12274 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

(g) Disputes between the Executive 

agency and GSA arising out of the 

ancillary repair and alteration work 

will, to the maximum extent practicable, 

be resolved informally at the working 

level. In the event a dispute cannot be 

resolved informally, the matter shall be 

referred to GSA’s Public Buildings 

Service. The Executive agency agrees 

that, in the event GSA’s Public 

Buildings Service and the Executive 

agency fail to resolve the dispute, they 

shall refer it for resolution to the 

Administrator of General Services, 

whose decision shall be binding. 

[FR Doc. E9–6427 Filed 3–23–09; 8:45 am] 

BILLING CODE 6820–14–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MM Docket No. 95–31; FCC 08–219] 

Reexamination of the Comparative 

Standards for Noncommercial 

Educational Applicants 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission addresses eight petitions 

for reconsideration of the Second Report 

& Order, in the closed ‘‘mixed groups’’ 

proceeding. The ‘‘mixed groups’’ 

proceeding sought to establish rules for 

resolving the situation when an 

application for an NCE broadcast station 

is mutually exclusive with an 

application for a commercial broadcast 

station. The Second Report & Order 

decided to accept applications for NCE 

stations on non-reserved channels in 

‘‘closed, mixed groups,’’ but to dismiss 

those applications if they are mutually 

exclusive with applications for 

commercial stations. This document 

now affords a discrete group of pending 

applicants for NCE stations on nonreserved channels in closed, mixed 

groups that have been pending since the 

date of the Second Report & Order, a 

one-time opportunity to amend their 

applications to apply for a commercial 

broadcast station in order to avoid 

dismissal of their applications. This 

document reaffirms the other decisions 

in the Second Report & Order. 

DATES: Effective April 23, 2009. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Room TW–A325, Washington, DC 

20554. For additional information, see 

the SUPPLEMENTARY INFORMATION section 

of this document. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact Evan Baranoff, of 

the Media Bureau, Policy Division at 

Evan.Baranoff@fcc.gov, 418–7142. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s 

Memorandum Opinion and Third Order 

on Reconsideration, MM Docket No. 95– 

31, FCC 08–219, adopted on September 

24, 2008 and released on December 2, 

2008. The full text of this document is 

available on the Internet at the 

Commission’s Web site: http:// 

hraunfoss.fcc.gov/edocs_public/ 

attachmatch/FCC-08-219A1.doc . It is 

also available for inspection and 

copying during regular business hours 

in the FCC Reference Information 

Center, Portals II, 445 12th Street, SW., 

Room CY–A257, Washington, DC 20554. 

The complete text may be purchased 

from the Commission’s copy and 

duplicating contractor, Best Copy & 

Printing, Inc. (BCPI), 445 12th Street, 

SW., Room CY–B402, Washington, DC 

20554. BCPI can be contacted at 202– 

488–5300 (phone), 202–488–5563 

(facsimile), or http:// 

www.BCPIWEB.com. Please be prepared 

to provide the appropriate FCC 

document number (FCC 08–219). To 

request this document in accessible 

formats (computer diskettes, large print, 

audio recording, and Braille), send an email to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Summary of the Memorandum Opinion 

& Third Order on Reconsideration 

I. Introduction 

1. In this Memorandum Opinion & 

Third Order on Reconsideration, we 

resolve eight petitions for 

reconsideration of the Second Report & 

Order, 68 FR 26220, May 15, 2003. The 

Second Report & Order, among other 

things, established ‘‘new policies for 

licensing spectrum that the Commission 

has not reserved for the exclusive use of 

broadcast stations that provide or intend 

to provide noncommercial educational 

(NCE) service.’’ These new policies 

included the decision to permit 

applicants for NCE stations to apply for 

non-reserved channels, but to dismiss 

such applications should they conflict 

with applications for commercial 

stations. One petitioner seeks 

reconsideration of this decision, which 

was codified in § 73.5002(b) of the 

Commission’s rules. For the reasons 

discussed below, we decline to 

reconsider establishment of this rule 

and affirm our decision to dismiss 

applicants for NCE stations for nonreserved channels that conflict with 

applications for commercial stations. 

Several other petitioners seek 

reconsideration of our decision not to 

accept any amendments to a discrete 

group of long-pending NCE 

applications, including amendments to 

change an applicant’s status from NCE 

to commercial, and request that we not 

dismiss this specific group of 

applicants. For the reasons discussed 

below, we will reconsider the 

immediate dismissal of this discrete 

group of applicants for NCE stations, 

and will afford them a one-time 

opportunity to amend their longpending applications to apply for 

commercial stations to avoid dismissal. 

