[Federal Register Volume 63, Number 243 (Friday, December 18, 1998)]
[Rules and Regulations]
[Pages 70040-70051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33486]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 73
[MM Docket Nos. 98-43, 94-149; FCC 98-281]
1998 Biennial Regulatory Review--Streamlining of Mass Media
Applications, Rules, and Processes; Policies and Rules Regarding
Minority and Female Ownership of Mass Media Facilities
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this Report and Order, the Commission adopts an electronic
filing mandate for 15 Mass Media Bureau broadcast application and
reporting forms, including sales forms and applications for new
commercial stations and modifications to licensed facilities, after a
phase in period. In conjunction with electronic filing, the Commission
revises the requirements for extending the construction periods of
broadcast stations, for selling unbuilt construction permits and for
submitting ownership reports for commercial and noncommercial stations.
The Commission also modifies the reporting requirements on the Annual
Ownership Report form to include a section on the race and gender of
individuals with attributable interests in broadcast licensees.
Finally, the Commission institutes a formal program of both pre-and
post-application grant random audits. The Commission is implementing
the changes to eliminate rules and revise procedures that consume
significant staff resources, create excessive filing burdens, and/or do
not sufficiently advance key regulatory objectives. The intended effect
of the changes is to reduce filing burdens and increase the efficiency
of application processing while preserving the public's ability to
fully participate in Commission broadcast licensing processes.
This Report and Order contains modified information collections
subject to the Paperwork Reduction Act of 1995 (``PRA''), Public Law
104-13, and has been submitted to the Office of Management and Budget
(``OMB'') for review under section 3507(d) of the PRA.
EFFECTIVE DATES: February 16, 1999. 47 CFR 73.3615(a) will become
effective 120 days after publication in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Lisa Scanlan, Audio Services Division,
Mass Media Bureau, (202) 418-2720; Jerianne Timmerman, Video Services
Division, Mass Media Bureau, (202) 418-1600. For additional information
concerning the information collections contained in this Report and
Order, contact Judy Boley at (202) 418-0214, or via the Internet at
[email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order in MM Dockets 98-43 and 94-149, adopted October 22, 1998, and
released November 25, 1998. The complete text of this Report and Order
is available for inspection and copying during regular business hours
in the FCC Reference Center, and may also be purchased from the
Commission's copy contractor, International Transcription Service,
(202) 857-3800 (phone), (202) 857-3805 (facsimile), 1231 20th Street,
NW, Washington, DC 20036.
SYNOPSIS OF REPORT AND ORDER:
I. Introduction
1. With this Report and Order, we make fundamental changes in our
broadcast application and licensing procedures. In the Notice of
Proposed Rulemaking initiating this proceeding, 63 FR 19226 (April 17,
1998), we proposed numerous modifications to those procedures that we
believe would serve the public interest by reducing applicant and
licensee burdens, increasing the efficiency of application processing,
and preserving the public's ability to participate fully in our
broadcast licensing processes. After careful consideration of the
proposals in the NPRM and the comments received, we now adopt these
various measures. Specifically, we adopt an electronic filing mandate
for key Mass Media Bureau broadcast application and reporting forms
after a phase in period. We also revise our requirements for extending
the construction periods of broadcast stations; for selling unbuilt
station construction permits; and for submitting ownership reports for
commercial and noncommercial educational stations. Additionally, we
modify the Annual Ownership Report to require the provision of
information on the racial and gender identity of broadcast licensees.
To preserve the integrity of our streamlined application processes, we
are implementing a two-pronged formal program of audits.
II. Discussion
A. Electronic Filing of Applications
Mandatory Electronic Filing
2. The Mass Media Bureau is currently developing electronic
versions of various broadcast applications and reporting forms as part
of a wide-ranging effort to computerize and streamline the Mass Media
Bureau's processes in order to expedite service to the public.
Electronic versions of the following 15 forms are being developed: FCC
Forms 301, 302-AM, 302-FM, 302-TV, 302-DTV, 314, 315, 316, 340, 345,
346, 347, 349, 350, and 5072. FCC Form 398, the Children's Television
Programming Report, is already available in electronic format. We
believe phasing in mandatory electronic filing will provide a period
for broadcast licensees, permittees and applicants, including small
market broadcasters, to become familiar with, and accustomed to using,
the Internet generally and our electronic system specifically to submit
their applications. Although we feel that a phase in period should be
sufficient for broadcast licensees, permittees and applicants to become
accustomed to utilizing our electronic application system, we
nonetheless note that an applicant can request a waiver of our
mandatory electronic filing requirements, even after the close of the
phase in period.
3. With regard to the length of time of the phase in period, we
have determined that electronic filing will become mandatory, on a
form-by-form basis, six months after each Mass Media Bureau form
becomes available for filing electronically. We expect the 15 Mass
Media Bureau forms specified above to become available for filing
electronically no earlier than March of 1999. Thus, electronic filing
of these key broadcast application forms will not become mandatory
before the fall of 1999. With regard to the FCC Form 398 (Children's
Television Programming Report) specifically, which has been available
for submission electronically since the spring of 1997, we will require
licensees to file it electronically as of January 10, 1999.
Operation and Security of Electronic System
4. We anticipate that applicants will file their Mass Media Bureau
applications electronically via the Commission's site on the World Wide
Web. Applicants will not be able to file applications on diskette
because the submission of diskettes is not compatible with our Web-
based system (HTML), would increase the risk of
[[Page 70041]]
virus importation into the Commission's system, and would unduly
increase the burdens on the Commission's resources. The Commission's
Web-based system will not be hardware or software product or
manufacturer specific; all commonly available computer hardware and
software will be compatible with the Commission's electronic system.
5. The electronic system will provide immediate notification to
applicants that their electronically filed applications have been
received. The system will afford applicants the ability to submit
amendments, make corrections to electronically filed applications and
submit narrative, explanatory exhibits. We note that Mass Media Bureau
forms and applications filed electronically pursuant to this Report and
Order must be received by the electronic filing system before midnight
on the filing date. We believe it unnecessary and burdensome to require
applicants to also submit paper copies of electronically filed
applications during the phase in period.
6. For any broadcast application for which a fee is required, the
electronic system will inform the applicant that a fee is required and
an FCC Form 159 (Remittance Advice) must be filed. Fee payments will
continue to be made to the Commission's lock-box bank--Mellon Bank in
Pittsburgh, Pennsylvania. Applications will be accepted after we have
received confirmation electronically from Mellon Bank that the
applicant has made the appropriate payment.
7. Security for the Mass Media Bureau's electronic system will be
consistent with all other Commission electronic filing systems.
Applications will be filed electronically utilizing passwords chosen by
the applicants and unique account numbers that are internally generated
by the system and assigned to applicants. Applicants and licensees will
be obligated to provide TINs so as to fulfill the Commission's
obligations under the Debt Collection Improvement Act (DCIA), Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No.
104-134, 110 Stat. 1321 (1996). Due to security concerns, however,
passwords and unique account numbers, rather than TINs, will be used
for the filing of applications.
8. The general public will be able to view electronically filed
applications through the Commission's site on the World Wide Web.
Public access to all electronic submissions will be ``read only.'' We
anticipate that electronic access to broadcast applications will
enhance the public's ability to view applications and participate in
the Commission's processes.
B. Streamlining Application Processing
Use of Certifications, Instructions and Worksheets
9. In order to obtain the full benefits of electronic filing, we
have recast key Mass Media Bureau forms into ``yes'' or ``no''
certification formats, supplemented with detailed worksheets and
instructions. The revised forms will facilitate application processing,
result in more accurate databases and easier public access to
information, thus benefiting broadcasters, the public and the
Commission. The revised forms will also substantially reduce the amount
of information applicants must submit, restricting the use of exhibits
to waiver requests or to circumstances where additional information is
necessary to support application elements potentially inconsistent with
precedent, processing standards, Commission rules and policies, and the
Act. Additionally, we will include an ``explanation'' checkbox beside
the ``yes'' or ``no'' checkboxes on certain questions on the
application form. To facilitate a smooth transition, we will
selectively introduce paper versions of the new forms before the
development of our electronic filing system is complete. Public notices
will detail transition information concerning the use of these revised
paper forms.
