Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations 9797 

* * * * * 

[FR Doc. 2010–4325 Filed 3–3–10; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WT Docket No. 10–18; DA 10–288] 

Procedural Amendments to 

Commission Competitive Bidding 

Rules 

AGENCY: Federal Communications 

Commission. 

ACTION: Correcting amendment. 

SUMMARY: The Federal Communications 

Commission published a document in 

the Federal Register at 75 FR 4701, 

January 29, 2010, revising Commission 

rules. This summary corrects the final 

rules by amending the headings of 47 

CFR 1.2105 and 1.2105(c) and the 

statutory authority for part 1. The 

change and restoration of language 

conforms the headings to the 

Commission’s intent. These corrections 

make no change to the substance of the 

rule, or the Commission’s interpretation 

or application of the rule. 

DATES: Effective March 4, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Wireless Telecommunications Bureau, 

Auctions and Spectrum Access Division: 

Sayuri Rajapakse at (202) 418–0660. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Part 1 

Procedural Amendments Order and 

Errata adopted February 24, 2010, and 

released on February 24, 2010. The 

complete text of the Part 1 Procedural 

Amendments Order and Errata is 

available for public inspection and 

copying from 8 a.m. to 4:30 p.m. ET 

Monday through Thursday or from 

8 a.m. to 11:30 a.m. ET on Fridays in the 

FCC Reference Information Center, 445 

12th Street, SW., Room CY–A257, 

Washington, DC 20554. The Part 1 

Procedural Amendments Order and 

Errata may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc. (BCPI), 445 

12th Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 202– 

488–5300, fax 202–488–5563, or you 

may contact BCPI at its Web site: 

http://www.BCPIWEB.com. When 

ordering documents from BCPI, please 

provide the appropriate FCC document 

number, for example, DA 10–288. The 

Part 1 Procedural Amendments Order 

and Errata is also available on the 

Internet at the Commission’s Web site: 

http://wireless.fcc.gov/auctions, or by 

using the search function for WT Docket 

No. 10–18 on the ECFS Web page at 

http://www.fcc.gov/cgb/ecfs/. 

1. The Wireless Telecommunications 

Bureau (Bureau) makes a conforming 

amendment to a recent Commission 

order and corrects errors in the Federal 

Register summary of that order, which 

made procedural amendments to section 

1.2105 of the Commission’s competitive 

bidding rules. 

2. On January 7, 2010, the 

Commission issued an Order which 

amended the rule specifying how to 

report potential violations of 47 CFR 

1.2105(c) and amended the rules 

specifying how quickly applicants must 

modify pending auction applications to 

satisfy the requirements of 47 CFR 

1.65(a) and 1.2105(b). The Order also 

modified the heading of paragraph 47 

CFR 1.2105(c). A summary of the Order 

was published in the Federal Register, 

75 FR 4701, January 29, 2010, but the 

changes made therein were not 

consistent with the Order as released. 

3. The Bureau now amends the 

heading of 47 CFR 1.2105 to read: 

Bidding application and certification 

procedures; prohibition of certain 

communications. The Order 

inadvertently preserved the phrase 

prohibition of collusion in the heading, 

and the Federal Register summary of 

the Order inadvertently deleted a 

portion of the rule’s heading. This 

change and restoration of language 

conforms the heading to the 

Commission’s intent underlying the 

Order. In the Order, the Commission 

recognized that collusion is a term used 

in many contexts, legal and economic, 

and that its use in connection with 47 

CFR 1.2105’s prohibition of certain 

communications by auction applicants 

may cause confusion. This amendment 

makes no change to the substance of the 

rule, or the Commission’s interpretation 

or application of the rule. 

4. The Bureau also confirms the 

Commission’s intention to amend the 

heading of paragraph 1.2105(c) to read 

Prohibition of certain communications 

rather than Prohibition of collusion. 

While this change is reflected in the 

Order, the Federal Register summary 

inadvertently omitted this language 

from the paragraph’s heading. 

5. The Bureau amends the list of 

statutory authorities for part 1 to correct 

inaccuracies that exist in the current 

version of the Code of Federal 

Regulations. 

List of Subjects in 47 CFR Part 1 

Administrative practice and 

procedures, Competitive bidding, 

Telecommunications. 

Federal Communications Commission. 

Jane E. Jackson, 

Associate Chief, Wireless 

Telecommunications Bureau. 

Correcting Amendment 

■ Accordingly, 47 CFR part 1 is 

corrected by the following amendments: 

PART 1—PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 1 is 

revised to read as follows: 

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 

151, 154(i), 154(j), 155, 157, 225, 303(r), and 

309. 

■ 2. Amend § 1.2105 by revising the 

section heading and the heading to 

paragraph (c) to read as follows: 

§ 1.2105 Bidding application and 

certification procedures; prohibition of 

certain communications. 

* * * * * 

(c) Prohibition of certain 

communications. * * * 

* * * * * 

[FR Doc. 2010–4425 Filed 3–3–10; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 09–52; FCC 10–24] 

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 streamline processing of AM and 

FM auction applications. 

DATES: Effective April 5, 2010. 

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. 


srobinson on DSKHWCL6B1PROD with RULES
9798 Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s First 

Report and Order (First R&O), FCC 10– 

24, adopted January 28, 2010, and 

released February 3, 2010. The full text 

of the First 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 

Brian Millin at (202) 418–7426 (voice), 

(202) 418–7365 (TTY), or via e-mail at 

Brian.Millin@fcc.gov. 

Paperwork Reduction Act of 1995 

Analysis 

This First Report and Order (First 

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 

With this First R&O, the Commission 

addresses some, but not all, of the 

proposals set forth in the Rural NPRM. 

It adopts, with modification, its 

proposal in the Rural NPRM for a Tribal 

Priority, as well as a number of other 

proposals codifying or clarifying auction 

procedures. The record provides ample 

support for immediate action on these 

matters. Accordingly, in this First R&O 

the Commission adopts the Tribal 

Priority with modifications. With regard 

specifically to AM application 

processing, the Commission adopts, 

with certain modifications, the proposal 

to prohibit the downgrading of proposed 

AM facilities that receive a dispositive 

preference under Section 307(b) and 

thus are not awarded through 

competitive bidding. It also adopts the 

proposal that technical proposals for 

AM facilities filed with Form 175 

applications meet certain minimum 

technical standards to be eligible for 

further auction processing, with some 

modifications, and adopts the proposal 

to grant the Media Bureau and the 

Wireless Telecommunications Bureau 

(collectively, the ‘‘Bureaus’’) delegated 

authority to cap the number of AM 

applications that may be filed in an AM 

auction filing window. The Commission 

also adopts proposals to streamline 

auction application processing; to 

codify the permissibility of nonuniversal engineering solutions and 

settlement proposals; to give the staff 

delegated authority and flexibility in 

setting the post-auction long-form 

application filing deadline; to clarify 

application of the new entrant bidding 

credit unjust enrichment rule; and to 

clarify maximum new entrant bidding 

credit eligibility. 

In the Rural NPRM, Commission 

tentatively concluded that it would be 

in the public interest to provide 

federally recognized Native American 

Tribes and Alaska Native Villages 

(Tribes) with a priority under Section 

307(b) of the Communications Act of 

1934, as amended (47 U.S.C. 307(b)), 

when proposing FM allotments, and 

when filing AM and noncommercial 

educational (NCE) FM filing window 

applications. As set forth in the Rural 

NPRM, an applicant would qualify for 

the Tribal Priority if: (1) The applicant 

(including a party filing a Petition for 

Rule Making to amend the FM Table of 

Allotments, 47 CFR 73.202) is either a 

federally recognized Tribe or tribal 

consortium, a member of a Tribe, or an 

entity more than 70 percent owned or 

controlled by members of a Tribe or 

Tribes; (2) at least 50 percent of the 

daytime principal community contour 

of the proposed facilities covers tribal 

lands; (3) the applicant proposed a first 

(Priority (1)) or second (Priority (2)) 

aural (reception) service to more than a 

de minimis population, or proposed a 

first local transmission service (Priority 

(3)) at the proposed community of 

license; and (4) the proposed 

community of license is located on 

tribal lands. The Commission further 

proposed that such a Tribal Priority 

rank between the current Priority (1) 

