Noncommercial Educational Station Fundraising for Third-Party Non-Profit Organizations, 21127-21136 [2017-09002]
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licensees qualify as small entities under
the SBA definition. In addition, the
Commission has estimated the number
of licensed noncommercial educational
(NCE) television stations to be 394.
Notwithstanding, the Commission does
not compile and otherwise does not
have access to information on the
revenue of NCE stations that would
permit it to determine how many such
stations would qualify as small entities.
23. The Commission notes, however,
that in assessing whether a business
concern qualifies as small under the
above definition, business (control)
affiliations must be included. The
estimate, therefore, likely overstates the
number of small entities that might be
affected by our action because the
revenue figure on which it is based does
not include or aggregate revenues from
affiliated companies. In addition, an
element of the definition of ‘‘small
business’’ is that the entity not be
dominant in its field of operation. The
Commission is unable at this time to
define or quantify the criteria that
would establish whether a specific
television station is dominant in its field
of operation. Accordingly, the estimate
of small businesses to which rules may
apply does not exclude any television
station from the definition of a small
business on this basis and is therefore
possibly over-inclusive.
24. The FRFA accompanying the
Report and Order stated that
elimination of the UHF discount
modified calculation of compliance
with the national audience reach cap
and would affect reporting,
recordkeeping, or other compliance
requirements. Specifically, the
Commission would have potentially
needed to modify FCC forms or related
instructions pursuant to the Report and
Order. This Order on Reconsideration
reinstates the UHF discount, thereby
maintaining the current methodology
for calculating compliance with the cap.
Therefore, no changes to FCC forms or
instructions will be necessary and the
reporting, recordkeeping, and other
compliance requirements will not be
affected. Thus, reinstatement of the UHF
discount will not impose additional
obligations or expenditure of resources
on small businesses.
25. The Order on Reconsideration
determined that the discount and cap
were linked and that considering them
in tandem would better serve the public
interest than simply eliminating the
discount alone. Examining the discount
and cap together in a rulemaking
proceeding to be opened later this year
will positively impact broadcasters,
including small entities, and avoid the
potential harms described by Petitioners
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and their supporters at paragraphs 8 and
10, above.
26. Ordering Clauses. Accordingly, it
is ordered that, pursuant to the authority
contained in Section 405(a) of the
Communications Act of 1934, as
amended, and Section 1.429 of the
Commission’s rules, the Petition for
Reconsideration filed by ION Media
Networks, Inc. and Trinity Christian
Center of Santa Ana, Inc. on November
23, 2016, is granted in part and
otherwise is dismissed as moot, to the
extent provided herein.
27. It is further ordered that pursuant
to the authority contained in Sections 1,
2(a), 4(i), 4(j), 303(r), 307, 309, and 310
of the Communications Act of 1934, as
amended, this Order on Reconsideration
is adopted. The rule modification
discussed in this Order on
Reconsideration shall be effective June
5, 2017.
28. It is further ordered that the
Commission shall send a copy of this
Order on Reconsideration to Congress
and to the Government Accountability
Office pursuant to the Congressional
Review Act.
29. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Order on Reconsideration,
including the Supplemental Final
Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 73
Television; Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rule
For the reasons discussed in the
preamble, the Federal Communication
Commission amends 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
and 339.
2. Amend § 73.3555 by revising
paragraph (e)(1) and (e)(2)(i) to read as
follows:
■
§ 73.3555
Multiple ownership.
*
*
*
*
*
(e) National television multiple
ownership rule. (1) No license for a
commercial television broadcast station
shall be granted, transferred or assigned
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to any party (including all parties under
common control) if the grant, transfer or
assignment of such license would result
in such party or any of its stockholders,
partners, members, officers or directors
having a cognizable interest in
television stations which have an
aggregate national audience reach
exceeding thirty-nine (39) percent.
(2) * * *
(i) National audience reach means the
total number of television households in
the Nielsen Designated Market Areas
(DMAs) in which the relevant stations
are located divided by the total national
television households as measured by
DMA data at the time of a grant,
transfer, or assignment of a license. For
purposes of making this calculation,
UHF television stations shall be
attributed with 50 percent of the
television households in their DMA
market.
*
*
*
*
*
[FR Doc. 2017–09001 Filed 5–4–17; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket No. 12–106; FCC 17–41]
Noncommercial Educational Station
Fundraising for Third-Party Non-Profit
Organizations
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the
Commission revises its rules to allow
noncommercial educational (NCE)
broadcast stations to conduct limited
on-air fundraising activities that
interrupt regular programming for the
benefit of third-party non-profit
organizations. Permitting NCE stations
to conduct third-party fundraising on a
limited basis will serve the public
interest by enabling NCE stations to
support charities and other non-profit
organizations in their fundraising efforts
for worthy causes without undermining
the noncommercial nature of NCE
stations or their primary function of
serving their communities of license
through educational programming.
DATES: Effective July 5, 2017, except for
the amendments to §§ 73.503(e)(1),
73.621(f)(1), and 73.3527(e)(14), which
contain new or modified information
collection requirements that require
approval by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act (PRA) and will become
effective after the Commission publishes
SUMMARY:
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a document in the Federal Register
announcing such approval and the
relevant effective date.
FOR FURTHER INFORMATION CONTACT: For
additional information, contact Kathy
Berthot, Kathy.Berthot@fcc.gov, Media
Bureau, Policy Division, at (202) 418–
7454. For additional information
concerning the PRA information
collection requirements contained in
this document, contact Cathy Williams,
Federal Communications Commission,
at (202) 418–2918, or via email
Cathy.Williams@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Report
and Order, FCC 17–41, adopted and
released on April 20, 2017. 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., CY–A257, Washington, DC
20554. This document will also be
available via ECFS (https://www.fcc.gov/
cgb/ecfs/). Documents will be available
electronically in ASCII, Word 97, and/
or Adobe Acrobat. 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).
Paperwork Reduction Act of 1995
Analysis: This document contains new
or modified information collection
requirements. The Commission, as part
of its continuing effort to reduce
paperwork burdens, will invite the
general public and the OMB to comment
on the information collection
requirements contained in this
document in a separate Federal Register
Notice, as required by the Paperwork
Reduction Act of 1995, Public Law 104–
13, see 44 U.S.C. 3507. In addition,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4),
we previously sought specific comment
on how we might further reduce the
information collection burden for small
business concerns with fewer than 25
employees.
Congressional Review Act: The
Commission will send a copy of this
Report and Order to Congress and the
Government Accountability Office
pursuant to the Congressional Review
Act, 5 U.S.C. 801(a)(1)(A).
Synopsis
I. Introduction
1. In this Report and Order, we revise
our rules to allow NCE broadcast
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stations to conduct limited on-air
fundraising activities that interrupt
regular programming for the benefit of
third-party non-profit organizations
(hereafter, ‘‘third-party fundraising’’).
Relaxing our longstanding third-party
fundraising restrictions will serve the
public interest by enabling NCE stations
to support charities and other non-profit
organizations in their fundraising efforts
for worthy causes. Third-party
fundraising programs may also help to
raise public awareness about important
topics, such as poverty, health care, and
humanitarian issues. We conclude that
permitting NCE stations to conduct
third-party fundraising on a limited
basis will not undermine the
noncommercial nature of NCE stations
or their primary function of serving
their communities of license through
educational programming.
II. Background
2. Under Section 399B of the
Communications Act, 47 U.S.C. 399B,
NCE stations are prohibited from
broadcasting ‘‘advertisements,’’ defined
as any message or other programming
material which is broadcast or otherwise
transmitted in exchange for any
remuneration, and which is intended—
(1) to promote any service, facility, or
product offered by any person who is
engaged in such offering for profit;
(2) to express the views of any person
with respect to any matter of public
importance or interest; or
(3) to support or oppose any
candidate for political office.
Further, pursuant to §§ 73.503(d) and
73.621(e) of the Commission’s rules, an
NCE station may not conduct
fundraising activities that substantially
alter or suspend regular programming
and are designed to benefit any entity
other than the station itself. ‘‘Regular
programming’’ includes programming
that ‘‘the public broadcaster ordinarily
carries, but does not encompass those
fundraising activities that suspend or
alter their normal programming fare.’’
The third-party fundraising restrictions
reflect the concern that ‘‘educational
stations are licensed to provide a
noncommercial broadcast service, not to
serve as a fund-raising operation for
other entities by broadcasting material
that is ‘akin to regular advertising.’ ’’
3. The Commission has granted
waivers of §§ 73.503(d) and 73.621(e) in
extraordinary circumstances. For
example, in 1992, the former Mass
Media Bureau granted a waiver of
§§ 73.503(d) and 73.621(e) to the
licensee of an NCE radio station and an
NCE television station in West Palm
Beach, Florida, following Hurricane
Andrew. The stations proposed to
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broadcast a two-hour simulcast along
with four area commercial television
stations to raise funds and donations
and provide information for the
hurricane relief effort. The staff granted
the waiver in recognition of the
catastrophic events that had occurred,
the stations’ unique ability to serve the
area affected by the disaster, and the
limited length of the program. The
Commission also has granted waivers to
permit fundraising for other singular
catastrophic events, such as Hurricanes
Katrina and Sandy, the September 11,
2001 terrorist attacks, the January 2005
tsunami in Southeast Asia, and the
January 2010 earthquake in Haiti. More
recently, the Commission established
informal procedures through which
NCE licensees could request
Commission approval to conduct
fundraising to aid the Moore, Oklahoma
area tornado relief efforts, noting that it
has granted waivers of § 73.503(d) for
‘‘fundraising appeals to support relief
efforts following disasters of particular
uniqueness or magnitude’’ and that such
waivers ‘‘have been issued for a specific
fundraising program or programs, or for
sustained station appeals for periods
which generally do not exceed several
days.’’ In contrast, Commission staff has
denied waiver requests where the
proposed fundraising occurred annually
to address ongoing needs and was not
limited to a specific one-time problem.
4. In June 2011, a working group
including Commission staff, scholars,
and consultants released the INC
Report, a comprehensive report on the
state of the media landscape. The INC
Report discussed both the need to
empower citizens to ensure that
broadcasters serve their communities in
exchange for the use of public spectrum
and the need to remove unnecessary
burdens on broadcasters who aim to
serve their communities. Citing
comments from the National Religious
Broadcasters (NRB), the INC Report
recommended that the Commission
consider affording noncommercial
broadcasters more flexibility by
allowing NCE stations that are not
grantees of the Corporation for Public
Broadcasting (CPB) to spend up to one
percent of their annual airtime doing
fundraising for charities and other thirdparty non-profit organizations. In order
to be eligible for CPB funding, an NCE
station would have to devote the
substantial majority of its daily total
programming hours broadcast on all of
its channels to CPB-qualified
programming, which is defined as
‘‘general audience programming that
serves demonstrated community needs
of an educational, informational and
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cultural nature.’’ The INC Report noted
that ‘‘[i]n some cases having local
charities on the air can be a useful way
of informing residents about problems
in their communities’’ and ‘‘can help
[NCE] stations achieve their public
service or religious missions.’’
5. On April 25, 2012, in response to
the recommendations in the INC Report,
the Commission adopted a Notice of
Proposed Rulemaking seeking comment
on whether to allow NCE stations to
conduct third-party fundraising. The
Commission received 23 comments and
seven replies. NRB and all of the
religious broadcasters that filed
comments favor allowing NCE stations
to conduct third-party fundraising.
Commenters representing secular NCE
broadcasters, including National Public
Radio (NPR), Public Broadcasting
Service and Association for Public
Television Stations (PBS/APTS), and
university and college NCE stations,
oppose relaxation of the third-party
fundraising restrictions.
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III. Discussion
A. Relaxation of Third-Party
Fundraising Restrictions
6. We relax the third-party
fundraising restrictions to allow NCE
stations to conduct limited on-air
fundraising activities that interrupt
regular programming for the benefit of
third-party non-profit organizations.
Such relief will provide NCE stations
greater flexibility to undertake
fundraising for third-party non-profit
organizations. Under the current rules,
program-length fundraising for thirdparty non-profit organizations is
prohibited (even if regularly scheduled)
because such programming is
considered to suspend ‘‘regular
programming.’’ Under the rules we
adopt today, NCE stations will be able
to conduct fundraising activities that
alter or suspend regular programming—
including program-length fundraising
activities—at their discretion, as long as
the fundraising programs do not exceed
the one-percent cap discussed below.
We conclude that providing NCE
stations the flexibility to engage in
limited fundraising for charities and
other third-party non-profit
organizations will benefit the public
interest. Third-party fundraising
programs may enhance the educational
nature of NCE stations by educating the
public about the social needs and
charitable causes supported by nonprofit organizations. For example, a
fundraising program for a breast cancer
charity could help to educate the
station’s audience about early detection
and support services, and a fundraising
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program for a child poverty relief
organization could serve to educate the
stations’ listeners about the needs of
children around the world who suffer in
extreme poverty. Non-profit
organizations may be better able to
address their charitable missions with
the financial support received from the
NCE stations’ audiences. Some of this
financial support may directly benefit
NCE stations’ local communities. Thirdparty fundraising may also help to
lessen the financial burden on
governmental entities that address
social needs through appropriations
from public funds.
