Promoting Diversification of Ownership in the Broadcasting Services, 21718-21722 [2017-09461]
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Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Rules and Regulations
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket No. 07–294, MD Docket No. 10–
234; FCC 17–42]
Promoting Diversification of
Ownership in the Broadcasting
Services
Federal Communications
Commission.
ACTION: Final rule; petition for
reconsideration.
AGENCY:
In this document, the
Commission expands the option to use
Special Use FRNs on ownership reports
for noncommercial educational
broadcast stations (FCC Form 323–E).
This action addresses several petitions
for reconsideration of a prior
Commission decision and properly
balances the Commission’s need to
improve the integrity and usability of its
broadcast ownership data with the
concerns raised in the petitions for
reconsideration.
SUMMARY:
DATES:
Effective May 10, 2017.
FOR FURTHER INFORMATION CONTACT:
Christopher Clark, Industry Analysis
Division, Media Bureau, (202) 418–2330
or Christopher.Clark@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order on
Reconsideration in MB Docket No. 07–
294 and MD Docket No. 10–234; FCC
17–42, was adopted on April 20, 2017,
and released on April 21, 2017. The
complete text of this document is
available electronically via the search
function on the FCC’s Electronic
Document Management System
(EDOCS) Web page at https://
apps.fcc.gov/edocs_pubilc/. The
complete document is available for
inspection and copying during normal
business hours in the FCC Reference
Information Center, 445 12th Street SW.,
Room CY–A257, Washington, DC 20554.
To request materials in accessible
formats for people with disabilities
(Braille, large print, electronic files,
audio format), send an email to fcc504@
fcc.gov or call the FCC’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
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Synopsis
1. Background. Commercial and
noncommercial broadcasters are
required to submit ownership reports
every two years and on other occasions
specified in the Commission’s rules.
These reports must include information
about the individuals and entities that
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hold attributable interests in the station
licensee, including officers and
directors. Commercial broadcasters
submit ownership reports on FCC Form
323, and noncommercial educational
(NCE) broadcasters submit ownership
reports on FCC Form 323–E.
2. In the 323 and 323–E Order (81 FR
19431, Apr. 4, 2016, FCC 16–1, rel. Jan.
20, 2016), the Commission revised
Forms 323 and 323–E to address issues
with the Commission’s data collection
process that were identified previously
by the United States Government
Accountability Office (GAO), by
researchers who wish to study the
Commission’s ownership data, and by
the Third Circuit as part of its review of
the Commission’s Quadrennial Review
proceeding. Among other things, the
323 and 323–E Order revised Form 323–
E to require that NCE filers provide a
unique FCC Registration Number (FRN)
generated by the Commission
Registration System (CORES) for each
attributable interest holder listed on
Form 323–E, just as commercial
broadcasters must do on Form 323.
Importantly, the 323 and 323–E Order
also updated Form 323–E to collect
information about the race, gender, and
ethnicity of NCE attributable interest
holders. These revisions addressed
issues previously identified by GAO and
harmonized Form 323–E with Form 323,
which was revised in 2009 to collect
such data.
3. In response to concerns that
mandatory use of a traditional CORES
FRN on Forms 323 and 323–E would
require submission of individuals’ full
social security numbers (SSNs) to the
Commission, the 323 and 323–E Order
provided for a Restricted Use FRN
(RUFRN) establishing an alternative
means for obtaining a unique identifier
for individual attributable interest
holders that requires submission of an
individual’s full name, residential
address, date of birth, and only the last
four digits of his or her SSN. The
applicant’s name and CORES FRN/
RUFRN are available publicly, but the
underlying identifying information is
stored confidentially within the CORES
database. The 323 and 323–E Order
allowed filers to report Special Use
FRNs (SUFRNs), which do not require
submission of personal information, for
attributable individuals, but only if the
filer first used reasonable and good-faith
efforts to obtain RUFRNs or CORES
FRNs from such individuals, including
informing the individual of the risk of
enforcement action for failing to provide
an RUFRN or CORES FRN or to permit
an RUFRN or CORES FRN to be
obtained on his or her behalf.
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4. Following the release of the 323
and 323–E Order, the American Public
Media Group (APMG), the NCE
Licensees, the Public Broadcasting
Parties, and the State University of New
York (SUNY) (together, the Petitioners)
timely filed petitions for reconsideration
(Petitions), Petitions for Reconsideration
of Action in Rulemaking Proceeding, 81
FR 31223 (May 18, 2016). The
Petitioners request that the Commission
reconsider its decision to apply the
CORES FRN/RUFRN requirement to
Form 323–E.
5. On January 4, 2017, the Media
Bureau, acting on delegated authority,
released the 323–E Order (DA 17–5, rel.
Jan. 4, 2017), dismissing and denying
the Petitions pursuant to section 1.429(l)
of the Commission’s rules.
Subsequently, the Bureau set aside the
323–E Order pursuant to section 1.113
of the Commission’s rules, concluding
that it was more appropriate for the
Petitions to be addressed at the
Commission level. The Bureau returned
the Petitions to pending status, stating
that they would be considered by the
Commission. Prior to the Bureau’s
action setting aside its 323–E Order, the
NCE Licensees and the University of
Michigan filed applications for review
of the 323–E Order. Because the Bureau
set aside the underlying order, we
dismiss the applications for review as
moot.
6. Discussion. We find that the
Petitioners and other NCEs participating
in this proceeding have raised legitimate
concerns that the CORES FRN/RUFRN
requirement, and the prospect of
enforcement action for failing to comply
with this requirement, may hinder their
efforts to recruit volunteers to serve on
their licensee boards and pose other
unique challenges. Unlike their
counterparts in the commercial context
and certain not-for-profit entities, NCE
governing board members are, in many
cases, unpaid volunteers. Because
unpaid NCE board members receive no
fee or other remuneration for their
services, they lack the financial
incentive to serve on boards that paid
directors or board members have.
Indeed, the record indicates that some
public broadcasters have difficulty
finding qualified, committed
individuals to donate their time and
attention to station governance.
7. In the 323 and 323–E Order, the
Commission affirmed its commitment to
protecting the privacy and security of
personally identifiable information that
the Commission collects, and we reaffirm that commitment here. Contrary
to the Institute for Public Representation
(IPR)’s supposition, our action here does
not presume that Commission databases
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are insecure and that individuals who
obtain a CORES FRN or RUFRN will
expose themselves to identify theft, nor
are such concerns the basis for the relief
we grant today. However, we recognize
that some NCE licensees may face
unique circumstances with respect to
their ability to recruit and retain
qualified individuals to serve in
governance positions.
