Number range CHAPTER

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

1998 Biennial Regulatory Review \-- ) MM Docket No. 98-43

Streamlining of Mass Media Applications, )

Rules, and Processes )

)

)

Policies and Rules Regarding ) MM Docket No. 94-149

Minority and Female Ownership of )

Mass Media Facilities )

)

)

)

)

**MEMORANDUM OPINION AND ORDER**

**Adopted: September 29, 1999** **Released: October 6, 1999**

By the Commission: Commissioner Furchtgott-Roth approving in part,
dissenting in part and issuing a statement.

**I. INTRODUCTION AND BACKGROUND**

1\. The Commission has before it petitions for reconsideration of the
[Report and Order]{.underline} in MM Docket Nos. 98-43 and 94-149, 13
FCC Rcd 23,056 (1998) (the \"[Streamlining Order]{.underline}\") and
related responsive pleadings.[^1] In the [Streamlining
Order]{.underline}, the Commission significantly modified its broadcast
application and licensing procedures to make them more efficient and
eliminate unwarranted regulatory burdens. Specifically, in the
[Streamlining Order]{.underline}, we (1) adopted an electronic filing
mandate for key Mass Media Bureau broadcast application and reporting
forms, establishing a \"phase-in\" period of six months between the date
that the pertinent form becomes available for filing electronically and
the date that electronic filing would become mandatory; (2)
substantially revised key forms to replace many narrative exhibits with
\"yes\" or \"no\" certifications, supplemented with detailed
instructions and worksheets; (3) adopted a system of random audits to
ensure the integrity of our application process, as well as compliance
with the Communications Act and the Commission\'s Rules, under the
streamlined application procedures; (4) extended the construction period
for all broadcast stations to three years (from 18 months for radio
stations and 24 months for television stations) and provided for
automatic forfeiture of the permit if a station is not operational with
an application for covering license on file by the end of that period;
(5) adopted a formal system by which the construction period would be
\"tolled\" in the event that (a) an \"act of God\" interfered with
construction efforts, or (b) a permit itself was the subject of
administrative or judicial review; (6) eliminated the restriction on
payment allowable for the sale of an unbuilt construction permit; (7)
eliminated the requirement that broadcast station ownership reports be
filed every year on the date of the station\'s license renewal and
substituted a requirement that the report be filed only every two years;
and (8) modified the ownership report form to require the provision of
information on the racial and gender identity of broadcast
licensees/principals.

2\. Thirty-eight parties have now filed petitions for reconsideration of
the [Streamlining Order]{.underline}. The majority of petitions
addressed the adoption and application of the three-year construction
period and concomitant \"tolling\" provisions. Additionally, we received
petitions regarding several issues associated with our
certification-based applications. In this [Order]{.underline}, we will
grant reconsideration with respect to several issues raised by the
petitioners, deny reconsideration of other issues, and clarify certain
aspects of the rules adopted in the [Streamlining Order]{.underline}.

**II. DISCUSSION**

**A. REVISED APPLICATION FORMS**

3\. As noted, in the [Streamlining Order]{.underline}, we determined to
recast key Mass Media Bureau forms into an \"electronic filing
friendly\" format, replacing required exhibits with questions that
require only \"yes\" or \"no\" answers.[^2] We received no requests for
reconsideration of the mandatory electronic filing requirements or the
streamlined application forms [per]{.underline} [se]{.underline}.
However, various petitioners did request reconsideration of our
determinations regarding retention of application worksheets, submission
of contour maps with assignment/transfer applications, a post-grant
random audit enforcement mechanism, and the submission of race and
gender data in broadcast licensee ownership reports.

**1. Worksheets**

4\. [Background]{.underline}. In the [Streamlining Order]{.underline},
we decided to assist applicants in completing the new
certification-based forms accurately and completely by providing them
with detailed worksheets and instructions to explain processing
standards and rule interpretations. The [Streamlining Order]{.underline}
emphasized that the application worksheets were \"available to
applicants as instruments to provide guidance in completing
certification questions,\" and that they were \"designed to clarify
Commission processing standards and rule interpretations and to enhance
the reliability of applicant certifications and responses.\" 13 FCC Rcd
at 23,067-68. The [Streamlining Order]{.underline} determined, however,
not to require applicants to retain worksheets or file them with the
Commission or place them in their public files.

5\. [Pleadings]{.underline}. The Federal Communications Bar Association
(\"FCBA\"), challenges our decision regarding the retention and filing
of application worksheets.[^3] It contends that, because the Commission
is requiring each applicant to complete the worksheets, it is a minimal
additional burden on the applicant to place a copy of completed
worksheets in the applicant\'s local public file and to file a copy of
the worksheets in the Commission\'s Reference Information Center. Such
filing and retention requirements, the FCBA maintains, would ensure the
integrity of the application process. It additionally argues that
certain questions on the worksheets (such as those concerning
cross-interests, familial relationships and investor and creditor
disclosures) prejudge the outcome of the Commission\'s pending broadcast
multiple ownership rule making proceedings, and that a number of
worksheet questions request new information that appears unrelated to
application questions and the Commission\'s processing of the
application.

6\. [Discussion]{.underline}. We disagree with these assertions
regarding the application worksheets. We emphasize that, as stated in
the [Streamlining Order]{.underline}, applicants\' certifications are to
be based on their \"review of application instructions and worksheets,\"
which are intended \"to provide guidance,\" \"to clarify\" processing
standards and rule interpretations, and to \"help applicants focus on
material facts and documents\" in making their certifications. 13 FCC
Rcd at 23,067-68. We also emphasize that applicants are encouraged to
retain worksheets, \"as well as other data or documentation used to
support certifications, for use in response to Commission audits and
inquiries . . . .\" [Id]{.underline}. at 23,069. However, although
applicants must certify in their applications that they answered each
question based on their review of application instructions and
worksheets, it would be contrary to the purpose of streamlining to treat
these detailed worksheets as part of all broadcast applications and
require first that they be completed in a manner that could be readily
reviewed and understood by all others and then retained in the
applicants\' local public files and the Commission\'s Reference
Information Center.

7\. Nor do we believe that imposing such regulatory burdens is necessary
to ensure the integrity of our application processes. Despite our
general reliance on certifications in the streamlined broadcast
applications forms, we note that the Commission always retains the
discretion to request additional information from any particular
applicant. As discussed in detail in paragraphs 12-16,
[infra]{.underline}, we will also randomly select up to five percent of
all broadcast applications for pre-grant and post-grant audits. In
addition, we may, as stated in the [Streamlining Order]{.underline},
conduct an audit even if an application does not fall into the group
chosen by random selection, if the application raises concerns on its
face or presents particularly significant public interest concerns. 13
FCC Rcd at 23,086. We are therefore not persuaded at this time that our
streamlined application procedures, based on certifications coupled with
detailed instructions and worksheets and buttressed by a formal audit
program, are inadequate to ensure applicants\' understanding of, and
compliance with, Commission rules and policies. We accordingly deny the
petition with regard to the retention and filing of application
worksheets.

8\. We also are not persuaded that the substance of any worksheet
question is inappropriate. None of the questions on the worksheets was
intended to prejudge the outcome of any pending proceeding, including
the broadcast multiple ownership proceeding, and none requires
disclosure of information that is not directly related to application
processing. Rather, the worksheet questions reflect the Commission\'s
existing policies on various matters. Those questions specifically noted
by the petitioner on Worksheet 3F pertaining to \"Investor Insulation
and Non-Party Influence over Applicant\" concern matters that, in our
experience, have consistently triggered requests for further information
in the processing of broadcast applications because they directly bear
upon the ability of an applicant to exercise [de]{.underline}
[facto]{.underline} control of a licensee. We note, however, that in
light of the Commission\'s recent adoption of new ownership and
attribution rules,[^4] we will revise the application worksheets and
instructions accordingly and announce their revision and release by a
subsequent [Public Notice]{.underline}.

**2. Contour Maps**

9\. [Background]{.underline}. Prior to the implementation of the
[Streamlining Order]{.underline}, FCC Forms 314 and 315 (the
\"long-form\" assignment and transfer forms, respectively) required
radio applicants to submit a contour map if the buyer was acquiring a
radio station that has a principal community contour that overlaps the
principal community contour of a commonly owned, same-service station.
The map was reviewed by the staff to determine compliance with the local
radio ownership rules. In the [Streamlining Order]{.underline}, noting
that we had developed detailed instructions and worksheets that would
help applicants understand the relevant rules and concepts themselves,
we eliminated the requirement that applicants submit the contour overlap
map for staff review and decided to rely instead on applicant
certifications. However, we required that one copy of the contour
overlap map upon which the certification of compliance was based be
submitted with the application for retention in the Commission\'s
Reference Information Center and that one copy of the map be retained in
the public inspection file(s) of the station(s) involved in the
transaction.

10\. [Pleadings]{.underline}. One petitioner states that this contour
map filing requirement imposes an unreasonable expense and burden on
applicants that can certify compliance with the local radio ownership
rules without reference to such a map.[^5] In many situations, this
petitioner states, an applicant proposing to own more than one
same-service station in a community can certify compliance simply by
showing that there are greater than the requisite number of stations
[licensed]{.underline} [to]{.underline} that community. For example, if
a broadcaster desires to own two FM stations licensed to Anchorage,
Alaska, it should be able to demonstrate compliance with the local radio
ownership rules without submitting a contour map simply by demonstrating
that there are at least five stations licensed to Anchorage.

11\. [Discussion]{.underline}. We agree with petitioner and will adopt a
limited exception to the contour map submission requirement: when the
acquisition will result in same service overlap of stations licensed to
the same community (and no other station outside the community of
license is involved), an applicant will be permitted to certify
compliance with the local radio ownership rules based upon a written
showing that a sufficient number of operating stations are licensed to
that community. This practice is currently followed by the Bureau staff,
and we find that it is an appropriate means to reduce applicant burden
at no cost to the reliability of the certification process. Applicants
who certify compliance with the multiple ownership rules based upon this
methodology should include a list of stations as an exhibit to the
application.

**3. Enforcement and Audits**

12\. [Background]{.underline}. In the [Streamlining Order]{.underline},
we concluded that a strong enforcement program, including random audits,
was needed to ensure the integrity of a streamlined broadcast
application process. As part of this enforcement program, we adopted a
formal system of random audits, which would subject up to five percent
of all broadcast applications to heightened scrutiny prior to grant and
would additionally subject up to five percent of all applications to
audit after grant. As explained in the [Streamlining Order]{.underline},
pre-grant audits would normally be conducted during the 30-day petition
to deny period and would generally be limited to an examination of
information that we have previously utilized to ensure compliance with
Commission rules, such as sale agreements and contour maps. Because time
constraints would limit the breadth of these pre-grant audits, we also
determined to randomly subject up to five percent of all applications to
more extensive post-grant audits. These post-grant audits could include
comparison of the application being audited with all relevant Commission
files and databases as well as other available sources of pertinent
information. 13 FCC Rcd at 23,085-86.

