**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | MM Docket No. 95-31          |
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| Reexamination of the Comparative | ** |                              |
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| Noncommercial Educational        | *) |                              |
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**MEMORANDUM OPINION AND THIRD ORDER ON RECONSIDERATION**

**Adopted: September 24, 2008 Released: December 2, 2008**

By the Commission: Commissioner Copps concurring and issuing a
statement.

# INTRODUCTION

1.  In this *Memorandum Opinion & Third Order on Reconsideration*, we
    resolve eight petitions for reconsideration of the *Second Report &
    Order* released in this docket.[^1] The *Second Report & Order*,
    among other things, established "new policies for licensing spectrum
    that the Commission has not reserved for the exclusive use of
    broadcast stations that provide or intend to provide noncommercial
    educational ("NCE") service."[^2] These new policies included the
    decision to permit applicants for NCE stations to apply for
    non-reserved channels, but to dismiss such applications should they
    conflict with applications for commercial stations. One petitioner
    seeks reconsideration of this decision, which was codified in
    Section 73.5002(b) of our rules. For the reasons discussed below, we
    decline to reconsider establishment of this rule and affirm our
    decision to dismiss applicants for NCE stations for non-reserved
    channels that conflict with applications for commercial stations.
    Several other petitioners seek reconsideration of our decision not
    to accept any amendments to a discrete group of long-pending NCE
    applications, including amendments to change an applicant's status
    from NCE to commercial, and request that we not dismiss this
    specific group of applicants. For the reasons discussed below, we
    will reconsider the immediate dismissal of this discrete group of
    applicants for NCE stations, and will afford them a one-time
    opportunity to amend their long-pending applications to apply for
    commercial stations to avoid dismissal. Accordingly, we grant
    reconsideration of our decision not to accept any amendments to the
    discrete group of long-pending applications for NCE stations, but
    otherwise deny the petitions and reaffirm our earlier conclusions.

# background

2.  The *Second Report & Order* in this docket established standards to
    resolve the situation when an application for an NCE broadcast
    station is mutually exclusive with an application for a commercial
    broadcast station (*i.e.*, "mixed groups"). NCE stations can operate
    both on (1) channels reserved by the Commission specifically for NCE
    service and (2) non-reserved channels, which are also available to
    applicants for commercial stations. The Commission has long used
    different standards to resolve application conflicts for reserved
    channels, on the one hand, and non-reserved channels, on the other.

3.  The Commission initiated this proceeding in 1995 to revise the
    criteria it used to select among competing applicants for new NCE
    stations.[^3] Subsequently, the Balanced Budget Act of 1997[^4]
    amended Section 309(j) of the Communications Act of 1934 ("the
    Act"), to require the Commission to use competitive bidding to
    resolve application conflicts, but exempted NCE stations from this
    process.[^5] As a result, the Commission in the *Report & Order* in
    this proceeding decided to use a non-auction, point system to
    resolve application conflicts for reserved channels,[^6] and use
    competitive bidding to resolve conflicts for non-reserved
    channels.[^7] In *National Public Radio, Inc. v. FCC*, parties
    challenged the procedures for non-reserved channels, and the court
    concluded that the Act did not authorize the Commission to require
    applicants for NCE stations to compete at auction for non-reserved
    channels.[^8]

4.  After notice and comment on the impact of the court decision, the
    Commission announced, in the *Second Report & Order,* new procedures
    for resolving conflicts between NCE and commercial applications for
    non-reserved channels and frequencies. In that order, the Commission
    held that although it will accept applications for NCE stations on
    non-reserved channels and frequencies, those that are mutually
    exclusive with applications for commercial stations will be
    dismissed.[^9] Applicants for AM and secondary service construction
    permits, however, will have a prior opportunity for settlement.[^10]

5.  The Commission also reaffirmed that it will reserve a channel in the
    Table of Allotments (used for full-power FM and TV broadcast
    stations) for the exclusive use of NCE stations if a proponent for
    reservation demonstrates that an NCE station is technically
    precluded from using already-reserved channels, and that it will
    provide needed NCE service in a given area, according to certain
    defined standards.[^11] The Commission indicated that it would
    entertain requests for reservation using these criteria not only in
    future allocation proceedings, but also for allotments for which the
    Commission had adopted a Notice of Proposed Rulemaking before August
    7, 2000, and for which it had not yet opened a filing window prior
    to the release of the *Second Report & Order*.[^12] As to channels
    or frequencies for which the Commission had already accepted
    long-form applications for construction permits, the Commission
    concluded that it would best promote the public interest to dismiss
    the long-pending competing applications for NCE stations so that the
    applications for commercial stations could proceed to auction. The
    Commission held that applicants for NCE stations in these pending,
    closed mixed groups would not have further opportunity to reserve
    the channels they had applied for, nor to amend their previously
    filed applications to propose commercial service in order to avoid
    dismissal.[^13]

# DISCUSSION

## Licensing of Non-Reserved Spectrum

6.  Under procedures adopted in the *Second Report & Order,* applicants
    for NCE stations may submit applications for non-reserved spectrum
    in auction filing windows. These applications are subject to
    dismissal if there is any mutually exclusive application for a
    commercial station.[^14] These procedures are codified in Section
    73.5002(b) of our rules.[^15] University of Missouri asks us to
    reconsider this decision, contending that it is tantamount to a ban
    on NCE stations' use of the non-reserved spectrum.[^16] University
    of Missouri argues that applications for NCE stations are highly
    likely to be mutually exclusive with those for commercial stations,
    and so will almost always be dismissed. In addition, University of
    Missouri states that the opportunities we afford NCE stations to
    reserve FM and TV channels and to settle application conflicts in
    the AM and translator services are unlikely to be helpful.[^17]

7.  In the *Second Report & Order,* the Commission fully considered and
    rejected University of Missouri's claim that this decision is
    tantamount to a ban on NCE stations' use of the non-reserved
    spectrum.[^18] University of Missouri offers no new evidence or
    changed circumstances in its petition to cause us to reconsider our
    decision.[^19] Moreover, University of Missouri suggests no lawfully
    permissible alternative to our decision. We thus reaffirm our
    decision, and reject University of Missouri's petition for
    reconsideration.

