**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Grandfathered Short-Spaced ) MM Docket No. 96-120

FM Stations ) RM-7651

**REPORT AND ORDER**

**Adopted: August 4, 1997 Released: August 8, 1997**

**By the Commission:**

**TABLE OF CONTENTS**

Subject Paragraph No.

**I. Introduction** 1

**II. Summary of Notice Proposals** 3

**III. Resolution of Individual Proposals**

A. Predicted Interference Contours and Population

Considerations for Co-channel and First-adjacent

Short-Spaced Grandfathered FM Stations 4

B. Elimination of Second- and Third-adjacent Channel

Spacing Requirements for Grandfathered

Short-Spaced FM Stations. 20

C. Eliminate the Need to Obtain Agreements for

Grandfathered Short-Spaced FM Stations. 30

**IV. Conclusion** 35

**V. Ordering Clauses** 37

A. Effective Date 38

B. For Further Information 39

**Appendix A** New and Revised Rules adopted by this *Order*

**Appendix B** List of Commenters

**Appendix C** *Regulatory Flexibility Analysis*

**INTRODUCTION**

. In the *Notice of Proposed Rulemaking* (\"*Notice*\"*)* in this
proceeding,[^1] we proposed clarifications and revisions to the rules
for pre-1964 grandfathered short-spaced FM radio broadcast stations to
streamline the current method of proposing modifications to existing
facilities.[^2] The *Notice* also responded to a \"Joint Petition\" for
rule making filed February 1, 1991, by the firms of Hatfield and Dawson;
du Treil, Lundin and Rackley, Inc.; and Cohen, Dippell and Everist,
P.C., (\"Joint Petitioners\"), proposing similar changes. In the
*Notice*, we proposed revisions to our broadcast regulations to
re-examine 47 C.F.R. \' 73.213(a), which currently sets forth how
stations authorized prior to November 16, 1964, that did not meet the
separation distances required by 47 C.F.R. \' 73.207, and have remained
short-spaced since that time, may modify operating facilities. The
*Notice* proposed changing three specific aspects of Section 73.213(a).
The rules adopted in this *Order* permit the utmost in flexibility for
this class of grandfathered FM stations while maintaining the technical
integrity of the FM band by preventing increased interference.

. The proposals in the *Notice* generally received widespread support in
the 29 comments and 22 reply comments received*.*[^3] The Joint
Petitioners generally support the rule changes for each Proposal and
\"applaud the Commission\'s proposal to consider interference areas
rather than contour overlap.\" The Association of Federal Communications
Consulting Engineers (\"AFCCE\") \"strongly supports the concept of
replacing the awkward and difficult procedure in the present Rule\....\"
The National Association of Broadcasters (\"NAB\") was generally opposed
to the Joint Petitioners\' original request. However, the *Notice*
differed in several aspects from what the Joint Petitioners\' proposed.
In response to the *Notice*, NAB stated that the grandfathered
short-spaced stations \"deserve a long-delayed, but measured,
opportunity to modify and improve their own facilities,\" and that
\"\...there are new dynamics in the radio marketplace, brought about by
the Commission\'s newly-revised ownership rules. Under this revised
regulatory regime, group owners and independent licensees have new
reason to review their current facilities status under FCC rules.\" The
majority of the remaining commenters either support or otherwise address
specific portions of the *Notice*.

**SUMMARY OF NOTICE PROPOSALS**

. On May 23, 1996 we initiated this proceeding through the adoption of
the *Notice* setting forth the proposed rule changes, which were
intended to eliminate unnecessary regulations and provide grandfathered
stations with increased flexibility to change transmitter location or
modify their existing facilities. Specifically, we proposed to:

\(1\) replace the current Section 73.213(a) restriction on extending the
1 mV/m contour with straight-forward interference showings based on the
desired to undesired signal strength ratio (\"D/U ratio\") method for
grandfathered co-channel and first-adjacent channel short-spaced
stations;

\(2\) eliminate both the second- and third-adjacent channel spacing
requirements for grandfathered short-spaced stations; and,

\(3\) eliminate the need to obtain agreements by grandfathered stations
proposing increased facilities.

**RESOLUTION OF INDIVIDUAL PROPOSALS**

***Proposal 1.***

*. **Replace the current Section 73.213(a) restriction on extending the
1 mV/m contour with interference showings based on the
desired-to-undesired signal strength ratio (\"D/U ratio\") method for
grandfathered co-channel and first-adjacent channel short-spaced
stations.*** The *Notice* proposed to revise Section 73.213(a) to permit
co-channel and first-adjacent channel grandfathered short-spaced
stations to change transmitter location or station facilities, based on
a showing that meets the following three criteria:

\(1\) there must be no increase in either the total predicted
interference area or the associated population;[^4]

\(2\) there must be no increase in interference caused by the proposal
to any individual grandfathered short-spaced station; and,

\(3\) applicants must demonstrate that any new area predicted to lose
service as a result of interference has adequate service remaining.
Adequate service is defined as reception from at least five aural
services.[^5]

. The areas of interference are to be determined using the
desired-to-undesired (D/U) signal strength ratio analysis and the
standard F(50,50) and F(50,10) propagation curves contained in Section
73.333 of our rules. The *Notice* proposed that co-channel interference
would be predicted to exist at all locations within the desired
station\'s coverage contour where the undesired (interfering) F(50,10)
field strength exceeds a value 20 dB below the desired (protected)
F(50,50) field strength, and that first-adjacent interference would be
predicted to exist at all locations within the desired station\'s
coverage contour where the undesired (interfering) F(50,10) field
strength exceeds a value 6 dB below the desired (protected) F(50,50)
field strength. The *Notice* also sought comment on an alternative
proposal that would require both interference caused and interference
received to be individually maintained or reduced.

**Comments & Discussion:**

. *General:* Of the parties providing initial and reply comments on this
proposal, most agree that the current rule is too vague and restrictive,
and that it should be replaced with an equitable rule that is easily
administered. The rule we adopt herein accomplishes this result. It
allows maximum flexibility for grandfathered stations, while maintaining
or reducing interference, and provides a minimal filing burden on
applicants, accompanied by a minimal processing burden on Commission
staff. Our new rule provides greater flexibility to stations now
thwarted by the current \"no extension of the 1 mV/m contour\" rule in
Section 73.213(a). The current rule in Section 73.213(a) has been proven
to be overly restrictive, ineffective in controlling interference, and
difficult to administer. The requirements set forth in the new rule
section will potentially decrease areas of co-channel and first-adjacent
channel interference, and lead to more efficient use of the FM broadcast
spectrum. Several commenters suggested slight modifications to the
original Proposal 1 as presented in the *Notice*. We discuss those
suggestions below.

. *Contour overlap vs. predicted interference.* AFCCE and other
commenters generally support replacing the current standard in Section
73.213(a) with a requirement based on interference ratios. We concur
that the ratio method is the most appropriate method of determining
areas of interference for 1964 grandfathered stations. We do not agree
with Mullaney Engineering, Inc.\'s (\"Mullaney\") assertion that the
grandfathered rules should be based upon contour overlap rather than
interference predictions. Contour overlap is an effective method to
demonstrate compliance with rules aimed at preventing interference,
since lack of contour overlap is sufficient to demonstrate a lack of
interference. However, it is not effective in controlling interference
when prohibited overlap already exists.[^6] We remain convinced that the
practical effect on the listening public of interference between two
short-spaced stations is best evaluated in terms of interference (D/U
ratio) rather than overlap.[^7] Therefore, we will require that all
interference showings for Proposal 1 be analyzed using the
desired-to-undesired (D/U) signal strength ratio analysis.

