[Federal Register Volume 68, Number 94 (Thursday, May 15, 2003)]
[Rules and Regulations]
[Pages 26220-26230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12057]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 74

[MM Docket No. 95-31; FCC 03-44]
RIN 3060-AH96


Reexamination of the Comparative Standard for Noncommercial 
Educational Applicants; Association of America's Public Television 
Stations' Motion for Stay of Low Power Television Auction (No. 81)

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission modifies its rules and 
procedures for allocating and licensing ``non-reserved'' broadcast 
spectrum where conflicting uses are proposed by commercial and 
noncommercial educational broadcast stations. The Commission received 
several comments in how to resolve solutions. These methods were 
established to select among competing noncommercial and commercial 
applicants.

DATES: Effective June 16, 2003.

FOR FURTHER INFORMATION CONTACT: Eric J. Bash (202) 418-1188 or 
[email protected], Peter Corea (202) 418-7931 or [email protected], Media 
Bureau, Policy Division.

SUPPLEMENTARY INFORMATION: This is a summary of the Media Bureau's 
Second Report and Order (``2R&O'') in MM Docket No. 95-31; FCC 03-44, 
adopted March 4, 2003, and released on April 10, 2003. The full text of 
this 2R&O is available for inspection and copying during regular 
business hours in the FCC Reference Center, 445 Twelfth Street, SW., 
Room CY--A257, Portals II, Washington, DC 20554, and may also be 
purchased from the Commission's copy contractor, Qualex International, 
Room CY--B402, telephone (202) 863-2893, or via e-mail 
[email protected]. This document is also available to persons with 
disabilities requiring accessible formats (electronic ASCII text, 
Braille, large print, and audiocassette) by contacting Brian Millin at 
(202) 418-7426 (voice), (202) 418-7365 (TTY), or by sending an e-mail 
to [email protected].

Synopsis of Second Report and Order

I. Introduction

    1. In this 2R&O, we establish new policies for licensing spectrum 
that the Commission has not reserved for the exclusive use of broadcast 
stations that provide or intend to provide noncommercial educational 
(``NCE'') service. In developing our new policies and procedures, we 
are constrained by a number of court decisions, regulations, and 
statutory provisions that, taken together, limit our options. We have 
come to the following conclusions. First, those stations that a 
nonprofit educational organization shows will be used to advance an 
educational program are eligible to be licensed as NCE radio or 
television stations and thus are exempt from auction. Nonprofit 
educational organizations that do not make such a showing must compete 
at auction for licenses. Second, we will not hold applicants for NCE 
stations ineligible to apply for non-reserved channels, and instead 
will permit such applicants to continue to apply for this spectrum in 
filing windows. Any applications for NCE stations determined to be 
mutually exclusive with applications for commercial stations will be 
dismissed, although applicants for services in which engineering 
solutions are possible will have a prior opportunity for settlement. 
Third, we reaffirm our existing relaxed reservation criteria, which 
enable would-be applicants for NCE stations in the full-power FM and TV 
services to add to the number of channels reserved for their use when 
they demonstrate that they are technically precluded from using an 
already-reserved channel, and they will provide needed NCE service in a 
given area. Interested parties may use these criteria to reserve 
channels in future allocation proceedings, as well as to reserve 
channels already in the Table of Allotments for which the Commission 
initiated an allocation proceeding prior to the August 7, 2000 
effective date of the relaxed reservation standards, and for which the 
Commission has never accepted applications. Interested parties may not 
use these criteria to reserve channels already in the Table for which 
the Commission initiated an allocation rulemaking after August 7, 2000, 
or channels for which the Commission has already accepted applications.

II. Background

    2. The Commission licenses NCE stations on channels reserved for 
their exclusive use and also on other broadcast spectrum. In the FM 
service, the Commission has reserved twenty specific channels out of a 
total of one hundred channels, exclusively for full-power FM and FM 
translator use by NCE stations. In the television service, the 
Commission has reserved a similar proportion of channels, but using 
different channels in the Table of Allotments in different geographic 
areas across the country. The Commission has not reserved any 
particular frequencies for exclusive use in the AM service, or 
secondary TV services, such as low power television (LPTV) and TV 
translators.
    3. The Commission initiated this proceeding in 1995 to revise the 
criteria it used to select among competing applicants for new NCE 
stations. In the past, the Commission had used

[[Page 26221]]

comparative criteria to resolve mutually exclusive applications in both 
the commercial and NCE services, although the criteria were different 
for reserved and non-reserved spectrum. NCE applicants competing 
against commercial applicants for a non-reserved channel were evaluated 
using the commercial criteria. Both comparative processes, however, 
were called into question in the 1990s, leading the Commission to 
revisit its comparative criteria for applicants for both commercial and 
NCE stations. The Commission has adopted new selection criteria for NCE 
stations.
    4. The Balanced Budget Act of 1997 (``1997 Budget Act'') amended 
certain provisions of the Communications Act (``Act'') germane to the 
Commission's ongoing review of its licensing processes. The 1997 Budget 
Act amended section 309(j) of the Act. As revised, section 309(j)(1) 
states: ``If * * * mutually exclusive applications are accepted for any 
initial licenses or construction permits, then, except as provided in 
paragraph (2), the Commission shall grant the license or permit to a 
qualified applicant through a system of competitive bidding that meets 
the requirements of this subsection.'' Section 309(j)(2) sets forth the 
limited exceptions to section 309(j)(1), including ``licenses or 
construction permits issued by the Commission * * * (C) for stations 
described in section 397(6) of this Act.'' Section 397(6) of the Act 
provides the definition of NCE stations.
    5. Given the different licensing mechanisms for NCE stations and 
all other stations, the Commission issued a Further Notice of Proposed 
Rulemaking (``FNPRM''), 63 FR 58358, October 30, 1998, in this docket 
and sought comment on how to resolve conflicts between commercial and 
NCE applicants for non-reserved spectrum. The Commission also sought 
comment on whether section 309 of the Act prohibited it from using 
competitive bidding to resolve any mutually exclusive applications when 
they included at least one filed by an applicant for an NCE station, or 
instead only when they involved competing applications for reserved 
channels.
    6. In the Report and Order (``R&O''), 65 FR 36375, June 8, 2000, 
the Commission concluded that ``the exemption of NCE applicants from 
our general mandatory auction authority does not prohibit us from 
auctioning non-reserved spectrum, even when NCE entities apply for 
those channels.'' The Commission decided to require applicants for NCE 
stations to compete with applicants for commercial stations for non-
reserved spectrum at auction. In order to minimize any hardship on 
applicants for NCE stations, the Commission also relaxed the criteria 
used to evaluate requests to reserve new channels.
    7. The Association of Public Television Stations, the Corporation 
for Public Broadcasting, National Public Radio, and the State of Oregon 
challenged the Commission's decision in court. In NPR v. FCC, 254 F.3d 
226 (DC Cir. 2001), the U.S. Court of Appeals for the D.C. Circuit 
rejected the Commission's construction of section 309. The court held 
that ``nothing in the Act authorizes the Commission to hold auctions 
for licenses issued to NCEs to operate in the unreserved spectrum,'' 
because section 309(j)(2) denied the Commission the authority to use 
competitive bidding ``based on the nature of the station that 
ultimately receives the license, and not on the part of the spectrum in 
which the station operates.'' 254 F.3d at 229.
    8. In order to resolve the issues raised by the court's decision, 
we issued a Second Further Notice of Proposed Rulemaking (2FNPRM), 67 
FR 9945, March 5, 2002. We asked for comment on the scope of the 
auction exemption, and offered three options, not necessarily mutually 
exclusive, on how to resolve the competing interests of applicants for 
commercial and NCE stations in the non-reserved spectrum. First, we 
proposed to hold applicants for NCE stations ineligible for this 
spectrum, stating that such an approach ``is consistent with the 
statutory language'' and ``has the advantage of clarity and 
simplicity.'' Second, recognizing that, under our first proposal, 
spectrum might lie fallow if no commercial applicants applied to use 
it, we proposed to permit applicants for NCE stations to apply for non-
reserved spectrum, subject to dismissal of their applications if they 
were mutually exclusive with those filed by commercial applicants. 
Third, given that applicants for NCE stations may not legally 
participate in auctions, we also sought comment on whether we should 
further relax the criteria for would-be applicants for NCE stations to 
reserve additional channels in the future, and whether we should permit 
NCE applicants the opportunity to apply such criteria, or other 
criteria, to reserve existing or ``vacant'' allotments. We also 
welcomed comment on other options.