7. We further conclude that allowing
NCE stations to conduct limited thirdparty fundraising will not undermine
the noncommercial broadcasting
service, as suggested by some
commenters. The longstanding thirdparty fundraising restrictions reflect
concerns that any promotional or
fundraising activities by NCE stations
must not adversely affect the
educational programming mission or
noncommercial character of these
stations. Nevertheless, we conclude that
a blanket prohibition on third-party
fundraising that interrupts regular
programming is no longer necessary to
preserve NCE stations’ noncommercial
nature and ensure that NCE stations
remain focused on their primary
function of providing educational
programming to their communities of
license. The Commission’s experience
in granting waivers to allow NCE
stations to conduct fundraising for
disaster relief efforts has demonstrated
that NCE stations can conduct limited
third-party fundraising without
compromising their noncommercial
nature and the valuable program service
they provide to the public. The public
has responded enthusiastically to these
disaster relief fundraising activities, and
there is no evidence in the record before
us that these fundraising activities have
altered the public’s perception of
noncommercial broadcasting.
Accordingly, we find that it is
appropriate to allow NCE stations to
conduct third-party fundraising on a
limited basis.
8. We disagree with assertions that the
success of the existing waiver process
demonstrates that changes to the rules
are unnecessary. As discussed above,
we have determined that the public
interest will be served by relaxing our
third-party fundraising restrictions to
allow NCE stations to conduct limited
third-party fundraising activities
unrelated to relief efforts for singular
catastrophic events. The waiver process
is intended to provide relief in
extraordinary circumstances, and is not
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suitable for the more routine third-party
fundraising activities that we address in
this proceeding. We likewise reject
proposals that we expand the existing
waiver process to allow NCE stations to
seek waivers to conduct third-party
fundraising activities that are not
connected to specific disasters. We
think that it would impose an
unnecessary burden on both NCE
licensees and Commission staff to
require NCE licensees to seek waivers
each time they want to conduct such
routine third-party fundraising.
9. We are also not persuaded by
arguments that relaxing the third-party
fundraising restrictions will adversely
affect the noncommercial broadcasting
service by reducing the amount of
airtime dedicated to educational,
instructional, and cultural
programming; lessening the appeal of
NCE stations to their audiences; or
jeopardizing fundraising for NCE
stations’ own operations. First and
foremost, we emphasize that the choice
to conduct third-party fundraising will
be entirely voluntary on the part of NCE
stations. NCE stations that do not wish
to engage in third-party fundraising are
not required to do so. Thus, NCE
stations concerned that airing thirdparty fundraising programs will
jeopardize fundraising for their own
operations can simply choose not to
engage in such third-party fundraising.
Additionally, we have determined that
third-party fundraising programs may
enhance the educational nature of NCE
stations in some situations by raising
public awareness about social needs and
charitable causes supported by nonprofit organizations. Further, as we
explain below, we are limiting the
amount of time that NCE stations can
spend on third-party fundraising that
interrupts regular programming to one
percent of their total annual airtime. We
believe that the one-percent annual
limit strikes the proper balance between
providing NCE stations some flexibility
to support their fundraising missions
and ensuring that their third-party
fundraising activities do not take away
from their primary function of providing
noncommercial, educational
programming to their local
communities.
10. We disagree with assertions that
third-party fundraising will change the
public’s perception of noncommercial
broadcasting by causing the public to
view the ‘‘business’’ of NCE stations as
charitable fundraising, which could
harm all NCE stations, even those that
do not change their on-air practices.
NCE stations that choose to engage in
third-party fundraising will continue to
spend the vast majority of their time—
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at least 99%, if not more—providing
noncommercial, educational
programming to their audiences. We do
not believe that allowing NCE stations
to allot up to one percent of their total
annual airtime to third-party
fundraising will significantly alter the
public’s perception of noncommercial
broadcasting. Nor do we believe that
third-party fundraising will weaken the
public’s confidence in the editorial
independence of NCE stations or
increase the potential for third-party
organizations to influence programming
decisions. As NRB points out, NCE
stations are already permitted to air
sponsorship and underwriting
announcements from both non-profit
groups and commercial businesses.
Commenters have offered no evidence
that such promotional announcements
have eroded the public’s confidence in
the editorial independence of NCE
stations.
11. Some commenters assert that
relaxation of the third-party fundraising
restrictions will subject NCE stations to
undue pressure from affiliated or
influential parties—such as universities,
colleges, and other institutions that hold
the stations’ licenses, politically
powerful persons, and foundations that
provide underwriting contributions to
stations—that may seek to use the
station to raise funds for their own
discrete interests, or cause NCE stations
to be inundated with fundraising
requests from local non-profits. To the
extent that these commenters raise
concerns that a university, college, or
other institutional licensee may apply
pressure to its licensed station to engage
in third-party fundraising, we note that
NCE stations can take steps to preempt
unwanted fundraising requests from
licensees and other non-profit
organizations by, for example,
announcing publicly their reasons for
not airing routine third-party
fundraising drives.
12. Exemption From Third-Party
Fundraising Rule for CPB-Funded NCE
Stations. Although we conclude that the
public interest will be served by
providing NCE stations the flexibility to
conduct third-party fundraising, we
recognize that some NCE stations claim
that this new fundraising latitude may
pose challenges for those stations that
have no interest in participating in
third-party fundraising. The record
reflects that most NCE stations that
oppose third-party fundraising are CPBfunded stations. Indeed, all but one
CPB-funded station that filed comments
opposed relaxation of the rule.
Accordingly, because CPB-funded
stations generally do not want this
added flexibility, we are exempting all
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CPB-funded NCE stations from the new
rule authorizing NCE stations to
conduct on-air fundraising for thirdparty non-profit organizations that
interrupts regular programming.
B. Limitations on Eligible Beneficiaries
of Third-Party Fundraising
13. We limit the class of entities for
which NCE stations may conduct thirdparty fundraising to entities that are
recognized as tax exempt, non-profit
organizations under Section 501(c)(3) of
the Internal Revenue Code, 26 U.S.C.
501(c)(3). Section 501(c)(3) exempts
from federal income taxes corporations,
foundations, or other organizations that
are organized and operated exclusively
for religious, charitable, scientific,
educational, or certain other purposes,
where no part of the net earnings of the
organization inures to the benefit of any
private shareholder or individual. NRB
and other commenters overwhelmingly
support limiting eligibility for thirdparty fundraising to Section 501(c)(3)
organizations. We agree with
commenters that this limitation will
provide NCE stations certainty that
third-party organizations that benefit
from on-air fundraising are bona fide
non-profits.
14. Two commenters suggest that NCE
stations should be allowed to undertake
fundraising for any organization that has
qualified as a bona fide non-profit
organization in any State or pursuant to
any section of the Internal Revenue
Code relating to non-profit
organizations. These commenters assert
that not all bona fide non-profit
organizations choose to apply to be
certified as tax exempt under the
Internal Revenue Code and that there
are many bona fide non-profit, tax
exempt organizations, such as veterans
organizations and civic leagues, that are
not qualified under Section 501(c)(3),
but are covered under other sections of
the Internal Revenue Code. We
acknowledge that there are many bona
fide non-profit organizations that are not
qualified as tax exempt, non-profit
organizations under Section 501(c)(3).
Nevertheless, we conclude that it is
appropriate to limit eligibility for thirdparty fundraising under our rules to
Section 501(c)(3) organizations. We
think it would be unworkable to have
the laws of 50 different States governing
the types of non-profit organizations
that may be the beneficiaries of thirdparty fundraising.
15. Moreover, unlike non-profit
organizations certified under other
sections of the Internal Revenue Code,
Section 501(c)(3) organizations are
strictly prohibited from supporting or
opposing candidates for political office
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and are subject to limits on lobbying.
Thus, limiting eligible beneficiaries to
Section 501(c)(3) organizations dovetails
well with Section 399B’s prohibition on
paid political advertising on NCE
stations. This prohibition reflects
Congress’s concern that paid political
advertising could alter the unique
noncommercial, educational nature of
public broadcasting. We are similarly
concerned that allowing NCE stations to
raise funds for non-profit organizations
that support or oppose political
candidates or spend a substantial part of
their time engaged in lobbying activities
could alter the noncommercial,
educational nature of NCE stations. We
are also concerned that an NCE station’s
audience may perceive the station’s
efforts to raise funds for such an
organization as a tacit endorsement of
that organization’s views, which could
alter the public’s perception of
noncommercial broadcasting. Therefore,
we conclude that it is appropriate to
limit the eligible beneficiaries of thirdparty fundraising to Section 501(c)(3)
organizations.
16. We will not limit eligible
beneficiaries of third-party fundraising
to local non-profit organizations. The
Commission sought comment in the
NPRM on whether it would further
localism to limit NCE stations to
soliciting donations for local non-profit
organizations. After reviewing the
comments, however, we are not
convinced that localism would benefit
significantly from such a limitation.
Several commenters point out that there
are many national non-profit
organizations (some of which have local
chapters and some of which do not) that
provide critical support to local
communities. Educational Media
Foundation (EMF) notes, in this regard,
that a disaster that directly impacts the
audience of an NCE station may be best
addressed by a national organization
that does not have a local chapter in the
community of license. Further, we agree
with commenters that it may be difficult
to distinguish between ‘‘local’’ and
‘‘non-local’’ organizations where, for
example, a non-profit organization has
local, national, and international
components. Additionally, commenters
observe that limiting eligible
beneficiaries to local non-profit
organizations may ignore the
preferences of NCE station audiences.
Northwestern College states that it
conducted a survey of its listener
advisory panels in five of its markets to
solicit feedback on how the panel
members feel about providing financial
aid to less fortunate individuals facing
difficult circumstances both at home
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and abroad. Over 65% of the 1,200
respondents indicated that they want to
be informed about the needs of poor
people regardless of where they live,
over 44% indicated that they are willing
to respond financially to help worthy
causes both in the United States and
internationally, and 26% indicated that
awareness of problems in other
countries makes them more likely to
help those in their own communities.
Accordingly, we will afford NCE
stations the discretion to raise funds for
both local and non-local non-profit
organizations. While we are not limiting
the beneficiaries of third-party
fundraising to local non-profit groups,
we note that many NCE stations already
have relationships with non-profit
groups in their local communities and
we expect that NCE stations may be
highly motivated to support local nonprofits.
17. We also decline to limit eligible
beneficiaries of an NCE station’s thirdparty fundraising to non-profit
organizations that are unaffiliated with
the station. The NPRM asked for
comment on whether to limit
fundraising on behalf of third parties to
unaffiliated third parties, given that
third-party fundraising on behalf of
affiliated entities may restrict an NCE
station’s ability to conduct fundraising
for local non-profit organizations. As
discussed above, we have determined
that it will not significantly further
localism to limit NCE stations to
fundraising for local non-profit
organizations. Thus, we think it is
unnecessary to limit third-party
fundraising to unaffiliated entities to
ensure that NCE stations are able to
fundraise for local non-profit groups.
C. Annual Limit on Third-Party
Fundraising
18. We will allow NCE broadcasters to
spend up to one percent of their total
annual airtime conducting third-party
fundraising. NRB asserts that a onepercent annual limit provides adequate
flexibility to NCE stations, explaining
that NCE licensees ‘‘will be reluctant to
frustrate their audiences with excessive
or demanding appeals for third-party
non-profits, particularly when their own
stations rely on donations from their
[audiences] in order to operate.’’ We
agree with NRB and other commenters
that a one-percent annual limit will
strike an appropriate balance between
allowing NCE stations the flexibility to
support the fundraising efforts of thirdparty non-profit organizations and
ensuring that third-party fundraising
does not undermine the noncommercial
nature of the participating stations and
divert them from their primary function
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of providing educational programming
to their communities of license. A onepercent annual limit—which equates to
approximately 88 hours annually or 1.7
hours weekly for stations on the air 24
hours a day—will afford NCE stations
flexibility to conduct third-party
fundraising, while also ensuring that
NCE stations do not frustrate their
audiences with excessive fundraising
appeals or divert stations from primary
mission of providing educational
programming to their communities. We
reject proposals that we adopt a tenpercent annual limit on third-party
fundraising, or leave it entirely up to
NCE stations to decide how much of
their airtime to devote to third-party
fundraising. We share NPR’s concern
that a ten-percent annual limit would
represent a significant portion of a
station’s annual program schedule and
could further erode the distinction
between NCE stations and their
commercial counterparts.
19. We recognize that an NCE
station’s total annual airtime may vary
slightly from year to year and that it
may be difficult for some stations to
determine in advance precisely how
many hours they will operate in a given
year. Therefore, as suggested by NRB,
we will allow NCE stations that engage
in third-party fundraising to use the
prior year’s total airtime for purposes of
determining how many hours constitute
one percent of their total annual airtime.
