[Federal Register Volume 64, Number 88 (Friday, May 7, 1999)]
[Rules and Regulations]
[Pages 24523-24528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11503]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 74
[MM Docket No. 97-234, GC Docket No. 92-52, and GEN Docket No. 90-264;
FCC 99-74]
Implementation of Competitive Bidding for Commercial Broadcast
and Instructional Television Fixed Service Licenses
AGENCY: Federal Communications Commission.
ACTION: Final rule; petitions for reconsideration.
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SUMMARY: In this document, the Federal Communications Commission
resolves numerous petitions for reconsideration filed against the
Commission's earlier report and order in this proceeding that
implemented provisions of the Balanced Budget Act of 1997 expanding the
Commission's competitive bidding authority to include the commercial
broadcast services. The document generally upholds the Commission's
earlier determinations, but does amend the rules and procedures
previously adopted with respect to the application of the general
auction anti-collusion rule to broadcast service auctions and the
eligibility standards for the new entrant bidding credit.
EFFECTIVE DATE: July 6, 1999.
FOR FURTHER INFORMATION CONTACT: Jerianne Timmerman, Video Services
Division, Mass Media Bureau at (202)418-1600; Lisa Scanlan, Audio
Services Division, Mass Media Bureau at (202)418-2700; Lee Martin,
Office of General Counsel at (202)418-1720.
SUPPLEMENTARY INFORMATION:
Summary
1. In this Memorandum Opinion and Order adopted April 15, 1999, and
released April 20, 1999, the Federal Communications Commission resolves
petitions for reconsideration of the rules and procedures adopted in
the First Report and Order, 63 FR 48615 (September 11, 1998), to
implement provisions of the Balanced Budget Act of 1997 expanding the
Commission's competitive bidding authority to include the commercial
broadcast services and the Instructional Television Fixed Service
(ITFS). The Memorandum Opinion and Order denies most issues presented
in the petitions for reconsideration, but grants certain aspects of the
petitions, most notably amending the applicability of the general anti-
collusion rule to broadcast service auctions and refining the standards
for applicants to qualify for the new entrant bidding credit.
Issues Pertaining to Pending Competing Applications
2. The Memorandum Opinion and Order upholds the Commission's
determinations made in the First Report and Order with respect to
pending competing full service commercial broadcast applications.
Specifically, the Memorandum Opinion and Order denies reconsideration
petitions: (1) challenging the Commission's decision to use auctions to
decide among pending competing broadcast applications; (2) requesting
the reimbursement of all expenses incurred by pending applicants who
filed with the expectation that the Commission would use a comparative
hearing to select among competing broadcast applications; (3)
questioning the determination to defer until after the auction the
resolution of basic qualifications issues raised against pending
applicants; (4) challenging the determination that new Section 309(l)
of the Communications Act permits the opening of a new filing window
with respect to singleton analog television applications (with freeze
waiver requests) filed by September 20, 1996; and (5) requesting some
provision for a specific situation in which a competing applicant with
interim operating authority has been allowed to operate a contested FM
station for profit.
Filing and Other Procedural Issues
3. The Memorandum Opinion and Order upholds the Commission's
determinations made in the First Report and Order regarding the
following filing and procedural issues: (1) the utilization of a
uniform window filing system for all auctionable broadcast services,
including the FM translator and AM services; (2) allowing applicants
the option of submitting a set of preferred site coordinates on their
short-form applications (FCC Form 175) to participate in an FM auction;
and (3) continuing to use for the filing of short-form applications in
broadcast auctions the Wide Area Network utilized in previous
Commission auctions for the filing of short-forms. In response to one
petition, the Memorandum Opinion and Order extends from 10 to 15 days
the filing period for petitions to deny against the long-form
applications filed by winning bidders for construction permits in the
secondary broadcast services. The Memorandum Opinion and Order also
clarifies the applicability of Section 1.2112(a) of the general Part 1
auction rules to broadcast transfer and assignment applications, so as
to reduce the repetitive submission of similar ownership information.
