[Federal Register Volume 87, Number 155 (Friday, August 12, 2022)]
[Rules and Regulations]
[Pages 49769-49771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17337]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 22-240; DA 22-662; FR ID 97781]


Class D FM Station Exemptions

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Media Bureau (Bureau) of the Federal 
Communications Commission (Commission or FCC) adopts changes to its 
public inspection file rules to reinstate the text of an explanatory 
note that was inadvertently deleted from the Code of Federal 
Regulations. The note clarified that Class D FM stations, or stations 
whose programming is wholly ``Instructional,'' are exempt from the 
requirement to maintain issues and programs lists in their public 
inspection file. Reinstatement of this explanatory text will provide 
clarity to regulatees as to their public inspection file obligations.

DATES: Effective September 12, 2022.

FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Chief, Media Bureau, 
Audio Division, (202) 418-2721; Alexander Sanjenis, Assistant Division 
Chief, Media Bureau, Audio Division, (202) 418-2779.

[[Page 49770]]


SUPPLEMENTARY INFORMATION: This is a summary of the Media Bureau's 
Order (Order), MB Docket No. 22-240; DA 22-662, adopted and released on 
June 22, 2022. The full text of this document will be available via the 
FCC's Electronic Comment Filing System (ECFS), https://www.fcc.gov/cgb/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).

Paperwork Reduction Act of 1995 Analysis

    This document does not contain any new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13, see 44 U.S.C. 3507.
    Therefore, it does not contain any new or modified information 
collection burdens for small business concerns with fewer than 25 
employees, pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Congressional Review Act

    The Bureau will send a copy of this Order to Congress and the 
Government Accountability Office (GAO) pursuant to the Congressional 
Review Act, 5 U.S.C. 801(a)(1)(A).

Synopsis

    1. Introduction. In this Order, the Bureau re-codifies clarifying 
language from a Note that was inadvertently eliminated from Sec.  
73.3527 of the Commission's rules (Rules) relating to the online public 
inspection file obligations of applicants, permittees, or licensees 
whose existing or prospective facilities are Class D FM stations or 
whose programming is wholly ``Instructional'' (referred to collectively 
herein as ``Class D FM stations''). We re-codify the language as text 
in our Rules to conform to the publishing conventions of the National 
Archives and Records Administration's Office of the Federal Register. 
This amendment to the Rules does not change any regulatory obligations. 
Instead, Sec.  73.3527 will more accurately state the entities to which 
it applies, eliminating potential confusion among Class D FM stations.
    2. Section 73.3527 outlines the online public inspection file 
obligations of noncommercial educational stations. Section 
73.3527(e)(8) states that ``nonexempt noncommercial education broadcast 
stations'' are required to maintain in their online public inspection 
files a quarterly ``list of programs that have provided the station's 
most significant treatment of community issues during the preceding 
three month period.'' However, the Rule does not define ``nonexempt'' 
or provide any explanation of which stations are exempt from this 
requirement.
    3. Prior to the adoption of Sec.  73.3527, the Commission had 
clarified that Class D FM stations are exempt from the requirement that 
stations maintain in their public files a list of programs addressing 
problems in the station's community, FCC 76-234, 41 FR 12424-01 (Mar. 
25, 1976) (1976 R&O). Although the Commission required that NCE 
stations place in their public files such lists, the Commission 
codified in a Note to its Rules that ``[e]xempt licensees include those 
offering wholly instructional programming and those operating under 
Class D, 10-watt authorizations.'' In 1984, the Commission revisited 
the requirement for stations to maintain issues/programs lists, FCC 84-
294, 49 FR 33658-01 (Aug. 24, 1984) (1984 R&O). The 1984 R&O again 
noted that Class D FM stations are exempt from the issues/programs 
lists requirements due to the limited nature of the service they 
provide. Although the Commission's order highlighted the exemption for 
Class D FM stations, the actual text of the new Sec.  73.3527 
inadvertently omitted that exemption.
    4. Subsequently, the Mass Media Bureau issued an order in 1985 
noting that the exemption was inadvertently omitted from the text of 
Sec.  73.3527 but that Class D FM stations remained exempt from the 
requirement to maintain program lists (1985 Bureau Order). Accordingly, 
a Note 2 to Sec.  73.3527 was added: ``For purposes of paragraph (a)(7) 
of this section, exempt applicants, permittees or licensees include 
those whose existing or prospective facilities are Class D FM stations 
or whose programming is wholly `Instructional' '' (Class D Note). This 
revised version of Sec.  73.3527 was published in the Federal Register 
on March 4, 1985, 50 FR 8628-01 (Mar. 4, 1985). and appears in the Code 
of Federal Regulations (CFR) editions for 1985, 1986 and 1987.
    5. In 1988, the Commission again adopted an order, FCC 88-52, 53 FR 
15224 (Apr. 28, 1988), revising the retention of issues/programs lists 
in Sec.  73.3527(a)(7) (1988 Order). The 1988 Order revised the rule to 
make it consistent with a change made to the companion rule for 
commercial stations. The 1987 NPRM that preceded that order did not 
propose any change to the Class D exemption; nor did the 1988 Order 
discuss any such change. However, the Class D Note did not appear in 
the 1988 edition of the CFR, nor in any subsequent edition.
    6. Compounding the confusion created by the apparent inadvertent 
deletion of the Class D Note following the 1988 Order, the Bureau 
issued a Forfeiture Order in 2009, DA 09-590, (UMW) where it 
specifically rejected an argument that Class D FM stations are exempt 
from the issues/programs list requirement of Sec.  73.3527. Although 
UMW correctly states that the Commission did indeed make Class D FM 
stations exempt in the 1976 R&O, it incorrectly held that the 
Commission did not intend to continue that exemption in effect when it 
adopted Sec.  73.3527. UMW did not address the 1985 Bureau Order, which 
clarified that Class D FM stations are exempt from Sec.  73.3527, nor 
did it explain what stations are considered exempt from the issues/
programs list requirement.
    7. Discussion. We find that the omission of the Class D Note from 
the 1988 Order and subsequent editions of the CFR was an inadvertent 
one, unrelated to the proposal addressed in that order, and re-codify 
the exemption that relieves Class D FM stations from the requirement to 
maintain issues/programs lists in their online public inspection file. 
In reaching this determination, we are guided by the fact that the 
Commission never proposed to issue, and never issued, an order 
rescinding the Class D Note, or otherwise deleting the Class D Note 
from Sec.  73.3527. Our reinstatement of the exemption is consistent 
with the holdings in the 1976 R&O and 1984 R&O--as clarified by the 
1985 Bureau Order--that Class D FM stations should be exempt from the 
issues/programs list requirement. Accordingly, to provide clarity to 
Class D FM stations and to conform to the publishing conventions of the 
National Archives and Records Administration's Office of the Federal 
Register, we amend Sec.  73.3527(e)(8) as set out in the Appendix by 
including the text of the Class D Note.
    8. We find that notice and comment procedures are unnecessary under 
the good cause exception of the Administrative Procedure Act because 
re-codifying the inadvertently deleted text of the deleted Class D Note 
merely restores an exemption to Sec.  73.3527 that the Commission 
established and has never sought to change in subsequent rulemaking 
actions. Consequently, we find notice and comment procedures are 
unnecessary for this action.

