Federal Communications Commission (FCC).
In this document, the Commission adopted a number of procedures and procedural changes designed to streamline the process of allocating new FM channels and modifying the communities of license of existing radio stations, and to reduce current backlogs in proceedings to amend the FM Table of Allotments. In the R&O, the Commission also announced that it would lift a freeze on all new petitions to amend the FM Table Start Printed Page 76209of Allotments, as of the effective date of the R&O.
Effective January 19, 2007.Start Further Info
FOR FURTHER INFORMATION CONTACT:
For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams at 202-418-2918, or via the Internet at Cathy.Williams@fcc.gov.End Further Info End Preamble Start Supplemental Information
Paperwork Reduction Act of 1995 Analysis
The Report and Order (“R&O”) contains new and modified information collection requirements, which were proposed in the NPRM and are subject to the Paperwork Reduction Act of 1995 (“PRA”). These information collection requirements were submitted on July 19, 2005, to the Office of Management and Budget (“OMB”) for review under Section 3507(d) of the PRA. In addition, the general public and other Federal agencies were invited to comment on these information collection requirements in the NPRM. The Commission further notes that pursuant to the Small Business Paperwork Relief Act of 2002, it previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” The Commission received no comments concerning these information collection requirements. On September 15, 2005, the Commission obtained OMB approval for these information collection requirements, encompassed by OMB Control No. 3060-0027. This R&O adopts the information collection requirements, as proposed.
Because, as detailed in the R&O, the Commission extends its new community of license minor modification procedures to FM NCE licensees and permittees, FCC Form 340 must be modified to accommodate the new information collection requirements of those procedures. The procedural requirements for FM NCE applicants for change of community of license will become effective after approval by OMB. The Commission published a separate Federal Register Notice seeking public comment on this new information collection requirement on November 22, 2006 (see 71 FR 67581 (November 22, 2006)). Upon OMB approval, the Commission will issue a public notice announcing the effective date of this rule.
This is a synopsis of the Commission's Report and Order (R&O), FCC 06-163, adopted November 3, 2006, and released November 29, 2006. The full text of the R&O is available for inspection and copying during regular business hours in the FCC Reference Center, 445 Twelfth Street, SW., Room CY-A257, Portals II, Washington, DC 20554, and may also be purchased from the Commission's copy contractor, BCPI, Inc., Portals II, 445 Twelfth Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. via their Web site, http://www.bcpi.com, or call 1-800-378-3160. This document is available in alternative formats (computer diskette, large print, audio record, and Braille). Persons with disabilities who need documents in these formats may contact Brian Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or via e-mail at Brian.Millin@fcc.gov.
Synopsis of Order
1. With this Report and Order (“R&O”), the Commission makes certain changes to its procedures for allotting and assigning channels, classes, and communities of license for AM and FM broadcast stations, as proposed in the original Notice of Proposed Rule Making (“NPRM”) in this proceeding. Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services, Notice of Proposed Rule Making, 20 FCC Rcd 11169 (2005). Specifically, the Commission makes changes of community of license for commercial full-power AM standard band and commercial and noncommercial educational (“NCE”) full-power FM broadcast stations a minor modification, to be accomplished by first come-first served minor modification application, subject to certain procedural requirements described below. To accommodate this change, the FM Table of Allotments, 47 CFR 73.202, shall henceforth contain only vacant allotments, and authorized full-power non-reserved band FM facilities already occupying allotments shall be listed only in the Media Bureau's Consolidated Data Base System (“CDBS”). As it does now, CDBS shall reflect the authorizations granted to those broadcasters operating on the listed channels and communities, and which are entitled to protection under our current rules. The Commission further adopts the proposal that it require allocations proponents simultaneously to file Form 301 applications with their allocations proposals, to submit the designated Form 301 filing fee, and to certify on Form 301 that they intend to apply to participate in auction bidding for the allotment should their proposal be adopted. The Commission also adopts the proposal to modify its rules to allow electronic filing of allocations documents. The Commission also lifts the current freeze on the filing of new petitions to amend the FM Table of Allotments, as of the effective date of the R&O. At this time, however, the Commission does not adopt the proposal to limit the number of proposals to add additional allotments or modify vacant allotments within a single rule making proposal, although it delegates to staff the discretion to return unreasonably large proposals or counter-proposals, if warranted. The Commission also declines to change its policy disfavoring the removal of a community's sole local transmission service to become another community's first local service, instead reiterating the need for parties contemplating such moves to seek waiver of the policy using existing law, and to demonstrate clearly the public interest benefits of such moves that would outweigh application of the policy in particular cases.
2. The Commission adopts the proposal to allow AM and FM full-power stations to change community of license by first come-first served minor modification application. Most commenters favored this proposal, and some opponents would mute their objections if the Commission adopted certain procedural safeguards. As the Commission tentatively concluded in the NPRM, and upon examination of the record in this proceeding, the Commission finds that the public interest would be served by streamlining current city of license modification procedures and employing certain safeguards to ensure that Section 307(b) of the Communications Act of 1934, as amended (47 U.S.C. 307(b)) (“Section 307(b)”) and other concerns are accommodated. The Commission also concludes that, given the maturity of the FM service, there is no need to continue utilizing rule making procedures to modify FM stations' communities of license merely because such procedures provide an opportunity to counter-propose allotments. The use of first come-first served procedures is consistent with the doctrine enunciated in Ashbacker v. U.S., 326 U.S. 327 (1945), and the Commission believes Start Printed Page 76210that there have been ample opportunities for potential counter-proponents to propose new FM station allotments during the 43 years that the Commission has relied on the current Table of Allotments. Further, all parties will continue to have reasonable opportunities to make such proposals. Moreover, to the extent that commenters object to the lack of opportunity to file competing applications, because the Commission proposes to limit such applications to those mutually exclusive with the applicant's existing facilities, foreclosing competing applications does not, as a practical matter, deprive potential applicants of opportunities for comparative consideration. Finally, the Commission is convinced that adopting the proposed new procedure will preserve limited agency resources, reduce the time needed to process community of license changes and, accordingly, expedite the provision of enhanced broadcast service to the public.
