18942 Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: March 7, 2011. 

Sandra K. Knight, 

Deputy Federal Insurance and Mitigation 

Administrator, Mitigation, Department of 

Homeland Security, Federal Emergency 

Management Agency. 

[FR Doc. 2011–8117 Filed 4–5–11; 8:45 am] 

BILLING CODE 9110–12–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 73 and 74 

[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: Final rule. 

SUMMARY: In this document, the 

Commission adopted a number of 

procedures, procedural changes, and 

clarifications of existing rules and 

procedures, designed to promote 

ownership and programming diversity, 

especially by Native American tribes, 

and to promote the initiation and 

retention of radio service in and to 

smaller communities and rural areas. 

DATES: Effective May 6, 2011, except for 

the amendment to § 73.7000, which 

contains information collection 

requirements that have not been 

approved by OMB. The Commission 

will publish a document in the Federal 

Register announcing the effective date. 

ADDRESSES: Peter Doyle or Thomas 

Nessinger, Federal Communications 

Commission, Media Bureau, Audio 

Division, 445 12th Street, SW., Room 

2–B450, Washington, DC 20445. 

FOR FURTHER INFORMATION CONTACT: 

Peter Doyle, Chief, Media Bureau, 

Audio Division, (202) 418–2700 or 

Peter.Doyle@fcc.gov; Thomas Nessinger, 

Attorney-Advisor, Media Bureau, Audio 

Division, (202) 418–2700 or 

Thomas.Nessinger@fcc.gov. 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 

Cathy.Williams@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Second 

Report and Order and First Order on 

Reconsideration (Second R&O), FCC 11– 

28, adopted and released March 3, 2011. 

The full text of the Second R&O is 

available for inspection and copying 

during regular business hours in the 

FCC Reference Center, 445 Twelfth 

Street, SW., Room CY–A257, Portals II, 

Washington, DC 20554, and may also be 

purchased from the Commission’s copy 

contractor, BCPI, Inc., Portals II, 445 

Twelfth Street, SW., Room CY–B402, 

Washington, DC 20554. Customers may 

contact BCPI, Inc. via their Web site, 

http://www.bcpi.com, or call 1–800– 

378–3160. 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 contact 

the FCC by e-mail: FCC504@fcc.gov or 

phone: 202–418–0530 or TTY: 202–418– 

0432. 

Paperwork Reduction Act of 1995 

Analysis 

This Second R&O adopts new or 

revised information collection 

requirements, subject to the Paperwork 

Reduction Act of 1995 (PRA) (Pub. L. 

104–13, 109 Stat 163 (1995) (codified in 

44 U.S.C. 3501–3520)). These 

information collection requirements 

will be submitted to the Office of 

Management and Budget (OMB) for 

review under section 3507(d) of the 

PRA. The Commission will publish a 

separate notice in the Federal Register 

inviting comment on the new or revised 

information collection requirements 

adopted in this document. The 

requirements will not go into effect until 

OMB has approved them and the 

Commission has published a notice 

announcing the effective date of the 

information collection requirements. In 

addition, we note that pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4), we previously sought 

specific comment on how the 

Commission might ‘‘further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees.’’ 

Synopsis of Order 

1. In the Second R&O, the 

Commission addressed one of the issues 

set forth in the Further Notice of 

Proposed Rule Making (FNPRM) that 

accompanied the First Report and Order 

in this proceeding (75 FR 9797, March 

4, 2010, FCC 10–24, rel. Feb. 23, 2010) 

(First R&O), and additionally addressed 

those issues set forth in the Notice of 

Proposed Rule Making in this 

proceeding, 24 FCC Rcd 5239 (2009) 

(Rural NPRM) that were not addressed 

in the First R&O. It set forth a waiver 

standard for Native American Tribes 

and Alaska Native Villages (Tribes) 

seeking to avail themselves of the Tribal 

Priority adopted in the First R&O, but 

that do not have Tribal Lands as defined 

by the Commission. The Tribal Priority 

as adopted requires that a Tribe or 

Tribal-owned entity proposing a new 

radio station qualifying for the Tribal 

Priority must show that 50 percent or 

more of the proposed station’s signal 

covers Tribal Lands. Not all Tribes 

possess reservations or other Tribal 

Lands, however. Because the record was 

not fully developed on this issue, rather 

than set forth an alternate coverage 

standard, the Commission stated it 

would be receptive to requests to waive 

the requirement of Tribal Land 

coverage, setting forth various factors 

that would be considered probative in a 

determination of the functional 

equivalent of Tribal Lands. The Second 

R&O also adopted some of the changes 

proposed in the Rural NPRM in the 

Commission’s procedures for awarding 

new channel allotments and 

assignments under section 307(b) of the 

Communications Act, 47 U.S.C. 307(b); 

adopted a rule prohibiting FM translator 

applicants from proposing to change 

channels from the non-reserved to 

reserved bands and vice-versa; and 

codified existing standards for 

determining nighttime mutual 

exclusivity between applications to 

provide AM service that are filed in the 

same window. 

2. In the FNPRM, the Commission 

noted the concern of some commenters 

that the Tribal Priority, as originally 

adopted in the First R&O, would benefit 

only those Tribes possessing Tribal 

Lands, as the Commission defined that 

term in the First R&O. The requirement 

that at least 50 percent of the proposed 

station’s principal community contour 

cover Tribal Lands was designed to 

ensure that a facility qualifying for the 

Tribal Priority is primarily used for its 

intended purpose, namely, to assist 

Tribes in their mission of promulgating 

Tribal language and culture, promoting 

Tribal self-governance, and serving the 

specific needs of Tribal communities. 

Commenters noted, however, that while 

there are 563 Tribes in the United 

States, there are only 312 reservations, 

with some Tribes occupying more than 

one reservation. Thus, not all Tribes 

could avail themselves of the Tribal 

Priority as adopted. 

3. The record on this issue was not as 

well-developed as the Commission 

anticipated. Commenters noted that the 

situations of different Tribes are 

extremely varied and are likely to 

require different showings, necessitating 

flexible standards. The Commission 

thus decided against adopting a specific 

standard for defining a functional 

equivalent of Tribal Lands. Rather than 

modify the Tribal Priority at this time, 


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the Commission encouraged Tribes 

lacking Tribal Lands to seek waiver in 

appropriate cases of the tribal coverage 

requirements of the Tribal Priority. 

Because, as noted in the First R&O, 

approximately two-thirds of all Tribal 

citizens do not live on Tribal Lands, the 

Commission recognized the potential 

need for the availability of a Tribal 

Priority in such circumstances, and will 

accordingly be receptive to waiver 

requests that demonstrate waiver would 

serve the goals of the Tribal Priority— 

to enable the Tribe to provide radio 

service uniquely devoted to the needs, 

language, and culture of the Tribal 

community—because a majority of the 

proposed service would cover the 

functional equivalent of Tribal Lands. 

4. A waiver of the tribal coverage 

provisions of the Tribal Priority should 

be formally requested by an official of 

a federally recognized Tribe who has 

proper jurisdiction and is empowered to 

speak for the Tribe. Beyond that 

requirement, as is the case with any 

waiver request, an applicant seeking to 

establish eligibility for the Tribal 

Priority may submit any evidence 

probative of a connection between a 

defined community or area and the 

Tribe itself. Such a waiver showing 

should explain that the communities or 

areas associated with the Tribe do not 

fit the definition of Tribal Lands set 

forth in the First R&O. A waiver 

showing should also detail how a 

proposed service to the area would aid 

the Tribe in serving the needs and 

interests of its citizens in that 

community, and thus further the goals 

of the Tribal Priority. Factors probative 

of a geographically identifiable Tribal 

population grouping might include, for 

example, evidence of an area to which 

the Tribe delivers services to its 

citizens, or evidence of an area to which 

the federal government delivers services 

to Tribal members, for example, federal 

service areas used by the Indian Health 

Service, Department of Energy, or 

Environmental Protection Agency. 

Probative evidence might also include 

evidence of Census Bureau-defined 

tribal service areas, used by agencies 

such as the Department of Housing and 

Urban Development. Evidence that a 

Tribal government has a defined seat, 

such as a headquarters or office, in 

combination with evidence that Tribal 

citizens live and/or are served by the 

Tribal government in the immediate 

environs of such a governmental seat, 

would also be probative of a nexus 

between that community and the Tribe. 

Further, absent a physical seat of Tribal 

government, a Tribe might, for example, 

provide evidence that a majority of 

members of the Tribal council or board 

live within a certain radius of the 

proposed station (similar to 47 CFR 

73.7000, under which an applicant for 

a noncommercial educational radio 

station may qualify for a ‘‘local 

applicant’’ credit by establishing that it 

is physically headquartered, has a 

campus, or has 75 percent of its 

governing board living within 25 miles 

of the reference coordinates of the 

proposed community of license). An 

applicant might also provide a showing 

under the standard enunciated in 25 

CFR 83.7(b)(2)(i), that more than 50 

percent of Tribal members live in a 

geographical area exclusively or almost 

exclusively composed of members of the 

Tribe. Additionally, tribes might 

provide other indicia of community, 

such as Tribal institutions (e.g., 

hospitals or clinics, museums, 

businesses) or activities (e.g., 

conferences, festivals, fairs). 

5. Regardless of the waiver showing 

provided, an applicant seeking to take 

advantage of the Tribal Priority must set 

forth a defined area for the functional 

‘‘Tribal Lands’’ to be covered, and the 

community on those lands that would 

be considered the community of license. 