8. We share the Petitioners’ concern
that individuals who are reluctant to
disclose personal information may then
decline to serve as unpaid board
members or, to the extent they are able
to do so, those already serving as unpaid
board members may resign rather than
risk a Commission enforcement action
for failure to provide the information
needed to report a CORES FRN or
RUFRN. Further, the Petitioners assert
that many licensee board members—
particularly those associated with
colleges, universities, and state or local
public broadcasting entities—are
individuals chosen by public election or
political appointment, or are ex officio
members who serve by virtue of the
public office they hold, such as
Governor or State Superintendent of
Education. The CORES FRN/RUFRN
requirement and prospect of
enforcement action could pose
particular challenges in instances where
a public official refuses to provide the
information needed to obtain a CORES
FRN or RUFRN but is unable to
withdraw freely from the governing
board.
9. We find that the 323 and 323–E
Order erred in rejecting the valid
concerns raised by NCEs regarding the
potential impact that the CORES FRN/
RUFRN requirement, including the
threat of possible enforcement action,
could have in the NCE context. In
discussing the availability of SUFRNs
for both commercial and
noncommercial ownership reports, the
323 and 323–E Order went so far as to
state that the Commission may take
enforcement action against the filer and/
or the ‘‘recalcitrant individual’’ in the
event an SUFRN is used. As the
Petitioners note, there is consensus
among NCE commenters in this
proceeding that requiring NCE filers to
report CORES FRNs or RUFRNs for
attributable individuals and inform such
individuals about the risk of
enforcement action could discourage
volunteers from serving on the
governing boards of NCE stations and
pose unique challenges for board
members who are politically elected or
appointed. No commenter in this
proceeding has disputed these
assertions. The Petitioners contend that
these assertions are based on the
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reactions of unpaid board members to
the Commission’s actions in this
proceeding to date.
10. The 323 and 323–E Order should
have given more credence to the
concerns raised by NCE broadcasters,
particularly given their representations
that these concerns were based on their
experience with the day-to-day
operations of their stations and
interactions with volunteers serving on
their governing boards. For example, in
dismissing these assertions, the 323 and
323–E Order did not adequately
consider claims that some
noncommercial entities that hold
commercial station licenses previously
encountered difficulties when
attempting to obtain similar identifying
information from board members.
Moreover, the 323 and 323–E Order did
not adequately consider whether, when
faced with the prospect of a
Commission enforcement action against
the individual interest holder, current or
prospective board-member volunteers
would decline to participate on the
board.
11. As noted above, no party opposed
the petitions for reconsideration. Parties
filing as UCC et al. submitted an ex
parte filing belatedly arguing that
concerns about the chilling effect of the
FRN requirement are speculative. In
effect, the ex parte is an untimely
opposition to the petitions for
reconsideration, and we reject it for that
reason. Alternatively and
independently, we reject this claim on
the merits for the reasons set forth
above.
12. While use of unique identifiers
improves the integrity and usability of
the Commission’s broadcast ownership
data, we believe that the potential
chilling effect on participation in NCE
station governance, and the potentially
deleterious effect that loss of NCE
leaders could have on the
noncommercial broadcast service to the
public, outweigh this benefit in the NCE
context. Commenters claim that
difficulties retaining or attracting
qualified individuals to serve in
leadership positions will adversely
affect station operations. Therefore, we
conclude that the better course is to
make reporting of CORES FRNs and
RUFRNs optional for individuals who
hold an attributable interest in an NCE
station. Accordingly, NCE filers may
report an SUFRN on Form 323–E for an
attributable individual who has not
obtained a CORES FRN or RUFRN at the
time the filer submits its ownership
report, without the need to first use
reasonable and good-faith efforts to
obtain the information needed to report
a CORES FRN or RUFRN, including
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informing individuals about the threat
of enforcement action.
13. In the 323 and 323–E Order, the
Commission noted that, in the limited
cases where a non-profit entity holds a
commercial license, the Commission
will deem the filing of Form 323–E, in
accordance with the standards set forth
in the Order, compliant with the
Commission’s biennial filing obligation
in those circumstances and the nonprofit entity would not be required to
file Form 323. Accordingly, we will
deem the filing of Form 323–E, in
accordance with the standards set forth
herein and in the 323 and 323–E Order,
compliant with our biennial reporting
requirement where a non-profit entity
holds a commercial license.
14. We conclude that our action today
will address the concerns raised by the
Petitioners and NCE commenters in this
proceeding. Unlike registering for a
CORES FRN or RUFRN, obtaining an
SUFRN does not require submission of
any personal information, be it an SSN,
date of birth, or residential address.
Filers can generate an SUFRN simply by
clicking a button within the electronic
Form 323–E as the noncommercial
ownership report is being prepared. Use
of an SUFRN therefore does not involve
any of the types of information that the
Petitioners and other NCE commenters
assert would discourage participation in
NCE station governance. By allowing
NCE filers to report SUFRNs without
first using reasonable and good-faith
efforts to obtain the information needed
to report a CORES FRN or RUFRN, we
will avoid the potential chilling effect
that the prospect of enforcement action
could have on participation in NCE
station governance for unpaid board
members who choose not to provide
their personal information to the
Commission.
15. We find that our action today
properly balances the need to improve
the integrity and usability of the
Commission’s broadcast ownership data
with the public interest in avoiding the
potential chilling effect that a
mandatory reporting requirement could
have on participation in NCE station
governance. In the 323 and 323–E
Order, the Commission concluded that
requiring unique identifiers for parties
that hold attributable interests in
broadcast stations helps ensure that the
Commission’s ownership data is reliable
and usable for studies and analyses. We
affirm these conclusions and deny the
Petitions to the extent they suggest that
we abandon entirely the use of CORES
FRNs and RUFRNs in the NCE context.
In light of the relief afforded by our
action herein expanding the option to
use SUFRNs on Form 323–E, there is no
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justification for removing the option for
NCE filers to report a CORES FRN or
RUFRN for attributable individuals on
Form 323–E.
16. We expect that allowing NCE
filers greater flexibility to report
SUFRNs will not delay or significantly
limit the value of our data collection.
Because expanded use of SUFRNs on
Form 323–E will not require significant
changes to the revised form, we do not
believe that our action today will delay
implementation of revised Form 323–E.