. Mullaney also suggests that we protect all classes of grandfathered
stations to the 1 mV/m (60 dBu) contour. The spacing requirements set
forth in Section 73.207 generally provide protection to the 54 dBu
contour for Class B stations, to the 57 dBu contour for Class B1
stations, and to the 60 dBu contour for all other classes of stations.
In addition, the Commission reaffirmed use of the 54 dBu contour and the
57 dBu contour as the protected contours for all Class B and Class B1
commercial stations in MM Docket 87-121, respectively.[^8] Failure to
provide this protection to Class B and Class B1 commercial stations
could result in a disruption of service for some Class B and B1
stations. It would also result in a grandfathered short-spaced station
being protected to two different contours: the 60 dBu contour with
respect to all grandfathered short-spaced stations; and the 54 dBu or 57
dBu contour with respect to all other short-spaced station. This would
add unnecessary confusion and complexity with no apparent benefit.
Therefore we will not implement this suggestion.

. *Interference areas.* The Joint Petitioners agree that interference
areas should be the main consideration for co-channel and first-adjacent
channel modifications, and that interference caused should not be
increased. However, several commenters felt that the interference
criteria set forth in Proposal 1 in the *Notice* should be modified. The
Joint Petitioners and AFCCE agree that we should allow minor increases
in received interference if it can be shown that there is no alternative
to changing antenna site. Communications Technologies, Inc. (\"CTI\")
believes that considering an area where the proposed 60 dBu contour
exceeds the licensed 60 dBu contour as an area of received interference
is illogical, since the station will most likely achieve an increase in
service in that direction. Therefore, CTI suggests the only
consideration should be that of interference caused, not interference
received.

. Our underlying presumption is that any increase in total interference,
caused and received, is not in the public interest. Interference caused
and interference received are opposite sides of the same coin. Both
represent an inefficient use of the spectrum. Thus, we reject CTI\'s
suggestion that we ignore interference received beyond the current
service contour of a proposal. We do recognize, however, that there is a
need for some flexibility. For this reason, we do not prohibit an
increase in interference received, *provided it is offset by a decrease
in interference caused*. In this way we maintain our public interest
objective of maintaining or reducing the total amount of interference
between two or more existing grandfathered short-spaced stations. There
was no support for the alternative proposal set forth in the *Notice* of
requiring interference caused and interference received to be
individually maintained or reduced, and we reject that alternative. *See
Notice*, para. 16.

. Z Spanish Radio Network, Inc. (\"Z Spanish\") suggests that slight
increases in interference caused should be permitted when a
[net]{.underline} reduction in interference occurs. However, subjecting
other grandfathered stations to an increase in interference, without
offsetting factors, would be unfair. Allowing stations to increase
interference caused would result in diminished service areas, and
promote perpetual degradation of the overall quality of FM service.
Therefore, we will not allow for any increases in interference caused.

. The *Notice* proposed that co-channel or first-adjacent channel
grandfathered applicants must demonstrate that any areas previously
receiving interference-free service that would lose service because of
interference have at least five remaining AM and/or FM stations
providing service. The Joint Petitioners believe that demonstration of
adequate remaining service is unnecessary, stating that most
interference areas are small and most grandfathered stations are in
well-served areas. Although we would generally agree that it is likely
that several other broadcast services would exist near grandfathered
stations, we nonetheless note that the areas of co-channel and
first-adjacent interference can be quite large. In the Northeastern
United States and California, there are several co-channel and
first-adjacent channel grandfathered short-spaced stations that are
predicted to cause or receive interference in areas in excess of 100
square kilometers. A lateral move by such a station could potentially
result in new interference in populated areas previously receiving
interference-free service. By requiring the proposed showing, we can
assure a minimal effect on service to the public when interference is
shifted from one area to another. As most areas are likely to be well
served, as noted by the commenters, the burden on the applicant should
not be onerous. Therefore, we will require that any application causing
or receiving interference in an area that previously received
interference-free service must demonstrate the existence of at least
five remaining aural broadcast services within that area.

. Barnstable Broadcasting, Inc. (\"Barnstable\") suggests that any
grandfathered station proposing a modification that would potentially
extend interference toward another station must make \"special, formal
notice of the proposed modification\...\" to the effected station. We do
not believe this is necessary. There is no such requirement for
applicants filing under our current rules. We do not believe that
participation by additional parties is necessary to reach a decision on
whether proposals filed pursuant to the proposed rules should be
granted. Modification applications are all given file numbers, entered
into our databases, and released on public notice indicating the receipt
of the application. This provides sufficient notice of the filing of an
application. Generally there will be sufficient time between the date of
the public notice and the grant of the application to permit the filing
of informal objections. Therefore, we will not require stations to
provide notification to a potentially affected station.

. *Population considerations*. Mullaney suggests that less emphasis
should be placed on areas of interference and more emphasis placed on
the population affected by the interference. He asserts that in many
instances, the areas of concern may include swamps, marshes, or national
forest. In opposition to this view, AFCCE does not favor including a
population consideration into the rule. AFCCE states that the present
rule does not require any such consideration, and believes its inclusion
in any adopted rule would be an \"additional complication.\" However, as
stated above, our primary concern in the proceeding is providing
flexibility while maintaining the technical integrity of the FM band.
Failure to consider the effect of proposals on area and population would
be imprudent. Each year, we receive numerous applications proposing
transmitter site changes by stations adjusting to population migrations
in areas around their service contours. By maintaining or reducing areas
and populations receiving interference, we can continue to promote an
efficient broadcast service. Therefore, we will require applicants under
Proposal 1 to include exhibits based on interference areas and the
associated populations.

. CTI recommends that we suggest a specific methodology to be followed
when calculating the population affected by interference. We will
continue to accept the widely used uniform distribution methodology set
forth in 47 C.F.R. \' 73.525(e) for calculating population.[^9] In
addition, because the Census Bureau recognizes the Block Centroid Method
as a more accurate calculation method, we will also accept this
method.[^10] In resolving disputes, we will rely on the most accurate
method presented.

. *Additional suggestions.* CTI suggests that any grandfathered
applicant proposing to modify its facilities or change transmitter site
within 500 feet of its authorized site, should not be required to submit
an interference analysis, assuming the average contour distance does not
exceed that of its licensed facility. CTI believes that this would
provide latitude for site corrections anticipated from the new tower
registration procedures. We do not believe that such a rule would be
appropriate. First, CTI\'s proposal would contradict our conclusion in
Appendix C of the *Report and Order, In the Matter of Streamlining the
Commission\'s Antenna Structure Clearance Procedure,* 11 FCC Rcd 4272
(1996), 61 FR 4359 (1996). Appendix C stated that any modification of
coordinates necessary as a result of the antenna structure registration
procedures would require the filing of a construction permit
application, regardless of the minimal nature of the change. The
appendix also noted that situations requiring a change in operating
parameters will be handled on a case-by-case basis. We did not make
special exceptions for any group of stations correcting authorized
parameters. Additionally, our experience in dealing with grandfathered
applicants shows that modifications usually entail changes in several
technical parameters and seldom involve only a relocation within 500 ft.
of the previously licensed site. Thus, we are concerned that the rule
CTI proposes would cause confusion and unduly complicate the rule we are
attempting to simplify. We will, however, routinely grant requests for
waiver of the interference analysis requirements specified in Sections
73.213(a)(1) and 73.213(a)(2) on a case-by-case basis for applications
specifying a site within 500 ft (152 meters) of the previously licensed
site where no unusual circumstances are present.

