2916 Federal Register / Vol. 77, No. 13 / Friday, January 20, 2012 / Rules and Regulations 

Dated: January 12, 2012. 

David L. Miller, 

Associate Administrator, Federal Insurance 

and Mitigation Administration, Department 

of Homeland Security, Federal Emergency 

Management Agency. 

[FR Doc. 2012–1103 Filed 1–19–12; 8:45 am] 

BILLING CODE 9110–12–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 09–52; FCC 11–190] 

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 procedures 

designed to promote the initiation of 

commercial FM radio service by and to 

Native American tribes, by providing a 

procedure for such tribes to establish 

threshold qualifications when applying 

for commercial FM allotments added to 

the Table of Allotments using the 

Commission’s Tribal Priority. 

DATES: The rules and policies 

established in this order contain 

information collection requirements that 

have not been approved by OMB. The 

Commission will publish a document in 

the Federal Register announcing the 

effective date. 

ADDRESSES: Peter Doyle or Thomas 

Nessinger, Federal Communications 

Commission, Media Bureau, Audio 

Division, 445 12th Street SW., Room 

2–B450, Washington, DC 20445. 

FOR FURTHER INFORMATION CONTACT: 

Peter Doyle, Chief, Media Bureau, 

Audio Division, (202) 418–2700 or 

Peter.Doyle@fcc.gov; Thomas Nessinger, 

Attorney-Advisor, Media Bureau, Audio 

Division, (202) 418–2700 or Thomas.

Nessinger@fcc.gov. 

For additional information concerning 

the Paperwork Reduction Act 

information collection requirements 

contained in this document, contact 

Cathy Williams at (202) 418–2918, or 

via the Internet at Cathy.Williams@fcc.

gov. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Third 

Report and Order (Third R&O), FCC 

11–190, adopted December 28, 2011, 

and released December 29, 2011. The 

full text of the Third R&O is available 

for inspection and copying during 

regular business hours in the FCC 

Reference Center, 445 Twelfth Street 

SW., Room CY–A257, Portals II, 

Washington, DC 20554, and may also be 

purchased from the Commission’s copy 

contractor, BCPI, Inc., Portals II, 445 

Twelfth Street, SW., Room CY–B402, 

Washington, DC 20554. Customers may 

contact BCPI, Inc. via their Web site, 

http://www.bcpi.com, or call 1–(800) 

378–3160. This document is available in 

alternative formats (computer diskette, 

large print, audio record, and Braille). 

Persons with disabilities who need 

documents in these formats may contact 

the FCC by email: FCC504@fcc.gov or 

phone: (202) 418–0530 or TTY: (202) 

418–0432. 

Paperwork Reduction Act of 1995 

Analysis 

This Third 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, the Commission notes that 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

it previously sought specific comment 

on how the Commission might ‘‘further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees.’’ 

Synopsis of Order 

1. In the Third R&O, the Commission 

addressed the proposals set forth in the 

Second Further Notice of Proposed Rule 

Making (Second FNPRM) that 

accompanied the Second Report and 

Order in this proceeding (76 FR 9797, 

March 4, 2010, FCC 11–28, rel. Mar. 3, 

2011) (Second R&O). The Tribal Priority 

gives qualified Native American Tribes 

and Alaska Native Villages (Tribes) a 

priority under section 307(b) of the 

Communications Act when seeking to 

establish new radio stations that 

primarily cover tribal lands. Because 

applicants for new AM broadcast and 

FM noncommercial educational (NCE) 

broadcast stations submit showings 

under section 307(b) at the time of filing 

an application for construction permit, 

the Tribal Priority gives Tribes an 

advantage over applicants filing 

mutually exclusive proposals. However, 

in the case of commercial FM broadcast 

stations, there is a two-step application 

process: first, the FM channel is allotted 

at a selected community, and the 

section 307(b) evaluation is made at this 

stage of the process. Second, the FM 

allotment is auctioned, with any party 

desiring to do so participating in the 

auction. An application for an FM 

commercial construction permit is only 

filed after the auction is held, and only 

by the winning bidder. 

2. Recognizing ‘‘the risks inherent in 

applying a section 307(b) preference at 

the allotment stage for auctionable nonreserved band spectrum,’’ (First Report 

and Order, 75 FR 9797, Mar. 4, 2010, 

FCC 10–24, rel. Feb. 23, 2010), the 

Commission sought comment in the 

Further Notice of Proposed Rule 

Making, 75 FR 9856, March 4, 2010, 

FCC 10–24, rel. Feb. 23, 2010 (FNPRM) 

in this proceeding on whether to 

establish an auction bidding credit for 

Tribes seeking to provide commercial 

FM radio service to their Tribal Lands 

and members. The Tribal bidding credit 

was originally proposed to mitigate 

concerns that, due to the two-step 

nature of the commercial FM licensing 

process, Tribes or Tribal entities that 

employ the Tribal Priority to obtain FM 

allotments might be outbid by 

competing, non-Tribal applicants. The 

only commenters to address this issue 

proposed a 35 percent bidding credit 

that would be available to Tribes or 

Tribal entities that participated in the 

allotment proceeding for the FM 

channel being auctioned, regardless of 

new entrant status, along with an 

additional 25 percent new entrant 

bidding credit to Tribes with no 

interests in media of mass 

communications, for a total maximum 

bidding credit of 60 percent. 

3. The Commission found the record 

inconclusive as to the effectiveness of 

tribal bidding credits. The Commission 

was unclear as to whether and how it 

could craft such credits so as to 

meaningfully advance its goals 

consistent with the competitive bidding 

mandate of 47 U.S.C. 309(j). On further 

consideration, the Commission believed 

an alternative approach might be more 

effective to achieve its policy goals and 

would be more consistent with its 

statutory mandate to license spectrum 

in the public interest. The Commission 

thus sought comment, in the Second 

FNPRM, on whether to require, as a 

threshold qualification to apply for a 

commercial FM channel allotted 

pursuant to the Tribal Priority, that 


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applicants qualify for a Tribal Priority 

for the channel. Under this approach, a 

Tribe or Tribal entity applying for an 

FM channel allotted based on the Tribal 

Priority would be required to establish 

at the application stage its qualifications 

to provide the service for which the 

channel was specifically allotted. 

