Channel Sharing by Full Power and Class A Stations Outside the Broadcast Television Spectrum Incentive Auction Context, 67344-67346 [2015-27632]
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Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations
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[FR Doc. 2015–27738 Filed 10–30–15; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[GN Docket No. 12–268 and MB Docket No.
15–137; FCC 15–139]
Channel Sharing by Full Power and
Class A Stations Outside the
Broadcast Television Spectrum
Incentive Auction Context
Federal Communications
Commission.
ACTION: Final rule.
asabaliauskas on DSK5VPTVN1PROD with RULES
AGENCY:
SUMMARY: In this Second Order on
Reconsideration, the Federal
Communications Commission
(Commission) provides more flexibility
to broadcasters interested in the channel
sharing option in the broadcast
incentive auction by clarifying that
back-up channel sharing agreements
(‘‘CSAs’’) are permitted under its rules
and providing more time for successful
bidders to transition to shared facilities
after the auction. The Commission also
provides guidance regarding how the
CSA exception to the prohibited
communications rule applies with
respect to back-up CSAs.
DATES: Effective December 2, 2015.
FOR FURTHER INFORMATION CONTACT:
Shaun Maher, Shaun.Maher@fcc.gov of
the Media Bureau, Video Division, (202)
418–2324.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Second
Order on Reconsideration, FCC 15–139,
adopted October 21, 2015, in MB Docket
No. 15–137. The full text of the Second
Order on Reconsideration is available
for inspection and copying during
regular business hours in the FCC
Reference Center, 445 12th Street SW.,
Room CY–A257, Portals II, Washington,
DC 20554. This document is available in
alternative formats (computer diskette,
large print, audio record, and Braille).
Persons with disabilities who need
documents in these formats may contact
the FCC by email: FCC504@fcc.gov or
phone: 202–418–0530 or TTY: 202–418–
0432.
Paperwork Reduction Act of 1995
Analysis: This Second Order on
Reconsideration does not contain any
additional new or modified information
collection requirements subject to the
Paperwork Reduction Act of 1995
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Jkt 238001
(‘‘PRA’’), Public Law 104–13, beyond
those that were already in the
Commission’s Incentive Auction Report
and Order, 79 FR 48442–01 (Aug. 15,
2014) (‘‘Incentive Auction R&O’’). In
addition, therefore, it does not contain
any additional new or modified
information collection burden for small
business concerns with fewer than 25
employees, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, beyond those that
were already in the Incentive Auction
R&O.
The Commission is seeking separate
OMB approval for FCC Form 2100,
Schedule B (for a full power station) and
F (for a Class A station) and FCC Form
177.
Synopsis
1. The Commission adopted rules for
the broadcast incentive auction in the
Incentive Auction R&O including rules
for parties interested in entering into
CSAs. The Commission recently
modified those channel sharing rules to
provide greater flexibility to stations
considering that option. In this Second
Order on Reconsideration, the
Commission announces that the
availability of back-up channel sharing
arrangements would provide additional
flexibility for stations considering
channel sharing. In particular, it would
enable both parties to a CSA to
participate in the auction while
mitigating the risk that the auction
system could freeze both stations in the
same round and thus deprive both
stations of a post-auction host or
‘‘sharer’’ station. For some, the risk of
being left without any spectrum on
which to share may be too great and
foreclose that kind of participation. The
Commission concludes that a back-up
CSA could mitigate that risk and
encourage greater participation.
2. The Commission clarifies that, if
both parties to a CSA participate in the
auction, the rules allow either or both
parties to also enter into a back-up CSA
with one other station in the same DMA
to act as the back-up host or sharer
station. By allowing the parties to secure
a fallback arrangement in the event that
both parties relinquish their spectrum
usage rights in the auction, this
clarification will help promote wider
participation in the auction by
broadcasters that require assurance that
they will remain on the air in the DMA.
The Commission reminds parties that
all of their auction-related activity and
communications, including with respect
to back-up CSAs, must adhere to the
antitrust laws as well as the rules.
