[Federal Register Volume 64, Number 88 (Friday, May 7, 1999)]
[Rules and Regulations]
[Pages 24523-24528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11503]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 74

[MM Docket No. 97-234, GC Docket No. 92-52, and GEN Docket No. 90-264; 
FCC 99-74]


Implementation of Competitive Bidding for Commercial Broadcast 
and Instructional Television Fixed Service Licenses

AGENCY: Federal Communications Commission.

ACTION: Final rule; petitions for reconsideration.

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SUMMARY: In this document, the Federal Communications Commission 
resolves numerous petitions for reconsideration filed against the 
Commission's earlier report and order in this proceeding that 
implemented provisions of the Balanced Budget Act of 1997 expanding the 
Commission's competitive bidding authority to include the commercial 
broadcast services. The document generally upholds the Commission's 
earlier determinations, but does amend the rules and procedures 
previously adopted with respect to the application of the general 
auction anti-collusion rule to broadcast service auctions and the 
eligibility standards for the new entrant bidding credit.

EFFECTIVE DATE: July 6, 1999.

FOR FURTHER INFORMATION CONTACT: Jerianne Timmerman, Video Services 
Division, Mass Media Bureau at (202)418-1600; Lisa Scanlan, Audio 
Services Division, Mass Media Bureau at (202)418-2700; Lee Martin, 
Office of General Counsel at (202)418-1720.

SUPPLEMENTARY INFORMATION:

Summary

    1. In this Memorandum Opinion and Order adopted April 15, 1999, and 
released April 20, 1999, the Federal Communications Commission resolves 
petitions for reconsideration of the rules and procedures adopted in 
the First Report and Order, 63 FR 48615 (September 11, 1998), to 
implement provisions of the Balanced Budget Act of 1997 expanding the 
Commission's competitive bidding authority to include the commercial 
broadcast services and the Instructional Television Fixed Service 
(ITFS). The Memorandum Opinion and Order denies most issues presented 
in the petitions for reconsideration, but grants certain aspects of the 
petitions, most notably amending the applicability of the general anti-
collusion rule to broadcast service auctions and refining the standards 
for applicants to qualify for the new entrant bidding credit.

Issues Pertaining to Pending Competing Applications

    2. The Memorandum Opinion and Order upholds the Commission's 
determinations made in the First Report and Order with respect to 
pending competing full service commercial broadcast applications. 
Specifically, the Memorandum Opinion and Order denies reconsideration 
petitions: (1) challenging the Commission's decision to use auctions to 
decide among pending competing broadcast applications; (2) requesting 
the reimbursement of all expenses incurred by pending applicants who 
filed with the expectation that the Commission would use a comparative 
hearing to select among competing broadcast applications; (3) 
questioning the determination to defer until after the auction the 
resolution of basic qualifications issues raised against pending 
applicants; (4) challenging the determination that new Section 309(l) 
of the Communications Act permits the opening of a new filing window 
with respect to singleton analog television applications (with freeze 
waiver requests) filed by September 20, 1996; and (5) requesting some 
provision for a specific situation in which a competing applicant with 
interim operating authority has been allowed to operate a contested FM 
station for profit.

Filing and Other Procedural Issues

    3. The Memorandum Opinion and Order upholds the Commission's 
determinations made in the First Report and Order regarding the 
following filing and procedural issues: (1) the utilization of a 
uniform window filing system for all auctionable broadcast services, 
including the FM translator and AM services; (2) allowing applicants 
the option of submitting a set of preferred site coordinates on their 
short-form applications (FCC Form 175) to participate in an FM auction; 
and (3) continuing to use for the filing of short-form applications in 
broadcast auctions the Wide Area Network utilized in previous 
Commission auctions for the filing of short-forms. In response to one 
petition, the Memorandum Opinion and Order extends from 10 to 15 days 
the filing period for petitions to deny against the long-form 
applications filed by winning bidders for construction permits in the 
secondary broadcast services. The Memorandum Opinion and Order also 
clarifies the applicability of Section 1.2112(a) of the general Part 1 
auction rules to broadcast transfer and assignment applications, so as 
to reduce the repetitive submission of similar ownership information.

