22498 Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 

F. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rule 

53. None. 

Ordering Clauses 

54. Pursuant to Sections 4(i), 301, 302, 

303(e), 303(f) and 303(r) of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 301, 302, 

303(e), 303(f) and 303(r), this Notice of 

Proposed Rule Making is adopted. 

55. The Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Notice of Proposed Rule Making, 

including the Initial Regulatory 

Flexibility Analysis to the Chief Counsel 

for Advocacy of the Small Business 

Administration. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E9–11066 Filed 5–12–09; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 73 and 74 

[MB Docket No. 09–52; FCC 09–30] 

Policies To Promote Rural Radio 

Service and To Streamline Allotment 

and Assignment Procedures 

AGENCY: Federal Communications 

Commission. 

ACTION: Notice of Proposed Rulemaking. 

SUMMARY: In this document, the 

Commission adopted a Notice of 

Proposed Rulemaking (NPRM), seeking 

comment on a number of procedures 

designed to streamline the process of 

allocating new FM channels and AM 

frequency assignments, with an 

emphasis on encouraging policies that 

foster new and modified channel 

assignments favoring smaller 

communities, rural areas, and Native 

American and Alaska Native tribal 

areas. The Commission proposes a 

number of rule and procedural changes 

addressing channel assignment and 

allotment priorities under Section 

307(b) of the Communications Act of 

1934, as amended, including proposing 

a new priority for Native American and 

Alaska Native tribes and their members 

seeking to provide new radio service to 

tribal lands. The Commission also 

proposes a number of smaller but 

significant procedural changes designed 

to make the allotment and assignment of 

radio channels more efficient. 

DATES: Comments may be filed no later 

than July 13, 2009 and reply comments 

may be filed no later than August 11, 

2009. Written comments on the 

Paperwork Reduction Act proposed 

information collection requirements 

must be submitted by the public, Office 

of Management and Budget (OMB) and 

other interested parties on or before July 

13, 2009. 

ADDRESSES: You may submit comments, 

identified by MB Docket No. 09–52, by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• E-mail: ecfs@fcc.gov. Include the 

docket number in the subject line of the 

message. See the SUPPLEMENTARY

INFORMATION section of this document 

for detailed information on how to 

submit comments by e-mail. 

• Mail: 445 12th Street, SW., 

Washington, DC 20554. 

• People With Disabilities: Contact 

the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: 

Peter Doyle, Chief, Media Bureau, 

Audio Division, (202) 418–2700; 

Thomas Nessinger, Attorney-Advisor, 

Media Bureau, Audio Division, (202) 

418–2700. 

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 

summary of the Commission’s Notice of 

Proposed Rulemaking (NPRM), FCC 09– 

30, adopted April 7, 2009, and released 

April 20, 2009. 

Initial Paperwork Reduction Act of 

1995 Analysis 

This NPRM contains proposed 

information collection requirements. It 

will be submitted to the Office of 

Management and Budget (OMB) for 

review under section 3507(d) of the 

Paperwork Reduction Act of 1995 

(PRA), Public Law 104–13, 109 Stat 163 

(1995). The Commission, as part of its 

continuing effort to reduce paperwork 

burdens, invites the general public and 

OMB to comment on the proposed 

information collection requirements 

contained in this NPRM, as required by 

the PRA. Public and agency comments 

on the PRA proposed information 

collection requirements are due July 13, 

2009. Comments should address: (a) 

Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

burden estimates; (c) ways to enhance 

the quality, utility, and clarity of the 

information collected; and (d) ways to 

minimize the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology. In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, 116 Stat 729 (2002), see 

44 U.S.C. 3506(c)(4), the Commission 

seeks specific comment on how it might 

‘‘further reduce the information 

collection burden for small business 

concerns with fewer than 25 

employees.’’ 

The following existing information 

collection requirements would be 

modified if the proposed rules 

contained in the NPRM are adopted. 

OMB Control Number: 3060–0996. 

Title: AM Auction Section 307(b) 

Submissions. 

Form Number: Not applicable. 

Type of Review: Revision of a 

currently approved collection. 

Respondents: Business or other forprofit entities; not-for-profit institutions; 

State, local or Tribal government. 

Estimated Number of Respondents 

and Responses: 153 respondents; 153 

responses. 

Estimated Time per Response: 0.5 

hours to 3 hours. 

Frequency of Response: On occasion 

reporting requirement. 

Estimated Total Annual Burden: 354 

hours. 

Estimated Total Annual Costs: 

$43,050.00. 

Obligation To Respond: Required to 

obtain or retain benefits. The statutory 

authority for this information collection 

is contained in Sections 154(i), 307(b) 

and 309 of the Communications Act of 

1934, as amended. 

Nature and Extent of Confidentiality: 

There is no need for confidentiality with 

this collection of information. 

Privacy Impact Assessment: No 

impact(s). 

Needs and Uses: Applicants in AM 

broadcast filing windows whose 

Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 22499 

applications are mutually exclusive 

with other filing window applications 

must submit information addressing 

how their applications comport with the 

fair, efficient, and equitable distribution 

of radio service pursuant to section 

307(b) of the Communications Act of 

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

(‘‘Section 307(b)’’). In the Notice of 

Proposed Rule Making in Policies to 

Promote Rural Radio Service and to 

Streamline Allotment and Assignment 

Procedures, MB Docket No. 09–52, FCC 

09–30, the Commission proposes 

allowing applicants to calculate a 

Service Value Index (‘‘SVI’’), which FM 

commercial allotment proponents may 

already submit, as a way of 

demonstrating that their AM proposal 

merits a dispositive Section 307(b) 

preference, or to demonstrate that an 

AM proposal would provide third, 

fourth, or fifth reception service to a 

significant population, both under the 

‘‘other public interest matters’’ priority 

in a Section 307(b) analysis. The 

Commission also proposes adding a new 

Section 307(b) priority that would apply 

only to Native American and Alaska 

Native tribes and tribal consortia and 

their members, proposing to serve tribal 

lands. The priority is only available 

when all of the following conditions are 

met: (1) The applicant is either a 

federally recognized Tribe or tribal 

consortium, a member of a Tribe, or an 

entity more than 70 percent owned or 

controlled by members of a Tribe or 

Tribes; (2) at least 50 percent of the 

daytime principal community contour 

of the proposed facilities will cover 

tribal lands, in addition to meeting all 

other Commission technical standards; 

and (3) the applicant must propose at 

least first local transmission service to 

the proposed community of license, 

which must be located on tribal lands. 

Applicants claiming Section 307(b) 

preferences using these factors will 

submit information to substantiate their 

claims. 

OMB Control Number: 3060–0029. 

Title: Application for TV Broadcast 

Station License, Form FCC 302–TV; 

Application for DTV Broadcast Station 

License, FCC Form 302–DTV, 

Application for Construction Permit for 

Reserved Channel Noncommercial 

Educational Broadcast Station, FCC 

Form 340; Application for Authority to 

Construct or Make Changes in an FM 

Translator or FM Booster Station, FCC 

Form 349; Section 47 CFR 73.626. 

Form Number: FCC Forms 302–TV, 

302–DTV, 340, and 349. 

Type of Review: Revision of a 

currently approved collection. 

Respondents: Business or other for 

profit entities; not-for-profit institutions; 

State, local or Tribal Government. 

Estimated Number of Respondents 

and Responses: 4,480 respondents; 

6,480 responses. 

Estimated Time per Response: 1 hour 

to 5 hours. 

Frequency of Response: On occasion 

reporting requirement; recordkeeping 

requirement; third party disclosure 

requirement. 

Estimated Total Annual Burden: 

15,725 hours. 

Estimated Total Annual Costs: 

$22,660,540. 

