[Federal Register Volume 86, Number 85 (Wednesday, May 5, 2021)]
[Rules and Regulations]
[Pages 23866-23868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09508]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 20-343; FCC 21-43; FRS 23867]


FCC Adopts 10-Application Limit for NCE FM New Station 
Applications in Upcoming 2021 Filing Window

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission adopts a limit of 10 
applications filed by any party during the upcoming 2021 window for new 
noncommercial educational (NCE) FM radio stations. The application cap 
is designed to provide a meaningful opportunity for applicants to file 
for new NCE FM stations and expand NCE service while, at the same time, 
deter speculative applications and procedural delays.

DATES: Effective June 4, 2021.

FOR FURTHER INFORMATION CONTACT: James Bradshaw, 
[email protected]; Lisa Scanlan, [email protected]; or Amy Van 
de Kerckhove, [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, FCC 21-43, adopted and released April 21, 2021. The full text 
of this document is available for download at the FCC's Electronic 
Document Management System (EDOCS) website at https://www.fcc.gov/edocs 
or via the FCC's Electronic Comment Filing System (ECFS) website at 
http://www.fcc.gov/ecfs by using the search function for MB Docket No. 
20-343 (Documents will be available electronically in ASCII, Microsoft 
Word, and/or Adobe Acrobat.)

Synopsis

    1. Introduction. The Commission recently announced the intention to 
open a 2021 filing window for FM reserved band (channels 201-220) 
applications for new noncommercial educational (NCE) FM radio stations 
and sought comment on a proposed limit of 10 applications filed by any 
party during the upcoming window. This document adopts the proposed 10-
application cap on NCE FM new station applications.
    2. Background. In 2007, before the first NCE FM filing window 
opened, the Commission sought comment on an application cap and 
subsequently established a limit of 10 NCE FM new station applications 
filed by any party during the October 2007 filing window. This 
application limit helped foster the goals of localism and diversity as 
reflected in the NCE FM point system, while also restricting the number 
of speculative or mutually exclusive (MX) applications. This, in turn, 
minimized the delay caused by processing complicated application 
chains. The 10-application cap also 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. In the October 
2020 Cap Comment Notice (published at 85 FR 70569 on Nov. 5, 2020), the 
Commission tentatively concluded that it should also establish a 10-
application limit for the upcoming 2021 NCE FM filing window.
    3. In the Cap Comment Notice, the Commission sought comment on 
whether 10 applications is the appropriate limit to enable the 
efficient processing of applications and initiation of new NCE FM 
service. Although the commenters addressing the proposed cap agree that 
some limit is advisable, they were not in agreement on what specific 
limit would be most appropriate and beneficial. Specifically, while 
National Public Radio, Inc. (NPR) endorses the Commission's proposed 
10-application cap, REC Networks (REC) proposes a lower five-
application limit, and Educational Media Foundation (EMF) recommends 
allowing parties to file more than 10 applications if the additional 
applications are for areas outside the home counties of Nielsen Audio 
markets.
    4. Discussion. The Commission adopts the proposal from the Cap 
Comment Notice to establish a limit of 10 NCE FM new station 
applications filed by any party during the upcoming filing window. The 
Commission finds a 10-application cap will best 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.
    5. The document acknowledges that REC's proposed five-application 
cap could theoretically curb the number of MX applications, and 
therefore, have the benefit of simplifying and expediting the 
processing of applications. The Commission finds, however, that this 
benefit is outweighed by the fact that a five-application limit will 
also curtail the expansion of new NCE FM service, and therefore, 
disserve the public interest. The last NCE FM filing window was over 13 
years ago, and accordingly, there is pent-up demand for new NCE FM 
channels, which is unlikely to be satisfied with a lower five-
application cap.
    6. The document acknowledges EMF's novel proposal, but concludes 
that the logistical and administrative challenges of implementing EMF's 
two-tiered approach are simply too cumbersome and create the potential 
for extraordinary procedural delays and the ultimate delay of new NCE 
FM service to the public. The Commission finds that adopting EMF's 
approach is not administratively feasible at this time. The time 
required to further revise the Commission's rules and forms to adopt 
the EMF proposal would significantly delay the initiation of the filing 
window