8.  As explained at the outset of the *Second Report & Order*, "we are
    constrained by a number of court decisions, regulations, and
    statutory provisions that, taken together, limit our options."[^20]
    Again, the entirety of section 309(j)(1) states: "If, consistent
    with the obligations described in paragraph (6)(E), mutually
    exclusive applications are accepted for any initial license or
    construction permit, then, except as provided in paragraph (2), the
    Commission *shall* grant the license or permit to a qualified
    applicant through a system of competitive bidding. . . ."[^21]
    Paragraph 2 sets forth the relevant exemptions: "The competitive
    bidding authority granted by this subsection *shall not* apply to
    licenses or construction permits issued by the Commission . . . for
    stations described in section 397(6) of this Act," *i.e.,* NCE
    stations.[^22]

9.  Taken together, the statutory provisions sharply limit the
    Commission's authority in this area. In the past, the Commission
    allowed applicants for NCE stations to compete for non-reserved
    spectrum under the standards that applied to applicants for
    commercial stations.[^23] The Commission attempted to continue that
    longstanding policy after the 1997 Balanced Budget Act by allowing
    NCE stations to compete at auction for non-reserved channels and
    frequencies. As recognized by the *NPR* case, the statute mandates
    that we resolve mutually exclusive applications for commercial
    stations by competitive bidding, prohibits us from using that same
    system to resolve applications for NCE stations, but does not
    require us to follow any particular alternative procedure for
    applications for NCE stations. Accordingly, in the *Second Further
    Notice*, the Commission outlined two possible courses of action: (1)
    prohibit applications for NCE stations on non-reserved channels or
    frequencies, just as the Commission prohibits applications for
    commercial stations on reserved channels or frequencies, or (2)
    continue to allow the filing of applications for NCE station, which
    would be subject to dismissal if any conflict with applications for
    commercial stations could not be resolved.[^24] In the *Second
    Report & Order*, the Commission opted for the latter course of
    action.[^25] No commenting party suggested a workable alternative.
    The Commission believed that these two options were the most
    straightforward solutions to the problem and chose the one that was
    least harsh to applicants for NCE stations.

10. The reservation and settlement opportunities are not as limited as
    University of Missouri suggests, and thus our rule is not tantamount
    to a ban on NCE stations' use of non-reserved spectrum. As the
    Commission noted in the *Second Report & Order*, "several parties
    have asked the Commission to allocate particular FM channels as
    reserved pursuant to the relaxed reservation standards \[adopted in
    the *Report & Order* in the proceeding\], and we have done so."[^26]
    Since the Commission released the *Second Report & Order*, the Media
    Bureau opened a window accepting reservation showings for nearly 500
    additional FM channels.[^27] In response, 129 petitioners sought to
    reserve 91 vacant FM allotments. University of Missouri was one of
    the petitioners that took advantage of this opportunity. To date, 56
    vacant FM allotments have been successfully reserved for NCE use.
    With respect to the effectiveness of settlement opportunities, as
    the Commission explained in the *Second Report & Order*, the
    Commission received approximately 4,700 applications for LPTV and TV
    translator stations during an auction filing window, but processed
    more than one third of them prior to auction because either only one
    application was filed, or the applicants reached a settlement.[^28]
    We fully recognize that the opportunities for reservation and
    settlement are limited, and may not be as plentiful as University of
    Missouri prefers. We continue to believe, however, that the
    Commission's decision, given the statutory constraints, best serves
    the public interest, and again note that University of Missouri has
    failed to suggest any alternative approach that would comport with
    the legal restrictions on our authority in this area. Consequently,
    we decline to reconsider the decisions to accept applications for
    NCE stations on non-reserved channels and frequencies and to dismiss
    such applications if they remain mutually exclusive with
    applications for commercial stations after the expiration of any
    applicable opportunity for settlement.

## Pending Applications

11. As discussed in the *Second Report & Order,* there remain pending
    closed groups of non-reserved channel mutually exclusive
    construction permit applications for NCE and commercial stations
    (*i.e.*, "mixed groups").[^29] In the *Second Report & Order,* the
    Commission decided to dismiss the long-pending applications for NCE
    stations in mixed groups without providing these applicants an
    opportunity to avoid dismissal by amending their applications to
    change their status from NCE to commercial.[^30] Approximately 19
    mixed groups of mutually exclusive applications for non-reserved
    channels remain pending; these include 13 FM mixed groups, two FM
    translator mixed groups, and four TV mixed groups.[^31] For the
    reasons discussed below, we will now reconsider the Commission's
    decision in the *Second Report and Order* and afford each of these
    applicants for NCE stations in the pending, closed mixed groups a
    one-time opportunity to amend their applications to apply for a
    commercial broadcast station in order to avoid dismissal.

12. Four petitioners ask us to reconsider the Commission's decision to
    dismiss these long-pending applications for NCE stations.[^32]
    Several petitioners contend that the decision is arbitrary and
    capricious.[^33] Black Hawk also claims that the decision is
    impermissibly retroactive.[^34] Marist College contends that the
    decision is inconsistent with the 1997 Balanced Budget Act.[^35] In
    addition, Fatima Response argues that the decision is not in the
    public interest. As alternatives, Black Hawk suggests that we give
    applicants with pending applications for NCE stations an opportunity
    to use the reservation procedures we established for future
    applicants;[^36] likewise, Fatima Response and Renaissance Community
    suggest that we permit applicants with pending applications for NCE
    stations in mixed groups to amend their applications to apply for
    commercial broadcast stations.[^37] Jack Garter opposes Black Hawk's
    petition, and argues that the *Second Report & Order* is not
    arbitrary and capricious or impermissibly retroactive and did not
    violate any processing "rights."[^38]

13. The Commission's primary rationale for previously opting to dismiss
    the pending applications for NCE stations in mixed groups was that
    some of these applications had been filed a decade ago, and that the
    Commission had provided numerous settlement opportunities to these
    mixed group applicants. In the *Second Report & Order*, the
    Commission was "not persuaded that the equities favoring the
    applicants for NCE stations in these pending proceedings outweigh
    the delay in initiating new broadcast service to the public as well
    as the unfairness to applicants for commercial stations."[^39]

14. We now are persuaded that the unfairness of immediate dismissal to
    this discrete group of long-pending applications for NCE stations
    outweighs any delay to those applicants for commercial stations that
    are mutually exclusive with these applicants. Unlike prospective
    applicants for NCE stations, these applicants for NCE stations in
    the mixed groups sought to be licensed as NCE stations before
    adoption of the *Second Report & Order* and thus without knowledge
    of the consequences of this decision. Moreover, we believe that we
    can expeditiously afford mixed group applicants for NCE stations a
    one-time opportunity to amend their pending applications to apply
    for a commercial station, while avoiding unnecessary delay to the
    pending commercial applicants, which initially dissuaded the
    Commission from providing such an opportunity.

