[Federal Register Volume 61, Number 218 (Friday, November 8, 1996)]
[Rules and Regulations]
[Pages 57966-57981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28771]
[[Page 57965]]
_______________________________________________________________________
Part IV
Department of Commerce
_______________________________________________________________________
National Telecommunications and Information Administration
_______________________________________________________________________
15 CFR Part 2301
Public Telecommunications Facilities Program; Final Rule and Notice of
Availability of Funds
Federal Register / Vol. 61, No. 218 / Friday, November 8, 1996 /
Rules and Regulations
[[Page 57966]]
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
15 CFR Part 2301
[Docket No. 960524148-6243-02]
RIN 0660-AA09
Public Telecommunications Facilities Program
AGENCY: National Telecommunications and Information Administration
(NTIA), Commerce.
ACTION: Final rule.
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SUMMARY: This document revises and clarifies the rules governing
administration of the Public Telecommunications Facilities Program
(PTFP). The PTFP is authorized to provide matching grants to plan and
construct public telecommunications facilities.1
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\ 1\ See 47 U.S.C. Secs. 390-393, and 397-399b (1994), The
Communications Act of 1934, as amended. Unless otherwise noted, all
statutory citations are to title 47 of the United States Code.
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EFFECTIVE DATE: November 8, 1996.
FOR FURTHER INFORMATION CONTACT: Dennis Connors, Director, Public
Broadcasting Division, NTIA, Department of Commerce, 14th Street and
Constitution Avenue, NW., Room 4625, Washington, DC 20230. Telephone:
(202) 482-5802; Fax (202) 482-2156. Internet address:
dconnors@ntia.doc.gov.
SUPPLEMENTARY INFORMATION: In 61 FR 27230, the National
Telecommunications and Information Administration (NTIA) announced
proposed revisions of the rules that govern the PTFP and requested
public comments on those revisions. In response to the notice of
proposed rulemaking NTIA received comments from 7 different
organizations.2
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2 Comments were submitted by the following organizations:
Association of America's Public Television Stations (APTS); Indiana
University Radio and Television Services, operator of WFIU-FM/WTIU-
TV (IURTS); the National Federation of Community Broadcasters
(NFCB); National Public Radio (NPR); the National Technological
University, Ft. Collins, CO (NTU); the Public Broadcasting Service
(PBS); and the Rocky Mountain Corporation for Public Broadcasting,
Albuquerque, NM (RMCPB).
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There was general support for the overall direction of the proposed
revision. APTS, NPR, and NFCB supported the general thrust of the
proposed clarifications and the reorganization of the rules. No
opposition was received to many of NTIA's proposed changes to the rules
including the incorporation of the priorities from the Appendix into
the body of the rules and the changes proposed in the following
sections: Sec. 2301.1 Program Purposes; Sec. 2301.3 Applicant
Eligibility; Sec. 2301.6 Amount of Federal Funding; Sec. 2301.7
Eligible and Ineligible Project Costs; Sec. 2301.9 Deferred
Applications; Sec. 2301.12 Federal Communications Commission
Authorizations; Sec. 2301.13 Public Comments; Sec. 2301.14 Supplemental
Application Information; Sec. 2301.15 Withdrawal of Applications;
Sec. 2301.16 Technical Evaluation Process; Sec. 2301.18 Selection
Process; Sec. 2301.19 General Conditions Attached to the Federal Award;
Sec. 2301.20 Schedules and Reports; Sec. 2301.21 Payment of Federal
Funds; Sec. 2301.22 Protection, Acquisition and Substitution of
Equipment; Sec. 2301.23 Completion of Projects; Sec. 2301.24 Final
Federal Payment; Sec. 2301.25 Retention of Records and Annual Status
Reports; and Sec. 2301.26 Waivers.
Comments on the proposed rules were mainly focused on two sections:
Sec. 2301.4 Scope of Projects and Sec. 2301.17 Evaluation Criteria. The
subject that prompted the most public comments, however, was not a
section of the proposed rules, but rather a discussion in the
Supplemental Information section of the Notice regarding the conversion
of public broadcasting to advanced digital technologies.3 We
discuss each of these three subjects and several other issues raised by
the public in the following sections.
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3 See NPRM at 27230.