10. Application worksheets are available to applicants as
instruments to provide guidance in completing certification questions.
We will not require that applicants retain worksheets at the Commission
and/or in their public files. We believe it would be contrary to our
goals of easing regulatory burdens and increasing application
processing efficiencies to, in essence, treat the worksheets as part of
the application and subject them to review by the Commission and the
public in all circumstances. In this regard, however, we note that it
may be advantageous for licensees to retain the worksheets, as well as
other data or documentation used to support certifications, for use in
response to Commission audits and inquiries.
Assignment and Transfer Applications: Forms 314 and 315 To fully
realize the processing efficiencies obtainable through electronic
filing, we determined that significant changes in our sales
applications forms (Forms 314 and 315) and license assignment and
transfer rules are warranted.
a. Rule Revision: Payment Restrictions on the Sale of Unbuilt
Stations
11. We affirm the holding in Bill Welch, 3 FCC Rcd 6502 (1988),
that there is no per se statutory proscription against the for-profit
sales of unbuilt stations. Moreover, we no longer believe that
retention of the rule is necessary to maintain the integrity of our
licensing processes. Thus, we will, both for outstanding commercial
station construction permits and commercial station construction
permits that will be issued pursuant to the auction process, eliminate
the no profit rule restricting payment upon assignment or transfer of
an unbuilt station to reimbursement of a seller's expenses. We also
will eliminate the no profit limitation for noncommercial educational
station construction permits granted prior to the release of this
Report and Order, as well as for those granted subsequent to the
release of this Report and Order as ``singletons.'' However, except for
those granted as ``singletons,'' we defer deciding on whether we should
permit subsequently issued noncommercial educational station
construction permits to be sold for a profit.
12. For commercial stations, use of competitive bidding procedures
to resolve mutual exclusivity among commercial broadcast applicants
will soon replace both the traditional comparative hearing process for
full-service radio and television stations and the system of random
selection formerly employed to award certain low power television and
television translator licenses. Our concern with spectrum speculation
in an auction environment, where there are strict bidding and payment
requirements and where the winning bidder has paid fair market value
for an authorization, is minimal. We also believe that the competitive
bidding process itself, where the permittee may be required to make a
substantial front end payment, provides a strong impetus for timely
station construction. Even in cases where a commercial permit is not
issued pursuant to an auction, e.g., because only one application was
filed for a frequency and therefore the application was granted as a
``singleton,'' we believe it is appropriate to eliminate reimbursement
restrictions. Even assuming that ``singleton'' commercial station
permittees do not have the same impetus to build quickly in order to
recoup auction expenditures, we believe that the automatic cancellation
and forfeiture provisions adopted in this Report and Order will provide
sufficient incentives to construct authorized facilities promptly.
13. Regarding outstanding commercial and noncommercial construction
permits issued prior to the release of this Report and Order, we will
also eliminate reimbursement restrictions.
[[Page 70042]]
Most current permittees filed construction permit applications under
rules that prohibited the sale of a permit at a profit. Thus again, our
concern that the construction permit was issued merely as the result of
a speculative filing is minimal. Furthermore, some commercial station
construction permits were recently issued pursuant to settlement
agreements facilitated by section 309(i) of the Communications Act,
which, inter alia, required the Commission to waive the no profit rule
with regard to settlements among certain applicants entered into by
February 1, 1998. In principle, these authorizations were acquired at
fair market value and we see no justification for imposing price
restrictions on their sale now. We note, however, that the Commission's
current settlement rules will continue to apply to pending mutually
exclusive commercial and noncommercial applications, i.e., any pending
applicants who did not take advantage of the Commission's prior windows
for settling for more than out-of-pocket expenses and who wish to
settle now are, absent a waiver of the provisions of 47 CFR 73.3525,
restricted to out-of-pocket expenditures.
14. Under current processing rules, we continue to accept
applications for FM facilities on the reserved band and to grant
permits in circumstances where no mutually exclusive application is
timely filed or where a global settlement agreement among all mutually
exclusive applicants is approved. With regard to noncommercial station
permits granted as ``singletons'' on or after the release of this
Report and Order, we will eliminate the no-profit rule. However, in
instances where there are mutually exclusive noncommercial applications
filed on or after the release of this Report and Order and a permit is
subsequently issued as the result of a settlement, we believe a more
cautious approach is required. We recognize that a proceeding is
pending to develop a selection process for mutually exclusive
noncommercial educational station applicants. See Reexamination of the
Comparative Standards for Noncommercial Educational Applicants, Further
Notice of Proposed Rulemaking, FCC 98-269 (released October 21, 1998).
Until the issues in that proceeding are resolved, we will not be in a
position to determine whether adopting procedures that would permit
settlements among those applicants and subsequent for-profit sales
could frustrate the goals of that proceeding.
15. Finally, we address the issue of the for profit sale of permits
by permittees who received bidding credits as designated entities in
the auction context. Generally, we will follow the provisions of Part 1
of the auction rules and apply transfer limitations to the extent they
are applied in other auctionable services. Thus, where bidding credits
are used in a broadcast auction, for a five year period, the Commission
will require a designated entity seeking approval of a transfer or an
assignment to a non-designated entity, or who proposes to take any
other action relating to ownership or control that will result in loss
of status as an eligible designated entity, to reimburse the government
for the amount of the bidding credit, plus interest, before transfer of
the license will be permitted.
b. Requirement to Submit Contracts with Assignment and Transfer
Applications
16. Applicants will assess their sales and organizational documents
against the series of standards set forth in the expanded instructions
to Forms 314 and 315 and will be required to certify that a transaction
conforms fully to the instruction standards, the Commission's rules and
policies, and the Act, or to disclose those specific aspects of the
transaction for which waivers are sought and/or where compliance with
the Act, and our rules and policies is uncertain. We emphasize,
however, that if an application raises concerns on its face, or
presents particularly significant public interest issues, or where an
objection is filed, relevant provisions of the sales agreements will be
reviewed by the staff on a case-by-case basis. In addition, we will
rely on a two-pronged random audit program to enhance the reliability
of applicants' certifications. To further reduce filing burdens on
licensees, we will also adopt the proposal to eliminate, as
duplicative, the Sec. 73.3613(b) requirement that sales agreements and
contracts be filed with the Commission within thirty days of execution,
where the reporting entity has already filed the sales contract with
the assignment or transfer application.
17. Applicants must continue to submit copies of sales agreements
so that we can continue our practice of maintaining copies of
unredacted sales agreements and contracts in the public reference room.
Similarly, if the parties have an oral agreement, a written description
of its material terms must be submitted with the application. We will
continue to require that contracts submitted for retention in the
public reference room disclose sales price. Since contracts and
agreements are ``material pertaining to'' the sales application, they
must also, pursuant to the public file rule, be retained in the
station's public file until final action has been taken on the
application. If we determine that the documents have not been submitted
for use in the public reference room, we will neither accept for
filing, nor process the application for assignment or transfer.
Similarly, we will suspend application processing if it comes to our
attention that the documents have not been placed in the station's
public file.
18. Prior to the implementation of electronic filing procedures, we
will initially require applicants to file a single paper copy of the
sales agreement with the assignment or transfer application, and
eliminate duplicate copies which are submitted as part of the current
triplicate paper filing procedures. The processing staff will
immediately forward this copy of the contract to the public reference
room. Upon the implementation of electronic filing procedures for sales
applications, the public will have access to electronic copies of sales
agreements transmitted with the application and made available in the
public reference room. The staff will review the electronic copy of the
sales agreement for the proposed transaction only where application
responses, exhibits, waiver requests and/or objections raise relevant
issues.
c. Requirement to Submit Contour Overlap Maps
19. We modify the sales application processing scheme as it relates
to the radio contour overlap map. In lieu of Commission staff reviewing
these maps in every instance to ensure that the application complies
with our multiple ownership rules, applicants themselves will assess
and certify compliance. We have developed instructions and worksheets
that will help applicants understand all relevant rules and concepts.
With conscientious use of these tools, applicants can accurately
determine whether or not they should certify compliance with our
current rules. As with the sales contracts, we emphasize that if an
application raises concerns on its face, or presents significant public
interest issues, or where an objection is filed, the contour overlap
maps will be reviewed by the staff on a case by case basis.
20. We will retain our practice of maintaining copies of contour
overlap maps in the Commission's public reference room. We will require
applicants to file a single copy of the contour overlap map (or submit
an electronic version) with the application for assignment or transfer.
The processing staff will not review the map unless application
responses, exhibits, or waiver requests raise multiple ownership
issues, but the public will be able to access the map and bring any
[[Page 70043]]
concerns or objections to the attention of the Commission staff.
21. Since the radio contour overlap map constitutes ``material
related to'' the application, it must, pursuant to the public file
rule, also be maintained in the public inspection file along with the
application for assignment or transfer for review by the general public
until final action has been taken. As with sales contracts, we will
refrain from processing any application when contour maps are not
submitted with the application, or when we become aware that they have
not been retained in the local public file according to the provisions
of the local public file rule.
3. New Commercial Station and Facility Change Applications: Form
301
a. Rule Revisions
22. We modify 47 CFR 73.316 to shift the filing requirements
regarding certain directional antenna information to the license
application stage of the FM authorization process. Elimination of the
requirement under 47 CFR 73.316(c) to file directional antenna
information with the construction permit application would provide
applicants maximum flexibility in choosing an antenna manufacturer when
constructing a facility. Should the absence of definitive information
concerning a specific directional antenna preclude grant of a
construction permit application, the Commission can request the
appropriate antenna information prior to grant. We also modify 47 CFR
73.1675(a) to eliminate the map requirement for auxiliary facilities
for the FM and TV services and 47 CFR 73.1030(a) by eliminating the
application disclosure requirement regarding the date of radio
astronomy and research installation notification. These revisions will
reduce filing burdens without endangering the technical integrity of
the broadcast services. The staff will continue to afford the radio
astronomy installations a 20 day comment period regarding applicable
proposals. Furthermore, the staff will verify compliance with 47 CFR
73.1675(a) using technical data submitted in FCC Form 301.
b. Form Revisions
23. We will revise FCC Form 301 to decrease the number of required
technical exhibits and significantly reduce applicant filing burdens.
Exhibits will be required only in connection with the most critical
technical and public safety matters, such as FM spacing, contour
protection, and radio frequency electromagnetic exposure guidelines. We
will employ a ``Tech Box'' to incorporate all critical technical data
required for engineering review. In the event of any discrepancies
between data in the ``Tech Box'' and data submitted elsewhere in the
application, the data in the ``Tech Box'' will be used. We are
confident that our revised form and the few associated exhibits yield
core technical data. As with other forms, we will also provide a
detailed set of instructions to ensure that applicants can correctly
determine compliance with Commission rules and policies and will employ
our audit program to ensure that questions have been answered
accurately.
24. Specifically, we have reorganized the AM section of Form 301 to
provide individual ``Tech Boxes'' for Daytime, Nighttime and critical
hours operations. We have also eliminated references to blanketing
interference and cross-modulation from the FM technical portion of the
form because these rules are only applicable once a station is
operating and are therefore not practically considered at the
construction permit application stage.
25. We will no longer require the submission of tower sketches to
inform the Commission of co-located antennas. The information provided
in the ``Tech Box,'' concerning the proposed facility, in conjunction
with information from the Commission's engineering database regarding
co-located and nearby existing broadcast facilities, are sufficient to
enable the staff to make accurate determinations about compliance with
radiofrequency electromagnetic exposure guidelines and to determine if
a proposed antenna may disrupt other nearby facilities.
26. Except for AM station applicants, the Commission will no longer
require the filing of site maps with FCC Form 301. Technology such as
Global Positioning Satellite receivers is now readily available and
allows applicants to accurately determine coordinates without the use
of site maps. However, site maps for AM stations retain their
importance, because AM facilities, with their longer wavelengths, are
much more susceptible to undesirable effects from nearby structures,
such as buildings, antenna towers and water towers. Therefore, we will
retain the requirement for AM applicants to submit transmitter site
maps to evaluate the proposed site with respect to the surrounding
electromagnetic environment. Finally, various cosmetic changes,
corrections for typographical errors, and form congruence suggestions
have been incorporated into the new Form 301.
C. Enforcement
27. A strong enforcement program, including random audits, is
necessary to insure the integrity of the application process under our
new streamlined procedures. Petitions to deny and informal objections
will remain as adjuncts to audits. We believe that these complementary
factors, along with a formal audit program, will deter abuse of the
application process.
28. Specifically, we will adopt a formal program of random audits,
which will subject selected broadcast applications to heightened
scrutiny prior to grant and will additionally subject selected
applications to audit after grant. The pre-grant audit program will be
applicable to commercial and noncommercial radio and television station
applications that will be selected randomly by computer. Over the
course of a year, the computer will randomly select up to a total of
approximately five percent of all applications filed in the radio and
television services. The applicants who filed these applications will
then be notified of their selection for an audit, and will be directed
by letter to provide certain additional documentation and information
for our review. This documentation should be readily available to the
selected applicants, and, if promptly furnished to the Commission, the
processing of the applications subject to audit should not be unduly
impeded. We expect that any pre-grant review will be conducted during
the 30-day period for the filing of petitions to deny against the
applications. Although we will choose applications for audit on a
random basis, if an application raises concerns on its face or presents
particularly significant public interest concerns, we may decide to
conduct an audit even if the application did not fall into the group
chosen by random selection. As to the concern that, under the proposed
audit system, innocent, careless mistakes will be elevated to serious
offenses, we note that the staff will continue its current practice of
considering all the circumstances surrounding the submission of
inaccurate or incomplete information in determining the need for and
the severity of a sanction. We anticipate that clear guidance provided
in the instructions, worksheets and forms will result in fewer
mistakes.
29. After receiving the requested information from an audited
applicant, we will examine the documentation and analyze it for
consistency with the certifications and representations in the
streamlined application and for compliance with all Commission rules
and policies. Applicants may be required to provide further information
to explain any discrepancies between the application filed and the
supporting documentation submitted, and will be
[[Page 70044]]
given an opportunity to respond to all Commission questions and
concerns. In pre-grant audit cases where we find that an applicant has
made inaccurate certifications, the Commission may dismiss the
application and require the resubmission of a corrected application,
may also impose a forfeiture, or may defer action for further
investigation and possible designation for hearing.
30. We will also randomly subject up to five percent of all
applications to more extensive post-grant audits. Post-grant audits may
include comparison of the application being audited with all relevant
Commission files and databases as well as other available sources of
pertinent information. Upon analysis of the above-described
information, the staff may issue a letter of inquiry requiring
submission of all the application's supporting and background
documentation not found in its independent search. The staff will also
allow the applicants an opportunity to explain any apparent
discrepancies. Upon receipt and analysis of all relevant information,
the staff will prepare either a close-out letter, instructions to
correct any violations, if appropriate, admonition, forfeiture, hearing
designation order, or an order to show cause why an order of revocation
should not be issued. We retain the discretion to reexamine this audit
program after it has been in operation for a reasonable period of time
and to make any changes that are needed to address problems or to
enhance the program's effectiveness.