III. Discussion

A. Scope of Exemption for NCE Stations From Competitive Bidding

1. Generally
    9. Background. In the 2FNPRM, we sought comment on the breadth of 
section 309(j)(2)(C), which exempts NCE stations from competitive 
bidding. As indicated, that section exempts the licenses issued ``for 
stations described in section 397(6) of this Act.'' Subsection (A) 
defines ``noncommercial educational broadcast station'' by 
incorporation of the Commission's eligibility rules for such stations 
in effect in 1978. Subsection (B) defines as NCE stations those that 
are municipality-owned and transmit only noncommercial programs for 
educational purposes.
    10. Discussion. We conclude that the auction exemption for NCE 
stations applies to two types of broadcast stations: (1) AM, full-power 
FM, FM translator, and full-power TV stations that a nonprofit 
educational organization shows will be used to advance an educational 
program, and are eligible to be licensed as NCE stations pursuant to 
the Commission's service-specific standards, in effect as of November 
1978; and (2) stations that will be used by a municipality to transmit 
only noncommercial programs for educational purposes. Section 
309(j)(2)(C) states that ``(t)he competitive bidding authority granted 
by this paragraph shall not apply to licenses or construction permits 
issued by the Commission * * * (C) for stations described in section 
397(6) of this Act.'' Section 397(6), in turn, states that ``(t)he 
terms `noncommercial educational broadcast station' and `public 
broadcast station' mean a television or radio broadcast station which 
(A) under the rules and regulations of the Commission in effect on the 
effective date of this paragraph, is eligible to be licensed by the 
Commission as a noncommercial educational radio or television broadcast 
station and which is owned and operated by a public agency or nonprofit 
private foundation, corporation, or association; or (B) is owned and 
operated by a municipality and which transmits only noncommercial 
programs for education purposes.'' Defining stations within the scope 
of section 397(6)(A) must begin with the content of our eligibility 
rules as of November 2, 1978, because that is the date section 397(6) 
became effective. The substance of the eligibility rules for NCE 
stations has not changed since that time. Section 73.503(a) of the

[[Page 26222]]

Commission rules set forth the current eligibility rule for FM 
stations: ``A noncommercial educational FM broadcast station will be 
licensed only to a nonprofit educational organization and upon showing 
that the station will be used for the advancement of an educational 
program.'' Section 73.621(a) of the rules sets forth the current 
eligibility rule for TV stations: ``(N)oncommercial educational 
broadcast stations will be licensed only to nonprofit educational 
organizations upon showing that the proposed stations will be used 
primarily to serve the educational needs of the community; for the 
advancement of educational programs; and to furnish a nonprofit and 
noncommercial television broadcast service.'' Weaving together these 
various regulatory and statutory provisions, in the manner the Act 
instructs, under section 397(6)(A), an NCE station is either an FM or 
TV station that is licensed to a nonprofit educational organization 
that shows that the station will be used to advance an educational 
program. A TV station must also show that the station will be used to 
furnish a nonprofit and noncommercial service that will serve the 
educational needs of its community. The Commission has also licensed AM 
stations that satisfy the FM station eligibility rules, as well as FM 
translators that rebroadcast the signals of an NCE FM station, as NCE 
stations, and has done so both before and since the November 1978 
effective date of section 397(6). In terms of paragraph 397(6)(B), an 
NCE station is also any station that is owned and operated by a 
municipality and transmits only noncommercial programs for educational 
purposes, regardless of the Commission's eligibility rules. We conclude 
that applicants are exempt from auctions, pursuant to section 
309(j)(2)(C), only when they file applications for broadcast stations 
expressly defined by sections 397(6)(A) and 397(6)(B).
    11. This construction of the governing legal standards for NCE 
stations is consistent with our current practice. The Commission has 
long licensed nonprofit educational organizations, such as 
universities, to provide commercial service on non-reserved channels. 
When licensed to operate commercial broadcast stations, these nonprofit 
educational organizations are subject to the requirements applicable to 
all commercial stations. For example, they must pay filing fees; by 
contrast, fees are not required with respect to any station that a 
nonprofit educational organization is licensed to operate as an NCE 
station.
2. LPTV and TV Translators
    12. Background. We also sought comment on the applicability of the 
auction exemption in section 309(j)(2)(C) to LTPV and TV translator 
stations specifically. The Commission does not now issue, and has never 
issued, licenses for NCE stations in these services. As a result, we 
asked whether the auction exemption extends to applicants for LPTV and 
TV translator licenses that could qualify as applicants for NCE 
stations in other services. If the fact that we have not licensed LPTV 
and TV translator facilities as NCE stations in the past means that 
applicants must compete for these license at auction, we asked whether, 
and if so how, we should create an NCE LPTV and TV service. Even if we 
took such action, we sought comment on whether it would have any impact 
on the auctions exemption, given that section 397(6)(A) of the Act 
defines NCE stations in terms of our eligibility rules as they existed 
on November 2, 1978.
    Discussion. We conclude that no licenses for LPTV and TV translator 
facilities fall within the scope of section 397(6)(A), and that 
adopting new NCE eligibility criteria for these services would not 
bring applicants for such services within the scope of the auction 
exemption. LPTV and TV translator facilities, however, qualify as NCE 
stations under section 397(6)(B) of the Act, if they are owned and 
operated by municipalities and transmit only NCE programs. This 
definition does not turn on our eligibility rules, and so applicants of 
the latter type are exempt from auction.
    13. Section 397(6)(A) of the Act defines the NCE stations that are 
exempt from auction in terms of the Commission's eligibility rules in 
effect on November 2, 1978. We did not license LPTV and TV translator 
facilities as NCE stations as of that date. Indeed, the Commission did 
not create the LPTV service until 1982, and at that time expressly 
rejected the approach of licensing these facilities as NCE stations. 
With respect to the LPTV service, the Commission stated that

    Whether a low power applicant or licensee is noncommercial or 
not-for-profit is a decision properly made by the licensee on the 
basis of applicable corporate and tax law, pertinent requirements of 
the Corporation for Public Broadcasting and perceived 
characteristics of the market in which it proposes to operate. 
Section 73.621 of the Commission rules (the eligibility and 
programming rules regarding NCE TV stations) will not apply to lower 
power stations.

