[Federal Register Volume 84, Number 54 (Wednesday, March 20, 2019)]
[Proposed Rules]
[Pages 10275-10289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04037]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 19-3; FCC 19-9]


Reexamination of the Comparative Standards and Procedures for 
Licensing Noncommercial Educational Broadcast Stations and Low Power FM 
Stations

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission adopted a Notice of Proposed 
Rulemaking, in which it sought comment on several proposals designed to 
improve the rules and procedures to select and license competing 
applications for new noncommercial educational (NCE) broadcast stations 
and low power FM (LPFM) stations.

DATES: Comments may be filed on or before May 20, 2019 and reply 
comments may be filed on or before June 18, 2019.

ADDRESSES: Interested parties may submit comments and reply comments, 
identified by MB Docket No. 19-3, by any of the following methods:
     Federal Communications Commission's Website: http://www.fcc.gov/ecfs. Follow the instructions for submitting comments.
     Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [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: Albert Shuldiner, Chief, Media Bureau, 
Audio Division, (202) 418-2721; Lisa Scanlan, Deputy Division Chief, 
Media Bureau, Audio Division, (202) 418-2704; Amy Van de Kerckhove, 
Attorney Advisor, Media Bureau, Audio Division, (202) 418-2726. For 
additional information concerning the Paperwork Reduction Act (PRA) 
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 Notice 
of Proposed Rulemaking (NPRM), MB Docket No. 19-3; FCC 19-9, adopted on 
February 14, 2019, and released on February 15, 2019. The full text of 
this document is available electronically via the FCC's Electronic 
Document Management System (EDOCS) website at http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment Filing System (ECFS) 
website at http://www.fcc.gov/ecfs. (Documents will be available 
electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) This 
document is also available for public inspection and copying during 
regular business hours in the FCC Reference Information Center, which 
is located in Room CY-A257 at FCC Headquarters, 445 12th Street SW, 
Washington, DC 20554. The Reference Information Center is open to the 
public Monday through Thursday from 8:00 a.m. to 4:30 p.m. and Friday 
from 8:00 a.m. to 11:30 a.m. The complete text may be purchased from 
the Commission's copy contractor, 445 12th Street SW, Room CY-B402, 
Washington, DC 20554. Alternative formats are available for people with 
disabilities (braille, large print, electronic files, audio format), by 
sending an email to [email protected] or calling the Commission's Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY).
    The NPRM may result in new or revised information collection 
requirements. If the Commission adopts any new or revised information 
collection requirements, the

[[Page 10276]]

Commission will publish a notice in the Federal Register inviting the 
public to comment on such requirements, as required by the Paperwork 
Reduction Act of 1995. In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), the Commission will seek specific comment on how it might 
``further reduce the information collection burden for small business 
concerns with fewer than 25 employees.''

Synopsis

    1. Introduction. In the NPRM the Commission commences a proceeding 
to consider changes to its rules and procedures for comparatively 
considering competing applications for new and major modifications to 
noncommercial educational FM radio stations, FM translator stations, 
and full power television stations (collectively, NCE or NCE broadcast) 
and low power FM (LPFM) stations. The Commission seeks comment on 
proposals to improve selection procedures, expedite the initiation of 
new service to the public, and eliminate unnecessary applicant burdens.
    2. The Commission accepts applications for new NCE and LPFM 
stations, or major changes to authorized NCE and LPFM stations, during 
specified filing windows announced by public notice. Due to the finite 
nature of and high demand for spectrum, the Commission cannot authorize 
an NCE or LPFM station to every qualified applicant. Accordingly, after 
the close of an NCE or LPFM filing window, the Commission examines all 
timely and complete applications to determine whether any two or more 
proposals are mutually exclusive (MX). The Commission currently uses a 
point system to select among the mutually exclusive applications. The 
Commission compares MX groups of NCE applications under the point 
system set forth in 47 CFR 73.7003. The NCE point system awards a 
maximum of seven merit points, based on four distinct criteria: (1) 
Established local applicant; (2) diversity of ownership; (3) state-wide 
networks; and (4) technical parameters. The applicant with the highest 
score in a group is designated a ``tentative selectee.'' Tied 
applicants are subject to mandatory time-sharing. The Commission 
compares mutually exclusive groups of LPFM applications under the point 
system set forth in 47 CFR 73.872. The LPFM point system awards a 
maximum of six merit points, based on six criteria. Applicants tied for 
the highest point total in an MX group are subject to voluntary and 
involuntary time-sharing.
    3. The NCE and LPFM comparative procedures have facilitated the 
efficient grant of several thousand new station construction permits. 
However, certain rules and procedures confused applicants, drew 
criticism, or delayed the initiation of new service. Some rules 
appeared counterproductive or imposed undue burdens on applicants; 
others appeared to omit necessary guidance. The Commission also 
identified inconsistencies between the rules and the forms. 
Accordingly, the NPRM considers changes to clarify, simplify, and 
improve the Commission's licensing procedures for new NCE broadcast and 
LPFM stations.
    4. Eliminate Governing Document Requirements for Established Local 
Applicants. Under the Commission's point system selection process, 
established local applicants are awarded three points. To qualify, an 
applicant must certify and document that it has been ``local'' and 
``established,'' as defined in 47 CFR 73.7000, continuously for at 
least two years immediately prior to application filing. Further, 47 
CFR 73.7003(b)(1) and the FCC Form 340 certification dictate that to 
receive the three localism points, all applicants must amend their 
governing documents to require that localism be maintained (Localism 
Governing Document Requirement). In contrast, the Worksheets and 
Instructions to FCC Form 340 limit the rule's applicability, and direct 
that only applicants relying on governing board residences must amend 
their governing documents to require that localism be maintained.
    5. The documentation requirement discrepancy between the rules and 
the FCC Form 340 instructions and orders adopting the NCE point system 
created undue confusion, generated considerable litigation among 
applicants during the 2007 and 2010 NCE FM filing windows, and delayed 
the licensing process. The Commission does not propose a change in the 
requirement to maintain localism for a specified period of time. 
However, to improve the fair and efficient award of points under the 
localism criterion, the Commission proposes to eliminate the current 47 
CFR 73.7003(b)(1) requirement that governing documents include a 
localism provision.
    6. The Commission seeks comment on the proposed elimination of this 
specific documentation requirement for all categories of applicants 
seeking to qualify for localism points. In lieu of the Localism 
Governing Document Requirement, the Commission proposes to safeguard 
its localism goals by incorporating into the current Holding Period 
rule a new provision explicitly requiring any prevailing applicant that 
receives localism points during the point system analysis to maintain 
localism during the period from the grant of the construction permit 
until the station has achieved four years of on-air operations. Is 
this, along with a certification pledging to maintain localism at the 
time of filing the Form 340 application, sufficient to safeguard the 
``established local applicant'' criterion? Are there other means to 
safeguard this vital criterion? Alternatively, should the Commission 
retain the Localism Governing Document Requirement solely for the 
category of applicants relying on their governing board member 
residences to qualify as local, and accordingly, amend the rules to 
clarify that only applicants relying on board members' residences must 
satisfy the Localism Governing Document Requirement? The Commission 
invites comment on these proposals, and any other suggestions to 
clarify, simplify, and safeguard the ``established local applicant'' 
criterion.
    7. Eliminate Governing Document Requirements for Applicants 
Claiming Diversity Points. The Commission awards two points for local 
diversity of ownership if the principal community contour of the 
applicant's proposed NCE station does not overlap with those of any 
other station in which either the applicant or any party to the 
application holds an attributable interest. To qualify for diversity 
points under the point selection process, an applicant must certify 
that: (1) Neither it nor any party to the application currently has 
such an interest; (2) the organization's governing documents, i.e., its 
``by-laws, constitution, or their equivalent,'' require maintenance of 
diversity into the future; and (3) it has placed documentation of its 
diversity qualifications in a local public inspection file and has 
submitted copies of the documentation to the Commission.
    8. To document future diversity, the Commission requires an 
applicant to file a copy of its pertinent corporate governance 
documents, showing that it properly amended its governing documents to 
require the maintenance of such diversity (the Diversity Governing 
Document Requirement). Applicants, such as state universities that are 
governed by state charters and statutes, which cannot be amended 
without legislative action, are permitted to base the governing 
document component of their diversity certification on alternative 
safeguards (the Legislative Exception). For such

[[Page 10277]]

applicants and those without official traditional governing documents, 
the Commission requires specificity and exactitude in supporting 
diversity documentation and explicit mechanisms to clearly communicate 
the diversity requirements to current and future board members and 
enforce such requirements.
    9. The Commission found that this Diversity Governing Document 
Requirement has had the unintended effect of confusing applicants, and 
multiple applicants, otherwise qualified and legitimate, lost diversity 
points because of ministerial mistakes and the failure to comprehend 
the requirement to submit documentation to demonstrate a commitment to 
maintain diversity in the future. The Commission proposes to eliminate 
both (1) the requirement that applicants amend their governing 
documents, or provide an alternative safeguard showing, to pledge that 
``diversity be maintained,'' and (2) the requirement to submit such 
documents to the Commission and place the documentation in the local 
public inspection file. The Commission invites comments on its proposal 
to eliminate this documentation requirement for all applicants seeking 
to qualify for diversity points.
    10. In lieu of the Diversity Governing Document Requirement, the 
Commission proposes to safeguard its diversity goals by incorporating 
into the current Holding Period rule a new provision prohibiting any 
prevailing applicant that receives diversity points during the point 
system analysis from acquiring a radio or full power or Class A 
television station, which would overlap the principal community contour 
of its new NCE FM or NCE television station, during the period from the 
grant of the construction permit until the station has achieved four 
years of on-air operations. The restriction would apply to the 
applicant itself, any parties to the application, and any party that 
acquires an attributable interest in the permittee or licensee during 
this period. Further, the Commission proposes to add an additional 
question to FCC Form 340, FCC Form 314, and FCC Form 315, requiring 
applicants to certify that the proposed acquisition would comply with 
the subject authorization's diversity condition. The Commission seeks 
comment on whether these are effective means to safeguard its diversity 
goals, and invites comments on any alternative measures to clarify, 
simplify, and safeguard the diversity of ownership criterion.
    11. Establish Uniform Divestiture Pledge Policies. The Commission 
has held that, generally, a contingent pledge to divest an attributable 
broadcast interest or resign from an attributable positional interest 
(collectively, the Divestiture Pledge) is an ineffective mechanism to 
avoid the attribution of broadcast interests that are held at the close 
of the filing window. Rather, diversity points are only awarded when 
the applicant completes the pledged action prior to the close of the 
filing window. The Commission, however, has carved out three exceptions 
to this general policy and will accept contingent Divestiture Pledges 
for: (1) Non-fill-in translator stations if the applicant pledges to 
request the cancellation of the translator authorization upon the new 
NCE FM station's commencement of operations; (2) Class D stations if 
the applicant commits to divesting the Class D station license prior to 
the commencement of operations by a same-area full service NCE FM 
station; and (3) LPFM stations if the applicant/party commits to 
divesting its interest in the LPFM station license prior to 
commencement of program tests by the new NCE FM station. During the 
2007 and 2010 NCE FM filing windows, the Commission denied requests to 
utilize contingent Divestiture Pledges to exclude full service stations 
from the diversity of ownership consideration, and some applicants 
requested that the Commission revisit and expand the scope of its 
divestiture policies to recognize full service station Divestiture 
Pledges for comparative purposes.
    12. The Commission has found that the current policy can be unduly 
burdensome considering that (1) the divestiture may never be required, 
i.e., the applicant may not become a tentative selectee, and (2) the 
diversity concerns do not ripen regarding a tentative selectee until 
after a construction permit is issued and station construction is 
completed, a process that could take several years from the close of 
the window. The Commission, therefore, concludes that the public 
interest would be better served by revising its current policy and 
crediting all contingent Divestiture Pledges that are submitted in the 
application by the close of the filing window. The Commission proposes 
to mandate that the actual divestiture or resignation be completed by 
the time the new NCE station commences program test operations and 
invites comment on these proposals.
    13. Expand Tie-Breaker Criteria. Under the Commission's NCE point 
system process, applicants tied with the highest number of points 
awarded in a MX group proceed to a tie-breaker round. The first tie-
breaker is the number of radio or television station authorizations 
attributable to each applicant. The second tie-breaker is the number of 
pending same service station applications attributable to each 
applicant. If the second factor fails to break the tie, the Commission 
uses mandatory time-sharing as the tie-breaker of last resort for full 
service NCE stations. During the 2007 and 2010 NCE FM filing windows, 
hundreds of MX groups resulted in ties following the point system 
analysis and proceeded to the tie-breaker round. The Commission 
anticipates more ties in future NCE FM filing windows.
    14. The Commission seeks comment on the current tie-breaker system 
and whether it is the most efficient means of resolving mutual 
exclusivity among tied NCE applicants. To minimize resorting to the 
final mandatory time-sharing option, the Commission asks if there are 
further tie-breaking measures the Commission should use if a tie is not 
broken after the second tie-breaker. To encourage more voluntary 
settlements or time-sharing among tied applicants, the Commission asks 
if it should amend the reimbursement restrictions of 47 CFR 73.3525 to 
specify that the restrictions do not apply to applicants which remain 
tied after the second tie-breaker criterion. The Commission invites 
comments on any proposals for supplemental tie-breakers that will be 
practical, fair, and effective and/or ways to improve and apply the 
current tie-breaker process.
    15. Revise Procedures for Allocating Time in NCE Mandatory Time-
Sharing Situations. The Commission established that, in cases where the 
new point selection process and tie-breakers resulted in more than one 
remaining MX application, it would impose mandatory time-sharing on the 
remaining applicants. The Commission, however, did not provide a 
mechanism for allocating time to each applicant. Rather, in such 
situations, the Commission directed the Bureau staff to provide the 
tied applicants 90 days to reach a voluntary time-sharing agreement and 
advised applicants that, if they were unable to reach a voluntary time-
sharing agreement within 90 days, it would designate their applications 
for hearing solely on the issue of allotting time in accordance with 47 
CFR 73.561(b)(2). This current process has resulted in delayed 
construction of facilities and commencement of service. In contrast, 
for the LPFM service, the Commission adopted a specific deadline for 
submitting voluntary time-share agreements, explicit requirements for 
the voluntary time-share proposals, and

[[Page 10278]]

a detailed process for allocating time to MX LPFM tentative selectees 
that are unable to reach a voluntary time-share agreement. The LPFM 
process eliminated any need for a hearing and resulted in an expedient 
resolution of groups of MX LPFM application.
    16. The Commission seeks comment on whether to adopt similar 
mandatory time-share rules and procedures for MX NCE applicants, 
including a rule to delineate an explicit deadline for submitting 
voluntary time-share agreements and detailed steps to allocate time to 
NCE tentative selectees that are unable to arrive at a voluntary time-
share agreement within the allotted deadline. Should the Commission 
codify a 90-day timeframe for submitting voluntary NCE time-share 
agreements, therefore requiring tied applicants to file any time-share 
agreements within 90 days of the release of a public notice or order 
announcing the tie? Is there another process that would provide for the 
expedient submission of voluntary time-share agreements and the 
resolution of these ties? In the event of a tie between three or more 
applicants, should the Commission amend the rules to permit, as it does 
in the LPFM context, voluntary point aggregation time-share agreements?
    17. Should the Commission adopt similar procedures for tied MX NCE 
applicants, modeled after the current LPFM rules, which have worked 
effectively to resolve mutual exclusivities and expedite new service to 
the public? Specifically, in the LPFM context, if a tie among MX 
applicants is not resolved through voluntary time-sharing, under the 
involuntary time-sharing rules, tied, grantable applications are 
eligible for concurrent, non-renewable license terms. Moreover, under 
the LPFM involuntary time-sharing rules, tied, MX groups are limited to 
three applicants. Should the Commission adopt a similar process for the 
NCE broadcast service and limit the number of mandatory time-share 
applicants to three? For LPFM, if there are more than three tied and 
grantable applications, the Commission dismisses all but the 
applications of the three applicants that have been local for the 
longest uninterrupted periods of time. To effectuate this process, the 
Commission requires each applicant to provide, as part of its initial 
application, its date of establishment. If the Commission imposes a 
limit on the number of mandatory NCE time-share applicants, would a 
similar cut-off mechanism work for the NCE service, where, unlike LPFM, 
many of the applicants are long-established universities and 
governmental entities? If the Commission uses the date of establishment 
as the cut-off mechanism, and an applicant subsequently assigns or 
transfers the NCE authorization received pursuant to these new 
procedures, should the Commission require the date the new assignee or 
transferee was ``locally established'' to be the same as, or earlier 
than, the date of the most recently established local applicant in the 
tied MX group? In lieu of the date of establishment, is there an 
alternative cut-off mechanism that would be more effective for the NCE 
service?
    18. In the LPFM service, when there are three remaining tied 
applicants, the Commission assigns each applicant one of the following 
time slots: 2 a.m.-9:59 a.m., 10 a.m.-5:59 p.m., and 6 p.m.-1:59 a.m. 
If there are only two applicants, the Commission assigns each one of 
the following time slots: 3 a.m.-2:59 p.m., or 3 p.m.-2:59 a.m. The 
staff allows the LPFM applicants to confidentially select their 
preferred time slots, giving preference to the applicant that has been 
local for the longest uninterrupted period of time. Finally, to ensure 
that there is no gamesmanship, the Commission requires the applicants 
to certify that they have not colluded with any other applicants in the 
selection of time slots. Should the Commission adopt the same time 
slots and selection procedures for the NCE service, or are there 
alternatives that would be more appropriate and effective for the NCE 
service? The Commission seeks comment on these proposals and invites 
suggestions for any alternative plans or variations on these plans, 
including an analysis of the pros and cons in promoting its goals of 
expediting new service to the public and expanding the diversity of 
voices available to radio audiences.
    19. Clarify and Modify the ``Holding Period'' Rule. The Commission 
adopted 47 CFR 73.7005 (the Holding Period Rule) to ensure that 
applicants selected through the NCE comparative process maintain the 
characteristics that formed the basis of their selection for a period 
of four years of on-air operations and that the public receives the 
benefit of the best proposal. The Holding Period Rule currently 
contains two separate components. The ``Technical'' component of the 
rule dictates that any NCE FM applicant receiving a decisive Section 
307(b) preference must ``construct and operate technical facilities 
substantially as proposed, and cannot downgrade service to the area on 
which the preference is based'' during the four-year holding period. 
Second, the ``Assignments/Transfers'' component of the Holding Period 
Rule states that NCE stations awarded by use of the point system are 
``subject to a holding period.''
    20. The Commission proposes both stylistic and substantive changes 
to the Holding Period Rule to clarify and promote its laudable goal of 
ensuring that the point selection process is meaningful by mandating 
that applicants maintain comparative characteristics for a minimum 
period. As an initial matter, the Commission proposes to rename 47 CFR 
73.7005 ``Maintenance of Comparative Qualifications.'' Second, the 
Commission proposes to add a new provision to 47 CFR 73.7005 to 
establish, for the first time, specific timing requirements for 
maintaining comparative qualifications. Specifically, the Commission 
proposes that NCE permittees and licensees issued authorizations under 
comparative procedures maintain their comparative qualifications from 
the grant of the construction permit until the station has achieved at 
least four years of on-air operations. The Commission invites comments 
on this proposal and asks if this proposed maintenance period is 
sufficient to establish meaningful service for the community, and deter 
license speculators, without unduly burdening the licensee? If 
commenters believe a different period is warranted, how long should it 
be? If the Commission adopts a different maintenance period than grant 
of the construction permit until four years of on-air operations, 
should the Commission make a conforming change to the holding period in 
the Assignments/Transfers component of the rule?
    21. Third, the Commission proposes to relax 47 CFR 73.7005(b) and 
the parallel provision in 47 CFR 73.7002(c) (Fair distribution of 
service on reserved band FM channels) to eliminate the current absolute 
bar on any preference-related service downgrade. Specifically, the 
Commission proposes to allow minor modifications, provided that any 
potential loss of first and/or second NCE FM service is offset by first 
and, separately, combined first and/or second NCE FM service population 
gain(s). This change is intended to give permittees and licensees 
reasonable flexibility to implement facility modifications while also 
preserving the core purpose of these rules: To sharply limit service 
losses to areas in which the NCE FM station is providing Section 
307(b)-preferred service. The Commission seeks comment on this 
proposal.