3. Community of license changes for commercial and NCE full-power AM standard band and FM broadcast licensees may be filed as minor modification applications. These minor modification applications processed on a first come-first served basis will be limited to those applications where the proposed daytime facilities are mutually exclusive with the applicant's existing daytime facilities. Related minor change applications must be submitted concurrently, and will be subject to the requirements and restrictions that apply to contingent minor modification application filings. See 47 CFR 73.3517(e). Required reference coordinate changes (which are not set out in the Table of Allotments) will not count against the current limit of four contingent minor modification applications that may be filed simultaneously. Parties seeking to employ this procedure must file, with their applications, a detailed exhibit demonstrating that the proposed change constitutes a preferential arrangement of allotments under Section 307(b) of the Act as compared to the existing allotment(s). The Commission will require a narrative showing that the proposed community of license change represents a net service benefit, under the Section 307(b) priorities and policies used since 1982. See Revision of FM Assignment Polices and Procedures, 90 FCC 2d 88 (1982). Applicants also will be required to confirm the community status of the proposed new community of license, demonstrating that it constitutes a community suitable for allotment purposes. Between our body of Section 307(b) precedent and the procedural safeguards discussed herein, these procedures will ensure that grant of such applications comports with the Commission's statutory mission under Section 307(b) to distribute radio service fairly, efficiently, and equitably. Additionally, as noted in the NPRM, our minimum distance separation standards and spectrum congestion will limit substantial urban migration. The new procedure will also address the concerns that led the Commission in 1999 to decline to treat such applications as minor changes as well as most commenters' Section 307(b) concerns. See 1998 Biennial Regulatory Review—Streamlining of Radio Technical Rules in Parts 73 and 74 of the Commission's Rules, First Report and Order, 14 FCC Rcd 5272, 5278 (1999).
4. The Commission adopts certain additional safeguards to ensure that the public interest is served by the new procedures introduced herein. In performing Section 307(b) analyses under the new procedures adopted herein, the Commission will carefully consider whether an application would promote the fair, efficient, and equitable distribution of radio service. Under this analysis, a new permittee that obtained its permit after being awarded a dispositive Section 307(b) preference in an AM auction filing window should not be allowed to change communities prior to the commencement of broadcast operations in the originally authorized community unless the new community would compare equally or more favorably to the communities specified by the other mutually exclusive applicants in the auction Section 307(b) analysis. For example, an AM auction applicant that received a Priority (3) preference by proposing first local service to a larger community than that specified in a competing applicant's first local service proposal could not seek to modify the initial construction permit by later specifying a community with a smaller population than the competitor's proposed community. Otherwise, AM auction applicants could initially select their communities solely on the basis of providing the greatest Section 307(b) advantage and avoiding an auction, without actually serving those communities. Likewise, the Commission will not award rapid, successive community changes that sidestep the mutual exclusivity requirement of the new procedure. Accordingly, any application proposing a community of license change filed by a permittee that has not built its current permitted facilities and that is not mutually exclusive with either the applicant's built and operating facilities or its original allotment shall be returned as unacceptable for filing. The analysis set forth in Faye and Richard Tuck, Inc., Memorandum Opinion and Order, 3 FCC Rcd 5374 (1988), will be carefully applied in considering Section 307(b) showings submitted in support of first come-first served applications to change communities of license, and that a first local service preference will not be awarded to a community that is largely interdependent with the Urbanized Area or surrounding communities. The Commission declines to adopt a service floor requirement such as that suggested in the NPRM, believing that existing Section 307(b) priorities and policies are sufficient to safeguard existing service. The Commission finds that existing procedural requirements, along with local public notice requirements (see 47 CFR 73.3580(c)(3), (d)(3), and (f)), will provide reasonable notice and opportunity for interested parties to comment under the new procedures introduced in the R&O. Broadcasters and members of the public may participate in the process of evaluating the grantability of a minor modification application to change community of license by filing informal objections. Arguments, evidence, and precedent may be presented in an informal objection as readily as in a more formal petition to deny, and are subject to the same evidentiary and legal standards. Moreover, the statutory right to file a petition for reconsideration, enumerated in Section 405 of the Communications Act of 1934, as amended (47 U.S.C. 405), provides a safety net for both relevant public interest considerations and participation by interested parties. Further, with regard to notice of applications, such minor modification applications will be listed in the Media Bureau's CDBS-generated “Broadcast Applications” public notices, much as AM major change applications are listed now. Due to the importance of local broadcast service to communities, however, the Commission believes it is vital that residents are provided adequate notice to enable them to file informal objections to, or comments in support of, a particular move. Thus, the Commission adopts its proposal to require the proponent to give local public notice in connection with such applications, notwithstanding that minor modification applicants generally need not provide local public notice. See 47 CFR 73.3580(a). Specifically, applicants under this new procedure Start Printed Page 76211shall provide local public notice as set forth in Sections 73.3580(c)(3), (d)(3), and (f) of the Commission's rules (47 CFR 73.3580(c)(3), (d)(3), and (f)), and shall certify such compliance in Form 301. The Media Bureau shall also provide notice in the Federal Register that an application to modify an AM or FM station's community of license has been filed. Moreover, the Bureau will not act upon such an application until at least 60 days after publication in the Federal Register. The combination of local public notice under 47 CFR 73.3580, publication in the Federal Register, and the 60-day prohibition on Commission action will provide interested parties with ample notice and opportunity to comment on proposed community of license changes under our new procedures. Applicants themselves need only comply with the local public notice procedures, which are well known to licensees and permittees. The newspaper publication requirements of 47 CFR 73.3580(c)(3) will require the applicant to publish both in the current community of license and the proposed community, so as to give maximum notice to all residents potentially affected by grant of the application.
5. This new procedure will apply both to commercial full-service broadcast stations and also to full-power NCE stations. NCE FM allotments in the reserved band are not included in the Table of Allotments (see 47 CFR 73.201, 73.202(a), and 73.501(a)), and as non-tabled facilities such licensees must undergo a process similar to that undergone by AM licensees if they wish to change their communities of license, in that they must wait for an NCE filing window before applying to change communities. However, while reserved band NCE FM stations are non-tabled, the reserved band resembles the non-reserved FM band in most other respects, including maturity of the service, application of spacing rules, and spectrum congestion near larger cities. Because of these similarities, the Commission finds that the rationales for adopting the new procedure, such as streamlining of the current two-step process and maturity of the FM service, apply equally to NCE stations, and thus the new procedure will apply to NCE stations. However, the new procedures will not apply to expanded band AM stations, as allowing community of license changes by minor modification application for such stations could jeopardize the Commission's ability to develop a comprehensive plan for additional expanded band AM licensing.
6. There are currently fewer than 25 pending community change rule making proceedings for which a Report and Order has not been released. These parties will not be required to dismiss their rule making petitions and refile their proposals in the form of an application. However, a rule making petitioner that has submitted a community of license change proposal that could, under the new procedures, be filed as a minor modification application will be permitted to withdraw its rule making petition and to resubmit its proposal as an application on the effective date of the new procedure. A party choosing to dismiss a rule making petition and refile as an application may adversely affect its position with respect to earlier filed petitions for rule making or earlier or simultaneously filed applications. Parties opting to dismiss and refile should carefully consider whether doing so would be advantageous to their cut-off rights.
7. In order to accommodate the new procedure, the Commission will remove the allotments of currently authorized and awarded FM facilities from the Table of Allotments (47 CFR 73.202). Currently, all vacant FM allotments as well as FM assignments (that is, channels and communities occupied by authorized facilities) are listed in the Table of Allotments. All of these represent allotments and assignments added to the Table of Allotments through notice-and-comment rule making procedures over more than 40 years of the Table of Allotments' existence. Vacant allotments, which must be protected by all subsequent filings, serve as placeholders for future facilities. The same cut-off principles will apply to implementing applications filed under our comparative commercial and NCE procedures. Once an assignment is made, i.e., upon “reservation,” this record supersedes the vacant allotment. Thus, it is unnecessary for “occupied” allotments (that is, those that are licensed, permitted, or reserved) to be listed in the Table of Allotments—the authorizations and reserved assignments, reflected in CDBS, protect those facilities and govern their technical facilities and communities of license. Once a station is authorized, application procedures provide reasonable opportunities to interested parties to comment on or object to further modifications of authorized facilities. For this reason, as well as the maturity of the FM service discussed above, it is no longer necessary to change authorized non-reserved band FM stations' attributes through notice-and-comment rule making. Thus, the Commission shall amend the Table of Allotments to reflect only vacant allotments that do not correspond to an authorized station or reserved assignment. Assignments for licensed, permitted, and reserved facilities (those for which applications are pending) will be reflected solely in CDBS. In CDBS, channel/frequency and community assignments for currently authorized stations are represented as “FA USE.” “FA RSV” is used to designate assignments for winning auction bidders, NCE tentative selectees, and proposed assignments for stations that have filed, or have been directed to file, modification applications for authorized stations. These designations will continue to be used in CDBS to indicate the status and cut-off rights of assignments. Changes to the channel, class, or community of existing facilities will constitute changes to the individual authorizations or applications, rather than to 47 CFR 73.202, and therefore may be made through minor modification application procedures (as adjacent channel and class modifications have been made under the Commission's “one-step” procedures). However, the Commission will permit an FM non-reserved band permittee or licensee to use notice and comment procedures to modify its current assignment to specify a non-adjacent class upgrade or downgrade in the same community of license. This action is taken to preserve the facility improvement options now set forth at Section 1.420(g)(1) and (2). The Commission will retain the Table for vacant allotments and will continue to use rule making procedures to establish new channel allotments, as the procedures for new allotments allow for efficient consideration of all proposals and counterproposals in keeping with the Commission's Section 307(b) obligations. While Section 307(b) considerations enter into community of license changes to authorized facilities as well, the same detailed rule making procedures are not as essential when dealing with changes to authorized stations not subject to competing applications. Thus, new allotments and changes to vacant allotments will continue to be made via notice-and-comment rule making procedures. To the extent that a proposal or counter-proposal is contingent upon one or more such changes to vacant allotments, such proposals will also continue to be made via rule making proceedings. However, as discussed below, the Media Bureau will return any rule making proposals or Start Printed Page 76212counterproposals that do not propose changes to vacant allotments, except for notice and comment filings submitted pursuant to Section 1.420(g)(1) or (2).
