarifying these rules and
policies, the Commission will provide
greater certainty to applicants, reducing
any confusion and, therefore, burden
when preparing and filing auction
applications.
Summary of Significant Issues Raised
by Public Comments in Response to the
IRFA. There were no comments filed
that specifically addressed the rules and
policies proposed in the IRFA.
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 rules
PO 00000
Frm 00052
Fmt 4700
Sfmt 4700
adopted herein. The RFA generally
defines the term ‘‘small entity’’ as having
the same meaning as the terms ‘‘small
business,’’ ‘‘small organization,’’ and
‘‘small government 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).
The subject rules and policies
potentially will apply to all AM and FM
radio broadcasting licensees and
potential licensees. 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 that
are separate establishments and are
primarily engaged in producing radio
program material are classified under
another NAICS number. The SBA has
established a small business size
standard for this category, which is:
Firms having $7 million or less in
annual receipts (13 CFR 121.201, NAICS
code 515112 (updated for inflation in
2008)). According to BIA Advisory
Services, L.L.C., MEDIA Access Pro
Database on March 17, 2009, 10,884
(95%) of 11,404 commercial radio
stations have revenue of $6 million or
less. Therefore, the majority of such
entities are small entities. We note,
however, that many radio stations are
affiliated with much larger corporations
having much higher revenue. Our
estimate, therefore, likely overstates the
number of small entities that might be
affected by any ultimate changes to the
rules and forms.
Description of Projected Reporting,
Recordkeeping and other Compliance
Requirements. As described, certain
rules and procedures will change,
although the changes will not result in
substantial increases in burdens on
applicants. Questions will be added to
FCC Forms 340, 314, and 315 to
establish Section 307(b) eligibility for
the Tribal Priority or compliance with
holding period restrictions in the event
of an assignment or transfer. Questions
will also be added to FCC Form 316
based on the Commission’s conclusion
that the new entrant bidding credit
unjust enrichment rules apply to pro
forma assignment and transfer
E:\FR\FM\04MRR1.SGM
04MRR1
srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
applications. These are largely selfidentification questions or questions
regarding the duration of on-air
operation, requiring minimal
calculation. In certain cases (AM
auction filing window applications and
FM allotment proceedings), Section
307(b) information is already required,
thus the information needed to be
collected from applicants claiming the
Tribal Priority is of the same character
as that already collected, resulting in
little or no increase in burden on such
applicants. The remaining procedural
changes in the First R&O are either
changes in Commission procedures,
requiring no input from applicants, or
more stringent regulation of existing
requirements. For example, AM auction
filing window applicants need not
submit more technical information than
is already collected; the procedural
change merely adds consequences when
that information does not meet certain
already extant technical standards.
Steps Taken To Minimize Significant
Impact of 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 (5 U.S.C. 603(c)(1)–
(c)(4)).
The Tribal Priority adopted in the
First R&O was modified from the
original proposal specified in the Rural
NPRM, based on comments in the
record and on the Commission’s
evaluation of the legal ramifications of
the priority, especially with regard to
the Commission’s government-togovernment relationship with Tribes. As
adopted, the Tribal Priority can
disadvantage certain applicants whose
applications or proposals are mutually
exclusive with those of applicants
qualifying for the Tribal Priority.
However, after due consideration, the
Commission believes that the priority is
necessary to redress an imbalance in the
number of Native American
`
broadcasters vis-a-vis native
populations and lands, and to further
the Commission’s interests in promoting
diversity of ownership and
programming, in assisting Tribes to
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
promulgate tribal language and culture,
and in helping to promote selfgovernment by Tribes. Thus, the
Commission has determined that the
Tribal Priority as adopted is the least
burdensome method to achieve its
policy goals, consonant with
constitutional and other legal
requirements.
With regard to the adopted rule
limiting the downgrade of AM facilities
awarded based on service proposals,
initially the Commission proposed a
standard allowing no reduction in
population served, much as is done
with NCE selectees. However, after
consideration, and recognizing the
technical complexity of the AM service
and the burden such a rigid standard
would impose on applicants, most of
whom are small businesses, the
Commission instead adopted the more
flexible ‘‘equivalency’’ standard, which
allows a variance of up to 20 percent of
the population initially proposed to be
served.
Likewise, in adopting the rule
requiring that AM technical proposals
be technically eligible for auction
processing at time of filing, the
Commission considered seeking further
technical information from applicants.
Moreover, as proposed the rule would
not have allowed curative amendments.
However, upon consideration of the
record, the Commission opted not to
require additional technical information
from applicants, declining to increase
the burden on such parties, and also
mitigated the firm requirements of the
proposed rule by allowing one
opportunity for curative amendments.
The remaining proposals adopted in
the First R&O fall into one of two
categories: Grant of delegated authority
to modify certain rules on an as-needed
basis, or codification or clarification of
existing policies and rules. In the first
category, the new authority granted the
Commission to place a ‘‘cap’’ on AM
filing window applications may deprive
certain applicants of the ability to file
all the applications they wish. However,
application caps will deter speculation,
eliminating superfluous applications
and enabling faster processing of
applications overall. Caps will cause
applicants to focus on those facilities
that they value most, and in conjunction
with the requirement of technically
eligible applications will encourage the
filing of better and more quickly
grantable applications, streamlining the
AM auction and award process. Given
that, in the most recent AM auction
filing window, less than six percent of
the applicants filed ten or more
applications (accounting for
approximately 40 percent of all
PO 00000
Frm 00053
Fmt 4700
Sfmt 4700
9805
technical proposals filed), a reasonable
application cap will burden only that
small percentage of potential applicants
whose multiple applications take up
disproportionate amounts of
Commission time and resources,
slowing down the auction process and
impeding the authorization of new AM
service to the public. The grant of
delegated authority to the Media and
Wireless Telecommunications Bureaus
to extend post-auction filing deadlines
will only benefit applicants: It gives the
Bureaus the flexibility to provide
additional time for parties that need it,
while those who wish their applications
to be considered sooner may file when
they like. In these cases, because of the
significant benefits to regulated parties
and minimal to no burdens, it was not
deemed necessary to consider other
options.
With regard to the adopted
codifications and clarifications of
existing rules, these also present no
burden on applicants requiring
consideration of less burdensome
alternatives. The codification of the
policy, used in prior auctions, allowing
non-universal settlements that result in
at least one singleton application from
an MX Group, speeds auctions by
simplifying MX groups, and expedites
provision of new service by the
singleton applicants. Similarly, the
clarification of policies regarding new
entrant bidding credit eligibility and the
new entrant bidding credit unjust
enrichment rule does not place any
additional burdens on applicants or
other parties. Rather, clarifying these
policies will benefit applicants,
permittees, and licensees by adding
certainty to auction and post-auction
procedures. As such, consideration of
less burdensome alternatives was
unnecessary.
Report to Congress. The Commission
will send a copy of the First R&O,
including this FRFA, in a report to be
sent to Congress and the Government
Accountability Office pursuant to the
Small Business Regulatory Enforcement
Fairness Act of 1996 (5 U.S.C.
801(a)(1)(A)). In addition, the
Commission will send a copy of the
First R&O, including the FRFA, to the
Chief Counsel for Advocacy of the Small
Business Administration. A copy of the
First R&O and FRFA (or summaries
thereof) will also be published in the
Federal Register (See 5 U.S.C. 604(b)).
Ordering Clauses
Accordingly, it is ordered, pursuant to
the authority contained in Sections 1, 2,
4(i), 303, 307, and 309(j) of the
Communications Act of 1934, 47 U.S.C.
151, 152, 154(i), 303, 307, and 309(j),
E:\FR\FM\04MRR1.SGM
04MRR1
9806
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
that this First Report and Order is
adopted.
It is further ordered that, pursuant to
the authority found in Sections 4(i),
303(r), and 628 of the Communications
Act of 1934, as amended, 47 U.S.C.
154(i), 303(r), and 548, the
Commission’s Rules are hereby
amended as set forth in Appendix E to
the First R&O.
It is further ordered that the rules
adopted herein will become effective 30
days after the date of publication in the
Federal Register, except for sections
73.3571(k), 73.7000, 73.7002(b), and
73.7002(c), which contain new or
modified information collection
requirements that require approval by
the Office of Management and Budget
(OMB) under the Paperwork Reduction
Act (PRA), and which will become
effective after the Commission publishes
a notice in the Federal Register
announcing such approval and the
relevant effective date.
List of Subjects in 47 CFR Part 73
Radio broadcast services.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Rule Changes
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 73 as
follows:
■ 1. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 303, 334, 336,
and 339.