Moreover, we expect that, due to the
nature of our ruling, the use of SUFRNs
and the resulting collective impact on
our broadcast ownership data will be
limited. In this regard, we emphasize
that our ruling today applies only to
noncommercial broadcasters.
Commercial broadcasters remain subject
to the CORES FRN and RUFRN
requirements set forth in the 323 and
323–E Order. Further, because SUFRNs
are available only for individuals,
unique FRNs will be reported for
entities on Forms 323 and 323–E.
17. Importantly, as we have
previously emphasized, filers that report
an SUFRN for an attributable individual
must do so consistently. If an SUFRN
was reported previously for an
individual and the individual does not
have a CORES FRN or RUFRN, the filer
must use the same SUFRN that was
reported previously for that individual.
Furthermore, if an individual is
reported on multiple reports, the filer
must ensure that the same SUFRN is
reported consistently for that
individual, assuming that the individual
does not have a CORES FRN or RUFRN.
18. We also note that the
Commission’s prior decision to collect
data on the race, ethnicity, and gender
of individuals holding attributable
interests in NCE licensees remains
undisturbed, and this data will be
available to the Commission and
researchers for purposes of evaluating
ownership diversity issues. To the
extent IPR and UCC et al. state that the
Commission will not collect race,
gender, and ethnicity information from
NCEs as a result of our action today,
these belated pleadings are wrong.
Although we will not require NCE
licensees to report unique identifiers for
all individuals holding attributable
interests, the data on race, ethnicity, and
gender will not be ‘‘useless,’’ as we will
still be able to determine which
licensees, stations, and markets have
minorities and women in NCE
leadership positions.
19. In addition, although we are
expanding the option to use SUFRNs on
Form 323–E, in many cases an NCE filer
will continue to nonetheless report a
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CORES FRN or RUFRN for an
attributable individual. For instance,
some individuals with attributable
interests in NCE stations may not object
to obtaining a CORES FRN or RUFRN.
Also, if an individual with an
attributable interest in an NCE station
has already obtained a CORES FRN or
RUFRN for another reason (for example,
because the individual also appears on
one or more commercial Form 323
filings), filers must report that FRN for
the individual on Forms 323 and 323–
E. In such circumstances, use of the
CORES FRN or RUFRN could not be
expected to have a chilling effect on the
individual’s participation in NCE
station governance. This further
supports our conclusion that expanded
use of SUFRNs on Form 323–E will
have a limited collective impact on our
data collection.
20. Because we are relieving NCE
licensees of the obligation to report a
CORES FRN or RUFRN for individuals
holding attributable interests, we need
not address NCE Licensees’ and Public
Broadcasting Petitioners’ claim that the
statutory authority the Commission
relied on in adopting the requirement
does not apply to NCE stations. These
arguments are moot. Thus, we dismiss
these portions of the NCE Licensees
Petition and Public Broadcasting Parties
Petition. SUNY’s argument that the
Privacy Act bars mandatory collection
of SSNs from individuals holding
attributable interests in NCE licensees is
moot for the same reason, and we
dismiss this aspect of the SUNY
Petition.
21. In opposing the CORES FRN/
RUFRN requirement, some commenters
to this proceeding suggest that certain
individuals serving on NCE boards may
be uninvolved with the licensing,
operation, or ultimate disposition of the
noncommercial broadcast license and
that it is not necessary to include
information about these individuals on
broadcast ownership reports. We take
this opportunity to reiterate that, as
discussed in the 323 and 323–E Order,
our rules already contemplate that
circumstance and afford appropriate
relief. Our attribution standards,
including the standards applicable to
attribution exemptions for officers and
directors, apply to both commercial and
NCE stations. Specifically, an officer or
director can be exempted from
attribution in the licensee if his or her
duties are wholly unrelated to the
operation of the broadcast station(s) at
issue. Exempted officers and directors
would not be reported as attributable
interest holders on the Form 323–E and
thus would not need to obtain a CORES
FRN or RUFRN for Form 323 or Form
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323–E reporting purposes. Appropriate
use of this existing exemption would
further reduce the burden on NCE
licensees and potentially avoid the
concern of a chilling effect raised by the
Petitioners. We therefore encourage NCE
filers to avail themselves of this
exemption in order to avoid reporting
potential interest holders who are
uninvolved with the operation of the
station(s) and whose interests therefore
need not be reported.
22. Although some petitioners argue
that differences between NCEs and
commercial licensees make the
collection of NCE data unnecessary, the
Commission previously rejected this
argument, and, as we have granted
reconsideration regarding the specific
aspect of our data collection that
petitioners challenge, we need not
revisit the Commission’s response to
this argument. We note that even though
the Commission’s multiple ownership
rules do not apply to NCE stations,
collecting race, gender, and ethnicity
information from NCEs will enable the
Commission, as well as GAO and other
outside researchers, to more fully
understand and analyze the
broadcasting industry, and thereby
support the Commission’s efforts to
promote diversity of ownership in
broadcasting. In an ex parte filed well
after the close of the pleading cycle,
public broadcasting representatives
filing as ‘‘Public Broadcasters’’ ask the
Commission to consider returning to the
status quo ante by reversing its prior
decision to adopt new rules for
noncommercial stations in this
proceeding. To the extent this request
applies to other improvements adopted
in the 323 and 323–E Order, including
the collection of race, gender, and
ethnicity information from NCE
Licensees, Public Broadcasters’ request
is untimely and is procedurally barred.
23. Procedural Matters. As required
by the Regulatory Flexibility Act of
1980, as amended (RFA), the
Commission has prepared a
Supplemental Final Regulatory
Flexibility Analysis (FRFA) relating to
this Report and Order, which is
summarized below.
24. Paperwork Reduction Act
Analysis. This document contains a
non-substantive and non-material
modification of information collection
requirements that were previously
reviewed and approved by the Office of
Management and Budget (OMB)
pursuant to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104–13.
In addition, we note that pursuant to the
Small Business Paperwork Relief Act of
2002, Public Law 107–198, 44 U.S.C.
3506(c)(4), the Commission previously
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sought specific comment on how it
might further reduce the information
collection burden for small business
concerns with fewer than 25 employees.
25. In this present document, we have
assessed the effects of requiring NCE
filers to report a CORES FRN or RUFRN
for each attributable interest holder on
ownership reports filed with the
Commission, and we have expanded the
option for such filers to report SUFRNs
for attributable individuals by
eliminating the requirement that NCE
filers first use reasonable and good-faith
efforts to obtain the personal
information needed to report a CORES
FRN or RUFRN before using an SUFRN.
