[Federal Register Volume 76, Number 51 (Wednesday, March 16, 2011)]
[Proposed Rules]
[Pages 14362-14366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6146]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 09-52; FCC 11-28]


Policies To Promote Rural Radio Service and To Streamline 
Allotment and Assignment Procedures

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission adopted a Second Further 
Notice of Proposed Rulemaking (SFNPRM), in which it announced that it 
wished to develop a more comprehensive record regarding measures to 
assist Federally recognized Native American Tribes and Alaska Native 
Villages (Tribes) in obtaining commercial FM radio station 
authorizations. Specifically, the Commission sought comment on the use 
of threshold qualifications for Tribes applying for commercial FM radio 
channel allotments that were added to the Table of Allotments using the 
Tribal Priority adopted by the Commission in the First Report and Order 
(First R&O) in this proceeding. The Commission also sought further 
comment on whether a Tribal Bidding Credit would accomplish the goal of 
increasing Tribal ownership of commercial stations broadcasting to 
Tribal Lands, and sought comment on the financial and other barriers 
facing Tribes wishing to enter the commercial broadcast arena.

DATES: Comments may be filed on or before April 15, 2011 and reply 
comments may be filed on or before May 16, 2011. Written comments on 
the Paperwork Reduction Act proposed information collection 
requirements must be submitted by the public, Office of Management and 
Budget (OMB), and other interested parties on or before May 16, 2011.

ADDRESSES: You may submit comments, identified by MB Docket No. 09-52, 
by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#6c090f0a1f2c0a0f0f420b031a"><span class="__cf_email__" data-cfemail="94f1f7f2e7d4f2f7f7baf3fbe2">[email protected]</span></a>. Include the docket number in the 
subject line of the message. See the SUPPLEMENTARY INFORMATION section 
of this document for detailed information on how to submit comments by 
e-mail.
    <bullet> Mail: 445 12th Street, SW., Washington, DC 20554.
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#eea8adaddbdedaae888d8dc0898198"><span class="__cf_email__" data-cfemail="b6f0f5f5838682f6d0d5d598d1d9c0">[email protected]</span></a> or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Peter Doyle, Chief, Media Bureau, 
Audio Division, (202) 418-2700; Thomas Nessinger, Attorney-Advisor, 
Media Bureau, Audio Division, (202) 418-2700.
    For additional information concerning the Paperwork Reduction Act 
information collection requirements contained in this document, contact 
Cathy Williams at 202-418-2918, or via the Internet at 
<a href="/cdn-cgi/l/email-protection#e7a486938f9ec9b08e8b8b8e868a94a7818484c9808891"><span class="__cf_email__" data-cfemail="ce8dafbaa6b7e099a7a2a2a7afa3bd8ea8adade0a9a1b8">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Further Notice of Proposed Rulemaking, FCC 11-28, adopted March 3, 
2011, and released March 3, 2011.

Initial Paperwork Reduction Act of 1995 Analysis

    The SFNPRM contains potential information collection requirements 
subject to the PRA, Public Law 104-13. OMB, the general public, and 
other Federal agencies are invited to comment on the potential new and 
modified information collection requirements contained in this SFNPRM. 
If the information collection requirements are adopted, the Commission 
will submit the appropriate documents to OMB for review under section 
3507(d) of the PRA and OMB, the general public, and other Federal 
agencies will again be invited to comment on the new and modified 
information collection requirements adopted by the Commission.
    Public and agency comments on the potential proposed information 
collection requirements are due May 16, 2011. Comments should address: 
(a) Whether the proposed collection of information is necessary for the 
proper

