2010/2014 Quadrennial Regulatory Review; Rules and Policies To Promote New Entry and Ownership Diversity in the Broadcasting Services, 5163-5168 [2020-00671]
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Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations
operational and administrative cost
savings for small entities and other
auction participants. For example, prior
to the beginning of bidding in this
auction, the Commission will hold a
mock auction to allow qualified bidders
the opportunity to familiarize
themselves with both the processes and
systems that will be utilized in Auction
106. During the auction, participants
will be able to access and participate in
bidding via the internet using a webbased system, or telephonically,
providing two cost effective methods of
participation and avoiding the cost of
travel for in-person participation.
Further, small entities as well as other
auction participants will be able to avail
themselves of a telephone hotline for
assistance with auction processes and
procedures as well as a technical
support telephone hotline to assist with
issues such as access to or navigation
within the electronic FCC Form 175 and
use of the FCC’s auction bidding system.
In addition, all auction participants,
including small business entities, will
have access to various other sources of
information and databases through the
Commission that will aid in both their
understanding and participation in the
process. These resources, coupled with
the description and communication of
the bidding procedures before bidding
begins in Auction 106, should ensure
that the auction will be administered
predictably, efficiently and fairly, thus
providing certainty for small entities as
well as other auction participants.
165. Notice to SBA. The Commission
will send a copy of the Auction 106
Procedures Public Notice, including this
Supplemental FRFA, to the Chief
Counsel for Advocacy of the SBA.
Federal Communications Commission.
Gary Michaels,
Deputy Chief, Auctions Division, Office of
Economics and Analytics.
[FR Doc. 2020–01654 Filed 1–28–20; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
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[MB Docket Nos. 14–50, 09–182, 07–294, 04–
256, 17–289; DA 19–1303; FRS 16410]
2010/2014 Quadrennial Regulatory
Review; Rules and Policies To
Promote New Entry and Ownership
Diversity in the Broadcasting Services
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
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This document amends the
broadcast ownership rules to reflect the
mandate of the U.S. Court of Appeals for
the Third Circuit, which vacated and
remanded the Commission’s 2018
Incubator Order and 2017 Order on
Reconsideration in their entirety, and
the definition of eligible entities
adopted in the Commission’s 2016
Second Report and Order. This
document implements the Third
Circuit’s mandate and clarifies which
rules are currently in effect.
DATES: Effective January 29, 2020.
FOR FURTHER INFORMATION CONTACT: Ty
Bream, Ty.Bream@fcc.gov, or 202–418–
0644.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order,
DA 19–1303, in MB Docket Nos. 14–50,
09–182, 07–294, 04–256, 17–289,
adopted and released on December 20,
2019. 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_public/ (https://
apps.fcc.gov/edocs_public/). The
complete document is available for
inspection and copying in the FCC
Reference Information Center, 445 12th
Street SW, Room CY–A257,
Washington, DC 20554 (for hours of
operation, see https://www.fcc.gov/
general/fcc-reference-informationcenter). To request materials in
accessible formats for people with
disabilities (Braille, large print,
electronic files, audio format), send an
email to fcc504@fcc.gov (mail to:
fcc504@fcc.gov) or call the FCC’s
Consumer and Governmental Affairs
Bureau at (202) 418–0530 (voice), (202)
418–0432 (TTY).
SUMMARY:
Synopsis
1. In Prometheus Radio Project v.
FCC, the United States Court of Appeals
for the Third Circuit vacated and
remanded the Commission’s 2018
Incubator Order (83 FR 43773, Aug. 28,
2018) and its 2017 Order on
Reconsideration (83 FR 755, Jan. 8,
2018) in their entirety, as well as the
definition of eligible entities adopted in
the Commission’s 2016 Second Report
and Order (81 FR 76262, Nov. 1, 2016).
Pursuant to F. R. App. P. 41(b), the court
issued its mandate on November 29,
2019, which vacated, as of that date, the
rule changes adopted in the Incubator
Order and Order on Reconsideration
and the eligible entity definition as
adopted in the Second Report and
Order. With this Order, we amend our
rules to reflect the court’s mandate and
clarify which rules are currently in
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effect. Nothing in this Order shall be
construed to affect the right of the
Commission or any other party to the
Prometheus litigation to seek further
review of the Third Circuit’s decision in
the U.S. Supreme Court, or to limit the
Commission’s discretion in the event
that the Supreme Court were to take
further action in that litigation.
Consistent with the court’s mandate,
this Order repeals changes adopted in
the Incubator Order and Order on
Reconsideration and the eligible entity
definition as adopted in the Second
Report and Order. As a result of the
court’s decision and these revisions, the
newspaper/broadcast cross-ownership
rule, radio/television cross-ownership
rule, local television ownership rule,
local radio ownership rule, and
television joint sales agreement
attribution rule are reinstated as they
existed prior to the Order on
Reconsideration. For clarity, because the
Order on Reconsideration is vacated in
its entirety, the presumption under the
local radio ownership rule that would
apply a two-prong test for waiver
requests involving existing parent
markets with multiple embedded
markets is repealed and unavailable to
applicants. Note 5 to § 73.3555 is
reinstated with a reference to the
streamlined procedures adopted in
March 2019 for reauthorizing television
satellite stations when such stations are
assigned or transferred. In addition, the
eligible entity standard and its
application to regulatory measures as set
forth in the Second Report and Order
are repealed. Apart from the portions of
the order related to the now vacated
eligible entity definition, the remainder
of the Second Report and Order is in
effect and provides additional guidance
with respect to the reinstated rules.
Finally, the regulatory measures
adopted in the Incubator Order are
similarly repealed and unavailable to
applicants.
2. The Bureau finds that notice and
comment are unnecessary for these rule
amendments under 5 U.S.C. 553(b),
because this ministerial order merely
implements the mandate of the United
States Court of Appeals for the Third
Circuit, and the Commission lacks
discretion to depart from this mandate.
Because this Order is being adopted
without notice and comment, the
Regulatory Flexibility Act does not
apply.
3. Accordingly, it is ordered that
§ 73.3555 of the Commission’s rules, 47
CFR 73.3555, is amended as set forth in
the Final Rules, effective upon
publication in the Federal Register.
While the effect of the court’s mandate
was to vacate certain rule changes and
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restore prior rules, as described above,
we now undertake by this Order the
ministerial step of amending our rules
to reflect the court’s mandate. Because
of the need during the current broadcast
station license renewal cycle to alert
prospective applicants to the current,
applicable rules, there is ‘‘good cause’’
under 5 U.S.C. 553(d) to make the rules
effective immediately upon publication
in the Federal Register.
4. This action is taken pursuant to the
authority contained in sections 1, 2(a),
4(i) and (j), 5(c), 257, 303, 307, 308, 309,
310, and 403 of the Communications
Act of 1934, as amended, 47 U.S.C. 151,
152(a), 154(i), 154(j), 155(c), 257, 303,
307, 308, 309, 310, and 403, section
202(h) of the Telecommunications Act
of 1996, and §§ 0.61 and 0.283 of the
Commission’s rules, 47 CFR 0.61, 0.283.
5. The Bureau has determined, and
the Administrator of the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
concurs that these rules are non-major
under the Congressional Review Act, 5
U.S.C. 804(2). The Commission will
send a copy of this Order to Congress
and the Government Accountability
Office pursuant to 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 73
Radio, Television.
Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 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, 155, 301, 303,
307, 309, 310, 334, 336, 339.
2. Amend § 73.3555 by:
a. Revising paragraph (b);
b. Adding paragraphs (c) and (d);
c. Revising Notes 2, 4 through 7, and
9 to the section; and
■ d. Adding Note 12 to the section.
The revisions and addition read as
follows:
■
■
■
■
§ 73.3555
Multiple ownership.
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(b) Local television multiple
ownership rule. An entity may directly
or indirectly own, operate, or control
two television stations licensed in the
same Designated Market Area (DMA) (as
determined by Nielsen Media Research
or any successor entity) if:
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(1) The digital noise limited service
contours of the stations (computed in
accordance with § 73.622(e)) do not
overlap; or
(i) At the time the application to
acquire or construct the station(s) is
filed, at least one of the stations is not
ranked among the top four stations in
the DMA, based on the most recent allday (9 a.m.–midnight) audience share,
as measured by Nielsen Media Research
or by any comparable professional,
accepted audience ratings service; and
(ii) At least 8 independently owned
and operating, full-power commercial
and noncommercial TV stations would
remain post-merger in the DMA in
which the communities of license of the
TV stations in question are located.
Count only those TV stations the digital
noise limited service contours of which
overlap with the digital noise limited
service contour of at least one of the
stations in the proposed combination. In
areas where there is no DMA, count the
TV stations present in an area that
would be the functional equivalent of a
TV market. Count only those TV
stations digital noise limited service
contours of which overlap with the
digital noise limited service contour of
at least one of the stations in the
proposed combination.
(2) [Reserved]
(c) Radio-television cross-ownership
rule. (1) The rule in this paragraph (c)
is triggered when:
(i) The predicted or measured
1 mV/m contour of an existing or
proposed FM station (computed in
accordance with § 73.313) encompasses
the entire community of license of an
existing or proposed commonly owned
TV broadcast station(s), or the principal
community contour(s) of the TV
broadcast station(s) (computed in
accordance with § 73.625) encompasses
the entire community of license of the
FM station; or
(ii) The predicted or measured
2 mV/m groundwave contour of an
existing or proposed AM station
(computed in accordance with § 73.183
or § 73.186), encompasses the entire
community of license of an existing or
proposed commonly owned TV
broadcast station(s), or the principal
community contour(s) of the TV
broadcast station(s) (computed in
accordance with § 73.625)
encompass(es) the entire community of
license of the AM station.
(2) An entity may directly or
indirectly own, operate, or control up to
two commercial TV stations (if
permitted by paragraph (b) of this
section, the local television multiple
ownership rule) and one commercial
radio station situated as described in
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paragraph (c)(1) of this section. An
entity may not exceed these numbers,
except as follows:
(i) If at least 20 independently owned
media voices would remain in the
market post-merger, an entity can
directly or indirectly own, operate, or
control up to:
(A) Two commercial TV and six
commercial radio stations (to the extent
permitted by paragraph (a) of this
section, the local radio multiple
ownership rule); or
(B) One commercial TV and seven
commercial radio stations (to the extent
that an entity would be permitted to
own two commercial TV and six
commercial radio stations under
paragraph (c)(2)(i)(A) of this section,
and to the extent permitted by
paragraph (a) of this section, the local
radio multiple ownership rule).
(ii) If at least 10 independently owned
media voices would remain in the
market post-merger, an entity can
directly or indirectly own, operate, or
control up to two commercial TV and
four commercial radio stations (to the
extent permitted by paragraph (a) of this
section, the local radio multiple
ownership rule).
(3) To determine how many media
voices would remain in the market,
count the following:
(i) TV stations. Independently owned
and operating full-power broadcast TV
stations within the DMA of the TV
station’s (or stations’) community (or
communities) of license that have
digital noise limited service contours
(computed in accordance with
§ 73.622(e)) that overlap with the digital
noise limited service contour(s) of the
TV station(s) at issue;
(ii) Radio stations. (A)(1)
Independently owned operating primary
broadcast radio stations that are in the
radio metro market (as defined by
Arbitron or another nationally
recognized audience rating service) of:
(i) The TV station’s (or stations’)
community (or communities) of license;
or
(ii) The radio station’s (or stations’)
community (or communities) of license;
and
(2) Independently owned out-ofmarket broadcast radio stations with a
minimum share as reported by Arbitron
or another nationally recognized
audience rating service.
(B) When a proposed combination
involves stations in different radio
markets, the voice requirement in
paragraphs (c)(2)(i) and (ii) of this
section must be met in each market; the
radio stations of different radio metro
markets may not be counted together.
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(C) In areas where there is no radio
metro market, count the radio stations
present in an area that would be the
functional equivalent of a radio market.
(iii) Newspapers. Newspapers that are
published at least four days a week
within the TV station’s DMA in the
dominant language of the market and
that have a circulation exceeding 5% of
the households in the DMA; and
(iv) One cable system. If cable
television is generally available to
households in the DMA. Cable
television counts as only one voice in
the DMA, regardless of how many
individual cable systems operate in the
DMA.
(d) Newspaper/broadcast crossownership rule. (1) No party (including
all parties under common control) may
directly or indirectly own, operate, or
control a daily newspaper and a fullpower commercial broadcast station
(AM, FM, or TV) if:
(i) The predicted or measured
2 mV/m groundwave contour of the AM
station (computed in accordance with
§ 73.183 or § 73.186) encompasses the
entire community in which the
newspaper is published and, in areas
designated as Nielsen Audio Metro
markets, the AM station and the
community of publication of the
newspaper are located in the same
Nielsen Audio Metro market;
(ii) The predicted or measured
1 mV/m contour of the FM station
(computed in accordance with § 73.313)
encompasses the entire community in
which the newspaper is published and,
in areas designated as Nielsen Audio
Metro markets, the FM station and the
community of publication of the
newspaper are located in the same
Nielsen Audio Metro market; or
(iii) The principal community contour
of the TV station (computed in
accordance with § 73.625) encompasses
the entire community in which the
newspaper is published; and the
community of license of the TV station
and the community of publication of the
newspaper are located in the same
DMA.
(2) The prohibition in paragraph (d)(1)
of this section shall not apply upon a
showing that either the newspaper or
television station is failed or failing.
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Note 2 to § 73.3555: In applying the
provisions of this section, ownership
and other interests in broadcast
licensees, cable television systems and
daily newspapers will be attributed to
their holders and deemed cognizable
pursuant to the following criteria:
a. Except as otherwise provided
herein, partnership and direct
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ownership interests and any voting
stock interest amounting to 5% or more
of the outstanding voting stock of a
corporate broadcast licensee, cable
television system or daily newspaper
will be cognizable;
b. Investment companies, as defined
in 15 U.S.C. 80a–3, insurance
companies and banks holding stock
through their trust departments in trust
accounts will be considered to have a
cognizable interest only if they hold
20% or more of the outstanding voting
stock of a corporate broadcast licensee,
cable television system or daily
newspaper, or if any of the officers or
directors of the broadcast licensee, cable
television system or daily newspaper
are representatives of the investment
company, insurance company or bank
concerned. Holdings by a bank or
insurance company will be aggregated if
the bank or insurance company has any
right to determine how the stock will be
voted. Holdings by investment
companies will be aggregated if under
common management.
c. Attribution of ownership interests
in a broadcast licensee, cable television
system or daily newspaper that are held
indirectly by any party through one or
more intervening corporations will be
determined by successive multiplication
of the ownership percentages for each
link in the vertical ownership chain and
application of the relevant attribution
benchmark to the resulting product,
except that wherever the ownership
percentage for any link in the chain
exceeds 50%, it shall not be included
for purposes of this multiplication. For
purposes of paragraph i. of this note,
attribution of ownership interests in a
broadcast licensee, cable television
system or daily newspaper that are held
indirectly by any party through one or
more intervening organizations will be
determined by successive multiplication
of the ownership percentages for each
link in the vertical ownership chain and
application of the relevant attribution
benchmark to the resulting product, and
the ownership percentage for any link in
the chain that exceeds 50% shall be
included for purposes of this
multiplication. [For example, except for
purposes of paragraph (i) of this note, if
A owns 10% of company X, which
owns 60% of company Y, which owns
25% of ‘‘Licensee,’’ then X’s interest in
‘‘Licensee’’ would be 25% (the same as
Y’s interest because X’s interest in Y
exceeds 50%), and A’s interest in
‘‘Licensee’’ would be 2.5% (0.1 × 0.25).
Under the 5% attribution benchmark,
X’s interest in ‘‘Licensee’’ would be
cognizable, while A’s interest would not
be cognizable. For purposes of
paragraph i. of this note, X’s interest in
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‘‘Licensee’’ would be 15% (0.6 × 0.25)
and A’s interest in ‘‘Licensee’’ would be
1.5% (0.1 x 0.6 × 0.25). Neither interest
would be attributed under paragraph i.
of this note.]
d. Voting stock interests held in trust
shall be attributed to any person who
holds or shares the power to vote such
stock, to any person who has the sole
power to sell such stock, and to any
person who has the right to revoke the
trust at will or to replace the trustee at
will. If the trustee has a familial,
personal or extra-trust business
relationship to the grantor or the
beneficiary, the grantor or beneficiary,
as appropriate, will be attributed with
the stock interests held in trust. An
otherwise qualified trust will be
ineffective to insulate the grantor or
beneficiary from attribution with the
trust’s assets unless all voting stock
interests held by the grantor or
beneficiary in the relevant broadcast
licensee, cable television system or
daily newspaper are subject to said
trust.
e. Subject to paragraph i. of this note,
holders of non-voting stock shall not be
attributed an interest in the issuing
entity. Subject to paragraph i. of this
note, holders of debt and instruments
such as warrants, convertible
debentures, options or other non-voting
interests with rights of conversion to
voting interests shall not be attributed
unless and until conversion is effected.
f. 1. A limited partnership interest
shall be attributed to a limited partner
unless that partner is not materially
involved, directly or indirectly, in the
management or operation of the mediarelated activities of the partnership and
the licensee or system so certifies. An
interest in a Limited Liability Company
(‘‘LLC’’) or Registered Limited Liability
Partnership (‘‘RLLP’’) shall be attributed
to the interest holder unless that interest
holder is not materially involved,
directly or indirectly, in the
management or operation of the mediarelated activities of the partnership and
the licensee or system so certifies.
2. For a licensee or system that is a
limited partnership to make the
certification set forth in paragraph f. 1.
of this note, it must verify that the
partnership agreement or certificate of
limited partnership, with respect to the
particular limited partner exempt from
attribution, establishes that the exempt
limited partner has no material
involvement, directly or indirectly, in
the management or operation of the
media activities of the partnership. For
a licensee or system that is an LLC or
RLLP to make the certification set forth
in paragraph f. 1. of this note, it must
verify that the organizational document,
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with respect to the particular interest
holder exempt from attribution,
establishes that the exempt interest
holder has no material involvement,
directly or indirectly, in the
management or operation of the media
activities of the LLC or RLLP. The
criteria which would assume adequate
insulation for purposes of this
certification are described in the
Memorandum Opinion and Order in
MM Docket No. 83–46, FCC 85–252
(released June 24, 1985), as modified on
reconsideration in the Memorandum
Opinion and Order in MM Docket No.
83–46, FCC 86–410 (released November
28, 1986). Irrespective of the terms of
the certificate of limited partnership or
partnership agreement, or other
organizational document in the case of
an LLC or RLLP, however, no such
certification shall be made if the
individual or entity making the
certification has actual knowledge of
any material involvement of the limited
partners, or other interest holders in the
case of an LLC or RLLP, in the
management or operation of the mediarelated businesses of the partnership or
LLC or RLLP.
3. In the case of an LLC or RLLP, the
licensee or system seeking insulation
shall certify, in addition, that the
relevant state statute authorizing LLCs
permits an LLC member to insulate
itself as required by our criteria.
g. Officers and directors of a broadcast
licensee, cable television system or
daily newspaper are considered to have
a cognizable interest in the entity with
which they are so associated. If any
such entity engages in businesses in
addition to its primary business of
broadcasting, cable television service or
newspaper publication, it may request
the Commission to waive attribution for
any officer or director whose duties and
responsibilities are wholly unrelated to
its primary business. The officers and
directors of a parent company of a
broadcast licensee, cable television
system or daily newspaper, with an
attributable interest in any such
subsidiary entity, shall be deemed to
have a cognizable interest in the
subsidiary unless the duties and
responsibilities of the officer or director
involved are wholly unrelated to the
broadcast licensee, cable television
system or daily newspaper subsidiary,
and a statement properly documenting
this fact is submitted to the
Commission. [This statement may be
included on the appropriate Ownership
Report.] The officers and directors of a
sister corporation of a broadcast
licensee, cable television system or
daily newspaper shall not be attributed
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with ownership of these entities by
virtue of such status.
h. Discrete ownership interests will be
aggregated in determining whether or
not an interest is cognizable under this
section. An individual or entity will be
deemed to have a cognizable investment
if:
1. The sum of the interests held by or
through ‘‘passive investors’’ is equal to
or exceeds 20 percent; or
2. The sum of the interests other than
those held by or through ‘‘passive
investors’’ is equal to or exceeds 5
percent; or
3. The sum of the interests computed
under paragraph h. 1. of this note plus
the sum of the interests computed under
paragraph h. 2. of this note is equal to
or exceeds 20 percent.
i.1. Notwithstanding paragraphs e.
and f. of this Note, the holder of an
equity or debt interest or interests in a
broadcast licensee, cable television
system, daily newspaper, or other media
outlet subject to the broadcast multiple
ownership or cross-ownership rules
(‘‘interest holder’’) shall have that
interest attributed if:
A. The equity (including all
stockholdings, whether voting or
nonvoting, common or preferred) and
debt interest or interests, in the
aggregate, exceed 33 percent of the total
asset value, defined as the aggregate of
all equity plus all debt, of that media
outlet; and
B.(i) The interest holder also holds an
interest in a broadcast licensee, cable
television system, newspaper, or other
media outlet operating in the same
market that is subject to the broadcast
multiple ownership or cross-ownership
rules and is attributable under
paragraphs of this note other than this
paragraph i.; or
(ii) The interest holder supplies over
fifteen percent of the total weekly
broadcast programming hours of the
station in which the interest is held. For
purposes of applying this paragraph, the
term, ‘‘market,’’ will be defined as it is
defined under the specific multiple
ownership rule or cross-ownership rule
that is being applied, except that for
television stations, the term ‘‘market,’’
will be defined by reference to the
definition contained in the local
television multiple ownership rule
contained in paragraph (b) of this
section.
2. Notwithstanding paragraph i.1. of
this Note, the interest holder may
exceed the 33 percent threshold therein
without triggering attribution where
holding such interest would enable an
eligible entity to acquire a broadcast
station, provided that:
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i. The combined equity and debt of
the interest holder in the eligible entity
is less than 50 percent, or
ii. The total debt of the interest holder
in the eligible entity does not exceed 80
percent of the asset value of the station
being acquired by the eligible entity and
the interest holder does not hold any
equity interest, option, or promise to
acquire an equity interest in the eligible
entity or any related entity. For
purposes of this paragraph i.2, an
‘‘eligible entity’’ shall include any entity
that qualifies as a small business under
the Small Business Administration’s
size standards for its industry grouping,
as set forth in 13 CFR 121.201, at the
time the transaction is approved by the
FCC, and holds:
A. 30 percent or more of the stock or
partnership interests and more than 50
percent of the voting power of the
corporation or partnership that will own
the media outlet; or
B. 15 percent or more of the stock or
partnership interests and more than 50
percent of the voting power of the
corporation or partnership that will own
the media outlet, provided that no other
person or entity owns or controls more
than 25 percent of the outstanding stock
or partnership interests; or
C. More than 50 percent of the voting
power of the corporation that will own
the media outlet if such corporation is
a publicly traded company.
j. ‘‘Time brokerage’’ (also known as
‘‘local marketing’’) is the sale by a
licensee of discrete blocks of time to a
‘‘broker’’ that supplies the programming
to fill that time and sells the commercial
spot announcements in it.
1. Where two radio stations are both
located in the same market, as defined
for purposes of the local radio
ownership rule contained in paragraph
(a) of this section, and a party (including
all parties under common control) with
a cognizable interest in one such station
brokers more than 15 percent of the
broadcast time per week of the other
such station, that party shall be treated
as if it has an interest in the brokered
station subject to the limitations set
forth in paragraphs (a), (c), and (d) of
this section. This limitation shall apply
regardless of the source of the brokered
programming supplied by the party to
the brokered station.
2. Where two television stations are
both located in the same market, as
defined in the local television
ownership rule contained in paragraph
(b) of this section, and a party
(including all parties under common
control) with a cognizable interest in
one such station brokers more than 15
percent of the broadcast time per week
of the other such station, that party shall
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be treated as if it has an interest in the
brokered station subject to the
limitations set forth in paragraphs (b),
(c), (d) and (e) of this section. This
limitation shall apply regardless of the
source of the brokered programming
supplied by the party to the brokered
station.
3. Every time brokerage agreement of
the type described in this Note shall be
undertaken only pursuant to a signed
written agreement that shall contain a
certification by the licensee or permittee
of the brokered station verifying that it
maintains ultimate control over the
station’s facilities including,
specifically, control over station
finances, personnel and programming,
and by the brokering station that the
agreement complies with the provisions
of paragraphs (b), (c), and (d) of this
section if the brokering station is a
television station or with paragraphs (a),
(c), and (d) of this section if the
brokering station is a radio station.
k. ‘‘Joint Sales Agreement’’ is an
agreement with a licensee of a
‘‘brokered station’’ that authorizes a
‘‘broker’’ to sell advertising time for the
‘‘brokered station.’’
1. Where two radio stations are both
located in the same market, as defined
for purposes of the local radio
ownership rule contained in paragraph
(a) of this section, and a party (including
all parties under common control) with
a cognizable interest in one such station
sells more than 15 percent of the
advertising time per week of the other
such station, that party shall be treated
as if it has an interest in the brokered
station subject to the limitations set
forth in paragraphs (a), (c), and (d) of
this section.
2. Where two television stations are
both located in the same market, as
defined for purposes of the local
television ownership rule contained in
paragraph (b) of this section, and a party
(including all parties under common
control) with a cognizable interest in
one such station sells more than 15
percent of the advertising time per week
of the other such station, that party shall
be treated as if it has an interest in the
brokered station subject to the
limitations set forth in paragraphs (b),
(c), (d), and (e) of this section.
3. Every joint sales agreement of the
type described in this Note shall be
undertaken only pursuant to a signed
written agreement that shall contain a
certification by the licensee or permittee
of the brokered station verifying that it
maintains ultimate control over the
station’s facilities, including,
specifically, control over station
finances, personnel and programming,
and by the brokering station that the
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agreement complies with the limitations
set forth in paragraphs (b), (c), and (d)
of this section if the brokering station is
a television station or with paragraphs
(a), (c), and (d) of this section if the
brokering station is a radio station.
*
*
*
*
*
Note 4 to § 73.3555: Paragraphs (a)
through (d) of this section will not be
applied so as to require divestiture, by
any licensee, of existing facilities, and
will not apply to applications for
assignment of license or transfer of
control filed in accordance with
§ 73.3540(f) or § 73.3541(b), or to
applications for assignment of license or
transfer of control to heirs or legatees by
will or intestacy, or to FM or AM
broadcast minor modification
applications for intra-market
community of license changes, if no
new or increased concentration of
ownership would be created among
commonly owned, operated or
controlled media properties. Paragraphs
(a) through (d) of this section will apply
to all applications for new stations, to
all other applications for assignment or
transfer, to all applications for major
changes to existing stations, and to all
other applications for minor changes to
existing stations that seek a change in an
FM or AM radio station’s community of
license or create new or increased
concentration of ownership among
commonly owned, operated or
controlled media properties. Commonly
owned, operated or controlled media
properties that do not comply with
paragraphs (a) through (d) of this section
may not be assigned or transferred to a
single person, group or entity, except as
provided in this Note, the Report and
Order in Docket No. 02–277, released
July 2, 2003 (FCC 02–127), or the
Second Report and Order in MB Docket
No. 14–50, FCC 16–107 (released
August 25, 2016).
Note 5 to § 73.3555: Paragraphs (b)
through (e) of this section will not be
applied to cases involving television
stations that are ‘‘satellite’’ operations.
Such cases will be considered in
accordance with the analysis set forth in
the Report and Order in MM Docket No.
87–8, FCC 91–182 (released July 8,
1991), as further explained by the
Report and Order in MB Docket No. 18–
63, FCC 19–17, (released March 12,
2019), in order to determine whether
common ownership, operation, or
control of the stations in question would
be in the public interest. An authorized
and operating ‘‘satellite’’ television
station, the digital noise limited service
contour of which overlaps that of a
commonly owned, operated, or
controlled ‘‘non-satellite’’ parent
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5167
television broadcast station, or the
principal community contour of which
completely encompasses the community
of publication of a commonly owned,
operated, or controlled daily newspaper,
or the community of license of a
commonly owned, operated, or
controlled AM or FM broadcast station,
or the community of license of which is
completely encompassed by the 2 mV/
m contour of such AM broadcast station
or the 1 mV/m contour of such FM
broadcast station, may subsequently
become a ‘‘non-satellite’’ station under
the circumstances described in the
aforementioned Report and Order in
MM Docket No. 87–8. However, such
commonly owned, operated, or
controlled ‘‘non-satellite’’ television
stations and AM or FM stations with the
aforementioned community
encompassment, may not be transferred
or assigned to a single person, group, or
entity except as provided in Note 4 of
this section. Nor shall any application
for assignment or transfer concerning
such ‘‘non-satellite’’ stations be granted
if the assignment or transfer would be
to the same person, group or entity to
which the commonly owned, operated,
or controlled newspaper is proposed to
be transferred, except as provided in
Note 4 of this section.
Note 6 to § 73.3555: For purposes of
this section a daily newspaper is one
which is published four or more days
per week, which is in the dominant
language in the market, and which is
circulated generally in the community
of publication. A college newspaper is
not considered as being circulated
generally.
Note 7 to § 73.3555: The Commission
will entertain applications to waive the
restrictions in paragraph (b) and (c) of
this section (the local television
ownership rule and the radio/television
cross-ownership rule) on a case-by-case
basis. In each case, we will require a
showing that the in-market buyer is the
only entity ready, willing, and able to
operate the station, that sale to an outof-market applicant would result in an
artificially depressed price, and that the
waiver applicant does not already
directly or indirectly own, operate, or
control interest in two television
stations within the relevant DMA. One
way to satisfy these criteria would be to
provide an affidavit from an
independent broker affirming that active
and serious efforts have been made to
sell the permit, and that no reasonable
offer from an entity outside the market
has been received.
We will entertain waiver requests as
follows:
1. If one of the broadcast stations
involved is a ‘‘failed’’ station that has
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not been in operation due to financial
distress for at least four consecutive
months immediately prior to the
application, or is a debtor in an
involuntary bankruptcy or insolvency
proceeding at the time of the
application.
2. For paragraph (b) of this section
only, if one of the television stations
involved is a ‘‘failing’’ station that has
an all-day audience share of no more
than four per cent; the station has had
negative cash flow for three consecutive
years immediately prior to the
application; and consolidation of the
two stations would result in tangible
and verifiable public interest benefits
that outweigh any harm to competition
and diversity.
3. For paragraph (b) of this section
only, if the combination will result in
the construction of an unbuilt station.
The permittee of the unbuilt station
must demonstrate that it has made
reasonable efforts to construct but has
been unable to do so.
*
*
*
*
*
Note 9 to § 73.3555: Paragraph (a)(1)
of this section will not apply to an
application for an AM station license in
the 1605–1705 kHz band where grant of
such application will result in the
overlap of the 5 mV/m groundwave
contours of the proposed station and
that of another AM station in the 535–
1605 kHz band that is commonly
owned, operated or controlled.
Paragraphs (d)(1)(i) and (ii) of this
section will not apply to an application
for an AM station license in the 1605–
1705 kHz band by an entity that owns,
operates, controls or has a cognizable
interest in AM radio stations in the 535–
1605 kHz band.
*
*
*
*
*
Note 12 to § 73.3555: Parties seeking
waiver of paragraph (d)(1) of this
section, or an exception pursuant to
paragraph (d)(2) of this section
involving failed or failing properties,
should refer to the Second Report and
Order in MB Docket No. 14–50, FCC 16–
107 (released August 25, 2016).
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 191, 192, and 195
[Docket No. PHMSA–2019–0225]
Pipeline Safety: Public Meeting on
Implementing the Recently Published
Gas Transmission and Hazardous
Liquid Final Rules
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Announcement of public
meeting and request for comments.
AGENCY:
This document announces a
public meeting for Pipeline Safety
officials to discuss with pipeline safety
stakeholders the implementation of the
gas transmission and the hazardous
liquid pipeline final rules published in
the Federal Register on October 1, 2019.
PHMSA is making available for
comment draft frequently asked
questions (FAQs) and answers for both
final rules that will be used to facilitate
the implementation of the final rules.