D. Modifying Construction Permit Extension Procedures
31. We conclude that a three-year construction period would provide
all permittees an adequate and realistic time to construct and amend 47
CFR 73.3598 to provide each permittee with a total of three
unencumbered years during which it may construct its broadcast
facility. Under these new procedures, the Commission will toll the
construction period only when construction is encumbered due to an act
of God, or when a construction permit is the subject of administrative
or judicial review. An act of God is defined in terms of natural
disasters (e.g., floods, tornados, hurricanes, or earthquakes), will be
narrowly construed, and include only those periods where the permittee
demonstrates that construction progress was impossible, notwithstanding
its diligent efforts. Covered administrative and judicial review falls
into two categories. The first consists of petitions for
reconsideration and applications for review within the Commission of
the grant of a construction permit or a permit extension, and any
appeal of any Commission action thereon. The second category consists
of any cause of action pending before any court of competent
jurisdiction relating to any necessary local, state, or federal
requirement for the construction or operation of the station, including
any environmental requirement. Thus, a permit would not qualify for
tolling on the basis of the pendency of a zoning application before a
local zoning board. In light of these new procedures, we eliminate the
current practice of providing additional time for construction after a
permit has been modified or assigned.
32. The lengthened three year construction period will also apply
to modifications of licensed facilities. Likewise, the grounds for
tolling a construction period will apply to modifications of licensed
facilities. The lengthened three-year construction period will apply to
NTSC permittees to construct either analog or digital new station
facilities. This Report and Order does not impact DTV build-out
requirements, the deadline for which remains 2006.
33. In lieu of FCC Form 307, the current form by which a permittee
may apply for an extension, we adopt a notification procedure under
which a permittee must inform the Commission of the circumstances that
it believes should toll its construction period. A permittee must
notify the Commission as promptly as possible and, in any event, within
30 days, of the act of God that has blocked construction, or the
initiation of a relevant administrative or judicial review. The
construction period will be tolled for the length of time that a
diligent permittee will need to recover from the effects of the event.
A permittee must also notify the Commission promptly when the relevant
administrative or judicial review is resolved. A permittee that needs
more than six months to resume construction after a natural disaster
must submit additional supporting information at six-month intervals
explaining construction progress, and the steps it has taken and
proposes to take to resolve any remaining impediments. The burden is
upon the permittee to show that any further tolling of the construction
period is warranted. Notification must be in the form of a letter
submitted in triplicate to the Secretary. The letter notification must
also be placed by the permittee in the local public file of the
station(s) concerned.
34. Construction permits granted pursuant to these rules are
subject to automatic forfeiture, without further Commission action,
upon expiration of an unencumbered three-year construction period.
Additionally, we eliminate that part of 47 CFR 73.3535(a) that requires
that ``[b]efore such an application can be granted, the permittee or
assignee must certify that it will immediately begin building after the
modification is granted or the assignment is consummated.'' We also
eliminate the requirement that permittees who modify unbuilt stations
certify that construction will commence immediately upon grant. See 47
CFR 73.3535(b). The analogous certification requirement for assignees
and transferees will likewise be eliminated. No additional time will be
granted when the permittee has had, in all, at least three unencumbered
years to construct.
E. Modification of Pro Forma Assignments and Transfers
35. In the Notice of Proposed Rulemaking, we raised a question and
invited comment as to whether 47 U.S.C. 310(d) would afford the
Commission the flexibility to give a blanket consent to certain pro
forma broadcast station assignments and transfers of control. We have
determined that it would not be prudent to make such a fundamental
change in our interpretation of 47 U.S.C. 310(d) without Congressional
guidance. Therefore, we decline at this time to adopt the notification
process suggested in the Notice.
F. Streamlined Ownership Reporting Requirements
36. We modify our existing ownership reporting rules to require
commercial and noncommercial broadcast licensees to file Ownership
Reports (FCC Form 323 or 323-E) when they file their stations' license
renewal applications and every two years thereafter. For commercial
licensees, we will delay the effective date of this rule modification
until our new Ownership Report, which will include questions concerning
minority and female ownership is available. Thus, commercial licensees
should continue to file FCC Form 323 according to their current
schedule until they have filed the revised form one time. Thereafter,
they may file under the relaxed requirements. We also formalize the
Commission's current practice of requesting an Ownership Report within
30 days of consummation of an approved assignment or transfer by
amending 47 CFR 73.3615 to specifically require that commercial and
noncommercial licensees and permittees file Ownership Reports within 30
days of consummating authorized assignments or transfers of licenses.
We also eliminate the Commission's existing supplemental
[[Page 70045]]
reporting requirement, under which a noncommercial educational licensee
or permittee must file an Ownership Report within 30 days after any
change in previously reported information.
G. Information on Minority and Female Ownership
37. To develop more precise information on minority and female
ownership of mass media facilities, we amend FCC Form 323 to include a
section on the race and gender of individuals with attributable
interests in broadcast licensees. Our revised Annual Ownership Report
form will provide annual information on the state and progress of
minority and female ownership and enable both Congress and the
Commission to assess the need for, and success of, programs to foster
opportunities for minorities and females to own broadcast facilities.
In this regard, our information collection is consistent with our
mandate under 47 U.S.C. 309(j) and 47 U.S.C. 257. Pursuant to 47 CFR
73.3615(a), sole proprietorships and partnerships composed solely of
natural persons are exempt from the filing requirement. However, we
encourage these licensees to file information voluntarily regarding
gender and racial identity, so that we may more accurately measure
minority and female broadcast ownership. The modified reporting
requirement will only apply to the FCC Form 323, Annual Ownership
Report, required of commercial broadcasters. We will consider at a
later date whether to apply the requirement to the FCC Form 323-E
required of noncommercial stations. The groups on which we will seek
information are those to which our minority and female ownership
policies have historically applied. In addition to females, these
classifications are Black, Hispanic, Native American, Alaska Native,
Asian, and Pacific Islander. Thus, we will amend Section 73.3615 of the
Commission's Rules to require the provision of information on the
gender and racial identity of all parties with attributable interests
in commercial broadcast licensees.
III. Administrative Matters
38. The complete text of this Report and Order, including any
statements, is available for inspection and copying during normal
business hours in the Federal Communications Commission Reference
Center (Room 239), 1919 M Street NW, Washington DC, and it may be
purchased from the Commission's copy contractor, International
Transcription Service Inc., 1231 20th Street NW, Washington, DC 20036,
(202) 857-3800.
39. Paperwork Reduction Act of 1995 Analysis. The action contained
herein has been analyzed with respect to the Paperwork Reduction Act of
1995 and found to impose new or modified reporting and recordkeeping
requirements or burdens on the public. Implementation of these new or
modified reporting and recordkeeping requirements will be subject to
approval by the Office of Management and Budget as prescribed by the
Act. The new or modified paperwork requirements contained in this
Report and Order (which are subject to approval by the Office of
Management and Budget) will go into effect upon OMB approval.
Final Regulatory Flexibility Analysis (FRFA)
40. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C.
603, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated
in the Notice of Proposed Rulemaking for each of the dockets in this
proceeding, MM Docket Nos. 98-43 and 94-149. The Commission sought
written public comments on the proposals set forth in each Notice,
including comment on each IRFA. The Commission's Final Regulatory
Flexibility Analysis (FRFA) in this Report and Order conforms to the
RFA, as amended by the Contract With America Advancement Act of 1996,
Public Law 104-121, 110 Stat. 847 (1996).