    FThe same applies to TV translators, because LPTV and TV 
translators are virtually the same; the difference between the two is 
that LPTV licenses can originate more programming than TV translator 
licensees, but licensees can switch between the two through simple 
letter notification to the Commission. Although we have exempted LPTV 
and TV translator licensees from administrative fees on certain 
conditions, we do not license these facilities as NCE stations, with 
the result that the programming and service requirements for NCE 
stations do not apply. Given that we do not license LPTV and TV 
translator facilities as NCE stations, and did not do so as of the 
effective date of section 397(6), these stations (other than those 
defined in section 397(6)(B)) do not fall within the scope of section 
309(j)(2)(C).
    14. Section 397(6)(B) defines an NCE station as one that ``is owned 
and operated by a municipality and which transmits only noncommercial 
programs for education purposes.'' This definition does not incorporate 
the Commission's eligibility rules for NCE stations. LPTV and TV 
translator stations that are owned and operated by municipalities and 
transmit only noncommercial programming for educational purposes are 
exempt from auction under section 309(j)(2)(C).

B. Licensing of Non-Reserved Spectrum

    15. Background. In the 2FNPRM, we offered two different proposals 
for licensing noncommercial educational applicants on non-reserved 
spectrum. As one option, we proposed to hold applicants for NCE station 
licenses simply ineligible for non-reserved spectrum. As an 
alternative, we proposed to accept applications for both commercial and 
NCE stations in the non-reserved spectrum, with the latter applications 
subject to dismissal if they were mutually exclusive with the former. 
We also asked whether we should amend the anti-collusion rule to permit 
mutually exclusive commercial and NCE applicants for AM stations a 
prior opportunity to resolve their conflicts through settlements.
    16. Discussion. We adopt our proposal to allow applicants for NCE 
stations to submit applications for non-reserved spectrum in a filing 
window, subject to being returned as unacceptable for filing if there 
is any mutually exclusive application for a commercial station. We also 
will allow applicants for AM stations and secondary services a prior 
opportunity to resolve their mutually exclusive applications through

[[Page 26223]]

settlements. We prefer this approach to that of holding applicants for 
NCE stations ineligible to apply for non-reserved spectrum. These 
policies are designed to preserve opportunities for applicants for NCE 
broadcast stations to use non-reserved spectrum, consistent with 
section 309(j), as amended, and in a manner that will not unduly delay 
the initiation of any broadcast service to the public. We recognize 
that these opportunities are limited to those situations in which 
commercial applicants do not file mutually exclusive applications for 
the spectrum, and to certain services in which the applicants reach a 
settlement, but these situations can and do happen.
    17. As a practical matter, and as is currently our practice, we 
will begin the licensing process for non-reserved spectrum by opening 
an auctions filing window. Applicants for NCE stations may submit 
applications in the window in the same way as commercial applicants, 
using FCC Form 175, the ``short-form'' application to participate in an 
auction. Applicants that seek an NCE station license must identify 
themselves by checking the box labeled ``noncommercial educational,'' 
which will serve as a preliminary showing that they intend to use the 
station to advance an educational program and that they meet all other 
Commission eligibility requirements for NCE stations. Applicants that 
do not check this box will be considered, as a matter of law, 
applicants for commercial broadcast stations. Because an applicant's 
self-identification as ``noncommercial educational'' affects its 
eligibility to hold an NCE station license and therefore its 
eligibility to participate in an auction, we will treat any applicant's 
attempt to change its self-identification as a major amendment, which 
is prohibited after the short-form application filing deadline. 
Applications for NCE stations that are mutually exclusive only with one 
another will not proceed to auction and instead will be resolved by the 
same point system selection procedures that we have established for the 
reserved band. Any application for an NCE station that is mutually 
exclusive with any application for a commercial broadcast station will, 
after any settlement opportunities expire, be returned as unacceptable 
for filing.
    18. Anti-Collusion Rule. We adopt the approach outlined in the 
2FNPRM to amend our anti-collusion rule to permit mutually exclusive 
applicants for AM stations to settle, when the applicants include at 
least one for an NCE station. The anti-collusion rule generally 
prohibits applicants that have filed mutually exclusive applications 
from ``discussing or negotiating settlement agreements'' among 
themselves after the short-form filing deadline. The Commission, 
however, has carved out limited exceptions for certain applicant groups 
in the broadcast and Instructional Fixed Television (ITFS) services, 
namely those involving applications for major modifications that are 
mutually exclusive with one another or with applications for new 
stations, as well as those involving secondary services. The Commission 
created these exceptions based in part on the fact that it is possible 
for the applicants to devise engineering solutions to remove the 
technical conflicts between their applications.
    19. As a consequence of the exception for secondary services, 
applicants for NCE stations in the LPTV and translator services already 
have the opportunity to resolve their mutually exclusivity 
applications. Applicants for new AM stations also have the opportunity 
to settle when their applications are mutually exclusive with those for 
major modifications. We believe it will serve the public interest if we 
expand the settlement opportunity to applicants for new AM stations 
that are mutually exclusive with one another, when at least one of them 
is an applicant for an NCE station. Given the limited number of 
opportunities for any new stations using AM frequencies, this expansion 
to the groups that qualify for settlement is incremental. This is 
buttressed by the fact that we limit the groups of AM applicants 
eligible to enter into settlements to only those that include 
applicants for both commercial and NCE stations. We do not believe that 
extending settlement opportunities to applicants for NCE stations is 
particularly likely to compromise the purpose of the anti-collusion 
rule, which is to enhance the competitiveness of the auction process, 
given that these applicants will never compete at auction for the 
licenses for which they have applied. As a result, mixed groups of 
applicants for AM stations will have the opportunity to design 
engineering solutions or reach other settlements, which must conform to 
all requirements in our settlement process for broadcast applicants. 
Because we only accept applications for non-reserved full-power FM and 
full-power TV channels that are already in the Table of Allotments, it 
is not possible for applicants that file mutually exclusive 
applications for such channels to resolve their conflicts through 
engineering means; as a result, we will not extend a similar settlement 
opportunity to them.

