[Federal Register Volume 75, Number 42 (Thursday, March 4, 2010)]
[Proposed Rules]
[Pages 9856-9859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3492]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 09-52; FCC 10-24]


Policies To Promote Rural Radio Service and To Streamline 
Allotment and Assignment Procedures

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission adopted a Further Notice of 
Proposed Rulemaking (FNPRM), in which it announced that it was 
considering, without proposing specific rules, two issues urged by 
commenters in this proceeding. First, the Commission is considering 
whether, how, and under what circumstances federally-recognized Native 
American Tribes and Alaska Native Villages (Tribes) should receive a 
bidding credit in auctions for new radio stations. Second, the 
Commission is considering whether and how the Tribal Priority adopted 
in the First Report and Order (First R&O) in this proceeding might be 
claimed by Tribes that do not possess defined tribal lands.

DATES: Comments may be filed on or before May 3, 2010 and reply 
comments may be filed on or before June 2, 2010. Written comments on 
the Paperwork Reduction Act proposed information collection 
requirements must be submitted by the public, Office of Management and 
Budget (OMB), and other interested parties on or before May 3, 2010.

ADDRESSES: You may submit comments, identified by MB Docket No. 09-52, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     E-mail: [email protected]. Include the docket number in the 
subject line of the message. See the SUPPLEMENTARY INFORMATION section 
of this document for detailed information on how to submit comments by 
e-mail.
     Mail: 445 12th Street, SW., Washington, DC 20554.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432. For detailed instructions for submitting 
comments and additional information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Peter Doyle, Chief, Media Bureau, 
Audio Division, (202) 418-2700; Thomas Nessinger, Attorney-Advisor, 
Media Bureau, Audio Division, (202) 418-2700.
    For additional information concerning the Paperwork Reduction Act 
information collection requirements contained in this document, contact 
Cathy Williams at 202-418-2918, or via the Internet at 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking, FCC 10-24, adopted January 28, 
2010, and released February 3, 2010.

Initial Paperwork Reduction Act of 1995 Analysis

    The FNPRM contains potential information collection requirements 
subject to the PRA, Public Law 104-13. OMB, the general public, and 
other Federal agencies are invited to comment on the potential new and 
modified information collection requirements

[[Page 9857]]

contained in this FNPRM. If the information collection requirements are 
adopted, the Commission will submit the appropriate documents to OMB 
for review under Section 3507(d) of the PRA and OMB, the general 
public, and other Federal agencies will again be invited to comment on 
the new and modified information collection requirements adopted by the 
Commission.
    Public and agency comments on the potential proposed information 
collection requirements are due May 3, 2010. 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. Pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the FCC seeks specific comment on how it might ``further 
reduce the information collection burden for small business concerns 
with fewer than 25 employees.''
    In addition to filing comments with the Secretary, a copy of any 
Paperwork Reduction Act comments on the information collection 
requirements contained herein should be submitted to Cathy Williams, 
Federal Communications Commission, Room 1-C823, 445 12th Street, SW., 
Washington, DC 20554, or via the Internet to [email protected], 
and to Nicholas A. Fraser, Office of Management and Budget (OMB), via 
the Internet to [email protected] or by fax to 202-395-
5167.

