[Federal Register Volume 62, Number 187 (Friday, September 26, 1997)]
[Rules and Regulations]
[Pages 50518-50522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25272]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 96-120; FCC 97-276]


Grandfathered Short-Spaced FM Stations

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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[[Page 50519]]

SUMMARY: This Report and Order (R&O) in MM Docket No. 96-120 modifies a 
current rule to permit certain short-spaced stations to make changes 
based on a showing that no interference is caused or received, or if 
interference already exists, based on the total of such interference 
not being increased. The R&O also permits certain stations short-spaced 
to a second-adjacent-channel or a third-adjacent-channel station to 
change transmitter location or other station facilities without regard 
to such short-spacing, and to eliminate the need to obtain agreements 
by grandfathered stations proposing increased facilities. The types of 
modifications for this revised rule are expected to have no potential 
to increase interference to other stations.

EFFECTIVE DATE: November 25, 1997.

ADDRESSES: Office of the Secretary, Federal Communications Commission, 
1919 M Street, NW., Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT: James Bradshaw, Mass Media Bureau, 
Audio Services Division, (202) 418-2720, or via the Internet at 
[email protected]. For additional information concerning the information 
collections contained in the R&O, contact Judy Boley at (202) 418-0214, 
or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is the synopsis of the Commission's 
Report and Order in MM Docket No. 96-120, adopted August 4, 1997, and 
released August 8, 1997.
    The complete text of this R&O, which was adopted in MM Docket No. 
96-120, is available for inspection and copying during normal business 
hours in the FCC Reference Center (Room 239), 1919 M Street, N.W., 
Washington, DC, and may also be purchased from the Commission's copy 
contractor, International Transcription Services, Inc., at (202) 857-
3800, 2100 M Street, N.W., Suite 140, Washington, DC 20037.

Synopsis of the Report and Order

    1. In the R&O, the Commission streamlines the Commission's rules 
specifically dealing with modifications of commercial FM stations that 
became short-spaced in 1964, and have remained short-spaced since that 
time. The R&O modifies portions of part 73 of the rules to lift 
restrictions which unnecessarily impede flexibility as to site 
selection for grandfathered stations and substitute the currently 
required interference showings in applications, which have proven 
ineffective, with showings that directly relate to the impact such 
modification proposals have on other stations and the public.
    2. In the R&O, the Commission changes three aspects of the rule 
section dealing with grandfathered short-spaced stations. First, the 
Commission approves use of predicted interference area analysis based 
on field strength protection ratios, instead of the current limitation 
based on the relative locations of the 1 mV/m (60 dBu) service contour 
of the short-spaced stations. Second, the Commission eliminates the 
second-adjacent-channel and third-adjacent-channel protection criteria 
for grandfathered short-spaced stations. Finally, the Commission 
eliminates the provision for agreements between grandfathered short-
spaced stations.
    3. The rules set forth in the R&O puts the focus on more accurately 
evaluating and controlling interference. The rules also return some 
flexibility when stations with second-adjacent-channel or third-
adjacent-channel grandfathered short-spacings propose modifications. 
And for stations with co-channel or first-adjacent-channel 
grandfathered short-spacings, the rules allow for a more accurate 
determination of predicted interference. In addition, the rules 
eliminate the Commission's policy regarding agreements between 
grandfathered stations.