8. A common aspect of FM allotment petitions and counterproposals, including city of license modifications, are proposed channel substitutions for both vacant allotments and authorized facilities. Rule making proponents are limited to two “involuntary” channel substitutions for authorized stations. See Columbus, Central City, Crookston, Kearney, Lexington, McCook, and Valentine, Nebraska; and Hill City, Kansas, Report and Order, FCC 86-59, 59 RR 2d 1184 (MMB 1984) (“Columbus, Nebraska”). Current procedures impose no limit on voluntary, i.e., consensual, channel substitutions. The bifurcated procedures adopted in the R&O for allotments and assignments require new procedures for these city of license application and rule making components. Channel substitutions for authorized facilities will be treated as “minor” changes. Voluntary channel changes must be proposed in the Form 301 applications as set forth below. Involuntary channel changes for authorized stations must be specified in the Form 301 application, but will continue to be limited to two under the Columbus, Nebraska policy. The staff will issue an order to show cause with regard to an involuntary channel change if it determines that the entire city of license modification proposal is acceptable for filing. These procedures accord with our current procedures, under which an order to show cause is issued when a rule making proponent seeks an involuntary change to another facility. Proposals to substitute channels for vacant allotments will be filed in accordance with established rule making procedures.
9. Under these revised procedures, certain FM city of license modification proposals may consist of several contingent applications. Some “hybrid” filings will consist of both applications and rule making filings. Both the “pure” and “hybrid” proposals will be subject to the requirements and restrictions that apply to contingent coordinated FM minor change filings. See 47 CFR 73.3517(c). It is not necessary to prohibit contingent city of license modification proposals. The staff currently and regularly handles rule making proposals involving several different allotments and communities. All contingent applications filed pursuant to the procedures adopted here will be subject to identical Section 307(b) analysis. The Commission is satisfied that this analysis will function effectively in the application context, just as it does in the rule making context, to safeguard the goals and principals of Section 307(b). All related proposals must be simultaneously filed and clearly cross-reference each of the other component filings. The dismissal, denial or return of any component filing will result in the dismissal or return of all the related filings. Both “pure” application and “hybrid” filings will be subject to the four-application limit. Both voluntary and involuntary channel changes for authorized stations will count toward the four-application limit. Those components filed pursuant to rule making procedures will not count toward the four-application limit.
10. In the NPRM, the Commission showed that a small percentage of petitioners seeking new allotments in the FM Table of Allotments (also known as “drop-in” petitions) were responsible for an inordinate percentage of the drop-in petitions filed. To date, those drop-in proponents have not actively participated in the auctions process. Thus, there appears to be a fundamental disconnect between those adding new allotments and those seeking to obtain authorizations pursuant to the Commission's competitive bidding procedures. Accordingly, in the NPRM the Commission proposed a mechanism to encourage only bona fide proponents to seek to add channels to the Table. The mechanism proposed was to require an allocations proponent simultaneously to file a Form 301 application, and pay the appropriate fee, with its petition for rule making. The applicant would also certify in the application that, if its allotment was adopted, it intended to apply to participate in the auction for the new channel. That form would then become the proponent's application for construction permit, should the channel be allotted and the petitioner be the winning bidder. Previously, rule making proponents for new FM allotments needed only to state that they were interested in applying for the station if allotted, and paid no filing fee until and unless the allotment was made and an application filed. The Commission believes that requiring Form 301 and the concurrent filing fee with a petition for rule making, which is currently not required, would discourage insincere proponents, and further believes, as stated in the NPRM, that the public interest is best served by processing only those proposals for new allotments filed by bona fide potential applicants, rather than devoting scarce staff resources to processing allotment proposals that may represent less-than-optimal choices to actual auction participants. Accordingly, the Commission adopts this proposal. A party filing a petition for rule making to add a new allotment to the Table, whether as an original proposal or as a counterproposal, must simultaneously file a Form 301 application specifying the proposed facilities. A separate Form 301 and fee must be filed for each proposed new allotment. The application shall include a certification that, if the FM channel allotment requested is adopted, petitioner/counter-proponent intends to apply to participate in the auction of the channel allotment requested and specified in this application. In the event the petitioner or counter-proponent is the high bidder for the allotment, it need only file an amendment to its Form 301 application, if necessary, and will not pay a further filing fee. However, while the Commission need not refund application filing fees paid by applicants whose applications are not granted (see Establishment of a Fee Collection Program to Implement the Provisions of the Omnibus Budget Reconciliation Act of 1989, Memorandum Opinion and Order, 6 FCC Rcd 5919, 5925 n.40 (1991), citing Conference Report, 1989 U.S. Code Cong. & Ad. News at 3036), the Commission recognizes the inequity in retaining filing fees from parties whose rule making proposals are not granted, as the unfavorable disposition of their proposals would render their Form 301 applications a nullity. See 47 CFR 1.1113(a)(4). Refunding the filing fee of a successful rule making proponent that loses at auction places the proponent in the same position as competing bidders who were not required to file Form 301 pre-auction. Accordingly, the Commission will entertain waiver requests, pursuant to 47 CFR 1.1117, filed by a petitioner for a new allotment that files a Form 301 for the allotment, and that either has its allotment proposal denied in favor of another proposal or counterproposal, or that applies for the allotment and qualifies to bid for the allotment at auction, if the allotment is awarded to another higher-bidding applicant. A rule making proponent whose proposal is rejected may file its waiver request only after the proceeding is terminated and has become final. A successful rule making proponent who is not the winning bidder for the allotment may file its waiver request only after release of a public notice announcing the winning bidders in the auction. Provided that the waiver applicant has acted in good faith and in accordance with our Rules and Start Printed Page 76213statutes, the Commission will normally grant such waiver requests and issue refunds under 47 CFR 1.1113(a)(4) or 1.1113(a)(5), as applicable. However, such a waiver request will not be viewed favorably if, for example, the rule making petition for a new allotment is returned due to patent legal or engineering defects. Similarly, a successful petitioner that fails to apply to participate in the auction or qualify to bid on the new allotment will not receive a waiver, nor will a petitioner that is the high bidder but either withdraws its high bid or is found unqualified to be the permittee.
