[Federal Register Volume 85, Number 215 (Thursday, November 5, 2020)]
[Proposed Rules]
[Pages 70569-70572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24366]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 20-343; FCC 20-145; FRS 17191]


FCC Seeks Comment on Proposed Application Limit for NCE FM New 
Station Applications in Upcoming 2021 Filing Window

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; proposed action.

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SUMMARY: The Commission recently adopted changes to its rules and 
procedures for considering competing applications for new noncommercial 
educational (NCE) FM radio stations in Reexamination of the Comparative 
Standards and Procedures for Licensing Noncommercial Educational 
Broadcast Stations and Low Power FM Stations, MB Docket No. 19-3, 
Report and Order. In this document, the Commission announces that it is 
directing the Media Bureau (Bureau) to open a filing window for NCE FM 
new station applications for the FM reserved band (channels 201-220). 
The Bureau will issue a future Public Notice to announce the specific 
dates of the 2021 window. The Commission also seeks comment on a 
proposal establishing a ten-application limit in the upcoming 2021 
filing window.

DATES: Comments are due on or before November 20, 2020, and reply 
comments are due or before November 30, 2020.

ADDRESSES: You may submit comments, identified by MB Docket No. 20-343, 
by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the Federal Communications Commission's 
ECFS website: http://apps.fcc.gov/ecfs/. Follow the instructions for 
submitting comments.
     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 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.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail

[[Page 70570]]

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 45 L Street NE, Washington, DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020).
     During the time the Commission's building is closed to the 
general public and until further notice, if more than one docket or 
rulemaking number appears in the caption of a proceeding, paper filers 
need not submit two additional copies for each additional docket or 
rulemaking number; an original and one copy are sufficient.
    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 and Governmental Affairs Bureau at 202-418-0530 (voice), 1-
888-835-5322 (tty).

FOR FURTHER INFORMATION CONTACT: For additional information, contact 
Amy Van de Kerckhove, [email protected]; James Bradshaw, 
[email protected]; or Lisa Scanlan, [email protected], of the 
Media Bureau, Audio Division, (202) 418-2700. Direct press inquiries to 
Janice Wise, [email protected], (202) 418-8165.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document, Public Notice, FCC-20-145, released October 19, 2020. The 
full text of this document is available for public inspection and can 
be downloaded at https://docs.fcc.gov/public/attachments/FCC-20-145A1.docx or by using the search function for MB Docket No. 20-343 on 
the Commission's ECFS web page at www.fcc.gov/ecfs.

I. Background

    1. In the initial rulemaking proceeding on comparative standards 
for NCE applicants, the Commission reserved the right to establish by 
public notice a limit on the number of NCE applications filed by a 
party in a filing window. In 2007, before the window opened, the 
Commission sought comment on an application cap and subsequently 
established a limit of ten NCE FM new station applications filed by any 
party during the October 2007 filing window. This application limit 
helped restrict the number of mutually exclusive applications 
(including ``daisy chains'' of mutually exclusive applications), and 
thereby minimized the delay caused by processing complicated 
application chains. The ten application cap allowed the Commission to 
expeditiously process and grant thousands of applications to a wide 
range of local and diverse applicants, therefore promoting the rapid 
expansion of new NCE FM service throughout the country.

