E7-20300. FCC Adopts Application Limit for NCE FM New Station Applications in October 12-October 19, 2007 Window

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

In this document, the Commission adopts an application limit in the noncommercial educational FM broadcast application filing window scheduled for October 12-October 19, 2007. The purpose of the limit is to permit the expeditious processing of applications filed in the window and deter speculative filings. The Commission concludes that an appropriate limit for any party is an attributable interest in no more than ten applications for new noncommercial educational FM broadcast stations filed in the window, excluding major modification applications and pending applications.

DATES:

October 12-October 19, 2007 Filing Window for Noncommercial Educational New Station Applications.

ADDRESSES:

Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Internet address: http://www.fcc.gov.

FOR FURTHER INFORMATION CONTACT:

Irene Bleiweiss, 202-418-2785, Audio Division, Media Bureau.

SUPPLEMENTARY INFORMATION:

This is a summary of a Public Notice adopted on October 10, 2007, and released on October 10, 2007. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC. It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone [phone]; fax [phone]; e-mail [e-mail]. It is also available on the Commission's Web site at http://www.fcc.gov.

Summary of Public Notice: In this document, released on October 10, 2007, the Commission adopts a ten-application limit on noncommercial educational (“NCE”) FM new station and major change applications filed by any party during the filing window opening on Friday, October 12, 2007 and closing on Friday, October 19, 2007 for FM reserved band (channels 201-220).

On August 9, 2007, the Commission issued a Public Notice (the “Notice”) seeking comment on this proposed ten-application limit (published at 72 FR 47039 on August 22, 2007). More than 10,000 comments were filed in response to the Notice. The overwhelming majority of the commenters supported the proposed limit of ten new station applications filed by any party during the window. Accordingly, the Commission concludes in this Public Notice that an application limit is a lawful and appropriate procedural safeguard to permit the expeditious processing of the window-filed applications with limited Bureau resources and to deter speculation. Our examination of the record confirms our concern that failure to establish a limit on the number of NCE FM applications that a party may file in the window would lead to a large number of speculative filings, creating the potential for extraordinary procedural delays. The Commission finds that a ten-application limit is consistent with the localism and diversity goals reflected in the NCE FM point system and appropriately balances our goals of deterring speculative filings, facilitating the expeditious processing of window-filed applications with limited Commission resources, and providing interested parties with a meaningful opportunity to file for NCE FM new station licenses.

We acknowledge the concern expressed by some commenters about the potential for attempts to circumvent the application limit. We note that the Bureau retains the discretion to conduct investigations and, where there is a substantial and material question of fact regarding real parties in interest, the Commission will designate applications for hearing to determine whether the applications comply with the Commission's rules and policies.

Effective Date of Public Notice. The Commission finds that there is good cause to make this Public Notice effective immediately. See 5 U.S.C. 553(d)(3). The Commission's experience with the 2003 FM translator window demonstrates that there is a strong and unmet demand for scarce FM spectrum and that applicants will aggressively pursue all new radio station licensing opportunities. The Commission is concerned that postponing the window will provide an opportunity for parties to develop and implement filing strategies to circumvent the limit on applications and to thwart the public interest benefits that the ten-application cap is intended to achieve. Moreover, the Commission announced this filing window more than six months ago. Applicants have relied on this window closing on October 19, 2007, a date that will be used to establish certain comparative qualifications among competing applicants. Accordingly, the Commission is reluctant to modify this well-publicized filing deadline. Finally, postponing the window would require the Commission to extend the freeze on reserved band and certain non-reserved band minor change application filings. The Commission concludes that such an extension would impose unreasonable burdens on many radio licensees.

Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 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 Small Business Administration (“SBA”).

Pursuant to Section 605(b) of the RFA, we certify that the application limit adopted in this document imposes no significant economic impact on a substantial number of small entities. The application limit will benefit small entities seeking to establish a new NCE FM service on a local or regional basis by expediting the review and processing of applications filed during the filing window opening on Friday, October 12, 2007. In the Commission's 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 by a party in a filing window. In the Notice, the Commission explained that numerous entities involved in NCE FM operations urged the agency to establish an application limit for the filing window to prevent mass filings of speculative applications. The vast majority of comments filed in response to the Notice agreed with the Commission's tentative conclusion that ten applications is an appropriate limit to deter speculative applications and facilitate the prompt processing of applications. Based on the record in this proceeding, we have concluded that a lower limit would not effectively meet the demand for new NCE FM channels, whereas a higher limit would impose unacceptable processing delays on all applicants, overriding any potential benefits to a few applicants interested in filing more than ten applications in this window. The limit excludes both pending applications by NCE FM stations and applicants and new major change applications by existing NCE FM stations seeking to modify their existing authorizations, so the limit involves no detriment to those applicants. This document and final RFA certification will be sent to the Chief Counsel for Advocacy of the SBA.

The Commission has authority to collect these applications under OMB Control # 3060-0034.

Federal Communications Commission.

Gloria J. Miles,

Federal Register Liaison.