[Federal Register Volume 68, Number 140 (Tuesday, July 22, 2003)]
[Rules and Regulations]
[Pages 43329-43331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18510]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 02-113; FCC 03-77]


Broadcast Services; Television Stations Digital Television (DTV) 
Construction Deadline

AGENCY: Federal Communications Commission.

ACTION: Policy statement.

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SUMMARY: In this document, the Commission adopts a policy to be 
followed when the staff denies a request to extend a television 
station's digital television (DTV) construction deadline. The intended 
effect is to alert stations as to the sanctions that will be applied if 
they fail to meet their DTV deadline.

FOR FURTHER INFORMATION CONTACT: Shaun Maher, Media Bureau, Office of 
Broadcast Licensing, Video Division, (202) 418-2324.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Report and Order 
(``R&O'') in MM Docket No. 02-113, FCC 02-150, adopted April 4, 2003, 
and released April 16, 2003. The complete text of this R&O 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 R&O is also available on the Internet at the Commission's 
Web site: http://www.fcc.gov.

Synopsis

    1. The Commission has adopted this R&O announcing its policy to be 
followed when requests to extend digital television (DTV) construction 
deadlines are denied. The Commission announced a set of graduated 
sanctions that it will impose. Under the first step of its approach, 
the Commission will deny the request for an unqualified extension and 
admonish the station for its failure to comply with its DTV 
construction obligation. The station will 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 will be no 
later than six months from the date of admonishment. Sixty (60) days 
later, the station will 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 will consider 
the imposition of additional sanctions including proceeding immediately 
to the second step.
    2. Under the second step in the approach, if the station has not 
come into compliance with the DTV construction rule within the six 
month period, then, absent extraordinary and compelling circumstances, 
the Commission will impose further sanctions against the licensee. The 
Commission will issue a Notice of Apparent Liability for forfeiture to 
the licensee. It will 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, will 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 will consider its construction 
permit for its DTV facilities to have expired and will rescind the 
station's DTV authorization. The Commission concluded that no hearing 
was necessary prior to rescinding the station's DTV authorization. The 
Commission also concluded that it would not make the station's vacant

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DTV allotment available. The Commission also announced that the station 
will be required to surrender its analog authorization at the end of 
the DTV transition.

Administrative Matters

    4. Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA),\1\ and Initial 
Regulatory Flexibility Analysis (IRFA) was incorporated in the Order 
and Notice of Proposed Rulemaking, 67 FR 38459, June 4, 2002.\2\ The 
Commission sought written public comment on the proposals in the Order 
and Notice of Proposed Rulemaking including comment on the IRFA. The 
comments received are discussed below. This present Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.\3\
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
    \2\ Remedial Steps For Failure to Comply With Digital Television 
Construction Schedule, 17 FCC Rcd 9962 (2002) (Order and Notice of 
Proposed Rulemaking).
    \3\ See 5 U.S.C. 604.
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A. Need for, and Objectives of, the Proposed Rules

    5. The Commission adopts these remedial measures to prevent undue 
delay in the required build out of DTV facilities.

B. Summary of Significant Issues Raised By Public Comments in Response 
to the IRFA

    6. New Life Evangelistic Center, Inc (NLEC) filed comments on the 
IRFA. NLEC complains that television stations will have to spend 
millions of dollars to comply with the DTV construction requirement. 
However, that matter was previously considered in the DTV rulemaking 
proceeding wherein the Commission adopted the DTV construction 
requirement and timetable. In the instant proceeding, the Commission 
only considered what steps to take when a station fails to meet its 
construction requirement. Therefore, NLEC's comments were not on point.

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

    7. 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.\4\ The RFA defines the term 
``small entity'' as having the same meaning as ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.''\5\ In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act.\6\ 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.\7\
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    \4\ 5 U.S.C. 603(b)(3).
    \5\ Id. 601(6).
    \6\ Id. 601(3) (incorporating by reference the definition of 
``small business concern'' in 15 U.S.C. 32). Pursuant to the RFA, 
the statutory definition of a small business applies ``unless an 
agency, after consultation with the Office of Advocacy of the Small 
Business Administration and after opportunity for public comment, 
establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \7\ Id. 632.
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    8. The proposals in the R&O 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.\8\ SBA defines 
television broadcasting establishments that have $12 million or less in 
annual receipts as a small business.\9\ According to Census Bureau data 
for 1997, there were 906 firms in this category, total, that operated 
for the entire year.\10\ 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.
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    \8\ News Release, ``Broadcast Station Totals as of September 30, 
2001'' (released October 30, 2001).
    \9\ NAICS Code 513120.
    \10\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size,'' Table 4, NAICS code 
513120 (issued Oct. 2000).
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D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    9. The R&O contains a new reporting requirement. Stations that fail 
to construct their DTV stations by the requisite deadline and fail to 
justify an extension of their DTV construction permit will fall into 
the remedial measures set forth in the document. Among the remedial 
measures, is the requirement that the station submit periodic reports 
detailing their efforts to comply with the extended DTV construction 
deadline. The reports will be filed in letter form with the Secretary's 
office.

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

    10. 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.\11\
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    \11\ 5 U.S.C. 603(c).
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    11. The R&O contains remedial steps for failure of broadcast 
stations to comply with the DTV construction schedule. These steps are 
applied only after a station has failed to demonstrate this it 
qualifies for an extension of its schedule. The Commission's rules and 
policies already contain flexible measures for allowing stations in 
smaller markets to seek an extension of their DTV construction 
deadline. Those measures remain unchanged by the R&O.
    12. One of the sanctions that may be used is the issuance of a 
notice of apparent liability for forfeiture to stations that do not 
comply with their DTV construction obligation. We already take small 
entity status, including potential inability to pay, into account when 
assessing the need for, and amount of, monetary forfeitures.\12\
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    \12\ See, e.g., In the Matter of the Commission's Forfeiture 
Policy Statement and Amendment of Section 1.80 of the Rules to 
incorporate the Forfeiture Guidelines, CI Docket No. 95-6, Report 
and Order, 12 FCC Rcd 17087, 17109 (1997).
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F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    13. None.

G. Report to Congress

    14. The Commission will send a copy of the R&O, including this 
FRFA, in a report to be sent to Congress pursuant to the Congressional 
Review Act.\13\ In addition, the Commission will send a copy of the R&O 
including this FRFA to the Chief Counsel for Advocacy of the SBA. A 
copy of the R&O and FRFA (or summaries thereof) will also be published 
in the Federal Register.\14\
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    \13\ See 5 U.S.C. 801(a)(1)(A).
    \14\ See 5 U.S.C. 604(b).
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    15. Authority. This R&O is issued pursuant to authority contained 
in

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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.
    16. The Request for Reconsideration filed by Sinclair Broadcast 
Group, Inc., is denied.

Ordering Clauses

    17. 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 R&O is adopted.
    18. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this R&O, including 
the Final Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

    Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-18510 Filed 7-21-03; 8:45 am]
BILLING CODE 6712-01-P