and co-equal Priorities (2) and (3), that 

is, the Tribal Priority would not take 

precedence over a proposal to provide 

first reception service to a greater than 

de minimis population, but would take 

precedence over a proposal to provide 

second local reception service or first 

local transmission service. The 

proposed Tribal Priority would apply 

only at the allotment stage of the 

commercial FM licensing procedures; as 

part of the threshold Section 307(b) 

analysis with respect to commercial or 

NCE AM applications filed during an 

AM filing window; and as the first part 

of the fair distribution analysis of 

applications filed in an NCE FM filing 

window, before application of the ‘‘first 

or second reserved channel NCE 

service’’ criterion set forth in 47 CFR 

73.7002(b). NCE applicants also would 

be required to meet all NCE eligibility 

and licensing requirements (47 CFR 

73.503 and 73.561). Certain ‘‘holding 

period’’ restrictions, commencing with 

the award of a construction permit until 

the completion of four years of on-air 

operation, would apply to any station or 

allotment awarded pursuant to the 

Tribal Priority. In the case of an AM or 

NCE FM construction permit awarded 

pursuant to a Tribal Priority, the 

permittee/licensee would be prohibited 

during this period from making any 

change in ownership that would lower 

tribal ownership below the required 

threshold, changing the station’s 

community of license, or implementing 

a facility modification that would cause 

the principal community contour to 

cover less than 50 percent of tribal 

lands. In the case of a commercial FM 

allotment, the restriction would apply 

only to any proposed change of 

community of license or technical 

change as described in the preceding 

sentence. However, even a non-tribal 

owner that is awarded a permit would 

still be required to provide broadcast 

service primarily to tribal lands for four 

years. 

Based on its examination of the record 

in this proceeding, the Commission 

adopts a Section 307(b) priority for 

Tribes or tribal consortia, and entities 

majority owned or controlled by Tribes, 

proposing service to tribal lands as 

proposed in the Rural NPRM. The Tribal 

Priority as adopted includes some 

modifications suggested by commenters. 

In addition, on its own motion the 

Commission clarifies the application of 

the Tribal Priority in commercial and 

NCE contexts, and modifies ownership 

requirements, eliminating the priority 

for individual members of Tribes or 

entities owned by such individuals, and 


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Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations 9799 

1As used here, ‘‘tribal lands’’ means both 

‘‘reservations’’ and ‘‘near reservation’’ lands. 

‘‘Reservations’’ is defined as any federally 

recognized Indian tribe’s reservation, pueblo or 

colony, including former reservations in Oklahoma, 

Alaska Native regions established pursuant to the 

Alaska Native Claims Settlements Act (85 Stat. 688), 

and Indian allotments. 47 CFR 54.400(e). ‘‘Near 

reservation’’ is defined as ‘‘those areas or 

communities adjacent or contiguous to reservations 

which are designated by the Department of 

Interior’s Commission of Indian Affairs upon 

recommendation of the Local Bureau of Indian 

Affairs Superintendent, which recommendation 

shall be based upon consultation with the tribal 

governing body of those reservations, as locales 

appropriate for the extension of financial assistance 

and/or social services on the basis of such general 

criteria as: Number of Indian people native to the 

reservation residing in the area; a written 

designation by the tribal governing body that 

members of their tribe and family members who are 

Indian residing in the area, are socially, culturally 

and economically affiliated with their tribe and 

reservation; geographical proximity of the area to 

the reservation and administrative feasibility of 

providing an adequate level of services to the area.’’ 

Id. Thus, ‘‘tribal lands’’ includes American Indian 

Reservations and Trust Lands, Tribal Jurisdiction 

Statistical Areas, Tribal Designated Statistical 

Areas, Hawaiian Homelands, and Alaska Native 

Village Statistical Areas, as well as the communities 

situated on such lands. 

instead extending the Tribal Priority 

only to Tribes, consortia of Tribes, and 

to entities that are majority owned or 

controlled by a Tribe or Tribes. 

The Commission finds that 

application of its traditional allocation 

priorities has not realized Section 

307(b)’s mandate to ‘‘make such 

distribution of licenses * * * among the 

several States and communities as to 

provide a fair, efficient, and equitable 

distribution of radio service’’ with 

regard to tribal lands.1 Tribal 

governments have a unique legal 

relationship with the federal 

government as domestic dependent 

nations with inherent sovereign powers 

over their members and territory. 

Because of their status as sovereign 

nations responsible for, among other 

things, maintaining and sustaining their 

sacred histories, languages, and 

traditions, tribal-owned radio stations 

have a vital role to play in serving the 

needs and interests of their local 

communities, yet only 41 radio stations 

currently are licensed to federallyrecognized Indian Tribes or affiliated 

groups. The Commission concludes that 

the establishment of an allocation 

priority for the provision of radio 

service to tribal lands by Indian tribal 

government-owned stations will 

advance its Section 307(b) goals and 

serve the public interest by enabling 

Indian tribal governments to provide 

radio service tailored to the needs and 

interests of their local communities that 

they are uniquely capable of providing. 

The Commission also finds that the 

Tribal Priority will advance the 

Commission’s longstanding 

commitment, in accordance with the 

federal trust relationship, to ensure, 

through its regulations and policy 

initiatives, that Indian Tribes have 

adequate access to communications 

services. The new Tribal Priority will 

promote Tribes’ sovereign rights by 

enabling them to provide vital radio 

services to their communities. Further, 

the Commission concludes that the 

establishment of a Tribal Priority will 

promote the policies and purposes of 

the Communications Act favoring 

diversity of media voices, and 

strengthening the diverse and robust 

marketplace of ideas that is essential to 

our democracy. 

In response to the Commission’s 

query regarding the constitutionality of 

the Tribal Priority, Native Public Media 

and the National Congress of American 

Indians (NPM/NCAI) concluded that the 

Tribal Priority would not trigger the 

strict scrutiny analysis of the case of 

Adarand Constructors, Inc. v. Pena, 515 

U.S. 200 (1995), but rather a rational 

basis standard of review. This is 

because, as stated in the Supreme Court 

case of Morton v. Mancari, 417 U.S. 535 

(1974), the proposed benefit would be 

granted to Tribes and their members not 

as a discrete racial group, but, rather, as 

members of quasi-sovereign tribal 

entities whose lives and activities are 

governed in a unique fashion. The 

Commission agrees that the priority 

established herein for the benefit of 

federally recognized Tribes is not 

constitutionally suspect because it is 

based on the unique legal status of 

Indian Tribes under Federal law. 

Accordingly, the Commission believes 

that the Tribal Priority is consistent 

with the Equal Protection Clause of the 

Fifth Amendment to the United States 

Constitution. 

As proposed, the Tribal Priority also 

tied the application preference to the 

needs of tribal communities by 

requiring that, to qualify for the priority, 

commercial applicants must propose 

either a first or second aural service, or 

a first local transmission service at a 

community located on tribal lands. The 

existence of a non-tribal commercial 

station or stations at a community 

located on tribal lands should not 

preclude the establishment of a first 

local transmission service owned by a 

Tribe or Tribes. Thus, the Commission 

modifies the service criterion for the 

Tribal Priority to require that a 

qualifying commercial applicant 

propose first or second aural (reception) 

service, or a first local tribal-owned 

transmission service at the proposed 

community. Thus, a commercial tribalowned applicant may qualify for a 

Tribal Priority, notwithstanding the fact 

that a tribal-owned NCE station is 

licensed at the same community. As the 

Commission proposed in the Rural 

NPRM, however, the Tribal Priority will 

not take precedence over a bona fide 

proposal to provide first reception 

service to a significant population. 