. Z Spanish generally supports Proposal 1, adding that \"some
non-controversial alternative\" to the standard contour prediction
methods should be available when certain proposals require more accurate
evaluation. We do not characterize alternative contour prediction
methods as non-controversial, nor do we agree that alternative contour
prediction methods should be used in calculating interference.
Currently, the Commission allows the use of alternate prediction methods
provided for by 47 C.F.R. \' 73.313(e) to demonstrate adequate coverage
of the community of license, or to establish that the main studio
location would be within the principal community contour (70 dBu).
However, such methods are not accepted from full-service stations for
the purpose of demonstrating a lack of interference. Doing so could
complicate the rule that we are attempting to simplify, with little
benefit. The analysis of alternate prediction method calculations is
resource-intensive and requires extensive expertise. The use of
supplemental studies often leads to disputes involving the use of
competing methods or assumptions, along with significant processing
delays. Therefore, we will not permit alternate methods of contour
prediction for interference showings.

. Finally, several commenters suggest that one or more of the proposals
in this proceeding be extended to other groups of short-spaced stations,
such as stations that became short-spaced by the revision of Section
73.207 in Docket 80-90 (1983), or stations short-spaced pursuant to
Sections 73.213(b) & (c),[^11] or stations short-spaced pursuant to
Section 73.215,[^12] or even \"short-spaced\" non-commercial educational
stations.[^13] However, these comments are clearly beyond the scope of
the proposed rule revisions. In developing the proposals set forth in
the *Notice*, we identified a particular problem area where the rules
were defective and difficult to administer. The *Notice* was
specifically tailored to meet the needs of this narrowly defined group
of grandfathered stations. We did not address particular issues applying
to other short-spacing circumstances. Therefore, we decline to enlarge
the scope of this proceeding to include non- pre-1964 grandfathered
short-spaced stations.

. *Conclusion.* We believe that the current rules should be changed to
allow for sufficient flexibility when co-channel and first-adjacent
channel grandfathered stations seek to relocate. However, providing this
flexibility should not jeopardize another station\'s ability to serve
its listeners. Accordingly, we will adopt Proposal 1 as set forth in the
*Notice*. All grandfathered stations will be permitted to change
transmitter location and increase or decrease facilities, subject to the
rules adopted herein and the maximum power and height requirements set
forth in 47 C.F.R. \' 73.211. We note that any applicant proposing
modifications under the Section 73.213(a) rules adopted herein must
document its pre-1964 grandfathered status.

**Proposal 2.**

. ***Eliminate both the second- and third-adjacent channel spacing
requirements for grandfathered short-spaced stations.*** The *Notice*
proposed to revise Section 73.213(a) to remove all spacing requirements
for grandfathered second- and third-adjacent channel stations. This
proposal would restore the previous Section 73.213 rule used between
1964 and 1987, and would permit second and third-adjacent channel
grandfathered stations to implement maximum class facilities, and/or
change transmitter site with complete flexibility on second-adjacent
channel and third-adjacent channel short-spacings.[^14] The *Notice*
also proposed, as an alternative, a more restrictive standard that
allowed limited flexibility for second and third-adjacent grandfathered
short-spaced stations proposing a new transmitter site. The more
restrictive standard would not permit prohibited contour overlap if
prohibited contour overlap did not already exist.

**Comments & Discussion:**

. *General support.* Of the parties providing initial and reply comments
on this proposal, most agree that we should completely eliminate second-
and third-adjacent spacing requirements for grandfathered stations. The
Joint Petitioners fully support the original Proposal 2, and
specifically reject the alternative proposal put forth in Paragraph 26
of the *Notice.* AFCCE supports the original Proposal 2, and states that
it is \"the most essential part of the simplified procedure.\" Mullaney
supports the original Proposal 2. CTI fully supports Proposal 2, stating
that today\'s receivers are seldom affected by second- and
third-adjacent channel interference.

. Media-Com, Inc. and Group M Communications, Inc. both support Proposal
2 and state that current second- and third-adjacent channel restrictions
have prevented grandfathered stations from improving, or even
maintaining existing service areas. Compass Radio of San Diego, Inc.
(\"Compass\") fully supports Proposal 2, stating that adoption would
facilitate improvement of station facilities, along with eliminating a
significant amount of unnecessary workload on the Commission\'s staff.
Compass\' comments include specific examples of stations that have
operated with second- or third-adjacent overlap, without receiving
interference complaints. NAB submitted comments supporting new
requirements that would allow for the relaxation, but not elimination,
of second and third-adjacent channel spacing requirements for
grandfathered stations. NAB states that \"\[w\]ith full recognition of
the generally negative position taken by NAB in our 1991 comments\...and
in light of the historical, technical foundation of these earlier
comments, NAB believes there *may* be ways that *some* grandfathered FM
stations could be allowed to modify facilities in a fashion that would
not result in significant new interference nor would be at odds with
related FCC policies applicable to such changes.\"

. *Scope*. The scope of this item is specifically limited to FM stations
at locations authorized prior to November 16, 1964, that did not meet
the separation distances required by Section 73.207 and have remained
continuously short-spaced since that time. The *Notice* specifically
invited any parties to assist the Commission in identifying how many
grandfathered stations exist so that they could be classified in the
Commission\'s engineering database. NAB performed an analysis and
submitted extensive documentation with regard to the number of second-
and third-adjacent channel grandfathered stations. NAB\'s comments state
that the number of possible grandfathered second- and third-adjacent
channel stations is 312, out of a total of 5,429 authorized FM stations
(5.7%). As several commenters point out, that number is too high, since
many of these stations became short-spaced because of other reasons,
such as BC Docket 80-90, MM Docket 88-375, the contour protection
standards in Section 73.215, or spacing waiver grants. The number of
grandfathered second and third-adjacent channel stations that may be
able to change site will be further limited as a result of other
co-channel or first-adjacent channel grandfathered short-spacings.
Therefore, the number of grandfathered stations able to move with
respect to a second- and third-adjacent channel station is extremely
limited.