13\. [Pleadings]{.underline}. One petitioner argues that the decision to
conduct post-grant audits raises questions as to when a Commission
action granting an application will become a \"final order\" in the
sense that it is no longer subject to further administrative or judicial
reconsideration or review.[^6] This petitioner asserts that the adoption
of a post-grant audit procedure casts a \"long shadow across the concept
of finality,\" and has made it \"impossible\" for attorneys to give
unqualified opinions that Commission actions with respect to
applications subject to random post-grant audits are \"final orders.\"
According to this petitioner, lending institutions and investors will be
reluctant to advance funds based upon qualified opinions regarding
finality, which must disclose that an application that has been granted
may still be subjected to a random audit. To resolve this problem, the
petitioner suggests, as one alternative, that the Commission identify,
by public notice prior to their \"final order date,\" those applications
that have been selected for post-grant audits. This procedure would
eliminate the alleged finality problem for at least those applications
not selected for post-grant audit. As a preferred alternative, this
petitioner urges the Commission to eliminate post-grant audits
altogether and conduct all audits pre-grant.[^7]

14\. [Discussion]{.underline}. We do not agree that the post-grant audit
program adopted in the [Streamlining Order]{.underline} alters the
concept of \"finality\" with regard to grants of broadcast applications
or affects an attorney\'s ability to advise lenders and investors (or
other parties) that the grant of an application is \"final\" pursuant to
Commission regulation. The Commission, as explicitly authorized by
Section 312 of the Communications Act of 1934, has always had the
ability to institute a proceeding to revoke a construction permit or
station license at any time after grant.[^8] Since permits and licenses
are already subject to revocation or forfeiture after their grant,
[see]{.underline} 47 U.S.C. § 312(a)(1), (2), institution of a
post-grant audit procedure will not make grants of construction permits
or licenses any less \"final\" than under existing law.

15\. We also reject the petitioner\'s suggestion that the Commission
identify, by public notice prior to their \"final order date,\" those
applications selected for post-grant audits. The petitioner makes this
suggestion to ameliorate a problem that, for the reasons described
above, we do not believe exists. Moreover, by specifically identifying
in advance a discrete group of applications that will definitely be
audited, the Commission could conceivably encourage lenders or investors
to delay committing to a loan or investment in particular situations
until the audit is completed, thus greatly disadvantaging the licensees
or permittees involved in those situations. If on the other hand all
broadcast applications are equally at risk for being subjected to a
post-grant audit, none will be disadvantaged.

16\. Finally, we do not agree with the petitioner that all audits should
be conducted prior to grant. As explained in the [Streamlining
Order]{.underline}, pre-grant audits will normally be conducted during
the 30-day petition to deny period and, given this time frame, will
necessarily be limited in scope. Conducting more thorough pre-grant
audits would inevitably cause delays in the grant of applications that
do not warrant denial. Because time constraints will limit the breadth
of pre-grant audits, we believe post-grant audits will play a vital role
in our enforcement program. Moreover, these more thorough audits can be
conducted post-grant without delaying the grant of permits and licenses
to applicants. For all these reasons, we deny the petition regarding the
appropriateness of conducting post-grant audits.

**4. Collection of Information on Minority and Female Ownership**

17\. [Background]{.underline}. In the [Streamlining Order]{.underline},
we adopted a proposal, initially made in 1995,[^9] to revise our Annual
Ownership Report, FCC Form 323, to collect gender and race information
about the attributable owners of broadcast licensees. As we explained in
the [Streamlining Order]{.underline}, we decided to amend Form 323 to
collect gender and race data because:

> \[d\]oing so will allow the Commission to determine accurately the
> current state of minority and female ownership of broadcast
> facilities, to determine the need for measures designed to promote
> ownership by minorities and women, to chart the success of any such
> measures that we may adopt, and to fulfill our statutory mandate under
> Section\[s\] 257 . . . and . . . 309(j) . . . to promote opportunities
> for small businesses and businesses owned by women and minorities in
> the broadcasting industry.[^10]

Section 257 of the Act requires the Commission, in identifying and
eliminating market barriers for entrepreneurs and other small businesses
in the provision of telecommunications and information services, to
\"promote the policies and purposes of this Act favoring diversity of
media voices . . . .\"[^11] Section 309(j) of the Act requires the
Commission, in resolving mutually exclusive applications for commercial
broadcast licenses by competitive bidding, to promote the public policy
of \"disseminating licenses among a wide variety of applicants,
including . . . businesses owned by members of minority groups and
women.\"[^12]

18\. [Pleadings]{.underline}. The National Association of Broadcasters
(\"NAB\"), asks the Commission to reconsider this decision. It states
that the requirement imposes a \"significant burden\" on broadcasters,
and that the National Telecommunications and Information Administration
(\"NTIA\") already collects data on minority ownership, so that the
Commission needs no additional information to study minority ownership
trends among commercial broadcasters.[^13]

19\. [Discussion]{.underline}. We decline to amend our decision, which
we believe is consistent with the statutory mandates and public policies
expressed in the Act. We recognize that NTIA already collects
information on minority ownership; as the petitioner points out, we
sometimes rely on this information. As we explained in the [Streamlining
Order]{.underline}, however, NTIA\'s methodology for collecting the
information, which includes reviewing various periodicals and contacting
radio and television stations, does not ensure that its report is a
complete listing of all commercial stations owned by minorities.[^14] In
addition, NTIA\'s data do not include information on women.[^15]
Moreover, because NTIA does not license the stations about which it
collects information, it has no legal mechanism to ensure their
participation or the accuracy of information reported. Under these
circumstances, we continue to believe that, while NTIA\'s data may
complement that of the Commission derived from our revised ownership
form, NTIA\'s data are not a substitute for that of the Commission.
Rather, the Commission, which licenses broadcasters and has a statutory
duty to ensure that it does so in a manner that disseminates licenses
\"among a wide variety of applicants, including . . . businesses owned
by members of minority groups and women,\" is appropriately and uniquely
situated to collect information on the gender and race of the
attributable owners of its licensees. Further, as we explained in the
[Streamlining Order]{.underline}, we continue to believe that collection
of this information will not unduly burden broadcasters, because our new
form will not require broadcasters to obtain information from anyone
whose interests are not already reportable.[^16] We thus affirm our
decision to require the submission of race and gender data for
attributable owners of broadcast stations.

**B. REVISED CONSTRUCTION PERIODS**

20\. Section 319 of the Communications Act of 1934, as amended, 47
U.S.C. § 319, provides that the Commission (except in certain carefully
defined circumstances) cannot grant a license for a broadcast station
without specifying the operating and construction parameters for the
facility, including the date on which the facility must be completed and
ready for operation. Section 319 also states that a construction permit
\"will be automatically forfeited if the station is not ready for
operation within the time specified or within such further time as the
Commission may allow, unless prevented by causes not under the control
of the grantee.\"[^17] Prior to adoption of the [Streamlining
Order]{.underline}, the Commission\'s rules established a construction
period of 24 months for a full-power television station and 18 months
for other broadcast facilities. If the station was not \"ready for
operation\" within that period, it was to be declared forfeit.[^18] A
permittee could request additional time if it failed to complete
construction by the established date by filing FCC Form 307. Additional
time would be authorized if the permittee demonstrated one of the
following three conditions: (1) construction is complete and testing is
underway looking toward the prompt filing of a license application; (2)
substantial progress has been made, [i.e.]{.underline}, demonstration
that equipment is on order or on hand, site acquired, site cleared, and
construction proceeding to completion; or (3) no progress has been made
for reasons clearly beyond the control of the permittee (such as delays
caused by governmental budgetary processes and zoning problems), but the
permittee has taken all possible steps to resolve the problem
expeditiously and proceed with construction.[^19] A permittee making a
satisfactory showing under these criteria would be afforded up to an
additional six months to complete construction.[^20] Furthermore, the
rules afforded permittees an additional six months to construct from the
grant of a modification application and an additional one year to
construct from consummation of an assignment or transfer.[^21] Where an
applicant failed to apply for an extension or make the necessary
showing, the Commission\'s long-standing practice, despite the automatic
forfeiture provision of Section 319(b) of the Act, was to declare a
broadcast construction permit forfeit rather than considering it to have
lapsed and been forfeit automatically.[^22]

21\. While the ostensibly strict extension policies were designed to
encourage prompt construction of broadcast facilities, [see]{.underline}
[generally]{.underline} [Broadcast Construction Periods]{.underline},
102 FCC 2d 1054 (1985), we found, as stated in the [Streamlining
Order]{.underline}, that a significant number of permittees did not
succeed in constructing their proposed facilities prior to permit
expiration. As a result, we continued to receive large numbers of
extension applications each year and substantial staff resources were
required for the fact-intensive analysis involved in processing and
disposing of these applications.[^23] Thus, to reduce the time spent in
applicant preparation and staff study of extension applications, we
determined in the [Streamlining Order]{.underline} to: (1) apply a
uniform three-year term to all construction permits; (2) exclude from
the calculation of this term those periods during which the permit
itself was the subject of administrative or judicial review or where
construction delays were caused by an \"act of God,\"
[i.e.]{.underline}, \"toll\" the construction period for these events;
(3) eliminate the practice of providing extra time for construction
after a permit has been modified or assigned/transferred; and (4) make
construction permits subject to automatic forfeiture upon
expiration.[^24] Petitioners challenge the scope of application of the
new rules and the tolling provisions of the new rules.

**1. Scope of New Rules**

22\. [Background]{.underline}. Though in the [NPRM]{.underline} in this
proceeding we had \"tentatively concluded\" and sought comment on
whether we should apply the revised rules to all permits still within
the initial construction period, but not those beyond that period, 13
FCC Rcd 11349, 11374, we ultimately concluded in the [Streamlining
Order]{.underline} that \"the fairer approach is to allow all permittees
to take advantage of the extended construction period.\" 13 FCC Rcd at
23,091. Thus, all existing permittees would be allowed three
unencumbered years to complete construction and would be subject to the
revised extension procedures. While this gave many permittees the
benefit of an extended period, it also placed in jeopardy construction
permits that had been outstanding for an extended period and yet never
implemented; we stated that \"\[n\]o additional time will be granted
when the permittee has had, in all, at least three unencumbered years to
construct.\" 13 FCC Rcd at 23,093.

23\. [Pleadings]{.underline}. Petitioners challenge the application of
the new rules to existing permits outside the initial construction
period on various grounds. Several petitioners charge that the
[NPRM]{.underline} provided insufficient notice that the new rules would
be applied to all outstanding construction permits, not just to those in
their initial period, and therefore that the Commission must establish a
new notice-and-comment period under the Administrative Procedure Act
(\"APA\"), 5 U.S.C. § 551 [et]{.underline} [seq]{.underline}.[^25] These
and other petitioners also charge that the application of the revised
rules to permits issued and extended under the \"one-in-three\" rules
violates the APA prohibition on retroactive rule making.[^26] They state
that \"legislative rules\" \-- ones, as here, adopted pursuant to
notice-and-comment rule making procedures \-- must be applied
prospectively only and that the [Streamlining Order]{.underline}
impermissibly \"reaches back\" into the history of a permittee who took
actions believing that further extensions could be obtained under the
\"one-in-three\" standard. Some petitioners claim that it is inequitable
not to continue to take into account for existing permittees
circumstances that, under the old rules, were sufficient to justify an
extension, since these permittees invested time and money, formulating
business plans, on the basis of existing rules that enabled them to
receive extensions.[^27] Several petitioners claim that the forfeiture
of authorizations resulting from the application of the revised
construction period to outstanding construction permits amounts to a
\"taking\" without due process of law in violation of the Fifth
Amendment to the United States Constitution.[^28] Two permittees filed
requests that the decision to apply the revised rules to existing
permittees be stayed.[^29]

24\. [Discussion]{.underline}. *Insufficient notice*. We reject
petitioners\' claim that the [NPRM]{.underline} provided insufficient
notice that the rules would be applied to all outstanding permits and
therefore violated the APA. The Court of Appeals for the District of
Columbia, as well as several other circuits, have held that APA notice
requirements are satisfied where the final rule is a \"logical
outgrowth\" of the proposed rule. [Public Service Commission of the
District of Columbia v. FCC]{.underline}, 906 F.2d 713, 717 (D.C. Cir.
1990).[^30] A final rule will be deemed the logical outgrowth of a
proposed rule if a new round of notice and comment would not provide
commenters with their first opportunity to offer new and different
criticisms that the agency might find convincing. [American Water Works
Association v. EPA]{.underline}, 40 F.3d 1266, 1274 (D.C. Cir. 1994);
[Fertilizer Institute v. EPA]{.underline}, 935 F.2d 1303, 1311 (D.C.
Cir. 1991).[^31] Alternatively, courts will consider \"whether parties
affected by a final rule were put on notice that \'their interests were
at stake.\'\" [American Medical Association v. U.S.]{.underline}, 887
F.2d 760, 768 (7th Cir. 1989) ([citing]{.underline} [Spartan
Radiocasting Co. v. FCC]{.underline}, 619 F.2d 314, 321 (4th Cir. 1980)
and [South Terminal Corp. v. EPA]{.underline}, [supra]{.underline}, 504
F.2d at 659). [See]{.underline} [also]{.underline} [American Iron and
Steel Institute v. EPA]{.underline}, 568 F.2d 284, 293 (3d Cir. 1977)
(agency\'s notice must \"fairly apprise interested persons of the
\'subjects and issues\' \[of the rule making\].\")[^32]

25\. Clearly, our decision to apply the revised rules to all outstanding
permits was a logical outgrowth of the \"tentative conclusion\" in the
[NPRM]{.underline}. In the [NPRM]{.underline}, we stated: \"Because many
\[permits beyond their initial construction period\] have already been
afforded a construction period close to (or in many instances, in excess
of) the three-year term proposed in this notice, we propose to continue
to apply our current rules to construction permits that are beyond their
initial periods.\" 13 FCC Rcd at 11374. However, we specifically invited
comment on that proposal, and several parties filed comments in response
to the invitation. [See]{.underline} [Streamlining Order]{.underline},
13 FCC Rcd at 23,091-92. Therefore, a new round of comments would not
provide commenters with their first opportunity to address the proposed
ruling.

26\. Likewise, the invitation of comment on our \"tentative conclusion\"
apprised anyone interested that the application of the new rules to
existing permittees beyond the initial construction period was an issue
\"on the table\" and a subject ripe for comment. That our ultimate
conclusion differed from the [NPRM\'s]{.underline} \"tentative
conclusion\" does not indicate that the notice was inadequate. An agency
\"need not subject every incremental change in its conclusions after
each round of notice and comment to further public scrutiny before final
action. [Wayerhaeuser v. Costle]{.underline}, 590 F.2d 1011, 1031 (D.C.
Cir. 1978); [Brazos Electric Power Cooperative, Inc. v. Southwestern
Power Administration]{.underline}, 819 F. 2d 537, 542-3 (5th Cir. 1987).
To require in each case a new notice and a new round of comments after
revision of a proposed rule would unduly burden and delay the rule
making process. [Id]{.underline}. [See]{.underline} [also]{.underline}
[Public Service Commission of the District of Columbia v.
FCC]{.underline}, 906 F.2d 713, 717-8 (D.C. Cir. 1990).

27\. *Retroactivity*. We also reject the contention that application of
the revised rules to all outstanding permits constitutes impermissible
retroactive rule making. As petitioners note, \"legislative rules\"
adopted pursuant to notice-and-comment rule making procedures are
\"primarily retroactive\" and thus impermissible when they \"change \[
\] the past legal consequences of past actions\" without statutory
authority to do so. [See]{.underline} [generally]{.underline} [Bowen v.
Georgetown University Hospital]{.underline}, 488 U.S. 204, 208, 219
(Scalia, J, concurring) (1988). Such is not the case here. We are not in
this matter \"changing the past legal consequences of past actions.\"
For example, we did not invalidate any extensions granted under the
former \"one-in-three\" standard and declare those permits forfeit.
Neither did we examine existing permits and retroactively cancel those
of permittees who had already had at least three unencumbered years in
which to construct their stations or in any other way \"reach back\"
into a past construction period and alter the legal consequences of
those actions which previously justified extensions.

28\. Nor are our rules impermissible under the standard for
\"secondary\" retroactivity, [i.e.]{.underline}, they do not
unreasonably affect the future legal consequences of past actions.
[Id]{.underline}. We recognize that the [Streamlining Order]{.underline}
may force some permittees who have received repeated extensions under
the old standards, and who may have formulated business plans based on
the expectation that they would continue to receive extensions
indefinitely, to instead find a way to resolve existing problems and
construct immediately or lose their permits in the near future. However,
there is ample precedent that upsetting expectations that current rules
or laws would continue is not unlawful retroactive rule making.[^33]
Moreover, grant of repeated construction extensions was by no means
certain even under our old rules. Therefore, business plans based on the
expectation of an indeterminate construction period were
[per]{.underline} [se]{.underline} unreasonable and there is no legal
support for the charge that the Commission acted unlawfully in enacting
the revised rules.

29\. Nonetheless, though not legally compelled to do so, we will provide
relief to permittees holding valid initial authorizations or extensions
on February 16, 1999, the effective date of the [Streamlining
Order]{.underline}, including permittees whose authorizations have
already expired but for which forfeiture is not final.[^34] Pursuant to
the action we take today, these permittees\' authorizations will now be
automatically forfeit either (a) one year from the effective date of
this [Order]{.underline} or (b) on the existing expiration date,
whichever is later. Furthermore, concerning the additional time hereby
granted, permittees may employ the tolling provisions adopted in the
[Streamlining Order]{.underline} as revised [infra]{.underline}.[^35]
Our action in no way signals a retreat from our view that three years is
an adequate time to construct. Rather, it reflects our acknowledgement
of the fact that, because of the uncertainty engendered by various
petitions for reconsideration objecting specifically to application of
the new rules to existing permits, some permittees may not have taken
all actions necessary to meet their existing construction deadlines. We
also want to ensure beyond any doubt that permittees who may in fact
have invested significant time and money constructing facilities under
the old rules and who are in imminent danger of losing their permits
have a final opportunity to bring service to the public.[^36]

30\. *Unconstitutional taking*. Finally, we reject petitioners\' claims
that forfeiture of existing permits pursuant to the new rules may lead
to an unconstitutional taking of private property. We recently addressed
the issue of whether Commission licensees have a property interest in
their authorizations that can support such a claim when Commission
action results in loss of the authorization. We reiterate here our
statements in [Reauction of Defaulted PCS C-Block Licenses]{.underline},
12 FCC Rcd 17,688, 17,692 (1997), concerning the auctioning of certain
wireless communications authorizations:

Section 301 of the Communications Act provides that no license granted
pursuant to the act \"shall be construed to create any right beyond the
terms, conditions, and periods of the license.\" Furthermore, courts
have long held that licensees have no property interest in their
licenses \[[citing]{.underline} [FCC v. Sanders Brothers Radio
Station]{.underline}, 309 U.S. 470, 475 (1940); [Quincy Cable TV, Inc.
v. FCC]{.underline}, 768 F.2d 1434, 1460 (D.C. Cir. 1985), [National
Association of Broadcasters v. FCC]{.underline}, 740 F.2d 1190,1198
(D.C. Cir. 1984).\] Consequently, \[there was no\] . . . property
interest in any of the 18 licenses that were the subject of the
reauction. As such, the decision to reauction does not and indeed could
not violate the Fifth Amendment\'s prohibition against the taking of
private property for public use without just compensation.

[See]{.underline} [also]{.underline} [Mass Communicators, Inc. v.
FCC]{.underline}, 408 F.2d at 1264-65 n. 21 (\"\[a\] license is merely a
temporary permission to make use of rights belonging to the public, and
confers no proprietary interest\"); [Joseph F. Bryant]{.underline}, 6
FCC Rcd 6121, 6123 (1991) (\"\[a\] broadcast license does not confer a
property right. Rather, it is a valuable, though limited, privilege to
utilize the airwaves\"); [Marr Broadcasting Co., Inc.]{.underline}, 2
FCC Rcd 3466, 3467 (Rev. Bd. 1987) (\"\[l\]ittle discussion is necessary
to affirm that a broadcast license incorporates no property rights, 47
U.S.C. §§ 301, 304 . . . .\")[^37] [^38] Since permittees have no
property interest in their construction permits, forfeiture of the
permit upon expiration of the term cannot constitute a \"taking.\"
Moreover, because construction permits are by their own terms granted
for a limited period, when the permit expires, even the privilege to
construct a station conferred by the permit ceases.

**2. Tolling Provisions**

31\. [Background]{.underline}. As noted above, in the [Streamlining
Order]{.underline} we adopted a system by which the three-year
construction period will be \"tolled\" in the event that construction
delays are caused by an act of God or the permit itself is the subject
of administrative or judicial review. An act of God was defined in terms
of natural disasters ([e.g.,]{.underline} floods, tornados, hurricanes,
or earthquakes). Administrative or judicial review includes (1)
petitions for reconsideration and applications for review of a permit or
extension grant, and any subsequent court appeal thereof; or (2) any
cause of action pending before any court of competent jurisdiction
relating to any necessary local, state, or federal requirement for the
construction or operation of the station, including any environmental
requirement. We indicated in the [Streamlining Order]{.underline} that
we believed the three-year construction period provided sufficient time
for permittees to overcome other obstacles to construction and therefore
that we did not need to permit tolling for those circumstances.
Regarding zoning, we specifically stated that \"a three-year
construction period provides ample time to complete \[the zoning
approval\] process and construct the station or choose a new site free
of zoning difficulties.\" 13 FCC Rcd at 23,052. However, we noted that,
in keeping with our decision to toll the three-year period for
administrative or judicial review, \"the pendency of an appeal in a
local court of a final zoning board determination would qualify for
tolling.\" [Id]{.underline}.

32\. [Pleadings]{.underline}. Petitioners challenge our tolling
provisions on various grounds. Several claim that they are too narrow
and violate Section 319(b) of the Communications Act, 47 U.S.C. §
319(b).[^39] This provision, which is the source of the Commission\'s
permit-extension policy, indicates that a broadcast construction permit:

shall provide that said permit will be automatically forfeited if the
station is not ready for operation within the time specified or within
such further time as the Commission may allow, unless prevented by
causes not under the control of the grantee.