Competitive Bidding Issues
4. With regard to competitive bidding issues, the Memorandum
Opinion and Order rejects the assertion that the imposition of reserve
prices or minimum opening bids is not in the public interest in the
broadcast context, and declines to adopt a proposal to resolve any
remaining competing June 1, 1998 low power television displacement
applications by means of various suggested priorities. The Memorandum
Opinion and Order also rejects the contention that the Commission
should adopt a post-auction procedure where, upon petition by a winning
bidder, the Commission would consider evidence that the winning bidder
was the sole qualified applicant for a broadcast authorization, and, in
cases in which such a demonstration was made that the unsuccessful
competing bidders for that authorization were unqualified, the winning
bidder should be relieved of its obligation to remit the payment of its
winning bid.
5. A number of petitioners called for an exception to the general
auction anti-collusion rule to allow, after the filing of short-form
applications in broadcast auctions, an opportunity for negotiated
settlements and/or for technical and engineering solutions to remove
mutual exclusivities before proceeding to auction. Although the
Memorandum Opinion and Order rejects the contention that the Commission
is statutorily required to allow such a settlement opportunity prior to
broadcast service auctions, it concludes that allowing the resolution
of mutual exclusivities by engineering solutions or other means
following the submission of short-form applications would serve the
public interest in the secondary broadcast services, and in ITFS as
well.
6. Several petitioners objected to various aspects of the new
entrant bidding credit, which provides a tiered credit for broadcast
auction winning bidders with no, or very few, other media interests. In
response to these petitions, and to promote the clear and consistent
application of the eligibility standards for the bidding credit, the
Memorandum Opinion and Order: (1) amends the eligibility standards for
the bidding credit to be consistent with the
[[Page 24524]]
Commission's general broadcast attribution standards; (2) amends the
eligibility standards for the credit so that a winning bidder's
attributable interests in existing secondary broadcast stations are not
counted among the bidder's other mass media interests in determining
eligibility; and (3) refines the standards for determining whether a
winning bidder's proposed broadcast station and the bidder's existing
station(s) serve the ``same area,'' thereby rendering the bidder
ineligible for a bidding credit. In addition, the Memorandum Opinion
and Order declines to increase the size of the tiered new entrant
bidding credit, and clarifies that the credit applies only to broadcast
service auctions (and not to ITFS auctions). Finally, the Memorandum
Opinion and Order states that the Commission will consider in a further
order in this proceeding an additional refinement to the new entrant
eligibility standards; specifically, this further order will consider
whether to attribute debt and/or equity above a certain level, based on
the Commission's review of the record in the pending broadcast
attribution proceeding.
7. The complete text of this Memorandum Opinion and Order,
including any statements, is available for inspection and copying
during normal business hours in the Federal Communications Commission
Reference Center (Room CY-A257), 445 12th Street, S.W., Washington,
D.C., and it may be purchased from the Commission's copy contractor,
International Transcription Service, Inc., 1231 20th Street, N.W.,
Washington, D.C. 20036 (202) 857-3800.
Supplemental Final Regulatory Flexibility Analysis
Summary
8. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C.
603, a Final Regulatory Flexibility Analysis (FRFA) was incorporated in
the First Report and Order in this proceeding. The Commission's
Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA)
in this Memorandum Opinion and Order reflects revised or additional
information to that contained in the FRFA. This Supplemental FRFA is
thus limited to matters raised in response to the First Report and
Order that are granted on reconsideration in the Memorandum Opinion and
Order. This Supplemental FRFA conforms to the RFA, as amended by the
Contract with America Advancement Act of 1996.
Need For and Objectives of Action
9. The actions taken in this Memorandum Opinion and Order are in
response to petitions for reconsideration or clarification of the rules
and policies adopted in the First Report and Order to implement
provisions of the Balanced Budget Act of 1997 expanding the
Commission's competitive bidding authority to include the broadcast
services and the Instructional Television Fixed Service (ITFS). The
petitions are denied, with certain limited exceptions.
