Broadcast Licensee-Conducted Contests, 75773-75780 [2014-29633]
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Federal Register / Vol. 79, No. 244 / Friday, December 19, 2014 / Proposed Rules
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[FR Doc. 2014–29774 Filed 12–18–14; 8:45 am]
BILLING CODE 6560–50–P
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47 CFR Part 73
[MB Docket No. 14–226; FCC 14–184]
Broadcast Licensee-Conducted
Contests
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the
Commission proposes to amend its rules
governing broadcast licensee-conducted
contests (the ‘‘Contest Rule’’) in a
manner that reflects how consumers
access information in the 21st Century.
This document proposes to amend the
Contest Rule by, among other things,
allowing licensees to comply with their
obligation to disclose material contest
terms either through broadcast
announcements or by making such
terms available in writing on a publicly
accessible Internet Web site. In addition,
the Commission proposes to adopt rules
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SUMMARY:
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that would define the disclosure
obligation in cases where a station
chooses to meet that obligation through
an Internet Web site.
DATES: Comments are due on or before
February 17, 2015; reply comments are
due on or before March 19, 2015.
Written comments on the Paperwork
Reduction Act proposed information
collection requirements must be
submitted by the public, Office of
Management and Budget (OMB), and
other interested parties on or before
February 17, 2015.
ADDRESSES: You may submit comments,
identified by MB Docket No. 14–226, by
any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web site: https://
fjallfoss.fcc.gov/ecfs2/. Follow the
instructions for submitting comments.
• Mail: Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
• People with Disabilities: Contact
the FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by email: FCC504@fcc.gov
or phone: (202) 418–0530 or TTY: (202)
418–0432.
In addition to filing comments with
the Secretary, a copy of any comments
on the Paperwork Reduction Act
proposed information collection
requirements contained herein should
be submitted to the Federal
Communications Commission via email
to PRA@fcc.gov. For detailed
instructions for submitting comments
and additional information on the
rulemaking process, see the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: For
additional information on this
proceeding, contact Raelynn Remy of
the Policy Division, Media Bureau at
(202) 418–2120 or Raelynn.Remy@
fcc.gov. For additional information
concerning the Paperwork Reduction
Act information collection requirements
contained in this document, send an
email to PRA@fcc.gov or contact Cathy
Williams at (202) 418–2918.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking, FCC 14–184,
adopted and released on November 21,
2014. The full text is available for public
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inspection and copying during regular
business hours in the FCC Reference
Center, Federal Communications
Commission, 445 12th Street SW., Room
CY–A257, Washington, DC 20554. This
document will also be available via
ECFS at https://fjallfoss.fcc.gov/ecfs/.
Documents will be available
electronically in ASCII, Microsoft Word,
and/or Adobe Acrobat. The complete
text may be purchased from the
Commission’s copy contractor, 445 12th
Street SW., Room CY–B402,
Washington, DC 20554. Alternative
formats are available for people with
disabilities (Braille, large print,
electronic files, audio format), by
sending an email to fcc504@fcc.gov or
calling the Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
The Notice of Proposed Rulemaking
seeks comment on potential information
collection requirements. If the
Commission adopts any information
collection requirements, the
Commission will publish a notice in the
Federal Register inviting the public to
comment on the requirements, as
required by the Paperwork Reduction
Act of 1995, Public Law 104–13 (44
U.S.C. 3501–3520). In addition,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4),
the Commission seeks specific comment
on how it might ‘‘further reduce the
information collection burden for small
business concerns with fewer than 25
employees.’’ The Commission, as part of
its continuing effort to reduce
paperwork burdens, invites the general
public and the Office of Management
and Budget (OMB) to comment on the
information collection requirements
contained in this document, as required
by the Paperwork Reduction Act of
1995, Public Law 104–13. Public and
agency comments are due February 17,
2015.
Summary
I. Introduction
1. In the Notice of Proposed
Rulemaking (NPRM), we propose to
amend § 73.1216 of our rules governing
broadcast licensee-conducted contests
(‘‘Contest Rule’’) 1 by, among other
things, allowing licensees to comply
with their obligation to disclose material
contest terms either by broadcasting the
material terms or making such terms
available in writing on a publicly
accessible Internet Web site. The NPRM
stems from a Petition for Rulemaking
1 47
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(‘‘Petition’’) filed by Entercom
Communications Corp. (‘‘Entercom’’ or
‘‘Petitioner’’) requesting that the
Commission so update the Contest Rule
in a manner that reflects how consumers
access information in the 21st Century.2
The Petition was unopposed, and
supported by a number of commenters.3
As discussed below, we propose to
modernize our rules to provide
broadcast licensees with greater
flexibility in the methods by which they
may satisfy their obligation to disclose
material contest terms, without relaxing
licensees’ duty to conduct contests with
due regard for the public interest.
II. Background
A. The Contest Rule
2. Radio and television stations
frequently run contests as a form of
promotion, advertisement, and
entertainment. The Commission
adopted the existing Contest Rule in
1976 to address concerns about the
manner in which broadcast licensees
were conducting contests over the air.
That rule provides, in part:
A licensee that broadcasts or
advertises information about a contest it
conducts shall fully and accurately
disclose the material terms of the
contest, and shall conduct the contest
substantially as announced or
advertised. No contest description shall
be false, misleading or deceptive with
respect to any material term.4
The Contest Rule contains
prescriptions regarding the time and
manner of disclosing material contest
terms:
[T]he time and manner of disclosure of the
material terms of a contest are within the
licensee’s discretion. However, the obligation
to disclose the material terms arises at the
time the audience is first told how to enter
or participate and continues thereafter. The
material terms should be disclosed
periodically by announcements broadcast on
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2 See
Petition for Rulemaking filed by Entercom
Communications Corp., CGB Docket No. RM–11684
(filed Jan. 20, 2012).
3 We note that we received no comments on the
Petition from consumer advocacy groups or
members of the general public and encourage all
interested parties to file in response to the NPRM.
4 47 CFR 73.1216. The Contest Rule defines
‘‘contest’’ as ‘‘a scheme in which a prize is offered
or awarded, based upon chance, diligence,
knowledge or skill, to members of the public.’’ Id.,
Note 1(a). In addition, the rule provides that:
[m]aterial terms include those factors which
define the operation of the contest and which affect
participation therein. Although the material terms
may vary widely depending on the exact nature of
the contest, they will generally include: How to
enter or participate; eligibility restrictions; entry
deadline dates, whether prizes can be won; when
prizes can be won; the extent, nature and value of
prizes; basis for valuation of prizes; time and means
of selection of winners; and/or tie-breaking
procedures. Id., Note 1(b).
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the station conducting the contest, but need
not be enumerated each time an
announcement promoting the contest is
broadcast. Disclosure of material terms in a
reasonable number of announcements is
sufficient. In addition to the required
broadcast announcements, disclosure of the
material terms may be made in a nonbroadcast manner.5
The Contest Rule was premised on the
Commission’s conclusion that ‘‘a
licensee’s contests should be conducted
fairly and substantially as represented to
the public, and . . . failure to do so falls
short of the degree of responsibility
expected of licensees.’’
3. As set forth above, the Contest Rule
requires a licensee to broadcast the
material terms of a contest the first time
it informs its audience how to enter or
participate, and to repeat such terms a
reasonable number of times thereafter.6
Although, under the rule, licensees are
permitted to employ non-broadcast
methods for disclosing material contest
terms, they may not substitute such
methods for the required broadcast
disclosure.
B. Petition for Rulemaking
4. In January 2012, Entercom filed the
Petition requesting that the Commission
revise the disclosure requirements of
§ 73.1216. Specifically, Petitioner
proposes that the Commission amend
§ 73.1216 to permit broadcasters to
satisfy their obligation to disclose
material contest terms either by:
(i) Broadcasting such terms on the
station (as required by the current
rule); 7 or (ii) providing material terms
in written form on a Web site and upon
request by email, facsimile, mail, or in
person, provided that the station makes
periodic announcements informing
viewers and listeners how and where
the public can obtain access to the
material terms.8 In addition, Petitioner
5 Id., Note 2. The Contest Rule does not apply to
licensee-conducted contests that are not broadcast
or advertised to the general public or to a
substantial segment of the public, to contests in
which the general public is not requested or
permitted to participate, to the commercial
advertisement of non-licensee-conducted contests,
or to a contest conducted by a non-broadcast
division of the licensee or by a non-broadcast
company related to the licensee. See id., Note 3.
6 See 47 CFR 73.1216, Note 2.
7 As discussed infra, Petitioner does not propose
complete elimination of broadcast disclosure
because, it argues, such on-air announcements may
still make sense for some licensees and for simple
contests where little information has to be conveyed
to listeners. See Entercom Petition at 5.
8 Id. Although Petitioner proposes to require
licensees to make contest terms available, upon
request, via email facsimile, postal mail, or in
person, we decline to propose this at this time
because we believe that permitting licensees to
disclose contest terms through broadcast and
Internet methods is adequate to ensure the
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asserts that broadcasters that lack their
own Web sites should be allowed to
post contest terms on the Web site of a
state broadcasters’ association that
permits such posting.
5. Petitioner contends that its
proposed revisions will bring the
Contest Rule into alignment with how
Americans access and consume
information in the 21st Century and
provide for a more effective means of
distributing contest information to the
public. It asserts that, ‘‘[i]n today’s fast
paced world, Americans expect to
instantly access information . . . by
merely logging on to a Web site [or]
conducting [an Internet] search’’; thus, it
argues, reliance on broadcast
announcements to disseminate material
contest information is no longer an
acceptable way to inform the public
about contest terms. Petitioner asserts
that the vast majority of broadcasters
already have dedicated Web sites where
they can post complete contest
information that the public can access
‘‘on demand.’’ Moreover, it argues that
licensees can disseminate contest
information via additional methods,
such as email, that are more effective
than broadcast at conveying contest
terms.
6. Petitioner argues that, because the
current rule requires licensees to
disclose material contest terms via
broadcast only periodically, such
disclosures may not be heard or seen by
an audience member interested in the
contest. Further, Petitioner contends
that the material terms of some contests
can be quite complex and lengthy, such
that even if listeners hear (or see, in the
case of television) a periodic
announcement of such terms, it is
nearly impossible for them to
comprehend and remember all of the
information disclosed. Thus, it asserts,
audiences are not likely to obtain useful
information from such broadcasts.
7. Petitioner contends that the public
today accesses information in ways that
are dramatically different from how the
public accessed information when the
Contest Rule was adopted, and cites
evidence that the Internet is the medium
used by most Americans to obtain
information instantaneously. According
to Petitioner, the public is accustomed
to accessing station Web sites to obtain
current news, weather, traffic reports,
and other information, and, therefore,
the public reasonably expects to find
contest information on station Web
sites. Petitioner further notes that the
Commission itself has recognized the
availability of material contest information to the
public.
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ubiquity and efficiency of the Internet
and its utility to Commission processes.