The Commission makes certain 

modifications to the Tribal Priority 

suggested by commenters. First, the 

Commission will allow assignments or 

transfers within the four-year holding 

period provided that the assignee/ 

transferee also qualifies for the Tribal 

Priority in all respects. Second, the 

Commission will permit gradual 

changes in the governing board of an 

NCE permittee or licensee during the 

four-year holding period, as is the case 

with other NCE holding period 

restrictions, as long as the majority 

tribal control threshold (discussed 

below) is maintained. Third, the 

Commission finds that the goals 

underlying the Tribal Priority are not 

undermined by allowing Tribes to claim 

the Tribal Priority for both commercial 

and NCE stations in the same 

community. A tribal-owned NCE 

applicant may qualify for a Tribal 

Priority, notwithstanding the fact that a 

tribal-owned commercial station is 

licensed to the same community (in the 

same way that the existence of a tribalowned NCE station does not preclude 

use of the priority by a commercial 

applicant, as discussed above). The 

Commission thus modifies the third 

prong of the test for tribal-owned NCE 

applicants to state that, to qualify for the 

Tribal Priority, a tribal applicant seeking 

NCE facilities will promote Section 

307(b) goals by meeting the tribal lands 

50 percent signal coverage and 

community of license requirements, and 

also by demonstrating that it will 

provide the first tribal-owned NCE 

transmission service at the proposed 

community of license. If a tribal NCE 

applicant meets these criteria, it will not 

be compared to other mutually 

exclusive applicants on a fair 

distribution basis, but will be the 

tentative selectee. As is the case with 

commercial applicants, the Tribal 

Priority for an NCE applicant will not 

take precedence over a bona fide 

proposal to provide first aural reception 

service to a significant population. If 

two or more mutually exclusive 

proposals from tribal NCE applicants 

qualify for a Tribal Priority, proposing 

first local tribal-owned NCE service at 

the same community, the tentative 

selectee will be the applicant proposing 

service to the greatest population on 

tribal lands. The Commission will not 


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9800 Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations 

require the 5,000-person population 

differential that exists in the current 

NCE analysis, but adds the ‘‘on tribal 

lands’’ requirement so as to award the 

permit to the applicant most 

successfully meeting the Tribal 

Priority’s goal of providing service to 

underserved tribal communities that 

meets their unique cultural needs. 

Moreover, the Commission will make 

this comparison even if the mutually 

exclusive tribal applicants propose first 

local NCE service at different 

communities, unlike the usual Priority 

(3) analysis, under which the most 

populous community receives a 

dispositive Section 307(b) preference. 

The goals of the Tribal Priority are better 

served by selecting a smaller 

community that provides greater 

reception service than by choosing a 

more remote, but slightly larger, 

community. Thus, the foregoing 

comparison will be applied between 

mutually exclusive NCE applicants 

claiming the Tribal Priority, whether 

they propose the same or different 

communities of license. For the same 

reason, mutually exclusive applicants 

claiming the Tribal Priority for 

commercial facilities, and proposing 

first local transmission service at the 

same community or at different 

communities, will be compared based 

on service to the greatest population on 

tribal lands. 

The Commission also modifies the 

Tribal Priority on its own motion. Upon 

its consideration of the Rural NPRM, 

and review of pertinent federal law, the 

Commission is no longer convinced that 

extending the Tribal Priority to 

individual members of Tribes, or 

entities owned by individuals without 

ownership by the Tribes themselves, 

advances the Commission’s interest in 

helping promote tribal self-sufficiency 

and economic development, and 

endeavoring to ensure that Tribes and 

tribal communities have adequate 

access to communications services. It is 

well established that the Commission’s 

trust relationship is with the Tribes and 

tribal governments themselves, rather 

than individual members of Tribes. As 

an independent federal agency, the 

Commission looks to the tribal 

governments, rather than to individual 

members of Tribes, to determine 

communications policies that best serve 

the unique needs of their respective 

communities, and fulfill the needs of all 

tribal citizens. Individual members of 

tribes are not necessarily bound to take 

such factors into account. By limiting 

the Tribal Priority to Tribes themselves, 

the Commission not only furthers the 

legitimate governmental objective of 

preserving Native American culture, but 

also promotes the federal government’s 

interest in furthering tribal selfgovernment. Thus, the Commission 

concludes that the Tribal Priority 

should extend only to (1) Tribes; (2) 

tribal consortia; or (3) entities that are 

51 percent or more owned or controlled 

by a Tribe or Tribes. The Commission’s 

general attribution rules (found in 47 

CFR 73.3555 and Notes 1 and 2 to that 

rule) shall determine the ownership or 

control of any such qualifying entities. 

Qualifying Tribes or tribal entities must 

be those at least a portion of whose 

tribal lands lie within the proposed 

station’s principal community contour. 

The principal community contour must 

still cover at least 50 percent of tribal 

lands (subject to the provisos proposed 

in the Rural NPRM, including those on 

‘‘checkerboarded’’ tribal lands), but they 

need not all be the same Tribe’s lands. 

Tribes whose lands are not covered by 

the proposed facility may invest or sit 

on controlling boards, but their 

investments or board membership will 

not count toward the 51 percent 

threshold. 

The Commission therefore adopts the 

Tribal Priority as proposed in the Rural 

NPRM with the following modifications: 

(1) It will allow assignments or transfers 

of permits or licenses obtained using the 

Tribal Priority during the four-year 

holding period, provided that the 

assignee/transferee also qualifies for the 

Tribal priority in all respects; (2) with 

regard to NCE permittees or licensees 

who obtained their authorization using 

the Tribal Priority, it will permit gradual 

changes in the governing board during 

the four-year holding period, as long as 

the 51 percent tribal control threshold is 

maintained; (3) eligibility to claim the 

Tribal Priority is limited to Tribes, tribal 

consortia, or entities 51 percent or more 

owned or controlled by a Tribe or 

Tribes; (4) with regard to entities 51 

percent or more owned or controlled by 

Tribes, the 51 or greater percent need 

not consist of a single Tribe, but the 

qualifying entity must be 51 percent or 

more owned or controlled by Tribes at 

least a portion of whose tribal lands lie 

within the facility’s principal 

community contour, as defined in the 

Commission’s Rules; (5) the requirement 

of principal community coverage of 50 

percent or more of tribal lands does not 

require that those lands belong to the 

same Tribe; (6) to qualify for the 

priority, a tribal commercial applicant 

must propose first or second aural 

(reception) service or first local 

commercial tribal-owned transmission 

service at the proposed community of 

license; and (7) to qualify for the 

priority, a tribal NCE applicant must 

propose a first local NCE tribal-owned 

transmission service at the proposed 

community of license. 

In the Rural NPRM, the Commission 

stated that when a mutually exclusive 

AM auction filing window applicant 

receives a dispositive preference under 

Section 307(b), it should not be allowed 

to downgrade that proposal to serve a 

smaller population, or otherwise negate 

the factors that led to the award of the 

dispositive preference, so as not to 

encourage ‘‘gaming’’ of the Section 

307(b) process. The Commission 

tentatively concluded that AM licensees 

or permittees receiving Section 307(b) 

preferences should be required, for a 

period of four years, to provide service 

substantially as proposed in their shortform tech box submissions. The 

Commission adopts a modified version 

of its proposal to limit the downgrading 

of proposed AM facilities that receive a 

dispositive Section 307(b) preference, 

recognizing that a certain level of 

flexibility in implementing AM 

proposals will help expedite the 

commencement of new service and 

reduce the possibility of unbuildable 

construction permits. Thus, to the 

extent underserved populations or 

service totals are relevant to a Section 

307(b) analysis, the Commission adopts 

the proposal as follows: an AM licensee 

or permittee receiving a dispositive 

Section 307(b) preference may modify 

its facilities so long as it continues to 

provide the same priority service to 

substantially the same number of 

persons who would have received such 

service under the initial proposal, even 

if the population is not the same 

population that would have received 

service under the initial proposal. As 

used here, ‘‘substantially’’ means that 

any proposed modification must not 

result in a decrease of more than 20 

percent of any population figure that 

was a material factor in obtaining the 

dispositive Section 307(b) preference. 

For example, if an AM licensee or 

permittee receives a dispositive Priority 

(4) preference for proposing to provide 

a third aural service to a population of 

500 persons and service to an overall 

population of 100,000, it may not file an 

FCC Form 301 application that would 

provide a third aural service to fewer 

than 400 persons or service to an overall 

population of less than 80,000. The 

same analysis applies to any party that 

receives a dispositive Priority (1) or 

Priority (2) preference. In some cases 

this may result in a reduction of service 

below that presented by a competing 

proposal in the Section 307(b) analysis, 

but there is no guarantee that the 


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Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations 9801 

competing proposal could have been 

effectuated as proposed in such cases. 

Additionally, a licensee or permittee 

that has received a dispositive 

preference under Priority (3) will be 

prohibited from changing its community 

of license. These restrictions will be 

imposed for a period of four years of onair operations, consistent with 

Commission rules governing NCE FM 

stations. Construction permits and 

licenses issued to these parties will 

contain conditions delineating these 

restrictions. 