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Section 2301.4 Scope of Projects
Section 2301.4 relates to the scope of projects eligible for PTFP
funding and moved a section that was an Appendix in prior years into
the body of the Rules. APTS supported the incorporation of the
priorities in the Rules as part of its general support for the
reorganization of the PTFP Rules.
There were several comments on the proposed changes to this
section. RMCPB suggested that the title of this section was
nondescriptive of the content. RMCPB recommended this section be titled
``Types of Projects, Priorities.'' We agree that this is an improvement
and so have modified the title to ``Types of Projects and Broadcast
Priorities'' in the Final Rules.
Three organizations, NFCB, NTU and RMCPB, commented on NTIA's
proposal to place all broadcast applications within the five funding
priorities and revise the scope of the Special Applications category to
consist solely of nonbroadcast projects. NFCB supported NTIA's proposal
and thought that reserving the Special Applications category for non-
broadcast would be useful for considering applications utilizing new
technologies. NTU hoped that the proposed reorganization did not change
the priority status that PTFP has developed for distance learning
projects over the past decade. RMCPB questioned whether, under the
proposed rules, NTIA continued to possess the discretionary authority
to award grants to eligible broadcast as well as nonbroadcast
applicants with unique/innovative proposals. NTIA encourages the
submission of applications that propose unique and innovative
telecommunications projects, whether using broadcast or nonbroadcast
technologies. We have therefore clarified this position through the
creation of Sec. 2301.4(b)(6) Other Cases within the Broadcast
Applications section. This section provides broadcast applicants the
same opportunities for submission of unique or innovative applications
as contained in the Special Applications Sec. 2301.4(a) for
nonbroadcast applicants.
RMCPB proposed that, if NTIA were to place broadcast and
nonbroadcast applications in different categories, NTIA should
establish a set of priority distinctions for the nonbroadcast
applications similar to that of the broadcast applications. While NTIA
has established specific priorities for broadcast applications and
continues to refine those priorities in the current regulations, we
have chosen not to establish a fixed set of priorities for nonbroadcast
applications for two reasons. The first reason is that under the Act,
NTIA can only fund construction applications that establish or expand a
nonbroadcast facility,4 which are comparable to Priority 1A and 1B
broadcast applications. Nonbroadcast applications are not eligible for
equipment replacement, improvement or augmentation, which are
Priorities 2, 4 and 5 of the broadcast applications. Priority 3 in the
broadcast priorities, first local origination, is not applicable for
nonbroadcast since NTIA considers the service provided by a
nonbroadcast facility rather than the service area and recognizes that
different technologies and services may provide a unique service in a
particular service area. In effect, nonbroadcast applications are
already grouped into a single category, Special Applications, which is
comparable to Priority 1. NTIA has not broken the Special Applications
category into different priorities for a second reason. We recognize
that nonbroadcast applicants propose many
[[Page 57967]]
different technologies, each technology with its own strengths in
meeting the needs of a particular community, whether that community is
a city, state, region or the nation. In encouraging the submission of
innovative and unique applications, NTIA prefers not to establish rigid
priorities but to let applicants propose projects which identify and
serve needs in their chosen service area. We have, therefore, not
published a set of priorities for Special Applications but have made
minor changes to the Special Applications category to further clarify
the intent of this category.
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4 Section 390 of the Act, which is included as Sec. 2301.1
of these final rules.
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NFCB and APTS commented on NTIA's proposal to consider projects to
construct public broadcast stations to address underserved needs in an
area already served by other public broadcasting facilities within the
Priority 4A, Improvement of Public Broadcasting Services. APTS
supported the proposal to place these ``second station'' applications
within the broadcast priorities but suggested that a lower priority--
Priority 5A--would be more appropriate. APTS noted that given limited
Federal funding, it was important to support existing public
broadcasting facilities that are serving distinct and unserved needs
before supporting new facilities. APTS indicated that stations in
multi-station markets are treated as Priority 4A and that treating
applicants for new second stations under Priority 5A would insure that
existing facilities receive support before applications for new
facilities to serve underserved needs.
NFCB, however, supported NTIA's placement of projects to construct
public broadcast stations to address underserved needs in an area
already served by other public broadcasting facilities within the
Priority 4A. NFCB noted that public radio is a targeted medium and that
even the best stations can only hope to serve a portion of their
communities of license. NFCB felt that placement of second stations
within Priority 4A recognized the need for such stations in an
increasingly multicultural American society.