On the other hand, one petitioner complains that our revised rules
violate Section 319(b) because they are too lenient and consider factors
not beyond a permittee\'s control.[^40]

33\. Other petitioners, including the NAB, focus especially on zoning
matters as circumstances that should permit tolling.[^41] Three
petitioners maintain that zoning is a \"real world\" encumbrance beyond
a permittee\'s control that cannot be ignored. They believe that
refusing to take zoning matters into account would allow tower opponents
and local authorities to \"wait out\" a broadcaster and \"prevail by
attrition.\"[^42]

34\. Additionally, several petitioners offer specific circumstances that
they contend warrant tolling a permittee\'s construction period. For
example, two petitioners argue that the construction period should be
tolled during the pendency with the Commission of modification or
assignment applications.[^43] Three petitioners indicate that the
construction period should likewise be tolled during the pendency of
petitions for rule making affecting a station\'s frequency and/or
class.[^44] Two petitioners holding noncommercial educational
construction permits indicate that the loss of an approved tower site
warrants tolling a permittee\'s construction period, especially for
noncommercial educational stations for whom \"the most common source of
delay is the loss of a painstakingly selected transmitter site.\"[^45] A
third petitioner echoes that the construction period should be tolled
for the pendency of a modification application necessitated by the loss
of a transmitter site due to the denial of federal, state, or local
approvals.[^46] One petitioner offers that the construction period
should be tolled during the pendency of civil litigation affecting the
permittee\'s ability to construct, such as breach-of-contract litigation
over the use of the transmitter site.[^47] Two petitioners request that
the tolling provisions should include receipt of permits which contain a
condition that program testing on the subject station may not commence
until another station commences program testing on a new channel.[^48]
Such permits include, for example, those issued out of channel-change
allotment proceedings. Three petitioners argue the construction period
should be tolled during periods of inclement weather conditions which
delay construction, such as winter snow or spring rains.[^49] Four
petitioners argue that low power television (\"LPTV\") permittees should
be accorded special tolling treatment because of LPTV filing
restrictions and digital television (\"DTV\") displacement issues.[^50]

35\. [Discussion]{.underline}. *Section 319(b) requirements*. We affirm
our conclusion in the [Streamlining Order]{.underline} that our tolling
provisions are \"responsive to statutory requirements\" and, except as
noted below, affirm the limitations on tolling adopted in the
[Streamlining Order]{.underline}. 13 FCC Rcd at 23,092. We believe that
the adopted provisions \"strike the balance between the fundamental
public interest in expediting new broadcast service and preventing the
warehousing of spectrum, and our recognition that there are some
legitimate obstacles that may prevent construction.\" [Id]{.underline}.
at 23,094. By adding a full year to the length of time television
broadcasters had to construct under our former rules and a full one and
one-half years to the length of time radio broadcasters had, we believe
that we have \"built in\" an adequate safety valve for diligent
permittees to complete construction within a permit\'s term. While we
acknowledge that factors other than those we delineated as tolling
circumstances can cause delay, we do not believe those delays are
generally so insurmountable that their effects cannot be overcome during
the course of three years, necessitating, under the statute, that they
excuse failure to construct.

36\. Our intention is simply, within the bounds of the statute, to
establish an incentive for all potential applicants to plan construction
carefully even prior to applying for a permit and, once the permit is
received, to bring to the construction process the same degree of
urgency brought to other business endeavors. From the number of
extension requests filed under the former rules, this has clearly not
been the case in past years; we note that we received over 1000 such
requests between January 1, 1998 and February 12, 1999, the last day
extension requests could be filed under the former rules. In fact, our
experience indicates that despite financial and site availability
certification requirements, applicants have in some instances filed for
permits without taking preliminary steps to ensure that they can begin
\-- much less complete \-- construction once an authorization is
received. Such tactics deprive the public of the prompt initiation of
additional broadcast service and represent an abuse of the Commission\'s
processes. We believe the new rules minimize instances when those who do
not have the intent or foresight to ensure the prompt initiation and
conclusion of construction \"tie up\" the spectrum indefinitely.

37\. *Zoning Matters*. We affirm the exclusion of zoning matters from
the category of circumstances triggering the tolling provisions.[^51] It
is our experience that diligent permittees will not find zoning
difficulties to be an insurmountable problem because permittees can, in
the vast majority of cases, find a way to resolve zoning issues either
by securing an alternate site or obtaining the necessary approvals. We
concur with commenter EBT Broadcasting, L.L.C.\'s view that zoning
delays often stem simply from misjudgments in specifying tower sites;
the thousands of conforming sites attest to the ability of diligent and
reasoning applicants to designate sites suitable for their intended
purpose.[^52]

38\. Additionally, we believe that diligent permittees can eliminate or
mitigate zoning delays by applying for approval from the pertinent local
authorities [prior]{.underline} to the issuance of a construction
permit. Indeed, existing precedent indicates that an applicant whose use
of a specified site depends upon local zoning approval will not have
\"reasonable assurance\" of the availability of that site unless it has
contacted that local authority prior to filing the application.
[See]{.underline}, [e.g.]{.underline}, [Arizona Number One
Radio]{.underline}, 103 FCC 2d 551, 555 (1986) (affected applicants had
\"done virtually everything in their own power to affirm \'reasonable
assurance\' of their proposed . . . site \[with the owner of the site,
the Bureau of Land Management of the United States Department of the
Interior\]\"); [El Camino Broadcasting Corporation]{.underline}, 14 FCC
2d 361 (Rev. Bd. 1968); [Charles W. Jobbins]{.underline}, 5 RR 2d 783
(Rev. Bd. 1965) (where use of site dependent upon local zoning approval,
FCC will presume that approval is forthcoming, and thus that applicant
has reasonable assurance of use of site, so long as applicant has
initiated the process and applied for zoning approval/variance).[^53]

39\. *Other matters*. We will, however, expand our tolling provisions to
include several circumstances raised by petitioners. We will permit
tolling in circumstances where, for reasons beyond the control of a
permittee, there is the failure of a Commission-imposed condition
precedent to commencement of operation. For example, when, to
accommodate a new station or a facilities increase for an existing
station, the staff issues an allotment rule making [Report and
Order]{.underline}, it will impose a condition on the permit
subsequently issued to the initiating party to the effect that:
\"Program testing for the subject facility will not be authorized until
\[the affected station has commenced program testing on its new
channel\], and a license application for the subject facilities will not
be granted until \[a license application has been granted for the
affected station to operate on its new channel\].\" There are occasions
where the initiating party promptly constructs its facility but cannot
commence operations because the affected station has not completed its
modified facilities.[^54] In such cases, we will not consider the permit
of the initiating party forfeit provided that the permittee notifies the
staff that construction is complete and the station is ready for
operation prior to the expiration of the permit.[^55]

40\. We will also permit tolling in certain limited circumstances
involving LPTV permittees due to the unique nature of this secondary
service and the impact of the advent of DTV upon the spectrum available
for these permittees. Specifically, we will toll the construction period
for the pendency of major modification applications that were submitted
during the last periodic LPTV filing window. Similarly, the construction
period for LPTV permittees that file a displacement application as
defined in 47 C.F.R. §73.3572(a)(2), which is necessitated by a
full-service or DTV transition proposal, will be tolled during the
pendency of that displacement application. Additionally, if the
permittee has received special temporary authorization to operate with
the facilities specified in the pending major modification or
displacement application, we will not consider a permit automatically
forfeited in such circumstances. Until the pending major modification or
displacement application has been granted, the construction period will
be tolled.[^56]

41\. Additionally, we take this opportunity to clarify the effect of the
transition to DTV generally on analog television construction permits
for commercial and non-commercial educational facilities. There are
circumstances, such as those demonstrated by petitioner KCWE,[^57] where
a necessary modification application or rule making proposal was delayed
while the Commission finalized its DTV allotment table. In such cases,
we will not consider such permit automatically forfeited. We expect that
only a small number of full-service television permittees will meet
these criteria. Neither will we consider forfeit a construction permit
when the permittee builds and begins operating pursuant to Commission
authorization such as an STA because it is precluded by unique
circumstances from obtaining a license. [See]{.underline},
[e.g.]{.underline}, [Syracuse Channel 62, Inc.]{.underline}, FCC 86-331,
60 RR 2d 1161 (1986) (television station operating pursuant to STA is
not an \"unbuilt station\" for purposes of the \"no-profit\" assignment
rules then in effect, 47 C.F.R. § 73.3597). However, we reject the
suggestion advanced by the Association of America\'s Public Television
Stations (\"APTS\") that we should accord further relief to all public
television station permittees because of issues relating to DTV
implementation. We carefully considered the impact of DTV implementation
in the Advanced Television Systems proceeding[^58] and we are not
persuaded to revisit that subject in a general manner as suggested.
However, if presented with specific problems affecting a particular
non-commercial educational licensee or permittee, we retain the
discretion to fashion whatever relief is appropriate.

42\. We realize that there may be rare and exceptional circumstances
other than those delineated here which would warrant the tolling of
construction time, [i.e.]{.underline}, circumstances in which, for
reasons not discussed here, a permittee is prevented from completing
construction within three years for reasons beyond its control such that
the permittee would be entitled to tolling of the construction time
under Section 319(b). In these very limited circumstances, we will
entertain requests for waiver of our strict tolling provisions.

**3. Miscellaneous issues.**

43\. We here clarify and modify several requirements adopted in the
[Streamlining Order]{.underline}. We take these actions partly
[sua]{.underline} [sponte]{.underline} and partly in response to
comments by petitioners.

44\. *Tolling notification*. In the [Streamlining Order]{.underline}, we
replaced FCC Form 307 \-- that FCC form by which broadcast permittees
sought extensions and replacements of construction permits \-- with a
notification procedure under which a permittee must inform the
Commission of the circumstances that it believes should toll its
construction period. Pursuant to the [Streamlining Order]{.underline}, a
permittee is required to notify the Commission \"as promptly as
possible,\" and in all cases within 30 days, of the \"act of God\" that
has blocked construction or of the initiation of administrative or
judicial review. 13 FCC Rcd at 23,092. A permittee requiring more than
six months to resume construction after a natural disaster must submit
additional supporting information at six-month intervals detailing
construction progress and the steps it has taken and proposes to take to
resolve any remaining impediments. Finally, a permittee must notify the
Commission when the relevant administrative or judicial review process
is resolved.