8. In November 2012, the
Commission’s Consumer and
Governmental Affairs Bureau (‘‘CGB’’)
issued a Public Notice inviting comment
on the Petition. Each of the sixteen
parties that responded to the Public
Notice support the Petitioner’s request
to commence a rulemaking proceeding
to modernize the Contest Rule.
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III. Discussion
9. We propose to amend the Contest
Rule to allow broadcasters to satisfy
their obligation to disclose material
contest terms by making such terms
available in writing on a publicly
accessible Internet Web site. We believe
that this rule revision will give
broadcasters greater flexibility in the
means by which they may comply with
the Contest Rule and is consistent with
the Commission’s recognition that the
Internet is an effective tool for
distributing information to broadcast
audiences. We seek comment on this
proposal. Although the Commission’s
rule currently requires that material
terms be disclosed periodically by
announcements broadcast on the
station,9 we agree with parties who
assert that the dramatic changes in the
way that consumers access information
since the Contest Rule was adopted
justify updating the rule. As some
commenters note, the public is
accustomed to accessing station Web
sites to obtain a broad range of
information. In fact, the record reflects
that some licensees already use their
Web sites to post contest-related
information, and allow consumers to
enter and participate in contests via
station Web sites. Parties contend that
posting material contest terms in writing
on station Web sites will give potential
contest participants immediate access to
those terms and allow the public to
review the terms at their convenience,
thereby meeting consumer expectations
9 In particular, the Contest Rule provides that:
‘‘The material terms should be disclosed
periodically by announcements broadcast on the
station conducting the contest. . . . In addition to the
required broadcast announcements, disclosure of
the material terms may be made in a non-broadcast
manner.’’ 47 CFR 73.1216, Note 2. See also Good
Karma Broad. LLC, 27 FCC Rcd 10938, 10941 n.32
(EB 2012) (‘‘Posting contest rules on a station’s Web
site does not satisfy § 73.1216’s requirement that a
licensee broadcast the material terms of a contest
it conducts.’’); Joint Commenters Comments at 2,
citing Clear Channel Communications, Inc., 27 FCC
Rcd 343, 346 ¶ 6 (EB 2012) (‘‘While stations are free
to provide contest information in other formats,
including Internet postings, numerous Commission
decisions have repeatedly made clear that ‘licensees
cannot avail themselves of alternative nonbroadcast announcements to satisfy the requirement
that they accurately announce a contest’s material
terms.’ ’’).
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for accessing such information and
potentially reducing consumer
confusion.
10. We propose to allow a broadcast
station to satisfy its § 73.1216 disclosure
obligation by posting material contest
terms on the station’s Internet Web site,
the licensee’s Web site, or, if neither the
individual station nor the licensee has
its own Web site, any readily publicly
accessible Internet Web site.10 We seek
comment on the costs and benefits of
adopting this proposal. In addition, we
seek comment on whether and to what
extent we should adopt rules specifying
the format for contest disclosures that
are posted on Internet Web sites.
11. If a licensee uses an Internet Web
site to disclose material contest terms,
how could we ensure that such terms
are easy for consumers to locate on that
Web site? For example, should we
require a link on the Web site’s home
page to the contest terms? How long
should a licensee be required to
maintain the contest information on the
Web site? NSBA asserts that a nonstation Web site that is used to comply
with the Contest Rule’s disclosure
requirements must be ‘‘accessible to the
public 24/7 during the contest, for free,
and without any registration
requirement.’’ Should a revised Contest
Rule contain these requirements? Are
there other Web site characteristics or
requirements that the rule should
mandate to promote the goal of public
accessibility? We are sensitive to the
possibility that consumers may become
frustrated if they cannot readily locate a
contest’s material terms on a nonlicensee Web site, and seek comment on
how licensees might anticipate and
avoid problems associated with posting
content rules to non-licensee sites. We
propose to apply the same rule to radio
and television licensees, but seek
comment on whether any differences in
those services merit different treatment
in the rule. In particular, we seek
comment on the impact of the above
proposals on small broadcasters.
12. We note that the disclosure
requirements in § 73.1216 pertain to
‘‘material’’ contest terms, defined as
those terms that ‘‘define the operation of
10 As noted above, although Petitioner proposes to
allow stations that do not have their own Web site
to post material contest terms to the Web site of a
state broadcasters’ association, NSBA has asserted
that ‘‘there is no unanimity among the State
Associations for agreeing to serve as a third-party
Web host for station contest rules.’’ See NSBA
Comments at 6. See also VAB Comments at 3; OAB
Comments at 4; NCAB Comments at 3. NSBA thus
proposes to allow licensees the option of posting
their contest rules on any Web site that allows such
posting, under certain conditions. NSBA Comments
at 6. Petitioner does not oppose NSBA’s proposal.
See Entercom Reply at 3–4.
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the contest and which affect
participation therein.’’ Section 73.1216
provides that ‘‘material terms may vary
widely depending on the exact nature of
the contest,’’ but that such terms
generally will include: How to enter or
participate; eligibility restrictions; entry
deadline dates, whether prizes can be
won; when prizes can be won; the
extent, nature and value of prizes; basis
for valuation of prizes; time and means
of selection of winners; and/or tiebreaking procedures. To the extent that
licensees have difficulty determining
which terms are ‘‘material’’ and thus
subject to disclosure under the Contest
Rule, would revising the rule as
proposed eliminate or reduce the need
for licensees to make this determination,
insofar as they could post all contest
information in writing online? On the
other hand, is it necessary to require
that licensees set apart or distinguish in
some way contest terms deemed
‘‘material’’ from other contest
information to ensure that this
important information is readily
available to the public and not buried in
lengthy fine print? We seek comment
generally on whether or to what extent
we need to refine the definition of
‘‘material’’ given our proposed change
to the Contest Rule. To avoid consumer
confusion, we propose that, consistent
with existing Commission precedent,
any material terms announced on air
must not differ from the material terms
disclosed on a Web site.11
13. We propose further to modify the
Contest Rule by requiring stations that
choose to satisfy their disclosure
obligations via an Internet Web site to
broadcast the complete, direct Web site
address where the contest terms are
posted 12 each time the station mentions
or advertises a contest. Under the
current rule, stations are required to
broadcast material terms periodically
after their initial disclosure. The
discretion afforded licensees under the
current rule to determine when they
will broadcast material terms after
initial disclosure can potentially leave a
consumer without access to such terms
at the time a contest is advertised on air,
as well as create uncertainty for
broadcasters about their compliance
11 For example, if the on air announcement or
advertising for the contest identifies a particular
prize by brand name or model, then the Web site
disclosure must be the same.
12 By complete, direct Web site address, we mean
the address that will take the consumer directly to
the page on the Web site where the contest terms
are posted. If licensees post the contest terms on the
home page of the Web site or post a direct link to
the contest terms on the home page, then
announcing the home page address will suffice to
ensure consumers can easily find and review the
terms of the contest.
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with the rule. Although the rule changes
we propose diverge from Petitioner’s
proposal (which would require stations
to broadcast announcements identifying
the Web site address only periodically),
we believe that requiring licensees to
broadcast the Web site address where
contest terms are available each time
they mention or advertise a contest will
better inform the public of material
contest information and is not unduly
burdensome. We believe that such a
requirement is less burdensome than
requiring a licensee to periodically
broadcast material contest terms in full.
Therefore, we propose to require
licensees to broadcast the Web site
address on which material contest terms
are posted each time they mention or
advertise a contest. In addition, if a
licensee that chooses to satisfy its
disclosure obligations via the Internet
changes the material terms of a contest
after the contest is first announced, we
propose that the licensee must
announce on air that the contest rules
have changed and direct participants to
the Web site to review the changes. We
seek comment on the appropriate
frequency and duration of this
requirement. For example, should this
announcement have to be made each
time the licensee announces the contest
and broadcasts the Web site address
where such terms are posted, and if so,
for how long should that requirement
last? 13 We seek comment on these
proposals, including the costs and
benefits of adopting these rules. We also
seek comment on the impact of these
proposals on small licensees.
14. We propose that we should still
permit broadcast disclosure as one
means of complying with the Contest
Rule. As Petitioner notes, broadcast
disclosure of material contest
information ‘‘may still make sense for
some broadcasters and for extremely
simple contests where very little
information has to be conveyed to the
[audience].’’ If we retain broadcast
disclosure as a method of complying
13 The Commission has interpreted the existing
Contest Rule to impose on licensees an obligation
to notify the public of changes to material contest
terms by announcing such changes over the air. See
Access 1 New Jersey License Co., LLC, Notice of
Apparent Liability for Forfeiture, 22 FCC Rcd 4232,
4235, ¶ 8 and n.24 (EB 2007) (finding that a
licensee’s failure to notify the public of changes to
material contest terms violated the Contest Rule).
See also Clear Channel Broad. Licenses, Inc., Notice
of Apparent Liability for Forfeiture, 21 FCC Rcd
4072 (EB 2006) (imposing forfeiture for
unannounced contest rule change that excluded
contestant’s multiple entries). Thus, if we were to
amend the Contest Rule to permit disclosure of
material contest terms via a Web site, licensees that
chose to comply with their disclosure obligations
via broadcast similarly would be required to notify
the public of changes to such terms through
broadcast announcements.
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with the Contest Rule, should we make
any changes to the rule to improve the
effectiveness of broadcasting material
contest terms?
IV. Procedural Matters
A. Regulatory Flexibility Act
15. As required by the Regulatory
Flexibility Act of 1980, as amended
(‘‘RFA’’) 14 the Commission has
prepared this present Initial Regulatory
Flexibility Act Analysis (‘‘IRFA’’)
concerning the possible significant
economic impact on small entities by
the policies and rules proposed in the
NPRM. Written public comments are
requested on this IRFA. Comments must
be identified as responses to the IRFA
and must be filed by the deadlines for
comments provided on the first page of
the NPRM. The Commission will send a
copy of the NPRM, including this IRFA,
to the Chief Counsel for Advocacy of the
Small Business Administration
(‘‘SBA’’).15 In addition, the NPRM and
IRFA (or summaries thereof) will be
published in the Federal Register.16
1. Need for, and Objectives of, the
Proposed Rule Changes
16. The NPRM stems from an
unopposed Petition for Rulemaking
filed by Entercom Communications
Corp. requesting that the Commission
update § 73.1216 of its rules governing
broadcast licensee-conducted contests
(the ‘‘Contest Rule’’) 17 in a manner that
reflects how consumers access
information in the 21st Century.18 The
NPRM proposes to amend the Contest
Rule by, among other things, allowing
licensees to comply with their
obligation to disclose material contest
terms either through broadcast
announcements or by making such
terms available in writing on a publicly
accessible Internet Web site.
17. In particular, the NPRM proposes
to amend the Contest Rule: (i) To permit
a licensee that chooses to satisfy its
disclosure obligations by means of an
Internet Web site to make material
contest terms available on the station’s
Web site, the licensee’s Web site, or, if
neither the station nor the licensee has
its own Web site, any publicly
accessible Internet Web site; (ii) to
require that any material contest terms
14 See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601–
612, has been amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
(SBREFA), Pub. L. 104–121, Title II, 110 Stat. 857
(1996).