Obligation To Respond: Required to 

obtain or retain benefits. The statutory 

authority for this information collection 

is contained in Sections 154(i), 303 and 

308 of the Communications Act of 1934, 

as amended. 

Nature and Extent of Confidentiality: 

There is no need for confidentiality with 

this collection of information. 

Privacy Impact Assessment: No 

impact(s). 

Needs and Uses: FCC Form 340 and 

the applicable exhibits/explanations are 

required to be filed when applying for 

consent for a new reserved band 

noncommercial educational (‘‘NCE’’) 

FM broadcast station construction 

permit. On April 8, 2009, the 

Commission adopted a Notice of 

Proposed Rule Making in the Matter of 

Policies to Promote Rural Radio Service 

and to Streamline Allotment, and 

Assignment Policies, MB Docket No. 

09–52, FCC 09–30 (released Apr. 20, 

2009). In this Notice of Proposed Rule 

Making, the Commission proposes a 

number of changes to its policies and 

procedures in comparing mutually 

exclusive applications pursuant to 

Section 307(b). Among those changes is 

a new priority directed toward federally 

recognized Native American and Alaska 

Native tribes and tribal consortia. Under 

the new priority, a Section 307(b) 

priority would apply to an applicant 

meeting all of the following criteria: (1) 

The applicant is either a federally 

recognized Tribe or tribal consortium, a 

member of a Tribe, or an entity more 

than 70 percent owned or controlled by 

members of a Tribe or Tribes; (2) at least 

50 percent of the daytime principal 

community contour of the proposed 

facilities covers tribal lands, in addition 

to meeting all other Commission 

technical standards; and (3) the 

applicant proposes at least first local 

transmission service to the proposed 

community of license, which must be 

located on tribal lands. For tribal 

applicants seeking an NCE FM station in 

the reserved band, the proposed tribal 

priority would apply, if applicable, 

before the fair distribution analysis 

currently used by noncommercial 

educational applicants. Comments on 

the Paperwork Reduction Act 

information collection requirements 

contained herein should be submitted to 

Cathy Williams, Federal 

Communications Commission, 445 12th 

St., SW., Room 1–C823, Washington, DC 

20554, or via the Internet at 

Cathy.Williams@fcc.gov or 

PRA@fcc.gov; and also to Nicholas A. 

Fraser of the Office of Management and 

Budget (OMB), via Internet at 

Nicholas_A._Fraser@omb.eop.gov or via 

fax at (202) 395–5167. 

To view a copy of this information 

collection request (ICR) submitted to 

OMB: (1) Go to the Web page http:// 

www.reginfo.gov/public/do/PRAMain, 

(2) look for the section of the Web page 

called ‘‘Currently Under Review,’’ (3) 

click on the downward-pointing arrow 

in the ‘‘Select Agency’’ box below the 

‘‘Currently Under Review’’ heading, (4) 

select ‘‘Federal Communications 

Commission’’ from the list of agencies 

presented in the ‘‘Select Agency’’ box, 

(5) click the ‘‘Submit’’ button to the 

right of the ‘‘Select Agency’’ box, (6) 

when the list of FCC ICRs currently 

under review appears, look for the title 

of this ICR (or its OMB control number, 

if there is one) and then click on the ICR 

Reference Number to view detailed 

information about this ICR.’’ 

Summary of Notice of Proposed Rule 

Making 

1. In the ten years that the 

Commission has been awarding 

commercial broadcast station 

construction permits by means of 

competitive bidding procedures, it has 

noted some shortcomings in its 

procedures for the allotment and 

assignment of broadcast frequencies. 

The Commission believes it appropriate 

to consider rule and procedural changes 

that would better encourage the fair 

distribution of broadcast licenses, 

particularly in smaller communities, 

rural areas, and tribal areas, afford 

greater opportunities to participate in 

competitive bidding, promote the filing 

of technically sound applications, and 

deter speculation in broadcast permit 

applications. The Commission also 

proposes to modify the noncommercial 

educational (‘‘NCE’’) fair distribution 

comparative criterion by establishing a 

tribal priority. 

2. In the NPRM, first, the Commission 

seeks comment on a proposal to modify 

the way in which proposals for new FM 

commercial allotments and AM channel 

assignments are evaluated for the fair, 

efficient, and equitable distribution of 

radio service under Section 307(b). 

22500 Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 

Currently, the Section 307(b) analysis is 

performed using four priorities 

established by the Commission in 1982. 

These are (1) Provision of first fulltime 

aural (reception) service; (2) provision 

of second fulltime aural (reception) 

service; (3) provision of first local 

transmission service; and (4) other 

public interest matters. Priorities (2) and 

(3) are co-equal. The Commission 

observes that Priority (1) and (2) claims 

are rare, and that its current procedures 

in this regard tend to favor large cities 

and Urbanized Areas that already 

receive abundant radio broadcast 

service. The NPRM tentatively 

concludes that in most instances, 

Priority (3) preferences should not be 

awarded where the proposed new 

station would or could place a principal 

community signal over the majority of 

an Urbanized Area. In addition, the 

Commission tentatively concludes that 

dispositive Section 307(b) preferences 

under Priority (4) should only be 

awarded to an AM new station or major 

change applicant in rare and 

exceptional circumstances, and that a 

dispositive preference would not be 

appropriate in other Priority (4) AM 

application cases. The Commission also 

tentatively concludes that that any new 

station proposal that would be located 

within an Urbanized Area or would 

place a daytime principal community 

signal over 50 percent or more of an 

Urbanized Area, or that could be 

modified to provide such coverage 

based on existing spectrum availability 

or rule-compliant power or pattern 

modifications from a site covering the 

same proposed community of license, 

should be deemed a proposal to serve 

the Urbanized Area rather than the 

proposed community. In such an 

instance, absent effective rebuttal of the 

presumption, the Commission would 

not award a Priority (3) dispositive 

preference. The Commission seeks 

comment on this proposal, and 

specifically as to any factors that should 

serve to rebut the presumption that an 

applicant proposes to serve the 

Urbanized Area rather than the 

proposed community of license. Also, 

given the proposed shift in emphasis to 

Urbanized Area coverage as the 

principal factor in determining whether 

an applicant may claim a Priority (3) 

preference, the Commission seeks 

comment on whether there remains any 

viability in the eight-factor analysis of 

independence vs. interdependence of a 

community with an Urbanized Area, 

first proposed in Faye and Richard 

Tuck, 3 FCC Rcd 5374, 5376 (1988). 

3. The NPRM also proposes certain 

changes in the Priority (4) ‘‘other public 

interest matters’’ analysis. As a 

threshold matter, the Commission seeks 

comment as to whether, in the AM 

licensing process, it should cease 

awarding dispositive Section 307(b) 

preferences based on a Priority (4) 

analysis when comparing new AM 

proposals. If an applicant cannot qualify 

for a dispositive Section 307(b) 

preference under Priorities (1)–(3), 

should the staff then determine that no 

Section 307(b) preference is appropriate, 

and the mutually exclusive engineering 

proposals proceed to competitive 

bidding procedures? In the alternative, 

the Commission asks whether it should 

permit dispositive Priority (4) findings 

in very narrowly defined circumstances 

with respect to such mutually exclusive 

applications. For example, should 

Priority (4) analysis be confined to 

situations in which either existing 

transmission or reception services to the 

proposed community or service area fall 

below a service level ‘‘floor?’’ The 

Commission tentatively concludes that 

where 75 percent or more of the 

population within a proposed new 

station’s principal community contour 

(5 mV/m) already receives more than 

five aural services, and where the 

proposed community of license already 

has more than five transmission 

services, no dispositive Section 307(b) 

preference should be awarded to that 

applicant. If an applicant’s proposal 

falls below these floors, it would then 

proceed to a Section 307(b) analysis that 

would differ from current practice. The 

Commission seeks comment on these 

proposals, and in particular on the 

proposed 75 percent threshold. The 

Commission further seeks comment on 

ways in which a Priority (4) analysis in 

the FM allocations process could or 

should be modified to de-emphasize 

service population totals, to alleviate the 

problem of unduly advantaging 

proposals for new FM allotments in or 

near large communities. The 

Commission seeks comment as to 

whether there are other factors that 

would more accurately reflect the need 

for new FM service. 