45\. We here clarify that, apart from the station-identifying
information required by Paragraph 88 of the [Streamlining
Order]{.underline} (call sign, frequency, city of license, and permit
file number), the tolling notification should contain the following
information: (1) the grant date and original expiration date of the
construction permit; (2) a brief description of the tolling event;[^59]
(3) a specific reference to Section 73.3598 of the Commission\'s rules,
the [Streamlining Order]{.underline}, or this [Order]{.underline}
demonstrating that the circumstances qualify as an approved tolling
event; (4) the date(s) during which the tolling impediment prevented
construction; and (5) if possible at the time of notification, the
permittee\'s calculation of the revised permit expiration date.[^60]
[^61]

46\. *FM Minor Change Tenderability Criteria*. Prior to the institution
of the competitive bidding procedures for broadcast facilities,
applications for facilities in the non-reserved FM band would be
acceptable for filing only if they met a two-tiered minimum filing
requirement. First, the application had to include six essential
elements: (1) the applicant\'s name and address; (2) the applicant\'s
original signature; (3) the applicant\'s principal community; (4) the
specified channel or frequency; (5) the class of station proposed; and
(6) the transmitter site coordinates. Additionally, the applicant could
omit no more than three of the \"second tier\" items specified in
Appendix C to the [Report and Order]{.underline} in MM Docket No.
91-347, 7 FCC Rcd 5074 (1992). [See]{.underline} 47 C.F.R. § 73.3564(a)
(1997). In order to facilitate the auction process, the Commission
abolished the two-tier system for all full-service FM applications for
new facilities and major changes in the [Broadcast Auction
Order]{.underline}. [See]{.underline} 13 FCC Rcd at 15,988 n.59. In the
[NPRM]{.underline} in this proceeding, we concluded that the rationale
underlying the auction-related processing rule change applied only to
new and major change applications. However, in light of the revisions to
the application forms and processing procedures proposed in the
[NPRM]{.underline}, we invited comment on whether or not we should
modify the \"tenderability\" and two-tier standards for minor change FM
applications. 13 FCC Rcd at 11,366 n.68.

47\. We received no comments on this issue, and we did not address the
matter in the [Streamlining Order]{.underline}. However, we will take
this opportunity to clarify and modify the two-tier review system for FM
minor change applications. This action is necessary because many of the
\"second tier\" elements have been eliminated as a result of our
streamlined application form. We will essentially incorporate the six
remaining elements contained in Appendix C to the [Report and
Order]{.underline} in MM Docket No. 91-347 directly into Section 73.3564
of our rules.[^62] Applicants filing minor change applications on the
\"paper\" FCC Form 301 will be considered to meet the minimum filing
requirements if they omit no more than three of the six items.[^63]
Applicants omitting up to three of the second-tier elements will be sent
a deficiency letter by the staff and given one opportunity to correct
all tender and acceptance defects, as specified in the [Report and
Order]{.underline} in MM Docket No. 91-437, 7 FCC Rcd at 5078;
applications omitting more than three of the six will be returned.

48\. *Broadcast Application Signature Requirement*. The following
revision is being made in this proceeding in order to clarify and update
an existing rule. Because this revision is a procedural change that
relaxes a filing requirement, we find that notice and comment procedures
are unnecessary and need not be followed prior to adoption.[^64] The
rule revisions are set forth in Appendix C to this [Order]{.underline}.

49\. Section 73.3513 of the Commission\'s rules specifies who must sign
the certification section of the broadcast application or amendment on
behalf of various broadcast entities.[^65] It also specifies that the
applicant\'s attorney may sign in case of the applicant\'s disability or
absence from the United States.[^66] Commission case law consistently
has held that the application must bear an original signature; facsimile
signatures have been held to be unacceptable. [See]{.underline},
[e.g.]{.underline}, [SBM Communications, Inc.]{.underline}, 7 FCC Rcd
3436 (1992), and [Mary Ann Salvatoriello]{.underline}, 6 FCC Rcd 4705
(1991), [citing]{.underline} [Jane A Roberts]{.underline}, 29 FCC 141
(1960). The basis for this policy is that the original signature
requirement provides assurance that the applicant has personally
reviewed the application and can be held responsible for the
truthfulness and accuracy of the application. [Mary Ann
Salvatoriello]{.underline}, 6 FCC Rcd at 4706-07.

50\. We no longer believe that the original signature requirement is the
only reliable means of guaranteeing application review. In any case,
applicants can be held accountable for false information and
representations made in applications irrespective of whether or not the
application contains an original signature. [See]{.underline},
[e.g.]{.underline}, 47 C.F.R. § 73.1015 (requiring truthful written
responses to Commission inquiries); 47 C.F.R. § 73.3513(d) (willful
false statements in applications will be considered, [inter]{.underline}
[alia]{.underline}, a violation of Section 73.1015); [see]{.underline}
[also]{.underline} 47 C.F.R. §1.52 (facsimile signature of attorney or
unrepresented party sufficient for subscription and verification of
pleadings). There also may be cases \-- for example, informal requests
for special temporary authorization in emergency situations \-- where
permitting the use of facsimile signatures could expedite Commission
action furthering the public interest. Accordingly, we will amend
Section 73.3513 of our rules to permit facsimile signatures by the
appropriate signatory.

**III. PROCEDURAL MATTERS AND ORDERING CLAUSES**

51\. The Supplemental Final Regulatory Flexibility Analysis, pursuant to
the Regulatory Flexibility Act, 5 U.S.C. § 604, is contained in Appendix
B.

52\. Accordingly, IT IS ORDERED, That the above-referenced
reconsideration petitions ARE GRANTED IN PART AND DENIED IN PART, and
the motions for stay filed by Z-Spanish Media, [et]{.underline}
[al]{.underline}. and W. Russell Withers, Jr. IS DISMISSED.

53\. IT IS FURTHER ORDERED, That, pursuant to authority in Sections 4(i)
and (j), 301, 303(f), 303(g), 303(h), 303(j), 303(r), 307(c), 308(b),
319(b), and 403 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), 301, 303(f), 303(g), 303(h), 303(j), 303(r), 307(c),
308(b), 319(b), and 403, this [Memorandum Opinion and Order]{.underline}
IS ADOPTED, and Part 73 of the Commission\'s Rules IS AMENDED as set
forth in the attached Appendix C.

54\. IT IS FURTHER ORDERED, That the rule amendments set forth in
Appendix C WILL BECOME EFFECTIVE 60 days after their publication in the
Federal Register, and the information collection contained in these
rules will become effective 60 days after publication in the Federal
Register, following OMB approval, unless a notice is published in the
Federal Register stating otherwise.

55\. IT IS FURTHER ORDERED, That the Commission\'s Office of Public
Affairs, Reference Operations Division, SHALL SEND a copy of this
[Memorandum Opinion and Order]{.underline}, including the Supplemental
Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy
of the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Román Salas

Secretary

**Commissioner Harold W. Furchtgott-Roth, Dissenting In Part**

**In the Matter of 1998 Biennial Regulatory Review \-- Streamlining of
Mass Media Applications, Rules, and Processes; Policies and Rules
Regarding Minority and Female Ownership of Mass Media Facilities; MM
Docket Nos. 98-43, 94-149**

As I did in the original Report & Order, I respectfully dissent in this
reconsideration from the decision to require broadcast station owners to
identify their race, ethnicity and gender on Annual Ownership Report
Form 323. *See supra* at Part II.A.4. For a full explication of the
reasons why I believe this governmental reporting requirement to be
impractical; statutorily ill-founded; and generally inappropriate, *see*
Statement of Harold W. Furchtgott-Roth, Dissenting in Part, *In the
Matter of 1998 Biennial Regulatory Review \-- Streamlining of Mass Media
Applications, Rules, and Processes; Policies and Rules Regarding
Minority and Female Ownership of Mass Media Facilities*, MM Docket Nos.
98-43, 91-140, 94-149, 13 FCC Rcd 23,056 (1998).

**APPENDIX A \-- LIST OF PARTIES FILING PLEADINGS**

[Petitions for Reconsideration]{.underline}:

Aspen FM, Inc., [et]{.underline} [al]{.underline}.

Association of America\'s Public Television Stations

Be-More Broadcasting

Benezra, Claire B. [et]{.underline} [al]{.underline}.

Birdsill, Michael Robert

Board of Regents of the University of Wisconsin System

Brown Broadcasting Service, Inc.

Browne Mountain Television

Brunson Communications, Inc.

Central Florida Educational Television, Inc. and Good Life Broadcasting,
Inc.

Clinton County Broadcasting, Inc.

Cornerstone Community Radio, Inc.

Covenant Network, [et]{.underline} [al]{.underline}.

Equity Broadcasting Corporation and Louis Martinez

Family First

Federal Communications Bar Association

Floyco Inc.

Growing Christian Foundation

Horvath, Michael L.

Jaramillo, Isaac Max

KCWE-TV, Inc.

KM Communications, Inc.

KRTS, Inc.

Long Island Multimedia, L.L.C.

Milwaukee Area Technical College District Board

Mojave Broadcasting Company

National Association of Broadcasters

Pappas, Harry J. and Stella A.

Pollack Broadcasting Company

Reece Associates, Limited

Royce International Broadcasting Company

Starr County Historical Foundation, Inc.

Sungilt Corporation, Inc.

Tillotson, David

U.P. Wireless, L.L.C. and Mark Silberman

Withers, W. Russell

Workman, Denny d/b/a/ Wichita Communications

Z-Spanish Media Corporation, [et]{.underline} [al]{.underline}.

[Oppositions to or Comments on Petitions]{.underline}:

Aspen FM, Inc., [et]{.underline} [al]{.underline}.

Carolina Christian Broadcasting, Inc.

Press Communications, L.L.C.

[Replies]{.underline}:

Central Florida Educational Television, Inc. and Good Life Broadcasting,
Inc.

Long Island Multimedia, L.L.C.

U.P. Wireless, L.L.C. and Mark Silberman

**APPENDIX B**

**SUPPLEMENTAL FINAL REGULATORY FLEXIBILITY ANALYSIS**

*Memorandum Opinion and Order*

MM Docket Nos. 98-43 and 94-149

As required by the Regulatory Flexibility Act (\"RFA\"), 5 U.S.C. § 603,
a Final Regulatory Flexibility Analysis (\"FRFA\") was incorporated in
Appendix B of the [Report and Order]{.underline} in this
proceeding.[^67] The Commission\'s Supplemental Final Regulatory
Flexibility Analysis (\"Supplemental FRFA\") in this [Memorandum Opinion
and Order]{.underline} reflects revised or additional information to
that contained in the FRFA. This Supplemental FRFA is thus limited to
matters raised in response to the [First Report and Order]{.underline}
that are granted on reconsideration in the [Memorandum Opinion and
Order]{.underline}. This Supplemental FRFA conforms to the RFA, as
amended by the Contract with America Advancement Act of 1996.[^68]

**A. Need for and Objectives of Action:** The actions taken in this
[Memorandum Opinion and Order]{.underline} are in response to petitions
for reconsideration of the rules and policies adopted in the [Report and
Order]{.underline} to streamline the Commission\'s broadcast application
procedures, reducing both applicant and licensee burdens as well as
increasing the efficiency of application processing to conserve staff
resources, while at the same time preserving the public\'s ability to
participate in the broadcast license process. The petitions are denied,
with the following exceptions.

The first amendment to the rules and policies adopted in the [Report and
Order]{.underline} in this proceeding is based on petitions arguing that
the promulgated provisions for seeking extension of time to construct
were too restrictive and did not account for certain circumstances
legitimately beyond the control of the permittee. While rejecting the
majority of the petitioners\' arguments, we did state that we would
accord relief to permittees who are prevented form construction by
operation of a Commission-imposed condition or by Commission processing
requirements for permit modifications, the latter being most prevalent
in the Low Power Television (\"LPTV\") service.