Summary of Further Notice of Proposed Rule Making

    Some commenters noted that tribal applicants applying the Tribal 
Priority at the FM allotment rule making stage might still lose at 
auction to non-tribal bidders. It was suggested that a remedy for this 
problem would be to implement a bidding credit for qualified tribal 
applicants.
    Given the paucity of tribal-owned radio stations, it might be 
expected that the vast majority of tribal applicants for commercial 
facilities would qualify for new entrant bidding credits, negating the 
need for a special tribal bidding credit over and above the new entrant 
bidding credits. Moreover, the Commission has previously rejected the 
implementation of ``finder's'' or ``pioneer's'' bidding credits for 
applicants that add allotments to the FM Table of Allotments. The 
Commission nevertheless believes it appropriate to consider various 
proposals for a special bidding credit for tribal applicants.
    While not proposing any one such proposal as a rule at this time, 
the Commission seeks comment to assist its consideration as to whether 
to offer such a new bidding credit, either in lieu of or in addition to 
the existing new entrant bidding credits. One option would be to 
establish a 35 percent bidding credit for tribal applicants, as long as 
they own no commercial facilities in the ``same area'' as the proposed 
new facility (as defined in 47 CFR 73.5007(b)). Another would be the 
equivalent of a new entrant credit, rather than the Tribal Priority. 
The Commission would also consider whether to give tribal applicants 
the option to claim either the appropriate 25 or 35 percent new entrant 
bidding credit or, as long as an applicant owns no other commercial 
stations in the same area, a 25 or 35 percent tribal bidding credit. 
Still another alternative would be to offer a choice of either the 
appropriate new entrant bidding credit or a lesser credit, perhaps 15 
or 20 percent, to tribal applicants who are not new entrants. In all of 
the above cases, the Commission would consider whether to limit the 
tribal bidding credit to allotments added using the Tribal Priority, 
and further, whether to limit the credit to the Tribe(s) or entity 
adding the allotment to the Table of Allotments. Should a qualifying 
bidder be able to employ a tribal bidding credit in addition to a new 
entrant bidding credit (at least for qualifying tribal allotments) 
rather than in lieu of the new entrant credit? Additionally, applicants 
using new entrant bidding credits are subject to the unjust enrichment 
provisions of our Rules, which require that all or a portion of the 
bidding credit be reimbursed if the authorization is assigned or 
transferred within five years of issuance to a party not qualifying for 
the credit. What impact would a tribal bidding credit have on the 
unjust enrichment rules, and what adjustments (if any) should the 
Commission make to those rules to accommodate a tribal bidding credit? 
The Commission seeks comment on these proposals, or any other proposals 
forwarded by commenters for a potential tribal bidding credit.
    The Tribal Priority as adopted in the First R&O is by its terms 
limited to Tribes possessing tribal lands that can be served. 
Commenters to the Rural NPRM pointed out that many Tribes do not have 
their own reservations or defined tribal lands. It was urged that the 
Commission seek comment on ways in which ``landless'' Tribes may 
nonetheless avail themselves of the Tribal Priority.
    The Tribal Priority proposed in the Rural NPRM was principally 
designed to enable Tribes to aid the development, and perpetuate the 
language and culture of their members, not merely to give Tribes a 
blanket priority over other applicants for facilities that may not 
provide service targeted at Tribal citizens or communities. Two 
commenters stated that other federal agencies use different concepts, 
such as ``service areas,'' rather than strict definitions of tribal 
lands. It was further suggested that provision could be made for tribal 
applicants to show that the proposed principal community contour serves 
the functional equivalent of tribal lands, using factors such as Native 
American population density, cultural links between the community of 
license and the Tribe or Tribes, or other factors.
    The Commission therefore considers, without proposing a specific 
rule, whether and how Tribes without tribal lands as defined in the 
First R&O and in the Rural NPRM can qualify for the Tribal Priority. 
For example, the Commission considers whether a threshold tribal 
population, or tribal population density, could be taken into account 
in determining whether a tribal applicant meets the tribal coverage and 
community of license criteria of the Tribal Priority. Another 
possibility would be to consider whether historical or contemporary 
cultural links could be taken into account in making the tribal 
coverage and community determinations. Should the fact that a currently 
landless Tribe or Tribes previously occupied the coverage area or 
proposed community of license be taken into account? Are there other 
factors that should be considered? The Commission invites comment on 
these issues, and seek suggestions as to whether and how it might 
institute such a procedure.
    Comments and Reply Comments. Pursuant to Sec. Sec.  1.415 and 1.419 
of the Commission's Rules (47 CFR 1.415, 1.419), interested parties 
must file comments on or before May 3, 2010, and must file reply 
comments on or before June 2, 2010. Comments may be filed using: (1) 
The Commission's Electronic Comment Filing System (ECFS); (2) the 
Federal Government's eRulemaking Portal, or (3) by filing paper copies.
    Comments may be filed electronically using the Internet by 
accessing the

[[Page 9858]]

