[Federal Register Volume 63, Number 54 (Friday, March 20, 1998)]
[Proposed Rules]
[Pages 13610-13612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6861]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[MM Docket 97-182; DA No. 98-458]
Preemption of State and Local Zoning and Land Use Restrictions on
the Siting, Placement and Construction of Broadcast Transmission
Facilities
AGENCY: Federal Communications Commission.
ACTION: Supplemental proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission has received a petition from the National
Audubon Society (``Audubon'') requesting the preparation of an
Environmental Impact Statement pursuant to the National Environmental
Policy Act, in connection with the Commission's Notice of Proposed Rule
Making in the Matter of Preemption of State and Local Zoning and Land
Use Restrictions on the Siting, Placement and Construction of Broadcast
Station Transmission Facilities. By this Public Notice, interested
parties are invited to file comments as to whether the rule proposed
would have a significant environmental impact and what that impact
would be.
DATES: Comments must be filed on or before April 14, 1998, Reply
Comments must be filed on or before April 29, 1998.
ADDRESSES: All comments should be addressed to Office of the Secretary,
Federal Communications Commission, 1919 M Street, NW, Washington, DC
20554.
FOR FURTHER INFORMATION CONTACT: Amy Nathan or Susanna Zwerling, Policy
and Rules Division, Mass Media Bureau (202) 418-2130.
SUPPLEMENTARY INFORMATION: This is a summary of the Mass Media Bureau's
Public Notice. Also included in this notice is the Initial Regulatory
Flexibility Analysis for the NPRM. The full text of this Notice is
available for inspection and copying during normal business hours in
the FCC Dockets Branch (Room 239), 1919 M Street N.W., Washington, D.C.
The complete text of this Notice may also be purchased from the
Commission's copy contractor, International Transcription Services
(202) 857-3800 2100 M Street, N.W., Suite 140, Washington, D.C. 20037.
Synopsis of Notice
The Commission has received a petition from Audubon requesting the
preparation of an Environmental Impact Statement pursuant to the
National Environmental Policy Act (``NEPA''), 42 U.S.C. 4332, in
connection with the Commission's Notice of Proposed Rule Making In the
Matter of Preemption of State and Local Zoning and Land Use
Restrictions on the Siting, Placement and Construction of Broadcast
Station Transmission Facilities (FCC No. 97-296, MM Docket No. 97-182)
(``NPRM''). Pursuant to 47 CFR 1.1307(c), Audubon is entitled to file
such petition, and the Mass Media Bureau is required to ``review the
petition and consider the environmental concerns that have been
raised.'' This Public Notice addresses only the environmental issues
raised by Audubon's petition, and represents just one part of the
Commission's ongoing proceeding in MM Docket No. 97-182.
The NPRM requested comment on whether and in what circumstances the
Commission should preempt certain state and local actions on zoning and
land use ordinances which present an obstacle to the rapid
implementation of digital television service. The Commission released
the NPRM on August 19, 1997 published September 2, 1997 (62 FR 46241),
comments were due October 30, 1997, and reply comments were due
December 1, 1997.
Audubon filed its petition on December 1, 1997, requesting that the
Commission prepare an Environmental Impact Statement (``EIS'') and
solicit public comment on that EIS. Audubon alleges that the rule
proposed by the NPRM constitutes a major federal action affecting the
environment, and therefore requiring the preparation of an EIS pursuant
to NEPA. In addition, Audubon alleges that the Commission's regulations
require an environmental analysis of any action that may affect a
listed species or may lead to construction in wetlands. 47 CFR
1.1307(c)
By this Public Notice, we seek comment as to first, whether the
proposal contained in the NPRM would have a significant environmental
effect such that an EIS should be prepared; and second, what would be
the environmental effect of the proposal.
The initiation of this proceeding is not intended to affect in any
way the expeditious processing of digital television construction
permit applications. This proceeding also will not affect the current
requirement that licensees represent that their applications meet the
requirements of NEPA. The Mass Media Bureau takes very seriously the
responsibilities conferred by NEPA to evaluate the effects of its
actions on the quality of the environment. The Bureau continues to
review applicants' representations of
[[Page 13611]]
compliance with section 1.1307 and with NEPA.
Comments on this Public Notice must be filed on or before April 14,
1998, and reply comments must be filed by April 29, 1998. To file
formally in this proceeding, participants must file an original and
four copies of all comments, reply comments, and supporting comments.
All comments should reference FCC Docket No. 97-296 and MM Docket No.
97-182 and should be addressed to: Office of the Secretary, Federal
Communications Commission, 1919 M Street, NW, Washington, DC 20554.
Initial Regulatory Flexibility Analysis
The Federal Register notice for the NPRM, released August 19, 1997,
omitted the Initial Regulatory Flexibility Analysis (``IRFA'')
connected with the NPRM. A synopsis of that IRFA follows.
As required by section 603 of the Regulatory Flexibility Act
(``RFA''), 5 U.S.C. 603, the Commission is incorporating an IRFA of the
expected impact on small entities of the policies and proposals in the
NRPM. Written public comments concerning the effect of the proposals in
the NRPM including the IRFA, on small businesses are requested.
Comments must be identified as responses to the IRFA and must be filed
by the deadlines for the submission of comments in this proceeding. The
Office of Public Affairs shall send a copy of the NPRM, including the
IRA, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act.
