[Federal Register Volume 62, Number 189 (Tuesday, September 30, 1997)]
[Rules and Regulations]
[Pages 51052-51063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25788]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 73, and 74

[MM Docket No. 96-58, FCC 97-290]


Certain Minor Changes in Broadcast Facilities Without a 
Construction Permit

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Report and Order (R&O) in MM Docket No. 96-58 adopts 
proposals made by the Commission in the Notice of Proposed Rulemaking 
(61 FR 15439, April 8, 1996) in this proceeding to streamline the 
Commission's rules and processes applicable to broadcast stations. 
These rule and process changes eliminate the construction permit 
requirement for certain minor changes to broadcast facilities, 
replacing the present two-step construction permit/license application 
process with a one-step modification-of-license application, filed 
after the broadcaster has implemented the permitted changes. The types 
of modifications permitted under the new process were chosen so that 
interference to other facilities would not be created by the changes. 
Additional rules sections were revised to make clarifications and to 
conform the rules to present policy.

EFFECTIVE DATE: December 1, 1997.

FOR FURTHER INFORMATION CONTACT: Dale Bickel, 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. 96-58, adopted August 14, 1997, and 
released August 22, 1997. The complete text of this Report and Order, 
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, 1231 
20th Street, N.W., Washington, DC 20036. The complete text is also 
available as a Word Perfect 5.1 file through the Internet at http://
www.fcc.gov/Bureaus/Mass__Media/Orders/1997/fcc97290.wp .

Synopsis of the Report and Order

    1. The rule and procedure changes adopted in the Report and Order 
in MM Docket 96-58 were enabled by Congress' change, at the 
Commission's request, of Section 403(m) in the Communications Act in 
its Telecommunications Act of 1996. Subsequently, in the Notice of 
Proposed Rulemaking, the Commission proposed to eliminate the 
requirement for a construction permit in certain instances of 
modifications to broadcast facilities, replacing the two-step 
construction permit/application process with a single step modification 
of license application, which would be filed by the permittee or 
licensee of the station once the permitted modifications had been made.
    2. The circumstances in which ``one step'' modifications may be 
made through the filing of a license application are as follows, 
briefly:
    (1) Most commercial FM stations which comply with Sec. 73.207 
spacing rules with respect to all other stations, and which are not 
operating with the maximum permitted facilities, may increase effective 
radiated power (ERP) to the maximum permitted for the station class.
    (2) Commercial FM stations and most TV stations presently operating 
with zero or reduced vertically polarized power, may increase the 
vertically polarized ERP up to the authorized horizontal ERP without a 
construction permit.
    (3) Noncommercial educational FM stations presently operating with 
zero or reduced vertically polarized ERP may also increase the vertical 
ERP up to the authorized horizontal ERP, provided that the FM station 
is not located within a specified radius of a TV Channel 6 station.
    (4) Decreases in ERP will be permitted for FM stations, provided 
that the required coverage to the community of license is maintained.
    (5) The Sec. 73.215 contour protection designation for an FM 
commercial station may be deleted where a short-spaced station has 
moved away, allowing the contour protection station to become licensed 
per Sec. 73.207.
    (6) If an FM or TV antenna is replaced, or for installation of a 
new antenna, the applicant may mount the antenna up to 2 meters above 
or 4 meters below the value specified on its license or construction 
permit.
    (7) FM and TV directional antennas may be replaced under certain 
circumstances.
    (8) Former licensed main auxiliary applications for FM and TV 
stations may be relicensed as auxiliary (backup)

[[Page 51053]]

facilities without a construction permit, even at changed power or 
where the auxiliary facility must change frequency to match that of the 
main station. AM stations may reduce power for an auxiliary facility 
which was previously licensed on the same frequency as the primary 
station.
    (9) Commercial stations may file a modification-of-license 
application to become licensed as noncommercial educational. 
Conversely, some noncommercial educational stations in the commercial 
FM band or television bands may become licensed as commercial via the 
same means.
    3. The Commission also changed several other rules sections, 
discussed briefly as follows:
    (1) FM directional stations may commence program test operations at 
half power while awaiting staff review of the license application. This 
eliminates a 10 day wait between final installation of the antenna and 
the start of operations.
    (2) Requests for waiver of the main studio rule (47 CFR 73.1125) 
may be submitted by letter, eliminating the requirement for a Form 301 
or Form 340 construction permit application.
    (3) A new rule 47 CFR 73.316(c)(9) is added to codify the policy 
which requires that the measured FM directional pattern be at least 85% 
of the authorized composite FM directional pattern for contour 
protection stations authorized under Secs. 73.215 or 73.509.
    (4) A new rule 47 CFR 73.1692 is added which will codify the 
current conditions imposed on construction permits for AM, FM, and TV 
stations which are authorized to construct on or near AM stations.
    (5) A new rule 47 CFR 73.525(e)(1)(vii) is added to address the 
matter of FM noncommercial educational stations which propose to locate 
very near (within the 90 dBu contour) of a TV Channel 6 station.
    4. The rules set forth in the Report and Order are intended to 
reduce the amount of processing time, cost, and burden on both 
applicants and the Commission. By eliminating the construction permit 
requirement for the circumstances described in the previous paragraph, 
an applicant can save the 4 months' minor change construction permit 
application time, as well as several hundred dollars in processing fees 
in addition to the costs inherent in preparing the application.

Final Paperwork Reduction Act of 1995 Analysis

    5. This Report and Order 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.
    6. This Report and Order eliminates the requirement for a minor 
change application in several instances of minor changes to broadcast 
facilities for which approval was almost automatic under the existing 
process, and in which the elimination of the construction permit would 
be unlikely to have an adverse impact on existing broadcast stations. 
These changes will cause revisions in the following collections:
    OMB Approval Number: 3060-0506.
    Title: Application for FM Broadcast Station License.
    Form No.: FCC 302-FM.
    Type of Review: Revision of a currently approved collection.
    Respondents: Businesses or other for-profit, not-for-profit 
institutions.
    Number of Respondents: 757.
    Estimated time per response: 4 hours--33 hours (This time varies 
depending on the type of application filed. This collection is 
contracted out to communications attorneys and consulting engineers for 
completion of the form.).
    Total annual burden: 2,082.
    Needs and Uses:
    7. Licensees and permittees of FM broadcast stations are required 
to file FCC Form 302-FM to obtain a new or modified station license, 
and/or to notify the Commission of certain changes in the licensed 
facilities of these stations.
    8. On August 14, 1997 the Commission adopted a Report and Order in 
MM Docket No. 96-58 which adopted the changes as proposed in the NPRM 
and as approved by OMB on July 2, 1996. Additionally, the Commission 
adopted revisions to the FCC Form 302-FM. The revisions for FCC 302-FM 
are contained in Appendix C of the Report and Order. Until such times 
as the forms are revised to incorporate this information, applicants 
using the one-step licensing process must file this supplement with the 
FCC 302-FM.
    9. The data is used by FCC staff to confirm that the station has 
been built to terms specified in the outstanding construction permit, 
and to update FCC station files. Data is then extracted from FCC 302-FM 
for inclusion in the subsequent license to operate the station. 
Applications using the new one-step process will be reviewed to ensure 
that the minor changes made by the station will not have any 
significant impact on other stations and the public.
    OMB Approval Number: 3060-0029.
    Title: Application for TV Broadcast Station License.
    Form No.: FCC 302-TV.
    Type of Review: Revision of a currently approved collection.
    Respondents: Businesses or other for-profit, not-for-profit 
institutions.
    Number of Respondents: 83.
    Estimated time per response: 21 hours--29 hours (This time varies 
depending of the type of application filed. This collection is 
contracted out to communications attorneys and consulting engineers for 
completion of the form.).
    Total annual burden: 210.
    Needs and Uses:
    10. Licensees and permittees of FM broadcast stations are required 
to file FCC Form 302-TV to obtain a new or modified station license, 
and/or to notify the Commission of certain changes in the licensed 
facilities of these stations.
    11. On August 14, 1997 the Commission adopted a Report and Order in 
MM Docket No. 96-58 which adopted the changes as proposed in the NPRM 
and as approved by OMB on July 2, 1996. Additionally, the Commission 
adopted revisions to the FCC Form 302-TV. The revisions for FCC 302-TV 
are contained in Appendix D of the Report and Order. Until such times 
as the forms are revised to incorporate this information, applicants 
using the one-step licensing process must file this supplement with the 
FCC 302-TV.
    12. The data is used by FCC staff to confirm that the station has 
been built to terms specified in the outstanding construction permit, 
and to update FCC station files. Data is then extracted from FCC 302-TV 
for inclusion in the subsequent license to operate the station. 
Applications using the new one-step process will be reviewed to ensure 
that the minor changes made by the station will not have any 
significant impact on other stations and the public.
    OMB Approval Number: 3060-0171.
    Title: Section 73.1125--Station main studio location.
    Form No.: None.
    Type of Review: Revision of a currently approved collection.
    Respondents: Businesses or other for-profit, not-for-profit 
institutions.
    Number of Respondents: 155.
    Estimated time per response: 0.5 hours--5 hours (This time varies 
depending of the type of application filed. The waiver request is 
contracted out to communications attorneys and consulting engineers for 
completion of the form.).
    Total annual burden: 108.
    Needs and Uses:
    13. Section 73.1125(a) requires AM, FM or TV licensees to locate 
their main studio at any point within the station's