[[Page 14363]]

performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology. Pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the FCC seeks specific comment on how it might ``further 
reduce the information collection burden for small business concerns 
with fewer than 25 employees.''
    In addition to filing comments with the Secretary, a copy of any 
Paperwork Reduction Act comments on the information collection 
requirements contained herein should be submitted to Cathy Williams, 
Federal Communications Commission, Room 1-C823, 445 12th Street, SW., 
Washington, DC 20554, or via the Internet to <a href="/cdn-cgi/l/email-protection#8bc8eaffe3f2a5dce2e7e7e2eae6f8cbede8e8a5ece4fd"><span class="__cf_email__" data-cfemail="c083a1b4a8b9ee97a9acaca9a1adb380a6a3a3eea7afb6">[email protected]</span></a>, 
and to Nicholas A. Fraser, Office of Management and Budget (OMB), via 
the Internet to <a href="/cdn-cgi/l/email-protection#84caede7ecebe8e5f7dbc5aadbc2f6e5f7e1f6c4ebe9e6aae1ebf4aae3ebf2"><span class="__cf_email__" data-cfemail="97d9fef4fff8fbf6e4c8d6b9c8d1e5f6e4f2e5d7f8faf5b9f2f8e7b9f0f8e1">[email protected]</span></a> or by fax to 202-395-
5167.

Summary of Second Further Notice of Proposed Rule Making

    Recognizing ``the risks inherent in applying a section 307(b) 
preference at the allotment stage for auctionable non-reserved band 
spectrum,'' (First R&O, 75 FR 9797, Mar. 4, 2010, FCC 10-24, rel. Feb. 
23, 2010), the Commission sought comment in the Further Notice of 
Proposed Rule Making, 75 FR 9856, March 4, 2010, FCC 10-24, rel. Feb. 
23, 2010 (FNPRM), in this proceeding on whether to establish an auction 
bidding credit for Tribes seeking to provide commercial FM radio 
service to their Tribal Lands and members. The Tribal bidding credit 
was originally proposed to mitigate concerns that, due to the two-step 
nature of the commercial FM licensing process, Tribes or Tribal 
entities that employ the Tribal Priority to obtain FM allotments might 
be outbid by competing, non-Tribal applicants. The only (joint) 
commenters to address this issue proposed a 35 percent bidding credit 
that would be available to Tribes or Tribal entities that participated 
in the allotment proceeding for the FM channel being auctioned, 
regardless of new entrant status. Under this proposal, a Tribe or 
Tribal entity without a Commission license also would be entitled to an 
additional 25 percent new entrant bidding credit, for a total maximum 
bidding credit of 60 percent.
    The present record is inconclusive as to the ultimate effectiveness 
of Tribal bidding credits. Notwithstanding the useful input received, 
the Commission was unclear as to whether and how it could craft such 
credits so as to meaningfully advance its goals consistent with the 
competitive bidding mandate of 47 U.S.C. 309(j). In this regard, there 
is a necessary balance between Congress's directive to design 
competitive bidding systems to recover for the public a portion of the 
value of spectrum (see 47 U.S.C. 309(j)(3)(C)), which militates in 
favor of setting the credit as low as possible, and the need to ensure 
that Tribes and Tribal entities uniquely qualified to serve their 
communities receive licenses to do so, which militates in the other 
direction. Most Tribal applicants likely will qualify for new entrant 
bidding credits of up to 35 percent under the Commission's current 
rules (given the small number of Tribal-owned stations), and the record 
did not reflect whether and, if so, how much more of an additional 
credit would be necessary to address the particular bidding 
disadvantages that Tribes face. To the extent that such disadvantages 
are substantial, the Commission was concerned that even a 60 percent 
credit might not be sufficient to ensure realization of its policy 
goals in establishing the Tribal Priority.
    On further consideration, the Commission believed an alternative 
approach might be more effective to achieve its policy goals and would 
be more consistent with its statutory mandate to license spectrum in 
the public interest. The Commission thus sought comment on whether to 
require, as a threshold qualification to apply for a commercial FM 
channel allotted pursuant to the Tribal Priority, that applicants 
qualify for a Tribal Priority for the channel. This proposed 
requirement would be similar to procedures used for certain vacant FM 
allotments reserved for noncommercial educational (NCE) use. Under 
those procedures, which are intended to safeguard the policy objectives 
of the channel reservation process (namely, to add new NCE stations 
where listeners receive limited or no NCE service), applicants for a 
reserved channel must make a showing at the application stage similar 
to that required of channel reservation proponents at the allotment 
stage. Likewise, under the proposed approach here, a Tribe or Tribal 
entity applying for an FM channel allotted based on the Tribal Priority 
would be required to establish at the application stage its 
qualifications to provide the service for which the channel was 
specifically allotted.
    The Commission believes the proposed threshold qualifications would 
be more effective than Tribal bidding credits in advancing the Tribal 
Priority's goals. As set forth in the First R&O, the Priority is 
premised on the unique ability of Tribes and Tribal entities to serve 
their Tribal communities ``[b]ecause of their status as sovereign 
nations responsible for, among other things, `maintaining and 
sustaining their sacred histories, languages, and traditions.' '' 
(First R&O, 25 FCC Rcd at 1587-88). As the Commission previously noted, 
the identity of the service provider to Tribal areas is critical to 
Tribal Priority-based allocations. Whereas in AM and NCE radio services 
the Tribal Priority generally operates as a dispositive preference in 
the application process, guaranteeing that a qualified applicant will 
obtain the license, commercial FM licensing is a two-step process in 
which a dispositive preference at the initial, allotment stage does not 
guarantee the grant of a license in the second, application step. An 
unavoidable consequence of the auctions process is that Tribes and 
Tribal entities uniquely qualified to serve their communities may be 
outbid in the commercial FM application process by non-Tribal 
applicants that file mutually exclusive applications. At best, Tribal 
bidding credits can mitigate this concern by boosting the competitive 
position of Tribal applicants. They cannot, however, eliminate the risk 
of qualified Tribal applicants being outbid, thereby frustrating the 
Commission's goals in allocating the channel pursuant to the Tribal 
Priority. In contrast, the proposed threshold qualification requirement 
would ensure that only a Tribe or Tribal entity qualified to provide 
the unique service contemplated by the allocation is eligible for the 
license to provide that service. Such an approach would set the 
commercial FM service on the same footing as other radio services with 
regard to the Tribal Priority, and avoid undermining the Commission's 
policy goals in establishing the Tribal Priority.
    The Commission further believes the proposed threshold 
qualifications would be consistent with its statutory mandate under 47 
U.S.C. 309(j)(6)(E), which provides, in pertinent part, that 
``[n]othing in this subsection, or in the use of competitive bidding, 
shall * * * be construed to relieve the Commission of the obligation in 
the public interest to continue to use * * * threshold qualifications * 
* * in order to avoid mutual exclusivity in application and

