[Federal Register Volume 64, Number 127 (Friday, July 2, 1999)]
[Rules and Regulations]
[Pages 35941-35948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16831]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 97-138; FCC 99-118]
Main Studio and Local Public Inspection Files for Broadcast
Stations
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This document revises and clarifies the Commission's rules
regarding the main studio and local public inspection files of
broadcast television and radio stations. The intended effect of this
action is to amend the retention requirements as well as other required
changes to the Commission's rules.
EFFECTIVE DATE: August 2, 1999.
FOR FURTHER INFORMATION CONTACT: Victoria McCauley, Policy and Rules
Division, Mass Media Bureau (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's MO&O,
FCC 99-118, adopted May 25, 1999; released May 28, 1999. The full text
of the Commission's MO&O is available for inspection and copying during
normal business hours in the FCC Dockets Branch (Room TW-A306), 445
12th St. S.W., Washington, D.C, 20554. The complete text of this MO&O
may also be purchased from the Commission's copy contractor,
International Transcription Services (202) 857-3800, 1231 20th St.,
N.W., Washington, D.C. 20036.
Synopsis of Memorandum Opinion and Order
1. In the Report and Order (``R&O''), 63 FR 49487 (September 16,
1998), in this proceeding, we amended our rules regarding the main
studio and local public inspection file for broadcast stations. In
doing so, our goals were twofold: to strike an appropriate balance
between ensuring that the public has
[[Page 35942]]
reasonable access to each station's main studio and public file while
minimizing regulatory burdens on licensees, and to adopt clear rules
that are easy to administer and understand. Consistent with these
goals, we provided broadcast licensees additional flexibility in
locating their main studios, required the collocation of public files
and main studios, and clarified and updated our rules regarding the
required contents of the public inspection files. In addition, we
adopted an accommodation that requires stations to make available, by
mail upon telephone request, photocopies of documents in the public
file, including our revised version of ``The Public and Broadcasting.''
2. We have received five partial or limited petitions for
reconsideration of the R&O in this proceeding and one opposition to the
petitions for reconsideration. In response to these petitions for
reconsideration, we take this opportunity to affirm, revise, or clarify
certain of our actions. We will modify the rules by amending the scope
of the accommodation and by revising slightly and clarifying the
document retention requirements. We also address other requested
changes.
A. Accommodation
3. In the R&O, we amended section 73.1125 of our rules to allow a
station to locate its main studio at any location that is within either
the principal community contour of any station, of any service,
licensed to its community of license or 25 miles from the reference
coordinates of the center of its community of license, whichever it
chooses. We also amended sections 73.3526 and 73.3527 of our rules to
require all stations to locate their public files, which include their
political files, at their main studios. Because these rule changes
could result in a station's public file being located a greater
distance from its community of license than previously permitted, as an
accommodation, we also amended sections 73.3526 and 73.3527 to require
all stations to make available, by mail upon telephone request,
photocopies of documents in the public and political file. As adopted,
the rules continue to provide that the station may require the person
requesting the copies to pay the reasonable cost of photocopying in
advance and require the station to pay postage. To facilitate requests
for public file documents over the telephone, the new rules also
require stations to provide callers, if they wish to receive one, a
copy of the new edition of ``The Public and Broadcasting'' free of
charge. We did not amend the requirements regarding program origination
capability, staff presence or toll-free service.
4. One petitioner argues that some of the newly adopted provisions
are unduly burdensome and should be substantially modified or deleted
and that the Administrative Procedure Act, the Paperwork Reduction Act
and the Regulatory Flexibility Act bar the Commission from lawfully
adopting any of the new requirements. Another petitioner argues that
the accommodation should be retained as adopted, and apply to all
broadcasters stations equally.
5. Discussion. We will retain the accommodation with modifications
as discussed below. We continue to believe that the accommodation is
necessary and reasonable now that broadcasters have much more
flexibility in locating their public files. We disagree with State
Broadcasters that our R&O in this proceeding was contrary to the APA,
the PRA or the RFA. The R&O was based on a thorough record developed
after a full opportunity for comment on the proposed changes to the
rules in question. Our decision reasonably met our stated goals of
``balancing between ensuring that the public has reasonable access to
each station's main studio and public file and minimizing the
regulatory burdens on licensees.'' Our decision was also based on the
``bedrock obligation'' of each broadcast licensee to serve the needs
and interests of its community of license. The PRA and RFA require
agencies to ensure that they do not impose unnecessary burdens on
members of industry, including small businesses and the public.