4. The Commission further seeks 

comment on other modifications to a 

Priority (4) Section 307(b) analysis that 

would serve to level the playing field 

between proposals to serve larger and 

more populous communities and those 

to serve smaller communities and rural 

areas. The Commission has modified the 

comparison of raw population totals, in 

the FM allocations context, by 

permitting the computation of a ‘‘service 

value index.’’ Essentially, the service 

value index (‘‘SVI’’) is a method of 

discounting raw population totals based 

on the number of services received, 

enabling the proponent to claim that its 

application would better serve the 

public interest by serving underserved 

areas. The SVI was first proposed in 

Greenup, Kentucky and Athens, Ohio, 6 

FCC Rcd 1493, 1495 (1991). SVI is 

computed by dividing the proposed 

service area into ‘‘pockets’’ of 

population based on the number of 

aural services received in each pocket. 

The population within each pocket is 

divided by the number of aural services 

received, and the results for each pocket 

are then added together. In the FM 

allocations context, the applicant 

proposing the higher SVI receives an 

allotment. The Commission seeks 

comment on whether this method could 

prove useful in comparing proposals for 

new AM service as well. The 

Commission notes that, in Greenup, a 

difference in SVI of 18.8 percent was 

found to be dispositive. Because a 

comparison of competing FM allotment 

proposals must arrive at a clear winner, 

however, the Commission proposes that 

a substantially higher SVI differential, of 

at least 50 percent, should be required 

before a dispositive preference should 

be awarded to an AM applicant 

proposing new service. If AM 

applications do not demonstrate a 

sufficiently large SVI differential, no 

dispositive 307(b) preference would be 

awarded on this basis and the mutual 

exclusivity between competing 

applications would then be resolved 

through competitive bidding. The 

Commission seeks comment on this 

proposal, including comments on the 

magnitude of the dispositive SVI 

differential, and on whether using such 

a method to allow more applications to 

proceed to competitive bidding serves 

the public interest. Alternately, the 

Commission seeks comment on 

whether, when evaluating mutually 

exclusive AM proposals, it should only 

engage in a Priority (4) analysis when 

both (a) the proposed community does 

not meet a specified transmission and/ 

or reception ‘‘floor,’’ and (b) there is at 

least a 50 percent differential in SVI 

between or among competing 

communities. 

5. The Commission also seeks 

comment on a Section 307(b) priority 

for AM auction and FM allotment 

proposals that would provide new third, 

fourth, or fifth reception service to a 

substantial number of listeners. The 

Commission seeks comment on whether 

to establish an ‘‘underserved listeners’’ 

priority—co-equal to Priorities (2) and 

(3)—for proposals that would provide a 

third, fourth, or fifth aural reception 

service to a substantial portion of the 

Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 22501 

proposed service population. Should 

such a priority be limited to proposals 

that would provide such service to at 

least 15, 25, 35, or 50 percent of the 

proposed service population? Should 

such an ‘‘underserved listeners’’ priority 

outweigh a Priority (3) proposal only if 

the total number of underserved 

listeners exceeds the population of the 

community for which a first local 

service is proposed? The Commission 

invites comment on these alternatives, 

as well as the specifics of their 

application. For instance, commenters 

could suggest alternate metrics for 

defining underserved populations or 

rural areas. The Commission also seeks 

comments as to combinations of the 

alternatives referenced above, or other 

methods by which it could promote 

additional transmission services at 

smaller communities or those that serve 

as the population centers for rural areas. 

Finally, the Commission seeks comment 

on how the proposals stated above 

would affect small business entities, 

including those owned by minorities 

and women. 

6. The Commission further proposes 

to modify the Section 307(b) standards 

applied to licensees and permittees 

seeking to change their community of 

license. In Revision of Procedures 

Governing Amendments to FM Table of 

Allotments and Changes of Community 

of License in the Radio Broadcast 

Services, 21 FCC Rcd 14212 (2006) 

(petitions for reconsideration pending), 

the Commission established procedures 

making a community of license change 

a minor modification to a station’s 

authorization. Included among those 

procedures was the requirement that the 

applicant demonstrate that the 

community of license change would 

constitute a preferential arrangement of 

allotments under Section 307(b) as 

compared to the existing allotment(s). 

The Section 307(b) standards applied in 

this context are those developed from 

FM Allocations proceedings, including 

the Faye and Richard Tuck test of 

independence/interdependence of a 

community proposed as receiving a first 

local transmission service, and an 

absolute bar against removing the sole 

local transmission service at a 

community. Experience has shown that 

some modifications to this procedure 

may be warranted, however, and that 

concerns regarding loss of radio service 

to rural and smaller communities 

should be addressed. Accordingly, the 

Commission proposes that a community 

of license change that creates ‘‘white’’ or 

‘‘gray’’ areas (areas with no or only one 

reception service) should not be allowed 

under any circumstances. Given that 

provision of first or second reception 

service are the first two Section 307(b) 

priorities, the Commission believes that 

such an absolute bar is necessary to 

ensure that the least well-served 

populations do not suffer further drops 

in the level of reception service. The 

Commission also proposes that the 

presumption of Urbanized Area service 

described in paragraph 2, above, should 

also be used in evaluating AM and FM 

applications to change existing stations’ 

communities of license, to ensure that 

applicants claiming preference under 

Priority (3) are not using the streamlined 

procedures as a way of relocating from 

smaller communities to large urbanized 

areas, under the guise of providing first 

local transmission service to a smaller 

community in or adjacent to an 

Urbanized Area. Thus, in evaluating a 

modification application to move a 

station to become a new community’s 

first local transmission service, the 

Commission proposes to treat such an 

application as proposing service to the 

Urbanized Area if the new facilities 

would be located in or would or could 

place a daytime principal community 

signal over 50 percent or more of an 

Urbanized Area. The Commission seeks 

comment on these proposals, and 

specifically on whether they would help 

restrict the migration of stations to 

metropolitan areas with larger 

audiences, and more effectively fulfill 

the Commission’s Section 307(b) 

mandate. The Commission further seeks 

comment on other criteria that should 

be considered in evaluating a proposed 

change of community of license or move 

of facilities, including possibly 

outweighing even a Priority (3) first 

local transmission service preference. 

To the extent that a proposed station 

move would deprive a significant 

population of its third, fourth, or fifth 

reception service, the Commission seeks 

comment on whether such a move 

should be presumed contrary to the 

public interest. For example, what 

should be considered a ‘‘significant 

population?’’ Should the loss of 

reception service pose an absolute bar to 

the proposed move-out, or should the 

magnitude of the increased level of 

service, or the size of the new 

community, be weighed in some fashion 

against the size of the population losing 

reception service? Should such a policy 

favoring preservation of service to 

underserved populations over new first 

local transmission service be limited to 

the move-out context only, or both 

move-outs and proposals for new 

service, as discussed above? The 

Commission likewise seeks comment as 

to whether removal of the second local 

transmission service from a community, 

even to provide a first local service to 

a new community, should be 

prohibited. Alternatively, should 

removal of second local service not be 

an absolute bar, but rather be weighed 

against a proposed station move, and if 

so, how much weight should be 

accorded this factor? The Commission 

also seeks comment on the effect of any 

changes on station ownership by small 

businesses, including those owned by 

minorities and women. 