Significant Issues Raised by Public in Response to Final Regulatory
Flexibility Analysis
10. No petitions or comments were received in response to the FRFA.
Small business-related issues were, however, raised indirectly by some
petitioners, who asked for reconsideration on certain issues affecting
low power television and television and FM translator applicants (most
of whom are small businesses).
Description and Estimate of the Number of Small Entities Involved
11. Definition of a ``Small Business''. Under the RFA, small
entities may 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 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 which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register.''
12. In the FRFA, we utilized the definition of ``small business''
promulgated by the SBA, even though, as discussed in detail in the
FRFA, we tentatively believed that the SBA's definition of ``small
business'' overstated the number of radio and television broadcast
stations that were small businesses and was not particularly suitable
for our purposes. No petitions or comments were received concerning the
Commission's use of the SBA's small business definition for the
purposes of the FRFA, and we will therefore continue to employ such
definition for this Supplemental FRFA.
13. Issues in Applying the Definition of a ``Small Business''. As
discussed below, we could not precisely apply the foregoing definition
of ``small business'' in developing our estimates of the number of
small entities affected by the revised application and selection
procedures adopted in the First Report and Order for the broadcast
services and for ITFS. Our estimates reflect our best judgments based
on the data available to us.
14. An element of the definition of ``small business'' is that the
entity not be dominant in its field of operation. We are unable at this
time to define or quantify the criteria that would establish whether a
specific radio or television station is dominant in its field of
operation. Accordingly, the following estimates of the number of
broadcasting stations that constitute small businesses do not exclude
any radio or television station from the definition of small business
on this basis and are therefore overinclusive to that extent. An
additional element of the definition of ``small business'' is that the
entity must be independently owned and operated. As discussed further
below, we could not fully apply this criterion, and our estimates of
small businesses to which the amended application and selection
procedures may apply may be overinclusive to this extent.
15. With respect to applying the revenue cap, the SBA has defined
``annual receipts'' specifically in 13 CFR 121.104, and its
calculations include an averaging process. We do not currently require
submission of financial data from licensees that we could use in
applying the SBA's definition of a small business. Thus, for purposes
of estimating the number of small entities to which the rules apply, we
are limited to considering the revenue data that are publicly
available, and the revenue data on which we rely may not correspond
completely with the SBA definition of annual receipts.
16. Under SBA criteria for determining annual receipts, if a
concern has acquired an affiliate or been acquired as an affiliate
during the applicable averaging period for determining annual receipts,
the annual receipts in determining size status include the receipts of
both firms. 13 CFR 121.104(d)(1). The SBA defines affiliation in 13 CFR
121.103. In this context, the SBA's definition of affiliate is
analogous to our attribution rules. Generally, under the SBA's
definition, concerns are affiliates of each other when one concern
controls or has the
[[Page 24525]]
power to control the other, or a third party or parties controls or has
the power to control both. 13 CFR 121.103(a)(1). The SBA considers
factors such as ownership, management, previous relationships with or
ties to another concern, and contractual relationships, in determining
whether affiliation exists. 13 CFR 121.103(a)(2). Instead of making an
independent determination of whether television stations were
affiliates based on SBA's definitions, we relied on the databases
available to us to provide us with that information.
17. Estimates Based on Census Data. The rules and policies adopted
in the First Report and Order will apply to the various broadcast and
secondary broadcast services and to ITFS. 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. Separate establishments
primarily engaged in producing taped television program materials are
classified under another SIC number.
18. There were 1,509 television stations operating in the nation in
1992. That number has remained fairly steady as indicated by the
approximately 1,590 operating television broadcasting stations in the
nation as of January 1999. For 1992, the number of television stations
that produced less than $10.0 million in revenue was 1,155
establishments. Thus, of the 1,590 television stations approximately
77%, or 1,224, of those stations are considered small businesses. As of
January 1999, 2136 low power television stations and 4921 television
translator stations were also licensed, and we believe the vast
majority of these stations 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 affiliated companies.
