[Federal Register Volume 74, Number 91 (Wednesday, May 13, 2009)]
[Proposed Rules]
[Pages 22498-22507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11067]


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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.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#bdd8dedbcefddbdede93dad2cb"><span class="__cf_email__" data-cfemail="b1d4d2d7c2f1d7d2d29fd6dec7">[email protected]</span></a>. 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.
    <bullet> Mail: 445 12th Street, SW., Washington, DC 20554.
    <bullet> People With Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#35737676000501755356561b525a43"><span class="__cf_email__" data-cfemail="6f292c2c5a5f5b2f090c0c41080019">[email protected]</span></a> 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 
<a href="/cdn-cgi/l/email-protection#a8ebc9dcc0d186ffc1c4c4c1c9c5dbe8cecbcb86cfc7de"><span class="__cf_email__" data-cfemail="baf9dbced2c394edd3d6d6d3dbd7c9fadcd9d994ddd5cc">[email protected]</span></a>.

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 for-profit 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

[[Page 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 
<a href="/cdn-cgi/l/email-protection#acefcdd8c4d582fbc5c0c0c5cdc1dfeccacfcf82cbc3da"><span class="__cf_email__" data-cfemail="2b684a5f4352057c424747424a46586b4d4848054c445d">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#bbebe9fafbddd8d895dcd4cd"><span class="__cf_email__" data-cfemail="164644575670757538717960">[email protected]</span></a>; and also to Nicholas A. Fraser 
of the Office of Management and Budget (OMB), via Internet at 
<a href="/cdn-cgi/l/email-protection#ce80a7ada6a1a2afbd918fe09188bcafbdabbc8ea1a3ace0aba1bee0a9a1b8"><span class="__cf_email__" data-cfemail="602e0903080f0c01133f214e3f261201130512200f0d024e050f104e070f16">[email protected]</span></a> 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).

[[Page 22500]]

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

[[Page 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

[[Page 22502]]

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?

[[Page 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 anti-collusion 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

[[Page 22504]]

construction permits by filing minor change applications that proposed 
changes to first-, second-, or third-adjacent 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 band-hopping 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 non-reserved 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 post-
filing 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

[[Page 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 dB[micro] 
principal community contour predicted by the alternate method is not 
greater than the 60 dB[micro] 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 dB[micro] 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 Sec. Sec.  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 <a href="/cdn-cgi/l/email-protection#f792949184b7919494d9909881"><span class="__cf_email__" data-cfemail="086d6b6e7b486e6b6b266f677e">[email protected]</span></a>, 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 <a href="/cdn-cgi/l/email-protection#8dcbceceb8bdb9cdebeeeea3eae2fb"><span class="__cf_email__" data-cfemail="5c1a1f1f696c681c3a3f3f723b332a">[email protected]</span></a>, 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-
but-disclose'' proceeding subject to the ``permit-but-disclose'' 
requirements under Sec.  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 two-sentence description of the 
views and arguments presented is generally required. Additional rules 
pertaining to oral and written presentations are set forth in Sec.  
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

[[Page 22506]]

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 non-reserved 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

[[Page 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 <a href="/cdn-cgi/l/email-protection#3f7d4d565e51117256535356517f595c5c11585049"><span class="__cf_email__" data-cfemail="b6f4c4dfd7d898fbdfdadadfd8f6d0d5d598d1d9c0">[email protected]</span></a>.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E9-11067 Filed 5-12-09; 8:45 am]
BILLING CODE 6712-01-P


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