Need For and Objectives of Action
41. Specifically, this Report and Order: (1) Streamlines broadcast
application procedures, (2) speeds introduction of new and expanded
services to the public, (3) reduces administrative burden on
regulatees, (4) increases public access to information about the
Bureau's actions and processing activities, and (5) maximizes
efficiency in the use of Commission resources. The Report and Order
maintains the technical integrity of broadcast services while fostering
the Commission's goals of competition and diversity, continuing
enforcement of the Commission's core rules and policies, and permitting
members of the public a continued opportunity to monitor station
performance. This action is taken in conjunction with the Commission's
1998 biennial regulatory review. Although Congress did not mandate this
area of review, the Commission nonetheless undertook it to assure that
its rules and processes are no more regulatory than necessary to
achieve Commission goals.
42. Further, the Order revises our Ownership Report form, FCC Form
323, to include a section requiring each owner to identify the race or
ethnicity and the gender of each person holding an attributable
ownership interest in its broadcast facility. Doing so will allow the
Commission to determine accurately the current state of minority and
female ownership of broadcast facilities and to chart the success of
any measures that we may eventually adopt in this proceeding in
promoting ownership by minorities and women. Information about the
status of minority and female broadcast ownership will also help us to
fulfill our responsibilities under section 257 of the
Telecommunications Act of 1996 to identify and eliminate market entry
barriers for entrepreneurs and other small businesses in the provision
and ownership of telecommunications services and information services.
47 U.S.C. 257. In implementing Section 257, the Commission is mandated
to ``promote the policies and purposes of this Act favoring diversity
of media voices, vigorous economic competition, technological
advancement, and promotion of the public interest, convenience and
necessity.''
Significant Issues Raised by Public Comments in Response to the IRFAs
43. No comments were received specifically in response to the IRFA
in MM Docket No. 98-43. However, some comments in that proceeding did
address certain small business issues. Primarily, commenters were
concerned that not all small businesses are currently connected to the
Internet and therefore would be unable to immediately participate in
the electronic filing initiative adopted herein without additional
expense. Commenters were also concerned that eliminating the
requirement that permittees file sales contracts will hurt small
business because lending institutions will be unable to access
necessary sales price information. One commenter, Cumulus Media,
commented that streamlining the application process will inevitably
decrease the cost of doing business for small broadcasters and that
broadcasters could then shift their resources into benefits for the
public, such as more local programming and sponsorship of community
events.
44. Four commenters endorsed our proposed amendment to FCC Form
323, which would require a broadcaster to provide information regarding
the race or ethnicity and the gender of any individual with an
attributable ownership interest in its broadcast facility. All four
commenters stated that the collection of such information is essential
in order to monitor the
[[Page 70046]]
effectiveness of minority and female ownership programs. One commenter
points out that race and gender-based remedies must be narrowly
tailored and terminate once fair representation has been achieved and,
therefore, the collection of such data is necessary to these ends. The
commenter asserts that the collection of statistical information on the
race and gender of station employees to monitor equal employment
opportunity compliance has been useful and the burden of its collection
minimal. While another commenter urges that the revised form include a
designation of the gender and race of the owner of the station, the
first commenter suggests that we add questions concerning whether women
or members of racial or ethnic minority groups hold ownership interests
in the station and, if so, the percentage interest held by each group,
the minority total, the female total, whether either total constitutes
a controlling interest, whether women or minorities otherwise exercise
control, and whether any minority ownership policies or devices were
used by the current owners in acquiring the station.
45. Another issue raised by commenters concerning amendment of FCC
Form 323 concerns how the Commission should define relevant groups. One
commenter, Press Broadcasting Company, Inc., argues that the Commission
has not clearly defined ``minorities'' beyond ``Black, Hispanic, Native
American, Alaska Native, Asian and Pacific Islander,'' and that the
Commission's definition of minorities is arbitrary and inconsistent
with its definition in other proceedings.
Description and Estimate of the Number of Small Entities to which Rules
will Apply
46. Under the RFA, small entities include small organizations,
small businesses, and small governmental jurisdictions. 5 U.S.C.
601(6). The RFA, 5 U.S.C. 601(3), generally defines the term ``small
business'' as having the same meaning as the term ``small business
concern'' under the Small Business Act, 15 U.S.C. 632. 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). 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 SBA and after opportunity for public comment,
establishes one or more definitions of such term that are appropriate
to the activities of the agency and publishes such definition(s) in the
Federal Register.'' We received no comment in response to either IRFA
on how to define radio and television broadcast ``small businesses.''
Therefore, we will continue to utilize SBA's definitions for the
purpose of this FRFA.
47. The rules and policies adopted in the Report and Order will
apply to all broadcast licensees. The SBA defines a television
broadcasting station that has no more than $10.5 million in annual
receipts as a small business. Television broadcasting stations consist
of establishments primarily engaged in broadcasting visual programs by
television to the public, except cable and other pay television
services. Included in this industry are commercial, religious,
educational, and other television stations. Also included are
establishments primarily engaged in television broadcasting and which
produce taped television program materials. For 1992, the number of
television stations that produced less than $10.0 million in revenue
was 1,155 establishments. There were approximately 1,583 operating
television broadcasting stations in the nation as of September 30,
1998, of which approximately 1,219 are considered small businesses.
48. The SBA defines a radio broadcasting station that has no more
than $5 million 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 that primarily are engaged in
radio broadcasting and that produce radio program materials are
similarly included. As of September 30, 1998, Commission records
indicate that 12,373 radio stations were operating, of which 11,878
were considered small businesses.
49. Thus, the measures adopted here will affect the approximately
1,583 television stations, approximately 1,219 of which are considered
small businesses. Additionally, the measures adopted here will also
affect the 12,373 radio stations, approximately 11,878 of which are
small businesses. These estimates may overstate the number of small
entities since the revenue figures on which they are based do not
include or aggregate revenues from non-television or non-radio
affiliated companies. In addition to owners of operating radio and
television stations, any entity who seeks or desires to obtain a
television or radio broadcast license may be affected by the rules and
procedures adopted in this item. The number of entities that may seek
to obtain a television or radio broadcast license is unknown.
Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements
50. The measures adopted in the Report and Order will reduce the
reporting required of prospective and current applicants, permittees
and licensees. All measures aim to reduce the overall administrative
burden upon both the public and the Commission. For example, we have
adopted a phase-in period for mandatory electronic filing. We note that
such a phase-in procedure has been used elsewhere to benefit small
businesses. For example, the Securities and Exchange Commission
incorporated its mandatory filing rules in stages. While most companies
were phased into the electronic filing system in 1993, small businesses
were not completely phased in until May 1996. We believe that
electronic filing will, among other things, speed the processing of
applications, save Commission resources, and make filing easier for
regulatees by informing them of certain errors in their applications
before they are actually sent.
51. The full benefits of electronic filing and processing would not
be realized simply by converting the current version of each form into
an electronic format. Accordingly, we have deleted or narrowed overly
burdensome questions and will now rely more extensively on applicant
certifications. These changes will both reduce applicant filing burdens
and streamline our processing of sales, new station, and facility
modification applications. The Report and Order revises Commission
requirements for extending the construction periods of broadcast
stations; for selling unbuilt construction permits; and for submitting
ownership reports for commercial and noncommercial stations. To
preserve the integrity of our streamlined application process, the
Report and Order implements a formal program of both pre- and post-
application grant random audits.
52. In addition, many broadcast licensees will need to file
modified FCC Form 323, and include information on the race or ethnicity
and gender of individuals with attributable interests in the broadcast
license. However, not all broadcast licensees are required to file
ownership forms. Specifically, pursuant to 47 CFR 73.3615(a), sole
proprietorships and partnerships
[[Page 70047]]
composed solely of natural persons are exempt from the filing
requirement. We encourage those licensees to file information
voluntarily regarding gender and racial identity, so that we may more
accurately measure minority and female broadcast ownership. In
addition, our modified reporting requirement will apply only to
commercial broadcast stations. The reporting requirements of
noncommercial broadcasters as set forth in 47 CFR 73.3615(d) will
remain unchanged.