Accordingly, we grant reconsideration 

of our decision not to accept any 

amendments to the discrete group of 

long-pending applications for NCE 

stations, but otherwise deny the 

petitions and reaffirm our earlier 

conclusions. 

II. Background 

2. The Second Report & Order 

established standards to resolve the 

situation when an application for an 

NCE broadcast station is mutually 

exclusive with an application for a 

commercial broadcast station (i.e. , 

‘‘mixed groups’’). NCE stations can 

operate both on (1) channels reserved by 

the Commission specifically for NCE 

service and (2) non-reserved channels, 

which are also available to applicants 

for commercial stations. The 

Commission has long used different 

standards to resolve application 

conflicts for reserved channels, on the 

one hand, and non-reserved channels, 

on the other. 

3. The Commission initiated this 

proceeding in 1995 to revise the criteria 

it used to select among competing 

applicants for new NCE stations. 

Subsequently, the Balanced Budget Act 

of 1997, Public Law 105–33, 111 Stat. 

251 (1997) amended section 309(j) of the 

Communications Act of 1934 (the Act), 

to require the Commission to use 

competitive bidding to resolve 

application conflicts, but exempted NCE 

stations from this process, see 47 U.S.C. 

309(j) (exempting stations described in 

Section 397(6) of the Act). As a result, 

the Commission in the Report & Order, 

65 FR 36375, June 8, 2000, decided to 

use a non-auction, point system to 

resolve application conflicts for 

reserved channels, and use competitive 

bidding to resolve conflicts for nonreserved channels. In National Public 

Radio, Inc. v. FCC, 254 F.3d 226, 229 

(D.C. Cir. 2001), parties challenged the 

procedures for non-reserved channels, 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12275 

and the court concluded that the Act 

did not authorize the Commission to 

require applicants for NCE stations to 

compete at auction for non-reserved 

channels. 

4. After notice and comment on the 

impact of the court decision, the 

Commission announced, in the Second 

Report & Order, new procedures for 

resolving conflicts between NCE and 

commercial applications for nonreserved channels and frequencies. In 

that order, the Commission held that 

although it will accept applications for 

NCE stations on non-reserved channels 

and frequencies, those that are mutually 

exclusive with applications for 

commercial stations will be dismissed. 

Applicants for AM and secondary 

service construction permits, however, 

will have a prior opportunity for 

settlement. 

5. The Commission also reaffirmed 

that it will reserve a channel in the 

Table of Allotments (used for full-power 

FM and TV broadcast stations) for the 

exclusive use of NCE stations if a 

proponent for reservation demonstrates 

that an NCE station is technically 

precluded from using already-reserved 

channels, and that it will provide 

needed NCE service in a given area, 

according to certain defined standards. 

The Commission indicated that it would 

entertain requests for reservation using 

these criteria not only in future 

allocation proceedings, but also for 

allotments for which the Commission 

had adopted a Notice of Proposed 

Rulemaking before August 7, 2000, and 

for which it had not yet opened a filing 

window prior to the release of the 

Second Report & Order. As to channels 

or frequencies for which the 

Commission had already accepted longform applications for construction 

permits, the Commission concluded that 

it would best promote the public 

interest to dismiss the long-pending 

competing applications for NCE stations 

so that the applications for commercial 

stations could proceed to auction. The 

Commission held that applicants for 

NCE stations in these pending, closed 

mixed groups would not have further 

opportunity to reserve the channels they 

had applied for, nor to amend their 

previously filed applications to propose 

commercial service in order to avoid 

dismissal. 

III. Discussion 

A. Licensing of Non-Reserved Spectrum 

6. Under procedures adopted in the 

Second Report & Order, applicants for 

NCE stations may submit applications 

for non-reserved spectrum in auction 

filing windows. These applications are 

subject to dismissal if there is any 

mutually exclusive application for a 

commercial station. These procedures 

are codified in § 73.5002(b) of the 

Commission’s rules. University of 

Missouri asks us to reconsider this 

decision, contending that it is 

tantamount to a ban on NCE stations’ 

use of the non-reserved spectrum. 

University of Missouri argues that 

applications for NCE stations are highly 

likely to be mutually exclusive with 

those for commercial stations, and so 

will almost always be dismissed. In 

addition, University of Missouri states 

that the opportunities we afford NCE 

stations to reserve FM and TV channels 

and to settle application conflicts in the 

AM and translator services are unlikely 

to be helpful. 

7. In the Second Report & Order, the 

Commission fully considered and 

rejected University of Missouri’s claim 

that this decision is tantamount to a ban 

on NCE stations’ use of the non-reserved 

spectrum. University of Missouri offers 

no new evidence or changed 

circumstances in its petition to cause us 

to reconsider our decision. Moreover, 

University of Missouri suggests no 

lawfully permissible alternative to our 

decision. We thus reaffirm our decision, 

and reject University of Missouri’s 

petition for reconsideration. 

