[Federal Register Volume 67, Number 107 (Tuesday, June 4, 2002)]
[Proposed Rules]
[Pages 38456-38459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13908]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 02-113; FCC 02-150]


Broadcast Services; Television Stations

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on the policy 
it should follow when it denies a request to extend a television 
station's digital television construction deadline.

DATES: Comments are due by July 8, 2002; reply comments are due by July 
23, 2002.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Shaun Maher, Media Bureau, Office of 
Broadcast Licensing, Video Division, (202) 418-2324. For additional 
information concerning the information collection(s) contained in this 
document, contact Judith B. Herman at 202-418-0214, or via the Internet 
at [email protected].

[[Page 38457]]


SUPPLEMENTARY INFORMATION: This is a synopsis of the Notice of Proposed 
Rule Making (``NPRM'') in MM Docket No. 02-113, FCC 02-150, adopted May 
16, 2002, and released May 24, 2002. 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, SW., 
Washington, DC and may also be purchased from the Commission's copy 
contractor, Qualex International, Portals II, 445 12th Street SW., CY-
B402, Washington, DC 20554. The Notice is also available on the 
Internet at the Commission's website: http://www.fcc.gov.

Synopsis

    1. The Commission has adopted this NPRM to seek comment on the 
policy it should follow when requests to extend DTV construction 
deadlines are denied. The Commission proposed a set of graduated 
sanctions that it would impose. Under the first step of its approach, 
the Commission would deny the request for an unqualified extension and 
admonish the station for its failure to comply with its DTV 
construction obligation. The station would be required to submit a 
report within thirty (30) days outlining the steps it intends to take 
to complete construction and the approximate date that it expects to 
reach each of these construction milestones. Absent extraordinary and 
compelling circumstances, the construction completion date should be no 
later than six months from the date of admonishment. Sixty (60) days 
later, the station would be required to submit a report detailing its 
progress on meeting its proposed construction milestones and justifying 
any delays it has encountered. If at any time during this six month 
period, the station fails to demonstrate that it is taking all 
reasonable steps to complete construction or fails to justify the 
further delays it has encountered, or the Commission otherwise find 
that the licensee has acted in bad faith, the Commission would consider 
the imposition of additional sanctions including proceeding immediately 
to the second step.
    2. Under the second step in the approach, if the station had not 
come into compliance with the DTV construction rule within the six 
month period, then, absent extraordinary and compelling circumstances, 
the Commission would impose further sanctions against the licensee. The 
Commission would issue a Notice of Apparent Liability for forfeiture to 
the licensee. It would require that the station report every thirty 
(30) days on its proposed construction milestones and its efforts to 
meet those milestones. Once again, failure to adequately demonstrate 
that the station was taking all reasonable steps towards construction 
and to justify any additional delays that were encountered, would 
result in the imposition of additional sanctions.
    3. Under the third and final step in the approach, if the station 
still had failed to come into compliance with the DTV construction rule 
within an additional six-month period of time (i.e., one year from the 
date of the formal admonition), then, absent extraordinary and 
compelling circumstances, the Commission would consider its 
construction permit for its DTV facilities to have expired and it would 
take whatever steps necessary to rescind the station's DTV 
authorization. The Commission seeks comment as to whether a hearing is 
necessary under section 312 or section 316 of the Communications Act 
prior to removal of the station's DTV authorization. The Commission 
also seeks comment as to whether it should make the station's vacant 
DTV allotment available to other potential DTV broadcasters through 
auction, or delete the allotment from the DTV Table altogether. In any 
event, however, as directed by Congress, the station will be required 
to surrender its analog authorization at the end of the DTV transition. 
The Commission tentatively concludes that a licensee whose DTV 
authorization is rescinded under the above procedures will not be 
permitted to convert to digital on its analog allotment without being 
subject to competing applications.
    4. The Commission reserved the right to alter its graduated 
enforcement scheme should circumstances in a particular case warrant it 
doing so.

Administrative Matters

    5. Comments and Reply Comments. Pursuant to sections 1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested 
parties may file comments on or before July 8, 2002 and reply comments 
on or before July 23, 2002. 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 24,121 (1998). Written comments by the public on the proposed 
information collections are due July 8, 2002. Written comments must be 
submitted by the Office of Management and Budget (OMB) on the proposed 
information collection(s) on or before August 5, 2002.
    6. 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. If 
multiple docket or rulemaking numbers appear in the caption of this 
proceeding, however, commenters must transmit one electronic copy of 
the comments to each docket or rulemaking number referenced in the 
caption. In completing the transmittal screen, commenters should 
include their full name, U.S. Postal Service mailing address, and the 
applicable docket or rulemaking number. Parties may also submit an 
electronic comment by Internet 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 .'' A sample form and directions 
will be sent in reply. Parties who choose to file by paper must file an 
original and four copies of each filing. If more than one docket or 
rulemaking number appear in the caption of this proceeding, commenters 
must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although we continue to experience delays in 
receiving U.S. Postal Service mail). The Commission's contractor, 
Vistronix, Inc., will receive hand-delivered or messenger-delivered 
paper filings for the Commission's Secretary at 236 Massachusetts 
Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this 
location are 8 a.m. to 7 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes must be disposed of 
before entering the building. Commercial overnight mail (other than 
U.S. Postal Service Express Mail and Priority Mail) must be sent to 
9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service 
first-class mail, Express Mail, and Priority Mail should be addressed 
to 445 12th Street, SW., Washington, DC 20554. All filings must be 
addressed to the Commission's Secretary, Marlene H. Dortch, Office of 
the Secretary, Federal Communications Commission.
    7. Parties who choose to file by paper should also submit their 
comments on diskette. These diskettes should be submitted to: Wanda 
Hardy, 445 Twelfth Street, SW., Room, 2-C207, Washington, DC 20554. 
Such a submission should be on a 3.5 inch diskette formatted in an IBM 
compatible