3. In the Second Order on
Reconsideration, the Commission rejects
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the Broadcaster Representatives’ request
to allow ‘‘contingent multi-party CSAs
across multiple markets.’’ The
Commission concludes that multimarket back-up CSAs are not necessary
to address the uncertainty created if
multiple parties to a particular CSA
participate in the auction. Such a result
would undermine the general goal of the
rules prohibiting certain
communications, which are intended to
reinforce existing antitrust laws,
facilitate the detection of collusive
conduct, and assure incentive auction
participants that the auction process
will be fair and objective. The
Commission restated that it crafted the
CSA exception to apply on an
agreement-by-agreement basis in order
to encourage channel sharing
relationships without undermining
these objectives.
4. The Commission also clarifies that,
consistent with the foregoing, the CSA
exception to the reverse auction rule
prohibiting certain communications
applies only to communications
between parties to a single CSA at any
given time. Further, the CSA exception
only applies to a CSA, including backup CSAs, if the CSA was entered into
and filed with the Commission by the
application deadline. If both stations
pursuant to the primary CSA have a
bidding status of ‘‘frozen—provisional
winner,’’ i.e., the auction system
determines that the station can never be
assigned a feasible channel in its preauction band in the current stage, then
parties to a back-up CSA may
communicate regarding bids and
bidding strategy and must cease
communication of this type with the
party to the original CSA. Prior to that
point, the rationale for the CSA
exception—that parties to a CSA should
be able to ‘‘fully engage as various
options are presented during the auction
process’’—is inapplicable with respect
to the back-up CSA. Once the
relinquishment bid of the prospective
host of the CSA is provisionally
accepted by the auction system in a
given stage of the auction, the CSA
exception may be utilized for otherwise
prohibited communications involving
the parties to the back-up agreement,
and can no longer be utilized for parties
to the primary agreement in that stage.
5. The Commission notes that under
the reverse auction bidding procedures,
the bidding status of a ‘‘frozen—
provisional winner’’ may change to
‘‘bidding in the current round’’ if the
auction enters a subsequent stage.
Accordingly, if the host in the primary
CSA, which was no longer operative
because its bidding status became
‘‘frozen—provisional winner’’ in the
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asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations
previous stage, is designated as
‘‘bidding in the current round’’ in a
subsequent stage of the auction, and that
CSA expressly provides that it becomes
the operative sharing agreement under
such circumstances, the host may notify
the sharee in the primary CSA of that
change in status and the CSA exception
will again apply to communications
between the parties to the primary
agreement rather than with the back-up
host.
6. The Commission also finds that the
attractiveness of the channel sharing
option would be enhanced if sharees
were given additional time to plan and
execute their transition to the host’s
facilities. Currently, the rules require
that all winning go off-air bidders in the
reverse auction, including winning
channel sharees, must terminate
operations on their pre-auction channels
within three months of when they
receive auction proceeds. While three
months for termination of operations is
sufficient for go off-air winners who
intend to relinquish their licenses and
cease broadcasting altogether, the
Commission recognizes that winning
bidders that plan to share a channel will
remain in operation and may therefore
need more time to implement the move
to the sharer’s facility. For instance, a
channel sharee may need time to deal
with technical issues associated with
transitioning to its shared location. If it
is changing its community of license, it
may also need to negotiate
modifications to carriage agreements or
finalize new must-carry arrangements
with multichannel video programming
distributors.
7. For these reasons, the Commission
modifies section 73.3700(b)(4)(ii) of the
rules to extend the amount of time a
sharee in a pre- or post-auction CSA
will have to relinquish its pre-auction
channel to six months after receipt of its
reverse auction proceeds. As the
Commission decided in the Incentive
Auction R&O, winning channel sharing
bidders may request a waiver of up to
an additional three months to cease
operations on their pre-auction channel,
pursuant to section 1.3 of the rules, and
the Commission will view these
requests most favorably. Further,
winning channel sharing bidders may
request an additional three-months, and
the Commission will view the
additional requests favorably as well so
long as it determines that grant of the
extension will not delay the postauction transition. The Commission
finds that this extension of the
transition period to six months, and the
availability of waivers of up to an
additional six months, is unlikely to
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adversely affect the Commission’s postauction transition timeline.
Initial Regulatory Flexibility Act
Analysis
The Regulatory Flexibility Act of
1980, as amended (RFA), requires that a
regulatory flexibility analysis be
prepared for notice-and-comment rule
making proceedings, unless the agency
certifies that ‘‘the rule will not, if
promulgated, have a significant
economic impact on a substantial
number of small entities.’’ The RFA
generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act. A ‘‘small
business concern’’ is one which: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the U.S. Small Business
Administration (SBA).