[[Page 49771]]

    9. Finally, we disavow the Bureau's holding in UMW. As discussed 
above, the 1985 Bureau Order clearly states that Class D FM stations 
were meant to be exempted from the issues/programs lists requirement of 
Sec.  73.3527, and no subsequent Commission decision changed that 
requirement. The removal of the Class D Note from Sec.  73.3527 was not 
done pursuant to a Commission action, but rather through apparent 
inadvertence. Therefore, that exemption is still valid, and UMW 
provides an example of the importance of reflecting this exemption 
within the text of Sec.  73.3527(e)(8).

Procedural Matters

    10. Regulatory Flexibility Analysis. Because these rule changes are 
being adopted without notice and comment, the Regulatory Flexibility 
Act does not apply. See 5 U.S.C. 601(2).
    11. Paperwork Reduction Act Analysis. The document does not contain 
new or modified information collection requirements subject to the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it 
does not contain any new of modified information collection burdens 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).
    12. Congressional Review Act. The Media Bureau 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 Media 
Bureau will send a copy of this Order to Congress and the Government 
Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

Ordering Clauses

    13. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and 
319 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
154(i), 154(j), 301, 303, 307, 308, 309, 316, and 319, the Order is 
adopted and will become effective 30 days after publication in the 
Federal Register.
    14. It is further ordered that part 73 of the Commission's rules is 
amended as set forth in the Final Rules, effective as of thirty (30) 
days after the date of publication in the Federal Register.
    15. It is further ordered that the Media Bureau shall send a copy 
of the Order in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).
    16. It is further ordered that, should no petitions for 
reconsideration or petitions for judicial review be timely filed, MB 
Docket No. 22-240 shall be terminated and its docket closed.

List of Subjects in 47 CFR Part 73

    Communications equipment, Radio, Reporting and recordkeeping 
requirements, Television.

Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority citation for part 73 continues to read as follows:

    Authority:  47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 
336, 339.


0
2. Amend Sec.  73.3527 by revising the last sentence of paragraph 
(e)(8) to read as follows:


Sec.  73.3527  Online public inspection file of noncommercial 
educational stations.

* * * * *
    (e) * * *
    (8) * * * For the purposes of this section, exempt applicants, 
permittees, or licensees include those whose existing or prospective 
facilities are Class D FM stations or whose programming is wholly 
``Instructional.''
* * * * *
[FR Doc. 2022-17337 Filed 8-11-22; 8:45 am]
BILLING CODE 6712-01-P