[[Page 14364]]

licensing proceedings.'' The Commission believes the use of threshold 
qualifications would serve the public interest because the premise of 
the Tribal Priority is a Tribe's or Tribal entity's unique ability to 
serve the needs and interests of its local community. That premise 
distinguishes the proposal here from the grant of bidding credits to an 
FM applicant who successfully petitions for the allotment of a channel 
being auctioned, a proposal that the Commission rejected in 1998 as 
analogous to the pioneer preferences that Congress has specifically 
eliminated. The threshold qualification would be based on the Tribe's 
or Tribal entity's ability to fulfill the purpose for which the channel 
was allotted under the Tribal Priority, rather than on its 
participation in the allotment proceeding. Thus, eligible Tribes or 
Tribal entities may be eligible to apply for a channel allotted 
pursuant to the Tribal Priority even if they did not petition for the 
allotment. To the extent that mutually exclusive applications may still 
be filed under the proposed threshold qualifications approach, thus 
requiring competitive bidding, the bidders would be limited to 
qualified Tribes and Tribal entities, so the Commission's policy goals 
would not be frustrated. The Commission also asked whether to adopt an 
exception to the general prohibition of collusion set forth in 47 CFR 
1.2105(c) applicable to mutually exclusive applications in the 
commercial FM broadcast service, so that Tribes or Tribal entities that 
file mutually exclusive applications for a channel allotted pursuant to 
the Tribal Priority have an opportunity to resolve any mutual 
exclusivities through engineering solutions or settlement.
    The Commission seeks comment on the foregoing threshold 
qualifications proposal, the issues related to it that are discussed 
above, and on any and all additional issues that commenters believe it 
may raise. In particular, the Commission invites comment from the 
Tribal community on its potential utility in ensuring realization of 
the goals underlying the Tribal Priority. In the event no applicant 
meets the threshold qualifications for the Tribal allotment in a filing 
window, the Commission seeks comment on whether it should routinely 
include such allotments in subsequent windows. The Commission also 
seeks comment on when it should permit non-Tribal applicants to seek 
construction permits through the auctions process for allotments for 
which potential Tribal applicants have not expressed an interest. The 
Commission also invites further comment on Tribal bidding credits, on 
which issue it found the record to be inconclusive. The Commission 
welcomes additional input from commenters addressing the record 
deficiencies on this issue, such as evidence as to the particular 
bidding disadvantages that Tribes may face vis-[agrave]-vis non-Tribal 
bidders for broadcast radio licenses, as well as the capital 
requirements of Tribes and Tribal-owned entities to provide commercial 
FM service to Tribal lands. The Commission strongly encourages 
qualified Tribes and Tribal entities to take advantage of the Tribal 
Priority by filing rulemaking petitions for commercial FM allotments. 
With regard to the commercial FM service, the goals of the Tribal 
Priority can be realized only through the filing of such petitions. 
Finally, the Commission seeks comment on ways that it could promote a 
commercial Tribal radio service, including comment on potential 
barriers that may discourage Tribal participation in the auctions and 
licensing processes.