Reasons Why Agency Action is Being Considered
In its Fifth Report and Order in its digital television proceeding
(MM Docket No. 87-268) the Commission adopted an accelerated roll-out
schedule for digital television stations. That schedule requires the
top four network affiliates in the top ten television markets to
construct their digital television facility and begin emitting signals
by May 1, 1999. Affiliates of these four networks in markets 11-30 must
be on the air by November 1, 1999. All other commercial stations will
have to construct their DTV facilities by May 1, 2002, and
noncommercial stations by May 1, 2003. The Commission found this
accelerated schedule necessary to promote the success of DTV and allow
for spectrum recovery, a goal shared by Congress. In a rule making
petition filed by the National Association of Broadcasters and the
Association of Maximum Service Television the Petitioners claim that
state and local zoning and land use laws, ordinances, and procedures
may have a delaying effect on the siting, placement and construction of
new television towers that will be needed for DTV. Additionally, they
contend, the antennas of many FM radio stations will need to be
displaced from existing towers to enable them to support new DTV
antenna arrays and these FM stations will have to build new towers to
enable them to continue to serve the public. Accordingly, they ask the
Commission to adopt a rule preempting state and local laws, ordinances
and procedures that could work to delay the inauguration of DTV
service. The Commission believes the prompt deployment of DTV is
essential to several goals, and that compliance with such local
requirements may, at least in some cases, both make compliance with
both these procedures and the roll-out schedule impossible.
Additionally, it believes that some of these state and local
regulations may stand as obstacles to the accomplishment of the rapid
transition to DTV service and the spectrum recovery that it will
permit. This recovery is also an important congressional purpose as
evidenced by its 1996 adoption of 47 U.S.C. 336.
Need for and Objectives of the Proposed Rule Changes
Petitioners have demonstrated that at least some state and local
zoning and land use laws, ordinances and procedures may, unless
preempted by the Commission, prevent television broadcasters from
meeting the construction schedule for DTV stations established by the
Commission, retarding the recovery of frequency spectrum by the
government for reallotment and delaying digital service to the public.
Additionally, in some cases they may result in discontinuation of FM
radio service to the public should displaced FM antennas be unable to
relocate to new antenna towers.
Legal Basis
Authority for the actions proposed in this NPRM may be found in
sections 4(i), 303(r), and 336 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), and 336. Recording, Recordkeeping,
and Other Compliance Requirements The Commission is not proposing any
new or modified recordkeeping or information collection requirements in
this proceeding. Federal Rules that Overlap, Duplicate, or Conflict
with the Proposed Rules: The initiatives and proposed rules raised in
this proceeding do not overlap, duplicate or conflict with any other
rules. Description and Estimate of the Number of Small Entities to
Which the Proposed Rules Will Apply: Under the RFA, small entities may
include small organizations, small businesses, and small governmental
jurisdictions. The RFA generally defines the term small business as
having the same meaning as the term small business concern under the
Small Business Act, 15 U.S.C. 632. 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''). 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.'' The proposed rules and policies will apply to television
broadcasting licensees, radio broadcasting licensees and potential
licensees of either service. The Small Business Administration defines
a television broadcasting station that has no more than $10.5 million
in annual receipts as a small business. Television broadcasting
stations consist of 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
are establishments primarily engaged in television broadcasting and
which produce taped television program materials. Separate
establishments primarily engaged in producing taped television program
materials are classified under another SIC number. There were 1,509
television stations operating in the nation in 1992. That number has
remained fairly constant as indicated by the approximately 1,558
operating television broadcasting stations in the nation as of May 31,
1997. For 1992 the number of television stations that produced less
than $10.0 million in revenue was 1,155 establishments.
Additionally, the Small Business Administration defines a radio
broadcasting station that has no more than $5 million in annual
receipts as a small business. A radio broadcasting station is an
establishment primarily engaged in broadcasting aural programs
[[Page 13612]]
by radio to the public. Included in this industry are commercial
religious, educational, and other radio stations. Radio broadcasting
stations which primarily are engaged in radio broadcasting and which
produce radio program materials are similarly included. However, radio
stations which are separate establishments and are primarily engaged in
producing radio program material are classified under another SIC
number. The 1992 Census indicates that 96 percent (5,861 of 6,127)
radio station establishments produced less than $5 million in revenue
in 1992. Official Commission records indicate that 11,334 individual
radio stations were operating in 1992. As of May 31, 1997, official
Commission records indicate that 12,156 radio stations were operating,
of which 7,342 were FM stations.
Thus, the proposed rules will affect many of the approximately
1,558 television stations; approximately 1,200 of those stations are
considered small businesses. Additionally, the proposed rules will
affect some of the 12,156 radio stations, approximately 11,670 of which
are small businesses. 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.
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. We invite comment on this number.
Any Significant Alternatives Minimizing the Impact on Small
Entities and Consistent with the Stated Objectives
This NPRM solicits comment on a variety of alternatives discussed
herein. Any significant alternatives presented in the comments will be
considered. The Commission believes that the proposed rules and
policies may be necessary to promote the speedy deployment of digital
television service and the prompt recovery of broadcast frequency
spectrum for reallotment. We seek comment on this belief.
Report to Small Business Administration
The Commission shall send a copy of this Initial Regulatory
Flexibility Analysis along with this Notice to the Small Business
Administration pursuant to the RFA.
List of Subjects in 47 CFR Part 1
Television, Radio broadcasting.
Federal Communications Commission.
Roy J. Stewart,
Chief, Mass Media Bureau.
[FR Doc. 98-6861 Filed 3-19-98; 8:45 am]
BILLING CODE 6712-01-P