15 See 5 U.S.C. 603(a).
16 See id.
17 47 CFR 73.1216.
18 See Petition for Rulemaking filed by Entercom
Communications Corp., CGB Docket No. RM–11684
(filed Jan. 20, 2012).
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announced on air not differ from the
material terms disclosed on a Web site;
(iii) to require a station that chooses to
satisfy its disclosure obligation via the
Internet to broadcast the complete,
direct Web site address where the
contest terms are posted each time the
station mentions or advertises a contest;
and (iv) to require that, if a licensee that
chooses to satisfy its disclosure
obligation via the Internet changes the
material terms of a contest after the
contest is first announced, the licensee
announce on air that the contest rules
have changed and direct participants to
the Web site to review the changes.
These proposals are intended to
modernize the Contest Rule in a manner
that gives broadcasters greater flexibility
in the methods by which they satisfy
their obligation to disclose material
contest terms, while ensuring adequate
notice of such terms to the public.
2. Legal Basis
18. The proposed action is authorized
pursuant to sections 4(i), 4(j), and 303
of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), and
303.
3. Description and Estimates of the
Number of Small Entities to Which the
Proposed Rules Will Apply
19. The RFA directs agencies to
provide a description of and, where
feasible, an estimate of the number of
small entities that may be affected by
the proposed rules, if adopted.19 The
RFA generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ 20 In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act.21 A small
business concern is one which: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the SBA.22 The rules
19 5
U.S.C. 603(b)(3).
U.S.C. 601(6).
21 5 U.S.C. 601(3) (incorporating by reference the
definition of ‘‘small business concern’’ in 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory
definition of a small business applies ‘‘unless an
agency, after consultation with the Office of
Advocacy of the Small Business Administration
and after opportunity for public comment,
establishes one or more definitions of such term
which are appropriate to the activities of the agency
and publishes such definition(s) in the Federal
Register.’’ 5 U.S.C. 601(3).
22 15 U.S.C. 632. Application of the statutory
criteria of dominance in its field of operation and
independence are sometimes difficult to apply in
the context of broadcast television. Accordingly, the
Commission’s statistical account of television
stations may be over-inclusive.
20 5
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proposed herein will directly affect
small television and radio broadcast
stations. Below, we provide a
description of these small entities, as
well as an estimate of the number of
such small entities, where feasible.
20. Television Broadcasting. This
economic Census category ‘‘comprises
establishments primarily engaged in
broadcasting images together with
sound.’’ 23 The SBA has created the
following small business size standard
for such businesses: those having $38.5
million or less in annual receipts.24 The
2007 U.S. Census indicates that 808
firms in this category operated in that
year. Of that number, 709 had annual
receipts of $25,000,000 or less, and 99
had annual receipts of more than
$25,000,000.25 Because the Census has
no additional classifications that could
serve as a basis for determining the
number of stations whose receipts
exceeded $38.5 million in that year, we
conclude that the majority of television
broadcast stations were small under the
applicable SBA size standard.
21. Apart from the U.S. Census, the
Commission has estimated the number
of licensed commercial television
stations to be 1,387 stations.26 Of this
total, 1,221 stations (or about 88
percent) had revenues of $38.5 million
or less, according to Commission staff
review of the BIA Kelsey Inc. Media
Access Pro Television Database (BIA) on
July 2, 2014. In addition, the
Commission has estimated the number
of licensed noncommercial educational
(NCE) television stations to be 395.27
NCE stations are non-profit, and
therefore considered to be small
entities.28 Based on these data, we
estimate that the majority of television
broadcast stations are small entities.
22. Class A TV and LPTV Stations.
The same SBA definition that applies to
television broadcast stations would
apply to licensees of Class A television
stations and low power television
(LPTV) stations, as well as to potential
licensees in these television services. As
noted above, the SBA has created the
following small business size standard
23 U.S. Census Bureau, 2012 NAICS Definitions,
‘‘515120 Television Broadcasting,’’ at https://www.
census.gov./cgi-bin/sssd/naics/naicsrch.
24 13 CFR 121.201; 2012 NAICS code 515120.
25 U.S. Census Bureau, Table No. EC0751SSSZ4,
Information: Subject Series—Establishment and
Firm Size: Receipts Size of Firms for the United
States: 2007 (515120), https://factfinder2.census.gov/
faces/tableservices/jsf/pages/productview.xhtml
?pid=ECN_2007_US_51SSSZ4&prodType=table.
26 See Broadcast Station Totals as of June 30,
2014, Press Release (MB rel. July 9, 2014)
(Broadcast Station Totals) at https://apps.fcc.gov/
edocs_public/attachmatch/DOC-328096A1.pdf.
27 See Broadcast Station Totals, supra.
28 See generally 5 U.S.C. 601(4), (6).
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for this category: Those having $38.5
million or less in annual receipts.29 The
Commission has estimated the number
of licensed Class A television stations to
be 432.30 The Commission has also
estimated the number of licensed LPTV
stations to be 2,028.31 Given the nature
of these services, we will presume that
these licensees qualify as small entities
under the SBA definition.
23. We note, however, that in
assessing whether a business concern
qualifies as ‘‘small’’ under the above
definition, business (control)
affiliations 32 must be included. Because
we do not include or aggregate revenues
from affiliated companies in
determining whether an entity meets the
revenue threshold noted above, our
estimate of the number of small entities
affected is likely overstated. In addition,
we note that one element of the
definition of ‘‘small business’’ is that an
entity not be dominant in its field of
operation. We are unable at this time to
define or quantify the criteria that
would establish whether a specific
television broadcast station is dominant
in its field of operation. Accordingly,
our estimate of small television stations
potentially affected by the proposed
rules includes those that could be
dominant in their field of operation. For
this reason, such estimate likely is overinclusive.
24. Radio Stations. This economic
Census category ‘‘comprises
establishments primarily engaged in
broadcasting aural programs by radio to
the public.’’ 33 The SBA has created the
following small business size standard
for this category: Those having $38.5
million or less in annual receipts.34
Census data for 2007 shows that 2,926
firms in this category operated in that
year.35 Of this number, 2,877 firms had
annual receipts of less than $25,000,000,
and 49 firms had annual receipts of
$25,000,000 or more.36 Because the
29 13
CFR 121.201; NAICS code 515120.
Broadcast Station Totals, supra.
31 See Broadcast Station Totals, supra.
32 ‘‘[Business concerns] are affiliates of each other
when one concern controls or has the power to
control the other or a third party or parties controls
or has the power to control both.’’ 13 CFR
21.103(a)(1).
33 U.S. Census Bureau, 2012 NAICS Definitions,
‘‘515112 Radio Stations,’’ at https://www.census.gov/
cgi-bin/sssd/naics/naicsrch. This category
description continues, ‘‘Programming may originate
in their own studio, from an affiliated network, or
from external sources.’’
34 13 CFR 121.201; NAICS code 515112.
35 U.S. Census Bureau, Table No. EC0751SSSZ4,
Information: Subject Series—Establishment and
Firm Size: Receipts Size of Firms for the United
States: 2007 (515112), https://factfinder2.census.gov/
faces/tableservices/jsf/pages/productview.xhtml
?pid=ECN_2007_US_51SSSZ4&prodType=table.
36 Id.
30 See
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Census has no additional classifications
that could serve as a basis for
determining the number of stations
whose receipts exceeded $38.5 million
in that year, we conclude that the
majority of television broadcast stations
were small under the applicable SBA
size standard.
25. Apart from the U.S. Census, the
Commission has estimated the number
of licensed commercial AM radio
stations to be 4,553 stations and the
number of commercial FM radio
stations to be 6,622, for a total number
of 11,175.37 Of this total, 9,898 stations
(or about 90 percent) had revenues of
$38.5 million or less, according to
Commission staff review of the BIA
Kelsey Inc. Media Access Pro Television
Database (BIA) on October 23, 2014. In
addition, the Commission has estimated
the number of licensed noncommercial
educational (‘‘NCE’’) AM radio stations
to be 168 stations and the number of
noncommercial educational FM radio
stations to be 4,082, for a total of
4,250.38 NCE stations are non-profit, and
therefore considered to be small
entities.39 Therefore, we estimate that
the majority of radio broadcast stations
are small entities.
26. Low Power FM Stations. The same
SBA definition that applies to radio
stations would apply to low power FM
stations. As noted above, the SBA has
created the following small business
size standard for this category: Those
having $38.5 million or less in annual
receipts.40 The Commission has
estimated the number of licensed low
power FM stations to be 814.41 Given
the nature of these services, we will
presume that these licensees qualify as
small entities under the SBA definition.
27. We note again, however, that in
assessing whether a business concern
qualifies as ‘‘small’’ under the above
definition, business (control)
affiliations 42 must be included. Because
37 See Broadcast Station Totals as of June 30,
2014, Press Release (MB rel. July 9, 2014)
(Broadcast Station Totals) at https://apps.fcc.gov/
edocs_public/attachmatch/DOC-328096A1.pdf.
This document only indicates the total number of
AM stations as 4,721. The breakdown between
licensed AM commercial and noncommercial
stations was obtained from Staff review of the
Consolidated Database System (CDBS). See https://
licensing.fcc.gov/prod/cdbs/pubacc/prod/cdbs_
pa.htm.
38 See Broadcast Station Totals, supra.
39 See generally 5 U.S.C. 601(4), (6).
40 See 13 CFR 121.201, NAICS Code 515112.
41 See News Release, ‘‘Broadcast Station Totals as
of June 30, 2012’’ (rel. Jul. 19, 2012) (https://
fjallfoss.fcc.gov/edocs_public/attachmatch/DOC304594A1315231A1.pdf).
42 ‘‘[Business concerns] are affiliates of each other
when one concern controls or has the power to
control the other or a third party or parties controls
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we do not include or aggregate revenues
from affiliated companies in
determining whether an entity meets the
applicable revenue threshold, our
estimate of the number of small radio
broadcast stations affected is likely
overstated. In addition, as noted above,
one element of the definition of ‘‘small
business’’ is that an entity not be
dominant in its field of operation. We
are unable at this time to define or
quantify the criteria that would
establish whether a specific radio
broadcast station is dominant in its field
of operation. Accordingly, our estimate
of small radio stations potentially
affected by the proposed rules includes
those that could be dominant in their
field of operation. For this reason, such
estimate likely is over-inclusive.
4. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
28. In this section, we identify the
reporting, recordkeeping, and other
compliance requirements proposed in
the NPRM and consider whether small
entities are affected disproportionately
by any such requirements.
29. Reporting Requirements. The
NPRM does not propose to adopt
reporting requirements.