. One of NAB\'s primary concerns is that the proposed rule not be
applied beyond this limited group of stations. NAB contracted
engineering consultant Thomas Keller (\"Keller\") to report on the
general potential impact that second-adjacent channel short-spacings may
have on the listening public. Keller\'s study included test results of
two automotive receivers, two component receivers designed for
stationary operation, and one portable \"boom box\" receiver. Keller\'s
study concludes that two of the five receivers tested did not meet the
\"\...interference-rejection assumptions embodied in the Commission\'s
current FM separation requirements.\" NAB states that \"\...refinements
to radio receiver design do provide, in some cases, better rejection of
second and third-adjacent channel interference that should be considered
here. These developments might form the basis for granting some relief
for some grandfathered short-spaced stations. However, and this must be
emphasized, NAB believes that examination of such receiver
characteristics should be limited *only* to the possibility of a revised
regulatory approach to *some* grandfathered, short-spaced FM stations,
not to the FM medium as a whole.\"

. As stated in the *Notice*, we have \"no intention of relaxing
second-adjacent-channel and third-adjacent channel spacing requirements
as allotment and application criteria.\" Proposal 2 only suggests
returning to the exact standard that was used between 1964 and 1987 for
this very limited group of stations. Thus, our proposal remains aimed
exclusively at this small universe of grandfathered stations.

. *Additional Criteria.* NAB agrees that second- and third-adjacent
channel grandfathered stations are in need of relief from the current
Section 73.213 rules. However, NAB believes that \"\... the technical
integrity of the broadcast media must be preserved and enhanced.\" Both
NAB and Eleven-Fifty Corp. (\"Eleven-Fifty\") believe that second- and
third-adjacent grandfathered short-spaced applicants should be required
to submit supplemental documentation demonstrating why a proposal should
be approved by the Commission. NAB proposed four criteria that
grandfathered stations submitting modification applications would be
required to satisfy:

\(1\) the modification would result in a net decrease in the number of
listeners experiencing interference caused by the applicant to other FM
stations;

\(2\) the modification would result in a net decrease in the land area
of interference caused by the applicant to other FM stations;

\(3\) any site change would not be to a location near a major
thoroughfare; and/or

\(4\) any site change would be within a \"buffer zone\" around the
current transmitter site.

These criteria are designed to provide \"tailored relief to
grandfathered, short-spaced FM stations\", and to assure that any
proposal would not adversely affect the short-spaced station\'s service
area. NAB believes that these requirements would qualify an applicant
for a \"rebuttable presumption that grant of relief should be
provided,\" shifting the burden onto the potentially affected station to
show why certain applications should not be granted, thereby preserving
the technical integrity of the broadcast media. NAB further states that
the rights of the potentially affected grandfathered stations would be
preserved by adhering to these criteria.

. NAB\'s proposed criteria are designed to prevent increases in
\"\...the number of listeners experiencing interference\...\" and
\"\...the land area of interference caused by the applicant to other
stations.\" We recognize there is a minimal risk of interference between
second and third-adjacent channel grandfathered stations. However, such
interference is in the immediate area of the transmitter and it is
actually a substitution of service in that area. In the period between
1964 and 1987, when second- and third-adjacent channel grandfathered
stations were able to modify facilities without spacing requirements, we
did not receive interference complaints resulting from such
modifications. We believe that the small potential for interference is
outweighed by facilitating the ability of this small group of stations
to change transmitter site or modify facilities.

. NAB\'s proposal also included a requirement that a transmitter site
change \"would not be to a location near a major traffic thoroughfare
\-- a site move that could create massive interference to the mobile
radio audience.\" However, as stated above, Keller\'s limited test
results on a small number of receivers would imply mobile receivers are
typically able to reject unwanted second-adjacent channel interference.
In addition, Compass, Mt. Wilson, Infinity, and Odyssey all agree that
NAB\'s proposed criteria would hinder the result we are trying to
achieve by promoting unnecessary appeals and litigation. Compass
believes that NAB\'s proposed criteria have no reasonable technical
basis. Infinity reasserts that the FCC is simply proposing a previously
used and tested rule. We believe that requiring a station to document
its proximity to a \"major thoroughfare\" would increase the burden on
applicants and the Commission, and increase the processing time for each
application. It is also unnecessary due to the relatively small areas of
interference caused by second- and third-adjacent channel stations. It
would also require the staff to establish rules to define what
constitutes a major thoroughfare. Therefore, we decline to impose on
this limited universe of stations the additional burdens suggested by
NAB .

. *Conclusion.* As the majority of the commenters in this proceeding
agree, we believe that reinstatement of the pre-1987 rules regarding
second and third-adjacent channel grandfathered stations would best
serve the public interest. We see little advantage to require additional
exhibits from grandfathered stations proposing site changes or facility
modifications. The small risk of interference is far outweighed by the
improvement in flexibility and improved service. In addition, as stated
in Paragraph 25 of the *Notice*, we have no intention of relaxing
second-adjacent-channel and third-adjacent-channel spacing requirements
as allotment and assignment criteria for any group except pre-1964
grandfathered stations. Therefore, we are adopting Proposal 2, as
originally set forth in the *Notice,* only for this limited universe of
stations.

**Proposal 3.**

. ***Eliminate the need to obtain agreements between grandfathered
short-spaced stations proposing increased facilities.*** The *Notice*
proposed to revise Section 73.213(a) to eliminate the need for
grandfathered stations to obtain agreements to modify facilities
pursuant to 47 C.F.R. \' 73.4235. The *Notice* stated that the 1975
Public Notice *(\"Agreement Notice*\") is rarely used today for its
original purpose of allowing mutual increases.[^15] The *Agreement
Notice* is now typically used to justify unilateral modifications.

**Comments & Discussion:**

. Of the initial and reply comments on this proposal, several parties
agree that agreements should be eliminated, while a few parties disagree
with the adoption of this proposal. The Joint Petitioners \"agree that
such agreements are unnecessary and would simply frustrate the intent of
these proposed rules.\" AFCCE also supports the elimination of
agreements. Compass \"enthusiastically supports the Commission\'s
Proposal 3 to eliminate the need to obtain agreements by grandfathered
short-spaced stations\....\" John J. Davis and Chagal Communications
support adoption of Proposal 3, while several parties are generally
supportive of all three Proposals, without specific mention of Proposal
3.

. In opposition to Proposal 3, Mullaney suggests that we should retain
the agreement policy and require a \"higher level\" of public interest
to justify grant of an application. Kelsho Radio Group (\"Kelsho\")
suggests that the Commission has \"no good reasons to discard the entire
mutual agreement policy.\" Odyssey Communications, Inc. (\"Odyssey\")
opposes eliminating the Agreement Policy and believes it will have a
harmful effect on stations and the public interest. Odyssey suggests
retention of the policy for its intended purposes of promoting mutual
increases. Finally, Z Spanish Radio Network, Inc. (\"Spanish\") avers
that agreements that \"improve service and reduce interference should be
permitted and encouraged by the Commission.\"

. *Conclusion*. The provisions set forth in the *Agreement Notice*
required all grandfathered stations increasing facilities pursuant to an
agreement to submit a detailed public interest showing. The *Agreement
Notice* stated that the public interest showing must include areas and
populations which would receive new service, along with those receiving
interference, assuming both stations fully implemented the mutual
increase agreement. This is very similar to what we are adopting in
Proposal 1 for co-channel and first-adjacent channel stations. The
*Agreement Notice* also stated that the agreement provisions did not
apply to changes in transmitter location. Furthermore, the *Agreement
Notice* is rarely used today for its original purpose of providing for
mutual increases by grandfathered stations.