However, neither the PRA nor the RFA requires any administrative agency
to reduce burdens if to do so would undermine the agency's ability to
fulfill the obligations of its originating statute. Pursuant to the PRA
and RFA, we sought comment on the paperwork burdens and the regulatory
burdens on small businesses in the Notice of Proposed Rule Making and
received no comments. We also analyzed these burdens in the R&O and
found that our actions properly balanced the needs of the entities
involved and the public, and imposed no unnecessary burdens. In
addition, the rules were approved by the Office of Management and
Budget, which specifically analyzed any paperwork burdens.
6. At the time we adopted the R&O, we considered several different
methods of accommodation and weighed the comparative burdens and public
benefits associated with each. Our determination struck a reasonable
balance among the competing proposals raised in the record. We
considered such proposals as requiring courier, fax or e-mail delivery,
or requiring stations to make their studio available at non-business
hours by appointment and found that such proposals were not reasonable
either because they would not serve the public universally or would
unduly burden stations. We also considered a proposal to require
stations either to provide transportation to requesters, or to
transport the public file to them, and determined that such
accommodations would be unreasonably burdensome to station owners. On
the other hand, we considered such suggestions as allowing a licensee
to choose the actual method of public access, and concluded that this
approach would not assure reasonable accommodations for the public. We
found that the accommodation furthers our stated goals of balancing
public access with regulatory burden and ease and clarity of
administration. We considered comments arguing, as does State
Broadcasters in its Petition, that the accommodation could discourage
stations from locating outside the community, and that it could, if not
limited, result in frivolous or harassing requests. As we noted in the
R&O, we believe that the rules as adopted address many of these
concerns. For example, a requestor is entitled to ``The Public and
Broadcasting,'' which should provide adequate guidance to make an
intelligent request for information. In addition, the rules regarding
public file contents, as revised, will be much easier to understand and
administer for both licensees and the public seeking information.
Again, as we stated in the R&O, the person seeking documents from a
station's public file will continue to be required to pay the
reasonable expenses of photocopying, which should reduce the
possibility for abusive and frivolous requests.
7. In response to concerns raised by various petitioners, we will
nonetheless modify the accommodation in several respects as discussed.
The modifications we adopt will more narrowly tailor the accommodation,
and thereby lessen regulatory burdens without undermining the public's
ability to acquire reasonable access to relevant information about a
broadcast station.
8. Geographic Limitation. On reconsideration, we will revise
sections 73.3526(c)(2) and 73.3527(c)(2) to require that only those
stations whose public file is located at a main studio outside the city
limits of the community of license be required to provide the
accommodation. We believe that this narrowing of the accommodation is
justified. Stations that remain in the
[[Page 35943]]
community of license should be reasonably accessible to the public they
serve. Indeed, we adopted the accommodation in the R&O in order to
compensate for the fact that broadcasters may now move their public
files to more distant locations outside the community of license. If a
station chooses to locate its main studio and public file in its
community of license under the new rules, the public file will be
reasonably accessible just as before, and there should be no need for
the accommodation. We will not, however, exempt from the accommodation
stations whose public files are outside the community at the main
studio pursuant to a waiver granted prior to our R&O in this
proceeding. Under the new rule, these stations no longer require a
waiver and thus should be treated in the same manner as other stations
in the same circumstances.
9. We also will revise sections 73.3526(c)(2) and 73.3527(c)(2) to
limit the required mailing area for documents requested by phone to the
geographic service area of the station in question. Stations will not
be required to provide this accommodation to persons outside this area.
For a TV station, this area is defined by the area encompassed by the
station's Grade B contour; for a radio station, it is the area within
the station's protected service contour. This will clarify the scope of
the accommodation requirement and minimize disputes over who is
eligible for the accommodation. We nonetheless encourage, but will not
require, stations to make the accommodation to persons living outside
that immediate service area who may be able to view or listen to the
station. We urge stations to act in good faith to accommodate viewers
and listeners who reasonably claim to receive their signal even though
they reside outside the relevant service contour.