[[Page 10279]]

    22. The Commission also seeks comment generally on methods to 
promote compliance with 47 CFR 73.7005 and appropriate sanctions for 
licensees that fail to comply and fulfill their comparative 
commitments. For example, should stations that fail to maintain their 
comparative qualifications be subject to mandatory time-share proposals 
as part of the license renewal process, or should the Commission refuse 
to renew the licenses of stations that fail to maintain their 
comparative qualifications for the required period of time? The 
Commission invites comments on each of these proposals and any 
alternative suggestions to clarify 47 CFR 73.7005.
    23. Prohibit Amendments to Cure Section 301 Violations by 
Application Parties. Section 632(a)(1)(B) of the subsequently enacted 
Making Appropriations for the Government of the District of Columbia 
for Fiscal Year 2001 Act ``prohibit[s] any applicant from obtaining a 
low power FM license if the applicant has engaged in any manner in the 
unlicensed operation of any station in violation of Section 301 of the 
Communications Act of 1934.'' The Commission's rules, 47 CFR 73.854, 
and FCC Form 318 implement this mandate by requiring an LPFM applicant 
to certify under penalty of perjury that neither the applicant nor any 
party to the application has engaged in any manner in unlicensed 
operation of any station in violation of Section 301 of the Act. Any 
application that lacks such a certification, or any application that 
falsely makes such a certification, is dismissed. The Bureau has held 
that an LPFM applicant dismissed pursuant to the Appropriations Act and 
47 CFR 73.854 may not regain its eligibility to hold an LPFM 
authorization by removing the board member associated with unauthorized 
broadcasting. The Commission itself, however, has never addressed the 
issue. There is no explicit rule precluding an LPFM applicant dismissed 
for violations of the Appropriations Act and 47 CFR 73.854 from seeking 
nunc pro tunc reinstatement by amending its application to remove any 
board members that have engaged in unauthorized broadcasting.
    24. The Commission proposes to codify Bureau precedent and amend 
its rules to preclude an LPFM applicant dismissed pursuant to the 
Appropriations Act and 47 CFR 73.854 from seeking nunc pro tunc 
reinstatement of its application and to disallow any change in 
directors as a means of resolving the applicant's basic qualifications 
under 47 CFR 73.854. The corrective amendment issue typically arises in 
cases where the LPFM applicant falsely certifies ``Yes'' to Question 8 
even though one or more of the parties to the application has engaged 
in unauthorized broadcasting. This could be because the person 
submitting the application knowingly submitted a false certification, 
did not do sufficient due diligence about the parties to the 
application, or conducted some due diligence, but received false 
information from parties to the application. The Commission believes 
that a restriction on corrective amendments to resolve basic 
qualification issues under 47 CFR 73.854 would be in keeping with the 
intent of the Appropriations Act and reflect the seriousness with which 
the Commission treats unauthorized broadcasting. The Commission invites 
comment on this proposal.
    25. Permit Time-Sharing Agreements Prior to Tentative Selectee 
Designations. When the LPFM point analysis results in a tie, the 
Commission first employs voluntary time-sharing as the initial tie-
breaker. The point aggregation rule permits tied tentative selectees to 
jointly submit a time-sharing agreement. A new aggregated point total 
is then assigned to the group. The group with the highest number of 
aggregated points prevails. There has been some confusion as to whether 
LPFM applicants can communicate and collaborate with each other, either 
pre- or post-application filing, with the goal of potentially 
aggregating points.
    26. The Commission tentatively concludes that 47 CFR 73.872(c) 
should be modified to specifically permit point aggregation discussions 
and agreements at any point before the Bureau implements the 
involuntary time-share procedures, including prior to tentative 
selectee designations, if any such agreement is conditioned on each of 
the parties subsequently achieving tentative selectee status. 
Currently, there is no rule that prohibits LPFM applicants from each 
filing a separate LPFM application with the intended goal of arriving 
at a time-sharing agreement, if the agreement is conditioned on each 
applicant becoming a tentative selectee. The Commission believes 
organizations interested in filing an LPFM application should have 
leeway to communicate with other eligible organizations about 
maximizing their chances to acquire LPFM construction permits and to 
explore potential time-share construction and operating efficiencies. 
The Commission believe this type of cooperation can help ensure 
increased service to the public. The Commission seeks comment on this 
proposed new rule and on what, if any, safeguards are needed.
    27. The Commission believes the potential for gamesmanship is 
limited. Any collaboration among applicants prior to the Commission's 
identification of the tentative selectees is an inherently tentative 
process. The identity of competing applicants is only determined after 
the close of the filing window. Claimed points may be rejected by the 
Commission or challenged by other applicants in the MX group. The 
proposed rule would negate agreements between tentative selectees and 
non-tentative selectees. Further, the Commission believes the potential 
for gamesmanship is limited because each party to the prevailing time-
share agreement is required to operate and manage its respective 
proposed station if its application is granted. Nonetheless, should the 
Commission consider limiting the number of organizations that can enter 
into a time-share agreement, so that applicants cannot ``stack the 
deck'' in their favor?
    28. In light of the Commission's proposed rule explicitly allowing 
applicants to communicate and collaborate on time sharing arrangements, 
should the Commission reconsider the current process for reapportioning 
time following the surrender or expiration of a construction permit or 
license of a time-share party? The Commission solicits comments on ways 
to reduce the potential for abuse of the air-time reapportionment 
policy. As proposed previously, should the Commission open a ``mini-
window'' for the filing of applications for the abandoned air-time? 
Should the Commission limit the period during which reapportionment 
policies would apply, e.g., the first four years of on-air operations? 
Should the Commission limit eligibility to unsuccessful applicants from 
the same MX group in the initial window? Are there other procedures or 
policies the Commission should adopt to deter abuses and promote the 
fair and efficient use of air time following the cancellation of a 
time-share authorization?
    29. Establish Procedures for Remaining Tentative Selectees 
Following Dismissal of Accepted Point Aggregation Time Share 
Agreements. Under the Commission's rules, an accepted point-aggregation 
time-share amendment/agreement may subsequently be found to be invalid 
due to a basic or comparative qualifications defect in the application 
of a time-share party, or as a result of changed circumstances. The 
current rules do not establish procedures for the further

[[Page 10280]]