. Under the rules adopted herein, most applicants will be able to
achieve the same facilities using Proposals 1 and 2 above, that in the
past required a written agreement from another grandfathered station.
Second and third-adjacent channel grandfathered stations will be exempt
from spacing requirements and co-channel and first-adjacent stations
will be able to implement transmitter site changes that weren\'t
previously permitted under the *Agreement Notice*. The exhibits we are
requiring under these Proposals are aimed at establishing that each
proposal would serve the public interest. However, in the past, affected
parties were notified of another applicant\'s proposed modification by
way of an agreement. Since we are eliminating the requirement for
agreements, certain potentially affected parties would no longer be
involved in the modification process for proposals that may have an
effect on their service area. Therefore, we will require that a copy of
any application for co-channel or first-adjacent channel stations
proposing predicted interference caused in any areas where interference
is not currently predicted to be caused must be served upon the
licensee(s) of the affected short-spaced station(s). This will enable
potentially affected parties to examine the proposal and provide them an
opportunity to file informal objections against such applications. The
proposed rules will allow more flexibility than if we were to continue
to require agreements along with public interest showings. Often times,
requiring an applicant to obtain an agreement from another short-spaced
station is tantamount to holding its application hostage by another
broadcaster. As stated in the *Notice*, we find that the requirement for
agreements no longer serves its original purpose and can be eliminated
without any harmful effect on applicants, other stations, or the public.
Therefore, we will eliminate the requirement for these applicants to
obtain agreements.

**CONCLUSION**

. We believe that the modified procedures and related rule revisions
adopted herein will provide this group of grandfathered stations with
significantly greater flexibility in making transmitter site changes and
other facility modifications, while preserving or improving the overall
technical integrity of the FM band. Our experience working with the
current rule guides us to adopt these changes in our grandfathered
short-spacing rules. Co-channel and first-adjacent channel grandfathered
stations will be able to make modifications and improvements using
straight-forward interference calculations. This will enable us to more
accurately predict and control interference. Eligible grandfathered
stations will be able to propose facility modifications without regard
to existing grandfathered second- and third-adjacent channel
short-spacings. Finally, grandfathered stations will no longer need to
obtain agreements from other grandfathered stations before proposing
modifications.

. Accordingly, to the extent provided herein, we amend Section 73.213(a)
of our Rules and delete Section 73.4235. As set forth in the *Notice,*
the Commission will process any such waiver requests which remain
pending as of the effective date of this *Order* in accordance with the
revised rule.[^16]

**ORDERING CLAUSES**

. Accordingly, IT IS ORDERED that pursuant to the authority contained in
Sections 4(i), 303(r), and 307(c) of the Communications Act of 1934, as
amended, 47 C.F.R. Part 73 IS AMENDED as set forth in Appendix A below.

. IT IS FURTHER ORDERED that the requirements and regulations
established in this *Report and Order* WILL BECOME EFFECTIVE 60 days
from the date of publication in the Federal Register, or upon receipt by
Congress of a report in compliance with the *Contract with America
Advancement Act of 1996*, Pub. L. No. 104-121, whichever date is later.

. For further information contact Jim Bradshaw of the Audio Services
Division, Mass Media Bureau at (202)-418-2740, or by e-mail at
*jbradsha@fcc.gov.*

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton

Acting Secretary

**APPENDIX A**

47 C.F.R. Part 73 is revised 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

2\. Section 73.213 is revised to read as follows:

**\'73.213 Grandfathered short-spaced stations.**

\(a\) Stations at locations authorized prior to November 16, 1964 that
did not meet the separation distances required by \'73.207 and have
remained continuously short-spaced since that time may be modified or
relocated with respect to such short-spaced stations, provided that (i)
no area previously receiving interference-free service would receive
co-channel or first-adjacent channel interference as predicted in
accordance with paragraph (a)(1) of this section, or that (ii) a showing
is provided pursuant to paragraph (a)(2) of this section that
demonstrates that the public interest would be served by the proposed
changes.

\(1\) The F(50,50) curves in Figure 1 of \'73.333 of this part are to be
used in conjunction with the proposed effective radiated power and
antenna height above average terrain, as calculated pursuant to
\'73.313(c), (d)(2) and (d)(3), using data for as many radials as
necessary, to determine the location of the desired (service) field
strength. The F(50,10) curves in Figure 1a of \'73.333 of this part are
to be used in conjunction with the proposed effective radiated power and
antenna height above average terrain, as calculated pursuant to
\'73.313(c), (d)(2) and (d)(3), using data for as many radials as
necessary, to determine the location of the undesired (interfering)
field strength. Predicted interference is defined to exist only for
locations where the desired (service) field strength exceeds 0.5 mV/m
(54 dBu) for a Class B station, 0.7 mV/m (57 dBu) for a Class B1
station, and 1 mV/m (60 dBu) for any other class of station.

\(i\) Co-channel interference is predicted to exist, for the purpose of
this section, at all locations where the undesired (interfering station)
F(50,10) field strength exceeds a value 20 dB below the desired
(service) F(50,50) field strength of the station being considered (e.g.,
where the protected field strength is 60 dBu, the interfering field
strength must be 40 dBu or more for predicted interference to exist).

\(ii\) First-adjacent channel interference is predicted to exist, for
the purpose of this section, at all locations where the undesired
(interfering station) F(50,10) field strength exceeds a value 6 dB below
the desired (service) F(50,50) field strength of the station being
considered (e.g., where the protected field strength is 60 dBu, the
interfering field strength must be 54 dBu or more for predicted
interference to exist).

\(2\) For co-channel and first-adjacent channel stations, a showing that
the public interest would be served by the changes proposed in an
application must include exhibits demonstrating that the total area and
population subject to co-channel or first-adjacent channel interference,
caused and received, would be maintained or decreased. In addition, the
showing must include exhibits demonstrating that the area and the
population subject to co-channel or first-adjacent channel interference
caused by the proposed facility to each short-spaced station
individually is not increased. In all cases, the applicant must also
show that any area predicted to lose service as a result of new
co-channel or first-adjacent-channel interference has adequate aural
service remaining. For the purpose of this Section, adequate service is
defined as 5 or more aural services (AM or FM).

\(3\) For co-channel and first-adjacent-channel stations, a copy of any
application proposing interference caused in any areas where
interference is not currently caused must be served upon the licensee(s)
of the affected short-spaced station(s).

\(4\) For stations covered by this rule, there are no distance
separation or interference protection requirements with respect to
second-adjacent and third-adjacent channel short-spacings that have
existed continuously since November 16, 1964.

\* \* \* \* \*

3\. Section 73.4235 is deleted.