10. We believe that narrowing the accommodation in this fashion is
consistent with the underlying goals of this proceeding which focused
on ensuring the continued access of local viewers and listeners of each
station, even where a station relocates its main studio outside of its
community of license. Given the limited purpose of the accommodation,
we believe the accommodation should be tailored to the listeners and
viewers that are served by the station. We acknowledge that, as MAP,
et. al., have pointed out, the accommodation, if not limited to a
station's geographic service area, could offer collateral benefits,
such as mail access to local citizens' attorneys who happen to be
located outside the service area, or allowing citizens to compare
performance of local broadcasters with distant broadcasters, or
enabling national organizations and academics to collect information
from broadcasters nationwide. Such considerations, however, are beyond
the scope of this process and we do not address them here.
11. Specific Guidelines. In the R&O we granted stations the ability
to require payment for copies prior to mailing them and noted that
stations would be required to send a copy of ``The Public and
Broadcasting'' free of charge to anyone requesting it. We declined to
impose a numerical limit on accommodation requests a member of the
public could make.
12. We decline to adopt the petitioners' proposals that we further
delineate the types and amount of information stations are to give over
the telephone. We reiterate our determination in the R&O. Therein, we
gave an example of the type of telephone service we envisioned:
stations, if asked, should describe to a caller the number of pages and
time periods covered by a particular ownership report or children's
television programming report, or the types of applications actually
maintained in the station's public file and the dates they were filed
with the FCC. As we stated, we also encourage stations to place the
descriptions of their public files on the Internet. Again, we will not
set a numerical limit on telephone requests. Particularly with the
modifications we make to the accommodation today, we do not expect
licensees to be unduly burdened by this requirement. Nor are we
convinced that citizen requests for information will be made in bad
faith to any significant extent, or that stations will be overwhelmed
by such requests. A licensee, may, of course, seek a waiver or special
relief from the Commission in the event such circumstances arise.
13. We also decline to adopt or recommend a specific form to be
used by stations when fulfilling telephone requests. Stations may, of
course, at their discretion, use forms to streamline the processing of
requests and collection of associated charges. In addition, we will
retain our original requirement that stations pay the cost of postage
for mailing the documents requested by telephone. We believe this cost
is reasonable considering the flexibility that the new rules grants to
stations and the additional cost to the public of travelling to the
more distant main studio location in order to view the file in person.
14. Exempt Political File. The R&O made no substantive change to
the political file rules. The only change in procedure regarding the
political file was that requests for the political file's contents were
included in the accommodation just as any other aspect of the public
file would be. Prior to the effective date of the rules, we granted a
temporary and partial stay of the effective date of the accommodation
provision only as it applied to requests to gain access to the contents
of stations' political files. This effective date was stayed only until
the end of the Fall 1998 election season, which occurred only days
after the actual effective date of the rules.
15. We will grant petitioners' request and not require that
stations extend the accommodation to requests for the political file.
We believe that this change balances the needs of broadcasters with the
needs of the public. A petitioner states that its experience shows that
candidates or their representatives are the heaviest visitors to a
station's public file. These persons may make daily or even more
frequent requests for political file information during a campaign,
because the information is in flux throughout each day of the campaign.
As we recognized at the time we granted the temporary stay, a heavy
volume of telephone calls could unduly disrupt a station's operations.
This volume of telephone requests could occur in any election season.
In exempting the political file from the accommodation, we also expect
that candidates or their representatives, when seeking political file
information in their professional capacities, are more likely to have
greater resources and be more able to access the main studio and public
file in person than would an average citizen. Since candidates or their
representatives, rather than the general public, are the persons most
likely to be affected by this exemption, we do not believe that the
exemption will adversely affect the public interest.
B. Document Retention Requirements
16. Applications. In the R&O, the Commission amended sections
73.3526 and 73.3527 to provide that all applications be retained in a
station's public file during the period each application is pending or,
if granted pursuant to a waiver, during the period that the waiver
remains in effect. Those rules had previously contained confusing
requirements for retention which many parties requested we revise. In
the R&O we revised the rule to include all applications, but we
clarified and shortened the period of retention to the period during
which an application remains pending. We also
[[Page 35944]]
changed the retention period of applications granted pursuant to a
waiver to the period during which the waiver is in effect.
17. We affirm sections 73.3526 and 73.3527 as revised in the R&O.
We are not persuaded by the argument that we should adhere to the
spirit of the original public file proceeding in 1965 to require
retention only of those applications that require local public notice.