Second in response to a petition claiming that such procedure was costly
and often unnecessary, we exempted applicants for assignment/transfer of
control of broadcast stations from the requirement that applications
proposing local radio ownership concerns must be accompanied by a
contour map detailing the stations serving the pertinent broadcast
\"market.\" No map would be required if the applicant could demonstrate
that a sufficient number of stations are licensed to the community in
question that the numerical cap will not be approached.

Third, the [Notice of Proposed Rule Making]{.underline}
(\"[Notice]{.underline}\") in this proceeding[^69] invited comments on a
streamlined approach to FM \"minor change\" applications, which
currently are evaluated under a two-tiered review process. The
[Notice]{.underline} invited comment on a proposal that would parallel
the approach previously adopted with respect to applications for new FM
stations and \"major change\" applications. The Commission received no
comments on this issue, and it was not addressed in the [Report and
Order]{.underline}. However, the streamlined application forms adopted
in the [Report and Order]{.underline} eliminated many of the second-tier
review elements. Accordingly, this [Memorandum Opinion and
Order]{.underline} incorporates the remaining elements directly into the
FM processing rules, specifically 47 C.F.R. § 73.3564.

Finally, this [Memorandum Opinion and Order]{.underline} adopts
[sua]{.underline} [sponte]{.underline} a rule permitting the use of
facsimile signatures in place of the original applicant signature that
had previously been required on all applications and requests for
Commission action. The Commission believes that an applicant can be held
accountable for false information and representations in an application
whether or not the application contains an original signature, and
permitting facsimile signatures will in some cases expedite the
submission and processing of requests for Commission action.

**B. Significant Issues Raised by Public in Response to Final Regulatory
Flexibility Analysis:** No petitions or comments were received in
response to the FRFA. Several petitioners, however, raised indirectly
small business-related issues. As indicated above, for example, several
petitioners stated that the revised construction period/tolling
procedures would disproportionately impact LPTV permittees;[^70] another
petitioner commented that the construction period/tolling procedures
will disproportionately impact public television stations, especially
those proposing to construct their initial facility as a digital
broadcast station. One petitioner argued that the contemporaneous
notification procedure would increase, as opposed to decrease, the
burden on permittees.[^71] Another petitioner claimed that the contour
map submission requirement was unduly expensive and unnecessary in many
assignment/transfer cases, even those involving the local radio
ownership rules.[^72] Finally, one petitioner noted that the requirement
that broadcasters provide information regarding the race, ethnicity, and
gender of any attributable owner was burdensome and unnecessary, given
that ethnicity and gender data is already collected by the National
Telecommunications and Information Administration (\"NTIA\").[^73]

**C. Description and Estimate of the Number of Small Entities to which
Rules will Apply:** Under the RFA, small entities may include small
organizations, small businesses, and small governmental jurisdictions. 5
U.S.C. § 601(6). The RFA, 5 U.S.C. § 601(3), generally defines the term
\"small business\" as having the same meaning as the term \"small
business concern\" under the Small Business Act, 15 U.S.C. § 632. A
small business is one which: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business Administration
(\"SBA\"). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
small business applies \"unless an agency after consultation with the
Office of Advocacy of the SBA and after opportunity for public comment,
establishes one or more definitions os such term which are appropriate
to the activities of the agency and publishes such definition(s) in the
Federal Register.\"

In the FRFA, we utilized the definition of \"small business\"
promulgated by the SBA. No petitions or comments were received
concerning the Commission\'s use of the SBA\'s small business definition
for the purposes of the FRFA, and we will therefore continue to employ
such definition for this Supplemental FRFA. We hereby incorporate by
reference the description and estimate of the numbers of small entities
from the FRFA in this proceeding.

**D. Description of Projected Reporting, Recordkeeping, and other
Compliance Requirements:** The [Report and Order]{.underline} adopted a
number of rules and policies that included, but reduced, reporting,
record-keeping, and compliance requirements. These were described in
detail in the FRFA and are not increased in any way by the rule and
policy amendments adopted in this [Memorandum Opinion and
Order]{.underline}. Those reporting and recordkeeping requirements that
were amended were in fact ameliorated. For example, certain
assignment/transfer applicants will not need to submit contour maps to
demonstrate compliance with the local radio ownership rules.

Additionally, while the [Memorandum Opinion and Order]{.underline}
retains the requirement that permittees and licensees compile and retain
information concerning the ethnicity and gender of its attributable
owners, they must submit this information on a biennial, rather than
annual, basis. As stated in the FRFA, not all broadcast licensees are
required to file ownership reports at all; sole proprietorships and
partnerships comprised solely of natural persons are exempt from the
filing requirement. Furthermore, the modified reporting requirements
apply only to commercial broadcast stations, not to the 2401
noncommercial educational FM and television stations authorized as of
April 30, 1999.

**E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered:** The FRFA described
in some detail the steps taken in the [Report and Order]{.underline} to
minimize significant economic impact on small entities and the
alternatives considered. The rule and policy amendments adopted in this
[Memorandum Opinion and Order]{.underline} should also serve to minimize
the adverse impact of the \"streamlining\" rules on small entities.
Initially, with respect to the revised construction period/tolling
rules, we note that small entities that might require more time to
construct an authorized broadcast station than would a large corporation
would likely benefit from the rules adopted in the [Report and
Order]{.underline}. These entities would now be given on extra year to
construct a new television facility and 18 extra months to complete a
radio station. Furthermore, these revised construction periods apply to
all outstanding permits. Therefore, to the extent that such smaller
entities needing some additional time will be granted up to three
\"unencumbered\" years simply upon a written request for such treatment.

As urged by several petitioners, the [Memorandum Opinion and
Order]{.underline} modifies the rules and policies promulgated in the
[Report and Order]{.underline} in such ways that will indirectly benefit
smaller broadcast entities. For example, the elimination of the need to
compose and submit station service contour maps in all
assignment/transfer applications implicating the local radio ownership
rules will likely benefit smaller entities owning fewer broadcast
stations.

**F. Report to Congress:** The Commission will send a copy of the
[Memorandum Opinion and Order]{.underline} in this proceeding, including
this Supplemental FRFA, in a report that will be sent to Congress
pursuant to the Small Business Regulatory Enforcement Fairness Act of
1996. [See]{.underline} 5 U.S.C. § 801(1)(1)(A). In addition, the
Commission will send a copy of this [Memorandum Opinion and
Order]{.underline}, including this Supplemental FRFA, to the Chief
Counsel for Advocacy of the Small Business Administration. We will also
publish a copy of the [Memorandum Opinion and Order]{.underline} and
Supplemental FRFA (or summaries thereof) in the [Federal
Register]{.underline}. [See]{.underline} 5 U.S.C. § 604(b).

**Appendix C**

**Part 73 of Title 47 of the U.S. Code of Federal Regulations is amended
as follows:**

**Part 73 RADIO BROADCAST SERVICES**

1\. The authority citation for Part 73 continues to read as follows:

AUTHORITY: 47 U.S.C. §§ 154, 303, 334 and 336

**47 CFR Part 73 is amended to read as follows:**

2\. Section 73.3513 is amended by revising paragraph (c) as follows:

**§ 73.3513 Signing of Applications**

\*\*\*\*\*

\(c\) Facsimile signatures are acceptable. Only the original of
applications, amendments, or related statements of fact, need be signed;
copies may be conformed.

\*\*\*\*\*

3\. Section 73.3564 is amended by revising subsection (a)(2) as follows:

**§ 73.3564 Acceptance of Applications**

\*\*\*\*\*

(a)(2) In the case of minor modifications of facilities in the
non-reserved FM band, applications will be placed on public notice if
they meet the following two-tiered minimum filing requirements as
initially filed in first-come/first-serve proceedings:

\(i\) the application must include:

\(A\) Applicant\'s name and address,

\(B\) Applicant\'s signature,

\(C\) Principal community,

\(D\) Channel or frequency,

\(E\) Class of station, and

\(F\) transmitter site coordinates; and

\(ii\) the application must not omit more than three of the following
second-tier items:

\(A\) a list of the other media interests of the applicant and its
principals,

\(B\) certification of compliance with the alien ownership provisions
contained in 47 USC § 310(b),

\(C\) tower/antenna heights,

\(D\) effective radiated power,

\(E\) whether the antenna is directional or omnidirectional, and

\(F\) an exhibit demonstrating compliance with the contour protection
requirements of 47 CFR § 73.215, if applicable.

Applications found not to meet minimum filing requirements will be
returned to the applicant. Applications found to meet minimum filing
requirements, but that contain deficiencies in tender and/or acceptance
information, shall be given an opportunity for corrective amendment
pursuant to § 73.3522. Applications found to be substantially complete
and in accordance with the Commission\'s core legal and technical
requirements will be accepted for filing. Applications with uncorrected
tender and/or acceptance defects remaining after the opportunity for
corrective amendment will be dismissed with no further opportunity for
amendment.

\*\*\*\*\*

**Commissioner Harold W. Furchtgott-Roth, Dissenting In Part**

**In the Matter of 1998 Biennial Regulatory Review \-- Streamlining of
Mass Media Applications, Rules, and Processes; Policies and Rules
Regarding Minority and Female Ownership of Mass Media Facilities; MM
Docket Nos. 98-43, 94-149**

As I did in the original Report & Order, I respectfully dissent in this
reconsideration from the decision to require broadcast station owners to
identify their race, ethnicity and gender on Annual Ownership Report
Form 323. *See supra* at Part II.A.4. For a full explication of the
reasons why I believe this governmental reporting requirement to be
impractical; statutorily ill-founded; and generally inappropriate, *see*
Statement of Harold W. Furchtgott-Roth, Dissenting in Part, *In the
Matter of 1998 Biennial Regulatory Review \-- Streamlining of Mass Media
Applications, Rules, and Processes; Policies and Rules Regarding
Minority and Female Ownership of Mass Media Facilities*, MM Docket Nos.
98-43, 91-140, 94-149, 13 FCC Rcd 23,056 (1998).

[^1]: ^?^ A list of parties filing petitions, oppositions to petitions,
    and replies to oppositions is attached as Appendix A. Petitioner
    Z-Spanish Media, [et]{.underline} [al]{.underline}. (\"Z-Spanish\"),
    submitted a request for stay as part of its petition for
    reconsideration, and subsequent to the petition period, on May 12,
    1999, petitioner W. Russell Withers, Jr. (\"Withers\") filed a
    \"Motion for Stay or, in the Alternative, Request for Waiver or
    \'Tolling\'\". In view of our action in this [Memorandum Opinion and
    Order]{.underline}, we will dismiss as moot the motions for stay.
    The Bureau staff will, if necessary, consider Withers\' request for
    \"waiver or tolling\" at a subsequent time.

    Additionally, John Harvey Rees filed a Petition for Review of the
    [Streamlining Order]{.underline} with the Court of Appeals for the
    Tenth Circuit, Case No. 99-9503. The Commission has filed a Petition
    to Hold in Abeyance pending disposition of the petitions for
    reconsideration.