**APPENDIX B**

**List of Commenters**

Initial Comments

Association of Federal Communications Consulting Engineers (\"AFCCE\")

Barnstable Broadcasting, Inc. (\"Barnstable\")

Brown Broadcasting Service, Inc. (\"Brown\")

Chagal Communications (\"Chagal\")

Communications Technologies, Inc. (\"CTI\")

Compass Radio of San Diego, Inc. (\"Compass\")

John J. Davis (\"Davis\")

Eleven-Fifty Corp. (\"Eleven-Fifty\")

Gallagher & Associates (\"Gallagher\")

Group M Communications, Inc. (\"Group M\")

Harvard Radio Broadcasting Co., Inc. (\"Harvard\")

Hatfield & Dawson; duTreil, Lundin & Rackley; Cohen, Dippell & Everist
(\"Joint Petitioners\")

Jarad Broadcasting (\"Jarad\")

KALI-FM, Inc. (\"KALI\")

Kelsho Radio Group, Inc. (\"Kelsho\")

Liberman Broadcasting, Inc. (\"Liberman\")

Livingston Radio Company (\"Livingston\")

Media-Com, Inc. (\"Media-Com\")

Mullaney Engineering, Inc. (\"Mullaney\")

E. Harold Munn, Jr. (\"Munn\")

National Association of Broadcasters (\"NAB\")

Odyssey Communications, Inc. (\"Odyssey\")

Renard Communications Corp. (\"Renard\")

Taxi Productions, Inc. (\"Taxi\")

WPNT, Inc. (\"WPNT\")

WTBO-WKGO Corporation (\"WTBO\")

WTUC, Richard L. Harvey (\"WTUC\")

WYCQ, Inc. (\"WYCQ\")

Z Spanish Radio Network, Inc. (\"Z Spanish\")

Reply Comments

Alpeak Broadcasting Corporation (\"Alpeak\")

Barden Broadcasting, Inc. (\"Barden\")

Barry Broadcasting Company (\"Barry\")

Berkshire Broadcasting Corporation (\"Berkshire\")

Compass Radio of San Diego, Inc. (\"Compass\")

Educational Information Corporation (\"EIC\")

Greater Media Radio Company (\"Greater\")

Infinity Broadcasting Corporation (\"Infinity\")

Kelsho Radio Group, Inc. (\"Kelsho\")

Livingston Radio Company (\"Livingston\")

Media-Com, Inc. (\"Media-Com\")

Metro TV, Inc. (\"Metro\")

Mt. Wilson FM Broadcasters, Inc. (\"Mt. Wilson\")

National Association of Black Owned Broadcasters (\"NABOB\")

National Association of Broadcasters (\"NAB\")

Odyssey Communications, Inc. (\"Odyssey\")

Paxson Communications Corporation (\"Paxson\")

Pinnacle Southeast, Inc. (\"Pinnacle\")

Carl E. Smith (\"Smith\")

WTBO-WKGO Corporation (\"WTBO\")

WTUC, Richard L. Harvey (\"WTUC\")

WYCQ, Inc. (\"WYCQ\")

**APPENDIX C**

**PAPERWORK REDUCTION ACT STATEMENT**

This *Report and Order* contains new or modified information collections
subject to

the Paperwork Reduction Act of 1995 (\"*PRA*\"). It has been submitted
to the Office of Management and Budget (\"OMB\") for review under the
*PRA*. OMB, the general public, and other federal agencies are invited
to comment on the new or modified information collections contained in
this proceeding.

**FINAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act[^17] (RFA), the Commission
considered regulatory flexibility issues in the Notice of Proposed
Rulemaking in this proceeding, *Grandfathered Short-Spaced FM
Stations*.[^18] The Commission sought written public comments on the
proposals in the *Notice*. The Commission\'s Final Regulatory
Flexibility Analysis (FRFA) in this *Report and Order* conforms to the
RFA as amended.[^19]

**A. Need For and Objectives of the Rules:**

The Commission\'s Rules currently require pre-1964 grandfathered
short-spaced stations proposing transmitter site changes or facility
modifications to demonstrate that the proposed 1 mV/m field strength
contour is not extended toward the 1 mV/m field strength contour of any
station to which it is short-spaced. This rule was found to be overly
restrictive, and open to multiple interpretations. The Commission
therefore proposed revisions to its broadcast regulations to replace the
current rule with a simple rule based on straight-forward interference
prediction methods, and to eliminate spacing requirements for second and
third-adjacent channel grandfathered stations.

By making these changes, grandfathered stations will have the maximum
flexibility when changing transmitter site or proposing facility
modifications. Any such changes must be made by filing a minor change
application. The new regulations should expedite new and improved
service to the public, with minimal impact on existing stations. The
specified changes require prior authorization from the Commission. The
exact circumstances in which the Commission will modifications are
listed in 47 C.F.R. \' 73.213(a) (*see* Appendix A of this *Report and
Order*).

**B.** **Summary of Significant Issues Raised by Public Comments in
Response to the Regulatory Flexibility Analysis:**

No comments were received specifically in response to the regulatory
flexibility issues contained in the *Notice of Proposed Rulemaking*.
However, commenters generally addressed the effects of the proposed rule
changes on FM licensees, including small businesses. Generally,
commenters favored the rule changes proposed, with minor changes, some
of which have been incorporated into the rules specified in Appendix A
of this *Report and Order*.

**C. Description and Estimate of the Number of Small Entities To Which
the Rule Will Apply:**

The RFA generally defines \"small entity\" as having the same meaning as
the terms \"small business,\" \"small organization,\" and \"small
governmental jurisdiction\" and the same meaning as the term \"small
business concern\" under the Small Business Act unless the Commission
has developed one or more definitions that are appropriate for its
activities.[^20] 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).[^21] According to the SBA\'s
regulations, entities engaged in radio broadcasting (Standard Industrial
Classification (\"SIC\") Code 4832 for radio) may have a maximum of
\$10.5 million in annual receipts in order to qualify as a small
business concern. 13 C.F.R. \'\' 121.201. This standard also applies in
determining whether an entity is a small business for purposes of the
Regulatory Flexibility Act.

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.\"[^22] While we tentatively believe that the foregoing
definition of \"small business\" greatly overstates the number of radio
broadcast stations that are small businesses and is not suitable for
purposes of determining the impact of the new rules on small business,
we did not propose an alternative definition in the Regulatory
Flexibility Analysis. Accordingly, for purposes of this *Report and
Order*, we utilize the SBA\'s definition in determining the number of
small businesses to which the rules apply, but we reserve the right to
adopt a more suitable definition of \"small business\" as applied to
radio broadcast stations and to consider further the issue of the number
of small entities that are radio broadcasters in the future. Further, in
this FRFA, we will identify the different classes of small radio
stations that may be impacted by the rules adopted in this *Report and
Order*.

[Commercial Radio Services]{.underline}:

The rules and policies adopted in this Order will apply to radio
broadcasting licensees and potential licensees. The SBA defines a radio
broadcasting station that has no more than \$5 million in annual
receipts as a small business.[^23] A radio broadcasting station is an
establishment primarily engaged in broadcasting aural programs by radio
to the public.[^24] Included in this industry are commercial religious,
educational, and other radio stations.[^25] Radio broadcasting stations
which primarily are engaged in radio broadcasting and which produce
radio program materials are similarly included.[^26] However, radio
stations which are separate establishments and are primarily engaged in
producing radio program material are classified under another SIC
number.[^27] The 1992 Census indicates that 96 percent (5,861 of 6,127)
radio station establishments produced less than \$5 million in revenue
in 1992.[^28] Official Commission records indicate that 11,334
individual radio stations were operating in 1992.[^29] As of March,
1997, official Commission records indicate that 12,128 radio stations
were operating.[^30]

It is estimated that the proposed rules will affect about 450 radio
stations, approximately 432 of which are small businesses.[^31] These
estimates are based on cursory studies performed by the staff and may
overstate the number of small entities since the revenue figures on
which they are based do not include aggregate revenues from non-radio
affiliated companies.