Final Paperwork Reduction Act of 1995 Analysis

    4. This R&O contains new or modified information collections 
subject to the Paperwork Reduction Act of 1995 (``PRA''). It has been 
submitted to the Office of Management and Budget (``OMB'') for review 
under the PRA.
    OMB Control Number: 3060-0727.
    Title: R&O: Grandfathered Short-Spaced FM Stations.
    Form Number: 301/340.
    Type of Review: Revision of a currently approved collection.
    Affected Public: Business or other for-profit, not-for-profit 
institutions.
    Number of Respondents: 15 FM broadcast licensees.
    Estimated time per response: 5 hours per showing (0.5 hours 
consultation time/4.5 hours contracting time); 0.083 hours per 
disclosure.
    Annual Burden: 9 hours.
    Needs and Uses: This R&O eliminates unnecessary regulations and 
streamlines the current method of modifying pre-1964 grandfathered 
short-spaced FM stations. This R&O lifts restrictions which 
unnecessarily impede flexibility as to site selection for grandfathered 
stations and substitutes the currently required interference showings 
in applications with showings that directly relate to the impact such 
modification proposals have on other stations and the public. The data 
are used by Commission staff to determine if the public interest will 
be served and that existing levels of interference will not be 
increased to other stations. The Commission adopted two of the 
proposals as set forth in the NPRM. The third proposal was adopted as 
proposed but a disclosure requirement was added that requires that a 
copy of any application for co-channel or first-adjacent channel 
stations proposing predicted interference caused in any area where 
interference is not currently predicted to be caused must be served 
upon the licensee(s) of the affected short-spaced station(s).

Final Regulatory Flexibility Analysis

    5. As required by the Regulatory Flexibility Act 1 
(RFA), the Commission considered regulatory flexibility issues in the 
NPRM in this proceeding, Grandfathered Short-Spaced FM Stations. 
2 The Commission sought written public comments on the 
proposals in the NPRM. The Commission's Final Regulatory Flexibility 
Analysis (FRFA) in this R&O conforms to the RFA as amended. 
3
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    \1\ See 5 U.S.C. 603.
    \2\ Notice of Proposed Rulemaking in MM Docket No. 96-120, 61 FR 
33474 (June 14 , 1996).
    \3\ See 5 U.S.C. 604. The Regulatory Flexibility Act, see 5 
U.S.C. 601 et. seq. has been amended by the Contract with America 
Advancement Act of 1996, Public Law 104-121, 110 Stat. 847 (1996) 
(CWAAA). Title II of the CWAAA is the ``Small Business Regulatory 
Enforcement Fairness Act of 1996'' (SBREFA). We note that the NPRM 
was issued prior to enactment of the amendments to the RFA in the 
SBREFA.
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A. Need For and Objectives of the Rules

    6. The Commission's Rules currently require pre-1964 grandfathered 
short-spaced stations proposing transmitter site changes or facility 
modifications to demonstrate that the proposed 1 mV/m field strength 
contour is not extended toward the 1 mV/m field strength contour of any 
station to which it is short-spaced. This rule was found to be overly 
restrictive, and open to multiple interpretations. The Commission 
therefore proposed revisions to its broadcast regulations to replace 
the current rule with a simple rule based on straight-forward 
interference prediction methods, and to eliminate spacing requirements 
for second and third-adjacent channel grandfathered stations.
    7. By making these changes, grandfathered stations will have the 
maximum flexibility when changing transmitter site or proposing 
facility modifications. Any such changes must be made by filing a minor 
change application. The new regulations should expedite new and 
improved service to

[[Page 50520]]

the public, with minimal impact on existing stations. The specified 
changes require prior authorization from the Commission. The exact 
circumstances in which the Commission will allow modifications are 
listed in 47 CFR 73.213(a) (see Rule Changes at the end of this 
document).

B. Summary of Significant Issues Raised by Public Comments in Response 
to the Regulatory Flexibility Analysis

    8. No comments were received specifically in response to the 
regulatory flexibility issues contained in the NPRM. However, 
commenters generally addressed the effects of the proposed rule changes 
on FM licensees, including small businesses. Generally, commenters 
favored the rule changes proposed, with minor changes, some of which 
have been incorporated into the rules specified in the Rule Changes at 
the end of this document.