7. The Commission also proposes a 

Section 307(b) priority that may be 

employed by Native American Tribes 

and Alaska Native Villages (collectively 

‘‘Tribes’’), their members, and entities 

owned and controlled by members of 

Tribes. As of the 2000 U.S. Census, 

there are more than 4.1 million Native 

Americans and Alaska Natives living in 

the United States. There are 563 

federally recognized Tribes. At present, 

there are approximately 41 full-power 

noncommercial educational (‘‘NCE’’) 

FM radio stations in the United States 

licensed to federally recognized tribes or 

affiliated groups, with another 31 

construction permits for full-power NCE 

FM stations having been granted to such 

Tribes. Several tribal groups have 

expressed concern about their ability to 

establish radio service to their people 

and tribal lands. The problem is most 

acute in the case of tribal lands that are 

near large Urbanized Areas, or where 

the suburbs of such Urbanized Areas 

have begun to encroach upon areas 

adjacent to tribal lands. In such 

instances, spectrum scarcity may limit 

the opportunities for new radio service. 

Further, while communities located on 

tribal lands may well qualify for first 

local transmission service priorities in a 

Section 307(b) analysis, obtaining such 

a priority hinges upon the absence of 

other proposals for first local 

transmission service in larger 

communities. It is well established that 

Tribes are inherently sovereign Nations, 

with the obligation to maintain peace 

and good order, improve their 

condition, establish school systems, and 

aid their people in their efforts to 

acquire the arts of civilized life within 

their jurisdictions. Moreover, the 

Commission, as an independent agency 

of the United States Government, has an 

historic federal trust relationship with 

Tribes, and a longstanding policy of 

promoting tribal self-sufficiency and 

economic development. The 

Commission therefore believes that it is 

in keeping with its policy toward and 

relationship with Tribes, as well as the 

public interest, to aid Tribes and tribal 

consortia in their efforts to provide 

22502 Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 

educational and other programming to 

their members residing on tribal lands, 

as well as to assist them in acquiring 

and operating commercial stations for 

purposes of business and commercial 

development. 

8. Accordingly, the Commission 

tentatively concludes that it is in the 

public interest to provide federally 

recognized Tribes with a Section 307(b) 

priority in FM allotments, AM filing 

window applications, and NCE FM 

filing window applications. To qualify 

for the new priority, an applicant would 

have to demonstrate all of the following: 

(1) The applicant would have to be 

either a federally recognized Tribe or 

tribal consortium, a member of a Tribe, 

or be an entity more than 70 percent 

owned or controlled by members of a 

Tribe or Tribes; (2) at least 50 percent 

of the daytime principal community 

contour of the proposed facilities would 

have to cover tribal lands, in addition to 

meeting all other Commission technical 

standards; and (3) the applicant would 

have to propose at least first local 

transmission service to the proposed 

community of license, which would 

have to be located on tribal lands. The 

Commission proposes that such a tribal 

priority fit between the current Priority 

(1) and co-equal Priorities (2) and (3). In 

other words, the tribal priority would 

not take precedence over a proposal to 

provide first reception service to a 

greater than de minimis population, but 

would take precedence over the 

provision of second local reception 

service or, more importantly, over a 

proposal for first local transmission 

service. While this would place the 

proposed tribal priority very high in the 

Section 307(b) analysis, the Commission 

believes such placement would be 

justified due to the inherent sovereignty 

of Tribes and their obligations to their 

members on tribal lands, and the fact 

that the priority is specifically designed 

to facilitate those obligations by Tribes 

or tribal members. The proposed tribal 

priority would be applied only at the 

allotment stage of the commercial FM 

licensing procedures, as this is the only 

point at which a Section 307(b) analysis 

is currently conducted. It would be 

applied to commercial or NCE AM 

applications filed during an AM filing 

window, as part of the threshold Section 

307(b) analysis. The tribal priority 

would be applied to applications filed 

in an NCE FM filing window as the first 

part of the fair distribution analysis, 

before application of the ‘‘first or second 

reserved channel NCE service’’ criterion 

set forth in Section 73.7002(b) of the 

Commission’s Rules. 47 CFR 73.7002(b). 

NCE applicants also would be required 

to meet all NCE eligibility and licensing 

requirements. Because the tribal priority 

would likely be dispositive in many 

situations, the Commission tentatively 

concludes that a holding period, 

commencing with the award of a 

construction permit until the 

completion of four years of on-air 

operation, should apply to any station 

or allotment awarded pursuant to the 

tribal priority. In the case of an AM or 

NCE FM station awarded to a tribal 

applicant, the holding period would 

prohibit any change in ownership that 

would lower the 70 percent tribal 

ownership threshold, change of 

community of license, or technical 

change that would cause less than 50 

percent of the principal community 

contour to cover tribal lands. In the case 

of a commercial FM allotment, the 

restriction would apply only to any 

proposed change of community of 

license or technical change as described 

in the preceding sentence. While the 

Commission believes that the restriction 

in technical or community changes 

would serve to make such allotments 

more attractive to Tribal members and 

entities, even a non-Tribal owner that is 

awarded a permit would still be 

required to provide broadcast service 

primarily to tribal lands for four years. 

9. The Commission seeks comment on 

the proposals and tentative conclusions 

set forth above. In particular, the 

Commission requests comment on the 

proposed compositional requirements 

and on the specific composition that 

should be required of applicant entities 

to claim the proposed tribal priority; on 

the percentage of the principal 

community contour that must serve 

tribal lands; on whether any other 

requirements should be imposed to 

qualify for the priority; on the length 

and parameters of the holding period 

proposed above; or on any other matters 

relating to the goal of providing Tribes 

with greater access to broadcast 

frequencies covering their lands. With 

regard to FM commercial allotments and 

applications in the non-reserved band, 

and given that the Commission has 

traditionally performed Section 307(b) 

analyses only at the FM commercial 

allotment stage, the Commission 

specifically seeks comment as to the 

effect, if any, of applying the tribal 

priority, particularly the compositional 

component, only at the allotment stage. 

Is the geographic component of the 

proposed tribal priority sufficient to 

limit interest in such allotments to tribal 

applicants, or is there a way to further 

prioritize tribal applicants within the 

existing Section 307(b) framework for 

commercial FM applications? 

Alternately, should the compositional 

requirement in the allocations Section 

307(b) analysis be eliminated, relying 

solely on the geographic component in 

the FM commercial context? The 

Commission also seeks comment on 

modifications to the tribal priority that 

could apply to Tribes that do not have 

tribal lands, or to Tribes seeking to 

provide service to significant tribal 

populations living in communities that 

are not, or are not primarily, located on 

tribal lands. Additionally, the 

Commission seeks comment on any 

statutory or constitutional issues raised 

by this proposal, particularly whether 

the Commission’s discretion under 

Section 307(b), which mandates ‘‘such 

distribution of licenses * * * among the 

several States and communities as to 

provide a fair, efficient, and equitable 

distribution of radio service to each of 

the same,’’ is broad enough to establish 

such a priority, as well as whether the 

proposed priority, which as set forth 

above is premised on principles of tribal 

sovereignty and the federal trust 

responsibility, would be likely to be 

deemed a racial classification subject to 

strict judicial scrutiny. 

10. Additionally, the Commission 

proposes a prohibition on downgrading 

any technical proposal that forms the 

basis of a construction permit award 

under a dispositive Section 307(b) 

priority. The Commission believes it is 

critical that the applicant not be allowed 

to downgrade such a proposal in a way 

that would serve a smaller population, 

or otherwise negate the factors that led 

to the award of a dispositive preference. 

To do so merely encourages ‘‘gaming’’ of 

the Section 307(b) process, leading 

applicants to promise more service in 

their applications than they plan to 

deliver, and can therefore undermine 

confidence in the fairness of procedures 

for awarding new construction permits. 