In the Rural NPRM, the Commission 

observed that its current auction 

processing rules limit technical review 

of basic engineering data filed with AM 

short-form applications only to the 

extent necessary to determine the 

mutually exclusive groups of 

applications. Originally designed to 

conserve staff resources and expedite 

auction processing, this practice has 

contributed to the filing of patently 

defective applications, potentially 

undermining the accuracy and 

reliability of mutual exclusivity and 

Section 307(b) determinations, and 

frustrate the staff’s ability to manage the 

window filing process efficiently. Such 

defective applications may preclude the 

filing of meritorious modification 

applications by existing facilities, which 

must protect the prior-filed defective 

applications. In the Rural NPRM the 

Commission tentatively concluded that 

47 CFR 73.3571(h)(1)(ii) should be 

modified to require that applicants in 

future AM broadcast auctions must, at 

the time of filing, meet the following 

basic technical eligibility criteria: 

community of license coverage (day and 

night); and protection of existing AM 

facilities and prior-filed proposed AM 

facilities (daytime and nighttime). It also 

tentatively concluded that the rules 

should be modified to prohibit the 

amendment of applications that, at time 

of filing, are technically ineligible to 

proceed with auction processing, and 

prohibit applicants that propose such 

technically ineligible applications from 

participating in the auction process. 

This would preclude attempts to amend 

or correct data submitted in Form 175 

or the tech box, including proposals to 

change community of license before an 

applicant has been awarded a 

construction permit. The Commission 

adopts the proposed rule changes set 

forth in the Rural NPRM. To alleviate 

concerns raised by some commenters, 

the Commission will provide applicants 

with a one-time opportunity to file a 

curative amendment to its short-form 

application. Specifically, if the staff 

review shows that an application does 

not meet one or more of the eligibility 

criteria, it will be deemed ‘‘technically 

ineligible for filing’’ and will be 

included on a Public Notice 

(Technically Ineligible Notice), which 

will list defective applications 

identified by the staff during their initial 

review of the application, identify 

which of the defects that the applicant 

must correct, and set the deadline for 

doing so. Only applicants whose 

applications are included in the 

Technically Ineligible Notice may file a 

curative amendment. Applicants may 

not modify any part of a proposal not 

directly related to an identified 

deficiency in their curative 

amendments. Applicants may only 

modify the AM technical parameters of 

the short-form application, such as 

power, class (within the limits set forth 

in 47 CFR 73.21), antenna site or other 

antenna data. 

Amendments seeking to change a 

proposed community of license or 

frequency will not be accepted. 

Notwithstanding this rule change, full 

technical review of applications will not 

occur until winning bidders file longform applications after an auction. This 

opportunity to cure is not to be 

considered a settlement opportunity 

under 47 CFR 73.5002(d). The 

opportunity to file a curative 

amendment will occur prior to the 

disclosure by the Commission of any 

information on applications submitted 

during the short-form filing window. 

Notwithstanding the broadcast anticollusion rules, which generally apply 

upon the filing of a short-form 

application, 47 CFR 73.5002(d) provides 

applicants in certain mutually exclusive 

groups (MX Groups) a limited 

opportunity to communicate during 

specified settlement periods in order to 

resolve conflicts by means of technical 

amendment or settlement. This 

exception applies only to those MX 

Groups that include either (1) At least 

one AM major modification; (2) at least 

one NCE application; or (3) applications 

for new stations in the secondary 

broadcast services. Currently, the rule 

neither prohibits the Commission from 

accepting non-universal technical 

amendments or settlement proposals— 

which reduce the number of applicants 

in a group but do not completely resolve 

the mutual exclusivities of that group— 

nor requires it to do so. Given the 

success of staff auction practice in 

accepting non-universal technical 

amendments and settlement proposals, 

the Commission adopts its proposal to 

codify the permissibility of nonuniversal engineering solutions and 

settlement proposals as proposed in the 

Rural NPRM, as long as this process 

results in at least one singleton 

application that proceeds to long-form 

processing. Accordingly, the 

Commission revises its rules to permit 

non-universal technical amendments 

and settlement proposals that result in 

at least one singleton application from 

an MX Group. An applicant submitting 

a technical amendment pursuant to this 

policy is required only to resolve all 

mutual exclusivities for at least one 

application in the relevant MX Group, 

but need not resolve all technical 

conflicts among all applications in that 

group. 

The Commission observed in the 

Rural NPRM that the Rules currently do 

not limit the number of AM Tech Box 

applications that may be filed with FCC 

Form 175 during an AM short-form 

filing window. It noted that an 

increasing number of applicants had 

availed themselves of the opportunity to 

file multiple technical submissions, and 

questioned whether a significant 

percentage of AM short-form filing 

window applications were merely 

speculative. Accordingly, the 

Commission sought comment on 

whether (1) to delegate to the Bureaus 

authority to limit, in an AM short-form 

filing window, the number of tech box 

submissions that an applicant could file 

with its Form 175 and, if so, the 

appropriate limitation on this 

delegation; and (2) to apply Commission 

attribution standards to determine the 

number of filings submitted by any 

party, to guard against the use of 

affiliates or even sham entities to 

circumvent such a cap. The Commission 

finds that delegating authority to the 

Bureaus to impose application caps in 

AM short-form filing windows will help 

to prevent speculative applications, 

decreasing the likelihood of mutually 

exclusive applications, and in turn 

decreasing the likelihood of large, 

technically complex, and 

administratively burdensome MX 

Groups. A cap can also help expedite 

application processing and prevent 

abuses of licensing procedures, and will 

enable the Bureaus to open AM shortform filing windows more frequently, 

thereby promoting—rather than 

restricting—new entrant opportunities. 

Accordingly, the Commission delegates 

authority to the Bureaus to determine, 

for each AM short-form window, 

whether to limit the number of AM 

applications that may be filed by an 

applicant and, if so, the appropriate 

application cap based on the particular 

circumstances presented by future 

auctions. The Commission also 

delegates to the Bureaus authority to 

adopt attribution standards to effectuate 


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the goals of an application cap, and to 

ensure compliance with this restriction. 

It directs the Bureaus to provide notice 

and an opportunity for comment on a 

cap limit and attribution standards prior 

to imposing these potential filing 

restrictions. Any such cap limit and 

attribution standards will be announced 

in the Public Notice establishing the 

dates for the Form 175 filing window. 

The Commission’s Rules currently 

provide, without exception, that each 

winning bidder in a broadcast auction 

must submit an appropriate long-form 

application within thirty (30) days 

following the close of bidding. In the 

Rural NPRM, the Commission observed 

that this inflexible 30-day time frame 

has, at times, proved to be problematic, 

for example, when the close of an 

auction causes the long-form 

application filing deadline to fall during 

the December holiday season, 

inconveniencing applicants and their 

consultants. The Commission therefore 

modifies 47 CFR 73.5005(a) as set forth 

in the Rural NPRM, to delegate 

authority to the Bureaus to extend the 

filing deadline for the post-auction 

submission of long-form applications. 

To promote the objectives of 47 U.S.C. 

309(j) and further its long-standing 

commitment to broadcast facility 

ownership diversity, the Commission 

adopted a tiered new entrant bidding 

credit (NEBC) for broadcast auction 

applicants with no, or very few, other 

media interests. To meet the statutory 

obligation to prevent unjust enrichment, 

and to ensure that the NEBC would aid 

eligible individuals and entities to 

participate in broadcast auctions, the 

Commission adopted rules requiring, 

under certain circumstances, 

reimbursement of bidding credits used 

to obtain broadcast licenses. In the Rural 

NPRM, the Commission proposed to 

clarify certain issues concerning the 

unjust enrichment provisions of the 

NEBC that had been raised during 

previous broadcast auctions. First, 

under 47 CFR 73.5007(b), a winning 

bidder is not eligible for the NEBC if it, 

or any party with an attributable interest 

in the winning bidder, has an 

attributable interest in any existing 

media facility in the ‘‘same area’’ as the 

proposed new facility, that is, if 

specified service contours of the two 

facilities overlap. In the FM service, in 

the pre-auction Form 175 application, 

an applicant may submit a set of 

‘‘preferred site coordinates’’ as an 

alternative to the reference coordinates 

for the vacant FM allotment upon which 

it intends to bid. The preferred site 

coordinates specified by prospective 

auction participants would be entered 

into the Commission’s database and 

protected from subsequent filings. In the 

Rural NPRM, the Commission sought to 

clarify that, for purposes of defining the 

‘‘same area’’ restriction for the NEBC, the 

contour of the proposed FM facility 

would be identified by the maximum 

class facilities at the FM allotment site, 

so that applicants could not attempt to 

avoid the overlap of contours which 

defines ‘‘same area,’’ and thereby qualify 

for the bidding credit, by specifying 

preferred site coordinates in their Form 

175 application. The Commission 

adopts this proposal, which will 

provide certainty to applicants and help 

safeguard the diversity and competition 

goals on which the NEBC is based by 

eliminating potential applicant 

manipulation of our ‘‘new entrant’’ 

standards. The Commission also 

clarifies, under 47 CFR 73.5007(b)(3), 

that it will base this proposed FM 

facility contour standard on an 

assumption of uniform terrain, which 

results in a perfectly circular standard 

70 dBu contour. 

