**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of:                | *  | MB Docket No. 03-151         |
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| Amendment of Sections 73.62      | ** |                              |
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| and 73.1350 of the               | *  |                              |
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| Commission's Rules               | ** |                              |
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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: July 1, 2003 Released: July 7, 2003**

**Comments Date: August 29, 2003**

**Reply Comments Date: September 18, 2003**

By the Commission:

# INTRODUCTION

1.  We issue this Notice of Proposed Rulemaking ("Notice") to resolve an
    apparent conflict between Sections 73.62 and 73.1350(d)(2) of the
    Commission's rules regarding the operation of AM stations with
    directional antennas.[^1] The issue was initially raised in a
    Petition for Declaratory Ruling filed pursuant to Section 1.2 of the
    Commission's rules by Pepper and Corazzini, LLP ("P&C") on behalf of
    various AM broadcast licensees.[^2] Because the issues raised may
    involve a substantive amendment of the Commission's rules, the
    proper vehicle for resolving this proceeding is a Notice of Proposed
    Rulemaking.[^3]

2.  Both of these rules are invoked when an AM broadcast station's
    directional antenna operating parameters[^4] and/or monitoring point
    field strengths[^5] exceed operating tolerances. Section 73.62 of
    the rules, which specifically governs directional antenna system
    tolerances, provides that, whenever the operating parameters of a
    directional antenna cannot be maintained within the tolerances
    specified in the rule, an AM broadcast station has twenty-four hours
    within which to identify any excessive monitoring point field
    strengths followed by three hours to take corrective action.[^6] In
    contrast, Section 73.1350(d)(2) of the rules, which addresses
    transmission system operation, requires that, in the event of any
    condition of antenna parameters or monitoring points out of
    tolerance, station operation be terminated within three minutes
    unless power is reduced sufficiently to eliminate any excess
    radiation.[^7] This inconsistent directive in our rules leaves AM
    licensees unclear as to the correct course of action they must take
    when they observe out-of-tolerance indications. Clarity in our rules
    is especially necessary when the rules may require that broadcast
    operations terminate within a matter of minutes. In such situations,
    termination of operations would be disruptive to programming and, in
    some cases, broadcast listeners may be deprived of information
    regarding hazardous weather or other emergency conditions. Moreover,
    broadcast stations may be faced with fines and forfeitures if found
    not to be in compliance with our rules. This Notice initiates a
    proceeding to harmonize these rules.

# DISCUSSION

3.  At issue in this proceeding is what corrective actions an AM
    broadcast station licensee must take when directional antenna
    operating parameters exceed the +/- 5% current and +/- 3 degree
    phase tolerances required by the rules, or when any monitoring point
    field strength exceeds the value specified on the station
    license.[^8] Section 73.1350(d) of the rules requires that, with
    certain exceptions listed in paragraph (e), if a broadcast station
    is operating in a manner that is not in compliance with the
    technical rules or the terms of the station authorization, broadcast
    operation must be terminated within *three hours*.[^9]

4.  Section 73.1350(e) includes a list of several specific technical
    problems with references to applicable rule sections, and instructs
    that station operation may continue as long as the technical problem
    encountered is among those listed and as long as the station
    complies with the provisions of the specified rule section.[^10]
    Section 73.1350(e)(1) instructs an AM station licensee experiencing
    problems with its directional antenna to refer to Section 73.62 of
    the Commission's rules.[^11] This rule allows a licensee 24 hours to
    measure and log all directional antenna monitoring points and
    provides that, if any monitoring point exceeds its specified limit,
    the licensee must either terminate operation within *3 hours* or
    reduce power to eliminate any excessive radiation.[^12] However,
    Section 73.1350(d)(2) of the Commission's rules lists additional
    examples of conditions that require termination of operation for AM
    stations. These examples include "any mode of operation" not
    specified by the station license for the pertinent time of day or
    hours of operation and any out of tolerance condition of antenna
    parameters or monitoring points.[^13] In apparent contradiction to
    Section 73.62, this section of the rules requires that operation
    must be terminated within *three* *minutes* unless antenna input
    power is reduced sufficiently to eliminate any excess
    radiation.[^14]