NCE FM applicants that receive a 

decisive preference for fair distribution 

of service are precluded from 

downgrading service to the area on 

which the preference is based for a 

period of four years of on-air operations. 

The Commission tentatively concludes 

that AM licensees or permittees 

receiving Section 307(b) preferences 

likewise should be required to provide 

service substantially as proposed in 

their short-form tech box submissions. 

The Commission seeks comment on this 

tentative conclusion, in particular on 

the amount of time such a licensee or 

permittee should be precluded from 

downgrading. Should it be four years, as 

with NCE FM applicants, or is some 

other period of time needed to deter 

such behavior? 

Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 22503 

11. Further, the Commission proposes 

a ‘‘technically eligible for auction 

processing at the time of filing’’ 

standard to be applied to all AM auction 

filing window ‘‘tech box’’ submissions. 

Currently, Commission staff only 

reviews these submissions to determine 

mutual exclusivity, and does not 

analyze them for acceptability or 

grantability. Although this auction 

processing rule was designed to reduce 

staff burdens by limiting comprehensive 

technical reviews only to singleton 

applications, recipients of dispositive 

Section 307(b) preferences, and auction 

winners, the Commission believes that 

it has instead contributed to the filing of 

patently defective applications, 

undermined the accuracy and reliability 

of its mutual exclusivity and Section 

307(b) determinations, and frustrated 

the staff’s ability to manage the window 

filing process efficiently. Moreover, 

such defective applications preclude the 

filing of meritorious modification 

applications by existing facilities, which 

must protect the prior-filed defective 

applications. Thus, the Commission 

tentatively concludes that Section 

73.3571(h)(1)(ii) of its Rules, 47 CFR 

73.3571(h)(1)(ii), should be modified to 

require that applicants in future AM 

broadcast auctions must at the time of 

filing meet basic technical eligibility 

criteria, including community of license 

coverage (day and night), and protection 

of co- and adjacent-channel stations and 

prior-filed applications (day and night). 

The Commission also tentatively 

concludes that the Rules should be 

modified to prohibit the amendment of 

applications that, at time of filing, are 

technically ineligible to proceed with 

auction processing, and prohibit 

applicants that propose such technically 

ineligible applications from 

participating in the auction. This 

proposal would preclude attempts to 

amend or correct data submitted in 

Form 175 or the tech box, including 

proposals to change community of 

license before an applicant has been 

awarded a construction permit. The 

Commission invites comment on this 

proposal. 

12. The Commission also proposes a 

number of smaller but significant rule 

and policy changes designed to 

streamline various allotment and 

assignment processes. One such 

proposed change is to codify the 

permissibility of non-universal 

settlements in mutually exclusive 

groups of AM filing window applicants. 

The broadcast auction anti-collusion 

rules apply generally upon the filing of 

a short-form application, and prohibit 

applicants from communicating with 

each other. Section 73.5002(d) of the 

Commission’s Rules, 47 CFR 73.5002(d), 

provides applicants in certain mutually 

exclusive application groups a limited 

opportunity to resolve conflicts by 

means of technical amendment or 

settlement. This exception to the anticollusion rules applies only to those 

groups that include either (1) At least 

one AM major modification; (2) at least 

one noncommercial educational 

application; or (3) applications for new 

stations in the secondary broadcast 

services. Currently, the rule neither 

prohibits the Commission from 

accepting non-universal technical 

amendments or settlement proposals— 

which reduce the number of applicants 

in a group but do not completely resolve 

the mutual exclusivities of that group— 

nor requires it to do so. The 

Commission tentatively concludes that 

the staff should be given delegated 

authority, at its discretion and where 

appropriate, to permit non-universal 

technical amendments and settlement 

proposals that make at least one 

application grantable. However, an 

applicant submitting a technical 

amendment pursuant to this policy 

must resolve all of its mutual 

exclusivities with respect to the other 

applications in the specified mutually 

exclusive group. If the applicant cannot 

resolve all of its own application’s 

mutual exclusivities, its amendment 

will not be accepted. The Commission 

invites comment on this tentative 

conclusion. 

13. The Commission’s experience 

with AM filing windows has suggested 

that many AM applicants may be filing 

multiple proposals merely to maximize 

their chances of having some granted 

without auction, circumventing auction 

participation. However, such a practice 

increases the likelihood of mutually 

exclusive applications, leads to large 

and technically complex mutually 

exclusive groups, and as discussed in 

connection with the proposal to require 

pre-auction study of application 

acceptability, may impose undue 

burdens on Commission staff. Therefore, 

the Commission seeks comment on 

whether to give the Media Bureau and 

Wireless Telecommunications Bureau 

delegated authority to determine, in an 

AM auction filing window, whether 

there should be a limit on the number 

of AM applications that may be filed by 

individual applicants and, if so, the 

appropriate application cap. The 

Bureaus routinely announce application 

filing procedures by public notice, and 

could announce application caps by 

public notice as well, as has been done 

in previous secondary service filing 

windows. Against the possibility that 

some applicants may seek to avoid cap 

limits by using affiliates or even sham 

entities, the Commission seeks comment 

on whether, under this proposal, it 

should apply Commission attribution 

standards to determine the number of 

filings submitted by any party. Should 

the Commission also adopt special 

attribution rules beyond those set forth 

in Note 2 to Section 73.3555 of the 

Commission’s Rules (47 CFR 73.3555)? 

The use of application caps could force 

applicants to focus on preferred 

proposals, deter speculation, and ease 

staff processing burdens, thereby 

facilitating more frequent filing 

windows, speedier processing of 

window-filed applications, and shorten 

the time between application filing and 

auction. On the other hand, a cap may 

restrict new entrants into markets and 

programming choices for listeners. The 

Commission seeks comment on whether 

allowing the Bureaus to impose 

application caps would be a useful 

mechanism to balance the competing 

interests in promoting new and 

expanded broadcast services and the 

statutory obligation to prevent abuses of 

Commission licensing procedures, 

including trafficking in new AM station 

construction permits. Finally, the 

Commission seeks comment on how 

application caps could impact small 

business entities. 

14. The Commission’s Rules currently 

provide, without exception, that each 

winning bidder in a broadcast auction 

must submit an appropriate long-form 

application within thirty (30) days 

following the close of bidding. This lack 

of flexibility has proven to be 

problematic as when, for example, the 

long-form filing date falls on or near 

major holidays. The Commission 

tentatively concludes that Section 

73.5005 of the Rules, 47 CFR 73.5005, 

should be modified to delegate authority 

to the Media Bureau and the Wireless 

Telecommunications Bureau to extend 

the filing deadline for the submission of 

long-form applications in broadcast 

auctions, as circumstances warrant. The 

Commission invites comment on this 

conclusion. 

15. The Commission also proposes to 

prohibit the practice of ‘‘band hopping’’ 

by applicants for FM translator stations. 

Many parties filed for translators in the 

non-reserved FM band (Channels 221– 

300) during the March 2003 Auction No. 