19. 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. However, radio stations that are separate
establishments and are primarily engaged in producing radio program
material are classified under another SIC number. The 1992 census
indicates that 96% (5,861 of 6,127) of radio station establishments
produced less than $5 million in revenue in 1992. Official Commission
records indicate that 11,334 individual radio stations were operating
in 1992. As of January 1999, official Commission records indicate that
12,496 radio stations were operating. We conclude that a similarly high
percentage (96%) of current radio broadcasting licensees are small
entities. As of January 1999, there were also 3171 FM translator/
booster stations licensed, and we believe the vast majority of these
stations 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-radio affiliated companies.
20. In addition, there are presently 2032 ITFS licensees. All but
100 of these licenses are held by educational institutions. Educational
institutions may be included in the definition of a small entity. ITFS
is a non-pay, non-commercial educational microwave service that,
depending on SBA categorization, has, as small entities, entities
generating either $10.5 million or less, or $11.0 million or less, in
annual receipts. However, we do not collect, nor are we aware of other
collections of, annual revenue data for ITFS licensees. Thus, we
conclude that up to 1932 of these licensees are small entities.
21. Pending and Future Applicants Affected by Rulemaking. The
auction selection procedures set forth in the First Report and Order
will affect pending and future competing applicants for the various
commercial broadcast services and for ITFS. We estimate that there are
currently pending before the Commission the following mutually
exclusive applications: (1) approximately 620 mutually exclusive
applications for full power commercial radio stations, and 165
competing applications for full power commercial analog television
stations; (2) approximately 275 mutually exclusive applications for low
power television stations and television translator stations, and 20
competing applications for FM translator stations; and (3)
approximately 200 or more mutually exclusive applications for ITFS
stations. The Commission has no data on file as to whether entities
with pending permit applications, which are subject to the new
competitive bidding selection procedures adopted for the broadcast
services, meet the SBA's definition of a small business concern.
However, we conclude that, given the smaller size of the markets at
issue in the pending applications, most of the entities with pending
applications for a permit to construct a new primary or secondary
broadcast station are small entities, as defined by the SBA rules. It
is not possible, at this time, to estimate the number of markets for
which mutually exclusive applications will be received, nor the number
of entities that in the future may seek a construction permit for a new
broadcast station. Given the fact that fewer new stations (particularly
fewer analog television stations) will be licensed in the future and
that these stations generally will be located in smaller, more rural
areas, we conclude that most of the entities applying for these
stations will be small entities, as defined by the SBA rules.
Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements
22. The First Report and Order adopted a number of rules that
included reporting, recordkeeping and compliance requirements. These
requirements were described in detail in the FRFA, and generally remain
unchanged by the rule amendments adopted in this Memorandum Opinion and
Order. The rules adopted in this Memorandum Opinion and Order do amend
the applicability of the general auction anti-collusion rule (see 47
CFR 1.2105(c)) so that mutually exclusive applicants in the secondary
broadcast services may discuss settlement or other means of resolving
their mutual exclusivities following the short-form application filing
deadline. The Memorandum Opinion and Order also amends our rules to
clarify that certain ownership disclosure requirements set forth in
Section 1.2112(a) of the general Part 1 auction rules will not apply to
applicants seeking consent to assign or transfer control of broadcast
construction permits or licenses.
