[Federal Register Volume 74, Number 100 (Wednesday, May 27, 2009)]
[Proposed Rules]
[Pages 25205-25208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12310]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket Nos. 07-294, 06-121, 02-277, 04-228; MM Docket Nos. 01-235, 
01-317, 00-244; FCC 09-33]


Promoting Diversification of Ownership in the Broadcasting 
Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Fourth Further Notice of Proposed Rulemaking (Fourth 
FNPRM) seeks comment on whether to modify FCC Form 323-E, the Ownership 
Report filed by noncommercial educational (NCE) licensees of AM, FM, 
and TV broadcast stations, to obtain gender, race, and ethnicity data. 
Obtaining the information, the FCC believes, would further its goal to 
design policies to advance diversity in the broadcast industry. The 
Fourth FNPRM also seeks comment on whether to collect gender, race and 
ethnicity ownership information for low power FM (LPFM) licensees or 
whether to continue to exempt LPFM licensees from the 323-E filing 
requirements.

DATES: Submit comments on or before June 26, 2009 and submit reply 
comment on or before July 13, 2009. Submit written comments on the PRA 
proposed information collection requirements on or before July 27, 
2009.

ADDRESSES: You may submit comments, identified by MB Docket Nos. 07-
294; 06-121; 02-277; 04-228; MM Docket Nos. 01-235; 01-317; 00-244, 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> Mail: Submit hand-delivery paper comments to the 
Commission's contractor at 236 Massachusetts Avenue, NE., Suite 110, 
Washington, DC 20002. Submit commercial overnight mail to 9300 East 
Hampton Drive, Capitol Heights, MD 20743. Submit U.S. Postal Service 
First-Class, Express, and Priority mail to 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#81c7c2c2b4b1b5c1e7e2e2afe6eef7"><span class="__cf_email__" data-cfemail="7e383d3d4b4e4a3e181d1d50191108">[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: Mania Baghdadi, (202) 418-2330; Amy 
Brett (202) 418-2300.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth 
FNPRM adopted April 8, 2009, and May 5, 2009. The full text of this 
document is available for public inspection and copying during regular 
business hours in the FCC Reference Center, Federal Communications 
Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These 
documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs). The complete text may be purchased from the Commission's copy 
contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. 
Submit PRA comments to Nicholas A. Fraser, Office of Management and 
Budget, by e-mail at <a href="/cdn-cgi/l/email-protection#37795e545f585b56446876196871455644524577585a551952584719505841"><span class="__cf_email__" data-cfemail="7f31161c1710131e0c203e5120390d1e0c1a0d3f10121d511a100f51181009">[email protected]</span></a> or via fax at 
(202) 395-5167 and to Cathy Williams, Federal Communications 
Commission, Room 1-C823, 445 12th Street, SW., Washington, DC or by e-
mail at <a href="/cdn-cgi/l/email-protection#c98aa8bda1b0e79ea0a5a5a0a8a4ba89afaaaae7aea6bf"><span class="__cf_email__" data-cfemail="baf9dbced2c394edd3d6d6d3dbd7c9fadcd9d994ddd5cc">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#ffafadbebf999c9cd1989089"><span class="__cf_email__" data-cfemail="9ececcdfdef8fdfdb0f9f1e8">[email protected]</span></a>.]

Filing Requirements

    Ex Parte Rules. The Fourth FNPRM will be treated as ``permit-but-
disclose'' subject to the ``permit-but-disclose'' requirements under 
Section 1.1206(b) of the Commission's rules. 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 Section 1.1206(b) of the Commission's rules.
    Comments and Reply Comments. Pursuant to sections 1.415 and 1.419 
of the Commission's rules, interested parties may file comments and 
reply comments on or before the dates indicated on the first page of 
this document. 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. Electronic Filers: 
Comments may be filed electronically using the Internet by accessing 
the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking 
Portal: http://www.regulations.gov. Filers should follow the 
instructions provided on the Web site 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, 
filers should send an e-mail to <a href="/cdn-cgi/l/email-protection#4421272237042227276a232b32"><span class="__cf_email__" data-cfemail="6a0f090c192a0c0909440d051c">[email protected]</span></a>, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.