For example, an NCE station that wishes
to devote one percent of its airtime in
2017 to third-party fundraising may use
its total annual airtime for 2016 in
calculating the one percent cap.
Furthermore, with respect to NCE
stations that multicast programming on
two or more separate channels, we will
apply the one-percent annual limit
separately to each individual
programming stream. Thus, an NCE
station with three programming streams
may spend up to one percent of the total
annual airtime of each stream airing
third-party fundraising programming on
that stream. We will not, however, allow
NCE stations with multiple
programming streams to aggregate their
total hours of programming from all of
their streams and allocate their
fundraising activity between and among
streams or on a single program stream
at their discretion, as proposed by one
commenter. As discussed above, we
believe that the one-percent annual
limit is important to ensuring that thirdparty fundraising activities do not
undermine the noncommercial
character of NCE stations, and including
more fundraising on a particular stream
would undermine that goal.
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20. We will retain our long-standing
waiver process to permit NCE stations to
conduct time-limited on-air fundraising
for specific disasters and other singular
catastrophic events, such as hurricanes
and tornadoes, as suggested by
commenters. Since such events occur
only rarely, it will not burden
Commission staff to retain the existing
waiver process for such events for all
NCE stations, both exempt and nonexempt. This will enable CPB-funded
stations that are exempt from the new
rule to conduct third-party fundraising
for disaster relief efforts by seeking a
waiver as they have done in the past.
Non-exempt stations may use the same
long-standing process if they wish to
conduct third-party fundraising beyond
their one-percent annual limit, but the
standard will remain the same. This
approach will ensure that if a disaster
occurs after a non-exempt station
reaches its one-percent annual limit, the
station would still be able to seek a
waiver to raise funds on-air to support
these efforts.
21. We decline to adopt any general
limits on the duration of a specific
fundraising program or on a discrete
fundraising effort. We think it is
unlikely that NCE licensees will risk
alienating their audiences by
interrupting their regular programming
for an extended duration to conduct
third-party fundraising. Thus, we find it
is unnecessary to adopt durational
limits on such fundraising programs.
D. Audience Disclosures
22. We require NCE stations that
interrupt regular programming to
conduct third-party fundraising to air
audience disclosures that clearly state
that the fundraiser is not for the benefit
of the station itself and identify the nonprofit organization intended to benefit
from the fundraising. Most commenters
that address this issue support an
audience disclosure requirement,
acknowledging that it will decrease the
likelihood of confusion on the part of
station audiences as to whether the
fundraising is intended to benefit the
station or another entity and as to the
identity of the entity for which the
fundraising is being conducted.
Commenters offer a range of suggestions
as to the details and frequency of the
audience disclosures. We adopt NRB’s
proposed approach and require that
NCE stations make disclosures at the
beginning and the end of the
fundraising program and at least once
during each hour of the program. We
will not require NCE stations to use any
particular language in the disclosure,
but the disclosure must clearly state that
the fundraiser is not for the benefit of
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the station itself and specifically
identify the non-profit organization for
which the fundraising is being
conducted. As NRB suggests, an NCE
station may include more detailed
information—such as a description of
the non-profit entity and any special
project or purpose for which the funds
are being raised—on the station’s Web
site and invite the audience to access
that information.
23. One commenter opposes the
audience disclosure requirement,
arguing that it ‘‘would seem obvious
that any appeal for funds . . . will
reveal the identity of the party soliciting
the donation.’’ We disagree. Given that
NCE stations frequently conduct
fundraising to support their own
operations and programming, we
believe that audience confusion could
arise, particularly where there is an
affiliation between an NCE station and
the non-profit organization for which
the fundraising is being conducted.
Accordingly, we conclude that an
audience disclosure requirement is
warranted to ensure that the beneficiary
of the fundraising is clearly identified
and avoid the potential for audience
confusion. We further find that this
audience disclosure requirement will
not impose a significant burden on NCE
stations as it simply requires a statement
that the fundraising is not for the
stations and identification of the
organization that will receive the funds.
E. Reimbursement of Expenses
24. We allow NCE stations to accept
reimbursement of expenses incurred in
conducting third-party fundraising
activities or airing third-party
fundraising programs. Expenses for
which reimbursement may be accepted
include expenses incurred by an NCE
station in producing third-party
programming and the station’s operating
costs in connection with the broadcast
of third-party fundraising programming.
This is consistent with Section
399B(b)(1) of the Act, 47 U.S.C.
399B(b)(1), which allows ‘‘public
broadcast station[s] . . . to engage in the
offering of services, facilities, or
products in exchange for
remuneration,’’ except that such stations
may not make their facilities available
for the broadcast of any advertisements.
We decline, however, to allow NCE
stations to receive ‘‘additional
consideration’’ in exchange for
conducting or airing third-party
fundraising programs. Allowing NCE
stations to receive additional
consideration for third-party fundraising
activities could create the perception
that NCE stations are engaging in
commercial activity and airing
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programming akin to advertising, thus
undermining their noncommercial,
educational mission. It also could
mislead fundraising contributors, who
might assume that their donations are
being used exclusively to advance the
mission of the fundraiser. Finally, as
acknowledged by NRB, our rules permit
an NCE station to broadcast
programming furnished by third parties
only ‘‘if no other consideration than the
furnishing of the program and the costs
incidental to its production and
broadcast are received by the licensee.’’
We decline NRB’s request to create a
distinction between ‘‘regular
‘programming’ ’’ and ‘‘special
fundraising activities by NCE stations
for a third-party non-profit group,’’ with
the latter not subject to the prohibition
on receiving additional consideration.
We find that the policy rationale for
prohibiting additional consideration in
the case of regular programming, i.e.,
that such consideration could
undermine the noncommercial,
educational character of public
broadcast stations, applies equally to
third party fundraising activities and
programs.
F. Public File Requirement and Other
Matters
25. We do not require NCE stations
that participate in third-party
fundraising that interrupts regular
programming to submit reports to the
Commission detailing their fundraising
activities, but will instead require such
stations to include appropriate
information on their fundraising
activities in their public inspection files.
Specifically, we require NCE stations
that conduct third-party fundraising to
place in their public files, on a quarterly
basis, the following information for each
third-party fundraising program or
activity: The date, time, and duration of
the fundraiser; the type of fundraising
activity; the name of the non-profit
organization benefitted by the
fundraiser; a brief description of the
specific cause or project, if any,
supported by the fundraiser; and, to the
extent that the NCE station participated
in tallying or receiving any funds for the
non-profit group, an approximation of
the total funds raised. NCE stations that
do not conduct any third-party
fundraising in a given quarter will not
be required to include any fundraising
information in their public file for that
quarter. A number of commenters raised
concerns that a reporting requirement
would impose unnecessary burdens on
NCE licensees. NRB and other
commenters support a public file
requirement. We conclude that the more
modest approach we adopt here will
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provide transparency regarding NCE
stations’ third-party fundraising
activities to the stations’ audiences,
while minimizing any burdens on NCE
stations. We also conclude that it is
unnecessary to require NCE licensees to
certify compliance with the annual limit
and other restrictions on third-party
fundraising in their license renewal
applications.
26. Additionally, we do not require
NCE stations to locally produce all
third-party fundraising programs and
conduct all third-party fundraising
activities themselves, including
collecting and distributing the funds to
the non-profit entity. We agree with
commenters who argue that requiring
NCE stations to locally produce thirdparty fundraising programs may be
unnecessarily burdensome and
inefficient. Further, we are not
convinced that requiring local
production of third-party fundraising
activities is necessary to promote
localism. As EMF points out,
fundraising is not inherently local, but
instead can have a regional, national, or
worldwide message and still serve the
needs of local communities. We also
note that NCE stations are permitted
under the Commission’s rules to air
programming that is not locally
produced. Indeed, the Commission has
consistently found that non-locally
produced programming can serve the
needs of a community. Moreover, we are
unpersuaded by NPR’s argument that
allowing outside entities to
independently produce fundraising
appeals and handle the collection of
funds could ‘‘fuel the perception that
the station lacks editorial independence
and that its airtime is being leased to the
highest bidder.’’ As noted above, NCE
stations are already permitted to air
non-locally produced programming, and
NPR does not suggest that the broadcast
of such programming has created a
perception that NCE stations lack
editorial independence. We do not
believe that allowing NCE stations to
use up to one percent of their total
annual airtime for non-locally produced
third-party fundraising will cause the
public to lose confidence in the stations’
editorial independence.
27. Finally, we will not require NCE
stations that want to participate in thirdparty fundraising to affirmatively ‘‘opt
in’’ by filing a letter or notification with
the Commission. We conclude that there
would be little benefit to non-profit
organizations from opt-in notifications,
as such organizations are more likely to
seek out fundraising partners based on
existing relationships with NCE stations
than by perusing notifications filed with
the Commission.
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IV. Procedural Matters
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A. Final Regulatory Flexibility Act
Analysis
28. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), the Initial Regulatory Flexibility
Analysis (IRFA) was incorporated into
the Notice of Proposed Rulemaking
(NPRM) released in April 2012 in this
proceeding. The Federal
Communications Commission
(Commission) sought written public
comment on the proposals in the NPRM,
including comment on the IRFA. The
Commission received no comments on
the IRFA. This Final Regulatory
Flexibility Analysis (FRFA) conforms to
the RFA.
B. Need for, and Objectives of, the
Report and Order
29. Pursuant to §§ 73.503(d) and
73.621(e) of the Commission’s rules, a
noncommercial educational (NCE)
broadcast station may not conduct
fundraising activities that substantially
alter or suspend regular programming
and are designed to benefit any entity
other than the station itself. ‘‘Regular
programming’’ includes programming
that ‘‘the public broadcaster ordinarily
carries, but does not encompass those
fundraising activities that suspend or
alter their normal programming fare.’’
The third-party fundraising restrictions
reflect the concern that ‘‘educational
stations are licensed to provide a
noncommercial broadcast service, not to
serve as a fund-raising operation for
other entities by broadcasting material
that is ‘akin to regular advertising.’ ’’
The NPRM sought comment on whether
and under what circumstances to NCE
stations should be allowed to conduct
on-air fundraising activities that
interrupt regular programming for the
benefit of charities and other third-party
non-profit organizations.
30. The Report and Order revises the
rules to allow NCE stations to conduct
limited on-air fundraising activities that
interrupt regular programming for the
benefit of third-party non-profit
organizations. The Report and Order
finds that relaxing the longstanding
third-party fundraising restrictions will
serve the public interest by enabling
NCE stations to partner with charities
and other non-profit organizations to
raise funds for worthy causes. Thirdparty fundraising programs will also
help to raise public awareness about
important topics, such as poverty,
health care, and humanitarian issues.
The Report and Order concludes that
permitting NCE stations to conduct
limited third-party fundraising will not
undermine the noncommercial nature of
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NCE stations or their primary function
of serving their communities of license
through educational programming.
31. The rules adopted in the Report
and Order are intended to provide NCE
stations the flexibility to conduct
limited third-party fundraising, while
minimizing any impact on the
noncommercial broadcasting service.
Specifically, these rules:
• Authorize NCE stations to conduct
third-party fundraising that interrupts
regular programming;
• Include an exemption from the rule
authorizing NCE stations to conduct
third-party fundraising which provides
that no NCE station that receives
funding from the Corporation for Public
Broadcasting (CPB) shall have the
authority to conduct third-party
fundraising;
• Limit the non-profit organizations
that are eligible beneficiaries of thirdparty fundraising to entities that are
recognized as tax exempt, non-profit
organizations under Section 501(c)(3) of
the Internal Revenue Code;
• Authorize NCE stations to spend up
to one percent of their total annual
airtime conducting third-party
fundraising;
• Require NCE stations that conduct
third-party fundraising to air audience
disclosures, at the beginning and ending
of the fundraising programming and at
least once during each hour of the
program, that clearly state that the
fundraiser is not for the benefit of the
station itself and specifically identify
the non-profit organization that is the
intended beneficiary of the fundraising;
• Authorize NCE stations to accept
reimbursement of expenses incurred in
conducting third-party fundraising
activities or airing third-party
fundraising programs, but prohibit NCE
stations from receiving ‘‘additional
consideration’’ in exchange for
conducting or airing third-party
fundraising programs; and
• Require NCE stations that conduct
third-party fundraising to include
certain information relating to their
fundraising activities in their public
files.
Summary of Significant Issues Raised in
Response to the IRFA
32. No comments were filed in
response to the IRFA. One commenter
raised concerns that the reporting
requirements proposed in the NPRM
could impose unnecessary burdens on
small NCE licensees.
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Response to Comments by the Chief
Counsel for Advocacy of the Small
Business Administration
33. Pursuant to the Small Business
Jobs Act of 2010, the Commission is
required to respond to any comments
filed by the Chief Counsel for Advocacy
of the Small Business Administration
(SBA), and to provide a detailed
statement of any change made to the
proposed rules as a result of those
comments. The Chief Counsel did not
file any comments in response to the
proposed rules in this proceeding.
Description and Estimate of the Number
of Small Entities To Which the Rules
Will Apply
34. 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 herein.