5.  In light of the above, an AM licensee is faced with an apparent
    conflict when trying to determine what course of action to take when
    its directional antenna operating parameters are found not to comply
    with licensed tolerances. Section 73.62 allows 24 hours to check
    monitoring points,[^15] and then if any monitoring point exceeds its
    specified limit, a three hour period to terminate operation or
    reduce power.[^16] In contrast, Section 73.1350(d)(2) requires that
    "*any condition of antenna parameters or monitoring points out of
    the tolerances specified elsewhere in this part or by the station's
    instrument or authorization*" requires termination of operation in
    three minutes unless power is reduced sufficiently to eliminate any
    excess radiation.[^17]

6.  We recognize that almost all AM broadcast station directional
    antenna arrays experience some amount of instability. A directional
    antenna array occasionally may be affected by unfavorable weather
    conditions or other environmental factors to such an extent that the
    monitoring system indicates short-term out-of-tolerance operation.
    Such out-of-tolerance indications during heavy rain, snow or icing,
    or during abrupt and substantial changes in temperature or humidity,
    including consequent effects on ground conductivity, may not warrant
    immediate corrective action.[^18]

7.  We tentatively conclude that the three-minute rule in Section
    73.1350(d)(2) of our rules is excessively stringent and was not
    intended to apply to instances of minor out-of-tolerance AM
    directional antenna operating parameters. We tentatively conclude
    that Sections 73.62 and 73.1350 should be revised to delineate
    clearly those situations that require 24-hour, three-hour and/or
    three-minute responses by AM licensees, as well as by FM and TV
    licensees. A requirement to terminate operation within three minutes
    should apply only to catastrophic events that are likely to cause
    significant disruption to the operation of other stations or that
    pose a threat to life or property. A requirement to terminate
    operation within three hours should apply to instances of
    out-of-tolerance operation that are likely to result in minor
    interference to other stations. We believe that, in the case of
    minor variances of operating parameters caused by environmental
    changes, the provision in Section 73.62 which allows 24 hours to
    determine the existence of an out-of-tolerance condition for an AM
    directional antenna system is reasonable.[^19] Because Section
    73.1350 applies equally to AM, FM and TV licensees, while Section
    73.62 applies only to AM licensees, we believe that the language
    currently included in Section 73.1350(d) that specifically addresses
    AM directional antenna systems should be relocated to Section 73.62,
    and that section retitled accordingly.

8.  We seek comment as to whether our tentative conclusions with regard
    to revising Sections 73.1350 and 73.62 are appropriate.[^20] We seek
    comment as to other ways to best resolve the conflict presented
    between Sections 73.1350 and 73.62 of the Commission's rules. We
    seek comment as to other specific language changes that should be
    made to either of these rules that would best eliminate any
    confusion.

# ADMINISTRATIVE MATTERS

## INITIAL REGULATORY FLEXIBILITY ACT STATEMENT

9.  *Regulatory Flexibility Act*. As required by the Regulatory
    Flexibility Act,[^21] the Commission has prepared an Initial
    Regulatory Flexibility Analysis (IRFA) of the possible significant
    economic impact on a substantial number of small entities of the
    proposals addressed in this Notice. The IRFA is set forth in
    Appendix B. Written public comments are requested on the IRFA. These
    comments must be filed in accordance with the same filing deadlines
    for comments on the Notice, and they should have a separate and
    distinct heading designating them as responses to the IRFA.

## INITIAL PAPERWORK REDUCTION ACT OF 1995 ANALYSIS

10. This Notice contains no proposed or modified information collection.

## PROCEDURAL PROVISIONS 

11. *Authority*. This *Notice of Proposed Rulemaking* is issued pursuant
    to authority contained in §§ 1, 4(i), 4(j), 303(r), 403 of the
    Communications Act of 1934, as amended.

12. *Ex Parte Rules -- permit-but-disclose*. This is a
    permit-but-disclose notice and comment rulemaking proceeding. Ex
    parte presentations are permitted, except during the Sunshine Agenda
    period, provided that they are disclosed as provided in the
    Commission's Rules. *See generally* 47 C.F.R. §§ 1.1202, 1.1203, and
    1.1206(a).

13. *Accessibility Information*. Accessible formats of this *Notice of
    Proposed Rulemaking* (computer diskettes, large print, audio
    recording and Braille) are available to persons with disabilities by
    contacting Brian Millin, of the Consumer & Governmental Affairs
    Bureau, at (202) 418-7426, TTY (202) 418-7365, or at
    [bmillin@fcc.gov]{.underline}.

14. *Comment Information*. Pursuant to Sections 1.415 and 1.419 of the
    Commission\'s rules, 47 C.F.R. §§ 1.415, 1.419, interested parties
    may file comments on or before **August 29, 2003** and reply
    comments on or before **September 18,** **2003**. Comments may be
    filed using the Commission\'s Electronic Comment Filing System
    (ECFS) or by filing paper copies. [See]{.underline} [Electronic
    Filing of Documents in Rulemaking Proceedings]{.underline}, 63 Fed.
    Reg. 24121 (1998).

15. Comments filed through the ECFS can be sent as an electronic file
    via the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>.
    Generally, only one copy of an electronic submission must be filed.
    If multiple docket or rulemaking numbers appear in the caption of
    this proceeding, however, commenters must transmit one electronic
    copy of the comments to each docket or rulemaking number referenced
    in the caption. In completing the transmittal screen, commenters
    should include their full name, U.S. Postal Service mailing address,
    and the applicable docket or rulemaking number. Parties may also
    submit an electronic comment by Internet e-mail. To get filing
    instructions for e-mail comments, commenters should send an e-mail
    to ecfs@fcc.gov, and should include the following words in the body
    of the message, \"get form \<your e-mail address\>.\" A sample form
    and directions will be sent in reply. Parties who choose to file by
    paper must file an original and four copies of each filing. If more
    than one docket or rulemaking number appears in the caption of this
    proceeding, commenters must submit two additional copies for each
    additional docket or rulemaking number. Filings can be sent by hand
    or messenger delivery, by commercial overnight courier, or by
    first-class or overnight U.S. Postal Service mail (although we
    continue to experience delays in receiving U.S. Postal Service
    mail). The Commission\'s contractor, Vistronix, Inc., will receive
    hand-delivered or messenger-delivered paper filings for the
    Commission\'s Secretary at 236 Massachusetts Avenue, N.E., Suite
    110, Washington, D.C. 20002. The filing hours at this location are
    8:00 a.m. to 7:00 p.m. All hand deliveries must be held together
    with rubber bands or fasteners. Any envelopes must be disposed of
    before entering the building. Commercial overnight mail (other than
    U.S. Postal Service Express Mail and Priority Mail) must be sent to
    9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal
    Service first-class mail, Express Mail, and Priority Mail should be
    addressed to 445 12th Street, SW, Washington, D.C. 20554. All
    filings must be addressed to the Commission\'s Secretary, Office of
    the Secretary, Federal Communications Commission.

# ORDERING CLAUSES

16. **IT IS ORDERED** that, pursuant to Sections 1, 4(i) and (j), 301
    303, and 403 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 151, 154(i) and (j), 301, 303, and 403, **COMMENT IS
    HEREBY SOUGHT** on the analysis, questions, discussions and
    statements of issues in this Notice of Proposed Rulemaking.

17. **IT IS FURTHER ORDERED** that the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this Notice, including the IRFA, to the Chief Counsel
    for Advocacy of the Small Business Administration, in accordance
    with the Regulatory Flexibility Act.[^22]

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

    **APPENDIX A**

Part 73 of Title 47 of the Code of Federal Regulations is proposed to be
amended as follows:

Part 73 -- Radio Broadcast Services

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

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

2\. Section 73.1350(b)(2) is proposed to be revised as follows:

§ 73.1350 **Transmission system operation.**

> \(b\) The licensee must designate a chief operator in accordance with
> § 73.1870. The licensee may designate one or more technically
> competent persons to adjust the transmitter operating parameters for
> compliance with the technical rules and the station authorization.
>
> \(2\) The transmitter control personnel must have the capability to
> turn the transmitter off at all times. If the personnel are at a
> remote location, the control system must provide this capability
> continuously or must include an alternate method of acquiring control
> that can satisfy the requirement of paragraph (e) of this section that
> operation be terminated within 3 minutes.