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principal community contours. If the station relocates its main studio 
from one point to another within the principal community contour or 
from a point outside the principal community contour to one within it, 
the licensee is required to notify the FCC pursuant to 
Sec. 73.1125(b)(1).
    14. On August 14, 1997 the Commission adopted a Report and Order in 
MM Docket No. 96-58 which adopted the changes as proposed in the NPRM 
and as approved by OMB on July 2, 1996. The revision to 
Sec. 73.1125(b)(2) will eliminate the delay and expense of completing 
the construction permit application and will enable licensees/
permittees to make this change with minimal delay.
    15. The notification required by Sec. 73.1125(b)(1) is used by FCC 
staff to assure that the station main studio is located within the 
principal community contour and many times serves to notify us of a 
change in the mailing address. The data received as justification for 
waiver of Sec. 73.1125(b)(2) will enable FCC staff to determine whether 
the circumstances are sufficient to warrant waiver of the Commission's 
main

Final Regulatory Flexibility Analysis

    16. As required by the Regulatory Flexibility Act, 5 U.S.C. Section 
603 (``RFA''), 1 an Initial Regulatory Flexibility Analysis 
(``IRFA'') was incorporated in Amendment of Parts 73 and 74 of the 
Commission's Rules to Permit Certain Minor Changes Without A 
Construction Permit. 2 The Commission sought written public 
comments on the proposals in the NPRM, including on the IRFA. The 
Commission's Final Regulatory Flexibility Analysis (FRFA) in this 
Report and Order conforms to the RFA as amended. 3
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    \1\ See 47 U.S.C. Section 603.
    \2\ Notice of Proposed Rulemaking in MM Docket No. 96-58, 11 FCC 
Rcd 8800, 61 FR 15439 (April 8, 1996).
    \3\ See 5 U.S.C. Section 604. The Regulatory Flexibility Act, 
see 5 U.S.C. Section 601 et. seq. has been amended by the Contract 
With America Advancement Act of 1996, Public Law 104-104, 110 Stat. 
847 (1996) (``CWAAA''). Title II of the CWAAA is the Small Business 
Regulatory Enforcement Act of 1996 (``SBREFA'').
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A. Need For and Objectives of the Proposed Rules:

    17. The Commission's Rules currently require a construction permit 
for virtually all minor changes to AM, FM, and TV broadcast stations. 
This procedure was required by Section 319(d) of the Communications 
Act. In 1996, at the request of the Commission, Congress modified 
Section 319(d) in the Telecommunications Act of 1996, Pub. L. 104-104, 
110 Stat. 56 (1996), to eliminate the prohibition against waiving the 
permit requirement for applicants wanting to make minor changes to 
broadcast station facilities.4 The Commission therefore 
proposed revisions to its broadcast regulations to replace, in certain 
instances, the two step construction permit-license process with a 
single step licensing procedure.
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    \4\ Section 319(d) has been modified to read in relevant part as 
follows: ``With respect to any broadcasting station, the Commission 
shall not have authority to waive the requirement of a permit for 
construction, except that the Commission may by regulation determine 
that a permit shall not required for minor changes in the facilities 
of authorized broadcast stations.'' Public Law 104-104, Section 
403(m), 110 Stat 56 (1996).
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    18. By making these changes, the present four month period 
presently required to process and grant a construction permit will be 
eliminated for those applicants choosing to use these new procedures. 
In addition, the present minor change application filing fee (presently 
$690.00) will not be required from applicants for one-step license 
applications, thereby easing the financial burden for simple changes. 
The changes will also expedite new and improved service to the public, 
with minimal impact on existing stations. The specified changes may be 
made without prior authorization from the Commission; however, it is 
the licensee's or permittee's responsibility to determine whether the 
particular installation complies with the Commission's rules and 
regulations. The circumstances in which the Commission will permit the 
filing of one-step licensing applications are listed in 47 CFR 
73.1690(c).
    B. Summary of Significant Issues Raised by the Public Comments in 
Response to the IFRA.
    19. No comments were received specifically in response to the IFRA 
contained in the Notice of Proposed Rulemaking. However, commenters did 
address the effects of the proposed rule changes on FM and TV 
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 Appendix. See Comments at 
paragraphs 8, 14, 17, 23, 26, 28-29, 34, 38, 43-46, 48, 52, 55-58, 66, 
68, 73, 75, 77, 80, 83 and 85 of the Report and Order.

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

    20. Definition of a ``Small Business''. The RFA generally defines 
``small entity'' as having the same meaning as the terms ``small 
organizations'', ``small businesses'', and ``small governmental 
jurisdictions'', 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.5 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'').6 According to the 
SBA's regulations, entities engaged in radio or television broadcasting 
(Standard Industrial Classification (``SIC'') Code 4833 for television 
and 4832 for radio) may have a maximum of $5.0 million or $10.5 
million, respectively, in annual receipts in order to qualify as a 
small business concern.7 13 CFR 121.201. This standard also 
applies in determining whether an entity is a small business for 
purposes of the RFA.
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    \5\ Small Business Act, 15 U.S.C. Section 632 (1996).
    \6\ 5 U.S.C. Section 601(b) (incorporating by reference the 
definition of ``small business concern'' in 15 U.S.C. Section 632). 
Pursuant to 5 U.S.C. Section 601(b), the statutory definition of a 
small business applies ``unless an agency after consultation with 
the Office of Advocacy if 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.''
    \7\ This revenue cap appears to apply to noncommercial 
educational television stations, as well as to commercial television 
stations. See Executive Office of the President, Office of 
Management and Budget, Standard Industrial Classification Manual 
(1987), at 283, which describes ``Television Broadcasting Stations 
(SIC Code 4833) as:
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    Establishments primarily engaged in broadcasting visual programs by 
television to the public, except cable and other pay television 
services. Included in this industry are commercial, religious, 
educational and other television stations. Also included here are 
establishments primarily engaged in television broadcasting and which 
produce taped television program materials.
    21. Pursuant to 5 U.S.C. Section 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.'' 8 While we believe 
that the