In the Notice of Proposed Rulemaking, NTIA proposed that projects
to construct public broadcast stations to address underserved needs in
an area already served by other public broadcasting facilities would be
considered in Priority 4A so they could be considered with other
applications from stations in areas already served by another public
broadcasting facility. NTIA believes that not only is it important to
maintain the existing services of second stations, but it is also
important that communities with underserved needs have the opportunity
to receive additional service from new facilities. We expect that new
second service stations will be radio facilities that serve
demonstrated needs in their community, and we do not anticipate that
this provision will have a major impact on television facilities. We
recognize that there is a delicate balance between supporting
applications for new such services and maintaining those second
stations already in place, but we believe that there is no clear reason
to favor one type of application over the other. Therefore, we believe
that Priority 4A is the appropriate placement for these applications.
In a related matter, RMCPB raised an issue under Secs. 2304.4(b)
(2) and (4), regarding those instances where two full-service public
radio stations serve the same area with two discrete and distinct
program services. RMCPB noted that even when utilizing different
national program services and distinctive local programming, neither
station can qualify as ``essential'' (existing broadcast stations that
provide either the only public telecommunications signal or the only
locally originated public telecommunications signal to a geographical
area) and therefore neither may be eligible for Priority 2 replacement.
These applications are accordingly placed in Priority 4A. RMCPB
suggested that ``PTFP discretionary consideration differing from that
given either of two such stations without discrete service'' be
given.5 NTIA appreciates RMCPB's concern regarding the priority of
stations in multi-station areas. NTIA notes that some stations in a
multi-station area may in fact qualify for Priority 2 as an
``essential'' station as the term is used in the PTFP regulations.
Applicants are encouraged to provide information as part of their
applications documenting whether they provide either the only public
telecommunications signal or the only locally originated public
telecommunications signal to a geographical area. NTIA, however, is
reluctant to distinguish between stations on the basis of their
programming services as proposed by RMCPB. NTIA has been able to fund
Priority 4A applications in the past and expects to be able to do so in
the future, dependent on the availability of funds.
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5 Comments of RMCPB, p. 3.
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RMCPB supported NTIA's clarification of how PTFP considers the
presence of AM daytime only stations in determining the Priority for
proposed FM facilities serving a similar coverage area. RMCPB raised
the question regarding the priority for a public radio FM station
serving an area covered by a student noncommercial educational station
that does not operate full-time or year-round. NTIA's long-time
practice is not to consider student noncommercial educational stations
that do not operate full-time or year-round as providing a public
telecommunications service. The presence of a student noncommercial
educational radio station in an area, therefore, does not preclude
Priority 1 consideration of an application for a public radio FM
station proposing to provide a public telecommunications service.
Section 2301.17 Evaluation Criteria for Construction and Planning
Applications.
Four organizations addressed the issue of evaluation criteria and
each supported the combination of construction and planning into a
single set of evaluation criteria.6 The four organizations
supported the criteria proposed by NTIA, though APTS and IURTS both
opposed deleting the community support criterion from the past
evaluation criteria.
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6 APTS, and NPR specifically supported a common set of
criteria for evaluation of planning and construction applications
and NFCB and RMCPB supported the common evaluation criteria by
reference.
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APTS noted that public broadcasting stations exist to serve their
local communities and that NTIA should not make grants to applicants
who cannot demonstrate significant ties to their community. APTS
suggested that financial support is the clearest objective evidence
that an applicant is providing service valued by their community and
that NTIA continue to require that applicants demonstrate that they
receive local financial support. IURTS suggested that demonstration of
community support is a good check to insure that the purposes of the
PTFP program are being served.
NTIA agrees with the thrust of both the APTS and IURTS comments. We
believe that demonstration of community support is an important element
in the evaluation of an application. Indeed, we intend to incorporate
demonstration of community support into the evaluation of several of
the evaluation criteria proposed. As noted by APTS, community support
is an important element in an applicant's ability to raise funds. This
is true both for determining whether an applicant can raise both the
short-term local match required by the PTFP application and the long-
term funds necessary to operate the system
[[Page 57968]]
during the Federal interest period. NTIA believes that demonstration of
community support, therefore, is important for the financial
qualifications criterion but also believes the demonstration of
community support will be useful in evaluating other criteria as well.