3\. Section 73.1350(d) is proposed to be revised as follows:

§ 73.1350 **Transmission system operation.**

> \(d\) In the event that a broadcast station is operating in a manner
> that is not in compliance with the applicable technical rules set
> forth elsewhere in this part or the terms of the station
> authorization, and the condition is not listed in paragraph (e) or (f)
> of this section, broadcast operation must be terminated within three
> hours unless antenna input power is reduced sufficiently to eliminate
> any excess radiation power. Examples of conditions that require
> termination of operation within three hours include excessive power,
> excessive modulation or the emission of spurious signals that do not
> result in harmful interference.
>
> \[The current subsections (1) - (3) would be deleted\].

4\. A new Section 73.1350(e) of the rules is proposed to be added as
follows:

§ 73.1350 **Transmission system operation**

> \(e\) If a broadcast station is operating in a manner that poses a
> threat to life or property or that is likely to significantly disrupt
> the operation of other stations, immediate corrective action is
> required. In such cases, operation must be terminated within three
> minutes unless antenna input power is reduced sufficiently to
> eliminate any excess radiation. Examples of conditions that require
> immediate corrective action include the emission of spurious signals
> that cause harmful interference, any mode of operation not specified
> by the station license for the pertinent time of day, or operation
> substantially at variance from the authorized radiation pattern.
>
> > \[The current remaining Sections (e) through (h) would be
> > redesignated as Sections (f) through (i)\].

5\. Section 73.62 is proposed to be revised as follows:

§ 73.62 **Directional antenna system operation and tolerances**

> \(a\) Each AM station operating a directional antenna must maintain
> the relative amplitudes of the antenna currents, as indicated by the
> antenna monitor, within 5% of the values specified on the instrument
> of authorization. Directional antenna relative phases must be
> maintained within 3 degrees of the values specified on the instrument
> of authorization.
>
> \(b\) In the event of a failure of system components, improper pattern
> switching or any other event that results in operation substantially
> at variance from the radiation pattern specified in the instrument of
> authorization for the pertinent time of day, operation must be
> terminated within three minutes unless power can be reduced
> sufficiently to eliminate any excessive radiation. *See* Section
> 73.1350(e).
>
> \(c\) In the event of minor variations of directional antenna
> operating parameters from the tolerances specified in paragraph (a) of
> this section, the following procedures will apply:
>
> \(1\) The licensee shall measure and log every monitoring point at
> least once for each mode of directional operation. Subsequent
> variations in operating parameters will require the remeasuring and
> logging of every monitoring point to assure that the authorized
> monitoring point limits are not being exceeded. The licensee will be
> permitted 24 hours to accomplish these actions; provided that, the
> date and time of the failure to maintain proper operating parameters
> has been recorded in the station log.
>
> \(2\) Provided each monitoring point is within its specified limit,
> operation may continue for a period up to 30 days before a request for
> Special Temporary Authority (STA) must be filed, pursuant to paragraph
> (c)(4) of this section, to operate with parameters at variance from
> the provisions of paragraph (a) of this section.
>
> \(3\) If any monitoring point exceeds its specified limit, the
> licensee must either terminate operation within three hours or reduce
> power in accordance with the applicable provisions of Section
> 73.1350(d), in order to eliminate any possibility of interference or
> excessive radiation in any direction.
>
> \(4\) If operation pursuant to paragraph (c)(3) of this section is
> necessary, or before the 30 day period specified in paragraph (c)(2)
> of this section expires, the licensee must request a Special Temporary
> Authority (STA) in accordance with Section 73.1635 to continue
> operation with parameters at variance and/or with reduced power along
> with a statement certifying that all monitoring points will be
> continuously maintained within their specified limits.
>
> \(d\) In any other situation in which it might reasonably be
> anticipated that the operating parameters might vary out of tolerance
> (such as planned array repairs or adjustment and proofing procedures),
> the licensee shall, before such activity is undertaken, obtain a
> Special Temporary Authority (STA) in accordance with Section 73.1635
> in order to operate with parameters at variance and/or with reduced
> power as required to maintain all monitoring points within their
> specified limits.