We find that this action properly
balances the need to improve the
integrity and usability of the
Commission’s broadcast ownership data
with the potential chilling effects that a
mandatory reporting requirement could
have on participation in NCE station
governance, and that our action will
have the effect of reducing the burden
on NCE filers, including those with
fewer than 25 employees.
26. Supplemental Final Regulatory
Flexibility Analysis. 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 rules adopted in this
Order on Reconsideration. 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 Small Business
Administration (SBA). The FRFA
accompanying the 323 and 323–E Order
described and estimated the number of
small entities that would be affected by
the revisions to FCC Forms 323 and
323–E. The actions taken in this Order
on Reconsideration apply to the same
entities affected by the revisions to
Form 323–E that the Commission
adopted in the 323 and 323–E Order.
27. 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,
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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 less than
$25,000,000, 25 had annual receipts
ranging from $25,000,000 to
$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 commercial television
broadcasters are small entities under the
applicable SBA size standard.
28. The Commission has estimated
the number of licensed commercial
television stations to be 1,383. Of this
total, 1,275 stations (or about 92
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
March 9, 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. The Commission, however, 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.
29. 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
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.
30. 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
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21721
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. The 2012 Economic Census
reports that 2,849 firms in this category
operated in that year. Of that number,
2,806 had annual receipts of less than
$25,000,000, 17 had annual receipts
ranging from $25,000,000 to
$49,999,999, and 26 had annual receipts
of $50,000,000 or more. Based on this
data we therefore estimate that the
majority of commercial radio stations
are small entities under the applicable
SBA size standard.
31. The Commission has estimated
the number of licensed commercial
radio stations to be 11,420. Of this total,
11,506 stations (or about 99.9 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 March 9,
2017, and therefore these licensees
qualify as small entities under the SBA
definition. In addition, the Commission
has estimated the number of licensed
NCE radio stations to be 4,112. The
Commission, however, 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.
32. 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 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
rules may apply does not exclude any
radio station from the definition of a
small business on this basis; thus, our
estimate of small businesses may
therefore be over-inclusive.
33. Class A TV and LPTV Stations.
The same SBA definition that applies to
television broadcast licensees would
apply to Class A TV stations and other
low power television (LPTV) stations.
The SBA defines a television broadcast
station as a small business if such
station has no more than $38.5 million
in annual receipts. As of March 31,
2017, there are approximately 417
licensed Class A stations and 1,965
E:\FR\FM\10MYR1.SGM
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Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Rules and Regulations
licensed LPTV stations. Given the
nature of these services, we will
presume that all of these licensees
qualify as small entities under the SBA
definition. We note, however, that
under the SBA’s definition, revenue of
affiliates that are not LPTV stations
should be aggregated with the LPTV
station revenues in determining whether
a concern is small. Our estimate may
thus overstate the number of small
entities since the revenue figure on
which it is based does not include or
aggregate revenues from non-LPTV
affiliated companies.
34. The Order on Reconsideration
provides NCE filers with greater
flexibility to report SUFRNs than
previously allowed by the 323 and 323–
E Order. It does not adopt additional
reporting, recordkeeping, other
compliance requirements.
35. The Order on Reconsideration
provides relief to NCE filers by allowing
them wider latitude to report SUFRNs—
which do not require disclosure of an
SSN, date of birth, or other personal
information—for individual attributable
interest holders reported on Form 323–
E. Accordingly, NCE filers may report
an SUFRN on Form 323–E for an
attributable individual who has not
obtained a CORES FRN or RUFRN at the
time the filer submits its ownership
report, without the need to first use
reasonable and good-faith efforts to
obtain the information needed to report
a CORES FRN or RUFRN. The
Commission concludes that allowing
NCEs greater flexibility to report an
SUFRN for an attributable individual, in
lieu of a CORES FRN or RUFRN, will
address the concerns that have been
raised regarding the potential impact of
the CORES FRN/RUFRN requirement on
NCE stations, including small entities.
The Chief Counsel for Advocacy of the
SBA did not file any comments in
response to the proposed rules in this
proceeding.
36. The Commission will send a copy
of this Order on Reconsideration to
Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
37. Ordering Clauses. Accordingly, it
is ordered that, pursuant to the authority
contained in sections 1, 2(a), 4(i), 257,
303(r), 307, 309, and 310 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 152(a), 154(i),
257, 303(r), 307, 309, and 310, this
Order on Reconsideration IS ADOPTED.
38. It is further ordered that, pursuant
to section 405 of the Communications
Act of 1934, as amended, 47 U.S.C. 405,
and section 1.429 of the Commission’s
rules, 47 CFR 1.429, that the petitions
VerDate Sep<11>2014
13:27 May 09, 2017
Jkt 241001
for reconsideration filed by the
American Public Media Group, the NCE
Licensees, the Public Broadcasting
Parties, and Lisa S. Campo on behalf of
the State University of New York, are
granted in part, dismissed to the extent
discussed in footnote 42, and otherwise
are denied, to the extent stated herein.
39. It is further ordered that the
applications for review filed by the NCE
Licensees and the University of
Michigan are dismissed as moot.
40. It is further ordered that, pursuant
to section 553(d) of the Administrative
Procedure Act, 5 U.S.C. 553(d), and
section 1.427(b) of the Commission’s
rules, 47 CFR 1.427(b), this Order on
Reconsideration shall be effective May
10, 2017, except those provisions that
contain new or modified information
collection requirements that require
approval by the Office of Management
and Budget under the Paperwork
Reduction Act will become effective
after the Commission publishes a notice
in the Federal Register announcing
such approval and the relevant effective
date.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2017–09461 Filed 5–9–17; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 223 and 224
[Docket No. 150909839–7369–02]
RIN 0648–XE184
Endangered and Threatened Wildlife
and Plants; Final Rule to List 6 Foreign
Species of Elasmobranchs Under the
Endangered Species Act
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
We, NMFS, issue a final rule
to list six foreign marine elasmobranch
species under the Endangered Species
Act (ESA). These six species are the
daggernose shark (Isogomphodon
oxyrhynchus), Brazilian guitarfish
(Rhinobatos horkelii), striped
smoothhound shark (Mustelus
fasciatus), narrownose smoothhound
shark (Mustelus schmitti), spiny
angelshark (Squatina guggenheim), and
Argentine angelshark (Squatina
SUMMARY:
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
argentina). We are publishing this final
rule to implement our final
determination to list the daggernose
shark, Brazilian guitarfish, striped
smoothhound shark, spiny angelshark
and Argentine angelshark as endangered
species under the ESA, and the
narrownose smoothhound shark as a
threatened species under the ESA. We
have reviewed the status of these six
species, including efforts being made to
protect these species, and considered
public comments submitted on the
proposed rule as well as new
information received since publication
of the proposed rule. We have made our
final determinations based on the best
scientific and commercial data
available. We will not designate critical
habitat for any of these species because
the geographical areas occupied by
these species are entirely outside U.S.
jurisdiction, and we have not identified
any unoccupied areas within U.S.
jurisdiction that are essential to the
conservation of any of these species.
