AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule; proposed action.

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 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 fcc504@fcc.gov 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, Amy.Vandekerckhove@fcc.gov; James Bradshaw, James.Bradshaw@fcc.gov; or Lisa Scanlan, Lisa.Scanlan@fcc.gov, of the Media Bureau, Audio Division, (202) 418-2700. Direct press inquiries to Janice Wise, Janice.Wise@fcc.gov, (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 (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.

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

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

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.

2. Section 73.503 is amended by adding paragraph (g) to read as follows: