[Federal Register Volume 87, Number 144 (Thursday, July 28, 2022)]
[Proposed Rules]
[Pages 45288-45295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16248]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket No. 22-239; FCC 22-55; FR ID 98231]


Update to Publication for Television Broadcast Station DMA 
Determinations for Cable and Satellite Carriage

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks comment on referencing a new publication for use in 
determining a television station's designated market area (DMA) for 
satellite and cable carriage under the Commission's regulations. The 
current rules require television broadcasters, cable operators, and 
satellite carriers to determine DMA for carriage election and other 
purposes by reference to the Nielsen Station Index Directory (Annual 
Station Index) in combination with the United States Television 
Household Estimates (Household Estimates), or a successor publication. 
Nielsen Media Research no longer publishes the Annual Station Index and 
has replaced it with a monthly Local TV Station Information Report 
(Local TV Report), which is now the only publication necessary to 
determine a station's DMA. The Household Estimates publication is no 
longer in use. First, the Commission seeks comment on whether we should 
revise our rules to identify the Local TV Report as the successor 
publication to the Annual Station Index to be used to determine a 
station's DMA. Second, because the Local TV Report is published monthly 
rather than yearly as the Annual Station Index, we seek comment on 
which Local TV Report should be used for carriage election.

DATES: Comments are due on or before August 29, 2022; reply comments 
are due on or before September 26, 2022.

ADDRESSES: You may submit comments, identified by MB Docket No. 22-239, 
by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    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 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.\1\
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    \1\ FCC Announces Closure of FCC Headquarters Open Window and 
Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (OMD 
2020). See https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
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    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).

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Kenneth Lewis, [email protected], of the Media 
Bureau, Policy Division, (202) 418-2622. Direct press inquiries to 
Janice Wise at (202) 418-8165.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), MB Docket No. 22-239, adopted on July 
14, 2022 and released July 14, 2022. The full text of this document is 
available electronically via the FCC's Electronic Document Management 
System (EDOCS) website at https://www.fcc.gov/ecfs. (Documents will be 
available electronically in ASCII, Microsoft Word, and/or Adobe 
Acrobat.) 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).

Synopsis

I. Introduction

    1. In this Notice of Proposed Rulemaking, we seek comment on 
referencing Nielsen's Local TV Station Information Report (Local TV 
Report) for use in determining a television station's designated market 
area (DMA)

[[Page 45289]]

for satellite and cable carriage under the Commission's regulations. 
The Nielsen Company has notified the Commission that its Nielsen Media 
Research division will no longer publish the annual Nielsen Station 
Index Directory (Annual Station Index), which has been used in 
combination with the Nielsen Station Index and United States Television 
Household Estimates (Household Estimates), to determine a station's DMA 
for local television stations seeking carriage. Nielsen has stated that 
the information contained in the Annual Station Index is now in the 
Local TV Report, which is published monthly. Thus, the Local TV Report 
is now the only publication necessary to determine a station's DMA. The 
Household Estimates publication is no longer in use. In the discussion 
below, we tentatively conclude that we should revise our rules to 
identify the Local TV Report as the successor publication to be used to 
determine a station's DMA. However, the Local TV Report excludes low-
power and Class A Class A stations that fail to meet its de minimis 
audience threshold, but Nielsen is able to generate upon request for 
subscribers a report that contains all low-power and Class A stations. 
Although DMA determinations are not relevant for low-power and Class A 
station carriage, we ask whether a Nielsen generated report containing 
all low-power and Class A station upon request of subscribers is 
sufficient, or whether there other publications that could publicly 
provide this information?

II. Background

    2. Pursuant to the Act, and the implementing rules adopted by the 
Commission, commercial television broadcast stations are entitled to 
assert mandatory carriage rights on cable systems located within their 
market. Similarly, section 338 of the Act requires satellite carriers 
to carry on request all local television broadcast stations' signals in 
local markets in which the satellite carrier carries at least one local 
television broadcast signal pursuant to the statutory copyright 
license. A station's market for cable and satellite carriage is its 
DMA, as defined by The Nielsen Company's Annual Station Index and 
Household Estimates ``or any successor publications.'' The implementing 
regulations also specify which edition of the Annual Station Index is 
to be used for each election cycle (specifically, the one published the 
year prior to the election).
    3. The Nielsen Company informed the Commission in a letter that the 
Annual Station Index would no longer be published and that it would be 
replaced with the Local TV Report that generally contains the same 
information as the Annual Station Index and is simply published monthly 
rather than annually. However, Nielsen also stated that one noted 
difference between the Annual Station Index and the Local TV Report is 
that the latter includes low-power and Class A television stations only 
if they reach a de minimis average audience size threshold. Nielsen 
also informed the Commission that the Household Estimates publication 
is no longer in use.