processing of the remaining tentative selectees in an affected MX 
group.
    30. The Commission proposes to codify a procedure under which the 
Bureau would resume the processing of the remaining tentative selectees 
following the dismissal of a tentatively accepted time-share agreement. 
Following such dismissal, the Bureau would release a public notice that 
would initiate a second 90-day period, affording all remaining 
tentative selectees within the affected MX group a further opportunity 
to enter into either a universal settlement or a voluntary point-
aggregating time-share arrangement in accordance with 47 CFR 73.872(c) 
and (e). Under this proposal, the Bureau would dismiss all pending 
point aggregation amendments/agreements when it releases the public 
notice commencing the new settlement period. The Commission believes 
that these proposed procedural changes would be fair to all applicants 
while also promoting core LPFM service goals. The Commission invites 
comment on this proposal, as well as on other approaches to address 
this issue in an efficient manner.
    31. Reclassify Gradual Board Changes as Minor. Under the 
Commission's current rules, changes in the composition of the governing 
board of an NCE or LPFM applicant can lead to the dismissal of the 
pending application. Applicants can make ``minor'' changes to their 
application at any time, but a ``major'' change outside of a filing 
window will result in dismissal. An ownership change is considered 
``major'' unless at least one of the original parties to the 
application retains an ownership interest exceeding 50 percent. Many 
NCE and LPFM applicants are nonstock or membership organizations. Under 
the Commission's rules, members of the governing board of such entities 
are generally treated as ``owners'' and, therefore, are listed as 
parties to the original application.
    32. To address this problem for applicants, the Commission has 
routinely granted waivers for gradual (although not sudden) majority 
board changes occurring while a new station application is pending. In 
making such determinations, the Commission has generally looked at the 
overall pattern of change in ownership and not at the motivations or 
specific circumstances surrounding the removal of individual board 
members. On the other hand, the Commission has taken seriously real-
party-in-interest (``takeover'') issues involving outside entities, 
especially if the applicant's board change occurs suddenly.
    33. The Commission tentatively concludes that it should amend 47 
CFR 73.871, 73.3572, and 73.3573 to classify as a ``minor'' change in 
ownership board changes in nonstock and membership NCE and LPFM 
applicants which occur gradually over time and have little or no effect 
on such organization's mission, even when they result in a change in 
the majority of such organization's governing board. This proposal 
would allow those applicants to implement gradual board changes outside 
a filing window without disqualifying their pending applications. The 
current system of waivers regarding NCE and LPFM board changes, by its 
nature, requires staff to analyze the specific circumstances of each 
subject board change. In practice, this non-standardized approach has 
led to uncertainty for NCE and LPFM applicants undergoing board changes 
as a regular or natural part of their organizational function. The 
Commission also proposes to treat all ownership changes in a 
governmental applicant as minor, provided that the change has little or 
no effect on such applicant's mission.
    34. Notwithstanding the Commission's view that gradual changes in 
boards will not impact the nature of an NCE or LPFM applicant, the 
Commission remains concerned that sudden board changes are more 
indicative of gamesmanship and inconsistent with its processing system. 
Therefore, the Commission propose to continue to treat sudden majority 
board changes for full service NCE and LPFM applicants as major 
changes. The Commission seeks comment on these proposals. The 
Commission also seeks comment on the appropriate definitions of 
``gradual'' and ``sudden'' in this context. Finally, the Commission 
requests comment on the costs and benefits of the proposed rule changes 
and, alternatively, on retaining the current major change rule for such 
entities and continuing to consider 47 CFR 73.3572, 73.3573, and 73.871 
waiver requests on a case-by-case basis.
    35. Commenters supporting the proposed rule change should also 
address the circumstances, if any, in which even a gradual ownership 
change (or series of changes) may constitute a break in continuity of 
control and therefore still be treated as a major ownership change for 
application purposes. If there are gradual changes that should be 
treated as a major ownership change, to what extent, if any, should the 
Commission retain or codify elements of its existing waiver policy? For 
example, should the Commission attempt to assess whether board changes 
are ``routine'' or ``non-routine,'' and if so, under what standard? 
Would relevant factors to such an analysis include whether the change 
occurred pursuant to an annual or special election, revealed hostile or 
amicable relationships among members of the board, or were part of an 
effort to address wrongdoing on the part of a board member? Should the 
Commission assess as part of this analysis whether board changes were 
taken in accordance with an organization's bylaws and applicable state 
law? Should the Commission consider whether a board change represented 
an attempt to gain control of an NCE or LPFM board by an outside 
entity? Could this concern be adequately addressed by the Commission's 
real-party-in-interest policies and precedents? Should the Commission 
take steps to prevent in-house ``factions'' or members with opposing 
views from attempting to ``gain control'' of the applicant? If so, how 
can the Commission meaningfully distinguish legitimate elections from 
illicit attempts to ``gain control''? For pending applications, what 
amendment information, if any, should the Commission require from 
applicants to demonstrate that a board change should be treated as 
minor? Would a certification be enough? Should the Commission require 
exhibits or documents that can be verified by competing applicants and, 
if so, what information should be included?
    36. Finally, the Commission seeks comment on how its ownership 
proposal might alter, either positively or negatively, the potential 
for gamesmanship and unfair advantage in the comparative consideration 
process. When the Commission first proposed to award points to NCE 
applicants with local governing boards, commenters were concerned that 
applicants might feign local qualifications by ``renting'' local 
citizens or using ``strawmen'' local incorporators to be replaced with 
non-local parties after grant. Are there similar concerns about 
substitution of board members for pending NCE and LPFM applications? To 
the extent that the Commission is proposing allowing modifications to 
pending applications in a comparative consideration process, and thus 
potentially affecting an applicant's position in the ranking queue, it 
seeks comment on whether existing safeguards adequately address such 
concerns.
    37. LPFM-specific transferability issues for permitees and 
licensees. The Commission proposes to clarify how board changes impact 
LPFM licensees and permittees in 47 CFR 73.865. Although 47 CFR 
73.865(e) permits

[[Page 10281]]

sudden changes in control of LPFM boards, the current language of 47 
CFR 73.865(d) prohibits the ``assignment or transfer of an LPFM 
construction permit at any time,'' with no reference to an exception 
for either sudden or gradual majority board changes. Similarly, the 
language of 47 CFR 73.865(c) states that an LPFM licensee may not 
engage in a transfer or assignment during the three-year holding period 
from the date of issuance of the license. Neither rule cross-references 
47 CFR 73.865(e). For these reasons, the Commission is concerned that 
the intended relief regarding sudden board changes for LPFM entities 
has not been fully realized since 47 CFR 73.865(e) was adopted. 
Therefore, the Commission proposes to clarify that 47 CFR 73.865(e) 
applies to LPFM permittees and licensees at all times, including during 
any relevant permit or license holding period. To do so, the Commission 
proposes to modify the language of 47 CFR 73.865(e) to state that it 
applies ``notwithstanding'' the other provisions of 47 CFR 73.865 
provided the requirements in 47 CFR 73.865(a) are satisfied and the 
entity's mission remains the same. The Commission also proposes to 
clarify that LPFM permittees and licensees that are required under 47 
CFR 73.865(e) to file an FCC Form 316 in response to a sudden change in 
the majority of the governing board must file such form within 30 days 
of the final event that caused the LPFM permittee or licensee to exceed 
the 50 percent threshold. The Commission seeks comment on these 
proposals.
    38. Clarify Reasonable Site Assurance Requirements. When an NCE or 
LPFM applicant files its initial application, it must have reasonable 
assurance that its specified site will be available for the 
construction and operation of its proposed facilities. Despite the fact 
that reasonable assurance of the applicant's proposed site is a 
prerequisite to filing an application, NCE and LPFM station applicants 
have never been required to certify the availability of proposed 
transmitter sites in the FCC Form 340 or Form 318 application. Further, 
the Instructions to the FCC Form 318 and FCC Form 340 do not explain 
the Commission's site availability requirements or remind applicants 
that reasonable site assurance is a prerequisite to application filing. 
Accordingly, some LPFM and NCE applicants were under the false 
assumption that reasonable site assurance was not required. Applicants 
routinely and successfully filed petitions to deny against competing 
applicants for lack of site assurance.
    39. The Commission tentatively concludes that certain application 
form and instruction changes for NCE and LPFM applicants are necessary 
to promote compliance with the reasonable site assurance requirement 
and the efficient processing of applications. The Commission proposes 
to amend the FCC Form 340 and Form 318 to require an applicant to 
certify that it has obtained reasonable assurance from the tower owner, 
its agent, or authorized representative that the specified site will be 
available. The Commission also proposes to update the FCC Form 340 and 
318 Instructions to explain the requirement of obtaining reasonable 
site availability prior to the application filing. Further, the 
Commission proposes to require NCE and LPFM applicants to retain and 
submit to the Commission, upon request, information and material 
documentation to establish the basis on which reasonable assurance has 
been obtained, including, for example, the name and telephone number of 
the person contacted, and whether the contact is a tower owner, agent, 
or authorized representative. Alternatively, should this substantiating 
information be required as part of the FCC Form 340 or Form 318 filing? 
Would the requirement to provide such detailed information create an 
unnecessary burden on applicants, or prove useful in expediting the 
processing of applications? Is the requirement necessary in light of 
the difference between these processes and the financial incentives 
associated with applications subject to auction bidding and payment 
procedures? The Commission seeks comments on these proposals and 
invites comments on other methods to minimize frivolous applications 
and deter site availability challenges.
    40. Streamline Tolling Procedures and Notification Requirements. 
Broadcast construction permits terminate and, thus, are forfeited, if 
the permittee does not complete construction and file a covering 
license application prior to expiration. The Commission will, however, 
``toll'' the broadcast construction period, i.e., temporarily stop the 
``construction clock,'' upon prompt notification that an original 
construction permit is encumbered by one of five circumstances beyond 
the permittee's control, including, among others, administrative or 
judicial review of the permit grant. Tolling begins on the date of the 
encumbrance, provided that the permittee promptly notifies the 
Commission, usually by a simple letter, within 30 days of the tolling 
event. Tolling treatment is not automatic but, rather, notification-
based. Thus, absent a permittee notification, the construction period 
will continue to run. The notification requirement applies even when 
the permit is encumbered by circumstances involving the Commission 
itself, such as when a petition for reconsideration of the grant of a 
permit is pending, or when a new station permit condition ties program 
test authority to the initiation of program tests by a second affected 
station.
    41. The Commission proposes to modify its tolling procedures for 
NCE and LPFM permittees, including the current tolling notification 
requirements for these services. The Commission recognizes that NCE and 
LPFM permittees often fail to notify the Commission within 30 days of a 
tolling event because they are inexperienced with tolling procedures or 
are attempting to complete the licensing process without legal counsel. 
Such permittees may lose substantial construction time or forfeit their 
authorizations altogether despite a willingness to construct once 
encumbrances beyond their control are resolved.
    42. The Commission proposes to identify and place into a tolling 
posture any original NCE or LPFM construction permit: (1) That includes 
a condition on the commencement of operations and the Commission has a 
direct licensing role in the satisfaction of this condition; or (2) 
that is subject to administrative or judicial review of the permit 
grant. In such situations, the staff would add appropriate tolling 
codes to the broadcast database. The Commission tentatively concludes 
that permits tolled by staff under these revised procedures should not 
be subject to the six-month update requirement. The Commission also 
would be responsible for ending tolling treatment upon the resolution 
of the pertinent encumbrance, again limited to NCE and LPFM permittees. 
Further, the Commission believes that its proposal would be manageable 
with existing agency resources because it is limited to aiding NCE and 
LPFM stations, services which have more commonly encountered challenges 
with the current tolling procedures. The Commission seek comment on 
these proposed changes.
    43. Lengthen LPFM Construction Period. The Commission established 
an eighteen-month construction period for LPFM permittees based on the 
belief that LPFM permittees would be able to construct their stations 
in a shorter period of time than permittees of full