II. Discussion

    2. Given the success of the October 2007 window, we tentatively 
conclude that we should establish a ten-application limit in the 
upcoming NCE FM filing window. We believe this limit would deter 
speculative filings, permit the expeditious processing of the 
applications filed in the window, and provide interested parties with a 
meaningful opportunity to file for and obtain new NCE FM station 
licenses. In contrast, we tentatively conclude that the failure to 
establish a limit on the number of new NCE FM applications that a party 
may file in the window could lead to a large number of speculative 
filings, creating the potential for extraordinary procedural delays.
    3. We acknowledge that the Commission previously stated in 2000 
that the point system criteria and window filing procedures should be 
sufficient to ``ameliorate the filing of large numbers of mutually 
exclusive applications by speculative, barely qualified, applicants'' 
and that it would consider an application limit ``[i]f the number of 
mutually exclusive applications received under the new [point] system 
exceeds our expectations.'' However, after the 2003 FM translator 
window, in which the Commission received over 13,000 applications, many 
filed by speculative filers, the Commission and NCE FM applicants were 
concerned that failure to establish an application cap before the 2007 
window could lead to similar mass speculative filings and procedural 
delays.
    4. Consistent with the Commission's predictions in connection with 
establishing an application cap before opening the October 2007 window, 
we expect there will be a large volume of NCE FM applications filed in 
the forthcoming window that will require establishing an application 
cap before the window opens. There are several factors that could 
contribute to a large volume of NCE FM applications in this window: (a) 
There is no application filing fee; (b) there are no ownership limits 
in the reserved band; (c) there has not been a filing window for new 
NCE FM applications for over ten years; and (d) the Commission recently 
simplified and clarified its rules and procedures for filing 
applications for new NCE applications and considering competing 
applications. Accordingly, we tentatively conclude that establishing an 
application limit before the window opens will provide certainty to 
potential applicants and allow for expeditious processing of 
applications. We seek comment on this approach.
    5. Accordingly, we tentatively conclude that a ten-application cap 
is a reasonable limit to prevent mass filings by speculators and to 
permit the efficient and expeditious processing of window-filed 
applications while at the same time supporting the goals of localism 
and diversity reflected in the NCE FM point system. As such, we propose 
the following limit:
    An applicant may file no more than a total of ten applications in 
the 2021 NCE FM filing window. Furthermore, a party to an application 
filed in the 2021 NCE FM filing window may hold attributable interests 
in no more than a total of ten applications filed in the window. If it 
is determined that any party to an application has an attributable 
interest in more than ten applications, the Bureau will retain the ten 
applications that were filed first--based on the date of application 
receipt--and dismiss all other applications.
    6. We seek comment on this proposed limit. We specifically seek 
comment on whether ten applications is the appropriate limit to enable 
the efficient processing of applications and initiation of new NCE FM 
service, whether a different number would be more appropriate, or 
whether we should establish no limit at all. In particular, we note 
that our goal is to give interested parties the opportunity to apply 
for local and regional NCE FM outlets, subject to the apparent need for 
an application cap for the reasons described above.

III. Procedural Matters

    7. Statement of Legal Authority. The Commission's legal authority 
for limiting the number of applications a party may file during a 
broadcast filing window is found in 47 U.S.C. 151, 152(a), 154(i) and 
(j), 301, 303(g) and (r), 308(b), and 309(j).
    8. Filing Requirements--Comments may be filed using the 
Commission's Electronic Comment Filing System

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(ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 
63 FR 24121 (1998). Pleadings sent via email to the Commission will be 
considered informal and will not be part of the official record. 
Comments, reply comments, and ex parte submissions will be publicly 
available online via ECFS.
    9. Ex Parte Restrictions. The proceeding in this Public Notice 
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 a 
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 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with rule 1.1206(b), 
47 CFR 1.1206(b). Participants in this proceeding should familiarize 
themselves with the Commission's ex parte rules.
    10. Initial Regulatory Flexibility Act. As required by the 
Regulatory Flexibility Act, we have prepared an Initial Regulatory 
Flexibility Analysis (IRFA), which is set forth in the Appendix. 
Written public comments are requested on the IRFA. These comments must 
be filed in accordance with the same filing procedures and deadlines 
for comments on the proposed application limit, and should have a 
separate and distinct heading designating them as responses to the 
IRFA.
    11. The Consumer and Governmental Affairs Bureau, Reference 
Information Center, shall send a copy of this Public Notice, 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.
    12. Paperwork Reduction Act. This document contains proposed 
information collections subject to the Paperwork Reduction Act of 1995 
(PRA). The Commission has OMB approval to collect these applications 
under OMB Control Number 3060-0029.

IV. Initial Regulatory Flexibility Analysis

    13. As required by the Regulatory Flexibility Act, 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 of the potential application limit 
considered in FCC Seeks Comment on Proposed Application Limit for NCE 
FM New Station Applications in Upcoming 2021 Window, FCC 20-145 (Public 
Notice). 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 Public Notice. The Commission will send a 
copy of the Public Notice, including this IRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration (SBA). In addition, 
the Public Notice and the IRFA (or summaries thereof) will be published 
in the Federal Register.