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foregoing 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 new rules on small business, we did not propose an alternative 
definition in the IRFA. Accordingly, for purposes of this Report and 
Order, 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 and television broadcast stations and to consider further the 
issue of the number of small entities that are radio and television 
broadcasters in the future. Further, in this RFA, we will identify the 
different classes of small radio and television stations that may be 
impacted by the rules adopted in this Report and Order.
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    \8\ While we believe 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 Report and 
Order, 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 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 Report and Order 
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 Report and Order in MM Docket 93-48 
(Children's Television Programming), 11 FCC Rcd 10660, 10737-38, 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, 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, 61 FR 9964 (March 12, 1996), 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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    22. Commercial Radio and Television Services: The proposed rules 
and policies adopted in this Report and Order will apply to full 
service television broadcasting licensees, radio broadcasting 
licensees, potential licensees of either service and may have an effect 
on FM and TV translators stations as well as low power TV stations 
(``LPTV''). The rules will also apply to full service television 
stations and may have an effect on TV translator facilities and low 
power TV stations (``LPTV''). The SBA defines a television broadcasting 
station that has no more than $10.5 million in annual receipts as a 
small business.9 Television broadcasting stations consist of 
establishments primarily engaged in broadcasting visual programs by 
television to the public, except cable and other pay television 
services.10 Included in this industry are commercial, 
religious, educational, and other television stations.11 
Also included are establishments primarily engaged in television 
broadcasting and which produce taped television program 
materials.12 Separate establishments primarily engaged in 
producing taped television program materials are classified under 
another SIC number.13 There were 1,509 television stations 
operating in the nation in 1992.14 That number has remained 
fairly constant as indicated by the approximately 1,560 operating 
television broadcasting stations in the nation as of June, 
1997.15 For 1992 16 the number of television 
stations that produced less than $10.0 million in revenue was 1,155 
establishments.17
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    \9\ 13 CFR 121.201, Standard Industrial Code (SIC) 4833 (1996).
    \10\ Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, 1992 Census of Transportation, 
Communications and Utilities, Establishment and Firm Size, Series 
UC92-S-1, Appendix A-9 (1995).
    \11\ Id. See Executive Office of the President, Office of 
Management and Budget, Standard Industrial Classification Manual 
(1987), at 283, which describes ``Television Broadcasting Stations 
(SIC Code 4833) as:
    Establishments primarily engaged in broadcasting visual programs 
by television to the public, except cable and other pay television 
services. Included in this industry are commercial, religious, 
educational and other television stations. Also included here are 
establishments primarily engaged in television broadcasting and 
which produce taped television program materials.
    \12\ Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, 1992 Census of Transportation, 
Communications and Utilities, Establishment and Firm Size, Series 
UC92-S-1, Appendix A-9 (1995).
    \13\ Id. SIC 7812 (Motion Picture and Video Tape Production); 
SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services 
(producers of live radio and television programs).
    \14\ FCC News Release No. 31327, January 13, 1993; Economics and 
Statistics Administration, Bureau of Census, U.S. Department of 
Commerce, supra note 78, Appendix A-9.
    \15\ FCC News Release No. 75604, July 31, 1997.
    \16\ Census for Communications' establishments are performed 
every five years ending with a ``2'' or ``7''. See Economics and 
Statistics Administration, Bureau of Census, U.S. Department of 
Commerce, supra note 78, III.
    \17\ The amount of $10 million was used to estimate the number 
of small business establishments because the relevant Census 
categories stopped at $9,999,999 and began at $10,000,000. No 
category for $10.5 million existed. Thus, the number is as accurate 
as it is possible to calculate with the available information.
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    23. Additionally, the SBA defines a radio broadcasting station that 
has no more than $5 million in annual receipts as a small 
business.18 A radio broadcasting station is an establishment 
primarily engaged in broadcasting aural programs by radio to the 
public.19 Included in this industry are commercial 
religious, educational, and other radio stations.20 Radio 
broadcasting stations which primarily are engaged in radio broadcasting 
and which produce radio program materials are similarly 
included.21 However, radio stations which are separate 
establishments and are primarily engaged in producing radio program 
material are classified under another SIC number.22 The 1992 
Census indicates that 96 percent (5,861 of 6,127) radio station 
establishments produced less than $5 million in revenue in 
1992.23 Official Commission records indicate that 11,334 
individual radio stations were operating in 1992.24 As of 
June, 1997 official Commission records indicate that 12,177 radio 
stations were operating.25
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    \18\ 13 CFR 121.201, SIC 4832.
    \19\ Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, supra note 78, Appendix A-9.
    \20\ Id.
    \21\ Id.
    \22\ Id.
    \23\ 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.
    \24\ FCC News Release No. 31327, January 13, 1993.
    \25\ FCC News Release No. 77504, July 31, 1997.
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    24. Thus, the proposed rules will affect approximately 1,560 
television stations; approximately 1,201 of those stations are 
considered small businesses. 26 Additionally, the proposed 
rules will affect 12,177 radio stations, approximately 11,689 of which 
are small businesses. 27 These estimates may overstate the 
number of small entities since the revenue figures on which they are 
based do not include or aggregate revenues from non-television or non-
radio affiliated companies. We recognize that the proposed rules may 
also impact minority and women owned stations, some of which may be 
small entities. In 1995, minorities owned and

[[Page 51056]]

controlled 37 (3.0%) of 1,221 commercial television stations and 293 
(2.9%) of the commercial radio stations in the United States. 
28 According to the U.S. Bureau of the Census, in 1987 women 
owned and controlled 27 (1.9%) of 1,342 commercial and non-commercial 
television stations and 394 (3.8%) of 10,244 commercial and non-
commercial radio stations in the United States. 29 We 
recognize that the numbers of minority and women broadcast owners may 
have changed due to an increase in license transfers and assignments 
since the passage of the 1996 Act.
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    \26\  We use the 77 percent figure of TV stations operating at 
less than $10 million for 1992 and apply it to the 1997 total of 
1551 TV stations to arrive at 1,194 stations categorized as small 
businesses.
    \27\  We use the 96% figure of radio station establishments with 
less than $5 million revenue from the Census data and apply it to 
the 12,135 individual station count to arrive at 11,649 individual 
stations as small businesses.
    \28\  Minority Commercial Broadcast Ownership in the United 
States, U.S. Dep't of Commerce, National Telecommunications and 
Information Administration, The Minority Telecommunications 
Development Program (``MTDP'') (April 1996). MTDP considers minority 
ownership as ownership of more than 50% of a broadcast corporation's 
stock, voting control in a broadcast partnership, or ownership of a 
broadcasting property as an individual proprietor. Id. The minority 
groups included in this report are Black, Hispanic, Asian, and 
Native American.
    \29\  See Comments of American Women in Radio and Television, 
Inc. in MM Docket No. 94-149 and MM Docket No. 91-140, at 4 n.4 
(filed May 17, 1995), citing 1987 Economic Censuses, Women-Owned 
Business, WB87-1, U.S. Dep't of Commerce, Bureau of the Census, 
August 1990 (based on 1987 Census). After the 1987 Census report, 
the Census Bureau did not provide data by particular communications 
services (four-digit Standard Industrial Classification (SIC) Code), 
but rather by the general two-digit SIC Code for communications 
(#48). Consequently, since 1987, the U.S. Census Bureau has not 
updated data on ownership of broadcast facilities by women, nor does 
the FCC collect such data. However, we sought comment on whether the 
Annual Ownership Report Form 323 should be amended to include 
information on the gender and race of broadcast license owners. 
Policies and Rules Regarding Minority and Female Ownership of Mass 
Media Facilities, Notice of Proposed Rulemaking, 10 FCC Rcd 2788, 
2797, 61 FR 6068 (February 1, 1995).
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    25. It should also be noted that the foregoing estimates do not 
distinguish between network-affiliated 30 stations and 
independent stations. As of April 1996, the BIA Publications, Inc. 
Master Access Television Analyzer Database indicates that about 73% of 
all commercial television stations were affiliated with the ABC, CBS, 
NBC, Fox, UPN, or WB networks. Moreover, 7% of those affiliates have 
secondary affiliations.31
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    \30\ In this context, ``affiliation'' refers to any local 
broadcast television station that has a contractural arrangement 
with aprogramming network to carry the network's signal. This 
definition of affiliated station includes both stations owned and 
operated by a network and stations owned by other entities.
    \31\ Secondary affilations are secondary to the primary 
affiliation of the station and generally afford the affiliate 
additional choice of programming.
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    26. There are currently 4991 TV translators, and 2001 LPTV stations 
which may be affected by the new rules, if they decide to convert to 
digital television.32 The FCC does not collect financial 
information of any broadcast facility and the Department of Commerce 
does not collect financial information on these broadcast facilities. 
We will assume for present purposes, however, that most, if not all, 
LPTV stations and translator stations, could be classified as small 
businesses, if considered by themselves. Thus, translator stations 
generally can be considered affiliates, as that term is defined in the 
SBA regulations, with full service stations. Given this situation, 
these stations would likely have annual revenues that exceed the SBA 
maximum to be designated as small businesses.
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    \32\ FCC News Release No. 72712, March 6, 1997, Broadcast 
Station Totals as of February 28, 1997.
---------------------------------------------------------------------------

    27. In addition to owners of operating radio and television 
stations, any entity who seeks or desires to obtain a television or 
radio broadcast license may be affected by the proposals contained in 
this item. The number of entities that may seek to obtain a television 
or radio broadcast license is unknown.
    28. Additionally, the proposed changes to the cable/MDS cross-
ownership attribution rule will apply to cable and MDS entities. The 
SBA has developed a definition of small entities for cable and other 
pay television services under Standard Industrial Classification 4841 
(SIC 4841), which covers subscription television services, which 
includes all such companies with annual gross revenues of $11 million 
or less.33 This definition includes cable systems operators, 
closed circuit television services, direct broadcast satellite 
services, multipoint distribution systems, satellite master antenna 
systems and subscription television services. According to the Census 
Bureau, there were 1,323 such cable and other pay television services 
generating less than $11 million in revenue that were in operation for 
at least one year at the end of 1992.34 This figure is 
overinclusive since it includes other pay television services, not only 
cable and MDS.
---------------------------------------------------------------------------