III. Discussion

    4. As an initial matter, we seek comment on whether the rule should 
be amended to reference the Local TV Report as the successor to the 
Annual Station Index and Household Estimates for purposes of 
determining DMA for carriage elections. We also seek comment on whether 
the October Local TV Report published two years prior to each triennial 
carriage election should be used to allow for an apples-to-apples 
comparison with the data from the Annual Station Index. Or, 
alternatively, should we consider a Local TV Report that is published 
closer in time to each triennial carriage election?
    5. As previously noted above, the Local TV Report includes low-
power and Class A television stations only if they meet a certain de 
minimis average audience size threshold. As also noted, DMA is not 
relevant for low-power and Class A carriage. Nevertheless, the omission 
of all low-power and Class A stations from the Local TV Report is a 
change from the Annual Station Index. However, Nielsen has stated that 
it still gathers this information for all television stations and can 
generate a report upon request for subscribers that would include all 
low-power and Class A stations other than those already identified in 
the Local TV Report.\2\ We seek comment on whether Nielsen's generation 
of a report at the request of subscribers is sufficient? If obtaining 
any necessary information from Nielsen in this manner is not 
sufficient, are there other publications that could publicly provide 
this information? We also seek comment on any other differences between 
Nielsen's Station Index Directory and Local TV Report that we should 
take into account as we update these rules?
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    \2\ Nielsen Letter at 2 and Nielsen Letter Addenda.
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    6. We further seek comment on whether there any other rules that we 
should consider updating in light of Nielsen's publication changes? 
Although we note that the Commission's carriage election rules 
discussed herein appear to be the only Commission rules that expressly 
reference the Annual Station Index and Household Estimates, changing 
how we determine DMA in this context will impact other statutory and 
rule provisions relating to carriage.\3\ We tentatively conclude that 
the publication or publications ultimately selected in this proceeding 
will also be used to define ``local market'' as contemplated in these 
other statutory provisions and rules. We seek comment on this tentative 
conclusion.
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    \3\ See, e.g., 47 U.S.C. 325(b)(7)(E) (retransmission consent); 
47 U.S.C. 339(d)(1) (carriage of distant signals by satellite 
carriers); 47 U.S.C. 340(i)(1) (significantly viewed); 47 CFR 
76.54(e) (significantly viewed); 47 CFR 76.65(b)(3)(i) 
(retransmission consent); 47 CFR 73.683(f) (field strength 
contours). These statutory and rule provisions incorporate or 
reference the definition of ``local market'' in either the carriage 
election rules (see infra Appendix A) or 17 U.S.C. 122(j) (see supra 
note 2).
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IV. Procedural Matters

A. Initial RFA Analysis

    7. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\4\ 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 Notice of Proposed Rulemaking (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 on the first page of the NPRM. 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).\5\ In addition, 
the NPRM and the IRFA (or summaries thereof) will be published in the 
Federal Register.\6\
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    \4\ 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, was amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \5\ 5 U.S.C. 603(a).
    \6\ Id.
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1. Need for, and Objectives of, the Proposed Rule Changes.

    8. In this Notice of Proposed Rulemaking (NPRM), we seek comment on 
adoption of a new publication for use in determining a television 
station's designated market area (DMA) for satellite and cable carriage 
under the Commission's regulations. The Nielsen Company has notified 
the Commission that its Nielsen Media Research division will no longer 
publish an annual Station Index Directory (Annual Station Index). Under 
our rules, this publication has

[[Page 45290]]

been used, along with the Nielsen Station Index United States 
Television Household Estimates (Household Estimates), to determine a 
station's DMA for local television stations seeking carriage on 
satellite and cable systems.\7\ The Annual Station Index has been 
replaced with a monthly Local TV Station Information Report (Local TV 
Report), which contains all the information necessary to determine a 
television station's DMA.\8\ We tentatively conclude that we should 
amend our rules to eliminate reference to the Annual Station Index and 
the Household Estimates and instead determine DMA assignments for 
carriage purposes by reference to the Local TV Report, and seek comment 
on this tentative conclusion. We also seek comment on whether we should 
direct parties to refer to the Local TV Report published in the October 
two years prior to each triennial carriage election, or one published 
in a different month or year or closer to the time period of the 
election. We seek to amend our rules to replace the Annual Station 
Index and the Household Estimates with a ``successor publication'' that 
is consistent with the Act and our rules and that provides similarly 
useful information for parties engaged in the retransmission consent-
mandatory carriage election cycle.
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    \7\ Letter from Michael Nilsson, Harris, Wiltshire & Grannis 
LLP, Counsel to the Nielsen Company, to Evan Baranoff, Attorney 
Advisor, Media Bureau, Policy Division, Federal Communications 
Commission (Dec. 15, 2021) (Nielsen Letter).
    \8\ Id.
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2. Legal Basis

    9. The proposed action is authorized pursuant to the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 152, 154, 303, 325, 335, 338, 
339, 340, 403, 534.

3. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    10. The RFA directs agencies to provide a description of and the 
number of small entities that may be affected by the proposed rules, if 
adopted.\9\ The RFA generally defines the term ``small entity'' as 
having the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' \10\ In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act.\11\ 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.\12\ The rules proposed 
herein will directly affect small television and radio broadcast 
stations. Below, we provide a description of these small entities, as 
well as an estimate of the number of such small entities, where 
feasible.
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    \9\ 5 U.S.C. 603(b)(3).
    \10\ Id. Sec.  601(6).
    \11\ Id. Sec.  601(3) (incorporating the definition of ``small 
business concern'' in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), 
the statutory definition of a small business applies ``unless an 
agency, after consultation with the Office of Advocacy of the Small 
Business Administration and after opportunity for public comment, 
establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.'' Id. Sec.  601(3).
    \12\ 15 U.S.C. 632(a)(1). Application of the statutory criteria 
of dominance in its field of operation and independence are 
sometimes difficult to apply in the context of broadcast television. 
Accordingly, the Commission's statistical account of television 
stations may be over-inclusive.
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    11. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired communications networks.\13\ Transmission 
facilities may be based on a single technology or a combination of 
technologies. Establishments in this industry use the wired 
telecommunications network facilities that they operate to provide a 
variety of services, such as wired telephony services, including VoIP 
services, wired (cable) audio and video programming distribution, and 
wired broadband internet services.\14\ By exception, establishments 
providing satellite television distribution services using facilities 
and infrastructure that they operate are included in this industry.\15\ 
Wired Telecommunications Carriers are also referred to as wireline 
carriers or fixed local service providers.\16\
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    \13\ See U.S. Census Bureau, 2017 NAICS Definition, ``517311 
Wired Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
    \14\ Id.
    \15\ Id.
    \16\ Fixed Local Service Providers include the following types 
of providers: Incumbent Local Exchange Carriers (ILECs), Competitive 
Access Providers (CAPs) and Competitive Local Exchange Carriers 
(CLECs), Cable/Coax CLECs, Interconnected VOIP Providers, Non-
Interconnected VOIP Providers, Shared-Tenant Service Providers, 
Audio Bridge Service Providers, and Other Local Service Providers. 
Local Resellers fall into another U.S. Census Bureau industry group 
and therefore data for these providers is not included in this 
industry.
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    12. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small.\17\ U.S. Census Bureau data for 2017 show that 
there were 3,054 firms that operated in this industry for the entire 
year.\18\ Of this number, 2,964 firms operated with fewer than 250 
employees.\19\ Additionally, based on Commission data in the 2021 
Universal Service Monitoring Report, as of December 31, 2020, there 
were 5,183 providers that reported they were engaged in the provision 
of fixed local services.\20\ Of these providers, the Commission 
estimates that 4,737 providers have 1,500 or fewer employees.\21\ 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
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    \17\ See 13 CFR 121.201, NAICS Code 517311.
    \18\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Selected Sectors: Employment Size of Firms for the U.S.: 
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
    \19\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard.
    \20\ Federal-State Joint Board on Universal Service, Universal 
Service Monitoring Report at 26, Table 1.12 (2021),
    https://docs.fcc.gov/pubId.lic/attachments/DOC-379181A1.pdf.
    \21\ Id.
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    13. Cable Companies and Systems (Rate Regulation). The Commission 
has developed its own small business size standard for the purpose of 
cable rate regulation. Under the Commission's rules, a ``small cable 
company'' is one serving 400,000 or fewer subscribers nationwide.\22\ 
Based on industry data, there are about 420 cable companies in the 
U.S.\23\ Of these, only five have more than 400,000 subscribers.\24\ In 
addition, under the Commission's rules, a ``small system'' is a cable 
system serving 15,000 or fewer subscribers.\25\ Based on industry data, 
there are about 4,139 cable systems (headends) in the U.S.\26\ Of 
these, about 639 have more than 15,000 subscribers.\27\ Accordingly, 
the Commission estimates that the majority of cable companies and cable 
systems are small.
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    \22\ 47 CFR 76.901(d).
    \23\ S&P Global Market Intelligence, S&P Capital IQ Pro, U.S. 
MediaCensus, Operator Subscribers by Geography (last visited May 26, 
2022).
    \24\ S&P Global Market Intelligence, S&P Capital IQ Pro, Top 
Cable MSOs 12/21Q (last visited May 26, 2022).
    \25\ 47 CFR 76.901(c).
    \26\ S&P Global Market Intelligence, S&P Capital IQ Pro, U.S. 
MediaCensus, Operator Subscribers by Geography (last visited May 26, 
2022).
    \27\ S&P Global Market Intelligence, S&P Capital IQ Pro, Top 
Cable MSOs 12/21Q (last visited May 26, 2022).
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    14. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, contains a size standard for a 
``small cable operator,''