8. As explained at the outset of the 

Second Report & Order, ‘‘we are 

constrained by a number of court 

decisions, regulations, and statutory 

provisions that, taken together, limit our 

options.’’ Again, the entirety of section 

309(j)(1), 47 U.S.C. 309(j)(1), states: ‘‘If, 

consistent with the obligations 

described in paragraph (6)(E), mutually 

exclusive applications are accepted for 

any initial license or construction 

permit, then, except as provided in 

paragraph (2), the Commission shall 

grant the license or permit to a qualified 

applicant through a system of 

competitive bidding * * * ’’ Paragraph 

2 sets forth the relevant exemptions: 

‘‘The competitive bidding authority 

granted by this subsection shall not 

apply to licenses or construction 

permits issued by the Commission 

* * * for stations described in section 

397(6) of this Act,’’ i.e., NCE stations. 

9. Taken together, the statutory 

provisions sharply limit the 

Commission’s authority in this area. In 

the past, the Commission allowed 

applicants for NCE stations to compete 

for non-reserved spectrum under the 

standards that applied to applicants for 

commercial stations. The Commission 

attempted to continue that longstanding 

policy after the 1997 Balanced Budget 

Act by allowing NCE stations to 

compete at auction for non-reserved 

channels and frequencies. As 

recognized by the NPR case, the statute 

mandates that we resolve mutually 

exclusive applications for commercial 

stations by competitive bidding, 

prohibits us from using that same 

system to resolve applications for NCE 

stations, but does not require us to 

follow any particular alternative 

procedure for applications for NCE 

stations. Accordingly, in the Second 

Further Notice, 67 FR 9945, March 5, 

2002, the Commission outlined two 

possible courses of action: (1) Prohibit 

applications for NCE stations on nonreserved channels or frequencies, just as 

the Commission prohibits applications 

for commercial stations on reserved 

channels or frequencies, or (2) continue 

to allow the filing of applications for 

NCE station, which would be subject to 

dismissal if any conflict with 

applications for commercial stations 

could not be resolved. In the Second 

Report & Order, the Commission opted 

for the latter course of action. No 

commenting party suggested a workable 

alternative. The Commission believed 

that these two options were the most 

straightforward solutions to the problem 

and chose the one that was least harsh 

to applicants for NCE stations. 

10. The reservation and settlement 

opportunities are not as limited as 

University of Missouri suggests, and 

thus our rule is not tantamount to a ban 

on NCE stations’ use of non-reserved 

spectrum. As the Commission noted in 

the Second Report & Order, ‘‘several 

parties have asked the Commission to 

allocate particular FM channels as 

reserved pursuant to the relaxed 

reservation standards [adopted in the 

Report & Order in the proceeding], and 

we have done so.’’ Since the 

Commission released the Second Report 

& Order, the Media Bureau opened a 

window accepting reservation showings 

for nearly 500 additional FM channels. 

In response, 129 petitioners sought to 

reserve 91 vacant FM allotments. 

University of Missouri was one of the 

petitioners that took advantage of this 

opportunity. To date, 56 vacant FM 

allotments have been successfully 

reserved for NCE use. With respect to 

the effectiveness of settlement 

opportunities, as the Commission 

explained in the Second Report & 

Order, the Commission received 

approximately 4,700 applications for 

LPTV and TV translator stations during 

an auction filing window, but processed 

more than one third of them prior to 

auction because either only one 

application was filed, or the applicants 

reached a settlement. We fully recognize 

that the opportunities for reservation 

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12276 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

and settlement are limited, and may not 

be as plentiful as University of Missouri 

prefers. We continue to believe, 

however, that the Commission’s 

decision, given the statutory constraints, 

best serves the public interest, and again 

note that University of Missouri has 

failed to suggest any alternative 

approach that would comport with the 

legal restrictions on our authority in this 

area. Consequently, we decline to 

reconsider the decisions to accept 

applications for NCE stations on nonreserved channels and frequencies and 

to dismiss such applications if they 

remain mutually exclusive with 

applications for commercial stations 

after the expiration of any applicable 

opportunity for settlement. 

B. Pending Applications 

11. As discussed in the Second Report 

& Order, there remain pending closed 

groups of non-reserved channel 

mutually exclusive construction permit 

applications for NCE and commercial 

stations (i.e., ‘‘mixed groups’’). 

