29312 Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations

FOR FURTHER INFORMATION CONTACT:

Arthur D. Scrutchins, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s

Memorandum Opinion and Order, MM

Docket No. 90–66, adopted May 9, 1996

and released June 4, 1996. The full text

of this Commission decision is available

for inspection and copying during

normal business hours in the FCC

Reference Center (Room 239), 1919 M

Street, NW., Washington, DC. The

complete text of this decision may also

be purchased from the Commission’s

copy contractors, International

Transcription Service, Inc. (202) 857–

3800, 2100 M Street, NW., Suite 140,

Washington, DC 20037.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

Douglas W. Webbink,

Chief, Policy and Rules Division, Mass Media

Bureau.

[FR Doc. 96–14618 Filed 6–7–96; 8:45 am]

BILLING CODE 6712–01–F

47 CFR Part 76

[CS Docket No. 95–178; FCC 96–197]

Definition of Markets for Purposes of

the Cable Television Must-Carry Rules

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission amends its

rules to continue to use Arbitron’s

1991–1992 ‘‘Area of Dominant

Influence’’ (‘‘ADI’’) market list for

determining local markets for the mustcarry/retransmission consent election

that must be made by commercial

broadcast television stations by October

1, 1996. The Commission will switch to

Nielsen’s ‘‘Designated Market Area’’

(‘‘DMA’’) list beginning with the 1999

election, and will use updated Nielsen

market lists for subsequent elections.

The Commission’s previously

established procedures to determine

local television markets for signal

carriage purposes assumed that Arbitron

would continue to publish market

designations and that updated ADI

market lists would be available for each

triennial must-carry/retransmission

consent election. However, Arbitron has

ceased publication of its ADI market list

and it is now necessary for the

Commission to adopt a revised

mechanism for determining local

markets for signal carriage purposes. By

postponing the change to market

designation procedures until the 1999

election, the Commission and affected

parties will have an opportunity to

consider transitional mechanisms to

facilitate the switch from one market

designation to another. The Further

Notice of Proposed Rulemaking segment

of this decision is summarized

elsewhere in this issue of the Federal

Register.

EFFECTIVE DATE: July 10, 1996.

FOR FURTHER INFORMATION, CONTACT:

Marcia Glauberman or John Adams,

Cable Services Bureau, (202) 418–7200.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, CS Docket No. 95–178, FCC

96–197, adopted April 25, 1996, and

released May 24, 1996. The full text of

this decision is available for inspection

and copying during normal business

hours in the FCC Reference Center

(room 239), 1919 M Street, NW.,

Washington, DC 20554, and may be

purchased from the Commission’s copy

contractor, International Transcription

Service, (202) 857–3800, 1919 M Street,

NW., Washington, DC 20554.

Synopsis of the Report and Order

1. The Report and Order amends

§ 76.55(e) of the rules, 47 CFR 76.55(e),

to continue to use Arbitron Ratings

Company’s 1991–1992 Television ADI

Market Guide as the source of local

market designations for signal carriage

purposes for the must-carry/

retransmission consent election that

must take place by October 1, 1996, and

will become effective on January 1,

1997. The rule also is amended to use

Nielsen Media Research’s DMA Market

and Demographic Rank Report to

determine markets beginning with the

1999 election, which becomes effective

January 1, 2000.

2. Under the signal carriage

provisions added to the

Communications Act (‘‘Act’’) by the

Cable Television Consumer Protection

and Competition Act of 1992 (‘‘1992

Cable Act’’), commercial broadcast

television stations are permitted to elect

once every three years whether they will

be carried by cable systems in their local

markets pursuant to the must-carry or

retransmission consent rules. Section

614 of the Act, 47 U.S.C. 534, provides

that a station electing must-carry status

is entitled to insist on carriage of its

signal. A station electing retransmission

consent as set forth in Section 325 of the

Act, 47 U.S.C. 325 negotiates a carriage

agreement with each cable operator and

may be compensated for its station’s

carriage. The next election must be

made by October 1, 1996, and will

become effective on January 1, 1997.

3. For purposes of these carriage

rights, a station is considered local on

all cable systems located in the same

television market as the station. As

enacted in 1992, section 614(h)(1)(C) of

the Act required, through a crossreference to a Commission rule dealing

with broadcast ownership issues, that a

station’s market shall be determined

using the Arbitron Ratings Company’s

‘‘areas of dominant influence’’ or ‘‘ADI.’’

The rules adopted in 1993 to implement

these signal carriage provisions

established a mechanism for

determining a station’s local market for

each must-carry/retransmission consent

cycle based on ADI market lists. For the

initial election in 1993, Arbitron’s 1991–

1992 Television ADI Market Guide was

used to define local markets and for

each subsequent election cycle an

updated ADI market list was to be used.