[[Page 45291]]

which is ``a cable operator that, directly or through an affiliate, 
serves in the aggregate fewer than one percent of all subscribers in 
the United States and is not affiliated with any entity or entities 
whose gross annual revenues in the aggregate exceed $250,000,000.'' 
\28\ For purposes of the Telecom Act Standard, the Commission 
determined that a cable system operator that serves fewer than 677,000 
subscribers, either directly or through affiliates, will meet the 
definition of a small cable operator based on the cable subscriber 
count established in a 2001 Public Notice.\29\ Based on industry data, 
only four cable system operators have more than 677,000 
subscribers.\30\ Accordingly, the Commission estimates that the 
majority of cable system operators are small under this size standard. 
We note however, that the Commission neither requests nor collects 
information on whether cable system operators are affiliated with 
entities whose gross annual revenues exceed $250 million.\31\ 
Therefore, we are unable at this time to estimate with greater 
precision the number of cable system operators that would qualify as 
small cable operators under the definition in the Communications Act.
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    \28\ 47 U.S.C. 543(m)(2).
    \29\ FCC Announces New Subscriber Count for the Definition of 
Small Cable Operator, Public Notice, 16 FCC Rcd 2225 (CSB 2001) 
(2001 Subscriber Count PN). In this Public Notice, the Commission 
determined that there were approximately 67.7 million cable 
subscribers in the United States at that time using the most 
reliable source publicly available. Id. We recognize that the number 
of cable subscribers changed since then and that the Commission has 
recently estimated the number of cable subscribers to be 
approximately 48.6 million. See Communications Marketplace Report, 
GN Docket No. 20-60, 2020 Communications Marketplace Report, 36 FCC 
Rcd 2945, 3049, para. 156 (2020) (2020 Communications Marketplace 
Report). However, because the Commission has not issued a public 
notice subsequent to the 2001 Subscriber Count PN, the Commission 
still relies on the subscriber count threshold established by the 
2001 Subscriber Count PN for purposes of this rule. See 47 CFR 
76.901(e)(1).
    \30\ S&P Global Market Intelligence, S&P Capital IQ Pro, Top 
Cable MSOs 12/21Q (last visited May 26, 2022).
    \31\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's 
finding that the operator does not qualify as a small cable operator 
pursuant to Sec.  76.901(e) of the Commission's rules. See 47 CFR 
76.910(b).
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    15. Direct Broadcast Satellite (``DBS'') Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. DBS is included in the Wired 
Telecommunications Carriers industry which comprises establishments 
primarily engaged in operating and/or providing access to transmission 
facilities and infrastructure that they own and/or lease for the 
transmission of voice, data, text, sound, and video using wired 
telecommunications networks.\32\ Transmission facilities may be based 
on a single technology or combination of technologies.\33\ 
Establishments in this industry use the wired telecommunications 
network facilities that they operate to provide a variety of services, 
such as wired telephony services, including VoIP services, wired 
(cable) audio and video programming distribution; and wired broadband 
internet services.\34\ By exception, establishments providing satellite 
television distribution services using facilities and infrastructure 
that they operate are included in this industry.\35\
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    \32\ See U.S. Census Bureau, 2017 NAICS Definition, ``517311 
Wired Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
    \33\ Id.
    \34\ See id. Included in this industry are: broadband internet 
service providers (e.g., cable, DSL); local telephone carriers 
(wired); cable television distribution services; long-distance 
telephone carriers (wired); closed-circuit television (CCTV) 
services; VoIP service providers, using own operated wired 
telecommunications infrastructure; direct-to-home satellite system 
(DTH) services; telecommunications carriers (wired); satellite 
television distribution systems; and multichannel multipoint 
distribution services (MMDS).
    \35\ Id.
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    16. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small.\36\ U.S. Census Bureau data for 2017 show that 
3,054 firms operated in this industry for the entire year.\37\ Of this 
number, 2,964 firms operated with fewer than 250 employees.\38\ Based 
on this data, the majority of firms in this industry can be considered 
small under the SBA small business size standard. According to 
Commission data however, only two entities provide DBS service--DIRECTV 
(owned by AT&T) and DISH Network, which require a great deal of capital 
for operation.\39\ DIRECTV and DISH Network both exceed the SBA size 
standard for classification as a small business. Therefore, we must 
conclude based on internally developed Commission data, in general DBS 
service is provided only by large firms.
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    \36\ See 13 CFR 121.201, NAICS Code 517311.
    \37\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Selected Sectors: Employment Size of Firms for the U.S.: 
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
    \38\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard.
    \39\ See Annual Assessment of the Status of Competition in the 
Market for the Delivery of Video Programming, Eighteenth Report, 
Table III.A.5, 32 FCC Rcd 568, 595 (Jan. 17, 2017).
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    17. Open Video Services. The open video system (OVS) framework was 
established in 1996 and is one of four statutorily recognized options 
for the provision of video programming services by local exchange 
carriers. The OVS framework provides opportunities for the distribution 
of video programming other than through cable systems. OVS operators 
provide subscription services and therefore fall within the SBA small 
business size standard for the cable services industry, which is 
``Wired Telecommunications Carriers.'' \40\ The SBA small business size 
standard for this industry classifies firms having 1,500 or fewer 
employees as small.\41\ U.S. Census Bureau data for 2017 show that 
there were 3,054 firms in this industry that operated for the entire 
year.\42\ Of this total, 2,964 firms operated with fewer than 250 
employees.\43\ Thus, under the SBA size standard the majority of firms 
in this industry can be considered small. Additionally, we note that 
the Commission has certified some OVS operators who are now providing 
service and broadband service providers (BSPs) are currently the only 
significant holders of OVS certifications or local OVS franchises. The 
Commission does not have financial or employment information for the 
entities authorized to provide OVS however, the Commission believes 
some of the OVS operators may qualify as small entities.
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    \40\ See U.S. Census Bureau, 2017 NAICS Definition, ``517311 
Wired Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
    \41\ See 13 CFR 121.201, NAICS Code 517311.
    \42\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Selected Sectors: Employment Size of Firms for the U.S.: 
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
    \43\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard.
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    18. Wireless Cable Systems--Broadband Radio Service and Educational 
Broadband Service. Wireless cable systems use the Broadband Radio 
Service (BRS) \44\ and