2. Section 73.3571 is amended by
revising paragraphs (h)(1)(ii) and
(h)(4)(iii), and adding new paragraph (k)
to read as follows:
■
§ 73.3571 Processing of AM broadcast
station applications.
srobinson on DSKHWCL6B1PROD with RULES
*
*
*
*
*
(h) * * *
(1) * * *
(ii) Such AM applicants will be
subject to the provisions of §§ 1.2105
and 73.5002 regarding the submission of
the short-form application, FCC Form
175, and all appropriate certifications,
information and exhibits contained
therein. Applications must include the
following engineering data: community
of license; frequency; class; hours of
operations (day, night, critical hours);
power (day, night, critical hours);
antenna location (day, night, critical
hours); and all other antenna data.
Applications lacking data (including
any form of placeholder, such as
inapposite use of ‘‘0’’ or ‘‘not applicable’’
or an abbreviation thereof) in any of
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
these categories will be immediately
dismissed as incomplete without an
opportunity for amendment. The staff
will review the remaining applications
to determine whether they meet the
following basic eligibility criteria:
community of license coverage (day and
night) as set forth in § 73.24(i), and
protection of co- and adjacent-channel
station licenses, construction permits
and prior-filed applications (day and
night) as set forth in §§ 73.37 and
73.182. If the staff review shows that an
application does not meet one or more
of the basic eligibility criteria listed
above, it will be deemed ‘‘technically
ineligible for filing’’ and will be
included on a Public Notice listing
defective applications and setting a
deadline for the submission of curative
amendments. An application listed on
that Public Notice may be amended only
to the extent directly related to an
identified deficiency in the application.
The amendment may modify the
proposed power, class (within the limits
set forth in § 73.21), antenna location or
antenna data, but not the proposed
community of license or frequency.
Except as set forth in the preceding two
sentences, amendments to short-form
(FCC Form 175) applications will not be
accepted at any time. Applications that
remain technically ineligible after the
close of this amendment period will be
dismissed, and the staff will determine
which remaining applications are
mutually exclusive.
*
*
*
*
*
(4) * * *
(iii) All long-form applications will be
cutoff as of the date of filing with the
FCC and will be protected from
subsequently filed long-form
applications. Applications will be
required to protect all previously filed
commercial and noncommercial
applications. Subject to the restrictions
set forth in paragraph (k) of this section,
winning bidders filing long-form
applications may change the technical
proposals specified in their previously
submitted short-form applications, but
such change may not constitute a major
change. If the submitted long-form
application would constitute a major
change from the proposal submitted in
the short-form application, the longform application will be returned
pursuant to paragraph (h)(1)(i) of this
section.
*
*
*
*
*
(k)(1) An AM applicant receiving a
dispositive Section 307(b) preference is
required to construct and operate
technical facilities substantially as
proposed in its FCC Form 175. An AM
applicant, licensee, or permittee
PO 00000
Frm 00054
Fmt 4700
Sfmt 4700
receiving a dispositive Section 307(b)
preference based on its proposed service
to underserved populations (under
Priority (1), Priority (2), and Priority (4))
or service totals (under Priority (4)) may
modify its facilities so long as it
continues to provide the same priority
service to substantially the same
number of persons who would have
received service under the initial
proposal, even if the population is not
the same population that would have
received such service under the initial
proposal. For purposes of this provision,
‘‘substantially’’ means that any proposed
modification must not result in a
decrease of more than 20 percent of any
population figure that was a material
factor in obtaining the dispositive
Section 307(b) preference.
(2) An AM applicant, licensee, or
permittee that has received a dispositive
preference under Priority (3) will be
prohibited from changing its community
of license.
(3) The restrictions set forth in
paragraphs (k)(1) and (k)(2) of this
section will be applied for a period of
four years of on-air operations. This
holding period does not apply to
construction permits that are awarded
on a non-comparative basis, such as
those awarded to non-mutually
exclusive applicants or through
settlement.
3. Section 73.5002 is amended by
adding new paragraph (e) to read as
follows:
■
§ 73.5002 Application and certification
procedures; return of mutually exclusive
applications not subject to competitive
bidding procedures; prohibition of
collusion.
*
*
*
*
*
(e) Applicants seeking to resolve their
mutual exclusivities by means of
engineering solution or settlement
during a limited period as specified by
public notice, pursuant to paragraph (d)
of this section, may submit a nonuniversal engineering solution or
settlement proposal, so long as such
engineering solution or settlement
proposal results in the grant of at least
one application from the mutually
exclusive group. A technical
amendment submitted under this
subsection must resolve all of the
applicant’s mutual exclusivities with
respect to the other applications in the
specified mutually exclusive
application group.
4. Section 73.5005 is amended by
revising the first sentence of paragraph
(a) to read as follows:
■
E:\FR\FM\04MRR1.SGM
04MRR1
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
§ 73.5005
Filing of long-form applications.
(a) Within thirty (30) days following
the close of bidding and notification to
the winning bidders, unless a longer
period is specified by public notice,
each winning bidder must submit an
appropriate long-form application (FCC
Form 301, FCC Form 346, or FCC Form
349) for each construction permit or
license for which it was the high bidder.
* * *
*
*
*
*
*
■ 5. Section 73.5007 is amended by
revising paragraph (a) and by adding
Note 1 to read as follows:
srobinson on DSKHWCL6B1PROD with RULES
§ 73.5007
Designated entity provisions.
(a) New entrant bidding credit. A
winning bidder that qualifies as a ‘‘new
entrant’’ may use a bidding credit to
lower the cost of its winning bid on any
broadcast construction permit. Any
winning bidder claiming new entrant
status must have de facto, as well as de
jure, control of the entity utilizing the
bidding credit. A thirty-five (35) percent
bidding credit will be given to a
winning bidder if it, and/or any
individual or entity with an attributable
interest in the winning bidder, have no
attributable interest in any other media
of mass communications, as defined in
§ 73.5008. A twenty-five (25) percent
bidding credit will be given to a
winning bidder if it, and/or any
individual or entity with an attributable
interest in the winning bidder, have an
attributable interest in no more than
three mass media facilities. No bidding
credit will be given if any of the
commonly owned mass media facilities
serve the same area as the proposed
broadcast or secondary broadcast
station, or if the winning bidder, and/or
any individual or entity with an
attributable interest in the winning
bidder, have attributable interests in
more than three mass media facilities.
Attributable interests held by a winning
bidder in existing low power television,
television translator or FM translator
facilities will not be counted among the
bidder’s other mass media interests in
determining eligibility for a bidding
credit. Eligibility for the new entrant
bidding credit must be specified in an
applicant’s FCC Form 175 application,
and the new entrant bidding credit
specified in an applicant’s FCC Form
175 application establishes that
applicant’s maximum bidding credit
eligibility for that auction. Any postFCC Form 175 filing change in the
applicant’s circumstances underlying its
new entrant bidding credit eligibility
claim, or that of any attributable
interest-holder in the applicant, must be
reported to the Commission
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
immediately, and no later than five
business days after the change occurs.
Any such post-FCC Form 175 filing
change may cause a reduction or
elimination of the new entrant bidding
credit claimed in the applicant’s FCC
Form 175 application, if the change
would cause the applicant not to qualify
for the originally claimed new entrant
bidding credit under the eligibility
provisions of § 73.5007, and the change
occurred prior to grant of the
construction permit to the applicant.
Final determinations regarding new
entrant status will be made at the time
of long form construction permit
application grant. Applicants whose
eligibility is lost or reduced subsequent
to the FCC Form 175 filing must, before
a construction permit will be issued,
make such payments as are necessary to
account for the difference between
claimed and actual bidding credit
eligibility.
*
*
*
*
*
Note 1 to § 73.5007: For purposes of
paragraph (b)(3)(ii) of this section, the
contour of the proposed new FM broadcast
station is based on the maximum class
facilities at the FM allotment site, which is
defined as the perfectly circular standard 70
dBu contour distance for the class of station.
6. Section 73.7000 is amended by
adding six new definitions to read as
follows:
■
§ 73.7000 Definition of terms (as used in
subpart K only).
*
*
*
*
*
Near reservation lands. Those areas or
communities adjacent or contiguous to
reservation or other Trust lands which
are designated by the Department of
Interior’s Commission of Indian Affairs
upon recommendation of the Local
Bureau of Indian Affairs
Superintendent, which recommendation
shall be based upon consultation with
the tribal governing body of those
reservations, as locales appropriate for
the extension of financial assistance
and/or social services on the basis of
such general criteria as: Number of
Indian people native to the reservation
residing in the area; a written
designation by the tribal governing body
that members of their tribe and family
members who are Indian residing in the
area, are socially, culturally and
economically affiliated with their tribe
and reservation; geographical proximity
of the area to the reservation and
administrative feasibility of providing
an adequate level of services to the area.
*
*
*
*
*
Reservations. Any federally
recognized Indian tribe’s reservation,
pueblo or colony, including former
PO 00000
Frm 00055
Fmt 4700
Sfmt 4700
9807
reservations in Oklahoma, Alaska
Native regions established pursuant to
the Alaska Native Claims Settlements
Act (85 Stat. 688) and Indian allotments,
for which a Tribe exercises regulatory
jurisdiction.