Second, to prevent unjust enrichment 

by parties that acquire permits through 

the use of a NEBC, 47 CFR 73.5007(c) 

requires reimbursement to the 

Commission of all or part of the credit 

upon a subsequent assignment or 

transfer, if the proposed assignee or 

transferee is not eligible for the same 

percentage of bidding credit. The rule is 

routinely applied to ‘‘long form’’ 

assignment or transfer of control 

applications filed on FCC Forms 314 

and 315, but does not distinguish 

between pro forma and non-pro forma 

assignments or transfers of control. In 

the Rural NPRM the Commission 

invited comment as to whether the 

unjust enrichment analysis should also 

apply to voluntary or involuntary pro 

forma assignments or transfers filed on 

Form 316. The Commission tentatively 

concluded that the unjust enrichment 

provisions should apply to pro forma 

assignment and transfer of control 

applications, thus eliminating any 

applicant confusion on the issue. The 

Commission finds it appropriate 

generally to apply the unjust 

enrichment provisions contained in 47 

CFR 73.5007(c) to pro forma 

applications to assign or transfer 

broadcast licenses and permits, 

pursuant to 47 CFR 73.3540(f), in order 

to help preserve the integrity of the 

designated entity measures adopted in 

prior auction orders. A pro forma 

assignment or transfer can include new 

parties, including parties with 

attributable interest holdings that would 

nullify or diminish the eligibility of the 

assignee or transferee for the bidding 

credit. This is especially the case in 

transactions eligible for pro forma 

treatment involving corporate 

reorganizations where a new 

attributable interest holder with other 

media interests is added. Moreover, 

such an unjust enrichment analysis 

allows for consistency in the application 

of the rule. It further ensures that 

applicants do not use the summary pro 

forma assignment and transfer 

procedures to circumvent the unjust 

enrichment requirements. Thus, the 

Commission adopts the unjust 

enrichment analysis recommended in 

the Rural NPRM, but will only apply the 

unjust enrichment analysis to voluntary 

pro forma transactions, and not to 

involuntary pro forma transactions. 

Notwithstanding this decision, it will 

continue to address, on a case-by-case 

basis, any conduct engaged in by 

auction participants with the evident 

intention of manipulating the eligibility 

standards for, or frustrating the purpose 

of, the NEBC. 

As described in the Rural NPRM, 

applicants to participate in broadcast 

auctions are required to establish their 

qualifications for the NEBC on their 

short-form applications (FCC Form 175), 

Application to Participate in an FCC 

Auction, which is the sole opportunity 

for the applicant to claim bidding credit 

eligibility. Applicants meeting the 

eligibility criteria set forth in 47 CFR 

73.5007 qualify for a bidding credit 

representing the amount by which a 

winning bidder’s gross bid is 

discounted. The size of a NEBC depends 

on the number of ownership interests in 

other media of mass communications 

that are attributable to the bidder-entity 

and its attributable interest-holders. In 

accordance with 47 CFR 73.5008(c), 

when determining an applicant’s 

eligibility for the NEBC, the interests of 

the applicant, and of any individuals or 

entities with an attributable interest in 

the applicant, in other media of mass 

communications are considered. An 

auction applicant’s attributable 

interests, and therefore its maximum 

NEBC eligibility, are determined as of 

the Form 175 filing deadline. 

Consequently, the Commission has 

consistently held, and has announced in 

auction Public Notices, that bidders 

cannot qualify for a bidding credit, nor 

increase the size of a previously claimed 

bidding credit, based upon ownership 

or positional changes occurring after the 

Form 175 filing deadline. Nonetheless, 

as noted in the Rural NPRM, certain 

parties have argued that their NEBC 

eligibility is maintained or ‘‘frozen’’ as of 

the Form 175 application filing. 

Therefore, to prevent applicant 

confusion, the Commission proposed to 


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amend 47 CFR 73.5007(a) to codify the 

current policy, and state explicitly that 

the NEBC eligibility set forth in an 

applicant’s Form 175 application is the 

maximum NEBC eligibility for that 

auction, and that such bidding credit 

may be reduced or lost upon post-filing 

changes. The Commission adopts this 

change, and modifies 47 CFR 73.5007(a) 

to state unequivocally that: (1) An 

applicant must specify its eligibility for 

the NEBC in its Form 175 application; 

(2) the NEBC specified in an applicant’s 

Form 175 establishes that applicant’s 

maximum NEBC eligibility for that 

auction; (3) any post-Form 175 filing 

(post-filing) change in the applicant’s 

circumstances underlying its NEBC 

eligibility claim, or that of any 

attributable interest-holder in the 

applicant, must be reported 

immediately to the Commission, and no 

later than five business days after the 

change occurs; and (4) any such postfiling change may cause a reduction or 

elimination of the NEBC claimed in the 

applicant’s Form 175 application, if the 

change would cause the applicant not to 

qualify for the originally claimed NEBC 

under the eligibility provisions of 47 

CFR 73.5007, and the change occurred 

prior to grant of the construction permit 

to the applicant. Under no 

circumstances will a post-filing change 

increase an applicant’s NEBC eligibility 

for that auction. The Commission also 

emphasizes that all of ways in which 

interests are attributed to individuals 

and entities (as set forth in 47 CFR 

73.3555 and Note 2 to that Section) will 

be considered to affect NEBC eligibility 

when they occur after the Form 175 

filing deadline. 

By auction Public Notices, bidders are 

also instructed that any change that 

results in the reduction or loss of the 

NEBC originally claimed on the Form 

175 application, must be reported 

immediately, and no later than five 

business days after the change occurs. In 

the Rural NPRM the Commission 

proposed to adjust the standard 

reporting timeframe and codify this 

immediate reporting requirement. In 

keeping with the rule amendments it 

recently adopted in Procedural 

Amendments to Commission Part 1 

Competitive Bidding Rules, Order, FCC 

10–4 at 5 (rel. Jan. 7, 2010), the 

Commission codifies the practice that 

any changes affecting NEBC eligibility 

must be reported immediately, and in 

any event no later than five business 

days after the change occurs, and 

amends 47 CFR 73.5007(a) accordingly. 

The Commission will continue to make 

final determinations regarding an 

applicant’s eligibility to hold a 

construction permit, including 

eligibility for and amount of the NEBC, 

when it is ready to grant the postauction long form construction permit 

application. 

Final Regulatory Flexibility Analysis. 

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. This First R&O 

adopts rule changes and procedures to 

codify or clarify certain allotment, 

assignment, auction, and technical 

procedures. The rules adopted by this 

First R&O also create a new Tribal 

Priority to assist Tribes or tribal 

consortia, or entities controlled by 

Tribes, in obtaining radio broadcast 

stations designed to serve their tribal 

communities. 

We turn first to the Tribal Priority. 

The Commission noted the marked 

disparity in the Native American and 

Alaskan Native population of the United 

States, compared to the number of radio 

stations licensed to, or providing 

significant signal coverage to, lands 

occupied by members of Tribes. Tribal 

lands comprise 55.7 million acres, or 2.3 

percent of the area of the United States 

(exclusive of the State of Alaska). 

Roughly one-third of the 4.1 million 

American Indian and Alaska Native 

population of the United States lives in 

tribal lands, yet only 41 radio stations 

currently are licensed to Tribes or 

affiliated groups, representing less than 

one-third of one percent of the more 

than 14,000 radio stations in the United 

States. This service disparity belies the 

goal of fair distribution of radio service 

mandated by Section 307(b) of the 

Communications Act of 1934, as 

amended, as well as the Commission’s 

commitment to promoting diversity of 

station ownership and programming. 

The Commission also noted its historic 

trust relationship with Tribes, and the 

federal policy goals of assisting Tribes 

in promoting tribal culture and selfgovernment. 