**Alternative Classification of Small Stations**

An alternative way to classify small radio stations is the number of
employees. The Commission currently applies a standard based on the
number of employees in administering its Equal Employment Opportunity
Rule (EEO) for broadcasting.[^32] Thus, radio stations with fewer than
five full-time employees are exempted from certain EEO reporting and
record keeping requirements.[^33] We estimate that the total number of
grandfathered broadcast stations with 4 or fewer employees is
approximately 120.[^34]

**D. Projected Compliance Requirements of the Rule:**

Applicants filing a modification application will be required to provide
similar exhibits to those currently required for a construction permit.
This information may consist of an interference analysis showing that no
area previously receiving interference-free service would receive
co-channel or first-adjacent channel interference using the desired to
undesired signal strength ratio interference calculation method.

Alternatively, for co-channel and first-adjacent channel applicants, a
showing that the public interest would be served by the changes proposed
in an application must include exhibits demonstrating that the total
area and population subject to co-channel or first-adjacent channel
interference, caused and received, would be maintained or decreased. In
addition, the showing must include exhibits demonstrating that the area
and the population subject to co-channel or first-adjacent channel
interference caused by the proposed facility to each short-spaced
station individually is not increased. In all cases, the applicant must
also show that any area predicted to lose service as a result of new
co-channel or first-adjacent-channel interference has adequate aural
service remaining. For these purposes, adequate service is defined as 5
or more aural services (AM or FM). Finally, any applicant proposing
interference caused in an area where interference is not caused must
serve its application upon the licensee(s) of the affected short-spaced
station(s). The above-listed requirements are similar to the
interference exhibits required by the previous rule section.

Second-adjacent and third-adjacent channel grandfathered stations will
no longer be required to submit interference exhibits, therefore
reducing the filing burden.

The information required with a modification application generally is
the minimum necessary for the Commission to verify compliance with its
rules and regulations. In most instances, the new procedures will reduce
the time and expense required to implement certain modifications to
grandfathered broadcast stations. Most permittees and licensees retain
professional consulting engineers or legal counsel, or both in preparing
construction permit applications. We do not expect this to change
significantly by the adoption of the new rules and procedures. However,
the time needed for the preparation of the simplified applications will
be reduced as a result of fewer necessary waiver requests, translating
into time and money savings for the broadcast applicant.

**E. Significant Alternatives Considered Minimizing the Economic Impact
on Small Entities and Consistent with the Stated Objectives:**

The burdens on co-channel and first-adjacent-channel grandfathered
applicants will be similar to the requirements under the previous rule
section. The burden on second-adjacent and third-adjacent grandfathered
applicants will be reduced. Modification applications will typically
require that lesser amounts of information be submitted to the
Commission as compared to an application submitted under the previous
rules. The rule and policy changes will have a positive economic impact,
as eligible entities, including small entities, will be able to increase
their service or make transmitter site changes that were previously
inhibited by the rules. All entities will still be able to file informal
objections against a modification application, just as they may do now.
In addition, any applicant proposing to cause interference in an area
previously receiving interference must serve its application on the
licensee(s) of the affected station(s).

**F. Report to Congress**

The Secretary shall send a copy of this Final Regulatory Flexibility
Analysis along with this *Report and Order* in a report to Congress
pursuant to Section 251 of the Small Business Regulatory Enforcement
Fairness Act of 1996, codified at 5 U.S.C. \' 801(a)(1)(A). A copy of
this RFA will also be published in the *Federal Register*.

[^1]: *See Grandfathered Short-Spaced FM Stations* in MM Docket 96-120,
    11 FCC Rcd 7245, 61 Fed. Reg. 33,474 (June 14, 1996).

[^2]: Throughout this order, the term \"grandfathered stations\" refers
    only to those FM stations at locations authorized prior to November
    16, 1964, that did not meet the separation distances required by the
    later adopted Section 73.207 and have remained continuously
    short-spaced since that time.

[^3]: Appendix B contains a list of commenters and reply commenters.

[^4]: Total predicted interference is the sum of all interference caused
    and received, in terms of area and population.

[^5]: Aural services consist of AM broadcast stations and FM broadcast
    stations. *See* Memorandum Opinion and Order, *Bay City, Brenham,
    Cameron, Centerville, Edna, Ganado, Giddings, Harker Heights,
    Hearne, LaGrange, Matagorda, New Ulm, Point Comfort, Rollingwood,
    Rosenberg, and Seadrift, Texas*, 10 FCC Rcd 3337, 3337 (1995).

[^6]: By way of background, 47 C.F.R. \' 73.215 is typically used by
    non-grandfathered commercial stations that propose short-spaced
    facilities. This rule section requires the complete absence of
    prohibited contour overlap, thereby preventing the creation of new
    areas of interference. However, unlike the proposed Section
    73.213(a), Section 73.215 is rarely used by stations currently
    causing interference.

[^7]: *See* Memorandum Opinion and Order, *Board of Education of the
    City of Atlanta*, 11 FCC Rcd 7763, Footnote 1.

[^8]: *See* Report and Order, *Amendment of Part 73 of the Commission\'s
    Rules to Permit Short-Spaced FM Station Assignments by using
    Directional Antennas*, 4 FCC Rcd 1681, 1687 (1989).

[^9]: Section 73.525(e) specifically states that \"the number of persons
    contained within the predicted interference area will be based on
    data contained in the most recently published U.S. Census of
    Population and will be determined by plotting the predicted
    interference area on a County Subdivision Map of the state published
    for the Census, and totalling the number of persons in each County
    Subdivision \... contained within the predicted interference area.\"

[^10]: Section 73.525(e)(2)(iv) states that \"\[a\]t the option of
    either the NCE-FM applicant or an affected TV Channel station which
    provides the appropriate analysis, more detailed population data may
    be used.\" We note that the U.S. Census Bureau has verified that the
    block centroid retrieval methodology is a more accurate means of
    determining population within a given area than the uniform
    distribution method. *See* the October 9, 1992 *Letter from Chief,
    Audio Services Division to Larry H. Will,* reference No. 1800B3-ESR.

[^11]: Stations covered under rule Sections 73.213(b) & (c) became
    short-spaced by grant of spacing waivers or rule changes after 1964.

[^12]: Stations that are authorized as \"contour protection stations\"
    pursuant to Section 73.215 became short-spaced after October 2,
    1989, and did so of their own volition. These stations were
    authorized only if no new contour overlap would be created with the
    short-spaced station. *See Amendment of Part 73 of the Commission\'s
    Rules to Permit Short-Spaced FM Station Assignments by Using
    Directional Antennas*, 6 FCC Rcd 5356 (1989).

[^13]: Section 73.509 does not set forth required spacings for
    co-channel and adjacent channel non-commercial educational stations.
    Rather, it prohibits the overlap of certain pairs of signal strength
    contours. However, applicants sometimes refer to stations in
    violation of this rule as \"short-spaced.\"

[^14]: *See* Fourth Report and Order in *Revision of FM Broadcast Rules,
    Particularly as to Allocation and Technical Standards*, 40 FCC 868
    (1964).

