Policies To Promote Rural Radio Service and To Streamline Allotment and Assignment Procedures, 72237-72242 [2012-29423]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 77, Number 234 (Wednesday, December 5, 2012)]
[Rules and Regulations]
[Pages 72237-72242]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29423]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 09-52; FCC 12-127]


Policies To Promote Rural Radio Service and To Streamline 
Allotment and Assignment Procedures

AGENCY: Federal Communications Commission.

ACTION: Final rule; petitions for reconsideration and clarification.

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SUMMARY: In this document, the Commission denied four of six Petitions 
for Reconsideration, Petitions for Partial Reconsideration, and 
Petitions for Clarification of the Second Report and Order (Second R&O) 
in this proceeding, granting in part and denying in part two of the 
petitions. The Commission clarified some of the methodology to be used 
in applying the new rules and procedures in the Second R&O, in 
particular the method of counting reception services in service gain 
and loss areas, to assist applicants and allotment proponents in 
accurately applying the new rules and procedures. The Commission also 
further restricted the categories of applicants and allotment 
proponents to whom the new rules and procedures apply, finding that 
equitable considerations supported such restrictions. In addition to 
restrictions set forth in the Second R&O, the new rules will not apply 
to applications and allotment proposals filed before the new rules were 
proposed, or to those applications and proposals that have

[[Page 72238]]

already been subject to Commission decisions, but that remain pending 
due to subsequent legal challenges.

DATES: The rules discussed in the Second Order on Reconsideration 
(Order) became effective on May 6, 2011 (see 76 FR 18942 (Apr. 6, 
2011)) and on July 19, 2011 (see 76 FR 42575 (Jul. 19, 2011)). The 
Commission, in the Order, clarified some of the methods to be used in 
applying the new rules, and further limited the categories of parties 
to whom the new rules apply.

ADDRESSES: Peter Doyle or Thomas Nessinger, Federal Communications 
Commission, Media Bureau, Audio Division, 445 12th Street SW., Room 2-
B450, Washington, DC 20445.

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.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Order on Reconsideration (Order), FCC 12-127, adopted October 11, 2012, 
and released October 12, 2012. The full text of the Order is available 
for inspection and copying during regular business hours in the FCC 
Reference Center, 445 12th 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 12th 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 the FCC by email: FCC504@fcc.gov or phone: 
202-418-0530 or TTY: 202-418-0432.

