[Federal Register Volume 60, Number 147 (Tuesday, August 1, 1995)]
[Proposed Rules]
[Pages 39134-39136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18802]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR PART 1

[MM Docket No. 95-110; FCC 95-277]


Broadcast Services; Allocations; Automatic Stay

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rule making.

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SUMMARY: This Notice of Proposed Rule Making proposes to delete the 
automatic stay provision in Section 1.420(f) of the Commission's rules. 
That rule applies to proposals to amend the FM and TV Tables of 
Allotments and provides for 

[[Page 39135]]
an automatic stay upon the filing of a petition for reconsideration of 
any Commission order modifying an authorization to specify operation on 
a different channel. The purpose of the proposed amendment is to remove 
any incentive to challenge an agency order simply to delay institution 
of expanded service by a competitor, and to expedite provision of 
improved service to the public.

DATES: Comments are due by August 28, 1995, and reply comments are due 
by September 12, 1995.

ADDRESSES: Federal Communications Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Kim Matthews (202-739-0774), Mass 
Media Bureau.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Notice of Proposed Rule Making (NPRM) in MM Docket No. 95-110, adopted 
July 10, 1995, and released July 21, 1995. The complete text of this 
NPRM is available for inspection and copying during normal business 
hours in the FCC Reference Center (Room 239), 1919 M Street, NW., 
Washington, DC, and also may be purchased from the Commission's copy 
contractor, International Transcription Service, (202) 857-3800, 2100 M 
Street, NW., Suite 140, Washington, DC 20037.

Synopsis of Notice of Proposed Rule Making

    1. With this Notice of Proposed Rule Making (NPRM), the Commission 
proposes to delete that portion of Section 1.420(f) of its rules, 47 
CFR 1.420(f), which provides for an automatic stay, upon the filing of 
a petition for reconsideration, of any Commission order modifying an 
authorization to specify operation on a different channel. The purpose 
of the proposed amendment is to remove an apparent incentive for the 
filing of petitions for reconsideration that are largely without merit 
and to expedite provision of expanded service to the public.
    2. Section 1.420(f) provides, in pertinent part:

* * * The filing of a petition for reconsideration of an order 
modifying an authorization to specify operation on a different 
channel shall stay the effect of a change in the rules pending 
action of the petition.

    3. Although Section 1.420(f) refers only to petitions for 
reconsideration, the Commission staff has also applied the automatic 
stay to orders challenged by applications for review.\1\ Our proposal 
to delete the automatic stay provision for petitions for 
reconsideration would also eliminate automatic stays in the context of 
applications for review.

    \1\See Arlington TX, 6 FCC Rcd 2050, 2051 n. 2 (1991).
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    4. The automatic stay was adopted by the Commission in 1975 as part 
of a provision that requires service of petitions for reconsideration 
in proceedings for amendment of the FM and TV Tables of Allotments on 
any licensee or permittee whose authorized frequency could be changed. 
Thus, it is apparent that the automatic stay was intended to help 
ensure that affected parties have the opportunity to comment before 
proposed modifications to their authorizations become effective.
    5. Our intent in proposing to delete the automatic stay provision 
is to discourage parties from filing meritless petitions for 
reconsideration or applications for review that can substantially delay 
implementation of improved broadcast service. It is our experience that 
parties increasingly are filing challenges to approvals of their 
competitor's proposals to improve service, thereby triggering the 
automatic stay. Only a very small percentage of these petitions or 
applications for review are ultimately successful. Because the stay 
prohibits licensees from constructing modified facilities authorized by 
the Commission until final resolution of any outstanding 
reconsideration or application for review,\2\ or until the stay is 
lifted, the stay provides an incentive for parties to challenge agency 
approval of a competitor's modification proposal simply to forestall 
institution of new competitive service. These petitions cause 
unjustifiable expense for parties and absorb valuable staff resources.