4. The Commission stated that the 

proposed threshold qualifications 

would be more effective than tribal 

bidding credits in advancing the Tribal 

Priority’s goals. As set forth in the First 

R&O, the Priority is premised on the 

unique ability of Tribes and Tribal 

entities to serve their Tribal 

communities ‘‘[b]ecause of their status 

as sovereign nations responsible for, 

among other things, ‘maintaining and 

sustaining their sacred histories, 

languages, and traditions.’ ’’ (First R&O, 

25 FCC Rcd at 1587–88). As the 

Commission previously noted, the 

identity of the service provider to Tribal 

areas is critical to Tribal Priority-based 

allocations. Whereas in AM and NCE 

radio services the Tribal Priority 

generally operates as a dispositive 

preference in the application process, 

guaranteeing that a qualified applicant 

will obtain the license, commercial FM 

licensing is a two-step process in which 

a dispositive preference at the initial, 

allotment stage does not guarantee the 

grant of a license in the second, 

application step. An unavoidable 

consequence of the auctions process is 

that Tribes and Tribal entities uniquely 

qualified to serve their communities 

may be outbid in the commercial FM 

application process by non-Tribal 

applicants that file mutually exclusive 

applications. At best, Tribal bidding 

credits could only enhance the 

competitive position of Tribal 

applicants. They could not, however, 

completely eliminate the risk of 

qualified Tribal applicants being outbid, 

thereby frustrating the Commission’s 

goals in allocating the channel pursuant 

to the Tribal Priority. In contrast, the 

proposed threshold qualification 

requirement would ensure that only a 

Tribe or Tribal entity qualified to 

provide the unique service 

contemplated by the allocation is 

eligible for the license to provide that 

service. Such an approach would set the 

commercial FM service on the same 

footing as other radio services with 

regard to the Tribal Priority, and avoid 

undermining the Commission’s policy 

goals in establishing the Tribal Priority. 

5. The Commission further stated that 

the proposed threshold qualifications 

would be consistent with its statutory 

mandate under 47 U.S.C. 309(j)(6)(E), 

which provides, in pertinent part, that 

‘‘[n]othing in this subsection, or in the 

use of competitive bidding, shall * * * 

be construed to relieve the Commission 

of the obligation in the public interest 

to continue to use * * * threshold 

qualifications * * * in order to avoid 

mutual exclusivity in application and 

licensing proceedings.’’ The use of 

threshold qualifications would serve the 

public interest because the premise of 

the Tribal Priority is a Tribe’s or Tribal 

entity’s unique ability to serve the needs 

and interests of its local community. 

Unlike a prohibited ‘‘pioneer’s 

preference,’’ which would favor the 

application of the party that petitioned 

to add an allotment using the Tribal 

Priority, the threshold qualification 

would be based on the Tribe’s or Tribal 

entity’s ability to fulfill the purpose for 

which the channel was allotted under 

the Tribal Priority, rather than on its 

participation in the allotment 

proceeding. Thus, eligible Tribes or 

Tribal entities may be eligible to apply 

for a channel allotted pursuant to the 

Tribal Priority even if they did not 

petition for the allotment. To the extent 

that mutually exclusive applications 

may still be filed under the proposed 

threshold qualifications approach, thus 

requiring competitive bidding, the 

bidders would initially be limited to 

qualified Tribes and Tribal entities, so 

the Commission’s policy goals would 

not be frustrated. In the Second FNPRM, 

the Commission also asked whether to 

adopt an exception to the general 

prohibition of collusion set forth in 47 

CFR 1.2105(c), applicable to mutually 

exclusive applications in the 

commercial FM broadcast service, so 

that Tribes or Tribal entities that file 

mutually exclusive applications for a 

channel allotted pursuant to the Tribal 

Priority could have an opportunity to 

resolve any mutual exclusivities 

through engineering solutions or 

settlement. 

6. The Commission received two 

comments and one reply comment on 

these issues: NPM and NCAI again filed 

joint comments, and Gila River 

Telecommunications, Inc. (GRTI) filed 

comments and reply comments. All 

commenters supported the threshold 

qualifications approach as proposed in 

the Second FNPRM, and supported the 

proposal to allow settlements among 

qualifying mutually exclusive Tribal 

applicants. All commenters also 

concurred an FM allotment added by a 

qualified Tribe or Tribal-owned entity 

using the Tribal Priority (Tribal 

Allotment) should be initially awarded 

only to a Tribe or Tribal entity, and 

should remain reserved for such an 

entity even if no Tribal applicants 

meeting such threshold qualifications 

express interest in a Tribal Allotment 

when initially offered. NPM/NCAI in 

particular believed that it would 

frustrate the purpose of the Tribal 

Priority to open, then abruptly close, a 

Tribal filing window, only to offer the 

Tribal Allotment to non-Tribal 

applicants, given that many financial, 

technical, and geographic obstacles exist 

to the rapid deployment of broadcast 

radio service to tribal lands. NPM/NCAI 

thus argued that any threshold 

qualifications plan should account for 

such obstacles, and should allow 

sufficient time for Tribes to finance and 

construct facilities. GRTI, while 

agreeing with NPM/NCAI on this point, 

added that some Tribes are prepared 

and eager to begin station construction 

quickly, but that such desires can be 

thwarted by what it perceives as 

Commission delays. GRTI thus 

suggested that the Commission 

implement an ‘‘expedited processing’’ 

system for Tribes meeting threshold 

qualifications and proposing new AM, 

full-power FM, and low-power FM 

facilities. 