DATES: This final rule is effective June
9, 2017.
ADDRESSES: Chief, Endangered Species
Division, NMFS Office of Protected
Resources (F/PR3), 1315 East West
Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT:
Maggie Miller, NMFS, Office of
Protected Resources (OPR), (301) 427–
8403. Copies of the petition, status
review reports, Federal Register notices,
and the list of references are available
on our Web site at https://
www.nmfs.noaa.gov/pr/species/
petition81.htm.
SUPPLEMENTARY INFORMATION:
Background
On July 15, 2013, we received a
petition from WildEarth Guardians to
list 81 marine species or subpopulations
as threatened or endangered under the
ESA. This petition included species
from many different taxonomic groups,
and we prepared our 90-day findings in
batches by taxonomic group. We found
that the petitioned actions may be
warranted for 24 of the species and 3 of
the subpopulations and announced the
initiation of status reviews for each of
the 24 species and 3 subpopulations (78
FR 63941, October 25, 2013; 78 FR
66675, November 6, 2013; 78 FR 69376,
November 19, 2013; 79 FR 9880,
February 21, 2014; and 79 FR 10104,
February 24, 2014). On December 7,
2015, we published a proposed rule to
list the daggernose shark, Brazilian
guitarfish, striped smoothhound shark,
and Argentine angelshark as endangered
species under the ESA, and the
narrownose smoothhound shark and
E:\FR\FM\10MYR1.SGM
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Agencies
[Federal Register Volume 82, Number 89 (Wednesday, May 10, 2017)]
[Rules and Regulations]
[Pages 21718-21722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09461]
[[Page 21718]]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 07-294, MD Docket No. 10-234; FCC 17-42]
Promoting Diversification of Ownership in the Broadcasting
Services
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition for reconsideration.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission expands the option to use
Special Use FRNs on ownership reports for noncommercial educational
broadcast stations (FCC Form 323-E). This action addresses several
petitions for reconsideration of a prior Commission decision and
properly balances the Commission's need to improve the integrity and
usability of its broadcast ownership data with the concerns raised in
the petitions for reconsideration.
DATES: Effective May 10, 2017.
FOR FURTHER INFORMATION CONTACT: Christopher Clark, Industry Analysis
Division, Media Bureau, (202) 418-2330 or Christopher.Clark@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration in MB Docket No. 07-294 and MD Docket No. 10-234;
FCC 17-42, was adopted on April 20, 2017, and released on April 21,
2017. The complete text of this document is available electronically
via the search function on the FCC's Electronic Document Management
System (EDOCS) Web page at https://apps.fcc.gov/edocs_pubilc/. The
complete document is available for inspection and copying during normal
business hours in the FCC Reference Information Center, 445 12th Street
SW., Room CY-A257, Washington, DC 20554. To request materials in
accessible formats for people with disabilities (Braille, large print,
electronic files, audio format), send an email to fcc504@fcc.gov or
call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-
0530 (voice), (202) 418-0432 (TTY).
Synopsis
1. Background. Commercial and noncommercial broadcasters are
required to submit ownership reports every two years and on other
occasions specified in the Commission's rules. These reports must
include information about the individuals and entities that hold
attributable interests in the station licensee, including officers and
directors. Commercial broadcasters submit ownership reports on FCC Form
323, and noncommercial educational (NCE) broadcasters submit ownership
reports on FCC Form 323-E.
2. In the 323 and 323-E Order (81 FR 19431, Apr. 4, 2016, FCC 16-1,
rel. Jan. 20, 2016), the Commission revised Forms 323 and 323-E to
address issues with the Commission's data collection process that were
identified previously by the United States Government Accountability
Office (GAO), by researchers who wish to study the Commission's
ownership data, and by the Third Circuit as part of its review of the
Commission's Quadrennial Review proceeding. Among other things, the 323
and 323-E Order revised Form 323-E to require that NCE filers provide a
unique FCC Registration Number (FRN) generated by the Commission
Registration System (CORES) for each attributable interest holder
listed on Form 323-E, just as commercial broadcasters must do on Form
323. Importantly, the 323 and 323-E Order also updated Form 323-E to
collect information about the race, gender, and ethnicity of NCE
attributable interest holders. These revisions addressed issues
previously identified by GAO and harmonized Form 323-E with Form 323,
which was revised in 2009 to collect such data.
3. In response to concerns that mandatory use of a traditional
CORES FRN on Forms 323 and 323-E would require submission of
individuals' full social security numbers (SSNs) to the Commission, the
323 and 323-E Order provided for a Restricted Use FRN (RUFRN)
establishing an alternative means for obtaining a unique identifier for
individual attributable interest holders that requires submission of an
individual's full name, residential address, date of birth, and only
the last four digits of his or her SSN. The applicant's name and CORES
FRN/RUFRN are available publicly, but the underlying identifying
information is stored confidentially within the CORES database. The 323
and 323-E Order allowed filers to report Special Use FRNs (SUFRNs),
which do not require submission of personal information, for
attributable individuals, but only if the filer first used reasonable
and good-faith efforts to obtain RUFRNs or CORES FRNs from such
individuals, including informing the individual of the risk of
enforcement action for failing to provide an RUFRN or CORES FRN or to
permit an RUFRN or CORES FRN to be obtained on his or her behalf.
4. Following the release of the 323 and 323-E Order, the American
Public Media Group (APMG), the NCE Licensees, the Public Broadcasting
Parties, and the State University of New York (SUNY) (together, the
Petitioners) timely filed petitions for reconsideration (Petitions),
Petitions for Reconsideration of Action in Rulemaking Proceeding, 81 FR
31223 (May 18, 2016). The Petitioners request that the Commission
reconsider its decision to apply the CORES FRN/RUFRN requirement to
Form 323-E.