15. Shortly after release of this Order, the Media Bureau will announce
    an amendment window to permit all applicants in the approximately 19
    pending, closed mixed groups (1) that had filed applications for NCE
    stations as of the date of the *Second Report & Order* and that
    remain pending, and (2) that were mutually exclusive with those for
    commercial stations as of the date of the *Second Report & Order*,
    to amend their pending applications for the sole purpose of applying
    for a commercial station. After the close of this window, any
    application for an NCE station that remains mutually exclusive with
    any application for a commercial station will be dismissed with
    prejudice. There will be no additional opportunity for applicants in
    these pending, closed mixed groups to further amend their long-form
    applications. We believe that this processing policy will provide
    fairer treatment to pending applicants and better serve the public
    interest. It will give applicants for NCE stations one opportunity
    to reevaluate their long-pending plans in the context of full and
    complete information about how the licensing process will work and,
    as designed, it should not appreciably delay the introduction of new
    service. This approach will avoid the harsh result of dismissing
    applicants based on subsequently adopted processing rules in a
    manner that is consistent with the Act and with our commercial and
    NCE licensing schemes.

## Vacant Allotments

16. Bible Broadcasting states that it agrees with the Commission's
    decision to accept reservation showings for certain vacant FM
    allotments and requests that we award three points to the successful
    reservation proponent in the subsequent application of the point
    system for that FM allotment.[^40] In essence, Bible Broadcasting
    asks us to award a "finder's preference" to the successful proponent
    of a reservation showing. Bible Broadcasting explains that many
    applicants for NCE stations have limited resources, and will be
    unwilling to undertake the expense of preparing a reservation
    showing without receiving such a preference at the licensing
    stage.[^41]

17. We deny Bible Broadcasting's petition. As a preliminary matter, the
    Commission does not award a finder's preference to successful
    proponents of allocations for commercial stations.[^42] Moreover, in
    adopting the current point system for NCE stations on reserved
    channels, the Commission explicitly declined to give any kind of
    finder's preference to the first entity or individual to file an
    application for a given frequency.[^43] We recognize that such a
    preference would create an incentive for any entity or individual to
    pursue a new allocation or to reserve it for NCE use. We believe,
    however, the existing factors in our current point system best serve
    the public interest in selecting a licensee. As the Commission said
    when it selected the point system over other methodologies to
    resolve application conflicts, favoring those who file first is not
    "the optimal way to select applicants who will provide 'diversity
    and excellence' in educational broadcasting to the public."[^44]
    Accordingly, we decline to award points to the successful proponent
    of a reservation showing.

## Miscellaneous Issues

18. [MMTC Pleadings Withdrawn]{.underline}. On June 16, 2003, MMTC filed
    a petition for reconsideration of the *Second Report & Order*,
    seeking changes in the eligibility requirements for the new entrant
    bidding credit used in broadcast auctions. In its petition, MMTC
    specifically requested that applicants in FM Auction No. 37
    "immediately" report changes that cause a loss of, or reduction in,
    eligibility for a new entrant bidding credit.[^45] The Commission
    subsequently established such a requirement in FM Auction No.
    37,[^46] and, as a result, MMTC withdrew its petition for
    reconsideration by a letter dated October 19, 2004.[^47]
    Accordingly, this matter is no longer before the Commission in this
    proceeding.

19. [Licenses Formerly Held by Michael Rice-Controlled
    Entities]{.underline}. By Public Notice released July 3, 2001, the
    Media Bureau and the Wireless Telecommunications Bureau collectively
    gave notice of filing procedures for applications for interim and
    permanent authority to operate the two AM ("Rice AM Stations") and
    five FM stations ("Rice FM Stations") (collectively, the "Rice
    Stations") formerly licensed to entities controlled by Michael
    Rice.[^48] Because the filing window for AM Auction No. 32 had been
    completed,[^49] the *Rice Public Notice* announced a supplemental AM
    Auction No. 32 filing window for the Rice AM Stations. Seven
    entities timely filed applications for the AM facility at 640 KHz,
    Terre Haute, IN; six entities timely filed applications for the AM
    facility at 1230 KHz, Terre Haute, IN. One of the entities applying
    for both of the Rice AM stations, Word Power, Inc., indicated that
    it was applying for NCE stations.[^50] The *Rice Public Notice* also
    announced that the now-vacant allotments for the Rice FM Stations
    would be included in FM Auction No. 37 and interested parties could
    file Form 175 applications in the then-upcoming auction filing
    window. The allotments for the five Rice FM Stations were also
    included in the *Public Notice*, described *supra*, listing 500
    vacant FM allotments for which NCE reservation showings could be
    filed.[^51] Four of the five Rice FM Station allotments received
    reservation showings.[^52]

20. University of Missouri now expresses concern about the impact of the
    *Second Report & Order* on the licenses for the Rice Stations and,
    in particular, the Channel 252C2 allotment in Columbia, Missouri --
    formerly licensed as KFMZ-FM. University of Missouri asks us to
    clarify whether the policies and rules established in the *Second
    Report and Order* apply to interim licensing for this channel.[^53]
    University of Missouri also contends that it should have an
    opportunity to reserve this channel for exclusive NCE use according
    to the criteria discussed in the *Second Report & Order*.[^54]
    Ultimately, University of Missouri suggests, the Commission should
    adopt unique procedures to license KFMZ-FM to avoid the litigation
    that it anticipates will result from the allotment's auction.[^55]