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
SBA. Below, we provide a description of
such small entities, as well as an
estimate of the number of such small
entities, where feasible.
35. Television Broadcasting. This
Economic Census category ‘‘comprises
establishments primarily engaged in
broadcasting images together with
sound.’’ These establishments operate
television broadcast studios and
facilities for the programming and
transmission of programs to the public.
These establishments also produce or
transmit visual programming to
affiliated broadcast television stations,
which in turn broadcast the programs to
the public on a predetermined schedule.
Programming may originate in their own
studio, from an affiliated network, or
from external sources. The SBA has
created the following small business
size standard for such businesses: Those
having $38.5 million or less in annual
receipts. The 2012 Economic Census
reports that 751 firms in this category
operated in that year. Of that number,
656 had annual receipts of $25,000,000
or less, 25 had annual receipts between
$25,000,000 and $49,999,999 and 70
had annual receipts of $50,000,000 or
more. Based on this data, we therefore
estimate that the majority of television
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broadcasters are small entities under the
applicable SBA size standard.
36. The Commission has estimated
the number of licensed commercial
television stations to be 1,384. Of this
total, 1,264 stations (or about 91
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
February 24, 2017, and therefore these
licensees qualify as small entities under
the SBA definition. In addition, the
Commission has estimated the number
of licensed NCE television stations to be
394. Notwithstanding, the Commission
does not compile and otherwise does
not have access to information on the
revenue of NCE stations that would
permit it to determine how many such
stations would qualify as small entities.
37. We note, however, that in
assessing whether a business concern
qualifies as ‘‘small’’ under the above
definition, business (control) affiliations
must be included. Our estimate,
therefore likely overstates the number of
small entities that might be affected by
our action, because the revenue figure
on which it is based does not include or
aggregate revenues from affiliated
companies. In addition, another element
of the definition of ‘‘small business’’
requires 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, the estimate of small
businesses to which rules may apply
does not exclude any television station
from the definition of a small business
on this basis and is therefore possibly
over-inclusive.
38. Radio Stations. This Economic
Census category ‘‘comprises
establishments primarily engaged in
broadcasting aural programs by radio to
the public. Programming may originate
in their own studio, from an affiliated
network, or from external sources.’’ The
SBA has established a small business
size standard for this category as firms
having $38.5 million or less in annual
receipts. Economic Census data for 2012
shows that 2,849 radio station firms
operated during that year. Of that
number, 2,806 operated with annual
receipts of less than $25 million per
year, 17 with annual receipts between
$25 million and $49,999,999 million
and 26 with annual receipts of $50
million or more. Therefore, based on the
SBA’s size standard the majority of such
entities are small entities.
39. According to Commission staff
review of the BIA Publications, Inc.
Master Access Radio Analyzer Database
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as of June 2, 2016, about 11,386 (or
about 99.9 percent) of 11,395
commercial radio stations had revenues
of $38.5 million or less and thus qualify
as small entities under the SBA
definition. The Commission has
estimated the number of licensed
commercial radio stations to be 11,415.
We note that the Commission has also
estimated the number of licensed NCE
radio stations to be 4,101. Nevertheless,
the Commission does not compile and
otherwise does not have access to
information on the revenue of NCE
stations that would permit it to
determine how many such stations
would qualify as small entities. We also
note that in assessing whether a
business entity qualifies as small under
the above definition, business control
affiliations must be included. The
Commission’s estimate therefore likely
overstates the number of small entities
that might be affected by its action,
because the revenue figure on which it
is based does not include or aggregate
revenues from affiliated companies.
40. In addition, to be determined a
‘‘small business,’’ an entity may not be
dominant in its field of operation. We
further note, that it is difficult at times
to assess these criteria in the context of
media entities, and the estimate of small
businesses to which these rules may
apply does not exclude any radio station
from the definition of a small business
on these bases, thus our estimate of
small businesses may therefore be overinclusive.
41. Small Entities, Small
Organizations, Small Governmental
Jurisdictions. Our proposed actions,
over time, may affect small entities that
are not easily categorized at present. We
therefore describe here, at the outset,
three comprehensive small entity size
standards that could be directly affected
herein. As of 2014, according to the
SBA, there were 28.2 million small
businesses in the U.S., which
represented 99.7% of all businesses in
the United States. Additionally, a
‘‘small organization’’ is generally ‘‘any
not-for-profit enterprise which is
independently owned and operated and
is not dominant in its field.’’
Nationwide, as of 2007, there were
approximately 1,621,215 small
organizations. Finally, the term ‘‘small
governmental jurisdiction’’ is defined
generally as ‘‘governments of cities,
towns, townships, villages, school
districts, or special districts, with a
population of less than fifty thousand.’’
Census Bureau data for 2012 indicate
that there were 89,476 local
governmental jurisdictions in the
United States. We estimate that, of this
total, as many as 88,761 entities may
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qualify as ‘‘small governmental
jurisdictions.’’ Thus, we estimate that
most governmental jurisdictions are
small.
C. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
42. The Report and Order requires
NCE stations that choose to conduct
third-party fundraising to include
certain information concerning their
fundraising activities in the public files.
Specifically, NCE stations that conduct
third-party fundraising must place in
their public files, on a quarterly basis,
the following information for each thirdparty fundraising program or activity:
the date, time, and duration of the
fundraiser; the type of fundraising
activity; the name of the non-profit
organization benefitted by the
fundraiser; a brief description of the
specific cause or project, if any,
supported by the fundraiser; and, to the
extent that the NCE station participated
in tallying or receiving any funds for the
non-profit group, an approximation of
the total funds raised.
D. Steps Taken To Minimize Significant
Economic Impact on Small Entities and
Significant Alternatives Considered
43. The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives (among
others): ‘‘(1) the establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance 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.’’
44. The NPRM in this proceeding
sought comment on whether to require
NCE stations that conduct third-party
fundraising to file annual reports on
their fundraising activities and to
require NCE stations to place these
reports in their public files. In order to
address the concerns that reporting
would place unnecessary burdens on
small NCE licensees and to minimize
burdens on NCE stations, the Report
and Order declines to adopt the
reporting requirement and instead
simply requires NCE stations that
conduct third-party fundraising to place
certain information concerning their
fundraising activities in their public
files on a quarterly basis and only if
there was fund-raising activity for that
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quarter. Additionally, the Report and
Order adopts an exemption from the
rule authorizing NCE stations to
conduct third-party fundraising which
provides that no NCE station that
receives CPB funding shall have the
authority to conduct third-party
fundraising. This exemption is intended
to ease the potential burdens that the
revised rules may place on CPB-funded
NCE stations, the majority of which are
opposed to revision of the rules to allow
third-party fundraising.
E. Report to Congress
45. The Commission will send a copy
of the Report and Order, including this
FRFA, in a report to be sent to Congress
pursuant to the Congressional Review
Act. In addition, the Commission will
send a copy of the Report and Order,
including this FRFA, to the Chief
Counsel for Advocacy of the SBA. The
Report and Order and FRFA (or
summaries thereof) will also be
published in the Federal Register.
F. Paperwork Reduction Act of 1995
Analysis
46. This Report and Order contains
either new or modified information
collection requirements subject to the
Paperwork Reduction Act of 1995
(PRA). It will be submitted to the OMB
for review under Section 3507(d) of the
PRA. The OMB, the general public, and
other federal agencies are invited to
comment on the new or modified
information collection requirements
contained in this proceeding.
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G. Additional Information
47. For additional information on this
proceeding, contact Kathy Berthot,
Kathy.Berthot@fcc.gov, of the Media
Bureau, Policy Division, (202) 418–
2120.
V. Ordering Clauses
48. Accordingly, it is ordered,
pursuant to the authority contained in
Sections 1, 4(i), 303(r), and 399B of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 303(r),
and 399B, that this Report and Order is
adopted. The requirements of this
Report and Order shall become effective
July 5, 2017, except for §§ 73.503(e)(1),
73.621(f)(1), and 73.2527(e)(14), which
contain new or modified information
collection requirements that require
approval by the OMB under the
Paperwork Reduction Act and will
become effective after the Commission
publishes a document in the Federal
Register announcing such approval and
the relevant effective date.
49. It is further ordered that the
Commission’s Consumer and
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14:00 May 04, 2017
Jkt 241001
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Report and Order including the
Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 73
Radio, Reporting and recordkeeping
requirements, Television.
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
1. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 303, 334, 336,
and 339.
2. Section 73.503 is amended by
revising the last sentence of paragraph
(d), redesignating paragraph (e) as (f),
adding new paragraph (e), and revising
the Note to § 73.503 to read as follows:
■
§ 73.503
service.
Licensing requirements and
*
*
*
*
*
(d) * * * The scheduling of any
announcements and acknowledgements
may not interrupt regular programming,
except as permitted under paragraph (e)
of this section.
(e) A noncommercial educational FM
broadcast station may interrupt regular
programming to conduct fundraising
activities on behalf of a third-party nonprofit organization, provided that all
such fundraising activities conducted
during any given year do not exceed one
percent of the station’s total annual
airtime. A station may use the prior
year’s total airtime for purposes of
determining how many hours constitute
one percent of its total annual airtime.
With respect to stations that multicast
programming on two or more separate
channels, the one-percent annual limit
will apply separately to each individual
programming stream. For purposes of
this paragraph, a non-profit organization
is an entity that qualifies as a non-profit
organization under 26 U.S.C. 501(c)(3).
(1) Audience disclosure. A
noncommercial educational FM
broadcast station that interrupts regular
programming to conduct fundraising
activities on behalf of a third-party nonprofit organization must air a disclosure
during such activities clearly stating
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21135
that the fundraiser is not for the benefit
of the station itself and identifying the
entity for which it is fundraising. The
station must air the audience disclosure
at the beginning and the end of each
fundraising program and at least once
during each hour in which the program
is on the air.
(2) Reimbursement. A noncommercial
educational FM broadcast station that
interrupts regular programming to
conduct fundraising activities on behalf
of a third-party non-profit organization
may accept reimbursement of expenses
incurred in conducting third-party
fundraising activities or airing thirdparty fundraising programs.
(3) Exemption. No noncommercial
educational FM broadcast station that
receives funding from the Corporation
for Public Broadcasting shall have the
authority to interrupt regular
programming to conduct fundraising
activities on behalf of a third-party nonprofit organization.
*
*
*
*
*
Note to § 73.503: Commission
interpretation on this rule, including the
acceptable form of acknowledgements, may
be found in the Second Report and Order in
Docket No. 21136 (Commission Policy
Concerning the Noncommercial Nature of
Educational Broadcast Stations), 86 FCC 2d
141 (1981); the Memorandum Opinion and
Order in Docket No. 21136, 90 FCC 2d 895
(1982); the Memorandum Opinion and Order
in Docket 21136, 97 FCC 2d 255 (1984); and
the Report and Order in Docket No. 12–106
(Noncommercial Educational Station
Fundraising for Third-Party Non-Profit
Organizations), FCC 17–41, April 20, 2017.
See also Commission Policy Concerning the
Noncommercial Nature of Educational
Broadcast Stations, Public Notice, 7 FCC Rcd
827 (1992), which can be retrieved through
the Internet at https://www.fcc.gov/mmb/asd/
nature.html.
3. Section 73.621 is amended by
revising the last sentence of paragraph
(e) introductory text and the Note to
paragraph (e), redesignating paragraphs
(f) through (i) as paragraphs (g) through
(j), and adding new paragraph (f) to read
as follows:
■
§ 73.621 Noncommercial educational TV
stations.
*
*
*
*
*
(e) * * * The scheduling of any
announcements and acknowledgements
may not interrupt regular programming,
except as permitted under paragraph (f)
of this section.
Note to paragraph (e): Commission
interpretation of this rule, including the
acceptable form of acknowledgements, may
be found in the Second Report and Order in
Docket No. 21136 (Commission Policy
Concerning the Noncommercial Nature of
Educational Broadcast Stations), 86 F.C.C. 2d
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Federal Register / Vol. 82, No. 86 / Friday, May 5, 2017 / Rules and Regulations
jstallworth on DSK7TPTVN1PROD with RULES
141 (1981); the Memorandum Opinion and
Order in Docket No. 21136, 90 FCC 2d 895
(1982); the Memorandum Opinion and Order
in Docket 21136, 49 FR 13534, April 5, 1984;
and the Report and Order in Docket No. 12–
106 (Noncommercial Educational Station
Fundraising for Third-Party Non-Profit
Organizations), FCC 17–41, April 20, 2017.
(f) A noncommercial educational
television station may interrupt regular
programming to conduct fundraising
activities on behalf of a third-party nonprofit organization, provided that all
such fundraising activities conducted
during any given year do not exceed one
percent of the station’s total annual
airtime. A station may use the prior
year’s total airtime for purposes of
determining how many hours constitute
one percent of its total annual airtime.
With respect to stations that multicast
programming on two or more separate
channels, the one-percent annual limit
will apply separately to each individual
programming stream. For purposes of
this paragraph, a non-profit organization
is an entity that qualifies as a non-profit
organization under 26 U.S.C. 501(c)(3).