Applications in these mixed groups 

were identified in Attachment A to 

‘‘Window Opened to Permit Settlements 

for Closed Groups of Mutually Exclusive 

Broadcast Applications,’’ Public Notice, 

16 FCC Rcd 17091 (2001). In the Second 

Report & Order, the Commission 

decided to dismiss the long-pending 

applications for NCE stations in mixed 

groups without providing these 

applicants an opportunity to avoid 

dismissal by amending their 

applications to change their status from 

NCE to commercial. Approximately 19 

mixed groups of mutually exclusive 

applications for non-reserved channels 

remain pending; these include 13 FM 

mixed groups, two FM translator mixed 

groups, and four TV mixed groups. For 

the reasons discussed below, we will 

now reconsider the Commission’s 

decision in the Second Report and 

Order and afford each of these 

applicants for NCE stations in the 

pending, closed mixed groups a onetime opportunity to amend their 

applications to apply for a commercial 

broadcast station in order to avoid 

dismissal. 

12. Four petitioners ask us to 

reconsider the Commission’s decision to 

dismiss these long-pending applications 

for NCE stations. Several petitioners 

contend that the decision is arbitrary 

and capricious. Black Hawk also claims 

that the decision is impermissibly 

retroactive. Marist College contends that 

the decision is inconsistent with the 

1997 Balanced Budget Act. In addition, 

Fatima Response argues that the 

decision is not in the public interest. As 

alternatives, Black Hawk suggests that 

we give applicants with pending 

applications for NCE stations an 

opportunity to use the reservation 

procedures we established for future 

applicants; likewise, Fatima Response 

and Renaissance Community suggest 

that we permit applicants with pending 

applications for NCE stations in mixed 

groups to amend their applications to 

apply for commercial broadcast stations. 

Jack Garter opposes Black Hawk’s 

petition, and argues that the Second 

Report & Order is not arbitrary and 

capricious or impermissibly retroactive 

and did not violate any processing 

‘‘rights.’’ 

13. The Commission’s primary 

rationale for previously opting to 

dismiss the pending applications for 

NCE stations in mixed groups was that 

some of these applications had been 

filed a decade ago, and that the 

Commission had provided numerous 

settlement opportunities to these mixed 

group applicants. In the Second Report 

& Order, the Commission was ‘‘not 

persuaded that the equities favoring the 

applicants for NCE stations in these 

pending proceedings outweigh the delay 

in initiating new broadcast service to 

the public as well as the unfairness to 

applicants for commercial stations.’’ 

14. We now are persuaded that the 

unfairness of immediate dismissal to 

this discrete group of long-pending 

applications for NCE stations outweighs 

any delay to those applicants for 

commercial stations that are mutually 

exclusive with these applicants. Unlike 

prospective applicants for NCE stations, 

these applicants for NCE stations in the 

mixed groups sought to be licensed as 

NCE stations before adoption of the 

Second Report & Order and thus 

without knowledge of the consequences 

of this decision. Moreover, we believe 

that we can expeditiously afford mixed 

group applicants for NCE stations a onetime opportunity to amend their 

pending applications to apply for a 

commercial station, while avoiding 

unnecessary delay to the pending 

commercial applicants, which initially 

dissuaded the Commission from 

providing such an opportunity. 

15. Shortly after release of this Order, 

the Media Bureau will announce an 

amendment window to permit all 

applicants in the approximately 19 

pending, closed mixed groups (1) that 

had filed applications for NCE stations 

as of the date of the Second Report & 

Order and that remain pending, and (2) 

that were mutually exclusive with those 

for commercial stations as of the date of 

the Second Report & Order, to amend 

their pending applications for the sole 

purpose of applying for a commercial 

station. After the close of this window, 

any application for an NCE station that 

remains mutually exclusive with any 

application for a commercial station 

will be dismissed with prejudice. There 

will be no additional opportunity for 

applicants in these pending, closed 

mixed groups to further amend their 

long-form applications. We believe that 

this processing policy will provide 

fairer treatment to pending applicants 

and better serve the public interest. It 

will give applicants for NCE stations 

one opportunity to reevaluate their longpending plans in the context of full and 

complete information about how the 

licensing process will work and, as 

designed, it should not appreciably 

delay the introduction of new service. 

This approach will avoid the harsh 

result of dismissing applicants based on 

subsequently adopted processing rules 

in a manner that is consistent with the 

Act and with our commercial and NCE 

licensing schemes. 

C. Vacant Allotments 

16. Bible Broadcasting states that it 

agrees with the Commission’s decision 

to accept reservation showings for 

certain vacant FM allotments and 

requests that we award three points to 

the successful reservation proponent in 

the subsequent application of the point 

system for that FM allotment. In 

essence, Bible Broadcasting asks us to 

award a ‘‘finder’s preference’’ to the 

successful proponent of a reservation 

showing. Bible Broadcasting explains 

that many applicants for NCE stations 

have limited resources, and will be 

unwilling to undertake the expense of 

preparing a reservation showing without 

receiving such a preference at the 

licensing stage. 