11. In the NPRM, the Commission proposed to supplement the policy announced in Columbus, Nebraska, which limited to two the number of proposals for involuntary channel substitution changes to the Table of Allotments. The Commission specifically proposed to limit the number of changes to the Table that a party might propose or counter-propose to five, absent waiver based on a showing of significant public interest benefits. It was noted that parties sometimes file proposals (frequently, counterproposals) involving large numbers of changes to facilities, which frequently consumed large amounts of staff resources, and the Commission tentatively concluded that the staff could more efficiently dispose of these proceedings if proponents were required to break them apart into several discrete components. After reviewing comments and upon further consideration, the Commission has determined that it should defer acting on this proposal while it determines the effects on the efficiency of our allocations procedures of the other proposals adopted in the R&O. However, due to concern about the effects of complex proposals and counterproposals on the staff's ability efficiently to process changes to the Table of Allotments, the Commission instructs the staff carefully to review all proposals of five or more changes to the Table of Allotments, including those that may contain fewer than five proposals per party but that are interrelated, such that one party's proposal is dependent on others. The staff may, in its discretion, break such proceedings into smaller ones, return those proposals or counterproposals that do not require changes to vacant allotments and may be filed as minor modification applications, or in extreme cases return proposals or counterproposals in their entirety. The Commission reserves the right to revisit this proposal if deemed necessary in the public interest and to preserve the integrity of the FM allotment and assignment plan.
12. In the NPRM, the Commission proposed to eliminate the existing prohibition against electronic filing of petitions filed in broadcast allotment proceedings, set forth in 47 CFR 1.401(b). Electronic filing has brought substantial benefits in other application contexts, specifically by streamlining processes and enhancing the accuracy and reliability of Commission databases, and those benefits should be extended to the allocations process. Therefore, the Commission adopts the proposal to eliminate from 47 CFR 1.401(b) the prohibition against electronic submission of petitions for rule making in broadcast allocations proceedings. The Media Bureau and Consumer and Governmental Affairs Bureau will announce, by public notice, such procedures as they will devise for submission of broadcast allocations petitions and other documents. It should be noted that, as these are restricted proceedings, such procedures must provide for service on all interested parties, as defined in the Commission's Rules (see 47 CFR 1.1202(d)), by electronic or other appropriate means.
13. In the NPRM, the Commission sought comment on First Broadcasting Investment Partners, LLC's (“First Broadcasting”) proposal to abandon the Commission's existing policy against removing the sole local transmission service at a community in order to allow it to become the first local transmission service at another community. First Broadcasting contended that this policy undermines the goal of spectrum efficiency which, in its opinion, should favor provision of first local transmission service to the greatest population. First Broadcasting proposed a presumption that it is in the public interest to permit a station providing a community's sole local service to move to another community provided that (a) at least two other stations provide principal community service to the entirety of the current community, (b) the station would be the first local transmission service in the proposed community, (c) the station moving would provide 70 dBμ service to a larger population in the proposed community of license, and (d) the move would not cause any short spacing and/or would fully or partially resolve existing short spacing. First Broadcasting stated that its proposal would enable the staff to consider multiple public interest benefits of such proposed community of license changes, rather than ending its analysis at preservation of local service, and would ensure that the staff's Section 307(b) analysis will be conducted in an objective manner. After careful consideration and review of comments, the Commission declines to adopt this proposal. The Commission rejects the suggestion that objectivity in decision making can only be achieved by application of a defined multi-part test. Moreover, the Commission's experience shows that the reasons given by applicants for wanting to move the sole local service at a community are varied, and are better suited to a case-by-case waiver analysis than to a “one size fits all” test. Thus, the Commission retains its policy disfavoring removal of the sole local transmission service at a community, subject to waiver upon a detailed showing that retention of local service at a station's current community is contrary to the public interest, convenience, and necessity. For example, a showing that circumstances have changed to the extent that the current community of license is no longer a licensable community (due, perhaps, to a precipitous decline in population or significant loss of industry), or is no longer independent of a larger urban area, in the appropriate case might support a waiver to allow move of the station to serve a larger or more independent community. An AM licensee that has lost its transmitter site, and due to terrain or lack of available land cannot find a substitute site that would provide adequate community coverage, might also be able to present a compelling case for waiver. The foregoing examples are offered by way of illustration only, and are neither meant to be exhaustive nor are they meant to imply that a bare allegation of any of these circumstances will result in automatic waiver. All waiver requests are reviewed with an eye toward the particular facts as well as the context in which those facts are presented. Applicants are reminded that the waiver standard requires a detailed recitation of facts and circumstances, including documentary or testimonial (affidavit) evidence where appropriate, demonstrating special circumstances that warrant deviation from the policy, and showing that such deviation serves the public interest. See Northeast Cellular Telephone Co. v. F.C.C., 897 F.2d 1164, 1166 (D.C. Cir. 1990), citing WAIT Radio v. F.C.C., 418 F.2d 1153, 1157-59 (D.C. Cir. 1969). For example, the bare assertion that a station has lost its site, absent evidence showing an exhaustive but fruitless search for sites from which a sole local transmission service could comply with our technical rules, would not suffice to justify grant of a waiver to allow the station to move Start Printed Page 76214to another community. The standard for waiver of a Commission policy is high for a reason. The Commission's rules and policies impose ongoing community service obligations on broadcasters. Moreover, the Commission has concluded that Section 307(b) policies must take into account the public's legitimate expectation that existing broadcast services will be maintained. These considerations will necessarily limit the ability of licensees to move to larger or more lucrative markets. Thus, a broadcaster that sought to locate in a community is expected to serve that community, as is a broadcaster that purchased the sole local transmission service in a particular community. In the latter case, no broadcaster should invest in a station with the expectation that the Commission will routinely approve a request to move to a different community. However, in the rare but appropriate case, Commission policy permits the sole local broadcaster in a community to show that the public interest supports a move to a new community.
14. In the NPRM, the Commission announced a freeze on the filing of new petitions to amend the Table of Allotments, to enable it to complete this proceeding without adding new rule making proceedings that might better be filed under new procedures, and to help eliminate allocations backlogs. The freeze on filing new petitions to amend the Table of Allotments will be lifted on the effective date of this R&O. Because the procedural changes in this R&O will not become effective until 30 days after publication in the Federal Register, at that time applicants may file minor modification applications for changes to community of license of full-power FM, noncommercial educational FM, and standard-band AM stations. Similarly, applicants wishing to file coordinated, contingent minor change applications and petitions for rule making as discussed herein must wait until the new community of license application procedures become effective before filing either minor change applications or rule making petitions.
15. Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”)  an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rule Making (“NPRM”) to this proceeding. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. This present Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA.
16. Need for, and Objectives of, the Report and Order. This Report and Order (“R&O”) adopts rule changes and procedures to streamline the Commission's procedures for adding and modifying certain broadcast station allotments, and to streamline the Commission's FM commercial allotment procedures by allowing electronic filing of rule making petitions to change the FM Table of Allotments. In particular, the rules adopted by this R&O, as required by statute, will permit broadcast permittees and licensees of all full-service AM and FM broadcast stations (except for AM stations in the expanded band) to change their stations' communities of license by filing a minor modification application rather than through rule making proceedings. The new rules also will require parties seeking to add new allotments to the FM Table of Allotments simultaneously to file Form 301 for the new facilities at the time of filing a petition for rule making, rather than after auction. Finally, the new rules eliminate a rule-based prohibition against proponents of new channels in the FM Table of Allotments filing petitions for rule making electronically.
17. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.
18. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small government 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).
19. The subject rules and policies potentially will apply to all AM and commercial FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has $6.5 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under another NAICS number. According to Commission staff review of BIA Publications, Inc. Master Access Radio Analyzer Database on November 2, 2006, about 10,449 (95%) of 10,979 commercial radio stations have revenue of $6.5 million or less. First Broadcasting, which filed the Petition for Rule Making in this proceeding, is included in the definition of “small business.” We note, however, that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by any ultimate changes to the allocation rules.
20. Description of Projected Reporting, Record Keeping and other Compliance Requirements. As described, certain rules and procedures will change, but at most will only minimally increase the reporting requirements on existing and potential radio licensees and permittees, insofar as some of the proposed changes require the filing of application forms rather Start Printed Page 76215than rule making petitions. However, the forms to be filed are existing FCC application forms with which broadcasters are already familiar, so any additional burdens are minimal. Applicants seeking to modify a station community of license will need to include, with their Form 301 applications, an exhibit detailing how the proposed community change comports with the policies underlying Section 307(b) of the Communications Act of 1934, as amended. However, current practice requires that rule making proponents demonstrate that the proposed new community of license represents a superior arrangement of allotments under Section 307(b), so any new burdens are minimal. The new rule will also require that applicants for a new community of license provide local public notice in local newspapers and on air. These will impose additional burdens upon applicants. These burdens are identical to those imposed upon applicants for new broadcast facilities and applicants seeking to assign or transfer broadcast licenses. As such, any new burdens are familiar to broadcast licensees, are already set forth in our rules, and are necessary to ensure that members of the public are notified of proposed changes and are afforded the opportunity to comment.
21. Additionally, parties seeking to add new allotments to the FM Table of Allotments must simultaneously file FCC Form 301 with their petitions to add new allotments, and pay the Form 301 filing fee at that time. This requires petitioners for new allotments to file Form 301 earlier in the process than is the case now. However, it is the same Form 301 as is currently filed by successful auction bidders. The only difference from Form 301 currently filed by applicants consists of a certification that the proponent of the new FM allotment will participate in the auction for the new channel if allotted. To the extent that the proponent/applicant is not the winning bidder for the new allotment, the applicant may apply for waiver and refund of the fee; however, the burden will be increased to the extent that such an unsuccessful bidder would not currently be required to file Form 301.
22. Steps Taken to Minimize Significant Impact of Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
23. The procedural changes adopted in the R&O for adding FM channel allotments and changing stations' communities of license are designed to make the process faster and more efficient, reducing delays to broadcasters in implementing new radio service. The procedure for changing a station's community of license will move from the current two-step process to a one-step minor application process, thus saving applicants time and resources. The Commission will require that petitioners for new FM channel allotments simultaneously file Form 301, and pay the prescribed filing fee for Form 301. Although this requires payment of the filing fee earlier than is the case in current practice, to the extent that petitioners ultimately obtain construction permits for these allotments, it is a fee they would be required to pay in any event, therefore this requirement should impose a minimal burden on petitioners. The Commission also eliminates the current prohibition on electronic filing of petitions to amend the FM Table of Allotments and comments on such proposals. Electronic filing, when implemented, will reduce burdens on all broadcasters, including small entities, by reducing the time and effort spent in preparing and submitting such documents in hard copy, as is the current practice.
24. Report to Congress. The Commission will send a copy of the R&O, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of the R&O, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the R&O and FRFA (or summaries thereof) will also be published in the Federal Register.
25. Accordingly, it is ordered, pursuant to the authority contained in Sections 1, 2, 4(i), 303(r), and 307 of the Communications Act of 1934, 47 U.S.C 151, 152, 154(i), 303(r), and 307, this Report and Order is hereby adopted and the Commission's Rules are hereby amended as set forth in the Rule Changes.
26. It is further ordered that the rule amendments set forth in the Rule Changes will become effective 30 days after publication in the Federal Register.
27. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.Start List of Subjects
List of Subjects
End List of Subjects Start Signature
Federal Communications Commission.