PHMSA will also discuss the benefits of
pipeline operators developing an
effective safety culture, including safety
management systems.
DATES: The public meeting will be held
on February 26–27, 2020, from 8:30 a.m.
to 5 p.m., CT. Members of the public
who wish to attend in person are asked
to register no later than February 18,
2020. Comments on the draft FAQs
should be submitted to Docket No.
PHMSA–2019–0225 by February 11,
2020, so that we can effectively discuss
public comments in the public meeting.
However, the comment period will
remain open until March 27, 2020, to
allow for public participation following
the conclusion of the meeting.
Individuals requiring accommodations,
such as sign language interpretation or
other ancillary aids, are asked to notify
PHMSA by February 18, 2020. For
additional information see the
ADDRESSES section.
ADDRESSES: The meeting will be held at
the Houston Marriott Sugar Land hotel
at 16090 City Walk, Sugarland, Texas
77479. The meeting room location,
agenda, and any additional information
will be published at https://
primis.phmsa.dot.gov/meetings/
MtgHome.mtg?mtg=146.
The meeting will be web cast, and any
documents presented will be available
on the meeting website and posted on
the E-Gov website: https://
www.regulations.gov under docket
SUMMARY:
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number PHMSA–2019–0225 within 30
days following the meeting.
Public Participation: This meeting
will be open to the public. Members of
the public who wish to attend in person
are asked to register at https://
primis.phmsa.dot.gov/meetings/
MtgHome.mtg?mtg=146. to facilitate
entry and guarantee seating. Members of
the public attending will be provided an
opportunity to participate. Instructions
on how to participate through webcast
will be provided at the beginning of the
meeting.
Services for Individuals with
Disabilities: The public meeting will be
physically accessible to people with
disabilities. Individuals requiring
accommodations, such as sign language
interpretation or other ancillary aids, are
asked to notify Chris Hoidal, Senior
Technical Advisor, Office of the Deputy
Associate Administrator for Policy and
Programs, at 303–807–8833 or by email
at chris.hoidal@dot.gov.
Written comments: Persons who want
to submit written comments may do so
by submitting them to the public docket
in the following ways:
E-Gov Website: https://
www.regulations.gov. This site allows
the public to enter comments on any
Federal Register document issued by
any agency.
Fax: 1–202–493–2251.
Mail: Docket Management Facility;
U.S. Department of Transportation
(DOT), 1200 New Jersey Avenue SE,
West Building, Room W12–140,
Washington, DC 20590–0001.
Hand Delivery: Room W12–140 on the
ground level of the DOT West Building,
1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except on
Federal holidays.
Instructions: Identify the docket
number PHMSA–2019–0225 at the
beginning of your comments. Note that
all comments received will be posted
without change to www.regulations.gov,
including any personal information
provided. You should know that anyone
is able to search the electronic form of
all comments received into any of our
dockets by the name of the individual
submitting the comment (or signing the
comment, if submitted on behalf of an
association, business, labor union, etc.).
Therefore, you may want to review
DOT’s complete Privacy Act Statement
in the Federal Register published on
April 11, 2000, (65 FR 19477) or view
the Privacy Notice at
www.regulations.gov before submitting
any such comments.
Docket: For access to the docket or to
read background documents or
comments, go to https://
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]]>Agencies
[Federal Register Volume 85, Number 19 (Wednesday, January 29, 2020)]
[Rules and Regulations]
[Pages 5163-5168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00671]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket Nos. 14-50, 09-182, 07-294, 04-256, 17-289; DA 19-1303; FRS
16410]
2010/2014 Quadrennial Regulatory Review; Rules and Policies To
Promote New Entry and Ownership Diversity in the Broadcasting Services
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the broadcast ownership rules to reflect
the mandate of the U.S. Court of Appeals for the Third Circuit, which
vacated and remanded the Commission's 2018 Incubator Order and 2017
Order on Reconsideration in their entirety, and the definition of
eligible entities adopted in the Commission's 2016 Second Report and
Order. This document implements the Third Circuit's mandate and
clarifies which rules are currently in effect.
DATES: Effective January 29, 2020.
FOR FURTHER INFORMATION CONTACT: Ty Bream, [email protected], or 202-
418-0644.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order,
DA 19-1303, in MB Docket Nos. 14-50, 09-182, 07-294, 04-256, 17-289,
adopted and released on December 20, 2019. 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_public/ (https://apps.fcc.gov/edocs_public/). The
complete document is available for inspection and copying in the FCC
Reference Information Center, 445 12th Street SW, Room CY-A257,
Washington, DC 20554 (for hours of operation, see https://www.fcc.gov/general/fcc-reference-information-center). To request materials in
accessible formats for people with disabilities (Braille, large print,
electronic files, audio format), send an email to [email protected] (mail
to: [email protected]) or call the FCC's Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
1. In Prometheus Radio Project v. FCC, the United States Court of
Appeals for the Third Circuit vacated and remanded the Commission's
2018 Incubator Order (83 FR 43773, Aug. 28, 2018) and its 2017 Order on
Reconsideration (83 FR 755, Jan. 8, 2018) in their entirety, as well as
the definition of eligible entities adopted in the Commission's 2016
Second Report and Order (81 FR 76262, Nov. 1, 2016). Pursuant to F. R.
App. P. 41(b), the court issued its mandate on November 29, 2019, which
vacated, as of that date, the rule changes adopted in the Incubator
Order and Order on Reconsideration and the eligible entity definition
as adopted in the Second Report and Order. With this Order, we amend
our rules to reflect the court's mandate and clarify which rules are
currently in effect. Nothing in this Order shall be construed to affect
the right of the Commission or any other party to the Prometheus
litigation to seek further review of the Third Circuit's decision in
the U.S. Supreme Court, or to limit the Commission's discretion in the
event that the Supreme Court were to take further action in that
litigation. Consistent with the court's mandate, this Order repeals
changes adopted in the Incubator Order and Order on Reconsideration and
the eligible entity definition as adopted in the Second Report and
Order. As a result of the court's decision and these revisions, the
newspaper/broadcast cross-ownership rule, radio/television cross-
ownership rule, local television ownership rule, local radio ownership
rule, and television joint sales agreement attribution rule are
reinstated as they existed prior to the Order on Reconsideration. For
clarity, because the Order on Reconsideration is vacated in its
entirety, the presumption under the local radio ownership rule that
would apply a two-prong test for waiver requests involving existing
parent markets with multiple embedded markets is repealed and
unavailable to applicants. Note 5 to Sec. 73.3555 is reinstated with a
reference to the streamlined procedures adopted in March 2019 for
reauthorizing television satellite stations when such stations are
assigned or transferred. In addition, the eligible entity standard and
its application to regulatory measures as set forth in the Second
Report and Order are repealed. Apart from the portions of the order
related to the now vacated eligible entity definition, the remainder of
the Second Report and Order is in effect and provides additional
guidance with respect to the reinstated rules. Finally, the regulatory
measures adopted in the Incubator Order are similarly repealed and
unavailable to applicants.
2. The Bureau finds that notice and comment are unnecessary for
these rule amendments under 5 U.S.C. 553(b), because this ministerial
order merely implements the mandate of the United States Court of
Appeals for the Third Circuit, and the Commission lacks discretion to
depart from this mandate. Because this Order is being adopted without
notice and comment, the Regulatory Flexibility Act does not apply.
3. Accordingly, it is ordered that Sec. 73.3555 of the
Commission's rules, 47 CFR 73.3555, is amended as set forth in the
Final Rules, effective upon publication in the Federal Register. While
the effect of the court's mandate was to vacate certain rule changes
and
[[Page 5164]]
restore prior rules, as described above, we now undertake by this Order
the ministerial step of amending our rules to reflect the court's
mandate. Because of the need during the current broadcast station
license renewal cycle to alert prospective applicants to the current,
applicable rules, there is ``good cause'' under 5 U.S.C. 553(d) to make
the rules effective immediately upon publication in the Federal
Register.
4. This action is taken pursuant to the authority contained in
sections 1, 2(a), 4(i) and (j), 5(c), 257, 303, 307, 308, 309, 310, and
403 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
152(a), 154(i), 154(j), 155(c), 257, 303, 307, 308, 309, 310, and 403,
section 202(h) of the Telecommunications Act of 1996, and Sec. Sec.