17. We deny Bible Broadcasting’s 

petition. As a preliminary matter, the 

Commission does not award a finder’s 

preference to successful proponents of 

allocations for commercial stations. 

Moreover, in adopting the current point 

system for NCE stations on reserved 

channels, the Commission explicitly 

declined to give any kind of finder’s 

preference to the first entity or 

individual to file an application for a 

given frequency. We recognize that such 

a preference would create an incentive 

for any entity or individual to pursue a 

new allocation or to reserve it for NCE 

use. We believe, however, the existing 

factors in our current point system best 

serve the public interest in selecting a 

licensee. As the Commission said when 

it selected the point system over other 

methodologies to resolve application 

conflicts, favoring those who file first is 

not ‘‘the optimal way to select 

applicants who will provide ’diversity 

and excellence’ in educational 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12277 

broadcasting to the public.’’ 

Accordingly, we decline to award points 

to the successful proponent of a 

reservation showing. 

D. Miscellaneous Issues 

18. MMTC Pleadings Withdrawn. On 

June 16, 2003, MMTC filed a petition for 

reconsideration of the Second Report & 

Order, seeking changes in the eligibility 

requirements for the new entrant 

bidding credit used in broadcast 

auctions. In its petition, MMTC 

specifically requested that applicants in 

FM Auction No. 37 ‘‘immediately’’ 

report changes that cause a loss of, or 

reduction in, eligibility for a new 

entrant bidding credit. The Commission 

subsequently established such a 

requirement in FM Auction No. 37, and, 

as a result, MMTC withdrew its petition 

for reconsideration by a letter dated 

October 19, 2004. Accordingly, this 

matter is no longer before the 

Commission in this proceeding. 

19. Licenses Formerly Held by 

Michael Rice-Controlled Entities. By 

Public Notice, 16 FCC Rcd 12832, 

released July 3, 2001, the Media Bureau 

and the Wireless Telecommunications 

Bureau collectively gave notice of filing 

procedures for applications for interim 

and permanent authority to operate the 

two AM (Rice AM Stations) and five FM 

stations (Rice FM Stations) (collectively, 

the Rice Stations) formerly licensed to 

entities controlled by Michael Rice. 

Because the filing window for AM 

Auction No. 32 had been completed, the 

Rice Public Notice announced a 

supplemental AM Auction No. 32 filing 

window for the Rice AM Stations. Seven 

entities timely filed applications for the 

AM facility at 640 KHz, Terre Haute, IN; 

six entities timely filed applications for 

the AM facility at 1230 KHz, Terre 

Haute, IN. One of the entities applying 

for both of the Rice AM stations, Word 

Power, Inc., indicated that it was 

applying for NCE stations. The Rice 

Public Notice also announced that the 

now-vacant allotments for the Rice FM 

Stations would be included in FM 

Auction No. 37 and interested parties 

could file Form 175 applications in the 

then-upcoming auction filing window. 

The allotments for the five Rice FM 

Stations were also included in the 

Public Notice, described supra, listing 

500 vacant FM allotments for which 

NCE reservation showings could be 

filed. Four of the five Rice FM Station 

allotments received reservation 

showings. 

20. University of Missouri now 

expresses concern about the impact of 

the Second Report & Order on the 

licenses for the Rice Stations and, in 

particular, the Channel 252C2 allotment 

in Columbia, Missouri—formerly 

licensed as KFMZ-FM. University of 

Missouri asks us to clarify whether the 

policies and rules established in the 

Second Report & Order apply to interim 

licensing for this channel. University of 

Missouri also contends that it should 

have an opportunity to reserve this 

channel for exclusive NCE use 

according to the criteria discussed in the 

Second Report & Order. Ultimately, 

University of Missouri suggests, the 

Commission should adopt unique 

procedures to license KFMZ–FM to 

avoid the litigation that it anticipates 

will result from the allotment’s auction. 

21. As previously discussed, the 

Media Bureau opened a window to 

permit interested parties an opportunity 

to reserve any of approximately 500 

vacant FM allotments. Channel 252C2 

in Columbia, Missouri was among these 

FM allotments, as were the four other 

FM channels previously used by Mr. 

Rice. University of Missouri, in fact, 

filed a reservation showing for the FM 

channel it seeks. Thus, insofar as it 

seeks this opportunity in its petition, 

the issue is now moot. To the extent 

University of Missouri seeks a nonauction mechanism to award a license 

for the channel on a permanent basis, 

we see no grounds for doing so. We find 

unpersuasive University of Missouri’s 

argument that ineligible parties may 

attempt to acquire the license, and that 

such efforts will result in timeconsuming litigation. This possibility 

applies to all broadcast auctions. A 

petitioner may raise such arguments 

post-auction when a prevailing 

applicant’s long-form application is 

filed. Thus, this concern is insufficient 

to overcome the clear imperative of 

section 309(j) of the Act. 