(1) Audience disclosure. A
noncommercial educational television
station that interrupts regular
programming to conduct fundraising
activities on behalf of a third-party nonprofit organization must air a disclosure
during such activities clearly stating
that the fundraiser is not for the benefit
of the station itself and identifying the
entity for which it is fundraising. The
station must air the audience disclosure
at the beginning and the end of each
fundraising program and at least once
during each hour in which the program
is on the air.
(2) Reimbursement. A noncommercial
educational television station that
interrupts regular programming to
conduct fundraising activities on behalf
of a third-party non-profit organization
may accept reimbursement of expenses
incurred in conducting third-party
fundraising activities or airing thirdparty fundraising programs.
(3) Exemption. No noncommercial
educational television station that
receives funding from the Corporation
for Public Broadcasting shall have the
authority to interrupt regular
programming to conduct fundraising
activities on behalf of a third-party nonprofit organization.
*
*
*
*
*
■ 4. Section 73.3527 is amended by
adding paragraph (e)(14) to read as
follows:
§ 73.3527 Local public inspection file of
noncommercial educational stations.
*
*
*
(e) * * *
VerDate Sep<11>2014
*
*
14:00 May 04, 2017
Jkt 241001
(14) Information on Third-Party
Fundraising. For noncommercial
educational broadcast stations that
interrupt regular programming to
conduct fundraising activities on behalf
of a third-party non-profit organization
pursuant to § 73.503(e) (FM stations) or
§ 73.621(f) (television stations), every
three months, the following information
for each third-party fundraising program
or activity: The date, time, and duration
of the fundraiser; the type of fundraising
activity; the name of the non-profit
organization benefitted by the
fundraiser; a brief description of the
specific cause or project, if any,
supported by the fundraiser; and, to the
extent that the station participated in
tallying or receiving any funds for the
non-profit group, an approximation of
the total funds raised. The information
for each calendar quarter is to be filed
by the tenth day of the succeeding
calendar quarter (e.g., January 10 for the
quarter October–December, April 10 for
the quarter January–March, etc.).
*
*
*
*
*
[FR Doc. 2017–09002 Filed 5–4–17; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 7
RIN 2105–AE62
Updates To Comply With the FOIA
Improvement Act of 2016 and Other
Technical Amendments
Office of the Secretary (OST),
Department of Transportation (DOT).
ACTION: Final rule.
AGENCY:
This final rule updates the
Department of Transportation’s
regulations prescribing procedures for
the public availability of information to
conform these procedures with
amendments to the Freedom of
Information Act enacted by the FOIA
Improvement Act of 2016. This rule also
removes a reference to the Surface
Transportation Board, as it has been
made a separate agency, outside of the
Department, under the Surface
Transportation Board Reauthorization
Act of 2015. Finally, this rule makes a
technical amendment to the
Department’s submitter notice process
to include a reference to the Federal
Motor Carrier Safety Administration’s
updated procedures related to the
submission of confidential business
information.
SUMMARY:
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Fmt 4700
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This final rule is effective June
5, 2017.
FOR FURTHER INFORMATION CONTACT:
Claire McKenna, Senior Attorney, Office
of the General Counsel, U.S. Department
of Transportation, Washington, DC, at
claire.mckenna@dot.gov or (202) 366–
0365.
DATES:
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document may be viewed online
through the Federal eRulemaking portal
at https://www.regulations.gov.
Retrieval help and guidelines are
available on the Web site. It is available
24 hours each day, 365 days a year. An
electronic copy of this document may
also be downloaded from the Office of
the Federal Register home page at:
https://www.ofr.gov and the
Government Printing Office Web page
at: https://www.gpo.gov.
I. Purpose of the Regulatory Action
The United States Department of
Transportation (Department or DOT) is
issuing this final rule to update the
Department’s regulations prescribing
procedures for the public availability of
information to conform these
procedures with recent amendments to
the Freedom of Information Act (FOIA)
enacted in the FOIA Improvement Act
of 2016, Public Law 114–185. This rule
also makes technical amendments to 49
CFR part 7.
The rule revises the definition of
‘‘reading room records’’ in section 7.2 to
remove the discussion of the locations
of reading room records. The location of
reading room records is already
provided in section 7.12(b), therefore,
this is not a substantive change. As
required by the section 2 of the FOIA
Improvement Act of 2016, this rule also
revises the description of ‘‘Frequently
Requested Records’’ in section 7.12(a)(4)
to include records requested three or
more times under FOIA. The FOIA
Improvement Act of 2016 no longer
requires that agencies maintain physical
locations for the reading rooms. The
rule revises the description of reading
room locations in section 7.12(b) to
indicate that DOT may continue to
maintain physical reading rooms
(although not required) and, if it does,
those locations will be listed on the
Department’s FOIA Web site
(www.transportation.gov/foia).
In section 7.23, the rule amends
subparagraph (c)(5) to state that
Exemption 5’s deliberative process
privilege applies only to records created
25 years or more before the date on
which the records are requested, and the
rule adds a new paragraph (d) to
E:\FR\FM\05MYR1.SGM
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Agencies
[Federal Register Volume 82, Number 86 (Friday, May 5, 2017)]
[Rules and Regulations]
[Pages 21127-21136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09002]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 12-106; FCC 17-41]
Noncommercial Educational Station Fundraising for Third-Party
Non-Profit Organizations
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission revises its rules to allow
noncommercial educational (NCE) broadcast stations to conduct limited
on-air fundraising activities that interrupt regular programming for
the benefit of third-party non-profit organizations. Permitting NCE
stations to conduct third-party fundraising on a limited basis will
serve the public interest by enabling NCE stations to support charities
and other non-profit organizations in their fundraising efforts for
worthy causes without undermining the noncommercial nature of NCE
stations or their primary function of serving their communities of
license through educational programming.
DATES: Effective July 5, 2017, except for the amendments to Sec. Sec.
73.503(e)(1), 73.621(f)(1), and 73.3527(e)(14), which contain new or
modified information collection requirements that require approval by
the Office of Management and Budget (OMB) under the Paperwork Reduction
Act (PRA) and will become effective after the Commission publishes
[[Page 21128]]
a document in the Federal Register announcing such approval and the
relevant effective date.
FOR FURTHER INFORMATION CONTACT: For additional information, contact
Kathy Berthot, Kathy.Berthot@fcc.gov, Media Bureau, Policy Division, at
(202) 418-7454. For additional information concerning the PRA
information collection requirements contained in this document, contact
Cathy Williams, Federal Communications Commission, at (202) 418-2918,
or via email Cathy.Williams@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, FCC 17-41, adopted and released on April 20, 2017. 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., CY-A257, Washington, DC 20554. This
document will also be available via ECFS (https://www.fcc.gov/cgb/ecfs/
). Documents will be available electronically in ASCII, Word 97, and/or
Adobe Acrobat. 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).
Paperwork Reduction Act of 1995 Analysis: This document contains
new or modified information collection requirements. The Commission, as
part of its continuing effort to reduce paperwork burdens, will invite
the general public and the OMB to comment on the information collection
requirements contained in this document in a separate Federal Register
Notice, as required by the Paperwork Reduction Act of 1995, Public Law
104-13, see 44 U.S.C. 3507. In addition, pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), we previously sought specific comment on how we might
further reduce the information collection burden for small business
concerns with fewer than 25 employees.
Congressional Review Act: The Commission will send a copy of this
Report and Order to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
Synopsis
I. Introduction
1. In this Report and Order, we revise our rules to allow NCE
broadcast stations to conduct limited on-air fundraising activities
that interrupt regular programming for the benefit of third-party non-
profit organizations (hereafter, ``third-party fundraising''). Relaxing
our longstanding third-party fundraising restrictions will serve the
public interest by enabling NCE stations to support charities and other
non-profit organizations in their fundraising efforts for worthy
causes. Third-party fundraising programs may also help to raise public
awareness about important topics, such as poverty, health care, and
humanitarian issues. We conclude that permitting NCE stations to
conduct third-party fundraising on a limited basis will not undermine
the noncommercial nature of NCE stations or their primary function of
serving their communities of license through educational programming.
II. Background
2. Under Section 399B of the Communications Act, 47 U.S.C. 399B,
NCE stations are prohibited from broadcasting ``advertisements,''
defined as any message or other programming material which is broadcast
or otherwise transmitted in exchange for any remuneration, and which is
intended--
(1) to promote any service, facility, or product offered by any
person who is engaged in such offering for profit;
(2) to express the views of any person with respect to any matter
of public importance or interest; or
(3) to support or oppose any candidate for political office.
Further, pursuant to Sec. Sec. 73.503(d) and 73.621(e) of the
Commission's rules, an NCE station may not conduct fundraising
activities that substantially alter or suspend regular programming and
are designed to benefit any entity other than the station itself.
``Regular programming'' includes programming that ``the public
broadcaster ordinarily carries, but does not encompass those
fundraising activities that suspend or alter their normal programming
fare.'' The third-party fundraising restrictions reflect the concern
that ``educational stations are licensed to provide a noncommercial
broadcast service, not to serve as a fund-raising operation for other
entities by broadcasting material that is `akin to regular
advertising.' ''
3. The Commission has granted waivers of Sec. Sec. 73.503(d) and
73.621(e) in extraordinary circumstances. For example, in 1992, the
former Mass Media Bureau granted a waiver of Sec. Sec. 73.503(d) and
73.621(e) to the licensee of an NCE radio station and an NCE television
station in West Palm Beach, Florida, following Hurricane Andrew. The
stations proposed to broadcast a two-hour simulcast along with four
area commercial television stations to raise funds and donations and
provide information for the hurricane relief effort. The staff granted
the waiver in recognition of the catastrophic events that had occurred,
the stations' unique ability to serve the area affected by the
disaster, and the limited length of the program. The Commission also
has granted waivers to permit fundraising for other singular
catastrophic events, such as Hurricanes Katrina and Sandy, the
September 11, 2001 terrorist attacks, the January 2005 tsunami in
Southeast Asia, and the January 2010 earthquake in Haiti. More
recently, the Commission established informal procedures through which
NCE licensees could request Commission approval to conduct fundraising
to aid the Moore, Oklahoma area tornado relief efforts, noting that it
has granted waivers of Sec. 73.503(d) for ``fundraising appeals to
support relief efforts following disasters of particular uniqueness or
magnitude'' and that such waivers ``have been issued for a specific
fundraising program or programs, or for sustained station appeals for
periods which generally do not exceed several days.'' In contrast,
Commission staff has denied waiver requests where the proposed
fundraising occurred annually to address ongoing needs and was not
limited to a specific one-time problem.
4. In June 2011, a working group including Commission staff,
scholars, and consultants released the INC Report, a comprehensive
report on the state of the media landscape. The INC Report discussed
both the need to empower citizens to ensure that broadcasters serve
their communities in exchange for the use of public spectrum and the
need to remove unnecessary burdens on broadcasters who aim to serve
their communities. Citing comments from the National Religious
Broadcasters (NRB), the INC Report recommended that the Commission
consider affording noncommercial broadcasters more flexibility by
allowing NCE stations that are not grantees of the Corporation for
Public Broadcasting (CPB) to spend up to one percent of their annual
airtime doing fundraising for charities and other third-party non-
profit organizations. In order to be eligible for CPB funding, an NCE
station would have to devote the substantial majority of its daily
total programming hours broadcast on all of its channels to CPB-
qualified programming, which is defined as ``general audience
programming that serves demonstrated community needs of an educational,
informational and
[[Page 21129]]
cultural nature.'' The INC Report noted that ``[i]n some cases having
local charities on the air can be a useful way of informing residents
about problems in their communities'' and ``can help [NCE] stations
achieve their public service or religious missions.''
5. On April 25, 2012, in response to the recommendations in the INC
Report, the Commission adopted a Notice of Proposed Rulemaking seeking
comment on whether to allow NCE stations to conduct third-party
fundraising. The Commission received 23 comments and seven replies. NRB
and all of the religious broadcasters that filed comments favor
allowing NCE stations to conduct third-party fundraising. Commenters
representing secular NCE broadcasters, including National Public Radio
(NPR), Public Broadcasting Service and Association for Public
Television Stations (PBS/APTS), and university and college NCE
stations, oppose relaxation of the third-party fundraising
restrictions.
III. Discussion
A. Relaxation of Third-Party Fundraising Restrictions
6. We relax the third-party fundraising restrictions to allow NCE
stations to conduct limited on-air fundraising activities that
interrupt regular programming for the benefit of third-party non-profit
organizations. Such relief will provide NCE stations greater
flexibility to undertake fundraising for third-party non-profit
organizations. Under the current rules, program-length fundraising for
third-party non-profit organizations is prohibited (even if regularly
scheduled) because such programming is considered to suspend ``regular
programming.'' Under the rules we adopt today, NCE stations will be
able to conduct fundraising activities that alter or suspend regular
programming--including program-length fundraising activities--at their
discretion, as long as the fundraising programs do not exceed the one-
percent cap discussed below. We conclude that providing NCE stations
the flexibility to engage in limited fundraising for charities and
other third-party non-profit organizations will benefit the public
interest. Third-party fundraising programs may enhance the educational
nature of NCE stations by educating the public about the social needs
and charitable causes supported by non-profit organizations. For
example, a fundraising program for a breast cancer charity could help
to educate the station's audience about early detection and support
services, and a fundraising program for a child poverty relief
organization could serve to educate the stations' listeners about the
needs of children around the world who suffer in extreme poverty. Non-
profit organizations may be better able to address their charitable
missions with the financial support received from the NCE stations'
audiences. Some of this financial support may directly benefit NCE
stations' local communities. Third-party fundraising may also help to
lessen the financial burden on governmental entities that address
social needs through appropriations from public funds.
7. We further conclude that allowing NCE stations to conduct
limited third-party fundraising will not undermine the noncommercial
broadcasting service, as suggested by some commenters. The longstanding
third-party fundraising restrictions reflect concerns that any
promotional or fundraising activities by NCE stations must not
adversely affect the educational programming mission or noncommercial
character of these stations. Nevertheless, we conclude that a blanket
prohibition on third-party fundraising that interrupts regular
programming is no longer necessary to preserve NCE stations'
noncommercial nature and ensure that NCE stations remain focused on
their primary function of providing educational programming to their
communities of license. The Commission's experience in granting waivers
to allow NCE stations to conduct fundraising for disaster relief
efforts has demonstrated that NCE stations can conduct limited third-
party fundraising without compromising their noncommercial nature and
the valuable program service they provide to the public. The public has
responded enthusiastically to these disaster relief fundraising
activities, and there is no evidence in the record before us that these
fundraising activities have altered the public's perception of
noncommercial broadcasting. Accordingly, we find that it is appropriate
to allow NCE stations to conduct third-party fundraising on a limited
basis.
8. We disagree with assertions that the success of the existing
waiver process demonstrates that changes to the rules are unnecessary.
As discussed above, we have determined that the public interest will be
served by relaxing our third-party fundraising restrictions to allow
NCE stations to conduct limited third-party fundraising activities
unrelated to relief efforts for singular catastrophic events. The
waiver process is intended to provide relief in extraordinary
circumstances, and is not suitable for the more routine third-party
fundraising activities that we address in this proceeding. We likewise
reject proposals that we expand the existing waiver process to allow
NCE stations to seek waivers to conduct third-party fundraising
activities that are not connected to specific disasters. We think that
it would impose an unnecessary burden on both NCE licensees and
Commission staff to require NCE licensees to seek waivers each time
they want to conduct such routine third-party fundraising.
9. We are also not persuaded by arguments that relaxing the third-
party fundraising restrictions will adversely affect the noncommercial
broadcasting service by reducing the amount of airtime dedicated to
educational, instructional, and cultural programming; lessening the
appeal of NCE stations to their audiences; or jeopardizing fundraising
for NCE stations' own operations. First and foremost, we emphasize that
the choice to conduct third-party fundraising will be entirely
voluntary on the part of NCE stations. NCE stations that do not wish to
engage in third-party fundraising are not required to do so. Thus, NCE
stations concerned that airing third-party fundraising programs will
jeopardize fundraising for their own operations can simply choose not
to engage in such third-party fundraising. Additionally, we have
determined that third-party fundraising programs may enhance the
educational nature of NCE stations in some situations by raising public
awareness about social needs and charitable causes supported by non-
profit organizations. Further, as we explain below, we are limiting the
amount of time that NCE stations can spend on third-party fundraising
that interrupts regular programming to one percent of their total
annual airtime. We believe that the one-percent annual limit strikes
the proper balance between providing NCE stations some flexibility to
support their fundraising missions and ensuring that their third-party
fundraising activities do not take away from their primary function of
providing noncommercial, educational programming to their local
communities.
10. We disagree with assertions that third-party fundraising will
change the public's perception of noncommercial broadcasting by causing
the public to view the ``business'' of NCE stations as charitable
fundraising, which could harm all NCE stations, even those that do not
change their on-air practices. NCE stations that choose to engage in
third-party fundraising will continue to spend the vast majority of
their time--
[[Page 21130]]
at least 99%, if not more--providing noncommercial, educational
programming to their audiences. We do not believe that allowing NCE
stations to allot up to one percent of their total annual airtime to
third-party fundraising will significantly alter the public's
perception of noncommercial broadcasting. Nor do we believe that third-
party fundraising will weaken the public's confidence in the editorial
independence of NCE stations or increase the potential for third-party
organizations to influence programming decisions. As NRB points out,
NCE stations are already permitted to air sponsorship and underwriting
announcements from both non-profit groups and commercial businesses.
Commenters have offered no evidence that such promotional announcements
have eroded the public's confidence in the editorial independence of
NCE stations.
11. Some commenters assert that relaxation of the third-party
fundraising restrictions will subject NCE stations to undue pressure
from affiliated or influential parties--such as universities, colleges,
and other institutions that hold the stations' licenses, politically
powerful persons, and foundations that provide underwriting
contributions to stations--that may seek to use the station to raise
funds for their own discrete interests, or cause NCE stations to be
inundated with fundraising requests from local non-profits. To the
extent that these commenters raise concerns that a university, college,
or other institutional licensee may apply pressure to its licensed
station to engage in third-party fundraising, we note that NCE stations
can take steps to preempt unwanted fundraising requests from licensees
and other non-profit organizations by, for example, announcing publicly
their reasons for not airing routine third-party fundraising drives.
12. Exemption From Third-Party Fundraising Rule for CPB-Funded NCE
Stations. Although we conclude that the public interest will be served
by providing NCE stations the flexibility to conduct third-party
fundraising, we recognize that some NCE stations claim that this new
fundraising latitude may pose challenges for those stations that have
no interest in participating in third-party fundraising. The record
reflects that most NCE stations that oppose third-party fundraising are
CPB-funded stations. Indeed, all but one CPB-funded station that filed
comments opposed relaxation of the rule. Accordingly, because CPB-
funded stations generally do not want this added flexibility, we are
exempting all CPB-funded NCE stations from the new rule authorizing NCE
stations to conduct on-air fundraising for third-party non-profit
organizations that interrupts regular programming.
B. Limitations on Eligible Beneficiaries of Third-Party Fundraising
13. We limit the class of entities for which NCE stations may
conduct third-party fundraising to entities that are recognized as tax
exempt, non-profit organizations under Section 501(c)(3) of the
Internal Revenue Code, 26 U.S.C. 501(c)(3). Section 501(c)(3) exempts
from federal income taxes corporations, foundations, or other
organizations that are organized and operated exclusively for
religious, charitable, scientific, educational, or certain other
purposes, where no part of the net earnings of the organization inures
to the benefit of any private shareholder or individual. NRB and other
commenters overwhelmingly support limiting eligibility for third-party
fundraising to Section 501(c)(3) organizations. We agree with
commenters that this limitation will provide NCE stations certainty
that third-party organizations that benefit from on-air fundraising are
bona fide non-profits.
14. Two commenters suggest that NCE stations should be allowed to
undertake fundraising for any organization that has qualified as a bona
fide non-profit organization in any State or pursuant to any section of
the Internal Revenue Code relating to non-profit organizations. These
commenters assert that not all bona fide non-profit organizations
choose to apply to be certified as tax exempt under the Internal
Revenue Code and that there are many bona fide non-profit, tax exempt
organizations, such as veterans organizations and civic leagues, that
are not qualified under Section 501(c)(3), but are covered under other
sections of the Internal Revenue Code. We acknowledge that there are
many bona fide non-profit organizations that are not qualified as tax
exempt, non-profit organizations under Section 501(c)(3). Nevertheless,
we conclude that it is appropriate to limit eligibility for third-party
fundraising under our rules to Section 501(c)(3) organizations. We
think it would be unworkable to have the laws of 50 different States
governing the types of non-profit organizations that may be the
beneficiaries of third-party fundraising.
15. Moreover, unlike non-profit organizations certified under other
sections of the Internal Revenue Code, Section 501(c)(3) organizations
are strictly prohibited from supporting or opposing candidates for
political office and are subject to limits on lobbying. Thus, limiting
eligible beneficiaries to Section 501(c)(3) organizations dovetails
well with Section 399B's prohibition on paid political advertising on
NCE stations. This prohibition reflects Congress's concern that paid
political advertising could alter the unique noncommercial, educational
nature of public broadcasting. We are similarly concerned that allowing
NCE stations to raise funds for non-profit organizations that support
or oppose political candidates or spend a substantial part of their
time engaged in lobbying activities could alter the noncommercial,
educational nature of NCE stations. We are also concerned that an NCE
station's audience may perceive the station's efforts to raise funds
for such an organization as a tacit endorsement of that organization's
views, which could alter the public's perception of noncommercial
broadcasting. Therefore, we conclude that it is appropriate to limit
the eligible beneficiaries of third-party fundraising to Section
501(c)(3) organizations.
16. We will not limit eligible beneficiaries of third-party
fundraising to local non-profit organizations. The Commission sought
comment in the NPRM on whether it would further localism to limit NCE
stations to soliciting donations for local non-profit organizations.
After reviewing the comments, however, we are not convinced that
localism would benefit significantly from such a limitation. Several
commenters point out that there are many national non-profit
organizations (some of which have local chapters and some of which do
not) that provide critical support to local communities. Educational
Media Foundation (EMF) notes, in this regard, that a disaster that
directly impacts the audience of an NCE station may be best addressed
by a national organization that does not have a local chapter in the
community of license. Further, we agree with commenters that it may be
difficult to distinguish between ``local'' and ``non-local''
organizations where, for example, a non-profit organization has local,
national, and international components. Additionally, commenters
observe that limiting eligible beneficiaries to local non-profit
organizations may ignore the preferences of NCE station audiences.
Northwestern College states that it conducted a survey of its listener
advisory panels in five of its markets to solicit feedback on how the
panel members feel about providing financial aid to less fortunate
individuals facing difficult circumstances both at home
[[Page 21131]]
and abroad. Over 65% of the 1,200 respondents indicated that they want
to be informed about the needs of poor people regardless of where they
live, over 44% indicated that they are willing to respond financially
to help worthy causes both in the United States and internationally,
and 26% indicated that awareness of problems in other countries makes
them more likely to help those in their own communities. Accordingly,
we will afford NCE stations the discretion to raise funds for both
local and non-local non-profit organizations. While we are not limiting
the beneficiaries of third-party fundraising to local non-profit
groups, we note that many NCE stations already have relationships with
non-profit groups in their local communities and we expect that NCE
stations may be highly motivated to support local non-profits.
17. We also decline to limit eligible beneficiaries of an NCE
station's third-party fundraising to non-profit organizations that are
unaffiliated with the station. The NPRM asked for comment on whether to
limit fundraising on behalf of third parties to unaffiliated third
parties, given that third-party fundraising on behalf of affiliated
entities may restrict an NCE station's ability to conduct fundraising
for local non-profit organizations. As discussed above, we have
determined that it will not significantly further localism to limit NCE
stations to fundraising for local non-profit organizations. Thus, we
think it is unnecessary to limit third-party fundraising to
unaffiliated entities to ensure that NCE stations are able to fundraise
for local non-profit groups.
C. Annual Limit on Third-Party Fundraising
18. We will allow NCE broadcasters to spend up to one percent of
their total annual airtime conducting third-party fundraising. NRB
asserts that a one-percent annual limit provides adequate flexibility
to NCE stations, explaining that NCE licensees ``will be reluctant to
frustrate their audiences with excessive or demanding appeals for
third-party non-profits, particularly when their own stations rely on
donations from their [audiences] in order to operate.'' We agree with
NRB and other commenters that a one-percent annual limit will strike an
appropriate balance between allowing NCE stations the flexibility to
support the fundraising efforts of third-party non-profit organizations
and ensuring that third-party fundraising does not undermine the
noncommercial nature of the participating stations and divert them from
their primary function of providing educational programming to their
communities of license. A one-percent annual limit--which equates to
approximately 88 hours annually or 1.7 hours weekly for stations on the
air 24 hours a day--will afford NCE stations flexibility to conduct
third-party fundraising, while also ensuring that NCE stations do not
frustrate their audiences with excessive fundraising appeals or divert
stations from primary mission of providing educational programming to
their communities. We reject proposals that we adopt a ten-percent
annual limit on third-party fundraising, or leave it entirely up to NCE
stations to decide how much of their airtime to devote to third-party
fundraising. We share NPR's concern that a ten-percent annual limit
would represent a significant portion of a station's annual program
schedule and could further erode the distinction between NCE stations
and their commercial counterparts.