[[Page 25206]]

    Paper Filers: 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 mail (although the FCC 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 between 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.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an e-mail to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="c0a6a3a3f5f0f480a6a3a3eea7afb6">[email protected]</a> or call the 
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 
418-0432 (TTY). Persons with disabilities who need assistance in the 
FCC Reference Center may contact Bill Cline at (202) 418-0267 (voice), 
(202) 418-0432 (TTY), or <a href="/cdn-cgi/l/email-protection#1a7873767634797673747f5a7c7979347d756c"><span class="__cf_email__" data-cfemail="c7a5aeababe9a4abaea9a287a1a4a4e9a0a8b1">[email protected]</span></a>.
    Availability of Documents. Comments, reply comments, and ex parte 
submissions will be available for public inspection during regular 
business hours in the FCC Reference Center, Federal Communications 
Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These 
documents also will be available from the Commission's Electronic 
Comment Filing System. Documents are available electronically in ASCII, 
Word 97, and Adobe Acrobat. Copies of filings in this proceeding may be 
obtained from Best Copy and Printing, Inc., Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554; they can also be 
reached by telephone, at (202) 488-5300 or (800) 378-3160; by e-mail at 
<a href="/cdn-cgi/l/email-protection#94f2f7f7d4f6f7e4fde3f1f6baf7fbf9"><span class="__cf_email__" data-cfemail="6006030320020310091705024e030f0d">[email protected]</span></a>; or via their Web site at http://www.bcpiweb.com.

Summary of the Fourth Further Notice of Proposed Rulemaking

    1. Noncommercial Entities. The FCC Form 323-E Ownership Report is 
filed by NCE licensees of AM, FM, and TV broadcast stations. Currently, 
Form 323-E does not ask gender, race, or ethnicity data questions. The 
FCC seeks comment on whether to include this information on the form. 
The FCC tentatively concludes that obtaining gender, race, and 
ethnicity information would further its goal to design policies to 
advance diversity in the broadcast industry. The FCC believes that data 
from the entire universe of NCE stations are necessary to provide a 
comprehensive picture of broadcast ownership, including ownership by 
women and minorities in the broadcast industry. Researchers and the GAO 
support modifying the filing requirements to collect ownership data for 
NCE stations.
    2. The FCC recognizes, however, that there are a number of data 
collection issues that could thwart its efforts to obtain minority and 
gender data due to the complex ownership structure of some NCE 
licensees. Many NCE broadcast licensees are non-profit, non-stock 
entities, or governmental organizations that are controlled by 
governing boards or trustees composed of members who do not have a 
financial stake in the licensee organization. Their structure and 
organization raise difficult issues as to how to define ownership in 
the NCE context.
    3. The FCC seeks comment on how to define ownership, including 
minority and/or female ownership, in the NCE context. The FCC 
recognizes that organizational documents are important in defining an 
NCE entity's structure and mission, including whether it serves 
underserved audiences. However, these documents would not provide the 
same kind of empirical evidence that ownership statistics provide in 
the commercial context. The FCC asks whether looking at the composition 
of the board of directors or other governing entity of an NCE station 
would be adequate for this purpose. It also asks whether that 
information would meaningfully expand its information on minority and 
female ownership. In addition, the FCC seeks comment on any potential 
reporting and recordkeeping burdens on NCE entities. It asks whether 
difficulties in defining ownership in this context would compromise the 
integrity of the data and whether there are ways to minimize burdens on 
NCEs from this proposed reporting requirement. Assuming the FCC decides 
to seek information as to minority and female ``ownership'' of NCE 
licensees, it also seeks comment on whether to adopt the same or 
similar modifications to Form 323-E that are adopted in the 
accompanying Order for Form 323. For instance, it seeks comment on 
whether to establish a uniform biennial filing date and a uniform date 
as of which filers must identify ownership interests. It also seeks 
comment as to how to assure data quality, including whether measures 
such as improving the computer interface process, building in 
additional checks for Form 323-E to perform verification and review 
functions, and ensuring that all data filed is in a format that can be 
electronically searched, aggregated, and cross-referenced, are 
appropriate and sufficient.
    4. LPFM licensees and permittees are currently exempt from filing 
Form 323-E. As of December 31, 2008, there are 859 LPFM licensees, all 
of which are NCE entities. The FCC seeks comment on whether to require 
LPFM licensees to file Form 323-E as the FCC proposes to revise it, to 
collect minority and gender information for LPFM licensees or to 
continue to exempt LPFM licensees from the 323-E filing requirements. 
The FCC seeks comment on whether the exclusion of any NCE ownership 
information, such as information on LPFM licensees, would diminish the 
usefulness of the new data. The FCC also invites comment as to whether 
it would be burdensome for LPFM licensees to report this information 
and, if so, how burdensome. If the FCC decides to collect this data 
from LPFM licensees, it seeks comment on whether LPFM licensees should 
be required to file Form 323-E or another shorter form that only seeks 
minority and gender ownership information.