30. Recordkeeping Requirements. The
NPRM proposes certain recordkeeping
requirements that would be applicable
to covered small entities. In particular,
the NPRM:
• Proposes to allow broadcast
licensees to satisfy their obligation to
disclose material contest terms by
posting such terms on the station’s Web
site, the licensee’s Web site, or, if
neither the station nor the licensee has
its own Web site, any publicly
accessible Internet Web site;
• proposes that any material contest
terms announced on air must not differ
from the material terms disclosed on a
Web site;
• proposes to require stations that
choose to satisfy their disclosure
obligations via an Internet Web site to
broadcast the complete, direct Web site
address where the contest terms are
posted each time the station mentions or
advertises a contest;
• proposes that, if a licensee that
chooses to satisfy its disclosure
obligations via an Internet Web site
changes the material terms of a contest
after the contest is first announced, such
licensee be required to announce on air
that the contest terms have changed and
direct participants to the Web site to
review the changes; and
or has the power to control both.’’ 13 CFR
21.103(a)(1).
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• seeks comment on whether a
licensee that chooses to satisfy its
disclosure obligations via the Internet
and that changes contest terms after a
contest is first announced, must repeat
that the contest terms have changed
each time it announces the contest and
broadcasts the Web site address where
such terms are posted, and if so, how
long that requirement should last.
31. Other Compliance Requirements.
The NPRM seeks comment on other
compliance requirements that would be
applicable to covered small entities. In
particular, the NPRM:
• Seeks comment on whether and to
what extent the Commission should
adopt rules specifying the format for
contest disclosures that are posted on
Internet Web sites and how long stations
should be required to maintain such
disclosures on a Web site;
• seeks comment on whether
licensees should be required to set apart
or distinguish in some way contest
terms deemed ‘‘material’’ from other
contest information to ensure that
important contest information is readily
available to the public;
• seeks comment on whether to adopt
requirements designed to ensure that
the material terms of a contest are easy
for consumers to locate on a public Web
site;
• seeks comment on whether to
require that a public Web site that is
used to comply with the Contest Rule’s
disclosure requirements be accessible to
the public 24/7 during the contest, for
free, and without any registration
requirement, and whether there are
other characteristics that such Web sites
should be required to possess;
• seeks comment on how licensees
can anticipate and avoid problems
associated with posting contest terms to
non-licensee Web sites;
• seeks comment on whether there
are any differences between radio and
television licensees that merit different
treatment in the rule; and
• seeks comment on whether, if
broadcast disclosure is retained as one
method of complying with the Contest
Rule, any changes should be made to
the rule to improve the effectiveness of
broadcasting material contest terms.
32. Because no commenter provided
information specifically quantifying the
costs and administrative burdens
associated with the Petitioner’s
proposed rule revisions, we cannot
precisely estimate the impact of the
rules proposed in the NPRM on small
entities. However, the proposed
revisions will afford all licensees,
including small broadcasters, greater
flexibility in the method by which they
comply with the Contest Rule. In
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addition, we note that the proposed
revisions were derived largely from the
Petition for Rulemaking in this
proceeding, which was unopposed and
supported by all commenters, including
small broadcasters. Thus, we find it
reasonable to conclude that any costs or
burdens on small entities resulting from
the proposed requirements will be
outweighed by the benefits.
5. Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
33. The RFA requires an agency to
describe any significant, specifically
small business, 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 and reporting requirements
under the rule for such 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.43
34. The accompanying NPRM
principally proposes to amend § 73.1216
of the Commission’s rules by allowing
all licensees, including small
broadcasters, to meet their obligation to
disclose material contest terms either
through broadcast announcements or by
making such terms available in writing
on a publicly accessible Internet Web
site. This revision to the rule is intended
to give broadcasters greater flexibility in
the manner by which they satisfy their
obligation to disclose material contest
terms, while ensuring adequate notice of
such terms to the public. Whereas under
the current rule, licensees must expend
time and resources developing
broadcast messages that adequately
disclose important contest information,
licensees will have the option to
disclose such information through the
Internet. Permitting disclosure through
this additional method is potentially
less costly and administratively
burdensome for licensees, and will
minimize the economic impact on small
entities. One commenter has estimated,
for example, that as much as two hours
that are presently devoted by licensees
to the production of contest-related
broadcast spots will be spared.
Moreover, the air time that is likely to
be freed up as a result of more
abbreviated contest-related
announcements in some cases could be
43 5
U.S.C. 603(c)(1) through (c)(4).
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Federal Register / Vol. 79, No. 244 / Friday, December 19, 2014 / Proposed Rules
used for advertising spots. As noted, the
Petition for Rulemaking in this
proceeding was uniformly supported by
commenting parties, including small
entities. Thus, we anticipate that the
proposed rule revisions, if adopted, will
only benefit small broadcast entities.
Nevertheless, the NPRM seeks comment
on the potential impact of its proposed
rules on such entities.
6. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rule
35. None.
B. Paperwork Reduction Act
36. This document contains proposed
new information collection
requirements. The Commission, as part
of its continuing effort to reduce
paperwork burdens, invites the general
public and the Office of Management
and Budget (OMB) to comment on the
information collection requirements
contained in this document, as required
by the Paperwork Reduction Act of
1995.44 In addition, pursuant to the
Small Business Paperwork Relief Act of
2002,45 we seek specific comment on
how we might ‘‘further reduce the
information collection burden for small
business concerns with fewer than 25
employees.’’ 46
C. Ex Parte Rules
37. Permit-But-Disclose. This
proceeding will be treated as a ‘‘permitbut-disclose’’ proceeding subject to the
‘‘permit-but-disclose’’ requirements
under § 1.1206(b) of the Commission’s
rules.47 Ex parte presentations are
permissible if disclosed in accordance
with Commission rules, except during
the Sunshine Agenda period when
presentations, ex parte or otherwise, are
generally prohibited. Persons making
oral ex parte presentations are reminded
that a memorandum summarizing a
presentation must contain a summary of
the substance of the presentation and
not merely a listing of the subjects
discussed. More than a one- or twosentence description of the views and
arguments presented is generally
required.48 Additional rules pertaining
to oral and written presentations are set
forth in § 1.1206(b).
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D. Filing Requirements
38. Comments and Replies. Pursuant
to §§ 1.415 and 1.419 of the
44 Pub.
L. 104–13.
L. 107–198.
46 44 U.S.C. 3506(c)(4).
47 See 47 CFR 1.1206(b); see also id. 1.1202,
1.1203.
48 See id. 1.1206(b)(2).
Commission’s rules,49 interested parties
may file comments and reply comments
on or before the dates indicated on the
first page of this document. Comments
may be filed using: (1) The
Commission’s Electronic Comment
Filing System (‘‘ECFS’’), (2) the Federal
Government’s eRulemaking Portal, or (3)
by filing paper copies.50
• Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://www.fcc.gov/
cgb/ecfs/ or the Federal eRulemaking
Portal: https://www.regulations.gov.
• Paper Filers: Parties who choose to
file by paper must file an original and
four copies of each filing. If more than
one docket or rulemaking number
appears in the caption of this
proceeding, filers must submit two
additional copies for each additional
docket or rulemaking number.
39. Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
• All hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary must be
delivered to FCC Headquarters at 445
12th St. SW., Room TW–A325,
Washington, DC 20554. All hand
deliveries must be held together with
rubber bands or fasteners. Any
envelopes must be disposed of before
entering the building. The filing hours
are 8:00 a.m. to 7:00 p.m.
• Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights,
MD 20743.
• U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 445 12th Street SW.,
Washington, DC 20554.
40. Availability of Documents.
Comments, reply comments, and ex
parte submissions will be available for
public inspection during regular
business hours in the FCC Reference
Center, Federal Communications
Commission, 445 12th Street SW., CY–
A257, Washington, DC 20554. These
documents will also be available via
ECFS. Documents will be available
electronically in ASCII, Microsoft Word,
and/or Adobe Acrobat.
41. Accessibility Information. To
request information in accessible
45 Pub.
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49 See
id. 1.415, 1.419.
Electronic Filing of Documents in
Rulemaking Proceedings, Report and Order, 13 FCC
Rcd 11322 (1998).
50 See
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formats (computer diskettes, large print,
audio recording, and Braille), send an
email to fcc504@fcc.gov or call the
FCC’s Consumer and Governmental
Affairs Bureau at (202) 418–0530
(voice), (202) 418–0432 (TTY). This
document can also be downloaded in
Word and Portable Document Format
(PDF) at: https://www.fcc.gov.
42. Additional Information. For
additional information on this
proceeding, contact Raelynn Remy of
the Media Bureau, Policy Division, (202)
418–2936, Raelynn.Remy@fcc.gov.
V. Ordering Clauses
43. Accordingly, it is ordered that
pursuant to the authority contained in
sections 4(i), 4(j) and 303 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), and
303, this Notice of Proposed
Rulemaking is adopted.
44. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
the Notice of Proposed Rulemaking,
including the Initial Regulatory
Flexibility Act Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 73
Advertising, Consumer protection,
Fraud, Television broadcasters.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
part 73 as follows:
PART 73—RADIO BROADCAST
SERVICES
1. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 303, 334, 336,
339.
2. Amend § 73.1216 by revising Note
2 to read as follows:
■
§ 73.1216
Licensee-conducted contests.
*
*
*
*
*
Note 2: In general, the time and
manner of disclosure of the material
terms of a contest are within the
licensee’s discretion. However, the
obligation to disclose the material terms
arises at the time the audience is first
told how to enter or participate and
continues thereafter. The disclosure of
material terms shall be made by the
station conducting the contest by either:
(a) Periodic disclosures broadcast on the
station; or (b) written disclosures on the
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station’s Internet Web site, the licensee’s
Web site, or if neither the individual
station nor the licensee has its own Web
site, any Internet Web site that is
publicly accessible. In the former case,
a reasonable number of periodic
broadcast disclosures is sufficient. In
the latter case, the station shall
announce over the air the availability of
material terms on the Web site and
identify the complete, direct Web site
address where the terms are posted each
time the station mentions or advertises
the contest. Material contest terms that
are disclosed on an Internet Web site
must conform in all substantive respects
to those mentioned over the air. Any
changes to the material terms during the
course of the contest must be fully
disclosed on air or the fact that such
changes have been made must be
announced on air and participants must
be directed to the written disclosures on
the Web site.
*
*
*
*
*
[FR Doc. 2014–29633 Filed 12–18–14; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 622
RIN 0648–BE20
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; SnapperGrouper Fishery Off the Southern
Atlantic States; Amendment 32
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of availability; request
for comments.
AGENCY:
The South Atlantic Fishery
Management Council (Council) has
submitted Amendment 32 to the Fishery
Management Plan for the SnapperGrouper Fishery of the South Atlantic
Region (FMP) for review, approval, and
implementation by NMFS. Amendment
32 proposes actions to remove blueline
tilefish from the deep-water complex;
revise definitions of management
thresholds for blueline tilefish; establish
blueline tilefish commercial and
recreational sector annual catch limits
(ACLs), accountability measures (AMs),
and recreational annual catch targets
(ACTs); establish a blueline tilefish
commercial trip limit; revise the
blueline tilefish recreational bag limit;
and revise the deep-water complex
ACLs, AMs, and recreational ACT. The
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SUMMARY:
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16:28 Dec 18, 2014
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purpose of Amendment 32 is to specify
ACLs and AMs for blueline tilefish to
end overfishing of the stock and
maintain catch levels consistent with
achieving optimum yield (OY) for the
blueline tilefish and deep-water
complex resource.