[[Page 45292]]

Educational Broadband Service (EBS) \45\ to transmit video programming 
to subscribers. In connection with the 1996 BRS auction, the Commission 
established a small business size standard as an entity that had annual 
average gross revenues of no more than $40 million in the previous 
three calendar years.\46\ The BRS auctions resulted in 67 successful 
bidders obtaining licensing opportunities for 493 Basic Trading Areas 
(BTAs). Of the 67 auction winners, 61 met the definition of a small 
business. BRS also includes licensees of stations authorized prior to 
the auction. At this time, we estimate that of the 61 small business 
BRS auction winners, 48 remain small business licensees. In addition to 
the 48 small businesses that hold BTA authorizations, there are 
approximately 392 incumbent BRS licensees that are considered small 
entities.\47\ After adding the number of small business auction 
licensees to the number of incumbent licensees not already counted, we 
find that there are currently approximately 440 BRS licensees that are 
defined as small businesses under either the SBA or the Commission's 
rules. In 2009, the Commission conducted Auction 86, the sale of 78 
licenses in the BRS areas.\48\ The Commission offered three levels of 
bidding credits: (i) a bidder with attributed average annual gross 
revenues that exceed $15 million and do not exceed $40 million for the 
preceding three years (small business) received a 15 percent discount 
on its winning bid; (ii) a bidder with attributed average annual gross 
revenues that exceed $3 million and do not exceed $15 million for the 
preceding three years (very small business) received a 25 percent 
discount on its winning bid; and (iii) a bidder with attributed average 
annual gross revenues that do not exceed $3 million for the preceding 
three years (entrepreneur) received a 35 percent discount on its 
winning bid.\49\ Auction 86 concluded in 2009 with the sale of 61 
licenses.\50\ Of the 10 winning bidders, two bidders that claimed small 
business status won four licenses; one bidder that claimed very small 
business status won three licenses; and two bidders that claimed 
entrepreneur status won six licenses.
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    \44\ BRS was previously referred to as Multipoint Distribution 
Service (MDS) and Multichannel Multipoint Distribution Service 
(MMDS). See Amendment of Parts 21 and 74 of the Commission's Rules 
with Regard to Filing Procedures in the Multipoint Distribution 
Service and in the Instructional Television Fixed Service and 
Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, Report and Order, 10 FCC Rcd 9589, 9593, para. 
7 (1995).
    \45\ EBS was previously referred to as the Instructional 
Television Fixed Service (ITFS). See id.
    \46\ 47 CFR 27.1213(a).
    \47\ 47 U.S.C. 309(j). Hundreds of stations were licensed to 
incumbent MDS licensees prior to implementation of section 309(j) of 
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-
auction licenses, the applicable standard is SBA's small business 
size standard of 1,500 or fewer employees.
    \48\ Auction of Broadband Radio Service (BRS) Licenses, 
Scheduled for October 27, 2009, Notice and Filing Requirements, 
Minimum Opening Bids, Upfront Payments, and Other Procedures for 
Auction 86, Public Notice, 24 FCC Rcd 8277 (2009).
    \49\ Id. at 8296.
    \50\ Auction of Broadband Radio Service Licenses Closes, Winning 
Bidders Announced for Auction 86, Down Payments Due November 23, 
2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny 
Period, Public Notice, 24 FCC Rcd 13572 (2009).
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    19. In addition, the SBA's placement of Cable Television 
Distribution Services in the category of Wired Telecommunications 
Carriers is applicable to cable-based Educational Broadcasting 
Services. Since 2007, these services have been defined within the broad 
economic census category of Wired Telecommunications Carriers, which 
was developed for small wireline businesses. This category is defined 
in paragraph 6, supra. The SBA has developed a small business size 
standard for Wired Telecommunications Carriers, which consists of all 
such companies having 1,500 or fewer employees.\51\ Census data for 
2017 shows that there were 3,054 firms that operated that year. Of this 
total, 2,964 operated with fewer than 250 employees.\52\ Thus, under 
this size standard, the majority of firms in this industry can be 
considered small. In addition to Census data, the Commission's internal 
records indicate that as of August 2021, there are 2,451 active EBS 
licenses.\53\ The Commission estimates that of these 2,451 licenses, 
the majority are held by non-profit educational institutions and school 
districts, which are by statute defined as small businesses.\54\
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    \51\ 13 CFR 121.201, NAICS Code 517311.
    \52\ United States Census Bureau, Selected Sectors: Employment 
Size of Firms for the U.S. 2017, TableID EC1700SIZEEMPFIRM (2017), 
https://data.census.gov/cedsci/table?q=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM (last visited Aug. 
9, 2021).
    \53\ FCC, Universal Licensing System, https://wireless2.fcc.gov/UlsApp/UlsSearch/results.jsp (under ``Advanced License Search'' 
option, select ``ED--Educational Broadband Service,'' ``Active'' and 
``Regular'' License, and ``Exclude Leases'' to see search results).
    \54\ The term ``small entity'' within SBREFA applies to small 
organizations (non-profits) and to small governmental jurisdictions 
(cities, counties, towns, townships, villages, school districts, and 
special districts with populations of less than 50,000). 5 U.S.C. 
601(4)-(6).
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    20. Incumbent Local Exchange Carriers (ILECs) and Small Incumbent 
Local Exchange Carriers. Neither the Commission nor the SBA have 
developed a small business size standard specifically for incumbent 
local exchange carriers. Wired Telecommunications Carriers \55\ is the 
closest industry with a SBA small business size standard.\56\ The SBA 
small business size standard for Wired Telecommunications Carriers 
classifies firms having 1,500 or fewer employees as small.\57\ U.S. 
Census Bureau data for 2017 show that there were 3,054 firms in this 
industry that operated for the entire year.\58\ Of this number, 2,964 
firms operated with fewer than 250 employees.\59\ Additionally, based 
on Commission data in the 2021 Universal Service Monitoring Report, as 
of December 31, 2020, there were 1,227 providers that reported they 
were incumbent local exchange service providers.\60\ Of these 
providers, the Commission estimates that 929 providers have 1,500 or 
fewer employees.\61\ Consequently, using the SBA's small business size 
standard, the Commission estimates that the majority of incumbent local 
exchange carriers can be considered small entities.
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    \55\ See U.S. Census Bureau, 2017 NAICS Definition, ``517311 
Wired Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
    \56\ See 13 CFR 121.201, NAICS Code 517311.
    \57\ Id.
    \58\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Selected Sectors: Employment Size of Firms for the U.S.: 
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
    \59\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard.
    \60\ Federal-State Joint Board on Universal Service, Universal 
Service Monitoring Report at 26, Table 1.12 (2021), https://docs.fcc.gov/public/attachments/DOC-379181A1.pdf.
    \61\ Id.
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    21. Competitive Local Exchange Carriers (CLECs), Competitive Access 
Providers (CAPs), Shared-Tenant Service Providers, and Other Local 
Service Providers. Neither the Commission nor the SBA has developed a 
size standard for small businesses specifically applicable to local 
exchange services. Providers of these services include several types of 
competitive local exchange service providers.\62\ Wired 
Telecommunications Carriers \63\ is the closest industry with a SBA 
small business size standard. The SBA small business size standard for 
Wired