5. On January 4, 2017, the Media Bureau, acting on delegated
authority, released the 323-E Order (DA 17-5, rel. Jan. 4, 2017),
dismissing and denying the Petitions pursuant to section 1.429(l) of
the Commission's rules. Subsequently, the Bureau set aside the 323-E
Order pursuant to section 1.113 of the Commission's rules, concluding
that it was more appropriate for the Petitions to be addressed at the
Commission level. The Bureau returned the Petitions to pending status,
stating that they would be considered by the Commission. Prior to the
Bureau's action setting aside its 323-E Order, the NCE Licensees and
the University of Michigan filed applications for review of the 323-E
Order. Because the Bureau set aside the underlying order, we dismiss
the applications for review as moot.
6. Discussion. We find that the Petitioners and other NCEs
participating in this proceeding have raised legitimate concerns that
the CORES FRN/RUFRN requirement, and the prospect of enforcement action
for failing to comply with this requirement, may hinder their efforts
to recruit volunteers to serve on their licensee boards and pose other
unique challenges. Unlike their counterparts in the commercial context
and certain not-for-profit entities, NCE governing board members are,
in many cases, unpaid volunteers. Because unpaid NCE board members
receive no fee or other remuneration for their services, they lack the
financial incentive to serve on boards that paid directors or board
members have. Indeed, the record indicates that some public
broadcasters have difficulty finding qualified, committed individuals
to donate their time and attention to station governance.
7. In the 323 and 323-E Order, the Commission affirmed its
commitment to protecting the privacy and security of personally
identifiable information that the Commission collects, and we re-affirm
that commitment here. Contrary to the Institute for Public
Representation (IPR)'s supposition, our action here does not presume
that Commission databases
[[Page 21719]]
are insecure and that individuals who obtain a CORES FRN or RUFRN will
expose themselves to identify theft, nor are such concerns the basis
for the relief we grant today. However, we recognize that some NCE
licensees may face unique circumstances with respect to their ability
to recruit and retain qualified individuals to serve in governance
positions.
8. We share the Petitioners' concern that individuals who are
reluctant to disclose personal information may then decline to serve as
unpaid board members or, to the extent they are able to do so, those
already serving as unpaid board members may resign rather than risk a
Commission enforcement action for failure to provide the information
needed to report a CORES FRN or RUFRN. Further, the Petitioners assert
that many licensee board members--particularly those associated with
colleges, universities, and state or local public broadcasting
entities--are individuals chosen by public election or political
appointment, or are ex officio members who serve by virtue of the
public office they hold, such as Governor or State Superintendent of
Education. The CORES FRN/RUFRN requirement and prospect of enforcement
action could pose particular challenges in instances where a public
official refuses to provide the information needed to obtain a CORES
FRN or RUFRN but is unable to withdraw freely from the governing board.
9. We find that the 323 and 323-E Order erred in rejecting the
valid concerns raised by NCEs regarding the potential impact that the
CORES FRN/RUFRN requirement, including the threat of possible
enforcement action, could have in the NCE context. In discussing the
availability of SUFRNs for both commercial and noncommercial ownership
reports, the 323 and 323-E Order went so far as to state that the
Commission may take enforcement action against the filer and/or the
``recalcitrant individual'' in the event an SUFRN is used. As the
Petitioners note, there is consensus among NCE commenters in this
proceeding that requiring NCE filers to report CORES FRNs or RUFRNs for
attributable individuals and inform such individuals about the risk of
enforcement action could discourage volunteers from serving on the
governing boards of NCE stations and pose unique challenges for board
members who are politically elected or appointed. No commenter in this
proceeding has disputed these assertions. The Petitioners contend that
these assertions are based on the reactions of unpaid board members to
the Commission's actions in this proceeding to date.
10. The 323 and 323-E Order should have given more credence to the
concerns raised by NCE broadcasters, particularly given their
representations that these concerns were based on their experience with
the day-to-day operations of their stations and interactions with
volunteers serving on their governing boards. For example, in
dismissing these assertions, the 323 and 323-E Order did not adequately
consider claims that some noncommercial entities that hold commercial
station licenses previously encountered difficulties when attempting to
obtain similar identifying information from board members. Moreover,
the 323 and 323-E Order did not adequately consider whether, when faced
with the prospect of a Commission enforcement action against the
individual interest holder, current or prospective board-member
volunteers would decline to participate on the board.
11. As noted above, no party opposed the petitions for
reconsideration. Parties filing as UCC et al. submitted an ex parte
filing belatedly arguing that concerns about the chilling effect of the
FRN requirement are speculative. In effect, the ex parte is an untimely
opposition to the petitions for reconsideration, and we reject it for
that reason. Alternatively and independently, we reject this claim on
the merits for the reasons set forth above.
12. While use of unique identifiers improves the integrity and
usability of the Commission's broadcast ownership data, we believe that
the potential chilling effect on participation in NCE station
governance, and the potentially deleterious effect that loss of NCE
leaders could have on the noncommercial broadcast service to the
public, outweigh this benefit in the NCE context. Commenters claim that
difficulties retaining or attracting qualified individuals to serve in
leadership positions will adversely affect station operations.
Therefore, we conclude that the better course is to make reporting of
CORES FRNs and RUFRNs optional for individuals who hold an attributable
interest in an NCE station. Accordingly, NCE filers may report an SUFRN
on Form 323-E for an attributable individual who has not obtained a
CORES FRN or RUFRN at the time the filer submits its ownership report,
without the need to first use reasonable and good-faith efforts to
obtain the information needed to report a CORES FRN or RUFRN, including
informing individuals about the threat of enforcement action.
13. In the 323 and 323-E Order, the Commission noted that, in the
limited cases where a non-profit entity holds a commercial license, the
Commission will deem the filing of Form 323-E, in accordance with the
standards set forth in the Order, compliant with the Commission's
biennial filing obligation in those circumstances and the non-profit
entity would not be required to file Form 323. Accordingly, we will
deem the filing of Form 323-E, in accordance with the standards set
forth herein and in the 323 and 323-E Order, compliant with our
biennial reporting requirement where a non-profit entity holds a
commercial license.
14. We conclude that our action today will address the concerns
raised by the Petitioners and NCE commenters in this proceeding. Unlike
registering for a CORES FRN or RUFRN, obtaining an SUFRN does not
require submission of any personal information, be it an SSN, date of
birth, or residential address. Filers can generate an SUFRN simply by
clicking a button within the electronic Form 323-E as the noncommercial
ownership report is being prepared. Use of an SUFRN therefore does not
involve any of the types of information that the Petitioners and other
NCE commenters assert would discourage participation in NCE station
governance. By allowing NCE filers to report SUFRNs without first using
reasonable and good-faith efforts to obtain the information needed to
report a CORES FRN or RUFRN, we will avoid the potential chilling
effect that the prospect of enforcement action could have on
participation in NCE station governance for unpaid board members who
choose not to provide their personal information to the Commission.