22. Applications filed in the 

supplemental AM Auction No. 32 filing 

window for the two Rice AM Stations 

also predated the release of the Second 

Report & Order. As a result of the 

Second Report & Order, any of the 

applications for NCE stations filed 

during this window that are mutually 

exclusive with applications for 

commercial stations are to be dismissed. 

The application of Word Power, Inc. 

was the only application for an NCE 

station. We, therefore, offer Word 

Power, Inc. the same relief offered to the 

applicants for NCE stations in mixed 

groups, discussed above, and will afford 

it the same time-limited opportunity to 

amend its application(s) to apply for 

commercial stations, in accordance with 

the procedures set forth above. After 

this limited amendment opportunity, all 

remaining mutually exclusive 

applications for commercial stations for 

the Rice AM Stations will proceed to 

auction. 

IV. Conclusion 

23. In this Memorandum Opinion & 

Third Order on Reconsideration, we 

reaffirm all decisions in the Second 

Report & Order, except that we will now 

permit parties with applications for NCE 

stations on non-reserved channels in 

closed mixed groups that have been 

pending since the date of the Second 

Report & Order, and were then mutually 

exclusive with applications for 

commercial stations, a one-time 

opportunity to amend their 

applications. We believe that 

reaffirmation of our earlier conclusions, 

subject to this change, best serves the 

public interest. 

V. Procedural Matters 

24. Accessibility Information. To 

request information in accessible 

formats (computer diskettes, large print, 

audio recording, and Braille), send an email to fcc504@fcc.gov or call the FCC’s 

Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). This document can 

also be downloaded in Word and 

Portable Document Format (PDF) at: 

http://www.fcc.gov. 

25. Final Paperwork Reduction Act 

Analysis. This Memorandum Opinion & 

Third Order on Reconsideration 

contains no new or modified 

information collections subject to the 

Paperwork Reduction Act of 1995, 

Public Law 104–13, 109 Stat. 163 (1995) 

(codified in Chapter 35 of Title 44 

U.S.C.). In addition, therefore, it does 

not contain any new or modified 

‘‘information collection burden for 

small business concerns with fewer than 

25 employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, 116 Stat. 729 

(2002) (codified in Chapter 35 of title 44 

U.S.C.); see 44 U.S.C. 3506(c)(4). 

26. Supplemental Final Regulatory 

Flexibility Analysis. As required by the 

Regulatory Flexibility Act of 1980, 5 

U.S.C. 603, as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), Public 

Law 104–121, 110 Stat. 847 (1996), an 

Initial Regulatory Flexibility Analysis 

(IRFA) was incorporated in the Second 

Further Notice. The Commission sought 

written public comment on the 

proposals in the Second Further Notice, 

including comment on the IRFA. No 

comments addressed the IRFA. A Final 

Regulatory Flexibility Analysis (FRFA) 

was published in the Second Report & 

Order. This present Supplemental 

FRFA, which conforms to the RFA, 

supplements that FRFA. We note that 

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12278 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

the Supplemental FRFA addresses only 

the matters considered on 

reconsideration in the Memorandum 

Opinion & Third Order on 

Reconsideration. Therefore, this 

Supplemental FRFA addresses only the 

one decision reversed from the Second 

Report & Order. 

A. Need for, and Objectives of, the 

Memorandum Opinion & Third Order 

on Reconsideration 

27. The Commission adopts this 

Memorandum Opinion & Third Order 

on Reconsideration to reaffirm its earlier 

conclusions in the Second Report & 

Order, except for one decision. In the 

Second Report & Order, the Commission 

decided to dismiss a discrete group of 

applicants for NCE stations for nonreserved channels that were mutually 

exclusive with applications for 

commercial stations without providing 

these applicants an opportunity to avoid 

dismissal by amending their 

applications to change their status from 

NCE to commercial. This discrete group 

of long-pending applications for NCE 

stations consists of approximately 19 

mixed groups of mutually exclusive 

applications for non-reserved channels 

filed between 1994 and 1997; these 

include 13 FM mixed groups, two FM 

translator mixed groups, and four TV 

mixed groups. On reconsideration, the 

Commission will now afford each of 

these applicants a one-time opportunity 

to amend their applications to apply for 

a commercial broadcast station before 

dismissing these applications. The 

Commission is persuaded that the 

unfairness of immediate dismissal to 

this discrete group of long-pending 

applications for NCE stations outweighs 

any delay to those applicants for 

commercial stations that are mutually 

exclusive with these applicants. Unlike 

prospective applicants for NCE stations, 

these applicants for NCE stations in the 

mixed groups sought to be licensed as 

NCE stations before adoption of the 

Second Report & Order and thus 

without knowledge of the consequences 

of this decision. Moreover, the 

Commission finds that it can 

expeditiously afford mixed group 

applicants for NCE stations a one-time 

opportunity to amend their pending 

applications to apply for a commercial 

station, while avoiding unnecessary 

delay to the pending commercial 

applicants, which initially dissuaded 

the Commission from providing such an 

opportunity. 