Members of the public may very well have an interest in reviewing all
of a licensee's pending applications, even those not placed on local
public notice. Moreover, our amendment to this rule to include all
applications in the public file simplifies this rule greatly. We
believe that the addition of some applications will not burden
stations, because the number of additional applications is small, and
inclusion of all applications relieves licensees and permitees of the
need to seek counsel regarding the question of which applications need
be kept. In addition, we amended this rule to change the retention
period of applications to the period during which they are pending
before the Commission or the courts. This shortens and clarifies the
retention period which previously had required that applications be
retained throughout the renewal period during which they were filed.
18. With respect to retaining applications granted pursuant to a
waiver, we reaffirm our decision to require retention of all
applications granted pursuant to a waiver for the duration of the
waiver's applicability. As we stated in the R&O, we believe these
applications must remain available to the public for the entire period
the waiver is in effect to ensure the public can assist the FCC in
evaluating licensee performance in light of the representations made in
the application and waiver request. We also believe that the burden of
retaining the application is outweighed by the need to keep an accurate
and complete record of a station's operations. We decline to apply this
requirement only to particular types of waivers. To do so could
undermine the public's ability to examine licensee performance under
the waiver, and could also unduly complicate what should be a
straightforward and easy-to-apply requirement.
19. Electronic Mail. In the R&O, we amended our rules to require
licensees to retain e-mail messages as well as traditional printed
communications. We will modify this requirement. Section 73.3526(e)(9)
was modified to extend the retention requirements to the same sort of
e-mail communications as have historically applied to traditional mail
communications. We recognize that personal e-mails in the workplace
have become quite common, much more so than letters, and that our
requirement may have had an overbroad result. To ensure that only e-
mails regarding the operation of the station be retained, we will limit
the e-mail retention requirement to e-mails sent to a publicly
advertised e-mail address, or to station management, and we will
specifically exclude the personal e-mails of staff members. We expect
this exclusion of personal e-mail to avoid the possible overbroad
effect of including e-mail sent to a lower level employee that might
contain an inconsequential reference to station operation. We encourage
stations to advertise e-mail addresses to which comments and
suggestions may be sent, but we do not require this.
20. Donors' Lists. Section 73.3527(a)(8) of our rules requires that
noncommercial educational stations maintain the lists of donors
supporting specific programs. In the R&O, we considered but denied a
petition asking us to delete this requirement from the public file.
That petition argued that this provision was obsolete because it is
rooted in the program log requirements that were deleted in 1980. This
issue was again raised on reconsideration.
21. We disagree that this provision is obsolete. As we stated in
the R&O, the donor list requirement is tied to our sponsorship
identification requirements under Section 317 of the Act and section
73.1212 of our rules, which require noncommercial educational stations
to acknowledge donors. The basic premise of these provisions is that
the public is entitled to know by whom they are being persuaded. The
donor list requirement for noncommercial licensees is related to the
Commission's determination that noncommercial educational stations are
permitted to limit their on-air program sponsorship announcements to
major donors or underwriters only, but must maintain a complete donor
list in their public files. Although donor lists originated as an
optional alternative to logging, they were deliberately retained when
the logging requirements were deleted, and stations retained their
obligations to identify donors in accordance with section 73.1212.
Parties had ample notice and opportunity to comment on this provision
in this Docket, and their positions were given full consideration. The
donor lists provide the only complete information regarding program
sponsorship on noncommercial stations, and therefore will be retained.
We note that the list for each program must be maintained for two years
after broadcast of the program.
22. With respect to the definition of ``donors supporting specific
programs,'' we will apply the same definition as applies to
``sponsors'' under the sponsorship identification provisions. That is,
we expect licensees under Section 317(a)(2)(c) of the Act to exercise
``reasonable diligence'' to obtain the requisite information to assure
that a proper identification is made. We note in this regard that
section 73.1212(e) requires licensees to disclose the ``true identity''
of those on whose behalf a payment is made. In making this
determination, unless furnished with ``credible, unrefuted evidence''
that a sponsor is acting on behalf of a third party, the broadcaster
may rely on the plausible assurances of the person paying for the time
that they are the true sponsor.
23. Letters concerning violent programming. Section 73.1202 of our
rules requires that licensees of commercial AM, FM and Television
broadcast stations retain in their public files for three years all
written comments and suggestions received from the public regarding
station operation. Section 73.3526 implements this provision with
similar language. There is no similar provision requiring licensees of
noncommercial educational stations to retain such written
correspondence. In the R&O we nonetheless required that all
noncommercial television licensees include in their renewal
applications a summary of any letters they receive regarding violent
programming even though these licensees are not required to retain such
letters themselves under our rules. We based this determination on
Section 204(b) of the Telecommunications Act of 1996 (``1996 Act'').