To remedy these problems, the 

Commission concluded that Tribes 

seeking new radio stations to serve their 

citizens should receive a priority in the 

award of allotments and construction 

permits. To qualify for the Tribal 

Priority, an applicant must demonstrate 

that it meets 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. Although the 51 

or greater percent need not consist of a 

single Tribe, the qualifying entity must 

be 51 percent or more owned or 

controlled by Tribes at least a portion of 

whose tribal lands lie within the 

facility’s principal community contour; 

(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 

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. In the event 

that two or more applicants claiming the 

Tribal Priority are mutually exclusive, 

the one providing the highest level of 

service to the greatest population will 

prevail. The Tribal Priority ranks 

between the current Priority (1) and coequal Priorities (2) and (3) in the case of 

commercial applicants. Thus, the Tribal 

Priority will not take precedence over a 

proposal to provide first reception 

service to a greater than de minimis 

population, but will take precedence 

over the provision of second local 

reception service, or over a proposal for 

first local non-tribal owned 

transmission service. Likewise, an NCE 

applicant qualifying for the Tribal 

Priority will take precedence over all 

mutually exclusive applications, except 

those that propose bona fide first 

reception service to a greater than de 

minimis population. 

The Tribal Priority will be applied 

only at the allotment stage of the 

commercial FM licensing procedures, to 

commercial AM applications filed 

during an AM filing window, as part of 

the threshold Section 307(b) analysis, 

and to applications filed in an NCE FM 

filing window as the first part of the fair 

distribution analysis. NCE applicants 

must also meet all NCE eligibility and 

licensing requirements. Holding period 

restrictions, commencing with the 

award of a construction permit until the 

completion of four years of on-air 

operation, will apply to any 

authorization or allotment awarded 

pursuant to the Tribal Priority. In the 


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case of an AM or NCE FM authorization 

awarded to a tribal applicant, the 

permittee/licensee will be prohibited 

during this period from making any 

change that would lower tribal 

ownership below the 51 percent 

threshold, a change of community of 

license, or a technical change that 

would cause less than 50 percent of the 

principal community contour to cover 

tribal lands. However, gradual changes 

in the composition of an NCE board that 

do not change the nature of the 

organization or break continuity of 

control will not violate the four-year 

holding period restrictions. In the case 

of a commercial FM allotment, the 

restrictions will apply only to any 

proposed change of community of 

license or technical change as described 

above. The winner at auction of an FM 

allotment added to the Table of 

Allotments under a Tribal Priority, 

whether Tribal or non-Tribal, must still 

provide broadcast service primarily to 

tribal lands for the entire four-year 

holding period. 

Additionally, in the First R&O the 

Commission requires that applicants 

receiving dispositive preferences for AM 

facilities under section 307(b) of the 

Communications Act of 1934, as 

amended, be prohibited from 

substantially downgrading the facilities 

on which the Section 307(b) award was 

based. This prohibition was designed to 

provide basic fairness in the award of a 

dispositive preference to one proposal 

in a group of several mutually exclusive 

proposals. That is, it would be unfair to 

allow one member of a mutually 

exclusive group to be awarded a 

construction permit without auction, 

based on the superior population 

coverage in its proposal, only then to 

allow it to downgrade its proposal to the 

point where it would no longer be 

significantly different from the other 

mutually exclusive proposals. 

The First R&O also establishes 

procedures by which applicants in AM 

auction filing windows must submit 

technical proposals that meet minimum 

technical eligibility criteria. The 

Commission noted the number of 

incomplete or technically defective 

proposals filed in AM auction filing 

windows. Such proposals undermine 

the accuracy and reliability of our 

mutual exclusivity and Section 307(b) 

determinations, and frustrate the staff’s 

ability to manage the window filing 

process efficiently. Moreover, such 

defective applications preclude the 

filing of meritorious modification 

applications by existing facilities, which 

must protect the prior-filed defective 

applications. In short, allowing the 

filing of technically defective proposals 

places a strain on the Commission’s 

resources and, consequently, delays 

consideration of meritorious proposals 

and provision of new service to the 

public. 

Likewise, the First R&O contains two 

other proposals designed to streamline 

the AM auction process and speed new 

service to the public: The grant of 

delegated authority to the Media Bureau 

to allow AM auction filing window 

applicants to submit settlements or 

technical resolutions that do not resolve 

all the mutual exclusivities in a 

mutually exclusive group, as long as the 

proposal results in one ‘‘singleton’’ 

application from the group; and the 

grant of delegated authority to the 

Media Bureau and Wireless 

Telecommunications Bureau to cap the 

number of AM applications that may be 

filed during a filing window. The 

Commission also grants the Media and 

Wireless Telecommunications Bureau’s 

delegated authority to extend the 

deadline for filing post-auction longform applications, as appropriate, thus 

providing successful auction applicants 

with greater flexibility in preparing such 

applications. 

Finally, in the First R&O the 

Commission clarifies certain aspects of 

the rules governing the new entrant 

bidding credit (NEBC): That for 

purposes of determining whether an 

auctioned allotment is in the ‘‘same 

area’’ as an applicant’s other media 

properties, we will use the maximum 

class facilities at the allotment site, 

rather than applicant specified-preferred 

coordinates; that unjust enrichment 

payments by assignors who used the 

NEBC in paying for their permit apply 

even to pro forma assignments or 

transfers filed on FCC Form 316; and 

that an applicant’s maximum NEBC 

eligibility is established as of the 

deadline for filing short-form 

applications, but that the eligibility may 

be lost or diminished based on postfiling changes in the applicant’s 

situation. In clarifying these rules and 

policies, the Commission will provide 

greater certainty to applicants, reducing 

any confusion and, therefore, burden 

when preparing and filing auction 

applications. 

Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA. 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. 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 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). 

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 March 17, 2009, 10,884 

(95%) of 11,404 commercial radio 

stations have revenue of $6 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, 

Recordkeeping and other Compliance 

Requirements. As described, certain 

rules and procedures will change, 

although the changes will not result in 

substantial increases in burdens on 

applicants. Questions will be added to 

FCC Forms 340, 314, and 315 to 

establish Section 307(b) eligibility for 

the Tribal Priority or compliance with 

holding period restrictions in the event 

of an assignment or transfer. Questions 

will also be added to FCC Form 316 

based on the Commission’s conclusion 

that the new entrant bidding credit 

unjust enrichment rules apply to pro 

forma assignment and transfer 


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Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations 9805 

applications. These are largely selfidentification questions or questions 

regarding the duration of on-air 

operation, requiring minimal 

calculation. In certain cases (AM 

auction filing window applications and 

FM allotment proceedings), Section 

307(b) information is already required, 

thus the information needed to be 

collected from applicants claiming the 

Tribal Priority is of the same character 

as that already collected, resulting in 

little or no increase in burden on such 

applicants. The remaining procedural 

changes in the First 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 need not 

submit more technical information than 

is already collected; the procedural 

change merely adds consequences when 

that information does not meet certain 

already extant technical standards. 

Steps Taken To Minimize Significant 

Impact of Small Entities, and 

Significant Alternatives Considered. The 

RFA requires an agency to describe any 

significant alternatives that it has 

considered in reaching its proposed 

approach, which may include the 

following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities (5 U.S.C. 603(c)(1)– 

(c)(4)). 

The Tribal Priority adopted in the 

First R&O was modified from the 

original proposal specified in the Rural 

NPRM, based on comments in the 

record and on the Commission’s 

evaluation of the legal ramifications of 

the priority, especially with regard to 

the Commission’s government-togovernment relationship with Tribes. As 

adopted, the Tribal Priority can 

disadvantage certain applicants whose 

applications or proposals are mutually 

exclusive with those of applicants 

qualifying for the Tribal Priority. 

However, after due consideration, the 

Commission believes that the priority is 

necessary to redress an imbalance in the 

number of Native American 

broadcasters vis-a`-vis native 

populations and lands, and to further 

the Commission’s interests in promoting 

diversity of ownership and 

programming, in assisting Tribes to 

promulgate tribal language and culture, 

and in helping to promote selfgovernment by Tribes. Thus, the 

Commission has determined that the 

Tribal Priority as adopted is the least 

burdensome method to achieve its 

policy goals, consonant with 

constitutional and other legal 

requirements. 

With regard to the adopted rule 

limiting the downgrade of AM facilities 

awarded based on service proposals, 

initially the Commission proposed a 

standard allowing no reduction in 

population served, much as is done 

with NCE selectees. However, after 

consideration, and recognizing the 

technical complexity of the AM service 

and the burden such a rigid standard 

would impose on applicants, most of 

whom are small businesses, the 

Commission instead adopted the more 

flexible ‘‘equivalency’’ standard, which 

allows a variance of up to 20 percent of 

the population initially proposed to be 

served. 