B. Summary of Significant Issues Raised 

by the Public in Responses to the IRFA 

28. No comments addressed the IRFA, 

or otherwise discussed issues that may 

impact small entities. 

C. Description and Estimate of the 

Number of Small Entities To Which the 

Rules Will Apply 

29. 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. The RFA defines the term ‘‘small 

entity’’ as having the same meaning as 

‘‘small business,’’ ‘‘small organization,’’ 

and ‘‘small governmental jurisdiction.’’ 

In addition, the term ‘‘small business’’ 

has the same meaning as the term 

‘‘small business concern’’ under the 

Small Business Act. A ‘‘small business 

concern’’ is one that: (1) Is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the SBA. 

30. The decision adopted in this 

Memorandum Opinion & Third Order 

on Reconsideration will affect only (1) 

the discrete group of applicants for NCE 

stations for non-reserved channels and 

(2) those applicants for commercial 

stations that are mutually exclusive 

with these NCE applicants. These 

groups may include small businesses, 

and were included in the description 

and estimate of small entities in the 

FRFA to the Second Report & Order. 

31. Radio. The applicants affected by 

this new decision may include existing 

radio stations. SBA defines as a small 

business those radio broadcasting 

stations that have no more than $7.0 

million in annual receipts. The 

Commission has estimated the number 

of licensed radio stations to be 13,837, 

of which 4,754 are AM stations, 6,266 

are commercial FM stations, and 2,817 

are NCE FM stations. According to 

Commission staff review of the BIA 

Financial Network, MAPro Television 

Database (BIA) of March 30, 2007, about 

10,420 commercial radio stations (or 

about 95 percent) of an estimated 11,000 

commercial radio stations have revenue 

of $7.0 million or less. Many 

commercial radio stations, however, are 

affiliated with larger corporations with 

higher revenue, with the result that the 

estimated number of commercial radio 

stations overstates the number that 

qualify as small entities. The 

Commission does not compile and 

otherwise does not have access to 

information on the revenue of NCE 

stations that would permit it to 

determine how many such stations 

would qualify as small entities. 

32. Television. The applicants affected 

by this new decision may also include 

TV stations. The SBA defines a 

television broadcast station as a small 

business if such station has no more 

than $14.0 million in annual receipts. 

Business concerns included in this 

industry are those ‘‘primarily engaged in 

broadcasting images together with 

sound.’’ The Commission has estimated 

the number of licensed commercial 

television stations to be 1,376. 

According to Commission staff review 

of the BIA Financial Network, MAPro 

Television Database (BIA) on March 30, 

2007, about 986 of an estimated 1,374 

commercial television stations (or about 

72 percent) have revenues of $14.0 

million or less and thus qualify as small 

entities under the SBA definition. The 

Commission has estimated the number 

of licensed NCE television stations to be 

380. We note, however, that, in 

assessing whether a business concern 

qualifies as small under the above 

definition, business (control) affiliations 

must be included. Our estimate, 

therefore, likely overstates the number 

of small entities that might be affected 

by our action, because the revenue 

figure on which it is based does not 

include or aggregate revenues from 

affiliated companies. The Commission 

does not compile and otherwise does 

not have access to information on the 

revenue of NCE stations that would 

permit it to determine how many such 

stations would qualify as small entities. 

33. In addition, an element of the 

definition of ‘‘small business’’ is that the 

entity not be dominant in its field of 

operation. We are unable at this time to 

define or quantify the criteria that 

would establish whether a specific 

television station is dominant in its field 

of operation. Accordingly, the estimate 

of small businesses to which rules may 

apply do not exclude any television 

station from the definition of a small 

business on this basis and are therefore 

over-inclusive to that extent. Also as 

noted, an additional element of the 

definition of ‘‘small business’’ is that the 

entity must be independently owned 

and operated. We note that it is difficult 

at times to assess these criteria in the 

context of media entities and our 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

34. The decision adopted in this 

Memorandum Opinion & Third Order 

on Reconsideration will not result in a 

change in the existing compliance, 

reporting and recordkeeping 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12279 

requirements, except with respect to the 

discrete group of applicants for NCE 

stations that were previously dismissed 

in the Second Report & Order because 

they were mutually exclusive with 

applications for commercial stations. As 

a result of this Order, the discrete group 

of applicants for NCE stations is being 

permitted a one-time opportunity to file 

an amendment to their applications to 

change their status from NCE to 

commercial, and thereby avoid 

dismissal of their applications. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

35. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in adopting its rules, 

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. 