In 2012, Congress mandated that the
Commission conduct an incentive
auction of broadcast television spectrum
as set forth in the Middle Class Tax
Relief and Job Creation Act of 2012
(‘‘Spectrum Act’’). The incentive
auction will have three major pieces: (1)
A ‘‘reverse auction’’ in which full power
and Class A broadcast television
licensees submit bids to voluntarily
relinquish certain broadcast rights in
exchange for payments; (2) a
reorganization or ‘‘repacking’’ of the
broadcast television bands in order to
free up a portion of the ultra-high
frequency (‘‘UHF’’) band for other uses;
and (3) a ‘‘forward auction’’ of licenses
for flexible use of the newly available
spectrum. In the Incentive Auction
R&O, the Commission adopted rules to
implement the broadcast television
spectrum incentive auction. Among
other things, the Commission adopted
rules for broadcast stations that choose
to channel share. Pursuant to the RFA,
a Final Regulatory Flexibility Analysis
(‘‘FRFA’’) was incorporated into the
Incentive Auction R&O.
This Second Order on
Reconsideration reflects clarifications
and modifications to the Commission’s
rules arising in response to comments
filed by Fox, ION, Tribune, and
Univision (the ‘‘Broadcaster
Representatives’’). The Commission
generally responds favorably to the
Broadcaster Representatives’ requests,
finding that providing these
clarifications will increase broadcasters’
flexibility to use the channel sharing bid
option and will make the option more
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67345
attractive. Specifically, this Second
Order on Reconsideration clarifies the
Commission’s rules to permit
broadcasters to enter into back-up
channel sharing agreements (‘‘CSAs’’)
with an additional partner to mitigate
the risk that stations that intend to
channel share could be left without
spectrum after the auction, if both
partners receive a status of ‘‘frozenprovisionally winning’’ in the same
round of the reverse auction. The
Commission also clarified that the CSA
exception to the general prohibition on
communications regarding bids and
bidding strategy will apply to that backup CSA, so long as the back-up CSA was
filed before the application deadline, is
the requirement for all CSAs. This
Second Order on Reconsideration also
permits back-up agreements based on
price or other contingencies, but
declines to extend the CSA exception to
them as introducing unacceptable risk
of becoming a vehicle for collusion.
Finally, this Second Order on
Reconsideration extends the transition
period for channel sharing winning
bidders from three months to six
months, and extends the possibility for
additional waivers from three months to
six months, barring any delay this
would cause other transitioning
broadcasters.
Neither of these changes adopted in
this Second Order on Reconsideration
will impose additional costs. The
changes provide greater flexibility for
both stations that wish to pursue
channel sharing agreements pre-auction
and those that become channel sharing
stations post-auction. Therefore, the
Commission certifies that the changes
adopted in this Second Order on
Reconsideration will not have a
significant economic impact on a
substantial number of small entities.
The Commission will send a copy of
the Second Order on Reconsideration,
including a copy of this Final
Regulatory Flexibility Certification, in a
report to Congress pursuant to the
Congressional Review Act. In addition,
the Second Order on Reconsideration
and this certification will be sent to the
Chief Counsel for Advocacy of the Small
Business Administration, and will be
published in the Federal Register.
Federal Rules Which Duplicate,
Overlap, or Conflict With the
Commission’s Proposals
None.
List of Subjects in 47 CFR Part 73
Television and reporting and
recordkeeping requirements.
E:\FR\FM\02NOR1.SGM
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67346
Federal Register / Vol. 80, No. 211 / Monday, November 2, 2015 / Rules and Regulations
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 73 as
follows:
50 CFR Part 679
[Docket No. 140918791–4999–02]
RIN 0648–XE293
PART 73—RADIO BROADCAST
SERVICES
1. The authority citation for part 73
continues to read as follows:
Fisheries of the Exclusive Economic
Zone Off Alaska; Inseason Adjustment
to the 2015 Gulf of Alaska Pollock
Seasonal Apportionments
AGENCY:
■
Authority: 47 U.S.C. 154, 303, 334, 336
and 339.
2. Section 73.3700 is amended by
revising paragraphs (b)(3) and (b)(4)(ii)
to read as follows:
■
§ 73.3700 Post-incentive auction licensing
and operation.