This showing is necessary to duplicate, 

as closely as possible, the Tribal Land 

coverage provisions of the Tribal 

Priority, and also to make 

determinations such as community 

coverage. Additionally, the showing 

should demonstrate the predominantly 

Tribal character of the coverage area 

sought, and that such area does not 

include regions so non-Native in their 

character or location as to defeat the 

shared purposes of both the 

Commission and the Tribes, namely, to 

enable Tribes to serve their citizens, to 

perpetuate Tribal culture, and to 

promote self-government. The 

Commission found that the use of 

waivers to establish the equivalent of 

Tribal Lands will serve the public 

interest by affording maximum 

flexibility to Tribes in non-landed 

situations, particularly given that the 

circumstances of such Tribes are so 

varied. In evaluating such waiver 

requests, the Commission noted that it 

will delineate the ‘‘Tribal Lands’’ 

equivalent as narrowly as possible, 

viewing most favorably those proposals 

that seek facilities narrowly designed, to 

the extent feasible under technical and 

geographic constraints, to provide 

service to Tribal citizens rather than to 

non-Tribal members living in adjacent 

areas or communities. 

6. In the Rural NPRM, the 

Commission observed that new 

allotments for FM channels and, 

especially, awards for new AM stations 

were being made based on either (a) 

dispositive 47 U.S.C. 307(b) (section 

307(b)) preferences under Priority (3) of 

the Commission’s allotment priorities, 

to proponents for first local 

transmission service, at communities 

located in or very near large Urbanized 

Areas, or (b) dispositive preferences 

under Priority (4), ‘‘other public interest 

matters,’’ based solely upon the 

differential in raw population totals to 

be served under the proposal. This has 

led to a disproportionate number of new 

FM allotments and AM construction 

permits being awarded as additional 

services to already well-served 

urbanized areas, in some cases at the 

expense of smaller communities or rural 

areas that received fewer services. The 

Commission noted that the vast majority 

of mutually exclusive groups of 

applications for new AM stations were 

being resolved under section 307(b), 

rather than through competitive 

bidding, pursuant to 47 U.S.C. 309(j) 

(section 309(j)). The Commission 

expressed the same concerns with 

regard to moves of stations (i.e., changes 

of community of license) from smaller 

communities and rural areas toward 

urbanized areas, because the same 

section 307(b) criteria are used to 

compare the applicant’s former and new 

community and/or service areas. 

7. Accordingly, the Commission 

tentatively concluded that it should 

modify its policies to more equitably 

distribute radio service among urban 

and rural areas, and to promote the 

resolution of mutual exclusivity through 

competitive bidding where section 

307(b) principles do not dictate a 

preference among communities. First, 

the Commission tentatively concluded 

that it should establish a rebuttable 

presumption that an FM allotment or 

AM new station proponent seeking to 

locate at a community in an urbanized 

area, or that would cover or could be 

modified to cover 50 percent or more of 

an urbanized area, was in fact proposing 

a service to the entire urbanized area, 

and that accordingly it would not award 

such an applicant a preference for 

providing first local transmission 

service under Priority (3) of the FM 

allotment priorities to a small 

community within that area. Second, in 

the case of applicants for new AM 

stations, the Commission tentatively 

concluded that it should change its 

application of Priority (4)—other public 

interest matters—and sought comment 

on alternative proposals in this regard. 

The alternatives included ceasing 

treating Priority (4) as a dispositive 

section 307(b) criterion, or a more 

narrowly defined application of Priority 


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18944 Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations 

(4), under which no dispositive 

preference would be awarded if the 

population in 75 percent of the 

proposed station’s principal community 

contour already receives five or more 

aural services, and the proposed 

community of license already has more 

than five transmission services, except 

where the applicant can make a 

successful showing as set forth in the 

case of Greenup, Kentucky and Athens, 

Ohio, 2 FCC Rcd 4319 (MMB 1987) 

(Greenup). An applicant whose 

proposed contour did not meet the five 

reception/five transmission service 

criteria would proceed to a modified 

Priority (4) analysis. The Commission 

suggested that, as part of this modified 

analysis, a Greenup showing, involving 

calculation of a Service Value Index 

(SVI), which takes into account both 

population and the number of reception 

services, could be useful. The 

Commission tentatively concluded that, 

in such a situation, it would award a 

dispositive section 307(b) preference 

under Priority (4) if the SVI difference 

was 50 percent or greater. Otherwise, 

the application would proceed to 

competitive bidding. Third, the 

Commission proposed an ‘‘underserved 

listeners’’ preference, that would be coequal with Priorities (2) and (3), under 

which it would grant a section 307(b) 

preference to an applicant proposing to 

provide third, fourth, or fifth aural 

reception service to a substantial 

portion of its covered population. 

8. With regard to proposed 

community of license change 

applications, the Commission 

tentatively concluded that there should 

be an absolute bar on proposals that 

would leave populations with no or 

only one reception service. The 

Commission also proposed to apply the 

same Priority (3) standards to 

community of license changes as it 

proposed for new FM allotment and AM 

applications, when determining 

whether a proposed community change 

represents a preferential arrangement of 

allotments. Finally, the Commission 

sought comment on a number of other 

proposals: whether to disallow 

community changes that would remove 

third, fourth, or fifth reception service to 

a significant population; whether to bar 

removal of a second local transmission 

service at a community; and whether 

provision of service to underserved 

listeners should outweigh a proposal of 

first local transmission service, in both 

the community change and new station/ 

allotment contexts. 

9. Many commenters opposed these 

changes, arguing that they were 

unnecessary. They contended that 80 

percent of the U.S. population lived in 

urbanized areas, and that locating radio 

stations where most people live was the 

most efficient use of spectrum and of 

distributing radio service. Some 

commenters also objected that the 

Commission’s proposed changes would 

have a disproportionate effect on 

minorities and radio stations owned by 

and programming to minorities, as most 

of their audiences live in urbanized 

areas. The Commission observed that 

section 307(b)’s purpose was to ensure 

that all Americans, whether living in 

large urbanized areas or small 

communities or rural areas, had access 

to a variety of radio services, to the 

extent that demand exists to provide 

such service. The limited goal of the 

Rural NPRM was to provide greater 

opportunities for those applicants who 

propose such service with the 

expectation that it would be viable, to 

the extent that they are mutually 

exclusive with applicants proposing yet 

more service to urbanized areas whose 

residents already have an abundance of 

radio listening choices. The 

Commission further rejected the 

contention that its proposals would 

disproportionately affect minority 

broadcasters and listeners, noting that 

while most members of minority groups 

live in urbanized areas, most Americans 

generally live in such areas, and in 

roughly the same proportions. The same 

considerations apply in rural and 

smaller communities, that also have 

minority populations that are equally 

deserving of radio service. The 

Commission thus stated that the 

speculative benefit of additional service 

in urban areas did not outweigh its 

concern that the current priorities fail to 

promote new service, or the retention of 

existing service, at less well-served 

communities and that the current 

allocation priorities do not realistically 

reflect broadcasters’ actual economic 

incentives. The Commission also took 

into account a commenter’s analysis 

showing that, in many cases, the 

community of license of a station 

represented a small percentage of the 

total population covered by the station, 

and often was not the largest 

community served by the station. It 

concluded that awards of section 307(b) 

preferences should take into account the 

totality of a station’s service, not merely 

the community of license designated by 

the applicant or proponent. 

10. The Commission adopted its 

proposals, in somewhat modified form, 

noting that the procedural changes 

would take place in three related, but 

distinct, contexts: (1) Applications for 

new AM stations; (2) proposals for new 

commercial FM allotments; and (3) 

applications to change the community 

of license of an existing radio station (in 

which the moving station’s new 

facilities are compared to its existing 

facilities under section 307(b), for a 

determination of whether the new 

community constitutes a preferential 

arrangement of allotments). 

11. With regard to applications for 

new AM radio stations, the Commission 

noted its Congressional mandate to use 

competitive bidding as the primary 

means of awarding new service. As a 

threshold matter, the Commission will 

restrict the award of dispositive section 

307(b) preferences among mutually 

exclusive AM applications to those 

situations where there is a significant 

difference between the proposals. First, 

with regard to proposals for first local 

transmission service under Priority (3), 

it adopted its tentative conclusion that 

any new AM station proposal for a 

community located within an urbanized 

area, that would place a daytime 

principal community signal over 50 

percent or more of an urbanized area, or 

that could be modified to provide such 

coverage, will be presumed to be a 

proposal to serve the urbanized area 

rather than the proposed community. 

This is the standard the Commission has 

heretofore used in determining whether 

an applicant for a new AM station must 

provide a showing under Faye and 

Richard Tuck, 3 FCC Rcd 5374, 5376 

(1988) (Tuck). Recognizing the 

possibility that the majority of a 

proposed station’s daytime principal 

community contour could cover part of 

an urbanized area without necessarily 

triggering the urbanized area service 

presumption—for example, when the 

proposed contour covers only 45 

percent of an urbanized area, but 

urbanized area coverage constitutes well 

over half of the contour—the 

Commission stated its willingness to 

entertain challenges, at the appropriate 

stage of the application or allotment 

proceeding, detailing the reasons the 

proposal should nonetheless be treated 

as one to serve the urbanized area rather 

than the named community of license. 

