97-25788. Certain Minor Changes in Broadcast Facilities Without a Construction Permit

[Federal Register Volume 62, Number 189 (Tuesday, September 30, 1997)]
[Rules and Regulations]
[Pages 51052-51063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25788]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 73, and 74

[MM Docket No. 96-58, FCC 97-290]

Certain Minor Changes in Broadcast Facilities Without a
Construction Permit

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Report and Order (R&O) in MM Docket No. 96-58 adopts
proposals made by the Commission in the Notice of Proposed Rulemaking
(61 FR 15439, April 8, 1996) in this proceeding to streamline the
Commission's rules and processes applicable to broadcast stations.
These rule and process changes eliminate the construction permit
requirement for certain minor changes to broadcast facilities,
replacing the present two-step construction permit/license application
process with a one-step modification-of-license application, filed
after the broadcaster has implemented the permitted changes. The types
of modifications permitted under the new process were chosen so that
interference to other facilities would not be created by the changes.
Additional rules sections were revised to make clarifications and to
conform the rules to present policy.

EFFECTIVE DATE: December 1, 1997.

FOR FURTHER INFORMATION CONTACT: Dale Bickel, Mass Media Bureau, Audio
Services Division, (202) 418-2720, or via the Internet at
dbickel@fcc.gov. For additional information concerning the information
collections contained in the R&O, contact Judy Boley at (202) 418-0214,
or via the Internet at jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is the synopsis of the Commission's
Report and Order in MM Docket No. 96-58, adopted August 14, 1997, and
released August 22, 1997. The complete text of this Report and Order,
is available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M Street, N.W., Washington,
DC, and may also be purchased from the Commission's copy contractor,
International Transcription Services, Inc., at (202) 857-3800, 1231
20th Street, N.W., Washington, DC 20036. The complete text is also
available as a Word Perfect 5.1 file through the Internet at http://
www.fcc.gov/Bureaus/Mass__Media/Orders/1997/fcc97290.wp .

Synopsis of the Report and Order

1. The rule and procedure changes adopted in the Report and Order
in MM Docket 96-58 were enabled by Congress' change, at the
Commission's request, of Section 403(m) in the Communications Act in
its Telecommunications Act of 1996. Subsequently, in the Notice of
Proposed Rulemaking, the Commission proposed to eliminate the
requirement for a construction permit in certain instances of
modifications to broadcast facilities, replacing the two-step
construction permit/application process with a single step modification
of license application, which would be filed by the permittee or
licensee of the station once the permitted modifications had been made.
2. The circumstances in which ``one step'' modifications may be
made through the filing of a license application are as follows,
briefly:
(1) Most commercial FM stations which comply with Sec. 73.207
spacing rules with respect to all other stations, and which are not
operating with the maximum permitted facilities, may increase effective
radiated power (ERP) to the maximum permitted for the station class.
(2) Commercial FM stations and most TV stations presently operating
with zero or reduced vertically polarized power, may increase the
vertically polarized ERP up to the authorized horizontal ERP without a
construction permit.
(3) Noncommercial educational FM stations presently operating with
zero or reduced vertically polarized ERP may also increase the vertical
ERP up to the authorized horizontal ERP, provided that the FM station
is not located within a specified radius of a TV Channel 6 station.
(4) Decreases in ERP will be permitted for FM stations, provided
that the required coverage to the community of license is maintained.
(5) The Sec. 73.215 contour protection designation for an FM
commercial station may be deleted where a short-spaced station has
moved away, allowing the contour protection station to become licensed
per Sec. 73.207.
(6) If an FM or TV antenna is replaced, or for installation of a
new antenna, the applicant may mount the antenna up to 2 meters above
or 4 meters below the value specified on its license or construction
permit.
(7) FM and TV directional antennas may be replaced under certain
circumstances.
(8) Former licensed main auxiliary applications for FM and TV
stations may be relicensed as auxiliary (backup)

[[Page 51053]]

facilities without a construction permit, even at changed power or
where the auxiliary facility must change frequency to match that of the
main station. AM stations may reduce power for an auxiliary facility
which was previously licensed on the same frequency as the primary
station.
(9) Commercial stations may file a modification-of-license
application to become licensed as noncommercial educational.
Conversely, some noncommercial educational stations in the commercial
FM band or television bands may become licensed as commercial via the
same means.
3. The Commission also changed several other rules sections,
discussed briefly as follows:
(1) FM directional stations may commence program test operations at
half power while awaiting staff review of the license application. This
eliminates a 10 day wait between final installation of the antenna and
the start of operations.
(2) Requests for waiver of the main studio rule (47 CFR 73.1125)
may be submitted by letter, eliminating the requirement for a Form 301
or Form 340 construction permit application.
(3) A new rule 47 CFR 73.316(c)(9) is added to codify the policy
which requires that the measured FM directional pattern be at least 85%
of the authorized composite FM directional pattern for contour
protection stations authorized under Secs. 73.215 or 73.509.
(4) A new rule 47 CFR 73.1692 is added which will codify the
current conditions imposed on construction permits for AM, FM, and TV
stations which are authorized to construct on or near AM stations.
(5) A new rule 47 CFR 73.525(e)(1)(vii) is added to address the
matter of FM noncommercial educational stations which propose to locate
very near (within the 90 dBu contour) of a TV Channel 6 station.
4. The rules set forth in the Report and Order are intended to
reduce the amount of processing time, cost, and burden on both
applicants and the Commission. By eliminating the construction permit
requirement for the circumstances described in the previous paragraph,
an applicant can save the 4 months' minor change construction permit
application time, as well as several hundred dollars in processing fees
in addition to the costs inherent in preparing the application.

Final Paperwork Reduction Act of 1995 Analysis

5. This Report and Order contains new or modified information
collections subject to the Paperwork Reduction Act of 1995 (``PRA'').
It has been submitted to the Office of Management and Budget (``OMB'')
for review under the PRA.
6. This Report and Order eliminates the requirement for a minor
change application in several instances of minor changes to broadcast
facilities for which approval was almost automatic under the existing
process, and in which the elimination of the construction permit would
be unlikely to have an adverse impact on existing broadcast stations.
These changes will cause revisions in the following collections:
OMB Approval Number: 3060-0506.
Title: Application for FM Broadcast Station License.
Form No.: FCC 302-FM.
Type of Review: Revision of a currently approved collection.
Respondents: Businesses or other for-profit, not-for-profit
institutions.
Number of Respondents: 757.
Estimated time per response: 4 hours--33 hours (This time varies
depending on the type of application filed. This collection is
contracted out to communications attorneys and consulting engineers for
completion of the form.).
Total annual burden: 2,082.
Needs and Uses:
7. Licensees and permittees of FM broadcast stations are required
to file FCC Form 302-FM to obtain a new or modified station license,
and/or to notify the Commission of certain changes in the licensed
facilities of these stations.
8. On August 14, 1997 the Commission adopted a Report and Order in
MM Docket No. 96-58 which adopted the changes as proposed in the NPRM
and as approved by OMB on July 2, 1996. Additionally, the Commission
adopted revisions to the FCC Form 302-FM. The revisions for FCC 302-FM
are contained in Appendix C of the Report and Order. Until such times
as the forms are revised to incorporate this information, applicants
using the one-step licensing process must file this supplement with the
FCC 302-FM.
9. The data is used by FCC staff to confirm that the station has
been built to terms specified in the outstanding construction permit,
and to update FCC station files. Data is then extracted from FCC 302-FM
for inclusion in the subsequent license to operate the station.
Applications using the new one-step process will be reviewed to ensure
that the minor changes made by the station will not have any
significant impact on other stations and the public.
OMB Approval Number: 3060-0029.
Title: Application for TV Broadcast Station License.
Form No.: FCC 302-TV.
Type of Review: Revision of a currently approved collection.
Respondents: Businesses or other for-profit, not-for-profit
institutions.
Number of Respondents: 83.
Estimated time per response: 21 hours--29 hours (This time varies
depending of the type of application filed. This collection is
contracted out to communications attorneys and consulting engineers for
completion of the form.).
Total annual burden: 210.
Needs and Uses:
10. Licensees and permittees of FM broadcast stations are required
to file FCC Form 302-TV to obtain a new or modified station license,
and/or to notify the Commission of certain changes in the licensed
facilities of these stations.
11. On August 14, 1997 the Commission adopted a Report and Order in
MM Docket No. 96-58 which adopted the changes as proposed in the NPRM
and as approved by OMB on July 2, 1996. Additionally, the Commission
adopted revisions to the FCC Form 302-TV. The revisions for FCC 302-TV
are contained in Appendix D of the Report and Order. Until such times
as the forms are revised to incorporate this information, applicants
using the one-step licensing process must file this supplement with the
FCC 302-TV.
12. The data is used by FCC staff to confirm that the station has
been built to terms specified in the outstanding construction permit,
and to update FCC station files. Data is then extracted from FCC 302-TV
for inclusion in the subsequent license to operate the station.
Applications using the new one-step process will be reviewed to ensure
that the minor changes made by the station will not have any
significant impact on other stations and the public.
OMB Approval Number: 3060-0171.
Title: Section 73.1125--Station main studio location.
Form No.: None.
Type of Review: Revision of a currently approved collection.
Respondents: Businesses or other for-profit, not-for-profit
institutions.
Number of Respondents: 155.
Estimated time per response: 0.5 hours--5 hours (This time varies
depending of the type of application filed. The waiver request is
contracted out to communications attorneys and consulting engineers for
completion of the form.).
Total annual burden: 108.
Needs and Uses:
13. Section 73.1125(a) requires AM, FM or TV licensees to locate
their main studio at any point within the station's

