[Federal Register Volume 85, Number 188 (Monday, September 28, 2020)]
[Rules and Regulations]
[Pages 60720-60723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17806]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket Nos. 19-282, 17-105; FCC 20-106; FRS 16995]


Use of Common Antenna Site; Modernization of Media Regulation 
Initiative

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this Report and Order, the Commission repeals two rules 
regarding access to FM and TV broadcast antenna sites. These rules 
prohibit the grant or renewal of an FM or TV broadcast license to any 
person who owns, leases, or controls a particular site which is 
peculiarly suitable for such broadcasting in a particular area, if: The 
site is not available for use by other such licensees, no other 
comparable site is available in the area, and the exclusive use of the 
site would unduly limit the number of such stations that can be 
licensed or unduly restrict competition among those stations. After 
review of the record, the Commission concludes that these rules no 
longer serve any practical purpose in light of the significant 
broadcast infrastructure development since the rules were first adopted 
75 years ago. Therefore, the Commission determines that it is in the 
public interest to eliminate them.

DATES: Effective September 28, 2020.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact John Cobb, [email protected], of the Policy 
Division, Media Bureau, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, MB Docket Nos. 19-282, 17-105; FCC 20-106, adopted on August 
4, 2020 and released on August 5, 2020. The full text of this document 
is available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will 
be available electronically in ASCII, Word, and/or Adobe Acrobat.) To 
request these documents in accessible formats (computer diskettes, 
large print, audio recording, and Braille), send an email to 
[email protected] or call the Commission's Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis

    In this Report and Order, we eliminate Sec. Sec.  73.239 and 73.635 
of the Commission's rules regarding access to FM and TV broadcast 
antenna sites. We conclude that these rules no longer serve any 
practical purpose in light of the significant broadcast infrastructure 
development that has taken place since they were first adopted 75 years 
ago. With this proceeding, we continue our efforts to modernize our 
media regulations by removing outdated and unnecessary requirements.
    Background. Sections 73.239 and 73.635 of our rules prohibit the 
grant or renewal of an FM or TV broadcast license ``to any person who 
owns, leases, or controls a particular site which is peculiarly 
suitable'' for such broadcasting in a particular area, if the site is 
not available for use by other such licensees, no other comparable site 
is available in the area, and the exclusive use of the site would 
unduly limit the number of such stations that can be licensed or unduly 
restrict competition among those stations. These rules were adopted 75 
years ago, at a time when FM and TV broadcasting were emerging 
industries, and the need to preserve materials for the U.S. military 
effort in World War II had led the Commission to freeze new broadcast 
station construction. At that time, there were also far fewer outlets 
serving emerging local broadcast markets. Since that time, the 
broadcast market has grown significantly with a corresponding increase 
in the number of antenna sites available. This is made possible, in 
part, by the ability to co-locate broadcasters and other providers at a 
single site and a mature independent communications tower industry that 
owns and leases tower space to broadcasters.
    In October 2019, the Commission issued a Notice of Proposed 
Rulemaking (NPRM) in this proceeding as a part of our continuing 
Modernization of Media Regulation Initiative. In the NPRM, we sought 
comment on whether the common antenna site rules should be eliminated 
or revised. Specifically, we sought comment on to what extent 
broadcasters own their own towers, whether any data suggests the rules 
remain necessary, whether any broadcasters ever request use of common 
antenna sites pursuant to these rules, and what effect elimination of 
these rules would have on the broadcast tower landscape and on FM and 
TV broadcasting. We only received two comments in response to these 
inquiries, both of which were filed by consumers.
    Discussion. In this Report and Order, we repeal Sec. Sec.  73.239 
and 73.635 of our rules. Notably, we received no comment in the record 
from any broadcast licensees that would be affected most directly by 
repealing these 75-year-old rules. As a result, there is no evidence in 
the record that any broadcaster believes that these rules remain 
necessary for it to secure an antenna site. As mentioned above, the 
only two comments we received were filed by consumers. Rojas agrees the 
rules are ``outdated,'' and notes the importance of broadcast services 
to consumers. Mullik expresses concerns about repealing the rules, 
emphasizing the importance of preserving the widespread availability of 
FM and TV broadcasting. We agree that we should ensure that any rule 
changes do not negatively impact the widespread availability of FM and 
TV broadcasting. For the reasons stated below, we believe that 
eliminating these rules is consistent with this goal.
    We conclude that eliminating these rules is appropriate for four 
reasons. First, the apparent rationale for these rules--promoting a 
fledgling broadcast industry and preserving scarce industrial 
resources--no longer applies in today's marketplace. FM and TV 
broadcasting are firmly established industries, and there is no 
evidence in the record of any shortage of materials and equipment for 
the construction of new infrastructure. Additionally, the current trend 
toward co-location of communications towers on antenna farms and the 
widespread availability of tower capacity for lease from numerous tower 
companies make it less likely that