For AM facilities, the determination of 

whether a proposed facility ‘‘could be 

modified’’ to cover 50 percent or more 

of an urbanized area will be limited to 

a consideration of rule-compliant minor 

modifications to the proposal, without 

changing the proposed antenna 

configuration or site, and spectrum 

availability as of the close of the filing 

window. 

12. The urbanized area service 

presumption may be rebutted by a 

compelling showing (1) That the 

proposed community is truly 

independent of the urbanized area, (2) 


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Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations 18945 

1See Lincoln and Sherman, Illinois, 

Memorandum Opinion and Order, 23 FCC Rcd 

15835, 15842–43 (2008) (Commissioners Copps and 

Adelstein, jointly dissenting); Evergreen, Alabama 

and Shalimar, Florida, Memorandum Opinion and 

Order, 23 FCC Rcd 15846, 15852–53 (2008) 

(Commissioners Copps and Adelstein jointly 

dissenting). 

of the community’s specific need for an 

outlet for local expression separate from 

the urbanized area and (3) the ability of 

the proposed station to provide that 

outlet. The required compelling 

showing may be based on the existing 

three-pronged Tuck test (see Tuck, 3 

FCC Rcd at 5378). However, the Tuck 

factors, especially the eight-part test of 

independence, will be more rigorously 

scrutinized than has sometimes been the 

case in the past. For example, an 

applicant should submit actual evidence 

of the number of local residents who 

work in the community, not merely 

extrapolations from commute times or 

observations that there are businesses 

where local residents could work if they 

so chose.1 Similarly, the record should 

include actual evidence that the 

community’s residents perceive 

themselves as separate and distinct from 

the urbanized area, rather than merely 

self-serving statements to that effect 

from town officials or business leaders. 

Moreover, certain of the Tuck 

independence factors have become 

increasingly anachronistic, and 

accordingly will not be given as much 

weight. For example, as local telephone 

companies have started to discontinue 

routine distribution of telephone 

directories, factor five is less meaningful 

than it once was. Similarly, with the 

closing of even major city newspapers, 

the lack of a local newspaper should not 

necessarily be fatal to a finding of 

independence, though it is still a 

relevant factor. However, the mere 

existence of a city- or town-posted site 

on the World Wide Web is not a 

substitute for evidence of independent 

media also covering a community, as a 

means of demonstrating a community’s 

independence from an urbanized area. 

In addition to demonstrating 

independence, a compelling showing 

sufficient to rebut the urbanized area 

service presumption must also include 

evidence of the community’s need for 

an outlet for local expression. For 

example, an applicant may rely on 

factors such as the community’s rate of 

growth; the existence of substantial 

local government necessitating 

coverage; and/or physical, geographical, 

or cultural barriers separating the 

community from the remainder of the 

urbanized area. An applicant will be 

afforded wide latitude in attempting to 

overcome the presumption, but a 

compelling showing will be required. 

13. The Commission did not believe 

it necessary or desirable to eliminate 

completely an applicant’s ability to 

make its public interest case for 

additional service at a community under 

Priority (4), other public interest 

matters. It nonetheless found that large 

service population differentials between 

competing proposals should not suffice, 

in and of themselves, for a dispositive 

section 307(b) preference under Priority 

(4), especially when the proposed new 

population is already abundantly 

served. Such a preference often unfairly 

disadvantages those who would provide 

additional media voices to those 

needing them most. The Commission 

thus adopted, in modified form, the 

proposal to emphasize underserved 

populations, that is, those receiving 

fewer than five aural services, under 

Priority (4). Accordingly, a new AM 

applicant proposing third, fourth, and/ 

or fifth reception service to at least 25 

percent of the population in the 

proposed primary service area, as 

defined in 47 CFR 73.182(d), where the 

proposed community of license has two 

or fewer local transmission services, 

may receive a dispositive section 307(b) 

preference under Priority (4). For 

purposes of this analysis, ‘‘community 

of license’’ will be considered to be the 

entire urbanized area if the proposed 

community of license is subject to the 

urbanized area service presumption. 

14. The Commission further adopted 

the proposal to allow, but not require, 

new AM applicants not meeting the 

above-stated 25 percent/two 

transmission service standard to submit 

an SVI showing as set forth in Greenup 

(6 FCC Rcd at 1495) in order to receive 

a dispositive Priority (4) preference. An 

applicant opting to present a Greenup 

analysis must demonstrate a 30 percent 

differential in SVI between its proposal 

and the next-highest ranking proposal 

before the Commission will award a 

dispositive section 307(b) preference 

under Priority (4). The Commission in 

Greenup found an 18.8 percent SVI 

differential to be dispositive in an FM 

allotment case. Because, unlike in an 

FM allotment proceeding, an applicant 

for a new AM station need not receive 

a section 307(b) preference, but may 

proceed to auction, a higher SVI 

differential should be required in this 

context. A 30 percent SVI differential is 

sufficiently high to demonstrate that a 

proposed community merits a 

dispositive section 307(b) preference, 

but is not so low as to undermine 

section 309(j)’s general preference for 

awarding new commercial stations 

primarily through competitive bidding. 

An applicant receiving a dispositive 

section 307(b) preference under Priority 

(4) will, of course, be subject to the 

prohibition on reducing service set forth 

in the First R&O (25 FCC Rcd at 1598– 

99) and codified in 47 CFR 

73.3571(k)(i). 

15. Except under the circumstances 

outlined above, dispositive section 

307(b) preferences will not be granted 

under Priority (4). Thus, as is currently 

the practice, mutually exclusive 

application groups in which no 

applicant receives a section 307(b) 

preference will proceed to competitive 

bidding. These new procedures will not 

be applied to pending applications for 

new AM stations and major 

modifications to AM facilities filed in 

the 2004 AM Auction 84 filing window, 

but will only apply to those applications 

filed after the Second R&O’s release 

date. This is because the AM Auction 84 

applications have been pending for 

many years, and in most cases the 

applicants have invested considerable 

resources in technical studies, 

settlements and technical resolutions, 

and section 307(b) showings, thus 

applying the new procedures to such 

applications would place undue 

hardship on the applicants. 

16. With regard to proposals for new 

allotments to be added to the FM Table 

of Allotments (47 CFR 73.202), although 

the section 307(b) considerations of fair, 

efficient, and equitable distribution of 

new radio service in the non-reserved 

FM band are much the same as they are 

in the AM band, the mechanism for 

evaluating the respective section 307(b) 

merits of competing allotment proposals 

is quite different, insofar as competing 

proposals for new FM allotments cannot 

simply be sent to auction if no 

dispositive section 307(b) difference can 

be found. Accordingly, the standards for 

awarding section 307(b) preferences 

cannot be as strict or as limited as those 

set forth above with regard to 

dispositive section 307(b) preferences 

for new AM applications. 

17. As regards Priority (3) (first local 

transmission service) preferences, the 

Commission adopted the same 

urbanized area service presumption set 

forth above. The determination of 

whether a proposed facility ‘‘could be 

modified’’ to cover 50 percent or more 

of an urbanized area will be made based 

on an applicant’s certification that there 

are no existing towers in the area to 

which, at the time of filing, the 

applicant’s antenna could be relocated 

pursuant to a minor modification 

application to serve 50 percent or more 


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18946 Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations 

2Specifically, a proponent would need to certify 

that there could be no rule-compliant minor 

modification on the proposed channel to provide a 

principal community signal over 50 percent or more 

of an Urbanized Area, in addition to covering the 

proposed community of license. In doing so, 

proponents will be required to consider all existing 

registered towers in the Commission’s Antenna 

Structure Registration database, in addition to any 

unregistered towers currently used by licensed 

radio stations. Furthermore, all applicants and 

allotment proponents must consider widely-used 

techniques, such as directional antennas and 

contour protection, when certifying that the 

proposal could not be modified to provide a 

principal community signal over the community of 

license and 50 percent or more of an Urbanized 

Area. While this is not a conclusive test, it is one 

that the Commission will treat as establishing a 

rebuttable presumption of an allotment that could 

not be modified to serve both the majority of an 

Urbanized Area and the community of license. 

3Such explanation need not be a granular 

accounting of the reception service provided each 

individual or population pocket in the proposed 

contour. A detailed summary should suffice, for 

example, to point out that 50,000 people would 

receive 20 or more services, 10,000 would receive 

between 15 and 20 services, 7,000 would receive 

between 10 and 15 services, etc. The showing 

should, however, state what service the modified 

facility would represent to the majority of the 

population gaining new service, e.g., the 16th 

service to 58 percent of the population, and the 

corresponding service that the majority of the 

population losing service would lose, e.g., 60 

percent of the current coverage population would 

lose the ninth reception service. New service or 

service losses to underserved listeners should be 

detailed. 

of an Urbanized Area.2 If a proposal 

does not qualify for a first local 

transmission service preference, the 

Commission will consider proposals to 

provide third, fourth, and/or fifth 

reception service to more than a de 

minimis population under Priority (4), 

as is the case now. However, the 

Commission directed the staff to accord 

greater weight to service to underserved 

populations than to the differences in 

raw population totals, concluding that 

raw population total differentials should 

be considered only after other Priority 

(4) factors that a proponent might 

present, including the number of 

reception services available to the 

proposed communities and reception 

areas, population trends in the proposed 

communities of license/reception areas, 

and/or number of transmission services 

at the respective communities. Because 

it is impossible to anticipate every 

possible competing allotment proposal, 

the Commission did not eliminate 

outright any factor, including reception 

population, for determining dispositive 

section 307(b) preferences in the FM 

allotment context. For now, the 

Commission limited its direction to a 

determination that, of all considerations 

in making new FM allotments, raw 

reception population totals—of 

whatever magnitude—should receive 

less weight than other legitimate 

service-based considerations. These 

procedures shall not apply to any nonfinal FM allotment proceeding, 

including ‘‘hybrid’’ coordinated 

application/allotment proceedings, in 

which the Commission has modified a 

radio station license or granted a 

construction permit. Although it is well 

settled that the Commission may apply 

modified rules to applications that are 

pending at the time of rule modification, 

substantial equitable considerations 

apply to these categories of proceedings. 