    \33\ 13 CFR 121.201.
    \34\ 1992 Census, supra, at Firm Size 1-123. See Memorandum 
Opinion and Order and Notice of Proposed Rule Making in MM Docket 
No. 92-266 and CS Docket No. 96-157, 11 FCC Rcd 9517, 953, 61 FR 
45356 (1996).
---------------------------------------------------------------------------

    29. Alternative Classification of Small Stations. An alternative 
way to classify small radio and television stations is the number of 
employees. The Commission currently applies a standard based on the 
number of employees in administering its Equal Employment Opportunity 
(EEO) for broadcasting.35 Thus, radio or television stations 
with fewer than five full-time employees are exempted from certain EEO 
reporting and record-keeping requirements.36
---------------------------------------------------------------------------

    \35\ 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. Section 632, 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 public notice and opportunity for comment. See Report 
and Order in Docket No. 18244, 23 FCC 2d 430 (1970), 35 FR 8925 
(June 6, 1970).
    \36\ See, e.g., 47 CFR Section 73.3612 (Requirement to file 
annual employment reports on FCC 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 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 09964 (March 12, 1996). One option under 
consideration is whether to define a small station for purposes of 
affording such relief as one with ten or fewer full-time employees.
---------------------------------------------------------------------------

    30. Cable Systems. The Communications Act contains a definition of 
a small cable system operator, which is ``a cable operator that, 
directly or through an affiliate, serves in the aggregate fewer than 1 
percent of all subscribers in the United States and is not affiliated 
with any entity or entities whose gross annual revenues in the 
aggregate exceed $250,000,000.'' 37 The Commission has 
determined that there are 61,700,000 subscribers in the United States. 
Therefore, we found that an operator serving fewer than 617,000 
subscribers is deemed a small operator, if its annual revenues, when 
combined with the total annual revenues of all of its affiliates, do 
not exceed $250 million in the aggregate.38 Based on 
available data, we find that the number of cable operators serving 
617,000 subscribers or less totals 1,450.39 Although it 
seems certain that some of these cable system operators are affiliated 
with entities whose gross annual revenues exceed $250,000,000, we are 
unable at this time to estimate with greater precision the number of 
cable system operators that would

[[Page 51057]]

qualify as small cable operators under the definition in the 
Communications Act.
---------------------------------------------------------------------------

    \37\ 47 U.S.C. Sec. 543(m)(2).
    \38\ 47 CFR 76.1403(b).
    \39\ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 
1996 (based on figures for Dec. 30, 1995).
---------------------------------------------------------------------------

    31. The Commission has developed its own definition of a small 
cable system operator for the purposes of rate regulation. Under the 
Commission's rules, a ``small cable company,'' is one serving fewer 
than 400,000 subscribers nationwide.40 Based on our most 
recent information, we estimate that there were 1,439 cable operators 
that qualified as small cable system operators at the end of 
1995.41 Since then, some of those companies may have grown 
to serve over 400,000 subscribers, and others may have been involved in 
transactions that caused them to be combined with other cable 
operators. Consequently, we estimate that there are fewer than 1,439 
small entity cable system operators that may be affected by the 
proposal adopted in this Notice. Under the Commission's rules, a small 
cable system is a cable system with 15,000 or fewer subscribers owned 
by a cable company serving 400,000 or fewer subscribers over all of its 
cable systems.
---------------------------------------------------------------------------

    \40\ 47 CFR 76.901(e). The Commission developed this definition 
based on its determinations that a small cable system operator is 
one with annual revenues of $100 million or less. Implementation of 
Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and 
Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 60 FR 
10534 (February 27, 1995).
    \41\ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 
1996 (based on figures for Dec. 30, 1995).
---------------------------------------------------------------------------

    32. MDS. The Commission redefined the definition of ``small 
entity'' for the auction of MDS as an entity that together with its 
affiliates has average gross annual revenues that are not more than $40 
million for the preceding three calendar years.42 This 
definition of a small entity in the context of MDS auctions has been 
approved by the SBA.43
---------------------------------------------------------------------------

    \42\ 47 CFR 21.961(b)(1).
    \43\ See Amendment of Parts 21 and 74 of the Commission's Rules 
With Regard to Filing Procedures in the Multipoint Distribution 
Service and in the Instructional Television Fixed Service and 
Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, MM Docket No. 94-31 and PP Docket No. 93-253, 
Report and Order, 10 FCC Rcd 9589, 60 FR 36524 (July 17, 1995).
---------------------------------------------------------------------------

    33. The Commission completed its MDS auction in March 1996 for 
authorizations in 493 basic trading areas (BTAs). Of 67 winning 
bidders, 61 qualified as small entities. Five bidders indicated that 
they were minority-owned and four winners indicated that they were 
women-owned businesses. MDS is a service heavily encumbered with 
approximately 1,573 previously authorized and proposed MDS facilities 
and information available to us indicates that no MDS facility 
generates revenue in excess of $11 million annually. We conclude that 
for purposes of this FRFA, there are approximately 1,634 small MDS 
providers as defined by the SBA and the Commission's auction rules.
    34. Newspapers. Some of the proposals delineated above may also 
apply to daily newspapers that hold or seek to acquire an interest in a 
broadcast station that would be treated as attributable under the 
proposals. A newspaper is an establishment that is primarily engaged in 
publishing newspapers, or in publishing and printing 
newspapers.44 The SBA defines a newspaper that has 500 or 
fewer employees as a small business.45 Based on data from 
the U.S. Census Bureau, there are a total of approximately 6,715 
newspapers, and 6,578 of those meet the SBA's size 
definition.46 However, we recognize that some of these 
newspapers may not be independently owned and operated and, therefore, 
would not be considered a ``small business concern'' under the Small 
Business Act.47 We are unable to estimate at this time how 
many newspapers are affiliated with larger entities. Moreover, the 
proposal would apply only to daily newspapers, and we are unable to 
estimate how many newspapers that meet the SBA's size definition are 
daily newspapers. Consequently, we estimate that there are fewer than 
6,578 newspapers that may be affected by the proposed rules.
---------------------------------------------------------------------------

    \44\ 13 CFR 121.201 (SIC 2711).
    \45\ Id.
    \46\ U.S. Small Business Administration 1992 Economic Census 
Industry and Enterprise Report, Table 3, SIC Code 2711 (Bureau of 
the Census data adapted by the Office of Advocacy of the U.S. Small 
Business Administration).
    \47\ 15 U.S.C. Sec. 632.
---------------------------------------------------------------------------

D. Description of Recordkeeping and Other Projected Compliance 
Requirements

    35. Applicants filing a one-step license application will be 
required to provide a reduced amount of information as compared to that 
currently required for a construction permit. This information may 
consist of a radiofrequency radiation analysis to insure public safety, 
directional antenna information to insure protection to other stations, 
etc. as set forth Appendices C and D of the Report and Order. The 
information required in Appendices C and D with a one-step license 
application generally is the minimum necessary for the Commission to 
verify compliance with its rules and regulations.
    36. It must be noted that a permittee or licensee is not required 
to subject itself to the new one-step license requirements if it 
chooses not to do so. Any permittee or licensee may, at its option, use 
the present two-step process of obtaining a construction permit, 
followed by the filing of a license application once construction is 
complete. However, in many instances, the new procedures will reduce 
the time and expense required to implement certain minor changes to 
broadcast stations.
    37. 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 one-step applications will be 
reduced, translating into time and money savings for the broadcast 
applicant.

E. Steps Taken To Minimize Burden on Small Entities and Significant 
Alternatives Considered and Rejected

    38. Pursuant to the RFA, 5 U.S.C. Sec. 603(c), we have considered 
whether there is a significant economic impact on a substantial number 
of small entities. The action taken does not impose additional burdens 
on small entities. Indeed, the opposite is true. The minor change 
application filing fee will be eliminated for applicants which meet the 
criteria for eligibility for applicants which meet the criteria for 
eligibility in 47 CFR 73.1690 as set forth below. One-step license 
applications also require that lesser amounts of information be 
submitted to the Commission as compared to a construction permit 
application. 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 certain modifications without prior 
Commission authorization and with fewer legal challenges. All entities 
will still be able to file informal objections against a one-step 
license application, just as they may do now against a construction 
permit application. This should address the concerns of those 
commenters who sought a special notice and comment period for each one-
step license application.