C. Allocating Spectrum

    20. Background. In the R&O in this proceeding, the Commission 
decided to allocate a channel as reserved if a proponent demonstrated: 
For radio, that it is technically precluded from using a reserved 
channel and would provide a first or second NCE radio service to 10% of 
the population within its 1mV/m contour, and for television, that there 
is no reserved channel available in the proponent's community and it 
would provide the first or second NCE television service to 2000 or 
more people who constitute 10% of the population within its noise 
limited contour. The Commission adopted these standards for use at the 
allocation stage of the licensing process, and thus expressly declined 
to extend them to existing (vacant) allotments, pending applications, 
and services such as AM that do not use an allocations process. In the 
2FNPRM, we asked whether we should further relax the reservation 
standards, and if so what the standard should be. We also asked whether 
we should establish opportunities for interested parties to reserve 
existing allotments that we have not yet licensed (i.e., ``vacant'' 
allotments), and if so what the standards should be.
    21. Discussion. We reaffirm the relaxed reservation standard that 
the Commission adopted in the R&O in this proceeding. We will permit 
the use of these criteria to reserve channels not only in future 
allocation proceedings, but also in allocation proceedings that the 
Commission initiated prior to its adoption of the relaxed reservation 
standard. We believe these policies best satisfy the public interest, 
and are the fairest to all parties concerned.
    22. Future Allocations. The Commission already has reserved twenty 
(201-220) out of a total of one hundred FM channels for the exclusive 
use of NCE stations, and will reserve any of the remaining eighty 
channels (221-300) for NCE stations if one of three tests is satisfied. 
The Commission's original purpose in reserving a band of channels was 
simply to ensure that NCE stations would develop; when establishing the 
FM and TV services, the Commission was concerned that commercial 
stations, due to their financial advantage, would make such immediate 
use of the spectrum for these services that none would remain available 
for NCE stations when they were prepared to make use of it. In order to 
ensure that NCE stations could in fact make use of the reserved band of 
channels, the Commission adopted two tests for reserving channels 
outside this band;

[[Page 26224]]

the Commission will allocate a new FM channel as reserved if a would-be 
applicant for an NCE station can show that it cannot use another 
reserved channel to provide its service without causing interference to 
either a foreign station or a domestic TV station operating on channel 
6. Moreover, in order ``to mitigate any potential hardship that the 
auction process might impose on noncommercial entities,'' the 
Commission adopted a third test for reserving channels outside 201-220 
in the R&O in this proceeding. Under this third standard, the 
Commission will allocate a new FM channel as reserved if a would-be 
applicant for an NCE station can show that it is technically precluded 
from using a reserved channel, and that it will provide a first or 
second NCE service to 10% of the population within its proposed 
protected service contour. Since the Commission further relaxed the 
standard, several parties have asked the Commission to allocate a 
particular FM channel as reserved pursuant to the relaxed reservation 
standards, and we have done so.
    23. Our third test thus requires a proponent for reservation to 
demonstrate that NCE service is needed in their proposed service area 
(by showing that they will provide the first or second NCE service 
within some portion of their proposed service contour), and to show 
that they are ``technically precluded'' from using a reserved channel. 
NCE service is not technically precluded if it is possible to specify a 
location at which same-class reserved band NCE facilities could be 
licensed to the proposed community in compliance with NCE technical 
rules. A reservation proponent must satisfy two criteria: First, that 
class-maximum facilities at the allotment reference site would provide 
a new first or second NCE service to ten percent or more of the 
population in a station's service area; and second, that a same-class 
reserved band facility that would provide the requisite level of new 
NCE service is--to a reasonable degree of certitude--technically 
precluded.
    24. In order to expedite new service and minimize burdens to 
prospective NCE applicants, we will use the following methodology to 
evaluate allotment reservation requests. A reservation showing must 
satisfy two distinct criteria. First, it must establish the relative 
need for a new NCE service by demonstrating that maximum class 
facilities at the proposed allotment site would provide a first or 
second NCE service to at least ten percent of the population within the 
proposed station's service area and that such population is at least 
2000 persons. The Commission will not reserve a particular allotment if 
this ``first or second service'' criterion is not satisfied at the 
allotment site's reference coordinates.
    25. Secondly, a reservation request must include a technical 
preclusion showing. The following test is designed to provide a 
reliable and efficient proxy of technical preclusion. It is not a 
conclusive test, but one that the Commission will treat as establishing 
a rebuttable presumption of technical preclusion. The showing will be 
based on a circle, centered in the proposed community of license and 
drawn with a radius one kilometer less than the distance to the 
predicted 60 dBu strength signal of a maximum same-class facility. The 
reservation showing must establish that no rule-compliant facility can 
be authorized at maximum antenna height above average terrain 
(``HAAT'') and with maximum effective radiated power (``ERP'') on any 
reserved band channel at four equally-spaced locations on the circle, 
beginning with 0 (zero) degrees. In addition, the reservation showing 
must establish that no same-class rule-compliant facility can be 
authorized at minimum antenna HAAT and with minimum ERP on any reserved 
band channel at the city center coordinates for the community of 
license. If these two criteria are satisfied, the reservation proponent 
has presumptively established that the allotment should be reserved, 
i.e., that a nonreserved band FM station licensed to the proposed 
community with the proposed class facilities is technically precluded 
from providing service on a reserved band channel.
    26. In the event that an NCE station can be licensed on one or more 
channels at any of these five sites in compliance with the NCE 
technical rules, the reservation showing must undertake a ``first or 
second service'' analysis of the technically acceptable facilities at 
each acceptable site. If any analyzed facility would satisfy the 
``first or second service'' criterion, the allotment will not be 
reserved. If none of the identified channel/site combinations satisfy 
the ``first or second service'' criterion, then the reservation 
proponent has presumptively established that the allotment should be 
reserved.
    27. A reservation showing will be conclusively rebutted if a party 
that desires a non-reserved allotment can both identify a single 
location from which a facility with a class-permissible power/height 
combination can be authorized in compliance with the rules, and show, 
with respect to that location, that the specified facilities would 
satisfy the ``first or second service'' criterion. If no acceptable 
rebuttal showing is submitted, the allotment generally will be 
reserved. The staff may reject reservation showings if it determines 
that technically acceptable reserved band facilities can be licensed to 
the particular community, provided that such facilities meet the 
``first or second service'' criterion.
    28. We also clarify that a reservation request, accompanied with a 
complete technical preclusion showing, may be submitted as an original 
petition for rulemaking or as a timely counterproposal. If a 
reservation request is filed as a counterproposal and specifies the 
same community as the initial petition, the station class and allotment 
coordinates set forth in the initial petition would be used to 
determine technical preclusion. Conflicts between mutually exclusive 
allotments for different communities when a party has made the two-part 
reservation showing with respect to one community will be resolved 
under established Section 307(b) precedent. Reserved allotments will be 
conditioned on the construction and licensing of an NCE station that 
provides the requisite level of first and second NCE service. In the 
event that all applications for a reserved band allotment fail to 
propose such service, the allotment will become unreserved by operation 
of law and subject to the Commission's competitive bidding licensing 
procedures.
    29. Vacant Allotments. We will authorize entities to use the 
relaxed reservation standards that we reaffirm today not only for 
future allocations, but also for FM channels for which we initiated an 
allocation proceeding before the effective date of these standards, 
August 7, 2000, and for which we never opened a filing window to accept 
applications. There are approximately 450 such FM channels, including 
approximately 350 that were previously scheduled for auction. In 
determining whether to reevaluate the status of an FM channel that 
already has been the subject of an allocation rulemaking proceeding, we 
believe that the public interest requires us to weigh the delay in the 
introduction of new FM service to the public that would be associated 
with such a review, against the public interest benefits of additional 
review, and fairness to all interested parties. For FM channels for 
which Commission initiated an allocation proceeding before August 7, 
2000, and for which it has no applications on file, we believe that the 
balance of these concerns favors further review. On the one hand is 
delay, as some commenters indicate, as well as