[[Page 38458]]

format using MS Word 97 for Windows 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 docket number in 
this case, MM Docket No. 02-113, 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, Vistronix, Portals II, 445 12th Street SW., CY-B402, 
Washington, DC 20554.
    8. In addition to filing comments with the Secretary, a copy of any 
comments on the information collections contained herein should be 
submitted to Judith B. Herman, Federal Communications Commission, Room 
1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet 
to [email protected], and to Jeanette Thornton, OMB Desk Officer, Room 
10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or via the 
Internet to [email protected].
    9. 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.
    10. 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].
    11. Ex Parte Rules. This is a permit-but-disclose notice and 
comment rulemaking proceeding. Ex parte presentations are permitted 
except during the Sunshine Agenda period, provided they are disclosed 
as provided in the Commission's Rules. See generally 47 CFR 1.1202, 
1.1203, and 1.1206(a).
    12. Initial Regulatory Flexibility Analysis. As required by Section 
603 of the Regulatory Flexibility Act, the Commission has prepared the 
following IRFA of the possible significant 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 radio 
broadcasting industry. Comments on the IRFA must be filed in accordance 
with the same filing deadlines as comments on the NPRM, but they must 
have a distinct heading designating them as responses to the IRFA.
    13. 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 above in paragraph 16. The Commission 
will send a copy of the NPRM, including this IRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration (SBA). See 5 U.S.C. 
603(a). In addition, the NPRM and the IRFA (or summaries thereof) will 
be published in the Federal Register.

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

    14. The Commission adopts the NPRM to seek comment on proposed 
remedial steps for failure to comply with its digital television (DTV) 
construction schedule. The remedial steps are intended to prevent undue 
delay in the required build out of DTV facilities.

B. Legal Basis

    15. This NPRM is adopted pursuant to sections 1, 2(a), 4(i), 303, 
307, and 309 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 152(a), 154(i), 303, 307 and 309.

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

    16. 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 RFA defines the term 
``small entity'' as having the same meaning as ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under 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.
    17. The proposals in the NPRM will affect only full-power 
television broadcasters. As of September 30, 2001 the Commission had 
licensed a total of 1,686 full-power television stations. SBA defines 
television broadcasting establishments that have $12 million or less in 
annual receipts as a small business. According to Census Bureau data 
for 1997, there were 906 firms in this category, total, that operated 
for the entire year. Of this total, 728 firms had annual receipts of 
under $10 million, and an additional 71 had receipts of $10 million to 
$24,999,999. Thus, under this size standard, the majority of the firms 
are considered small.

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

    18. This NPRM contains proposed information collection(s) subject 
to the Paperwork Reduction Act of 1995 (PRA). It will be submitted to 
the Office of Management and Budget (OMB) for review under the PRA. 
OMB, the general public, and other Federal agencies are invited to 
comment on the proposed information collections contained in this 
proceeding.

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

    19. 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 (among others): (1) 
The establishment of differing compliance and 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.
    20. The NPRM seeks comment on proposed remedial steps for failure 
of broadcast stations to comply with the DTV construction schedule. 
Adoption of the proposal in the NPRM by the

[[Page 38459]]

Commission is likely to have an insignificant and mixed impact overall 
on the economic opportunities for small entities. We seek comment from 
small entities on this issue.
    21. One of the sanctions that the Commission proposing using is the 
issuance of a notice of apparent liability for forfeiture to stations 
that do not comply with their DTV construction obligation. We seek 
comment on any small entity concerns that might affect the Commission's 
enforcement decisions. We note that we already take small entity 
status, including potential inability to pay, into account when 
assessing the need for, and amount of, monetary forfeitures.

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

    22. None.
    23. Paperwork Reduction Act. This NPRM contains a proposed 
information collection. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public and the 
Office of Management and Budget (OMB) to comment on the information 
collection(s) contained in this NPRM, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Public and agency comments 
are due at the same time as other comments on this NPRM; OMB 
notification of action is due August 5, 2002. 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) the accuracy 
of the Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) 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.
    OMB Control Number: 3060-XXXX.
    Title: Remedial Steps for Failure to Comply with Digital Television 
Construction Schedule.
    Form No.: n/a.
    Type of Review: New collection.
    Respondents: business or other for-profit; not-for-profit 
institutions.
    Number of Respondents: 100.
    Estimated Time Per Response: 2 hours (0.5 hours licensee; 1.5 hours 
contract attorney).
    Frequency of Response: reporting, on occasion.
    Total Annual Burden: 50 hours.
    Total Annual Costs: $30,000.
    Needs and Uses: The Commission is seeking comment on proposed 
remedial steps for failure to comply with its DTV construction 
schedule. These steps include proposed reporting requirements. The 
remedial steps are intended to prevent undue delay in the required 
build out of DTV facilities.
    24. Authority. This NPRM is issued pursuant to authority contained 
in Sections 4(i), 303, and 307 of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 303, and 307, and Section 202(h) of the 
Telecommunications Act of 1996.

Ordering Clauses

    25. Pursuant to the authority contained in sections 1, 2(a), 4(i), 
303, 307, 309, and 310 of the Communications Act of 1934, 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.
    26. The Commission's Consumer and Governmental Affairs 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.

    Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 02-13908 Filed 6-3-02; 8:45 am]
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