21. As previously discussed, the Media Bureau opened a window to permit
    interested parties an opportunity to reserve any of approximately
    500 vacant FM allotments. Channel 252C2 in Columbia, Missouri was
    among these FM allotments, as were the four other FM channels
    previously used by Mr. Rice. University of Missouri, in fact, filed
    a reservation showing for the FM channel it seeks. Thus, insofar as
    it seeks this opportunity in its petition, the issue is now
    moot.[^56] To the extent University of Missouri seeks a non-auction
    mechanism to award a license for the channel on a permanent basis,
    we see no grounds for doing so. We find unpersuasive University of
    Missouri's argument that ineligible parties may attempt to acquire
    the license, and that such efforts will result in time-consuming
    litigation. This possibility applies to all broadcast auctions. A
    petitioner may raise such arguments post-auction when a prevailing
    applicant's long-form application is filed. Thus, this concern is
    insufficient to overcome the clear imperative of Section 309(j) of
    the Act.[^57]

22. Applications filed in the supplemental AM Auction No. 32 filing
    window for the two Rice AM Stations also predated the release of the
    *Second Report & Order*. As a result of the *Second Report & Order,*
    any of the applications for NCE stations filed during this window
    that are mutually exclusive with applications for commercial
    stations are to be dismissed. The application of Word Power, Inc.
    was the only application for an NCE station. We, therefore, offer
    Word Power, Inc. the same relief offered to the applicants for NCE
    stations in mixed groups, discussed above, and will afford it the
    same time-limited opportunity to amend its application(s) to apply
    for commercial stations, in accordance with the procedures set forth
    above. After this limited amendment opportunity, all remaining
    mutually exclusive applications for commercial stations for the Rice
    AM Stations will proceed to auction.

# CONCLUSION

23. In this *Memorandum Opinion & Third Order on Reconsideration*, we
    reaffirm all decisions in the *Second Report & Order*, except that
    we will now permit parties with applications for NCE stations on
    non-reserved channels in closed mixed groups that have been pending
    since the date of the *Second Report & Order*, and were then
    mutually exclusive with applications for commercial stations, a
    one-time opportunity to amend their applications. We believe that
    reaffirmation of our earlier conclusions, subject to this change,
    best serves the public interest.

# PROCEDURAL MATTERS

24. [Accessibility Information]{.underline}. To request information in
    accessible formats (computer diskettes, large print, audio
    recording, and Braille), send an e-mail to fcc504@fcc.gov or call
    the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530
    (voice), (202) 418-0432 (TTY). This document can also be downloaded
    in Word and Portable Document Format (PDF) at: http://www.fcc.gov.

25. [Final Paperwork Reduction Act Analysis]{.underline}. This
    *Memorandum Opinion & Third Order on Reconsideration* contains no
    new or modified information collections subject to the Paperwork
    Reduction Act of 1995.[^58] In addition, therefore, it does not
    contain any new or modified "information collection burden for small
    business concerns with fewer than 25 employees," pursuant to the
    Small Business Paperwork Relief Act of 2002.[^59]

26. [Supplemental Final Regulatory Flexibility Analysis]{.underline}. We
    note that the Supplemental FRFA addresses only the matters
    considered on reconsideration in the *Memorandum Opinion & Third
    Order on Reconsideration*. Therefore, Supplemental FRFA attached as
    Appendix B to this *Memorandum Opinion & Third Order on
    Reconsideration* addresses only the one decision reversed from the
    *Second Report & Order*.

27. [Additional Information]{.underline}. For additional information,
    please contact Evan Baranoff, Media Bureau, Policy Division, (202)
    418-2120, or Evan.Baranoff@fcc.gov.

# ORDERING CLAUSES

28. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in sections 1, 2(a), 4(i), 303, 307, 309 and 405(a) of the
    Communications Act, as amended, 47 U.S.C. §§ 151, 152(a), 154(i),
    303, 307, 309 and 405(a) , and Section 1.429 of the Commission's
    rules, 47 C.F.R. § 1.429, that the petitions for reconsideration
    filed by the parties listed in Appendix A ARE GRANTED IN PART AND
    DENIED IN PART as indicated above, and that this *Memorandum Opinion
    & Third Order on Reconsideration* is ADOPTED.

29. IT IS FURTHER ORDERED that the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this *Memorandum Opinion & Third Order on
    Reconsideration*, including the Final Regulatory Flexibility
    Analysis, to the Chief Counsel for Advocacy of the Small Business
    Administration.

30. IT IS FURTHER ORDERED that this proceeding is TERMINATED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**Appendix A**

**Pleadings**

[Petitions for Reconsideration]{.underline}

1.  Bible Broadcasting Network, Inc. (Bible Broadcasting)

2.  Black Hawk College (Black Hawk)

3.  Fatima Response, Inc. (Fatima Response)

4.  Marist College

5.  Minority Media & Telecommunications Council (MMTC)

6.  Pacific Radio Engineering (Pacific Radio)

7.  Renaissance Community Improvement Association, Inc. (Renaissance
    Community)

8.  University of Missouri

    [Opposition to Petition for Reconsideration]{.underline}

```{=html}
<!-- -->
```
1.  Jack Gartner

    **Appendix B**

    **Supplemental Final Regulatory Flexibility Analysis**

```{=html}
<!-- -->
```
1.  As required by the Regulatory Flexibility Act of 1980, as amended
    ("RFA"),[^60] an Initial Regulatory Flexibility Analysis ("IRFA")
    was incorporated in the *Second Further Notice of Proposed
    Rulemaking* ("*Second Further Notice*") in this docket.[^61] The
    Commission sought written public comment on the proposals in the
    *Second Further Notice*, including comment on the IRFA. No comments
    addressed the IRFA. A Final Regulatory Flexibility Analysis ("FRFA")
    was published in the *Second Report & Order* in this docket.[^62]
    This present Supplemental FRFA, which conforms to the RFA,[^63]
    supplements that FRFA.