Synopsis of Order

    1. In the Order, the Commission addressed six petitions for 
reconsideration, petitions for partial reconsideration, and petitions 
for clarification of certain procedures adopted in the Second R&O in 
this proceeding (76 FR 18942, April 6, 2011, FCC 11-28, 26 FCC Rcd 
2556, rel. Mar. 3, 2011). These included a number of measures designed 
to limit the use of population as the principal metric when considering 
competing proposals for new radio stations, a standard that has largely 
favored proposals located in or near large urbanized areas, rather than 
those located in less well-served rural areas and smaller communities. 
In the Second R&O, the Commission adopted procedures to limit 
dispositive preferences under 47 U.S.C. 307(b) (section 307(b)) for new 
AM construction permits, as well as new FM allotments, in already well-
served urbanized areas.
    2. The Commission also adopted procedures to forestall the movement 
of radio service from rural areas to more urban areas absent a 
compelling showing of need. Among these procedures was an urbanized 
area service presumption (UASP), under which a proposal for new or 
relocated radio service that would constitute the first local 
transmission service at a specified community is presumed to be a 
proposal to serve an entire urbanized area if the community is located 
within the urbanized area, or if the proposal would place, or could be 
modified to place, a daytime principal community signal over 50 percent 
or more of the urbanized area. The UASP can be rebutted by a compelling 
showing (1) that the specified community is truly independent of the 
urbanized area, (2) that the community has a specific need for an 
outlet for local expression separate from the urbanized area and (3) 
that the proposed station is able to provide that outlet. The basis for 
such a rebuttal showing is the longstanding test first set forth in 
Faye and Richard Tuck, Memorandum Opinion and Order, 3 FCC Rcd 5374, 
5376 (1988) (Tuck), as slightly modified in the Second R&O. The UASP 
applies, albeit in somewhat different forms, to applications for new AM 
stations, proposals for new FM allotments, and applications to change a 
station's community of license.
    3. The Commission also limited the circumstances under which a 
mutually exclusive applicant for a new AM station may receive a 
dispositive section 307(b) preference under Priority (4), other public 
interest matters, of the Commission's allotment priorities. In the 
context of proposals for new FM allotments, raw reception population 
totals will receive less weight than other legitimate service-based 
considerations, especially service to underserved populations. The UASP 
also applies to applications to change a station's community of 
license. Additionally, with regard to such applications, the Commission 
mandated greater transparency in applicants' section 307(b) showings, 
including the submission of more detailed showings demonstrating the 
populations gaining and losing radio service, and the numbers of 
services those populations receive before and after the proposed move. 
The Commission also announced it would strongly disfavor any proposed 
community of license change that would result in the net loss of third, 
fourth, or fifth reception service to more than 15 percent of the 
population in the station's current protected contour, or loss of a 
second local transmission service to a community with a population of 
7,500 or greater. With two exceptions, the Commission stated that the 
new procedures would apply to all applications or proposals pending as 
of the Second R&O's adoption date.
    4. Most of the Petitions for Reconsideration or Partial 
Reconsideration (Petitions) merely repeated points from the comments 
filed in this proceeding that were considered and rejected in the 
Second R&O. On that basis, the Commission denied the Petitions filed by 
Friendship Broadcasting, LLC; William B. Clay; M&M Broadcasters, Ltd.; 
and Educational Media Foundation and the Kent Frandsen Radio Companies. 
The Commission granted in part and denied in part the Petitions filed 
by Entravision Communications Corporation (Entravision) and Radio One, 
Inc., et al. (Radio One Parties). The Commission did address requests 
for clarification of certain issues, specifically, for clarification of 
the methodology for calculating reception service in section 307(b) 
analyses under Priority (4), other public interest matters; for 
clarification or amendment of some of the factors used to determine 
whether a community is independent of an urbanized area; and for 
clarification of the applicability of the UASP to intra-urbanized area 
station relocations. The Commission also addressed the requests of 
petitioners M&M Broadcasters, Inc. (M&M) and Entravision to exclude 
certain pending community of license change applications from the new 
policies.
    5. Although many of the arguments in the Petitions were considered 
and rejected in the Second R&O, the Commission found it to be in the 
public interest to discuss the merits of these arguments in light of 
its contrary determinations. While some petitioners argued that the new 
procedures ``ignore current marketplace realities,'' causing radio 
stations to relocate to more populous areas because there is little or 
no money to be made in rural areas, the Commission reiterated that new 
stations are assigned or allotted on a demand basis, with the economic 
decision to locate a station in a particular community resting solely 
with the applicant. To the extent that changed circumstances render it 
an economic hardship for a station to remain in its community of 
license, the new

[[Page 72239]]