Comments and Reply Comments

    Pursuant to 47 CFR 1.415 and 1.419, interested parties must file 
comments on or before April 15, 2011, and must file reply comments on 
or before May 16, 2011. Comments may be filed using: (1) The 
Commission's Electronic Comment Filing System (ECFS); (2) the Federal 
Government's eRulemaking Portal, or (3) by filing paper copies.
    Comments may be filed electronically using the Internet by 
accessing the ECFS: http://www.fcc.gov/cbg/ecfs, or the Federal 
eRulemaking Portal: http://www.regulations.gov. Filers should follow 
the instructions provided on the Web sites for submitting comments. For 
ECFS filers, if multiple docket or rulemaking numbers appear in the 
caption of this proceeding, filers must transmit one electronic copy of 
the comments for each docket or rulemaking number referenced in the 
caption. In completing the transmittal screen, filers 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 <a href="/cdn-cgi/l/email-protection#f693959085b6909595d8919980"><span class="__cf_email__" data-cfemail="b9dcdadfcaf9dfdada97ded6cf">[email protected]</span></a>, and 
should include the following words in the body of the message, ``get 
form.'' A sample form and directions will be sent in response.
    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, filers 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 
(although the Commission continues to experience delays in receiving 
U.S. Postal Service mail). All filings must be addressed to the 
Commission's Secretary, Office of the Secretary, Federal Communications 
Commission. The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 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, DC 20554.
    Contact the FCC to request materials in accessible formats 
(braille, large print, electronic files, audio format, etc.) by e-mail 
at <a href="/cdn-cgi/l/email-protection#d89e9b9bede8ec98bebbbbf6bfb7ae"><span class="__cf_email__" data-cfemail="3f797c7c0a0f0b7f595c5c11585049">[email protected]</span></a>, or call the Consumer & Governmental Affairs Bureau 
at 202-418-0531 (voice), 202-418-7365 (TTY).
    The full text of the Further Notice of Proposed Rulemaking is 
available for inspection and copying during normal business hours in 
the FCC Reference Information Center, Room CY-A257, 445 12th Street, 
SW., Washington, DC 20554. The complete text may be purchased from the 
Commission's copy contractor, Best Copy and Printing, Inc., 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554. The full text may also 
be downloaded at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-30.pdf. Alternative formats are available to persons with 
disabilities by contacting Martha Contee at (202) 418-0260 or TTY (202) 
418-2555.

Ex Parte Rules

    This proceeding will be treated as a ``permit-but-disclose'' 
proceeding subject to the ``permit-but-disclose'' requirements under 
section 1.1206(b) of the Commission's rules (47 CFR 1.1206(b)). Ex 
parte presentations are permissible if disclosed in accordance with 
Commission rules, except during the Sunshine Agenda period when 
presentations, ex parte or otherwise, are generally prohibited. Persons 
making oral ex parte presentations are reminded that a memorandum 
summarizing a

[[Page 14365]]

presentation must contain a summary of the substance of the 
presentation and not merely a listing of the subjects discussed. More 
than a one- or two-sentence description of the views and arguments 
presented is generally required. Additional rules pertaining to oral 
and written presentations are set forth in 47 CFR 1.1206(b).

Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980, as amended (RFA), requires 
that a regulatory flexibility analysis be prepared for notice and 
comment rule making proceedings, unless the agency certifies that ``the 
rule will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. 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).
    As required by the RFA (5 U.S.C. 603), the Commission has prepared 
this Initial Regulatory Flexibility Analysis (IRFA) of the possible 
significant economic impact on a substantial number of small entities 
by the policies and rules proposed in the SFNPRM. 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 SFNPRM provided in paragraph 71 of the SFNPRM. The Commission 
will send a copy of this entire SFNPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (SBA). 
In addition, the SFNPRM and the IRFA (or summaries thereof) will be 
published in the Federal Register.

Need for, and Objectives of, the Proposed Rules

    This further rulemaking proceeding is initiated to obtain further 
comments concerning an alternate proposal to assist Tribes seeking to 
establish new commercial FM service to Tribal communities. In the 
FNPRM, the Commission proposed an auction bidding credit to Tribes and 
entities owned by Tribes. The Commission received only one proposal for 
a potential Tribal bidding credit: To grant Tribes a 35 percent Tribal 
Bidding Credit (TBC), to be added to any new entrant bidding credit for 
which they may qualify, to a maximum of 60 percent. The Commission 
believes this record is inconclusive to adopt a TBC, and believes it is 
unclear whether and how a TBC could be crafted to advance the dual 
goals of increasing Tribal ownership of radio facilities and maximizing 
the value of spectrum through competitive bidding, as mandated by 47 
U.S.C. 309(j). On further consideration, the Commission determined that 
an alternative approach would more effectively achieve the policy goals 
underlying the Tribal Priority adopted in the First R&O in this 
proceeding, and be more consistent with its statutory mandate (see 47 
U.S.C. 309(j)(6)(e)).
    Specifically, the Commission seeks comment on whether to require, 
as a threshold qualification to apply for a commercial FM channel 
allotted pursuant to the Tribal Priority, that applicants qualify for a 
Tribal Priority for that channel. Such an approach is consistent with 
other procedures used by the Commission, such as those used to reserve 
vacant FM allotments for noncommercial educational (NCE) use. 
Additionally, while the Tribal Priority operates as a dispositive 
preference in the AM commercial and FM NCE application contexts, as 
currently formulated the priority is not dispositive for FM commercial 
stations, because a Tribe that adds an FM allotment using the Tribal 
Priority may still be outbid at auction by a non-Tribal applicant. The 
alternative approach proposed by the Commission would correct this 
asymmetry, and would also more effectively ensure that FM allotments 
added using the Tribal Priority are ultimately licensed to Tribes, who 
would use such FM channels for their intended purposes of promoting 
Tribal language, culture, and self-government. The Commission therefore 
seeks comment on this alternative approach and its potential 
ramifications, including whether non-Tribal applicants should be 
allowed to apply for FM allotments added using the Tribal Priority, but 
for which no Tribe expresses interest. The Commission also seeks 
additional input from commenters on the TBC, and on other ways in which 
the Commission could promote commercial Tribal radio service, including 
comment on potential barriers that may discourage Tribal participation 
in the broadcast auction and licensing processes.

Legal Basis

    The authority for this proposed rulemaking is contained in Sections 
1, 2, 4(i), 303, 307, and 309(j) of the Communications Act of 1934, 47 
U.S.C. 151, 152, 154(i), 303, 307, and 309(j).

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rules 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. The RFA generally defines the term 
``small entity'' as encompassing the terms ``small business,'' ``small 
organization,'' and ``small governmental entity.'' In addition, the 
term ``small Business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. 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 SBA.