19. We recognize that an NCE station's total annual airtime may
vary slightly from year to year and that it may be difficult for some
stations to determine in advance precisely how many hours they will
operate in a given year. Therefore, as suggested by NRB, we will allow
NCE stations that engage in third-party fundraising to use the prior
year's total airtime for purposes of determining how many hours
constitute one percent of their total annual airtime. For example, an
NCE station that wishes to devote one percent of its airtime in 2017 to
third-party fundraising may use its total annual airtime for 2016 in
calculating the one percent cap. Furthermore, with respect to NCE
stations that multicast programming on two or more separate channels,
we will apply the one-percent annual limit separately to each
individual programming stream. Thus, an NCE station with three
programming streams may spend up to one percent of the total annual
airtime of each stream airing third-party fundraising programming on
that stream. We will not, however, allow NCE stations with multiple
programming streams to aggregate their total hours of programming from
all of their streams and allocate their fundraising activity between
and among streams or on a single program stream at their discretion, as
proposed by one commenter. As discussed above, we believe that the one-
percent annual limit is important to ensuring that third-party
fundraising activities do not undermine the noncommercial character of
NCE stations, and including more fundraising on a particular stream
would undermine that goal.
20. We will retain our long-standing waiver process to permit NCE
stations to conduct time-limited on-air fundraising for specific
disasters and other singular catastrophic events, such as hurricanes
and tornadoes, as suggested by commenters. Since such events occur only
rarely, it will not burden Commission staff to retain the existing
waiver process for such events for all NCE stations, both exempt and
non-exempt. This will enable CPB-funded stations that are exempt from
the new rule to conduct third-party fundraising for disaster relief
efforts by seeking a waiver as they have done in the past. Non-exempt
stations may use the same long-standing process if they wish to conduct
third-party fundraising beyond their one-percent annual limit, but the
standard will remain the same. This approach will ensure that if a
disaster occurs after a non-exempt station reaches its one-percent
annual limit, the station would still be able to seek a waiver to raise
funds on-air to support these efforts.
21. We decline to adopt any general limits on the duration of a
specific fundraising program or on a discrete fundraising effort. We
think it is unlikely that NCE licensees will risk alienating their
audiences by interrupting their regular programming for an extended
duration to conduct third-party fundraising. Thus, we find it is
unnecessary to adopt durational limits on such fundraising programs.
D. Audience Disclosures
22. We require NCE stations that interrupt regular programming to
conduct third-party fundraising to air audience disclosures that
clearly state that the fundraiser is not for the benefit of the station
itself and identify the non-profit organization intended to benefit
from the fundraising. Most commenters that address this issue support
an audience disclosure requirement, acknowledging that it will decrease
the likelihood of confusion on the part of station audiences as to
whether the fundraising is intended to benefit the station or another
entity and as to the identity of the entity for which the fundraising
is being conducted. Commenters offer a range of suggestions as to the
details and frequency of the audience disclosures. We adopt NRB's
proposed approach and require that NCE stations make disclosures at the
beginning and the end of the fundraising program and at least once
during each hour of the program. We will not require NCE stations to
use any particular language in the disclosure, but the disclosure must
clearly state that the fundraiser is not for the benefit of
[[Page 21132]]
the station itself and specifically identify the non-profit
organization for which the fundraising is being conducted. As NRB
suggests, an NCE station may include more detailed information--such as
a description of the non-profit entity and any special project or
purpose for which the funds are being raised--on the station's Web site
and invite the audience to access that information.
23. One commenter opposes the audience disclosure requirement,
arguing that it ``would seem obvious that any appeal for funds . . .
will reveal the identity of the party soliciting the donation.'' We
disagree. Given that NCE stations frequently conduct fundraising to
support their own operations and programming, we believe that audience
confusion could arise, particularly where there is an affiliation
between an NCE station and the non-profit organization for which the
fundraising is being conducted. Accordingly, we conclude that an
audience disclosure requirement is warranted to ensure that the
beneficiary of the fundraising is clearly identified and avoid the
potential for audience confusion. We further find that this audience
disclosure requirement will not impose a significant burden on NCE
stations as it simply requires a statement that the fundraising is not
for the stations and identification of the organization that will
receive the funds.
E. Reimbursement of Expenses
24. We allow NCE stations to accept reimbursement of expenses
incurred in conducting third-party fundraising activities or airing
third-party fundraising programs. Expenses for which reimbursement may
be accepted include expenses incurred by an NCE station in producing
third-party programming and the station's operating costs in connection
with the broadcast of third-party fundraising programming. This is
consistent with Section 399B(b)(1) of the Act, 47 U.S.C. 399B(b)(1),
which allows ``public broadcast station[s] . . . to engage in the
offering of services, facilities, or products in exchange for
remuneration,'' except that such stations may not make their facilities
available for the broadcast of any advertisements. We decline, however,
to allow NCE stations to receive ``additional consideration'' in
exchange for conducting or airing third-party fundraising programs.
Allowing NCE stations to receive additional consideration for third-
party fundraising activities could create the perception that NCE
stations are engaging in commercial activity and airing programming
akin to advertising, thus undermining their noncommercial, educational
mission. It also could mislead fundraising contributors, who might
assume that their donations are being used exclusively to advance the
mission of the fundraiser. Finally, as acknowledged by NRB, our rules
permit an NCE station to broadcast programming furnished by third
parties only ``if no other consideration than the furnishing of the
program and the costs incidental to its production and broadcast are
received by the licensee.'' We decline NRB's request to create a
distinction between ``regular `programming' '' and ``special
fundraising activities by NCE stations for a third-party non-profit
group,'' with the latter not subject to the prohibition on receiving
additional consideration. We find that the policy rationale for
prohibiting additional consideration in the case of regular
programming, i.e., that such consideration could undermine the
noncommercial, educational character of public broadcast stations,
applies equally to third party fundraising activities and programs.
F. Public File Requirement and Other Matters
25. We do not require NCE stations that participate in third-party
fundraising that interrupts regular programming to submit reports to
the Commission detailing their fundraising activities, but will instead
require such stations to include appropriate information on their
fundraising activities in their public inspection files. Specifically,
we require NCE stations that conduct third-party fundraising to place
in their public files, on a quarterly basis, the following information
for each third-party fundraising program or activity: The date, time,
and duration of the fundraiser; the type of fundraising activity; the
name of the non-profit organization benefitted by the fundraiser; a
brief description of the specific cause or project, if any, supported
by the fundraiser; and, to the extent that the NCE station participated
in tallying or receiving any funds for the non-profit group, an
approximation of the total funds raised. NCE stations that do not
conduct any third-party fundraising in a given quarter will not be
required to include any fundraising information in their public file
for that quarter. A number of commenters raised concerns that a
reporting requirement would impose unnecessary burdens on NCE
licensees. NRB and other commenters support a public file requirement.
We conclude that the more modest approach we adopt here will provide
transparency regarding NCE stations' third-party fundraising activities
to the stations' audiences, while minimizing any burdens on NCE
stations. We also conclude that it is unnecessary to require NCE
licensees to certify compliance with the annual limit and other
restrictions on third-party fundraising in their license renewal
applications.
26. Additionally, we do not require NCE stations to locally produce
all third-party fundraising programs and conduct all third-party
fundraising activities themselves, including collecting and
distributing the funds to the non-profit entity. We agree with
commenters who argue that requiring NCE stations to locally produce
third-party fundraising programs may be unnecessarily burdensome and
inefficient. Further, we are not convinced that requiring local
production of third-party fundraising activities is necessary to
promote localism. As EMF points out, fundraising is not inherently
local, but instead can have a regional, national, or worldwide message
and still serve the needs of local communities. We also note that NCE
stations are permitted under the Commission's rules to air programming
that is not locally produced. Indeed, the Commission has consistently
found that non-locally produced programming can serve the needs of a
community. Moreover, we are unpersuaded by NPR's argument that allowing
outside entities to independently produce fundraising appeals and
handle the collection of funds could ``fuel the perception that the
station lacks editorial independence and that its airtime is being
leased to the highest bidder.'' As noted above, NCE stations are
already permitted to air non-locally produced programming, and NPR does
not suggest that the broadcast of such programming has created a
perception that NCE stations lack editorial independence. We do not
believe that allowing NCE stations to use up to one percent of their
total annual airtime for non-locally produced third-party fundraising
will cause the public to lose confidence in the stations' editorial
independence.
27. Finally, we will not require NCE stations that want to
participate in third-party fundraising to affirmatively ``opt in'' by
filing a letter or notification with the Commission. We conclude that
there would be little benefit to non-profit organizations from opt-in
notifications, as such organizations are more likely to seek out
fundraising partners based on existing relationships with NCE stations
than by perusing notifications filed with the Commission.
[[Page 21133]]
IV. Procedural Matters
A. Final Regulatory Flexibility Act Analysis
28. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Initial Regulatory Flexibility Analysis (IRFA) was
incorporated into the Notice of Proposed Rulemaking (NPRM) released in
April 2012 in this proceeding. The Federal Communications Commission
(Commission) sought written public comment on the proposals in the
NPRM, including comment on the IRFA. The Commission received no
comments on the IRFA. This Final Regulatory Flexibility Analysis (FRFA)
conforms to the RFA.
B. Need for, and Objectives of, the Report and Order
29. Pursuant to Sec. Sec. 73.503(d) and 73.621(e) of the
Commission's rules, a noncommercial educational (NCE) broadcast station
may not conduct fundraising activities that substantially alter or
suspend regular programming and are designed to benefit any entity
other than the station itself. ``Regular programming'' includes
programming that ``the public broadcaster ordinarily carries, but does
not encompass those fundraising activities that suspend or alter their
normal programming fare.'' The third-party fundraising restrictions
reflect the concern that ``educational stations are licensed to provide
a noncommercial broadcast service, not to serve as a fund-raising
operation for other entities by broadcasting material that is `akin to
regular advertising.' '' The NPRM sought comment on whether and under
what circumstances to NCE stations should be allowed to conduct on-air
fundraising activities that interrupt regular programming for the
benefit of charities and other third-party non-profit organizations.
30. The Report and Order revises the rules to allow NCE stations to
conduct limited on-air fundraising activities that interrupt regular
programming for the benefit of third-party non-profit organizations.
The Report and Order finds that relaxing the longstanding third-party
fundraising restrictions will serve the public interest by enabling NCE
stations to partner with charities and other non-profit organizations
to raise funds for worthy causes. Third-party fundraising programs will
also help to raise public awareness about important topics, such as
poverty, health care, and humanitarian issues. The Report and Order
concludes that permitting NCE stations to conduct limited third-party
fundraising will not undermine the noncommercial nature of NCE stations
or their primary function of serving their communities of license
through educational programming.
31. The rules adopted in the Report and Order are intended to
provide NCE stations the flexibility to conduct limited third-party
fundraising, while minimizing any impact on the noncommercial
broadcasting service. Specifically, these rules:
Authorize NCE stations to conduct third-party fundraising
that interrupts regular programming;
Include an exemption from the rule authorizing NCE
stations to conduct third-party fundraising which provides that no NCE
station that receives funding from the Corporation for Public
Broadcasting (CPB) shall have the authority to conduct third-party
fundraising;
Limit the non-profit organizations that are eligible
beneficiaries of third-party fundraising to entities that are
recognized as tax exempt, non-profit organizations under Section
501(c)(3) of the Internal Revenue Code;
Authorize NCE stations to spend up to one percent of their
total annual airtime conducting third-party fundraising;
Require NCE stations that conduct third-party fundraising
to air audience disclosures, at the beginning and ending of the
fundraising programming and at least once during each hour of the
program, that clearly state that the fundraiser is not for the benefit
of the station itself and specifically identify the non-profit
organization that is the intended beneficiary of the fundraising;
Authorize NCE stations to accept reimbursement of expenses
incurred in conducting third-party fundraising activities or airing
third-party fundraising programs, but prohibit NCE stations from
receiving ``additional consideration'' in exchange for conducting or
airing third-party fundraising programs; and
Require NCE stations that conduct third-party fundraising
to include certain information relating to their fundraising activities
in their public files.
Summary of Significant Issues Raised in Response to the IRFA
32. No comments were filed in response to the IRFA. One commenter
raised concerns that the reporting requirements proposed in the NPRM
could impose unnecessary burdens on small NCE licensees.
Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
33. Pursuant to the Small Business Jobs Act of 2010, the Commission
is required to respond to any comments filed by the Chief Counsel for
Advocacy of the Small Business Administration (SBA), and to provide a
detailed statement of any change made to the proposed rules as a result
of those comments. The Chief Counsel did not file any comments in
response to the proposed rules in this proceeding.
Description and Estimate of the Number of Small Entities To Which the
Rules Will Apply
34. 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 herein. 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
SBA. Below, we provide a description of such small entities, as well as
an estimate of the number of such small entities, where feasible.
35. Television Broadcasting. This Economic Census category
``comprises establishments primarily engaged in broadcasting images
together with sound.'' These establishments operate television
broadcast studios and facilities for the programming and transmission
of programs to the public. These establishments also produce or
transmit visual programming to affiliated broadcast television
stations, which in turn broadcast the programs to the public on a
predetermined schedule. Programming may originate in their own studio,
from an affiliated network, or from external sources. The SBA has
created the following small business size standard for such businesses:
Those having $38.5 million or less in annual receipts. The 2012
Economic Census reports that 751 firms in this category operated in
that year. Of that number, 656 had annual receipts of $25,000,000 or
less, 25 had annual receipts between $25,000,000 and $49,999,999 and 70
had annual receipts of $50,000,000 or more. Based on this data, we
therefore estimate that the majority of television
[[Page 21134]]
broadcasters are small entities under the applicable SBA size standard.