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(b) * * *
(3) License applications for channel
sharing stations. The licensee of each
channel sharee station and channel
sharer station must file an application
for a license for the shared channel
using FCC Form 2100 Schedule B (for a
full power station) or F (for a Class A
station) within six months of the date
that the channel sharee station licensee
receives its incentive payment pursuant
to section 6403(a)(1) of the Spectrum
Act.
(4) * * *
(ii) The licensee of a channel sharee
station and a licensee of a license
relinquishment station that has
indicated in its Form 177 an intent to
enter into a post-auction channel
sharing agreement must comply with
the notification and cancellation
procedures in § 73.1750 and terminate
operations on its pre-auction channel
within six months of the date that the
licensee receives its incentive payment
pursuant to section 6403(a)(1) of the
Spectrum Act.
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[FR Doc. 2015–27632 Filed 10–30–15; 8:45 am]
asabaliauskas on DSK5VPTVN1PROD with RULES
BILLING CODE 6712–01–P
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National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; inseason
adjustment
SUMMARY: NMFS is adjusting the 2015
seasonal apportionments of the total
allowable catch (TAC) for pollock in the
Gulf of Alaska (GOA) by re-apportioning
unharvested pollock TAC in Statistical
Areas 610, 620, and 630 of the GOA.
This action is necessary to provide
opportunity for harvest of the 2015
pollock TAC, consistent with the goals
and objectives of the Fishery
Management Plan for Groundfish of the
Gulf of Alaska.
DATES: Effective 1200 hours, Alaska
local time (A.l.t.), October 28, 2015,
until 2400 hours A.l.t., December 31,
2015.
FOR FURTHER INFORMATION CONTACT:
Josh
Keaton, 907–586–7228.
NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North
Pacific Fishery Management Council
(Council) under authority of the
Magnuson-Stevens Fishery
Conservation and Management Act.
Regulations governing fishing by U.S.
vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
The annual pollock TACs in
Statistical Areas 610, 620, and 630 of
the GOA are apportioned among four
seasons, in accordance with
§ 679.23(d)(2). Regulations at
§ 679.20(a)(5)(iv)(B) allow the
underharvest of a seasonal
apportionment to be added to
subsequent seasonal apportionments,
provided that any revised seasonal
apportionment does not exceed 20
percent of the seasonal apportionment
for a given statistical area. Therefore,
NMFS is increasing the D season
SUPPLEMENTARY INFORMATION:
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apportionment of pollock in Statistical
Areas 610, 620, and 630 of the GOA to
reflect the underharvest of pollock in
those areas during the C season. In
addition, any underharvest remaining
beyond 20 percent of the originally
specified seasonal apportionment in a
particular area may be further
apportioned to other statistical areas.
Therefore, NMFS also is increasing the
D season apportionment of pollock to
Statistical Areas 610 and 630 based on
the underharvest of pollock in
Statistical Areas 620 of the GOA. These
adjustments are described below.
The D seasonal apportionment of the
2015 pollock TAC in Statistical Area
610 of the GOA is 12,185 metric tons
(mt) as established by the final 2015 and
2016 harvest specifications for
groundfish of the GOA (80 FR 10250,
February 25, 2015). In accordance with
§ 679.20(a)(5)(iv)(B), the Administrator,
Alaska Region, NMFS (Regional
Administrator), hereby increases the D
season apportionment for Statistical
Area 610 by 2,437 mt to account for the
underharvest of the TAC in Statistical
Areas 610 and 620 in the C season. This
increase is in proportion to the
estimated pollock biomass and is not
greater than 20 percent of the D seasonal
apportionment of the TAC in Statistical
Area 610. Therefore, the revised D
seasonal apportionment of the pollock
TAC in Statistical Area 610 is 14,622 mt
(12,185 mt plus 2,437 mt).
The D seasonal apportionment of the
pollock TAC in Statistical Area 620 of
the GOA is 14,628 mt as established by
the final 2015 and 2016 harvest
specifications for groundfish of the GOA
(80 FR 10250, February 25, 2015). In
accordance with § 679.20(a)(5)(iv)(B),
the Regional Administrator hereby
increases the D seasonal apportionment
for Statistical Area 620 by 2,926 mt to
account for the underharvest of the TAC
in Statistical Areas 620 in the C season.
This increase is not greater than 20
percent of the D seasonal apportionment
of the TAC in Statistical Area 620.