C. Description and Estimate of the Number of Small Entities To Which 
the Rule Will Apply

    9. The RFA generally defines ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction'' and the same meaning as the term 
``small business concern'' under the Small Business Act unless the 
Commission has developed one or more definitions that are appropriate 
for its activities.4 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).5 
According to the SBA's regulations, entities engaged in radio 
broadcasting (Standard Industrial Classification (``SIC'') Code 4832 
for radio) may have a maximum of $10.5 million in annual receipts in 
order to qualify as a small business concern. 13 CFR 121.201. This 
standard also applies in determining whether an entity is a small 
business for purposes of the Regulatory Flexibility Act.
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    \4\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to 5 
U.S.C. 601(3), the statutory definition of a small business applies 
``unless an agency after consultation with the Office of Advocacy of 
the Small Business Administration and after opportunity for public 
comment, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.
    \5\ Small Business Act, 15 U.S.C. 632 (1996).
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    10. Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency after consultation with the 
Office of Advocacy of the SBA and after opportunity for public comment, 
establishes one or more definitions of such term which are appropriate 
to the activities of the agency and publishes such definition(s) in the 
Federal Register.'' 6 While we tentatively believe that the 
foregoing definition of ``small business'' greatly overstates the 
number of radio broadcast stations that are small businesses and is not 
suitable for purposes of determining the impact of the new rules on 
small business, we did not propose an alternative definition in the 
Regulatory Flexibility Analysis. Accordingly, for purposes of this R&O, 
we utilize the SBA's definition in determining the number of small 
businesses to which the rules apply, but we reserve the right to adopt 
a more suitable definition of ``small business'' as applied to radio 
broadcast stations and to consider further the issue of the number of 
small entities that are radio broadcasters in the future. Further, in 
this FRFA, we will identify the different classes of small radio 
stations that may be impacted by the rules adopted in this R&O.
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    \6\ We tentatively conclude that the SBA's definition of ``small 
business'' greatly overstates the number of radio and television 
broadcast stations that are small businesses and is not suitable for 
purposes of determining the impact of the proposals on small radio 
and television stations. However, for purposes of this R&O, we 
utilize the SBA's definition in determining the number of small 
businesses to which the proposed rules would apply, but we reserve 
the right to adopt a more suitable definition of ``small business'' 
as applied to radio and television broadcast stations or other 
entities subject to the rules adopted in this R&O and to consider 
further the issue of the number of small entities that are radio and 
television broadcasters or other small media entities in the future. 
See R&O in MM Docket 93-48 (Children's Television Programming), 11 
FCC Rcd 10660, 10737-38 (1996), 61 FR 43981 (August 27, 1996), 
citing 5 U.S.C. 601 (3). In our Notice of Inquiry in GN Docket No. 
96-113B, In the matter of Section 257 Proceeding to Identify and 
Eliminate Market Entry Barriers for Small Businesses, 11 FCC Rcd 
6280 (1996), 61 FR 33066 (June 26, 1996), we requested commenters to 
provide profile data about small telecommunications businesses in 
particular services, including television and radio, and the market 
entry barriers they encounter, and we also sought comment as to how 
to define small businesses for purposes of implementing Section 257 
of the Telecommunications Act of 1996, which requires us to identify 
market entry barriers and to prescribe regulations to eliminate 
those barriers. Additionally, in our Order and Notice of Proposed 
Rulemaking in MM Docket 96-16, In the Matter of Streamlining 
Broadcast EEO Rules and Policies, Vacating the EEO Forfeiture Policy 
Statement and Amending Section 1.80 of the Commission's Rules to 
Include EEO Forfeiture Guidelines, 11 FCC Rcd 5154 (1996), 61 FR 
9964 (March 12, 1997), we invited comment as to whether relief 
should be afforded to stations: (1) Based on small staff and what 
size staff would be considered sufficient for relief, e.g., 10 or 
fewer full-time employees; (2) based on operation in a small market; 
or (3) based on operation in a market with a small minority work 
force.
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Commercial Radio Services