[[Page 26225]]

unfairness to the proponents of these channels, each of which 
petitioned the Commission to allocate the channel, and has 
affirmatively expressed an interest in filing an application and 
competing for the channel at auction. On the other hand, proponents of 
channels have no ``finder's preference'' for them, and entities that 
wish to use these FM channels to operate NCE stations have not had 
meaningful opportunities to acquire the licenses for them. This is 
because these entities never had opportunities to reserve these 
channels using our relaxed reservation standards, and although we will 
still permit them to apply for these channels, their applications will 
be returned as soon as they become mutually exclusive with those for 
commercial stations. Allowing entities that wish to use these FM 
channels to operate NCE stations an opportunity to reserve them also 
ensures that we will allocate them as reserved or non-reserved 
according to whether there is a greater need for commercial or NCE 
service, as determined by our relaxed reservation standards, such that 
the delay of service occasioned by our further review of the nature of 
the channel is offset by the public interest benefit of more diverse 
service. Thus, on balance, we believe that the public interest is best 
served by allowing interested parties an opportunity to reserve FM 
channels using the standards that were not previously available to 
them. As a result, we will direct the staff to open a short window in 
the near future, during which interested parties may attempt to reserve 
any FM channel for which we initiated an allocation rulemaking before 
August 7, 2000, using the standards that became effective that day and 
that we reaffirm and clarify here. Interested parties objecting to any 
proffered reservation showing we receive may of course file opposing 
pleadings. We will release a Public Notice containing the details of 
our procedures for reserving vacant allotments in advance of the 
window.
    30. We will not allow interested parties to use the relaxed 
reservation standards for any FM channel for which we initiated an 
allocation rulemaking after August 7, 2000. We believe the cost-benefit 
analysis associated with opening these rulemakings is different. The 
relaxed reservation standards were available to reserve any of these 
channels. Indeed, several parties have reserved allotments using the 
Commission's new standards. We do not believe it would serve the public 
interest to introduce additional delay to offer would-be applicants for 
NCE stations yet another opportunity to attempt to reserve these 
channels using the criteria that have already been available to them.
    31. Pending Applications. Consistent with our conclusion not to 
open these newer vacant allotments to reconsider reserving the 
channels, we also reaffirm the decision in then R&O in this proceeding 
not to permit applicants for NCE stations in pending mixed groups a 
further opportunity to reserve the channels for which they have 
applied. At the time of the 2FNPRM, a total of forty mixed groups were 
pending. We offered these groups an opportunity to settle, and many 
took advantage of that opportunity, with the result that approximately 
twenty groups remain. The channels at issue here are altogether 
different from the allotments discussed because they have advanced to a 
farther point in our licensing process: the Commission opened a filing 
window for some of these channels nearly ten years ago, already had 
long-form applications on file for them, and in fact had originally 
scheduled to award the licenses by auction in 1999. As a result, when 
compared to the allotments for which we never opened a filing window, 
further review of the channels associated with the pending applications 
would cause even greater delay in our licensing process and the 
introduction of broadcast service, and also would cause greater 
unfairness to applicants for commercial stations, because all 
interested parties have spent the time and money necessary to complete 
all of the engineering and legal components of a long-form application. 
Particularly given that we have already offered settlement 
opportunities to all applicants in these pending cases, we are not 
persuaded that the equities favoring the applicants for NCE stations in 
these pending proceedings outweigh the delay in initiating new 
broadcast service to the public as well as the unfairness to applicants 
for commercial stations. As a result, we believe that it will serve the 
public interest best to return as unacceptable for filing the pending 
applications for NCE stations, and move the process forward by 
subjecting any remaining mutually exclusive applications to auction. 
This auction will be closed; we will not open a new filing window. 
Prior to auction, we will not review these applicants' long-form 
applications already on file, nor will we accept amendments to these 
forms. If only one commercial application remains after the return of 
all mutually exclusive NCE applications, we will process that 
applicant's pending long-form application in accordance with our 
applicable rules. This approach will end the administrative delay in 
processing these applications, and will result in licensing new 
broadcast facilities to serve the public more quickly.
    32. Other Allocation Issues. NPR, with the support of a few other 
commenters, asked us to reallocate TV channel 6 for NCE radio use. A 
number of NCE TV licensees, however, stated that this issue is outside 
the scope of this proceeding. We agree, and decline to adopt NPR's 
proposal. We also conclude that Amherst Alliance's request that we 
expand the reserved band, and limit eligibility to the expanded 
reserved particular types of NCE stations, is likewise outside the 
scope of this proceeding.

IV. Conclusion

    33. This proceeding has required us to undertake the difficult task 
of deciding how to resolve the competing interests of applicants for 
commercial and NCE stations for non-reserved spectrum. We have 
attempted to create and maintain opportunities for applicants for NCE 
stations insofar as possible, consistent with the applicable legal 
standards, and fairness toward applicants for commercial stations. Our 
resolution of these issues will now enable the Commission to move 
forward quickly with licensing non-reserved spectrum, so that the 
ultimate licensees may provide service to the public.

V. Final Regulatory Flexibility Analysis

    34. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA''), an Initial Regulatory Flexibility Analysis 
(``IRFA'') was incorporated in the 2FNPRM in this docket. The 
Commission sought written public comment on the proposals in the 
2FNPRM, including comment on the IRFA. No comments addressed the IRFA. 
This present Final Regulatory Flexibility Analysis (``FRFA'') conforms 
to the RFA.

Need for, and Objectives of, the Second Report and Order

    35. The Commission adopts the 2R&O to establish new policies for 
licensing spectrum that the Commission has not specifically reserved 
for the exclusive use of noncommercial educational (``NCE'') broadcast 
stations. In the R&O in this docket, the Commission decided to resolve 
competing applications for commercial and NCE stations in this ``non-
reserved'' spectrum via competitive bidding, but the U.S. Court of 
Appeals for the D.C. Circuit overturned that result. In the 2FNPRM in 
this docket, the Commission sought

[[Page 26226]]

comment on how to allocate and license this spectrum, consistent with 
the court's opinion and the Communications Act. The 2R&O resolves the 
issues we raised in the 2FNPRM.