0.61 and 0.283 of the Commission's rules, 47 CFR 0.61, 0.283.
5. The Bureau has determined, and the Administrator of the Office
of Information and Regulatory Affairs, Office of Management and Budget,
concurs that these rules are non-major under the Congressional Review
Act, 5 U.S.C. 804(2). The Commission will send a copy of this Order to
Congress and the Government Accountability Office pursuant to 5 U.S.C.
801(a)(1)(A).
List of Subjects in 47 CFR Part 73
Radio, Television.
Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 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, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
2. Amend Sec. 73.3555 by:
0
a. Revising paragraph (b);
0
b. Adding paragraphs (c) and (d);
0
c. Revising Notes 2, 4 through 7, and 9 to the section; and
0
d. Adding Note 12 to the section.
The revisions and addition read as follows:
Sec. 73.3555 Multiple ownership.
* * * * *
(b) Local television multiple ownership rule. An entity may
directly or indirectly own, operate, or control two television stations
licensed in the same Designated Market Area (DMA) (as determined by
Nielsen Media Research or any successor entity) if:
(1) The digital noise limited service contours of the stations
(computed in accordance with Sec. 73.622(e)) do not overlap; or
(i) At the time the application to acquire or construct the
station(s) is filed, at least one of the stations is not ranked among
the top four stations in the DMA, based on the most recent all-day (9
a.m.-midnight) audience share, as measured by Nielsen Media Research or
by any comparable professional, accepted audience ratings service; and
(ii) At least 8 independently owned and operating, full-power
commercial and noncommercial TV stations would remain post-merger in
the DMA in which the communities of license of the TV stations in
question are located. Count only those TV stations the digital noise
limited service contours of which overlap with the digital noise
limited service contour of at least one of the stations in the proposed
combination. In areas where there is no DMA, count the TV stations
present in an area that would be the functional equivalent of a TV
market. Count only those TV stations digital noise limited service
contours of which overlap with the digital noise limited service
contour of at least one of the stations in the proposed combination.
(2) [Reserved]
(c) Radio-television cross-ownership rule. (1) The rule in this
paragraph (c) is triggered when:
(i) The predicted or measured 1 mV/m contour of an existing or
proposed FM station (computed in accordance with Sec. 73.313)
encompasses the entire community of license of an existing or proposed
commonly owned TV broadcast station(s), or the principal community
contour(s) of the TV broadcast station(s) (computed in accordance with
Sec. 73.625) encompasses the entire community of license of the FM
station; or
(ii) The predicted or measured 2 mV/m groundwave contour of an
existing or proposed AM station (computed in accordance with Sec.
73.183 or Sec. 73.186), encompasses the entire community of license of
an existing or proposed commonly owned TV broadcast station(s), or the
principal community contour(s) of the TV broadcast station(s) (computed
in accordance with Sec. 73.625) encompass(es) the entire community of
license of the AM station.
(2) An entity may directly or indirectly own, operate, or control
up to two commercial TV stations (if permitted by paragraph (b) of this
section, the local television multiple ownership rule) and one
commercial radio station situated as described in paragraph (c)(1) of
this section. An entity may not exceed these numbers, except as
follows:
(i) If at least 20 independently owned media voices would remain in
the market post-merger, an entity can directly or indirectly own,
operate, or control up to:
(A) Two commercial TV and six commercial radio stations (to the
extent permitted by paragraph (a) of this section, the local radio
multiple ownership rule); or
(B) One commercial TV and seven commercial radio stations (to the
extent that an entity would be permitted to own two commercial TV and
six commercial radio stations under paragraph (c)(2)(i)(A) of this
section, and to the extent permitted by paragraph (a) of this section,
the local radio multiple ownership rule).
(ii) If at least 10 independently owned media voices would remain
in the market post-merger, an entity can directly or indirectly own,
operate, or control up to two commercial TV and four commercial radio
stations (to the extent permitted by paragraph (a) of this section, the
local radio multiple ownership rule).
(3) To determine how many media voices would remain in the market,
count the following:
(i) TV stations. Independently owned and operating full-power
broadcast TV stations within the DMA of the TV station's (or stations')
community (or communities) of license that have digital noise limited
service contours (computed in accordance with Sec. 73.622(e)) that
overlap with the digital noise limited service contour(s) of the TV
station(s) at issue;
(ii) Radio stations. (A)(1) Independently owned operating primary
broadcast radio stations that are in the radio metro market (as defined
by Arbitron or another nationally recognized audience rating service)
of:
(i) The TV station's (or stations') community (or communities) of
license; or
(ii) The radio station's (or stations') community (or communities)
of license; and
(2) Independently owned out-of-market broadcast radio stations with
a minimum share as reported by Arbitron or another nationally
recognized audience rating service.
(B) When a proposed combination involves stations in different
radio markets, the voice requirement in paragraphs (c)(2)(i) and (ii)
of this section must be met in each market; the radio stations of
different radio metro markets may not be counted together.
[[Page 5165]]
(C) In areas where there is no radio metro market, count the radio
stations present in an area that would be the functional equivalent of
a radio market.
(iii) Newspapers. Newspapers that are published at least four days
a week within the TV station's DMA in the dominant language of the
market and that have a circulation exceeding 5% of the households in
the DMA; and
(iv) One cable system. If cable television is generally available
to households in the DMA. Cable television counts as only one voice in
the DMA, regardless of how many individual cable systems operate in the
DMA.
(d) Newspaper/broadcast cross-ownership rule. (1) No party
(including all parties under common control) may directly or indirectly
own, operate, or control a daily newspaper and a full-power commercial
broadcast station (AM, FM, or TV) if:
(i) The predicted or measured 2 mV/m groundwave contour of the AM
station (computed in accordance with Sec. 73.183 or Sec. 73.186)
encompasses the entire community in which the newspaper is published
and, in areas designated as Nielsen Audio Metro markets, the AM station
and the community of publication of the newspaper are located in the
same Nielsen Audio Metro market;
(ii) The predicted or measured 1 mV/m contour of the FM station
(computed in accordance with Sec. 73.313) encompasses the entire
community in which the newspaper is published and, in areas designated
as Nielsen Audio Metro markets, the FM station and the community of
publication of the newspaper are located in the same Nielsen Audio
Metro market; or
(iii) The principal community contour of the TV station (computed
in accordance with Sec. 73.625) encompasses the entire community in
which the newspaper is published; and the community of license of the
TV station and the community of publication of the newspaper are
located in the same DMA.
(2) The prohibition in paragraph (d)(1) of this section shall not
apply upon a showing that either the newspaper or television station is
failed or failing.
* * * * *
Note 2 to Sec. 73.3555: In applying the provisions of this
section, ownership and other interests in broadcast licensees, cable
television systems and daily newspapers will be attributed to their
holders and deemed cognizable pursuant to the following criteria:
a. Except as otherwise provided herein, partnership and direct
ownership interests and any voting stock interest amounting to 5% or
more of the outstanding voting stock of a corporate broadcast licensee,
cable television system or daily newspaper will be cognizable;
b. Investment companies, as defined in 15 U.S.C. 80a-3, insurance
companies and banks holding stock through their trust departments in
trust accounts will be considered to have a cognizable interest only if
they hold 20% or more of the outstanding voting stock of a corporate
broadcast licensee, cable television system or daily newspaper, or if
any of the officers or directors of the broadcast licensee, cable
television system or daily newspaper are representatives of the
investment company, insurance company or bank concerned. Holdings by a
bank or insurance company will be aggregated if the bank or insurance
company has any right to determine how the stock will be voted.