In most applications, demonstration of community support will be useful
in documenting an applicant's fulfillment of the project objectives
criterion. In many applications, demonstration of community support can
be used to document urgency, applicant qualifications and special
consideration. Rather than making community support an independent
criterion, we have chosen to give applicants the opportunity to
document community support for those criteria that are most appropriate
to their application. Information on how this documentation can be
included in the application will be contained in the Application
Guidelines distributed to each applicant.
In a similar manner, we will include information within the
Guidelines on another matter which was not included on the list of new
criteria in the proposed rules--coordination of the application with
other telecommunications organizations. NTIA continues to believe that
coordination of a project with other telecommunications organizations
is an important issue but as with demonstration of community support,
this information could support several evaluation criteria, depending
on the nature of the applicant's project.
The four organizations each addressed the question raised by NTIA
in the Notice which solicited comments on the appropriate weight to be
assigned to each criteria.7 Three of the four organizations
presented suggestions on how the criteria should be weighted and all
three suggested that ``project objectives'' and ``urgency'' be given
the greatest weight.8 NFCB and RMCPB each suggested that
``urgency'' and ``project objectives'' be given the greatest weight.
NPR indicated that ``urgency'' and ``project objectives'' (proposed
criteria #3 and #1) have traditionally distinguished the most worthy
applications. NPR cautioned, however, that ``the most urgent need may
not warrant a grant if the applicant lacks sufficient financial or
other qualifications to implement the project.'' 9 Likewise, RMCPB
suggested that the ``financial qualifications'' and ``applicant
qualifications'' (proposed criteria #2 and #4) are in effect threshold
criteria and should be given minimal weight but that NTIA might
disqualify applications that did not meet a minimum on these two
criteria. NFCB also felt that these two criteria would have to be met
for a project to succeed but cautioned that there should be some
evaluative process on these criteria which enables small public radio
stations with limited staff and budget to compete equally for PTFP
funds against larger stations. NFCB indicated that the ``technical/
planning qualification'' (criterion 5(a) or 5(b)) should be a criterion
that indicates whether a project is a go or a no-go. RMCPB recommended
that criterion 5 and ``special consideration'' (criterion 6) should be
equally weighted.
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7 See NPRM at 27230.
8 APTS opposed giving the criteria different weights,
indicating it was not clear which criterion was more important than
the others. APTS also felt NTIA had already decided what factors it
considers most significant by establishing priorities for grants and
that applicants would tailor their proposals to match the weighting.
9 Comments of National Public Radio, p. 3.
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NTIA appreciates the thoughtful responses received on this issue.
We agree that ``project objectives'' and ``urgency'' are the most
significant of the criteria and so these criteria will be given the
greatest weight during evaluation. We also agree that NTIA should not
award a grant for a proposal, no matter how well the application meets
the ``project objectives'' and ``urgency'' criteria, if the applicant
is not financially qualified or otherwise able to complete the project.
Therefore, the applicant's qualifications and financial qualifications
will each serve as qualifying criteria. An application must meet a
minimum threshold as defined in each of these criteria for further
consideration during the evaluation process. The two remaining
criteria, technical/planning qualifications and special consideration
will be given lesser weight in evaluation than that awarded to
``urgency'' and ``project objectives.''
NTIA has, therefore, modified this section to reflect the
evaluation weighting adopted. The criteria in Sec. 2301.17(b) have been
reordered to list first the two qualifying criteria, ``applicant
qualifications'' and ``financial qualifications'' as numbers 1 and 2.
``Project objectives'' will be criterion number 3 and ``urgency'' has
been placed as criterion number 4. Since the financial qualification
criterion has been made a qualifying criterion, the requirement that
applicants ``adequately justify the need for Federal funds in excess of
fifty (50) percent of total project costs (see Sec. 2301.6(b)(2)), if
requested for equipment replacement, improvement, or augmentation
projects'' has been relocated to the project objectives criterion. The
justification for more than 50% Federal funding only relates to the
level of potential Federal funding and should not be a part of a
criterion which is used to qualify the application for further
consideration. A sentence has also been added to the project objective
criterion which clarifies that evaluation of the applicant's proposal
includes evaluation of the applicant's ability to implement the
proposal, if funded. A sentence reading ``that the condition of
existing equipment justifies its prompt replacement'' has been
relocated from criterion 5(a) ``technical qualifications'', to
criterion 2 ``urgency'' to reflect the weight given this criterion.