Therefore, the revised D seasonal
apportionment of the pollock TAC in
Statistical Area 620 is 17,554 mt (14,628
mt plus 2,926 mt).
The D seasonal apportionment of
pollock TAC in Statistical Area 630 of
the GOA is 18,639 mt as established by
the final 2015 and 2016 harvest
specifications for groundfish of the GOA
(80 FR 10250, February 25, 2015). In
accordance with § 679.20(a)(5)(iv)(B),
the Regional Administrator hereby
increases the D seasonal apportionment
for Statistical Area 630 by 3,728 mt to
account for the underharvest of the TAC
in Statistical Areas 620 and 630 in the
C season. This increase is in proportion
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Agencies
[Federal Register Volume 80, Number 211 (Monday, November 2, 2015)]
[Rules and Regulations]
[Pages 67344-67346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27632]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[GN Docket No. 12-268 and MB Docket No. 15-137; FCC 15-139]
Channel Sharing by Full Power and Class A Stations Outside the
Broadcast Television Spectrum Incentive Auction Context
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this Second Order on Reconsideration, the Federal
Communications Commission (Commission) provides more flexibility to
broadcasters interested in the channel sharing option in the broadcast
incentive auction by clarifying that back-up channel sharing agreements
(``CSAs'') are permitted under its rules and providing more time for
successful bidders to transition to shared facilities after the
auction. The Commission also provides guidance regarding how the CSA
exception to the prohibited communications rule applies with respect to
back-up CSAs.
DATES: Effective December 2, 2015.
FOR FURTHER INFORMATION CONTACT: Shaun Maher, Shaun.Maher@fcc.gov of
the Media Bureau, Video Division, (202) 418-2324.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Order on Reconsideration, FCC 15-139, adopted October 21, 2015, in MB
Docket No. 15-137. The full text of the Second Order on Reconsideration
is available for inspection and copying during regular business hours
in the FCC Reference Center, 445 12th Street SW., Room CY-A257, Portals
II, Washington, DC 20554. This document is available in alternative
formats (computer diskette, large print, audio record, and Braille).
Persons with disabilities who need documents in these formats may
contact the FCC by email: FCC504@fcc.gov or phone: 202-418-0530 or TTY:
202-418-0432.
Paperwork Reduction Act of 1995 Analysis: This Second Order on
Reconsideration does not contain any additional new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995 (``PRA''), Public Law 104-13, beyond those that were
already in the Commission's Incentive Auction Report and Order, 79 FR
48442-01 (Aug. 15, 2014) (``Incentive Auction R&O''). In addition,
therefore, it does not contain any additional new or modified
information collection burden for small business concerns with fewer
than 25 employees, pursuant to the Small Business Paperwork Relief Act
of 2002, Public Law 107-198, beyond those that were already in the
Incentive Auction R&O.
The Commission is seeking separate OMB approval for FCC Form 2100,
Schedule B (for a full power station) and F (for a Class A station) and
FCC Form 177.
Synopsis
1. The Commission adopted rules for the broadcast incentive auction
in the Incentive Auction R&O including rules for parties interested in
entering into CSAs. The Commission recently modified those channel
sharing rules to provide greater flexibility to stations considering
that option. In this Second Order on Reconsideration, the Commission
announces that the availability of back-up channel sharing arrangements
would provide additional flexibility for stations considering channel
sharing. In particular, it would enable both parties to a CSA to
participate in the auction while mitigating the risk that the auction
system could freeze both stations in the same round and thus deprive
both stations of a post-auction host or ``sharer'' station. For some,
the risk of being left without any spectrum on which to share may be
too great and foreclose that kind of participation. The Commission
concludes that a back-up CSA could mitigate that risk and encourage
greater participation.
2. The Commission clarifies that, if both parties to a CSA
participate in the auction, the rules allow either or both parties to
also enter into a back-up CSA with one other station in the same DMA to
act as the back-up host or sharer station. By allowing the parties to
secure a fallback arrangement in the event that both parties relinquish
their spectrum usage rights in the auction, this clarification will
help promote wider participation in the auction by broadcasters that
require assurance that they will remain on the air in the DMA. The
Commission reminds parties that all of their auction-related activity
and communications, including with respect to back-up CSAs, must adhere
to the antitrust laws as well as the rules.