Radio Stations

    The proposed rules and policies potentially will apply to all AM 
and FM radio broadcasting applicants, and proponents for new FM 
allotments, who qualify for the Tribal Priority adopted in the First 
R&O in this proceeding. The ``Radio Stations'' Economic Census category 
``comprises establishments primarily engaged in broadcasting aural 
programs by radio to the public. Programming may originate in their own 
studio, from an affiliated network, or from external sources. The SBA 
has established a small business size standard for this category, which 
is: Such firms having $7 million or less in annual receipts. According 
to BIA Advisory Services, L.L.C., MEDIA Access Pro Database on January 
20, 2011, 10,820 (97%) of 11,127 commercial radio stations have revenue 
of $7 million or less. Therefore, the majority of such entities are 
small entities. We note, however, that in assessing whether a business 
concern qualifies as small under the above size standard, business 
affiliations must be included. In addition, to be determined to be a 
``small business,'' the entity may not be dominant in its field of 
operation. We note that it is difficult at times to assess these 
criteria in the context of media entities, and our estimate of small 
businesses may therefore be over-inclusive.

Description of Projected Reporting, Recordkeeping and Other Compliance 
Requirements

    The proposed rule and procedural changes may, in some cases, impose 
different reporting requirements on

[[Page 14366]]

potential radio licensees and permittees, insofar as they would require 
or allow certain applicants to demonstrate their qualifications to 
apply for an FM channel allotted using the Tribal Priority. However, 
the information to be filed is already familiar to broadcasters, and 
the information requested to claim the Tribal Priority is similar to 
current section 307(b) showings, so any additional burdens would be 
minimal.
    To the extent that other applicants would be disadvantaged by 
Tribes qualifying for the Tribal Priority and the proposed alternative 
``threshold qualifications'' approach, the Commission believes that 
such burdens would be offset by the fact that the Tribal Priority is 
designed to redress inequities in the number of Tribal radio licensees, 
compared to the population of Tribal citizens in the United States and 
the fact that some of these citizens were deprived of their original 
Tribal lands. The Tribal Priority, then, not only helps the Commission 
to meet its goals of ownership and program diversity, but also furthers 
the Federal government's obligations toward Tribes to assist them in 
promulgating Tribal languages and cultures, and to support Tribal self-
government. The approach proposed by the Commission would also apply 
only to FM allotments added to the Table of Allotments using the Tribal 
Priority, and thus would apply only to proposed facilities serving 
primarily Tribal communities. Adoption of the threshold qualifications 
approach would thus assist Tribes in pursuing commercial radio 
licensing opportunities and would enable ownership of facilities added 
to the FM Table of Allotments by Tribes or Tribal-owned entities that 
are charged with promoting Tribal self-governance.

Steps Taken To Minimize Significant 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 (among others): (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities (5 U.S.C. 603(b)).
    In the SFNPRM, the Commission seeks to provide additional 
opportunities for participation by Tribes seeking commercial radio 
facilities, especially FM commercial stations. The Commission seeks 
comment as to whether its goals could be more effectively accomplished 
through the use of a ``threshold qualifications'' approach, limiting 
applications for Tribal-priority-added FM allotments to those filed by 
Tribes or Tribal-owned entities. The Commission is open to 
consideration of alternatives to the proposals under consideration, as 
set forth herein, including but not limited to alternatives that will 
minimize the burden on broadcasters, most of whom are small businesses. 
There may be unique circumstances these entities may face, and we will 
consider appropriate action for small broadcasters when preparing a 
Third Report and Order in this matter.

Federal Rules Which Duplicate, Overlap, or Conflict With, the 
Commission's Proposals

    None.
    This document is available in alternative formats (computer 
diskette, large print, audio record, and Braille). Persons with 
disabilities who need documents in these formats may request them by e-
mail at <a href="/cdn-cgi/l/email-protection#53151010666367133530307d343c25"><span class="__cf_email__" data-cfemail="81c7c2c2b4b1b5c1e7e2e2afe6eef7">[email protected]</span></a>, or call the Consumer & Governmental Affairs 
Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Ordering Clause

    Accordingly, it is ordered, pursuant to the authority contained in 
sections 1, 2, 4(i), 303, 307, and 309(j) of the Communications Act of 
1934, 47 U.S.C. 151, 152, 154(i), 303, 307, and 309(j), that this 
Second Report and Order, First Order on Reconsideration, and Second 
Further Notice of Proposed Rule Making is adopted.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2011-6146 Filed 3-15-11; 8:45 am]
BILLING CODE 6712-01-P


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