Summary of Significant Issues Raised by the Public in Responses to the 
IRFA

    36. No comments addressed the IRFA, or otherwise discussed issues 
that may impact small entities.

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

    37. The RFA directs the Commission to provide a description of, 
and, where feasible, an estimate of the number of small entities that 
will be affected by the rules. 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 that: (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. A ``small organization'' is 
generally defined as ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field * * 
*.'' A ``small governmental jurisdiction'' is generally defined as 
``governments of cities, counties, towns, townships, villages, school 
districts, or special districts, with a population of less than fifty 
thousand * * *.''
    38. The rules adopted in the 2R&O will affect applicants for NCE 
stations on non-reserved channels and frequencies. Under the applicable 
provisions of the Act, NCE stations are those owned and operated by: 
(1) Nonprofit educational organizations after showing that they will 
use the stations to advance educational programs, or (2) municipalities 
that use the stations to air only noncommercial programs for 
educational purposes. The rules could also affect commercial stations 
by causing delay in processing their applications; although the new 
rules establish that applications for NCE stations will be returned as 
unacceptable for filing if they become and remain mutually exclusive 
with applications for commercial stations, the rules continue to permit 
applicants for NCE stations to apply for non-reserved channels, and in 
some services, the opportunity to negotiate a settlement with a 
competing applicant for a commercial station. In addition, our new 
policies may cause some delay to applicants for commercial stations, 
whether large or small, that seek to use certain vacant allotments; 
although as a general matter we will allow applicants for NCE stations 
to attempt to reserve channels only when we are conducting an 
allocation proceeding to amend the Table of Allotments, we will permit 
applicants for NCE stations an opportunity to reserve channels for 
which we have already concluded the allocation proceeding, if the 
Commission initiated the proceeding before August 7, 2000, and never 
accepted applications for the channel. Thus, the rules may affect 
``small business concerns,'' ``small organizations,'' and ``small 
governmental jurisdictions.'' The number of possible future applicants 
cannot be determined.
    39. Radio. Applicants could also include existing radio stations. 
As of June 30, 2002, the Commission had licensed a total of 13,261 
radio stations, of which 4,811 were AM stations, 6,147 were commercial 
FM stations, and 2,303 were NCE FM stations. As of the same date, the 
Commission had also licensed 3,770 FM translator and booster stations 
(commercial and NCE). SBA defines as a small business those radio 
broadcasting stations that have no more than $6 million in annual 
receipts. According to Commission staff review of BIA Publications, 
Inc. Master Access Radio Analyzer Database on August 22, 2002, about 
10,800 commercial radio stations have revenue of $6 million or less. 
Many commercial radio stations, however, are affiliated with larger 
corporations with higher revenue, with the result that the estimate of 
10,800 commercial radio stations overstates the number that qualify as 
small entities. The Commission does not compile and otherwise does not 
have access to information on the revenue of NCE stations that would 
permit it to determine how many such stations would qualify as small 
entities.
    40. Television. Applicants could also include TV stations. As of 
June 30, 2002, the Commission had licensed a total of 1,712 full-power 
TV stations, of which 1,331 commercial TV stations, were 381 were NCE 
TV stations. As of the same date, the Commission had licensed 4,741 TV 
translator stations, 2,120 LPTV stations, and 554 Class A TV stations. 
SBA defines a television broadcasting station that has no more than $12 
million in annual receipts as a small business. According to Commission 
staff review of the BIA Publications, Inc. Master Access Television 
Analyzer Database on August 22, 2002, about 870 of the commercial TV 
stations have revenues of $12 million or less. Many commercial TV 
stations, however, are affiliated with larger corporations with higher 
revenue, with the result that the estimate of 870 commercial TV 
stations overstates the number that qualify as small entities. The 
Commission does not compile and otherwise does not have access to 
information on the revenue of NCE stations that would permit it to 
determine how many such stations would qualify as small entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    41. The Commission anticipates that none of the rules adopted in 
the 2R&O will result in an increase in the existing reporting and 
recordkeeping requirements of potential applicants.

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

    42. The RFA requires an agency to describe any significant 
alternatives that it has considered in adopting its rules, which may 
include the following four alternatives (among others): (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.
    43. The 2R&O establishes new policies for licensing non-reserved 
spectrum, in a manner consistent with the court's decision in the NPR 
case, and the applicable provisions of the statute. As explained in 
detail in the 2R&O, section 309(j)(1) of the Act generally requires the 
Commission to resolve mutually exclusive applications for licenses to 
use spectrum via competitive bidding, but section 309(j)(2)(C) exempts 
the licenses for NCE stations from this process. In the R&O in this 
docket, the Commission concluded that the auction exemption applied 
only to licenses for NCE stations to use the channels that Commission 
has reserved for their exclusive use, and that applicants for licenses 
for NCE stations to use non-reserved spectrum must compete for them via 
competitive bidding; in the NPR case, the D.C. Circuit decided that the 
auction exemption extended to licenses for NCE stations to use non-
reserved spectrum. As a result, the Commission's new

[[Page 26227]]

policies and rules must distinguish between commercial station and NCE 
stations in terms of how it allocates and licenses this spectrum. Thus, 
the Commission cannot distinguish between ``small'' and ``non-small'' 
entities in applying the relevant statutory standards.
    44. Although it is not necessarily true that more applicants for 
NCE stations would qualify as ``small entities'' than applicants for 
commercial stations, the Commission has attempted, within the 
applicable legal constraints, to maximize the opportunities for 
applicants for NCE stations to obtain licenses to use non-reserved 
spectrum, consistent with the mandate in section 604(a)(5) of the RFA 
that an agency consider alternatives to minimize significant economic 
impact on small entities. For example, in the 2FNPRM, the Commission 
proposed two alternatives for licensing non-reserved spectrum: Hold 
applicants for NCE stations ineligible for the spectrum, or permit them 
to apply for this spectrum, subject to the Commission returning their 
applications as unacceptable for filing if any mutually exclusive 
applications for commercial stations remained after the expiration of 
any settlement period. In the 2R&O, the Commission has adopted the 
second of these alternatives, which permits NCE stations to obtain 
licenses for non-reserved spectrum, while the first one did not. This 
alternative is equally beneficial to both large and small entities, 
because it permits all entities the opportunity to acquire licenses for 
non-reserved spectrum. Moreover, the Commission has also reaffirmed its 
process that permits would-be applicants for NCE stations, both large 
and small, to reserve more FM and TV channels for their exclusive use 
upon showing that an already-reserved channel is not available for use, 
and there is a need for NCE service in a given area. The Commission 
will allow interested parties an opportunity to apply these criteria to 
future allocation proceedings, and to channels already in the Table of 
Allotments for which the Commission initiated an allocation proceeding 
before the effective date of the criteria, and for which it never 
accepted applications.

Report to Congress

    45. The Commission will send a copy of the 2R&O, including this 
FRFA, in a report to be sent to Congress pursuant to the Congressional 
Review Act. In addition, the Commission will send a copy of the 2R&O, 
including this FRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration. A copy of the 2R&O and this FRFA (or summaries 
thereof) will also be published in the Federal Register.

Ordering Clauses

    46. Pursuant to the authority contained in sections 1, 2(a), 4(i), 
303, 307, and 309 of the Communications Act, as amended, 47 U.S.C. 151, 
152(a), 154(i), 303, 307, and 309 of this 2R&O is adopted,  and parts 
73 and 74 of the Commission's rules are amended, effective June 16, 
2003.
    47. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this 2R&O, including 
the Final Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.
    48. This proceeding is terminated.

List of Subjects in 47 CFR Parts 73 and 74

    Radio, Television.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 73 and 74 as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority citation for part 73 continues to read as follows:

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

0
2. Section 73.3571 is amended by revising paragraphs (h)(1)(i), 
(h)(2)(i), and (h)(3) to read as follows:


Sec.  73.3571  Processing of AM broadcast station applications.