**APPENDIX B**

**INITIAL REGULATORY FLEXIBILITY ANALYSIS**

As required by the Regulatory Flexibility Act of 1980, as amended
(\"RFA\"),[^23] the Commission has prepared this Initial Regulatory
Flexibility Analysis (\"IRFA\") of the possible significant economic
impact on small entities by the policies and rules proposed in this
Notice of Proposed Rulemaking ("Notice"). Written public comments are
requested on this IRFA. Comments must be identified as responses to the
IRFA and must be filed by the deadlines for comments on the Notice
provided above in paragraph 15. The Commission will send a copy of the
Notice, including this IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration.[^24] In addition, the Notice and IRFA (or
summaries thereof) will be published in the Federal Register.[^25]

A.  **Need for, and Objectives of, the Proposed Rule Changes**. This
    Notice seeks comment on ways to remedy the apparent conflict between
    Sections 73.1350(d)(2) and 73.62 of the Commission's rules.[^26]
    Both rules are invoked when an AM station's directional operating
    parameters and/or monitoring point field strengths exceed the
    required operating tolerances. Section 73.62 of the rules provides
    that an AM broadcast station has 24 hours within which to identify
    any excessive monitoring point readings followed by three hours to
    take corrective action.[^27] By comparison, Section 73.1350(d)(2) of
    the rules requires that station operation be terminated within three
    minutes unless power is reduced sufficiently to eliminate any excess
    radiation.[^28] It is important that this apparent conflict in our
    rules be addressed because these rules affect termination of
    broadcast operations, which may deprive listeners of necessary
    information regarding hazardous weather or other emergency
    conditions. In addition, if broadcasters are found not to be in
    compliance with these rules, they may face fines or have forfeiture
    action instituted against them.

B.  **Legal Basis**. The authority for the action proposed in this
    Notice is contained in Sections 1, 4(i) and (j), 301, 303, 403 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i)
    and (j), 301, 303, and 403.

C.  **Description and Estimate of the Number of Small Entities to Which
    the Proposed Rule Changes Will Apply.** The RFA directs the
    Commission to provide a description of and, where feasible, an
    estimate of the number of small entities that will be affected by
    the proposed rules, if adopted.[^29] The RFA generally defines the
    term \"small entity\" as having the same meaning as the terms
    \"small business,\" \"small organization,\" and \"small governmental
    jurisdiction.\"[^30] In addition, the term "small business" has the
    same meaning as the term "small business concern" under the Small
    Business Act.[^31] A small business concern is one which: (1) is
    independently owned and operated; (2) is not dominant in its field
    of operation; and (3) satisfies any additional criteria established
    by the Small Business Administration (\"SBA\").[^32] A small
    organization is generally "any not-for-profit enterprise which is
    independently owned and operated and is not dominant in its
    field."[^33] Nationwide as of 1992, there were approximately 275,801
    small organizations.[^34] "Small governmental jurisdiction"
    generally means "governments of cities, counties, towns, townships,
    villages, school districts, or special districts, with a population
    of less than 50,000."[^35] As of 1997, there were approximately
    87,453 governmental entities in the United States.[^36] This number
    includes 39,044 county governments, municipalities, and townships,
    of which 37,546 (approximately 96.2%) have populations of fewer than
    50,000 or more. Thus, we estimate the number of small governmental
    jurisdictions overall to be approximately 84,098 or fewer.

The proposed rule amendments to Sections 73.1350 and 73.62 will
primarily apply to certain AM directional radio broadcasting licensees
and potential licensees.[^37] The proposed amendments to Section 73.1350
would also affect FM broadcast stations in the event that any FM
broadcast station operates in a manner that poses a threat to life or
property or in a manner that is likely to cause significant disruption
to the operation of other stations. The SBA defines a radio broadcast
entity that has \$6 million or less in annual receipts as a small
business.[^38] Business concerns included in this industry are those
"primarily engaged in broadcasting aural programs by radio to the
public."[^39] According to Commission staff review of the BIA
Publications, Inc., Master Access Radio Analyzer Database, as of May 16,
2003, about 10,427 of the 10,945 commercial radio stations in the United
States have revenues of \$6 million or less. We note, however, that many
radio stations are affiliated with much larger corporations with much
higher revenue, and that in assessing whether a business concern
qualifies as small under the above definition, such business (control)
affiliations[^40]are included.[^41] Our estimate, therefore likely
overstates the number of small businesses that might be affected by the
proposed rules.