Affected licensees and permittees may 

have expended considerable sums or 

entered into agreements following such 

actions. Moreover, filings and licensing 

actions subsequent to a license 

modification could impose significant 

burdens on parties forced to take steps 

to protect formerly licensed facilities. 

The revised procedures will apply, 

however, to all pending petitions to 

amend the FM Table of Allotments, and 

to all other open FM allotment 

proceedings and non-final FM allotment 

orders. 

18. Licensees and permittees seeking 

to change community of license differ 

from applicants in the above two 

categories insofar as, for section 307(b) 

purposes, they do not face comparative 

analysis with respect to communities 

proposed by competing applicants. 

Rather, the section 307(b) comparison is 

between the applicant’s present 

community and the community to 

which it seeks to relocate (see 47 CFR 

73.3571(j)(2) and 73.3573(g)(2)). The 

applicant must demonstrate that the 

facility at the new community 

represents a preferential arrangement of 

allotments (FM) or assignments (AM) 

over the current facility. In such cases, 

the Commission adopted certain 

changes designed to require more 

specificity on the part of licensees and 

permittees regarding the actual effects of 

the proposed moves, while still 

affording flexibility to propose truly 

favorable arrangements of radio 

allotments and assignments. First, it 

adopted the urbanized area service 

presumption outlined above, which may 

be rebutted in the same manner as set 

forth herein, and will be subject to the 

same determinations described above as 

to whether the proposed facility ‘‘could 

be modified’’ to cover over 50 percent of 

an urbanized area. Additionally, 

applicants not qualifying for Priority (3) 

preferences under this standard will 

still be able to make a Priority (4) 

showing that will require them to 

provide a more detailed explanation of 

the claimed public interest benefits of 

the proposed move. 

19. With regard to Priority (4) claims, 

the Commission sought, again, to limit 

the presumption that raw net 

population gains, in and of themselves, 

represent a preferential arrangement of 

allotments or assignments under section 

307(b). It imposed an absolute bar to any 

facility modification that would create 

white or gray area. The Commission also 

stated it would strongly disfavor any 

change that would result in the net loss 

of third, fourth, or fifth reception service 

to more than 15 percent of the 

population in the station’s current 

protected contour (noting that loss of 

service to underserved listeners offset 

by proposed new service to a greater 

number of underserved listeners would 

not constitute a ‘‘net loss of service’’ to 

such listeners, and would be viewed 

more favorably). Applicants would also 

be required not only to set forth the size 

of the populations gaining and losing 

service under the proposal, but also the 

numbers of services those populations 

will receive if the application is granted, 

and an explanation as to how the 

proposal advances the revised section 

307(b) priorities. For example, an 

applicant will not only be required to 

detail that it is providing 500,000 

listeners with a 21st reception service, 

and removing the sixth reception 

service from 50,000 listeners, but also to 

provide a rationale to explain how this 

service change represents a preferential 

arrangement of allotments or 

assignments.3 Additionally, the 

Commission will strongly disfavor any 

proposed removal of a second local 

transmission service from a community 

of substantial size (with a population of 

7,500 or greater) when determining 

whether a proposed community of 

license change represents a preferential 

arrangement of allotments or 

assignments. The Commission retains 

its presumption against removal of sole 

transmission service. Finally, as is and 

has always been the case, under Priority 

(4) applicants may offer any other 

information they believe to be pertinent 

to a public interest showing, including 

the need for further transmission service 

at the new community, a drop in 

population justifying the removal of 

transmission service at the old 

community, population growth in areas 

surrounding the proposed new 

community that can best be met by a 

centrally located service, or any other 

changes in circumstance believed 

relevant to Commission consideration. 

These procedures shall apply to any 

applications to change community of 

license that are pending as of the release 

date of the Second R&O. 

20. The Commission stated its intent 

that the changes introduced here will, 

first, cause applicants to give more 


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consideration to the effects of proposed 

station moves on listeners, both those 

they would serve at a new community 

and those from whom they would 

remove existing service; and second, 

that a fuller explanation of the claimed 

benefits of a station move will introduce 

greater transparency into the 

community change procedure, both to 

aid in decision-making and for the 

benefit of affected listeners. The 

Commission expects that these 

procedures will help to achieve a 

balance between distribution of radio 

service to the largest populations, on the 

one hand, and distribution of new 

service to those most in need of it on the 

other. 

21. In the Rural NPRM, the 

Commission noted that the current rules 

permit FM translator stations originally 

authorized in the non-reserved band 

(channels 221–300) to modify their 

authorizations to ‘‘hop’’ into the reserved 

band (channels 201–220). See 47 CFR 

74.1233. By making these modifications, 

translator stations are able to operate 

under the less restrictive NCE rules, 

which permit the use of alternative 

methods of signal delivery, such as 

satellite and terrestrial microwave 

facilities. Likewise, FM translators 

authorized in the reserved band are 

currently able to file modifications to 

hop into the non-reserved band. The 

filing of such band-hopping 

applications by FM translator stations 

prior to construction of their facilities 

wastes staff resources, and potentially 

precludes the use of those frequencies 

in future reserved band filing windows 

for FM translators. The integrity of the 

window filing process is critical to 

provide equal opportunity to 

frequencies for translator applicants 

across the country. The Commission 

therefore tentatively concluded that 

§ 74.1233 of the Commission’s rules 

should be modified to require that 

applications to move into the reserved 

band from the non-reserved band, or to 

move into the non-reserved band from 

the reserved band, may only be filed by 

FM translator stations that have filed 

license applications or are licensed, and 

that have been operating for at least two 

years. In addition to seeking comment 

on the proposal, the Commission sought 

comment on the duration of the 

proposed holding period. 

22. Some commenters opposed the 

proposal, questioning the extent of the 

band-hopping problem, or suggesting 

instead that individual FM translator 

permits and licenses contain conditions 

prohibiting band-hopping. Another 

commenter supported the prohibition 

but suggested an exception for translator 

operators who could show that they had 

been displaced and the only frequencies 

available were in the other band. The 

Commission found over 160 translator 

applicants in the last non-reserved band 

filing window had ‘‘hopped’’ to the 

reserved band and were operating there. 

The Commission concluded that 

adoption of the prohibition proposed in 

the Rural NPRM, in conjunction with 

the two-year holding period, will best 

preserve the fairness of the window 

filing process while providing flexibility 

for translators that have operated long 

enough to have an established listener 

base. Even though the Commission did 

not codify a rule that would permit the 

filing of non-minor-change 

displacement proposals, it directed 

Commission staff to continue to 

consider such waiver requests on a caseby-case basis. 

23. As the Commission observed in 

the Rural NPRM, the first and most 

fundamental step in the AM auction 

process is a staff determination as to 

which applications filed during the 

relevant filing window are mutually 

exclusive with one another. In the 

context of an AM auction, mutual 

exclusivity is determined by an 

evaluation of engineering data provided 

in conjunction with the FCC Form 175. 

Applicants must specify a frequency on 

which they seek to operate in 

accordance with the Commission’s 

existing interference standards. 

24. It is well established that mutual 

exclusivity arises when grant of one 

application would preclude grant of a 

second, and the interference rules and 

protection requirements are the 

technical standards used to determine 

mutual exclusivity. Public notices 

released prior to an AM auction 

specifically note that the staff applies 47 

CFR 73.37, 73.182, and 73.183(b)(1), 

among other standards, to make mutual 

exclusivity determinations. In the AM 

service, mutual exclusivity may occur 

during three operational timeframes: 

daytime, critical hours, and nighttime. 

There are three classes of nighttime 

interference contributors: (a) A highlevel interferer, defined as a station that 

contributes to the fifty percent exclusion 

root-sum-square (RSS) nighttime limit of 

another station; (b) a mid-level 

interferer, defined as a station that 

enters the twenty-five but not fifty 

percent RSS of another station; and 

(c) a low-level interferer, defined as a 

station that does not enter into the 

twenty-five percent RSS of another 

station. To combat the extreme levels of 

interference that have led to a 

deterioration of the AM service, the 

Commission established a strict new 

standard, stating that a new station may 

be authorized only if it qualifies as a 

low interferer with respect to any other 

station on the same or first adjacent 

channel. The nighttime protection 

requirements are codified in 47 CFR 

73.182. For AM auction window 

applications, the staff analyzes the 

daytime, critical hours, and nighttime 

facilities specified in each application 

against every other application filed in 

the window. Two AM applications filed 

during the same filing window are 

considered mutually exclusive if either 

fails to fully protect the other as 

required by the Commission’s technical 

rules. 