This section amended Section 308(d) of the Communications Act of 1934
to require that
[e]ach applicant for the renewal of a commercial or noncommercial
television license shall attach as an exhibit to the application a
summary of written comments and suggestions received from the public
and maintained by the licensee (in accordance with Commission
regulations) that comment on the applicant's programming, if any,
and that are characterized by the commenter as constituting violent
programming.
In the R&O we found that this requirement was appropriate in light
of Congress' concern with violent programming, and would help ensure
that the Commission and the public are kept informed of concerns raised
by the public about such programming on both commercial and
noncommercial stations.
[[Page 35945]]
24. A petitioner argues that since, under the Commission's rules,
noncommercial stations are not required to maintain letters from the
public, and the Commission has not revised this requirement, Section
308(d) does not contemplate a summary of letters to be filed by any
noncommercial educational television licensee at renewal.
25. On reconsideration, we grant petitioner's request. Section
308(d) requires licensees to summarize only those letters maintained by
licensees ``in accordance with Commission regulations.'' In the R&O, we
did not amend section 73.3527 to require noncommercial educational
licensees to retain letters from the public regarding violent
programming. Since noncommercial educational licensees are not required
to maintain these letters under our rules, we will not require them to
file a summary of letters received with their renewal, even if they
voluntarily retain the letters they receive. Without such a limitation,
noncommercial stations would be subject to the more onerous burden of
summarizing letters received during the entire renewal term while
commercial broadcasters would be required to summarize only those
letters received during the last three years of their renewal term. We
believe this is consistent with the plain meaning of the statute. We
also note that reports regarding violent television programming have
raised little concern about the programming aired by noncommercial
educational television stations.
26. Ownership Reports for Noncommercial Educational Stations. The
R&O made an editorial amendment to the public file rule for
noncommercial educational stations, 47 CFR 73.3527, to add the
requirement, previously omitted, that those stations retain in their
public files, a copy of their most recently filed complete ownership
report (FCC Form 323-E) ``together with any subsequent supplemental
report or statement filed with the FCC certifying that the current
report is accurate. * * *'' We made this change to reflect the same
requirement in the rule governing ownership reports, 47 CFR 73.3615.
27. We will retain the rule as revised. In the Mass Media
Streamlining R&O, we amended section 73.3615 to require noncommercial
educational stations to file ownership reports with the same frequency
as commercial stations are required to file. The requirement in section
73.3527 that noncommercial educational licensees retain in the public
file the most recent, complete ownership report on file with the FCC
for the station, and a certification that the current report is
accurate, is fully consistent with this amendment to section 73.3615.
C. Miscellaneous Matters
28. Issuance of ``The Public and Broadcasting''. In the R&O we
stated that the Commission's staff would issue a revised version of the
broadcast manual, ``The Public and Broadcasting.'' One petitioner asks
that the Commission solicit public comment on this manual prior to
issuing it.
29. We do not believe that it is necessary to solicit public
comment on ``The Public and Broadcasting.'' The manual is merely a
summary of our existing policies and rules relating to broadcast
stations, including the changes to the rules enacted in this docket. It
will be revised from time to time and issued on the Commission's web
page so that stations can keep the most updated version in their public
files. We disagree that this document requires notice and comment. The
manual will not effectuate any rule change, but merely provides a
general summary of our rules and policies for the public.
30. Official Source for City-Center Coordinates. In the R&O we
amended the rule governing main studio location to allow a station to
locate its main studio at any location that is within either the
principal community contour of any station, of any service, licensed to
its community of license or 25 miles from the reference coordinates of
the center of its community of license. For Commission licensing
purposes as set forth in section 73.208 of our rules, a community's
reference coordinates are generally the coordinates listed in the
United States Department of Interior publication entitled ``Index to
the National Atlas of the United States'' (``Atlas Index''). An
alternative reference point, if none is listed in the Atlas Index, are
the coordinates of the main post office. A petitioner argues that the
Atlas Index is out-of-date and out-of-print and thus requires
replacement.