36. On reconsideration, the 

Commission determined it has two 

choices: (1) Reaffirm its decision in the 

Second Report & Order to immediately 

dismiss this discrete group of applicants 

for NCE stations or (2) give these 

applicants an opportunity to amend 

their applications to change their status 

from NCE to commercial, and thus 

avoid dismissal. In the Second Report & 

Order, we were not persuaded that the 

equities favoring the applicants for NCE 

stations outweighed the delay in 

initiating new broadcast service to the 

public as well as the unfairness to 

applicants for commercial stations. But 

we now believe that the unfairness of 

immediate dismissal to this discrete 

group of applicants for NCE stations 

outweighs any delay or unfairness to 

those applicants for commercial stations 

that are mutually exclusive with these 

applicants. Unlike future applicants for 

NCE stations, these applicants for NCE 

stations in the mixed groups sought to 

be licensed as an NCE station before 

adoption of the Second Report & Order 

and thus without full knowledge of the 

consequences of this decision. 

Moreover, we now believe that we can 

expeditiously afford applicants with 

pending applications a one-time 

opportunity to amend their applications 

to apply for a commercial station yet 

will avoid the delay and unfairness to 

applicants for commercial stations that 

initially dissuaded us from providing 

such an opportunity. After this filing 

opportunity, any application for an NCE 

station that remains mutually exclusive 

with any application for a commercial 

station will be dismissed with 

prejudice, in accordance with 

§ 73.5002(b) of the rules. There will be 

no additional opportunity for applicants 

in these pending, closed mixed groups 

to further amend their long-form 

applications. We believe that this 

processing policy will provide fairer 

treatment to pending applicants and 

better serve the public interest. It will 

give applicants for NCE stations one 

opportunity to reevaluate their longpending plans in the context of full and 

complete information about how the 

licensing process will work and, as 

designed, it should not appreciably 

delay the introduction of new service. 

This approach will avoid the extremely 

harsh result of dismissing applicants 

based on subsequently adopted 

processing rules in a manner that is 

consistent with our statutory 

commercial and NCE licensing schemes. 

37. Furthermore, our new decision 

will benefit the applicants for NCE 

stations that are small businesses by 

allowing them a chance to compete for 

licenses. While some of the applicants 

for commercial stations that are small 

businesses may be harmed by facing 

increased competition for licenses, the 

harm to these entities would not be as 

great as that to those small businesses 

applicants for NCE stations that would 

face dismissal of their applications. In 

addition, the public is better served by 

this enhanced competition. 

F. Report to Congress 

38. The Commission will send a copy 

of this Memorandum Opinion & Third 

Order on Reconsideration, including 

this FRFA, in a report to be sent to 

Congress pursuant to the Congressional 

Review Act. In addition, the 

Commission will send a copy of this 

Memorandum Opinion & Third Order 

on Reconsideration, including this 

FRFA, to the Chief Counsel for 

Advocacy of the Small Business 

Administration. A copy of this 

Memorandum Opinion & Third Order 

on Reconsideration and this FRFA (or 

summaries thereof) will also be 

published in the Federal Register. 

39. Additional Information. For 

additional information, please contact 

Evan Baranoff, Media Bureau, Policy 

Division, (202) 418–2120, or 

Evan.Baranoff@fcc.gov. 

VI. Ordering Clauses 

40. Accordingly, it is ordered that, 

pursuant to the authority contained in 

sections 1, 2(a), 4(i), 303, 307, 309 and 

405(a) of the Communications Act, as 

amended, 47 U.S.C. 151, 152(a), 154(i), 

303, 307, 309 and 405(a), and § 1.429 of 

the Commission’s rules, 47 CFR 1.429, 

that the petitions for reconsideration 

filed by the parties listed in Appendix 

A are granted in part and denied in part 

as indicated above, and that this 

Memorandum Opinion & Third Order 

on Reconsideration is adopted. 

41. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Memorandum Opinion & Third 

Order on Reconsideration, including the 

Final Regulatory Flexibility Analysis, to 

the Chief Counsel for Advocacy of the 

Small Business Administration. 

42. It is further ordered that this 

proceeding is terminated. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E9–6432 Filed 3–23–09; 8:45 am] 

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