Federal Register / Vol. 65, No. 111 / Thursday, June 8, 2000 / Rules and Regulations 36375

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, MM Docket No. 98–151,

adopted May 17, 2000, and released

May 26, 2000. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 445 12th Street, SW,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy contractor,

International Transcription Services,

Inc., (202) 857–3800, 1231 20th Street,

NW, Washington, DC 20036.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for part 73

continues to read as follows:

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

73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Wyoming, is amended

by adding Channels 223C1 and 265A at

Douglas, and Guernsey, Channel 281A.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 00–14377 Filed 6–7–00; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 73 and 74

[MM Docket No. 95–31; FCC 00–120]

Reexamination of Comparative

Standards for Noncommercial

Educational Applicants

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission adopted

new methods to select among competing

applications to construct

noncommercial educational (NCE)

broadcast stations or to make changes in

existing facilities of such stations. The

Commission will use a point system to

select among mutually exclusive

applicants on reserved channels, to

streamline the current selection process

and make it faster and simpler for

applicants and for the Commission. The

Commission will use existing auction

procedures to select among mutually

exclusive applications on non-reserved

(‘‘commercial’’) channels, even if one or

more of the applicants proposes to

operate noncommercially. To facilitate

the transition to new ‘‘filing window’’

procedures, the Commission

implemented a freeze on the filing of

new applications for reserved channel

noncommercial educational broadcast

stations.

DATES: Effective August 7, 2000, except

for §§ 73.202, 73.3527, and 73.3572

which contain information collection

requirements that have not been

approved by the Office of Management

and Budget (OMB). The Commission

will publish a document in the Federal

Register announcing the effective date

of these sections. The filing freeze

became effective April 21, 2000 (See

FCC News Releases, April 14, 2000 at

www.fcc.gov).

ADDRESSES: Secretary, Federal

Communications Commission, 445 12th

Street, S.W., Washington, D.C. 20554,

http://www.fcc.gov.

FOR FURTHER INFORMATION CONTACT:

Irene Bleiweiss, Federal

Communications Commission, Mass

Media Bureau, Audio Services Division,

445 12th Street, S.W., Washington, D.C.

20554 (202) 418–2780, Internet

address:ibleiwei@fcc.gov (inquiries

about this proceeding other than

information collection) or Edward C.

Springer, OMB Desk Officer, Office of

Management and Budget, Room 10236

NEOB, 725 17th Street, NW.,

Washington, DC 20503, Internet

address: edward.springer@omb.eop.gov

(inquiries about information collection).

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order adopted April 4, 2000, and

released April 21, 2000. The complete

text of this Report and Order is available

for inspection and copying during

normal business hours in the FCC

Reference Center (Room CY–A257), 445

12th Street, S.W., Washington, D.C., and

also may be purchased from the

Commission’s copy contractor,

International Transcription Service,

(202) 857–3800, 1231 20th Street, NW.,

Washington, DC 20036. The text can be

obtained over the internet by going to

the FCC web site, www.fcc.gov, and

following the link entitled ‘‘FCC Adopts

Comparative Standards for

Noncommercial Educational Broadcast

Stations, 4/27/00, under the ‘‘headlines’’

section.

Synopsis of Order

1. The Commission issued a Notice of

Proposed Rule Making in this

proceeding in 1995 [60 FR 15275 March

23, 1995] proposing to change the

process used to select noncommercial

educational applicants, because the

existing process was cumbersome and

no longer making meaningful

distinctions among applicants.

Subsequently, Congress addressed

related issues in the Balanced Budget

Act of 1997, and the Commission issued

a Further Notice of Proposed Rule

Making [63 FR 58358 October 30, 1998],

seeking additional comments. After

considering the comments received, the

Commission now adopts new simpler

filing procedures and selection methods

for applications seeking to construct

new noncommercial educational (NCE)

FM, FM translator, and television

stations and to make major changes to

such existing stations.

2. Applications for new and major

changes to NCE stations will be filed

only within ‘‘filing windows’’ to be

announced by the Commission. The

Commission will study applications

filed during the window for mutual

exclusivity. This replaces a system in

which applications were accepted at

any time, and ‘‘cut-off’’ lists were issued

to invite competing applications.

3. If mutually applications are

received within a filing window, and for

existing mutually exclusive applications

that have already been ‘‘cut off,’’ the

Commission will first determine as a

threshold issue, whether any

application should be granted or

dismissed on the basis of fair

distribution of service pursuant to 47

U.S.C. 307(b) (FM stations proposing

service to different communities) or on

the basis of translator fill-in service as

compared to non-fill-in service. If

mutually exclusive applicants remain

after these threshold issues, the

Commission will proceed to a point

system.

4. Points will be awarded as follows:

(a) 3 points to an established local entity

(a government applying for a station

within its area of jurisdiction or any

applicant that for at least the two years

prior to application has had one of the

following within 25 miles of the

reference coordinates for the community

of license: its headquarters, its campus,

or the primary residences of 75% of its

board members); (b) 1 to 2 points to the

applicant with the best technical

proposal (covering the largest area and

population) depending on comparison

to the next best technical proposal; and

either (c) 2 points to applicants with

local diversity of ownership (no overlap

of attributable station principal

community contours); or (d) 2 points to

an applicant that does not claim local

diversity of ownership points, if it is a

state-wide network serving 50

accredited full-time elementary/

36376 Federal Register / Vol. 65, No. 111 / Thursday, June 8, 2000 / Rules and Regulations

1While we believe that the SBA’s definition of

‘‘small business’’ greatly overstates the number of

radio and television broadcast stations that are

small businesses and is not suitable for purposes of

determining the impact of the proposals on small

television and radio stations, for purposes of this

FRFA, we utilize the SBA’s definition in

determining the number of small businesses to

which the proposed rules would apply, but we

reserve the right to adopt a more suitable definition

of ‘‘small business’’ as applied to radio and

television broadcast stations or other entities

subject to these rules and to consider furher the

issue of the number of small entities that are radio

and television broadcasters or small media entities

in the future. See Report and Order in MM Docket

No. 93–48 (Children’s Television Programming), 11

FCC Rcd 10660, 10737–38 (1996), citing 5 U.S.C. S

601(3).

secondary schools or 5 accredited fulltime college/university campuses.