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principal community contours. If the station relocates its main studio
from one point to another within the principal community contour or
from a point outside the principal community contour to one within it,
the licensee is required to notify the FCC pursuant to
Sec. 73.1125(b)(1).
14. On August 14, 1997 the Commission adopted a Report and Order in
MM Docket No. 96-58 which adopted the changes as proposed in the NPRM
and as approved by OMB on July 2, 1996. The revision to
Sec. 73.1125(b)(2) will eliminate the delay and expense of completing
the construction permit application and will enable licensees/
permittees to make this change with minimal delay.
15. The notification required by Sec. 73.1125(b)(1) is used by FCC
staff to assure that the station main studio is located within the
principal community contour and many times serves to notify us of a
change in the mailing address. The data received as justification for
waiver of Sec. 73.1125(b)(2) will enable FCC staff to determine whether
the circumstances are sufficient to warrant waiver of the Commission's
main

Final Regulatory Flexibility Analysis

16. As required by the Regulatory Flexibility Act, 5 U.S.C. Section
603 (``RFA''), ¹ an Initial Regulatory Flexibility Analysis
(``IRFA'') was incorporated in Amendment of Parts 73 and 74 of the
Commission's Rules to Permit Certain Minor Changes Without A
Construction Permit. ² The Commission sought written public
comments on the proposals in the NPRM, including on the IRFA. The
Commission's Final Regulatory Flexibility Analysis (FRFA) in this
Report and Order conforms to the RFA as amended. ³
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\1\ See 47 U.S.C. Section 603.
\2\ Notice of Proposed Rulemaking in MM Docket No. 96-58, 11 FCC
Rcd 8800, 61 FR 15439 (April 8, 1996).
\3\ See 5 U.S.C. Section 604. The Regulatory Flexibility Act,
see 5 U.S.C. Section 601 et. seq. has been amended by the Contract
With America Advancement Act of 1996, Public Law 104-104, 110 Stat.
847 (1996) (``CWAAA''). Title II of the CWAAA is the Small Business
Regulatory Enforcement Act of 1996 (``SBREFA'').
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A. Need For and Objectives of the Proposed Rules:

17. The Commission's Rules currently require a construction permit
for virtually all minor changes to AM, FM, and TV broadcast stations.
This procedure was required by Section 319(d) of the Communications
Act. In 1996, at the request of the Commission, Congress modified
Section 319(d) in the Telecommunications Act of 1996, Pub. L. 104-104,
110 Stat. 56 (1996), to eliminate the prohibition against waiving the
permit requirement for applicants wanting to make minor changes to
broadcast station facilities.⁴ The Commission therefore
proposed revisions to its broadcast regulations to replace, in certain
instances, the two step construction permit-license process with a
single step licensing procedure.
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\4\ Section 319(d) has been modified to read in relevant part as
follows: ``With respect to any broadcasting station, the Commission
shall not have authority to waive the requirement of a permit for
construction, except that the Commission may by regulation determine
that a permit shall not required for minor changes in the facilities
of authorized broadcast stations.'' Public Law 104-104, Section
403(m), 110 Stat 56 (1996).
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18. By making these changes, the present four month period
presently required to process and grant a construction permit will be
eliminated for those applicants choosing to use these new procedures.
In addition, the present minor change application filing fee (presently
$690.00) will not be required from applicants for one-step license
applications, thereby easing the financial burden for simple changes.
The changes will also expedite new and improved service to the public,
with minimal impact on existing stations. The specified changes may be
made without prior authorization from the Commission; however, it is
the licensee's or permittee's responsibility to determine whether the
particular installation complies with the Commission's rules and
regulations. The circumstances in which the Commission will permit the
filing of one-step licensing applications are listed in 47 CFR
73.1690(c).
B. Summary of Significant Issues Raised by the Public Comments in
Response to the IFRA.
19. No comments were received specifically in response to the IFRA
contained in the Notice of Proposed Rulemaking. However, commenters did
address the effects of the proposed rule changes on FM and TV
licensees, including small businesses. Generally, commenters favored
the rule changes proposed, with minor changes, some of which have been
incorporated into the rules specified in the Appendix. See Comments at
paragraphs 8, 14, 17, 23, 26, 28-29, 34, 38, 43-46, 48, 52, 55-58, 66,
68, 73, 75, 77, 80, 83 and 85 of the Report and Order.

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

20. Definition of a ``Small Business''. The RFA generally defines
``small entity'' as having the same meaning as the terms ``small
organizations'', ``small businesses'', and ``small governmental
jurisdictions'', and the same meaning as the term ``small business
concern'' under the Small Business Act, unless the Commission has
developed one or more definitions that are appropriate for its
activities.⁵ 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
Small Business Administration (``SBA'').⁶ According to the
SBA's regulations, entities engaged in radio or television broadcasting
(Standard Industrial Classification (``SIC'') Code 4833 for television
and 4832 for radio) may have a maximum of $5.0 million or $10.5
million, respectively, in annual receipts in order to qualify as a
small business concern.⁷ 13 CFR 121.201. This standard also
applies in determining whether an entity is a small business for
purposes of the RFA.
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\5\ Small Business Act, 15 U.S.C. Section 632 (1996).
\6\ 5 U.S.C. Section 601(b) (incorporating by reference the
definition of ``small business concern'' in 15 U.S.C. Section 632).
Pursuant to 5 U.S.C. Section 601(b), the statutory definition of a
small business applies ``unless an agency after consultation with
the Office of Advocacy if 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.''
\7\ This revenue cap appears to apply to noncommercial
educational television stations, as well as to commercial television
stations. See Executive Office of the President, Office of
Management and Budget, Standard Industrial Classification Manual
(1987), at 283, which describes ``Television Broadcasting Stations
(SIC Code 4833) as:
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Establishments primarily engaged in broadcasting visual programs by
television to the public, except cable and other pay television
services. Included in this industry are commercial, religious,
educational and other television stations. Also included here are
establishments primarily engaged in television broadcasting and which
produce taped television program materials.
21. Pursuant to 5 U.S.C. Section 601(3), the statutory definition
of a small business applies ``unless an agency after consultation with
the Office of Advocacy of the SBA 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.'' ⁸ While we believe
that the