The proposed amendments to Section 73.1350 would also affect television
stations in the event that any television station operates in a manner
that poses a threat to life or property or is likely to significantly
disrupt the operation of other stations. The SBA defines a television
broadcasting station that has no more than \$12 million in annual
receipts as a small business.[^42] Business concerns included in this
industry are those "primarily engaged in broadcasting images together
with sound."[^43] According to Commission staff review of the BIA
Publications, Inc. Master Access Television Analyzer Database as of May
16, 2003, about 814 of the 1,220 commercial television stations in the
United States have revenues of \$12 million or less. We note, however,
that in assessing whether a business concern qualifies as small under
the above definition, business (control) affiliations[^44] must be
included. Our estimates, therefore, likely overstate the number of small
entities that might be affected by the proposed rules because the
revenue figure on which it is based does not include or aggregate
revenues from affiliated companies.

**D. Description of Projected Recording, Recordkeeping, and Other
Compliance Requirements:** We do not expect that the proposed rule
changes would impose any additional reporting or recordkeeping
requirements.

**E. Steps Taken to Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered:** The RFA requires an
agency to describe any significant alternatives that it has considered
in reaching its proposed approach, which may include the following four
alternatives: (1) the establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to small entities; (2) the clarification, consolidation, or
simplification of compliance or reporting requirements under the rule
for small entities; (3) the use of performance, rather than design,
standards; and (4) an exemption from coverage of the rule, or any part
thereof, for small entities.

As indicated above, the Notice seeks comment on how to remedy an
apparent conflict in the Commission's rules that affect AM broadcast
stations that employ directional antennas. Amendment of one of the rules
also may affect FM and television broadcast services. No alternatives to
our proposal herein are mentioned because we anticipate no differential
impact on smaller entities. However, we welcome comment on modifications
of proposals if based on evidence of potential differential impact.

**F. Federal Rues Which Duplicate, Overlap, or Conflict with the
Commission's Proposals.** None.

[^1]: 47 C.F.R. §§ 73.62 and 73.1350(d)(2).

[^2]: 47 C.F.R. § 1.2. *See In the Matter of: Petition for Declaratory
    Ruling Regarding Sections 73.1350(d) and 73.62 of the Commission's
    Rules* (January 17, 2002). Since the filing of this Petition, P&C
    has merged with the law firm of Womble, Carlyle, Sandridge & Rice,
    PLLC.

[^3]: Because we initiate the instant Notice of Proposed Rulemaking,
    P&C's Petition for Declaratory Ruling is hereby dismissed as moot.
    We acknowledge, however, that we have relied on some of the
    substantive information presented by P&C in forming our analysis.

[^4]: The operating parameters of an AM directional antenna are the
    relative amplitudes and phases of the currents in the individual
    towers of the array. Stations that use directional antennas are
    required to have an FCC authorized antenna monitor to measure the
    operating parameters. *See* 47 C.F.R. §§ 73.62, 73.69.

[^5]: Each AM station using a directional antenna must make field
    strength measurements at the monitoring point locations specified in
    the instrument of authorization, as often as necessary, to ensure
    that the fields at those points do not exceed the values specified
    in the station authorization. *See* 47 C.F.R. § 73.61.

[^6]: 47 C.F.R. § 73.62(b).

[^7]: 47 C.F.R. § 73.1350(d)(2).

[^8]: *See* 47 C.F.R. § 73.62(a).

[^9]: 47 C.F.R. § 73.1350(d) (emphasis added).

[^10]: 47 C.F.R. § 73.1350(e).

[^11]: 47 C.F.R. § 73.1350(e)(1).

[^12]: 47 C.F.R. § 73.62(b)(1), (3) & (5) (emphasis added).

[^13]: 47 C.F.R. § 73.1350(d)(2).

[^14]: *Id.* (emphasis added).