For example, the rule specified that

Arbitron’s 1994–1995 ADI list would be

used for the 1996 election.

4. However, since we established

these procedures, Arbitron left the

television research business and the

market list specified in the rules for this

year’s election is unavailable. Congress

recognized that Arbitron no longer

publishes television market lists and the

Telecommunications Act of 1996 (‘‘1996

Act’’), Pub. L. 104–104, 110 Stat. 56

(1996), amended the definition of local

market that referenced ADIs.

Specifically, section 614(h)(1)(C) of the

Act was amended by Section 301 of the

1996 Act to provide that for purposes of

applying the mandatory carriage

provisions, a broadcasting station’s

market shall be determined ‘‘by the

Commission by regulation or order

using, where available, commercial

publications which delineate television

markets based on viewing patterns

* * *.’’

5. In addition, section 614(h) of the

Act requires the Commission to

consider petitions for market

modifications to add communities to or

exclude communities from a station’s

local market based on historical

carriage, signal coverage, local service,

and viewing patterns. The 1996 Act

modified this provision to require the

Commission to act on all petitions for

market modifications within 120 days.

6. Prior to the 1996 Act, but consistent

with its amended definition of local

market, we issued the Notice of

Proposed Rulemaking (‘‘NPRM’’) in this

proceeding, summarized at 61 FR 1888

(January 24, 1996), seeking comment on

three proposals for revising the

mechanism for determining local

markets. First, the Commission could

substitute Nielsen Media Research’s

‘‘designated market areas’’ or ‘‘DMAs’’
Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations 29313

for Arbitron’s ADIs. While similar in

many ways, the differences between

DMA and ADI market areas could result

in a change in the area in which a

station can insist on carriage rights and

a change in the stations that a cable

system is required to carry. The second

option would be to continue to use

Arbitron’s 1991–1992 Television ADI

Market Guide to define market areas,

subject to individual review and

refinement through the section 614(h)

process. Under this option, the local

market definition would remain

unchanged, subject only to future

individual market modifications. A

third proposal would be to retain the

existing market definitions for the 1996

election period and switch to a Nielsen

based standard for subsequent elections.

7. The Commission concludes that

Nielsen’s DMA market assignments

provide the most accurate method for

determining the areas served by local

stations. DMAs have become the

television market standard for

commercial purposes in the absence of

any alternative and represent the actual

market areas in which broadcasters

acquire programming and sell

advertising. Moreover, in general, we

continue to believe that our 1993

decision to use updated market

designations for each election cycle to

account for changing markets is

appropriate. Nielsen also provides the

only generally recognized source for

information on television markets that

would permit us to use updated market

designations for each election cycle to

account for changing markets,

consistent with our 1993 decision.

8. However, from the data provided in

the record, it is clear that a greater

number of stations, cable systems, and

cable subscribers would be affected by

a switch to DMAs than would be

affected by simply using an updated

ADI market list, as the rules had

contemplated. In particular, we are

concerned about the impact of changing

the market definition in certain types of

situations, such as cases where the

differences in methodology and

procedures between Arbitron and

Nielsen result in significant changes in

market areas. In addition, the statements

of costs and burdens put forth by cable

operators do not provide a means to

determine whether there are potential

problems associated with a change in

definition that could be ameliorated in

some manner through transitional

procedures. Further, while some cable

subscribers will be affected by changing

signal carriage requirements resulting

from a switch to a DMA standard, there

may be ways to minimize the

disruptions to their service.

9. The Commission also is concerned

about the impact of changing the market

definition on the section 614(h) market

modification decisions already in force.

It is unclear whether cable operators

could face conflicting obligations based

on a revised market standard when

these modifications are considered in

conjunction with a new market

definition. In addition, without

extensive evidence, we are unable to

determine the burden on the

Commission to remedy such conflicts

that might result from an immediate

switch to DMAs.

10. Thus, the Commission decides to

continue to use the 1991–1992 ADI

market list for the 1996 election and to

establish a framework that uses updated

DMA market lists for the 1999 and

subsequent elections. In addition, the

home county exception is retained in

order to ensure that a station is carried

in its home county in the limited

instances where the station is assigned

to an ADI market by Arbitron or a DMA

market by Nielsen that is not the same

as its home county’s market. For the

time-being, the Commission also will

rely on market modifications

determined pursuant to Section 614(h)

to refine market boundaries to account

for changes in viewing patterns and

market conditions.