procedures allow for such a showing. The Commission again rejected the 
suggestion that rural residents should simply purchase any radio 
service they desire above ``basic'' broadcast service of as few as two 
reception services, or that section 307(b) obliges it only to assign 
minimal free radio service to certain Americans, based solely on where 
they choose to live.
    6. The Radio One Parties contended that the new procedures, 
particularly the UASP, were arbitrary and capricious, based largely on 
reiterating arguments made in their comments, which were mostly 
confined to the context of community of license change applications. 
The Commission rejected the Radio One Parties' re-argument that 
``only'' 19 percent of community of license change applications would 
trigger the UASP, and thus that this level of activity is insufficient 
to warrant remedial agency action. The Commission stated that the 
number of comments in the record indicating a strong interest of many 
radio broadcasters in relocating to more populated areas reflects the 
importance of the UASP as a section 307(b) licensing policy. For the 
reasons set forth in the Second R&O, the Commission reiterated that 
allowing such migration in all cases does not comport with its 
statutory duty under section 307(b), also noting that because the UASP 
is a presumption rather than a hard-and-fast rule, a licensee seeking 
to relocate its facilities due, for example, to changed conditions in 
its current community of license may rebut the presumption. 
Additionally, the Commission rejected the Radio One Parties' argument 
that the UASP constitutes an improper attempt to assume an applicant's 
service intentions based on the fact that the population of the 
proposed community of license may constitute a very small percentage of 
the overall coverage population. The UASP was not designed to divine an 
applicant's service intent, but rather to eliminate the undue, often 
dispositive advantage that prior section 307(b) policies conferred on 
proposals to serve communities located in large urbanized areas, 
especially in the context of selecting among mutually exclusive 
applications for new AM service. This advantage was based largely on 
the fact, supported by the record, that applicants would often 
designate as the community of license a community lacking local 
transmission service but whose population constituted a small 
percentage of the total audience to be served, to the detriment of 
mutually exclusive applicants proposing service to smaller, non-
urbanized communities that might benefit more from new service.
    7. The Radio One Parties again argued that the new procedures 
constitute a return to the policies eliminated in The Suburban 
Community Policy, the Berwick Doctrine, and the De Facto Reallocation 
Policy, Report and Order, 93 F.C.C.2d 436 (1993), an argument 
considered and rejected in the Second R&O. The Commission in that 
proceeding discontinued those policies based in part on application 
processes and procedural safeguards that now no longer exist. The 
Commission in the Second R&O also noted the dissimilarities between its 
new procedures and the processes formerly used to implement the 
policies that were discontinued in Suburban Community Policy. To the 
extent that similarities exist, it is because both are grounded in 
fulfilling the Commission's section 307(b) responsibilities. The record 
in this proceeding and the Commission's recent experience with 
broadcast auctions and community of license change proposals filed as 
minor modification applications--both licensing processes that post-
date Suburban Community Policy by many years--convinced the Commission 
that the new procedures are necessary.
    8. The Commission declined the Radio One Parties' request that it 
revise the eight factors, first enumerated in the Tuck case, that are 
used to evaluate the interdependence of the community of license 
specified by the applicant with the larger metropolitan area. It did, 
however, agree that some of the factors should be accorded less weight. 
For example, while disagreeing with the Radio One Parties' claim that 
the closing or consolidation of post office facilities necessarily 
invalidates the use of the remaining ZIP code as an indicator of 
community independence, the Commission agreed that the ubiquity of ZIP 
codes gives the presence of a dedicated ZIP code little probative 
significance of itself in establishing a community's independence, and 
thus that this factor should be given little weight. While generally 
declining to revise the Tuck factors, the Commission noted that it 
would provide applicants seeking to rebut the UASP wide latitude to 
present whatever facts they deem appropriate to its evaluation. While 
such showings would be scrutinized, the Commission will be receptive to 
presentations that may in some cases provide better and more reliable 
measures of community status than those set forth in Tuck. The 
Commission further emphasized that the eight Tuck factors are merely 
potential indicators of independence or interdependence, and that the 
burden remains on the applicant to show that the presence of such 
factors provides meaningful and relevant support for an ``independent'' 
community finding. The Commission also clarified that its analysis of 
showings rebutting the UASP will place primary emphasis on the first 
two prongs of the Tuck test, namely, the degree to which the proposed 
station would provide coverage to the urbanized area, and the size and 
proximity of the proposed community of license relative to the central 
city of the urbanized area.
    9. The Radio One Parties also asked that the Commission clarify the 
methodology for measuring ``reception service'' for Priority (4) 
analyses of applications to change a station's community of license, as 
discussed in paragraph 39 of the Second R&O. Specifically, they ask, 
first, whether the contours of a non-reserved band FM station, for 
purposes of gain/loss analysis of a community of license change, should 
be calculated from the allotment coordinates at the proposed new 
community or from the transmitter coordinates specified in the actual 
proposal; second, when evaluating gain and loss areas, and in 
particular when determining the number of reception services to the 
gain and loss areas, which signal contour should be used; and third, in 
assessing reception service, whether ``potential services,'' such as 
vacant FM allotments or granted but unbuilt construction permits, 
should be counted. The Commission clarified the standards for 
evaluating reception services in the gain and loss areas for 
applications to change community of license, and thus granted the Radio 
One Petition in part.
    10. First, when determining gain and loss areas for an FM station 
changing its community of license, the contours should be calculated 
using the authorized transmitter coordinates for the current facility, 
and the transmitter coordinates specified for the proposed new or 
modified facility. This is a change from past practice, under which the 
staff used allotment coordinates rather than the transmitter 
coordinates specified in the actual proposal. That practice, however, 
was an artifact of former licensing procedures, under which all 
community of license changes for FM stations first involved a 
reallotment of the station's channel at the new community. Since the 
Commission changed its procedures in 2006 to permit the filing of 
community of license change proposals by minor change applications, the 
staff can now evaluate the actual proposed transmitter