Steps Taken to Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
23. The FRFA described in considerable detail the steps taken in
the First Report and Order to minimize significant economic impact on
small entities and the alternatives considered. The rule amendments
adopted in this Memorandum Opinion and Order
[[Page 24526]]
should also serve to minimize the adverse impact of our broadcast
auction rules on small entities. First, the Memorandum Opinion and
Order amends the applicability of the general auction anti-collusion
rule so that competing low power television, television and FM
translator, and ITFS applicants will have an opportunity to settle or
otherwise resolve their mutual exclusivities following the short-form
application filing deadline (and thereby avoid the need to go to
auction). Second, the Memorandum Opinion and Order refines in various
ways the eligibility standards for the new entrant bidding credit,
which provides a tiered credit for broadcast auction winning bidders
with no, or very few, other mass media interests. Third, the Memorandum
Opinion and Order also lengthens from 10 to 15 days the period for the
filing of petitions to deny against the long-form applications filed by
winning bidders in the secondary broadcast services and in ITFS.
Finally, the Memorandum Opinion and Order reduces the burden on all
broadcast applicants (including small businesses) seeking consent to
assign or transfer control of broadcast construction permits or
licenses by clarifying that the ownership disclosure requirements set
forth in Section 1.2112(a) of the general auction rules are not
applicable to such transactions.
Report to Congress
24. The Commission will send a copy of the Memorandum Opinion and
Order, including this Supplemental 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
will send a copy of the Memorandum Opinion and Order, including the
Supplemental FRFA, to the Chief Counsel for Advocacy of the Small
Business Administration.
Authority for issuance of this Memorandum Opinion and Order is
contained in Sections 4(i) and (j), 301, 303(f), 303(g), 303(h),
303(j), 303(r), 307(c), 308(b), 309(j), 309(l) and 403 of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 301,
303(f), 303(g), 303(h), 303(j), 303(r), 307(c), 308(b), 309(j), 309(l)
and 403.
List of Subjects in 47 CFR Parts 73 and 74
Radio broadcasting, Reporting and recordkeeping requirements,
Television broadcasting.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Parts 73 and 74 of Chapter 1 of Title 47 of the Code of Federal
Regulations are amended as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, and 336.
2. Section 73.5002 is amended by revising paragraphs (c) and (d) to
read as follows:
Sec. 73.5002 Bidding application and certification procedures;
prohibition of collusion.
* * * * *
(c) Applicants in all broadcast service or ITFS auctions will be
subject to the provisions of Sec. 1.2105(b) of this chapter regarding
the modification and dismissal of their short-form applications.
Notwithstanding the general applicability of Sec. 1.2105(b) of this
chapter to broadcast and ITFS auctions, the following applicants will
be permitted to resolve their mutual exclusivities by making amendments
to their engineering submissions following the filing of their short-
form applications:
(1) applicants for all broadcast services and ITFS who file major
modification applications that are mutually exclusive with each other;
(2) applicants for all broadcast services and ITFS who file major
modification and new station applications that are mutually exclusive
with each other; or
(3) applicants for the secondary broadcast services and ITFS who
file applications for new stations that are mutually exclusive with
each other.
(d) The prohibition of collusion set forth in Sec. 1.2105(c) of
this chpater, which becomes effective upon the filing of short-form
applications, shall apply to all broadcast service or ITFS auctions.
Notwithstanding the general applicability of Sec. 1.2105(c) of this
chapter to broadcast and ITFS auctions, the following applicants will
be permitted to resolve their mutual exclusivities by means of
engineering solutions or settlements during a limited period after the
filing of short-form applications, as further specified by Commission
public notices:
(1) applicants for all broadcast services and ITFS who file major
modification applications that are mutually exclusive with each other;
(2) applicants for all broadcast services and ITFS who file major
modification and new station applications that are mutually exclusive
with each other; or
(3) applicants for the secondary broadcast services and ITFS who
file applications for new stations that are mutually exclusive with
each other.
3. Section 73.5006 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 73.5006 Filing of petitions to deny against long-form
applications.
* * * * *
(b) Within ten (10) days following the issuance of a public notice
announcing that a long-form application for an AM, FM or television
construction permit has been accepted for filing, petitions to deny
that application may be filed. Within fifteen (15) days following the
issuance of a public notice announcing that a long-form application for
a low power television, television translator or FM translator
construction permit or ITFS license has been accepted for filing,
petitions to deny that application may be filed. Any such petitions
must contain allegations of fact supported by affidavit of a person or
persons with personal knowledge thereof.