* * * * *
    (h) * * *
    (1)(i) The FCC will specify by Public Notice, pursuant to Sec.  
73.5002, a period for filing AM applications for a new station or for 
major modifications in the facilities of an authorized station. AM 
applications for new facilities or for major modifications, whether for 
commercial broadcast stations or noncommercial educational broadcast 
stations, as described in 47 U.S.C. 397(6), will be accepted only 
during these specified periods. Applications submitted prior to the 
appropriate filing period or ``window'' opening date identified in the 
Public Notice will be returned as premature. Applications submitted 
after the specified deadline will be dismissed with prejudice as 
untimely.
* * * * *
    (2) * * *
    (i) Identifying the short-form applications received during the 
window filing period which are found to be mutually exclusive, 
including any applications for noncommercial educational broadcast 
stations, as described in 47 U.S.C. 397(6), as well as the procedures 
the FCC will use to resolve the mutually exclusive applications;
* * * * *
    (3) After the close of the filing window, the FCC will also release 
a Public Notice identifying any short-form applications received which 
are found to be non-mutually exclusive, including any applications for 
noncommercial educational broadcast stations, as described in 47 U.S.C. 
397(6). All non-mutually exclusive applicants will be required to 
submit an appropriate long form application within 30 days of the 
Public Notice and, for applicants for commercial broadcast stations, 
pursuant to the provisions of Sec.  73.5005(d). Non-mutually exclusive 
applications for commercial broadcast stations will be processed and 
the FCC will periodically release a Public Notice listing such non-
mutually exclusive applications determined to be acceptable for filing 
and announcing a date by which petitions to deny must be filed in 
accordance with the provisions of Sec. Sec.  73.5006 and 73.3584. Non-
mutually exclusive applications for noncommercial educational broadcast 
stations, as described in 47 U.S.C. 397(6), will be processed and the 
FCC will periodically release a Public Notice listing such non-mutually 
exclusive applications determined to be acceptable for filing and 
announcing a date by which petitions to deny must be filed in 
accordance with the provisions of Sec. Sec.  73.7004 and 73.3584. If 
the applicant is duly qualified, and upon examination, the FCC finds 
that the public interest, convenience and necessity will be served by 
the granting of the non-mutually exclusive long form application, the 
same will be granted.
* * * * *

0
3. Section 73.3572 is amended by revising the section heading and 
paragraph (e) to read as follows:


Sec.  73.3572  Processing of TV broadcast, Class A TV broadcast, low 
power TV, TV translators, and TV booster applications.

* * * * *
    (e) The FCC will specify by Public Notice a period for filing 
applications for a new non-reserved television, low power TV and TV 
translator stations or for major modifications in the facilities of 
such authorized stations, whether for

[[Page 26228]]

commercial broadcast stations or noncommercial educational broadcast 
stations, as described in 47 U.S.C. 397(6), and major modifications in 
the facilities of Class A TV stations.
* * * * *

0
4. Section 73.3573 is amended by revising paragraphs (f)(2)(i), 
(f)(3)(i), and (f)(4) to read as follows:


Sec.  73.3573  Processing of FM broadcast station applications.

* * * * *
    (f) * * *
    (2)(i) The FCC will specify by Public Notice, pursuant to Sec.  
73.5002(a), a period for filing non-reserved band FM applications for a 
new station or for major modifications in the facilities of an 
authorized station. FM applications for new facilities or for major 
modifications, whether for commercial broadcast stations or 
noncommercial educational broadcast stations, as described in 47 U.S.C. 
397(6), will be accepted only during the appropriate filing period or 
``window.'' Applications submitted prior to the window opening date 
identified in the Public Notice will be returned as premature. 
Applications submitted after the specified deadline will be dismissed 
with prejudice as untimely.
* * * * *
    (3) * * *
    (i) Identifying the short-form applications received during the 
window filing period which are found to be mutually exclusive, 
including any applications for noncommercial educational broadcast 
stations, as described in 47 U.S.C. 397(6), as well as the procedures 
the FCC will use to resolve the mutually exclusive applications;
* * * * *
    (4) If, after the close of the appropriate window filing period, a 
non-reserved FM allotment remains vacant, the window remains closed 
until the FCC, by Public Notice, specifies a subsequent period for 
filing non-reserved band FM applications for a new station or for major 
modifications in the facilities of an authorized station pursuant to 
paragraph (f)(2)(i) of this section. After the close of the filing 
window, the FCC will also release a Public Notice identifying the 
short-form applications which are found to be non-mutually exclusive, 
including any applications for noncommercial educational broadcast 
stations, as described in 47 U.S.C. 397(6). These non-mutually 
exclusive applicants will be required to submit the appropriate long-
form application within 30 days of the Public Notice and, for 
applicants for commercial broadcast stations, pursuant to the 
provisions of Sec.  73.5005(d). Non-mutually exclusive applications for 
commercial broadcast stations will be processed and the FCC will 
periodically release a Public Notice listing such non-mutually 
exclusive applications determined to be acceptable for filing and 
announcing a date by which petitions to deny must be filed in 
accordance with the provisions of Sec. Sec.  73.5006 and 73.3584. Non-
mutually exclusive applications for noncommercial educational broadcast 
stations, as described in 47 U.S.C. 397(6), will be processed and the 
FCC will periodically release a Public Notice listing such non-mutually 
exclusive applications determined to be acceptable for filing and 
announcing a date by which petitions to deny must be filed in 
accordance with the provisions of Sec. Sec.  73.7004 and 73.3584. If 
the applicant is duly qualified, and upon examination, the FCC finds 
that the public interest, convenience, and necessity will be served by 
the granting of the non-mutually exclusive long-form application, it 
will be granted.
* * * * *

Subpart I--Procedures for Competitive Bidding and for Applications 
for Noncommercial Educational Broadcast Stations on Non-Reserved 
Channels

0
5. The heading in subpart I of part 73 is revised as set forth above.

0
6. Section 73.5000 is amended by revising paragraph (b) to read as 
follows:


Sec.  73.5000  Services subject to competitive bidding.

* * * * *
    (b) Mutually exclusive applications for broadcast channels in the 
reserved portion of the FM band (Channels 200-220) and for television 
broadcast channels reserved for noncommercial educational use are not 
subject to competitive bidding procedures. Applications for 
noncommercial educational broadcast stations, as described in 47 U.S.C. 
397(6), on non-reserved channels also are not subject to competitive 
bidding procedures.

0
7. Section 73.5002 is amended by revising the section heading and 
paragraphs (a), (b), (c) introductory text and adding paragraph (d)(4) 
to read as follows:


Sec.  73.5002  Application and certification procedures; return of 
mutually exclusive applications not subject to competitive bidding 
procedures; prohibition of collusion.

    (a) Prior to any broadcast service or ITFS auction, the Commission 
will issue a public notice announcing the upcoming auction and 
specifying the period during which all applicants seeking to 
participate in an auction, and all applicants for noncommercial 
educational broadcast stations, as described in 47 U.S.C. 397(6), on 
non-reserved channels, must file their applications for new broadcast 
or ITFS facilities or for major changes to existing facilities. 
Broadcast service or ITFS applications for new facilities or for major 
modifications will be accepted only during these specified periods. 
This initial and other public notices will contain information about 
the completion and submission of applications to participate in the 
broadcast or ITFS auction, and applications for noncommercial 
educational broadcast stations, as described in 47 U.S.C. 397(6), on 
non-reserved channels, as well as any materials that must accompany the 
applications, and any filing fee that must accompany the applications 
or any upfront payments that will need to be submitted. Such public 
notices will also, in the event mutually exclusive applications are 
filed for broadcast construction permits or ITFS licenses that must be 
resolved through competitive bidding, contain information about the 
method of competitive bidding to be used and more detailed instructions 
on submitting bids and otherwise participating in the auction. In the 
event applications are submitted that are not mutually exclusive with 
any other application in the same service, or in the event that any 
applications that are submitted that had been mutually exclusive with 
other applications in the same service are resolved as a result of the 
dismissal or modification of any applications, the non-mutually 
exclusive applications will be identified by public notice and will not 
be subject to auction.
    (b) To participate in broadcast service or ITFS auctions, or to 
apply for a noncommercial educational station, as described in 47 
U.S.C. 397(6), on a non-reserved channel, all applicants must timely 
submit short-form applications (FCC Form 175), along with all required 
certifications, information and exhibits, pursuant to the provisions of 
Sec.  1.2105(a) of this chapter and any Commission public notices. So 
determinations of mutual exclusivity for auction purposes can be made, 
applicants for non-table broadcast services or for ITFS must also 
submit the engineering data contained in the appropriate FCC form (FCC 
Form 301, FCC Form 346, FCC Form 349 or FCC Form 330). Beginning 
January 1,