25. The Commission tentatively 

concluded, in the Rural NPRM, to 

codify its decision in Nelson 

Enterprises, Inc., 18 FCC Rcd 3414 

(2003), in which the Commission 

concluded that the staff properly 

applied 47 CFR 73.182(k) interference 

standards to establish mutual 

exclusivity between window-filed 

applications, i.e., determined that the 

rule limits the interference a new station 

application may cause to another 

application filed in the same AM 

window. Because the rule establishes 

that the RSS methodology should be 

applied for the calculation of nighttime 

interference for non-coverage purposes, 

the Commission concluded that the staff 

properly relied on the rule for making 

mutual exclusivity determinations, and 

found it proper to apply 47 CFR 73.182 

in considering the effect of nighttime 

interference caused and received by 

simultaneously filed AM auction filing 

window proposals, as well as existing 

stations. 

26. In the Rural NPRM, the 

Commission also tentatively concluded 

that it should modify § 73.3571 of the 

rules, by explicitly providing that the 

interference standards in § 73.182(k) of 

the Commission’s rules apply when 

determining nighttime mutual 

exclusivity between applications to 

provide AM service that are filed in the 

same window. That is, two applications 

would be deemed to be mutually 

exclusive if either application would be 

subject to dismissal because it would 

enter the twenty-five percent exclusion 

RSS nighttime limit of the other. Two 

parties filed comments, arguing that 

these standards would reduce the 

number of new AM construction 

permits awarded in filing windows. The 

Commission disagreed, noting that 

several mechanisms in AM new 

application processing, including 

technical resolutions and settlements, 

could lead to multiple grants, that the 

interference rules and protection 

requirements are the technical standards 

used for establishing mutual exclusivity, 

and that the criteria applied by the staff 


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4A tribal proposal that covers 50% of Tribal 

Lands but does not meet the 2,000 population 

threshold may be able to make a persuasive waiver 

showing if it serves Tribal Lands that are isolated 

and does not propose service to a significant nonTribal population. 

5For example, if all the tribes in a densely 

populated area were to form a consortium to 

provide service covering all of their Tribal Lands, 

and the collective population still does not 

constitute 50 percent of the total covered 

population, the Commission would be receptive to 

a showing that the proposed facility is designed to 

minimize non-Tribal coverage while still providing 

needed service to Tribal Lands. The Commission 

would also consider other factors, such as: the 

abundance of non-Tribal radio service in the area; 

the absence of Tribal radio service in the area; and 

the absence of other Tribal-owned or Tribaloriented media of mass communications in the area, 

or a showing that other such Tribal-directed media 

are inadequate to serve the needs of Tribal 

communities. 

were fully consistent with the strict 

interference limitations established by 

the Commission. The Commission thus 

concluded that codifying the 

applicability of 47 CFR 73.182(k) AM 

nighttime interference standards to 

mutually exclusive AM auction 

applications promotes the integrity of 

the AM service, and is thus in the 

public interest. 

27. First Order on Reconsideration. In 

the First R&O, the Commission adopted 

a Tribal Priority, giving federally 

recognized Tribes and majority Tribalowned entities a section 307(b) priority 

for proposing service, 50 percent or 

more of which would cover ‘‘Tribal 

Lands,’’ as defined in the First R&O, as 

long as the proposals met certain 

conditions. Two parties called attention 

to perceived difficulties with the 

implementation of the Tribal Priority 

that might inadvertently limit the ability 

of qualifying entities to receive the 

Tribal Priority. One party argued that 

Alaska Native Regional Corporations, 

created pursuant to the Alaska Native 

Claims Settlement Act of 1971 (ANCSA) 

should be allowed to claim the Tribal 

Priority. The Commission found, 

however, that such corporations are not 

sovereign or quasi-sovereign entities, as 

are Tribes, and because the Tribal 

Priority was based on the governmentto-government relationship between the 

United States Government and Tribes, 

the Commission could not extend the 

Tribal Priority to such corporations. 

28. Native Public Media and the 

National Congress of American Indians 

(NPM/NCAI) jointly observed that some 

Tribes have Tribal Lands that are either 

too small to comprise 50 percent or 

more of a station’s principal community 

contour, or are so irregularly shaped 

that 50 percent or more of a station’s 

contour could not cover Tribal Lands. 

They contended that such Tribes could 

not qualify for the Tribal Priority under 

the coverage provisions set forth in the 

First R&O, therefore an alternative 

coverage provision was needed. The 

Commission agreed that an alternative 

was needed, but sought to craft a 

standard that would include such Tribes 

while ensuring that the Tribal Priority 

would be used for its intended purpose, 

that is, for Tribes to provide radio 

service to their members, rather than to 

primarily non-Tribal areas. Accordingly, 

a Tribe may claim the Tribal Priority if 

(a) at least 50 percent of the area within 

the proposed facility’s principal 

community contour is over that Tribe’s 

Tribal Lands, as set forth in the First 

R&O, or (b) the proposed principal 

community contour (i) encompasses 50 

percent or more of that Tribe’s Tribal 

Lands, (ii) serves at least 2,000 people 

living on Tribal Lands, and (iii) the total 

population on Tribal Lands residing 

within the station’s service contour 

constitutes at least 50 percent of the 

total covered population. In neither (a) 

nor (b) may the applicant claim the 

priority if the proposed principal 

community contour would cover more 

than 50 percent of the Tribal Lands of 

a non-applicant Tribe. The first and 

second requirements of the alternative 

test ensure that the proposed station 

will serve substantial Tribal Lands and 

populations. The Commission found 

that service to fewer than 2,000 people 

should generally be considered 

insufficient to claim the Tribal Priority.4

However, a situation could arise where 

a proposal meets these requirements but 

the population of the applicant’s Tribal 

Lands represents a relatively small 

percentage of the total population 

residing in the coverage area, and in this 

circumstance a Tribal Priority might 

potentially deprive the majority, nontribal population of needed local 

service. To address this concern, the 

Tribal Priority cannot be claimed if the 

combined population on Tribal Lands 

within the proposed station’s service 

contour constitutes less than 50 percent 

of the total covered population. This 

requirement is designed to avoid 

applying the Tribal Priority to regions 

and populations that are largely nonNative in character or location, in 

keeping with the priority’s goals. The 

Commission will entertain waiver 

requests from applicants proposing 

Tribal service to service areas in which 

the population on Tribal Lands is less 

than 50 percent of the covered 

population, in appropriate situations.5

Finally, the limitation that the applicant 

will not cover more than 50 percent of 

the Tribal Lands of a non-applicant 

Tribe will avoid exhausting the 

remaining spectrum in areas where 

many Tribes have Tribal Lands in close 

proximity, before all qualifying Tribes 

have an opportunity to apply. This 

limitation will also encourage different 

Tribes whose lands are in close 

proximity to each other to form 

consortia to establish radio service 

serving the various Tribes’ needs, as 

well as share the expense of starting 

new radio service. 

Final Regulatory Flexibility Analysis 

29. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), 5 U.S.C. 601–612, an Initial 

Regulatory Flexibility Analysis (IRFA) 

was incorporated in the Rural NPRM. 

The Commission sought written public 

comment on the proposals in the Rural 

NPRM, including comment on the IRFA. 

The Commission received no comments 

on the IRFA. This present Final 

Regulatory Flexibility Analysis (FRFA) 

conforms to the RFA. 

Need for, and Objectives of, the Report 

and Order 

30. The Second R&O adopted rule and 

procedural changes to codify or clarify 

certain allotment, assignment, auction, 

and technical procedures. In the Second 

R&O, the Commission also codified a 

prohibition against ‘‘band hopping’’ FM 

translator station applications, and 

codified standards determining 

nighttime AM mutual exclusivity among 

window-filed applications for new AM 

broadcast stations. In the Second R&O, 

the Commission also addressed issues 

raised in the FNPRM released with the 

First R&O. The Tribal Priority, adopted 

by the Commission in the First R&O, is 

available to applicants meeting all of the 

following eligibility criteria: (1) The 

applicant is either a federally 

recognized Tribe or tribal consortium, or 

an entity 51 percent or more of which 

is owned or controlled by a Tribe or 

Tribes, at least part of whose tribal lands 

(as defined in note 30 of the Rural 

NPRM) are covered by the principal 

community contour of the proposed 

facility; (2) at least 50 percent of the 

daytime principal community contour 

of the proposed facilities covers tribal 

lands; (3) the proposed community of 

license must be located on tribal lands; 

and (4) the applicant proposes first 

aural, second aural, or first local tribalowned commercial transmission service 

at the proposed community of license, 

in the case of proposed commercial 

facilities, or at least first local tribalowned noncommercial educational 

transmission service, in the case of 

proposed NCE facilities. Although 

‘‘tribal lands’’ was given an expansive 

definition in the First R&O, commenters 

noted that not all Tribes had 

reservations or other tribal lands as the 


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Commission defined that term. Thus, in 

the FNPRM the Commission sought 

comment on how the Tribal Priority 

could be applied to Tribes that lacked 

tribal lands. Additionally, the 

Commission sought comment on 

whether, and how, to establish a 

bidding credit to assist Tribes seeking to 

establish commercial radio stations, and 

competing with non-Tribal applicants 

for such facilities at auction. 