Final Regulatory Flexibility Analysis

11. Pursuant to the Regulatory

Flexibility Act of 1980, 5 U.S.C. 601–12,

the Commission’s final analysis with

respect to the Report and Order is as

follows:

12. Need and Purpose of this Action:

This action is necessary because the

procedure for determining local

television markets for signal carriage

purposes relies on a market list no

longer published by the Arbitron

Ratings Company.

13. Summary of Issues Raised by the

Public in Response to the Initial

Regulatory Flexibility Analysis: There

were no comments submitted in

response to the Initial Regulatory

Flexibility Analysis.

14. Significant Alternatives

Considered and Rejected. The

Commission proposed three alternatives

in its NPRM and comments were

submitted that addressed the

administrative burdens of each

alternative. In order to minimize the

administrative burdens on broadcasters

and cable operators, the decision

contained herein retains the existing

market definitions and the existing

market modification process for the

1996 must-carry/retransmission consent

election cycle. This decision postpones

a change in market definition from

Arbitron’s ADI to Nielsen’s DMA until

the 1999 election in order to provide an

opportunity for the Commission and

affected parties to consider transitional

mechanisms that could minimize the

effects of changing market definitions

on broadcasters and cable operators,

including small business entities.

Ordering Clauses

15. Accordingly, it is ordered that,

pursuant to sections 4(i), 4(j) and 614 of

the Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 154(j) and

534, and section 301 of the

Telecommunications Act of 1996, Pub.

L. 104–104 (1996), Part 76 is amended

as set forth below, July 10, 1996.

16. It is further ordered that, the

Secretary shall send a copy of the

Report and Order, including the

Regulatory Flexibility Analysis, to the

Chief Counsel for Advocacy of the Small

Business Administration in accordance

with paragraph 603(a) of the Regulatory

Flexibility Act. Pub. L. 96–354, 94 Stat.

1164, 5 U.S.C. 601 et seq. (1981).

List of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission

William F. Caton,

Acting Secretary.

Rule Changes

Part 76 of Chapter I of Title 47 of the

Code of Federal Regulations is amended

as follows:

PART 76—CABLE TELEVISION

SERVICE

1. The authority citation for Part 76

continues to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154,

301, 302, 303, 303a, 307, 308, 309, 312, 315,

317, 325, 503, 521, 522, 531, 532, 533, 534,

535, 536, 537, 543, 544, 544a, 545, 548, 552,

554, 556, 558, 560, 561, 571, 572, 573.

2. Section 76.55 is amended by

revising paragraph (e) to read as follows:

§ 76.55 Definitions applicable to the mustcarry rules.

* * * * *

(e) Television market. (1) Until

January 1, 2000, a commercial broadcast

television station’s market, unless

amended pursuant to § 76.59, shall be

defined as its Area of Dominant

Influence (ADI) as determined by

Arbitron and published in the Arbitron

1991–1992 Television ADI Market

Guide, as noted below, except that for

areas outside the contiguous 48 states,

the market of a station shall be defined

using Nielsen’s Designated Market Area

(DMA), where applicable, as published

in the Nielsen 1991–92 DMA Market
29314 Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations

and Demographic Rank Report, and that

Puerto Rico, the U.S. Virgin Islands, and

Guam will each be considered a single

market.

(2) Effective January 1, 2000, a

commercial broadcast television

station’s market, unless amended

pursuant to § 76.59, shall be defined as

its Designated Market Area (DMA) as

determined by Nielsen Media Research

and published in its DMA Market and

Demographic Rank Report or any

successor publication, as noted below.

(3) A cable system’s television

market(s) shall be the one or more ADI

markets in which the communities it

serves are located until January 1, 2000,

and the one or more DMA markets in

which the communities it serves are

located thereafter.

(4) In addition, the county in which

a station’s community of license is

located will be considered within its

market.

Note to paragraph (e): For the 1996 mustcarry/retransimission consent election, the

ADI assignments specified in the 1991–1992

Television ADI Market Guide, available from

the Arbitron Ratings Co., 9705 Patuxent

Woods Drive, Columbia, MD, will apply. For

the 1999 election, which becomes effective

on January 1, 2000, DMA assignments

specified in the 1997–98 DMA Market and

Demographic Rank Report, available from

Nielsen Media Research, 299 Park Avenue,

New York, NY, shall be used. The applicable

DMA list for the 2002 election will be the

2000–2001 list, etc.

* * * * *

[FR Doc. 96–14571 Filed 6–7–96; 8:45 am]

BILLING CODE 6712–01–P

ENVIRONMENTAL PROTECTION

AGENCY

48 CFR Parts 1501, 1509, 1510, 1515,

1532, 1552 and 1553

[FRL–5516–4]

Acquisition Regulation; Monthly

Progress Reports; Submission of

Invoices

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: This document revises the

EPA Acquisition Regulation (EPAAR)

contract clauses for monthly progress

reports, submission of invoices, and

other related information. Authority for

two internal EPA reviews is also

redelegated.