Points are determined by the applicant’s

qualifications at the time of application,

provided that the applicant must still

qualify for those points at the time of

point analysis. In determining points,

the interests of attributable parties such

as parent organizations, officers, board

members, and parties with significant

financial influence that also will supply

substantial programming to the station

will be considered.

5. To break ties, the Commission will

select the applicant with the fewest

authorizations (existing stations and

construction permits). If that standard

fails to break the tie, the Commission

will select the applicant with the fewest

pending applications. If these tie

breakers do not result in selection of a

prevailing applicant, the Commission

will implement mandatory time sharing

for full service applicants. For FM

translator applicants only, the final tie

breaker will select the first applicant to

file, similar to existing translator-only

rules. The Commission will permit

settlements at any time under current

settlement rules, which limit

reimbursement to an applicant’s

reasonable and prudent expenses.

6. The new procedures will apply to

applications already on file and

applications filed in the future. The

Commission will issue a Public Notice

in the future providing existing

applicants with information about how

to supplement their applications to

claim the points for which they qualify.

Existing applicants may file settlements

at any time.

7. Until a successful applicant

selected through a point system has

completed four years of on-air

operations, it will be permitted to assign

or transfer control of the station’s

license only to a party eligible to receive

the same number of points, and for

consideration not to exceed reasonable

and prudent expenses application and

construction expenses.

8. The Commission will not use the

point system for channels that are

available commercially (non-reserved

channels), even if one or more

noncommercial organizations apply for

the channel. Such applications will be

resolved by auction. In reaching this

conclusion, the Commission conducted

an in-depth analysis of conflicting

directives in the enabling statute, and

Commission policies concerning

allocation and use of the reserved and

non-reserved channels.

Final Regulatory Flexibility Analysis

(FRFA)

Summary

As required by the Regulatory

Flexibility Act (‘‘RFA’’), 5 U.S.C. 603, an

Initial Regulatory Flexibility Analysis

(‘‘IRFA’’) was incorporated in the

Further Notice of Proposed Rulemaking

for the docket in this proceeding. The

Commission sought written public

comments on the proposals set forth in

the Notice, including comment on the

IRFA. The Commission’s Final

Regulatory Flexibility Analysis

(‘‘FRFA’’) in this Report and Order

(‘‘Order’’) conforms to the RFA, as

amended by the Contract With America

Advancement Act of 1996, Public Law

104–121, 110 Stat. 847 (1996).

Need for and Objectives of Action

The Commission previously

determined that traditional hearings, the

method used to select among competing

applicants for new noncommercial

educational broadcast construction

permits, were time consuming and

burdensome, and that the criteria used

in those hearings were vague and

difficult to apply. This Order amends

the Commission’s rules to establish a

simpler, clearer, and more streamlined

process for selecting among competing

noncommercial educational applicants.

Specifically, it (1) establishes a point

system, a type of simplified paper

hearing on channels reserved for NCE

use; (2) clarifies that auctions will apply

on non-reserved broadcast channels;

and (3) provides additional

circumstances in which an NCE entity

can have a non-reserved channel

allocated as reserved.

Significant Issues Raised by Public

Comments in Response to the Initial

Analysis

No comments were received

specifically in response to the IRFA in

MM Docket No. 95–31. However, one

commenter, in expressing support for

the use of lotteries, an option not

selected, stated that it thought lotteries

would have a positive effect on small

businesses.

Description and Estimate of the Number

of Small Entities Involved

Under the RFA, small entities may

include small organizations, small

businesses, and small governmental

jurisdictions. 5 U.S.C. S 601(6). The

RFA, 5 U.S.C. 601(3), generally defines

the term ‘‘small business’’ as having the

same meaning as the term ‘‘small

business concern’’ under the Small

Business Act, 15 U.S.C. 632. 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’’). Pursuant to 5

U.S.C. 601(3), the statutory definition of

a small business applies ‘‘unless an

agency after consultation with the Office

of Advocacy of the SBA and after

opportunity for public comment,

establishes one or more definitions of

such term that are appropriate to the

activities of the agency and publishes

such definition(s) in the Federal

Register.1 We received no comment in

response to either IRFA on how to

define radio and television broadcast

‘‘small businesses.’’ Therefore, we will

continue to utilize SBA’s definitions for

the purpose of this FRFA.

The rules adopted in this Order will

apply to television and radio stations

licensed to operate on channels reserved

as ‘‘noncommercial educational.’’ With

respect to television stations, the Small

Business Administration defines a

television broadcasting station that has

no more than $10.5 million in annual

receipts as a small business. Television

broadcasting stations consist of

establishments primarily engaged in

broadcasting visual programs by

television to the public, except cable

and other pay television services.

Television stations that the Federal

Communications Commission (FCC)

would consider commercial, as well as

those that the FCC would consider

noncommercial educational, are

included in this industry. Also included

are other establishments primarily

engaged in television broadcasting and

which produce taped television program

materials. Separate establishments

primarily engaged in producing taped

television program materials are

classified under another SIC number.