    We also note that Entravision Holdings, L.L.C. filed a Petition for
    Rule Making to amend 47 C.F.R. § 73.3598 to permit broadcasters
    \"with significant minority participation\" or those \"proposing to
    meet the needs of minority group populations\" to obtain
    construction permits that would otherwise be declared forfeited
    under the new streamlined rules and to receive additional time to
    complete construction of such permits. [See]{.underline} [Public
    Notice]{.underline}, DA 99-648 (released April 8, 1999). The
    petition has been denominated RM-9567. Entravision\'s petition is
    beyond the scope of this proceeding and will not be considered here.

[^2]: ^?^ Electronic versions of the following 15 forms have been
    developed: FCC Forms 301, 302-AM, 302-FM, 302-TV, 302-DTV, 314, 315,
    316, 340, 345, 346, 347, 349, 350, and 5072. [See]{.underline}
    [Streamlining Order]{.underline}, 13 FCC Rcd at 23,059 n. 5. The FCC
    Form 398, used for documenting compliance with the Commission\'s
    Children\'s Television requirements, had previously been recast into
    electronic format and is currently in use.

[^3]: ^?^ [See]{.underline} FCBA petition at 2-8.

[^4]: ^?^ [See]{.underline} [Report and Order]{.underline} in MM Docket
    Nos. 94-150, 92-51, and 87-154, FCC 99-207, 14 FCC Rcd \_\_\_
    (adopted August 5, 1999); [Report and Order]{.underline} in MM
    Docket Nos. 91-221 and 87-8, FCC 99-208, 14 FCC Rcd \_\_\_ (adopted
    August 5, 1999).

[^5]: ^?^ [See]{.underline} Petition of David Tillotson (\"Tillotson\")
    at 1-3.

[^6]: ^?^ Petitions for reconsideration of Commission actions must be
    filed within 30 days from the date of public notice of the action,
    and the Commission may, on its own motion, set aside any action made
    or taken by it within 30 days from the date of public notice of such
    action. 47 C.F.R. §§ 1.106(f); 1.108. Applications for review by the
    Commission of actions taken pursuant to delegated authority must be
    filed within 30 days of public notice of such delegated action. 47
    C.F.R. § 1.115. Within 40 days after public notice of any action
    taken pursuant to delegated authority, the Commission may on its own
    motion order the record of the proceeding before it for review. 47
    C.F.R. § 1.117. In addition, appeals involving, [inter
    alia]{.underline}, the Commission\'s denial or grant of construction
    permits or station licenses may be taken to the U.S. Court of
    Appeals for the District of Columbia, and any such notice of appeal
    must be filed within 30 days from the date of public notice of the
    challenged Commission decision. 47 U.S.C. § 402.

[^7]: ^?^ [See]{.underline} Tillotson petition at 3-6.

[^8]: ^?^ Section 312(a) provides that the \"Commission may revoke any
    station license or construction permit\--

    \(1\) for false statements knowingly made either in the application
    or in any statement of fact which may be required pursuant to
    section 308;

    \(2\) because of conditions coming to the attention of the
    Commission which would warrant it in refusing to grant a license or
    permit on an original application . . . .\"

    47 U.S.C. § 312(a)(1), (2).

[^9]: ^?^ [See]{.underline} [Notice of Proposed Rule Making]{.underline}
    [In the Matter of Policies and Rules Regarding Minority and Female
    Ownership of Mass Media Facilities]{.underline}, MM Docket Nos.
    94-149 and 91-140, 10 FCC Rcd 2788 (1995).

[^10]: ^?^ 13 FCC Rcd at 23,095 (citations omitted).

[^11]: ^?^ 47 U.S.C. § 257(b).

[^12]: ^?^ 47 U.S.C. § 309(j)(3); 47 U.S.C. § 257(b).

[^13]: ^?^ [See]{.underline} NAB petition at 6-7.

[^14]: ^?^ 13 FCC Rcd at 23,096-97. As we explained in the [Streamlining
    Order]{.underline}, we recognize that our data may not be complete
    either because our rules do not require certain commercial
    broadcasters (those composed of sole proprietorships or partnerships
    consisting only of natural persons) to complete Form 323. However,
    \"we encourage these licensees to file information voluntarily
    regarding gender and racial identity, so that we may more accurately
    measure minority and female broadcast ownership.\" 13 FCC Rcd at
    23,098.

[^15]: ^?^ 13 FCC Rcd at 23,097.

[^16]: ^?^ *Id.*

[^17]: ^?^ 47 U.S.C. § 319(a), (b).

[^18]: ^?^ 47 C.F.R. §§ 73.3598, 73.3599 (1997).

[^19]: ^?^ 47 C.F.R. § 73.3534(b) (1997).

[^20]: ^?^ 47 C.F.R. § 73.3534(d) (1997).

[^21]: ^?^ Because the grant of a modification or assignment/transfer
    could have the practical effect of extending a permit beyond its
    authorized period, the rules established a bifurcated scheme of
    evaluating these applications: if the modification or
    assignment/transfer application was filed within the first half of
    the construction period (twelve months for full-power television
    stations, 9 months for other broadcast services), the rules required
    only that the permittee (or assignee/transferee) certify that it
    would commence construction immediately upon grant of the
    modification or consummation of the assignment/transfer. If the
    modification or assignment/transfer application was filed after that
    time, the rules dictated that the permittee make the
    \"one-in-three\" showing in addition to the requisite certification.
    [See]{.underline} 47 C.F.R. § 73.3535 (1997).

[^22]: ^?^ [See]{.underline} [Streamlining Order]{.underline}, 13 FCC
    Rcd at 23,089; [see]{.underline} [also]{.underline} [Edward A Baker
    v. FCC]{.underline}, 834 F.2d 181 (D.C. Cir. 1987); [MG-TV
    Broadcasting Company v. FCC]{.underline}, 408 F.2d 1257 (D.C. Cir.
    1968); [Mass Communicators, Inc. v. FCC]{.underline}, 266 F.2d 681
    (D.C. Cir. 1959), [cert]{.underline}. [denied]{.underline}, 361 U.S.
    828 (1959) .

[^23]: ^?^ 13 FCC Rcd at 23,088.

[^24]: ^?^ [See]{.underline} [Streamlining Order]{.underline}, 13 FCC
    Rcd at 23,091-92; [see]{.underline} [also]{.underline} the revised
    text of 47 C.F.R. § 73.3598 as adopted in the [Streamlining
    Order]{.underline}.

[^25]: ^?^ [See]{.underline} Petitions of Aspen FM, Inc. (\"Aspen FM\")
    at 4-9; Browne Mountain Television (\"Browne\") at 3-5; Brunson
    Communications, Inc. (\"Brunson\") at 9-10; Family First at 4-5;
    Michael L. Horvath (\"Horvath\") at 6; Isaac Max Jaramillo
    (\"Jaramillo\") at 9-10; Pollock Broadcasting Co. (\"Pollock\") at
    9-10; Starr County Historical Foundation, Inc. (\"Starr\") at 9-11;
    and Sungilt Corporation, Inc. (\"Sungilt\") at 4-5.

[^26]: ^?^ [See]{.underline} Petitions of Aspen FM at 10-12; Brunson at
    10-12; Horvath at 3-5; Jaramillo at 10-12; Long Island Multimedia,
    LLC (\"Long Island\") at 7-8; Milwaukee Area Technical College
    (\"Milwaukee\") at 5; Pollock at 10-12\' Royce International
    Broadcasting Co. (\"Royce\") at 12-18; Starr at 11-12; Sungilt at
    5-6; and Z-Spanish at 8-9.

[^27]: ^?^ [See]{.underline} Petitions of Brown at 5-6; Brunson at 5-7;
    Central Florida at 5-9; Covenant at 6-8; Family First at 5-7; Floyco
    Inc. at 3-4; Horvath at 3-5; Jaramillo at 5-7; KM at 9-11; Harry J.
    and Stella A. Pappas (\"Pappas\") at 7-10; Pollock at 5-7; Reece at
    3-4; Starr at 6-7; UP Wireless at 3-7; and Workman at 5-7.

[^28]: ^?^ [See]{.underline} Petitions of Aspen FM at 12-14; Covenant
    Network (\"Covenant\") at 5-6; Horvath at 5-6; and Withers at 6-8.

[^29]: ^?^ [See]{.underline} note 1, [supra]{.underline}.

[^30]: ^?^ [Cf]{.underline}. [South Terminal Corp v. EPA]{.underline},
    504 F. 2d 646, 659 (1st Cir. 1974) (the first case to use the
    \"logical outgrowth\" formula); [accord]{.underline}, [BASF
    Wyandotte Corp. v. Costle]{.underline}, [supra]{.underline}; [Taylor
    Diving & Salvage Co. v. United States Department of
    Labor]{.underline}, 599 F.2d 622, 626 (5th Cir. 1979).

[^31]: ^?^ [Compare]{.underline} [American Federation of Labor and
    Congress of Industrial Organizations v. Donovan]{.underline}, 757
    F.2d 330, 339 (D.C. Cir. 1985) (when notice of proposed rule making
    contained \"no indication\" that changes to specific rule provisions
    were being considered, modification of those regulations held not a
    \"logical outgrowth\" of proposal.)

[^32]: ^?^ [Accord]{.underline}, [Consolidated Coal Co. v.
    Costle]{.underline}, 604 F.2d 239, 248 (4th Cir. 1979),
    [rev\'d]{.underline} [on]{.underline} [other]{.underline}
    [grounds]{.underline} [sub]{.underline} [nom]{.underline}. [EPA v.
    National Crushed Stone Association]{.underline}, 449 U.S. 64 (1980).

[^33]: [Landgraf v. USI Film Products]{.underline}, 511 U.S. 244, 269 &
    n. 24 (1994) (a law does not act retrospectively merely because it
    is applied in a case arising from conduct antedating its enactment
    or upsets expectations based in prior law; rather, the issue is
    whether the new provision attaches new legal consequences to events
    completed before its enactment\"); [DIRECTTV, Inc. v.
    FCC]{.underline}, 110 F.3d 816, 826 (D.C. Cir. 1997) (\"a new rule
    or law is not retroactive \'merely because it . . . upsets
    expectations based on prior law,\'\" quoting
    [Landgraf]{.underline}); [Chemical Waste Management, Inc. v.
    EPA]{.underline}, 869 F.2d 1526, 1536 (D.C. Cir. 1989) (\"it is
    often the case that a business will undertake a certain course of
    conduct based on the current law and will then find its expectations
    frustrated when the law changes. This has never been thought to
    constitute retroactive lawmaking\").

[^34]: We take this action pursuant to the discretion vested in us by 47
    U.S.C. § 319(b). [See]{.underline} [infra]{.underline} paras. 35-36.

[^35]: [See]{.underline} [infra]{.underline} paras. 31-41.

[^36]: In light of this action, which in essence grants petitioners
    Z-Spanish and Withers the relief they seek, their stay requests will
    be dismissed as moot.