7. Based on the Commission’s 

examination of the record in this 

proceeding, it adopted the proposed 

threshold qualifications approach to 

commercial FM application processing 

as set forth below, including measures 

to address situations in which Tribes 

and Tribal entities require additional 

time to apply for a license. While 

committed to assisting Tribes in 

establishing radio service meeting the 

needs of their communities and citizens, 

the Commission was also mindful of its 

fundamental interest in expediting new 

radio service to communities and 

preventing the so-called ‘‘warehousing’’ 

of scarce spectrum. The latter concern 

militates against procedures that would 

unreasonably delay authorizing new 

stations, or tie up spectrum for 

indefinite periods of time. To some 

extent, a Tribe may time the award of 

a new FM commercial facility by 

petitioning for a new Tribal Allotment 

only when it is ready to commence 

construction (although, in certain areas 

where spectrum is more scarce, Tribes 

could also reasonably conclude that the 

risks of deferring application filing are 

too great). Moreover, while there do 

exist financial obstacles to initiating 

new broadcast service, the procedures 

proposed in the Second FNPRM apply 

only to commercial FM facilities, which 

by their nature are intended to be 

financially self-sustaining. Finally, as 

GRTI pointed out in its comments, some 

Tribes are ready, willing, and able to 

commence construction immediately, 

and would be disserved by any process 


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that includes built-in delays. The 

adopted procedures are intended to 

balance these concerns by 

accommodating both those Tribes and 

Tribal entities that wish to initiate 

commercial FM service quickly and 

those that might need additional time to 

muster the resources needed to apply 

for a new station and complete 

construction. 

8. Under the threshold qualifications 

procedure adopted herein, once a Tribal 

Allotment is allocated, as set forth in the 

First R&O, within a reasonable period of 

time after publication of the new 

allotment in the Federal Register, the 

Commission will announce by Public 

Notice a Threshold Qualifications 

Window (TQ Window). During the TQ 

Window, any Tribe or Tribal entity that 

could qualify to add that particular 

Tribal Allotment, including the original 

proponent of the allotment, may file 

FCC Form 301 for the Tribal Allotment 

(the original Tribal Allotment proponent 

will already have filed FCC Form 301 

simultaneously with its Petition for Rule 

Making proposing the new allotment, 

under established Commission 

procedures; thus, the original Tribal 

Allotment proponent need only submit 

a notice stating that it wishes its 

pending Form 301 application to be 

processed immediately, or it may file an 

amendment to its pending Form 301 

application during the TQ Window, as 

appropriate). Such an applicant must 

demonstrate that it meets all of the 

following eligibility criteria for grant of 

a Tribal Priority at the allotment stage: 

(A) 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. Qualifying Tribes or Tribal 

entities must be those at least a portion 

of whose Tribal Lands lie within the 

principal community contour of the 

proposed facility. Although the 51 or 

greater percent Tribal control threshold 

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 proposed facility’s principal 

community contour; 

(B)(1) At least 50 percent of the area 

within the proposed principal 

community contour is over that Tribe’s 

Tribal Lands, or (2) the proposed 

principal community contour (a) 

encompasses 50 percent or more of that 

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

2,000 people living on Tribal Lands, and 

(c) the total population on Tribal Lands 

residing within the proposed station’s 

service contour (the class reference 

contour as set forth in 47 CFR 73.211(b), 

which is the 1mV/m [60 dBm] contour) 

constitutes at least 50 percent of the 

total covered population (and, in the 

case of either (B)(1) or (B)(2), the 

proposed station’s principal community 

contour does not cover more than 50 

percent of the Tribal Lands of a Tribe 

that is not a party to the application). To 

the extent that a Tribe lacks Tribal 

Lands, the applicant may demonstrate 

eligibility for waiver of the above-listed 

tribal land coverage provisions, by 

demonstrating a geographic area 

identified with the Tribe. See Second 

R&O, 26 FCC Rcd at 2561–63. Likewise, 

the Commission will consider requests 

for waiver of the other requirements 

where appropriate; 

(C) The proposed community of 

license must be located on Tribal Lands; 

and 

(D) The proposed service must 

constitute first or second aural 

(reception) service, or first local Tribalowned commercial transmission service 

at the proposed community of license 

(see First R&O, 25 FCC Rcd 1583, 1596– 

97 (2010); Second R&O, 26 FCC Rcd at 

2561–63, 2586–87). 

9. If only one acceptable application 

is filed during the TQ Window, whether 

by the original Tribal Allotment 

proponent submitting notification to 

process its application immediately or 

by another qualified applicant, that 

application will be processed promptly, 

and the Tribal Allotment will not be 

auctioned. Absent an affirmative 

submission by the original Tribal 

Allotment proponent during the TQ 

Window notifying the Commission that 

it wishes its Form 301 application to be 

processed immediately, the allotment 

proponent’s already-filed Form 301 

application will not be considered an 

‘‘acceptable application’’ at this stage of 

the threshold qualifications proceeding. 

In the event that two or more acceptable 

applications are filed during the TQ 

Window, the Commission will 

announce a limited period, after the 

close of the TQ Window but before the 

next FM auction, in which the parties 

may negotiate a settlement (including a 

time-sharing agreement) or bona fide 

merger, as a way of resolving the mutual 

exclusivity between their applications. 

Any such settlement or merger will be 

subject to the same limits and 

conditions as other agreements for 

resolving application conflicts (see 47 

CFR 73.3525). Technical solutions will 

not be allowed as settlements. Unlike 

the case of competing new commercial 

AM applications (some groups of which 

are allowed to resolve their mutual 

exclusivity by means of engineering 

solutions), in which each mutually 

exclusive applicant has submitted a 

discrete engineering proposal in its 

application which may be amended, a 

Tribal Allotment will have been added 

to the Table of Allotments (47 CFR 

73.202) only after it has undergone the 

allocations rulemaking process. That 

process involves not only a complete 

engineering review of the proposed 

allotment, but also consideration of 

comments and, often, competing 

allotment proposals. Allowing a postallocation technical solution that would 

result in grant of more than one FM 

allotment would effectively circumvent 

the FM allocations rulemaking process, 

and the right of parties to file comments 

and counter-proposals that is inherent 

in that process. If there are other fully 

spaced channels that could 

accommodate another Tribal Allotment, 

one of the competing applicants could 

simply petition to add such an 

allotment through the normal 

allocations rulemaking process. If, 

however, there are no channels 

available, the Commission declined 

GRTI’s suggestion that it relax its 

spacing or other rules designed to 

prevent interference among stations. A 

settlement that establishes technically 

deficient Tribal stations is not an 

effective means to establish viable and 

needed radio service to Tribal Lands. 

10. If a settlement or merger is 

reached, the parties shall so notify the 

Commission as set forth in the Public 

Notice announcing the TQ Window. 