Several new phrases have been added to clarify the ``urgency'' and
``applicant qualifications'' criteria. Finally, new language has been
added to Sec. 2301.17(a) which incorporates the weighting adopted by
NTIA.
Conversion to Digital Technology
Although not a part of the proposed rules itself, six of the seven
organizations commented on the statement in NTIA's Notice which
welcomed applications which will assist in planning for the digital
conversion of public broadcasting facilities.10 Five of these six
organizations supported NTIA's interest in supporting projects to plan
for digital conversion of public broadcasting facilities. NFCB
supported the concept in general, as did NPR, which cautioned that NTIA
should bear in mind the program's broader objectives so that the
funding of digital conversion planning projects promotes, rather than
undermines, the availability of public telecommunications services,
particularly in rural areas. RMCPB was supportive of NTIA's recognition
of the issue of conversion to digital technologies but suggested that
public broadcasters capable of practicable conversion are also capable
of planning without PTFP grants. RMCPB concluded that NTIA funds might
better be devoted to funding acquisition of digital components through
construction grants.
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10 See NPRM at 27230. The only organization not addressing
this issue was NTU.
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Both APTS and PBS suggested changes in NTIA policy to encourage
digital conversion. APTS expressed concern that the number of
applications for planning grants for ATV conversion could swamp the
PTFP funds if a large number of public television stations seek
planning grants. APTS noted that
[[Page 57969]]
it and PBS have launched efforts to coordinate public television's
transition to digital technology. APTS urged NTIA to clarify that these
coordinated efforts, such as reducing the cost of digital transition by
pooling engineering resources, establishing model planning programs for
different types of stations, and consolidating buying power in order to
obtain volume discounts, would be eligible for PTFP planning funds.
APTS requested that these coordinated efforts be afforded a high
priority in receiving Federal grants. APTS also urged that NTIA make it
clear that planning for capital campaigns to finance the transition to
ATV at individual public television stations will be eligible for
planning grants. APTS noted that for a number of stations, the cost of
planning capital campaigns will itself be a significant drain on their
finances.
PBS addressed two issues in its comments regarding digital
conversion: fund allocation priority and the percentage of costs that
may be funded. Because digital television is intended to replace,
rather than to supplement, analog television and because the FCC plans
to mandate a transition to digital and abandonment of analog operation,
PBS urged that NTIA consider the coordinated planning of digital
facilities as a first service to an unserved area, with no diminution
of priority because of the existence of analog service. PBS also urged
that such applications be considered new or extended service, thereby
qualifying the proposals for 75% rather than only 50% funding.
PBS also suggested that some aspects of the proposed regulations
may require modification after the FCC adopts its digital television
regulations. PBS noted as an example that the FCC may not require the
filing of applications for digital conversion or may establish
timetables which may not conform to that required under the PTFP
regulations. NTIA recognizes that the FCC has the lead in establishing
policy regarding television's transition to digital technology and will
indeed be mindful of FCC requirements for digital conversion. NTIA will
ensure that the PTFP regulations do not restrict public television's
ability to seek Federal funding or FCC authorizations during the
conversion to digital technology. NTIA will also keep an open mind on
the use of ancillary data streams on NTIA-funded facilities.
PBS suggested that NTIA should be flexible in releasing the Federal
interest in analog equipment that becomes obsolete because of the
transition to digital equipment. PBS further noted that a ten-year
Federal interest period may be inappropriate for digital equipment,
since the useful life span of this equipment is as yet unknown. In a
similar comment, IURTS noted that even traditional broadcast-grade
products cannot remain current for the duration of the ten-year Federal
interest period. IURTS commented that PTFP should consider reducing the
federal interest period from ten years. IURTS is concerned that due to
the rapid advancements in computer platforms and operating systems in
today's market, the hardware and software will be obsolete in about
half the Federal interest period described by PTFP. IURTS recommended
that NTIA expand its support of computer-based PC-type technology in
place of traditional broadcast products. Specific reference was made to
PC based character generators, still-store devices, digital special
effects devices, replacement for audio carts, digital audio
workstations, etc. With the development of PC-based technology, IURTS
noted that these less-expensive solutions can reduce station's costs
while still providing service to the community. Acknowledging that
these PC-based solutions will not last the ten-year Federal interest
period, IURTS recommended both a shortening of the Federal interest
period and a corresponding reduction in the recommended funding level.