15. We find that our action today properly balances the need to
improve the integrity and usability of the Commission's broadcast
ownership data with the public interest in avoiding the potential
chilling effect that a mandatory reporting requirement could have on
participation in NCE station governance. In the 323 and 323-E Order,
the Commission concluded that requiring unique identifiers for parties
that hold attributable interests in broadcast stations helps ensure
that the Commission's ownership data is reliable and usable for studies
and analyses. We affirm these conclusions and deny the Petitions to the
extent they suggest that we abandon entirely the use of CORES FRNs and
RUFRNs in the NCE context. In light of the relief afforded by our
action herein expanding the option to use SUFRNs on Form 323-E, there
is no
[[Page 21720]]
justification for removing the option for NCE filers to report a CORES
FRN or RUFRN for attributable individuals on Form 323-E.
16. We expect that allowing NCE filers greater flexibility to
report SUFRNs will not delay or significantly limit the value of our
data collection. Because expanded use of SUFRNs on Form 323-E will not
require significant changes to the revised form, we do not believe that
our action today will delay implementation of revised Form 323-E.
Moreover, we expect that, due to the nature of our ruling, the use of
SUFRNs and the resulting collective impact on our broadcast ownership
data will be limited. In this regard, we emphasize that our ruling
today applies only to noncommercial broadcasters. Commercial
broadcasters remain subject to the CORES FRN and RUFRN requirements set
forth in the 323 and 323-E Order. Further, because SUFRNs are available
only for individuals, unique FRNs will be reported for entities on
Forms 323 and 323-E.
17. Importantly, as we have previously emphasized, filers that
report an SUFRN for an attributable individual must do so consistently.
If an SUFRN was reported previously for an individual and the
individual does not have a CORES FRN or RUFRN, the filer must use the
same SUFRN that was reported previously for that individual.
Furthermore, if an individual is reported on multiple reports, the
filer must ensure that the same SUFRN is reported consistently for that
individual, assuming that the individual does not have a CORES FRN or
RUFRN.
18. We also note that the Commission's prior decision to collect
data on the race, ethnicity, and gender of individuals holding
attributable interests in NCE licensees remains undisturbed, and this
data will be available to the Commission and researchers for purposes
of evaluating ownership diversity issues. To the extent IPR and UCC et
al. state that the Commission will not collect race, gender, and
ethnicity information from NCEs as a result of our action today, these
belated pleadings are wrong. Although we will not require NCE licensees
to report unique identifiers for all individuals holding attributable
interests, the data on race, ethnicity, and gender will not be
``useless,'' as we will still be able to determine which licensees,
stations, and markets have minorities and women in NCE leadership
positions.
19. In addition, although we are expanding the option to use SUFRNs
on Form 323-E, in many cases an NCE filer will continue to nonetheless
report a CORES FRN or RUFRN for an attributable individual. For
instance, some individuals with attributable interests in NCE stations
may not object to obtaining a CORES FRN or RUFRN. Also, if an
individual with an attributable interest in an NCE station has already
obtained a CORES FRN or RUFRN for another reason (for example, because
the individual also appears on one or more commercial Form 323
filings), filers must report that FRN for the individual on Forms 323
and 323-E. In such circumstances, use of the CORES FRN or RUFRN could
not be expected to have a chilling effect on the individual's
participation in NCE station governance. This further supports our
conclusion that expanded use of SUFRNs on Form 323-E will have a
limited collective impact on our data collection.
20. Because we are relieving NCE licensees of the obligation to
report a CORES FRN or RUFRN for individuals holding attributable
interests, we need not address NCE Licensees' and Public Broadcasting
Petitioners' claim that the statutory authority the Commission relied
on in adopting the requirement does not apply to NCE stations. These
arguments are moot. Thus, we dismiss these portions of the NCE
Licensees Petition and Public Broadcasting Parties Petition. SUNY's
argument that the Privacy Act bars mandatory collection of SSNs from
individuals holding attributable interests in NCE licensees is moot for
the same reason, and we dismiss this aspect of the SUNY Petition.
21. In opposing the CORES FRN/RUFRN requirement, some commenters to
this proceeding suggest that certain individuals serving on NCE boards
may be uninvolved with the licensing, operation, or ultimate
disposition of the noncommercial broadcast license and that it is not
necessary to include information about these individuals on broadcast
ownership reports. We take this opportunity to reiterate that, as
discussed in the 323 and 323-E Order, our rules already contemplate
that circumstance and afford appropriate relief. Our attribution
standards, including the standards applicable to attribution exemptions
for officers and directors, apply to both commercial and NCE stations.
Specifically, an officer or director can be exempted from attribution
in the licensee if his or her duties are wholly unrelated to the
operation of the broadcast station(s) at issue. Exempted officers and
directors would not be reported as attributable interest holders on the
Form 323-E and thus would not need to obtain a CORES FRN or RUFRN for
Form 323 or Form 323-E reporting purposes. Appropriate use of this
existing exemption would further reduce the burden on NCE licensees and
potentially avoid the concern of a chilling effect raised by the
Petitioners. We therefore encourage NCE filers to avail themselves of
this exemption in order to avoid reporting potential interest holders
who are uninvolved with the operation of the station(s) and whose
interests therefore need not be reported.
22. Although some petitioners argue that differences between NCEs
and commercial licensees make the collection of NCE data unnecessary,
the Commission previously rejected this argument, and, as we have
granted reconsideration regarding the specific aspect of our data
collection that petitioners challenge, we need not revisit the
Commission's response to this argument. We note that even though the
Commission's multiple ownership rules do not apply to NCE stations,
collecting race, gender, and ethnicity information from NCEs will
enable the Commission, as well as GAO and other outside researchers, to
more fully understand and analyze the broadcasting industry, and
thereby support the Commission's efforts to promote diversity of
ownership in broadcasting. In an ex parte filed well after the close of
the pleading cycle, public broadcasting representatives filing as
``Public Broadcasters'' ask the Commission to consider returning to the
status quo ante by reversing its prior decision to adopt new rules for
noncommercial stations in this proceeding. To the extent this request
applies to other improvements adopted in the 323 and 323-E Order,
including the collection of race, gender, and ethnicity information
from NCE Licensees, Public Broadcasters' request is untimely and is
procedurally barred.