Holdings by investment companies will be aggregated if under common
management.
c. Attribution of ownership interests in a broadcast licensee,
cable television system or daily newspaper that are held indirectly by
any party through one or more intervening corporations will be
determined by successive multiplication of the ownership percentages
for each link in the vertical ownership chain and application of the
relevant attribution benchmark to the resulting product, except that
wherever the ownership percentage for any link in the chain exceeds
50%, it shall not be included for purposes of this multiplication. For
purposes of paragraph i. of this note, attribution of ownership
interests in a broadcast licensee, cable television system or daily
newspaper that are held indirectly by any party through one or more
intervening organizations will be determined by successive
multiplication of the ownership percentages for each link in the
vertical ownership chain and application of the relevant attribution
benchmark to the resulting product, and the ownership percentage for
any link in the chain that exceeds 50% shall be included for purposes
of this multiplication. [For example, except for purposes of paragraph
(i) of this note, if A owns 10% of company X, which owns 60% of company
Y, which owns 25% of ``Licensee,'' then X's interest in ``Licensee''
would be 25% (the same as Y's interest because X's interest in Y
exceeds 50%), and A's interest in ``Licensee'' would be 2.5% (0.1 x
0.25). Under the 5% attribution benchmark, X's interest in ``Licensee''
would be cognizable, while A's interest would not be cognizable. For
purposes of paragraph i. of this note, X's interest in ``Licensee''
would be 15% (0.6 x 0.25) and A's interest in ``Licensee'' would be
1.5% (0.1 x 0.6 x 0.25). Neither interest would be attributed under
paragraph i. of this note.]
d. Voting stock interests held in trust shall be attributed to any
person who holds or shares the power to vote such stock, to any person
who has the sole power to sell such stock, and to any person who has
the right to revoke the trust at will or to replace the trustee at
will. If the trustee has a familial, personal or extra-trust business
relationship to the grantor or the beneficiary, the grantor or
beneficiary, as appropriate, will be attributed with the stock
interests held in trust. An otherwise qualified trust will be
ineffective to insulate the grantor or beneficiary from attribution
with the trust's assets unless all voting stock interests held by the
grantor or beneficiary in the relevant broadcast licensee, cable
television system or daily newspaper are subject to said trust.
e. Subject to paragraph i. of this note, holders of non-voting
stock shall not be attributed an interest in the issuing entity.
Subject to paragraph i. of this note, holders of debt and instruments
such as warrants, convertible debentures, options or other non-voting
interests with rights of conversion to voting interests shall not be
attributed unless and until conversion is effected.
f. 1. A limited partnership interest shall be attributed to a
limited partner unless that partner is not materially involved,
directly or indirectly, in the management or operation of the media-
related activities of the partnership and the licensee or system so
certifies. An interest in a Limited Liability Company (``LLC'') or
Registered Limited Liability Partnership (``RLLP'') shall be attributed
to the interest holder unless that interest holder is not materially
involved, directly or indirectly, in the management or operation of the
media-related activities of the partnership and the licensee or system
so certifies.
2. For a licensee or system that is a limited partnership to make
the certification set forth in paragraph f. 1. of this note, it must
verify that the partnership agreement or certificate of limited
partnership, with respect to the particular limited partner exempt from
attribution, establishes that the exempt limited partner has no
material involvement, directly or indirectly, in the management or
operation of the media activities of the partnership. For a licensee or
system that is an LLC or RLLP to make the certification set forth in
paragraph f. 1. of this note, it must verify that the organizational
document,
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with respect to the particular interest holder exempt from attribution,
establishes that the exempt interest holder has no material
involvement, directly or indirectly, in the management or operation of
the media activities of the LLC or RLLP. The criteria which would
assume adequate insulation for purposes of this certification are
described in the Memorandum Opinion and Order in MM Docket No. 83-46,
FCC 85-252 (released June 24, 1985), as modified on reconsideration in
the Memorandum Opinion and Order in MM Docket No. 83-46, FCC 86-410
(released November 28, 1986). Irrespective of the terms of the
certificate of limited partnership or partnership agreement, or other
organizational document in the case of an LLC or RLLP, however, no such
certification shall be made if the individual or entity making the
certification has actual knowledge of any material involvement of the
limited partners, or other interest holders in the case of an LLC or
RLLP, in the management or operation of the media-related businesses of
the partnership or LLC or RLLP.
3. In the case of an LLC or RLLP, the licensee or system seeking
insulation shall certify, in addition, that the relevant state statute
authorizing LLCs permits an LLC member to insulate itself as required
by our criteria.
g. Officers and directors of a broadcast licensee, cable television
system or daily newspaper are considered to have a cognizable interest
in the entity with which they are so associated. If any such entity
engages in businesses in addition to its primary business of
broadcasting, cable television service or newspaper publication, it may
request the Commission to waive attribution for any officer or director
whose duties and responsibilities are wholly unrelated to its primary
business. The officers and directors of a parent company of a broadcast
licensee, cable television system or daily newspaper, with an
attributable interest in any such subsidiary entity, shall be deemed to
have a cognizable interest in the subsidiary unless the duties and
responsibilities of the officer or director involved are wholly
unrelated to the broadcast licensee, cable television system or daily
newspaper subsidiary, and a statement properly documenting this fact is
submitted to the Commission. [This statement may be included on the
appropriate Ownership Report.] The officers and directors of a sister
corporation of a broadcast licensee, cable television system or daily
newspaper shall not be attributed with ownership of these entities by
virtue of such status.
h. Discrete ownership interests will be aggregated in determining
whether or not an interest is cognizable under this section. An
individual or entity will be deemed to have a cognizable investment if:
1. The sum of the interests held by or through ``passive
investors'' is equal to or exceeds 20 percent; or
2. The sum of the interests other than those held by or through
``passive investors'' is equal to or exceeds 5 percent; or
3. The sum of the interests computed under paragraph h. 1. of this
note plus the sum of the interests computed under paragraph h. 2. of
this note is equal to or exceeds 20 percent.
i.1. Notwithstanding paragraphs e. and f. of this Note, the holder
of an equity or debt interest or interests in a broadcast licensee,
cable television system, daily newspaper, or other media outlet subject
to the broadcast multiple ownership or cross-ownership rules
(``interest holder'') shall have that interest attributed if:
A. The equity (including all stockholdings, whether voting or
nonvoting, common or preferred) and debt interest or interests, in the
aggregate, exceed 33 percent of the total asset value, defined as the
aggregate of all equity plus all debt, of that media outlet; and
B.(i) The interest holder also holds an interest in a broadcast
licensee, cable television system, newspaper, or other media outlet
operating in the same market that is subject to the broadcast multiple
ownership or cross-ownership rules and is attributable under paragraphs
of this note other than this paragraph i.; or
(ii) The interest holder supplies over fifteen percent of the total
weekly broadcast programming hours of the station in which the interest
is held. For purposes of applying this paragraph, the term, ``market,''
will be defined as it is defined under the specific multiple ownership
rule or cross-ownership rule that is being applied, except that for
television stations, the term ``market,'' will be defined by reference
to the definition contained in the local television multiple ownership
rule contained in paragraph (b) of this section.
2. Notwithstanding paragraph i.1. of this Note, the interest holder
may exceed the 33 percent threshold therein without triggering
attribution where holding such interest would enable an eligible entity
to acquire a broadcast station, provided that:
i. The combined equity and debt of the interest holder in the
eligible entity is less than 50 percent, or
ii. The total debt of the interest holder in the eligible entity
does not exceed 80 percent of the asset value of the station being
acquired by the eligible entity and the interest holder does not hold
any equity interest, option, or promise to acquire an equity interest
in the eligible entity or any related entity. For purposes of this
paragraph i.2, an ``eligible entity'' shall include any entity that
qualifies as a small business under the Small Business Administration's
size standards for its industry grouping, as set forth in 13 CFR
121.201, at the time the transaction is approved by the FCC, and holds:
A. 30 percent or more of the stock or partnership interests and
more than 50 percent of the voting power of the corporation or
partnership that will own the media outlet; or
B. 15 percent or more of the stock or partnership interests and
more than 50 percent of the voting power of the corporation or
partnership that will own the media outlet, provided that no other
person or entity owns or controls more than 25 percent of the
outstanding stock or partnership interests; or
C. More than 50 percent of the voting power of the corporation that
will own the media outlet if such corporation is a publicly traded
company.
j. ``Time brokerage'' (also known as ``local marketing'') is the
sale by a licensee of discrete blocks of time to a ``broker'' that
supplies the programming to fill that time and sells the commercial
spot announcements in it.