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foregoing definition of ``small business'' greatly overstates the
number of radio and television broadcast stations that are small
businesses and is not suitable for purposes of determining the impact
of the new rules on small business, we did not propose an alternative
definition in the IRFA. Accordingly, for purposes of this Report and
Order, we utilize the SBA's definition in determining the number of
small businesses to which the rules apply, but we reserve the right to
adopt a more suitable definition of ``small business'' as applied to
radio and television broadcast stations and to consider further the
issue of the number of small entities that are radio and television
broadcasters in the future. Further, in this RFA, we will identify the
different classes of small radio and television stations that may be
impacted by the rules adopted in this Report and Order.
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\8\ While we believe that the SBA's definition of ``small
business'' greatly overstates the number of radio and television
broadcast stations that are small businesses and is not suitable for
purposes of determining the impact of the proposals on small radio
and television stations. However, for purposes of this Report and
Order, we utilize the SBA's definition in determining the number of
small businesses to which the proposed rules would apply, but we
reserve the right to to adopt a more suitable definition of ``small
business'' as applied to radio and television broadcast stations or
other entities subject to the rules adopted in this Report and Order
and to consider further the issue of the number of small entities
that are radio and television broadcasters or other small media
entities in the future. See Report and Order in MM Docket 93-48
(Children's Television Programming), 11 FCC Rcd 10660, 10737-38, 61
FR 43981 (August 27, 1996), citing 5 U.S.C. 601 (3). In our Notice
of Inquiry in GN Docket No. 96-113B, In the matter of Section 257
Proceeding to Identify and Eliminate Market Entry Barriers for Small
Businesses, 11 FCC Rcd 6280, 61 FR 33066 (June 26, 1996), we
requested commenters to provide profile data about small
telecommunications businesses in particular services, including
television and radio, and the market entry barriers they encounter,
and we also sought comment as to how to define small businesses for
purposes of implementing Section 257 of the Telecommunications Act
of 1996, which requires us to identify market entry barriers and to
prescribe regulations to eliminate those barriers. Additionally, in
our Order and Notice of Proposed Rulemaking in MM Docket 96-16, In
the Matter of Streamlining Broadcast EEO Rules and Policies,
Vacating the EEO Forfeiture Policy Statement and Amending Section
1.80 of the Commission's Rules to Include EEO Forfeiture Guidelines,
11 FCC Rcd 5154, 61 FR 9964 (March 12, 1996), we invited comment as
to whether relief should be afforded to stations: (1) based on small
staff and what size staff would be considered sufficient for relief,
e.g., 10 or fewer full-time employees; (2) based on operation in a
small market; or (3) based on operation in a market with a small
minority work force.
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22. Commercial Radio and Television Services: The proposed rules
and policies adopted in this Report and Order will apply to full
service television broadcasting licensees, radio broadcasting
licensees, potential licensees of either service and may have an effect
on FM and TV translators stations as well as low power TV stations
(``LPTV''). The rules will also apply to full service television
stations and may have an effect on TV translator facilities and low
power TV stations (``LPTV''). The SBA defines a television broadcasting
station that has no more than $10.5 million in annual receipts as a
small business.⁹ Television broadcasting stations consist of
establishments primarily engaged in broadcasting visual programs by
television to the public, except cable and other pay television
services.¹⁰ Included in this industry are commercial,
religious, educational, and other television stations.¹¹
Also included are establishments primarily engaged in television
broadcasting and which produce taped television program
materials.¹² Separate establishments primarily engaged in
producing taped television program materials are classified under
another SIC number.¹³ There were 1,509 television stations
operating in the nation in 1992.¹⁴ That number has remained
fairly constant as indicated by the approximately 1,560 operating
television broadcasting stations in the nation as of June,
1997.¹⁵ For 1992 ¹⁶ the number of television
stations that produced less than $10.0 million in revenue was 1,155
establishments.¹⁷
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\9\ 13 CFR 121.201, Standard Industrial Code (SIC) 4833 (1996).
\10\ Economics and Statistics Administration, Bureau of Census,
U.S. Department of Commerce, 1992 Census of Transportation,
Communications and Utilities, Establishment and Firm Size, Series
UC92-S-1, Appendix A-9 (1995).
\11\ Id. See Executive Office of the President, Office of
Management and Budget, Standard Industrial Classification Manual
(1987), at 283, which describes ``Television Broadcasting Stations
(SIC Code 4833) as:
Establishments primarily engaged in broadcasting visual programs
by television to the public, except cable and other pay television
services. Included in this industry are commercial, religious,
educational and other television stations. Also included here are
establishments primarily engaged in television broadcasting and
which produce taped television program materials.
\12\ Economics and Statistics Administration, Bureau of Census,
U.S. Department of Commerce, 1992 Census of Transportation,
Communications and Utilities, Establishment and Firm Size, Series
UC92-S-1, Appendix A-9 (1995).
\13\ Id. SIC 7812 (Motion Picture and Video Tape Production);
SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services
(producers of live radio and television programs).
\14\ FCC News Release No. 31327, January 13, 1993; Economics and
Statistics Administration, Bureau of Census, U.S. Department of
Commerce, supra note 78, Appendix A-9.
\15\ FCC News Release No. 75604, July 31, 1997.
\16\ Census for Communications' establishments are performed
every five years ending with a ``2'' or ``7''. See Economics and
Statistics Administration, Bureau of Census, U.S. Department of
Commerce, supra note 78, III.
\17\ The amount of $10 million was used to estimate the number
of small business establishments because the relevant Census
categories stopped at $9,999,999 and began at $10,000,000. No
category for $10.5 million existed. Thus, the number is as accurate
as it is possible to calculate with the available information.
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23. Additionally, the SBA defines a radio broadcasting station that
has no more than $5 million in annual receipts as a small
business.¹⁸ A radio broadcasting station is an establishment
primarily engaged in broadcasting aural programs by radio to the
public.¹⁹ Included in this industry are commercial
religious, educational, and other radio stations.²⁰ Radio
broadcasting stations which primarily are engaged in radio broadcasting
and which produce radio program materials are similarly
included.²¹ However, radio stations which are separate
establishments and are primarily engaged in producing radio program
material are classified under another SIC number.²² The 1992
Census indicates that 96 percent (5,861 of 6,127) radio station
establishments produced less than $5 million in revenue in
1992.²³ Official Commission records indicate that 11,334
individual radio stations were operating in 1992.²⁴ As of
June, 1997 official Commission records indicate that 12,177 radio
stations were operating.²⁵
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\18\ 13 CFR 121.201, SIC 4832.
\19\ Economics and Statistics Administration, Bureau of Census,
U.S. Department of Commerce, supra note 78, Appendix A-9.
\20\ Id.
\21\ Id.
\22\ Id.
\23\ The Census Bureau counts radio stations located at the same
facility as one establishment. Therefore, each co-located AM/FM
combination counts as one establishment.
\24\ FCC News Release No. 31327, January 13, 1993.
\25\ FCC News Release No. 77504, July 31, 1997.
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24. Thus, the proposed rules will affect approximately 1,560
television stations; approximately 1,201 of those stations are
considered small businesses. ²⁶ Additionally, the proposed
rules will affect 12,177 radio stations, approximately 11,689 of which
are small businesses. ²⁷ These estimates may overstate the
number of small entities since the revenue figures on which they are
based do not include or aggregate revenues from non-television or non-
radio affiliated companies. We recognize that the proposed rules may
also impact minority and women owned stations, some of which may be
small entities. In 1995, minorities owned and

[[Page 51056]]

controlled 37 (3.0%) of 1,221 commercial television stations and 293
(2.9%) of the commercial radio stations in the United States.
²⁸ According to the U.S. Bureau of the Census, in 1987 women
owned and controlled 27 (1.9%) of 1,342 commercial and non-commercial
television stations and 394 (3.8%) of 10,244 commercial and non-
commercial radio stations in the United States. ²⁹ We
recognize that the numbers of minority and women broadcast owners may
have changed due to an increase in license transfers and assignments
since the passage of the 1996 Act.
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\26\ We use the 77 percent figure of TV stations operating at
less than $10 million for 1992 and apply it to the 1997 total of
1551 TV stations to arrive at 1,194 stations categorized as small
businesses.
\27\ We use the 96% figure of radio station establishments with
less than $5 million revenue from the Census data and apply it to
the 12,135 individual station count to arrive at 11,649 individual
stations as small businesses.
\28\ Minority Commercial Broadcast Ownership in the United
States, U.S. Dep't of Commerce, National Telecommunications and
Information Administration, The Minority Telecommunications
Development Program (``MTDP'') (April 1996). MTDP considers minority
ownership as ownership of more than 50% of a broadcast corporation's
stock, voting control in a broadcast partnership, or ownership of a
broadcasting property as an individual proprietor. Id. The minority
groups included in this report are Black, Hispanic, Asian, and
Native American.
\29\ See Comments of American Women in Radio and Television,
Inc. in MM Docket No. 94-149 and MM Docket No. 91-140, at 4 n.4
(filed May 17, 1995), citing 1987 Economic Censuses, Women-Owned
Business, WB87-1, U.S. Dep't of Commerce, Bureau of the Census,
August 1990 (based on 1987 Census). After the 1987 Census report,
the Census Bureau did not provide data by particular communications
services (four-digit Standard Industrial Classification (SIC) Code),
but rather by the general two-digit SIC Code for communications
(#48). Consequently, since 1987, the U.S. Census Bureau has not
updated data on ownership of broadcast facilities by women, nor does
the FCC collect such data. However, we sought comment on whether the
Annual Ownership Report Form 323 should be amended to include
information on the gender and race of broadcast license owners.
Policies and Rules Regarding Minority and Female Ownership of Mass
Media Facilities, Notice of Proposed Rulemaking, 10 FCC Rcd 2788,
2797, 61 FR 6068 (February 1, 1995).
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25. It should also be noted that the foregoing estimates do not
distinguish between network-affiliated ³⁰ stations and
independent stations. As of April 1996, the BIA Publications, Inc.
Master Access Television Analyzer Database indicates that about 73% of
all commercial television stations were affiliated with the ABC, CBS,
NBC, Fox, UPN, or WB networks. Moreover, 7% of those affiliates have
secondary affiliations.³¹
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\30\ In this context, ``affiliation'' refers to any local
broadcast television station that has a contractural arrangement
with aprogramming network to carry the network's signal. This
definition of affiliated station includes both stations owned and
operated by a network and stations owned by other entities.
\31\ Secondary affilations are secondary to the primary
affiliation of the station and generally afford the affiliate
additional choice of programming.
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26. There are currently 4991 TV translators, and 2001 LPTV stations
which may be affected by the new rules, if they decide to convert to
digital television.³² The FCC does not collect financial
information of any broadcast facility and the Department of Commerce
does not collect financial information on these broadcast facilities.
We will assume for present purposes, however, that most, if not all,
LPTV stations and translator stations, could be classified as small
businesses, if considered by themselves. Thus, translator stations
generally can be considered affiliates, as that term is defined in the
SBA regulations, with full service stations. Given this situation,
these stations would likely have annual revenues that exceed the SBA
maximum to be designated as small businesses.
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\32\ FCC News Release No. 72712, March 6, 1997, Broadcast
Station Totals as of February 28, 1997.
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27. In addition to owners of operating radio and television
stations, any entity who seeks or desires to obtain a television or
radio broadcast license may be affected by the proposals contained in
this item. The number of entities that may seek to obtain a television
or radio broadcast license is unknown.
28. Additionally, the proposed changes to the cable/MDS cross-
ownership attribution rule will apply to cable and MDS entities. The
SBA has developed a definition of small entities for cable and other
pay television services under Standard Industrial Classification 4841
(SIC 4841), which covers subscription television services, which
includes all such companies with annual gross revenues of $11 million
or less.³³ This definition includes cable systems operators,
closed circuit television services, direct broadcast satellite
services, multipoint distribution systems, satellite master antenna
systems and subscription television services. According to the Census
Bureau, there were 1,323 such cable and other pay television services
generating less than $11 million in revenue that were in operation for
at least one year at the end of 1992.³⁴ This figure is
overinclusive since it includes other pay television services, not only
cable and MDS.
---------------------------------------------------------------------------

