[Federal Register Volume 65, Number 129 (Wednesday, July 5, 2000)]
[Proposed Rules]
[Pages 41401-41404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16821]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[MM Docket No. 00-105; FCC 00-203]


Broadcast Services; Radio Stations, Television Stations

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document proposes to eliminate the Commission rule that 
prohibits an entity from controlling more than one experimental 
broadcast station license absent a showing of need. As a result of the 
preliminary determination in the Commission's biennial review 
proceeding that this rule is no longer necessary in the public interest 
as a result of competition, this document proposes to eliminate the 
subject provision.

DATES: Comments are due by September 1, 2000 , and reply comments are 
due by October 2, 2000.

ADDRESSES: Federal Communications Commission, 445 12th Street, S.W., 
Washington, D.C. 20554

FOR FURTHER INFORMATION CONTACT: Roger Holberg, Mass Media Bureau, 
Policy and Rules Division, (202) 418-2134.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Notice of Proposed Rule Making (NPRM) in MM Docket No. 00-105, FCC 00-
203, adopted June 5, 2000, and released June 20, 2000. The complete 
text of this NPRM is available for inspection and copying during normal 
business hours in the FCC Reference Center, Room CY-A257, 445 12th 
Street, S.W., Washington, D.C. and may also be purchased from the 
Commission's copy contractor, International Transcription Service 
(202)857-3800, 445 12th Street, S.W., Room CY-B402, Washington, D.C. 
The NPRM is also available on the Internet at the Commission's website: 
http://www.fcc.gov.

Synopsis of Notice of Proposed Rule Making

    1. By this NPRM the Commission proposes to eliminate the multiple 
ownership rule for experimental broadcast stations which now provides 
that no entity may control more than one experimental license absent a 
showing of need (47 CFR 74.134). We seek comment on whether this rule 
remains necessary to achieve goals of competition and diversity in the 
broadcast market. The Commission stated in the Biennial Review Notice 
of Inquiry (Notice of Inquiry, In the Matter of 1998 Biennial 
Regulatory Review, Review of the Commission's Broadcast Ownership Rules 
and Other Rules Adopted Pursuant to Section 202 of the 
Telecommunications Act of 1996, 13 F.C.C.R. 11276, 11293-94 (1998) 
(NOI)) a tentative belief that this rule has a negligible impact on 
these goals and sought comment on whether this rule remains necessary 
in the public interest. Accordingly, this NPRM seeks comment on the 
repeal of Sec. 74.134. Commenters advocating less than the outright 
repeal of the rule are encouraged to propose alternatives to the 
current restriction.

I. Background

    2. The multiple ownership rule for experimental broadcast stations 
was adopted in 1946 and generally limited ownership to one station. In 
1963 this rule was redesignated as part 74 (74.134) with no changes. In 
1984 the Commission combined parts 74 A (Experimental TV), 74 B 
(Experimental Facility) and 74 C (Developmental Broadcast Stations) 
into the present subpart 74 A (Experimental Broadcast Stations) without 
changing the ownership limit.
    3. By Section 202(h) of the Telecommunications Act of 1996 (Public 
Law 104-104, 110 Stat. 56 (1996)), Congress directed the Commission to 
review its broadcast ownership rules as part of the biennial ownership 
review. That section requires the Commission to review its broadcast 
ownership rules biennially and to determine whether any of these rules 
are necessary in the public interest as the result of competition. 
Furthermore, it requires the Commission to ``repeal or modify any 
regulation it determines to be no longer in the public interest.''
    4. Subpart A of part 74 of the Commission's Rules \1\ sets forth 
the rules for licensing ``experimental broadcast stations,'' which are 
defined as stations ``licensed for experimental or developmental 
transmission of radio telephony, television, facsimile, or other types 
of telecommunication services intended for reception and use by the 
general public.'' Experimental broadcast facilities are used to carry 
on ``research and experimentation for the development and advancement 
of new broadcast technology, equipment, systems or services which are 
more extensive or require other modes of transmission than can be 
accomplished by using a licensed broadcast station under an 
experimental authorization.'' The rules governing experimental 
broadcast stations encourage innovation while protecting existing 
services from interference. Licensees are subject to operating and 
reporting requirements and are prohibited from using the experimental 
broadcast facility in a commercial manner.
    5. Currently, Sec. 74.134 states that ``[n]o persons (including all 
persons under common control) shall control, directly or indirectly, 
two or more experimental broadcast stations unless a showing is made 
that the program of research requires a licensing of two or more 
separate stations.'' This NPRM proposes

[[Page 41402]]

the repeal of this limitation on ownership.