A. Need for, and Objectives of, the Proposed Limit

    14. The Commission has determined that, absent a limit on the 
number of applications that a party may file in the filing window 
described in the Public Notice, some parties may file a large number of 
speculative applications, including applications proposing stations in 
communities to which the applicant has no apparent connection and 
applications that are mutually exclusive with each other. Accordingly, 
the Commission has tentatively determined that a limit of ten 
applications for new NCE FM construction permits in the filing window 
is an appropriate procedural safeguard to deter speculation and permit 
the expeditious processing of the NCE FM applications filed in the 
window. The Commission believes that the proposed limit will benefit 
small entities, as defined below.

B. Legal Basis

    15. The Public Notice is released pursuant to sections 1, 2(a), 
4(i) and (j), 301, 303(g) and (r), 308(b), and 309(j) of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i) 
and (j), 301, 303(g) and (r), 308(b), and 309(j).

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

    16. 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 procedures, if adopted. The RFA defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental entity'' 
under Section 3 of the Small Business Act. 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.
    17. NCE FM Radio Stations. The proposed application limit will 
apply to potential licensees of the NCE FM radio service. This Economic 
Census category ``comprises establishments primarily engaged in 
broadcasting aural programs by radio to the public.'' The SBA has 
created the following small business size standard for this category: 
Those having $41.5 million or less in annual receipts. Census data for 
2012 show that 2,849 firms in this category operated in that year. Of 
this number, 2,806 firms had annual receipts of less than $25 million, 
and 43 firms had annual receipts of $25 million or more. Because the 
Census has no additional classifications that could serve as a basis 
for determining the number of stations whose receipts exceeded $41.5 
million in that year, we conclude that the majority of radio broadcast 
stations were small entities under the applicable SBA size standard. In 
addition, the Commission has estimated the number of NCE FM radio 
stations to be 4,197. Because NCE licensees must be non-profit, we will 
presume that all are small entities.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    18. We anticipate that none of the changes adopted as a result of 
the Public Notice would result in an increase to the reporting and 
recordkeeping requirements of broadcast stations or applicants for NCE 
FM authorizations. As noted above, we invite small business entities to 
comment in response to the Public Notice.

[[Page 70572]]

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

    19. 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): (a) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (b) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(c) the use of performance, rather than design, standards; and (d) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    20. We are directed under law to describe any alternatives we 
consider, including alternatives not explicitly listed above. The 
Public Notice describes and seeks comment on a proposed limit on the 
number of new NCE FM applications that may be filed during the filing 
window described in the Public Notice. The proposed limit is intended 
to benefit all small NCE entities seeking to establish a new NCE FM 
service on a local or regional basis by preventing mass filings of 
speculative applications. The proposed limit should benefit applicants 
by expediting the review and processing of applications filed during 
the window. The proposed limit does not impose any significant 
compliance or reporting requirements because it would merely set a 
limit on the number of applications for new NCE FM authorizations that 
a party could file during the window. Accordingly, we are not aware of 
any alternatives that would benefit small entities. We encourage small 
entities to comment on the proposed limit described in the Public 
Notice.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Limit

    21. None.

List of Subjects in 47 CFR Part 73

    Radio, Reporting and recordkeeping requirements.


Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rule

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes 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 73.503 is amended by adding paragraph (g) to read as 
follows:


Sec.  73.503  Licensing requirements and service.

* * * * *
    (g) Application Limit. An applicant may file no more than a total 
of ten applications in the 2021 NCE FM filing window. A party to an 
application filed in the 2021 NCE FM filing window may hold 
attributable interests, as defined in Sec.  73.7000, in no more than a 
total of ten applications filed in the window. If it is determined that 
any party to an application has an attributable interest in more than 
ten applications, the Media Bureau will retain the ten applications 
that were filed first--based on the date of application receipt--and 
dismiss all other applications.

[FR Doc. 2020-24366 Filed 11-4-20; 8:45 am]
BILLING CODE 6712-01-P