[^15]: Agreement Public Notice, *Commission Reaffirms Policy With
    Respect to Agreements Between Short-Spaced FM Stations*, 35 RR 2d
    1063, 57 FCC 2d 1263, \[47 C.F.R. \' 73.4235\](1975).

[^16]: The Mass Media Bureau has identified several pending applications
    which seek waivers of the current rule but which may comply with
    Section 73.213(a) as modified in this *Order*. We direct the staff
    to reconsider these applications under the revised standards adopted
    herein and delegate to the Chief of the Mass Media Bureau authority
    to waive Section 73.213 prior to the effective date of this *Order*
    where the public interest would be served. Any Section 73.213 waiver
    granted by staff prior to the effective date of the *Order* shall be
    subject to the final outcome in this proceeding. We also are aware
    that there is now one application before the Commission which
    requests a Section 73.213 waiver and remand this application to the
    Mass Media Bureau for reconsideration consistent with this
    delegation. *See* File No. BPH-910612ID, Oceanside, CA. We remind
    all parties that all contested applications retain their restricted
    status following adoption of the *Order*.

[^17]: [See]{.underline} 5 U.S.C. \' 603.

[^18]: *Notice of Proposed Rulemaking* in MM Docket No. 96-120, 61 Fed.
    Reg. 33,474 (1996).

[^19]: [See]{.underline} 5 U.S.C. \' 604. The Regulatory Flexibility
    Act, [see]{.underline} 5 U.S.C. \' 601 [et]{.underline}.
    [seq]{.underline}. has been amended by the Contract with America
    Advancement Act of 1996, Pub L. No. 104-121, 110 Stat. 847 (1996)
    (CWAAA). Title II of the CWAAA is the \"Small Business Regulatory
    Enforcement Fairness Act of 1996\" (SBREFA). We note that the Notice
    was issued prior to enactment of the amendments to the RFA in the
    SBREFA.

[^20]: 5 U.S.C. \' 601(3) (incorporating by reference the definition of
    \"small business concern\" in 15 U.S.C. \' 632). Pursuant to 5
    U.S.C. \' 601(3), the statutory definition of a small business
    applies \"unless an agency after consultation with the Office of
    Advocacy of the Small Business Administration and after opportunity
    for public comment, establishes one or more definitions of such term
    which are appropriate to the activities of the agency and publishes
    such definition(s) in the Federal Register.

[^21]: Small Business Act, 15 U.S.C. \' 632 (1996).

[^22]: We tentatively conclude that the SBA\'s definition of \"small
    business\" greatly overstates the number of radio and television
    broadcast stations that are small businesses and is not suitable for
    purposes of determining the impact of the proposals on small radio
    and television stations. However, for purposes of this *Report and
    Order*, we utilize the SBA\'s definition in determining the number
    of small businesses to which the proposed rules would apply, but we
    reserve the right to adopt a more suitable definition of \"small
    business\" as applied to radio and television broadcast stations or
    other entities subject to the rules adopted in this *Report and
    Order* and to consider further the issue of the number of small
    entities that are radio and television broadcasters or other small
    media entities in the future. *See Report and Order* in MM Docket
    93-48 (*Children\'s Television Programming*), 11 FCC Rcd 10660,
    10737-38 (1996), citing 5 U.S.C. 601 (3). In our *Notice of Inqu*iry
    in GN Docket No. 96-113B, *In the matter of Section 257 Proceeding
    to Identify and Eliminate Market Entry Barriers for Small
    Businesses*, 11 FCC Rcd 6280 (1996), we requested commenters to
    provide profile data about small telecommunications businesses in
    particular services, including television and radio, and the market
    entry barriers they encounter, and we also sought comment as to how
    to define small businesses for purposes of implementing Section 257
    of the Telecommunications Act of 1996, which requires us to identify
    market entry barriers and to prescribe regulations to eliminate
    those barriers. Additionally, in our *Order and Notice of Proposed
    Rulemaking in MM Docket 96-16, In the Matter of Streamlining
    Broadcast EEO Rules and Policies, Vacating the EEO Forfeiture Policy
    Statement and Amending Section 1.80 of the Commission\'s Rules to
    Include EEO Forfeiture Guidelines*, 11 FCC Rcd 5154 (1996), we
    invited comment as to whether relief should be afforded to stations:
    (1) based on small staff and what size staff would be considered
    sufficient for relief, *e.g.*, 10 or fewer full-time employees; (2)
    based on operation in a small market; or (3) based on operation in a
    market with a small minority work force.

[^23]: 13 C.F.R. \' 121.201, SIC 4832.

[^24]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, *supra* note 78, Appendix A-9.

[^25]: *Id*.

[^26]: *Id*.

[^27]: *Id*.

[^28]: The Census Bureau counts radio stations located at the same
    facility as one establishment. Therefore, each co-located AM/FM
    combination counts as one establishment.

[^29]: FCC News Release No. 31327, Jan. 13, 1993.

[^30]: FCC News Release No. 64958, Sept. 6, 1996.

[^31]: We use the 96% figure of radio station establishments with less
    than \$5 million revenue from the Census data and apply it to the
    12,088 individual station count to arrive at 11,605 individual
    stations as small businesses.

[^32]: The Commission\'s definition of a small broadcast station for
    purposes of applying its EEO rules was adopted prior to the
    requirement of approval by the SBA pursuant to Section 3(a) of the
    Small Business Act, 15 U.S.C. \' 632(a), as amended by Section 222
    of the Small Business Credit and Business Opportunity Enhancement
    Act of 1992, Public Law 102-366, \' 222(b)(1), 106 Stat. 999 (1992),
    as further amended by the Small Business Administration
    Reauthorization and Amendments Act of 1994, Public Law 103-403,
    \' 301, 108 Stat. 4187 (1994). However, this definition was adopted
    after the public notice and the opportunity for comment. *See Report
    and Order* in Docket No. 18244, 23 FCC 2d 430 (1970), 35 FR 8925
    (June 6, 1970).

[^33]: [See]{.underline}, [e.g.]{.underline}, 47 C.F.R. \' 73.3612
    (Requirement to file annual employment reports on Form 395 applies
    to licensees with five or more full-time employees); First Report
    and Order in Docket No. 21474 (*Amendment of Broadcast Equal
    Employment Opportunity Rules and FCC Form 395*), 70 FCC 2d 1466
    (1979), 50 FR 50329 (December 10, 1985). The Commission is currently
    considering how to decrease the administrative burdens imposed by
    the EEO rule on small stations while maintaining the effectiveness
    of our broadcast EEO enforcement. *Order and Notice of Proposed Rule
    Making in MM Docket 96-16 (Streamlining Broadcast EEO Rule and
    Policies, Vacating the EEO Forfeiture Policy Statement and Amending
    Section 1.80 of the Commission\'s Rules to Include EEO Forfeiture
    Guidelines*), 11 FCC Rcd 5154 (1996), 61 FR 9964 (March 12, 1996).
    One option under consideration is whether to define a small station
    for purposes of affording such relief as on with ten or fewer
    employees.

[^34]: Compilation of 1994 Broadcast Station Annual Employment Reports
    (FCC Form 395B), Equal Opportunity Employment Branch, Mass Media
    Bureau, FCC.