ECFS: http://www.fcc.gov/cbg/ecfs, or the Federal eRulemaking Portal: 
http://www.regulations.gov. Filers should follow the instructions 
provided on the Web sites for submitting comments. For ECFS filers, if 
multiple docket or rulemaking numbers appear in the caption of this 
proceeding, filers must transmit one electronic copy of the comments 
for each docket or rulemaking number referenced in the caption. In 
completing the transmittal screen, filers 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 response.
    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 
appears in the caption of this proceeding, filers 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 
(although the Commission continues to experience delays in receiving 
U.S. Postal Service mail). All filings must be addressed to the 
Commission's Secretary, Office of the Secretary, Federal Communications 
Commission. The Commission's contractor 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.
    Contact the FCC to request materials in accessible formats 
(Braille, large print, electronic files, audio format, etc.) by e-mail 
at [email protected], or call the Consumer & Governmental Affairs Bureau 
at 202-418-0531 (voice), 202-418-7365 (TTY).
    The full text of the Further Notice of Proposed Rulemaking is 
available for inspection and copying during normal business hours in 
the FCC Reference Information Center, Room CY-A257, 445 12th Street, 
SW., Washington, DC 20554. The complete text may be purchased from the 
Commission's copy contractor, Best Copy and Printing, Inc., 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554. The full text may also 
be downloaded at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-30.pdf. Alternative formats are available to persons with 
disabilities by contacting Martha Contee at (202) 418-0260 or TTY (202) 
418-2555.
    Ex Parte Rules. This proceeding will be treated as a ``permit-but-
disclose'' proceeding subject to the ``permit-but-disclose'' 
requirements under Sec.  1.1206(b) of the Commission's Rules (47 CFR 
1.1206(b)). Ex parte presentations are permissible if disclosed in 
accordance with Commission Rules, except during the Sunshine Agenda 
period when presentations, ex parte or otherwise, are generally 
prohibited. Persons making oral ex parte presentations are reminded 
that a memorandum summarizing a presentation must contain a summary of 
the substance of the presentation and not merely a listing of the 
subjects discussed. More than a one- or two-sentence description of the 
views and arguments presented is generally required. Additional rules 
pertaining to oral and written presentations are set forth in Sec.  
1.1206(b) of the Commission's Rules.
    Initial Regulatory Flexibility Analysis. The Regulatory Flexibility 
Act of 1980, as amended (RFA), requires that a regulatory flexibility 
analysis be prepared for notice and comment rule making proceedings, 
unless the agency certifies that ``the rule will not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities.'' The RFA generally defines the term ``small entity'' as 
having the same meaning as the terms ``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 Small Business Administration 
(SBA).
    As required by the RFA (5 U.S.C. 603), the Commission has prepared 
this Initial Regulatory Flexibility Analysis (IRFA) of the possible 
significant economic impact on a substantial number of small entities 
by the policies and rules proposed in the FNPRM. 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 FNPRM provided in paragraph 75 of the FNPRM. The Commission will 
send a copy of this entire FNPRM, including this IRFA, to the Chief 
Counsel for Advocacy of the Small Business Administration (SBA). In 
addition, the FNPRM and the IRFA (or summaries thereof) will be 
published in the Federal Register.
    Need For, and Objectives of, the Proposed Rules. This further 
rulemaking proceeding is initiated to obtain comments concerning 
commenters' request that the Commission consider providing a bidding 
credit to Native American Indian Tribes and Alaska Native Villages 
(Tribes) and entities owned by Tribes, and also to obtain comments 
concerning a commenter's proposal to provide a Tribal Priority, as 
adopted in the First R&O in this proceeding, to Tribes that do not 
possess their own tribal lands. The Commission has put out for 
consideration several proposals for a potential tribal bidding credit: 
to grant Tribes the maximum permissible 35 percent bidding credit 
provided they do not own any other facility in the ``same area'' as the 
proposed new facility; to give Tribes the option to claim either the 
appropriate 25 or 35 percent new entrant bidding credit or, as long as 
the applicant owns no stations in the same area as the proposed new 
station, a 25 or 35 percent tribal bidding credit; or to offer Tribes a 
choice of either the appropriate new entrant bidding credit or a lesser 
credit, perhaps 15 or 20 percent, to tribal applicants who are not new 
entrants. In all of the above cases, the Commission also considers 
whether to limit the tribal bidding credit, in FM auctions, to 
allotments added using the Tribal Priority, and further, whether to 
limit the credit to the Tribe(s) or entity adding the allotment to the 
Table of Allotments. In other words, should the bidding credit be 
available to otherwise qualifying applicants that did not participate 
in the Tribal allotment reservation process? The Commission also 
considers herein whether a tribal bidding credit should be available in 
addition to a new entrant bidding credit (at least for qualifying 
tribal FM allotments) or in lieu of the new entrant bidding credit. The 
Commission believes these proposals, if adopted, will provide 
opportunities for Tribes and tribal entities proposing new FM 
allotments better to compete at auction for those allotments.