23. Procedural Matters. As required by the Regulatory Flexibility
Act of 1980, as amended (RFA), the Commission has prepared a
Supplemental Final Regulatory Flexibility Analysis (FRFA) relating to
this Report and Order, which is summarized below.
24. Paperwork Reduction Act Analysis. This document contains a non-
substantive and non-material modification of information collection
requirements that were previously reviewed and approved by the Office
of Management and Budget (OMB) pursuant to the Paperwork Reduction Act
of 1995 (PRA), Public Law 104-13. In addition, we note that pursuant to
the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44
U.S.C. 3506(c)(4), the Commission previously
[[Page 21721]]
sought specific comment on how it might further reduce the information
collection burden for small business concerns with fewer than 25
employees.
25. In this present document, we have assessed the effects of
requiring NCE filers to report a CORES FRN or RUFRN for each
attributable interest holder on ownership reports filed with the
Commission, and we have expanded the option for such filers to report
SUFRNs for attributable individuals by eliminating the requirement that
NCE filers first use reasonable and good-faith efforts to obtain the
personal information needed to report a CORES FRN or RUFRN before using
an SUFRN. We find that this action properly balances the need to
improve the integrity and usability of the Commission's broadcast
ownership data with the potential chilling effects that a mandatory
reporting requirement could have on participation in NCE station
governance, and that our action will have the effect of reducing the
burden on NCE filers, including those with fewer than 25 employees.
26. Supplemental Final Regulatory Flexibility Analysis. 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
rules adopted in this Order on Reconsideration. 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
Small Business Administration (SBA). The FRFA accompanying the 323 and
323-E Order described and estimated the number of small entities that
would be affected by the revisions to FCC Forms 323 and 323-E. The
actions taken in this Order on Reconsideration apply to the same
entities affected by the revisions to Form 323-E that the Commission
adopted in the 323 and 323-E Order.
27. 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 less than $25,000,000, 25 had annual
receipts ranging from $25,000,000 to $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 commercial television broadcasters are
small entities under the applicable SBA size standard.
28. The Commission has estimated the number of licensed commercial
television stations to be 1,383. Of this total, 1,275 stations (or
about 92 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 March 9, 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. The Commission, however, 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.
29. 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 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.
30. 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. The 2012 Economic
Census reports that 2,849 firms in this category operated in that year.
Of that number, 2,806 had annual receipts of less than $25,000,000, 17
had annual receipts ranging from $25,000,000 to $49,999,999, and 26 had
annual receipts of $50,000,000 or more. Based on this data we therefore
estimate that the majority of commercial radio stations are small
entities under the applicable SBA size standard.
31. The Commission has estimated the number of licensed commercial
radio stations to be 11,420. Of this total, 11,506 stations (or about
99.9 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 March 9, 2017, and therefore these
licensees qualify as small entities under the SBA definition. In
addition, the Commission has estimated the number of licensed NCE radio
stations to be 4,112. The Commission, however, 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.
32. 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 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 rules
may apply does not exclude any radio station from the definition of a
small business on this basis; thus, our estimate of small businesses
may therefore be over-inclusive.
33. Class A TV and LPTV Stations. The same SBA definition that
applies to television broadcast licensees would apply to Class A TV
stations and other low power television (LPTV) stations. The SBA
defines a television broadcast station as a small business if such
station has no more than $38.5 million in annual receipts. As of March
31, 2017, there are approximately 417 licensed Class A stations and
1,965
[[Page 21722]]
licensed LPTV stations. Given the nature of these services, we will
presume that all of these licensees qualify as small entities under the
SBA definition. We note, however, that under the SBA's definition,
revenue of affiliates that are not LPTV stations should be aggregated
with the LPTV station revenues in determining whether a concern is
small. Our estimate may thus overstate the number of small entities
since the revenue figure on which it is based does not include or
aggregate revenues from non-LPTV affiliated companies.
34. The Order on Reconsideration provides NCE filers with greater
flexibility to report SUFRNs than previously allowed by the 323 and
323-E Order. It does not adopt additional reporting, recordkeeping,
other compliance requirements.
35. The Order on Reconsideration provides relief to NCE filers by
allowing them wider latitude to report SUFRNs--which do not require
disclosure of an SSN, date of birth, or other personal information--for
individual attributable interest holders reported on Form 323-E.
Accordingly, NCE filers may report an SUFRN on Form 323-E for an
attributable individual who has not obtained a CORES FRN or RUFRN at
the time the filer submits its ownership report, without the need to
first use reasonable and good-faith efforts to obtain the information
needed to report a CORES FRN or RUFRN. The Commission concludes that
allowing NCEs greater flexibility to report an SUFRN for an
attributable individual, in lieu of a CORES FRN or RUFRN, will address
the concerns that have been raised regarding the potential impact of
the CORES FRN/RUFRN requirement on NCE stations, including small
entities. The Chief Counsel for Advocacy of the SBA did not file any
comments in response to the proposed rules in this proceeding.
36. The Commission will send a copy of this Order on
Reconsideration to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
37. Ordering Clauses. Accordingly, it is ordered that, pursuant to
the authority contained in sections 1, 2(a), 4(i), 257, 303(r), 307,
309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C.
151, 152(a), 154(i), 257, 303(r), 307, 309, and 310, this Order on
Reconsideration IS ADOPTED.
38. It is further ordered that, pursuant to section 405 of the
Communications Act of 1934, as amended, 47 U.S.C. 405, and section
1.429 of the Commission's rules, 47 CFR 1.429, that the petitions for
reconsideration filed by the American Public Media Group, the NCE
Licensees, the Public Broadcasting Parties, and Lisa S. Campo on behalf
of the State University of New York, are granted in part, dismissed to
the extent discussed in footnote 42, and otherwise are denied, to the
extent stated herein.
39. It is further ordered that the applications for review filed by
the NCE Licensees and the University of Michigan are dismissed as moot.
40. It is further ordered that, pursuant to section 553(d) of the
Administrative Procedure Act, 5 U.S.C. 553(d), and section 1.427(b) of
the Commission's rules, 47 CFR 1.427(b), this Order on Reconsideration
shall be effective May 10, 2017, except those provisions that contain
new or modified information collection requirements that require
approval by the Office of Management and Budget under the Paperwork
Reduction Act will become effective after the Commission publishes a
notice in the Federal Register announcing such approval and the
relevant effective date.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2017-09461 Filed 5-9-17; 8:45 am]
BILLING CODE 6712-01-P