F. Report to Congress

    39. The Commission shall send a copy of this Final Regulatory 
Flexibility Analysis along with this Report and Order 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. Section 
801(a)(1)(A). A copy of this RFA will

[[Page 51058]]

also be published in the Federal Register.

Ordering Clauses

    40. 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 Parts 1, 73, and 74 are amended as set 
forth below.
    41. It is further ordered that the requirements and regulations 
established in this Report and Order will become effective December 1, 
1997 or upon receipt by Congress of a report in compliance with the 
Contract with America Advancement Act of 1996, Public Law 104-121, 
whichever date is later.
    42. For further information contact Dale Bickel of the Audio 
Services Division, Mass Media Bureau at (202) 418-2720, or by e-mail at 
[email protected].

List of Subjects

47 CFR Part 1

    Practice and procedure.

47 CFR Part 73

    Radio broadcasting, Television broadcasting.

47 CFR Part 74

    Experimental Radio, Auxiliary, Special Broadcast and Other Program 
Distributional Services.

Federal Communications Commission
Shirley Suggs,
Chief, Publications Branch.

Rule Changes

    Parts 1, 73, and 74 of title 47 are amended to read as follows:

PART 1--PRACTICE AND PROCEDURE

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

    Authority: 47 U.S.C. 154, 158.

    2. Section 1.1104 is amended by adding entries in the table for 1. 
b.(1), 2. b.(1), and 3. b.(1) to read as follows:


Sec. 1.1104  Schedule of charges for applications and other filings in 
the mass media services.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Payment type                                                               
            Action                       FCC Form No.           Fee amount       code                                 Address                           
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
1. * * * b. *  *  * (1) Main    159 & Corres.................          690  MPT            Federal Communications Commission, Mass Media Services, P.O. 
 Studio Request.                                                                            Box 358165, Pittsburgh, PA 15251-5165.                      
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
2. * * * b. *  *  * (1) Main    159 & Corres.................          690  MPT            Federal Communications Commission, Mass Media Services, P.O. 
 Studio Request.                                                                            Box 358190, Pittsburgh, PA 15251-5190.                      
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
3. * * * b. *  *  * (1) Main    159 & Corres.................          690  MPT            Federal Communications Commission, Mass Media Services, P.O. 
 Studio Request.                                                                            Box 358195, Pittsburgh, PA 15251-5195.                      
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

PART 73--RADIO BROADCAST SERVICES

    3. The authority citation for part 73 continues to read as follows:

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

    4. Section 73.14 is amended by adding the following new definition 
in alphabetical order to read as follows:


Sec. 73.14  AM Broadcast definitions.

* * * * *
    Auxiliary facility. An auxiliary facility is an AM antenna tower(s) 
separate from the main facility's antenna tower(s), permanently 
installed at the same site or at a different location, from which an AM 
station may broadcast for short periods without prior Commission 
authorization or notice to the Commission while the main facility is 
not in operation (e.g., where tower work necessitates turning off the 
main antenna or where lightning has caused damage to the main antenna 
or transmission system) (See Sec. 73.1675).
* * * * *
    5. Section 73.310(a) is amended by adding the following definitions 
in alphabetical order to read as follows:


Sec. 73.310  FM technical definitions.

* * * * *
    Auxiliary facility. An auxiliary facility is an antenna separate 
from the main facility's antenna, permanently installed on the same 
tower or at a different location, from which a station may broadcast 
for short periods without prior Commission authorization or notice to 
the Commission while the main facility is not in operation (e.g., where 
tower work necessitates turning off the main antenna or where lightning 
has caused damage to the main antenna or transmission system) (See 
Sec. 73.1675).
* * * * *
    Composite antenna pattern. The composite antenna pattern is a 
relative field horizontal plane pattern for 360 degrees of azimuth, for 
which the value at a particular azimuth is the greater of the 
horizontally polarized or vertically polarized component relative field 
values. The composite antenna pattern is normalized to a maximum of 
unity (1.000) relative field.
* * * * *
    6. Section 73.316 is amended by adding new paragraph (c)(9), 
revising paragraph (e), and removing paragraphs (f), (g), (h), and (i) 
to read as follows:


Sec. 73.316  FM antenna systems.

* * * * *
    (c) * * *
    (9) In the case of an application for license upon completion of 
antenna construction for a station authorized pursuant to Sec. 73.215 
or Sec. 73.509, a showing that the root mean square (RMS) of the 
measured composite antenna pattern (encompassing both the horizontally 
and vertically polarized radiation components (in relative field)) is 
at least 85% of the RMS of the

[[Page 51059]]

authorized composite directional antenna pattern (in relative field). 
The RMS values, for a composite antenna pattern specified in relative 
field values, may be determined from the following formula:

    RMS = the square root of:
    [GRAPHIC] [TIFF OMITTED] TR30SE97.005
    
where the relative field values are taken from at least 36 evenly 
spaced radials for the entire 360 degrees of azimuth. The application 
for license must also demonstrate that coverage of the community of 
license by the 70 dBu contour is maintained for stations authorized 
pursuant to Sec. 73.215 on Channels 221 through 300, as required by 
Sec. 73.315(a), while noncommercial educational stations operating on 
Channels 201 through 220 must show that the 60 dBu contour covers at 
least a portion of the community of license.
* * * * *
    (e) Where an FM licensee or permittee proposes to mount its antenna 
on an AM antenna tower, or locate within 3.2 km of an AM antenna tower, 
the FM licensee or permittee must comply with Sec. 73.1692.
    7. Section 73.525 is amended by adding new paragraph (e)(1)(vii) to 
read as follows:


Sec. 73.525  TV Channel 6 protection.

* * * * *
    (e) * * *
    (1) * * *
    (vii) In cases where the predicted interference area to Channel 6 
television from a noncommercial educational FM station will be located 
within the 90 dBu F(50,50) contour of the television Channel 6 station, 
the location of the FM interfering contour must be determined using the 
assumption that the Channel 6 field strength remains constant at 90 dBu 
everywhere within the 90 dBu TV contour. The FM to Channel 6 U/D signal 
strength ratio specified in Sec. 73.599 corresponding to the Channel 6 
TV field strength of 90 dBu shall be used.
* * * * *
    8. Section 73.681 is amended by adding the following new definition 
in alphabetical order to read as follows:


Sec. 73.681  Definitions.

* * * * *
    Auxiliary facility. An auxiliary facility is an antenna separate 
from the main facility's antenna, permanently installed on the same 
tower or at a different location, from which a station may broadcast 
for short periods without prior Commission authorization or notice to 
the Commission while the main facility is not in operation (e.g., where 
tower work necessitates turning off the main antenna or where lightning 
has caused damage to the main antenna or transmission system) (See 
Sec. 73.1675).
* * * * *
    9. Section 73.685 is amended by revising paragraph (h) to read as 
follows:


Sec. 73.685  Transmitter location and antenna system.

* * * * *
    (h) Where a TV licensee or permittee proposes to mount an antenna 
on an AM antenna tower, or locate within 3.2 km of an AM antenna tower, 
the TV licensee or permittee must comply with Sec. 73.1692.
    10. Section 73.1125 is amended by revising paragraph (b)(2) to read 
as follows.


Sec. 73.1125  Station main studio location.

* * * * *
    (b) * * *
    (2) Written authority to locate a main studio outside a station's 
principal community contour for the first time must be obtained from 
the Audio Services Division, Mass Media Bureau for AM and FM stations, 
or the Television Branch, Video Services Division, Mass Media Bureau 
for television stations before the studio may be moved to that 
location. Where the main studio is already authorized at a location 
outside the station's principal community contour, and the licensee or 
permittee desires to specify a new location also located outside the 
station's principal community contour, written authority must also be 
received from the Commission prior to the relocation of the main 
studio. Authority for these changes may be requested by filing a letter 
with an explanation of the proposed changes with the appropriate 
division. Licensees or permittees should be aware that the filing of a 
letter request for written authority to locate the main studio outside 
the principal community contour does not imply approval of the 
relocation request, because each request is addressed on a case-by-case 
basis. A filing fee is required for commercial AM, FM, or TV licensees 
or permittees filing a letter request under this section (see 
Sec. 1.1104).
* * * * *
    11. Section 73.1620 is amended by revising paragraph (a)(2), adding 
paragraphs (a)(3) and (a)(4), and revising paragraph (b) to read as 
follows:


Sec. 73.1620  Program tests.