[[Page 9859]]

    The Commission is also considering, without proposing a specific 
rule, whether and how Tribes without tribal lands can qualify for the 
Tribal Priority. The proposals offered for consideration by commenters 
are (1) Whether an applicant or proponent is deemed to provide tribal 
area coverage if it covers a certain threshold tribal population or 
population density, (2) whether historical or contemporary cultural 
links between a Tribe and land or population covered should be taken 
into account in making the tribal coverage and community of license 
determinations, and (3) whether the fact that a currently landless 
Tribe or Tribes previously occupied the coverage area or proposed 
community of license should be taken into account. The Commission 
considers these proposals, and seeks comment and suggestions as to 
other ways to extend the benefits of the Tribal Priority to those 
Tribes that do not have reservations or other tribal lands, allowing 
such ``landless'' Tribes to acquire radio stations to achieve the goals 
of aiding tribal development, and perpetuating tribal language and 
culture.
    Legal Basis. The authority for this proposed rulemaking is 
contained in Sections 1, 2, 4(i), 303, 307, and 309(j) of the 
Communications Act of 1934, 47 U.S.C 151, 152, 154(i), 303, 307, and 
309(j).
    Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply. 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 proposed rules. The RFA 
generally defines the term ``small entity'' as encompassing the terms 
``small business,'' ``small organization,'' and ``small governmental 
entity.'' 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.
    Radio Stations. The proposed rules and policies potentially will 
apply to all AM and FM radio broadcasting applicants, and proponents 
for new FM allotments, who qualify for the Tribal Priority adopted in 
the First R&O in this proceeding. The ``Radio Stations'' Economic 
Census category ``comprises establishments primarily engaged in 
broadcasting aural programs by radio to the public. Programming may 
originate in their own studio, from an affiliated network, or from 
external sources. The SBA has established a small business size 
standard for this category, which is: such firms having $7 million or 
less in annual receipts. According to BIA Advisory Services, LLC, MEDIA 
Access Pro Database on March 17, 2009, 10,884 (95%) of 11,404 
commercial radio stations have revenue of $6 million or less. 
Therefore, the majority of such entities are small entities. We note, 
however, that in assessing whether a business concern qualifies as 
small under the above size standard, business affiliations must be 
included. In addition, to be determined to be a ``small business,'' the 
entity may not be dominant in its field of operation. We note that it 
is difficult at times to assess these criteria in the context of media 
entities, and our estimate of small businesses may therefore be over-
inclusive.
    Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements. The proposed rule and procedural changes may, 
in some cases, impose different reporting requirements on existing and 
potential radio licensees and permittees, insofar as they would require 
or allow certain applicants to file new technical and population 
coverage information on or after filing the short form application (FCC 
175) or in the noncommercial educational long form application (FCC 
340). However, the information to be filed is already familiar to 
broadcasters, and the information requested to claim the Tribal 
Priority is similar to current Section 307(b) showings, so any 
additional burdens would be minimal.
    To the extent that other applicants would be disadvantaged by 
Tribes qualifying for the Tribal Priority, the Commission believes that 
such burdens would be offset by the fact that the Tribal Priority is 
designed to redress inequities in the number of tribal radio licensees, 
compared to the population of tribal citizens in the United States and 
the fact that some of these citizens were deprived of their original 
tribal lands. The Tribal Priority, then, not only helps the Commission 
to meet its goals of ownership and program diversity, but also furthers 
the federal government's obligations toward Tribes to assist them in 
promulgating tribal languages and cultures, and to support tribal self-
government.
    Steps Taken to Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered. 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 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. In 
the FNPRM, the Commission seeks to provide additional opportunities for 
participation by Tribes in broadcast auctions, especially FM auctions, 
and to open up the Tribal Priority to those Tribes who do not currently 
have tribal lands, and who therefore cannot qualify under the Tribal 
Priority's tribal coverage criterion. The Commission is open to 
consideration of alternatives to the proposals under consideration, as 
set forth herein, including but not limited to alternatives that will 
minimize the burden on broadcasters, most of whom are small businesses. 
There may be unique circumstances these entities may face, and we will 
consider appropriate action for small broadcasters when preparing a 
Report and Order in this matter.
    Federal Rules Which Duplicate, Overlap, or Conflict With, the 
Commission's Proposals. None.
    This document is available in alternative formats (computer 
diskette, large print, audio record, and Braille). Persons with 
disabilities who need documents in these formats may contact Brian 
Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or via e-mail 
at [email protected].

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2010-3492 Filed 3-3-10; 8:45 am]
BILLING CODE 6712-01-P