[^37]: 47 U.S.C. § 304 requires applicants to \"waive any claims to the
    use of any particular frequency . . . as against the regulatory
    power of the United States because of the previous use of the same,
    whether by license or otherwise.\"

[^38]: Although a broadcast permit or license does not confer a property
    right on its holder, procedural due process rights inherent in the
    APA attach when the Commission changes the terms or conditions of a
    permit or license. For example, the dismissal of an application is a
    sufficiently grave sanction to trigger \"\[t\]raditional concepts of
    due process incorporated into administrative law\" that \"preclude
    an agency from penalizing a private party for violating a rule
    without first providing adequate notice of the rule.\" [Satellite
    Broadcasting Co., Inc. v. FCC]{.underline}, 824 F.2d 1, 2 (D.C. Cir.
    1987); [Radio Athens, Inc. v. FCC]{.underline}, 401 F.2d 398, 404
    (D.C. Cir. 1968). Thus, while \"a license confers no \'property
    right,\' and \[. . .\] licensees accept their licenses subject to
    the Commission\'s regulations . . . \[those regulations\] are
    subject to amendment \[only\] by rule making in which licensees may
    be heard.\" That having been accomplished, all procedural
    requirements have been met here. [Amendment of Section 97.1114 of
    the Amateur Radio Service Rules]{.underline}, 59 RR 2d 436, 437
    (1985), [citing]{.underline} [United States v. Storer Broadcasting
    Co]{.underline}., 351 U.S. 192, 202-04 (1956); [WBEN Inc. v. United
    States]{.underline}, 396 F.2d 601, 618 (2d Cir. 1968).

[^39]: [See]{.underline} Petitions of the Board of Regents of the
    University of Wisconsin System (\"Wisconsin\") at 6-7; Long Island
    at 1, 6-7; Milwaukee at 4-5; Pappas at 6-7: Royce at 4; Clinton
    County Broadcasting (\"Clinton\") at 6.

[^40]: [See]{.underline} Long Island petition at 2-3.

[^41]: [See]{.underline} Petitions of NAB at 2-4; Pappas at 5-6; Be-More
    Broadcasting, Inc. (\"Be-More\") at 2-4; Wisconsin at 4-5; Reece at
    7-8; Royce [passim]{.underline}; Sungilt at 8-10; and Z-Spanish at
    11-14. NAB and Pappas had previously filed comments pursuant to the
    [NPRM]{.underline} requesting that zoning problems be retained as a
    justification for further time to construct.

[^42]: [See]{.underline} Petitions of Be-More at 2; NAB at 3; and Pappas
    at 7.

[^43]: [See]{.underline} Petitions of Michael R. Birdsill (\"Birdsill\")
    at 3-4 and Z-Spanish at 13-15.

[^44]: [See]{.underline} Petitions of Claire B. Benezra [et]{.underline}
    [al]{.underline}. (\"Benezra\") at 2-9; Birdsill at 4-5; and
    KCWE-TV, Inc. (\"KCWE\") at 2.

[^45]: [See]{.underline} Petitions of Cornerstone at 4-5 and Growing
    Christian at 5.

[^46]: [See]{.underline} Petition of Z-Spanish at 13-14.

[^47]: [Id]{.underline}.

[^48]: [See]{.underline} Petitions of Covenant at 7 and KRTS at 1-3.

[^49]: [See]{.underline} Petitions of Wisconsin at 5-7, Milwaukee at
    3-5, and Sungilt at 7-8.

[^50]: [See]{.underline} Petitions of Browne at 5-6, Equity Broadcasting
    Corporation and Luis Martinez (\"Equity\") at 4-8; UP Wireless, LLC
    and Mark Silberman (\"UP Wireless\") at 4-8, and Z-Spanish at 6-8.

[^51]: We note that, prior to revision of the permit extension rules in
    1985, zoning difficulties were not considered a circumstance beyond
    the permittee\'s control. [See]{.underline}, [e.g.]{.underline},
    [Business Radio Communications Systems, Inc.]{.underline}, 102 FCC
    2d 714, 716-7 (1985) (zoning difficulty was \"a problem related to
    \[the permittee\'s\] selection of a transmitter site which was an
    independent business decision,\" not a circumstance beyond the
    permittee\'s control).

[^52]: [See]{.underline} Reply comments of EBT Broadcasting, L.L.C. at
    2.

[^53]: Three petitioners argue that the Commission cannot draw a
    meaningful distinction between seeking zoning approval before the
    appropriate local agency and seeking judicial review of a zoning
    denial, and thus we cannot logically deny tolling in the former
    circumstance while granting it in the latter. [See]{.underline}
    Petitions of Pappas at 5, Royce at 10, and Sungilt at 9. Our
    decision to permit tolling for \"any cause of action pending before
    any court of competent jurisdiction relating to any necessary local,
    state, or federal requirement for the construction or operation of
    the station, including any environmental requirement\" is, however,
    clearly consistent with our decision to permit tolling for judicial
    appeals in general and, we believe, is an appropriate \"safety
    valve.\"

[^54]: [See]{.underline} Petitions of Covenant at 7 and KRTS at 1-3.

[^55]: After the allotment rule making has become final, the affected
    station has at best an \"implied STA\" to remain on its old
    frequency until it is ready for operation on its new frequency. In
    cases where the affected station is unnecessarily impeding the other
    station\'s ability to move or commence operations, we affirm the
    staff\'s practice of cancelling that \"implied STA\" and ordering
    the affected station to cease broadcasting on its old frequency.
    [See]{.underline} [Letter to Stations KMEM(FM), Memphis, Missouri
    and KLBA(FM), Albia, Iowa]{.underline}, reference 18000B3-DCD (M.M.
    Bur. May 26, 1995) (station whose frequency had been amended by
    virtue of a final [Report and Order]{.underline} in allocations rule
    making proceeding ordered to cease broadcasting on its \"old\"
    frequency to accommodate commencement of operations of new station).

[^56]: We reiterate that we will afford no additional time to permittees
    who make a business decision not to use the site approved in the
    construction permit: a statement that the permittee has found a
    better site or that the original site could not be obtained for
    commercially reasonable terms will not suffice. The site must have
    become unavailable for reasons not attributable to the permittee.

[^57]: Petitioner KCWE presents a unique set of circumstances. It was
    denied local zoning approval, and discovered that there was no fully
    spaced site for which it could get local approval. It then filed a
    petition for rule making to substitute channel 29 for its authorized
    channel 32; while the staff released the [Notice of Proposed Rule
    Making]{.underline} in the proceeding, the rule making was delayed
    by the institution of DTV proceedings. Nevertheless, the staff
    issued special temporary authorization (\"STA\") to KCWE-TV to
    operate on Channel 32 pending resolution of those proceedings, and
    KCWE-TV is currently on the air on Channel 32.

[^58]: ^?^ [See]{.underline}, [e.g.]{.underline}, Reconsideration of the
    Fifth Report and Order in [Advanced Television Systems and Their
    Impact Upon the Existing Television Broadcast Service]{.underline},
    13 FCC Rcd 6860, 6865-66 (1998).

[^59]: If the tolling event involves administrative or judicial review,
    the notification should supply the name of the court or
    administrative body, the case or docket number assigned, and the
    party instituting the cause of action.

[^60]: Those which contain the information described [supra]{.underline}
    and which specify an approved tolling event will receive a brief
    acknowledgement of the revised permit expiration date; the
    Commission\'s data bases also will be revised to reflect that date.
    Those notifications that do not contain all of the requisite
    information, or those that specify events that have not been found
    to constitute a tolling event, will be rejected, and the permittee
    will be notified simply that its construction period remains
    unchanged.

[^61]: We disagree with those petitioners who believe that our
    notification process will be more burdensome on permittees and the
    staff than our former extension system. [See]{.underline} Petitions
    of Central Florida at 8-9; Reece at 6-7, and Z-Spanish at 15-16. The
    tolling/notification procedures will require substantially less time
    for preparation and review than the fact-intensive extension
    requests under the old \"one-in-three\" standard.

[^62]: The requirements from Appendix C that remain relevant in light of
    the streamlined FCC Form 301 are: (1) a list of the other media
    interests of the applicant and its principals; (2) certification of
    compliance with the alien ownership provisions contained in 47
    U.S.C. § 310(b); (3) tower/antenna heights; (4) effective radiated
    power; (5) whether the antenna is directional or omnidirectional;
    and (6) an exhibit demonstrating compliance with the contour
    protection requirements of 47 C.F.R. § 73.215, if applicable.
    Although not eliminated by the revision to the FCC Form 301 in the
    [Streamlining Order]{.underline}, we note that applicants filing
    minor change applications do not need to comply with the local
    public notice requirements of 47 C.F.R § 73.3580. [See]{.underline}
    47 U.S.C. § 309(c).

[^63]: We note that these procedures will remain relevant only until the
    implementation of the mandatory electronic filing procedures. Any
    information omitted from an electronically filed application will be
    immediately identified to the applicant. The Commission\'s
    electronic filing system will not accept applications until all
    necessary information is included in the application. Thus, in order
    to \"get in the door\" with an electronically filed minor change
    application, all pertinent information requested by FCC Form 301
    will need to be supplied.

[^64]: [See]{.underline} 5 U.S.C. § 553(b)(3)(B); [see]{.underline}
    [also]{.underline} 47 C.F.R. § 1.412(c).

[^65]: The rule states, in pertinent part,

    > \(a\) Applications, amendments thereto, and related statements of
    > fact required by the FCC must be signed by the following persons:

    \(1\) *Individual applicant*. The applicant, if the applicant is an
    individual.

    \(2\) *Partnership*. One of the partners, if the applicant is a
    partnership.

    \(3\) *Corporation*. An officer, if the applicant is a corporation.

    \(4\) *Unincorporated Association*. A member who is an officer, if
    the applicant is an unincorporated association.

    \(5\) *Government Entity*. Such duly elected or appointed officials
    as may be competent to do so under the law of the applicable
    jurisdiction,if the applicant is an eligible governmental entity,
    such as a State or Territory of the United States and political
    subdivisions thereof . . . .

    Only the original application, amendment, or request must contain an
    original signature; copies of the application may be conformed.
    [See]{.underline} 47 C.F.R. § 73.3513(c).

[^66]: [See]{.underline} 47 C.F.R. § 73.3513(b).

[^67]: 13 FCC Rcd 23,056 (1998). Certain abbreviated references used in
    the Memorandum Opinion and Order are also used in this Appendix.

[^68]: Pub. L. No. 104-121, 110 Stat. 847 (1996) (\"CWAAA\");
    [see]{.underline} [generally]{.underline} 5 U.S.C. §§ 601
    [et]{.underline}. [seq]{.underline}. Title II of the CWAAA is the
    Small Business Regulatory Enforcement Fairness Act of 1996
    (\"SBREFA\").

[^69]: 13 FCC Rcd 11,349 (1998).

[^70]: [See]{.underline} Comments of Browne, Equity, UP Wireless, and
    Z-Spanish.

[^71]: [See]{.underline} Comments of Z-Spanish.

[^72]: [See]{.underline} Comments of Tillotson.

[^73]: [See]{.underline} Comments of APTS.