For 1992 the total number of

television stations that produced less

than $10.0 million in revenue was 1,155

of the 1,509 television stations then

operating, both commercial and

Federal Register / Vol. 65, No. 111 / Thursday, June 8, 2000 / Rules and Regulations 36377

noncommercial, or 77 percent. As of

July 31, 1999, of the 1,599 total

television stations, 370 are

noncommercial educational. Thus, we

estimate that the proposed rules will

potentially affect 285 (77 percent of 370)

noncommercial educational television

stations that are small businesses. These

existing stations would only be affected

if they file an application for major

modification of their existing facilities,

and if another applicant files a mutually

exclusive application. These estimates

may overstate the number of small

entities since the revenue figures on

which they are based do not include or

aggregate revenues from non-television

affiliated companies. On the other hand

they may understate the number of

small entities, because we believe that a

larger percentage of noncommercial

educational stations are small

businesses than the percentage

applicable to the television industry as

a whole. We recognize that the proposed

rules may also affect minority and

women owned stations, some of which

may be small entities. In 1997,

minorities owned and controlled 38

(3.2%) of 1,193 commercial television

stations in the United States.

Comparable figures are not available for

noncommercial stations. According to

the U.S. Bureau of the Census, in 1987

women owned and controlled 27 (1.9%)

of 1,342 commercial and

noncommercial television stations in

the United States. The proposal would

also affect pending and future mutually

exclusive applications for

noncommercial television stations. As

of August 1999, there are currently 67

pending applications for 22 channels

reserved for noncommercial educational

television usage.

The rule changes would also affect

noncommercial educational radio

stations. The SBA defines a radio

broadcasting station that has no more

than $5 million in annual receipts as a

small business. A radio broadcasting

station is an establishment primarily

engaged in broadcasting aural programs

by radio to the public. Radio stations

that the Federal Communications

Commission (FCC) would consider

commercial, as well as those that the

FCC would consider noncommercial

educational, are included in this

industry. Also included are entities

which primarily are engaged in radio

broadcasting and which produce radio

program materials. However, radio

stations which are separate

establishments and are primarily

engaged in producing radio program

material are classified under another

SIC number. The 1992 Census indicates

that 96 percent of radio station

establishments produced less than $5

million in revenue in 1992. Official

Commission records indicate that

11,334 individual radio stations were

operating in 1992. As of July 31, 1999,

official Commission records indicate

that 12,582 radio stations are currently

operating. Of the current radio station

total, 2,055 stations are noncommercial

educational. Thus, we estimate that

1,923 (96%) of these noncommercial

educational stations are small

businesses, possibly more because we

believe that a greater percentage of

noncommercial educational stations are

small businesses than of the radio

industry overall. These existing stations

would only be affected by the proposal

if they choose to file applications for

major modification of facilities and if

their applications are mutually

exclusive with the application of

another noncommercial entity.

Applicants for new NCE radio stations

would also potentially be affected. As of

August 1999 there were 371 pending

mutually exclusive groups of 1,102

applications, for new noncommercial

FM radio stations. We also note that this

proposal will affect future applications.

With respect to minority ownership of

radio stations, no information is

available for noncommercial stations,

but it is available for commercial

stations. In 1997, minorities owned 284

(2.8%) of 10,282 commercial radio

stations.

Description of Projected Reporting,

Recordkeeping and Other Compliance

Requirements

The measures adopted in the Order

are anticipated to reduce the overall

administrative burden of the

Commission’s application processes on

applicants and the Commission. Use of

a point system will eliminate the

expense of preparing for and appearing

at lengthy traditional hearings.

Applicants should also receive

decisions faster, because the

Commission will make numerical

calculations instead of preparing

detailed hearing decisions. These

savings should more than offset the time

that would be required for applicants to

gather and submit documentation

supporting the points claimed. No

additional professional services are

required by applicants filing under

these revised rules. Further, the cost of

compliance will not vary between large

and small entities.

Steps Taken To Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

This Order sets forth the

Commission’s new streamlined

procedures for selecting among

competing noncommercial educational

applicants. All significant alternatives

presented in the comments were

considered. Small entities participating

in auctions for non-reserved channels

may be eligible for a new entrant

auction credit. Small entities may be

eligible for points in the point system

based on diversity of ownership,

established local entity, and in a tie

breaker for number of existing

authorizations and applications.

Report to Congress

The Commission will send a copy of

the Reexamination of the Comparative

Standards for Noncommercial

Educational Applicants, including this

FRFA, in a report to be sent to Congress

pursuant to the Small Business

Regulatory Enforcement Fairness Act of

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

addition, the Commission will send a

copy of this Order, including this FRFA,

to the Chief Counsel for Advocacy of the

Small Business Administration. Further,

the Commission’s Office of Public

Affairs, Reference Operations Division,

shall send a copy of this Order,

including FRFA, to the Chief Counsel

for Advocacy of the Small Business

Administration.

List of Subjects in 47 CFR Parts 73 and

74

Radio broadcasting, Television

broadcasting.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Parts 73 and 74 of Chapter 1 of Title

47 of the Code of Federal Regulations

are amended as follows:

Regulatory Text

PART 73—RADIO BROADCAST

SERVICES

1. The authority citation for part 73

continues to read:

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

336.

2. Section 73.202 is amended by

revising paragraph (a)(1) to read as

follows:

§ 73.202 Table of Allotments.

(a) * * *

(1) Channels designated with an

asterisk may be used only by

noncommercial educational broadcast

36378 Federal Register / Vol. 65, No. 111 / Thursday, June 8, 2000 / Rules and Regulations

stations. The rules governing the use of

those channels are contained in part 73,

subpart C of this chapter. An entity that

would be eligible to operate a

noncommercial educational broadcast

station can, in conjunction with an

initial petition for rulemaking filed

pursuant to part 1, subpart C of this

chapter, request that a nonreserved FM

channel (channels 221 through 300) be

allotted as reserved only for

noncommercial educational

broadcasting by demonstrating the

following:

(i) No reserved channel can be used

without causing prohibited interference

to TV channel 6 stations or foreign

broadcast stations; or

(ii) The applicant is technically

precluded from using the reserved band

by existing stations or previously filed

applications and the proposed station

would provide a first or second

noncommercial educational radio

service to 2,000 or more people who

constitute 10% of the population within

the proposed allocation’s 60 dBu (1 mV/

m) service contour.