*
*
*
*
*
Tribe. Any Indian or Alaska Native
tribe, band, nation, pueblo, village or
community which is acknowledged by
the federal government to constitute a
government-to-government relationship
with the United States and eligible for
the programs and services established
by the United States for Indians. See
The Federally Recognized Indian Tribe
List Act of 1994 (Indian Tribe Act),
Public Law 103–454. 108 Stat. 4791
(1994) (the Secretary of the Interior is
required to publish in the Federal
Register an annual list of all Indian
Tribes which the Secretary recognizes to
be eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians).
Tribal applicant. (1) A Tribe or
consortium of Tribes, or
(2) An entity that is 51 percent or
more owned or controlled by a Tribe or
Tribes that occupy Tribal Lands that
receive Tribal Coverage.
Tribal coverage. Coverage of Tribal
Lands by at least 50 percent of a
facility’s 60 dBu (1 mV/m) contour. To
the extent that Tribal Lands include fee
lands not owned by Tribes or members
of Tribes, the outer boundaries of such
lands shall delineate the coverage area,
with no deduction of area for fee lands
not owned by Tribes or members of
Tribes.
Tribal Lands. Both Reservations and
Near reservation lands. This definition
includes American Indian Reservations
and Trust Lands, Tribal Jurisdiction
Statistical Areas, Tribal Designated
Statistical Areas, Hawaiian Homelands,
and Alaska Native Village Statistical
Areas, as well as the communities
situated on such lands.
■ 7. Section 73.7002 is amended by
revising paragraphs (b) and (c) to read
as follows:
§ 73.7002 Fair distribution of service on
reserved band FM channels.
*
*
*
*
*
(b) In an analysis performed pursuant
to paragraph (a) of this section, a fullservice FM applicant that identifies
itself as a Tribal Applicant, that
proposes Tribal Coverage, and that
proposes the first reserved channel NCE
service owned by any Tribal Applicant
at a community of license located on
Tribal Lands, will be awarded a
construction permit. If two or more fullservice FM applicants identify
E:\FR\FM\04MRR1.SGM
04MRR1
9808
Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations
srobinson on DSKHWCL6B1PROD with RULES
themselves as Tribal Applicants and
meet the above criteria, the applicant
providing the most people with reserved
channel NCE service to Tribal Lands
will be awarded a construction permit,
regardless of the magnitude of the
superior service or the populations of
the communities of license proposed, if
different. If two or more full-service FM
applicants identifying themselves as
Tribal Applicants each meet the above
criteria and propose identical levels of
NCE aural service to Tribal Lands, only
those applicants shall proceed to be
considered together in a point system
analysis. In an analysis performed
pursuant to paragraph (a) of this section
that does not include a Tribal
Applicant, a full service FM applicant
that will provide the first or second
reserved channel noncommercial
educational (NCE) aural signal received
by at least 10% of the population within
the station’s 60dBu (1mV/m) service
contours will be considered to
substantially further fair distribution of
service goals and to be superior to
VerDate Nov<24>2008
16:20 Mar 03, 2010
Jkt 220001
mutually exclusive applicants not
proposing that level of service, provided
that such service to fewer than 2,000
people will be considered insignificant.
First service to 2,000 or more people
will be considered superior to second
service to a population of any size. If
only one applicant will provide such
first or second service, that applicant
will be selected as a threshold matter. If
more than one applicant will provide an
equivalent level (first or second) of NCE
aural service, the size of the population
to receive such service from the
mutually exclusive applicants will be
compared. The applicant providing the
most people with the highest level of
service will be awarded a construction
permit, if it will provide such service to
5,000 or more people than the next best
applicant. If none of the applicants in a
mutually exclusive group would
substantially further fair distribution
goals, all applicants will proceed to
examination under a point system. If
two or more applicants will provide the
same level of service to an equivalent
PO 00000
Frm 00056
Fmt 4700
Sfmt 9990
number of people (differing by less than
5,000), only those equivalent applicants
will be considered together in a point
system.
(c) For a period of four years of onair operations, an applicant receiving a
decisive preference pursuant to this
section is required to construct and
operate technical facilities substantially
as proposed and shall not downgrade
service to the area on which the
preference was based. Additionally, for
a period beginning from the award of a
construction permit through four years
of on-air operations, a Tribal Applicant
receiving a decisive preference pursuant
to this section may not:
(1) Assign or transfer the
authorization except to another party
that qualifies as a Tribal Applicant;
(2) Change the facility’s community of
license; or
(3) Effect a technical change that
would cause the facility to provide less
than full Tribal Coverage.
[FR Doc. 2010–3491 Filed 3–3–10; 8:45 am]
BILLING CODE 6712–01–P
E:\FR\FM\04MRR1.SGM
04MRR1
Agencies
[Federal Register Volume 75, Number 42 (Thursday, March 4, 2010)]
[Rules and Regulations]
[Pages 9797-9808]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3491]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 09-52; FCC 10-24]
Policies To Promote Rural Radio Service and To Streamline
Allotment and Assignment Procedures
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission adopted a number of
procedures, procedural changes, and clarifications of existing rules
and procedures, designed to promote ownership and programming
diversity, especially by Native American tribes, and to streamline
processing of AM and FM auction applications.
DATES: Effective April 5, 2010.
FOR FURTHER INFORMATION CONTACT: Peter Doyle, Chief, Media Bureau,
Audio Division, (202) 418-2700 or Peter.Doyle@fcc.gov; Thomas
Nessinger, Attorney-Advisor, Media Bureau, Audio Division, (202) 418-
2700 or Thomas.Nessinger@fcc.gov. For additional information concerning
the Paperwork Reduction Act information collection requirements
contained in this document, contact Cathy Williams at 202-418-2918, or
via the Internet at Cathy.Williams@fcc.gov.
[[Page 9798]]
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's First
Report and Order (First R&O), FCC 10-24, adopted January 28, 2010, and
released February 3, 2010. The full text of the First R&O is available
for inspection and copying during regular business hours in the FCC
Reference Center, 445 Twelfth Street, SW., Room CY-A257, Portals II,
Washington, DC 20554, and may also be purchased from the Commission's
copy contractor, BCPI, Inc., Portals II, 445 Twelfth Street, SW., Room
CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. via
their Web site, https://www.bcpi.com, or call 1-800-378-3160. 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 Brian.Millin@fcc.gov.
Paperwork Reduction Act of 1995 Analysis
This First Report and Order (First R&O) adopts new or revised
information collection requirements, subject to the Paperwork Reduction
Act of 1995 (PRA) (Pub. L. 104-13, 109 Stat. 163 (1995) (codified in 44
U.S.C. 3501-3520)). These information collection requirements will be
submitted to the Office of Management and Budget (OMB) for review under
Section 3507(d) of the PRA. The Commission will publish a separate
notice in the Federal Register inviting comment on the new or revised
information collection requirements adopted in this document. The
requirements will not go into effect until OMB has approved them and
the Commission has published a notice announcing the effective date of
the information collection requirements. In addition, we note that
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
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.''
Synopsis of Order
With this First R&O, the Commission addresses some, but not all, of
the proposals set forth in the Rural NPRM. It adopts, with
modification, its proposal in the Rural NPRM for a Tribal Priority, as
well as a number of other proposals codifying or clarifying auction
procedures. The record provides ample support for immediate action on
these matters. Accordingly, in this First R&O the Commission adopts the
Tribal Priority with modifications. With regard specifically to AM
application processing, the Commission adopts, with certain
modifications, the proposal to prohibit the downgrading of proposed AM
facilities that receive a dispositive preference under Section 307(b)
and thus are not awarded through competitive bidding. It also adopts
the proposal that technical proposals for AM facilities filed with Form
175 applications meet certain minimum technical standards to be
eligible for further auction processing, with some modifications, and
adopts the proposal to grant the Media Bureau and the Wireless
Telecommunications Bureau (collectively, the ``Bureaus'') delegated
authority to cap the number of AM applications that may be filed in an
AM auction filing window. The Commission also adopts proposals to
streamline auction application processing; to codify the permissibility
of non-universal engineering solutions and settlement proposals; to
give the staff delegated authority and flexibility in setting the post-
auction long-form application filing deadline; to clarify application
of the new entrant bidding credit unjust enrichment rule; and to
clarify maximum new entrant bidding credit eligibility.