\33\ 13 CFR 121.201.
\34\ 1992 Census, supra, at Firm Size 1-123. See Memorandum
Opinion and Order and Notice of Proposed Rule Making in MM Docket
No. 92-266 and CS Docket No. 96-157, 11 FCC Rcd 9517, 953, 61 FR
45356 (1996).
---------------------------------------------------------------------------

29. Alternative Classification of Small Stations. An alternative
way to classify small radio and television stations is the number of
employees. The Commission currently applies a standard based on the
number of employees in administering its Equal Employment Opportunity
(EEO) for broadcasting.³⁵ Thus, radio or television stations
with fewer than five full-time employees are exempted from certain EEO
reporting and record-keeping requirements.³⁶
---------------------------------------------------------------------------

\35\ The Commission's definition of a small broadcast station
for purposes of applying its EEO rules was adopted prior to the
requirement of approval by the SBA pursuant to Section 3(a) of the
Small Business Act, 15 U.S.C. Section 632, as amended by Section 222
of the Small Business Credit and Business Opportunity Enhancement
Act of 1992, Public Law 102-366, Section 222(b)(1), 106 Stat. 999
(1992), as further amended by the Small Business Administration
Reauthorization and Amendments Act of 1994, Public Law 103-403,
Section 301, 108 Stat. 4187 (1994). However, this definition was
adopted after public notice and opportunity for comment. See Report
and Order in Docket No. 18244, 23 FCC 2d 430 (1970), 35 FR 8925
(June 6, 1970).
\36\ See, e.g., 47 CFR Section 73.3612 (Requirement to file
annual employment reports on FCC Form 395 applies to licensees with
five or more full-time employees); First Report and Order in Docket
No. 21474 (Amendment of Broadcast Equal Employment Opportunity Rules
and FCC Form 395), 70 FCC 2d 1466 (1979), 50 FR 50329 (December 10,
1985). The Commission is currently considering how to decrease the
administrative burdens imposed by the EEO rule on small stations
while maintaining the effectiveness of our broadcast EEO
enforcement. Order and Notice of Proposed Rule Making in MM Docket
96-16 (Streamlining Broadcast EEO Rules and Policies, Vacating the
EEO Forfeiture Policy Statement and Amending Section 1.80 of the
Commission's Rules to Include EEO Forfeiture Guidelines), 11 FCC Rcd
5154 (1996), 61 FR 09964 (March 12, 1996). One option under
consideration is whether to define a small station for purposes of
affording such relief as one with ten or fewer full-time employees.
---------------------------------------------------------------------------

30. Cable Systems. The Communications Act contains a definition of
a small cable system operator, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than 1
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.'' ³⁷ The Commission has
determined that there are 61,700,000 subscribers in the United States.
Therefore, we found that an operator serving fewer than 617,000
subscribers is deemed a small operator, if its annual revenues, when
combined with the total annual revenues of all of its affiliates, do
not exceed $250 million in the aggregate.³⁸ Based on
available data, we find that the number of cable operators serving
617,000 subscribers or less totals 1,450.³⁹ Although it
seems certain that some of these cable system operators are affiliated
with entities whose gross annual revenues exceed $250,000,000, we are
unable at this time to estimate with greater precision the number of
cable system operators that would

[[Page 51057]]

qualify as small cable operators under the definition in the
Communications Act.
---------------------------------------------------------------------------

\37\ 47 U.S.C. Sec. 543(m)(2).
\38\ 47 CFR 76.1403(b).
\39\ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29,
1996 (based on figures for Dec. 30, 1995).
---------------------------------------------------------------------------

31. The Commission has developed its own definition of a small
cable system operator for the purposes of rate regulation. Under the
Commission's rules, a ``small cable company,'' is one serving fewer
than 400,000 subscribers nationwide.⁴⁰ Based on our most
recent information, we estimate that there were 1,439 cable operators
that qualified as small cable system operators at the end of
1995.⁴¹ Since then, some of those companies may have grown
to serve over 400,000 subscribers, and others may have been involved in
transactions that caused them to be combined with other cable
operators. Consequently, we estimate that there are fewer than 1,439
small entity cable system operators that may be affected by the
proposal adopted in this Notice. Under the Commission's rules, a small
cable system is a cable system with 15,000 or fewer subscribers owned
by a cable company serving 400,000 or fewer subscribers over all of its
cable systems.
---------------------------------------------------------------------------

\40\ 47 CFR 76.901(e). The Commission developed this definition
based on its determinations that a small cable system operator is
one with annual revenues of $100 million or less. Implementation of
Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and
Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 60 FR
10534 (February 27, 1995).
\41\ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29,
1996 (based on figures for Dec. 30, 1995).
---------------------------------------------------------------------------

32. MDS. The Commission redefined the definition of ``small
entity'' for the auction of MDS as an entity that together with its
affiliates has average gross annual revenues that are not more than $40
million for the preceding three calendar years.⁴² This
definition of a small entity in the context of MDS auctions has been
approved by the SBA.⁴³
---------------------------------------------------------------------------

\42\ 47 CFR 21.961(b)(1).
\43\ 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, MM Docket No. 94-31 and PP Docket No. 93-253,
Report and Order, 10 FCC Rcd 9589, 60 FR 36524 (July 17, 1995).
---------------------------------------------------------------------------

33. The Commission completed its MDS auction in March 1996 for
authorizations in 493 basic trading areas (BTAs). Of 67 winning
bidders, 61 qualified as small entities. Five bidders indicated that
they were minority-owned and four winners indicated that they were
women-owned businesses. MDS is a service heavily encumbered with
approximately 1,573 previously authorized and proposed MDS facilities
and information available to us indicates that no MDS facility
generates revenue in excess of $11 million annually. We conclude that
for purposes of this FRFA, there are approximately 1,634 small MDS
providers as defined by the SBA and the Commission's auction rules.
34. Newspapers. Some of the proposals delineated above may also
apply to daily newspapers that hold or seek to acquire an interest in a
broadcast station that would be treated as attributable under the
proposals. A newspaper is an establishment that is primarily engaged in
publishing newspapers, or in publishing and printing
newspapers.⁴⁴ The SBA defines a newspaper that has 500 or
fewer employees as a small business.⁴⁵ Based on data from
the U.S. Census Bureau, there are a total of approximately 6,715
newspapers, and 6,578 of those meet the SBA's size
definition.⁴⁶ However, we recognize that some of these
newspapers may not be independently owned and operated and, therefore,
would not be considered a ``small business concern'' under the Small
Business Act.⁴⁷ We are unable to estimate at this time how
many newspapers are affiliated with larger entities. Moreover, the
proposal would apply only to daily newspapers, and we are unable to
estimate how many newspapers that meet the SBA's size definition are
daily newspapers. Consequently, we estimate that there are fewer than
6,578 newspapers that may be affected by the proposed rules.
---------------------------------------------------------------------------