[[Page 45293]]

Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small.\64\ U.S. Census Bureau data for 2017 show that 
there were 3,054 firms that operated in this industry for the entire 
year.\65\ Of this number, 2,964 firms operated with fewer than 250 
employees.\66\ Additionally, based on Commission data in the 2021 
Universal Service Monitoring Report, as of December 31, 2020, there 
were 3,956 providers that reported they were competitive local exchange 
service providers.\67\ Of these providers, the Commission estimates 
that 3,808 providers have 1,500 or fewer employees.\68\ Consequently, 
using the SBA's small business size standard, most of these providers 
can be considered small entities.
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    \62\ Competitive Local Exchange Service Providers include the 
following types of providers: Competitive Access Providers (CAPs) 
and Competitive Local Exchange Carriers (CLECs), Cable/Coax CLECs, 
Interconnected VOIP Providers, Non-Interconnected VOIP Providers, 
Shared-Tenant Service Providers, Audio Bridge Service Providers, 
Local Resellers, and Other Local Service Providers.
    \63\ See U.S. Census Bureau, 2017 NAICS Definition, ``517311 
Wired Telecommunications Carriers,'' https://www.census.gov/naics/?input=517311&year=2017&details=517311.
    \64\ See 13 CFR 121.201, NAICS Code 517311.
    \65\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Selected Sectors: Employment Size of Firms for the U.S.: 
2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517311, https://data.census.gov/cedsci/table?y=2017&n=517311&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=false.
    \66\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard.
    \67\ Federal-State Joint Board on Universal Service, Universal 
Service Monitoring Report at 26, Table 1.12 (2021), https://docs.fcc.gov/pubId.lic/attachments/DOC-379181A1.pdf.
    \68\ Id.
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    22. Television Broadcasting. This industry is comprised of 
``establishments primarily engaged in broadcasting images together with 
sound.'' \69\ These establishments operate television broadcast studios 
and facilities for the programming and transmission of programs to the 
public.\70\ 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 small business size standard 
for this industry classifies businesses having $41.5 million or less in 
annual receipts as small.\71\ 2017 U.S. Census Bureau data indicate 
that 744 firms in this industry operated for the entire year.\72\ Of 
that number, 657 firms had revenue of less than $25,000,000.\73\ Based 
on this data we estimate that the majority of television broadcasters 
are small entities under the SBA small business size standard.
---------------------------------------------------------------------------