31. We are not amending section 73.208(a)(1) at this time. We do
not believe that this change is necessary at this time and is beyond
the scope of this proceeding as it would affect the use of city-center
coordinates for other licensing purposes. We do not anticipate many
instances involving a discrepancy with city-center coordinates. In the
event problems with community coordinates arise, we will address them
on a case-by-case basis.
32. Main Studio Issues. One petitioner asks that we clarify that
stations operating pursuant to a main studio or public file waiver
prior to the R&O in this proceeding who are now in compliance with our
rules, be relieved of special obligations placed on them as a condition
of grant of the waiver. It cites to obligations such as regular visits
to the community by station management, establishment of a Citizens
Advisory Board to meet with station management twice a year, coverage
of local events in programming, maintenance of the public file in the
community and providing toll-free telephone service to the community
which it admits are a restatement of a licensee's obligation under any
circumstances. To address these concerns, we clarify that stations
whose waivers are moot because their operations now are in compliance
with the Commission's rules with respect to main studio location are no
longer subject to any conditions placed on them by a previously granted
waiver of the main studio or public file rules. These stations are,
however, of course obligated to comply with all Commission rules,
including those regarding toll-free telephone service and coverage of
local issues, just as all other licensees.
33. Another petitioner filed a Petition for Clarification or
Declaratory Ruling requesting that noncommercial educational stations
that operate as satellite stations pursuant to a main studio waiver be
allowed to locate their public files at the main studio of the main
``feeder'' station. In the R&O, we stated that all stations, including
those operating pursuant to a main studio waiver, would be required to
locate their public files at their main studios, wherever located. We
hereby clarify that this includes noncommercial educational satellite
stations operating under a main studio waiver. These stations must
maintain their public files at the main studios of the stations at
which their programming is originated, and must provide the
accommodation to listeners or residents as required under the amended
rules.
III. Administrative Matters
34. Paperwork Reduction Act of 1995 Analysis. The action contained
herein has been analyzed with respect to the Paperwork Reduction Act of
1995 and found to impose no new or modified reporting and recordkeeping
requirements or burdens on the public.
35. Supplemental Final Regulatory Flexibility Analysis. As required
by the Regulatory Flexibility Act (RFA), an Initial Regulatory
Flexibility Analysis (``IRFA'') was incorporated into the Notice of
Proposed Rulemaking, 62 FR 32061 (June 12, 1997), in this
[[Page 35946]]
proceeding. The Commission sought written public comment on the
expected impact of the proposed policies and rules on small entities in
the Notice, including comments on the IRFA. Based on the comments in
response to the Notice, the Commission included a Final Regulatory
Flexibility Analysis (``FRFA'') into the R&O. While no petitioners
seeking reconsideration of the R&O raised issues directly related to
the FRFA, the Commission is amending the rules in a manner that may
affect small entities. Accordingly, this Supplemental Regulatory
Flexibility Analysis (``Supplemental FRFA'') addresses those amendments
and conforms to the RFA.
36. Need for Action and Objectives of the Rule: The need for and
objectives of the modifications adopted in this MO&O are the same as
those discussed in the Final Regulatory Analysis in the R&O. The main
studio and public inspection file rules seek to ensure that members of
the local community have access to the broadcast stations that are
obligated under the FCC's rules to serve them. Our goals here are to
relieve undue regulatory burdens on licensees while retaining their
basic obligations to serve their communities of license, and adopt a
rule that is clear and easy to administer.
B. Summary of Significant Issues Regarding FRFA Raised in Petitions for
Reconsideration
37. No parties address the FRFA in their petitions for
reconsideration, or any subsequent filings. We note, however, that
State Broadcasters claim that the Regulatory Flexibility Act bars the
Commission from lawfully adopting any of the new requirements. They
argue that the burdens of the ``new requirements'' will violate the
RFA, again because they do not provide an exemption for any
broadcasters, particularly those who choose not to relocate their
public files. Noting how they believe the accommodation provisions will
particularly affect small broadcasters, they allege that the Commission
has not limited the regulatory burdens placed on small businesses as
required by the RFA, and therefore that the public file/political file
requirements contradict the intent of the RFA. Our action today
modifying the accommodation will alleviate some of the concerns
expressed by State Broadcasters. We exempt broadcasters whose main
studios and public files are located in the community of license, and
narrow the scope of the mailing requirement of the accommodation to
persons within the service area of the station. The first exemption
will alleviate the burden on some small broadcasters and the second
will relieve all broadcasters, including small broadcasters.
C. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
38. 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
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 4 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.''
39. As noted, an FRFA was incorporated into the R&O. In that
analysis, the Commission described in detail the various kinds of small
business entities that may be affected by these rules. In this MO&O, we
address petitions for reconsideration filed in response to the R&O. In
this Supplemental FRFA, we incorporate by reference the description and
estimate of the number of small entities from the previous FRFA in this
proceeding.
D. Description of Reporting, Recordkeeping and Other Compliance
Requirements
40. The MO&O adopts modifications to the rules adopted in the R&O,
which further modify existing recordkeeping requirements. The MO&O
declines to repeal the accommodation. The MO&O, however, narrows the
accommodation to require that only those stations whose public file is
located at a main studio outside the city limits of the community of
license provide the accommodation. It also revises the accommodation to
limit the required mailing area for documents requested by phone to the
geographic service area of the station in question. In addition, the
item specifically exempts from the accommodation requests for documents
from the political file.
41. Regarding document retention, the MO&O declines to adopt a
requirement that stations retain only applications requiring local
public notice. It also declines to delete the rules requiring
noncommercial educational stations to retain donors' lists and
ownership certifications of ``no change.'' The MO&O amends the rule
requiring retention of all e-mails pertaining to station operation and
limits the retention requirement to e-mails pertaining to station
operation sent to a publicly advertised e-mail address, or to station
management, specifically excluding the personal e-mails of staff
members.
42. The MO&O also declines to solicit public comment on ``The
Public and Broadcasting'' prior to its issuance, and denies a request
that we amend the rule designating the official source for city-center
coordinates. In addition, the draft deletes the requirement in the R&O
that noncommercial educational stations include with their renewal a
summary of letters they received through the license term concerning
violent programming. It clarifies that stations that were previously
granted waivers and that now operate in compliance with the rules are
no longer bound by any of the terms of the waiver. It further clarifies
that stations operating under a main studio waiver, especially
satellite noncommercial educational stations, are required to maintain
their public files at their main studio at the station at which their
programming originates and must comply with the terms of the
accommodation as amended.
43. The MO&O restricts the application of the accommodation by
geographic scope and volume of material. It reduces which materials are
required to be kept in the public file, and clarifies the required
retention period for public file materials. No special skills will be
necessary to comply with these requirements. This reduces the burden on
licensees, both by clearly defining what must be retained, and the
period during which it must be retained.
Considered:
44. By narrowing the accommodation to require that only those
stations whose public file is located at a main studio outside the city
limits of the community of license provide the accommodation, the MO&O
reduces burdens on small entities who choose not to relocate outside
their communities of license. By limiting the accommodation to mailing
to persons within the geographic service area of the station in
question, the MO&O reduces burdens on all licensees, including small
entities. In addition, the item specifically exempts from the
accommodation requests for documents
[[Page 35947]]
from the political file, which will reduce burdens.
45. Amending the rule to exclude personal e-mail of employees and
restricting the retention requirement to e-mail sent to a publicized
box or to station management reduces burdens on small entities. By
relieving stations that were previously granted waivers and that now
operate in compliance with the rules of the conditions of their waivers
we reduce burdens on small entities who previously were required to
take specific steps to accomplish community outreach to are no longer
bound by any of the terms of the waiver. By clarifying that stations
operating under a main studio waiver, especially satellite
noncommercial educational stations, are required to maintain their
public files at their main studio at the station at which their
programming originates and must comply with the terms of the
accommodation as amended, we reduce burdens on those stations of
maintaining separate public files.
F. Federal Rules that May Duplicate, Overlap, or Conflict With the
Proposed Rules
46. None.
47. Report to Congress: The Commission will send a copy of the
MO&O, including this SFRFA, 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 MO&O, including SFRFA, to the Chief Counsel for Advocacy of the
Small Business Administration. A copy of the Main Studio and Public
Inspection File MO&O and SFRFA (or summaries thereof) will also be
published in the Federal Register. See 5 U.S.C. 604(b).131.
Ordering Clauses
48. Accordingly, it is ordered that, pursuant to the authority
contained in Sections 154, 303, and 307 of the Communications Act of
1934, as amended, 47 U.S.C. 154, 303, and 307, 47 CFR 73.3526 and
73.3527 are amended, as set forth in the rule changes.
49. It is further ordered that, the rule changes set forth shall be
effective 30 days after publication in the Federal Register.