In the Rural NPRM, Commission tentatively concluded that it would
be in the public interest to provide federally recognized Native
American Tribes and Alaska Native Villages (Tribes) with a priority
under Section 307(b) of the Communications Act of 1934, as amended (47
U.S.C. 307(b)), when proposing FM allotments, and when filing AM and
noncommercial educational (NCE) FM filing window applications. As set
forth in the Rural NPRM, an applicant would qualify for the Tribal
Priority if: (1) The applicant (including a party filing a Petition for
Rule Making to amend the FM Table of Allotments, 47 CFR 73.202) is
either a federally recognized Tribe or tribal consortium, a member of a
Tribe, or an entity more than 70 percent owned or controlled by members
of a Tribe or Tribes; (2) at least 50 percent of the daytime principal
community contour of the proposed facilities covers tribal lands; (3)
the applicant proposed a first (Priority (1)) or second (Priority (2))
aural (reception) service to more than a de minimis population, or
proposed a first local transmission service (Priority (3)) at the
proposed community of license; and (4) the proposed community of
license is located on tribal lands. The Commission further proposed
that such a Tribal Priority rank between the current Priority (1) and
co-equal Priorities (2) and (3), that is, the Tribal Priority would not
take precedence over a proposal to provide first reception service to a
greater than de minimis population, but would take precedence over a
proposal to provide second local reception service or first local
transmission service. The proposed Tribal Priority would apply only at
the allotment stage of the commercial FM licensing procedures; as part
of the threshold Section 307(b) analysis with respect to commercial or
NCE AM applications filed during an AM filing window; and as the first
part of the fair distribution analysis of applications filed in an NCE
FM filing window, before application of the ``first or second reserved
channel NCE service'' criterion set forth in 47 CFR 73.7002(b). NCE
applicants also would be required to meet all NCE eligibility and
licensing requirements (47 CFR 73.503 and 73.561). Certain ``holding
period'' restrictions, commencing with the award of a construction
permit until the completion of four years of on-air operation, would
apply to any station or allotment awarded pursuant to the Tribal
Priority. In the case of an AM or NCE FM construction permit awarded
pursuant to a Tribal Priority, the permittee/licensee would be
prohibited during this period from making any change in ownership that
would lower tribal ownership below the required threshold, changing the
station's community of license, or implementing a facility modification
that would cause the principal community contour to cover less than 50
percent of tribal lands. In the case of a commercial FM allotment, the
restriction would apply only to any proposed change of community of
license or technical change as described in the preceding sentence.
However, even a non-tribal owner that is awarded a permit would still
be required to provide broadcast service primarily to tribal lands for
four years.
Based on its examination of the record in this proceeding, the
Commission adopts a Section 307(b) priority for Tribes or tribal
consortia, and entities majority owned or controlled by Tribes,
proposing service to tribal lands as proposed in the Rural NPRM. The
Tribal Priority as adopted includes some modifications suggested by
commenters. In addition, on its own motion the Commission clarifies the
application of the Tribal Priority in commercial and NCE contexts, and
modifies ownership requirements, eliminating the priority for
individual members of Tribes or entities owned by such individuals, and
[[Page 9799]]
instead extending the Tribal Priority only to Tribes, consortia of
Tribes, and to entities that are majority owned or controlled by a
Tribe or Tribes.
The Commission finds that application of its traditional allocation
priorities has not realized Section 307(b)'s mandate to ``make such
distribution of licenses * * * among the several States and communities
as to provide a fair, efficient, and equitable distribution of radio
service'' with regard to tribal lands.\1\ Tribal governments have a
unique legal relationship with the federal government as domestic
dependent nations with inherent sovereign powers over their members and
territory. Because of their status as sovereign nations responsible
for, among other things, maintaining and sustaining their sacred
histories, languages, and traditions, tribal-owned radio stations have
a vital role to play in serving the needs and interests of their local
communities, yet only 41 radio stations currently are licensed to
federally-recognized Indian Tribes or affiliated groups. The Commission
concludes that the establishment of an allocation priority for the
provision of radio service to tribal lands by Indian tribal government-
owned stations will advance its Section 307(b) goals and serve the
public interest by enabling Indian tribal governments to provide radio
service tailored to the needs and interests of their local communities
that they are uniquely capable of providing. The Commission also finds
that the Tribal Priority will advance the Commission's longstanding
commitment, in accordance with the federal trust relationship, to
ensure, through its regulations and policy initiatives, that Indian
Tribes have adequate access to communications services. The new Tribal
Priority will promote Tribes' sovereign rights by enabling them to
provide vital radio services to their communities. Further, the
Commission concludes that the establishment of a Tribal Priority will
promote the policies and purposes of the Communications Act favoring
diversity of media voices, and strengthening the diverse and robust
marketplace of ideas that is essential to our democracy.
---------------------------------------------------------------------------
\1\ As used here, ``tribal lands'' means both ``reservations''
and ``near reservation'' lands. ``Reservations'' is defined as any
federally recognized Indian tribe's reservation, pueblo or colony,
including former reservations in Oklahoma, Alaska Native regions
established pursuant to the Alaska Native Claims Settlements Act (85
Stat. 688), and Indian allotments. 47 CFR 54.400(e). ``Near
reservation'' is defined as ``those areas or communities adjacent or
contiguous to reservations which are designated by the Department of
Interior's Commission of Indian Affairs upon recommendation of the
Local Bureau of Indian Affairs Superintendent, which recommendation
shall be based upon consultation with the tribal governing body of
those reservations, as locales appropriate for the extension of
financial assistance and/or social services on the basis of such
general criteria as: Number of Indian people native to the
reservation residing in the area; a written designation by the
tribal governing body that members of their tribe and family members
who are Indian residing in the area, are socially, culturally and
economically affiliated with their tribe and reservation;
geographical proximity of the area to the reservation and
administrative feasibility of providing an adequate level of
services to the area.'' Id. Thus, ``tribal lands'' includes American
Indian Reservations and Trust Lands, Tribal Jurisdiction Statistical
Areas, Tribal Designated Statistical Areas, Hawaiian Homelands, and
Alaska Native Village Statistical Areas, as well as the communities
situated on such lands.
---------------------------------------------------------------------------
In response to the Commission's query regarding the
constitutionality of the Tribal Priority, Native Public Media and the
National Congress of American Indians (NPM/NCAI) concluded that the
Tribal Priority would not trigger the strict scrutiny analysis of the
case of Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), but
rather a rational basis standard of review. This is because, as stated
in the Supreme Court case of Morton v. Mancari, 417 U.S. 535 (1974),
the proposed benefit would be granted to Tribes and their members not
as a discrete racial group, but, rather, as members of quasi-sovereign
tribal entities whose lives and activities are governed in a unique
fashion. The Commission agrees that the priority established herein for
the benefit of federally recognized Tribes is not constitutionally
suspect because it is based on the unique legal status of Indian Tribes
under Federal law. Accordingly, the Commission believes that the Tribal
Priority is consistent with the Equal Protection Clause of the Fifth
Amendment to the United States Constitution.
As proposed, the Tribal Priority also tied the application
preference to the needs of tribal communities by requiring that, to
qualify for the priority, commercial applicants must propose either a
first or second aural service, or a first local transmission service at
a community located on tribal lands. The existence of a non-tribal
commercial station or stations at a community located on tribal lands
should not preclude the establishment of a first local transmission
service owned by a Tribe or Tribes. Thus, the Commission modifies the
service criterion for the Tribal Priority to require that a qualifying
commercial applicant propose first or second aural (reception) service,
or a first local tribal-owned transmission service at the proposed
community. Thus, a commercial tribal-owned applicant may qualify for a
Tribal Priority, notwithstanding the fact that a tribal-owned NCE
station is licensed at the same community. As the Commission proposed
in the Rural NPRM, however, the Tribal Priority will not take
precedence over a bona fide proposal to provide first reception service
to a significant population.
The Commission makes certain modifications to the Tribal Priority
suggested by commenters. First, the Commission will allow assignments
or transfers within the four-year holding period provided that the
assignee/transferee also qualifies for the Tribal Priority in all
respects. Second, the Commission will permit gradual changes in the
governing board of an NCE permittee or licensee during the four-year
holding period, as is the case with other NCE holding period
restrictions, as long as the majority tribal control threshold
(discussed below) is maintained. Third, the Commission finds that the
goals underlying the Tribal Priority are not undermined by allowing
Tribes to claim the Tribal Priority for both commercial and NCE
stations in the same community. A tribal-owned NCE applicant may
qualify for a Tribal Priority, notwithstanding the fact that a tribal-
owned commercial station is licensed to the same community (in the same
way that the existence of a tribal-owned NCE station does not preclude
use of the priority by a commercial applicant, as discussed above). The
Commission thus modifies the third prong of the test for tribal-owned
NCE applicants to state that, to qualify for the Tribal Priority, a
tribal applicant seeking NCE facilities will promote Section 307(b)
goals by meeting the tribal lands 50 percent signal coverage and
community of license requirements, and also by demonstrating that it
will provide the first tribal-owned NCE transmission service at the
proposed community of license. If a tribal NCE applicant meets these
criteria, it will not be compared to other mutually exclusive
applicants on a fair distribution basis, but will be the tentative
selectee. As is the case with commercial applicants, the Tribal
Priority for an NCE applicant will not take precedence over a bona fide
proposal to provide first aural reception service to a significant
population. If two or more mutually exclusive proposals from tribal NCE
applicants qualify for a Tribal Priority, proposing first local tribal-
owned NCE service at the same community, the tentative selectee will be
the applicant proposing service to the greatest population on tribal
lands. The Commission will not
[[Page 9800]]
require the 5,000-person population differential that exists in the
current NCE analysis, but adds the ``on tribal lands'' requirement so
as to award the permit to the applicant most successfully meeting the
Tribal Priority's goal of providing service to underserved tribal
communities that meets their unique cultural needs. Moreover, the
Commission will make this comparison even if the mutually exclusive
tribal applicants propose first local NCE service at different
communities, unlike the usual Priority (3) analysis, under which the
most populous community receives a dispositive Section 307(b)
preference. The goals of the Tribal Priority are better served by
selecting a smaller community that provides greater reception service
than by choosing a more remote, but slightly larger, community. Thus,
the foregoing comparison will be applied between mutually exclusive NCE
applicants claiming the Tribal Priority, whether they propose the same
or different communities of license. For the same reason, mutually
exclusive applicants claiming the Tribal Priority for commercial
facilities, and proposing first local transmission service at the same
community or at different communities, will be compared based on
service to the greatest population on tribal lands.