Competitive Bidding Issues

    4. With regard to competitive bidding issues, the Memorandum 
Opinion and Order rejects the assertion that the imposition of reserve 
prices or minimum opening bids is not in the public interest in the 
broadcast context, and declines to adopt a proposal to resolve any 
remaining competing June 1, 1998 low power television displacement 
applications by means of various suggested priorities. The Memorandum 
Opinion and Order also rejects the contention that the Commission 
should adopt a post-auction procedure where, upon petition by a winning 
bidder, the Commission would consider evidence that the winning bidder 
was the sole qualified applicant for a broadcast authorization, and, in 
cases in which such a demonstration was made that the unsuccessful 
competing bidders for that authorization were unqualified, the winning 
bidder should be relieved of its obligation to remit the payment of its 
winning bid.
    5. A number of petitioners called for an exception to the general 
auction anti-collusion rule to allow, after the filing of short-form 
applications in broadcast auctions, an opportunity for negotiated 
settlements and/or for technical and engineering solutions to remove 
mutual exclusivities before proceeding to auction. Although the 
Memorandum Opinion and Order rejects the contention that the Commission 
is statutorily required to allow such a settlement opportunity prior to 
broadcast service auctions, it concludes that allowing the resolution 
of mutual exclusivities by engineering solutions or other means 
following the submission of short-form applications would serve the 
public interest in the secondary broadcast services, and in ITFS as 
well.
    6. Several petitioners objected to various aspects of the new 
entrant bidding credit, which provides a tiered credit for broadcast 
auction winning bidders with no, or very few, other media interests. In 
response to these petitions, and to promote the clear and consistent 
application of the eligibility standards for the bidding credit, the 
Memorandum Opinion and Order: (1) amends the eligibility standards for 
the bidding credit to be consistent with the

[[Page 24524]]

Commission's general broadcast attribution standards; (2) amends the 
eligibility standards for the credit so that a winning bidder's 
attributable interests in existing secondary broadcast stations are not 
counted among the bidder's other mass media interests in determining 
eligibility; and (3) refines the standards for determining whether a 
winning bidder's proposed broadcast station and the bidder's existing 
station(s) serve the ``same area,'' thereby rendering the bidder 
ineligible for a bidding credit. In addition, the Memorandum Opinion 
and Order declines to increase the size of the tiered new entrant 
bidding credit, and clarifies that the credit applies only to broadcast 
service auctions (and not to ITFS auctions). Finally, the Memorandum 
Opinion and Order states that the Commission will consider in a further 
order in this proceeding an additional refinement to the new entrant 
eligibility standards; specifically, this further order will consider 
whether to attribute debt and/or equity above a certain level, based on 
the Commission's review of the record in the pending broadcast 
attribution proceeding.
    7. The complete text of this Memorandum Opinion and Order, 
including any statements, is available for inspection and copying 
during normal business hours in the Federal Communications Commission 
Reference Center (Room CY-A257), 445 12th Street, S.W., Washington, 
D.C., and it may be purchased from the Commission's copy contractor, 
International Transcription Service, Inc., 1231 20th Street, N.W., 
Washington, D.C. 20036 (202) 857-3800.

Supplemental Final Regulatory Flexibility Analysis

Summary

    8. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 
603, a Final Regulatory Flexibility Analysis (FRFA) was incorporated in 
the First Report and Order in this proceeding. The Commission's 
Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) 
in this Memorandum Opinion and Order reflects revised or additional 
information to that contained in the FRFA. This Supplemental FRFA is 
thus limited to matters raised in response to the First Report and 
Order that are granted on reconsideration in the Memorandum Opinion and 
Order. This Supplemental FRFA conforms to the RFA, as amended by the 
Contract with America Advancement Act of 1996.

Need For and Objectives of Action

    9. The actions taken in this Memorandum Opinion and Order are in 
response to petitions for reconsideration or clarification of the rules 
and policies adopted in the First Report and Order to implement 
provisions of the Balanced Budget Act of 1997 expanding the 
Commission's competitive bidding authority to include the broadcast 
services and the Instructional Television Fixed Service (ITFS). The 
petitions are denied, with certain limited exceptions.