[[Page 10282]]

power FM stations, which are afforded three years (36 months) to build. 
The Commission also subsequently adopted a proposal to allow LPFM 
permittees to request one 18-month extension to complete construction 
of their facilities upon a showing of good cause. This is codified in 
47 CFR 73.3598(a).
    44. The Commission proposes to lengthen the construction period for 
LPFM permittees to a full three years. It proposes to apply the 
extended construction period to both existing LPFM permits, which have 
not yet expired as of the effective date of the new rule, if adopted, 
and prospectively to new permits granted after the proposed new rule 
takes effect. In comments filed in the Modernization of Media 
Regulation Initiative docket, REC Networks (REC) noted that 48 percent 
of applicants issued permits following the 2013 LPFM filing window have 
requested an 18-month extension and that many LPFM permittees face 
construction challenges similar to those of full service FM permittees. 
The Commission agrees that LPFM permittees have encountered more 
challenges than initially anticipated and have often been unable to 
construct within 18 months. As REC notes, stations operating pursuant 
to second adjacent channel waivers, made possible by the Local 
Community Radio Act of 2011 (LCRA), can be more technically complex to 
build. Additionally, the Commission has found that many permittees have 
requested construction extensions in order to raise additional funds 
and deal with local zoning and siting complications. LPFM applicants, 
who are often inexperienced with the intricacies of broadcasting, can 
be ill-prepared to handle such challenges in an 18-month period. 
Accordingly, the Commission seeks comment on this proposal to lengthen 
the LPFM construction period and asks if amending the rules to provide 
LPFM permittees a full three-year construction period would provide 
relief to LPFM permittees struggling to complete construction of their 
stations and eliminate the administrative burdens associated with 
filing waiver requests?
    45. Modify Restrictions on the Transfer and Assignment of LPFM 
Authorizations. When the Commission established the LPFM service, it 
initially prohibited the transfer and assignment of LPFM 
authorizations. The Commission subsequently allowed the assignment and 
transfer of LPFM licenses, subject to the conditions that: (1) Licenses 
could not be sold for consideration exceeding the depreciated fair 
market value of the physical equipment and facilities of the station; 
(2) assignees and transferees must satisfy all eligibility criteria at 
the time they applied for the LPFM license; and (3) licenses were 
subject to a three-year holding period during which they could not be 
assigned or transferred.
    46. In comments filed in the Modernization of Media Regulation 
Initiative, REC argues that the three-year holding period for LPFM 
licenses and the prohibition on the assignment and transfer of LPFM 
permits should be eliminated. REC notes that several applicants awarded 
construction permits following the 2013 LPFM window were unable to 
construct and attempted to assign their permits to prevent expiration, 
but were unable to do so because of the 47 CFR 73.865(d) restriction. 
As a safeguard, REC proposes that an 18-month holding period apply to 
the assignment and transfer of original construction permits. Following 
18 months from the issuance of the original construction permit, REC 
proposes that LPFM permittees be allowed to assign or transfer the 
permit to a party that, in cases where the permittee obtained the 
permit through the comparative points process, meets or exceeds the 
assignor's point total. Finally, to promote continuation of service 
where a licensee is no longer willing or able to operate the station, 
REC proposes to eliminate the three-year holding period on assigning 
and transferring LPFM licenses.
    47. The Commission tentatively concludes that it should eliminate 
both the absolute prohibition on the assignment and transfer of LPFM 
construction permits and the three-year holding period for LPFM 
licenses. Specifically, the Commission proposes to permit parties to 
assign or transfer LPFM permits and station licenses, provided that the 
following safeguards are satisfied: (1) The assignment or transfer does 
not occur prior to 18 months from the date of issue of the initial 
construction permit; (2) consideration promised or received does not 
exceed the legitimate and prudent expenses of the assignor or 
transferor; (3) the assignee or transferee satisfies all eligibility 
criteria that apply to a LPFM license; and (4) for a period of time 
commencing with the grant of any permit awarded on the basis of the 
comparative point system provisions of 47 CFR 73.872, and continuing 
until the station has achieved at least four years of on air 
operations, (a) the assignee or transferee must meet or exceed those 
points awarded to the LPFM tentative selectee, and (b) for LPFM 
stations selected in accordance with the involuntary time-sharing 
provisions of 47 CFR 73.872(d), the date the assignee or transferee was 
``locally established'' must be the same as or earlier than the date of 
the most recently established local applicant in the tied MX group.
    48. The Commission invites comments on these proposed changes and 
safeguards and asks if eliminating the three-year holding period for 
LPFM licenses would make these stations more viable and prevent the 
loss of LPFM service? Conversely, would such changes create 
opportunities for gamesmanship? If so, what additional safeguards would 
be effective to ensure that the LPFM service retains its noncommercial, 
non-profit, hyperlocal character and deter speculation in LPFM 
authorizations?

Procedural Matters

    49. Initial Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), 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 proposed in the NPRM. Written public comments 
are requested on this IRFA. Comments must be identified as responses to 
the IRFA and must be filed by the deadlines for comments on the NPRM 
provided in paragraph 89. The Commission will send a copy of this 
entire NPRM, including this IRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA). In addition, the NPRM and the 
IRFA (or summaries thereof) will be published in the Federal Register.
    50. Need for, and Objectives of, the Proposed Rule Changes. The 
Commission initiates this rulemaking proceeding to obtain comments 
concerning certain proposals designed to clarify and simplify the point 
systems used to evaluate competing applications for noncommercial 
educational (NCE) broadcast stations (full-service FM, full power 
television, and FM translator) and low power FM (LPFM) broadcast 
stations, and related NCE and LPFM rules. Specifically, the Commission 
seeks comment on the following: (1) Whether to eliminate the current 
requirement that NCE applicants amend their governing documents to 
pledge that localism/diversity be maintained in order to receive points 
as ``established local applicants'' and for ``diversity of 
ownership,''; (2) whether to award points based on contingent pledges 
to divest interests in existing full-service stations if the 
divestiture is not yet implemented by close of the application filing 
window; (3) whether to alter tie-

[[Page 10283]]

breaker criteria to reduce the need for mandatory time-sharing and/or 
to adopt procedures that would minimize some of the drawbacks of 
mandatory time-sharing; (4) whether to clarify aspects of the ``holding 
period'' by which NCE permittees maintain the characteristics for which 
they received comparative preferences and to specify consequences for 
non-compliance; (5) whether to codify the rules to prohibit LPFM 
applicants from filing corrective amendments to resolve basic 
qualification issues under 47 CFR 73.854; (6) whether to codify the 
permissibility of LPFM applicants to discuss their intent to aggregate 
points and time-share prior to the filing of LPFM applications; (7) 
whether to establish a process for LPFM point aggregation time-share 
agreements that have been accepted, but later deemed invalid; (8) 
whether, for LPFM and NCE applicants, to reclassify as ``minor'' all 
changes to governmental applicants and gradual board changes in 
nonstock and membership applicants; (9) whether to modify the NCE and 
LPFM application forms to clarify the existing requirement for 
applicants to obtain reasonable assurance of site availability; (10) 
whether to toll NCE and LPFM broadcast construction deadlines without 
notification from the permittee, based on certain pleadings pending 
before, or actions taken by, the agency; (11) whether to revise the 
LPFM construction period from 18 months to 3 years; (12) whether to 
allow assignment and transfer of LPFM construction permits after an 18-
month holding period; and (13) whether to eliminate the three-year 
holding period for the assignment and transfer of LPFM licenses. 
Additionally, the Commission seeks comment on any additional proposals 
designed to reduce burdens upon NCE and LPFM broadcasters, or to 
enhance NCE and LPFM service to the public. The Commission's objectives 
are to clarify comparative requirements, minimize confusion among 
applicants, deter speculative applications, and initiate service to the 
public quickly and efficiently.
    51. Legal Basis. The authority for this proposed rulemaking is 
contained in Sections 1, 2, 4(i), 301, 303, 307, 316, and 403 of the 
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 301, 303, 307, 
316, and 403.
    52. 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 Small Business 
Administration (SBA). The proposed rules will apply to applicants, 
permittees, and licensees within the LPFM service, NCE full power 
television service, and to radio stations licensed to operate on 
channels reserved as ``noncommercial educational,'' either within the 
reserved band of the FM spectrum or designated solely for noncommercial 
educational FM use in a particular area through the Commission's 
allocations process. Most affected entities will be applicants for 
which a ``point system'' process is used to compare their 
qualifications with those of competing applicants. However, the 
proposals concerning minor changes to pending applications, reasonable 
site assurance, and tolling of broadcast construction deadlines will 
also affect applications granted outside of the comparative process, 
such as those that are ``singletons'' or resolved by settlement among 
originally conflicting parties.
    53. NCE FM Radio Stations. The proposed policies could apply to NCE 
FM radio broadcast licensees, and potential licensees of NCE FM radio 
service. The SBA defines a radio broadcast station as a small business 
if such station has no more than $38.5 million in annual receipts. 
Business concerns included in this industry are those primarily engaged 
in broadcasting aural programs by radio to the public. Radio stations 
that the Commission would consider commercial, as well as those it 
would consider NCE stations, are included in this industry. With 
respect to current licensees, a Commission staff review of the BIA 
Publications, Inc. Master Access Radio Analyzer Database reflects that 
as of June 8, 2017, all 4,404 (100 percent) of radio stations operating 
as noncommercial have revenues of $38.5 million or less and thus 
qualify as small entities under the SBA definition. Of these, no more 
than 4,112 authorized stations are potentially affected by the 
proposals because they are licensed as NCE stations, whereas BIA data 
also includes stations that are not licensed as NCE stations but choose 
to operate with a noncommercial format. The estimate may overstate the 
number of potentially affected licensees because it includes stations 
that would not be affected by the proposals, including those that have 
been authorized by methods other than a point system, already met 
construction deadlines, and/or are no longer subject to a holding 
period. The estimate may also overstate the number of small entities 
because in assessing whether a business concern qualifies as small 
under the above definition, business (control) affiliations must be 
included. The Commission's estimate considers each station separately 
and does not include or aggregate revenues from affiliated 
organizations or from commonly controlled stations.
    54. The proposals will primarily impact potential licensees. The 
Commission accepts applications for new NCE FM radio broadcast stations 
in filing windows. There are no pending applications remaining from 
previous NCE FM filing windows. The Commission anticipates that in 
future filing windows it will receive a number of applications similar 
to past filing windows and that all such applicants will qualify as 
small entities. The last filing window for reserved band FM spectrum 
occurred in 2007 and generated approximately 3,600 applications of 
which approximately 2,700 were mutually exclusive. The last filing 
window for channels reserved for NCE use through the allotment process 
was held in 2010, and generated 323 applications, virtually all of 
which were mutually exclusive. This estimate may overstate the number 
of potentially affected applicants because filing windows typically 
include some proposals that need not be resolved by a point system, 
such as those resolved through settlement agreements.
    55. An additional element of the definition of ``small business'' 
is that the entity not be dominant in its field of operation. The 
Commission is unable at this time to define or quantify the criteria 
that would establish whether a specific radio station is dominant in 
its field of operation. Accordingly, the estimate of small businesses 
to which the proposed rules may apply does not exclude any radio 
station from the definition of a small business on this basis and 
therefore may be over-inclusive to that extent. Also, as noted, an 
additional element of the definition of ``small business'' is that the 
entity must be independently owned and operated. The Commission notes 
that it is difficult at times to assess these criteria in the context 
of media entities, and its estimates of small businesses to which they 
apply may be over-inclusive to this extent.