    \69\ See U.S. Census Bureau, 2017 NAICS Definition, ``515120 
Television Broadcasting,'' https://www.census.gov/naics/?input=515120&year=2017&details=515120.
    \70\ Id.
    \71\ See 13 CFR 121.201, NAICS Code 515120.
    \72\ See U.S. Census Bureau, 2017 Economic Census of the United 
States, Selected Sectors: Sales, Value of Shipments, or Revenue Size 
of Firms for the U.S.: 2017, Table ID: EC1700SIZEREVFIRM, NAICS Code 
515120,https://data.census.gov/cedsci/table?y=2017&n=515120&tid=ECNSIZE2017.EC1700SIZEREVFIRM&hidePreview=false.
    \73\ Id. The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA 
size standard. We also note that according to the U.S. Census Bureau 
glossary, the terms receipts and revenues are used interchangeably, 
see https://www.census.gov/glossary/#term_ReceiptsRevenueServices.
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    23. The Commission estimates that as of March 2022, there were 
1,373 licensed commercial television stations.\74\ Of this total, 1,280 
stations (or 93.2%) had revenues of $41.5 million or less in 2021, 
according to Commission staff review of the BIA Kelsey Inc. Media 
Access Pro Television Database (BIA) on June 1, 2022, and therefore 
these licensees qualify as small entities under the SBA definition. In 
addition, the Commission estimates as of March 2022, there were 384 
licensed noncommercial educational (NCE) television stations, 383 Class 
A TV stations, 1,840 LPTV stations and 3,231 TV translator 
stations.\75\ The Commission however does not compile, and otherwise 
does not have access to financial information for these television 
broadcast stations that would permit it to determine how many of these 
stations qualify as small entities under the SBA small business size 
standard. Nevertheless, given the SBA's large annual receipts threshold 
for this industry and the nature of these television station licensees, 
we presume that all of these entities qualify as small entities under 
the above SBA small business size standard.
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    \74\ Broadcast Station Totals as of March 31, 2022, Public 
Notice, DA 22-365 (rel. April 5, 2022) (March 2022 Broadcast Station 
Totals PN), https://www.fcc.gov/document/broadcast-station-totals-march-31-2022.
    \75\ Id.
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    24. We note, however, that in assessing whether a business concern 
qualifies as ``small'' under the above definition, business (control) 
affiliations \76\ 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.
---------------------------------------------------------------------------

    \76\ ``[Business concerns] are affiliates of each other when one 
concern controls or has the power to control the other or a third 
party or parties controls or has the power to control both.'' 13 CFR 
121.103(a)(1).
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    25. There are also 386 Class A stations.\77\ Given the nature of 
these services, the Commission presumes that all of these stations 
qualify as small entities under the applicable SBA size standard. In 
addition, there are 1,985 LPTV stations and 3,306 TV translator 
stations.\78\ Given the nature of these services as secondary and in 
some cases purely a ``fill-in'' service, we will presume that all of 
these entities qualify as small entities under the above SBA small 
business size standard.
---------------------------------------------------------------------------

    \77\ Supra note 60 (discussing broadcast station totals as of 
March 31, 2021).
    \78\ Id.
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4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    26. The NPRM proposes adoption of an amendment to our rules that 
codifies the fact that Nielsen Media Research no longer publishes the 
Annual Station Index and has replaced it with the Local TV Report. 
Parties will be required to reference this commercial publication to 
determine DMA assignments for stations involved in the carriage 
election process.
5. Steps Taken To Minimize Significant Impact on Small Entities and 
Significant Alternatives Considered
    27. 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.\79\
---------------------------------------------------------------------------

    \79\ 5 U.S.C. 603(c).
---------------------------------------------------------------------------

    28. These proposals would not impose a negative economic impact on 
any small entities because they impose no additional obligations on any 
entities. Commission regulations currently require that the Annual 
Station Index and Household Estimates ``or its successor publication'' 
be used for the purpose of determining a local

[[Page 45294]]

broadcast station's DMA. Given that the Annual Station Index will no 
longer be published by Nielsen, this proceeding will simply identify 
the ``successor publication'' parties are already required to consult. 
Nielsen has stated that the relevant information in the Local TV Report 
is the same as that previously contained in the Annual Station Index, 
so the process of accessing the information should not be any more 
burdensome. The proposed rules therefore will not result in any 
substantive change in the existing requirements for small entities.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    29. None.