IURTS gave an example of a dual channel still-store normally funded by
PTFP at a $50,000 level which could be reduced to $25,000 and provide
many stations with digital options they could not otherwise afford or
support.
NTIA acknowledges the problem in a rapidly changing technical
environment that some analog or digital broadcast equipment may not
have a useful life of ten years. PTFP is mandated by statute to
maintain a ten-year Federal interest period. See 47 U.S.C. 392(g).
While we appreciate the concerns expressed by PBS and IURTS, until such
time as the statute is changed, NTIA is bound to maintain this
requirement. NTIA notes that grantees may have alternatives in
satisfying NTIA's Federal interest in equipment and calls grantees
attention to Sec. 2301.22(g) Transfer of Federal interest to different
equipment of the final rules. Under this provision, a grantee may
request that the Agency transfer the remaining Federal interest in a
piece of equipment to another item of equipment presently owned or to
be purchased by the grantee with non-Federal funds. Grantees may also
dispose of the equipment at any time in accordance with the Uniform
Administrative Requirements under OMB Circular A-110, section 34 and 15
CFR 24.32. The recipient may request disposition of the equipment from
the agency; and, if the fair market value of the equipment at the time
of disposition is under $5,000, there is no further obligation to the
Federal Government.
NTIA appreciates the support shown by the public comments for its
interest in participating in the digital conversion of public
broadcasting facilities. We have carefully considered the suggestions
for changes in the proposal offered by the respondents, including
changes to priorities and funding levels. We believe that it is
premature to make those changes at this time since so much about the
transition to digital technology is still unknown. The FCC has neither
adopted technical standards for digital television nor established its
digital television regulations. It has yet to set a timetable for the
transition of television facilities from analog to digital technology.
NTIA will work with the public broadcasting community and closely
monitor the development and transition to digital technologies. As
conditions warrant, NTIA can revise its policies towards digital
conversion through publication of the annual closing date notice or
through other publications. For the moment, we will adopt the
suggestion of RMCPB, which noted that, despite the Agency's recognition
of the issue of digital conversion, there was no provision in the
proposed rules for addressing the issue or welcoming applications to
plan for conversion. We have modified the language in Sec. 2301.4(b)(6)
Other Cases within the Broadcast Applications section to specifically
reference planning applications for digital conversion as a unique or
innovative project. NTIA has been routinely funding digital equipment
for replacement which is compatible with the proposed standards for
digital television. Under Other Cases, NTIA would also accept
applications for construction of digital facilities that could be
considered unique or innovative.
In addition to the comments on these three major sections, there
were public comments on several other changes in the Notice of Proposed
Rulemaking.
Section 2301.2 Definitions
APTS expressed concern about its perceived change to the Federal
interest period to the useful life of the equipment under the
definition contained in Sec. 2301.2 of the proposed rule. We did not
change the federal interest period, as mandated in 47 U.S.C. 392(g),
from ten years to the useful life. The federal interest period remains
at ten years and is primarily a
[[Page 57970]]
financial interest within which PTFP must collect a proportionate share
of the Federal funds expended under an award if a grantee ceases to be
a public telecommunications entity or the facilities cease to be used
for the provision of public telecommunications services. We intended to
clarify that Federal Constitutional interests, for example, the First
Amendment's protections under the Establishment of Religion and the
Freedom of Speech Clauses, and the Fourteenth Amendment's equal rights
protections, extend for the useful life of the facilities. Even where a
grant program statute establishes a federal interest period, the
Supreme Court has ruled that certain Constitutional guarantees remain
for the useful life of Federally-funded facilities.11 We have
inserted ``Constitutional'' to clarify what federal interests extend
for the useful life of property.