[[Page 10284]]

    56. FM Translator Stations and Low Power FM Stations. The proposed 
policies could affect licensees of FM translator stations and LPFM 
stations, as well as potential licensees in these radio services. The 
same SBA definition that applies to radio broadcast licensees would 
apply to these stations. The SBA defines a radio broadcast station as a 
small business if such station has no more than $38.5 million in annual 
receipts. Given the nature of NCE FM translators and LPFM stations, the 
Commission will presume that all such licensees qualify as small 
entities under the SBA definition. Currently, there are approximately 
1,924 licensed LPFM stations. There are 7,453 licensed FM translator 
and booster stations, but the booster stations and commercial 
translators included in this number will not be affected by the 
proposals. In addition, there are approximately four pending mutually 
exclusive noncommercial applications filed in the 2003 FM translator 
filing window and 11 pending applications filed in the 2013 LPFM filing 
window. The proposal would primarily affect applicants in future FM 
translator and LPFM windows. The Commission anticipates that in future 
filing windows it will receive a number of applications similar to past 
filing windows and that all applicants will qualify as small entities. 
The last LPFM filing window in 2013 generated approximately 2,827 
applications. The 2003 FM translator filing window generated 
approximately several hundred applications from NCE applicants, of 
which approximately 69 were mutually exclusive.
    57. NCE Television Stations. This economic Census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound. These establishments operate television 
broadcasting studios and facilities for the programming and 
transmission of programs to the public.'' These establishments also 
produce or transmit visual programming to affiliated broadcast 
television stations, which in turn broadcast the programs to the public 
on a predetermined schedule. Programming may originate in their own 
studio, from an affiliated network, or from external sources. The SBA 
has created the following small business size standard for Television 
Broadcasting firms: those having $38.5 million or less in annual 
receipts. The 2012 economic Census reports that 751 television 
broadcasting firms operated during that year. Of that number, 656 had 
annual receipts of less than $25 million per year. Based on that Census 
data, the Commission concludes that a majority of firms that operate 
television stations are small. Specifically, the Commission has 
estimated the number of licensed noncommercial educational (NCE) 
television stations to be 390. These stations are non-profit, and 
therefore considered to be small entities. The Commission therefore 
estimates that the majority of noncommercial television broadcasters 
are small entities.
    58. The Commission notes, however, that in assessing whether a 
business concern qualifies as small under the above definition, 
business (control) affiliations must be included. The Commission's 
estimate, therefore, likely overstates the number of small entities 
that might be affected by its action because the revenue figure on 
which it is based does not include or aggregate revenues from 
affiliated companies. In addition, an element of the definition of 
``small business'' is that the entity not be dominant in its field of 
operation. The Commission is unable at this time to define or quantify 
the criteria that would establish whether a specific television station 
is dominant in its field of operation. Accordingly, the estimate of 
small businesses to which rules may apply does not exclude any 
television station from the definition of a small business on this 
basis and is therefore possibly over-inclusive to that extent.
    59. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements. The proposed rule and procedural changes may, 
in some cases, impose different reporting requirements on potential NCE 
full service stations, NCE FM Translators, and LPFM licensees and 
permittees. The NPRM proposes a new submission of information verifying 
that the applicant obtained reasonable assurance of site availability. 
Any additional burden would be minimal, however, because the underlying 
requirement to obtain such assurance currently exists and would not 
change. Likewise, NCE applicants seeking points as ``established local 
applicants'' or for ``diversity of ownership'' would provide 
information that is different from that currently required. The 
Commission believes that the new information would be simpler for 
applicants to produce because applicants would no longer be required to 
amend their governing documents. Elimination of certain tolling 
notification requirements could decrease burdens on applicants that 
experience encumbrances preventing construction. An NCE or LPFM 
permittee could receive additional construction time for which it 
qualifies without initiating a process to notify the Commission of 
actions taken by or pending within the Commission. If the Commission 
revises the LPFM construction period to three years, LPFM permittees 
needing more than the current 18-month construction period would no 
longer need to file and justify requests for an 18-month extension. 
Finally, if the Commission were to adopt its proposals to clarify and/
or modify application requirements that applicants have found 
confusing, this would reduce burdens on such applicants to file and/or 
respond to petitions challenging point claims.
    60. 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.
    61. In the NPRM, the Commission seeks to assist NCE full service 
broadcast stations, NCE FM Translator, and LPFM broadcast applicants by 
clarifying and simplifying requirements for claiming and maintaining 
qualities that are used to compare competing applications. The 
proposals, if adopted, would enable such applicants: (1) To claim 
comparative points without the burdensome process of amending their 
governing documents; (2) to maintain existing full-service broadcast 
operations by making contingent pledges that do not require divestment 
of existing interests prior to application grant; and (3) to make 
certain changes to their governing boards without facing dismissal. The 
proposals would also: (1) Alter tie-breaker criteria to reduce the need 
for the currently unpopular use of mandatory time-sharing; (2) 
eliminate the ``holding period'' for LPFM licenses, clarify the NCE 
``holding period'' rule, and increase flexibility of applicants 
receiving comparative preferences to satisfy the ``maintenance of 
comparative qualifications'' requirements; (3) clarify that LPFM 
applicants cannot cure prior unauthorized ``pirate'' operations by 
removing the alleged pirates from their boards; (4) reduce challenges 
based on reasonable assurance of site availability; (5) toll NCE and 
LPFM broadcast construction deadlines without

[[Page 10285]]

notification about certain matters known to the agency; (6) provide at 
the outset a longer construction period for LPFM stations; and (7) 
permit the assignment and transfer of LPFM permits after 18 months. The 
Commission seeks comment as to whether its goals of providing new NCE 
and LPFM service to the public, limiting speculation, and clarifying 
requirements could effectively be accomplished through these means. 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 NCE and LPFM 
broadcasters, virtually all of whom are small businesses. There may be 
unique circumstances these entities may face, and the Commission will 
consider appropriate action for small broadcasters when preparing a 
Report and Order in this matter.
    62. Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rule. None.

Paperwork Reduction Act

    63. The NPRM contains proposed new or modified information 
collections. The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements proposed in the NPRM, as required by the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002 (SBPRA), Public Law 
107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific 
comment on how it might further reduce the information collection 
burden for small business concerns with fewer than 25 employees.

Ex Parte Rules

    64. Permit But Disclose. The proceeding this NPRM initiates shall 
be treated as a ``permit-but-disclose'' proceeding in accordance with 
the Commission's ex parte rules. Persons making ex parte presentations 
must file a copy of any written presentation or memorandum summarizing 
any oral presentation within two business days after the presentation 
(unless a different deadline applicable to the Sunshine period 
applies). Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentation must (1) list all persons 
attending or otherwise participating in the meeting at which the ex 
parte presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to the Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 
47 CFR 1.49(f) or for which the Commission has made available a method 
of electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable.pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.