William F. Caton,
Rule ChangesStart Amendment Part
For the reasons discussed in the preamble, the Federal Communications Commission amendsEnd Amendment Part Start Part
PART 1—PRACTICE AND PROCEDUREEnd Part Start Amendment Part
1. The authority citation for part 1 continues to read as follows:End Amendment Part Start Amendment Part
2. Section 1.401 is amended by revising paragraph (b) and the last sentence of paragraph (d) to read as follows:End Amendment Part
(b) The petition for rule making shall conform to the requirements of §§ 1.49, 1.52, and 1.419(b) (or § 1.420(e), if applicable), and shall be submitted or addressed to the Secretary, Federal Communications Commission, Washington, DC 20554, or may be submitted electronically.
(d) * * * Petitions to amend the FM Table of Allotments must be accompanied by the appropriate construction permit application and payment of the appropriate application filing fee.
3. Section 1.420 is amended by revising the section heading, revisingEnd Amendment Part
(g) The Commission may modify the license or permit of a UHF TV station to a VHF channel in the same community in the course of the rule making proceeding to amend § 73.606(b), or it may modify the license or permit of an FM station to another class of channel through notice and comment procedures, if any of the following conditions are met:
(1) There is no other timely filed expression of interest, or
(2) If another interest in the proposed channel is timely filed, an additional equivalent class of channel is also allotted, assigned or available for application.
Note to Paragraph (g):
In certain situations, a licensee or permittee may seek an adjacent, intermediate frequency or co-channel upgrade by application. See § 73.203(b) of this chapter.
Note to § 1.420:
The reclassification of a Class C station in accordance with the procedure set forth in Note 4 to § 73.3573 may be initiated through the filing of an original petition for amendment of the FM Table of Allotments. The Commission will notify the affected Class C station licensee of the proposed reclassification by issuing a notice of proposed rule making, except that where a triggering petition proposes an amendment or amendments to the FM Table of Allotments in addition to the proposed reclassification, the Commission will issue an order to show cause as set forth in Note 4 to § 73.3573, and a notice of proposed rule making will be issued only after the reclassification issue is resolved. Triggering petitions will be dismissed upon the filing, rather than the grant, of an acceptable construction permit application to increase antenna height to at least 451 meters HAAT by a subject Class C station.
PART 73—RADIO BROADCAST SERVICESEnd Part Start Amendment Part
4. The authority citation for part 73 continues to read as follows:End Amendment Part Start Amendment Part
5. Section 73.202 is amended by revising paragraph (a) introductory text, paragraph (a)(2) and paragraph (b), the Note following paragraph (a)(2) remains unchanged, the following revisions are to read as follows:End Amendment Part
(a) General. The following Table of Allotments contains the channels (other than noncommercial educational Channels 201-220) designated for use in communities in the United States, its territories, and possessions, and not currently assigned to a licensee or permittee or subject to a pending application for construction permit or license. All listed channels are for Class B stations in Zones I and I-A and for Class C stations in Zone II unless otherwise specifically designated. Channels to which licensed, permitted, and “reserved” facilities have been assigned are reflected in the Media Bureau's publicly available Consolidated Data Base System.
(2) Each channel listed in the Table of Allotments reflects the class of station that is authorized to use it based on the minimum and maximum facility requirements for each class contained in § 73.211.
(b) Table of FM Allotments.
|Grand Canyon Village||273C1|
|Start Printed Page 76217|
|Steamboat Springs||255A, 289A|
|DISTRICT OF COLUMBIA|
|Big Pine Key||*239A|
|Daytona Beach Shores||258A|
|Port St. Joe||270C3|
|Silver Springs Shore||259A|
|St. Simons Island||229C3|
|McCall||228C3, 238C3, 275C3, 293C3|
|Grand Portage||224C, 245C0, 274C|
|Start Printed Page 76218|
|Las Vegas||283C2, 296A|
|Big Lake||246A, 296C2|
|Cotulla||242A, 264A, 289A|
|Eldorado||258C1, 285A, 293A|
|Encinal||259A, 273A, 286A|
|George West||250A, 292A|
|Junction||277C3, 284A, 292A, 297A|
|Start Printed Page 76219|
|Leakey||257A, 275A, 299A|
|Menard||242A, 265C2, 287C3|
|Richland Springs||235A, 299A|
|Oak Harbor||*233A, 277A|
|White Sulphur Springs||227A|
6. Section 73.203 is revised to read as follows:End Amendment Part
(a) Except as provided for in paragraph (b) of this section and § 1.401(d) of this chapter and 73.3573(a)(1), applications may be filed to construct new FM broadcast stations only at the communities and on the channels contained in the Table of Allotments (§ 73.202(b)).
(b) Applications filed on a first come, first served basis for the minor modification of an existing FM broadcast station may propose any change in channel and/or class and/or community not defined as major in § 73.3573(a). Applications for a change in community of license must comply with the requirements set forth in § 73.3573(g).
Note to § 73.203:
This section is limited to non-reserved band changes in channel and/or class and/or community. Applications requesting such changes must meet either the minimum spacing requirements of § 73.207 at the site specified in the application, without resort to the provisions of the Commission's rules permitting short spaced stations as set forth in §§ 73.213 through 73.215, or demonstrate by a separate exhibit attached to the application the existence of a suitable allotment site that fully complies with §§ 73.207 and 73.315 without resort to §§ 73.213 through 73.215.
7. Section 73.1690 is amended by adding paragraph (b)(9) to read as follows:End Amendment Part
(b) * * *
(9) Any change in the community of license, where the proposed new facilities are the same as, or would be mutually exclusive with, the licensee's or permittee's present assignment.