The Commission also modifies the Tribal Priority on its own motion.
Upon its consideration of the Rural NPRM, and review of pertinent
federal law, the Commission is no longer convinced that extending the
Tribal Priority to individual members of Tribes, or entities owned by
individuals without ownership by the Tribes themselves, advances the
Commission's interest in helping promote tribal self-sufficiency and
economic development, and endeavoring to ensure that Tribes and tribal
communities have adequate access to communications services. It is well
established that the Commission's trust relationship is with the Tribes
and tribal governments themselves, rather than individual members of
Tribes. As an independent federal agency, the Commission looks to the
tribal governments, rather than to individual members of Tribes, to
determine communications policies that best serve the unique needs of
their respective communities, and fulfill the needs of all tribal
citizens. Individual members of tribes are not necessarily bound to
take such factors into account. By limiting the Tribal Priority to
Tribes themselves, the Commission not only furthers the legitimate
governmental objective of preserving Native American culture, but also
promotes the federal government's interest in furthering tribal self-
government. Thus, the Commission concludes that the Tribal Priority
should extend only to (1) Tribes; (2) tribal consortia; or (3) entities
that are 51 percent or more owned or controlled by a Tribe or Tribes.
The Commission's general attribution rules (found in 47 CFR 73.3555 and
Notes 1 and 2 to that rule) shall determine the ownership or control of
any such qualifying entities. Qualifying Tribes or tribal entities must
be those at least a portion of whose tribal lands lie within the
proposed station's principal community contour. The principal community
contour must still cover at least 50 percent of tribal lands (subject
to the provisos proposed in the Rural NPRM, including those on
``checkerboarded'' tribal lands), but they need not all be the same
Tribe's lands. Tribes whose lands are not covered by the proposed
facility may invest or sit on controlling boards, but their investments
or board membership will not count toward the 51 percent threshold.
The Commission therefore adopts the Tribal Priority as proposed in
the Rural NPRM with the following modifications: (1) It will allow
assignments or transfers of permits or licenses obtained using the
Tribal Priority during the four-year holding period, provided that the
assignee/transferee also qualifies for the Tribal priority in all
respects; (2) with regard to NCE permittees or licensees who obtained
their authorization using the Tribal Priority, it will permit gradual
changes in the governing board during the four-year holding period, as
long as the 51 percent tribal control threshold is maintained; (3)
eligibility to claim the Tribal Priority is limited to Tribes, tribal
consortia, or entities 51 percent or more owned or controlled by a
Tribe or Tribes; (4) with regard to entities 51 percent or more owned
or controlled by Tribes, the 51 or greater percent need not consist of
a single Tribe, but the qualifying entity must be 51 percent or more
owned or controlled by Tribes at least a portion of whose tribal lands
lie within the facility's principal community contour, as defined in
the Commission's Rules; (5) the requirement of principal community
coverage of 50 percent or more of tribal lands does not require that
those lands belong to the same Tribe; (6) to qualify for the priority,
a tribal commercial applicant must propose first or second aural
(reception) service or first local commercial tribal-owned transmission
service at the proposed community of license; and (7) to qualify for
the priority, a tribal NCE applicant must propose a first local NCE
tribal-owned transmission service at the proposed community of license.
In the Rural NPRM, the Commission stated that when a mutually
exclusive AM auction filing window applicant receives a dispositive
preference under Section 307(b), it should not be allowed to downgrade
that proposal to serve a smaller population, or otherwise negate the
factors that led to the award of the dispositive preference, so as not
to encourage ``gaming'' of the Section 307(b) process. The Commission
tentatively concluded that AM licensees or permittees receiving Section
307(b) preferences should be required, for a period of four years, to
provide service substantially as proposed in their short-form tech box
submissions. The Commission adopts a modified version of its proposal
to limit the downgrading of proposed AM facilities that receive a
dispositive Section 307(b) preference, recognizing that a certain level
of flexibility in implementing AM proposals will help expedite the
commencement of new service and reduce the possibility of unbuildable
construction permits. Thus, to the extent underserved populations or
service totals are relevant to a Section 307(b) analysis, the
Commission adopts the proposal as follows: an AM licensee or permittee
receiving a dispositive Section 307(b) preference may modify its
facilities so long as it continues to provide the same priority service
to substantially the same number of persons who would have received
such service under the initial proposal, even if the population is not
the same population that would have received service under the initial
proposal. As used here, ``substantially'' means that any proposed
modification must not result in a decrease of more than 20 percent of
any population figure that was a material factor in obtaining the
dispositive Section 307(b) preference. For example, if an AM licensee
or permittee receives a dispositive Priority (4) preference for
proposing to provide a third aural service to a population of 500
persons and service to an overall population of 100,000, it may not
file an FCC Form 301 application that would provide a third aural
service to fewer than 400 persons or service to an overall population
of less than 80,000. The same analysis applies to any party that
receives a dispositive Priority (1) or Priority (2) preference. In some
cases this may result in a reduction of service below that presented by
a competing proposal in the Section 307(b) analysis, but there is no
guarantee that the
[[Page 9801]]
competing proposal could have been effectuated as proposed in such
cases. Additionally, a licensee or permittee that has received a
dispositive preference under Priority (3) will be prohibited from
changing its community of license. These restrictions will be imposed
for a period of four years of on-air operations, consistent with
Commission rules governing NCE FM stations. Construction permits and
licenses issued to these parties will contain conditions delineating
these restrictions.
In the Rural NPRM, the Commission observed that its current auction
processing rules limit technical review of basic engineering data filed
with AM short-form applications only to the extent necessary to
determine the mutually exclusive groups of applications. Originally
designed to conserve staff resources and expedite auction processing,
this practice has contributed to the filing of patently defective
applications, potentially undermining the accuracy and reliability of
mutual exclusivity and Section 307(b) determinations, and frustrate the
staff's ability to manage the window filing process efficiently. Such
defective applications may preclude the filing of meritorious
modification applications by existing facilities, which must protect
the prior-filed defective applications. In the Rural NPRM the
Commission tentatively concluded that 47 CFR 73.3571(h)(1)(ii) should
be modified to require that applicants in future AM broadcast auctions
must, at the time of filing, meet the following basic technical
eligibility criteria: community of license coverage (day and night);
and protection of existing AM facilities and prior-filed proposed AM
facilities (daytime and nighttime). It also tentatively concluded that
the rules should be modified to prohibit the amendment of applications
that, at time of filing, are technically ineligible to proceed with
auction processing, and prohibit applicants that propose such
technically ineligible applications from participating in the auction
process. This would preclude attempts to amend or correct data
submitted in Form 175 or the tech box, including proposals to change
community of license before an applicant has been awarded a
construction permit. The Commission adopts the proposed rule changes
set forth in the Rural NPRM. To alleviate concerns raised by some
commenters, the Commission will provide applicants with a one-time
opportunity to file a curative amendment to its short-form application.
Specifically, if the staff review shows that an application does not
meet one or more of the eligibility criteria, it will be deemed
``technically ineligible for filing'' and will be included on a Public
Notice (Technically Ineligible Notice), which will list defective
applications identified by the staff during their initial review of the
application, identify which of the defects that the applicant must
correct, and set the deadline for doing so. Only applicants whose
applications are included in the Technically Ineligible Notice may file
a curative amendment. Applicants may not modify any part of a proposal
not directly related to an identified deficiency in their curative
amendments. Applicants may only modify the AM technical parameters of
the short-form application, such as power, class (within the limits set
forth in 47 CFR 73.21), antenna site or other antenna data.
Amendments seeking to change a proposed community of license or
frequency will not be accepted. Notwithstanding this rule change, full
technical review of applications will not occur until winning bidders
file long-form applications after an auction. This opportunity to cure
is not to be considered a settlement opportunity under 47 CFR
73.5002(d). The opportunity to file a curative amendment will occur
prior to the disclosure by the Commission of any information on
applications submitted during the short-form filing window.