Initial Paperwork Reduction Act Analysis

    5. The Fourth FNPRM contains potential information collection 
requirements subject to the Paperwork Reduction Act of 1995 (``PRA''), 
Public Law 104-13. OMB, the general public, and other Federal agencies 
are invited to comment on the potential new and modified information 
collection requirements contained in this Fourth FNPRM. If the 
information collection requirements are adopted, the Commission will 
submit the appropriate documents to the Office of Management and Budget 
(OMB) for review under Section 3507(d) of the PRA and OMB, the general 
public, and other Federal agencies will again be invited to comment on 
the new and modified information collection requirements adopted by the 
Commission. 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

[[Page 25207]]

automated collection techniques or other forms of information 
technology. Pursuant to the Small Business Paperwork Relief Act of 
2002, Ex. Public Law 107-98, see 44 U.S.C. 3506(c)(4), the FCC seeks 
specific comment on how it might ``further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.''

Initial Regulatory Flexibility Analysis

    6. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''), the Commission has prepared an Initial Regulatory 
Flexibility Analysis (``IRFA'') of the possible economic impact on 
small entities by the policies and rules proposed in this Fourth FNPRM. 
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 Fourth FNPRM. The Commission will send a copy of 
the Fourth FNPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (``SBA'').

A. Need for, and Objectives of, the Proposed Rules

    7. The Fourth FNPRM invites comment on proposed revisions to FCC 
Form 323-E, which would for the first time collect information on 
minority and female ownership of noncommercial radio and television 
licensees. The objective of the information collection is to obtain 
comprehensive ownership data to further the Commission's goal to design 
policies to advance diversity in the broadcast industry. In addition, 
the Fourth FNPRM seeks comment on whether to require LPFM licensees, 
which are noncommercial broadcast licensees, to file Form 323-E on a 
biennial basis and to file information as to their minority and female 
ownership.

B. Legal Basis

    8. This Fourth FNPRM is adopted pursuant to sections 1, 2(a), 3, 
4(i, j), 257, 301, 303(r), 307-10, and 614-15 of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 152(a), 153, 154(i, j), 257, 301, 
303(r), 307-10, 534-35.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    9. The RFA directs agencies to provide a description of, and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental entity'' 
under Section 3 of the Small Business Act. 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 SBA.
    10. Television Broadcasting. The rules and policies proposed herein 
apply to licensees of noncommercial television stations, as well as 
potential licensees of noncommercial television stations. In this 
context, the application of the statutory definition to television 
stations is of concern. The Small Business Administration defines a 
television broadcasting station that has no more than $14 million in 
annual receipts as a small business. Business concerns included in this 
industry are those ``primarily engaged in broadcasting images together 
with sound.'' According to Commission staff review of the BIA Financial 
Network, Inc. Media Access Pro Television Database as of February 19, 
2009 there are about 392 noncommercial television stations. The FCC 
does not have revenue data or revenue estimates for these stations. 
These stations rely primarily on grants and contributions for their 
operations, so the FCC will assume that all of these entities qualify 
as small businesses. In assessing whether a business entity qualifies 
as small under the above definition, business control affiliations must 
be included. The FCC is unable to include or aggregate revenues from 
affiliated companies or entities so its assumption may overstate the 
number of small entities that might be affected by the proposal to 
require these entities to file Form 323-E.
    11. An element of the definition of ``small business'' is that the 
entity not be dominant in its field of operation. The Commission is 
unable at this time and in this context to define or quantify the 
criteria that would establish whether a specific noncommercial 
television station is dominant in its market of operation. Accordingly, 
the foregoing estimate of small businesses to which the proposed 
information collection may apply does not exclude any television 
stations from the definition of a small business on this basis and is 
therefore over-inclusive to that extent. An additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. It is difficult at times to assess 
this criterion in the context of media entities, and the Commission's 
estimate of small businesses to which the proposed information 
collection may apply may be over-inclusive to this extent.
    12. Radio Broadcasting. The rules and policies proposed herein 
apply to licensees of noncommercial radio stations, as well as to 
potential licensees of noncommercial radio stations. The Small Business 
Administration defines a radio broadcasting entity that has $7 million 
or less in annual receipts as a small business. Business concerns 
included in this industry are those ``primarily engaged in broadcasting 
aural programs by radio to the public.'' According to Commission staff 
review of the BIA Financial Network, Inc. Media Access Pro Radio 
Analyzer Database as of February 19, 2009 there are about 3,141 
noncommercial radio stations. The FCC does not have revenue data or 
revenue estimates for these stations. These stations rely primarily on 
grants and contributions for their operations, so it will assume that 
all of these entities qualify as small businesses. In assessing whether 
a business entity qualifies as small under the above definition, 
business control affiliations must be included. The FCC is unable to 
include or aggregate revenues from affiliated companies or entities so 
its assumption may overstate the number of small entities that might be 
affected by the proposal to require these entities to file Form 323-E.
    13. In this context, the application of the statutory definition to 
radio stations is of concern. An element of the definition of ``small 
business'' is that the entity not be dominant in its field of 
operation. The FCC is unable at this time and in this context to define 
or quantify the criteria that would establish whether a specific radio 
station is dominant in its field of operation. Accordingly, the 
foregoing estimate of small businesses to which the rules may apply 
does not exclude any radio station from the definition of a small 
business on this basis and is therefore over-inclusive to that extent. 
An additional element of the definition of ``small business'' is that 
the entity must be independently owned and operated. The FCC notes that 
it is difficult at times to assess this criterion in the context of 
media entities, and its estimate of small businesses to which the 
proposed information collection may apply may be over-inclusive to this 
extent.
    14. Low Power FM Stations. The proposed information collection 
could affect licensees of low power FM (LPFM) stations, as well as 
potential licensees in this radio service. The same