* * * * *

§ 73.502 [Removed and reserved]

3. Section 73.502 is removed and

reserved.

4. Section 73.503 is amended by

adding a new paragraph (e) to read as

follows:

§ 73.503 Licensing requirements and

service.

* * * * *

(e) Mutually exclusive applications

for noncommercial educational radio

stations operating on reserved channels

will be resolved pursuant to the point

system in subpart K.

* * * * *

5. Section 73.513 is amended by

designating the undesignated text as

paragraph (a) and adding a new

paragraph (b) to read as follows:

§ 73.513 Noncommercial educational FM

stations operating on unreserved channels.

* * * * *

(b) When a noncommercial

educational applicant is among

mutually exclusive applications for an

unreserved FM channel, the mutually

exclusive applications will be

considered pursuant to Subpart I—

Competitive Bidding Procedures and

not Subpart K—Application and

Selection Procedures On Reserved

Noncommercial Educational Channels.

6. Section 73.621 is amended by

adding a new paragraph (h) to read as

follows:

§ 73.621 Noncommercial educational TV

stations.

* * * * *

(h) Mutually exclusive applications

for noncommercial educational TV

stations operating on reserved channels

shall be resolved pursuant to the point

system in subpart K.

7. Section 73.622 is amended by

adding two new sentences immediately

preceeding the last sentence of

paragraph (a) to read as follows:

§ 73.622 Digital television table of

allotments.

(a) * * * Rules governing

noncommercial educational TV stations

are contained in § 73.621. Where there

is only one technically available

channel available in a community, an

entity that would be eligible to operate

a noncommercial educational broadcast

station may, prior to application, initiate

a rulemaking proceeding requesting that

an unoccupied or new channel in the

community be changed or added as

reserved only for noncommercial

educational broadcasting upon

demonstrating that the noncommercial

educational proponent would provide a

first or second noncommercial

educational TV service to 2,000 or more

people who constitute 10% of the

population within the proposed

allocation’s noise limited contour.

***

* * * * *

8. Section 73.1150 is amended by

adding a new paragraph (d) to read as

follows:

§ 73.1150 Transferring a station.

* * * * *

(d) Authorizations awarded pursuant

to the noncommercial educational point

system in subpart K are subject to the

holding period in § 73.7005.

Applications for an assignment or

transfer filed prior to the end of the

holding period must demonstrate the

factors enumerated therein.

9. Section 73.3522 is amended by

revising paragraph (b) to read as follows:

§ 73.3522 Amendment of applications.

* * * * *

(b) Reserved Channel FM and

reserved noncommercial educational

television stations. Applications may be

amended after Public Notice

announcing a period for filing

amendments. Amendments, when

applicable, are subject to the provisions

of §§ 73.3514, 73.3525, 73.3572,

73.3573, 73.3580, and § 1.65 of this

chapter. Unauthorized or untimely

amendments are subject to return by the

FCC’s staff without consideration.

Amendments will be accepted as

described below and otherwise will

only be considered upon a showing of

good cause for late filing or pursuant to

§ 1.65 of this chapter or § 73.3514:

(1) A § 73.7002 Selectee. A Public

Notice will announce that the

application of a § 73.7002 Selectee

(selected based on fair distribution) has

been found acceptable for filing. If any

Selectee’s application is determined

unacceptable the application will be

returned and the Selectee will be

provided one opportunity for curative

amendment by filing a petition for

reconsideration requesting

reinstatement of the application. All

amendments filed in accordance with

this paragraph must be minor and must

not alter the § 73.7002 preference.

(2) A § 73.7003 Tentative Selectee. A

Public Notice will announce that the

application of a § 73.7003 Tentative

Selectee (selected through a point

system) has been found acceptable for

filing. If any Tentative Selectee’s

application is determined unacceptable

the application will be returned and the

Tentative Selectee will be provided one

opportunity for curative amendment by

filing a petition for reconsideration

requesting reinstatement of the

application. All amendments filed in

accordance with this paragraph must be

minor and must claim the same number

of qualitative points as originally

claimed, or more points than claimed by

the applicant with the next highest

point total.

(3) A Public Notice will identify all

other reserved channel applications,

such as non-mutually exclusive

applications and the sole remaining

application after a settlement among

mutually exclusive applications. If any

such application is determined

unacceptable the application will be

returned and the applicant will be

provided one opportunity for curative

amendment by filing a petition for

reconsideration requesting

reinstatement of the application. All

amendments filed in accordance with

this paragraph must be minor.

10. Section 73.3527 is amended by

revising the first sentence of paragraph

(e)(2) to read as follows:

§ 73.3527 Local public inspection file of

noncommercial educational stations.

* * * * *

(e) * * *

(2) Applications and related

materials. A copy of any application

tendered for filing with the FCC,

together with all related material,

including supporting documentation of

any points claimed in the application

Federal Register / Vol. 65, No. 111 / Thursday, June 8, 2000 / Rules and Regulations 36379

pursuant to § 73.7003, and copies of

FCC decisions pertaining thereto. * * *

* * * * *

11. Section 73.3555 is amended by

revising paragraph (f) to read as follows:

§ 73.3555 Multiple ownership.

* * * * *

(f) The ownership limits of this

section are not applicable to

noncommercial educational FM and

noncommercial educational TV stations.