## Need for, and Objectives of, the Memorandum Opinion & Third Order on Reconsideration

31. The Commission adopts this *Memorandum Opinion & Third Order on
    Reconsideration* to reaffirm its earlier conclusions in the *Second
    Report & Order,* except for one decision. In the *Second Report &
    Order,* the Commission decided to dismiss a discrete group of
    applicants for NCE stations for non-reserved channels that were
    mutually exclusive with applications for commercial stations without
    providing these applicants an opportunity to avoid dismissal by
    amending their applications to change their status from NCE to
    commercial.[^64] This discrete group of long-pending applications
    for NCE stations consists of approximately 19 mixed groups of
    mutually exclusive applications for non-reserved channels filed
    between 1994 and 1997; these include 13 FM mixed groups, two FM
    translator mixed groups, and four TV mixed groups. On
    reconsideration, the Commission will now afford each of these
    applicants a one-time opportunity to amend their applications to
    apply for a commercial broadcast station before dismissing these
    applications. The Commission is persuaded that the unfairness of
    immediate dismissal to this discrete group of long-pending
    applications for NCE stations outweighs any delay to those
    applicants for commercial stations that are mutually exclusive with
    these applicants.[^65] Unlike prospective applicants for NCE
    stations, these applicants for NCE stations in the mixed groups
    sought to be licensed as NCE stations before adoption of the Second
    Report & Order and thus without knowledge of the consequences of
    this decision. Moreover, the Commission finds that it can
    expeditiously afford mixed group applicants for NCE stations a
    one-time opportunity to amend their pending applications to apply
    for a commercial station, while avoiding unnecessary delay to the
    pending commercial applicants, which initially dissuaded the
    Commission from providing such an opportunity.[^66]

## Summary of Significant Issues Raised by the Public in Responses to the IRFA

32. No comments addressed the IRFA, or otherwise discussed issues that
    may impact small entities.

## Description and Estimate of the Number of Small Entities to Which the Rules Will Apply

33. The RFA directs the Commission to provide a description of, and,
    where feasible, an estimate of the number of small entities that
    will be affected by the rules.[^67] The RFA defines the term "small
    entity" as having the same meaning as "small business," "small
    organization," and "small governmental jurisdiction."[^68] In
    addition, the term "small business" has the same meaning as the term
    "small business concern" under the Small Business Act.[^69] A "small
    business concern" is one that: (1) is independently owned and
    operated; (2) is not dominant in its field of operation; and (3)
    satisfies any additional criteria established by the SBA.[^70]

34. The decision adopted in this *Memorandum Opinion & Third Order on
    Reconsideration* will affect only (1) the discrete group of
    applicants for NCE stations[^71] for non-reserved channels and (2)
    those applicants for commercial stations that are mutually exclusive
    with these NCE applicants. These groups may include small
    businesses, and were included in the description and estimate of
    small entities in the FRFA to the *Second Report & Order*.[^72]

35. [Radio]{.underline}. The applicants affected by this new decision
    may include existing radio stations. SBA defines as a small business
    those radio broadcasting stations that have no more than \$7.0
    million in annual receipts.[^73] The Commission has estimated the
    number of licensed radio stations to be 13,837, of which 4,754 are
    AM stations, 6,266 are commercial FM stations, and 2,817 are NCE FM
    stations.[^74] According to Commission staff review of the BIA
    Financial Network, MAPro Television Database ("BIA") of March 30,
    2007, about 10,420 commercial radio stations (or about 95 percent)
    of an estimated 11,000 commercial radio stations[^75] have revenue
    of \$7.0 million or less. Many commercial radio stations, however,
    are affiliated with larger corporations with higher revenue, with
    the result that the estimated number of commercial radio stations
    overstates the number that qualify as small entities. The Commission
    does not compile and otherwise does not have access to information
    on the revenue of NCE stations that would permit it to determine how
    many such stations would qualify as small entities.

36. [Television]{.underline}. The applicants affected by this new
    decision may also include TV stations. The SBA defines a television
    broadcast station as a small business if such station has no more
    than \$14.0 million in annual receipts.[^76] Business concerns
    included in this industry are those "primarily engaged in
    broadcasting images together with sound."[^77] The Commission has
    estimated the number of licensed commercial television stations to
    be 1,376.[^78] According to Commission staff review of the BIA
    Financial Network, MAPro Television Database ("BIA") on March 30,
    2007, about 986 of an estimated 1,374 commercial television
    stations[^79] (or about 72 percent) have revenues of \$14.0 million
    or less and thus qualify as small entities under the SBA definition.
    The Commission has estimated the number of licensed NCE television
    stations to be 380.[^80] We note, however, that, in assessing
    whether a business concern qualifies as small under the above
    definition, business (control) affiliations[^81] must be included.
    Our estimate, therefore, likely overstates the number of small
    entities that might be affected by our action, because the revenue
    figure on which it is based does not include or aggregate revenues
    from affiliated companies. The Commission does not compile and
    otherwise does not have access to information on the revenue of NCE
    stations that would permit it to determine how many such stations
    would qualify as small entities.

37. In addition, 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 television station is dominant in its
    field of operation. Accordingly, the estimate of small businesses to
    which rules may apply do not exclude any television station from the
    definition of a small business on this basis and are therefore
    over-inclusive to that extent. Also as noted, an additional element
    of the definition of "small business" is that the entity must be
    independently owned and operated. We note that it is difficult at
    times to assess these criteria in the context of media entities and
    our estimates of small businesses to which they apply may be
    over-inclusive to this extent.

## Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

38. The decision adopted in this *Memorandum Opinion & Third Order on
    Reconsideration* will not result in a change in the existing
    compliance, reporting and recordkeeping requirements, except with
    respect to the discrete group of applicants for NCE stations that
    were previously dismissed in the *Second Report & Order* because
    they were mutually exclusive with applications for commercial
    stations. As a result of this Order, the discrete group of
    applicants for NCE stations is being permitted a one-time
    opportunity to file an amendment to their applications to change
    their status from NCE to commercial, and thereby avoid dismissal of
    their applications.

## Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

39. The RFA requires an agency to describe any significant alternatives
    that it has considered in adopting its rules, which may include the
    following four alternatives (among others): (1) the establishment of
    differing compliance or reporting requirements or timetables that
    take into account the resources available to small entities; (2) the
    clarification, consolidation, or simplification of compliance or
    reporting requirements under the rule for small entities; (3) the
    use of performance, rather than design, standards; and (4) an
    exemption from coverage of the rule, or any part thereof, for small
    entities.[^82]

40. On reconsideration, the Commission determined it has two
    choices: (1) reaffirm its decision in the *Second Report & Order* to
    immediately dismiss this discrete group of applicants for NCE
    stations or (2) give these applicants an opportunity to amend their
    applications to change their status from NCE to commercial, and thus
    avoid dismissal. In the *Second Report & Order*, we were not
    persuaded that the equities favoring the applicants for NCE stations
    outweighed the delay in initiating new broadcast service to the
    public as well as the unfairness to applicants for commercial
    stations. But we now believe that the unfairness of immediate
    dismissal to this discrete group of applicants for NCE stations
    outweighs any delay or unfairness to those applicants for commercial
    stations that are mutually exclusive with these applicants. Unlike
    future applicants for NCE stations, these applicants for NCE
    stations in the mixed groups sought to be licensed as an NCE station
    before adoption of the *Second Report & Order* and thus without full
    knowledge of the consequences of this decision. Moreover, we now
    believe that we can expeditiously afford applicants with pending
    applications a one-time opportunity to amend their applications to
    apply for a commercial station yet will avoid the delay and
    unfairness to applicants for commercial stations that initially
    dissuaded us from providing such an opportunity. After this filing
    opportunity, any application for an NCE station that remains
    mutually exclusive with any application for a commercial station
    will be dismissed with prejudice, in accordance with Section
    73.5002(b) of the rules. There will be no additional opportunity for
    applicants in these pending, closed mixed groups to further amend
    their long-form applications. We believe that this processing policy
    will provide fairer treatment to pending applicants and better serve
    the public interest. It will give applicants for NCE stations one
    opportunity to reevaluate their long-pending plans in the context of
    full and complete information about how the licensing process will
    work and, as designed, it should not appreciably delay the
    introduction of new service. This approach will avoid the extremely
    harsh result of dismissing applicants based on subsequently adopted
    processing rules in a manner that is consistent with our statutory
    commercial and NCE licensing schemes.

41. Furthermore, our new decision will benefit the applicants for NCE
    stations that are small businesses by allowing them a chance to
    compete for licenses. While some of the applicants for commercial
    stations that are small businesses may be harmed by facing increased
    competition for licenses, the harm to these entities would not be as
    great as that to those small businesses applicants for NCE stations
    that would face dismissal of their applications. In addition, the
    public is better served by this enhanced competition.

## Report to Congress

42. The Commission will send a copy of this *Memorandum Opinion & Third
    Order on Reconsideration*, including this FRFA, in a report to be
    sent to Congress pursuant to the Congressional Review Act.[^83] In
    addition, the Commission will send a copy of this *Memorandum
    Opinion & Third Order on Reconsideration*, including this FRFA, to
    the Chief Counsel for Advocacy of the Small Business Administration.
    A copy of this *Memorandum Opinion & Third Order on Reconsideration*
    and this FRFA (or summaries thereof) will also be published in the
    Federal Register.[^84]

CONCURRING STATEMENT OF

COMMISSIONER MICHAEL J. COPPS

*Re: Reexamination of the Comparative Standards for Noncommercial
Educational Applicants, MM Docket No. 95-31.*

I have expressed my views earlier in this docket on the difficult issues
raised by noncommercial educational (NCE) entities applying for
non-reserved spectrum. *See Second Report and Order*, 18 FCC Rcd 6691
(2003).

As I said then, it seems reasonable to allow NCE applicants to apply for
the use of non-reserved spectrum---subject to dismissal if there is a
competing commercial application---and to allow nonprofits wishing to
provide a commercial radio service to apply for non-reserved spectrum
for that purpose as well. On the other hand, I also noted my concern
about the further blurring of the line between commercial and NCE
services---including the ease with which our rules permit stations to
flip back-and-forth between commercial service and NCE service and the
possibility that some NCE stations may seek to raise auction funds in a
manner that will detract from and endanger the integrity of NCE
broadcasting.

Today's decision does not really break any new ground, but simply
permits a discrete group of long-pending NCE applicants to avoid
dismissal by amending their applications to specify commercial
operation---something new NCE applicants can do if they so choose. That
seems consistent with our prior decisions. And yet my concerns remain. I
will therefore be concurring in the result and reiterating my hope that
NCE stations do not abandon their proud heritage and long-term
survivability by becoming less and less distinguishable from their
commercial counterparts.

[^1]: Reexamination of the Comparative Standards for Noncommercial
    Educational Applicants, MM Docket No. 95-31, *Second Report &
    Order,* 18 FCC Rcd 6691 (2003) ("*Second Report & Order*"). The
    eight petitioners and a party who opposed one of the petitions,
    along with the abbreviations by which they are referenced in this
    document, are listed in Appendix A.

[^2]: *Second Report & Order,* 18 FCC Rcd at 6691, ¶ 1.

[^3]: *Notice of Proposed Rulemaking*, 10 FCC Rcd 2877 (1995).

[^4]: Pub. L. No. 105-33, Title III, 111 Stat. 251 (1997).

[^5]: 47 U.S.C. § 309(j) (exempting stations described in Section 397(6)
    of the Act).

[^6]: Reexamination of the Comparative Standards for Noncommercial
    Educational Applicants, MM Docket No. 95-31, *Report & Order,* 15
    FCC Rcd 7386, 7394-7415 (2000) ("*Report & Order"*).

[^7]: *Id*. at 7427-33.

[^8]: 254 F.3d 226, 229 (D.C. Cir. 2001) ("*NPR*").

[^9]: *Second Report & Order,* 18 FCC Rcd at 6699-701, ¶¶ 21-24; *see
    also* 47 C.F.R. § 73.5002(b).

[^10]: *Second Report & Order,* 18 FCC Rcd at 6701-02, ¶¶ 25-26.

[^11]: *Id*. at 6703-05, ¶¶ 29-38. The Commission had originally adopted
    these criteria in the *Report & Order* in the proceeding. *Report &
    Order,* 15 FCC Rcd at 7434-35.

[^12]: *Second Report & Order,* 18 FCC Rcd at 6705-06, ¶¶ 39-40.

[^13]: *Id*. at 6707, ¶ 41.

[^14]: *Id*. at 6699, ¶ 21; *see also* 47 C.F.R. § 73.5002(b).

[^15]: 47 C.F.R. § 73.5002(b) states that "\[i\]f any application for a
    noncommercial educational broadcast station, as described in 47
    U.S.C. 397(6), is mutually exclusive with applications for
    commercial broadcast stations, and the applicants that have the
    opportunity to resolve the mutually exclusivity pursuant to
    paragraph (c) and (d) of this section fail to do so, the application
    for noncommercial educational broadcast station, as described in 47
    U.S.C. 397(6), will be returned as unacceptable for filing, and the
    remaining applications for commercial broadcast stations will be
    processed in accordance with competitive bidding procedures."