Significant Issues Raised by Public in Response to Final Regulatory 
Flexibility Analysis

    10. No petitions or comments were received in response to the FRFA. 
Small business-related issues were, however, raised indirectly by some 
petitioners, who asked for reconsideration on certain issues affecting 
low power television and television and FM translator applicants (most 
of whom are small businesses).

Description and Estimate of the Number of Small Entities Involved

    11. Definition of a ``Small Business''. Under the RFA, small 
entities may include small organizations, small businesses, and small 
governmental jurisdictions. 5 U.S.C. 601(6). The RFA, 5 U.S.C. 601(3), 
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 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.''
    12. In the FRFA, we utilized the definition of ``small business'' 
promulgated by the SBA, even though, as discussed in detail in the 
FRFA, we tentatively believed that the SBA's definition of ``small 
business'' overstated the number of radio and television broadcast 
stations that were small businesses and was not particularly suitable 
for our purposes. No petitions or comments were received concerning the 
Commission's use of the SBA's small business definition for the 
purposes of the FRFA, and we will therefore continue to employ such 
definition for this Supplemental FRFA.
    13. Issues in Applying the Definition of a ``Small Business''. As 
discussed below, we could not precisely apply the foregoing definition 
of ``small business'' in developing our estimates of the number of 
small entities affected by the revised application and selection 
procedures adopted in the First Report and Order for the broadcast 
services and for ITFS. Our estimates reflect our best judgments based 
on the data available to us.
    14. An element of the definition of ``small business'' is that the 
entity not be dominant in its field of operation. We are unable at this 
time to define or quantify the criteria that would establish whether a 
specific radio or television station is dominant in its field of 
operation. Accordingly, the following estimates of the number of 
broadcasting stations that constitute small businesses do not exclude 
any radio or television station from the definition of small business 
on this basis and are therefore overinclusive to that extent. An 
additional element of the definition of ``small business'' is that the 
entity must be independently owned and operated. As discussed further 
below, we could not fully apply this criterion, and our estimates of 
small businesses to which the amended application and selection 
procedures may apply may be overinclusive to this extent.
    15. With respect to applying the revenue cap, the SBA has defined 
``annual receipts'' specifically in 13 CFR 121.104, and its 
calculations include an averaging process. We do not currently require 
submission of financial data from licensees that we could use in 
applying the SBA's definition of a small business. Thus, for purposes 
of estimating the number of small entities to which the rules apply, we 
are limited to considering the revenue data that are publicly 
available, and the revenue data on which we rely may not correspond 
completely with the SBA definition of annual receipts.
    16. Under SBA criteria for determining annual receipts, if a 
concern has acquired an affiliate or been acquired as an affiliate 
during the applicable averaging period for determining annual receipts, 
the annual receipts in determining size status include the receipts of 
both firms. 13 CFR 121.104(d)(1). The SBA defines affiliation in 13 CFR 
121.103. In this context, the SBA's definition of affiliate is 
analogous to our attribution rules. Generally, under the SBA's 
definition, concerns are affiliates of each other when one concern 
controls or has the

[[Page 24525]]