However, the attribution standards set

forth in the Notes to this section are

relevant to evaluation of mutually

exclusive noncommercial educational

FM and TV applicants pursuant to

subpart K of this part.

* * * * *

12. Section 73.3572 is amended by

revising paragraph (d) to read as

follows:

§ 73.3572 Processing of TV broadcast, low

power TV, TV translator and TV booster

station applications.

* * * * *

(d)(1) The FCC will specify by Public

Notice, a period for filing applications

for new television stations on reserved

noncommercial educational channels or

for major modifications in the facilities

of an authorized station on reserved

channels. TV reserved channel

applications for new facilities or for

major modifications will be accepted

only during the appropriate filing

period or ‘‘window.’’ Applications

submitted prior to the window opening

date identified in the Public Notice will

be returned as premature. Applications

submitted after the specified deadline

will be dismissed with prejudice as

untimely. Mutually exclusive

applications for reserved channel

television stations will be resolved

using the point system in subpart K of

this part.

(2) Concurrently with the filing of a

new or major modification application

for a reserved noncommercial

educational channel, the applicant shall

submit to the FCC’s public reference

room and to a local public inspection

file consistent with § 73.3527(e)(2),

supporting documentation of points

claimed, as described in the application

form.

* * * * *

13. Section 73.3573 is amended by

revising paragraphs (d) and (e) to read

as follows:

§ 73.3573 Processing FM broadcast

station applications.

* * * * *

(d) If, upon examination, the FCC

finds that the public interest,

convenience and necessity will be

served by the granting of an application

for FM broadcast facilities, the same

will be granted. If the FCC is unable to

make such a finding and it appears that

a hearing may be required, the

procedure given in § 73.3593 will be

followed. In the case of mutually

exclusive applications for reserved

channels, the procedures in subpart K of

this part will be followed. In the case of

mutually exclusive applications for

unreserved channels, the procedures in

subpart I of this part will be followed.

(e) Processing reserved channel FM

broadcast station applications. (1)

Applications for minor modifications

for reserved channel FM broadcast

stations, as defined in paragraph (a)(2)

of this section, may be filed at any time,

unless restricted by the FCC, and will be

processed on a ‘‘first come/first served’’

basis, with the first acceptable

application cutting off the filing rights

of subsequent, competing applicants.

The FCC will periodically release a

Public Notice listing those applications

accepted for filing. Conflicting

applications received on the same day

will be treated as simultaneously filed

and mutually exclusive. Conflicting

applications received after the filing of

the first acceptable application will be

grouped, according to filing date,

behind the lead application in the

queue. The priority rights of the lead

applicant, against all other applicants,

are determined by the date of filing, but

the filing date for subsequent conflicting

applicants only reserves a place in the

queue. The right of an applicant in a

queue ripens only upon a final

determination that the lead applicant is

unacceptable and that the queue

member is reached and found

acceptable. The queue will remain

behind the lead applicant until the

construction permit is finally granted, at

which time the queue dissolves.

(2) The FCC will specify by Public

Notice a period for filing reserved

channel FM applications for a new

station or for major modifications in the

facilities of an authorized station. FM

reserved channel applications for new

facilities or for major modifications will

be accepted only during the appropriate

filing period or ‘‘window.’’ Applications

submitted prior to the window opening

date identified in the Public Notice will

be returned as premature. Applications

submitted after the specified deadline

will be dismissed with prejudice as

untimely.

(3) Concurrently with the filing of a

new or major modification application

for a reserved noncommercial

educational channel, the applicant shall

submit to the FCC’s public reference

room and to a local public inspection

file consistent with § 73.3527(e)(2),

supporting documentation of points

claimed, as described in the application

form.

(4) Timely filed applications for new

facilities or for major modifications for

reserved FM channels will be processed

pursuant to the procedures set forth in

subpart K of this part (§ 73.7000 et seq.)

Subsequently, the FCC will release

Public Notices identifying: mutually

exclusive groups of applications;

applications selected pursuant to the

fair distribution procedures set forth in

§ 73.7002; applications received during

the window filing period which are

found to be non-mutually exclusive;

tentative selectees determined pursuant

to the point system procedures set forth

in § 73.7003; and acceptable

applications. The Public Notices will

also announce: additional procedures to

be followed for certain groups of

applications; deadlines for filing

additional information; and dates by

which petitions to deny must be filed in

accordance with the provisions of

§ 73.3584. If the applicant is duly

qualified, and upon examination, the

FCC finds that the public interest,

convenience and necessity will be

served by the granting of the

application, it will be granted. If an

application is determined unacceptable

for filing, the application will be

returned, and subject to the amendment

requirements of § 73.3522.

* * * * *

14. Section 73.3584 is amended by

adding a new first and second sentence

to paragraph (a) immediately preceding

‘‘Except’’ to read as follows:

§ 73.3584 Procedure for filing petitions to

deny.

(a) For mutually exclusive

applications subject to selection by

competitive bidding (non-reserved

channels) or fair distribution/point

system (reserved channels), petitions to

deny may be filed only against the

winning bidders or tentative selectee(s),

and such petitions will be governed by

§§ 73.5006 and 73.7004, respectively.

For all other applications the following

rules will govern. * * *

* * * * *

15. Section 73.3593 is revised to read

as follows:

§ 73.3593 Designation for hearing.

If the FCC is unable, in the case of any

application for an instrument of

authorization, to make the findings

specified in § 73.3591(a), it will formally

designate the application for hearing on

the grounds or reasons then obtaining

36380 Federal Register / Vol. 65, No. 111 / Thursday, June 8, 2000 / Rules and Regulations

and will forthwith notify the applicant

and all known parties in interest of such

action and the grounds and reasons

therefor, specifying with particularity

the matters and things in issue but not

including issues or requirements

phrased generally. If, however, the issue

to be resolved is limited to the mutual

exclusivity of applications for initial

authorizations or for major changes to

existing stations, that mutual exclusivity

shall be resolved pursuant to

competitive bidding procedures

identified in subpart I (unreserved

channels) or point system procedures

identified in subpart K (reserved

channels).