II. Discussion

    6. It appears that Sec. 74.134 was intended to limit experimental 
licensees to the minimum spectrum use necessary and to prevent them 
from aggregating a sufficient number of stations under the guise of 
experimentation to enable them to operate a commercial service on these 
stations. We believe, however, that other rules and requirements will 
adequately assure these ends and that the ownership limitation may, 
therefore, no longer be necessary. Because licensees are prohibited 
from commercial use of experimental broadcast stations, such a licensee 
may not charge, directly or indirectly, for the production or 
transmission of any programming or information used for experimental 
broadcast purposes. Nor may it transmit program material unless it is 
necessary to the experiments being conducted, and no regular program 
service may be broadcast unless specifically authorized. Thus, repeal 
of the multiple ownership rule would not appear to affect the 
Commission's ability to ensure that experimental stations are used 
solely for bona fide experimental purposes. Furthermore, because a 
license for an experimental broadcast station does not grant the 
exclusive use of a frequency, no licensee is able to control multiple 
frequencies. The Commission believes that these other sections of our 
experimental broadcast station rules provide sufficient protection to 
prevent entities from operating on a commercial basis while functioning 
under the guise of an experimental authorization. Since experimental 
broadcast facilities do not exert influence on the competitive market 
we believe ownership limits are unduly restrictive. Allowing a party to 
have more than one experimental broadcast station license, however, may 
permit efficiencies to be realized in the operation of such stations, 
permitting resources to be devoted to research more efficiently. This 
will promote the Commission's statutory charge to ``[s]tudy new uses 
for radio, provide for experimental uses of frequencies, and generally 
encourage the larger and more effective use of radio in the public 
interest.''
    7. In the only comment filed in response to our NOI with regard to 
the instant rule, the National Association of Broadcasters (NAB) 
recommended repeal of this rule. It contended that broadcast auxiliary 
facilities are facing regulatory change and dislocation and, 
accordingly, there is now an even greater need for responsible use of 
experimental stations to develop solutions to these problems. NAB 
supported elimination of what it characterized as an ``arbitrary 
restriction,'' and urged the Commission to ensure that such stations do 
not endanger the interference-free service provided by broadcasters. We 
tentatively agree with the NAB's assessment of Sec. 74.134.
    8. Accordingly, we tentatively conclude that elimination of 
Sec. 74.134 will have no adverse impact on our diversity and 
competition goals. We also tentatively conclude that the protections 
afforded by our operations, non-interference, and reporting rules are 
sufficient to assure such stations are used for the purposes for which 
they are intended and use no more spectrum than needed. Accordingly, we 
believe that the multiple ownership rule governing experimental 
broadcast stations is no longer necessary in the public interest and 
propose its repeal. We invite comment on this matter.

III. Administrative Matters

    11. Comments and Reply Comments. Pursuant to Secs. 1.415 and 1.419 
of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may 
file comments on or before September 1, 2000, and reply comments on or 
before October 2, 2000. Comments may be filed using the Commission's 
Electronic Comment Filing System (ECFS) or by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 
(1998).
    12. Comments filed through ECFS can be sent as an electronic file 
via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, 
only one copy of an electronic submission must be filed. In completing 
the transmittal screen, commenters should include their full name, 
Postal Service mailing address, and the applicable docket or rulemaking 
number. Parties may also submit an electronic comment via e-mail. To 
get filing instructions for e-mail comments, commenters should send an 
e-mail to [email protected], and should include the following words in the 
body of the message, ``get form your e-mail address>.'' A sample form 
and directions will be sent in reply.
    13. Parties who choose to file by paper must file an original and 
four copies of each filing. All filings must be sent to the 
Commission's Secretary, Magalie Roman Salas, Office of the Secretary, 
Federal Communications Commission, 445 Twelfth Street, SW., TW-A325, 
Washington, DC 20554.
    14. Parties who choose to file paper should also submit their 
comments on diskette. These diskettes should be addressed to: Wanda 
Hardy, Paralegal Specialist, Mass Media Bureau, Policy and Rules 
Division, Federal Communications Commission, 445 Twelfth Street, SW., 
2-C221, Washington, DC 20554. Such a submission should be on a 3.5 inch 
diskette formatted in an IBM compatible format using Word 97 or 
compatible software. The diskette should be accompanied by a cover 
letter and should be submitted in ``read only'' mode. The diskette 
should be clearly labeled with the commenter's name, proceeding 
(including the lead docket number in this case (MM Docket No. 00-105), 
type of pleading (comment or reply comment), date of submission, and 
the name of the electronic file on the diskette. The label should also 
include the following phrase ``Disk Copy--Not an Original.'' Each 
diskette should contain only one party's pleadings, preferably in a 
single electronic file. In addition, commenters must send diskette 
copies to the Commission's copy contractor, International Transcription 
Service, Inc., 445 Twelfth Street, SW., CY-B402, Washington, DC 20554.
    15. Comments and reply comments will be available for public 
inspection during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 Twelfth Street, SW., CY-A257, 
Washington, DC 20554. Persons with disabilities who need assistance in 
the FCC Reference Center may contact Bill Cline at (202) 418-0270, 
(202) 418-2555 TTY, or [email protected]. Comments and reply comments also 
will be available electronically at the Commission's Disabilities 
Issues Task Force web site: www.fcc.gov/dtf. Comments and reply 
comments are available electronically in ASCII text, Word 97, and Adobe 
Acrobat.
    16. This document is available in alternative formats (computer 
diskette, large print, audio cassette, and Braille). Persons who need 
documents in such formats may contact Martha Contee at (202) 4810-0260, 
TTY (202) 418-2555, or [email protected].
    17. Ex Parte Rules. This proceeding will be treated as a ``permit-
but-disclose'' proceeding, subject to the ``permit-but-disclose'' 
requirements under Sec. 1.1206(b) of the rules. 47 CFR 1.1206(b), as 
revised. Ex parte presentations are permissible if disclosed in 
accordance with Commission rules, except during the Sunshine Agenda 
period when presentations, ex parte or otherwise, are generally 
prohibited. Persons making oral ex parte presentations are reminded 
that a memorandum summarizing a presentation must contain a summary of