83 filing window. Despite the fact that 

the Commission is not accepting 

applications for new FM translator 

stations in the reserved band, a number 

of Auction No. 83 applicants have 

attempted to ‘‘hop’’ into the reserved 

band upon grant of their initial 

22504 Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 

construction permits by filing minor 

change applications that proposed 

changes to first-, second-, or thirdadjacent channels, or intermediate 

frequency channels. Upon relocation to 

a channel in the reserved band, such FM 

translators would be able to operate 

under the less restrictive NCE rules, 

which permit the use of alternative 

methods of signal delivery, such as 

satellite and terrestrial microwave 

facilities. The filing of such bandhopping applications by FM translator 

stations prior to construction of their 

facilities wastes staff resources and is 

patently unfair to those potential 

applicants that have waited for the 

opening of a reserved band FM 

translator window. The same problem 

can arise with applicants in the next 

reserved band FM translator window 

attempting to ‘‘hop’’ into the nonreserved band, while those waiting for 

a new non-reserved band window are 

precluded from applying. The 

Commission tentatively concludes, 

therefore, that Section 74.1233 of the 

Commission’s Rules, 47 CFR 74.1233, 

should be modified to prohibit this 

practice. Specifically, the Commission 

proposes to require that applications to 

move into the reserved band from the 

non-reserved band, or to move into the 

non-reserved band from the reserved 

band, may only be filed by FM 

translator stations that have filed license 

applications or are licensed, and that 

have been operating for at least two 

years. The Commission also tentatively 

concludes that there should be a 

holding period for new FM translator 

permittees before they are allowed to 

‘‘hop’’ from one band to the other, and 

that the holding period should be two 

years of on-air operation following the 

filing of a license application. The 

Commission solicits comment on these 

proposals, and as to the duration of the 

proposed holding period. 

16. Two AM applications filed during 

the same filing window are considered 

mutually exclusive if either fails to fully 

protect the other as required by the 

Commission’s technical rules. In Nelson 

Enterprises, Inc., 18 FCC Rcd 3414 

(2003), the Commission held that the 

staff properly calculated predicted 

nighttime interference levels, pursuant 

to Section 73.182(k) of the Rules, 47 

CFR 73.182(k), by considering 

interference caused to or received from 

other window-filed applications as well 

as to existing stations. It also rejected 

the contention that window-filed 

applications should not be considered 

mutually exclusive if they could be 

granted by processing them in a 

particular sequence and treating one 

application as having been ‘‘first filed,’’ 

and therefore entitled to cut-off 

protection. The Commission tentatively 

concludes that it should modify Section 

73.3571 of the Rules, 47 CFR 73.3571, 

to codify the Nelson Enterprises, Inc. 

decision, by explicitly providing that 

Section 73.182(k) interference standards 

are applicable in determining nighttime 

mutual exclusivity between applications 

to provide AM service that are filed in 

the same window. That is, two 

applications would be deemed to be 

mutually exclusive if either application 

would be subject to dismissal because it 

would enter the 25 percent limit of the 

other. It is anticipated that this rule 

change would promote the strict 

interference standard that the 

Commission has determined is 

necessary to revitalize the AM service. 

The Commission invites comment on 

this tentative conclusion. 

17. The Commission further proposes 

to clarify two aspects of the new entrant 

bidding credit, which is afforded to 

auction applicants with attributable 

interests in few or no media of mass 

communication. First, under Section 

73.5007(b) of the Commission’s Rules, 

47 CFR 73.5007(b), a winning bidder is 

not eligible for the bidding credit if it, 

or any party with an attributable interest 

in the winning bidder, has an 

attributable interest in any existing mass 

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

proposed new facility. The existing and 

proposed facilities are in the ‘‘same 

area’’ if the principal community 

contours of the two facilities would 

overlap. The Commission proposes to 

clarify that, for purposes of the new 

entrant bidding credit, the contour of a 

proposed new FM broadcast facility is 

defined by the maximum class facilities 

at the allotment site. Thus, for example, 

an applicant could not seek to avoid 

principal community contour overlap 

and, thereby, qualify for a credit, by 

specifying preferred site coordinates in 

its short-form application. Applying the 

same principle, a winning bidder found 

eligible for the new entrant bidding 

credit because there is no contour 

overlap between its existing facility and 

the proposed facility would not be 

required to reimburse the Commission 

if, in its long-form application, it were 

to employ a one-step upgrade to the 

proposed facility that would create an 

overlap with its existing station. Despite 

the overlap, there would be no 

diminishment to the applicant’s 

originally claimed bidding credit 

because the maximum class facilities at 

the original allotment site would control 

for purposes of the bidding credit. The 

Commission seeks comment on this 

proposal. Second, to prevent unjust 

enrichment by parties that acquire 

broadcast permits through the use of the 

bidding credit, Section 73.5007(c) of the 

Commission’s Rules, 47 CFR 73.5007(c), 

requires that such parties must 

reimburse the government for all or part 

of the credit, plus interest, upon a 

subsequent assignment or transfer of 

control of the permit or license, if the 

proposed assignee or transferee is not 

eligible for the same bidding credit. This 

rule is routinely applied to assignment 

or transfer of control applications filed 

on FCC Forms 314 and 315, 

respectively. The Commission 

tentatively concludes that the analysis 

should apply to assignments or transfers 

of control that are considered pro forma 

in nature and may be filed on FCC Form 

316. This is designed to eliminate 

confusion among applicants, because 

the rule as written does not distinguish 

between pro forma and non-pro forma 

assignments and transfers of control. 

The Commission seeks comment on this 

tentative conclusion. 

18. The Commission also proposes to 

clarify that an applicant’s maximum 

new entrant bidding credit eligibility is 

established as of the short-form filing 

deadline for a given auction filing 

window, but may be reduced based on 

events occurring after filing the Form 

175 short form application. This is 

especially true with regard to the postfiling acquisition of additional 

attributable interests in media of mass 

communication. Accordingly, the 

Commission proposes to amend Section 

73.5007(a) of the Rules, 47 CFR 

73.5007(a), to state unequivocally that 

the new entrant bidding credit 

eligibility set forth in an applicant’s FCC 

Form 175 application is the maximum 

eligibility for that auction, but that such 

bidding credit may be diminished based 

upon post-filing changes, and that such 

changes must be reported promptly. 

Under this proposal, final 

determinations regarding an applicant’s 

eligibility to hold a construction permit, 

including eligibility for the new entrant 

bidding credit, will continue to be made 

when the Commission is ready to grant 

the post-auction long-form construction 

permit application. In the event that an 

applicant’s eligibility for the new 

entrant bidding credit changes between 

the final payment deadline and the date 

on which the construction permit 

application is granted, the applicant 

would be required to make any 

additional payment prior to the issuance 

of the permit or license. 

14. Section 73.313(e) of the 

Commission’s Rules, 47 CFR 73.313(e), 

states that alternate methods for 

predicting FM contours may be 

Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 22505 

employed in cases where the terrain in 

one or more directions from the antenna 

site ‘‘departs widely’’ from the average 

elevation used by the staff in predicting 

contours. The standard method 

measures the average terrain in a 

segment of a given radial from three to 

16 kilometers from the antenna site, and 

assumes a terrain roughness factor of 50 

meters, which is considered to be 

representative of average terrain in the 

United States. Often, applicants will 

submit contour calculations using 

alternate prediction methods, usually to 

demonstrate that their proposed 

facilities will meet Commission 

technical standards, for example, those 

requiring certain levels of signal 

coverage of the community of license. 

The Commission proposes, in order to 

provide a measure of certainty to 

applicants, to codify the standards it has 

used informally since 2001 as the 

showings required in order to justify 

submission of contour calculations by 

methods other than the Commission’s 

standard methodology. These standards 

are, first, to consider that terrain departs 

widely when the antenna height above 

average terrain (‘‘HAAT’’) along a single 

radial in the direction of a community’s 

center, from three to 16 kilometers from 

the antenna site (i.e., the Commission’s 

standard measurement methodology), 

varies by more than 30 percent from the 

HAAT along the same radial, measured 

from three kilometers from the antenna 

site to the community’s outer boundary. 