power to control the other, or a third party or parties controls or has 
the power to control both. 13 CFR 121.103(a)(1). The SBA considers 
factors such as ownership, management, previous relationships with or 
ties to another concern, and contractual relationships, in determining 
whether affiliation exists. 13 CFR 121.103(a)(2). Instead of making an 
independent determination of whether television stations were 
affiliates based on SBA's definitions, we relied on the databases 
available to us to provide us with that information.
    17. Estimates Based on Census Data. The rules and policies adopted 
in the First Report and Order will apply to the various broadcast and 
secondary broadcast services and to ITFS. The SBA 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.
    18. There were 1,509 television stations operating in the nation in 
1992. That number has remained fairly steady as indicated by the 
approximately 1,590 operating television broadcasting stations in the 
nation as of January 1999. For 1992, the number of television stations 
that produced less than $10.0 million in revenue was 1,155 
establishments. Thus, of the 1,590 television stations approximately 
77%, or 1,224, of those stations are considered small businesses. As of 
January 1999, 2136 low power television stations and 4921 television 
translator stations were also licensed, and we believe the vast 
majority of these stations 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 affiliated companies.
    19. The SBA 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 by radio to the public. Included in this 
industry are commercial, religious, educational and other radio 
stations. Radio broadcasting stations that primarily are engaged in 
radio broadcasting and that produce radio program materials are 
similarly included. However, radio stations that are separate 
establishments and are primarily engaged in producing radio program 
material are classified under another SIC number. The 1992 census 
indicates that 96% (5,861 of 6,127) of 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 January 1999, official Commission records indicate that 
12,496 radio stations were operating. We conclude that a similarly high 
percentage (96%) of current radio broadcasting licensees are small 
entities. As of January 1999, there were also 3171 FM translator/
booster stations licensed, and we believe the vast majority of these 
stations 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-radio affiliated companies.
    20. In addition, there are presently 2032 ITFS licensees. All but 
100 of these licenses are held by educational institutions. Educational 
institutions may be included in the definition of a small entity. ITFS 
is a non-pay, non-commercial educational microwave service that, 
depending on SBA categorization, has, as small entities, entities 
generating either $10.5 million or less, or $11.0 million or less, in 
annual receipts. However, we do not collect, nor are we aware of other 
collections of, annual revenue data for ITFS licensees. Thus, we 
conclude that up to 1932 of these licensees are small entities.
    21. Pending and Future Applicants Affected by Rulemaking. The 
auction selection procedures set forth in the First Report and Order 
will affect pending and future competing applicants for the various 
commercial broadcast services and for ITFS. We estimate that there are 
currently pending before the Commission the following mutually 
exclusive applications: (1) approximately 620 mutually exclusive 
applications for full power commercial radio stations, and 165 
competing applications for full power commercial analog television 
stations; (2) approximately 275 mutually exclusive applications for low 
power television stations and television translator stations, and 20 
competing applications for FM translator stations; and (3) 
approximately 200 or more mutually exclusive applications for ITFS 
stations. The Commission has no data on file as to whether entities 
with pending permit applications, which are subject to the new 
competitive bidding selection procedures adopted for the broadcast 
services, meet the SBA's definition of a small business concern. 
However, we conclude that, given the smaller size of the markets at 
issue in the pending applications, most of the entities with pending 
applications for a permit to construct a new primary or secondary 
broadcast station are small entities, as defined by the SBA rules. It 
is not possible, at this time, to estimate the number of markets for 
which mutually exclusive applications will be received, nor the number 
of entities that in the future may seek a construction permit for a new 
broadcast station. Given the fact that fewer new stations (particularly 
fewer analog television stations) will be licensed in the future and 
that these stations generally will be located in smaller, more rural 
areas, we conclude that most of the entities applying for these 
stations will be small entities, as defined by the SBA rules.

Description of Projected Reporting, Recordkeeping and Other Compliance 
Requirements

    22. The First Report and Order adopted a number of rules that 
included reporting, recordkeeping and compliance requirements. These 
requirements were described in detail in the FRFA, and generally remain 
unchanged by the rule amendments adopted in this Memorandum Opinion and 
Order. The rules adopted in this Memorandum Opinion and Order do amend 
the applicability of the general auction anti-collusion rule (see 47 
CFR 1.2105(c)) so that mutually exclusive applicants in the secondary 
broadcast services may discuss settlement or other means of resolving 
their mutual exclusivities following the short-form application filing 
deadline. The Memorandum Opinion and Order also amends our rules to 
clarify that certain ownership disclosure requirements set forth in 
Section 1.2112(a) of the general Part 1 auction rules will not apply to 
applicants seeking consent to assign or transfer control of broadcast 
construction permits or licenses.