Steps Taken to Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
53. This Order sets forth the Commission's new streamlined rules
and procedures. The streamlined rules and procedures are intended to
reduce applicant and licensee burdens, realize fully the benefits of
the Mass Media Bureau's electronic filing initiative, and preserve the
public's ability to participate fully in the Commission's broadcast
licensing processes. These streamlined rules and procedures are
designed to reduce filing burdens and increase the efficiency of
application processing. All significant alternatives presented in the
comments were considered, and some were adopted herein, including the
addition of an explanation checkbox and the provision of accompanying
narrative exhibits to the certification forms, under specific
circumstances, in order to reduce the number of application amendments
and thereby further preserve staff resources while reducing the
paperwork burden on applicants.
54. As noted in the Report and Order, the development of electronic
filing procedures will also greatly increase efficiencies to
applicants, while increasing the speed of the licensing process. We
expect that these changes will benefit all, including small entities.
Electronic filing should be easier for applicants than the current
system because the electronic filing system will prompt the applicant
for the necessary information and will provide interactive error
messages if information is not filed correctly. The electronic filing
system will allow the applicant to correct its applications prior to
submitting it. This system will allow all interested parties, including
small entities, easy access to pleadings that are filed in connection
with applications and licenses.
55. We do not believe that the modified race and gender reporting
requirement will impose an undue economic burden on licensees because
they will not be required to obtain information from anyone whose
interests are not already reportable. We have attempted to keep burdens
on broadcast television and radio stations to a minimum by grafting
this information collection onto an existing collection requirement
rather than imposing an entirely new requirement. Additionally, the
information being requested is simply the race and gender of persons
with an attributable interest in the broadcast license. The Commission
rejected requests made by some commenters for the collection of
additional information. The significant alternatives the Commission
considered were: (1) To collect more information than the race and
gender of those with attributable interests (e.g., whether any minority
ownership policies or devices were used by the current owners in
acquiring the station); or (2) collect no information on the race and
gender of persons with attributable interests. The first alternative
could significantly increase the information-gathering and reporting
burden on licensees with little benefit, while the information we
require can be submitted by interested parties during the course of
this proceeding. The second alternative, to collect no race or gender
information, would force the Commission to make important policy
decisions without relevant and important information.
Report to Congress
56. The Commission will send a copy of the 1998 Biennial Regulatory
Review--Streamlining of Mass Media Applications, Rules, and Processes;
Policies and Rules Regarding Minority and Female Ownership of Mass
Media Facilities Report and Order, including this FRFA, in a report to
be sent to Congress pursuant to the Small Business Regulatory
Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A). In
addition, the Commission's Office of Public Affairs, Reference
Operations Division, will send a copy of this Report and Order,
including this FRFA, to the Chief Counsel for Advocacy of the Small
Business Administration.
57. Authority for issuance of the Report and Order is contained in
Sections 4, 301, 303, 307, 308 and 309 of the Communications Act of
1934, as amended, 47 U.S.C. 154, 301, 303, 307, 308 and 309. Sections
1.4 , 73.316, 73.1030, 73.1675, 73.3500, 73.3526, 73.3534, 73.3535,
73.3597, 73.3598, 73.3599, 73.3613 and 73.3615 of the Commission's
Rules, are amended.
58. The rule amendments will become effective 60 days after their
publication in the Federal Register, and the information collection
contained in these rules, with the exception of 47 CFR
73.3526(e)(11)(iii) and 73.3615(a), will become effective 60 days after
publication in the Federal Register, following OMB approval, unless a
notice is published in the Federal Register stating otherwise. The
Commission will publish a notices setting the effective date of 47 CFR
73.3526(e)(11)(iii) and 73.3615(a) upon OMB's approval of these
sections.
59. It is further ordered that the proceeding in MM Docket No. 98-
43 is terminated.
List of Subjects in 47 CFR parts 1 and 73
Radio broadcasting, Television broadcasting.
Federal Communications Commission
Shirley S. Suggs
Chief, Publications Branch
Rule Changes
Parts 1 and 73 of Chapter 1 of Title 47 of the Code of Federal
Regulations are amended as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for Part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 207, 303 and 309(j) unless
otherwise noted.
2. Section 1.4 is amended by adding a sentence to paragraph (f) to
read as follows:
Sec. 1.4 Computation of time.
* * * * *
(f) * * * Mass Media Bureau applications and reports filed
electronically pursuant to Sec. 73.3500 of this Chapter must be
received by the electronic filing system before midnight on the filing
date.
PART 73--RADIO BROADCAST SERVICES
3. The authority citation for Part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 303, 307, 308 and 309.
4. Section 73.316 is amended by revising paragraph (c) to read as
follows:
Sec. 73.316 FM Antenna systems
* * * * *
(c) Applications for directional antennas. (1) Applications for
construction permit proposing the use of directional antenna systems
must include a tabulation of the composite antenna pattern for the
proposed directional antenna. A value of 1.0 must be used to correspond
to the direction of maximum radiation. The pattern must be tabulated
such that 0 deg. corresponds to the direction of maximum radiation or
alternatively, in
[[Page 70048]]
the case of an asymmetrical antenna pattern, the pattern must be
tabulated such that 0 deg. corresponds to the actual azimuth with
respect to true North. In the case of a composite antenna composed of
two or more individual antennas, the pattern required is that for the
composite antenna, not the patterns for each of the individual
antennas. Applications must include valuations tabulated at intervals
of not greater than ten (10) degrees. In addition, tabulated values of
all maximas and minimas, with their corresponding azimuths, must be
submitted.
(2) Applications for license upon completion of antenna
construction must include the following:
(i) A complete description of the antenna system, including the
manufacturer and model number of the directional antenna. It is not
sufficient to label the antenna with only a generic term such as
``dipole.'' In the case of individually designed antennas with no model
number, or in the case of a composite antenna composed of two or more
individual antennas, the antenna must be described as a ``custom'' or
``composite'' antenna, as appropriate. A full description of the design
of the antenna must also be submitted.
(ii) A plot of the composite pattern of the directional antenna. A
value of 1.0 must be used to correspond to the direction of maximum
radiation. The plot of the pattern must be oriented such that 0 deg.
corresponds to the direction of maximum radiation or alternatively, in
the case of an asymmetrical antenna pattern, the plot must be oriented
such that 0 deg. corresponds to the actual azimuth with respect to true
North. The horizontal plane pattern must be plotted to the largest
scale possible on unglazed letter-size polar coordinate paper (main
engraving approximately 18 cm x 25 cm (7 inches x 10 inches)) using
only scale divisions and subdivisions of 1, 2, 2.5, or 5 times 10-nth.
Values of field strength less than 10% of the maximum field strength
plotted on that pattern must be shown on an enlarged scale. In the case
of a composite antenna composed of two or more individual antennas, the
composite antenna pattern should be provided, and not the pattern for
each of the individual antennas.
(iii) A tabulation of the measured relative field pattern required
in paragraph (c)(1) of this section. The tabulation must use the same
zero degree reference as the plotted pattern, and must contain values
for at least every 10 degrees. Sufficient vertical patterns to indicate
clearly the radiation characteristics of the antenna above and below
the horizontal plane. Complete information and patterns must be
provided for angles of -10 deg. from the horizontal plane and
sufficient additional information must be included on that portion of
the pattern lying between +10 deg. and the zenith and -10 deg. and the
nadir, to conclusively demonstrate the absence of undesirable lobes in
these areas. The vertical plane pattern must be plotted on rectangular
coordinate paper with reference to the horizontal plane. In the case of
a composite antenna composed of two or more individual antennas, the
composite antenna pattern should be used, and not the pattern for each
of the individual antennas.
(iv) A statement that the antenna is mounted on the top of an
antenna tower recommended by the antenna manufacturer, or is side-
mounted on a particular type of antenna tower in accordance with
specific instructions provided by the antenna manufacturer.