Filing Procedures

    65. Pursuant to Sec. Sec.  1.415 and 1.419, interested parties may 
file comments and reply comments on or before the dates indicated on 
the first page of this document. Comments may be filed using the 
Commission's Electronic Comment Filing System (ECFS). Electronic 
Filers: Comments may be filed electronically using the internet by 
accessing the ECFS: http://www.fcc.gov/ecfs/.
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy 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 mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes 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 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW, Washington DC 20554.
     People with Disabilities: To request materials in 
accessible formats for people with disabilities (braille, large print, 
electronic files, audio format), send an email to [email protected] or 
call the Consumer & Governmental Affairs Bureau at 202-418-0530 
(voice), 202-418-0432 (tty).

Ordering Clauses

    66. It is ordered that, pursuant to sections 1, 2, 4(i), 301, 303, 
307, 316, and 403 of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 152, 154(i), 301, 303, 307, 316, and 403, this Notice of 
Proposed Rule Making is adopted.
    67. It is further ordered that the Consumer and Governmental 
Affairs Bureau, Reference Information Center, shall send a copy of this 
Notice of Proposed Rulemaking, including the Initial Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration, and shall cause it to be published in the 
Federal Register.

Federal Communications Commission.

Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission propose to amend 47 CFR part 73 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, 155, 301, 303, 307, 309, 310, 334, 
336, 339.

0
2. Section 73.854 is revised to read as follows:


Sec.  73.854   Unlicensed radio operations.

    No application for an LPFM station may be granted unless the 
applicant certifies, under penalty of perjury, that

[[Page 10286]]

neither the applicant, nor any party to the application, has engaged in 
any manner, including individually or with persons, groups, 
organizations or other entities, in the unlicensed operation of any 
station in violation of Section 301 of the Communications Act of 1934, 
as amended, 47 U.S.C. 301. If an application is dismissed pursuant to 
this section, the applicant is precluded from seeking nunc pro tunc 
reinstatement of the application and/or changing its directors to 
resolve the basic qualification issues.
0
3. Section 73.865 is amended by revising paragraph (a) introductory 
text, paragraphs (a)(1) and (2), adding new paragraph (a)(3), revising 
paragraphs (b) and (c), removing paragraph (d), redesignating paragraph 
(e) as paragraph (d), and revising the newly redesignated paragraph (d) 
to read as follows:


Sec.  73.865   Assignment and transfer of LPFM permits and licenses.

    (a) Assignment/Transfer: No party may assign or transfer an LPFM 
permit or license if:
    (1) Consideration promised or received exceeds the legitimate and 
prudent expenses of the assignor or transferor. For purposes of this 
section, legitimate and prudent expenses are those expenses reasonably 
incurred by the assignor or transferor in obtaining and constructing 
the station (e.g., expenses in preparing an application, in obtaining 
and installing broadcast equipment to be assigned or transferred, 
etc.). Costs incurred in operating the station are not recoverable 
(e.g. rent, salaries, utilities, music licensing fees, etc.) Legitimate 
and prudent expenses will also include the depreciated fair market 
value of the physical equipment and facilities of the station;
    (2) The assignee or transferee is incapable of satisfying all 
eligibility criteria that apply to a LPFM licensee; or
    (3) For a period of time commencing with the grant of any 
construction permit awarded based on the comparative point system, 
Sec.  73.872, and continuing until the station has achieved at least 
four years of on air operations,
    (i) The assignee or transferee cannot meet or exceed the points 
awarded to the initial applicant; or
    (ii) Where the original LPFM construction permit was issued based 
on a point system tie-breaker, the assignee or transferee does not have 
a ``locally established date,'' as defined in Sec.  73.853(b), that is 
the same as, or earlier than, the date of the most recently established 
local applicant in the tied MX group. Any successive applicants 
proposing to assign or transfer the construction permit or license 
prior to the end of the aforementioned period will be required to make 
the same demonstrations. This restriction does not apply to 
construction permits that are awarded to non-mutually exclusive 
applicants or through settlement.
    (b) A change in the name of an LPFM permittee or licensee where no 
change in ownership or control is involved may be accomplished by 
written notification by the permittee or licensee to the Commission.
    (c) Holding period: A construction permit cannot be assigned or 
transferred for 18 months from the date of issue.
    (d) Notwithstanding the other provisions in Sec.  73.865, transfers 
of control involving a sudden or gradual change of more than 50 percent 
of an LPFM's governing board are not prohibited, provided that the 
mission of the entity remains the same and the requirements of Sec.  
73.865(a) are satisfied. Sudden majority board changes shall be 
submitted as a pro forma ownership change within 30 days of the change 
or final event that caused the LPFM permittee or licensee to exceed the 
50 percent threshold.
0
4. Section 73.871 is amended by revising paragraph (c) introductory 
text and paragraph (c)(3) to read as follows:


Sec.  73.871   Amendment of LPFM broadcast station applications.

* * * * *
    (c) Only minor amendments to new and major change applications will 
be accepted after the close of the pertinent filing window. Subject to 
the provisions of this section, such amendments may be filed as a 
matter of right by the date specified in the FCC's Public Notice 
announcing the acceptance of such applications. For the purposes of 
this section, minor amendments are limited to:
* * * * *
    (3) Changes in ownership where the original party or parties to an 
application either:
    (i) Retain more than a 50 percent ownership interest in the 
application as originally filed; or
    (ii) Retain an ownership interest of 50 percent or less as the 
result of gradual governing board changes in a nonstock or membership 
applicant with little or no effect on such organization's mission. All 
changes in a governmental applicant are considered minor, provided that 
the applicant entity remains unchanged.
* * * * *
0
5. Section 73.872 is amended by revising paragraph (c) introductory 
text and adding paragraph (c)(5) to read as follows:


Sec.  73.872   Selection procedure for mutually exclusive LPFM 
applications.

* * * * *
    (c) Voluntary time-sharing. If mutually exclusive applications have 
the same point total, any two or more of the tied applicants may 
propose to share use of the frequency by electronically submitting, 
within 90 days of the release of a public notice announcing the tie, a 
time-share proposal. Such proposals shall be treated as minor 
amendments to the time-share proponents' applications, and shall become 
part of the terms of the station authorization. Where such proposals 
include all of the tied applications, all of the tied applications will 
be treated as tentative selectees; otherwise, time-share proponents' 
points will be aggregated. Applicants may agree, at any time before the 
Media Bureau implements the involuntary time-share procedures pursuant 
to Sec.  73.872(d), to aggregate their points to enter into a time-
share agreement. Applicants can only aggregate their points and submit 
a time-share agreement if each is designated a tentative selectee in 
the same mutually exclusive group, and if each applicant has the basic 
qualifications to receive a grant of its application.
* * * * *
    (5) In the event a tentatively accepted time-share agreement is 
dismissed, the Commission staff will release another public notice, 
initiating a second 90-day period for all remaining tentative selectees 
within the affected MX group to enter into either a voluntary time-
share arrangement or a universal settlement in accordance with 
paragraphs (c) or (e) of this Section.
* * * * *
0
6. Section 73.3572 is amended by revising paragraph (b) to read as 
follows:


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

* * * * *
    (b) A new file number will be assigned to an application for a new 
station or for major changes in the facilities of an authorized 
station, when it is amended so as to effect a major change, as defined 
in paragraphs (a)(1) or (a)(2) of this section, or result in a 
situation where the original party or parties to the application do not 
retain more than 50 percent ownership interest in the application as 
originally filed, and Sec.  73.3580 will apply to such amended 
application. However, a change in ownership is minor if the original 
party or parties to an

[[Page 10287]]

application for a noncommercial educational full power television 
station retain an ownership interest of 50 percent or less in the 
application as originally filed as the result of a gradual governing 
board change in a nonstock or membership applicant with little or no 
effect on such organization's mission. An application for change in the 
facilities of any existing station will continue to carry the same file 
number even though (pursuant to FCC approval) an assignment of license 
or transfer of control of such licensee or permittee has taken place 
if, upon consummation, the application is amended to reflect the new 
ownership.
* * * * *
0
7. Section 73.3573 is amended by revising paragraph (a)(1) to read as 
follows:


Sec.  73.3573   Processing FM broadcast station applications.

    (a) * * *
    (1) In the first group are applications for new stations or for 
major changes of authorized stations. A major change in ownership is 
one in which the original party or parties to the application do not 
retain more than 50 percent ownership interest in the application as 
originally filed, except that a change in ownership is minor if the 
original party or parties to an application for a reserved channel NCE 
FM station retain an ownership interest of 50 percent or less in the 
application as originally filed as the result of a gradual governing 
board change in a nonstock or membership applicant with little or no 
effect on such organization's mission. In the case of a Class D or an 
NCE FM reserved band channel station, a major facility change is any 
change in antenna location which would not continue to provide a 1 mV/m 
service to some portion of its previously authorized 1 mV/m service 
area. In the case of a Class D station, a major facility change is any 
change in community of license or any change in frequency other than to 
a first-, second-, or third-adjacent channel. A major facility change 
for a commercial or a noncommercial educational full service FM 
station, a winning auction bidder, or a tentative selectee authorized 
or determined under this part is any change in frequency or community 
of license which is not in accord with its current assignment, except 
for the following:
* * * * *
0
8. Section 73.3598 is amended by revising paragraph (a) introductory 
text, paragraph (b) introductory text, and paragraph (b)(3), adding 
paragraph (b)(4), and revising paragraphs (c) and (d) to read as 
follows:


Sec.  73.3598   Period of construction.