The Commission’s staff will promptly 

begin processing the surviving 

application pursuant to the settlement 

or merger. If a settlement or merger 

cannot be reached among the mutually 

exclusive applicants, the Tribal 

Allotment will be auctioned during the 

next scheduled FM auction. However, at 

that time only the applicants whose 

applications were accepted for filing 

during the TQ Window, as well as the 

original Tribal Allotment proponent, 

will be permitted to bid on that 

particular Tribal Allotment, i.e., bidding 

on that allotment will be closed to all 

other potential applicants. The closed 

group of mutually exclusive TQ 

Window applicants must comply with 

generally applicable auction procedures 

(e.g., by correctly completing Form 175 

and timely making an upfront payment; 

see 47 CFR 1.2105–1.2106, 73.5002). In 

the event that only one Tribal applicant 

qualifies to bid in the first auction of a 

Tribal Allotment, it must submit an 

upfront payment and enter a bid during 

the auction in order to obtain the 

construction permit. The winning 

bidder for the Tribal Allotment must 

comply with all auction rules for 

winning bidders in order to be awarded 

the construction permit; that is, it must 


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timely make any required down and 

final payments, and must timely file 

FCC Form 301 (or, in the case of the 

original proponent of the Tribal 

Allotment, amend its pending Form 301 

or advise the staff that its pending Form 

301 application may be processed). See 

47 CFR 1.2107, 1.2109, 1.2112, 73.5003, 

73.5005. 

11. In the NCE FM context, the 

Commission’s rules impose a holding 

period on authorizations granted 

pursuant to a Tribal Priority, for a 

period beginning from the award of a 

construction permit through four years 

of on-air operations, prohibiting 

community of license changes and/or 

technical changes that would result in 

the modified facility no longer 

qualifying for a Tribal Priority. See First 

R&O, 25 FCC Rcd at 1586, 1593, 1596– 

97. This is to discourage trafficking in 

authorizations granted pursuant to the 

Tribal Priority, which could frustrate 

the goals of the priority and potentially 

harm the communities that the Tribal 

Priority is intended to benefit. The same 

rationale applies in the commercial FM 

context with regard to authorizations 

awarded (1) to a singleton TQ Window 

applicant, (2) after a settlement among 

TQ Window applicants, and (3) after an 

auction among a closed group of bidders 

composed only of threshold qualified 

tribal applicants. Accordingly, the 

permittee or licensee of an authorization 

awarded to a TQ Window singleton, 

after a post-TQ window settlement, or 

after an auction to a closed group of 

threshold qualified tribal applicants, is 

prohibited from assigning or transferring 

the authorization, except to another 

party that qualifies for the Tribal 

Priority under which the Tribal 

Allotment was awarded in all respects, 

for a period beginning from the award 

of a construction permit through four 

years of on-air operations. 

12. In the event that no qualifying 

party applies during the TQ Window, 

and the Tribal Allotment proponent 

requests that its pending FCC Form 301 

application not be immediately 

processed (by sending a letter to the 

Audio Division, Media Bureau, staff 

during the TQ Window), the Tribal 

Allotment will be placed in a queue to 

be auctioned in the normal course for 

vacant FM allotments. When the Tribal 

Allotment is offered at auction for the 

first time, only applicants meeting the 

threshold qualifications (those who 

would have qualified to add the Tribal 

Allotment, including the original 

proponent of the allotment, as detailed 

above) may specify that particular Tribal 

Allotment on FCC Form 175, 

Application to Participate in an FCC 

Auction. Any applicant not meeting 

threshold qualifications that selects the 

Tribal Allotment in its Form 175 

application will be prohibited from 

entering a bid for the Tribal Allotment. 

Qualifying Tribal applicants must, as 

noted above, otherwise qualify to bid at 

auction, and must comply with all 

Commission rules relating to the 

conduct of auctions and award of 

construction permits to winning 

bidders, as discussed above. 

13. Should no qualifying party apply 

to bid on a Tribal Allotment in the first 

auction in which it is offered, or should 

no such party qualify to bid in the first 

auction in which a Tribal Allotment is 

offered, then the Tribal Allotment will 

be offered in a subsequent auction or 

auctions, and any applicant, whether or 

not a Tribe or Tribal entity, may apply 

for the Tribal Allotment. The 

Commission declined to adopt the 

commenters’ suggestion that a Tribal 

Allotment only be offered for initial 

licensing to a qualifying Tribe or Tribal 

entity in perpetuity. Such a prohibition 

would frustrate the policies favoring 

expeditious initiation of radio service, 

and disfavoring the practice of allowing 

spectrum to lie fallow for indefinite 

periods. 

14. Due to the Commission’s adoption 

of the threshold qualifications approach, 

it did not adopt its original proposal of 

a Tribal bidding credit. The Commission 

continues to believe that a bidding 

credit, of whatever magnitude, is 

insufficient to ensure that Tribal 

Allotments will end up in the hands of 

qualifying Tribal applicants. See Second 

R&O, 26 FCC Rcd at 2588–89. It is 

expected that, under the procedures 

adopted, the majority of FM commercial 

Tribal Allotments will be awarded 

through the TQ Window approach. 

Moreover, to the extent that multiple 

qualifying Tribes or Tribal entities 

would bid on a Tribal Allotment at 

auction, all would likely qualify for the 

same Tribal or new entrant bidding 

credits. Adding a bidding credit to the 

procedures adopted here would 

therefore serve no purpose. 

15. The procedures adopted here are 

designed to accommodate both those 

Tribes and Tribal entities seeking to 

establish new commercial FM services 

quickly, and those Tribes needing more 

time to marshal their resources. These 

procedures also align with Congress’s 

direction that the Commission use 

threshold qualifications to avoid mutual 

exclusivity in application and licensing 

proceedings when it is in the public 

interest to do so. 47 U.S.C. 309(j)(6)(E). 

Most importantly, these procedures 

provide the best means of assuring that 

FM commercial allotments pursuant to 

the Tribal Priority will be awarded to 

qualifying Tribes or Tribal entities, thus 

achieving the goals of the Tribal 

Priority. 