[^15]: 47 C.F.R. § 73.62(b)(5).

[^16]: 47 C.F.R. § 73.62(b)(3).

[^17]: 47 C.F.R. § 73.1350(d)(2) (emphasis added).

[^18]: *See Amendment of § 73.52 of the Commission's Rules and
    Regulations with respect to relative phase tolerances for
    directional AM stations*, 95 FCC 2d 1062, 1066 (1983); *see also*
    P&C Petition for Declaratory Ruling at 5 and attached Engineering
    Statement prepared by Mullaney Engineering, Inc. at 2-3.

[^19]: The monitoring points of an AM directional antenna (numbering
    between one and approximately six, depending on the directional
    pattern) generally are located between 3 and 6 kilometers from the
    transmitter site and in various directions, at locations that may
    fall on opposite sides of the city of license. In the case of a
    station that serves a major metropolitan area via a relatively
    complex directional antenna, driving to and measuring each monitor
    point can take several hours. Taking into account that an AM station
    may be licensed for as many as three separate directional patterns
    (daytime, nighttime and critical hours), each with its own set of
    monitoring points, 24 hours is not an unreasonable period of time
    for completing this task.

[^20]: *See* Appendix A for complete text of proposed rules.

[^21]: *See* 5 U.S.C. § 603.

[^22]: *See* 5 U.S.C. § 603(a).

[^23]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^24]: *See* 5 U.S.C. § 603(a).

[^25]: *See id.*

[^26]: 47 C.F.R. §§ 73.62 and 73.1350(d)(2).

[^27]: 47 C.F.R. § 73.62.

[^28]: 47 C.F.R. § 73.1350(d)(2).

[^29]: 5 U.S.C. § 603(b)(3).

[^30]: 5 U.S.C. § 601(6).

[^31]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^32]: 15 U.S.C. § 632.

[^33]: 5 U.S.C. § 601(5).

[^34]: 1992 Economic Census, U.S. Bureau of the Census, Table 6 (special
    tabulation of data under contract to Office of Advocacy of the U.S.
    Small Business Administration).

[^35]: 5 U.S.C. § 601(5).

[^36]: U.S. Census Bureau, Statistical Abstract of the United States:
    2000, Section 9, pages 299-300, Tables 490 and 492.

[^37]: 47 C.F.R. §§ 73.62 and 73.1350.

[^38]: *See* OMB, North American Industry Classification System: United
    States, 1997, at 509 (1997) (Radio Stations) (NAICS code 513111,
    which was changed to code 515112 in October 2002).

[^39]: *Id.*

[^40]: "Concerns are affiliates of each other when one concern controls
    or has the power to control the other, or a third party or parties
    controls or has the power to control both." 13 C.F.R. §
    121.103(a)(1).

[^41]: "SBA counts the receipts or employees of the concern whose size
    is at issue and those of all its domestic and foreign affiliates,
    regardless of whether the affiliates are organized for profit, in
    determining the concern's size." 13 C.F.R. § 121(a)(4).

[^42]: *See* OMB, North American Industry Classification System: United
    States, 1997 at 509 (1997) (NAICS code 513120, which was changed to
    code 515120 in October 2002).

[^43]: OMB, North American Industry Classification System: United
    States, 1997, at 509 (1997) (NAICS code 513120, which was changed to
    code 51520 in October 2002). This category description continues,
    "These establishments operate television broadcasting studios and
    facilities for the programming and transmission of programs to the
    public. These establishments also produce or transmit visual
    programming to affiliated broadcast television stations, which in
    turn broadcast the programs to the public on a predetermined
    schedule. Programming may originate in their own studios, from an
    affiliated network, or from external sources." Separate census
    categories pertain to businesses primarily engaged in producing
    programming. *See id*. at 502-05, NAICS code 51210. Motion Picture
    and Video Production: code 512120, Motion Picture and Video
    Distribution, code 512191, Teleproduction and Other Post-Production
    Services, and code 512199, Other Motion Picture and Video
    Industries.

[^44]: "Concerns are affiliates of each other when one concern controls
    or has the power to control the other or a third party or parties
    controls or has the power to control both." 13 C.F.R. §
    121.103(a)(1).