Steps Taken to Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered

    23. The FRFA described in considerable detail the steps taken in 
the First Report and Order to minimize significant economic impact on 
small entities and the alternatives considered. The rule amendments 
adopted in this Memorandum Opinion and Order

[[Page 24526]]

should also serve to minimize the adverse impact of our broadcast 
auction rules on small entities. First, the Memorandum Opinion and 
Order amends the applicability of the general auction anti-collusion 
rule so that competing low power television, television and FM 
translator, and ITFS applicants will have an opportunity to settle or 
otherwise resolve their mutual exclusivities following the short-form 
application filing deadline (and thereby avoid the need to go to 
auction). Second, the Memorandum Opinion and Order refines in various 
ways the eligibility standards for the new entrant bidding credit, 
which provides a tiered credit for broadcast auction winning bidders 
with no, or very few, other mass media interests. Third, the Memorandum 
Opinion and Order also lengthens from 10 to 15 days the period for the 
filing of petitions to deny against the long-form applications filed by 
winning bidders in the secondary broadcast services and in ITFS. 
Finally, the Memorandum Opinion and Order reduces the burden on all 
broadcast applicants (including small businesses) seeking consent to 
assign or transfer control of broadcast construction permits or 
licenses by clarifying that the ownership disclosure requirements set 
forth in Section 1.2112(a) of the general auction rules are not 
applicable to such transactions.

Report to Congress

    24. The Commission will send a copy of the Memorandum Opinion and 
Order, including this Supplemental FRFA, in a report to be sent to 
Congress pursuant to the Small Business Regulatory Enforcement Fairness 
Act of 1996. See 5 U.S.C. 801(a)(1)(A). In addition, the Commission 
will send a copy of the Memorandum Opinion and Order, including the 
Supplemental FRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    Authority for issuance of this Memorandum Opinion and Order is 
contained in Sections 4(i) and (j), 301, 303(f), 303(g), 303(h), 
303(j), 303(r), 307(c), 308(b), 309(j), 309(l) and 403 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 301, 
303(f), 303(g), 303(h), 303(j), 303(r), 307(c), 308(b), 309(j), 309(l) 
and 403.

List of Subjects in 47 CFR Parts 73 and 74

    Radio broadcasting, Reporting and recordkeeping requirements, 
Television broadcasting.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    Parts 73 and 74 of Chapter 1 of Title 47 of the Code of Federal 
Regulations are amended as follows:

PART 73--RADIO BROADCAST SERVICES

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

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

    2. Section 73.5002 is amended by revising paragraphs (c) and (d) to 
read as follows:


Sec. 73.5002  Bidding application and certification procedures; 
prohibition of collusion.

* * * * *
    (c) Applicants in all broadcast service or ITFS auctions will be 
subject to the provisions of Sec. 1.2105(b) of this chapter regarding 
the modification and dismissal of their short-form applications. 
Notwithstanding the general applicability of Sec. 1.2105(b) of this 
chapter to broadcast and ITFS auctions, the following applicants will 
be permitted to resolve their mutual exclusivities by making amendments 
to their engineering submissions following the filing of their short-
form applications:
    (1) applicants for all broadcast services and ITFS who file major 
modification applications that are mutually exclusive with each other;
    (2) applicants for all broadcast services and ITFS who file major 
modification and new station applications that are mutually exclusive 
with each other; or
    (3) applicants for the secondary broadcast services and ITFS who 
file applications for new stations that are mutually exclusive with 
each other.
    (d) The prohibition of collusion set forth in Sec. 1.2105(c) of 
this chpater, which becomes effective upon the filing of short-form 
applications, shall apply to all broadcast service or ITFS auctions. 
Notwithstanding the general applicability of Sec. 1.2105(c) of this 
chapter to broadcast and ITFS auctions, the following applicants will 
be permitted to resolve their mutual exclusivities by means of 
engineering solutions or settlements during a limited period after the 
filing of short-form applications, as further specified by Commission 
public notices:
    (1) applicants for all broadcast services and ITFS who file major 
modification applications that are mutually exclusive with each other;
    (2) applicants for all broadcast services and ITFS who file major 
modification and new station applications that are mutually exclusive 
with each other; or
    (3) applicants for the secondary broadcast services and ITFS who 
file applications for new stations that are mutually exclusive with 
each other.
    3. Section 73.5006 is amended by revising paragraphs (b) and (c) to 
read as follows:


Sec. 73.5006  Filing of petitions to deny against long-form 
applications.