50. It is further ordered that the Petitions for Reconsideration in
this proceeding are granted to the extent described, and are otherwise
denied.
51. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this MO&O,
including the Supplementary Final Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy of the Small Business Administration.
52. It is further ordered that upon release of this MO&O, this
proceeding is hereby terminated.
List of Subjects in 47 CFR Part 73
Radio broadcasting, Television broadcasting.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Part 73 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority citation for Part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, and 336.
2. Sec. 73.3526 is amended by revising paragraphs (c)(2), and
(e)(9) to read as follows:
Sec. 73.3526 Local public inspection file of commercial stations.
* * * * *
(c) * * *
* * * * *
(2) The applicant, permittee, or licensee who maintains its main
studio and public file outside its community of license shall:
(i) Make available to persons within its geographic service area,
by mail upon telephone request, photocopies of documents in the file
(see Sec. 73.3526(c)(1)), excluding the political file (see
Sec. 73.3526(e)(6)), and the station shall pay postage;
(ii) Mail the most recent version of ``The Public and
Broadcasting'' to any member of the public that requests a copy; and
(iii) Be prepared to assist members of the public in identifying
the documents they may ask to be sent to them by mail, for example, by
describing to the caller, if asked, the period covered by a particular
report and the number of pages included in the report.
Note to Paragraph (c)(2): For purposes of this section,
geographic service area includes the area within the Grade B contour
for TV, 1 mV/m contour for all FM station classes except .7 mV/m for
Class B1 stations and .5 mV/m for Class B stations, and .5 mV/m
contour for AM stations.
* * * * *
(e) * * *
* * * * *
(9) Letters and e-mail from the public. (i) All written comments
and suggestions received from the public regarding operation of the
station, unless the letter writer has requested that the letter not be
made public or when the licensee feels that it should be excluded from
public inspection because of the nature of its content, such as a
defamatory or obscene letter. Letters and electronic mail messages
shall be retained for a period of three years from the date on which
they are received by the licensee.
(ii) For purposes of this section, written comments and suggestions
received from the public include electronic mail messages transmitted
via the internet to station management or an e-mail address publicized
by the station. Personal e-mail messages sent to station employees need
not be retained. Licensees may retain e-mails either on paper or in a
computer file. Licensees who choose to maintain a computer file of e-
mails may make the file available to the public either by providing the
public with access to a computer terminal at the location of the public
file, or providing the public with a copy of such e-mails on computer
diskette, upon request. In the case of identical communications,
licensees and permittees may retain one sample copy of the letter or
electronic mail message together with a list identifying other parties
who sent identical communications.
* * * * *
3. Sec. 73.3527 is amended by revising paragraphs (c)(2), and
(e)(9), and by revising the first sentence of paragraph (e)(4) to read
as follows:
Sec. 73.3527 Local public inspection file of noncommercial educational
stations.
* * * * *
(c) * * *
* * * * *
(2) The applicant, permittee, or licensee who maintains its main
studio and public file outside its community of license shall:
(i) Make available to persons within its geographic service area,
by mail upon telephone request, photocopies of documents in the file
(see Sec. 73.3527(c)(1)), excluding the political file (see
Sec. 73.3527(e)(5)), and the station shall pay postage;
(ii) Mail the most recent version of ``The Public and
Broadcasting'' to any member of the public that requests a copy; and
(iii) Be prepared to assist members of the public in identifying
the documents they may ask to be sent to them by mail, for example, by
describing to the caller, if asked, the period covered by a
[[Page 35948]]
particular report and the number of pages included in the report.
Note to Paragraph (c)(2): For purposes of this section,
geographic service area includes the area within the protected
service contour in a particular service: Grade B contour for TV, 1
mVm contour for all FM station classes except .7 mV/m for Class B1
stations and .5 mV/m for Class B stations, and .5 mV/m contour for
AM stations.
* * * * *
(e) * * *
* * * * *
(4) Ownership reports and related materials. A copy of the most
recent, complete ownership report filed with the FCC for the station,
together with any subsequent statement filed with the FCC certifying
that the current report is accurate, and together with all related
material. * * *
* * * * *
(9) Donor lists. The lists of donors supporting specific programs.
These lists shall be retained for two years from the date of the
broadcast of the specific program supported.
* * * * *
[FR Doc. 99-16831 Filed 7-1-99; 8:45 am]
BILLING CODE 6712-01-U