    (a) Except as provided in the last two sentences of this paragraph, 
each original construction permit for the construction of a new TV, AM, 
FM or International Broadcast; low power TV; low power FM; TV 
translator; TV booster; FM translator; or FM booster station, or to 
make changes in such existing stations, shall specify a period of three 
years from the date of issuance of the original construction permit 
within which construction shall be completed and application for 
license filed. An eligible entity that acquires an issued and 
outstanding construction permit for a station in any of the services 
listed in this paragraph shall have the time remaining on the 
construction permit or eighteen months from the consummation of the 
assignment or transfer of control, whichever is longer, within which to 
complete construction and file an application for license. For purposes 
of the preceding sentence, an ``eligible entity'' shall include any 
entity that qualifies as a small business under the Small Business 
Administration's size standards for its industry grouping, as set forth 
in 13 CFR 121 through 201, at the time the transaction is approved by 
the FCC, and holds
* * * * *
    (b) The period of construction for an original construction permit 
shall toll when construction is prevented by the following causes not 
under the control of the permittee:
* * * * *
    (3) A request for international coordination, with respect to an 
original construction permit for a new DTV station, has been sent to 
Canada or Mexico on behalf of the station and no response from the 
country affected has been received, or the licensee or permittee is 
challenging the response from Canada or Mexico on the grounds that the 
facility as approved would not permit the station to serve the 
population that is both approved by the Commission and served by the 
station's TV (analog) facility to be vacated by June 12, 2009; or
    (4) Failure of a Commission-imposed condition precedent prior to 
commencement of operation.
    (c) A permittee must notify the Commission as promptly as possible 
and, in any event, within 30 days, of any pertinent event covered by 
paragraph (b) of this section, and provide supporting documentation. 
All notifications must be filed in triplicate with the Secretary and 
must be placed in the station's local public file. For authorizations 
to construct stations in the Low Power FM service, on FM channels 
reserved for noncommercial educational use, and for noncommercial 
educational full power television stations, the Commission will 
identify and grant an initial period of tolling when the grant of a 
construction permit is encumbered by administrative or judicial review 
under the Commission's direct purview (e.g., petitions for 
reconsideration and applications for review of the grant of a 
construction permit pending before the Commission and any judicial 
appeal of any Commission action thereon), or failure of a condition 
under paragraph (b)(4) of this section. When a permit is encumbered by 
administrative or judicial review outside of the Commission's direct 
purview (e.g., local, state, or non-FCC federal requirements), the 
permittee is required to notify the Commission of such tolling events.
    (d) A permittee must notify the Commission promptly when a relevant 
administrative or judicial review is resolved. Tolling resulting from 
an act of God will automatically cease six months from the date of the 
notification described in paragraph (c) of this section, unless the 
permittee submits additional notifications at six-month intervals 
detailing how the act of God continues to cause delays in construction, 
any construction progress, and the steps it has taken and proposes to 
take to resolve any remaining impediments. For authorizations to 
construct stations in the Low Power FM service, on FM channels reserved 
for noncommercial educational use, and for noncommercial educational 
full power television stations, the Commission will cease the tolling 
treatment and notify the permittee upon resolution of either:
    (1) Any encumbrance by administrative or judicial review of the 
grant of the construction permit under the Commission's direct purview, 
or
    (2) The condition on the commencement of operations under paragraph 
(b)(4) of this section.
* * * * *
0
9. Section 73.7002 is amended by revising paragraph (c) introductory 
text to read as follows:


Sec.  73.7002   Fair distribution of service on reserved band FM 
channels.

* * * * *
    (c) For a period of four years of on air operations, an applicant 
receiving a decisive preference pursuant to this section is required to 
construct and operate technical facilities substantially as proposed. 
During this period, such applicant may make minor modifications to its 
authorized facilities,

[[Page 10288]]

provided that either: (1) The modification does not downgrade service 
to the area on which the preference was based, or (2) any potential 
loss of first and second NCE service is offset by at least equal first 
and, separately, combined first and second NCE service population 
gain(s), and the applicant would continue to qualify for a decisive 
Section 307(b) preference. Additionally, for a period beginning from 
the award of a construction permit through four years of on-air 
operations, a Tribal Applicant receiving a decisive preference pursuant 
to this section may not:
* * * * *
0
10. Section 73.7003 is amended by revising paragraphs (b)(1) and (2), 
and (c)(3) and adding paragraph (c)(4) to read as follows:


Sec.  73.7003   Point system selection procedures.

* * * * *
    (b) * * *
    (1) Established local applicant. Three points for local applicants, 
as defined in Sec.  73.7000, who have been local continuously for no 
fewer than the two years (24 months) immediately prior to the 
application filing.
    (2) Local diversity of ownership. Two points for applicants with no 
attributable interests, as defined in Sec.  73.7000, in any other 
broadcast station or authorized construction permit (comparing radio to 
radio and television to television) whose principal community (city 
grade) contour overlaps that of the proposed station. The principal 
community (city grade) contour is the 5 mV/m for AM stations, the 3.16 
mV/m for FM stations calculated in accordance with Sec.  73.313(c), and 
the contour identified in Sec.  73.685(a) for TV. Radio applicants will 
count commercial and noncommercial AM, FM, and FM translator stations 
other than fill-in stations. Television applicants will count UHF, VHF, 
and Class A stations.
* * * * *
    (c) * * *
    (3) Voluntary time-sharing. If a tie remains after the tie breaker 
in paragraph (c)(2) of this section, each of the remaining tied, 
mutually exclusive applicants will be identified as a tentative 
selectee and must electronically submit, within 90-days from the 
release of the public notice or order announcing the remaining tie, any 
voluntary time-share agreement. Voluntary time-share agreements must be 
in writing, signed by each time-share proponent, and specify the 
proposed hours of operation of each time-share proponent.
    (4) Mandatory time-sharing. If a tie among mutually exclusive 
applications is not resolved through voluntary time-sharing in 
accordance with paragraph (c)(3) of this section, the tied applications 
will be reviewed for acceptability. Applicants with tied, grantable 
applications will be eligible for equal, concurrent, non-renewable 
license terms.
    (i) If a mutually exclusive group has three or fewer tied, 
grantable applications, the Commission will simultaneously grant these 
applications, assigning an equal number of hours per week to each 
applicant. The Commission will require each applicant subject to 
mandatory time-sharing to simultaneously and confidentially submit 
their preferred time slots to the Commission. If there are only two 
tied, grantable applications, the applicants must select between the 
following 12-hour time slots: 3 a.m.-2:59 p.m., or 3 p.m.-2:59 a.m. If 
there are three tied, grantable applications, each applicant must rank 
their preference for the following 8-hour time slots: 2 a.m.-9:59 a.m., 
10 a.m.-5:59 p.m., and 6 p.m.-1:59 a.m. The Commission will require the 
applicants to certify that they did not collude with any other 
applicants in the selection of time slots. The Commission will give 
preference to the applicant that has been local, as defined in Sec.  
73.7000, for the longest uninterrupted period of time. In the event an 
applicant neglects to designate its preferred time slots, staff will 
select a time slot for that applicant.
    (ii) Groups of more than three tied, grantable applications will 
not be eligible for licensing under this section. Where such groups 
exist, the Commission will dismiss all but the applications of the 
three applicants that have been local, as defined in Sec.  73.7000, for 
the longest uninterrupted periods of time. The Commission will then 
process the remaining applications as set forth in paragraph (c)(4)(i) 
of this section.
* * * * *
0
11. Section 73.7005 is amended by revising the section heading and 
paragraph (b), redesignating paragraph (c) as (d), and adding new 
paragraph (c) to read as follows:


Sec.  73.7005   Maintenance of Comparative Qualifications.

* * * * *
    (b) Technical. In accordance with the provisions of Sec.  73.7002, 
for a period of four years of on air operations, an NCE FM applicant 
receiving a decisive preference for fair distribution of service is 
required to construct and operate technical facilities substantially as 
proposed. During this period, such applicant may make minor 
modifications to its authorized facilities, provided that either: (1) 
The modification does not downgrade service to the area on which the 
preference was based, or (2) any potential loss of first and second NCE 
service is offset by at least equal first and, separately, combined 
first and second NCE service population gain(s).
    (c) Point System Criteria. Any applicant selected based on the 
point system, Sec.  73.7003, must maintain the characteristics for 
which it received points for a period of time commencing with the grant 
of the construction permit and continuing until the station has 
achieved at least four years of on air operations. During this time, 
any applicant receiving points for diversity of ownership, Sec.  
73.7003(b)(2), and selected through the point system, is prohibited 
from
    (1) Acquiring any commercial or noncommercial AM, FM, or non-fill-
in FM translator station which would overlap the principal community 
(city grade) contour of its NCE FM station received through the award 
of diversity points;
    (2) Acquiring any UHF, VHF, or Class A television station which 
would overlap the principal community (city grade) contour of its NCE 
television station received through the award of diversity points;
    (3) Proposing any modification to its NCE FM station received 
through the award of diversity points which would create overlap of the 
principal community (city grade) contour of such station with any 
attributable authorized commercial or noncommercial AM, FM, or non-
fill-in FM translator station;
    (4) Proposing any modification to its NCE television station 
received through the award of diversity points which would create 
overlap of the principal community (city grade) contour of such station 
with any attributable authorized UHF, VHF, or Class A television 
station;
    (5) Proposing modifications to any attributable commercial or 
noncommercial AM, FM, or non-fill-in FM translator station which would 
create overlap with the principal community (city grade) contour of its 
NCE FM station received through the award of diversity points; and
    (6) Proposing modifications to any attributable UHF, VHF, or Class 
A television station which would create overlap with the principal 
community (city grade) contour of its NCE television station received 
through the award of diversity points. This restriction applies to the 
applicant itself, any parties to the application, and any party that 
acquires

[[Page 10289]]

an attributable interest in the permittee or licensee during this time 
period.
* * * * *
[FR Doc. 2019-04037 Filed 3-19-19; 8:45 am]
 BILLING CODE 6712-01-P