DATES: Written comments must be
received on or before February 17, 2015.
ADDRESSES: You may submit comments
on Amendment 32, identified by
‘‘NOAA–NMFS–2014–0145’’ by any of
the following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20140145, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
Rick DeVictor, Southeast Regional
Office, NMFS, 263 13th Avenue South,
St. Petersburg, FL 33701.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous). Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF
file formats only.
Electronic copies of Amendment 32,
which includes an environmental
assessment, an initial regulatory
flexibility analysis (IRFA), and a
regulatory impact review, may be
obtained from the Southeast Regional
Office Web site at https://
sero.nmfs.noaa.gov/sustainable_
fisheries/s_atl/sg/2014/am32/
index.html.
Rick
DeVictor, telephone: 727–824–5305, or
email: rick.devictor@noaa.gov.
SUPPLEMENTARY INFORMATION: The
snapper-grouper fishery of the South
Atlantic is managed under the FMP. The
FMP was prepared by the Council and
is implemented through regulations at
50 CFR part 622 under the authority of
the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act).
FOR FURTHER INFORMATION CONTACT:
PO 00000
Frm 00022
Fmt 4702
Sfmt 4702
Background
A benchmark assessment for the
blueline tilefish stock in the South
Atlantic was conducted through the
Southeast, Data, Assessment, and
Review (SEDAR) process in 2013
(SEDAR 32). At its October 2013
meeting, the Council’s Scientific and
Statistical Committee (SSC) and the
Council determined the 2013 stock
assessment was based on the best
scientific information available and
considered the assessment to be
appropriate for management decisions.
The assessment determined that the
blueline tilefish stock is undergoing
overfishing in the South Atlantic. As
required by the Magnuson-Stevens Act,
the Council must therefore implement
measures to end overfishing within 2
years of notification of an overfishing
status. NMFS notified the Council of the
blueline tilefish stock status on
December 6, 2013.
The Magnuson-Stevens Act requires
that ACLs and AMs be implemented to
prevent overfishing and achieve the OY
from a fishery. An ACL is the level of
annual catch of a stock that if exceeded,
triggers AMs. AMs are management
controls to prevent ACLs from being
exceeded and to correct any overages of
ACLs if they occur. Two examples of
AMs include an in-season closure if
landings reach or are projected to reach
the ACL, and a post-season overage
adjustment which would reduce the
ACL if an overage occurred during the
previous fishing year.
NMFS published an emergency rule
on April 17, 2014 (79 FR 21636) that
implemented temporary measures to
reduce overfishing of blueline tilefish
while Amendment 32 was being
developed. Those measures were
extended through a temporary rule on
October 14, 2014 (79 FR 61262, October
10, 2014) and are effective through April
18, 2015, while Amendment 32 and its
associated rulemaking are under review.
The temporary measures of the
emergency action include the following:
Removal of blueline tilefish from the
deep-water complex, specification of
sector ACLs and AMs for blueline
tilefish, and revision to the deep-water
complex ACL to reflect the removal of
blueline tilefish from the complex.
Amendment 32 proposes to remove
blueline tilefish from the deep-water
complex; revise definitions of
management thresholds for blueline
tilefish; establish blueline tilefish
commercial and recreational sector
ACLs, AMs, and recreational ACTs;
establish a blueline tilefish commercial
trip limit; revise the blueline tilefish
recreational bag limit; and revise the
E:\FR\FM\19DEP1.SGM
19DEP1
]]>Agencies
[Federal Register Volume 79, Number 244 (Friday, December 19, 2014)]
[Proposed Rules]
[Pages 75773-75780]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-29633]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 14-226; FCC 14-184]
Broadcast Licensee-Conducted Contests
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission proposes to amend its rules
governing broadcast licensee-conducted contests (the ``Contest Rule'')
in a manner that reflects how consumers access information in the 21st
Century. This document proposes to amend the Contest Rule by, among
other things, allowing licensees to comply with their obligation to
disclose material contest terms either through broadcast announcements
or by making such terms available in writing on a publicly accessible
Internet Web site. In addition, the Commission proposes to adopt rules
that would define the disclosure obligation in cases where a station
chooses to meet that obligation through an Internet Web site.
DATES: Comments are due on or before February 17, 2015; reply comments
are due on or before March 19, 2015. Written comments on the Paperwork
Reduction Act proposed information collection requirements must be
submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before February 17, 2015.
ADDRESSES: You may submit comments, identified by MB Docket No. 14-226,
by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: https://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: (202) 418-
0530 or TTY: (202) 418-0432.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act proposed information collection
requirements contained herein should be submitted to the Federal
Communications Commission via email to PRA@fcc.gov. For detailed
instructions for submitting comments and additional information on the
rulemaking process, see the SUPPLEMENTARY INFORMATION section of this
document.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Raelynn Remy of the Policy Division, Media Bureau
at (202) 418-2120 or Raelynn.Remy@fcc.gov. For additional information
concerning the Paperwork Reduction Act information collection
requirements contained in this document, send an email to PRA@fcc.gov
or contact Cathy Williams at (202) 418-2918.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 14-184, adopted and released on November
21, 2014. The full text is available for public inspection and copying
during regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street SW., Room CY-A257,
Washington, DC 20554. This document will also be available via ECFS at
https://fjallfoss.fcc.gov/ecfs/. Documents will be available
electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. The
complete text may be purchased from the Commission's copy contractor,
445 12th Street SW., Room CY-B402, Washington, DC 20554. Alternative
formats are available for people with disabilities (Braille, large
print, electronic files, audio format), by sending an email to
fcc504@fcc.gov or calling the Commission's Consumer and Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
The Notice of Proposed Rulemaking seeks comment on potential
information collection requirements. If the Commission adopts any
information collection requirements, the Commission will publish a
notice in the Federal Register inviting the public to comment on the
requirements, as required by the Paperwork Reduction Act of 1995,
Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), the Commission seeks specific comment on how it
might ``further reduce the information collection burden for small
business concerns with fewer than 25 employees.'' The Commission, as
part of its continuing effort to reduce paperwork burdens, invites the
general public and the Office of Management and Budget (OMB) to comment
on the information collection requirements contained in this document,
as required by the Paperwork Reduction Act of 1995, Public Law 104-13.
Public and agency comments are due February 17, 2015.
Summary
I. Introduction
1. In the Notice of Proposed Rulemaking (NPRM), we propose to amend
Sec. 73.1216 of our rules governing broadcast licensee-conducted
contests (``Contest Rule'') \1\ by, among other things, allowing
licensees to comply with their obligation to disclose material contest
terms either by broadcasting the material terms or making such terms
available in writing on a publicly accessible Internet Web site. The
NPRM stems from a Petition for Rulemaking
[[Page 75774]]
(``Petition'') filed by Entercom Communications Corp. (``Entercom'' or
``Petitioner'') requesting that the Commission so update the Contest
Rule in a manner that reflects how consumers access information in the
21st Century.\2\ The Petition was unopposed, and supported by a number
of commenters.\3\ As discussed below, we propose to modernize our rules
to provide broadcast licensees with greater flexibility in the methods
by which they may satisfy their obligation to disclose material contest
terms, without relaxing licensees' duty to conduct contests with due
regard for the public interest.
---------------------------------------------------------------------------
\1\ 47 CFR 73.1216.
\2\ See Petition for Rulemaking filed by Entercom Communications
Corp., CGB Docket No. RM-11684 (filed Jan. 20, 2012).
\3\ We note that we received no comments on the Petition from
consumer advocacy groups or members of the general public and
encourage all interested parties to file in response to the NPRM.
---------------------------------------------------------------------------
II. Background
A. The Contest Rule
2. Radio and television stations frequently run contests as a form
of promotion, advertisement, and entertainment. The Commission adopted
the existing Contest Rule in 1976 to address concerns about the manner
in which broadcast licensees were conducting contests over the air.
That rule provides, in part:
A licensee that broadcasts or advertises information about a
contest it conducts shall fully and accurately disclose the material
terms of the contest, and shall conduct the contest substantially as
announced or advertised. No contest description shall be false,
misleading or deceptive with respect to any material term.\4\
---------------------------------------------------------------------------
\4\ 47 CFR 73.1216. The Contest Rule defines ``contest'' as ``a
scheme in which a prize is offered or awarded, based upon chance,
diligence, knowledge or skill, to members of the public.'' Id., Note
1(a). In addition, the rule provides that:
[m]aterial terms include those factors which define the
operation of the contest and which affect participation therein.
Although the material terms may vary widely depending on the exact
nature of the contest, they will generally include: How to enter or
participate; eligibility restrictions; entry deadline dates, whether
prizes can be won; when prizes can be won; the extent, nature and
value of prizes; basis for valuation of prizes; time and means of
selection of winners; and/or tie-breaking procedures. Id., Note
1(b).
---------------------------------------------------------------------------
The Contest Rule contains prescriptions regarding the time and
manner of disclosing material contest terms:
[T]he time and manner of disclosure of the material terms of a
contest are within the licensee's discretion. However, the
obligation to disclose the material terms arises at the time the
audience is first told how to enter or participate and continues
thereafter. The material terms should be disclosed periodically by
announcements broadcast on the station conducting the contest, but
need not be enumerated each time an announcement promoting the
contest is broadcast. Disclosure of material terms in a reasonable
number of announcements is sufficient. In addition to the required
broadcast announcements, disclosure of the material terms may be
made in a non-broadcast manner.\5\
---------------------------------------------------------------------------
\5\ Id., Note 2. The Contest Rule does not apply to licensee-
conducted contests that are not broadcast or advertised to the
general public or to a substantial segment of the public, to
contests in which the general public is not requested or permitted
to participate, to the commercial advertisement of non-licensee-
conducted contests, or to a contest conducted by a non-broadcast
division of the licensee or by a non-broadcast company related to
the licensee. See id., Note 3.
The Contest Rule was premised on the Commission's conclusion that ``a
licensee's contests should be conducted fairly and substantially as
represented to the public, and . . . failure to do so falls short of
the degree of responsibility expected of licensees.''
3. As set forth above, the Contest Rule requires a licensee to
broadcast the material terms of a contest the first time it informs its
audience how to enter or participate, and to repeat such terms a
reasonable number of times thereafter.\6\ Although, under the rule,
licensees are permitted to employ non-broadcast methods for disclosing
material contest terms, they may not substitute such methods for the
required broadcast disclosure.
---------------------------------------------------------------------------
\6\ See 47 CFR 73.1216, Note 2.
---------------------------------------------------------------------------
B. Petition for Rulemaking
4. In January 2012, Entercom filed the Petition requesting that the
Commission revise the disclosure requirements of Sec. 73.1216.