(v) A statement that the directional antenna is not mounted on the
top of an antenna tower which includes a top-mounted platform larger
than the nominal cross-sectional area of the tower in the horizontal
plane.
(vi) A statement that no other antenna of any type is mounted on
the same tower level as a directional antenna, and that no antenna of
any type is mounted within any horizontal or vertical distance
specified by the antenna manufacturer as being necessary for proper
directional operation.
(vii) A statement from an engineer listing such individual
engineer's qualifications and certifying that the antenna has been
installed pursuant to the manufacturer's instructions.
(viii) A statement from a licensed surveyor that the installed
antenna is properly oriented.
(ix)(A) For a station authorized pursuant to Sec. 73.215 or Sec.
Sec. 73.509, a showing that the root mean square (RMS) of the measured
composite antenna pattern (encompassing both the horizontally and
vertically polarized radiation components (in relative field)) is at
least 85 percent of the RMS of the authorized composite directional
antenna pattern (in relative field). The RMS value, for a composite
antenna pattern specified in relative field values, may be determined
from the following formula:
RMS=the square root of:
[(relative field value 1)\2\ + (relative field value 2)\2\ +....+ (last
relative field value)\2\]
total number of relative field values
(B) where the relative field values are taken from at least 36
evenly spaced radials for the entire 360 degrees of azimuth. The
application for license must also demonstrate that coverage of the
community of license by the 70 dBu contour is maintained for stations
authorized pursuant to Sec. 73.215 on Channels 221 through 300, as
required by Sec. 73.315(a), while noncommercial educational stations
operating on Channels 201 through 220 must show that the 60 dBu contour
covers at least a portion of the community of license.
* * * * *
5. Section 73.1030 is amended by revising paragraph (a) as follows:
Sec. 73.1030 Notifications concerning interference to radio astronomy,
research and receiving installations.
(a)(1) Radio astronomy and radio research installations. In order
to minimize harmful interference at the National Radio Astronomy
Observatory site located at Green, Pocahontas County, West Virginia,
and at the Naval Radio Research Observatory at Sugar Grove, Pendleton
County, West Virginia, a licensee proposing to operate a short-term
broadcast auxiliary station pursuant to Section 74.24, and any
applicant for authority to construct a new broadcast station, or for
authority to make changes in the frequency, power, antenna height, or
antenna directivity of an existing station within the area bounded by
39 deg. 15' N on the north, 78 deg. 30' W on the east, 37 deg. 30' N on
the south, and 80 deg. 30' W on the west, shall notify the Interference
Office, National Radio Astronomy Observatory, P.O. Box 2, Green Bank,
West Virginia 24944. Telephone: (304) 456-2011. The notification shall
be in writing and set forth the particulars of the proposed station,
including the geographical coordinates of the antenna, antenna height,
antenna directivity if any, proposed frequency, type of emission and
power. The notification shall be made prior to, or simultaneously with,
the filing of the application with the Commission. After receipt of
such applications, the FCC will allow a period of 20 days for comments
or objections in response to the notifications indicated. If an
objection to the proposed operation is received during the 20-day
period from the National Radio Astronomy Observatory for itself, or on
behalf of the Naval Radio Research Observatory, the FCC will consider
all aspects of the problem and take whatever action is deemed
appropriate.
(2) Any applicant for a new permanent base or fixed station
authorization to be located on the islands of Puerto Rico, Desecheo,
Mona, Vieques, and Culebra, or for a modification of an existing
authorization to change the frequency,
[[Page 70049]]
power, antenna height, directivity, or location of a station on these
islands shall notify the Interference Office, Arecibo Observatory, Post
Office Box 995, Arecibo, Puerto Rico 00613, in writing or
electronically, of the technical parameters of the proposal. Applicants
shall consult interference guidelines, which will be provided by
Cornell University. Applicants who choose to transmit information
electronically should e-mail to: [email protected]
(i) The notification to the Interference Office, Arecibo
Observatory shall be made prior to, or simultaneously with, the filing
of the application with the Commission. The notification shall state
the geographical coordinates of the antenna (NAD-83 datum), antenna
height above ground, ground elevation at the antenna, antenna
directivity and gain, proposed frequency and FCC Rule Part, type of
emission, and effective radiated power.
(ii) After receipt of such applications, the Commission will allow
the Arecibo Observatory a period of 20 days for comments or objections
in response to the notification indicated. The applicant will be
required to make reasonable efforts to resolve or mitigate any
potential interference problem with the Arecibo Observatory and to file
either an amendment to the application or a modification application,
as appropriate. The Commission shall determine whether an applicant has
satisfied its responsibility to make reasonable efforts to protect the
Observatory from interference.
* * * * *
6. Section 73.1675 is amended by revising paragraph (a) as follows:
Sec. 73.1675 Auxiliary antennas.
(a)(i) An auxiliary antenna is one that is permanently installed
and available for use when the main antenna is out of service for
repairs or replacement. An auxiliary antenna may be located at the same
transmitter site as the station's main antenna or at a separate site.
The service contour of the auxiliary antenna may not extend beyond the
following corresponding contour for the main facility:
(i) AM stations: The 0.5 mV/m field strength contours.
(ii) FM stations: The 1.0 mV/m field strength contours.
(iii) TV stations: The Grade B coverage contours.
(a)(2) An application for an auxiliary antenna for an AM station
filed pursuant to paragraphs (b) or (c) of this section must contain a
map showing the 0.5 mV/m field strength contours of both the main and
auxiliary facilities.
* * * * *
7. Section 73.3500 is amended by adding an (a) paragraph
designation to the introductory text and adding paragraph (b) to read
as follows:
Sec. 73.3500 Application and report forms.
(a) Following are the FCC broadcast application and report forms,
listed by number.
* * * * *
(b) Following are the FCC broadcast application and report forms,
listed by number, that must be filed electronically in accordance with
the filing instructions set forth in the application and report form.
(1) Form 398, in electronic form as of January 10, 1999.
8. Section 73.3526 is amended by revising paragraph (e)(11)(iii) to
read as follows:
Sec. 73.3526 Local public inspection file of commercial stations.
* * * * *
(e)(11)(iii) Children's Television Programming Reports. For
commercial TV broadcast stations, on a quarterly basis, a completed
Children's Television Programming Report (``Report''), on FCC Form 398,
reflecting efforts made by the licensee during the preceding quarter,
and efforts planned for the next quarter, to serve the educational and
informational needs of children. The Report for each quarter is to be
filed by the tenth day of the succeeding calendar quarter. The Report
shall identify the licensee's educational and informational programming
efforts, including programs aired by the station that are specifically
designed to serve the educational and informational needs of children,
and it shall explain how programs identified as Core Programming meet
the definition set forth in Sec. 73.671(c). The Report shall include
the name of the individual at the station responsible for collecting
comments on the station's compliance with the Children's Television
Act, and it shall be separated from other materials in the public
inspection file. These Reports shall be retained in the public
inspection file until final action has been taken on the station's next
license renewal application. Licensees shall publicize in an
appropriate manner the existence and location of these Reports. For an
experimental period of three years, licensees shall file these Reports
with the Commission on an annual basis, i.e. four quarterly reports
filed jointly each year, in electronic form as of January 10, 1999.
These Reports shall be filed with the Commission on January 10, 1998,
January 10, 1999, and January 10, 2000.
* * * * *
9. Section 73.3534 is revised to read as follows:
Sec. 73.3534 Period of construction for Instructional TV Fixed station
construction permit and requests for extension thereof.
(a) Each original construction permit for the construction of a new
Instructional TV Fixed station, or to make changes in such existing
stations, shall specify a period of 18 months from the date of issuance
of the original construction permit within which construction shall be
completed and application for license filed.