    11. The rules and policies adopted in this R&O will apply to radio 
broadcasting licensees and potential licensees. The SBA defines a radio 
broadcasting station that has no more than $5 million in annual 
receipts as a small business.7 A radio broadcasting station 
is an establishment primarily engaged in broadcasting aural programs by 
radio to the public.8 Included in this industry are 
commercial, religious, educational, and other radio 
stations.9 Radio broadcasting stations which primarily are 
engaged in radio broadcasting and which produce radio program materials 
are similarly included.10 However, radio stations which are 
separate establishments and are primarily engaged in producing radio 
program material are classified under another SIC number.11 
The 1992 Census indicates that 96 percent (5,861 of 6,127) radio 
station establishments produced less than $5 million in revenue in 
1992.12 Official Commission records indicate that 11,334 
individual radio stations were operating in 1992.13 As of 
March, 1997, official Commission records indicate that 12,128 radio 
stations were operating.14
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    \7\ 13 CFR 121.201, SIC 4832.
    \8\ Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, supra note 78, Appendix A-9.
    \9\ Id.
    \10\ Id.
    \11\ Id.
    \12\ The Census Bureau counts radio stations located at the same 
facility as one establishment. Therefore, each co-located AM/FM 
combination counts as one establishment.
    \13\ FCC News Release No. 31327, January 13, 1993.
    \14\ FCC News Release No. 64958, September 6, 1996.
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    12. It is estimated that the rules will affect about 450 radio 
stations, approximately 432 of which are small businesses.15 
These estimates are based on cursory studies performed by the staff and 
may overstate the number of small entities since the revenue figures on 
which they are based do not include aggregate revenues from non-radio 
affiliated companies.
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    \15\ We use the 96% figure of radio station establishments with 
less than $5 million revenue from the Census data and apply it to 
the 12,088 individual station count to arrive at 11,605 individual 
stations as small businesses.
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Alternative Classification of Small Stations

    13. An alternative way to classify small radio stations is the 
number of employees. The Commission currently applies a standard based 
on the number of employees in administering its Equal

[[Page 50521]]

Employment Opportunity Rule (EEO) for broadcasting.16 Thus, 
radio stations with fewer than five full-time employees are exempted 
from certain EEO reporting and record keeping 
requirements.17 We estimate that the total number of 
grandfathered broadcast stations with 4 or fewer employees is 
approximately 120.18
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    \16\ The Commission's definition of a small broadcast station 
for purposes of applying its EEO rules was adopted prior to the 
requirement of approval by the SBA pursuant to Section 3(a) of the 
Small Business Act, 15 U.S.C. 632(a), as amended by Section 222 of 
the Small Business Credit and Business Opportunity Enhancement Act 
of 1992, Public Law 102-366, section 222(b)(1), 106 Stat. 999 
(1992), as further amended by the Small Business Administration 
Reauthorization and Amendments Act of 1994, Public Law 103-403, 
section 301, 108 Stat. 4187 (1994). However, this definition was 
adopted after the public notice and the opportunity for comment. See 
R&O in Docket No. 18244, 23 FCC 2d 430 (1970), 35 FR 8925 (June 6, 
1970).
    \17\ See, e.g., 47 CFR 73.3612 (Requirement to file annual 
employment reports on Form 395 applies to licensees with five or 
more full-time employees); First Report and Order in Docket No. 
21474 (Amendment of Broadcast Equal Employment Opportunity Rules and 
FCC Form 395), 70 FCC 2d 1466 (1979), 50 FR 50329 (December 10, 
1985). The Commission is currently considering how to decrease the 
administrative burdens imposed by the EEO rule on small stations 
while maintaining the effectiveness of our broadcast EEO 
enforcement. Order and Notice of Proposed Rule Making in MM Docket 
96-16 (Streamlining Broadcast EEO Rule and Policies, Vacating the 
EEO Forfeiture Policy Statement and Amending Section 1.80 of the 
Commission's Rules to Include EEO Forfeiture Guidelines), 11 FCC Rcd 
5154 (1996), 61 FR 9964 (March 12, 1996). One option under 
consideration is whether to define a small station for purposes of 
affording such relief as on with ten or fewer employees.
    \18\ Compilation of 1994 Broadcast Station Annual Employment 
Reports (FCC Form 395B), Equal Opportunity Employment Branch, Mass 
Media Bureau, FCC.
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D. Projected Compliance Requirements of the Rule