Notwithstanding the broadcast anti-collusion rules, which generally
apply upon the filing of a short-form application, 47 CFR 73.5002(d)
provides applicants in certain mutually exclusive groups (MX Groups) a
limited opportunity to communicate during specified settlement periods
in order to resolve conflicts by means of technical amendment or
settlement. This exception applies only to those MX Groups that include
either (1) At least one AM major modification; (2) at least one NCE
application; or (3) applications for new stations in the secondary
broadcast services. Currently, the rule neither prohibits the
Commission from accepting non-universal technical amendments or
settlement proposals--which reduce the number of applicants in a group
but do not completely resolve the mutual exclusivities of that group--
nor requires it to do so. Given the success of staff auction practice
in accepting non-universal technical amendments and settlement
proposals, the Commission adopts its proposal to codify the
permissibility of non-universal engineering solutions and settlement
proposals as proposed in the Rural NPRM, as long as this process
results in at least one singleton application that proceeds to long-
form processing. Accordingly, the Commission revises its rules to
permit non-universal technical amendments and settlement proposals that
result in at least one singleton application from an MX Group. An
applicant submitting a technical amendment pursuant to this policy is
required only to resolve all mutual exclusivities for at least one
application in the relevant MX Group, but need not resolve all
technical conflicts among all applications in that group.
The Commission observed in the Rural NPRM that the Rules currently
do not limit the number of AM Tech Box applications that may be filed
with FCC Form 175 during an AM short-form filing window. It noted that
an increasing number of applicants had availed themselves of the
opportunity to file multiple technical submissions, and questioned
whether a significant percentage of AM short-form filing window
applications were merely speculative. Accordingly, the Commission
sought comment on whether (1) to delegate to the Bureaus authority to
limit, in an AM short-form filing window, the number of tech box
submissions that an applicant could file with its Form 175 and, if so,
the appropriate limitation on this delegation; and (2) to apply
Commission attribution standards to determine the number of filings
submitted by any party, to guard against the use of affiliates or even
sham entities to circumvent such a cap. The Commission finds that
delegating authority to the Bureaus to impose application caps in AM
short-form filing windows will help to prevent speculative
applications, decreasing the likelihood of mutually exclusive
applications, and in turn decreasing the likelihood of large,
technically complex, and administratively burdensome MX Groups. A cap
can also help expedite application processing and prevent abuses of
licensing procedures, and will enable the Bureaus to open AM short-form
filing windows more frequently, thereby promoting--rather than
restricting--new entrant opportunities. Accordingly, the Commission
delegates authority to the Bureaus to determine, for each AM short-form
window, whether to limit the number of AM applications that may be
filed by an applicant and, if so, the appropriate application cap based
on the particular circumstances presented by future auctions. The
Commission also delegates to the Bureaus authority to adopt attribution
standards to effectuate
[[Page 9802]]
the goals of an application cap, and to ensure compliance with this
restriction. It directs the Bureaus to provide notice and an
opportunity for comment on a cap limit and attribution standards prior
to imposing these potential filing restrictions. Any such cap limit and
attribution standards will be announced in the Public Notice
establishing the dates for the Form 175 filing window.
The Commission's Rules currently provide, without exception, that
each winning bidder in a broadcast auction must submit an appropriate
long-form application within thirty (30) days following the close of
bidding. In the Rural NPRM, the Commission observed that this
inflexible 30-day time frame has, at times, proved to be problematic,
for example, when the close of an auction causes the long-form
application filing deadline to fall during the December holiday season,
inconveniencing applicants and their consultants. The Commission
therefore modifies 47 CFR 73.5005(a) as set forth in the Rural NPRM, to
delegate authority to the Bureaus to extend the filing deadline for the
post-auction submission of long-form applications.
To promote the objectives of 47 U.S.C. 309(j) and further its long-
standing commitment to broadcast facility ownership diversity, the
Commission adopted a tiered new entrant bidding credit (NEBC) for
broadcast auction applicants with no, or very few, other media
interests. To meet the statutory obligation to prevent unjust
enrichment, and to ensure that the NEBC would aid eligible individuals
and entities to participate in broadcast auctions, the Commission
adopted rules requiring, under certain circumstances, reimbursement of
bidding credits used to obtain broadcast licenses. In the Rural NPRM,
the Commission proposed to clarify certain issues concerning the unjust
enrichment provisions of the NEBC that had been raised during previous
broadcast auctions. First, under 47 CFR 73.5007(b), a winning bidder is
not eligible for the NEBC if it, or any party with an attributable
interest in the winning bidder, has an attributable interest in any
existing media facility in the ``same area'' as the proposed new
facility, that is, if specified service contours of the two facilities
overlap. In the FM service, in the pre-auction Form 175 application, an
applicant may submit a set of ``preferred site coordinates'' as an
alternative to the reference coordinates for the vacant FM allotment
upon which it intends to bid. The preferred site coordinates specified
by prospective auction participants would be entered into the
Commission's database and protected from subsequent filings. In the
Rural NPRM, the Commission sought to clarify that, for purposes of
defining the ``same area'' restriction for the NEBC, the contour of the
proposed FM facility would be identified by the maximum class
facilities at the FM allotment site, so that applicants could not
attempt to avoid the overlap of contours which defines ``same area,''
and thereby qualify for the bidding credit, by specifying preferred
site coordinates in their Form 175 application. The Commission adopts
this proposal, which will provide certainty to applicants and help
safeguard the diversity and competition goals on which the NEBC is
based by eliminating potential applicant manipulation of our ``new
entrant'' standards. The Commission also clarifies, under 47 CFR
73.5007(b)(3), that it will base this proposed FM facility contour
standard on an assumption of uniform terrain, which results in a
perfectly circular standard 70 dBu contour.
Second, to prevent unjust enrichment by parties that acquire
permits through the use of a NEBC, 47 CFR 73.5007(c) requires
reimbursement to the Commission of all or part of the credit upon a
subsequent assignment or transfer, if the proposed assignee or
transferee is not eligible for the same percentage of bidding credit.
The rule is routinely applied to ``long form'' assignment or transfer
of control applications filed on FCC Forms 314 and 315, but does not
distinguish between pro forma and non-pro forma assignments or
transfers of control. In the Rural NPRM the Commission invited comment
as to whether the unjust enrichment analysis should also apply to
voluntary or involuntary pro forma assignments or transfers filed on
Form 316. The Commission tentatively concluded that the unjust
enrichment provisions should apply to pro forma assignment and transfer
of control applications, thus eliminating any applicant confusion on
the issue. The Commission finds it appropriate generally to apply the
unjust enrichment provisions contained in 47 CFR 73.5007(c) to pro
forma applications to assign or transfer broadcast licenses and
permits, pursuant to 47 CFR 73.3540(f), in order to help preserve the
integrity of the designated entity measures adopted in prior auction
orders. A pro forma assignment or transfer can include new parties,
including parties with attributable interest holdings that would
nullify or diminish the eligibility of the assignee or transferee for
the bidding credit. This is especially the case in transactions
eligible for pro forma treatment involving corporate reorganizations
where a new attributable interest holder with other media interests is
added. Moreover, such an unjust enrichment analysis allows for
consistency in the application of the rule. It further ensures that
applicants do not use the summary pro forma assignment and transfer
procedures to circumvent the unjust enrichment requirements. Thus, the
Commission adopts the unjust enrichment analysis recommended in the
Rural NPRM, but will only apply the unjust enrichment analysis to
voluntary pro forma transactions, and not to involuntary pro forma
transactions. Notwithstanding this decision, it will continue to
address, on a case-by-case basis, any conduct engaged in by auction
participants with the evident intention of manipulating the eligibility
standards for, or frustrating the purpose of, the NEBC.
As described in the Rural NPRM, applicants to participate in
broadcast auctions are required to establish their qualifications for
the NEBC on their short-form applications (FCC Form 175), Application
to Participate in an FCC Auction, which is the sole opportunity for the
applicant to claim bidding credit eligibility. Applicants meeting the
eligibility criteria set forth in 47 CFR 73.5007 qualify for a bidding
credit representing the amount by which a winning bidder's gross bid is
discounted. The size of a NEBC depends on the number of ownership
interests in other media of mass communications that are attributable
to the bidder-entity and its attributable interest-holders. In
accordance with 47 CFR 73.5008(c), when determining an applicant's
eligibility for the NEBC, the interests of the applicant, and of any
individuals or entities with an attributable interest in the applicant,
in other media of mass communications are considered. An auction
applicant's attributable interests, and therefore its maximum NEBC
eligibility, are determined as of the Form 175 filing deadline.