    (a) * * *
    (2) The permittee of an FM station with a directional antenna 
system must file an application for license on FCC Form 302-FM 
requesting authority to commence program test operations at full power 
with the FCC in Washington, D.C. This license application must be filed 
at least 10 days prior to the date on which full power operations are 
desired to commence. The application for license must contain any 
exhibits called for by conditions on the construction permit. The staff 
will review the license application and the request for program test 
authority and issue a letter notifying the applicant whether full power 
operation has been approved. Upon filing of the license application and 
related exhibits, and while awaiting approval of full power operation, 
the FM permittee may operate the directional antenna at one half (50%) 
of the authorized effective radiated power. Alternatively, the 
permittee may continue operation with its existing licensed facilities 
pending the issuance of program test authority at the full effective 
radiated power by the staff.
    (3) FM licensees replacing a directional antenna pursuant to 
Sec. 73.1690 (c)(2) without changes which require a construction permit 
(see Sec. 73.1690(b)) may immediately commence program test operations 
with the new antenna at one half (50%) of the authorized ERP upon 
installation. If the directional antenna replacement is an EXACT 
duplicate of the antenna being replaced (i.e., same manufacturer, 
antenna model number, AND measured composite pattern), program tests 
may commence with the new antenna at the full authorized power upon 
installation. The licensee must file a modification of license 
application on FCC Form 302-FM within 10 days of commencing operations 
with the newly installed antenna, and the license application must 
contain all of the exhibits required by Sec. 73.1690(c)(2). After 
review of the modification-of-license application to cover the antenna 
change, the

[[Page 51060]]

Commission will issue a letter notifying the applicant whether program 
test operation at the full authorized power has been approved for the 
replacement directional antenna.
    (4) The permittee of an AM station with a directional antenna 
system must file an application for license on FCC Form 302-AM 
requesting program test authority with the FCC in Washington, DC at 
least ten (10) days prior to the date on which it desires to commence 
program test operations. The application must provide an AM directional 
antenna proof of performance, containing the exhibits required by 
Sec. 73.186. After review of the application to cover the construction 
permit, the Commission will issue a letter notifying the applicant 
whether program test operations may commence. Program test operations 
may not commence prior to issuance of staff approval.
    (b) The Commission reserves the right to revoke, suspend, or modify 
program tests by any station without right of hearing for failure to 
comply adequately with all terms of the construction permit or the 
provisions of Sec. 73.1690(c) for a modification of license 
application, or in order to resolve instances of interference. The 
Commission may, at its discretion, also require the filing of a 
construction permit application to bring the station into compliance 
the Commission's rules and policies.
* * * * *
    12. Section 73.1675 is amended by revising paragraph (c) to read as 
follows:


Sec. 73.1675  Auxiliary facilities.

* * * * *
    (c) (1) Where an FM or TV licensee proposes to use a formerly 
licensed main facility as an auxiliary facility, or proposes to modify 
a presently authorized auxiliary facility, and no changes in the height 
of the antenna radiation center are required in excess of the limits in 
Sec. 73.1690(c)(1), the FM or TV licensee may apply for the proposed 
auxiliary facility by filing a modification of license application. The 
modified auxiliary facility must operate on the same channel as the 
licensed main facility. An exhibit must be provided with this license 
application to demonstrate compliance with Sec. 73.1675(a). All FM and 
TV licensees may request a decrease from the authorized facility's ERP 
in the license application. An FM or TV licensee may also increase the 
ERP of the auxiliary facility in a license modification application, 
provided the application contains an analysis demonstrating compliance 
with the Commission's radiofrequency radiation guidelines, and an 
analysis showing that the auxiliary facility will comply with 
Sec. 73.1675(a). Auxiliary facilities mounted on an AM antenna tower 
must also demonstrate compliance with Sec. 73.1692 in the license 
application.
    (2) Where an AM licensee proposes to use a former licensed main 
facility as an auxiliary facility with an ERP less than or equal to the 
ERP specified on the former main license, the AM station may apply to 
license the proposed auxiliary facility by filing a modification of 
license application on Form 302-AM. The proposed auxiliary facilities 
must have been previously licensed on the same frequency as the present 
main facility. The license application must contain an exhibit to 
demonstrate compliance with Sec. 73.1675(a).
    13. Section 73.1690 is amended by revising paragraphs (b) and (c) 
to read as follows:


Sec. 73.1690  Modification of transmission systems.

* * * * *
    (b) The following changes may be made only after the grant of a 
construction permit application on FCC Form 301 for commercial stations 
or Form 340 for noncommercial educational stations:
    (1) Any construction of a new tower structure for broadcast 
purposes, except for replacement of an existing tower with a new tower 
of identical height and geographic coordinates.
    (2) Any change in station geographic coordinates, including 
coordinate corrections. FM and TV directional stations must also file a 
construction permit application for any move of the antenna to another 
tower structure located at the same coordinates.
    (3) Any change which would require an increase along any azimuth in 
the composite directional antenna pattern of an FM station from the 
composite directional antenna pattern authorized (see Sec. 73.316), or 
any increase from the authorized directional antenna pattern for a TV 
station (see Sec. 73.685).
    (4) Any change in the directional radiation characteristics of an 
AM directional antenna system. See Sec. 73.45 and Sec. 73.150.
    (5) Any decrease in the authorized power of an AM station or the 
ERP of a TV station, or any decrease or increase in the ERP of an FM 
commercial station, which is intended for compliance with the multiple 
ownership rules in Sec. 73.3555.
    (6) For FM noncommercial educational stations, any of the 
following:
    (i) Any increase in the authorized maximum ERP, whether 
horizontally or vertically polarized, for a noncommercial educational 
FM station operating on Channels 201 through 220, or a Class D FM 
station operating on Channel 200..
    (ii) For those FM noncommercial educational stations on Channels 
201 to 220, or a Class D FM station operating on Channel 200, which are 
within the separation distances specified in Table A of Sec. 73.525 
with respect to a Channel 6 television station, any increase in the 
horizontally or vertically polarized ERP from the presently authorized 
ERP.
    (iii) For those FM noncommercial educational stations on Channels 
201 through 220 which are located within the separation distances in 
Sec. 73.525 with respect to a Channel 6 television station, or a Class 
D FM station operating on Channel 200, any decrease in the presently 
authorized horizontal effective radiated power which would eliminate 
the horizontal ERP to result in use of vertical ERP only.
    (iv) For those FM noncommercial educational stations which employ 
separate antennas for the horizontal ERP and the vertical ERP, mounted 
at different heights, the station may not increase or decrease either 
the horizontal ERP or the vertical ERP without a construction permit.
    (7) Any increase in the authorized ERP of a television station, FM 
commercial station, or noncommercial educational FM station, except as 
provided for in Secs. 73.1690(c)(4), (c)(5), or (c)(7), or 
Sec. 73.1675(c)(1) in the case of auxiliary facilities.
    (8) A commercial TV or noncommercial educational TV station 
operating on Channels 14 or Channel 69 may increase its horizontally or 
vertically polarized ERP only after the grant of a construction permit. 
A television station on Channels 15 through 21 within 341 km of a 
cochannel land mobile operation, or 225 km of a first-adjacent channel 
land mobile operation, must also obtain a construction permit before 
increasing the horizontally or vertically polarized ERP (see Part 74, 
Sec. 74.709(a) and (b) for tables of urban areas and corresponding 
reference coordinates of potentially affected land mobile operations).
    (c) The following FM and TV station modifications may be made 
without prior authorization from the Commission. A modification of 
license application must be submitted to the Commission within 10 days 
of commencing program test operations pursuant to Sec. 73.1620. With 
the exception of applications filed solely pursuant to Sections (c)(6), 
(c)(9), or (c)(10), the modification of license application must 
contain an exhibit demonstrating compliance with the

[[Page 51061]]