[[Page 72240]]

site. It is more appropriate to do so than to use allotment coordinates 
that may be miles from the actual transmitter site specified in the 
proposal. Moreover, this new approach is consistent with Commission 
practice regarding AM change of community applications, for which 
contours are calculated from the applicants' authorized and proposed 
transmitter sites.
    11. Second, the Commission clarified that, when determining the 
number of reception services in gain and loss areas, the signal level 
to be evaluated for non-reserved band FM stations (including 
noncommercial educational [NCE] stations in the non-reserved band) 
shall be the service contour originating at the currently authorized 
and proposed transmitter coordinates. The service contour shall be 
calculated based on the facility's authorized and proposed effective 
radiated power (ERP) and height above average terrain (HAAT) and shall, 
as described below, take into account actual terrain. This is a 
departure from the method previously used to determine the number of 
reception services in gain and loss areas, which was based on maximum 
class facilities for all FM stations except for full Class C and NCE 
stations, and did not take into account actual terrain. However, in the 
Second R&O, the Commission required applicants proposing to change a 
station's community of license to provide detailed reports of 
populations receiving service and the numbers of services received. 
This increased scrutiny of the current and proposed reception service 
landscape demands a realistic picture of the populations receiving 
various levels of service, overruling the considerations of 
``uniformity and certainty'' in service area calculations previously 
cited to justify the use of maximum rather than actual facilities. See 
Greenup, Kentucky and Athens, Ohio, Memorandum Opinion and Order, 6 FCC 
Rcd 1493, 1494 (1991). Moreover, population counts using the new 
methodology do not lack certainty. Additionally, many existing 
stations, for technical, economic, or other reasons, may never be able 
to realize full class facilities. Thus, the Commission believed it more 
appropriate to base an evaluation of the section 307(b) merits of 
community of license change applications on the populations actually 
receiving service from stations in an area, rather than on what may be, 
in many cases, merely a hypothetical level of reception service. For 
purposes of these gain and loss area calculations, the FM service 
contour shall be that set forth for the class of station in 47 CFR 
73.215(a)(1), and shall be calculated using actual terrain under the 
standard prediction methodology set forth in 47 CFR 73.313 rather than 
assuming uniform terrain. For NCE reserved band stations, the service 
contours will be determined in the same manner, using actual currently 
authorized and proposed facilities (including directional patterns) and 
actual terrain. The service contour shall be the 60 dB[mu] contour, 
calculated as set forth in 47 CFR 73.509(c)(1).
    12. For an AM station, the signal level to be evaluated for 
purposes of gain and loss calculations in applications to change 
community of license shall be the predicted or measured daytime 2.0 mV/
m groundwave contour, calculated from the current and proposed 
transmitter coordinates using authorized facilities. When calculating 
AM reception services in gain and loss areas under Priority (4), 
``reception service'' should include all AM daytime reception services. 
In this regard, the Commission noted that the AM primary service 
contours are set forth in 47 CFR 73.182(d), and are the daytime 0.5 mV/
m groundwave contour for communities under 2,500 population, and the 
daytime 2.0 mV/m groundwave contour for communities over 2,500 
population. The different primary service contours take into account 
the higher level of environmental noise resulting from greater 
population density. However, using different contours for communities 
of different sizes will often result in complicated calculations of the 
number of services to certain areas lying between the daytime 2.0 mV/m 
and 0.5 mV/m groundwave contours of an AM station. Because 47 CFR 
73.182 implicitly recognizes that all areas, of whatever population, 
receive primary service within an AM station's daytime 2.0 mV/m 
groundwave contour, for purposes of determining the number of AM 
services and populations in gain and loss areas, the daytime 2.0 mV/m 
groundwave contour should be used. Applicants for new commercial AM 
stations providing showings under section 307(b) should, however, 
continue to count populations to be served by using the primary service 
contours (0.5 mV/m for communities under 2,500 population, 2.0 mV/m for 
communities over 2,500) set forth in 47 CFR 73.182(d). An applicant for 
a new AM station provides a section 307(b) showing only after being 
directed to do so by the staff (that is, after its application has been 
determined to be mutually exclusive with one or more other AM 
proposals), and in such cases the staff typically directs the applicant 
to provide the populations receiving both 0.5 mV/m and 2.0 mV/m daytime 
service from the proposed facilities.
    13. Third, for purposes of the gain and loss calculations in 
Priority (4) analyses, as described in paragraph 39 of the Second R&O, 
applicants shall count all full-service AM (including daytime-only 
AM),\1\ FM, and NCE FM stations, including granted, but unbuilt, 
construction permits for new stations. However, for purposes of these 
calculations applicants should not count vacant FM allotments. For the 
reasons cited above, the increased scrutiny of reception service in 
gain and loss areas requires an evaluation of actual, rather than 
hypothetical service. Thus, the Commission will evaluate the reception 
service as of the time of application, and will count only those 
facilities that have advanced to the point of a granted construction 
permit. Accordingly, in conducting the remaining services analysis and 
making a showing as described in paragraph 39 of the Second R&O, 
applicants should exclude vacant FM allotments from counts of reception 
services. Applicants for changes to a station's community of license 
following release of the Order shall use these clarified procedures 
when determining the number of reception services to gain and loss 
areas, and the procedures shall also apply to pending applications. 
However, the Commission found that because the Radio One Petition did 
not constitute notice to applicants of the exact nature of any 
clarifications of procedure on reconsideration, it shall allow parties 
with pending change of community applications as of the release date of 
the Order the option of either amending their application showings to 
conform to the clarified procedures announced in the Order, or 
proceeding based on the