[^16]: Marist College also contends that our decision is inconsistent
    with the 1997 Budget Act and the *NPR* decision, but its argument
    appears to be designed only to seek a reversal of our decision to
    dismiss the pending applications for NCE stations in mixed groups.
    We grant this relief, as described below. In any event, as described
    in this order, and as described at greater length in the *Second
    Report & Order*, *see* 18 FCC Rcd at 6699-6702, ¶¶ 21-26, our
    decision is fully consistent with the both the 1997 Balanced Budget
    Act and the *NPR* decision.

[^17]: University of Missouri at 3-6.

[^18]: *See* *Second Report & Order,* 18 FCC Rcd at 6700-01, ¶ 23-4.
    *See also* University of Missouri comments to the *Second Further
    Notice* *of Proposed Rulemaking*, 17 FCC Rcd 3833 (2002) ("*Second
    Further Notice*").

[^19]: *See* Policies Regarding the Detrimental Effects of Proposed New
    Broadcasting Stations on Existing Stations, MM Docket. No. 87-68,
    *Memorandum Opinion and Order*, 4 FCC Rcd 2276, 2277 (1989) ("It is
    well established that reconsideration will not be granted merely for
    the purpose of again debating matter on which the agency has once
    deliberated and spoken. The public interest in expeditious
    resolution of Commission proceedings is done a disservice if the
    Commission readdresses arguments and issues it has already
    considered.").

[^20]: *Second Report & Order*, 18 FCC Rcd at 6691, ¶ 1.

[^21]: 47 U.S.C. § 309(j)(1) (emphasis added).

[^22]: *Id*. § 309(j)(2)(C).

[^23]: *Report & Order*, 15 FCC Rcd at 7387-88, ¶ 2.

[^24]: *Second Further Notice,* 17 FCC Rcd at 3837-39.

[^25]: *Second Report & Order,* 18 FCC Rcd at 6699-6701.

[^26]: *Id*. at 6704, ¶ 31.

[^27]: Media Bureau Opens Window to Permit Noncommercial Educational
    Reservation Showings for Certain Vacant FM Allotments, *Public
    Notice*, 18 FCC Rcd 19600 (MB 2003).

[^28]: *Second Report & Order,* 18 FCC Rcd at 6700, ¶ 21.

[^29]: Applications in these mixed groups were identified in Attachment
    A to "Window Opened to Permit Settlements for Closed Groups of
    Mutually Exclusive Broadcast Applications," *Public Notice*, 16 FCC
    Rcd 17091 (2001).

[^30]: *Id.* at 6707, ¶ 41.

[^31]: Originally, the Commission expected to resolve the mutually
    exclusive applications for these pending mixed groups in Closed
    Broadcast Auction No. 25, which the Commission conducted in 1999.

[^32]: The four petitioners are Black Hawk, Fatima Response, Marist
    College, and Renaissance Community. Pacific Radio also asks us to
    clarify how the new policies and rules apply to pending mutually
    exclusive groups that contain only applications for NCE stations.
    Pacific Radio at 2. As the Commission stated in the *Second Report &
    Order*, "\[a\]pplications for NCE stations that are mutually
    exclusive only with one another will not proceed to auction and
    instead will be resolved by the same point system selection
    procedures that we have established for the reserved band." *Second
    Report & Order,* 18 FCC Rcd at 6700, ¶ 22. This is equally true for
    pending applications that only involve those for NCE stations.

[^33]: Black Hawk at 5-7; Marist College at 5-6.

[^34]: Black Hawk at 3-5.

[^35]: Marist College at 2.

[^36]: Black Hawk at 7.

[^37]: Fatima Response at 2; Renaissance Community at 1. Fatima Response
    also asks that we allow those with pending applications for NCE
    stations to "amend their applications to a NCE reserved band
    frequency without opening a window to allow other applicants to file
    applications, providing a NCE reserved band frequency is available."
    Fatima Response at 2. Fatima Response provides no basis to exclude
    others from competing for such a reserved channel, and we decline to
    do so.

[^38]: Jack Garter at 2-6.

[^39]: *Second Report & Order,* 18 FCC Rcd at 6707, ¶ 41.

[^40]: Bible Broadcasting at 3.

[^41]: *Id*.

[^42]: In fact, in adopting rules for resolving mutually exclusive
    applications for commercial stations, the Commission explicitly
    declined to award a finder's preference to the successful proponent
    of an allocation, in the form of a bidding credit when the
    allocation becomes available at auction. Implementation of Section
    309 of the Communications Act -- Competitive Bidding For Commercial
    Broadcast and Instructional Television Fixed Service Licenses, MM
    Docket No. 97-234, *First Report and Order*, 13 FCC Rcd 15920,
    15996-97, ¶ 192 (1998).

[^43]: *Report & Order,* 15 FCC Rcd at 7415-16, ¶ 68.

[^44]: *Id*. at 7393, ¶ 15.

[^45]: *MMTC* at 4.

[^46]: *See* "Auction of FM Broadcast Construction Permits," *Public
    Notice*, 19 FCC Rcd 19773, 19777 (WTB/MB 2004).

[^47]: MMTC withdrew several pleadings by this October 19, 2004 letter,
    including its petition and comments filed regarding the *Second
    Report & Order* on May 15, 2002. The Commission announced the
    withdrawal by this letter of other MMTC pleadings in a public notice
    released on October 22, 2004; *see* "Auction of FM Broadcast
    Construction Permits, Pleadings Withdrawn," *Public Notice*, 19 FCC
    Rcd 20976 (WTB/MB 2004).

[^48]: "Permanent and Interim Authority Procedures Announced for
    Applications for Stations Formerly Licensed to Entities Controlled
    by Michael Rice," *Public Notice*, 16 FCC Rcd 12832 (MMB/WTB 2001)
    ("*Rice Public Notice*"). The stations at issue are: (1) WBOW(AM),
    Terre Haute, IN, 640 KHz; (2) WBUZ(AM), Terre Haute, IN, 1230 KHz;
    (3) WZZQ(FM), Terre Haute, IN, Ch. 298B; (4) KFMZ(FM), Columbia, MO,
    Ch. 252C2; (5) KROW(FM), Huntsville, MO (construction permit), Ch.
    278C2; (6) KBMX(FM), Eldon, MO, Ch. 270A; and (7) KFXE-FM, Cuba, MO
    (construction permit), Ch. 271A.