1. Where two radio stations are both located in the same market, as
defined for purposes of the local radio ownership rule contained in
paragraph (a) of this section, and a party (including all parties under
common control) with a cognizable interest in one such station brokers
more than 15 percent of the broadcast time per week of the other such
station, that party shall be treated as if it has an interest in the
brokered station subject to the limitations set forth in paragraphs
(a), (c), and (d) of this section. This limitation shall apply
regardless of the source of the brokered programming supplied by the
party to the brokered station.
2. Where two television stations are both located in the same
market, as defined in the local television ownership rule contained in
paragraph (b) of this section, and a party (including all parties under
common control) with a cognizable interest in one such station brokers
more than 15 percent of the broadcast time per week of the other such
station, that party shall
[[Page 5167]]
be treated as if it has an interest in the brokered station subject to
the limitations set forth in paragraphs (b), (c), (d) and (e) of this
section. This limitation shall apply regardless of the source of the
brokered programming supplied by the party to the brokered station.
3. Every time brokerage agreement of the type described in this
Note shall be undertaken only pursuant to a signed written agreement
that shall contain a certification by the licensee or permittee of the
brokered station verifying that it maintains ultimate control over the
station's facilities including, specifically, control over station
finances, personnel and programming, and by the brokering station that
the agreement complies with the provisions of paragraphs (b), (c), and
(d) of this section if the brokering station is a television station or
with paragraphs (a), (c), and (d) of this section if the brokering
station is a radio station.
k. ``Joint Sales Agreement'' is an agreement with a licensee of a
``brokered station'' that authorizes a ``broker'' to sell advertising
time for the ``brokered station.''
1. Where two radio stations are both located in the same market, as
defined for purposes of the local radio ownership rule contained in
paragraph (a) of this section, and a party (including all parties under
common control) with a cognizable interest in one such station sells
more than 15 percent of the advertising time per week of the other such
station, that party shall be treated as if it has an interest in the
brokered station subject to the limitations set forth in paragraphs
(a), (c), and (d) of this section.
2. Where two television stations are both located in the same
market, as defined for purposes of the local television ownership rule
contained in paragraph (b) of this section, and a party (including all
parties under common control) with a cognizable interest in one such
station sells more than 15 percent of the advertising time per week of
the other such station, that party shall be treated as if it has an
interest in the brokered station subject to the limitations set forth
in paragraphs (b), (c), (d), and (e) of this section.
3. Every joint sales agreement of the type described in this Note
shall be undertaken only pursuant to a signed written agreement that
shall contain a certification by the licensee or permittee of the
brokered station verifying that it maintains ultimate control over the
station's facilities, including, specifically, control over station
finances, personnel and programming, and by the brokering station that
the agreement complies with the limitations set forth in paragraphs
(b), (c), and (d) of this section if the brokering station is a
television station or with paragraphs (a), (c), and (d) of this section
if the brokering station is a radio station.
* * * * *
Note 4 to Sec. 73.3555: Paragraphs (a) through (d) of this section
will not be applied so as to require divestiture, by any licensee, of
existing facilities, and will not apply to applications for assignment
of license or transfer of control filed in accordance with Sec.
73.3540(f) or Sec. 73.3541(b), or to applications for assignment of
license or transfer of control to heirs or legatees by will or
intestacy, or to FM or AM broadcast minor modification applications for
intra-market community of license changes, if no new or increased
concentration of ownership would be created among commonly owned,
operated or controlled media properties. Paragraphs (a) through (d) of
this section will apply to all applications for new stations, to all
other applications for assignment or transfer, to all applications for
major changes to existing stations, and to all other applications for
minor changes to existing stations that seek a change in an FM or AM
radio station's community of license or create new or increased
concentration of ownership among commonly owned, operated or controlled
media properties. Commonly owned, operated or controlled media
properties that do not comply with paragraphs (a) through (d) of this
section may not be assigned or transferred to a single person, group or
entity, except as provided in this Note, the Report and Order in Docket
No. 02-277, released July 2, 2003 (FCC 02-127), or the Second Report
and Order in MB Docket No. 14-50, FCC 16-107 (released August 25,
2016).
Note 5 to Sec. 73.3555: Paragraphs (b) through (e) of this section
will not be applied to cases involving television stations that are
``satellite'' operations. Such cases will be considered in accordance
with the analysis set forth in the Report and Order in MM Docket No.
87-8, FCC 91-182 (released July 8, 1991), as further explained by the
Report and Order in MB Docket No. 18-63, FCC 19-17, (released March 12,
2019), in order to determine whether common ownership, operation, or
control of the stations in question would be in the public interest. An
authorized and operating ``satellite'' television station, the digital
noise limited service contour of which overlaps that of a commonly
owned, operated, or controlled ``non-satellite'' parent television
broadcast station, or the principal community contour of which
completely encompasses the community of publication of a commonly
owned, operated, or controlled daily newspaper, or the community of
license of a commonly owned, operated, or controlled AM or FM broadcast
station, or the community of license of which is completely encompassed
by the 2 mV/m contour of such AM broadcast station or the 1 mV/m
contour of such FM broadcast station, may subsequently become a ``non-
satellite'' station under the circumstances described in the
aforementioned Report and Order in MM Docket No. 87-8. However, such
commonly owned, operated, or controlled ``non-satellite'' television
stations and AM or FM stations with the aforementioned community
encompassment, may not be transferred or assigned to a single person,
group, or entity except as provided in Note 4 of this section. Nor
shall any application for assignment or transfer concerning such ``non-
satellite'' stations be granted if the assignment or transfer would be
to the same person, group or entity to which the commonly owned,
operated, or controlled newspaper is proposed to be transferred, except
as provided in Note 4 of this section.
Note 6 to Sec. 73.3555: For purposes of this section a daily
newspaper is one which is published four or more days per week, which
is in the dominant language in the market, and which is circulated
generally in the community of publication. A college newspaper is not
considered as being circulated generally.
Note 7 to Sec. 73.3555: The Commission will entertain applications
to waive the restrictions in paragraph (b) and (c) of this section (the
local television ownership rule and the radio/television cross-
ownership rule) on a case-by-case basis. In each case, we will require
a showing that the in-market buyer is the only entity ready, willing,
and able to operate the station, that sale to an out-of-market
applicant would result in an artificially depressed price, and that the
waiver applicant does not already directly or indirectly own, operate,
or control interest in two television stations within the relevant DMA.
One way to satisfy these criteria would be to provide an affidavit from
an independent broker affirming that active and serious efforts have
been made to sell the permit, and that no reasonable offer from an
entity outside the market has been received.
We will entertain waiver requests as follows:
1. If one of the broadcast stations involved is a ``failed''
station that has
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not been in operation due to financial distress for at least four
consecutive months immediately prior to the application, or is a debtor
in an involuntary bankruptcy or insolvency proceeding at the time of
the application.
2. For paragraph (b) of this section only, if one of the television
stations involved is a ``failing'' station that has an all-day audience
share of no more than four per cent; the station has had negative cash
flow for three consecutive years immediately prior to the application;
and consolidation of the two stations would result in tangible and
verifiable public interest benefits that outweigh any harm to
competition and diversity.
3. For paragraph (b) of this section only, if the combination will
result in the construction of an unbuilt station. The permittee of the
unbuilt station must demonstrate that it has made reasonable efforts to
construct but has been unable to do so.
* * * * *
Note 9 to Sec. 73.3555: Paragraph (a)(1) of this section will not
apply to an application for an AM station license in the 1605-1705 kHz
band where grant of such application will result in the overlap of the
5 mV/m groundwave contours of the proposed station and that of another
AM station in the 535-1605 kHz band that is commonly owned, operated or
controlled. Paragraphs (d)(1)(i) and (ii) of this section will not
apply to an application for an AM station license in the 1605-1705 kHz
band by an entity that owns, operates, controls or has a cognizable
interest in AM radio stations in the 535-1605 kHz band.
* * * * *
Note 12 to Sec. 73.3555: Parties seeking waiver of paragraph
(d)(1) of this section, or an exception pursuant to paragraph (d)(2) of
this section involving failed or failing properties, should refer to
the Second Report and Order in MB Docket No. 14-50, FCC 16-107
(released August 25, 2016).
[FR Doc. 2020-00671 Filed 1-28-20; 8:45 am]
BILLING CODE 6712-01-P