16. The Commission realizes that any 

process leading to deployment of 

communications services on Tribal 

lands and removing barriers to entry 

must recognize Tribal sovereignty and 

self-determination, the unique needs 

and priorities of Native Nations and 

Tribal communities, and the importance 

of consultation and coordination with 

Tribal government and Native 

community leaders. It has historically 

acknowledged ‘‘the rights of Indian 

Tribal governments to set their own 

communications priorities and goals for 

the welfare of their membership.’’ See 

Establishing a Government-toGovernment Relationship with Indian 

Tribes, Policy Statement, 16 FCC Rcd 

4078, 4080–81 (2000). To that end, the 

Commission directed the Office of 

Native Affairs and Policy (ONAP) and 

the Audio Division of the Media Bureau 

(AD) to coordinate in establishing 

informational materials and training 

opportunities for Tribes and Tribal 

entities, in order to help them better 

understand the complexities of the 

threshold qualification and licensing 

processes established herein. 

Additionally, ONAP and AD were 

directed, as appropriate, to remain 

available to consult with Tribal 

applicants on any questions that they 

may have at any stage of the radio 

application and licensing processes, 

especially as they relate to Tribal 

licensing priorities. Id. at 4082. 

Final Regulatory Flexibility Analysis 

17. As required by the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 603, as 

amended (RFA), an Initial Regulatory 

Flexibility Analysis (IRFA) was 

incorporated in the Second FNPRM to 

this proceeding. The Commission 

sought written public comment on the 

proposals in the Second FNPRM, 

including comment on the IRFA. The 

Commission received no comments on 

the IRFA. This present Final Regulatory 

Flexibility Analysis (FRFA) conforms to 

the RFA. See 5 U.S.C. 604. 

Need for, and Objectives of, the Report 

and Order 

18. In the Third R&O, the Commission 

adopted new procedures under which 

commercial FM allotments added using 

the Commission’s Tribal Priority may be 

awarded to tribal applicants meeting the 

threshold qualifications for adding such 

an allotment. The new procedures were 

adopted in order to provide a significant 

opportunity for the award of such tribal 

allotments to tribal applicants, in 


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2920 Federal Register / Vol. 77, No. 13 / Friday, January 20, 2012 / Rules and Regulations 

keeping with the goals underlying the 

Commission’s Tribal Priority. 

19. The further rulemaking 

proceeding leading to the Third R&O 

was initiated to obtain further 

comments concerning an alternative 

proposal to assist Native American 

Tribes and Alaska Native Villages 

(Tribes) seeking to establish new 

commercial FM service to Tribal 

communities. In the Further Notice of 

Proposed Rulemaking, the Commission 

proposed an auction bidding credit to 

Tribes and entities owned by Tribes. 

The Commission received only one 

proposal for a potential tribal bidding 

credit: To grant Tribes a 35 percent 

Tribal Bidding Credit (TBC), to be added 

to any new entrant bidding credit for 

which they may qualify, to a maximum 

of 60 percent. The Commission believed 

this record was inconclusive to adopt a 

TBC, and further believed it was unclear 

whether and how a TBC could be 

crafted to advance the dual goals of 

increasing Tribal ownership of radio 

facilities and maximizing the value of 

spectrum through competitive bidding, 

as mandated by 47 U.S.C. 309(j). On 

further consideration, the Commission 

determined that an alternative approach 

would more effectively achieve the 

policy goals underlying the Tribal 

Priority adopted in the First R&O in this 

proceeding, 25 FCC Rcd at 15896–97, 

and be more consistent with its 

statutory mandate. See 47 U.S.C. 

309(j)(6)(E). 

20. Specifically, in the Second 

FNPRM the Commission sought 

comment on whether to require, as a 

threshold qualification to apply for a 

commercial FM channel allotted 

pursuant to the Tribal Priority, that 

applicants qualify for a Tribal Priority 

for that channel. Such an approach is 

consistent with other procedures used 

by the Commission, such as those used 

to reserve vacant FM allotments for 

noncommercial educational (NCE) use. 

Additionally, while the Tribal Priority 

operates as a dispositive preference in 

the AM commercial and FM NCE 

application contexts, as currently 

formulated the priority is not 

dispositive for FM commercial stations, 

because a Tribe that adds an FM 

allotment using the Tribal Priority may 

still be outbid at auction by a non-Tribal 

applicant. The alternative approach 

proposed by the Commission would 

correct this asymmetry, and would also 

more effectively ensure that FM 

allotments added using the Tribal 

Priority are ultimately licensed to 

Tribes, who would use such FM 

channels for their intended purposes of 

promoting Tribal language, culture, and 

self-government. The Commission 

therefore sought comment on this 

alternative approach and its potential 

ramifications, including whether nonTribal applicants should be allowed to 

apply for FM allotments added using 

the Tribal Priority, but for which no 

Tribe expresses interest. The 

Commission also sought additional 

input from commenters on the TBC, and 

on other ways in which the Commission 

could promote commercial Tribal radio 

service, including comment on potential 

barriers that may discourage Tribal 

participation in the broadcast auction 

and licensing processes. 

21. Commenters on these issues 

favored the adoption of the threshold 

qualifications procedure, as the best 

means of ensuring that Tribal-added FM 

allotments would ultimately be licensed 

to those whom the Tribal Priority was 

meant to benefit. Native Public Media 

and the National Congress of American 

Indians (NPM/NCAI), filing joint 

comments, expressed concern that 

expedited procedures would force 

Tribes to receive construction permits 

before they were financially and 

technically able to construct facilities. 

Another commenter, Gila River 

Telecommunications, Inc. (GRTI), 

agreed, but at the same time argued that 

there should be expedited threshold 

qualifications procedures for those 

Tribal applicants who are ready and 

able to begin station construction. All 

commenters agreed that Tribal 

allotments should not be made available 

to non-Tribal applicants at any time. 

Commenters also agreed that, if the 

threshold qualifications procedure were 

not adopted, a TBC of up to 60 percent 

should be afforded to Tribal applicants 

for FM allotments added using the 

Tribal Priority. 