[[Page 41403]]

the substance of the presentation and not merely a listing of the 
subjects discussed. More than a one or two sentence description or the 
views and arguments presented is generally required. See 47 CFR 
1.1206(b)(2), as revised. Additional rules pertaining to oral and 
written presentations are set forth in Sec. 1.1206(b).
    18. Initial Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act, see 5 U.S.C. 603, the Commission has 
prepared an IRFA of the possible economic impact on small entities of 
the proposals contained in this NPRM. Written public comments are 
requested on the IRFA. In order to fulfill the mandate of the Contract 
with America Advancement Act of 1996 regarding the Final Regulatory 
Flexibility Analysis, we ask a number of questions in our IRFA 
regarding the prevalence of small businesses in the television 
broadcasting industry. Comments on the IRFA must be filed in accordance 
with the same filing deadlines as comments on the NPRM, and must have a 
distinct heading designating them as a response to the IRFA. The 
Reference Information Center, Consumer Information Bureau, will send a 
copy of this Notice, including the IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration.
    19. As required by the Regulatory Flexibility Act (``RFA''), the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in this NPRM. Written 
public comments are requested on this IRFA. Comments must be identified 
as responses to the IRFA and must be filed by the deadlines for 
comments on the NPRM provided in paragraph 11. The Commission will send 
a copy of the Notice, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration. See 5 U.S.C. 603(a). In 
addition, the NPRM and the IRFA (or summaries thereof) will be 
published in the Federal Register. See id.

A. Need for, and Objectives of, the Proposed Rules

    20. Section 202(h) of the Telecom Act requires the Commission to 
review its broadcast ownership rules every two years, beginning in 
1998, and to ``determine whether any of such rules are necessary in the 
public interest as the result of competition.'' It instructs the 
Commission to repeal or modify any regulation it determines to be no 
longer in the public interest. In its first Biennial Report, issued as 
a result of Section 202(h) of the Telecom Act, the Commission 
tentatively determined that the experimental broadcast multiple 
ownership rule appeared to no longer be in the public interest. 
Accordingly, in compliance with the provisions of Section 202(h) of the 
Telecom Act, the Commission is commencing this proceeding in order to 
repeal or to examine the need to retain Sec. 74.134 of its rules.

B. Legal Basis

    21. This NPRM is adopted pursuant to sections 1, 2(a), 4(i), 303, 
307, 309, 310, of the Communications Act, 47 U.S.C. 151, 152(a), 
154(i), 303, 307, 309, 310, and Section 202(h) of the 
Telecommunications Act of 1996.