Second, when there is line of sight 

coverage from the antenna to the 

community of license, the staff has 

found terrain to depart widely when the 

actual terrain roughness factor, 

measured along the radial running from 

the antenna site to the community 

center from a distance of 10 to 50 

kilometers from the antenna site, is less 

than or equal to 20 meters or greater 

than or equal to 100 meters (known as 

‘‘delta-h’’). If one of these two 

conditions is met, the staff will allow a 

contour showing using an alternate 

prediction method, provided that (a) the 

contour predicted by the alternate 

method is at least ten percent greater 

than that predicted by the standard 

methodology, and (b) for stations in the 

non-reserved FM band, the 70 dBμ 

principal community contour predicted 

by the alternate method is not greater 

than the 60 dBμ contour predicted by 

the standard methodology. The 

Commission proposes to set forth these 

guidelines in a note to Section 

73.313(e). The Commission notes that, 

because a principal community contour 

calculated using alternate prediction 

methods must be at least ten percent 

larger than the contour calculated using 

standard methodology, and because the 

60 dBμ principal community contour of 

an NCE FM station in the reserved band 

is the same as its protected contour (see 

47 CFR 73.509, 73.515), these guidelines 

preclude the use of alternate contour 

prediction methods for NCE FM stations 

in the reserved band. The Commission 

invites comment on this proposal, or on 

any modifications to, additions to, or 

substitutions for these guidelines. 

15. Comments and Reply Comments. 

Pursuant to §§ 1.415 and 1.419 of the 

Commission’s Rules (47 CFR 1.415, 

1.419), interested parties must file 

comments on or before July 13, 2009, 

and must file reply comments on or 

before August 11, 2009. Comments may 

be filed using: (1) The Commission’s 

Electronic Comment Filing System 

(ECFS); (2) the Federal Government’s 

eRulemaking Portal, or (3) by filing 

paper copies. 

16. Comments may be filed 

electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cbg/ecfs, or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the Web sites for 

submitting comments. For ECFS filers, if 

multiple docket or rulemaking numbers 

appear in the caption of this proceeding, 

filers must transmit one electronic copy 

of the comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Parties may also 

submit an electronic comment by 

Internet e-mail. To get filing instructions 

for e-mail comments, commenters 

should send an e-mail to ecfs@fcc.gov, 

and should include the following words 

in the body of the message, ‘‘get form.’’ 

A sample form and directions will be 

sent in response. 

17. Parties who choose to file by 

paper must file an original and four 

copies of each filing. If more than one 

docket or rulemaking number appears in 

the caption of this proceeding, filers 

must submit two additional copies for 

each additional docket or rulemaking 

number. Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service (although 

the Commission continues to experience 

delays in receiving U.S. Postal Service 

mail). All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. The Commission’s 

contractor will receive hand-delivered 

or messenger-delivered paper filings for 

the Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. Commercial 

overnight mail (other than U.S. Postal 

Service Express Mail and Priority Mail) 

must be sent to 9300 East Hampton 

Drive, Capitol Heights, MD 20743. U.S. 

Postal Service first-class mail, Express 

Mail, and Priority Mail should be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

18. Contact the FCC to request 

materials in accessible formats (Braille, 

large print, electronic files, audio 

format, etc.) by e-mail at 

FCC504@fcc.gov, or call the Consumer & 

Governmental Affairs Bureau at 202– 

418–0531 (voice), 202–418–7365 (TTY). 

19. The full text of the Notice of 

Proposed Rulemaking is available for 

inspection and copying during normal 

business hours in the FCC Reference 

Information Center, Room CY–A257, 

445 12th Street, SW., Washington, DC 

20554. The complete text may be 

purchased from the Commission’s copy 

contractor, Best Copy and Printing, Inc., 

445 12th Street, SW., Room CY–B402, 

Washington, DC 20554. The full text 

may also be downloaded at: http:// 

hraunfoss.fcc.gov/edocs_public/

attachmatch/CC-09-30.pdf. 

20. Ex Parte Rules. This proceeding 

will be treated as a ‘‘permit-butdisclose’’ proceeding subject to the 

‘‘permit-but-disclose’’ requirements 

under § 1.1206(b) of the Commission’s 

Rules (47 CFR 1.1206(b)). Ex parte 

presentations are permissible if 

disclosed in accordance with 

Commission Rules, except during the 

Sunshine Agenda period when 

presentations, ex parte or otherwise, are 

generally prohibited. Persons making 

oral ex parte presentations are reminded 

that a memorandum summarizing a 

presentation must contain a summary of 

the substance of the presentation and 

not merely a listing of the subjects 

discussed. More than a one- or twosentence description of the views and 

arguments presented is generally 

required. Additional rules pertaining to 

oral and written presentations are set 

forth in § 1.1206(b) of the Commission’s 

Rules. 

21. Initial Regulatory Flexibility 

Analysis. The Regulatory Flexibility Act 

of 1980, as amended (RFA), requires 

that a regulatory flexibility analysis be 

prepared for notice and comment rule 

making proceedings, unless the agency 

certifies that ‘‘the rule will not, if 

promulgated, have a significant 

22506 Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 

economic impact on a substantial 

number of small entities.’’ The RFA 

generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘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 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). 

22. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA) (5 U.S.C. 603), the Commission 

has prepared this Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

a substantial number of small entities by 

the policies and rules proposed in the 

NPRM. Written public comments are 

requested on this IRFA. Comments must 

be identified as responses to the IRFA 

and must be filed by the deadlines for 

comments on the NPRM provided 

herein. The Commission will send a 

copy of this entire NPRM, including this 

IRFA, to the Chief Counsel for Advocacy 

of the Small Business Administration 

(SBA). In addition, the NPRM and the 

IRFA (or summaries thereof) will be 

published in the Federal Register. 

23. Need For, and Objectives of, the 

Proposed Rules. This rulemaking 

proceeding is initiated to obtain 

comments concerning the Commission’s 

proposals to change its Rules regarding 

analysis and processing procedures for 

AM commercial applications subject to 

competitive bidding rules, and certain 

procedures for analyzing and processing 

proposals for new FM allotments and 

noncommercial educational FM channel 

assignments. Specifically, the NPRM 

proposes to add a presumption that a 

proposal that would cover more than 50 

percent of an Urbanized Area not be 

able to receive a dispositive Priority (3) 

preference if it proposes first local 

transmission service at a community in 

or adjacent to the Urbanized Area; 

proposes to eliminate Priority (4) 

preferences in AM auction applications 

except in extraordinary circumstances, 

such as when a defined service ‘‘floor’’ 

exists, an applicant proposes a Service 

Value Index 50 percent greater than a 

competing applicant, or an applicant 

proposes to provide third, fourth, or 

fifth reception service to a significant 

population, and to prohibit 

downgrading such service if an 

applicant receives a dispositive Section 

307(b) preference based on such a 

proposal; to limit or prohibit station 

community of license changes from 

rural, small, and underserved 

communities; to add a new Section 

307(b) priority for applications filed by 

members of, or entities owned by 

members of, federally recognized Native 

American and Alaska Native tribes; to 

require that AM auction applications be 

technically eligible for auction 

processing when the short form is filed; 

to allow non-universal settlements 

among certain mutually exclusive AM 

auction applicants; to delegate to the 

Media Bureau authority to cap the 

number of AM applications that may be 

filed, to be more flexible in setting filing 

deadlines for post-auction long-form 

applications, and to allow requests for 

dismissal of ‘‘tech box’’ information 

submitted with a short-form application; 

to prohibit FM translator licensees from 

‘‘hopping’’ from the reserved to nonreserved bands and vice-versa; and to 

codify or clarify the technical standards 

for determining AM nighttime mutual 

exclusivity among window-filed AM 

applications, application of the new 

entrant bidding credit unjust 

enrichment rule, and new entrant 

bidding credit eligibility. The 

Commission believes these proposals 

will speed the licensing process, better 

conform broadcast and auction 

ownership disclosure rules, promote the 

filing of technically sound applications, 

deter speculation, and encourage the 

fair distribution of broadcast licenses. 

24. Legal Basis. The authority for this 

proposed rulemaking is contained in 

sections 1, 2, 4(i), 303, and 307, of the 

Communications Act of 1934, 47 U.S.C. 