Commission's radiofrequency radiation guidelines. In addition, except 
for applications solely filed pursuant to Sections (c)(6) or (c)(9), 
where the installation is located within 3.2 km of an AM tower or is 
located on an AM tower, an exhibit demonstrating compliance with 
Sec. 73.1692 is also required.
    (1) Replacement of an omnidirectional antenna with one of the same 
or different number of antenna bays, provided that the height of the 
antenna radiation center is not more than 2 meters above or 4 meters 
below the authorized values. Any concurrent change in ERP must comply 
with Sec. 73.1675(c)(1), 73.1690(4), (c)(5), or (c)(7). Program test 
operations at the full authorized ERP may commence immediately upon 
installation pursuant to Sec. 73.1620(a)(1).
    (2) Replacement of a directional FM antenna, where the measured 
composite directional antenna pattern does not exceed the licensed 
composite directional pattern at any azimuth, where no change in 
effective radiated power will result, and where compliance with the 
principal coverage requirements of Sec. 73.315(a) will be maintained by 
the measured directional pattern. The antenna must be mounted not more 
than 2 meters above or 4 meters below the authorized values. The 
modification of license application on Form 302-FM to cover the antenna 
replacement must contain all of the data in the following sections (i) 
through (v). Program test operations at one half (50%) power may 
commence immediately upon installation pursuant to Sec. 73.1620(a)(3). 
However, if the replacement directional antenna is an exact replacement 
(i.e., no change in manufacturer, antenna model number, AND measured 
composite antenna pattern), program test operations may commence 
immediately upon installation at the full authorized power.
    (i) A measured directional antenna pattern and tabulation on the 
antenna manufacturer's letterhead showing both the horizontally and 
vertically polarized radiation components and demonstrating that 
neither of the components exceeds the authorized composite antenna 
pattern along any azimuth.
    (ii) Contour protection stations authorized pursuant to Sec. 73.215 
or Sec. 73.509 must attach a showing that the RMS (root mean square) of 
the composite measured directional antenna pattern is 85% or more of 
the RMS of the authorized composite antenna pattern. See 
Sec. 73.316(c)(9). If this requirement cannot be met, the licensee may 
include new relative field values with the license application to 
reduce the authorized composite antenna pattern so as to bring the 
measured composite antenna pattern into compliance with the 85% 
requirement.
    (iii) A description from the manufacturer as to the procedures used 
to measure the directional antenna pattern. The antenna measurements 
must be performed with the antenna mounted on a tower, tower section, 
or scale model equivalent to that on which the antenna will be 
permanently mounted, and the tower or tower section must include 
transmission lines, ladders, conduits, other antennas, and any other 
installations which may affect the measured directional pattern.
    (iv) A certification from a licensed surveyor that the antenna has 
been oriented to the proper azimuth.
    (v) A certification from a qualified engineer who oversaw 
installation of the directional antenna that the antenna was installed 
pursuant to the manufacturer's instructions.
    (3) A directional TV station on Channels 2 through 13 or 22 through 
68, or a directional TV station on Channels 15 through 21 which is in 
excess of 341 km (212 miles) from a cochannel land mobile operation or 
in excess of 225 km (140 miles) from a first-adjacent channel land 
mobile operation (see Part 74, Sec. 74.709(a) and (b) for tables of 
urban areas and reference coordinates of potentially affected land 
mobile operations), may replace a directional TV antenna by a license 
modification application, if the proposed horizontal theoretical 
directional antenna pattern does not exceed the licensed horizontal 
directional antenna pattern at any azimuth and where no change in 
effective radiated power will result. The modification of license 
application on Form 302-TV must contain all of the data set forth in 
Sec. 73.685(f).
    (4) Commercial and noncommercial educational FM stations operating 
on Channels 221 through 300 (except Class D), NTSC TV stations 
operating on Channels 2 through 13 and 22 through 68, and TV stations 
operating on Channels 15 through 21 that are in excess of 341 km (212 
miles) from a cochannel land mobile operation or in excess of 225 km 
(140 miles) from a first-adjacent channel land mobile operation [see 
Part 74, Sec. 74.709(a) and (b) for tables of urban areas and reference 
coordinates of potentially affected land mobile operations], which 
operate omnidirectionally, may increase the vertically polarized 
effective radiated power up to the authorized horizontally polarized 
effective radiated power in a license modification application. 
Noncommercial educational FM licensees and permittees on Channels 201 
through 220, that do not use separate antennas mounted at different 
heights for the horizontally polarized ERP and the vertically polarized 
ERP, and are located in excess of the separations from a Channel 6 
television station listed in Table A of Sec. 73.525(a)(1), may also 
increase the vertical ERP, up to (but not exceeding) the authorized 
horizontally polarized ERP via a license modification application. 
Program test operations may commence at full power pursuant to 
Sec. 73.1620(a)(1).
    (5) Those Class A FM commercial stations which were permitted to 
increase ERP pursuant to MM Docket No. 88-375 by a modification of 
license application remain eligible to do so, provided that the station 
meets the requirements of Sec. 73.1690 (c)(1) and is listed on one of 
the Public Notices as authorized to increase ERP, or by a letter from 
the Commission's staff authorizing the change. These Public Notices 
were released on November 3, 1989; November 17, 1989; December 8, 1989; 
March 2, 1990; and February 11, 1991. The increased ERP must comply 
with the multiple ownership requirements of Sec. 73.3555. Program test 
operations may commence at full power pursuant to Sec. 73.1620(a)(1).
    (6) FM contour protection stations authorized pursuant to 
Sec. 73.215 which have become fully spaced under Sec. 73.207 may file a 
modification of license application to delete the Sec. 73.215 contour 
protection designation with an exhibit to demonstrate that the station 
is fully spaced in accordance with Sec. 73.207. The contour protection 
designation will be removed upon grant of the license application. 
Applications filed under this rule section will be processed on a first 
come / first served basis with respect to conflicting FM commercial 
minor change applications and modification of license applications 
(including those filed pursuant to Sec. 73.1690 (b) and (c)(6) and 
(c)(7)).
    (7) FM omnidirectional commercial stations, and omnidirectional 
noncommercial educational FM stations operating on Channels 221 through 
300 (except Class D), which are not designated as contour protection 
stations pursuant to Sec. 73.215 and which meet the spacing 
requirements of Sec. 73.207, may file a license modification 
application to increase ERP to the maximum permitted for the station

[[Page 51062]]

class, provided that any change in the height of the antenna radiation 
center remains in accordance with Sec. 73.1690(c)(1). Program test 
operations may commence at full power pursuant to Sec. 73.1620(a)(1). 
All of the following conditions also must be met before a station may 
apply pursuant to this section:
    (i) The station may not be a ``grandfathered'' short-spaced station 
authorized pursuant to Sec. 73.213 or short-spaced by a granted waiver 
of Sec. 73.207;
    (ii) If the station is located in or near a radio quiet zone, radio 
coordination zone, or a Commission monitoring station (see Sec. 73.1030 
and Sec. 0.121(c)), the licensee or permittee must have secured written 
concurrence from the affected radio quiet zone, radio coordination 
zone, or the Commission's Compliance and Information Bureau in the case 
of a monitoring station, to increase effective radiated power PRIOR to 
implementation. A copy of that concurrence must be submitted with the 
license application to document that concurrence has been received;
    (iii) The station does not require international coordination as 
the station does not lie within the border zones, or clearance has been 
obtained from Canada or Mexico for the higher power operation within 
the station's specified domestic class and the station complies with 
Sec. 73.207(b)(2) and (3) with respect to foreign allotments and 
allocations;
    (iv) The increased ERP will not cause the station to violate the 
multiple ownership requirements of Sec. 73.3555.
    (8) FM commercial stations and FM noncommercial educational 
stations may decrease ERP on a modification of license application 
provided that exhibits are included to demonstrate that all six of the 
following requirements are met:
    (i) Commercial FM stations must continue to provide a 70 dBu 
principal community contour over the community of license, as required 
by Sec. 73.315(a). Noncommercial educational FM stations must continue 
to provide a 60 dBu contour over at least a portion of the community of 
license. The 60 and 70 dBu contours must be predicted by use of the 
standard contour prediction method in Sec. 73.313(b), (c), and (d).
    (ii) For both commercial FM and noncommercial educational FM 
stations, the location of the main studio remains within the 70 dBu 
principal community contour, as required by Sec. 73.1125, or otherwise 
complies with that rule. The 70 dBu contour must be predicted by use of 
the standard contour prediction method in Sec. 73.313(b), (c), and (d).
    (iii) For commercial FM stations only, there is no change in the 
authorized station class as defined in Sec. 73.211.
    (iv) For commercial FM stations only, the power decrease is not 
necessary to achieve compliance with the multiple ownership rule, 
Sec. 73.3555.
    (v) Commercial FM stations, noncommercial educational FM stations 
on Channels 221 through 300, and noncommercial educational FM stations 
on Channels 200 through 220 which are located in excess of the 
distances in Table A of Sec. 73.525 with respect to a Channel 6 TV 
station, may not use this rule to decrease the horizontally polarized 
ERP below the value of the vertically polarized ERP.
    (vi) Noncommercial educational FM stations on Channels 201 through 
220 which are within the Table A distance separations of Sec. 73.525, 
or Class D stations on Channel 200, may not use the license 
modification process to eliminate an authorized horizontally polarized 
component in favor of vertically polarized-only operation. In addition, 
noncommercial educational stations operating on Channels 201 through 
220, or Class D stations on Channel 200, which employ separate 
horizontally and vertically polarized antennas mounted at different 
heights, may not use the license modification process to increase or 
decrease either the horizontal ERP or vertical ERP without a 
construction permit.
    (9) The licensee of an AM, FM, or TV commercial station may propose 
to change from commercial to noncommercial educational on a 
modification of license application, provided that the application 
contains completed Sections II and IV of FCC Form 340. In addition, a 
noncommercial educational AM licensee, a TV licensee on a channel not 
reserved for noncommercial educational use, or an FM licensee on 
Channels 221 to 300 (except Class D FM) on a channel not reserved for 
noncommercial educational use, may apply to change from educational to 
commercial via a modification of license application, and no exhibits 
are required with the application. The change will become effective 
upon grant of the license application.
    (10) Replacement of a transmission line with one of a different 
type or length which changes the transmitter operating power (TPO) from 
the authorized value, but not the ERP, must be reported in a license 
modification application to the Commission.
* * * * *
    14. New Sec. 73.1692 is added to read as follows:


Sec. 73.1692  Broadcast station construction near or installation on an 
AM broadcast tower.

    Where a broadcast licensee or permittee proposes to mount a 
broadcast antenna on an AM station tower, or where construction is 
proposed within 0.8 km of an AM nondirectional tower or within 3.2 km 
of an AM directional station, the broadcast licensee or permittee is 
responsible for ensuring that the construction does not adversely 
affect the AM station, as follows:
    (a) Installations on an AM nondirectional tower. During 
installation of the broadcast antenna and related equipment, the AM 
station shall determine operating power by the indirect method (see 
Sec. 73.51). Upon the completion of the installation, antenna impedance 
measurements on the AM antenna shall be made, and, prior to or 
simultaneously with the filing of the license application covering the 
broadcast station installation, an application on FCC Form 302-AM 
(including a tower sketch of the installation) shall be filed with the 
Commission for the AM station to return to direct power measurement.
    (b) Installations on an AM directional array. Prior to commencing 
construction, the broadcast permittee or licensee shall notify the AM 
station so that, if necessary, the AM station may determine operating 
power by the indirect method (see Sec. 73.51) and request special 
temporary authority pursuant to Sec. 73.1635 to operate with parameters 
at variance in order to maintain monitoring point field strengths 
within authorized limits. Both prior to the commencement of 
construction and upon completion of construction, a partial proof of 
performance (as defined by Sec. 73.154) shall be conducted to establish 
that the AM array has not been adversely affected. Prior to or 
simultaneously with filing of the license application to cover the 
broadcast station construction, the results of the partial proof of 
performance shall be filed with the Commission on Form 302-AM.
    (c) Tower erections or modifications within 0.8 km of an AM 
nondirectional tower. Prior to commencing the construction of tower 
modifications, or the erection of a new tower, within 0.8 km of an AM 
nondirectional tower, the broadcast permittee or licensee is required 
to notify the AM station so that the AM station may commence 
determining operating power by the indirect method (see Sec. 73.51). 
The broadcast licensee or permittee shall be responsible for the 
installation and continued maintenance of detuning apparatus necessary 
to prevent adverse

[[Page 51063]]

effects on the radiation pattern of the AM station. Both prior to 
construction of the tower modifications and upon completion of 
construction, antenna impedance measurements of the AM station shall be 
made. In addition, sufficient field strength measurements taken at a 
minimum of 10 locations along each of 8 equally spaced radials, shall 
be made to establish that the AM radiation pattern is essentially 
omnidirectional. Prior or simultaneously with the filing of the 
application for license to cover this permit, the results of the 
impedance measurements and the field strength measurements shall be 
filed with the Commission on FCC Form 302-AM for the AM station to 
return to the direct method of power determination.
    (d) Tower erections or modifications within 3.2 km of an AM 
directional station. Prior to commencing construction of tower 
modifications, or the erection of a new tower structure, within 3.2 km 
of an AM directional array, the broadcast permittee or licensee shall 
notify the AM station so that, if necessary, the AM station may 
determine operating power by the indirect method (see Sec. 73.51) and 
request special temporary authority pursuant to Sec. 73.1635 to operate 
with parameters at variance in order to maintain monitoring point field 
strengths within authorized limits. The broadcast licensee or permittee 
shall be responsible for the installation and continued maintenance of 
detuning apparatus necessary to prevent adverse effects upon the 
radiation pattern of the AM station. Both prior to the commencement of 
construction and upon completion of construction, a partial proof of 
performance (as defined by Sec. 73.154) shall be conducted to establish 
that the AM array has not been adversely affected. Prior to or 
simultaneously with filing of the license application to cover the 
broadcast station construction, the results of the partial proof of 
performance shall be filed with the Commission on Form 302-AM.
    15. Section 73.3500 is amended by removing the entry for ``Form 
302'' and adding the following entries in the order of the form number 
to read as follows:


Sec. 73.3500  Application and report forms.

* * * * *
Form 302-AM--Application for AM Broadcast Station License
Form 302-TV--Application for Television Broadcast Station License
* * * * *
    16. Section 73.3536 is amended by revising paragraph (b)(1) to read 
as follows:


Sec. 73.3536  Application for license to cover construction permit.

* * * * *
    (b) * * *
    (1)(i) Form 302-AM for AM stations, ``Application for New AM 
Station Broadcast License.''
    (ii) Form 302-FM for FM stations, ``Application for FM Station 
License.''
    (iii) Form 302-TV for television stations, ``Application for TV 
Station Broadcast License.''
* * * * *
    17. Section 73.3537 is amended to read as follows:


Sec. 73.3537  Application for license to use former main antenna as an 
auxiliary.

    See Sec. 73.1675, Auxiliary facility.
    18. Section 73.3538 is amended by revising the introductory text, 
the introductory text of paragraph (a), paragraphs (a)(1), (a)(2), and 
(a)(3), and by removing paragraphs (a)(5), (a)(6) and (a)(7) and adding 
paragraph (b)(3) to read as follows:


Sec. 73.3538  Application to make changes in an existing station.

    Where prior authority is required from the FCC to make changes in 
an existing station, the following procedures shall be used to request 
that authority:
    (a) An application for construction permit using the forms listed 
in Sec. 73.3533 must be filed for authority to:
    (1) Make any of the changes listed in Sec. 73.1690(b).
    (2) Change the hours of operation of an AM station, where the hours 
of operation are specified on the license or permit.
    (3) Install a transmitter which has not been approved (type 
accepted) by the FCC for use by licensed broadcast stations.
* * * * *
    (b) * * *
    (3) Relocation of a main studio outside the principal community 
contour may require the filing and approval of a letter request for 
authority to make this change prior to implementation. See 
Sec. 73.1125.
    19. Section 73.3544 is amended by revising paragraph (a) to read as 
follows:


Sec. 73.3544  Application to obtain a modified station license.

* * * * *
    (a) The changes specified in Sec. 73.1690(c) may be made by the 
filing of a license application using the forms listed in 
Sec. 73.3536(b)(1).
* * * * *

PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER 
DISTRIBUTIONAL SERVICES

    20. The authority citation for part 74 continues to read as 
follows:

    Authority: 47 U.S.C. 154, 307, 554.

    21. Section 74.780 is amended by adding the following entry in 
numerical order to read as follows:


Sec. 74.780  Broadcast regulations applicable to translators, low 
power, and booster stations.

* * * * *
    Section 73.1692--Construction near or installation on an AM 
broadcast tower.
* * * * *
    22. Section 74.1235 is amended by revising paragraph (h) to read as 
follows:


Sec. 74.1235  Power limitations and antenna systems.

* * * * *
    (h) All applications must comply with Sec. 73.316, paragraphs (d) 
and (e) of this chapter.
* * * * *
    23. Section 74.1237 is amended by adding paragraph (e) to read as 
follows:


Sec. 74.1237  Antenna location.

* * * * *
    (e) A translator or booster station to be located on an AM antenna 
tower or located within 3.2 km of an AM antenna tower must comply with 
Sec. 73.1692 of this chapter.

[FR Doc. 97-25788 Filed 9-29-97; 8:45 am]
BILLING CODE 6712-01-P