(c) An applicant may file an opposition to any petition to deny,
and the petitioner a reply to such opposition. Allegations of fact or
denials thereof must be supported by affidavit of a person or persons
with personal knowledge thereof. In the AM, FM and television broadcast
services, the time for filing such oppositions shall be five (5) days
from the filing date for petitions to deny, and the time for filing
replies shall be five (5) days from the filing date for oppositions. In
the low power television, television translator and FM translator
broadcast services and in ITFS, the time for filing such oppositions
shall be fifteen (15) days from the filing date for petitions to deny,
and the time for filing replies shall be ten (10) days from the filing
date for oppositions.
* * * * *
4. Section 73.5007 is revised to read as follows:
Sec. 73.5007 Designated entity provisions.
(a) New entrant bidding credit. A winning bidder that qualifies as
a ``new entrant'' may use a bidding credit to lower the cost of its
winning bid on any broadcast construction permit. Any winning bidder
claiming new entrant status must have de facto, as well as de jure,
control of the entity utilizing the bidding credit. A thirty-five (35)
percent bidding credit will be given to a
[[Page 24527]]
winning bidder if it, and/or any individual or entity with an
attributable interest in the winning bidder, have no attributable
interest in any other media of mass communications, as defined in
Sec. 73.5008. A twenty-five (25) percent bidding credit will be given
to a winning bidder if it, and/or any individual or entity with an
attributable interest in the winning bidder, have an attributable
interest in no more than three mass media facilities. No bidding credit
will be given if any of the commonly owned mass media facilities serve
the same area as the proposed broadcast or secondary broadcast station,
or if the winning bidder, and/or any individual or entity with an
attributable interest in the winning bidder, have attributable
interests in more than three mass media facilities. Attributable
interests held by a winning bidder in existing low power television,
television translator or FM translator facilities will not be counted
among the bidder's other mass media interests in determining
eligibility for a bidding credit.
(b) The new entrant bidding credit is not available to a winning
bidder if it, and/or any individual or entity with an attributable
interest in the winning bidder, have an attributable interest in any
existing media of mass communications in the same area as the proposed
broadcast or secondary broadcast facility.
(1) Any existing media of mass communications will be considered in
the ``same area'' as a proposed broadcast or secondary broadcast
facility if the relevant defined service areas of the existing mass
media facilities partially overlap, or are partially overlapped by, the
proposed broadcast or secondary broadcast facility's relevant contour.
(2) For purposes of determining whether any existing media of mass
communications is in the ``same area'' as a proposed broadcast or
secondary broadcast facility, the relevant defined service areas of the
existing mass media facilities shall be as follows:
(i) AM broadcast station--principal community contour (see
Sec. 73.3555(a)(4)(i));
(ii) FM broadcast station--principal community contour (see
Sec. 73.3555(a)(4)(i));
(iii) Television broadcast station--television duopoly contour (see
Sec. 73.3555(b));
(iv) Cable television system--the franchised community of a cable
system;
(v) Daily newspaper--community of publication; and
(vi) Multipoint Distribution Service station--protected service
area (see Secs. 21.902(d) or 21.933 of this chapter).
(3) For purposes of determining whether a proposed broadcast or
secondary broadcast facility is in the ``same area'' as an existing
mass media facility, the relevant contours of the proposed broadcast or
secondary broadcast facility shall be as follows:
(i) AM broadcast station--principal community contour (see
Sec. 73.3555(a)(4)(i));
(ii) FM broadcast station--principal community contour (see
Sec. 73.3555(a)(4)(i));
(iii) FM translator station--predicted, protected contour (see
Sec. 74.1204(a) of this chapter);
(iv) Television broadcast station--television duopoly contour (see
Sec. 73.3555(b)); and
(v) Low power television or television translator station--
predicted, protected contour (see Sec. 74.707(a) of this chapter).