\44\ 13 CFR 121.201 (SIC 2711).
\45\ Id.
\46\ U.S. Small Business Administration 1992 Economic Census
Industry and Enterprise Report, Table 3, SIC Code 2711 (Bureau of
the Census data adapted by the Office of Advocacy of the U.S. Small
Business Administration).
\47\ 15 U.S.C. Sec. 632.
---------------------------------------------------------------------------

D. Description of Recordkeeping and Other Projected Compliance
Requirements

35. Applicants filing a one-step license application will be
required to provide a reduced amount of information as compared to that
currently required for a construction permit. This information may
consist of a radiofrequency radiation analysis to insure public safety,
directional antenna information to insure protection to other stations,
etc. as set forth Appendices C and D of the Report and Order. The
information required in Appendices C and D with a one-step license
application generally is the minimum necessary for the Commission to
verify compliance with its rules and regulations.
36. It must be noted that a permittee or licensee is not required
to subject itself to the new one-step license requirements if it
chooses not to do so. Any permittee or licensee may, at its option, use
the present two-step process of obtaining a construction permit,
followed by the filing of a license application once construction is
complete. However, in many instances, the new procedures will reduce
the time and expense required to implement certain minor changes to
broadcast stations.
37. Most permittees and licensees retain professional consulting
engineers or legal counsel, or both in preparing construction permit
applications. We do not expect this to change significantly by the
adoption of the new rules and procedures. However, the time needed for
the preparation of the simplified one-step applications will be
reduced, translating into time and money savings for the broadcast
applicant.

E. Steps Taken To Minimize Burden on Small Entities and Significant
Alternatives Considered and Rejected

38. Pursuant to the RFA, 5 U.S.C. Sec. 603(c), we have considered
whether there is a significant economic impact on a substantial number
of small entities. The action taken does not impose additional burdens
on small entities. Indeed, the opposite is true. The minor change
application filing fee will be eliminated for applicants which meet the
criteria for eligibility for applicants which meet the criteria for
eligibility in 47 CFR 73.1690 as set forth below. One-step license
applications also require that lesser amounts of information be
submitted to the Commission as compared to a construction permit
application. The rule and policy changes will have a positive economic
impact, as eligible entities, including small entities, will be able to
increase their service or make certain modifications without prior
Commission authorization and with fewer legal challenges. All entities
will still be able to file informal objections against a one-step
license application, just as they may do now against a construction
permit application. This should address the concerns of those
commenters who sought a special notice and comment period for each one-
step license application.

F. Report to Congress

39. The Commission shall send a copy of this Final Regulatory
Flexibility Analysis along with this Report and Order in a report to
Congress pursuant to Section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996, codified at 5 U.S.C. Section
801(a)(1)(A). A copy of this RFA will

[[Page 51058]]

also be published in the Federal Register.

Ordering Clauses

40. Accordingly, it is ordered that pursuant to the authority
contained in Sections 4(i), 303(r), and 307(c) of the Communications
Act of 1934, as amended, 47 CFR Parts 1, 73, and 74 are amended as set
forth below.
41. It is further ordered that the requirements and regulations
established in this Report and Order will become effective December 1,
1997 or upon receipt by Congress of a report in compliance with the
Contract with America Advancement Act of 1996, Public Law 104-121,
whichever date is later.
42. For further information contact Dale Bickel of the Audio
Services Division, Mass Media Bureau at (202) 418-2720, or by e-mail at
dbickel@fcc.gov.

List of Subjects

47 CFR Part 1

Practice and procedure.

47 CFR Part 73

Radio broadcasting, Television broadcasting.

47 CFR Part 74

Experimental Radio, Auxiliary, Special Broadcast and Other Program
Distributional Services.

Federal Communications Commission
Shirley Suggs,
Chief, Publications Branch.

Rule Changes

Parts 1, 73, and 74 of title 47 are amended to read as follows:

PART 1--PRACTICE AND PROCEDURE

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

Authority: 47 U.S.C. 154, 158.

2. Section 1.1104 is amended by adding entries in the table for 1.
b.(1), 2. b.(1), and 3. b.(1) to read as follows:

Sec. 1.1104 Schedule of charges for applications and other filings in
the mass media services.

--------------------------------------------------------------------------------------------------------------------------------------------------------
Payment type
Action FCC Form No. Fee amount code Address
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
1. * * * b. * * * (1) Main 159 & Corres................. 690 MPT Federal Communications Commission, Mass Media Services, P.O.
Studio Request. Box 358165, Pittsburgh, PA 15251-5165.

* * * * * * *
2. * * * b. * * * (1) Main 159 & Corres................. 690 MPT Federal Communications Commission, Mass Media Services, P.O.
Studio Request. Box 358190, Pittsburgh, PA 15251-5190.

* * * * * * *
3. * * * b. * * * (1) Main 159 & Corres................. 690 MPT Federal Communications Commission, Mass Media Services, P.O.
Studio Request. Box 358195, Pittsburgh, PA 15251-5195.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

PART 73--RADIO BROADCAST SERVICES

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

Authority: 47 U.S.C. 154, 303, 334, 336.

4. Section 73.14 is amended by adding the following new definition
in alphabetical order to read as follows:

Sec. 73.14 AM Broadcast definitions.

* * * * *
Auxiliary facility. An auxiliary facility is an AM antenna tower(s)
separate from the main facility's antenna tower(s), permanently
installed at the same site or at a different location, from which an AM
station may broadcast for short periods without prior Commission
authorization or notice to the Commission while the main facility is
not in operation (e.g., where tower work necessitates turning off the
main antenna or where lightning has caused damage to the main antenna
or transmission system) (See Sec. 73.1675).
* * * * *
5. Section 73.310(a) is amended by adding the following definitions
in alphabetical order to read as follows:

Sec. 73.310 FM technical definitions.

* * * * *
Auxiliary facility. An auxiliary facility is an antenna separate
from the main facility's antenna, permanently installed on the same
tower or at a different location, from which a station may broadcast
for short periods without prior Commission authorization or notice to
the Commission while the main facility is not in operation (e.g., where
tower work necessitates turning off the main antenna or where lightning
has caused damage to the main antenna or transmission system) (See
Sec. 73.1675).
* * * * *
Composite antenna pattern. The composite antenna pattern is a
relative field horizontal plane pattern for 360 degrees of azimuth, for
which the value at a particular azimuth is the greater of the
horizontally polarized or vertically polarized component relative field
values. The composite antenna pattern is normalized to a maximum of
unity (1.000) relative field.
* * * * *
6. Section 73.316 is amended by adding new paragraph (c)(9),
revising paragraph (e), and removing paragraphs (f), (g), (h), and (i)
to read as follows:

Sec. 73.316 FM antenna systems.

* * * * *
(c) * * *
(9) In the case of an application for license upon completion of
antenna construction for a station authorized pursuant to Sec. 73.215
or Sec. 73.509, a showing that the root mean square (RMS) of the
measured composite antenna pattern (encompassing both the horizontally
and vertically polarized radiation components (in relative field)) is
at least 85% of the RMS of the

[[Page 51059]]

authorized composite directional antenna pattern (in relative field).
The RMS values, for a composite antenna pattern specified in relative
field values, may be determined from the following formula:

RMS = the square root of:
[GRAPHIC] [TIFF OMITTED] TR30SE97.005

where the relative field values are taken from at least 36 evenly
spaced radials for the entire 360 degrees of azimuth. The application
for license must also demonstrate that coverage of the community of
license by the 70 dBu contour is maintained for stations authorized
pursuant to Sec. 73.215 on Channels 221 through 300, as required by
Sec. 73.315(a), while noncommercial educational stations operating on
Channels 201 through 220 must show that the 60 dBu contour covers at
least a portion of the community of license.
* * * * *
(e) Where an FM licensee or permittee proposes to mount its antenna
on an AM antenna tower, or locate within 3.2 km of an AM antenna tower,
the FM licensee or permittee must comply with Sec. 73.1692.
7. Section 73.525 is amended by adding new paragraph (e)(1)(vii) to
read as follows:

Sec. 73.525 TV Channel 6 protection.

* * * * *
(e) * * *
(1) * * *
(vii) In cases where the predicted interference area to Channel 6
television from a noncommercial educational FM station will be located
within the 90 dBu F(50,50) contour of the television Channel 6 station,
the location of the FM interfering contour must be determined using the
assumption that the Channel 6 field strength remains constant at 90 dBu
everywhere within the 90 dBu TV contour. The FM to Channel 6 U/D signal
strength ratio specified in Sec. 73.599 corresponding to the Channel 6
TV field strength of 90 dBu shall be used.
* * * * *
8. Section 73.681 is amended by adding the following new definition
in alphabetical order to read as follows:

Sec. 73.681 Definitions.

Sec. 73.685 Transmitter location and antenna system.