8. Section 73.3571 is amended by revising paragraph (a)(1), and adding new paragraph (j) to read as follows:End Amendment Part
(a) * * *
(1) In the first group are applications for new stations or for major changes in the facilities of authorized stations. A major change for an AM station authorized under this part is any change in frequency, except frequency changes to non-expanded band first, second or third adjacent channels. A major change in ownership is a situation where the original party or parties to the application do not retain more than 50% ownership interest in the application as originally filed. A major change in community of license is one in which the applicant's daytime facilities at the proposed community are not mutually exclusive, as defined in § 73.37, with the applicant's current daytime facilities, or any change in community of license of an AM station in the 1605-1705 kHz band. All other changes will be considered minor.
(j) Applications proposing to change the community of license of an AM station, except for an AM station in the 1605-1705 kHz band, are considered to be minor modifications under paragraphs (a)(2) and (f) of this section, and are subject to the following requirements:
(1) The applicant must attach an exhibit to its application containing information demonstrating that the proposed community of license change constitutes a preferential arrangement of assignments under Section 307(b) of the Communications Act of 1934, as amended (47 U.S.C. 307(b));
(2) The daytime facilities specified by the applicant at the proposed community of license must be mutually exclusive, as defined in § 73.37, with the applicant's current daytime facilities; and
(3) Notwithstanding the provisions of § 73.3580(a), the applicant must comply with the local public notice provisions of §§ 73.3580(c)(3), 73.3580(d)(3), and 73.3580(f). The exception contained in § 73.3580(e) shall not apply to an application proposing to change the community of license of an AM station.
9. Section 73.3573 is amended by revising paragraph (a)(1), adding new paragraph (g), and revising Note 1 to § 73.3573 (Notes 2, 3, and 4 to § 73.3573 remain unchanged), the revisions are to read as follows:End Amendment Part
(a) * * *
(1) In the first group are applications for new stations or for major changes of authorized stations. A major change in ownership is any change where the original party or parties to the application do not retain more than 50 percent ownership interest in the application as originally filed. In the case of a Class D or an NCE FM reserved band channel station, a major facility change is any change in antenna location which would not continue to provide a 1 mV/m service to some portion of its previously authorized 1 mV/m service area. In the case of a Class D station, a major facility change is any change in community of license or any change in frequency other than to a first-, second-, or third-adjacent channel. A major facility change for a commercial or a noncommercial educational full service FM station, a winning auction bidder, or a tentative selectee authorized or determined under this part is any change in frequency or community of license which is not in accord with its current assignment, except for the following:
(i) A change in community of license which complies with the requirements of paragraph (g) of this section;
(ii) A change to a higher or lower class co-channel, first-, second-, or third-adjacent channel, or intermediate frequency;
(iii) A change to a same-class first-, second-, or third-adjacent channel, or intermediate frequency;
(iv) A channel substitution, subject to the provisions of Section 316 of the Communications Act for involuntary channel substitutions.
(g) Applications proposing to change the community of license of an FM station or assignment are considered to be minor modifications under paragraphs (a)(2), (e)(1), and (f)(1) of this section, and are subject to the following requirements:
(1) The applicant must attach an exhibit to its application containing information demonstrating that the proposed community of license change constitutes a preferential arrangement of allotments or assignments under Section 307(b) of the Communications Act of 1934, as amended (47 U.S.C. 307(b));
(2) The facilities specified by the applicant at the proposed community of license must be mutually exclusive, as defined in § 73.207 or 73.509, with the applicant's current facilities or its current assignment, in the case of a winning auction bidder or tentative selectee; and
(3) Notwithstanding the provisions of § 73.3580(a), the applicant must comply with the local public notice provisions of §§ 73.3580(c)(3), 73.3580(d)(3), and 73.3580(f). The exception contained in § 73.3580(e) shall not apply to an application proposing to change the community of license of an FM station.
(4) Non-reserved band applications must demonstrate the existence of a suitable assignment or allotment site that fully complies with §§ 73.207 and 73.315 without resort to § 73.213 or 73.215.
Note 1 to § 73.3573:
Applications to modify the channel and/or class to an adjacent channel, intermediate frequency (IF) channel, or co-channel may utilize the provisions of the Commission's Rules permitting short spaced stations as set forth in § 73.215 as long as the applicant shows by separate exhibit attached to the application the existence of an allotment reference site which meets the allotment standards, the minimum spacing requirements of § 73.207 and the city grade coverage requirements of § 73.315. This exhibit must include a site map or, in the alternative, a statement that the transmitter will be located on an existing tower. Examples of unsuitable allotment reference sites include those which are offshore, in a national or state park in which tower construction is prohibited, on an airport, or otherwise in an area which would necessarily present a hazard to air navigation.
1. The Paperwork Reduction Act of 1995 (“PRA”), Pub. L. 104-13, 109 Stat 163 (1995) (codified in Chapter 35 of title 44 U.S.C.).Back to Citation
2. See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), Pub. L. 104-121, Title II, 110 Stat. 847 (1996). The SBREFA was enacted as Title II of the Contract With America Advancement Act of 1996 (“CWAAA”).Back to Citation
3. NPRM, 20 FCC Rcd 11169, 11190, 11192.Back to Citation
6. Id. Sec. 601(6).Back to Citation
7. Id. Sec. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” 5 U.S.C. 601(3).Back to Citation
8. 15 U.S.C. 632. Application of the statutory criteria of dominance in its field of operation and independence are sometimes difficult to apply in the context of broadcast television. Accordingly, the Commission's statistical account of television stations may be over-inclusive.Back to Citation
10. Id.Back to Citation
11. Id.Back to Citation
12. Id.Back to Citation
13. Id.Back to Citation
15. See id. Sec. 801(a)(1)(A).Back to Citation
16. See id. Sec. 604(b).Back to Citation
[FR Doc. E6-21633 Filed 12-19-06; 8:45 am]
BILLING CODE 6712-01-P