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\11\ See Tilton v. Richardson, 403 U.S. 672 (1971).
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RMCPB suggested we define the term ``useful life.'' A definition of
``useful life'' has been added as the last defined term in Sec. 2301.2.
Section 2301.5 Special Consideration
As mandated by Congress under Sec. 392(f) of the Act, the Agency
will give special consideration to applications that foster ownership
of, operation of, and participation in public telecommunications
entities by minorities and women. This statutory provision remains and
over the past nine years, the Corporation for Public Broadcasting has
assembled a report to Congress on the provision of services to minority
and diverse audiences by public telecommunications entities, which
evidences the continued need for these services. NTIA is particularly
concerned with the provision of services to minorities, women, and
diverse audiences by public telecommunications entities. Therefore,
NTIA will continue to evaluate how well applicants demonstrate
significant diversity in the ownership of, operation of, and
participation in public telecommunications facilities. Special
consideration, therefore, remains as one of several evaluation criteria
contained in the regulation, specifically, at 15 CFR 2301.17(b)(6).
NFCB expressed concern over the elimination of the 50% minimum
participation of minorities an/or women in order to qualify for special
consideration. NFCB argued that the elimination of the 50% minimum
requirement may open up special consideration to such a degree that it
becomes useless as a factor in evaluating applications. NTIA does not
believe that it is necessary to establish any minimum minority or women
participation requirements for special consideration in PTFP
evaluations in order to carry out the objectives of the statute.
Rather, NTIA believes that the congressional intent can be achieved in
a fair and flexible manner by taking into account all factual
circumstances that might lead to special consideration.
PTFP applies special consideration to encourage all applicants to
assist the program to achieve one of its statutory purposes, to
increase the amount of public telecommunications facilities owned by,
operated by and participated in by minorities and women. Employment of
minorities or women is not the only way in which NTIA may assess
whether an application promotes significant diversity in the ownership
of, operation of, and participation in by minorities and women. NTIA is
also interested in outreach efforts, audience development, and
programming strategies. One stated purpose of this program is to
respond to the educational, cultural and related programming needs of
diverse groups. If an applicant can demonstrate to the NTIA that its
application is furthering the statutory objective, that application
will be more highly rated under the special consideration factor.
The language of this section has been modified to clarify NTIA's
policy on special consideration and an accompanying modification has
been made in the Special Consideration evaluation criterion in
Sec. 2301.17(b)(6). To the degree there is any discrepancy of
interpretation, this final rule will take precedence and is intended to
describe special consideration as required by 47 U.S.C. 392(f).
Section 2301.6 Amount of Federal Funding
RMCPB observed that Sec. 2301.6(a) permits 100% Federal funding of
planning grants and noted that this provision is permissive and not
obligatory. Since NTIA has limited funds for the PTFP program, RMCPB
suggested that 75% be the general presumption for planning purposes.
NTIA appreciates this suggestion and notes that most of the planning
grants awarded by PTFP in recent years include matching in-kind
services and funds contributed by the grantee. Modifying Sec. 2301.6(a)
as suggested by RMCPB would codify what already has become PTFP
practice. We are, however, mindful that planning grants are sometimes
the only resource that emerging community groups have with which to
initiate the planning of new facilities in unserved areas. We have,
therefore, included a provision at Sec. 2301.(6)(a)(2) that NTIA will
continue to award up to 100% of total project costs in cases of
extraordinary need. We have also modified the evaluation criteria with
a new section at Sec. 2301.17(b)(3) to reflect the need for applicants
to justify a request for more than 75% Federal funding for planning
projects.
Section 2301.8 Submission of Applications
RMCPB expressed concern in a change in the proposed Sec. 2301.8(d)
which removed the number of copies of applications required by NTIA
from the specific number ``2'' to the more flexible ``the number of
copies specified by the Agency.'' RMCPB pointed out that any increase
in the number required will be an added burden on the small station and
community broadcaster applicants. We note that under 5 CFR
1320.5(d)(2)(iii), an agency can only require an original plus two
copies of an application. Any request for additional copies would have
to be justified to and cleared by the Office of Management and Budget.
The flexibility in the number of applications which NTIA can request
is, therefore, extremely limited. For the first time in FY 1996, NTIA
requested three copies of an application to permit concurrent
processing of the applications by NTIA reviewers and thereby enable
issuance of timely awards.