    14. Applicants filing a modification application will be required 
to provide similar exhibits to those currently required for a 
construction permit. This information may consist of an interference 
analysis showing that no area previously receiving interference-free 
service would receive co-channel or first-adjacent channel interference 
using the desired to undesired signal strength ratio interference 
calculation method.
    15. Alternatively, for co-channel and first-adjacent channel 
applicants, a showing that the public interest would be served by the 
changes proposed in an application must include exhibits demonstrating 
that the total area and population subject to co-channel or first-
adjacent channel interference, caused and received, would be maintained 
or decreased. In addition, the showing must include exhibits 
demonstrating that the area and the population subject to co-channel or 
first-adjacent channel interference caused by the proposed facility to 
each short-spaced station individually is not increased. In all cases, 
the applicant must also show that any area predicted to lose service as 
a result of new co-channel or first-adjacent-channel interference has 
adequate aural service remaining. For these purposes, adequate service 
is defined as 5 or more aural services (AM or FM). Finally, any 
applicant proposing interference caused in an area where interference 
is not caused must serve its application upon the licensee(s) of the 
affected short-spaced station(s). The above-listed requirements are 
similar to the interference exhibits required by the previous rule 
section.
    16. Second-adjacent and third-adjacent channel grandfathered 
stations will no longer be required to submit interference exhibits, 
therefore reducing the filing burden.
    17. The information required with a modification application 
generally is the minimum necessary for the Commission to verify 
compliance with its rules and regulations. In most instances, the new 
procedures will reduce the time and expense required to implement 
certain modifications to grandfathered broadcast stations. Most 
permittees and licensees retain professional consulting engineers or 
legal counsel, or both in preparing construction permit applications. 
We do not expect this to change significantly by the adoption of the 
new rules and procedures. However, the time needed for the preparation 
of the simplified applications will be reduced as a result of fewer 
necessary waiver requests, translating into time and money savings for 
the broadcast applicant.

E. Significant Alternatives Considered Minimizing the Economic Impact 
on Small Entities and Consistent with the Stated Objectives

    18. The burdens on co-channel and first-adjacent-channel 
grandfathered applicants will be similar to the requirements under the 
previous rule section. The burden on second-adjacent and third-adjacent 
grandfathered applicants will be reduced. Modification applications 
will typically require that lesser amounts of information be submitted 
to the Commission as compared to an application submitted under the 
previous rules. The rule and policy changes will have a positive 
economic impact, as eligible entities, including small entities, will 
be able to increase their service or make transmitter site changes that 
were previously inhibited by the rules. All entities will still be able 
to file informal objections against a modification application, just as 
they may do now. In addition, any applicant proposing to cause 
interference in an area previously receiving interference must serve 
its application on the licensee(s) of the affected station(s).

F. Report to Congress

    19. The Secretary shall send a copy of this Final Regulatory 
Flexibility Analysis along with this R&O in a report to Congress 
pursuant to Section 251 of the Small Business Regulatory Enforcement 
Fairness Act of 1996, codified at 5 U.S.C. 801(a)(1)(A). A copy of this 
RFA is also published earlier in this document.

Ordering Clauses

    20. Accordingly, it is ordered that pursuant to the authority 
contained in Sections 4(i), 303(r), and 307(c) of the Communications 
Act of 1934, as amended, 47 CFR part 73 is amended as set forth below.
    21. It is further ordered that the requirements and regulations 
established in this Report and Order will become effective November 25, 
1997.
    22. For further information contact Jim Bradshaw of the Audio 
Services Division, Mass Media Bureau at (202) 418-2740, or by e-mail at 
[email protected].

List of Subjects in 47 CFR Part 73

    Radio broadcasting, Reporting and recordkeeping requirements, 
Television broadcasting.