16. Add subpart K to part 73 to read

as follows:

Subpart K—Application and Selection

Procedures on Reserved Noncommercial

Educational Channels

Sec.

73.7000 Definition of terms (as used in

subpart K only).

73.7001 Services subject to evaluation by

point system.

73.7002 Fair distribution of service on

reserved band FM channels.

73.7003 Point system selection procedures.

73.7004 Petitions to deny tentative

selectee(s).

73.7005 Holding period.

§ 73.7000 Definition of terms (as used in

subpart K only).

Attributable interest. An interest of an

applicant, its parent, subsidiaries, their

officers, and members of their governing

boards that would be cognizable under

the standards in the notes to § 73.3555.

Also an interest of an entity providing

more than 33 percent of an applicant’s

equity and/or debt that also either (1)

supplies more than 15% of the station’s

weekly programming, or (2) has an

attributable interest pursuant to

§ 73.3555 in media in the same market.

Established local applicant. An

applicant that has, for at least the two

years (24 months) immediately

preceding application, met the

definition of local applicant.

Local applicant. An applicant

physically headquartered, having a

campus, or having 75% of board

members residing within 25 miles of the

reference coordinates for the community

to be served.

Nonreserved (Unreserved) channels.

Channels which are not reserved

exclusively for noncommercial

educational use, and for which

commercial entities could thus be

eligible to operate full power stations.

Such channels appear without an

asterisk designation in the FM Table of

Allotments (§ 73.202) and TV Table of

Allotments (§ 73.606). In the event of a

request to allocate a nonreserved

channel as reserved pursuant to

§§ 73.202(a) or 73.606(a), the channel

remains classified as nonreserved until

release of a Commission decision

granting such request.

On-air operations. Broadcast of

program material to the public pursuant

to Commission authority, generally

beginning with program test authority,

for periods of time that meet any

required minimum operating schedule,

e.g. § 73.561(a).

Population. The number of people

calculated using the most recent census

block data provided by the United

States Census Bureau.

Reserved channels. Channels reserved

exclusively for noncommercial

educational use, whether by the portion

of the spectrum in which they are

located (i.e. FM channels 200 to 220) or

by a case-by-case Commission allotment

decision (channels that appear with an

asterisk designation in the FM Table of

Allotments (§ 73.202) or TV Table of

Allotments (§ 73.606)).

§ 73.7001 Services subject to evaluation

by point system.

(a) A point system will be used to

evaluate mutually exclusive

applications for new radio, television,

and FM translator facilities, and for

major changes to existing facilities, on

reserved channels.

(b) Mutually exclusive applications

for nonreserved broadcast channels are

not subject to a point system, even if

one or more of the applicants would be

eligible to and intends to operate in a

noncommercial educational manner.

Mutually exclusive applications for

nonreserved broadcast channels will be

resolved by the competitive bidding

procedures in subpart I of this part

regardless of the noncommercial or

commercial nature of the applicants.

§ 73.7002 Fair distribution of service on

reserved band FM channels.

(a) If timely filed applications for full

service stations on reserved FM

channels are determined to be mutually

exclusive, and will serve different

communities, the Commission will first

determine, as a threshold issue, whether

grant of a particular application would

substantially further the fair distribution

of service goals enunciated in section

307(b) of the Communications Act, 47

U.S.C. 307(b).

(b) An applicant for a full service FM

radio station that will provide the first

or second noncommercial educational

(NCE) aural signal to at least 10% of the

population within the 60 dBu (1mV/m)

service contours of a noncommercial

educational FM station substantially

furthers fair service goals and will be

considered 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

new service will be awarded a

construction permit, if it will provide

such service to 5,000 or more people

than the next best applicant. Otherwise,

the mutually exclusive applications will

proceed to examination under 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.

§ 73.7003 Point system selection

procedures.

(a) If timely filed applications for

reserved FM channels or reserved TV

channels are determined to be mutually

exclusive, applications will be

processed and assessed points to

determine the tentative selectee for the

particular channels. The tentative

selectee will be the applicant with the

highest point total under the procedure

set forth in this section, and will be

awarded the requested permit if the

Commission determines that an award

will serve the public interest,

convenience, and necessity.

(b) Based on information provided in

each application, each applicant will be

awarded a predetermined number of

points under the criteria listed:

(1) Established local applicant. Three

points for local applicants as defined in

§ 73.7000 who have been local

continuously for no fewer than the two

years (24 months) immediately prior to

application, if the applicant’s own

governing documents (e.g. by-laws,

constitution, or their equivalent) require

that such localism be maintained.

(2) Local diversity of ownership. Two

points for applicants with no

attributable interests as defined in

§ 73.7000, in any other broadcast station

or authorized construction permit

Federal Register / Vol. 65, No. 111 / Thursday, June 8, 2000 / Rules and Regulations 36381

(comparing radio to radio and television

to television) whose principal

community (city grade) contour

overlaps that of the proposed station, if

the applicant’s own governing

documents (e.g. by-laws, constitution, or

their equivalent) require that such

diversity be maintained. The principal

community (city grade) contour is the 5

mV/m for AM stations, the 3.16 mV/m

for FM stations calculated in accordance

with § 73.313(c), and the contour

identified in § 73.685(a) for TV.