[[Page 72241]]

reception service counts in their already-filed technical showings.
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    \1\ For purposes of the prohibition against any facility change 
that would create white or gray area, however (see Second R&O, 26 
FCC Rcd at 2577), daytime-only AM stations will not count as 
providing full-time reception service. ``White'' area has been 
defined as that which receives no full-time aural service, while 
``gray'' area is that which receives only one full-time aural 
service. Full-time aural (reception) service means both day and 
night service. While FM service contours are consistent for all 
dayparts, AM service contours vary between daytime and nighttime 
operation, with full-time AM reception service areas being those 
receiving both daytime 2.0 mV/m groundwave service and nighttime 
interference-free (NIF) service. For most stations, the daytime 2.0 
mV/m groundwave contour completely encompasses the NIF contour, thus 
the NIF contour constitutes the full-time service area for such 
stations. Where the daytime 2.0 mV/m groundwave and NIF contours 
neither completely encompass nor are completely encompassed by the 
other, due to changes in antenna pattern and/or transmitter site 
between daytime and nighttime operation, the full-time service area 
is the common area within both contours.
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    14. While, as noted above, vacant FM allotments will not be 
included in counts of reception services, the Commission will continue 
to count vacant FM allotments for purposes of section 307(b) analyses 
under Priority (3), provision of first local transmission service. This 
is because only one applicant or allotment proponent can claim to 
provide ``first'' transmission service at a given community. It would 
be inappropriate to accept a claim by a community of license change 
applicant to provide first local transmission service at the new 
community, if a channel had already been allotted there based on a 
showing that the allotment would constitute the first local 
transmission service. Of course, should the only channel allocated to a 
community be re-allotted to another community, a subsequent applicant 
or allotment proponent could propose first local transmission service 
there.
    15. Petitioner William Clay (Clay) sought reconsideration, arguing 
that the new procedures will still allow grant of most applications 
claiming to provide first local transmission service while primarily 
serving communities and populations other than the proposed community 
of license, because the majority of the proposed communities are not 
located in or near urbanized areas and are thus not subject to the 
UASP, and further arguing that the procedures set forth in the Second 
R&O still fail to guarantee service to, and an outlet for self-
expression of, the nominal community of license rather than the 
greatest populations to be served by a proposal. Clay contended, as he 
did in comments, that any new procedure should grant any local service 
preference to the community or collection of communities most likely to 
benefit from a proposed new service, no matter where situated. The 
Commission rejected Clay's proposal as overbroad, finding that its 
approach struck an appropriate balance between encouraging the goals of 
localism, allowing an applicant to propose to provide a chosen 
community with an outlet for expression, and the economic reality that 
a broadcaster will and must also provide for the needs and interests of 
its entire service area, of which the designated community of license 
may constitute a very small percentage. The record and the Commission's 
experience has shown this problem to be most acute in the case of 
applications for new and relocated radio service in and near urbanized 
areas, hence the limitation of the UASP to situations in which a 
station is located in or will cover most of an urbanized area. The 
Commission found that the new procedures will promote the Commission's 
goals under section 307(b) in a reasonable manner. See AT&T Corp. v. 
FCC, 220 F.3d 607, 621 (D.C. Cir. 2000) (``As long as the agency's 
interpretation is reasonable, we uphold it `regardless whether there 
may be other reasonable, or even more reasonable, views.' '' quoting 
Serono Lab, Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998)).
    16. Entravision, in its Petition for Reconsideration and/or 
Clarification, raised issues concerning two aspects of the modified 