22. In the Third R&O in this 

proceeding, the Commission adopted 

the threshold qualifications procedure 

proposed in the Second FNPRM. Under 

the threshold qualifications procedure, 

once a commercial FM allotment is 

allocated using the Tribal Priority 

(Tribal Allotment), within a reasonable 

time thereafter the Commission staff 

will announce by Public Notice a 

Threshold Qualifications Window (TQ 

Window). During the TQ Window, any 

Tribe or Tribal entity that could qualify 

to add that particular Tribal Allotment 

may file FCC Form 301 for the Tribal 

Allotment. The original Tribal 

Allotment proponent, which will 

already have filed Form 301 at the time 

it proposed the allotment, must submit 

to the staff a notice stating that it wishes 

its already-filed Form 301 application to 

be processed immediately, or make that 

statement in an amendment to its Form 

301. An applicant in the TQ Window 

must demonstrate that it meets all of the 

eligibility criteria for grant of a Tribal 

Priority at the allotment stage. See 

paragraph <8>, above. 

23. If only one acceptable application 

is filed during the TQ Window, whether 

by the original Tribal Allotment 

proponent submitting notification to 

process its application immediately or 

by another qualified applicant, that 

application will be processed promptly, 

and the Tribal Allotment will not be 

auctioned. In the event that two or more 

acceptable applications are filed during 

the TQ Window, the Commission will 

announce a limited period, after the 

close of the TQ Window but before the 

next FM auction, in which the parties 

may negotiate a settlement (including a 

time-sharing agreement) or bona fide 

merger, as a way of resolving the mutual 

exclusivity between their applications. 

There is precedent for such settlements 

or mergers in the AM auction context, 

involving certain mutually exclusive 

applicants for new and modified AM 

stations. See Implementation of Section 

309(j) of the Communications Act— 

Competitive Bidding for Commercial 

Broadcast and Instructional Television 

Fixed Service Licenses, First Report and 

Order, 13 FCC Rcd 15920, 15927 (1998), 

(subsequent history omitted). If a 

settlement or merger is reached, the 

parties shall so notify the Commission 

as set forth in the Public Notice 

announcing the TQ Window. The staff 

will promptly begin processing the 

surviving application pursuant to the 

settlement or merger. If a settlement or 

merger cannot be reached among the 

mutually exclusive applicants, the 

Tribal Allotment will be auctioned 

during the next scheduled FM auction. 

However, at that time only the 

applicants whose applications were 

accepted for filing during the TQ 

Window, as well as the original Tribal 

Allotment proponent, will be permitted 

to bid on that particular Tribal 

Allotment, i.e., bidding on that 

allotment will be closed to all other 

potential applicants. The closed group 

of mutually exclusive TQ Window 

applicants must comply with generally 

applicable auction procedures. The 

winning bidder for the Tribal Allotment 

must comply with all auction rules for 

winning bidders in order to be awarded 

the construction permit; that is, it must 

timely make any required down and 

final payments, and must timely file 

FCC Form 301 (or, in the case of the 

original proponent of the Tribal 

Allotment, amend its pending Form 301 

or advise the staff that its pending Form 

301 application may be processed). 

24. In the event that no qualifying 

party applies during the TQ Window, 


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and the original Tribal Allotment 

proponent requests that its pending FCC 

Form 301 application not be 

immediately processed, the Tribal 

Allotment will be placed in a queue to 

be auctioned in the normal course for 

vacant FM allotments. When the Tribal 

Allotment is offered at auction for the 

first time, only applicants meeting the 

threshold qualifications (those who 

would have qualified to add the Tribal 

Allotment, including the original 

proponent of the allotment) may specify 

that particular Tribal Allotment on FCC 

Form 175, Application to Participate in 

an FCC Auction. Any applicant not 

meeting threshold qualifications that 

selects the Tribal Allotment in its Form 

175 application will be prohibited from 

entering a bid for the Tribal Allotment. 

Qualifying Tribal applicants must, as 

noted above, otherwise qualify to bid at 

auction, and must comply with all 

Commission rules relating to the 

conduct of auctions and award of 

construction permits to winning 

bidders. Should no qualifying party 

apply to bid on a Tribal Allotment in 

the first auction in which it is offered, 

or should no such party qualify to bid 

in the first auction in which a Tribal 

Allotment is offered, then the Tribal 

Allotment will be offered in a 

subsequent auction or auctions, and any 

applicant, whether or not a Tribe or 

Tribal entity, may apply for the Tribal 

Allotment. A Tribal Allotment won in 

an open auction (that is, one open to 

non-threshold qualified applicants) will 

not be subject to the four-year 

prohibition on assignment or transfer 

(but will still be subject to a four-year 

prohibition on community of license or 

technical changes). Because of the 

similarity of the new threshold 

qualifications procedures to the 

procedures for awarding NCE 

construction permits based on the Tribal 

Priority (namely, to discourage 

trafficking in such permits so that they 

will be used to further the goals of the 

Tribal Priority by enabling Tribes or 

tribal entities to broadcast to Tribal 

Lands), the Commission will impose the 

same holding period prohibition on 

commercial FM permits awarded using 

the threshold qualifications procedures. 

The Commission will therefore prohibit 

the permittee or licensee of an 

authorization awarded to a TQ Window 

singleton, after a post-TQ window 

settlement, or after an auction to a 

closed group of threshold qualified 

tribal applicants, from assigning or 

transferring the authorization, except to 

another party that qualifies for the 

Tribal Priority under which the Tribal 

Allotment was awarded in all respects, 

for a period beginning from the award 

of a construction permit through four 

years of on-air operations. 

Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

25. 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 

26. 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. 5 U.S.C. 603(b)(3). 

The RFA generally defines the term 

‘‘small entity’’ as having the same 

meaning as the terms ‘‘small business,’’ 

small organization,’’ and ‘‘small 

government jurisdiction.’’ 5 U.S.C. 

601(6). In addition, the term ‘‘small 

business’’ has the same meaning as the 

term ‘‘small business concern’’ under 

the Small Business Act. 5 U.S.C. 601(3). 

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). 