[[Page 60721]]

a suitable site will be wholly unavailable to a broadcaster seeking to 
serve a community. Second, publicly available information shows that 
the communications tower market is dominated by entities that do not 
hold broadcast licenses, and there is no indication in the record that 
their broadcast lessees have the intent or ability to restrict these 
tower owners from denying access to the broadcast lessees' competitors. 
Third, the current rules apply only in extremely limited circumstances, 
and no broadcaster claims that these rules are needed to secure access 
to suitable sites. Thus, we reject Mullik's concern that removal of 
these rules will affect the availability of FM and TV signals. Finally, 
we conclude that retaining a rule that has little if any applicability 
to the current broadcast landscape (emphasized by the fact that no 
representatives from the broadcast industry filed comments in this 
proceeding) risks wasting Commission time and resources, as well as the 
resources of broadcast license holders, on unnecessary adjudications. 
Simply put, based on our expert judgment and the lack of record 
received, we find that these 75-year-old rules have outlived their 
utility. Therefore, we determine that it is in the public interest to 
eliminate these outdated rules.
    Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to 
this Order. The FRFA is set forth below.
    Paperwork Reduction Act Analysis. This document does not contain 
new or modified information collection requirements subject to the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, 
therefore, it does not contain any new or modified information 
collection burden for small business concerns with fewer than 25 
employees, pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4).
    Congressional Review Act. The Commission has determined, and the 
Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget, concurs that, this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The 
Commission will send a copy of this Report & Order to Congress and the 
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
    Final Regulatory Flexibility Act Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), an Initial 
Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM in 
this proceeding. The Federal Communications Commission (Commission) 
sought written public comment on the proposals in the NPRM, including 
comment on the IRFA. We received no comments specifically directed 
toward the IRFA. This Final Regulatory Flexibility Analysis (FRFA) 
conforms to the RFA.
    Need for, and Objective of, the Report and Order. The Report and 
Order eliminates the requirements in Sec. Sec.  73.239 and 73.635 of 
the Commission's rules, regarding access to FM or TV broadcast antenna 
sites. These rules prohibit the grant of a license for a broadcast FM 
or TV station, or a license renewal, to an entity that owns, leases, or 
controls a site that ``is peculiarly suitable'' for FM or TV 
broadcasting in a particular area unless the site is available for use 
by other FM or TV licensees or there is another comparable site 
available in the area, and where the exclusive use of the site by the 
applicant or licensee ``would unduly limit the number of'' FM or TV 
stations that can be authorized in a particular area or would ``unduly 
restrict competition among'' FM and TV stations. We conclude in the 
Report and Order that these requirements are outdated and unnecessary 
in light of the significant changes in the broadcast marketplace, 
including substantial growth in the availability of broadcast 
infrastructure that has occurred since these restrictions were first 
adopted nearly 75 years ago. With this proceeding, we continue our 
efforts to modernize our rules and eliminate outdated and unnecessary 
regulations.
    Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA. There were no comments filed in response to the IRFA.
    Response to comments by the Chief Counsel for Advocacy of the Small 
Business Administration. Pursuant to the Small Business Jobs Act of 
2010, which amended the RFA, the Commission is required to respond to 
any comments filed by the Chief Counsel for Advocacy of the Small 
Business Administration (SBA), and to provide a detailed statement of 
any change made to the proposed rules as a result of those comments.
    The Chief Counsel did not file any comments in response to the 
proposed rules in this proceeding.
    Description and Estimate of the Number of Small Entities to Which 
Rules Will Apply. The RFA directs agencies to provide a description of, 
and where feasible, an estimate of the number of small entities that 
may be affected by the proposed rules, if adopted. The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A small business concern is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA. Below, we provide a description of such small entities, as well as 
an estimate of the number of such small entities, where feasible.
    Radio Stations. This Economic Census category ``comprises 
establishments primarily engaged in broadcasting aural programs by 
radio to the public. Programming may originate in their own studio, 
from an affiliated network, or from external sources.'' The SBA has 
established a small business size standard for this category as firms 
having $41.5 million or less in annual receipts. Economic Census data 
for 2012 shows that 2,849 radio station firms operated during that 
year. Of that number, 2,806 firms operated with annual receipts of less 
than $25 million per year, 17 with annual receipts between $24,999,999 
and $50 million, and 26 with annual receipts of $50 million or more. 
Therefore, based on the SBA's size standard the majority of such 
entities are small entities.
    According to Commission staff review of the BIA/Kelsey, LLC's Media 
Access Pro Radio Database on January 8, 2018, about 11,372 (or about 
99.9 percent) of 11,383 commercial radio stations had revenues of $41.5 
million or less and thus qualify as small entities under the SBA 
definition. The Commission has estimated that there are 6,706 licensed 
FM commercial stations. We note the Commission has also estimated the 
number of licensed noncommercial (NCE) FM radio stations to be 4,197. 
However, the Commission does not compile or have access to information 
on the revenue of NCE stations that would permit it to determine how 
many such stations would qualify as small entities.
    We also note, that in assessing whether a business entity 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, to be