[[Page 25208]]

SBA definition that applies to radio broadcast licensees would apply to 
these stations. The SBA defines a radio broadcast station as a small 
business if such station has no more than $7 million in annual 
receipts. As of December 31, 2008, there are approximately 859 licensed 
LPFM stations. Given the nature of these services, the FCC will presume 
that all of these licensees qualify as small entities under the SBA 
definition.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    15. The Fourth FNPRM seeks comment on whether to revise Form 323-E, 
the ownership report for noncommercial educational broadcast licensees, 
to include minority and gender information. Therefore, the rules might 
contain modified information collections for noncommercial broadcast 
licensees. The FCC anticipates that changes in reporting or 
recordkeeping requirements for noncommercial broadcast entities would 
result from the changes in the Commission's Form 323-E necessary to 
implement the proposal to collect gender, race or ethnicity data. In 
addition, the FCC anticipates that changes in reporting or 
recordkeeping requirements for LPFM licensees would result from new 
323-E filing requirements. The Fourth FNPRM also seeks comment on 
whether to require low power FM (LPFM) licensees to file, on a biennial 
basis, Ownership Report, Form 323-E. Therefore, the rules might contain 
modified information collections for LPFM licensees.

E. Steps Taken To Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered

    16. The RFA requires an agency to describe any significant 
alternatives that might minimize any significant economic impact on 
small entities. Such alternatives 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 and 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities.
    17. As noted, the FCC is directed under law to describe any such 
alternatives it considers, including alternatives not explicitly listed 
above. The Fourth FNPRM seeks comment on the tentative conclusion that 
obtaining gender and racial/ethnic information from all noncommercial 
stations would further the FCC's goal to design policies to advance 
diversity in the broadcast industry. In the alternative, the Commission 
could defer until a later time collection of such information. The 
Fourth FNPRM also seeks comment on whether the proposed data collection 
would impose a significant reporting, recordkeeping, or other 
compliance burden on noncommercial entities, especially smaller 
noncommercial entities, and whether there are alternative ways to 
minimize burdens on NCEs from this proposed reporting requirement. In 
particular, the Fourth FNPRM recognizes that organizational documents 
are important in defining a noncommercial entity's structure and 
mission, including whether it serves underserved audiences. However, 
the Fourth FNPRM notes that these documents would not provide the same 
kind of empirical evidence that ownership statistics provide in the 
commercial context. Therefore, the Fourth FNPRM asks whether looking at 
the composition of the board of directors or, in the alternative, some 
other governing entity of a noncommercial station would be adequate for 
this purpose and whether the information would meaningfully expand the 
FCC's information on minority and female ownership. In addition, the 
Fourth FNPRM asks whether to establish a uniform biennial filing date 
and a uniform date as of which filers must identify ownership 
interests. In addition, the Fourth FNPRM asks how to assure data 
quality, including whether improving the computer interface process, 
building in additional checks for Form 323-E to perform verification 
and review functions, and ensuring that all data filed is in a format 
that can be electronically searched, aggregated, and cross-referenced, 
are appropriate and sufficient. The Fourth FNPRM also seeks comment on 
the extent of the burden on LPFM licensees, all of which are smaller 
noncommercial entities. The Commission especially encourages small 
entities to comment on the proposals in the Fourth FNPRM in this 
proceeding. The Commission welcomes comment, including presentation of 
alternatives to or modifications of rules proposed herein, on how to 
minimize any burdens on small business licensees.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    None.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E9-12310 Filed 5-26-09; 8:45 am]
BILLING CODE 6712-01-P


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