Specifically, Petitioner proposes that the Commission amend Sec.
73.1216 to permit broadcasters to satisfy their obligation to disclose
material contest terms either by: (i) Broadcasting such terms on the
station (as required by the current rule); \7\ or (ii) providing
material terms in written form on a Web site and upon request by email,
facsimile, mail, or in person, provided that the station makes periodic
announcements informing viewers and listeners how and where the public
can obtain access to the material terms.\8\ In addition, Petitioner
asserts that broadcasters that lack their own Web sites should be
allowed to post contest terms on the Web site of a state broadcasters'
association that permits such posting.
---------------------------------------------------------------------------
\7\ As discussed infra, Petitioner does not propose complete
elimination of broadcast disclosure because, it argues, such on-air
announcements may still make sense for some licensees and for simple
contests where little information has to be conveyed to listeners.
See Entercom Petition at 5.
\8\ Id. Although Petitioner proposes to require licensees to
make contest terms available, upon request, via email facsimile,
postal mail, or in person, we decline to propose this at this time
because we believe that permitting licensees to disclose contest
terms through broadcast and Internet methods is adequate to ensure
the availability of material contest information to the public.
---------------------------------------------------------------------------
5. Petitioner contends that its proposed revisions will bring the
Contest Rule into alignment with how Americans access and consume
information in the 21st Century and provide for a more effective means
of distributing contest information to the public. It asserts that,
``[i]n today's fast paced world, Americans expect to instantly access
information . . . by merely logging on to a Web site [or] conducting
[an Internet] search''; thus, it argues, reliance on broadcast
announcements to disseminate material contest information is no longer
an acceptable way to inform the public about contest terms. Petitioner
asserts that the vast majority of broadcasters already have dedicated
Web sites where they can post complete contest information that the
public can access ``on demand.'' Moreover, it argues that licensees can
disseminate contest information via additional methods, such as email,
that are more effective than broadcast at conveying contest terms.
6. Petitioner argues that, because the current rule requires
licensees to disclose material contest terms via broadcast only
periodically, such disclosures may not be heard or seen by an audience
member interested in the contest. Further, Petitioner contends that the
material terms of some contests can be quite complex and lengthy, such
that even if listeners hear (or see, in the case of television) a
periodic announcement of such terms, it is nearly impossible for them
to comprehend and remember all of the information disclosed. Thus, it
asserts, audiences are not likely to obtain useful information from
such broadcasts.
7. Petitioner contends that the public today accesses information
in ways that are dramatically different from how the public accessed
information when the Contest Rule was adopted, and cites evidence that
the Internet is the medium used by most Americans to obtain information
instantaneously. According to Petitioner, the public is accustomed to
accessing station Web sites to obtain current news, weather, traffic
reports, and other information, and, therefore, the public reasonably
expects to find contest information on station Web sites. Petitioner
further notes that the Commission itself has recognized the
[[Page 75775]]
ubiquity and efficiency of the Internet and its utility to Commission
processes.
8. In November 2012, the Commission's Consumer and Governmental
Affairs Bureau (``CGB'') issued a Public Notice inviting comment on the
Petition. Each of the sixteen parties that responded to the Public
Notice support the Petitioner's request to commence a rulemaking
proceeding to modernize the Contest Rule.
III. Discussion
9. We propose to amend the Contest Rule to allow broadcasters to
satisfy their obligation to disclose material contest terms by making
such terms available in writing on a publicly accessible Internet Web
site. We believe that this rule revision will give broadcasters greater
flexibility in the means by which they may comply with the Contest Rule
and is consistent with the Commission's recognition that the Internet
is an effective tool for distributing information to broadcast
audiences. We seek comment on this proposal. Although the Commission's
rule currently requires that material terms be disclosed periodically
by announcements broadcast on the station,\9\ we agree with parties who
assert that the dramatic changes in the way that consumers access
information since the Contest Rule was adopted justify updating the
rule. As some commenters note, the public is accustomed to accessing
station Web sites to obtain a broad range of information. In fact, the
record reflects that some licensees already use their Web sites to post
contest-related information, and allow consumers to enter and
participate in contests via station Web sites. Parties contend that
posting material contest terms in writing on station Web sites will
give potential contest participants immediate access to those terms and
allow the public to review the terms at their convenience, thereby
meeting consumer expectations for accessing such information and
potentially reducing consumer confusion.
---------------------------------------------------------------------------
\9\ In particular, the Contest Rule provides that: ``The
material terms should be disclosed periodically by announcements
broadcast on the station conducting the contest. . . . In addition
to the required broadcast announcements, disclosure of the material
terms may be made in a non-broadcast manner.'' 47 CFR 73.1216, Note
2. See also Good Karma Broad. LLC, 27 FCC Rcd 10938, 10941 n.32 (EB
2012) (``Posting contest rules on a station's Web site does not
satisfy Sec. 73.1216's requirement that a licensee broadcast the
material terms of a contest it conducts.''); Joint Commenters
Comments at 2, citing Clear Channel Communications, Inc., 27 FCC Rcd
343, 346 ] 6 (EB 2012) (``While stations are free to provide contest
information in other formats, including Internet postings, numerous
Commission decisions have repeatedly made clear that `licensees
cannot avail themselves of alternative non-broadcast announcements
to satisfy the requirement that they accurately announce a contest's
material terms.' '').
---------------------------------------------------------------------------
10. We propose to allow a broadcast station to satisfy its Sec.
73.1216 disclosure obligation by posting material contest terms on the
station's Internet Web site, the licensee's Web site, or, if neither
the individual station nor the licensee has its own Web site, any
readily publicly accessible Internet Web site.\10\ We seek comment on
the costs and benefits of adopting this proposal. In addition, we seek
comment on whether and to what extent we should adopt rules specifying
the format for contest disclosures that are posted on Internet Web
sites.
---------------------------------------------------------------------------
\10\ As noted above, although Petitioner proposes to allow
stations that do not have their own Web site to post material
contest terms to the Web site of a state broadcasters' association,
NSBA has asserted that ``there is no unanimity among the State
Associations for agreeing to serve as a third-party Web host for
station contest rules.'' See NSBA Comments at 6. See also VAB
Comments at 3; OAB Comments at 4; NCAB Comments at 3. NSBA thus
proposes to allow licensees the option of posting their contest
rules on any Web site that allows such posting, under certain
conditions. NSBA Comments at 6. Petitioner does not oppose NSBA's
proposal. See Entercom Reply at 3-4.
---------------------------------------------------------------------------
11. If a licensee uses an Internet Web site to disclose material
contest terms, how could we ensure that such terms are easy for
consumers to locate on that Web site? For example, should we require a
link on the Web site's home page to the contest terms? How long should
a licensee be required to maintain the contest information on the Web
site? NSBA asserts that a non-station Web site that is used to comply
with the Contest Rule's disclosure requirements must be ``accessible to
the public 24/7 during the contest, for free, and without any
registration requirement.'' Should a revised Contest Rule contain these
requirements? Are there other Web site characteristics or requirements
that the rule should mandate to promote the goal of public
accessibility? We are sensitive to the possibility that consumers may
become frustrated if they cannot readily locate a contest's material
terms on a non-licensee Web site, and seek comment on how licensees
might anticipate and avoid problems associated with posting content
rules to non-licensee sites. We propose to apply the same rule to radio
and television licensees, but seek comment on whether any differences
in those services merit different treatment in the rule. In particular,
we seek comment on the impact of the above proposals on small
broadcasters.
12. We note that the disclosure requirements in Sec. 73.1216
pertain to ``material'' contest terms, defined as those terms that
``define the operation of the contest and which affect participation
therein.'' Section 73.1216 provides that ``material terms may vary
widely depending on the exact nature of the contest,'' but that such
terms generally will include: How to enter or participate; eligibility
restrictions; entry deadline dates, whether prizes can be won; when
prizes can be won; the extent, nature and value of prizes; basis for
valuation of prizes; time and means of selection of winners; and/or
tie-breaking procedures. To the extent that licensees have difficulty
determining which terms are ``material'' and thus subject to disclosure
under the Contest Rule, would revising the rule as proposed eliminate
or reduce the need for licensees to make this determination, insofar as
they could post all contest information in writing online? On the other
hand, is it necessary to require that licensees set apart or
distinguish in some way contest terms deemed ``material'' from other
contest information to ensure that this important information is
readily available to the public and not buried in lengthy fine print?
We seek comment generally on whether or to what extent we need to
refine the definition of ``material'' given our proposed change to the
Contest Rule. To avoid consumer confusion, we propose that, consistent
with existing Commission precedent, any material terms announced on air
must not differ from the material terms disclosed on a Web site.\11\
---------------------------------------------------------------------------
\11\ For example, if the on air announcement or advertising for
the contest identifies a particular prize by brand name or model,
then the Web site disclosure must be the same.
---------------------------------------------------------------------------
13. We propose further to modify the Contest Rule by requiring
stations that choose to satisfy their disclosure obligations via an
Internet Web site to broadcast the complete, direct Web site address
where the contest terms are posted \12\ each time the station mentions
or advertises a contest. Under the current rule, stations are required
to broadcast material terms periodically after their initial
disclosure. The discretion afforded licensees under the current rule to
determine when they will broadcast material terms after initial
disclosure can potentially leave a consumer without access to such
terms at the time a contest is advertised on air, as well as create
uncertainty for broadcasters about their compliance
[[Page 75776]]
with the rule. Although the rule changes we propose diverge from
Petitioner's proposal (which would require stations to broadcast
announcements identifying the Web site address only periodically), we
believe that requiring licensees to broadcast the Web site address
where contest terms are available each time they mention or advertise a
contest will better inform the public of material contest information
and is not unduly burdensome. We believe that such a requirement is
less burdensome than requiring a licensee to periodically broadcast
material contest terms in full. Therefore, we propose to require
licensees to broadcast the Web site address on which material contest
terms are posted each time they mention or advertise a contest. In
addition, if a licensee that chooses to satisfy its disclosure
obligations via the Internet changes the material terms of a contest
after the contest is first announced, we propose that the licensee must
announce on air that the contest rules have changed and direct
participants to the Web site to review the changes. We seek comment on
the appropriate frequency and duration of this requirement. For
example, should this announcement have to be made each time the
licensee announces the contest and broadcasts the Web site address
where such terms are posted, and if so, for how long should that
requirement last? \13\ We seek comment on these proposals, including
the costs and benefits of adopting these rules. We also seek comment on
the impact of these proposals on small licensees.
---------------------------------------------------------------------------
\12\ By complete, direct Web site address, we mean the address
that will take the consumer directly to the page on the Web site
where the contest terms are posted. If licensees post the contest
terms on the home page of the Web site or post a direct link to the
contest terms on the home page, then announcing the home page
address will suffice to ensure consumers can easily find and review
the terms of the contest.