[[Page 23867]]

and service to the public and outweigh any benefit from the EMF 
proposal.
    7. The document recognizes EMF's claim that its proposal would 
increase NCE FM service to rural areas and allow parties to file more 
applications to upgrade FM translators serving rural areas to protected 
full-power stations. The Commission notes, however, that EMF's 
proposal, which was not endorsed by any of the commenters, also has the 
drawback of increasing the potential for more MX groups, created by the 
secondary application filings, larger MX groups, and complicated 
application chains, which could lead to processing delays, and 
ultimately, delay the initiation of new NCE FM service to the public.
    8. The Commission finds that the proven 10-application cap strikes 
the best balance of its multiple objectives of providing a meaningful 
opportunity for applicants to file for new NCE FM stations and 
expanding service while, at the same time, deterring speculative 
applications and procedural delays. The 10-application cap, employed 
during the 2007 NCE FM filing window, has proven, in practice, to be 
very effective.
    9. The document adopts the proposal that an applicant may file no 
more than a total of 10 applications in the 2021 NCE FM filing window. 
Under existing precedent, this means that a party to an application 
filed in the 2021 NCE FM filing window may hold attributable interests 
in no more than a total of 10 applications filed in the window. If it 
is determined that any party to an application has an attributable 
interest in more than 10 applications, the Media Bureau will retain the 
10 applications that were filed first--based on the date of application 
receipt--and dismiss all other applications.

Procedural Matters

    10. Regulatory Flexibility Analysis. As required by the Regulatory 
Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory 
Flexibility Analysis was incorporated in the initial Public Notice, FCC 
Seeks Comment on Proposed Application Limit for NCE FM New Station 
Applications in Upcoming 2021 Window, FCC 20-145. The Commission sought 
written public comment on the proposal in the document, including 
comment on the IRFA. The Commission received no comments specifically 
directed toward the IRFA. This Final Regulatory Flexibility Analysis 
(FRFA) conforms to the RFA.
    11. Need for, and Objectives of, the 10-Application Limit. The 
document adopts a limit of 10 NCE FM radio station applications filed 
by any party during the upcoming 2021 filing window. The Commission has 
determined that, absent a limit on the number of applications that a 
party may file in the upcoming filing window, some parties may file a 
large number of speculative applications, including applications that 
are mutually exclusive with each other, resulting in procedural delays 
and the delay of new NCE FM service to the public. The Commission has 
concluded that a limit of 10 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 while still allowing applicants meaningful opportunities 
to expand NCE FM service. The Commission believes that the adopted 
limit will benefit small entities.
    12. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. There were no comments to the IRFA filed.
    13. 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 
rule in this proceeding.
    14. Description and Estimate of the Number of Small Entities to 
Which the Proposed 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 entity.'' In addition, the 
term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. A small business 
concern is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA.
    15. NCE FM Radio Stations. The application limit applies 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, the Commission concludes 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 4,195. NCE stations are non-profit, and 
therefore considered to be small entities.
    16. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements. The Commission anticipates that none of the 
changes adopted as a result of the document will result in an increase 
to the reporting and recordkeeping requirements of broadcast stations 
or applicants for NCE FM authorizations.
    17. 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.
    18. The Commission is directed under law to describe any 
alternatives it considered, including alternatives not explicitly 
listed above. The adopted 10-application 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. This limit should benefit all applicants by expediting 
the review and processing of applications filed during the window. 
Based on the record in this proceeding, the Commission concludes that a 
lower limit would not effectively meet the demand for new NCE FM 
channels, whereas a higher limit would impose

[[Page 23868]]

unacceptable processing delays on all applicants, overriding any 
potential benefits to the few applicants interested in filing more than 
10 applications in this window. The adopted 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, 
the Commission is not aware of any alternatives that would benefit 
small entities.
    19. Report to Congress. The Commission will send a copy of the 
document, 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 document, including this FRFA, to the Chief 
Counsel for Advocacy of the SBA. A copy of the document and FRFA (or 
summaries thereof) will also be published in the Federal Register.

Paperwork Reduction Act

    20. 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

    21. 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 
document to Congress and the Government Accountability Office pursuant 
to 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 73

    Radio, Reporting and recordkeeping requirements

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rule

    For the reasons set forth in the preamble, the Federal 
Communications Commission amends part 73 of chapter 1 of title 47 of 
the Code of Federal Regulations 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 10 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 10 applications filed in the window. If it is determined that 
any party to an application has an attributable interest in more than 
10 applications, the Media Bureau will retain the 10 applications that 
were filed first--based on the date of application receipt--and dismiss 
all other applications.
* * * * *
[FR Doc. 2021-09508 Filed 5-4-21; 8:45 am]
BILLING CODE 6712-01-P