15 U.S.C. 632. 

27. The rules and policies adopted in 

the Third R&O will primarily apply to 

Tribes, consortia of Tribes, and entities 

51 or more percent owned by Tribes or 

consortia, that apply for commercial FM 

radio stations, but potentially will apply 

to all AM and FM radio broadcasting 

licensees and potential licensees, to the 

extent that they may ultimately be 

allowed to apply for Tribal Allotments 

in the event that qualified Tribal 

applicants do not do so. A radio 

broadcasting station is an establishment 

primarily engaged in broadcasting aural 

programs by radio to the public. 15 

U.S.C. 632. Included in this industry are 

commercial, religious, educational, and 

other radio stations. Id. Radio 

broadcasting stations which primarily 

are engaged in radio broadcasting and 

which produce radio program materials 

are similarly included. Id. However, 

radio stations that are separate 

establishments and are primarily 

engaged in producing radio program 

material are classified under another 

NAICS number. Id. 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/Kelsey, MEDIA 

Access Pro Database on November 1, 

2011, 10,785 (97%) of 11,127 

commercial radio stations have revenue 

of $7 million or less. Therefore, the 

majority of such entities are small 

entities. Please note, however, that 

many radio stations are affiliated with 

much larger corporations having much 

higher revenue. This 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 

28. As described, certain rules and 

procedures will change, although the 

changes will not result in substantial 

increases in burdens on most 

applicants. The new procedures will 

only apply to Tribes and entities 

majority owned by Tribes, which do not 

constitute the majority of commercial 

FM applicants. Moreover, because of the 

geographic limits of commercial FM 

allotments, and the qualifying criteria 

for the Tribal Priority, the number of 

threshold qualified applicants for a 

given allotment will likely be small. 

Questions will be modified in FCC Form 

301 to indicate whether the applicant is 

applying for a Tribal Allotment, and 

certifying that it qualifies for the Tribal 

Priority for that particular Tribal 

Allotment. These are largely selfidentification questions reflecting the 

applicant’s status, although in the case 

of eligibility for the Tribal Priority some 

geographic analysis may be required, 

and/or a showing may be needed to 

establish eligibility for the Tribal 

Priority in the absence of tribal lands as 

defined in the First R&O. Additionally, 

questions will have to be added to FCC 

Form 175, in the case of Tribal 

Allotments that proceed to competitive 

bidding, in order to establish the 

applicant’s eligibility to apply for a 

Tribal Allotment in the first instance. 

However, these burdens should be 

moderate to minimal, as it is anticipated 

that a substantial number of commercial 

tribal FM allotments will be awarded 

before the auction stage, and many 

threshold qualified tribal applicants will 

have established their qualifications 

before auction, either at the allocations 

stage or during a TQ window. In any 

event, such burdens are needed in order 

to achieve the Commission’s statutory 

mandate of fair, efficient, and equitable 

distribution of radio service (and, in the 

case of Tribal Priority claimants, are 

necessary in order to open up the Tribal 

Priority to greater numbers of Tribes 

seeking to establish new radio service). 

Certain notifications may also be 

required of some applicants, for 

example, notification that a Tribal 


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2922 Federal Register / Vol. 77, No. 13 / Friday, January 20, 2012 / Rules and Regulations 

Allotment proponent wishes its alreadyfiled FCC Form 301 application to be 

considered in the TQ Window, or a 

request for approval of a merger or 

settlement agreement among TQ 

Window applicants. The remaining 

procedural changes in the Third R&O 

are changes in Commission procedures, 

requiring no input from applicants. For 

example, under the new threshold 

qualifications procedure, the 

Commission will have to generate 

Public Notices setting forth procedures 

for TQ Windows, or modify auction 

Public Notices to set forth special 

procedures for Tribal Allotments being 

auctioned. 

Steps Taken To Minimize Significant 

Impact of Small Entities, and 

Significant Alternatives Considered 

29. 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). 

30. With regard to the proposals in the 

Second FNPRM, NPM/NCAI expressed 

concern about the ability of some Tribes 

to act quickly to construct and license 

new commercial FM stations. There is, 

according to NPM/NCAI, a significant 

and adverse economic impact that some 

Tribes face when seeking to initiate new 

radio service. Factors causing such an 

adverse economic impact include lack 

of capital or federal program support; 

short construction seasons in many 

Tribal areas; complications with regard 

to tower siting, due to factors such as 

preservation of sacred sites and Bureau 

of Indian Affairs land use policies; and 

lack of easy access to materials and 

engineering expertise. While not 

disagreeing with NPM/NCAI on this 

issue, GRTI pointed to what it perceives 

as Commission delays in allocating new 

FM allotments and making them 

available for auction, delaying the 

initiation of new service by Tribes ready 

and able to begin construction 

immediately. In order to accommodate 

these dual concerns, the Commission 

adopted a threshold qualifications 

approach to Tribal commercial FM 

allotments that provides an early 

opportunity for application for Tribes 

that are ready to commence 

construction, as well as a later 

opportunity (up to, but likely no more 

than, two years) for those Tribes that 

may lack the resources to commence 

construction soon after a channel is 

allotted using the Tribal Priority. In this 

way, the Commission’s adopted 

procedure is designed to reduce the 

burdens on these groups of potential 

applicants, based on the concerns 

expressed in their comments. Although 

the Commission could have adopted 

strictly an expedited threshold 

qualifications procedure—awarding a 

construction permit for a Tribal 

Allotment through a TQ Window 

opened shortly after allocation of the 

Tribal Allotment—this would have 

forced those Tribes lacking the 

resources to commence construction 

immediately either to delay proposing 

an allotment or to risk expiration of the 

construction permit before construction 

could be completed. Accordingly, by 

adopting the TQ Window process over 

the proposed alternative of an expedited 

threshold qualifications procedure, the 

Commission has chosen the alternative 

that imposes a substantially less 

significant economic impact. 

Report to Congress 

31. The Commission will send a copy 

of the Third 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 

Third R&O, including the FRFA, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. A copy of the 

Third R&O and FRFA (or summaries 

thereof) will also be published in the 

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

Ordering Clauses 

32. Accordingly, it is ordered, 

pursuant to the authority contained in 

Sections 1, 2, 4(i), 303, 307, and 309(j) 

of the Communications Act of 1934, 47 

U.S.C. 151, 152, 154(i), 303, 307, and 

309(j), that this Third Report and Order 

is adopted. 