(c) Unjust enrichment. If a licensee or permittee that utilizes a
new entrant bidding credit under this subsection seeks to assign or
transfer control of its license or construction permit to an entity not
meeting the eligibility criteria for the bidding credit, the licensee
or permittee must reimburse the U.S. Government for the amount of the
bidding credit, plus interest based on the rate for ten-year U.S.
Treasury obligations applicable on the date the construction permit was
originally granted, as a condition of Commission approval of the
assignment or transfer. If a licensee or permittee that utilizes a new
entrant bidding credit seeks to assign or transfer control of a license
or construction permit to an entity that is eligible for a lower
bidding credit, the difference between the bidding credit obtained by
the assigning party and the bidding credit for which the acquiring
party would qualify, plus interest based on the rate for ten-year U.S.
Treasury obligations applicable on the date the construction permit was
originally granted, must be paid to the U.S. Government as a condition
of Commission approval of the assignment or transfer. The amount of the
reimbursement payments will be reduced over time. An assignment or
transfer in the first two years after issuance of the construction
permit to the winning bidder will result in a forfeiture of one hundred
(100) percent of the value of the bidding credit; during year three, of
seventy-five (75) percent of the value of the bidding credit; in year
four, of fifty (50) percent; in year five, twenty-five (25) percent;
and thereafter, no payment. If a licensee or permittee who utilized a
new entrant bidding credit in obtaining a broadcast license or
construction permit acquires within this five-year reimbursement period
an additional broadcast facility or facilities, such that the licensee
or permittee would not have been eligible for the new entrant credit,
the licensee or permittee will generally not be required to reimburse
the U.S. Government for the amount of the bidding credit.
5. Section 73.5008 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 73.5008 Definitions applicable for designated entity provisions.
* * * * *
(b) A medium of mass communications means a daily newspaper; a
cable television system; or a license or construction permit for a
television broadcast station, an AM or FM broadcast station, a direct
broadcast satellite transponder, or a Multipoint Distribution Service
station.
(c) An attributable interest in a winning bidder or in a medium of
mass communications shall be determined in accordance with Sec. 73.3555
and Note 2.
6. Section 73.5009 is revised to read as follows:
Sec. 73.5009 Assignment or transfer of control.
The reporting requirement contained in Sec. 1.2111(a) of this
chapter shall apply to an applicant seeking approval for a transfer of
control or assignment of a broadcast construction permit or license
within three years of receiving such permit or license by means of
competitive bidding.
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
7. The authority citation for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 307, and 554.
8. Section 74.912 is revised to read as follows:
Sec. 74.912 Petitions to deny.
(a) Petitions to deny against the long-form applications filed by
winning bidders in ITFS auctions must be filed in accordance with
Sec. 73.5006 of this chapter. Petitions to deny against applications
for transfers of control of ITFS licensees, or for assignments of ITFS
station licenses, must be filed not later than 30 days after issuance
of a public notice of the acceptance for filing of the transfer or
assignment application. In the case of applications for renewal of
license, petitions to deny may be filed after the issuance of a public
notice of acceptance for filing of the applications and up until the
first day of the last full calendar month of the expiring license term.
Any party in interest may file a petition to deny any notification
regarding a low power ITFS
[[Page 24528]]
signal booster station, within the 60 day period provided for in
Sec. 74.985(e).
(b) The applicant or notifier may file an opposition to any
petition to deny, and the petitioner a reply to such opposition in
which allegations of fact or denials thereof shall be supported by
affidavit of a person or persons with personal knowledge thereof.
Except with regard to petitions to deny against the long-form
applications of ITFS auction winners, the times for filing such
oppositions and replies shall be those provided in Sec. 1.45 of this
chapter.
[FR Doc. 99-11503 Filed 5-6-99; 8:45 am]
BILLING CODE 6712-01-U