\13\ The Commission has interpreted the existing Contest Rule to
impose on licensees an obligation to notify the public of changes to
material contest terms by announcing such changes over the air. See
Access 1 New Jersey License Co., LLC, Notice of Apparent Liability
for Forfeiture, 22 FCC Rcd 4232, 4235, ] 8 and n.24 (EB 2007)
(finding that a licensee's failure to notify the public of changes
to material contest terms violated the Contest Rule). See also Clear
Channel Broad. Licenses, Inc., Notice of Apparent Liability for
Forfeiture, 21 FCC Rcd 4072 (EB 2006) (imposing forfeiture for
unannounced contest rule change that excluded contestant's multiple
entries). Thus, if we were to amend the Contest Rule to permit
disclosure of material contest terms via a Web site, licensees that
chose to comply with their disclosure obligations via broadcast
similarly would be required to notify the public of changes to such
terms through broadcast announcements.
---------------------------------------------------------------------------
14. We propose that we should still permit broadcast disclosure as
one means of complying with the Contest Rule. As Petitioner notes,
broadcast disclosure of material contest information ``may still make
sense for some broadcasters and for extremely simple contests where
very little information has to be conveyed to the [audience].'' If we
retain broadcast disclosure as a method of complying with the Contest
Rule, should we make any changes to the rule to improve the
effectiveness of broadcasting material contest terms?
IV. Procedural Matters
A. Regulatory Flexibility Act
15. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA'') \14\ the Commission has prepared this present Initial
Regulatory Flexibility Act Analysis (``IRFA'') concerning the possible
significant economic impact on small entities by the policies and rules
proposed in the NPRM. Written public comments are requested on this
IRFA. Comments must be identified as responses to the IRFA and must be
filed by the deadlines for comments provided on the first page of the
NPRM. The Commission will send a copy of the NPRM, including this IRFA,
to the Chief Counsel for Advocacy of the Small Business Administration
(``SBA'').\15\ In addition, the NPRM and IRFA (or summaries thereof)
will be published in the Federal Register.\16\
---------------------------------------------------------------------------
\14\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996).
\15\ See 5 U.S.C. 603(a).
\16\ See id.
---------------------------------------------------------------------------
1. Need for, and Objectives of, the Proposed Rule Changes
16. The NPRM stems from an unopposed Petition for Rulemaking filed
by Entercom Communications Corp. requesting that the Commission update
Sec. 73.1216 of its rules governing broadcast licensee-conducted
contests (the ``Contest Rule'') \17\ in a manner that reflects how
consumers access information in the 21st Century.\18\ The NPRM proposes
to amend the Contest Rule by, among other things, allowing licensees to
comply with their obligation to disclose material contest terms either
through broadcast announcements or by making such terms available in
writing on a publicly accessible Internet Web site.
---------------------------------------------------------------------------
\17\ 47 CFR 73.1216.
\18\ See Petition for Rulemaking filed by Entercom
Communications Corp., CGB Docket No. RM-11684 (filed Jan. 20, 2012).
---------------------------------------------------------------------------
17. In particular, the NPRM proposes to amend the Contest Rule: (i)
To permit a licensee that chooses to satisfy its disclosure obligations
by means of an Internet Web site to make material contest terms
available on the station's Web site, the licensee's Web site, or, if
neither the station nor the licensee has its own Web site, any publicly
accessible Internet Web site; (ii) to require that any material contest
terms announced on air not differ from the material terms disclosed on
a Web site; (iii) to require a station that chooses to satisfy its
disclosure obligation via the Internet to broadcast the complete,
direct Web site address where the contest terms are posted each time
the station mentions or advertises a contest; and (iv) to require that,
if a licensee that chooses to satisfy its disclosure obligation via the
Internet changes the material terms of a contest after the contest is
first announced, the licensee announce on air that the contest rules
have changed and direct participants to the Web site to review the
changes. These proposals are intended to modernize the Contest Rule in
a manner that gives broadcasters greater flexibility in the methods by
which they satisfy their obligation to disclose material contest terms,
while ensuring adequate notice of such terms to the public.
2. Legal Basis
18. The proposed action is authorized pursuant to sections 4(i),
4(j), and 303 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), and 303.
3. Description and Estimates of the Number of Small Entities to Which
the Proposed Rules Will Apply
19. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.\19\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \20\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\21\ A small business concern is one
which: (1) Is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the SBA.\22\ The rules
[[Page 75777]]
proposed herein will directly affect small television and radio
broadcast stations. Below, we provide a description of these small
entities, as well as an estimate of the number of such small entities,
where feasible.
---------------------------------------------------------------------------
\19\ 5 U.S.C. 603(b)(3).
\20\ 5 U.S.C. 601(6).
\21\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in 15 U.S.C. 632). Pursuant to 5
U.S.C. 601(3), the statutory definition of a small business applies
``unless an agency, after consultation with the Office of Advocacy
of the Small Business Administration and after opportunity for
public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\22\ 15 U.S.C. 632. Application of the statutory criteria of
dominance in its field of operation and independence are sometimes
difficult to apply in the context of broadcast television.
Accordingly, the Commission's statistical account of television
stations may be over-inclusive.
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20. Television Broadcasting. This economic Census category
``comprises establishments primarily engaged in broadcasting images
together with sound.'' \23\ The SBA has created the following small
business size standard for such businesses: those having $38.5 million
or less in annual receipts.\24\ The 2007 U.S. Census indicates that 808
firms in this category operated in that year. Of that number, 709 had
annual receipts of $25,000,000 or less, and 99 had annual receipts of
more than $25,000,000.\25\ Because the Census has no additional
classifications that could serve as a basis for determining the number
of stations whose receipts exceeded $38.5 million in that year, we
conclude that the majority of television broadcast stations were small
under the applicable SBA size standard.
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\23\ U.S. Census Bureau, 2012 NAICS Definitions, ``515120
Television Broadcasting,'' at https://www.census.gov./cgi-bin/sssd/
naics/naicsrch.
\24\ 13 CFR 121.201; 2012 NAICS code 515120.
\25\ U.S. Census Bureau, Table No. EC0751SSSZ4, Information:
Subject Series--Establishment and Firm Size: Receipts Size of Firms
for the United States: 2007 (515120), https://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&prodType=table.
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21. Apart from the U.S. Census, the Commission has estimated the
number of licensed commercial television stations to be 1,387
stations.\26\ Of this total, 1,221 stations (or about 88 percent) had
revenues of $38.5 million or less, according to Commission staff review
of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on
July 2, 2014. In addition, the Commission has estimated the number of
licensed noncommercial educational (NCE) television stations to be
395.\27\ NCE stations are non-profit, and therefore considered to be
small entities.\28\ Based on these data, we estimate that the majority
of television broadcast stations are small entities.
---------------------------------------------------------------------------
\26\ See Broadcast Station Totals as of June 30, 2014, Press
Release (MB rel. July 9, 2014) (Broadcast Station Totals) at https://apps.fcc.gov/edocs_public/attachmatch/DOC-328096A1.pdf.
\27\ See Broadcast Station Totals, supra.
\28\ See generally 5 U.S.C. 601(4), (6).
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22. Class A TV and LPTV Stations. The same SBA definition that
applies to television broadcast stations would apply to licensees of
Class A television stations and low power television (LPTV) stations,
as well as to potential licensees in these television services. As
noted above, the SBA has created the following small business size
standard for this category: Those having $38.5 million or less in
annual receipts.\29\ The Commission has estimated the number of
licensed Class A television stations to be 432.\30\ The Commission has
also estimated the number of licensed LPTV stations to be 2,028.\31\
Given the nature of these services, we will presume that these
licensees qualify as small entities under the SBA definition.
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\29\ 13 CFR 121.201; NAICS code 515120.
\30\ See Broadcast Station Totals, supra.
\31\ See Broadcast Station Totals, supra.
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23. We note, however, that in assessing whether a business concern
qualifies as ``small'' under the above definition, business (control)
affiliations \32\ must be included. Because we do not include or
aggregate revenues from affiliated companies in determining whether an
entity meets the revenue threshold noted above, our estimate of the
number of small entities affected is likely overstated. In addition, we
note that one element of the definition of ``small business'' is that
an entity not be dominant in its field of operation. We are unable at
this time to define or quantify the criteria that would establish
whether a specific television broadcast station is dominant in its
field of operation. Accordingly, our estimate of small television
stations potentially affected by the proposed rules includes those that
could be dominant in their field of operation. For this reason, such
estimate likely is over-inclusive.
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\32\ ``[Business concerns] are affiliates of each other when one
concern controls or has the power to control the other or a third
party or parties controls or has the power to control both.'' 13 CFR
21.103(a)(1).
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24. Radio Stations. This economic Census category ``comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public.'' \33\ The SBA has created the following small
business size standard for this category: Those having $38.5 million or
less in annual receipts.\34\ Census data for 2007 shows that 2,926
firms in this category operated in that year.\35\ Of this number, 2,877
firms had annual receipts of less than $25,000,000, and 49 firms had
annual receipts of $25,000,000 or more.\36\ Because the Census has no
additional classifications that could serve as a basis for determining
the number of stations whose receipts exceeded $38.5 million in that
year, we conclude that the majority of television broadcast stations
were small under the applicable SBA size standard.
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\33\ U.S. Census Bureau, 2012 NAICS Definitions, ``515112 Radio
Stations,'' at https://www.census.gov/cgi-bin/sssd/naics/naicsrch.
This category description continues, ``Programming may originate in
their own studio, from an affiliated network, or from external
sources.''
\34\ 13 CFR 121.201; NAICS code 515112.
\35\ U.S. Census Bureau, Table No. EC0751SSSZ4, Information:
Subject Series--Establishment and Firm Size: Receipts Size of Firms
for the United States: 2007 (515112), https://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&prodType=table.
\36\ Id.
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25. Apart from the U.S. Census, the Commission has estimated the
number of licensed commercial AM radio stations to be 4,553 stations
and the number of commercial FM radio stations to be 6,622, for a total
number of 11,175.\37\ Of this total, 9,898 stations (or about 90
percent) had revenues of $38.5 million or less, according to Commission
staff review of the BIA Kelsey Inc. Media Access Pro Television
Database (BIA) on October 23, 2014. In addition, the Commission has
estimated the number of licensed noncommercial educational (``NCE'') AM
radio stations to be 168 stations and the number of noncommercial
educational FM radio stations to be 4,082, for a total of 4,250.\38\
NCE stations are non-profit, and therefore considered to be small
entities.\39\ Therefore, we estimate that the majority of radio
broadcast stations are small entities.
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\37\ See Broadcast Station Totals as of June 30, 2014, Press
Release (MB rel. July 9, 2014) (Broadcast Station Totals) at https://apps.fcc.gov/edocs_public/attachmatch/DOC-328096A1.pdf. This
document only indicates the total number of AM stations as 4,721.
The breakdown between licensed AM commercial and noncommercial
stations was obtained from Staff review of the Consolidated Database
System (CDBS). See https://licensing.fcc.gov/prod/cdbs/pubacc/prod/cdbs_pa.htm.