3. In the Second Order on Reconsideration, the Commission rejects
the Broadcaster Representatives' request to allow ``contingent multi-
party CSAs across multiple markets.'' The Commission concludes that
multi-market back-up CSAs are not necessary to address the uncertainty
created if multiple parties to a particular CSA participate in the
auction. Such a result would undermine the general goal of the rules
prohibiting certain communications, which are intended to reinforce
existing antitrust laws, facilitate the detection of collusive conduct,
and assure incentive auction participants that the auction process will
be fair and objective. The Commission restated that it crafted the CSA
exception to apply on an agreement-by-agreement basis in order to
encourage channel sharing relationships without undermining these
objectives.
4. The Commission also clarifies that, consistent with the
foregoing, the CSA exception to the reverse auction rule prohibiting
certain communications applies only to communications between parties
to a single CSA at any given time. Further, the CSA exception only
applies to a CSA, including back-up CSAs, if the CSA was entered into
and filed with the Commission by the application deadline. If both
stations pursuant to the primary CSA have a bidding status of
``frozen--provisional winner,'' i.e., the auction system determines
that the station can never be assigned a feasible channel in its pre-
auction band in the current stage, then parties to a back-up CSA may
communicate regarding bids and bidding strategy and must cease
communication of this type with the party to the original CSA. Prior to
that point, the rationale for the CSA exception--that parties to a CSA
should be able to ``fully engage as various options are presented
during the auction process''--is inapplicable with respect to the back-
up CSA. Once the relinquishment bid of the prospective host of the CSA
is provisionally accepted by the auction system in a given stage of the
auction, the CSA exception may be utilized for otherwise prohibited
communications involving the parties to the back-up agreement, and can
no longer be utilized for parties to the primary agreement in that
stage.
5. The Commission notes that under the reverse auction bidding
procedures, the bidding status of a ``frozen--provisional winner'' may
change to ``bidding in the current round'' if the auction enters a
subsequent stage. Accordingly, if the host in the primary CSA, which
was no longer operative because its bidding status became ``frozen--
provisional winner'' in the
[[Page 67345]]
previous stage, is designated as ``bidding in the current round'' in a
subsequent stage of the auction, and that CSA expressly provides that
it becomes the operative sharing agreement under such circumstances,
the host may notify the sharee in the primary CSA of that change in
status and the CSA exception will again apply to communications between
the parties to the primary agreement rather than with the back-up host.
6. The Commission also finds that the attractiveness of the channel
sharing option would be enhanced if sharees were given additional time
to plan and execute their transition to the host's facilities.
Currently, the rules require that all winning go off-air bidders in the
reverse auction, including winning channel sharees, must terminate
operations on their pre-auction channels within three months of when
they receive auction proceeds. While three months for termination of
operations is sufficient for go off-air winners who intend to
relinquish their licenses and cease broadcasting altogether, the
Commission recognizes that winning bidders that plan to share a channel
will remain in operation and may therefore need more time to implement
the move to the sharer's facility. For instance, a channel sharee may
need time to deal with technical issues associated with transitioning
to its shared location. If it is changing its community of license, it
may also need to negotiate modifications to carriage agreements or
finalize new must-carry arrangements with multichannel video
programming distributors.
7. For these reasons, the Commission modifies section
73.3700(b)(4)(ii) of the rules to extend the amount of time a sharee in
a pre- or post-auction CSA will have to relinquish its pre-auction
channel to six months after receipt of its reverse auction proceeds. As
the Commission decided in the Incentive Auction R&O, winning channel
sharing bidders may request a waiver of up to an additional three
months to cease operations on their pre-auction channel, pursuant to
section 1.3 of the rules, and the Commission will view these requests
most favorably. Further, winning channel sharing bidders may request an
additional three-months, and the Commission will view the additional
requests favorably as well so long as it determines that grant of the
extension will not delay the post-auction transition. The Commission
finds that this extension of the transition period to six months, and
the availability of waivers of up to an additional six months, is
unlikely to adversely affect the Commission's post-auction transition
timeline.
Initial Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act of 1980, as amended (RFA), requires
that a regulatory flexibility analysis be prepared for notice-and-
comment rule making proceedings, unless the agency certifies that ``the
rule will not, if promulgated, have a significant economic impact on a
substantial number of small entities.'' The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A ``small business concern'' is one which: (1) Is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the U.S. Small
Business Administration (SBA).