[[Page 26229]]

1999, all short-form applications must be filed electronically. If any 
application for a noncommercial educational broadcast station, as 
described in 47 U.S.C. 397(6), is mutually exclusive with applications 
for commercial broadcast stations, and the applicants that have the 
opportunity to resolve the mutually exclusivity pursuant to paragraph 
(c) and (d) of this section fail to do so, the application for 
noncommercial educational broadcast station, as described in 47 U.S.C. 
397(6), will be returned as unacceptable for filing, and the remaining 
applications for commercial broadcast stations will be processed in 
accordance with competitive bidding procedures.
    (c) Applicants in all broadcast service or ITFS auctions, and 
applicants for noncommercial educational stations, as described in 47 
U.S.C. 397(6), on non-reserved channels 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, and applicants for 
noncommercial educational stations, as described in 47 U.S.C. 397(6), 
on non-reserved channels, 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:
* * * * *
    (d) * * *
    (4) Applicants for the AM broadcast service who file applications 
that are mutually exclusive with at least one application for a 
noncommercial educational station, as defined in 47 U.S.C. 397(6).

0
8. Section 73.5005 is amended by revising paragraph (d) to read as 
follows:


Sec.  73.5005  Filing of long-form applications.

* * * * *
    (d) An applicant whose short-form application, submitted pursuant 
to Sec.  73.5002(b), was not mutually exclusive with any other short-
form application in the same service, or whose short-form application 
was mutually exclusive only with one or more short-form applications 
for a noncommercial educational broadcast station, as described in 47 
U.S.C. 397(6), shall submit an appropriate long-form application within 
thirty (30) days following release of a public notice identifying any 
such non-mutually exclusive applicants. The long-form application 
should be submitted pursuant to the rules governing the relevant 
service and according to any procedures for filing such applications 
set out by public notice. The long-form application filed by a non-
mutually exclusive applicant need not contain the additional exhibits, 
identified in paragraph (a) of this section, required to be submitted 
with the long-form applications filed by winning bidders. When 
electronic procedures become available, the Commission may require any 
non-mutually exclusive applicants to file their long-form applications 
electronically.

0
9. Section 73.5006 is amended by revising paragraph (a) to read as 
follows:


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

    (a) As set forth in 47 CFR 1.2108, petitions to deny may be filed 
against the long-form applications filed by winning bidders in 
broadcast service or ITFS auctions and against the long-form 
applications filed by applicants whose short-form applications were not 
mutually exclusive with any other applicant, or whose short-form 
applications were mutually exclusive only with one or more short-form 
applications for a noncommercial educational broadcast station, as 
described in 47 U.S.C. 397(6).
* * * * *

Subpart K--Application and Selection Procedures for Reserved 
Noncommercial Educational Channels, and for Certain Applications 
for Noncommercial Educational Stations on Non-Reserved Channels

0
10. The heading in subpart K of part 73 is revised as set forth above.

0
11. Section 73.7001 is amended by revising paragraph (b) and adding 
paragraph (c) to read as follows:


Sec.  73.7001  Services subject to evaluation by point system.

* * * * *
    (b) A point system will be used to evaluate mutually exclusive 
applications for new radio, television, and FM translator facilities, 
and for major changes to existing facilities, on non-reserved channels, 
only when all of the mutually exclusive applications are for 
noncommercial educational broadcast stations, as described in 47 U.S.C. 
397(6)(A) or 47 U.S.C. 397(6)(B).
    (c) A point system will be used to evaluate mutually exclusive 
applications for new television translator and low power television 
facilities, and for major changes to existing facilities, only when all 
of the mutually exclusive applications are for noncommercial 
educational broadcast stations, as described in 47 U.S.C. 397(6)(B).

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

0
11. The authority citation for part 74 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.

0
12. Section 74.1233 is amended by revising paragraphs (d)(2)(i), 
(d)(3)(i), (d)(4) to read as follows:


Sec.  74.1233  Processing FM translator and booster station 
applications.

* * * * *
    (d) * * *
    (2)(i) The FCC will specify by Public Notice, pursuant to Sec.  
73.5002(a) of this chapter, a period for filing non-reserved band FM 
translator applications for a new station or for major modifications in 
the facilities of an authorized station. FM translator applications for 
new facilities or for major modifications, whether for commercial 
broadcast stations or noncommercial educational broadcast stations, as 
described in 47 U.S.C. 397(6), will be accepted only during these 
specified periods. Applications submitted prior to the window opening 
date identified in the Public Notice will be returned as premature. 
Applications submitted after the specified deadline will be dismissed 
with prejudice as untimely.
* * * * *
    (3) * * *
    (i) Identifying the short-form applications received during the 
appropriate filing period or ``window'' which are found to be mutually 
exclusive, including any applications for noncommercial educational 
broadcast stations, as defined in 47 U.S.C. 397(6), as well as the 
procedures the FCC will use to resolve the mutually exclusive 
applications;
* * * * *
    (4) After the close of the filing window, the FCC will also release 
a Public Notice identifying any short-form applications which are found 
to be non-mutually exclusive, including any applications for 
noncommercial educational broadcast stations, as described in 47 U.S.C. 
397(6). These non-mutually exclusive applicants will be required to 
submit the appropriate long form application within 30 days of the 
Public Notice and, for applicants for commercial broadcast stations, 
pursuant to the provisions of Sec.  73.5005 of this chapter. Non-
mutually exclusive applications for commercial broadcast stations will 
be processed and the FCC

[[Page 26230]]

will periodically release a Public Notice listing such non-mutually 
exclusive applications determined to be acceptable for filing and 
announcing a date by which petitions to deny must be filed in 
accordance with the provisions of Sec. Sec.  73.5006 and 73.3584 of 
this chapter. Non-mutually exclusive applications for noncommercial 
educational broadcast stations, as described by 47 U.S.C. 397(6), will 
be processed and the FCC will periodically release a Public Notice 
listing such non-mutually exclusive applications determined to be 
acceptable for filing and announcing a date by which petitions to deny 
must be filed in accordance with the provisions of Sec. Sec.  73.7004 
and 73.3584 of this chapter. If the applicants are duly qualified, and 
upon examination, the FCC finds that the public interest, convenience 
and necessity will be served by the granting of the non-mutually 
exclusive long-form application, the same will be granted.
* * * * *

[FR Doc. 03-12057 Filed 5-14-03; 8:45 am]
BILLING CODE 6712-01-P