[[Page 60722]]

determined a ``small business,'' an entity may not be dominant in its 
field of operation. We further note that it is difficult at times to 
assess these criteria in the context of media entities, and the 
estimate of small businesses to which these rules may apply does not 
exclude any radio station from the definition of a small business on 
these basis; thus, our estimate of small businesses may therefore be 
over-inclusive. Also, as noted above, 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 the estimates of small businesses to which they apply may 
be over-inclusive to this extent.
    Television Broadcasting. This Economic Census category ``comprises 
establishments primarily engaged in broadcasting images together with 
sound.'' These establishments operate television broadcast 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 such businesses: Those having $41.5 
million or less in annual receipts. The 2012 Economic Census reports 
that 751 firms in this category operated in that year. Of this number, 
656 had annual receipts of $25 million or less, 25 had annual receipts 
between $24,999,999 and $50 million, and 70 had annual receipts of $50 
million or more. Based on this data we therefore estimate that the 
majority of commercial television broadcasters are small entities under 
the applicable SBA size standard.
    The Commission has estimated the number of licensed full power 
commercial television stations to be 1,368. Of this total, 1,257 
stations had revenues of $41.5 million or less, according to Commission 
staff review of the BIA Kelsey Inc. Media Access Pro Television 
Database (BIA) on January 8, 2018, and therefore these licensees 
qualify as small entities under the SBA definition. In addition, 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.
    There are also 386 Class A stations. Given the nature of these 
services, we will presume that all of these entities qualify as small 
entities under the above SBA small business size standard.
    We note, however, that in assessing whether a business concern 
qualifies as ``small'' under the above definition, business (control) 
affiliations must be included. Our estimate, therefore, likely 
overstates the number of small entities that might be affected by our 
action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. In addition, 
another element of the definition of ``small business'' requires that 
an entity not be dominant in its field of operation. We are unable at 
this time to define or quantify the criteria that would establish 
whether a specific television broadcast 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. Also, as noted above, 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.
    Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities. This Report and Order 
eliminates two rules which prohibit the grant or renewal of a license 
for an FM or TV station under extremely limited circumstances. 
Accordingly, the Report and Order does not impose any new reporting, 
recordkeeping, or other compliance requirements for any small entities. 
Elimination of these rules should reduce compliance requirements for FM 
radio and full power and Class A TV stations, as they are currently 
obligated to comply with these rules.
    Steps Taken to Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant alternatives that it has considered 
in developing its 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 an 
reporting requirements under the rule for such 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 such small 
entities.''
    The Report and Order eliminates two rules which prohibit the grant 
or renewal of a license for an FM or TV station under extremely limited 
circumstances. As a part of the Commission's Media Modernization 
Initiative, the intent of eliminating these requirements is to reduce 
the costs of compliance with the Commission's rules, including any 
related managerial, administrative, legal, and operational costs. We 
anticipate that small entities, as well as larger entities, will 
benefit from this deletion.
    Report to Congress. The Commission will send a copy of the Report 
and Order, including this FRFA, in a report to be sent to Congress 
pursuant to the Congressional Review Act. In addition, the Commission 
will send a copy of the Report and Order, including this FRFA, to the 
Chief Counsel for Advocacy of the SBA. A copy of the Report and Order 
and FRFA (or summaries thereof) will also be published in the Federal 
Register.
    Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 4(i), 4(j), 303(r), 307, and 309 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 
303(r), 307, and 309, the Report and Order is adopted. It is further 
ordered that the Commission's rules are hereby amended as set forth in 
Appendix A, effective as of the date of publication of a summary in the 
Federal Register. It is further ordered that the Commission's Consumer 
and Governmental Affairs Bureau, Reference Information Center, shall 
send a copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration. It is further ordered that the Commission will 
send a copy of the Report and Order in a report to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act (CRA). It is further ordered that should no petitions for 
reconsideration or petitions for judicial review be timely filed, MB 
Docket No. 19-282 shall be terminated and its docket closed.

List of Subjects in 47 CFR Part 73

    Communications equipment, Radio, Television.


Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications

[[Page 60723]]

Commission amends 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.


Sec. Sec.  73.239 and 73.635   [Removed]

0
2. Remove Sec. Sec.  73.239 and 73.635.

[FR Doc. 2020-17806 Filed 9-25-20; 8:45 am]
BILLING CODE 6712-01-P