In 2012, Congress mandated that the Commission conduct an incentive
auction of broadcast television spectrum as set forth in the Middle
Class Tax Relief and Job Creation Act of 2012 (``Spectrum Act''). The
incentive auction will have three major pieces: (1) A ``reverse
auction'' in which full power and Class A broadcast television
licensees submit bids to voluntarily relinquish certain broadcast
rights in exchange for payments; (2) a reorganization or ``repacking''
of the broadcast television bands in order to free up a portion of the
ultra-high frequency (``UHF'') band for other uses; and (3) a ``forward
auction'' of licenses for flexible use of the newly available spectrum.
In the Incentive Auction R&O, the Commission adopted rules to implement
the broadcast television spectrum incentive auction. Among other
things, the Commission adopted rules for broadcast stations that choose
to channel share. Pursuant to the RFA, a Final Regulatory Flexibility
Analysis (``FRFA'') was incorporated into the Incentive Auction R&O.
This Second Order on Reconsideration reflects clarifications and
modifications to the Commission's rules arising in response to comments
filed by Fox, ION, Tribune, and Univision (the ``Broadcaster
Representatives''). The Commission generally responds favorably to the
Broadcaster Representatives' requests, finding that providing these
clarifications will increase broadcasters' flexibility to use the
channel sharing bid option and will make the option more attractive.
Specifically, this Second Order on Reconsideration clarifies the
Commission's rules to permit broadcasters to enter into back-up channel
sharing agreements (``CSAs'') with an additional partner to mitigate
the risk that stations that intend to channel share could be left
without spectrum after the auction, if both partners receive a status
of ``frozen-provisionally winning'' in the same round of the reverse
auction. The Commission also clarified that the CSA exception to the
general prohibition on communications regarding bids and bidding
strategy will apply to that back-up CSA, so long as the back-up CSA was
filed before the application deadline, is the requirement for all CSAs.
This Second Order on Reconsideration also permits back-up agreements
based on price or other contingencies, but declines to extend the CSA
exception to them as introducing unacceptable risk of becoming a
vehicle for collusion. Finally, this Second Order on Reconsideration
extends the transition period for channel sharing winning bidders from
three months to six months, and extends the possibility for additional
waivers from three months to six months, barring any delay this would
cause other transitioning broadcasters.
Neither of these changes adopted in this Second Order on
Reconsideration will impose additional costs. The changes provide
greater flexibility for both stations that wish to pursue channel
sharing agreements pre-auction and those that become channel sharing
stations post-auction. Therefore, the Commission certifies that the
changes adopted in this Second Order on Reconsideration will not have a
significant economic impact on a substantial number of small entities.
The Commission will send a copy of the Second Order on
Reconsideration, including a copy of this Final Regulatory Flexibility
Certification, in a report to Congress pursuant to the Congressional
Review Act. In addition, the Second Order on Reconsideration and this
certification will be sent to the Chief Counsel for Advocacy of the
Small Business Administration, and will be published in the Federal
Register.
Federal Rules Which Duplicate, Overlap, or Conflict With the
Commission's Proposals
None.
List of Subjects in 47 CFR Part 73
Television and reporting and recordkeeping requirements.
[[Page 67346]]
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 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 and 339.
0
2. Section 73.3700 is amended by revising paragraphs (b)(3) and
(b)(4)(ii) to read as follows:
Sec. 73.3700 Post-incentive auction licensing and operation.
* * * * **
(b) * * *
(3) License applications for channel sharing stations. The licensee
of each channel sharee station and channel sharer station must file an
application for a license for the shared channel using FCC Form 2100
Schedule B (for a full power station) or F (for a Class A station)
within six months of the date that the channel sharee station licensee
receives its incentive payment pursuant to section 6403(a)(1) of the
Spectrum Act.
(4) * * *
(ii) The licensee of a channel sharee station and a licensee of a
license relinquishment station that has indicated in its Form 177 an
intent to enter into a post-auction channel sharing agreement must
comply with the notification and cancellation procedures in Sec.
73.1750 and terminate operations on its pre-auction channel within six
months of the date that the licensee receives its incentive payment
pursuant to section 6403(a)(1) of the Spectrum Act.
* * * * *
[FR Doc. 2015-27632 Filed 10-30-15; 8:45 am]
BILLING CODE 6712-01-P