Consequently, the Commission has consistently held, and has announced
in auction Public Notices, that bidders cannot qualify for a bidding
credit, nor increase the size of a previously claimed bidding credit,
based upon ownership or positional changes occurring after the Form 175
filing deadline. Nonetheless, as noted in the Rural NPRM, certain
parties have argued that their NEBC eligibility is maintained or
``frozen'' as of the Form 175 application filing. Therefore, to prevent
applicant confusion, the Commission proposed to
[[Page 9803]]
amend 47 CFR 73.5007(a) to codify the current policy, and state
explicitly that the NEBC eligibility set forth in an applicant's Form
175 application is the maximum NEBC eligibility for that auction, and
that such bidding credit may be reduced or lost upon post-filing
changes. The Commission adopts this change, and modifies 47 CFR
73.5007(a) to state unequivocally that: (1) An applicant must specify
its eligibility for the NEBC in its Form 175 application; (2) the NEBC
specified in an applicant's Form 175 establishes that applicant's
maximum NEBC eligibility for that auction; (3) any post-Form 175 filing
(post-filing) change in the applicant's circumstances underlying its
NEBC eligibility claim, or that of any attributable interest-holder in
the applicant, must be reported immediately to the Commission, and no
later than five business days after the change occurs; and (4) any such
post-filing change may cause a reduction or elimination of the NEBC
claimed in the applicant's Form 175 application, if the change would
cause the applicant not to qualify for the originally claimed NEBC
under the eligibility provisions of 47 CFR 73.5007, and the change
occurred prior to grant of the construction permit to the applicant.
Under no circumstances will a post-filing change increase an
applicant's NEBC eligibility for that auction. The Commission also
emphasizes that all of ways in which interests are attributed to
individuals and entities (as set forth in 47 CFR 73.3555 and Note 2 to
that Section) will be considered to affect NEBC eligibility when they
occur after the Form 175 filing deadline.
By auction Public Notices, bidders are also instructed that any
change that results in the reduction or loss of the NEBC originally
claimed on the Form 175 application, must be reported immediately, and
no later than five business days after the change occurs. In the Rural
NPRM the Commission proposed to adjust the standard reporting timeframe
and codify this immediate reporting requirement. In keeping with the
rule amendments it recently adopted in Procedural Amendments to
Commission Part 1 Competitive Bidding Rules, Order, FCC 10-4 at 5 (rel.
Jan. 7, 2010), the Commission codifies the practice that any changes
affecting NEBC eligibility must be reported immediately, and in any
event no later than five business days after the change occurs, and
amends 47 CFR 73.5007(a) accordingly. The Commission will continue to
make final determinations regarding an applicant's eligibility to hold
a construction permit, including eligibility for and amount of the
NEBC, when it is ready to grant the post-auction long form construction
permit application.
Final Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 601-612,
an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in
the Rural NPRM. The Commission sought written public comment on the
proposals in the Rural NPRM, including comment on the IRFA. The
Commission received no comments on the IRFA. This present Final
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
Need for, and Objectives of, the Report and Order. This First R&O
adopts rule changes and procedures to codify or clarify certain
allotment, assignment, auction, and technical procedures. The rules
adopted by this First R&O also create a new Tribal Priority to assist
Tribes or tribal consortia, or entities controlled by Tribes, in
obtaining radio broadcast stations designed to serve their tribal
communities.
We turn first to the Tribal Priority. The Commission noted the
marked disparity in the Native American and Alaskan Native population
of the United States, compared to the number of radio stations licensed
to, or providing significant signal coverage to, lands occupied by
members of Tribes. Tribal lands comprise 55.7 million acres, or 2.3
percent of the area of the United States (exclusive of the State of
Alaska). Roughly one-third of the 4.1 million American Indian and
Alaska Native population of the United States lives in tribal lands,
yet only 41 radio stations currently are licensed to Tribes or
affiliated groups, representing less than one-third of one percent of
the more than 14,000 radio stations in the United States. This service
disparity belies the goal of fair distribution of radio service
mandated by Section 307(b) of the Communications Act of 1934, as
amended, as well as the Commission's commitment to promoting diversity
of station ownership and programming. The Commission also noted its
historic trust relationship with Tribes, and the federal policy goals
of assisting Tribes in promoting tribal culture and self-government.
To remedy these problems, the Commission concluded that Tribes
seeking new radio stations to serve their citizens should receive a
priority in the award of allotments and construction permits. To
qualify for the Tribal Priority, an applicant must demonstrate that it
meets all of the following eligibility criteria: (1) The applicant is
either a federally recognized Tribe or tribal consortium, or an entity
51 percent or more of which is owned or controlled by a Tribe or
Tribes, at least part of whose tribal lands (as defined in note 30 of
the Rural NPRM) are covered by the principal community contour of the
proposed facility. Although the 51 or greater percent need not consist
of a single Tribe, the qualifying entity must be 51 percent or more
owned or controlled by Tribes at least a portion of whose tribal lands
lie within the facility's principal community contour; (2) at least 50
percent of the daytime principal community contour of the proposed
facilities covers tribal lands; (3) the proposed community of license
must be located on tribal lands; and (4) the applicant proposes first
aural, second aural, or first local tribal-owned transmission service
at the proposed community of license, in the case of proposed
commercial facilities, or at least first local tribal-owned
noncommercial educational transmission service, in the case of proposed
NCE facilities. In the event that two or more applicants claiming the
Tribal Priority are mutually exclusive, the one providing the highest
level of service to the greatest population will prevail. The Tribal
Priority ranks between the current Priority (1) and co-equal Priorities
(2) and (3) in the case of commercial applicants. Thus, the Tribal
Priority will not take precedence over a proposal to provide first
reception service to a greater than de minimis population, but will
take precedence over the provision of second local reception service,
or over a proposal for first local non-tribal owned transmission
service. Likewise, an NCE applicant qualifying for the Tribal Priority
will take precedence over all mutually exclusive applications, except
those that propose bona fide first reception service to a greater than
de minimis population.
The Tribal Priority will be applied only at the allotment stage of
the commercial FM licensing procedures, to commercial AM applications
filed during an AM filing window, as part of the threshold Section
307(b) analysis, and to applications filed in an NCE FM filing window
as the first part of the fair distribution analysis. NCE applicants
must also meet all NCE eligibility and licensing requirements. Holding
period restrictions, commencing with the award of a construction permit
until the completion of four years of on-air operation, will apply to
any authorization or allotment awarded pursuant to the Tribal Priority.
In the
[[Page 9804]]
case of an AM or NCE FM authorization awarded to a tribal applicant,
the permittee/licensee will be prohibited during this period from
making any change that would lower tribal ownership below the 51
percent threshold, a change of community of license, or a technical
change that would cause less than 50 percent of the principal community
contour to cover tribal lands. However, gradual changes in the
composition of an NCE board that do not change the nature of the
organization or break continuity of control will not violate the four-
year holding period restrictions. In the case of a commercial FM
allotment, the restrictions will apply only to any proposed change of
community of license or technical change as described above. The winner
at auction of an FM allotment added to the Table of Allotments under a
Tribal Priority, whether Tribal or non-Tribal, must still provide
broadcast service primarily to tribal lands for the entire four-year
holding period.
Additionally, in the First R&O the Commission requires that
applicants receiving dispositive preferences for AM facilities under
section 307(b) of the Communications Act of 1934, as amended, be
prohibited from substantially downgrading the facilities on which the
Section 307(b) award was based. This prohibition was designed to
provide basic fairness in the award of a dispositive preference to one
proposal in a group of several mutually exclusive proposals. That is,
it would be unfair to allow one member of a mutually exclusive group to
be awarded a construction permit without auction, based on the superior
population coverage in its proposal, only then to allow it to downgrade
its proposal to the point where it would no longer be significantly
different from the other mutually exclusive proposals.
The First R&O also establishes procedures by which applicants in AM
auction filing windows must submit technical proposals that meet
minimum technical eligibility criteria. The Commission noted the number
of incomplete or technically defective proposals filed in AM auction
filing windows. Such proposals undermine the accuracy and reliability
of our mutual exclusivity and Section 307(b) determinations, and
frustrate the staff's ability to manage the window filing process
efficiently. Moreover, such defective applications preclude the filing
of meritorious modification applications by existing facilities, which
must protect the prior-filed defective applications. In short, allowing
the filing of technically defective proposals places a strain on the
Commission's resources and, consequently, delays consideration of
meritorious proposals and provision of new service to the public.
Likewise, the First R&O contains two other proposals designed to
streamline the AM auction process and speed new service to the public:
The grant of delegated authority to the Media Bureau to allow AM
auction filing window applicants to submit settlements or technical
resolutions that do not resolve all the mutual exclusivities in a
mutually exclusive group, as long as the proposal results in one
``singleton'' application from the group; and the grant of delegated
authority to the Media Bureau and Wireless Telecommunications Bureau to
cap the number of AM applications that may be filed during a filing
window. The Commission also grants the Media and Wireless
Telecommunications Bureau's delegated authority to extend the deadline
for filing post-auction long-form applications, as appropriate, thus
providing successful auction applicants with greater flexibility in
preparing such applications.