31. After considering the few 

comments filed in response to the 

FNPRM, the Commission determined 

that the record did not support the 

establishment of a specific coverage 

standard for Tribes without Tribal 

Lands. Instead, such Tribes may, 

through a Tribal official with proper 

jurisdiction, request waiver of the tribal 

coverage criterion of the Tribal Priority, 

by making an appropriate showing of a 

defined geographic area identified with 

the Tribe. Among the probative factors 

in such a showing would be evidence of 

an area to which the Tribe delivers 

services to its citizens, or evidence of an 

area to which the federal government 

delivers services to Tribal members. 

Probative evidence might also include 

evidence of Census Bureau-defined 

tribal service areas, used by agencies 

such as the Department of Housing and 

Urban Development. Additionally, if a 

Tribe were able to provide evidence that 

its Tribal government had a defined 

seat, such as a headquarters or office, 

this in combination with evidence that 

Tribal citizens lived and/or were served 

by the Tribal government in the 

immediate environs of such a 

governmental seat would provide strong 

evidence of a nexus between that 

community and the Tribe. Absent a 

physical location for Tribal government, 

a Tribe might also, for example, provide 

evidence that a majority of members of 

the Tribal council or board lived within 

a certain radius of a community. The 

Commission would also accept a 

showing under the standard enunciated 

in 25 CFR 83.7(b)(2)(i), that more than 

50 percent of Tribal members live in a 

geographical area exclusively or almost 

exclusively composed of members of the 

Tribe. Other evidence, such as evidence 

of the existence of Tribal institutions or 

events in a defined area, would also be 

considered probative of a geographically 

identifiable Tribal population grouping. 

Regardless of the evidence provided, the 

Tribe must define a reasonable 

boundary for the ‘‘tribal lands’’ to be 

covered, and the community on those 

lands that would be considered the 

community of license, with an eye 

toward duplicating as closely as 

possible the Tribal Land coverage 

provisions of the Tribal Priority. 

32. In the Rural NPRM, the 

Commission also stated that the 

procedures and priorities it had been 

using to allocate radio service had not 

been completely successful in effecting 

the fair, efficient, and equitable 

distribution of radio service mandated 

by section 307(b) of the 

Communications Act. Specifically, the 

Commission noted that current policies 

had resulted in an inordinate number of 

new services in large, already wellserved urban areas, as well as moves of 

existing stations from smaller and rural 

communities into or near to urbanized 

areas. The Commission further observed 

that in many cases, the sole determinant 

in assigning new service was the 

number of people receiving new service, 

and that reliance on the differences in 

populations receiving new service in 

already abundantly served areas may 

have an adverse impact on the fair 

distribution of service in new AM and 

FM station licensing, and may be 

inconsistent with statutory and policy 

goals. 

33. In order to address these concerns, 

the Commission concluded in the 

Second R&O that it should rectify the 

policies that it perceived as 

overwhelmingly favoring proposals in 

and near urbanized areas at the expense 

of smaller communities and rural areas. 

First, the Commission established a 

rebuttable presumption that an FM 

allotment or AM new station proponent 

seeking to locate at a community in an 

urbanized area, or that would cover or 

could be modified to cover more than 50 

percent of an urbanized area, in fact 

proposes service to the entire urbanized 

area, and accordingly will not receive a 

section 307(b) preference for providing 

first local transmission service. This 

urbanized area service presumption may 

be rebutted by a compelling showing, 

not only that the proposed community 

is truly independent of the urbanized 

area, but also of the community’s 

specific need for an outlet for local 

expression separate from the urbanized 

area and the ability of the proposed 

service to provide that outlet. 

Additionally, in the case of applicants 

for new AM stations, the Commission 

stated that an applicant proposing third, 

fourth, and/or fifth reception service to 

at least 25 percent of the population in 

the proposed primary service area, 

where the proposed community of 

license has two or fewer local 

transmission services, may receive a 

dispositive section 307(b) preference 

under Priority (4). An applicant whose 

proposed contour does not meet the 25 

percent/two transmission service 

criteria may, but is not required to, 

provide a Service Value Index showing 

as set forth in the Greenup case. Such 

a showing, however, must yield a 

difference in SVI of at least 30 percent 

over the next-highest ranking proposal 

in order to receive a dispositive section 

307(b) preference under Priority (4) of 

the assignment priorities. Absent such a 

showing, no dispositive section 307(b) 

preference will be awarded, and the 

competing applications for new AM 

stations will proceed to competitive 

bidding. 

34. In the case of new FM allotments, 

before awarding a dispositive section 

307(b) preference to an applicant 

proposing first local service at a 

community, the Commission will apply 

the rebuttable urbanized area service 

presumption as described in the 

preceding paragraph. If a proposal does 

not qualify for a first local transmission 

service preference, the Commission will 

consider proposals to provide third, 

fourth, and/or fifth reception service to 

more than a de minimis population 

under Priority (4), but directs the staff 

to accord greater weight to service to 

underserved populations than to the 

differences in raw population totals. 

The Commission concluded that raw 

population total differentials should be 

considered only after other Priority (4) 

factors that a proponent might present, 

including the number of reception 

services available to the proposed 

communities and reception areas, 

population trends in the proposed 

communities of license/reception areas, 

and/or number of transmission services 

at the respective communities. 

35. As noted above, in the Rural 

NPRM the Commission expressed 

concern over the movement of radio 

stations away from smaller and rural 

communities and toward urbanized 

areas. In order to change its community 

of license, a radio station must show 

that service at the new community 

constitutes a preferential arrangement of 

allotments or assignments compared to 

service at the current community. 

Currently, a substantial number of such 

applicants justify the benefits of such 

moves by setting forth the greater 

number of listeners who would receive 

a new service at the new community of 

license. The Commission sought to limit 

the presumption that such raw net 

population gains, in and of themselves, 

represent a preferential arrangement of 

allotments or assignments under section 

307(b). The Commission adopted its 

proposal to prohibit any community of 

license change that would create white 

or gray area, that is, leave any area with 

no reception services or only one 

reception service. As with proposals for 


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18950 Federal Register / Vol. 76, No. 66 / Wednesday, April 6, 2011 / Rules and Regulations 

new AM stations and FM allotments, 

the Commission will apply the 

rebuttable urbanized area service 

presumption as described above to an 

applicant for a change of community of 

license that proposed to provide the 

new community with its first local 

transmission service. An applicant not 

qualifying for a first local transmission 

service preference may then make a 

showing under Priority (4), other public 

interest matters. Such a showing, 

however, will require the applicant to 

provide a more detailed explanation of 

the claimed public interest benefits of 

the proposed move than is currently the 

case. A Priority (4) showing that reveals 

a net loss of third, fourth, or fifth 

reception service to more than 15 

percent of the population in the 

station’s current protected contour will 

be strongly disfavored. The Commission 

will now require applicants not only to 

set forth the size of the populations 

gaining and losing service under the 

proposal, but also to summarize the 

numbers of services those populations 

will receive if the application is granted, 

and an explanation as to how the 

proposal advances the revised section 

307(b) priorities. Additionally, pursuant 

to the Commission’s proposal in the 

Rural NPRM, it will accord significant 

weight against any proposed removal of 

a second local transmission service from 

a community of substantial size (with a 

population of 7,500 or greater) when 

determining whether a proposed 

community of license change represents 

a preferential arrangement of allotments 

or assignments. Applicants may also 

offer, as part of a Priority (4) showing, 

any other information they believe to be 

pertinent to a public interest showing, 

including the need for further 

transmission service at the new 

community. 

36. In the Rural NPRM, the 

Commission also noted that the current 

rules permit FM translator stations 

originally authorized in the nonreserved band (channels 221–300) to 

modify their authorizations to ‘‘hop’’ 

into the reserved band (channels 201– 

220). Such modifications enable 

translator stations to operate under the 

less restrictive NCE rules, permitting the 

use of alternative methods of signal 

delivery, such as satellite and terrestrial 

microwave facilities. Likewise, FM 

translators authorized in the reserved 

band are currently able to file 

modifications to hop into the nonreserved band. The Commission stated 

that such band-hopping applications by 

FM translator stations prior to 

construction of their facilities wastes 

staff resources, potentially precludes the 

use of those frequencies in future 

reserved band filing windows for FM 

translators, and diminishes the integrity 

of the window filing process. The 

Commission therefore tentatively 

concluded that 47 CFR 74.1233 should 

be modified to prohibit this practice. In 

the Second R&O, the Commission 

adopted its tentative conclusion, and 

codified this prohibition. 

37. The Commission also tentatively 

concluded, in the Rural NPRM, that it 

should modify 47 CFR 73.3571 to codify 

the Commission’s decision in Nelson 

Enterprises, Inc., 18 FCC Rcd 3414 

(2003), by explicitly providing that the 

AM nighttime interference standards 

found in 47 CFR 73.182(k) should apply 

in determining nighttime mutual 

exclusivity between applications to 

provide AM service that are filed in the 

same window. The Commission 

believed this rule change was needed to 

promote the strict interference standard 

that the Commission has determined is 

necessary to revitalize the AM service. 

In the Second R&O, the Commission 

adopted its tentative conclusion, and 

codified these procedures. 

38. The Commission also released, 

with the Second R&O, a First Order on 

Reconsideration, dealing with two 

issues raised by commenters with regard 

to the Tribal Priority. One of these 

issues concerned whether to extend the 

Tribal Priority to corporations 

established pursuant to the Alaska 

Native Claims Settlement Act of 1971 

(ANCSA), 43 U.S.C. 1601 et seq. Such 

regional corporations are established in 

the ANCSA statutes and are 

incorporated under Alaska law. These 

corporations, however, are not 

themselves Tribes, and their shares are 

owned by individual Natives rather than 

the Tribes themselves. The Commission 

determined that, because the basis for 

the Tribal Priority was the governmentto-government relationship between the 

Tribes and the federal government, and 

because the regional corporations 

established pursuant to ANCSA are not 

sovereign or quasi-sovereign entities, 

the Tribal Priority could not be 

extended to such corporations. 