* * * * *
(h) Where a TV licensee or permittee proposes to mount an antenna
on an AM antenna tower, or locate within 3.2 km of an AM antenna tower,
the TV licensee or permittee must comply with Sec. 73.1692.
10. Section 73.1125 is amended by revising paragraph (b)(2) to read
as follows.

Sec. 73.1125 Station main studio location.

* * * * *
(b) * * *
(2) Written authority to locate a main studio outside a station's
principal community contour for the first time must be obtained from
the Audio Services Division, Mass Media Bureau for AM and FM stations,
or the Television Branch, Video Services Division, Mass Media Bureau
for television stations before the studio may be moved to that
location. Where the main studio is already authorized at a location
outside the station's principal community contour, and the licensee or
permittee desires to specify a new location also located outside the
station's principal community contour, written authority must also be
received from the Commission prior to the relocation of the main
studio. Authority for these changes may be requested by filing a letter
with an explanation of the proposed changes with the appropriate
division. Licensees or permittees should be aware that the filing of a
letter request for written authority to locate the main studio outside
the principal community contour does not imply approval of the
relocation request, because each request is addressed on a case-by-case
basis. A filing fee is required for commercial AM, FM, or TV licensees
or permittees filing a letter request under this section (see
Sec. 1.1104).
* * * * *
11. Section 73.1620 is amended by revising paragraph (a)(2), adding
paragraphs (a)(3) and (a)(4), and revising paragraph (b) to read as
follows:

Sec. 73.1620 Program tests.

(a) * * *
(2) The permittee of an FM station with a directional antenna
system must file an application for license on FCC Form 302-FM
requesting authority to commence program test operations at full power
with the FCC in Washington, D.C. This license application must be filed
at least 10 days prior to the date on which full power operations are
desired to commence. The application for license must contain any
exhibits called for by conditions on the construction permit. The staff
will review the license application and the request for program test
authority and issue a letter notifying the applicant whether full power
operation has been approved. Upon filing of the license application and
related exhibits, and while awaiting approval of full power operation,
the FM permittee may operate the directional antenna at one half (50%)
of the authorized effective radiated power. Alternatively, the
permittee may continue operation with its existing licensed facilities
pending the issuance of program test authority at the full effective
radiated power by the staff.
(3) FM licensees replacing a directional antenna pursuant to
Sec. 73.1690 (c)(2) without changes which require a construction permit
(see Sec. 73.1690(b)) may immediately commence program test operations
with the new antenna at one half (50%) of the authorized ERP upon
installation. If the directional antenna replacement is an EXACT
duplicate of the antenna being replaced (i.e., same manufacturer,
antenna model number, AND measured composite pattern), program tests
may commence with the new antenna at the full authorized power upon
installation. The licensee must file a modification of license
application on FCC Form 302-FM within 10 days of commencing operations
with the newly installed antenna, and the license application must
contain all of the exhibits required by Sec. 73.1690(c)(2). After
review of the modification-of-license application to cover the antenna
change, the

[[Page 51060]]

Commission will issue a letter notifying the applicant whether program
test operation at the full authorized power has been approved for the
replacement directional antenna.
(4) The permittee of an AM station with a directional antenna
system must file an application for license on FCC Form 302-AM
requesting program test authority with the FCC in Washington, DC at
least ten (10) days prior to the date on which it desires to commence
program test operations. The application must provide an AM directional
antenna proof of performance, containing the exhibits required by
Sec. 73.186. After review of the application to cover the construction
permit, the Commission will issue a letter notifying the applicant
whether program test operations may commence. Program test operations
may not commence prior to issuance of staff approval.
(b) The Commission reserves the right to revoke, suspend, or modify
program tests by any station without right of hearing for failure to
comply adequately with all terms of the construction permit or the
provisions of Sec. 73.1690(c) for a modification of license
application, or in order to resolve instances of interference. The
Commission may, at its discretion, also require the filing of a
construction permit application to bring the station into compliance
the Commission's rules and policies.
* * * * *
12. Section 73.1675 is amended by revising paragraph (c) to read as
follows:

Sec. 73.1675 Auxiliary facilities.

* * * * *
(c) (1) Where an FM or TV licensee proposes to use a formerly
licensed main facility as an auxiliary facility, or proposes to modify
a presently authorized auxiliary facility, and no changes in the height
of the antenna radiation center are required in excess of the limits in
Sec. 73.1690(c)(1), the FM or TV licensee may apply for the proposed
auxiliary facility by filing a modification of license application. The
modified auxiliary facility must operate on the same channel as the
licensed main facility. An exhibit must be provided with this license
application to demonstrate compliance with Sec. 73.1675(a). All FM and
TV licensees may request a decrease from the authorized facility's ERP
in the license application. An FM or TV licensee may also increase the
ERP of the auxiliary facility in a license modification application,
provided the application contains an analysis demonstrating compliance
with the Commission's radiofrequency radiation guidelines, and an
analysis showing that the auxiliary facility will comply with
Sec. 73.1675(a). Auxiliary facilities mounted on an AM antenna tower
must also demonstrate compliance with Sec. 73.1692 in the license
application.
(2) Where an AM licensee proposes to use a former licensed main
facility as an auxiliary facility with an ERP less than or equal to the
ERP specified on the former main license, the AM station may apply to
license the proposed auxiliary facility by filing a modification of
license application on Form 302-AM. The proposed auxiliary facilities
must have been previously licensed on the same frequency as the present
main facility. The license application must contain an exhibit to
demonstrate compliance with Sec. 73.1675(a).
13. Section 73.1690 is amended by revising paragraphs (b) and (c)
to read as follows:

Sec. 73.1690 Modification of transmission systems.

* * * * *
(b) The following changes may be made only after the grant of a
construction permit application on FCC Form 301 for commercial stations
or Form 340 for noncommercial educational stations:
(1) Any construction of a new tower structure for broadcast
purposes, except for replacement of an existing tower with a new tower
of identical height and geographic coordinates.
(2) Any change in station geographic coordinates, including
coordinate corrections. FM and TV directional stations must also file a
construction permit application for any move of the antenna to another
tower structure located at the same coordinates.
(3) Any change which would require an increase along any azimuth in
the composite directional antenna pattern of an FM station from the
composite directional antenna pattern authorized (see Sec. 73.316), or
any increase from the authorized directional antenna pattern for a TV
station (see Sec. 73.685).
(4) Any change in the directional radiation characteristics of an
AM directional antenna system. See Sec. 73.45 and Sec. 73.150.
(5) Any decrease in the authorized power of an AM station or the
ERP of a TV station, or any decrease or increase in the ERP of an FM
commercial station, which is intended for compliance with the multiple
ownership rules in Sec. 73.3555.
(6) For FM noncommercial educational stations, any of the
following:
(i) Any increase in the authorized maximum ERP, whether
horizontally or vertically polarized, for a noncommercial educational
FM station operating on Channels 201 through 220, or a Class D FM
station operating on Channel 200..
(ii) For those FM noncommercial educational stations on Channels
201 to 220, or a Class D FM station operating on Channel 200, which are
within the separation distances specified in Table A of Sec. 73.525
with respect to a Channel 6 television station, any increase in the
horizontally or vertically polarized ERP from the presently authorized
ERP.
(iii) For those FM noncommercial educational stations on Channels
201 through 220 which are located within the separation distances in
Sec. 73.525 with respect to a Channel 6 television station, or a Class
D FM station operating on Channel 200, any decrease in the presently
authorized horizontal effective radiated power which would eliminate
the horizontal ERP to result in use of vertical ERP only.
(iv) For those FM noncommercial educational stations which employ
separate antennas for the horizontal ERP and the vertical ERP, mounted
at different heights, the station may not increase or decrease either
the horizontal ERP or the vertical ERP without a construction permit.
(7) Any increase in the authorized ERP of a television station, FM
commercial station, or noncommercial educational FM station, except as
provided for in Secs. 73.1690(c)(4), (c)(5), or (c)(7), or
Sec. 73.1675(c)(1) in the case of auxiliary facilities.
(8) A commercial TV or noncommercial educational TV station
operating on Channels 14 or Channel 69 may increase its horizontally or
vertically polarized ERP only after the grant of a construction permit.
A television station on Channels 15 through 21 within 341 km of a
cochannel land mobile operation, or 225 km of a first-adjacent channel
land mobile operation, must also obtain a construction permit before
increasing the horizontally or vertically polarized ERP (see Part 74,
Sec. 74.709(a) and (b) for tables of urban areas and corresponding
reference coordinates of potentially affected land mobile operations).
(c) The following FM and TV station modifications may be made
without prior authorization from the Commission. A modification of
license application must be submitted to the Commission within 10 days
of commencing program test operations pursuant to Sec. 73.1620. With
the exception of applications filed solely pursuant to Sections (c)(6),
(c)(9), or (c)(10), the modification of license application must
contain an exhibit demonstrating compliance with the