Likewise, in adopting the rule 

requiring that AM technical proposals 

be technically eligible for auction 

processing at time of filing, the 

Commission considered seeking further 

technical information from applicants. 

Moreover, as proposed the rule would 

not have allowed curative amendments. 

However, upon consideration of the 

record, the Commission opted not to 

require additional technical information 

from applicants, declining to increase 

the burden on such parties, and also 

mitigated the firm requirements of the 

proposed rule by allowing one 

opportunity for curative amendments. 

The remaining proposals adopted in 

the First R&O fall into one of two 

categories: Grant of delegated authority 

to modify certain rules on an as-needed 

basis, or codification or clarification of 

existing policies and rules. In the first 

category, the new authority granted the 

Commission to place a ‘‘cap’’ on AM 

filing window applications may deprive 

certain applicants of the ability to file 

all the applications they wish. However, 

application caps will deter speculation, 

eliminating superfluous applications 

and enabling faster processing of 

applications overall. Caps will cause 

applicants to focus on those facilities 

that they value most, and in conjunction 

with the requirement of technically 

eligible applications will encourage the 

filing of better and more quickly 

grantable applications, streamlining the 

AM auction and award process. Given 

that, in the most recent AM auction 

filing window, less than six percent of 

the applicants filed ten or more 

applications (accounting for 

approximately 40 percent of all 

technical proposals filed), a reasonable 

application cap will burden only that 

small percentage of potential applicants 

whose multiple applications take up 

disproportionate amounts of 

Commission time and resources, 

slowing down the auction process and 

impeding the authorization of new AM 

service to the public. The grant of 

delegated authority to the Media and 

Wireless Telecommunications Bureaus 

to extend post-auction filing deadlines 

will only benefit applicants: It gives the 

Bureaus the flexibility to provide 

additional time for parties that need it, 

while those who wish their applications 

to be considered sooner may file when 

they like. In these cases, because of the 

significant benefits to regulated parties 

and minimal to no burdens, it was not 

deemed necessary to consider other 

options. 

With regard to the adopted 

codifications and clarifications of 

existing rules, these also present no 

burden on applicants requiring 

consideration of less burdensome 

alternatives. The codification of the 

policy, used in prior auctions, allowing 

non-universal settlements that result in 

at least one singleton application from 

an MX Group, speeds auctions by 

simplifying MX groups, and expedites 

provision of new service by the 

singleton applicants. Similarly, the 

clarification of policies regarding new 

entrant bidding credit eligibility and the 

new entrant bidding credit unjust 

enrichment rule does not place any 

additional burdens on applicants or 

other parties. Rather, clarifying these 

policies will benefit applicants, 

permittees, and licensees by adding 

certainty to auction and post-auction 

procedures. As such, consideration of 

less burdensome alternatives was 

unnecessary. 

Report to Congress. The Commission 

will send a copy of the First 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 

First R&O, including the FRFA, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. A copy of the 

First R&O and FRFA (or summaries 

thereof) will also be published in the 

Federal Register (See 5 U.S.C. 604(b)). 

Ordering Clauses 

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), 


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9806 Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations 

that this First Report and Order is 

adopted. 

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 in Appendix E to 

the First R&O. 

It is further ordered that the rules 

adopted herein will become effective 30 

days after the date of publication in the 

Federal Register, except for sections 

73.3571(k), 73.7000, 73.7002(b), and 

73.7002(c), which contain new or 

modified information collection 

requirements that require approval by 

the Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act (PRA), and which will become 

effective after the Commission publishes 

a notice in the Federal Register 

announcing such approval and the 

relevant effective date. 

List of Subjects in 47 CFR Part 73 

Radio broadcast services. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Rule Changes 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 73 as 

follows: 

■ 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 paragraphs (h)(1)(ii) and 

(h)(4)(iii), and adding new paragraph (k) 

to read as follows: 

§ 73.3571 Processing of AM broadcast 

station applications. 

* * * * * 

(h) * * * 

(1) * * * 

(ii) Such AM applicants will be 

subject to the provisions of §§ 1.2105 

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: community 

of license; frequency; class; hours of 

operations (day, night, critical hours); 

power (day, night, critical hours); 

antenna location (day, night, critical 

hours); and all other antenna data. 

Applications lacking data (including 

any form of placeholder, such as 

inapposite use of ‘‘0’’ or ‘‘not applicable’’ 

or an abbreviation thereof) in any of 

these categories 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: 

community of license coverage (day and 

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

protection of co- and adjacent-channel 

station licenses, construction permits 

and prior-filed applications (day and 

night) as set forth in §§ 73.37 and 

73.182. If the staff review shows that an 

application does not meet one or more 

of the basic eligibility criteria listed 

above, 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), 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. 

* * * * * 

(4) * * * 

(iii) All long-form applications will be 

cutoff as of the date of filing with the 

FCC and will be protected from 

subsequently filed long-form 

applications. Applications will be 

required to protect all previously filed 

commercial and noncommercial 

applications. Subject to the restrictions 

set forth in paragraph (k) of this section, 

winning bidders filing long-form 

applications may change the technical 

proposals specified in their previously 

submitted short-form applications, but 

such change may not constitute a major 

change. If the submitted long-form 

application would constitute a major 

change from the proposal submitted in 

the short-form application, the longform application will be returned 

pursuant to paragraph (h)(1)(i) of this 

section. 

* * * * * 

(k)(1) An AM applicant receiving a 

dispositive Section 307(b) preference is 

required to construct and operate 

technical facilities substantially as 

proposed in its FCC Form 175. An AM 

applicant, licensee, or permittee 

receiving a dispositive Section 307(b) 

preference based on its proposed service 

to underserved populations (under 

Priority (1), Priority (2), and Priority (4)) 

or service totals (under Priority (4)) may 

modify its facilities so long as it 

continues to provide the same priority 

service to substantially the same 

number of persons who would have 

received service under the initial 

proposal, even if the population is not 

the same population that would have 

received such service under the initial 

proposal. For purposes of this provision, 

‘‘substantially’’ means that any proposed 

modification must not result in a 

decrease of more than 20 percent of any 

population figure that was a material 

factor in obtaining the dispositive 

Section 307(b) preference. 

(2) An AM applicant, licensee, or 

permittee that has received a dispositive 

preference under Priority (3) will be 

prohibited from changing its community 

of license. 

(3) The restrictions set forth in 

paragraphs (k)(1) and (k)(2) of this 

section will be applied for a period of 

four years of on-air operations. This 

holding period does not apply to 

construction permits that are awarded 

on a non-comparative basis, such as 

those awarded to non-mutually 

exclusive applicants or through 

settlement. 

■ 3. Section 73.5002 is amended by 

adding new paragraph (e) to read as 

follows: 

§ 73.5002 Application and certification 

procedures; return of mutually exclusive 

applications not subject to competitive 

bidding procedures; prohibition of 

collusion. 

* * * * * 

(e) Applicants seeking to resolve their 

mutual exclusivities by means of 

engineering solution or settlement 

during a limited period as specified by 

public notice, pursuant to paragraph (d) 

of this section, may submit a nonuniversal engineering solution or 

settlement proposal, so long as such 

engineering solution or settlement 

proposal results in the grant of at least 

one application from the mutually 

exclusive group. A technical 

amendment submitted under this 

subsection must resolve all of the 

applicant’s mutual exclusivities with 

respect to the other applications in the 

specified mutually exclusive 

application group. 

■ 4. Section 73.5005 is amended by 

revising the first sentence of paragraph 

(a) to read as follows: 


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Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations 9807 

§ 73.5005 Filing of long-form applications. 

(a) Within thirty (30) days following 

the close of bidding and notification to 

the winning bidders, unless a longer 

period is specified by public notice, 

each winning bidder must submit an 

appropriate long-form application (FCC 

Form 301, FCC Form 346, or FCC Form 

349) for each construction permit or 

license for which it was the high bidder. 

* * * 

* * * * * 

■ 5. Section 73.5007 is amended by 

revising paragraph (a) and by adding 

Note 1 to read as follows: 

§ 73.5007 Designated entity provisions. 