\38\ See Broadcast Station Totals, supra.
\39\ See generally 5 U.S.C. 601(4), (6).
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26. Low Power FM Stations. The same SBA definition that applies to
radio stations would apply to low power FM stations. As noted above,
the SBA has created the following small business size standard for this
category: Those having $38.5 million or less in annual receipts.\40\
The Commission has estimated the number of licensed low power FM
stations to be 814.\41\ Given the nature of these services, we will
presume that these licensees qualify as small entities under the SBA
definition.
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\40\ See 13 CFR 121.201, NAICS Code 515112.
\41\ See News Release, ``Broadcast Station Totals as of June 30,
2012'' (rel. Jul. 19, 2012) (https://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-304594A1315231A1.pdf).
---------------------------------------------------------------------------
27. We note again, however, that in assessing whether a business
concern qualifies as ``small'' under the above definition, business
(control) affiliations \42\ must be included. Because
[[Page 75778]]
we do not include or aggregate revenues from affiliated companies in
determining whether an entity meets the applicable revenue threshold,
our estimate of the number of small radio broadcast stations affected
is likely overstated. In addition, as noted above, one element of the
definition of ``small business'' is that an entity not be dominant in
its field of operation. We are unable at this time to define or
quantify the criteria that would establish whether a specific radio
broadcast station is dominant in its field of operation. Accordingly,
our estimate of small radio stations potentially affected by the
proposed rules includes those that could be dominant in their field of
operation. For this reason, such estimate likely is over-inclusive.
---------------------------------------------------------------------------
\42\ ``[Business concerns] are affiliates of each other when one
concern controls or has the power to control the other or a third
party or parties controls or has the power to control both.'' 13 CFR
21.103(a)(1).
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4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
28. In this section, we identify the reporting, recordkeeping, and
other compliance requirements proposed in the NPRM and consider whether
small entities are affected disproportionately by any such
requirements.
29. Reporting Requirements. The NPRM does not propose to adopt
reporting requirements.
30. Recordkeeping Requirements. The NPRM proposes certain
recordkeeping requirements that would be applicable to covered small
entities. In particular, the NPRM:
Proposes to allow broadcast licensees to satisfy their
obligation to disclose material contest terms by posting such terms on
the station's Web site, the licensee's Web site, or, if neither the
station nor the licensee has its own Web site, any publicly accessible
Internet Web site;
proposes that any material contest terms announced on air
must not differ from the material terms disclosed on a Web site;
proposes to require stations that choose to satisfy their
disclosure obligations via an Internet Web site to broadcast the
complete, direct Web site address where the contest terms are posted
each time the station mentions or advertises a contest;
proposes that, if a licensee that chooses to satisfy its
disclosure obligations via an Internet Web site changes the material
terms of a contest after the contest is first announced, such licensee
be required to announce on air that the contest terms have changed and
direct participants to the Web site to review the changes; and
seeks comment on whether a licensee that chooses to
satisfy its disclosure obligations via the Internet and that changes
contest terms after a contest is first announced, must repeat that the
contest terms have changed each time it announces the contest and
broadcasts the Web site address where such terms are posted, and if so,
how long that requirement should last.
31. Other Compliance Requirements. The NPRM seeks comment on other
compliance requirements that would be applicable to covered small
entities. In particular, the NPRM:
Seeks comment on whether and to what extent the Commission
should adopt rules specifying the format for contest disclosures that
are posted on Internet Web sites and how long stations should be
required to maintain such disclosures on a Web site;
seeks comment on whether licensees should be required to
set apart or distinguish in some way contest terms deemed ``material''
from other contest information to ensure that important contest
information is readily available to the public;
seeks comment on whether to adopt requirements designed to
ensure that the material terms of a contest are easy for consumers to
locate on a public Web site;
seeks comment on whether to require that a public Web site
that is used to comply with the Contest Rule's disclosure requirements
be accessible to the public 24/7 during the contest, for free, and
without any registration requirement, and whether there are other
characteristics that such Web sites should be required to possess;
seeks comment on how licensees can anticipate and avoid
problems associated with posting contest terms to non-licensee Web
sites;
seeks comment on whether there are any differences between
radio and television licensees that merit different treatment in the
rule; and
seeks comment on whether, if broadcast disclosure is
retained as one method of complying with the Contest Rule, any changes
should be made to the rule to improve the effectiveness of broadcasting
material contest terms.
32. Because no commenter provided information specifically
quantifying the costs and administrative burdens associated with the
Petitioner's proposed rule revisions, we cannot precisely estimate the
impact of the rules proposed in the NPRM on small entities. However,
the proposed revisions will afford all licensees, including small
broadcasters, greater flexibility in the method by which they comply
with the Contest Rule. In addition, we note that the proposed revisions
were derived largely from the Petition for Rulemaking in this
proceeding, which was unopposed and supported by all commenters,
including small broadcasters. Thus, we find it reasonable to conclude
that any costs or burdens on small entities resulting from the proposed
requirements will be outweighed by the benefits.
5. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
33. The RFA requires an agency to describe any significant,
specifically small business, 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 and
reporting requirements under the rule for such 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.\43\
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\43\ 5 U.S.C. 603(c)(1) through (c)(4).
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34. The accompanying NPRM principally proposes to amend Sec.
73.1216 of the Commission's rules by allowing all licensees, including
small broadcasters, to meet their obligation to disclose material
contest terms either through broadcast announcements or by making such
terms available in writing on a publicly accessible Internet Web site.
This revision to the rule is intended to give broadcasters greater
flexibility in the manner by which they satisfy their obligation to
disclose material contest terms, while ensuring adequate notice of such
terms to the public. Whereas under the current rule, licensees must
expend time and resources developing broadcast messages that adequately
disclose important contest information, licensees will have the option
to disclose such information through the Internet. Permitting
disclosure through this additional method is potentially less costly
and administratively burdensome for licensees, and will minimize the
economic impact on small entities. One commenter has estimated, for
example, that as much as two hours that are presently devoted by
licensees to the production of contest-related broadcast spots will be
spared. Moreover, the air time that is likely to be freed up as a
result of more abbreviated contest-related announcements in some cases
could be
[[Page 75779]]
used for advertising spots. As noted, the Petition for Rulemaking in
this proceeding was uniformly supported by commenting parties,
including small entities. Thus, we anticipate that the proposed rule
revisions, if adopted, will only benefit small broadcast entities.
Nevertheless, the NPRM seeks comment on the potential impact of its
proposed rules on such entities.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
35. None.
B. Paperwork Reduction Act
36. This document contains proposed new information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995.\44\ In addition, pursuant to the Small Business
Paperwork Relief Act of 2002,\45\ we seek specific comment on how we
might ``further reduce the information collection burden for small
business concerns with fewer than 25 employees.'' \46\
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\44\ Pub. L. 104-13.
\45\ Pub. L. 107-198.
\46\ 44 U.S.C. 3506(c)(4).
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C. Ex Parte Rules
37. Permit-But-Disclose. This proceeding will be treated as a
``permit-but-disclose'' proceeding subject to the ``permit-but-
disclose'' requirements under Sec. 1.1206(b) of the Commission's
rules.\47\ Ex parte presentations are permissible if disclosed in
accordance with Commission rules, except during the Sunshine Agenda
period when presentations, ex parte or otherwise, are generally
prohibited. Persons making oral ex parte presentations are reminded
that a memorandum summarizing a presentation must contain a summary of
the substance of the presentation and not merely a listing of the
subjects discussed. More than a one- or two-sentence description of the
views and arguments presented is generally required.\48\ Additional
rules pertaining to oral and written presentations are set forth in
Sec. 1.1206(b).
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\47\ See 47 CFR 1.1206(b); see also id. 1.1202, 1.1203.
\48\ See id. 1.1206(b)(2).
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D. Filing Requirements
38. Comments and Replies. Pursuant to Sec. Sec. 1.415 and 1.419 of
the Commission's rules,\49\ interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. Comments may be filed using: (1) The Commission's
Electronic Comment Filing System (``ECFS''), (2) the Federal
Government's eRulemaking Portal, or (3) by filing paper copies.\50\
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\49\ See id. 1.415, 1.419.
\50\ See Electronic Filing of Documents in Rulemaking
Proceedings, Report and Order, 13 FCC Rcd 11322 (1998).
---------------------------------------------------------------------------
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: https://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: https://www.regulations.gov.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
39. Filings can be sent by hand or messenger delivery, by
commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building. The filing
hours are 8:00 a.m. to 7:00 p.m.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street SW., Washington, DC 20554.
40. Availability of Documents. Comments, reply comments, and ex
parte submissions will be available for public inspection during
regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street SW., CY-A257, Washington, DC
20554. These documents will also be available via ECFS. Documents will
be available electronically in ASCII, Microsoft Word, and/or Adobe
Acrobat.
41. Accessibility Information. To request information in accessible
formats (computer diskettes, large print, audio recording, and
Braille), send an email to fcc504@fcc.gov or call the FCC's Consumer
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY). This document can also be downloaded in Word and Portable
Document Format (PDF) at: https://www.fcc.gov.
42. Additional Information. For additional information on this
proceeding, contact Raelynn Remy of the Media Bureau, Policy Division,
(202) 418-2936, Raelynn.Remy@fcc.gov.
V. Ordering Clauses
43. Accordingly, it is ordered that pursuant to the authority
contained in sections 4(i), 4(j) and 303 of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 154(j), and 303, this Notice of
Proposed Rulemaking is adopted.
44. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of the Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy
of the Small Business Administration.
List of Subjects in 47 CFR Part 73
Advertising, Consumer protection, Fraud, Television broadcasters.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, 339.
0
2. Amend Sec. 73.1216 by revising Note 2 to read as follows:
Sec. 73.1216 Licensee-conducted contests.
* * * * *
Note 2: In general, the time and manner of disclosure of the
material terms of a contest are within the licensee's discretion.
However, the obligation to disclose the material terms arises at the
time the audience is first told how to enter or participate and
continues thereafter. The disclosure of material terms shall be made by
the station conducting the contest by either: (a) Periodic disclosures
broadcast on the station; or (b) written disclosures on the
[[Page 75780]]
station's Internet Web site, the licensee's Web site, or if neither the
individual station nor the licensee has its own Web site, any Internet
Web site that is publicly accessible. In the former case, a reasonable
number of periodic broadcast disclosures is sufficient. In the latter
case, the station shall announce over the air the availability of
material terms on the Web site and identify the complete, direct Web
site address where the terms are posted each time the station mentions
or advertises the contest. Material contest terms that are disclosed on
an Internet Web site must conform in all substantive respects to those
mentioned over the air. Any changes to the material terms during the
course of the contest must be fully disclosed on air or the fact that
such changes have been made must be announced on air and participants
must be directed to the written disclosures on the Web site.
* * * * *
[FR Doc. 2014-29633 Filed 12-18-14; 8:45 am]
BILLING CODE 6712-01-P