[[Page 51061]]

Commission's radiofrequency radiation guidelines. In addition, except
for applications solely filed pursuant to Sections (c)(6) or (c)(9),
where the installation is located within 3.2 km of an AM tower or is
located on an AM tower, an exhibit demonstrating compliance with
Sec. 73.1692 is also required.
(1) Replacement of an omnidirectional antenna with one of the same
or different number of antenna bays, provided that the height of the
antenna radiation center is not more than 2 meters above or 4 meters
below the authorized values. Any concurrent change in ERP must comply
with Sec. 73.1675(c)(1), 73.1690(4), (c)(5), or (c)(7). Program test
operations at the full authorized ERP may commence immediately upon
installation pursuant to Sec. 73.1620(a)(1).
(2) Replacement of a directional FM antenna, where the measured
composite directional antenna pattern does not exceed the licensed
composite directional pattern at any azimuth, where no change in
effective radiated power will result, and where compliance with the
principal coverage requirements of Sec. 73.315(a) will be maintained by
the measured directional pattern. The antenna must be mounted not more
than 2 meters above or 4 meters below the authorized values. The
modification of license application on Form 302-FM to cover the antenna
replacement must contain all of the data in the following sections (i)
through (v). Program test operations at one half (50%) power may
commence immediately upon installation pursuant to Sec. 73.1620(a)(3).
However, if the replacement directional antenna is an exact replacement
(i.e., no change in manufacturer, antenna model number, AND measured
composite antenna pattern), program test operations may commence
immediately upon installation at the full authorized power.
(i) A measured directional antenna pattern and tabulation on the
antenna manufacturer's letterhead showing both the horizontally and
vertically polarized radiation components and demonstrating that
neither of the components exceeds the authorized composite antenna
pattern along any azimuth.
(ii) Contour protection stations authorized pursuant to Sec. 73.215
or Sec. 73.509 must attach a showing that the RMS (root mean square) of
the composite measured directional antenna pattern is 85% or more of
the RMS of the authorized composite antenna pattern. See
Sec. 73.316(c)(9). If this requirement cannot be met, the licensee may
include new relative field values with the license application to
reduce the authorized composite antenna pattern so as to bring the
measured composite antenna pattern into compliance with the 85%
requirement.
(iii) A description from the manufacturer as to the procedures used
to measure the directional antenna pattern. The antenna measurements
must be performed with the antenna mounted on a tower, tower section,
or scale model equivalent to that on which the antenna will be
permanently mounted, and the tower or tower section must include
transmission lines, ladders, conduits, other antennas, and any other
installations which may affect the measured directional pattern.
(iv) A certification from a licensed surveyor that the antenna has
been oriented to the proper azimuth.
(v) A certification from a qualified engineer who oversaw
installation of the directional antenna that the antenna was installed
pursuant to the manufacturer's instructions.
(3) A directional TV station on Channels 2 through 13 or 22 through
68, or a directional TV station on Channels 15 through 21 which is in
excess of 341 km (212 miles) from a cochannel land mobile operation or
in excess of 225 km (140 miles) from a first-adjacent channel land
mobile operation (see Part 74, Sec. 74.709(a) and (b) for tables of
urban areas and reference coordinates of potentially affected land
mobile operations), may replace a directional TV antenna by a license
modification application, if the proposed horizontal theoretical
directional antenna pattern does not exceed the licensed horizontal
directional antenna pattern at any azimuth and where no change in
effective radiated power will result. The modification of license
application on Form 302-TV must contain all of the data set forth in
Sec. 73.685(f).
(4) Commercial and noncommercial educational FM stations operating
on Channels 221 through 300 (except Class D), NTSC TV stations
operating on Channels 2 through 13 and 22 through 68, and TV stations
operating on Channels 15 through 21 that are in excess of 341 km (212
miles) from a cochannel land mobile operation or in excess of 225 km
(140 miles) from a first-adjacent channel land mobile operation [see
Part 74, Sec. 74.709(a) and (b) for tables of urban areas and reference
coordinates of potentially affected land mobile operations], which
operate omnidirectionally, may increase the vertically polarized
effective radiated power up to the authorized horizontally polarized
effective radiated power in a license modification application.
Noncommercial educational FM licensees and permittees on Channels 201
through 220, that do not use separate antennas mounted at different
heights for the horizontally polarized ERP and the vertically polarized
ERP, and are located in excess of the separations from a Channel 6
television station listed in Table A of Sec. 73.525(a)(1), may also
increase the vertical ERP, up to (but not exceeding) the authorized
horizontally polarized ERP via a license modification application.
Program test operations may commence at full power pursuant to
Sec. 73.1620(a)(1).
(5) Those Class A FM commercial stations which were permitted to
increase ERP pursuant to MM Docket No. 88-375 by a modification of
license application remain eligible to do so, provided that the station
meets the requirements of Sec. 73.1690 (c)(1) and is listed on one of
the Public Notices as authorized to increase ERP, or by a letter from
the Commission's staff authorizing the change. These Public Notices
were released on November 3, 1989; November 17, 1989; December 8, 1989;
March 2, 1990; and February 11, 1991. The increased ERP must comply
with the multiple ownership requirements of Sec. 73.3555. Program test
operations may commence at full power pursuant to Sec. 73.1620(a)(1).
(6) FM contour protection stations authorized pursuant to
Sec. 73.215 which have become fully spaced under Sec. 73.207 may file a
modification of license application to delete the Sec. 73.215 contour
protection designation with an exhibit to demonstrate that the station
is fully spaced in accordance with Sec. 73.207. The contour protection
designation will be removed upon grant of the license application.
Applications filed under this rule section will be processed on a first
come / first served basis with respect to conflicting FM commercial
minor change applications and modification of license applications
(including those filed pursuant to Sec. 73.1690 (b) and (c)(6) and
(c)(7)).
(7) FM omnidirectional commercial stations, and omnidirectional
noncommercial educational FM stations operating on Channels 221 through
300 (except Class D), which are not designated as contour protection
stations pursuant to Sec. 73.215 and which meet the spacing
requirements of Sec. 73.207, may file a license modification
application to increase ERP to the maximum permitted for the station

[[Page 51062]]

class, provided that any change in the height of the antenna radiation
center remains in accordance with Sec. 73.1690(c)(1). Program test
operations may commence at full power pursuant to Sec. 73.1620(a)(1).
All of the following conditions also must be met before a station may
apply pursuant to this section:
(i) The station may not be a ``grandfathered'' short-spaced station
authorized pursuant to Sec. 73.213 or short-spaced by a granted waiver
of Sec. 73.207;
(ii) If the station is located in or near a radio quiet zone, radio
coordination zone, or a Commission monitoring station (see Sec. 73.1030
and Sec. 0.121(c)), the licensee or permittee must have secured written
concurrence from the affected radio quiet zone, radio coordination
zone, or the Commission's Compliance and Information Bureau in the case
of a monitoring station, to increase effective radiated power PRIOR to
implementation. A copy of that concurrence must be submitted with the
license application to document that concurrence has been received;
(iii) The station does not require international coordination as
the station does not lie within the border zones, or clearance has been
obtained from Canada or Mexico for the higher power operation within
the station's specified domestic class and the station complies with
Sec. 73.207(b)(2) and (3) with respect to foreign allotments and
allocations;
(iv) The increased ERP will not cause the station to violate the
multiple ownership requirements of Sec. 73.3555.
(8) FM commercial stations and FM noncommercial educational
stations may decrease ERP on a modification of license application
provided that exhibits are included to demonstrate that all six of the
following requirements are met:
(i) Commercial FM stations must continue to provide a 70 dBu
principal community contour over the community of license, as required
by Sec. 73.315(a). Noncommercial educational FM stations must continue
to provide a 60 dBu contour over at least a portion of the community of
license. The 60 and 70 dBu contours must be predicted by use of the
standard contour prediction method in Sec. 73.313(b), (c), and (d).
(ii) For both commercial FM and noncommercial educational FM
stations, the location of the main studio remains within the 70 dBu
principal community contour, as required by Sec. 73.1125, or otherwise
complies with that rule. The 70 dBu contour must be predicted by use of
the standard contour prediction method in Sec. 73.313(b), (c), and (d).
(iii) For commercial FM stations only, there is no change in the
authorized station class as defined in Sec. 73.211.
(iv) For commercial FM stations only, the power decrease is not
necessary to achieve compliance with the multiple ownership rule,
Sec. 73.3555.
(v) Commercial FM stations, noncommercial educational FM stations
on Channels 221 through 300, and noncommercial educational FM stations
on Channels 200 through 220 which are located in excess of the
distances in Table A of Sec. 73.525 with respect to a Channel 6 TV
station, may not use this rule to decrease the horizontally polarized
ERP below the value of the vertically polarized ERP.
(vi) Noncommercial educational FM stations on Channels 201 through
220 which are within the Table A distance separations of Sec. 73.525,
or Class D stations on Channel 200, may not use the license
modification process to eliminate an authorized horizontally polarized
component in favor of vertically polarized-only operation. In addition,
noncommercial educational stations operating on Channels 201 through
220, or Class D stations on Channel 200, which employ separate
horizontally and vertically polarized antennas mounted at different
heights, may not use the license modification process to increase or
decrease either the horizontal ERP or vertical ERP without a
construction permit.
(9) The licensee of an AM, FM, or TV commercial station may propose
to change from commercial to noncommercial educational on a
modification of license application, provided that the application
contains completed Sections II and IV of FCC Form 340. In addition, a
noncommercial educational AM licensee, a TV licensee on a channel not
reserved for noncommercial educational use, or an FM licensee on
Channels 221 to 300 (except Class D FM) on a channel not reserved for
noncommercial educational use, may apply to change from educational to
commercial via a modification of license application, and no exhibits
are required with the application. The change will become effective
upon grant of the license application.
(10) Replacement of a transmission line with one of a different
type or length which changes the transmitter operating power (TPO) from
the authorized value, but not the ERP, must be reported in a license
modification application to the Commission.
* * * * *
14. New Sec. 73.1692 is added to read as follows:

Sec. 73.1692 Broadcast station construction near or installation on an
AM broadcast tower.

Where a broadcast licensee or permittee proposes to mount a
broadcast antenna on an AM station tower, or where construction is
proposed within 0.8 km of an AM nondirectional tower or within 3.2 km
of an AM directional station, the broadcast licensee or permittee is
responsible for ensuring that the construction does not adversely
affect the AM station, as follows:
(a) Installations on an AM nondirectional tower. During
installation of the broadcast antenna and related equipment, the AM
station shall determine operating power by the indirect method (see
Sec. 73.51). Upon the completion of the installation, antenna impedance
measurements on the AM antenna shall be made, and, prior to or
simultaneously with the filing of the license application covering the
broadcast station installation, an application on FCC Form 302-AM
(including a tower sketch of the installation) shall be filed with the
Commission for the AM station to return to direct power measurement.
(b) Installations on an AM directional array. Prior to commencing
construction, the broadcast permittee or licensee shall notify the AM
station so that, if necessary, the AM station may determine operating
power by the indirect method (see Sec. 73.51) and request special
temporary authority pursuant to Sec. 73.1635 to operate with parameters
at variance in order to maintain monitoring point field strengths
within authorized limits. Both prior to the commencement of
construction and upon completion of construction, a partial proof of
performance (as defined by Sec. 73.154) shall be conducted to establish
that the AM array has not been adversely affected. Prior to or
simultaneously with filing of the license application to cover the
broadcast station construction, the results of the partial proof of
performance shall be filed with the Commission on Form 302-AM.
(c) Tower erections or modifications within 0.8 km of an AM
nondirectional tower. Prior to commencing the construction of tower
modifications, or the erection of a new tower, within 0.8 km of an AM
nondirectional tower, the broadcast permittee or licensee is required
to notify the AM station so that the AM station may commence
determining operating power by the indirect method (see Sec. 73.51).
The broadcast licensee or permittee shall be responsible for the
installation and continued maintenance of detuning apparatus necessary
to prevent adverse

[[Page 51063]]

effects on the radiation pattern of the AM station. Both prior to
construction of the tower modifications and upon completion of
construction, antenna impedance measurements of the AM station shall be
made. In addition, sufficient field strength measurements taken at a
minimum of 10 locations along each of 8 equally spaced radials, shall
be made to establish that the AM radiation pattern is essentially
omnidirectional. Prior or simultaneously with the filing of the
application for license to cover this permit, the results of the
impedance measurements and the field strength measurements shall be
filed with the Commission on FCC Form 302-AM for the AM station to
return to the direct method of power determination.
(d) Tower erections or modifications within 3.2 km of an AM
directional station. Prior to commencing construction of tower
modifications, or the erection of a new tower structure, within 3.2 km
of an AM directional array, the broadcast permittee or licensee shall
notify the AM station so that, if necessary, the AM station may
determine operating power by the indirect method (see Sec. 73.51) and
request special temporary authority pursuant to Sec. 73.1635 to operate
with parameters at variance in order to maintain monitoring point field
strengths within authorized limits. The broadcast licensee or permittee
shall be responsible for the installation and continued maintenance of
detuning apparatus necessary to prevent adverse effects upon the
radiation pattern of the AM station. Both prior to the commencement of
construction and upon completion of construction, a partial proof of
performance (as defined by Sec. 73.154) shall be conducted to establish
that the AM array has not been adversely affected. Prior to or
simultaneously with filing of the license application to cover the
broadcast station construction, the results of the partial proof of
performance shall be filed with the Commission on Form 302-AM.
15. Section 73.3500 is amended by removing the entry for ``Form
302'' and adding the following entries in the order of the form number
to read as follows:

Sec. 73.3500 Application and report forms.

* * * * *
Form 302-AM--Application for AM Broadcast Station License
Form 302-TV--Application for Television Broadcast Station License
* * * * *
16. Section 73.3536 is amended by revising paragraph (b)(1) to read
as follows:

Sec. 73.3536 Application for license to cover construction permit.

* * * * *
(b) * * *
(1)(i) Form 302-AM for AM stations, ``Application for New AM
Station Broadcast License.''
(ii) Form 302-FM for FM stations, ``Application for FM Station
License.''
(iii) Form 302-TV for television stations, ``Application for TV
Station Broadcast License.''
* * * * *
17. Section 73.3537 is amended to read as follows:

Sec. 73.3537 Application for license to use former main antenna as an
auxiliary.

See Sec. 73.1675, Auxiliary facility.
18. Section 73.3538 is amended by revising the introductory text,
the introductory text of paragraph (a), paragraphs (a)(1), (a)(2), and
(a)(3), and by removing paragraphs (a)(5), (a)(6) and (a)(7) and adding
paragraph (b)(3) to read as follows:

Sec. 73.3538 Application to make changes in an existing station.

Where prior authority is required from the FCC to make changes in
an existing station, the following procedures shall be used to request
that authority:
(a) An application for construction permit using the forms listed
in Sec. 73.3533 must be filed for authority to:
(1) Make any of the changes listed in Sec. 73.1690(b).
(2) Change the hours of operation of an AM station, where the hours
of operation are specified on the license or permit.
(3) Install a transmitter which has not been approved (type
accepted) by the FCC for use by licensed broadcast stations.
* * * * *
(b) * * *
(3) Relocation of a main studio outside the principal community
contour may require the filing and approval of a letter request for
authority to make this change prior to implementation. See
Sec. 73.1125.
19. Section 73.3544 is amended by revising paragraph (a) to read as
follows:

Sec. 73.3544 Application to obtain a modified station license.

* * * * *
(a) The changes specified in Sec. 73.1690(c) may be made by the
filing of a license application using the forms listed in
Sec. 73.3536(b)(1).
* * * * *

PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
DISTRIBUTIONAL SERVICES

20. The authority citation for part 74 continues to read as
follows:

Authority: 47 U.S.C. 154, 307, 554.

21. Section 74.780 is amended by adding the following entry in
numerical order to read as follows:

Sec. 74.780 Broadcast regulations applicable to translators, low
power, and booster stations.

* * * * *
Section 73.1692--Construction near or installation on an AM
broadcast tower.
* * * * *
22. Section 74.1235 is amended by revising paragraph (h) to read as
follows:

Sec. 74.1235 Power limitations and antenna systems.

* * * * *
(h) All applications must comply with Sec. 73.316, paragraphs (d)
and (e) of this chapter.
* * * * *
23. Section 74.1237 is amended by adding paragraph (e) to read as
follows:

Sec. 74.1237 Antenna location.

* * * * *
(e) A translator or booster station to be located on an AM antenna
tower or located within 3.2 km of an AM antenna tower must comply with
Sec. 73.1692 of this chapter.

[FR Doc. 97-25788 Filed 9-29-97; 8:45 am]
BILLING CODE 6712-01-P

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Document Information

Effective Date:: 12/1/1997
Published:: 09/30/1997
Department:: Federal Communications Commission
Entry Type:: Rule
Action:: Final rule.
Document Number:: 97-25788
Dates:: December 1, 1997.
Pages:: 51052-51063 (12 pages)
Docket Numbers:: MM Docket No. 96-58, FCC 97-290
PDF File:: 97-25788.pdf
CFR: (38): 47 CFR 73.1675); 47 CFR 1.1104); 47 CFR 73.51); 47 CFR 73.1620(a)(1); 47 CFR 73.1675(a); More ...