    \2\See, e.g., Arlington, TX, supra n. 1.
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    6. Elimination of the automatic stay would facilitate 
implementation of improved service to licensee communities, thereby 
promoting more efficient use of broadcast spectrum and resulting in 
significant public interest benefits. Because Section 1.420(f) will 
continue to require that petitions for reconsideration be served on any 
licensee or permittee whose authorization could be modified, the rights 
of these interested parties to be affirmatively informed of actions 
potentially affecting their interests will continue to be protected.
    7. Elimination of the automatic stay, while allowing licensees to 
commence construction and operation of their modified facilities, would 
not prejudice final resolution of any challenges to the initial staff 
decision. Licensees who proceed, where feasible, to construct and 
operate new facilities in instances in which a petition for 
reconsideration or application for review is pending bear the risk of 
an adverse final decision, and must take whatever steps are necessary 
to comply with the final order. Moreover, the Commission retains the 
authority to impose a stay in individual cases where circumstances 
warrant.\3\

    \3\See 47 CFR 1.102(b), 1.106(n), and 1.115(h).
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    8. We propose both to eliminate the automatic stay in prospective 
cases, and to lift the stay with respect to any petitions for 
reconsideration or applications for review pending as of the effective 
date of the Report and Order in this proceeding. We believe that 
lifting the stay in pending cases will further our objective of 
expediting provision of improved service to the public. We invite 
comment on this second aspect of our proposal in particular, as well as 
on our general proposal to eliminate the automatic stay.

Administrative Matters

    9. Pursuant to applicable procedures set forth in Sections 1.415 
and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested 
parties may file comments on or before August 28, 1995 and reply 
comments on or before September 12, 1995. To file formally in this 
proceeding, you must file an original and four copies of all comments, 
reply comments, and supporting comments. If you want each Commissioner 
to receive a personal copy of your comments, you must file an original 
plus nine copies. You should send comments and reply comments to Office 
of the Secretary, Federal Communications Commission, Washington, DC 
20554. Comments and reply comments will be available for public 
inspection during regular business hours in the FCC Reference Center 
(Room 239), 1919 M Street, NW., Washington, DC 20554.
    10. This is a non-restricted notice and comment rulemaking 
proceeding. Ex parte presentations are permitted, except during the 
Sunshine Agenda period, provided they are disclosed as provided in the 
Commission's rules. See 47 CFR 1.1202, 1.1203, and 1.1206(a).

Initial Regulatory Flexibility Analysis
    11. Reason for Action: This proceeding was initiated to improve 
Commission procedures governing proposals to amend the FM and TV Tables 
of Allotments.

[[Page 39136]]

    12. Objectives of the Action: The actions proposed in the Notice 
are intended to reduce the workload in the Allocations Branch of the 
Policy and Rules Division of the FCC's Mass Media Bureau by eliminating 
an apparent incentive to challenge agency approval of another station's 
modification proposal.
    13. Legal Basis: The proposed action is authorized under sections 4 
and 303 of the Communications Act of 1934, as amended. 47 U.S.C. 
Secs. 154, 303.
    14. Reporting, Record-keeping and Other Compliance Requirements: 
None.
    15. Federal Rules which Overlap, Duplicate or Conflict with the 
Proposed rule: None.
    16. Description, Potential Impact and Number of Small Entities 
Involved: Approximately 11,000 existing television and radio 
broadcasters of all sizes may be affected by the proposals contained in 
this Notice.
    17. Any Significant Alternatives Minimizing the Impact on Small 
Entities and Consistent with the Stated Objectives: The proposals 
contained in this Notice do not impose additional burdens on small 
entities.
    18. As required by Section 603 of the Regulatory Flexibility Act, 
the Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the expected impact on small entities of the proposals 
suggested in this document. The IRFA is set forth above. Written public 
comments are requested on the IRFA. These comments must be filed in 
accordance with the same filing deadlines as comments on the rest of 
the Notice, but they must have a separate and distinct heading 
designating them as responses to the Initial Regulatory Flexibility 
Analysis. The Secretary shall send a copy of the Notice of Proposed 
Rule Making, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration in 
accordance with paragraph 603(a) of the Regulatory Flexibility Act. 
Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. Section 601 et seq (1981).

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 95-18802 Filed 7-31-95; 8:45 am]
BILLING CODE 6712-01-M