[^49]: *See* "AM Auction Filing Window and Application Freeze," *Public
    Notice,* 14 FCC Rcd 19490 (MMB/ WTB 1999).

[^50]: Thus, once Word Power, Inc. applied for the two Rice AM Stations
    as an NCE, the two mutually exclusive AM groups also became \"mixed
    groups.\" Until resolution of the mixed group issue, the two
    mutually exclusive AM groups for the two Rice AM Stations could not
    be included in AM Auction No. 32, which proceeded as scheduled and
    closed on December 12, 2002.

[^51]: *See supra* note 29.

[^52]: Living Proof, Inc. and Word Power, Inc. and the Trustees of
    Indiana University filed reservation showings for Terre Haute, IN,
    Ch. 298B. Channel 298B at Terre Haute, IN was successfully reserved
    for NCE use. Channel 278C2 at Huntsville, MO, was successfully
    reserved for NCE use by American Family Association. The Curators of
    University of Missouri filed a reservation showing for Columbia, MO,
    Ch. 252C2. As discussed below, the showing was returned and the
    matter is under reconsideration with the Media Bureau. American
    Family Association also filed a reservation showing for Eldon, MO,
    Ch. 270A. The showing was returned and no appeal was filed. No
    reservation showing was filed for Cuba, MO, Ch. 271A. Accordingly,
    both Ch. 270A, Eldon, MO and Ch. 271A, Cuba, MO were included in FM
    Broadcast Auction No. 62, which closed on January 31, 2006.

[^53]: University of Missouri at 6-8.

[^54]: *Id*. at 9.

[^55]: *Id*. at 9-11.

[^56]: By letter dated March 18, 2004, the Media Bureau returned
    University of Missouri's reservation petition because it failed to
    demonstrate that its proposed station would provide a first or
    second NCE radio service to at least 10 percent of the population
    within its proposed service area. On April 19, 2004, University of
    Missouri filed a petition for reconsideration, which is pending with
    the Media Bureau.

[^57]: As of August 3, 2005, all applications for interim authority to
    operate the Rice Stations have been dismissed.

[^58]: The Paperwork Reduction Act of 1995 ("PRA"), Pub. L. No. 104-13,
    109 Stat 163 (1995) (*codified in* Chapter 35 of Title 44 U.S.C.).

[^59]: The Small Business Paperwork Relief Act of 2002 ("SBPRA"), Pub.
    L. No. 107-198, 116 Stat 729 (2002) (codified in Chapter 35 of title
    44 U.S.C.); *see* 44 U.S.C. 3506(c)(4).

[^60]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et. seq.*,
    has been amended by the Small Business Regulatory Enforcement
    Fairness Act of 1996 ("SBREFA"), Pub. L. No. 104-121, Title II, 110
    Stat. 847 (1996). The SBREFA was enacted as Title II of the Contract
    With America Advancement Act of 1996 ("CWAAA").

[^61]: *Second Further Notice,* 17 FCC Rcd 3833, 3844-3846 (2002).

[^62]: *Second Report & Order,* 18 FCC Rcd 6691 (2003).

[^63]: *See* 5 U.S.C. § 604.

[^64]: *Second Report & Order,* 18 FCC Rcd at 6707 ¶ 41.

[^65]: *See*, *supra*, ¶ 14.

[^66]: *Id*.

[^67]: 5 U.S.C. § 604(a)(3).

[^68]: *Id*. § 601(6).

[^69]: *Id*. § 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."

[^70]: 15 U.S.C. § 632.

[^71]: Under the applicable provisions of the Act, NCE stations are
    those owned and operated by: (1) nonprofit educational organizations
    after showing that they will use the stations to advance educational
    programs, or (2) municipalities that use the stations to air only
    noncommercial programs for educational purposes. 47 U.S.C. § 397(6).

[^72]: *Second Report & Order*, 18 FCC Rcd at 6710, Appendix B.

[^73]: 13 C.F.R. § 121.201 North American Industry Classification System
    ("NAICS") Code 515112.

[^74]: *See* News Release, "Broadcast Station Totals as of December 31,
    2006," 2007 WL 221575 (dated Jan. 26, 2007) ("*Broadcast Station
    Totals*"); also available at http://www.fcc.gov/mb/. As of the same
    date, the Commission had also licensed 4,131 FM translator and
    booster stations (commercial and NCE) and 771 low power FM stations.
    *See id*.

[^75]: We recognize that this total differs from that contained in
    *Broadcast Station Totals*, *supra* IRFA note 15; however, we are
    using BIA's estimate for purposes of this revenue comparison.

[^76]: *See* 13 C.F.R. § 121.201, NAICS Code 515120.

[^77]: *Id*. This category description continues, "These establishments
    operate television broadcasting studios and facilities for the
    programming and transmission of programs to the public. These
    establishments also produce or transmit visual programming to
    affiliated broadcast television stations, which in turn broadcast
    the programs to the public on a predetermined schedule. Programming
    may originate in their own studios, from an affiliated network, or
    from external sources." Separate census categories pertain to
    businesses primarily engaged in producing programming. *See* Motion
    Picture and Video Production, NAICS code 512110; Motion Picture and
    Video Distribution, NAICS Code 512120; Teleproduction and Other
    Post-Production Services, NAICS Code 512191; and Other Motion
    Picture and Video Industries, NAICS Code 512199.

[^78]: *See* *Broadcast Station Totals*, *supra* IRFA note 15.

[^79]: We recognize that this total differs slightly from that contained
    in *Broadcast Station Totals*, *supra* IRFA note 15; however, we are
    using BIA's estimate for purposes of this revenue comparison.

[^80]: *See* *Broadcast Station Totals*, *supra* IRFA note 15.

[^81]: "\[Business concerns\] are affiliates of each other when one
    concern controls or has the power to control the other or a third
    party or parties controls or has to power to control both." 13
    C.F.R. § 121.103(a)(1).

[^82]: 5 U.S.C. § 603(c)(1)-(c)(4).

[^83]: *Id*. § 801(a)(1)(A).

[^84]: *Id*. § 604(b).