39. The second issue on 

reconsideration concerned Tribes with 

small or irregularly shaped tribal lands. 

As originally established, the Tribal 

Priority requires that at least 50 percent 

of the principal community contour of 

a proposed station cover tribal lands. A 

commenter noted that some Tribes had 

tribal lands that, in total, would not 

comprise 50 percent of even a small 

radio station’s contour, and moreover 

that some tribal lands were, for 

example, strips of land following rivers, 

that would not fit into the generally 

circular contours of non-directional 

radio stations. The Commission adopted 

a modification of the Tribal Priority: A 

Tribe may claim the Tribal Priority if (a) 

at least 50 percent of the proposed 

facility’s principal community contour 

covers that Tribe’s Tribal Lands, as set 

forth in the First R&O, or (b) the 

proposed principal community contour 

(i) covers 50 percent or more of that 

Tribe’s Tribal Lands, (ii) serves at least 

2,000 people living on Tribal Lands, and 

(iii) the total population on Tribal Lands 

residing within the station’s service 

contour constitutes at least 50 percent of 

the total covered population. In neither 

(a) nor (b) may the applicant claim the 

priority if the proposed principal 

community contour would cover more 

than 50 percent of the Tribal Lands of 

a non-applicant Tribe. This is intended 

to facilitate use of the Tribal Priority by 

Tribes with small or irregularly shaped 

lands, while avoiding the problem of 

certain Tribes claiming the remaining 

spectrum in certain areas where many 

Tribes have smaller tribal lands in close 

proximity before all qualifying Tribes 

have an opportunity to apply. In such 

situations, different Tribes, whose lands 

are in close proximity to each other, 

might be encouraged to form consortia 

to establish radio service serving the 

various Tribes’ needs, as well as sharing 

the expense of starting new radio 

service. The Commission also 

determined that Tribes complying with 

these new criteria might still provide 

service to very small Tribal populations 

situated among much larger non-Tribal 

populations. This is also designed to 

ensure that the Tribal Priority is used 

primarily to establish service to Tribal 

populations and communities, rather 

than proportionally minimal Tribal 

populations. The limitations on 

claiming the Tribal Priority in these 

situations is subject to waiver requests 

in appropriate situations (such as 

proposals covering a number of Tribes, 

narrowly tailored to minimize nonTribal coverage, in areas where there is 

abundant non-Tribal service and no 

Tribal service). 

Summary of Significant Issues Raised by 

Public Comments in Response to the 

IRFA 

40. There were no comments filed 

that specifically addressed the rules and 

policies proposed in the IRFA. 

Description and Estimate of the Number 

of Small Entities to Which the Proposed 

Rules Will Apply 

41. 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 


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rules adopted herein. The RFA generally 

defines the term ‘‘small entity’’ as having 

the same meaning as the terms ‘‘small 

business,’’ small organization,’’ and 

‘‘small government 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). 

42. The subject rules and policies 

potentially will apply to all AM and FM 

radio broadcasting licensees and 

potential licensees. A radio broadcasting 

station is an establishment primarily 

engaged in broadcasting aural programs 

by radio to the public. Included in this 

industry are commercial, religious, 

educational, and other radio stations. 

Radio broadcasting stations which 

primarily are engaged in radio 

broadcasting and which produce radio 

program materials are similarly 

included. However, radio stations that 

are separate establishments and are 

primarily engaged in producing radio 

program material are classified under 

another NAICS number. The SBA has 

established a small business size 

standard for this category, which is: 

firms having $7 million or less in 

annual receipts (13 CFR 121.201, NAICS 

code 515112 (updated for inflation in 

2008)). According to BIA Advisory 

Services, L.L.C., MEDIA Access Pro 

Database on January 13, 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 many radio stations are 

affiliated with much larger corporations 

having much higher revenue. Our 

estimate, therefore, likely overstates the 

number of small entities that might be 

affected by any ultimate changes to the 

rules and forms. 

Description of Projected Reporting, 

Record Keeping and Other Compliance 

Requirements 

43. As described, certain rules and 

procedures will change, although the 

changes will not result in substantial 

increases in burdens on applicants. A 

question will be modified in FCC Form 

340, to reflect the changed tribal 

coverage provisions for claiming 

eligibility for the Tribal Priority. These 

are largely self-identification questions 

reflecting the applicant’s status, 

although in the case of tribal coverage 

some geographic analysis may be 

required, and/or a showing may be 

needed to establish eligibility for the 

Tribal Priority in the absence of tribal 

lands as defined in the First R&O. In 

certain cases (AM auction filing window 

applications, FM allotment proceedings, 

and applications to change community 

of license), section 307(b) information is 

already required. In some cases, the 

procedures set forth in the Second R&O 

require more stringent analysis of 

information already requested of such 

applicants, resulting in little or no 

increase in burden on those applicants. 

In other cases, especially with regard to 

applications to change community of 

license, applicants may need to perform 

more analysis than is currently the case, 

increasing the reporting burden. Also, 

new showings may be required of 

certain applicants claiming the Tribal 

Priority, in order to demonstrate their 

eligibility for the priority. However, 

these burdens should be moderate to 

minimal, and are needed in order to 

achieve the Commission’s statutory 

mandate of fair, efficient, and equitable 

distribution of radio service (and, in the 

case of Tribal Priority claimants, are 

necessary in order to open up the Tribal 

Priority to greater numbers of Tribes 

seeking to establish new radio service). 

The remaining procedural changes in 

the Second R&O are either changes in 

Commission procedures, requiring no 

input from applicants, or more stringent 

regulation of existing requirements. For 

example, AM auction filing window 

applicants will continue to be evaluated 

for mutual exclusivity based on the 

nighttime interference standards set 

forth in the Nelson Enterprises, Inc. 

case, and any burden will not be 

increased merely because those 

standards are now codified. Likewise, 

codifying a limitation on FM translator 

‘‘band hopping’’ applications may 

require potential applicants to evaluate 

whether they are eligible to file, but will 

not require greater reporting burdens. 

Steps Taken To Minimize Significant 

Impact of Small Entities, and 

Significant Alternatives Considered 

44. 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(c)(1) 

through (c)(4)). 

45. With regard to the proposals in the 

FNPRM, the Commission did receive 

and consider two alternative proposals 

for Tribes without tribal lands wishing 

to claim the Tribal Priority. The 

Commission did not adopt either 

proposal, choosing instead to consider 

requests for waiver of the tribal coverage 

criterion of the Tribal Priority. The 

waiver standard allows requesting 

parties the flexibility to determine how 

much or how little information is 

necessary to overcome the criterion, and 

thus can be less burdensome than a 

more rigid standard. 

46. In the Rural NPRM, the 

Commission put forth several 

alternative proposals for modifications 

to its section 307(b) evaluation 

procedures, in an effort to encourage the 

establishment of new service at smaller 

and rural communities and prevent 

stations already serving such 

communities from moving out. Many of 

these were ultimately rejected in favor 

of less burdensome alternatives. For 

example, the Commission considered 

not awarding dispositive section 307(b) 

preferences to AM filing window 

applicants unless they proposed bona 

fide first transmission service or better, 

eliminating a Priority (4) ‘‘other public 

interest matters’’ analysis entirely. After 

considering comments, the Commission 

decided that applicants should be 

afforded the opportunity to demonstrate 

that they would provide service to 

underserved populations, and thus that 

new service at the proposed community 

fulfilled the objectives underlying 

section 307(b). The Commission also 

proposed to require a Greenup Service 

Value Index showing but, due to the 

expense of such showings, determined 

that such a showing should be optional 

but not required. Certain other 

alternatives, proposed as high priorities 

or mandatory showings in the Rural 

NPRM, were instead included in 

Priority (4), other public interest matters 

or were otherwise downgraded in the 

Second R&O. For example, the 

Commission did not, as proposed, 

establish a priority for underserved 

listeners (those who would receive 

third, fourth, and fifth service), but 

rather indicated that it would strongly 

favor such showings under Priority (4); 

moreover, the Commission did not 

adopt the proposal to bar absolutely 

community of license changes that 

would remove service to underserved 

listeners, although it indicated it would 

strongly disfavor such moves. Similarly, 

the Commission did not adopt a 

proposal to bar removal of second local 

transmission service at a community, 


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stating instead that such removals 

would weigh heavily against such 

moves in communities of over 7,500 

population. These modifications of the 

Rural NPRM proposals were made based 

upon comments filed by broadcasters, 

many of whom are small businesses, 

and are designed to accommodate their 

concerns while still rectifying the 

problems identified by the Commission 

in making its Rural NPRM proposals. 

The Commission thus determined that 

the procedural changes, as adopted, 

represent the least burdensome means 

of achieving the stated policy goals. 

47. With regard to the proposed rule 

banning translator ‘‘band hopping’’ 

applications, the Commission did 

consider commenter’s proposals but 

decided to adopt the rule as proposed. 