Federal Communications Commission.
Shirley S. Suggs,
Chief, Publications Branch.

Rule Changes

    Part 73 of title 47 of the Code of Federal Regulations is amended 
as follows:

PART 73--RADIO BROADCAST SERVICES

    1. The authority citation for Part 73 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 334, 336.

    2. Section 73.213(a) is revised to read as follows:


Sec. 73.213  Grandfathered short-spaced stations.

    (a) Stations at locations authorized prior to November 16, 1964 
that did not meet the separation distances required by Sec. 73.207 and 
have remained continuously short-spaced since that time may be modified 
or relocated with respect to such short-spaced stations,

[[Page 50522]]

provided that no area previously receiving interference-free service 
would receive co-channel or first-adjacent channel interference as 
predicted in accordance with paragraph (a)(1) of this section, or that 
a showing is provided pursuant to paragraph (a)(2) of this section that 
demonstrates that the public interest would be served by the proposed 
changes.
    (1) The F(50,50) curves in Figure 1 of Sec. 73.333 are to be used 
in conjunction with the proposed effective radiated power and antenna 
height above average terrain, as calculated pursuant to Sec. 73.313(c), 
(d)(2) and (d)(3), using data for as many radials as necessary, to 
determine the location of the desired (service) field strength. The 
F(50,10) curves in Figure 1a of Sec. 73.333 are to be used in 
conjunction with the proposed effective radiated power and antenna 
height above average terrain, as calculated pursuant to Sec. 73.313(c), 
(d)(2) and (d)(3), using data for as many radials as necessary, to 
determine the location of the undesired (interfering) field strength. 
Predicted interference is defined to exist only for locations where the 
desired (service) field strength exceeds 0.5 mV/m (54 dBu) for a Class 
B station, 0.7 mV/m (57 dBu) for a Class B1 station, and 1 mV/m (60 
dBu) for any other class of station.
    (i) Co-channel interference is predicted to exist, for the purpose 
of this section, at all locations where the undesired (interfering 
station) F(50,10) field strength exceeds a value 20 dB below the 
desired (service) F(50,50) field strength of the station being 
considered (e.g., where the protected field strength is 60 dBu, the 
interfering field strength must be 40 dBu or more for predicted 
interference to exist).
    (ii) First-adjacent channel interference is predicted to exist, for 
the purpose of this section, at all locations where the undesired 
(interfering station) F(50,10) field strength exceeds a value 6 dB 
below the desired (service) F(50,50) field strength of the station 
being considered (e.g., where the protected field strength is 60 dBu, 
the interfering field strength must be 54 dBu or more for predicted 
interference to exist).
    (2) For co-channel and first-adjacent channel stations, a showing 
that the public interest would be served by the changes proposed in an 
application must include exhibits demonstrating that the total area and 
population subject to co-channel or first-adjacent channel 
interference, caused and received, would be maintained or decreased. In 
addition, the showing must include exhibits demonstrating that the area 
and the population subject to co-channel or first-adjacent channel 
interference caused by the proposed facility to each short-spaced 
station individually is not increased. In all cases, the applicant must 
also show that any area predicted to lose service as a result of new 
co-channel or first-adjacent-channel interference has adequate aural 
service remaining. For the purpose of this section, adequate service is 
defined as 5 or more aural services (AM or FM).
    (3) For co-channel and first-adjacent-channel stations, a copy of 
any application proposing interference caused in any areas where 
interference is not currently caused must be served upon the 
licensee(s) of the affected short-spaced station(s).
    (4) For stations covered by this paragraph (a), there are no 
distance separation or interference protection requirements with 
respect to second-adjacent and third-adjacent channel short-spacings 
that have existed continuously since November 16, 1964.
* * * * *


Sec. 73.4235  [Removed]

    3. Section 73.4235 is removed.

[FR Doc. 97-25272 Filed 9-25-97; 8:45 am]
BILLING CODE 6712-01-P