procedures. First, noting that the Commission had not typically 
required a Tuck showing for community of license change applications 
where both the current and the proposed communities of license are 
located in the same urbanized area, Entravision asked that the 
Commission clarify whether the UASP will apply, and a Tuck showing be 
required, in such situations in the future. The Commission clarified 
that Tuck showings will not be required where both the current and 
proposed communities are located in the same urbanized area, or the 
current facilities cover, and the proposed facilities would or could be 
modified to cover, more than 50 percent of the same urbanized area with 
a daytime principal community signal. However, in such community of 
license change cases, the UASP presumption would apply to the new 
community, i.e., would presumptively prohibit treating the service at 
the new community as a first local transmission service under Priority 
(3). Thus, in the absence of a showing to rebut the presumption that 
either the move-out or move-in community is sufficiently independent to 
warrant a first local transmission service priority, the applicant must 
make its showing under Priority (4), other public interest matters, by 
demonstrating from which of the two communities the station would 
provide service to a greater area and population within the urbanized 
area.
    17. Entravision and M&M, as well as Educational Media Foundation 
and the Kent Frandsen Radio Companies (filing a joint petition), also 
sought changes in the categories of cases subject to the new 
procedures. In the Second R&O, the Commission stated that the new 
procedures would apply to all pending applications and allotment 
rulemaking proceedings, with two exceptions. The first was AM Auction 
84 applications, which were filed in 2004 and the majority of which 
have been processed under the prior procedures. The second was ``any 
non-final FM allotment proceeding, including `hybrid' coordinated 
application/allotment proceedings, in which the Commission has modified 
a radio station license or granted a construction permit.'' 26 FCC Rcd 
at 2576. M&M argued that the same equities articulated to exempt these 
two categories should apply equally to pending community of license 
change applications, especially those in which other stations were 
required to make facility modifications. It contended that the decision 
to apply the new procedures to pending community of license change 
applications was arbitrary and capricious because ``similarly 
situated'' new AM applications and FM allotment proceedings were not 
treated in the same way. Entravision suggested that the Commission 
apply the prior procedures to any case in which there had been an 
``initial decision'' as of March 2, 2011, the day before release of the 
Second R&O, even if the action was not final (i.e., if there is a 
pending petition for reconsideration or application for review).
    18. The Commission questioned whether applicants proposing 
community of license modification were ``similarly situated'' to the 
two classes of applicants, permittees, and licensees that were exempted 
from the new policy. AM Auction 84 filing window applicants were 
required to file their applications during a filing window, in January 
2004, that antedated the Notice of Proposed Rule Making in this 
proceeding (FCC 09-30, 74 FR 22498 (May 13, 2009), 24 FCC Rcd 5239 
(2009)) (Rural NPRM) by over five years. Those applicants therefore had 
no reason to expect that their applications would be evaluated under a 
new section 307(b) standard. The Commission recognized, however, that 
the same equities apply to those few pending community of license 
change applicants, and petitioners seeking to amend the FM Table of 
Allotments, that filed their applications or rulemaking petitions 
before release of the Rural NPRM. Thus, on reconsideration the 
Commission determined that the new procedures should not apply to (1) 
applications for minor modification of a station to specify a new 
community of license filed before April 20, 2009, the release date of 
the Rural NPRM; or (2) FM allotment proceedings where the petition for 
rulemaking had been filed, and the rulemaking proceeding thus 
initiated, prior to the release date of the Rural NPRM.
    19. Entravision, in its Petition, stated that the Commission did 
not ``precisely answer the question'' as to those cases to which the 
new section 307(b)

[[Page 72242]]

procedures would apply. Both Entravision and M&M suggested that the 
Commission draw a ``bright line'' as of the Second R&O's release date, 
to clarify the cases to which the new rules apply. Entravision stated 
that the prior section 307(b) procedures should apply in any instance 
in which the Commission had rendered a decision as of March 2, 2011, 
even if there was still a petition for reconsideration or application 
for review pending, as an equitable solution to keep parties from 
having to expend further time and resources revising their section 
307(b) showings after having already obtained a favorable result from 
the Commission under pre-Second R&O procedures. M&M requested that the 
Commission only apply the new procedures to community of license change 
applications filed after release of the Second R&O.
    20. The Commission disagreed that it was unclear, in the Second 
R&O, as to when the new procedures would apply, and further disagreed 
with M&M that all pending community of license change applications were 
``similarly situated'' to the categories of cases the Commission 
exempted from the new procedures. The majority of pending community of 
license change applications were filed after release of the Rural NPRM, 
and thus were on notice that the procedures could change while their 
applications were pending. While the Commission further carved out a 
limited exception to the new procedures in FM allotment and hybrid 
proceedings where licenses were modified or construction permits 
granted, to the extent that similar equities may exist in the case of 
certain pending community of license change applications, it stated it 
would entertain requests for waiver of the revised procedures on a 
case-by-case basis. The Commission rejected M&M's attempt to analogize 
those pending community of license change applications without such 
equities, however, and thus M&M's request to apply the prior procedures 
to all such applications pending as of release of the Second R&O.
    21. The Commission was more persuaded by Entravision's equitable 
argument to reconsider its application of the new policies. It 
envisioned situations in which, for example, two applications for 
change of community of license were granted on the same day, but one 
would become final under the pre-Second R&O procedures while the other 
would be subject to the new procedures merely because of a factor 
beyond the applicant's control, i.e., the filing of a petition for 
reconsideration or application for review of the application grant. The 
Commission found no principled reason to apply different procedures to 
such otherwise similarly situated applications, especially where any 
applicant facing reconsideration or review would have to go to the 
additional expense of revising its (previously successful) section 
307(b) showing, above and beyond the expense of rebutting a 
reconsideration petition. On reconsideration, the Commission thus 
revised its previous determination as to the application of the new 
procedures. In addition to those categories of applications and 
rulemaking proceedings listed in paragraph 21 of the Order, and in the 
Second R&O (26 FCC Rcd at 2575-76), the Commission held that the 
revised section 307(b) procedures shall not apply to any pending 
community of license change application or FM allotment proceeding in 
which a decision on the application, or allotment Report and Order, was 
released prior to March 3, 2011, the release date of the Second R&O. 
The Commission therefore granted the Entravision Petition to the extent 
set forth in the Order, and denied the M&M Petition.

Report to Congress

    22. Because no new rules are being adopted by the Commission in the 
Order, but merely clarifications of methodology and applicability of 
rules previously adopted, the Commission will not send a copy of the 
Order to Congress under the Congressional Review Act. See 5 U.S.C. 
801(a)(1)(A).

Ordering Clauses

    23. 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), that this 
Second Order on Reconsideration is adopted.
    24. It is further ordered that the Petition for Reconsideration & 
Comments Regarding the Following Matter, filed by Anthony V. Bono, 
Friendship Broadcasting, LLC; the Petition for Partial Reconsideration, 
filed by William B. Clay; the Petition for Partial Reconsideration, 
filed by M&M Broadcasters, Ltd.; and the Petition for Reconsideration, 
filed by Educational Media Foundation and the Kent Frandsen Radio 
Companies, are denied. It is further ordered that the Petition for 
Reconsideration and/or Clarification, filed by Entravision 
Communications Corporation; and the Petition for Partial 
Reconsideration, filed by Radio One, Inc., et al., are granted in part 
and denied in part.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2012-29423 Filed 12-4-12; 8:45 am]
BILLING CODE 6712-01-P