[Federal Register Volume 76, Number 66 (Wednesday, April 6, 2011)]
[Rules and Regulations]
[Pages 18942-18953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7964]


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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.

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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 Sec.  
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 <a href="/cdn-cgi/l/email-protection#5f0f3a2b3a2d711b3026333a1f393c3c71383029"><span class="__cf_email__" data-cfemail="3262574657401c765d4b5e57725451511c555d44">[email protected]</span></a>; Thomas 
Nessinger, Attorney-Advisor, Media Bureau, Audio Division, (202) 418-
2700 or <a href="/cdn-cgi/l/email-protection#52063a3d3f33217c1c3721213b3c353720123431317c353d24"><span class="__cf_email__" data-cfemail="66320e090b071548280315150f080103142600050548010910">[email protected]</span></a>. For additional information concerning 
the Paperwork Reduction Act information collection requirements 
contained in this document, contact Cathy Williams at 202-418-2918, or 
via the Internet at <a href="/cdn-cgi/l/email-protection#98dbf9ecf0e1b6cff1f4f4f1f9f5ebd8fefbfbb6fff7ee"><span class="__cf_email__" data-cfemail="8ecdeffae6f7a0d9e7e2e2e7efe3fdcee8ededa0e9e1f8">[email protected]</span></a>.

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: <a href="/cdn-cgi/l/email-protection#64222727515450240207074a030b12"><span class="__cf_email__" data-cfemail="1f595c5c2a2f2b5f797c7c31787069">[email protected]</span></a> 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,

[[Page 18943]]

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

[[Page 18944]]

(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 co-equal 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)

[[Page 18945]]

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.
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    \1\ See 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).
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    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

[[Page 18946]]

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 non-final 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.
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    \2\ Specifically, 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.
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    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.
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    \3\ Such 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.
---------------------------------------------------------------------------

    20. The Commission stated its intent that the changes introduced 
here will, first, cause applicants to give more

[[Page 18947]]

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 Sec.  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 case-by-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 high-level 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 Sec.  73.3571 of the rules, by explicitly 
providing that the interference standards in Sec.  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

[[Page 18948]]

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 Tribal-owned 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 government-to-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, non-tribal 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 non-Native 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.
---------------------------------------------------------------------------

    \4\ A 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 non-Tribal 
population.
    \5\ For 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 Tribal-oriented 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.
---------------------------------------------------------------------------

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 
tribal-owned commercial transmission service at the proposed community 
of license, in the case of proposed commercial facilities, or at least 
first local tribal-owned 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

[[Page 18949]]

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 well-served 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

[[Page 18950]]

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 non-
reserved 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 non-reserved 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 government-to-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 non-Tribal 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

[[Page 18951]]

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,

[[Page 18952]]

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 non-Tribal 
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

0
1. The authority citation for part 73 continues to read as follows:

    Authority:  47 U.S.C. 154, 303, 334, 336, and 339.

0
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:


Sec.  73.3571  Processing of AM broadcast station applications.

* * * * *
    (h) * * *
    (1) * * *
    (ii)(A) Such AM applicants will be subject to the provisions of 
Sec. Sec.  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:

[[Page 18953]]

    (1) Community of license coverage (day and night) as set forth in 
Sec.  73.24(i), and
    (2) Protection of co- and adjacent-channel station licenses, 
construction permits and prior-filed applications (day and night) as 
set forth in Sec. Sec.  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 Sec.  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 Sec.  73.3571:  For purposes of paragraph (h)(1)(ii) of 
this section, Sec.  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.



0
3. Section 73.7000 is amended by revising the definition of ``Tribal 
coverage'' to read as follows:


Sec.  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

0
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.


0
5. Section 74.1233 is amended by revising paragraph (a)(1), to read as 
follows:


Sec.  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 
Sec. Sec.  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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