(3) State-wide network. Two points for

an applicant that does not qualify for

the credit for local diversity of

ownership, if it is:

(i) An entity, public or private, with

authority over a minimum of 50

accredited full-time elementary and/or

secondary schools within a single state,

encompassed by the combined primary

service contours of the proposed station

and its existing station(s), if the existing

station(s) are regularly providing

programming to the schools in

furtherance of the school curriculum

and the proposed station will increase

the number of schools it will regularly

serve; or

(ii) An accredited public or private

institution of higher learning with a

minimum of five full time campuses

within a single state encompassed by

the combined primary service contours

of the proposed station and its existing

station(s), if the existing station(s) are

regularly providing programming to

campuses in furtherance of their

curriculum and the proposed station

will increase the number of campuses it

will regularly serve; or

(iii) An organization, public or

private, with or without direct authority

over schools, that will regularly provide

programming for and in coordination

with an entity described in paragraph

(b)(3) (i) or (ii) of this section for use in

the school curriculum.

(iv) No entity may claim both the

diversity credit and the state-wide

network credit in any particular

application.

(4) Technical Parameters. One point

to the applicant covering the largest

geographic area and population with its

relevant contour (60 dBu for FM and

Grade B for TV), provided that the

applicant covers both a ten percent

greater area and a ten percent greater

population than the applicant with the

next best technical proposal. The top

applicant will receive two points

instead of one point if its technical

proposal covers both a 25 percent

greater area and 25 percent greater

population than the next best technical

proposal.)

(c) If the best qualified (highest

scoring) two or more applicants have

the same point accumulation, the

tentative selectee will be determined by

a tie-breaker mechanism as follows:

(1) Each applicant’s number of

attributable existing authorizations

(licenses and construction permits,

commercial and noncommercial) in the

same service (radio or television)

nationally, as of the time of application

shall be compared, and the applicant

with the fewest authorizations will be

chosen as tentative selectee;

(2) If a tie remains after the tie breaker

in paragraph (c)(1) of this section, the

tentative selectee will be the remaining

applicant with the fewest pending new

and major change applications in the

same service at the time of filing;

(3) If a tie remains after the tie breaker

in paragraph (c)(2) of this section, each

of the remaining applicants will be

identified as a tentative selectee, with

the time divided equally among them.

(d) Settlements. At any time during

this process, the applicants may advise

the Commission that they are

negotiating or have reached settlement,

and the Commission will withhold

further comparative processing for a

reasonable period upon such

notification. Settlement may include an

agreement to share time on the channel

voluntarily or other arrangement in

compliance with Commission rules.

Parties to a settlement shall comply

with § 73.3525, limiting any monetary

payment to the applicant’s reasonable

and prudent expenses.

§ 73.7004 Petitions to deny tentative

selectee(s).

(a) For mutually exclusive applicants

subject to the selection procedures in

subpart K of this part, Petitions to Deny

will be accepted only against the

tentative selectee(s).

(b) Within thirty (30) days following

the issuance of a public notice

announcing the tentative selection of an

applicant through fair distribution

(§ 73.7002) or point system (§ 73.7003)

procedures, petitions to deny that

application may be filed. Any such

petitions must contain allegations of fact

supported by affidavit of a person or

persons with personal knowledge

thereof.

(c) An applicant may file an

opposition to any petition to deny, and

the petitioner a reply to such

opposition. Allegations of fact or denials

thereof must be supported by affidavit

of a person or persons with personal

knowledge thereof. The time for filing

such oppositions shall be 10 days from

the filing date for petitions to deny, and

the time for filing replies shall be 5 days

from the filing date for oppositions.

(d) If the Commission denies or

dismisses all petitions to deny, if any

are filed, and is otherwise satisfied that

an applicant is qualified, the application

will be granted. If the Commission

determines that the points originally

claimed were higher than permitted, but

that there is no substantial and material

question of fact of applicant

qualifications, it will compare the

revised point tally of the tentative

selectee to the other mutually exclusive

applicants and, either grant the original

application or announce a new tentative

selectee, as appropriate. If an applicant

is found unqualified, the application

shall be denied, and the applicant(s)

with the next highest point tally named

as the new tentative selectee.

§ 73.7005 Holding period.

(a) Assignments/Transfers. NCE

stations awarded by use of the point

system in § 73.7003 shall be subject to

a holding period. From the grant of the

construction permit and continuing

until the facility has achieved four years

of on-air operations, an applicant

proposing to assign or transfer the

construction permit/license to another

party will be required to demonstrate

the following two factors: that the

proposed buyer would qualify for the

same number of or greater points as the

assignor or transferor originally

received; and that consideration

received and/or promised does not

exceed the assignor’s or transferor’s

legitimate and prudent expenses. For

purposes of this section, legitimate and

prudent expenses are those expenses

reasonably incurred by the assignor or

transferor in obtaining and constructing

the station (e.g. expenses in preparing

an application, in obtaining and

installing broadcast equipment to be

assigned or transferred, etc.). Costs

incurred in operating the station are not

recoverable (e.g. rent, salaries, utilities,

music licensing fees, etc.). Any

successive applicants proposing to

assign or transfer the construction

permit/license prior to the end of the

aforementioned holding period will be

required to make the same

demonstrations.

(b) Technical. In accordance with the

provisions of § 73.7002, an NCE

applicant receiving a decisive

preference for fair distribution of service

is required to construct and operate

technical facilities substantially as

proposed, and can not downgrade

service to the area on which the

preference is based for a period of four

years of on-air operations. (c) The

holding period in this section does not

36382 Federal Register / Vol. 65, No. 111 / Thursday, June 8, 2000 / Rules and Regulations

apply to construction permits that are

awarded on a non-comparative basis,

such as those awarded to non-mutually

exclusive applicants or through

settlement.

PART 74—EXPERIMENTAL RADIO,

AUXILIARY, SPECIAL BROADCAST

AND OTHER PROGRAM

DISTRIBUTION SERVICES

17. The authority citation for part 74

continues to read:

Authority: 47 U.S.C. 154, 303, 307, and

554.