* * * * *
    (b) Within ten (10) days following the issuance of a public notice 
announcing that a long-form application for an AM, FM or television 
construction permit has been accepted for filing, petitions to deny 
that application may be filed. Within fifteen (15) days following the 
issuance of a public notice announcing that a long-form application for 
a low power television, television translator or FM translator 
construction permit or ITFS license has been accepted for filing, 
petitions to deny that application may be filed. Any such petitions 
must contain allegations of fact supported by affidavit of a person or 
persons with personal knowledge thereof.
    (c) An applicant may file an opposition to any petition to deny, 
and the petitioner a reply to such opposition. Allegations of fact or 
denials thereof must be supported by affidavit of a person or persons 
with personal knowledge thereof. In the AM, FM and television broadcast 
services, the time for filing such oppositions shall be five (5) days 
from the filing date for petitions to deny, and the time for filing 
replies shall be five (5) days from the filing date for oppositions. In 
the low power television, television translator and FM translator 
broadcast services and in ITFS, the time for filing such oppositions 
shall be fifteen (15) days from the filing date for petitions to deny, 
and the time for filing replies shall be ten (10) days from the filing 
date for oppositions.
* * * * *
    4. Section 73.5007 is revised to read as follows:


Sec. 73.5007  Designated entity provisions.

    (a) New entrant bidding credit. A winning bidder that qualifies as 
a ``new entrant'' may use a bidding credit to lower the cost of its 
winning bid on any broadcast construction permit. Any winning bidder 
claiming new entrant status must have de facto, as well as de jure, 
control of the entity utilizing the bidding credit. A thirty-five (35) 
percent bidding credit will be given to a

[[Page 24527]]

winning bidder if it, and/or any individual or entity with an 
attributable interest in the winning bidder, have no attributable 
interest in any other media of mass communications, as defined in 
Sec. 73.5008. A twenty-five (25) percent bidding credit will be given 
to a winning bidder if it, and/or any individual or entity with an 
attributable interest in the winning bidder, have an attributable 
interest in no more than three mass media facilities. No bidding credit 
will be given if any of the commonly owned mass media facilities serve 
the same area as the proposed broadcast or secondary broadcast station, 
or if the winning bidder, and/or any individual or entity with an 
attributable interest in the winning bidder, have attributable 
interests in more than three mass media facilities. Attributable 
interests held by a winning bidder in existing low power television, 
television translator or FM translator facilities will not be counted 
among the bidder's other mass media interests in determining 
eligibility for a bidding credit.
    (b) The new entrant bidding credit is not available to a winning 
bidder if it, and/or any individual or entity with an attributable 
interest in the winning bidder, have an attributable interest in any 
existing media of mass communications in the same area as the proposed 
broadcast or secondary broadcast facility.
    (1) Any existing media of mass communications will be considered in 
the ``same area'' as a proposed broadcast or secondary broadcast 
facility if the relevant defined service areas of the existing mass 
media facilities partially overlap, or are partially overlapped by, the 
proposed broadcast or secondary broadcast facility's relevant contour.
    (2) For purposes of determining whether any existing media of mass 
communications is in the ``same area'' as a proposed broadcast or 
secondary broadcast facility, the relevant defined service areas of the 
existing mass media facilities shall be as follows:
    (i) AM broadcast station--principal community contour (see 
Sec. 73.3555(a)(4)(i));
    (ii) FM broadcast station--principal community contour (see 
Sec. 73.3555(a)(4)(i));
    (iii) Television broadcast station--television duopoly contour (see 
Sec. 73.3555(b));
    (iv) Cable television system--the franchised community of a cable 
system;
    (v) Daily newspaper--community of publication; and
    (vi) Multipoint Distribution Service station--protected service 
area (see Secs. 21.902(d) or 21.933 of this chapter).
    (3) For purposes of determining whether a proposed broadcast or 
secondary broadcast facility is in the ``same area'' as an existing 
mass media facility, the relevant contours of the proposed broadcast or 
secondary broadcast facility shall be as follows:
    (i) AM broadcast station--principal community contour (see 
Sec. 73.3555(a)(4)(i));
    (ii) FM broadcast station--principal community contour (see 
Sec. 73.3555(a)(4)(i));
    (iii) FM translator station--predicted, protected contour (see 
Sec. 74.1204(a) of this chapter);
    (iv) Television broadcast station--television duopoly contour (see 
Sec. 73.3555(b)); and
    (v) Low power television or television translator station--
predicted, protected contour (see Sec. 74.707(a) of this chapter).
    (c) Unjust enrichment. If a licensee or permittee that utilizes a 
new entrant bidding credit under this subsection seeks to assign or 
transfer control of its license or construction permit to an entity not 
meeting the eligibility criteria for the bidding credit, the licensee 
or permittee must reimburse the U.S. Government for the amount of the 
bidding credit, plus interest based on the rate for ten-year U.S. 
Treasury obligations applicable on the date the construction permit was 
originally granted, as a condition of Commission approval of the 
assignment or transfer. If a licensee or permittee that utilizes a new 
entrant bidding credit seeks to assign or transfer control of a license 
or construction permit to an entity that is eligible for a lower 
bidding credit, the difference between the bidding credit obtained by 
the assigning party and the bidding credit for which the acquiring 
party would qualify, plus interest based on the rate for ten-year U.S. 
Treasury obligations applicable on the date the construction permit was 
originally granted, must be paid to the U.S. Government as a condition 
of Commission approval of the assignment or transfer. The amount of the 
reimbursement payments will be reduced over time. An assignment or 
transfer in the first two years after issuance of the construction 
permit to the winning bidder will result in a forfeiture of one hundred 
(100) percent of the value of the bidding credit; during year three, of 
seventy-five (75) percent of the value of the bidding credit; in year 
four, of fifty (50) percent; in year five, twenty-five (25) percent; 
and thereafter, no payment. If a licensee or permittee who utilized a 
new entrant bidding credit in obtaining a broadcast license or 
construction permit acquires within this five-year reimbursement period 
an additional broadcast facility or facilities, such that the licensee 
or permittee would not have been eligible for the new entrant credit, 
the licensee or permittee will generally not be required to reimburse 
the U.S. Government for the amount of the bidding credit.
    5. Section 73.5008 is amended by revising paragraphs (b) and (c) to 
read as follows:


Sec. 73.5008  Definitions applicable for designated entity provisions.

* * * * *
    (b) A medium of mass communications means a daily newspaper; a 
cable television system; or a license or construction permit for a 
television broadcast station, an AM or FM broadcast station, a direct 
broadcast satellite transponder, or a Multipoint Distribution Service 
station.
    (c) An attributable interest in a winning bidder or in a medium of 
mass communications shall be determined in accordance with Sec. 73.3555 
and Note 2.
    6. Section 73.5009 is revised to read as follows:


Sec. 73.5009  Assignment or transfer of control.

    The reporting requirement contained in Sec. 1.2111(a) of this 
chapter shall apply to an applicant seeking approval for a transfer of 
control or assignment of a broadcast construction permit or license 
within three years of receiving such permit or license by means of 
competitive bidding.

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

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

    Authority: 47 U.S.C. 154, 303, 307, and 554.

    8. Section 74.912 is revised to read as follows:


Sec. 74.912  Petitions to deny.

    (a) Petitions to deny against the long-form applications filed by 
winning bidders in ITFS auctions must be filed in accordance with 
Sec. 73.5006 of this chapter. Petitions to deny against applications 
for transfers of control of ITFS licensees, or for assignments of ITFS 
station licenses, must be filed not later than 30 days after issuance 
of a public notice of the acceptance for filing of the transfer or 
assignment application. In the case of applications for renewal of 
license, petitions to deny may be filed after the issuance of a public 
notice of acceptance for filing of the applications and up until the 
first day of the last full calendar month of the expiring license term. 
Any party in interest may file a petition to deny any notification 
regarding a low power ITFS

[[Page 24528]]

signal booster station, within the 60 day period provided for in 
Sec. 74.985(e).
    (b) The applicant or notifier may file an opposition to any 
petition to deny, and the petitioner a reply to such opposition in 
which allegations of fact or denials thereof shall be supported by 
affidavit of a person or persons with personal knowledge thereof. 
Except with regard to petitions to deny against the long-form 
applications of ITFS auction winners, the times for filing such 
oppositions and replies shall be those provided in Sec. 1.45 of this 
chapter.

[FR Doc. 99-11503 Filed 5-6-99; 8:45 am]
BILLING CODE 6712-01-U