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

    22. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The Regulatory Flexibility 
Act defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small business 
concern'' under section 3 of the Small Business Act. 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 SBA.
    23. 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. A ``small organization'' is generally ``any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.'' Nationwide, as of 1992, there were 
approximately 275,801 small organizations. ``Small governmental 
jurisdiction'' generally means ``governments of cities, counties, 
towns, townships, villages, school districts, or special districts with 
a population of less than 50,000.'' As of 1992, there were 
approximately 85,006 such jurisdictions in the United States. This 
number includes 38,978 counties, cities, and towns; of these, 37,566, 
or 96 percent, have populations of fewer than 50,000. Thus, of the 
85,006 governmental entities, we estimate that 81,600 (91 percent) are 
small entities.
    24. The Small Business Administration defines a radio broadcasting 
station that has $5 million or less 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. 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 September 30, 
1999, Commission records indicate that 12,615 radio stations (both 
commercial and noncommercial) were operating of which 2,066 were 
noncommercial educational FM radio stations. Applying the 1992 
percentage of station establishments producing less than $5 million in 
revenue (i.e., 96 percent) to the number of radio stations in 
operation, (i.e., 12,615) indicates that 12,109 of these radio stations 
would be considered ``small businesses'' or ``small organizations.''
    25. The SBA defines small television broadcasting stations as 
television broadcasting stations with $10.5 million or less in annual 
receipts. There are currently 1,243 commercial television stations and 
373 non-commercial educational television stations on the air. 
According to Commission staff review of the BIA Publications, Inc., 
Master Access Television Analyzer Database, fewer than 800 commercial 
TV broadcast stations (65%) have revenues of less than $10.5 million 
dollars. We note, however, that under SBA's definition, revenues of 
affiliates that are not television stations should be aggregated with 
the television station revenues in determining whether a concern is 
small. Our estimate may thus overstate the number of small entities 
since the revenue figure on which it is based does not include or 
aggregate revenues from non-television affiliated companies. 
Accordingly, it appears that the proposed revisions would affect no 
more than 800 television stations that might be considered ``small 
businesses'' or ``small organizations.''
    26. The NPRM proposes to eliminate the bar on the ability of 
licensees to hold licenses for more than one experimental broadcast 
station. We seek comment and data regarding the number of small 
entities that may be affected by the proposed elimination of our 
experimental broadcast station multiple ownership.

[[Page 41404]]

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    27. There currently are no recordkeeping or other compliance 
requirements associated with the subject rule. The NPRM proposes no new 
recordkeeping or other compliance requirements.

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

    28. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives: (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    29. As indicated above, the NPRM proposes to eliminate the subject 
rule and to allow licensees to have more than a single experimental 
broadcast license irrespective of their reason for seeking such 
multiple licenses. Significant alternatives were recently considered in 
the Commission's 1998 biennial review of its broadcast ownership rules 
(MM Docket No. 98-35). Those alternatives were: (1) Retention of the 
current rule; (2) modification of the current rule; (3) elimination of 
the current rule. In that proceeding the Commission determined that 
elimination of the subject provision would be in the public interest. 
The Commission considered the results of this top-to-bottom review of 
the subject rule in its consideration of alternatives to the course 
proposed herein in the instant proceeding. Under the proposal in this 
NPRM, small entities will be able to obtain multiple experimental 
broadcast station licenses, as will all broadcast licensees.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    30. None.
    31. Initial Paperwork Reduction Act Analysis. This NPRM may contain 
either proposed or modified information collections. As part of our 
continuing effort to reduce paperwork burdens, we invite the general 
public to take this opportunity to comment on the information 
collections contained in this NPRM, as required by the Paperwork 
Reduction Act of 1996. Public and agency comments are due at the same 
time as other comments on the NPRM. Comments should address: (a) 
Whether the proposed collection of information is necessary for the 
proper performance of the functions of the Commission, including 
whether the information shall have practical utility; (b) ways to 
enhance the quality, utility, and clarity of the information collected; 
and (c) ways to minimize the burden of the collection of information on 
the respondents, including the use of automated collection techniques 
or other forms of information technology. In addition to filing 
comments with the Secretary, a copy of any comments on the information 
collections contained herein should be submitted to Judy Boley, Federal 
Communications Commission, 445 Twelfth Street, SW., Room C-1804, 
Washington, DC 20554, or via the Internet to [email protected] and to 
Edward C. Springer, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW., 
Washington, DC 20503 or via the Internet to 
[email protected].
    32. Additional Information. For additional information on this 
proceeding, please contact Roger Holberg, Policy and Rules Division, 
Mass Media Bureau, (202) 418-2134, (202) 418-1169 TTY.

IV. Ordering Clauses

    33. Accordingly, pursuant to the authority contained in sections 1, 
2(a), 4(i), 303, 307, 309, and 310 of the Communications Act, as 
amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, and 310, and 
Section 202(h) of the Telecommunications Act of 1996, this NPRM is 
adopted.
    34. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of this NPRM, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration in accordance with the 
Regulatory Flexibility Act.

List of Subjects in 47 CFR Part 74

    Radio broadcasting, Television broadcasting.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 00-16821 Filed 7-3-00; 8:45 am]
BILLING CODE 6712-01-P