36. The Commission has estimated the number of licensed commercial
television stations to be 1,384. Of this total, 1,264 stations (or
about 91 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 February 24, 2017, and therefore these
licensees qualify as small entities under the SBA definition. In
addition, the Commission has estimated the number of licensed NCE
television stations to be 394. Notwithstanding, the Commission does not
compile and otherwise does not have access to information on the
revenue of NCE stations that would permit it to determine how many such
stations would qualify as small entities.
37. We note, however, that in assessing whether a business concern
qualifies as ``small'' under the above definition, business (control)
affiliations must be included. Our estimate, therefore likely
overstates the number of small entities that might be affected by our
action, because the revenue figure on which it is based does not
include or aggregate revenues from affiliated companies. In addition,
another element of the definition of ``small business'' requires 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, the estimate of small businesses to
which rules may apply does not exclude any television station from the
definition of a small business on this basis and is therefore possibly
over-inclusive.
38. Radio Stations. This Economic Census category ``comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public. Programming may originate in their own studio,
from an affiliated network, or from external sources.'' The SBA has
established a small business size standard for this category as firms
having $38.5 million or less in annual receipts. Economic Census data
for 2012 shows that 2,849 radio station firms operated during that
year. Of that number, 2,806 operated with annual receipts of less than
$25 million per year, 17 with annual receipts between $25 million and
$49,999,999 million and 26 with annual receipts of $50 million or more.
Therefore, based on the SBA's size standard the majority of such
entities are small entities.
39. According to Commission staff review of the BIA Publications,
Inc. Master Access Radio Analyzer Database as of June 2, 2016, about
11,386 (or about 99.9 percent) of 11,395 commercial radio stations had
revenues of $38.5 million or less and thus qualify as small entities
under the SBA definition. The Commission has estimated the number of
licensed commercial radio stations to be 11,415. We note that the
Commission has also estimated the number of licensed NCE radio stations
to be 4,101. Nevertheless, the Commission does not compile and
otherwise does not have access to information on the revenue of NCE
stations that would permit it to determine how many such stations would
qualify as small entities. We also note that in assessing whether a
business entity qualifies as small under the above definition, business
control affiliations must be included. The Commission's estimate
therefore likely overstates the number of small entities that might be
affected by its action, because the revenue figure on which it is based
does not include or aggregate revenues from affiliated companies.
40. In addition, to be determined a ``small business,'' an entity
may not be dominant in its field of operation. We further note, that it
is difficult at times to assess these criteria in the context of media
entities, and the estimate of small businesses to which these rules may
apply does not exclude any radio station from the definition of a small
business on these bases, thus our estimate of small businesses may
therefore be over-inclusive.
41. Small Entities, Small Organizations, Small Governmental
Jurisdictions. Our proposed actions, over time, may affect small
entities that are not easily categorized at present. We therefore
describe here, at the outset, three comprehensive small entity size
standards that could be directly affected herein. As of 2014, according
to the SBA, there were 28.2 million small businesses in the U.S., which
represented 99.7% of all businesses in the United States. Additionally,
a ``small organization'' is generally ``any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.'' Nationwide, as of 2007, there were approximately 1,621,215
small organizations. Finally, the term ``small governmental
jurisdiction'' is defined generally as ``governments of cities, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand.'' Census Bureau data for 2012
indicate that there were 89,476 local governmental jurisdictions in the
United States. We estimate that, of this total, as many as 88,761
entities may qualify as ``small governmental jurisdictions.'' Thus, we
estimate that most governmental jurisdictions are small.
C. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
42. The Report and Order requires NCE stations that choose to
conduct third-party fundraising to include certain information
concerning their fundraising activities in the public files.
Specifically, NCE stations that conduct third-party fundraising must
place in their public files, on a quarterly basis, the following
information for each third-party fundraising program or activity: the
date, time, and duration of the fundraiser; the type of fundraising
activity; the name of the non-profit organization benefitted by the
fundraiser; a brief description of the specific cause or project, if
any, supported by the fundraiser; and, to the extent that the NCE
station participated in tallying or receiving any funds for the non-
profit group, an approximation of the total funds raised.
D. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
43. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): ``(1)
the establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance 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.''
44. The NPRM in this proceeding sought comment on whether to
require NCE stations that conduct third-party fundraising to file
annual reports on their fundraising activities and to require NCE
stations to place these reports in their public files. In order to
address the concerns that reporting would place unnecessary burdens on
small NCE licensees and to minimize burdens on NCE stations, the Report
and Order declines to adopt the reporting requirement and instead
simply requires NCE stations that conduct third-party fundraising to
place certain information concerning their fundraising activities in
their public files on a quarterly basis and only if there was fund-
raising activity for that
[[Page 21135]]
quarter. Additionally, the Report and Order adopts an exemption from
the rule authorizing NCE stations to conduct third-party fundraising
which provides that no NCE station that receives CPB funding shall have
the authority to conduct third-party fundraising. This exemption is
intended to ease the potential burdens that the revised rules may place
on CPB-funded NCE stations, the majority of which are opposed to
revision of the rules to allow third-party fundraising.
E. Report to Congress
45. The Commission will send a copy of the Report and Order,
including this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Report and Order, including this FRFA, to the Chief Counsel for
Advocacy of the SBA. The Report and Order and FRFA (or summaries
thereof) will also be published in the Federal Register.
F. Paperwork Reduction Act of 1995 Analysis
46. This Report and Order contains either new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA). It will be submitted to the OMB for review under
Section 3507(d) of the PRA. The OMB, the general public, and other
federal agencies are invited to comment on the new or modified
information collection requirements contained in this proceeding.
G. Additional Information
47. For additional information on this proceeding, contact Kathy
Berthot, Kathy.Berthot@fcc.gov, of the Media Bureau, Policy Division,
(202) 418-2120.
V. Ordering Clauses
48. Accordingly, it is ordered, pursuant to the authority contained
in Sections 1, 4(i), 303(r), and 399B of the Communications Act of
1934, as amended, 47 U.S.C. 151, 154(i), 303(r), and 399B, that this
Report and Order is adopted. The requirements of this Report and Order
shall become effective July 5, 2017, except for Sec. Sec.
73.503(e)(1), 73.621(f)(1), and 73.2527(e)(14), which contain new or
modified information collection requirements that require approval by
the OMB under the Paperwork Reduction Act and will become effective
after the Commission publishes a document in the Federal Register
announcing such approval and the relevant effective date.
49. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order including the Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 73
Radio, Reporting and recordkeeping requirements, Television.
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.
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2. Section 73.503 is amended by revising the last sentence of paragraph
(d), redesignating paragraph (e) as (f), adding new paragraph (e), and
revising the Note to Sec. 73.503 to read as follows:
Sec. 73.503 Licensing requirements and service.
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(d) * * * The scheduling of any announcements and acknowledgements
may not interrupt regular programming, except as permitted under
paragraph (e) of this section.
(e) A noncommercial educational FM broadcast station may interrupt
regular programming to conduct fundraising activities on behalf of a
third-party non-profit organization, provided that all such fundraising
activities conducted during any given year do not exceed one percent of
the station's total annual airtime. A station may use the prior year's
total airtime for purposes of determining how many hours constitute one
percent of its total annual airtime. With respect to stations that
multicast programming on two or more separate channels, the one-percent
annual limit will apply separately to each individual programming
stream. For purposes of this paragraph, a non-profit organization is an
entity that qualifies as a non-profit organization under 26 U.S.C.
501(c)(3).
(1) Audience disclosure. A noncommercial educational FM broadcast
station that interrupts regular programming to conduct fundraising
activities on behalf of a third-party non-profit organization must air
a disclosure during such activities clearly stating that the fundraiser
is not for the benefit of the station itself and identifying the entity
for which it is fundraising. The station must air the audience
disclosure at the beginning and the end of each fundraising program and
at least once during each hour in which the program is on the air.
(2) Reimbursement. A noncommercial educational FM broadcast station
that interrupts regular programming to conduct fundraising activities
on behalf of a third-party non-profit organization may accept
reimbursement of expenses incurred in conducting third-party
fundraising activities or airing third-party fundraising programs.
(3) Exemption. No noncommercial educational FM broadcast station
that receives funding from the Corporation for Public Broadcasting
shall have the authority to interrupt regular programming to conduct
fundraising activities on behalf of a third-party non-profit
organization.
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Note to Sec. 73.503: Commission interpretation on this rule,
including the acceptable form of acknowledgements, may be found in
the Second Report and Order in Docket No. 21136 (Commission Policy
Concerning the Noncommercial Nature of Educational Broadcast
Stations), 86 FCC 2d 141 (1981); the Memorandum Opinion and Order in
Docket No. 21136, 90 FCC 2d 895 (1982); the Memorandum Opinion and
Order in Docket 21136, 97 FCC 2d 255 (1984); and the Report and
Order in Docket No. 12-106 (Noncommercial Educational Station
Fundraising for Third-Party Non-Profit Organizations), FCC 17-41,
April 20, 2017. See also Commission Policy Concerning the
Noncommercial Nature of Educational Broadcast Stations, Public
Notice, 7 FCC Rcd 827 (1992), which can be retrieved through the
Internet at https://www.fcc.gov/mmb/asd/nature.html.
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3. Section 73.621 is amended by revising the last sentence of paragraph
(e) introductory text and the Note to paragraph (e), redesignating
paragraphs (f) through (i) as paragraphs (g) through (j), and adding
new paragraph (f) to read as follows:
Sec. 73.621 Noncommercial educational TV stations.
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(e) * * * The scheduling of any announcements and acknowledgements
may not interrupt regular programming, except as permitted under
paragraph (f) of this section.
Note to paragraph (e): Commission interpretation of this rule,
including the acceptable form of acknowledgements, may be found in
the Second Report and Order in Docket No. 21136 (Commission Policy
Concerning the Noncommercial Nature of Educational Broadcast
Stations), 86 F.C.C. 2d
[[Page 21136]]
141 (1981); the Memorandum Opinion and Order in Docket No. 21136, 90
FCC 2d 895 (1982); the Memorandum Opinion and Order in Docket 21136,
49 FR 13534, April 5, 1984; and the Report and Order in Docket No.
12-106 (Noncommercial Educational Station Fundraising for Third-
Party Non-Profit Organizations), FCC 17-41, April 20, 2017.
(f) A noncommercial educational television station may interrupt
regular programming to conduct fundraising activities on behalf of a
third-party non-profit organization, provided that all such fundraising
activities conducted during any given year do not exceed one percent of
the station's total annual airtime. A station may use the prior year's
total airtime for purposes of determining how many hours constitute one
percent of its total annual airtime. With respect to stations that
multicast programming on two or more separate channels, the one-percent
annual limit will apply separately to each individual programming
stream. For purposes of this paragraph, a non-profit organization is an
entity that qualifies as a non-profit organization under 26 U.S.C.
501(c)(3).
(1) Audience disclosure. A noncommercial educational television
station that interrupts regular programming to conduct fundraising
activities on behalf of a third-party non-profit organization must air
a disclosure during such activities clearly stating that the fundraiser
is not for the benefit of the station itself and identifying the entity
for which it is fundraising. The station must air the audience
disclosure at the beginning and the end of each fundraising program and
at least once during each hour in which the program is on the air.
(2) Reimbursement. A noncommercial educational television station
that interrupts regular programming to conduct fundraising activities
on behalf of a third-party non-profit organization may accept
reimbursement of expenses incurred in conducting third-party
fundraising activities or airing third-party fundraising programs.
(3) Exemption. No noncommercial educational television station that
receives funding from the Corporation for Public Broadcasting shall
have the authority to interrupt regular programming to conduct
fundraising activities on behalf of a third-party non-profit
organization.
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4. Section 73.3527 is amended by adding paragraph (e)(14) to read as
follows:
Sec. 73.3527 Local public inspection file of noncommercial
educational stations.
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(e) * * *
(14) Information on Third-Party Fundraising. For noncommercial
educational broadcast stations that interrupt regular programming to
conduct fundraising activities on behalf of a third-party non-profit
organization pursuant to Sec. 73.503(e) (FM stations) or Sec.
73.621(f) (television stations), every three months, the following
information for each third-party fundraising program or activity: The
date, time, and duration of the fundraiser; the type of fundraising
activity; the name of the non-profit organization benefitted by the
fundraiser; a brief description of the specific cause or project, if
any, supported by the fundraiser; and, to the extent that the station
participated in tallying or receiving any funds for the non-profit
group, an approximation of the total funds raised. The information for
each calendar quarter is to be filed by the tenth day of the succeeding
calendar quarter (e.g., January 10 for the quarter October-December,
April 10 for the quarter January-March, etc.).
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[FR Doc. 2017-09002 Filed 5-4-17; 8:45 am]
BILLING CODE 6712-01-P