(b) Requests for extension of time within which to construct an
Instructional TV Fixed station shall be filed at least 30 days prior to
the expiration date of the construction permit if the facts supporting
such request for extension are known to the applicant in time to permit
such filing. In other cases, a request will be accepted upon a showing
satisfactory to the FCC of sufficient reasons for filing within less
than 30 days prior to the expiration date.
(c) Requests for extension of time to construct Instructional TV
Fixed stations will be granted upon a specific and detailed narrative
showing that the failure to complete construction was due to causes not
under the control of the permittee, or upon a specific and detailed
showing of other sufficient justification for an extension.
(d) If a request for extension of time within which to construct an
Instructional TV Fixed station is approved, such an extension will be
limited to a period of no more than 6 months.
(e) A construction permit for an Instructional TV Fixed station
shall be declared forfeited if the station is not ready for operation
within the time specified therein or within such further time as the
FCC may have allowed for completion, and a notation of the forfeiture
of any construction permit under this provision will be placed in the
records of the FCC as of the expiration date.
Sec. 73.3535 [Removed]
10. Section 73.3535 is removed.
11. Section 73.3597 is amended by adding paragraph (c)(1)(iii) as
follows:
Sec. 73.3597 Procedures on transfer and assignment applications.
* * * * *
(c) (1) * * *
(i) * * *
(ii) * * *
[[Page 70050]]
(iii) The provisions of paragraphs (c) and (d) of this section
apply only to mutually exclusive noncommercial educational applications
filed on or after the release of the Report and Order in MM Docket 98-
43, where the construction permit is issued pursuant to settlement
agreement.
* * * * *
12. Section 73.3598 is revised to read as follows:
Sec. 73.3598 Period of construction.
(a) Each original construction permit for the construction of a new
TV, AM, FM or International Broadcast; low power TV; TV translator; TV
booster; FM translator; FM booster; or broadcast auxiliary station, or
to make changes in such existing stations, shall specify a period of
three years from the date of issuance of the original construction
permit within which construction shall be completed and application for
license filed.
(b) The period of construction for an original construction permit
shall toll when construction is prevented by the following causes not
under the control of the permittee:
(i) Construction is prevented due to an act of God, defined in
terms of natural disasters (e.g., floods, tornados, hurricanes, or
earthquakes) or
(ii) the grant of the permit is the subject of administrative or
judicial review (i.e., petitions for reconsideration and applications
for review of the grant of a construction permit pending before the
Commission and any judicial appeal of any Commission action thereon),
or construction is delayed by any cause of action pending before any
court of competent jurisdiction relating to any necessary local, state
or federal requirement for the construction or operation of the
station, including any zoning or environmental requirement.
(c) A permittee must notify the Commission as promptly as possible
and, in any event, within 30 days, of any pertinent event covered by
paragraph (b) of this section, and provide supporting documentation.
All notifications must be filed in triplicate with the Secretary and
must be placed in the station's local public file.
(d) A permittee must notify the Commission promptly when a relevant
administrative or judicial review is resolved. Tolling resulting from
an act of God will automatically cease six months from the date of the
notification described in paragraph (c) of this section, unless the
permittee submits additional notifications at six month intervals
detailing how the act of God continues to cause delays in construction,
any construction progress, and the steps it has taken and proposes to
take to resolve any remaining impediments.
(e) Any construction permit for which construction has not been
completed and for which an application for license has not been filed,
shall be automatically forfeited upon expiration without any further
affirmative cancellation by the Commission.
Sec. 73.3599 [Removed]
13. Section 73.3599 is removed:
14. Section 73.3613 is amended by adding paragraph (b)(7) as
follows:
Sec. 73. 3613 Filing of contracts.
* * * * *
(b) * * *
(7) Agreements providing for the assignment of a license or permit
or agreements for the transfer of stock filed in accordance with FCC
application Forms 314, 315, 316 need not be resubmitted pursuant to the
terms of this rule provision.
15. Section 73.3615 is amended by revising paragraphs (a) and
(a)(1); the first sentence of paragraph (a)(2); paragraph (a) (3) (i)
(A); paragraph (c); paragraph (d) introductory text and paragraphs (e)
and (f) as follows:
Sec. 73.3615 Ownership Reports.
(a) With the exception of sole proprietorships and partnerships
composed entirely of natural persons, each licensee of a commercial AM,
FM, or TV broadcast station shall file an Ownership Report on FCC Form
323 when filing the station's license renewal application and every two
years thereafter on the anniversary of the date that its renewal
application is required to be filed. Licensees owning multiple stations
with different anniversary dates need file only one Report every two
years on the anniversary of their choice, provided that their Reports
are not more than two years apart. A licensee with a current and
unamended Report on file at the Commission may certify that it has
reviewed its current Report and that it is accurate, in lieu of filing
a new Report. Ownership Reports shall provide the following information
as of a date not more than 60 days prior to the filing of the Report:
(1) In the case of an individual, the name, race or ethnicity, and
gender of such individual;
(2) In the case of a partnership, the name, race or ethnicity, and
gender of each partner and the interest of each partner. * * *
(a) * * *
(3) * * *
(i) * * *
(A) The name, residence, citizenship, race or ethnicity, gender,
and stockholding of every officer, director, trustee, executor,
administrator, receiver and member of an association, and any
stockholder which holds stock accounting for 5 percent or more of the
votes of the corporation, except that an investment company, insurance
company, or bank trust department need be reported only if it holds
stock amounting to 10 percent or more of the votes, provided that the
licensee certifies that such entity has made no attempt to influence,
directly or indirectly, the management or operation of the licensee,
and that there is no representation on the licensee's board or among
its officers by any person professionally or otherwise associated with
the entity.
* * * * *
(c) Before any change is made in the organization, capitalization,
officers, directors, or stockholders of a corporation other than
licensee or permittee, which results in a change in the control of the
licensee or permittee, prior FCC consent must be received under
Sec. 73.3540. A transfer of control takes place when an individual or
group in privity, gains or loses affirmative or negative (50%) control.
See instructions on FCC Form 323 (Ownership Report). Each permittee or
licensee of a commercial AM, FM or TV Broadcast station shall file an
Ownership Report on FCC Form 323 within 30 days of consummating
authorized assignments or transfers of permits and licenses. The
Ownership Report of the permittee or licensee shall give the
information required by the applicable portions of paragraph (a) of
this section.
(d) Each licensee of a noncommercial educational AM, FM or TV
broadcast station shall file an Ownership Report on FCC Form 323-E when
filing the station's license renewal application and every two years
thereafter on the anniversary of the date that its renewal application
is required to be filed. Licensees owning more than one noncommercial
educational AM, FM or TV broadcast station with different anniversary
dates need file only one Report every two years on the anniversary of
their choice, provided that their Reports are not more than two years
apart. A licensee with a current and unamended Report on file at the
Commission may certify that it has reviewed its current Report and that
it is accurate, in lieu of filing a new Report. Ownership reports shall
give the following information as of a date not
[[Page 70051]]
more than 60 days prior to the filing of the Ownership Report:
* * * * *
(e) Each permittee of a noncommercial educational AM, FM or TV
broadcast station shall file an Ownership Report on FCC Form 323-E:
(1) Within 30 days of the date of grant by the FCC of an
application for original construction permit and;
(2) On the date that it applies for a station license. The
Ownership Report of the permittee shall give the information required
by the applicable form. A permittee with a current and unamended Report
on file at the Commission may certify that it has reviewed its current
Report and it is accurate, in lieu of filing a new Report.
(f) Each permittee or licensee of a noncommercial educational AM,
FM or TV Broadcast station shall file an Ownership Report on FCC Form
323-E within 30 days of consummating authorized assignments or
transfers of permits and licenses. The Ownership Report of the
noncommercial educational permittee or licensee shall give the
information required by the applicable form.
* * * * *
[FR Doc. 98-33486 Filed 12-17-98; 8:45 am]
BILLING CODE 6712-01-P