Finally, in the First R&O the Commission clarifies certain aspects
of the rules governing the new entrant bidding credit (NEBC): That for
purposes of determining whether an auctioned allotment is in the ``same
area'' as an applicant's other media properties, we will use the
maximum class facilities at the allotment site, rather than applicant
specified-preferred coordinates; that unjust enrichment payments by
assignors who used the NEBC in paying for their permit apply even to
pro forma assignments or transfers filed on FCC Form 316; and that an
applicant's maximum NEBC eligibility is established as of the deadline
for filing short-form applications, but that the eligibility may be
lost or diminished based on post-filing changes in the applicant's
situation. In clarifying these rules and policies, the Commission will
provide greater certainty to applicants, reducing any confusion and,
therefore, burden when preparing and filing auction applications.
Summary of Significant Issues Raised by Public Comments in Response
to the IRFA. There were no comments filed that specifically addressed
the rules and policies proposed in the IRFA.
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 rules adopted herein.
The RFA generally defines the term ``small entity'' as having the same
meaning as the terms ``small business,'' ``small organization,'' and
``small government 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).
The subject rules and policies potentially will apply to all AM and
FM radio broadcasting licensees and potential licensees. 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 that are separate
establishments and are primarily engaged in producing radio program
material are classified under another NAICS number. The SBA has
established a small business size standard for this category, which is:
Firms having $7 million or less in annual receipts (13 CFR 121.201,
NAICS code 515112 (updated for inflation in 2008)). According to BIA
Advisory Services, L.L.C., MEDIA Access Pro Database on March 17, 2009,
10,884 (95%) of 11,404 commercial radio stations have revenue of $6
million or less. Therefore, the majority of such entities are small
entities. We note, however, that many radio stations are affiliated
with much larger corporations having much higher revenue. Our estimate,
therefore, likely overstates the number of small entities that might be
affected by any ultimate changes to the rules and forms.
Description of Projected Reporting, Recordkeeping and other
Compliance Requirements. As described, certain rules and procedures
will change, although the changes will not result in substantial
increases in burdens on applicants. Questions will be added to FCC
Forms 340, 314, and 315 to establish Section 307(b) eligibility for the
Tribal Priority or compliance with holding period restrictions in the
event of an assignment or transfer. Questions will also be added to FCC
Form 316 based on the Commission's conclusion that the new entrant
bidding credit unjust enrichment rules apply to pro forma assignment
and transfer
[[Page 9805]]
applications. These are largely self-identification questions or
questions regarding the duration of on-air operation, requiring minimal
calculation. In certain cases (AM auction filing window applications
and FM allotment proceedings), Section 307(b) information is already
required, thus the information needed to be collected from applicants
claiming the Tribal Priority is of the same character as that already
collected, resulting in little or no increase in burden on such
applicants. The remaining procedural changes in the First R&O are
either changes in Commission procedures, requiring no input from
applicants, or more stringent regulation of existing requirements. For
example, AM auction filing window applicants need not submit more
technical information than is already collected; the procedural change
merely adds consequences when that information does not meet certain
already extant technical standards.
Steps Taken To Minimize Significant Impact of 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 (5
U.S.C. 603(c)(1)-(c)(4)).
The Tribal Priority adopted in the First R&O was modified from the
original proposal specified in the Rural NPRM, based on comments in the
record and on the Commission's evaluation of the legal ramifications of
the priority, especially with regard to the Commission's government-to-
government relationship with Tribes. As adopted, the Tribal Priority
can disadvantage certain applicants whose applications or proposals are
mutually exclusive with those of applicants qualifying for the Tribal
Priority. However, after due consideration, the Commission believes
that the priority is necessary to redress an imbalance in the number of
Native American broadcasters vis-[agrave]-vis native populations and
lands, and to further the Commission's interests in promoting diversity
of ownership and programming, in assisting Tribes to promulgate tribal
language and culture, and in helping to promote self-government by
Tribes. Thus, the Commission has determined that the Tribal Priority as
adopted is the least burdensome method to achieve its policy goals,
consonant with constitutional and other legal requirements.
With regard to the adopted rule limiting the downgrade of AM
facilities awarded based on service proposals, initially the Commission
proposed a standard allowing no reduction in population served, much as
is done with NCE selectees. However, after consideration, and
recognizing the technical complexity of the AM service and the burden
such a rigid standard would impose on applicants, most of whom are
small businesses, the Commission instead adopted the more flexible
``equivalency'' standard, which allows a variance of up to 20 percent
of the population initially proposed to be served.
Likewise, in adopting the rule requiring that AM technical
proposals be technically eligible for auction processing at time of
filing, the Commission considered seeking further technical information
from applicants. Moreover, as proposed the rule would not have allowed
curative amendments. However, upon consideration of the record, the
Commission opted not to require additional technical information from
applicants, declining to increase the burden on such parties, and also
mitigated the firm requirements of the proposed rule by allowing one
opportunity for curative amendments.
The remaining proposals adopted in the First R&O fall into one of
two categories: Grant of delegated authority to modify certain rules on
an as-needed basis, or codification or clarification of existing
policies and rules. In the first category, the new authority granted
the Commission to place a ``cap'' on AM filing window applications may
deprive certain applicants of the ability to file all the applications
they wish. However, application caps will deter speculation,
eliminating superfluous applications and enabling faster processing of
applications overall. Caps will cause applicants to focus on those
facilities that they value most, and in conjunction with the
requirement of technically eligible applications will encourage the
filing of better and more quickly grantable applications, streamlining
the AM auction and award process. Given that, in the most recent AM
auction filing window, less than six percent of the applicants filed
ten or more applications (accounting for approximately 40 percent of
all technical proposals filed), a reasonable application cap will
burden only that small percentage of potential applicants whose
multiple applications take up disproportionate amounts of Commission
time and resources, slowing down the auction process and impeding the
authorization of new AM service to the public. The grant of delegated
authority to the Media and Wireless Telecommunications Bureaus to
extend post-auction filing deadlines will only benefit applicants: It
gives the Bureaus the flexibility to provide additional time for
parties that need it, while those who wish their applications to be
considered sooner may file when they like. In these cases, because of
the significant benefits to regulated parties and minimal to no
burdens, it was not deemed necessary to consider other options.
With regard to the adopted codifications and clarifications of
existing rules, these also present no burden on applicants requiring
consideration of less burdensome alternatives. The codification of the
policy, used in prior auctions, allowing non-universal settlements that
result in at least one singleton application from an MX Group, speeds
auctions by simplifying MX groups, and expedites provision of new
service by the singleton applicants. Similarly, the clarification of
policies regarding new entrant bidding credit eligibility and the new
entrant bidding credit unjust enrichment rule does not place any
additional burdens on applicants or other parties. Rather, clarifying
these policies will benefit applicants, permittees, and licensees by
adding certainty to auction and post-auction procedures. As such,
consideration of less burdensome alternatives was unnecessary.
Report to Congress. The Commission will send a copy of the First
R&O, including this FRFA, in a report to be sent to Congress and the
Government Accountability Office pursuant to the Small Business
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801(a)(1)(A)). In
addition, the Commission will send a copy of the First R&O, including
the FRFA, to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the First R&O and FRFA (or summaries thereof)
will also be published in the Federal Register (See 5 U.S.C. 604(b)).
Ordering Clauses
Accordingly, it is ordered, pursuant to the authority contained in
Sections 1, 2, 4(i), 303, 307, and 309(j) of the Communications Act of
1934, 47 U.S.C. 151, 152, 154(i), 303, 307, and 309(j),
[[Page 9806]]
that this First Report and Order is adopted.
It is further ordered that, pursuant to the authority found in
Sections 4(i), 303(r), and 628 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), and 548, the Commission's Rules are
hereby amended as set forth in Appendix E to the First R&O.
It is further ordered that the rules adopted herein will become
effective 30 days after the date of publication in the Federal
Register, except for sections 73.3571(k), 73.7000, 73.7002(b), and
73.7002(c), which contain new or modified information collection
requirements that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act (PRA), and which will
become effective after the Commission publishes a notice in the Federal
Register announcing such approval and the relevant effective date.
List of Subjects in 47 CFR Part 73
Radio broadcast services.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Rule Changes
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 73 as follows:
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
0
2. Section 73.3571 is amended by revising paragraphs (h)(1)(ii) and
(h)(4)(iii), and adding new paragraph (k) to read as follows:
Sec. 73.3571 Processing of AM broadcast station applications.
* * * * *
(h) * * *
(1) * * *
(ii) Such AM applicants will be subject to the provisions of
Sec. Sec. 1.2105 and 73.5002 regarding the submission of the short-
form application, FCC Form 175, and all appropriate certifications,
information and exhibits contained therein. Applications must include
th