V. Initial Paperwork Reduction Act Analysis

    30. This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA).\80\ 
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.\81\
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    \80\ The Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13, 109 Stat 163 (1995) (codified in Chapter 35 of title 44 U.S.C.).
    \81\ The Small Business Paperwork Relief Act of 2002 (SBPRA), 
Public Law 107-198, 116 Stat. 729 (2002) (codified in Chapter 35 of 
title 44 U.S.C.). See 44 U.S.C. 3506(c)(4).
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A. Ex Parte Rules--Permit-But-Disclose

    31. This proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules.\82\ 
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). In proceedings governed by 
rule 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.
---------------------------------------------------------------------------

    \82\ 47 CFR 1.1200 et seq.
---------------------------------------------------------------------------

B. Filing Requirements-Comments and Replies

    32. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules,\83\ 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).\84\
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    \83\ 47 CFR 1.415, 1419.
    \84\ Electronic Filing of Documents in Rulemaking Proceedings, 
63 FR 24121 (1998).
---------------------------------------------------------------------------

VI. Ordering Clauses

    33. It is ordered, pursuant to the authority found in the 
Communications Act of 1934, As amended, 47 U.S.C. 151, 152, 154, 303, 
325, 335, 338, 339, 340, 403, 534, this Notice of Proposed Rulemaking 
is hereby adopted and notice is hereby given of the proposals and 
tentative conclusions described in this Notice of Proposed Rulemaking.
    34. It is further ordered that the Commission's 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.

List of Subjects in 47 CFR Part 76

    Cable television, Communications, Equal employment opportunity, 
internet, Reporting and recordkeeping requirements, Satellite, and 
Telecommunications.

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 1 as follows:

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
1. The authority citation for part 76 continues to read as follows:

    Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.

0
2. Section 76.55 is amended by revising and redesignating paragraph 
(e)(2) introductory text as paragraph (e)(2)(i) and paragraph (e)(2)(i) 
as paragraph (e)(2)(ii) to read as follows:


Sec.  76.55  Definitions applicable to the must-carry rules.

* * * * *
    (e) * * *
    (2) A commercial broadcast station's market, unless amended 
pursuant to Sec.  76.59, shall be defined as its Designated Market Area 
(DMA) as determined by Nielsen Media Research and published in its 
Nielsen Local TV Station Information Report or any successor 
publications.
    (i) The applicable DMA list for the 2023 election pursuant to Sec.  
76.64(f) will be the DMA assignments specified in the Nielsen October 
2021 Local TV Station Information Report, and so forth using the 
publications for the October two years prior to each triennial election 
pursuant to Sec.  76.64(f).
    (ii) [Removed and Reserved]
* * * * *
0
3 . Section 76.66 is amended by revising paragraphs (e)(2) and (3) to 
read as follows:


Sec.  76.66  Satellite broadcast signal carriage.

* * * * *
    (e) * * *
    (2) A designated market area is the market area, as determined by 
Nielsen Media Research and published in the 1999-2000 Nielsen Station 
Index Directory and Nielsen Station Index United States Television 
Household Estimates, the October 2021 Nielsen Local TV Station 
Information Report, or any successor publication. In the case of areas 
outside of any designated market area, any census area, borough, or 
other area in the State of Alaska that is outside of a designated 
market area, as

[[Page 45295]]

determined by Nielsen Media Research, shall be deemed to be part of one 
of the local markets in the State of Alaska.
    (3) A satellite carrier shall use the October 2021 Nielsen Local TV 
Station Information Report for the retransmission consent-mandatory 
carriage election cycle commencing on January 1, 2024 and ending on 
December 31, 2027. The October 2024 Nielsen Local TV Station 
Information Report shall be used for the retransmission consent-
mandatory carriage election cycle commencing January 1, 2028 and ending 
December 31, 2030, and so forth using the publications for the October 
two years prior to each triennial election pursuant to this section. 
Provided, however, that a county deleted from a market by Nielsen need 
not be subtracted from a market in which a satellite carrier provides 
local-into-local service, if that county is assigned to that market in 
the 1999-2000 Nielsen Station Index Directory or any subsequent issue 
of that publication, or the Local TV Station Information Report 
commencing with October 2021, and every three years thereafter (i.e., 
October 2024, October 2027, etc.). A satellite carrier may determine 
which local market in the State of Alaska will be deemed to be the 
relevant local market in connection with each subscriber in an area in 
the State of Alaska that is outside of a designated market, as 
described in paragraph (e)(2) of this section.
* * * * *
[FR Doc. 2022-16248 Filed 7-27-22; 8:45 am]
BILLING CODE 6712-01-P