The alternatives proposed and 

considered did not, in the Commission’s 

view, fully address the basic unfairness 

inherent in allowing certain translator 

permittees and licensees to change 

frequencies in order to take advantage of 

different operating rules in another 

frequency band. Because this practice 

gives an unfair advantage to a small 

subset of translator operators, the 

Commission believed the proposed rule 

was necessary to make the operating 

rules uniform for all such operators. 

48. The proposed rule applying AM 

nighttime mutual exclusivity standards 

to mutually exclusive AM filing 

window applications merely codifies 

current procedure established in 

Commission precedent, and presents no 

change or new burden on applicants 

requiring consideration of less 

burdensome alternatives. The 

Commission did propose, in the Rural 

NPRM, to codify certain guidelines for 

submitting contours using alternate 

prediction methods. However, in part 

because commenters identified certain 

technical difficulties and burdens 

associated with the proposed 

guidelines, the Commission declined to 

adopt the proposal. 

49. Finally, the Commission granted 

on reconsideration a proposal for an 

alternative tribal coverage provision of 

the Tribal Priority. As discussed above, 

Tribes with small tribal lands in some 

cases could not comply with the Tribal 

Priority condition that 50 percent or 

more of the proposed principal 

community contour cover those tribal 

lands. Only one proposal was submitted 

to rectify this problem. While the 

Commission adopted this proposal, it 

modified it to provide that the Tribal 

Priority would not be afforded an 

applicant who covered more than 50 

percent of another, non-applicant 

Tribe’s tribal land. The Commission 

made this modification to avoid a 

situation in which Tribes with tribal 

lands in close proximity raced to be the 

first to claim limited spectrum in an 

area. Likewise, on its own motion the 

Commission determined that proposed 

service to small Tribal Lands of less 

than 2,000 population would not be 

considered significant enough to qualify 

for the Tribal Priority, and that the 

Tribal population covered by the 

proposal is at least 50 percent of the 

total covered population. This is to 

avoid the situation in which a relatively 

small Tribe would gain a priority for 

service to a potentially much larger nonTribal population. Thus, while other 

alternatives were not presented, the 

Commission considered the problem 

and arrived at its own modifications in 

order to avoid potential conflicts among 

qualified Tribal applicants, and in order 

to avoid unfairness to non-Tribal 

applicants at the expense of small 

Tribes, who nonetheless retain the 

ability to form consortia to establish 

new radio service and qualify for the 

Tribal Priority. 

Report to Congress 

50. The Commission will send a copy 

of the Second R&O, including this 

FRFA, in a report to be sent to Congress 

and the Government Accountability 

Office pursuant to the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (5 U.S.C. 801(a)(1)(A)). In addition, 

the Commission will send a copy of the 

Second R&O, including the FRFA, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. A copy of the 

Second R&O, First Order on 

Reconsideration, and FRFA (or 

summaries thereof) will also be 

published in the Federal Register (See 

5 U.S.C. 604(b)). 

Ordering Clauses 

51. 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. 

52. It is further ordered that, pursuant 

to the authority found in sections 4(i), 

303(r), and 628 of the Communications 

Act of 1934, as amended, 47 U.S.C. 

154(i), 303(r), and 548, the 

Commission’s rules are hereby amended 

as set forth herein. 

53. It is further ordered that the rules 

adopted herein will become effective 

May 6, 2011, except for Section 73.7000, 

which contains information collection 

requirements that have not been 

approved by OMB. The Commission 

will publish a document in the Federal 

Register announcing the effective date. 

List of Subjects 

47 CFR Part 73 

Radio broadcast services. 

47 CFR Part 74 

Experimental radio, auxiliary, special 

broadcast and other program 

distributional services. 

Federal Communications Commission. 

Bulah Wheeler, 

Deputy Manager. 

Rule Changes 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR parts 73 

and 74 to read 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, 336, 

and 339. 

■ 2. Section 73.3571 is amended by 

revising paragraph (h)(1)(ii) and adding 

a Note to the end of the section to read 

as follows: 

§ 73.3571 Processing of AM broadcast 

station applications. 

* * * * * 

(h) * * * 

(1) * * * 

(ii)(A) Such AM applicants will be 

subject to the provisions of §§ 1.2105 of 

this chapter and 73.5002 regarding the 

submission of the short-form 

application, FCC Form 175, and all 

appropriate certifications, information 

and exhibits contained therein. 

Applications must include the following 

engineering data: 

(1) Community of license; 

(2) Frequency; 

(3) Class; 

(4) Hours of operations (day, night, 

critical hours); 

(5) Power (day, night, critical hours); 

(6) Antenna location (day, night, 

critical hours); and 

(7) All other antenna data. 

(B) Applications lacking data 

(including any form of placeholder, 

such as inapposite use of ‘‘0’’ or ‘‘not 

applicable’’ or an abbreviation thereof) 

in any of the categories listed in 

paragraph (h)(1)(ii)(A) of this section 

will be immediately dismissed as 

incomplete without an opportunity for 

amendment. The staff will review the 

remaining applications to determine 

whether they meet the following basic 

eligibility criteria: 


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(1) Community of license coverage 

(day and night) as set forth in § 73.24(i), 

and 

(2) Protection of co- and adjacentchannel station licenses, construction 

permits and prior-filed applications 

(day and night) as set forth in §§ 73.37 

and 73.182. 

(C) If the staff review shows that an 

application does not meet one or more 

of the basic eligibility criteria listed in 

paragraph (h)(1)(ii)(B) of this section, it 

will be deemed ‘‘technically ineligible 

for filing’’ and will be included on a 

Public Notice listing defective 

applications and setting a deadline for 

the submission of curative amendments. 

An application listed on that Public 

Notice may be amended only to the 

extent directly related to an identified 

deficiency in the application. The 

amendment may modify the proposed 

power, class (within the limits set forth 

in § 73.21 of the rules), antenna location 

or antenna data, but not the proposed 

community of license or frequency. 

Except as set forth in the preceding two 

sentences, amendments to short-form 

(FCC Form 175) applications will not be 

accepted at any time. Applications that 

remain technically ineligible after the 

close of this amendment period will be 

dismissed, and the staff will determine 

which remaining applications are 

mutually exclusive. The engineering 

proposals in eligible applications 

remaining after the close of the 

amendment period will be protected 

from subsequently filed applications. 

Determinations as to the acceptability or 

grantability of an applicant’s proposal 

will not be made prior to an auction. 

* * * * * 

Note to § 73.3571: For purposes of 

paragraph (h)(1)(ii) of this section, § 73.182(k) 

interference standards apply when 

determining nighttime mutual exclusivity 

between applications to provide AM service 

that are filed in the same window. Two 

applications would be deemed to be 

mutually exclusive if either application 

would be subject to dismissal because it 

would enter into, i.e., raise, the twenty-five 

percent exclusion RSS nighttime limit of the 

other. 

■ 3. Section 73.7000 is amended by 

revising the definition of ‘‘Tribal 

coverage’’ to read as follows: 

§ 73.7000 Definition of terms (as used in 

subpart K only). 

* * * * * 

Tribal coverage. (1) Coverage of a 

Tribal Applicant’s or Tribal Applicants’ 

Tribal Lands by at least 50 percent of a 

facility’s 60 dBu (1 mV/m) contour, or 

(2) The facility’s 60 dBu (1 mV/m) 

contour— 

(i) Covers 50 percent or more of a 

Tribal Applicant’s or Tribal Applicants’ 

Tribal Lands, 

(ii) Serves at least 2,000 people living 

on Tribal Lands, and 

(iii) The total population on Tribal 

Lands residing within the station’s 

service contour constitutes at least 50 

percent of the total covered population. 

In neither paragraphs (1) nor (2) of this 

definition may the applicant claim the 

priority if the proposed principal 

community contour would cover more 

than 50 percent of the Tribal Lands of 

a non-applicant Tribe. To the extent that 

Tribal Lands include fee lands not 

owned by Tribes or members of Tribes, 

the outer boundaries of such lands shall 

delineate the coverage area, with no 

deduction of area for fee lands not 

owned by Tribes or members of Tribes. 

* * * * * 

PART 74—EXPERIMENTAL RADIO, 

AUXILIARY, SPECIAL BROADCAST 

AND OTHER PROGRAM 

DISTRIBUTIONAL SERVICES 

■ 4. The authority citation for part 74 

continues to read as follows: 

Authority: 47 U.S.C. 154, 302a, 303, 307, 

336(f), 336(h) and 554. 

■ 5. Section 74.1233 is amended by 

revising paragraph (a)(1), to read as 

follows: 

§ 74.1233 Processing FM translator and 

booster station applications. 

(a) * * * 

(1) In the first group are applications 

for new stations or for major changes in 

the facilities of authorized stations. For 

FM translator stations, a major change is 

any change in frequency (output 

channel) except changes to first, second 

or third adjacent channels, or 

intermediate frequency channels, and 

any change in antenna location where 

the station would not continue to 

provide 1 mV/m service to some portion 

of its previously authorized 1 mV/m 

service area. In addition, any change in 

frequency relocating an unbuilt station 

from the non-reserved band to the 

reserved band, or from the reserved 

band to the non-reserved band, will be 

considered major. All other changes will 

be considered minor. All major changes 

are subject to the provisions of 

§§ 73.3580 and 1.1104 of this chapter 

pertaining to major changes. 

* * * * * 

[FR Doc. 2011–7964 Filed 4–5–11; 8:45 am] 

BILLING CODE 6712–01–P 


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