151, 152, 154(i), 303, and 307. 

25. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules Will Apply. The RFA 

directs the Commission to provide a 

description of and, where feasible, an 

estimate of the number of small entities 

that will be affected by the proposed 

rules. The RFA generally defines the 

term ‘‘small entity’’ as encompassing the 

terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

entity.’’ In addition, the term ‘‘small 

Business’’ has the same meaning as the 

term ‘‘small business concern’’ under 

the Small Business Act. A small 

business concern is one which: (1) Is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the Small Business 

Administration (SBA). 

26. Radio Stations. The proposed 

rules and policies potentially will apply 

to all AM and commercial FM radio 

broadcasting licensees and potential 

licensees. The SBA defines a radio 

broadcasting station that has $6 million 

or less in annual receipts as a small 

business. A radio broadcasting station is 

an establishment primarily engaged in 

broadcasting aural programs by radio to 

the public. Included in this industry are 

commercial, religious, educational, and 

other radio stations. Radio broadcasting 

stations that are primarily engaged in 

radio broadcasting and that produce 

radio program materials are similarly 

included. However, radio stations that 

are separate establishments and are 

primarily engaged in producing radio 

program material are classified under 

another SIC number. According to BIA 

Advisory Services, L.L.C., MEDIA 

Access Pro Database on March 17, 2009, 

10,884 (95%) of 11,404 commercial 

radio stations have revenue of $6 

million or less. However, many radio 

stations are affiliated with much larger 

corporations having much higher 

revenue. Our estimate, therefore, likely 

overstates the number of small entities 

that might be affected by any ultimate 

changes to the allocation and 

assignment rules. 

27. Description of Projected 

Reporting, Recordkeeping and Other 

Compliance Requirements. The 

proposed rule and procedural changes 

may impose some additional reporting 

requirements on existing and potential 

radio licensees and permittees, insofar 

as they would require or allow certain 

applicants to file new technical and 

population coverage information after 

the short form application (FCC 175) or 

in the noncommercial educational long 

form application (FCC 340). However, 

the forms to be filed would be existing 

FCC application forms with which 

broadcasters are already familiar, and 

the information requested to claim the 

tribal priority is similar to current 

Section 307(b) showings, so any 

additional burdens would be minimal. 

We seek comment on the possible cost 

burden these requirements would place 

on small entities. Also, we seek 

comment on whether a special approach 

toward any possible compliance 

burdens on small entities might be 

appropriate. 

28. Steps Taken to Minimize 

Significant Impact on Small Entities, 

and Significant Alternatives Considered. 

The RFA requires an agency to describe 

any significant alternatives that it has 

considered in reaching its proposed 

approach, which may include the 

following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

Federal Register / Vol. 74, No. 91 / Wednesday, May 13, 2009 / Proposed Rules 22507 

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. The Commission 

seeks comment on procedures to award 

commercial broadcast licenses through 

Section 307(b) analyses and competitive 

bidding that will, in most instances, 

reduce the burdens on all broadcasters, 

including small entities, compared to 

current procedures. The Commission 

further seeks comment on changes 

proposed in this NPRM to FM allotment 

procedures that may reduce the burdens 

on broadcasters, including small 

entities, or will not increase the burdens 

compared to current procedures. The 

Commission also seeks specific 

comments on the burden our proposals 

may have on small broadcasters. There 

may be unique circumstances these 

entities may face and we will consider 

appropriate action for small 

broadcasters at the time when a Report 

and Order is considered. 

29. Federal Rules Which Duplicate, 

Overlap, or Conflict With, the 

Commission’s Proposals. None. 

30. This document is available in 

alternative formats (computer diskette, 

large print, audio record, and Braille). 

Persons with disabilities who need 

documents in these formats may contact 

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

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

Brian.Millin@fcc.gov. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E9–11067 Filed 5–12–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0811201490–9322–02] 

RIN 0648–AX42 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Central Gulf of Alaska 

Rockfish Program; Amendment 85; 

Correction 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; extension of 

comment period; correction. 

SUMMARY: This document corrects an 

error in the regulatory text of a proposed 

rule published on April 6, 2009 (74 FR 

15420) and extends the proposed rule’s 

comment period by 30 days (from May 

21, 2009 to June 22, 2009). The 

proposed rule would implement 

Amendment 85 to the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska. The proposed rule 

would amend the Central Gulf of Alaska 

Rockfish Program to remove a 

restriction that prohibits certain catcher/ 

processors from participating in 

directed groundfish fisheries in the 

Bering Sea and Aleutian Islands 

Management Area in July. It incorrectly 

removes a similar restriction on such 

vessels participating in directed 

groundfish fishing in the Gulf of Alaska. 

This notice corrects the error in the 

proposed regulatory text. Amendment 

85 is necessary to improve flexibility 

and reduce operating costs for catcher/ 

processors that participate in the Central 

Gulf of Alaska Rockfish Program. 

DATES: Comments must be received by 

June 22, 2009. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments, identified by ‘‘RIN 0648– 

AX42,’’ by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal website at 

http://www.regulations.gov. 

• Mail: P. O. Box 21668, Juneau, AK 

99802. 

• Fax: 907–586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

portable document file (pdf) formats 

only. 

Copies of Amendment 85 to the 

Fishery Management Plan for 

Groundfish of the Gulf of Alaska, the 

proposed rule to implement 

Amendment 85, the Regulatory Impact 

Review (RIR), the Initial Regulatory 

Flexibility Analysis (IRFA), the 

categorical exclusion prepared for this 

action, and the Environmental 

Assessment (EA), RIR, and Final 

Regulatory Flexibility Analysis (FRFA) 

prepared for the Central Gulf of Alaska 

Rockfish Program are available from the 

NMFS Alaska Region at the address 

above or from the Alaska Region website 

at http://www.alaskafisheries.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Rachel Baker, 907–586–7228. 

SUPPLEMENTARY INFORMATION: The 

groundfish fisheries in the exclusive 

economic zone of the Gulf of Alaska 

(GOA) are managed under the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska (GOA FMP). The North 

Pacific Fishery Management Council 

prepared the GOA FMP under the 

authority of the Magnuson–Stevens 

Fishery Conservation and Management 

Act, 16 U.S.C. 1801 et seq. Regulations 

implementing the GOA FMP appear at 

50 CFR part 679. General regulations 

governing U.S. fisheries also appear at 

50 CFR part 600. 

NMFS proposed regulations to 

implement Amendment 85 to the GOA 

FMP on April 6, 2009 (74 FR 15420). 

Amendment 85 would amend the 

Central Gulf of Alaska Rockfish Program 

(Rockfish Program) to remove a 

restriction that prohibits certain catcher/ 

processors from participating in 

directed groundfish fisheries in the 

Bering Sea and Aleutian Islands (BSAI) 

in July. 

Need for Correction 

The regulations at 50 CFR 679.82(g)(3) 

prohibit certain catcher/processor 

vessels that participate in the Rockfish 

Program limited access fishery from 

participating in GOA and BSAI 

groundfish fisheries during a specific 

period of time in July. The proposed 

regulatory text incorrectly includes a 

provision to change the period of time 

that the prohibition against directed 

fishing in GOA groundfish fisheries is in 

effect. This incorrect proposed change is 

inconsistent with Amendment 85 to the 

GOA FMP. Amendment 85 would not 

change the prohibition against directed 

fishing in the GOA groundfish fisheries 

for certain catcher/processor vessels that 

participate in the Rockfish Program 

limited access fishery; it only would 

remove the prohibition against directed 

fishing by these vessels in the BSAI. 

This notice corrects the error in the 

proposed regulatory text by revising the 

paragraph (g)(3) to accurately reflect the 

intent of Amendment 85 and extends 

the comment period for the proposed 

rule to implement Amendment 85 to the