EFFECTIVE DATE: June 25, 1996.

ADDRESSES: Environmental Protection

Agency, Office of Acquisition

Management (3802F), 401 M Street SW.,

Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

Larry Wyborski, Telephone: (202) 260–

6482.

SUPPLEMENTARY INFORMATION:

I. Background Information

The proposed rule was published in

the Federal Register (60 FR 51964–

51968) on October 4, 1995, providing for

a 60 day comment period.

Interested parties were afforded the

opportunity to participate in the making

of this rule. The following is a summary

of each comment and the Agency

disposition of these comments.

1. Comment: Paragraphs (c)(1) and (2)

of the Submission of Invoices clause

references invoice preparation

instructions ‘‘. . . identified as a

separate attachment in Section J . . .’’

Perhaps the intent of your proposed

provision is to reference the current

EPA Form 1900 or 1900–34A or some

similar document, in which case we,

and other EPA contractors, are familiar

with its requirements. On the other

hand, if you have another document in

mind we would be particularly

interested in its proposed contents.

Response: The reference is to invoice

preparation instructions under each

contract, which will convey similar

information now conveyed in the EPA

Form 1900–34 and 1900–34A.

Contracting Officers will be able to

devise the instructions to fit the specific

circumstances of the acquisition. The

EPA Form 1900–34 and 1900–34A are

obsolete. See items 16 and 17 of this

rule which delete these forms from use

by EPA.

2. Comment: Submission of Invoices

clause, paragraph (c)(1) and the Monthly

Progress Report clause, paragraph (d)(2)

call for amounts claimed ‘‘for the

contract total.’’ It is not clear what is

meant by that phrase particularly in

light of the requirements of the

proposed Monthly Progress Report

provision. If you mean the contract

period, that presents no additional

burden. If you mean the ‘‘cumulative

contract life’’ (your expression from the

Monthly Progress Report provision), this

would be more difficult as your cost

accounting system does not currently

add contract year information together.

Response: ‘‘Contract total’’ refers to

cumulative contract life. This is a

change from the prior Agency

requirements which will improve the

Agency’s ability to assess cost

reasonableness.

3. Comment: The Submission of

Invoices clause, paragraph (c)(3) calls

for subcontract amounts to be ‘‘further

detailed in a supporting schedule

showing major cost elements for each

subcontract.’’ This raises the potential

issue of proprietary information on costplus fixed-fee (CPFF) subcontracts

where subcontractors may be unwilling

to provide fully disclosed cost detail to

prime contractors. The Agency would

have to determine how they would like

to have subcontractors to provide that

detail if it was still requested. For

example, subcontractors could provide

in sealed envelopes the proprietary

backup to their invoices which contain

the desired information and primes

could then enclose all the envelopes

with their invoices. This would be

bulky and postage costs would increase

as a result.

Response: The ‘‘Subcontracts’’ clause

of the Federal Acquisition Regulation

makes it the responsibility of

contractors to obtain information that

ensures subcontractor costs are

reasonable, if such a requirement is

established in other contract provisions.

The Agency suggests that a prime

contractor enter into confidentiality

agreements with subcontractors to

ensure that they provide the necessary

data, if such data is considered

proprietary.

4. Comment: Monthly Progress

Report, paragraph (c), calls for the prime

contractor to maintain the Contracting

Officer’s list of pending actions.

Response: Paragraph (c) is not a

requirement to maintain the Contracting

Officer’s ‘‘list.’’ It is a requirement for

contractors to specify contractor

requests awaiting Contracting Officer

authorization.

5. Comment: Several requirements for

information have the potential for being

quickly outdated and thus may lose

whatever value they may be expected to

offer.

Response: If the information

requested is updated monthly, as

required by the monthly progress report,

the Agency believes it will be useful in

making cost reasonableness

determinations.

6. Comment: Paragraph (d)(4) of the

Monthly Progress Report clause calls for

the tracking of costs against contract

‘‘ceilings’’. Many of the items listed are

not normally the subject of contract

ceilings. It is not clear if your provision

literally means ceilings or if you mean

the amounts proposed in each of those

areas as part of the total estimated cost.

Further, the concept of ‘‘remaining

amounts’’ has little meaning unless you

are referring to contract ceilings. Lastly,

reporting costs by individual contractor

is not within the capability of the

invoicing module of our current cost

accounting and would thus take a

modification to that system or manual

invoice preparation.