(a) New entrant bidding credit. A 

winning bidder that qualifies as a ‘‘new 

entrant’’ may use a bidding credit to 

lower the cost of its winning bid on any 

broadcast construction permit. Any 

winning bidder claiming new entrant 

status must have de facto, as well as de 

jure, control of the entity utilizing the 

bidding credit. A thirty-five (35) percent 

bidding credit will be given to a 

winning bidder if it, and/or any 

individual or entity with an attributable 

interest in the winning bidder, have no 

attributable interest in any other media 

of mass communications, as defined in 

§ 73.5008. A twenty-five (25) percent 

bidding credit will be given to a 

winning bidder if it, and/or any 

individual or entity with an attributable 

interest in the winning bidder, have an 

attributable interest in no more than 

three mass media facilities. No bidding 

credit will be given if any of the 

commonly owned mass media facilities 

serve the same area as the proposed 

broadcast or secondary broadcast 

station, or if the winning bidder, and/or 

any individual or entity with an 

attributable interest in the winning 

bidder, have attributable interests in 

more than three mass media facilities. 

Attributable interests held by a winning 

bidder in existing low power television, 

television translator or FM translator 

facilities will not be counted among the 

bidder’s other mass media interests in 

determining eligibility for a bidding 

credit. Eligibility for the new entrant 

bidding credit must be specified in an 

applicant’s FCC Form 175 application, 

and the new entrant bidding credit 

specified in an applicant’s FCC Form 

175 application establishes that 

applicant’s maximum bidding credit 

eligibility for that auction. Any postFCC Form 175 filing change in the 

applicant’s circumstances underlying its 

new entrant bidding credit eligibility 

claim, or that of any attributable 

interest-holder in the applicant, must be 

reported to the Commission 

immediately, and no later than five 

business days after the change occurs. 

Any such post-FCC Form 175 filing 

change may cause a reduction or 

elimination of the new entrant bidding 

credit claimed in the applicant’s FCC 

Form 175 application, if the change 

would cause the applicant not to qualify 

for the originally claimed new entrant 

bidding credit under the eligibility 

provisions of § 73.5007, and the change 

occurred prior to grant of the 

construction permit to the applicant. 

Final determinations regarding new 

entrant status will be made at the time 

of long form construction permit 

application grant. Applicants whose 

eligibility is lost or reduced subsequent 

to the FCC Form 175 filing must, before 

a construction permit will be issued, 

make such payments as are necessary to 

account for the difference between 

claimed and actual bidding credit 

eligibility. 

* * * * * 

Note 1 to § 73.5007: For purposes of 

paragraph (b)(3)(ii) of this section, the 

contour of the proposed new FM broadcast 

station is based on the maximum class 

facilities at the FM allotment site, which is 

defined as the perfectly circular standard 70 

dBu contour distance for the class of station. 

■ 6. Section 73.7000 is amended by 

adding six new definitions to read as 

follows: 

§ 73.7000 Definition of terms (as used in 

subpart K only). 

* * * * * 

Near reservation lands. Those areas or 

communities adjacent or contiguous to 

reservation or other Trust lands which 

are designated by the Department of 

Interior’s Commission of Indian Affairs 

upon recommendation of the Local 

Bureau of Indian Affairs 

Superintendent, which recommendation 

shall be based upon consultation with 

the tribal governing body of those 

reservations, as locales appropriate for 

the extension of financial assistance 

and/or social services on the basis of 

such general criteria as: Number of 

Indian people native to the reservation 

residing in the area; a written 

designation by the tribal governing body 

that members of their tribe and family 

members who are Indian residing in the 

area, are socially, culturally and 

economically affiliated with their tribe 

and reservation; geographical proximity 

of the area to the reservation and 

administrative feasibility of providing 

an adequate level of services to the area. 

* * * * * 

Reservations. Any federally 

recognized Indian tribe’s reservation, 

pueblo or colony, including former 

reservations in Oklahoma, Alaska 

Native regions established pursuant to 

the Alaska Native Claims Settlements 

Act (85 Stat. 688) and Indian allotments, 

for which a Tribe exercises regulatory 

jurisdiction. 

* * * * * 

Tribe. Any Indian or Alaska Native 

tribe, band, nation, pueblo, village or 

community which is acknowledged by 

the federal government to constitute a 

government-to-government relationship 

with the United States and eligible for 

the programs and services established 

by the United States for Indians. See 

The Federally Recognized Indian Tribe 

List Act of 1994 (Indian Tribe Act), 

Public Law 103–454. 108 Stat. 4791 

(1994) (the Secretary of the Interior is 

required to publish in the Federal 

Register an annual list of all Indian 

Tribes which the Secretary recognizes to 

be eligible for the special programs and 

services provided by the United States 

to Indians because of their status as 

Indians). 

Tribal applicant. (1) A Tribe or 

consortium of Tribes, or 

(2) An entity that is 51 percent or 

more owned or controlled by a Tribe or 

Tribes that occupy Tribal Lands that 

receive Tribal Coverage. 

Tribal coverage. Coverage of Tribal 

Lands by at least 50 percent of a 

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

Tribal Lands. Both Reservations and 

Near reservation lands. This definition 

includes American Indian Reservations 

and Trust Lands, Tribal Jurisdiction 

Statistical Areas, Tribal Designated 

Statistical Areas, Hawaiian Homelands, 

and Alaska Native Village Statistical 

Areas, as well as the communities 

situated on such lands. 

■ 7. Section 73.7002 is amended by 

revising paragraphs (b) and (c) to read 

as follows: 

§ 73.7002 Fair distribution of service on 

reserved band FM channels. 

* * * * * 

(b) In an analysis performed pursuant 

to paragraph (a) of this section, a fullservice FM applicant that identifies 

itself as a Tribal Applicant, that 

proposes Tribal Coverage, and that 

proposes the first reserved channel NCE 

service owned by any Tribal Applicant 

at a community of license located on 

Tribal Lands, will be awarded a 

construction permit. If two or more fullservice FM applicants identify 


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9808 Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Rules and Regulations 

themselves as Tribal Applicants and 

meet the above criteria, the applicant 

providing the most people with reserved 

channel NCE service to Tribal Lands 

will be awarded a construction permit, 

regardless of the magnitude of the 

superior service or the populations of 

the communities of license proposed, if 

different. If two or more full-service FM 

applicants identifying themselves as 

Tribal Applicants each meet the above 

criteria and propose identical levels of 

NCE aural service to Tribal Lands, only 

those applicants shall proceed to be 

considered together in a point system 

analysis. In an analysis performed 

pursuant to paragraph (a) of this section 

that does not include a Tribal 

Applicant, a full service FM applicant 

that will provide the first or second 

reserved channel noncommercial 

educational (NCE) aural signal received 

by at least 10% of the population within 

the station’s 60dBu (1mV/m) service 

contours will be considered to 

substantially further fair distribution of 

service goals and to be superior to 

mutually exclusive applicants not 

proposing that level of service, provided 

that such service to fewer than 2,000 

people will be considered insignificant. 

First service to 2,000 or more people 

will be considered superior to second 

service to a population of any size. If 

only one applicant will provide such 

first or second service, that applicant 

will be selected as a threshold matter. If 

more than one applicant will provide an 

equivalent level (first or second) of NCE 

aural service, the size of the population 

to receive such service from the 

mutually exclusive applicants will be 

compared. The applicant providing the 

most people with the highest level of 

service will be awarded a construction 

permit, if it will provide such service to 

5,000 or more people than the next best 

applicant. If none of the applicants in a 

mutually exclusive group would 

substantially further fair distribution 

goals, all applicants will proceed to 

examination under a point system. If 

two or more applicants will provide the 

same level of service to an equivalent 

number of people (differing by less than 

5,000), only those equivalent applicants 

will be considered together in a point 

system. 

(c) For a period of four years of onair operations, an applicant receiving a 

decisive preference pursuant to this 

section is required to construct and 

operate technical facilities substantially 

as proposed and shall not downgrade 

service to the area on which the 

preference was based. Additionally, for 

a period beginning from the award of a 

construction permit through four years 

of on-air operations, a Tribal Applicant 

receiving a decisive preference pursuant 

to this section may not: 

(1) Assign or transfer the 

authorization except to another party 

that qualifies as a Tribal Applicant; 

(2) Change the facility’s community of 

license; or 

(3) Effect a technical change that 

would cause the facility to provide less 

than full Tribal Coverage. 

[FR Doc. 2010–3491 Filed 3–3–10; 8:45 am] 

BILLING CODE 6712–01–P 


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