18. Section 74.1233 is amended by

adding paragraphs (b)(3) and (b)(4);

revising paragraph (c)(1); removing

paragraph (e)(4) and revising paragraphs

(e)(3) introductory text, (e)(3), (i), (e)(3)

(ii), and (e)(3)(iii) to read as follows:

§ 74.1233 Processing FM translator and

booster station applications.

* * * * *

(b) * * *

(3) Applications for reserved band FM

translator stations will be processed

using filing window procedures. The

FCC will specify by Public Notice, a

period for filing reserved band FM

translator applications for a new station

or for major modifications in the

facilities of an authorized station. FM

translator applications for new facilities

or for major modifications will be

accepted only during these specified

periods. Applications submitted prior to

the window opening date identified in

the Public Notice will be returned as

premature. Applications submitted after

the specified deadline will be dismissed

with prejudice as untimely.

(4) Timely filed applications for new

facilities or for major modifications for

reserved band FM Translators will be

processed pursuant to the procedures

set forth in subpart K of Part 73

(§ 73.7000 et seq.) Subsequently, the

FCC will release Public Notices

identifying: mutually exclusive groups

of applications; applications received

during the window filing period which

are found to be non-mutually exclusive;

tentative selectees determined pursuant

to the point system procedures set forth

in § 73.7003 of this chapter; and

acceptable applications. The Public

Notices will also announce: additional

procedures to be followed for certain

groups of applications; deadlines for

filing additional information; and dates

by which petitions to deny must be filed

in accordance with the provisions of

§ 73.7004 of this chapter. If the

applicant is duly qualified, and upon

examination, the FCC finds that the

public interest, convenience and

necessity will be served by the granting

of the application, it will be granted. If

an application is found not to be

acceptable for filing, the application

will be returned, and subject to the

amendment requirements of § 73.3522

of this chapter.

(c) * * *

(1) There is not pending a mutually

exclusive application.

* * * * *

(e) * * *

(3) Where there are no available

frequencies to substitute for a mutually

exclusive application, the FCC will

apply the same point system identified

for full service reserved band FM

stations in § 73.7003(b) of this chapter.

In the event of a tie, the FCC will

consider:

(i) Each applicant’s number of

existing FM translator authorizations

(licenses and construction permits) of

the same type (fill-in or non fill-in as

defined in paragraphs (e)(1) and (e)(2) of

this section) as of the time of

application shall be compared, and the

applicant with the fewest authorizations

will be chosen as tentative selectee;

(ii) If a tie remains, after the tie

breaker in paragraph (c)(3)(i) of this

section, the remaining applicant with

the fewest pending new and major

change applications for FM translators

of the same type (fill-in or non fill-in)

will be chosen as tentative selectee;

(iii) Where the procedures in

paragraphs (e)(1), (e)(2) and (e)(3)(i) and

(e)(3)(ii) of this section fail to resolve the

mutual exclusivity, the applications will

be processed on a first-come-first-served

basis.

[FR Doc. 00–14439 Filed 6–7–00; 8:45 am]

BILLING CODE 6712–01–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 76

Cable Television Consumer Protection

and Competition Act of 1992;

Horizontal Ownership Limits

AGENCY: Federal Communications

Commission.

ACTION: Final rule; lifting of stay.

SUMMARY: This document announces

that the Commission’s voluntarilyimposed stay of the cable horizontal

ownership rules was lifted on May 19,

2000 and that the cable horizontal

ownership rules became effective on

May 19, 2000.

DATES: The stay of 47 CFR 76.503(a)

through (f) was lifted May 19, 2000.

Parties not in compliance with the

horizontal ownership rules on this date

must come into compliance on or before

November 15, 2000.

FOR FURTHER INFORMATION CONTACT:

Darryl Cooper at (202) 418–7200 or via

Internet at dacooper@fcc.gov.

SUPPLEMENTARY INFORMATION:

Synopsis of Action

1. On its own motion, the

Commission reconsidered the

conditions under which it would lift the

voluntarily-imposed stay of the

horizontal ownership rules, 47 CFR

76.503. These rules were adopted and

stayed in part on October 8, 1999 at 64

FR 67198 (Dec 1, 1999).

2. Subsequently, the Commission

ordered that its horizontal ownership

rules be stayed until the U.S. Court of

Appeals for the D.C Circuit issued a

decision upholding the constitutionality

of section 613(f)(1)(A) of the

Communications Act of 1934, as

amended, 47 U.S.C. 533(f)(1)(A). The

Commission also ordered that parties

not in compliance with the rules on the

date the U.S. Court of Appeals for the

D.C. Circuit issued such decision must

come into compliance within 180 days

of the court decision. This order was

published in the Federal Register (65

FR 12135, March 8, 2000).

3. On May 19, 2000, the U.S. Court of

Appeals for the D.C. Circuit issued its

decision, upholding the

constitutionality of section 613(f)(1)(A)

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

533(f)(1)(A).

Federal Communications Commission.

William H. Johnson,

Deputy Bureau Chief, Cable Services Bureau.

[FR Doc. 00–14538 Filed 6–7–00; 8:45 am]

BILLING CODE 6712–01–U

OFFICE OF PERSONNEL

MANAGEMENT

48 CFR Parts 1604, 1615, 1632, and

1652

RIN 3206 AI67

Federal Employees Health Benefits

(FEHB) Program and Department of

Defense (DoD) Demonstration Project;

and Other Miscellaneous Changes

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: OPM is issuing a final

regulation to implement the portion of

the Defense Authorization Act for 1999

that establishes authority for a

demonstration project under which

certain Medicare and other eligible DoD

beneficiaries can enroll in health benefit