33. It is further ordered that, pursuant 

to the authority found in Sections 4(i), 

303(r), and 628 of the Communications 

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

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

Commission’s Rules are hereby 

amended as set forth herein. 

34. It is further ordered that the rules 

adopted herein 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. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR Part 73 to 

read as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

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

and 339. 

■ 2. Section 73.3573 is amended by 

adding new paragraph (f)(6) and adding 

new Note 5 at the end of the section to 

read as follows: 

§ 73.3573 Processing FM broadcast 

station applications. 

* * * * * 

(f) * * * 

(6)(i) When a non-reserved channel 

FM allotment is added to the Table of 

FM Allotments using the Tribal Priority 

described in Note 5 to this section, the 

FCC will specify by Public Notice a 

window filing period during which only 

those applicants that satisfy all of the 

eligibility criteria listed in Note 5 to this 

section with regard to the specific Tribal 

Priority FM allotment(s) listed in the 

Public Notice may file a long-form 

application for the Tribal Priority FM 

allotment. Only applications from 

applicants meeting the ‘‘threshold 

qualifications’’ listed in Note 5 will be 

accepted during this window filing 

period. 

(ii) If only one application for the 

Tribal Priority FM allotment is accepted 

for filing during the threshold 

qualifications window, the long-form 

application will be processed. If two or 

more applications for the Tribal Priority 

FM allotment are accepted for filing 

during the threshold qualifications 

window, the FCC will specify by Public 

Notice a period of time, after the close 

of the threshold qualifications window 

but before the next FM auction, during 

which the parties may negotiate a 

settlement or bona fide merger, as a way 

of resolving the conflict between their 

applications. Parties to a settlement 

must comply with § 73.3525 of the 

Commission’s rules. If a settlement or 

bona fide merger is reached, the 


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Federal Register / Vol. 77, No. 13 / Friday, January 20, 2012 / Rules and Regulations 2923 

surviving application will be processed. 

If no settlement or bona fide merger is 

reached among the threshold 

qualifications window applicants, the 

Tribal Priority FM allotment will be 

offered at auction as described in 

paragraphs (f)(2) through (f)(5) of this 

section, except that only those 

applicants whose applications were 

accepted for filing pursuant to 

paragraph (f)(6)(i) of this section may 

participate in the initial auction of the 

Tribal Priority FM allotment. 

(iii) If no application is accepted for 

filing during the threshold 

qualifications window, and the party 

that initially proposed the Tribal 

Priority FM allotment requests by letter 

to the Audio Division, Media Bureau, 

that its pending long-form application 

not be immediately processed, the 

Tribal Priority FM allotment will be 

auctioned as described in paragraphs 

(f)(2) through (f)(5) of this section in the 

normal course for vacant FM allotments. 

When a Tribal Priority FM allotment is 

offered at auction for the first time, only 

those applicants meeting the threshold 

qualifications for that specific Tribal 

Priority FM allotment, as described in 

Note 5 to this section, may participate 

in the auction of that allotment. 

(iv) Should no applicant meeting 

threshold qualifications, as described in 

Note 5 to this section, apply to bid on 

a Tribal Priority FM allotment in the 

first auction in which it is offered, or 

should no applicant meeting threshold 

qualifications qualify to bid in the first 

auction in which a Tribal Priority FM 

allotment is offered, then the Tribal 

Priority FM allotment will be offered in 

a subsequent auction. Any such 

subsequent auction of a Tribal Priority 

FM allotment shall proceed as described 

in paragraphs (f)(2) through (f)(5) of this 

section, and any qualified applicant 

may participate in the auction of the 

Tribal Priority FM allotment in such 

subsequent auction, regardless of 

whether it meets the threshold 

qualifications with regard to that 

specific Tribal Priority FM allotment. 

* * * * * 

Note 5 to § 73.3573. The ‘‘Tribal 

Priority’’ is that established by the 

Commission in Policies to Promote 

Rural Radio Service and to Streamline 

Allotment and Assignment Procedures, 

MB Docket 09–52. See First Report and 

Order and Further Notice of Proposed 

Rule Making, MB Docket 09–52, FCC 

10–24, 75 FR 9797, 75 FR 9856, 75 FR 

73976; Second Report and Order, First 

Order on Reconsideration, and Second 

Further Notice of Proposed Rule 

Making, MB Docket 09–52, FCC 11–28, 

76 FR 14362, 76 FR 18942; Third Report 

and Order, MB Docket 09–52, FCC 11– 

190. To qualify for the Tribal Priority, 

and thus meet ‘‘threshold 

qualifications’’ for a particular 

allotment, an applicant must 

demonstrate that it meets all of the 

following eligibility criteria: (a) 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. Qualifying Tribes or Tribal 

entities must be those at least a portion 

of whose Tribal Lands lie within the 

principal community contour of the 

proposed facility. Although the 51 or 

greater percent Tribal control threshold 

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; (b)(1) at least 

50 percent of the area within the 

proposed principal community contour 

is over that Tribe’s Tribal Lands, or (2) 

the proposed principal community 

contour (i) encompasses 50 percent or 

more of that Tribe’s Tribal Lands, (ii) 

serves at least 2,000 people living on 

Tribal Lands, and (iii) the total 

population on Tribal Lands residing 

within the proposed service contour 

constitutes at least 50 percent of the 

total covered population (and, in the 

case of either (b)(1) or (b)(2) the 

proposed principal community contour 

does not cover more than 50 percent of 

the Tribal Lands of a Tribe that is not 

a party to the application); (c) the 

proposed community of license must be 

located on Tribal Lands; and (d) the 

proposed service must constitute first or 

second aural (reception) service, or first 

local Tribal-owned commercial 

transmission service at the proposed 

community of license. For purposes of 

this section, the definition of ‘‘Tribal 

Lands’’ is the same as that set forth at 

footnote 15 of the First Report and 

Order and Further Notice of Proposed 

Rule Making, FCC 10–24, and as further 

set forth at paragraphs 8–10 and 59 of 

the Second Report and Order, First 

Order on Reconsideration, and Second 

Further Notice of Proposed Rule 

Making, FCC 11–28. 

[FR Doc. 2012–967 Filed 1–19–12; 8:45 am] 

BILLING CODE 6712–01–P 


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