APTS expressed its concern about NTIA's proposal to delete from the
rules the specific showings required of applicants and to specify those
requirements in the application form in the bid solicitation. APTS
indicated that, while the deletion of this information is intended to
give NTIA flexibility to reduce application burdens, the proposal can
create uncertainty as to the showing required of applicants. APTS
continued that the flexibility conferred would also permit NTIA to
impose additional burdensome requests without affording public
broadcasters the opportunity to comment meaningfully.
NTIA appreciates the concerns expressed by APTS. It was NTIA's
intention in removing the specific requirements from the Rules to give
NTIA the flexibility of future reductions in requirements on the
application form to lessen the burden on applicants. We believe that
this flexibility will be beneficial to applicants in several ways.
First, it will permit NTIA to lessen the burden on applicants during
the FY 97 grant cycle while using the existing PTFP application form.
These
[[Page 57971]]
improvements will include several changes supported by APTS which are
contained in the proposed rules, such as the proposal to modify the
requirement that an applicant report changes in its board structure and
to require applicants to provide only summaries of their application to
the State Single Point of Contact rather than complete copies of the
application. Second, flexibility in these final rules will permit NTIA
to further lessen the burden on applicants through modification of the
PTFP application form in 1997 without having to promulgate another set
of accompanying PTFP rules.12 Promulgation of a set of PTFP rules
is a lengthy administrative process and one that cannot be done every
year. The average PTFP rules are in force for a period of three to five
years. Therefore, removing the specific application requirements from
the final rules also gives NTIA the flexibility of continually making
improvements in lessening applicant burdens during the periods between
formal revisions of the PTFP rules. NTIA supports a continuing dialog
with members of the public telecommunications community to improve the
responsiveness of the PTFP. PTFP continually solicits comments on the
application process from those who are sent the application packet,
both from applicants and those who choose not to submit an
application.13 NTIA will also discuss application guidelines with
members of NTIA's National Advisory Panel of Public Broadcasting
Organizations at its annual meetings.
---------------------------------------------------------------------------
\12\ The current PTFP application form expires October 1, 1997.
The new form will be adopted after public comment in conjunction
with Office of Management and Budget review pursuant to the
Paperwork Reduction Act, 44 U.S.C. 3501., et. seq.
\13\ See for example the ``Special Note'' on the inside back
cover of the FY 96 PTFP Guideline for Preparing Applications.
---------------------------------------------------------------------------
APTS felt that NTIA's proposal could create uncertainty as to the
showing required of applicants since, ``the solicitation of bids is
typically published with only a few weeks notice before applications
are due.'' 14 NTIA has typically published formal announcements of
the acceptance of applications approximately 3 months before the
closing date.15 We believe that this is sufficient time for
preparation of applications since the major objectives and priorities
of the program are well known and have not significantly changed in
these final rules. PTFP distributes a detailed set of Guidelines to
assist applicants in the preparation of applications, and applicants
may contact PTFP for technical assistance in the preparation of
application during the period prior to the application deadline.
---------------------------------------------------------------------------
14 Comments from APTS, p. 4.
15 For fiscal year 1996, the Department of Commerce did
not receive a final appropriation until April 26, 1996. See
Department of Commerce and Related Agencies Appropriations Act,
1966, P.L. 104-134. This, in turn, left PTFP with five months to
review, evaluate and make awards.
---------------------------------------------------------------------------
APTS also commented on the financial responsibility requirements
contained in Secs. 2301.8 (g), (h) and (i). APTS believes that the
financial responsibility requirements ``confers virtually unfettered
discretion on NTIA as to which applicants will be subject to the
request for data,'' ``the scope of the inquiry is astonishingly
broad,'' can be ``potentially burdensome'' and contain ``vague
provisions''.16
---------------------------------------------------------------------------
\16\ Comments from APTS, p. 5-7.
---------------------------------------------------------------------------
Sections 2301.8 (g) and (h) are based on the ``Department of
Commerce Financial Assistance Name Check Procedures.'' This policy has
been in effect since 1988, has served as a reasonable attempt to
protect the public interest, and has not proven to be overburdensome.
NTIA does not intend to use the ``responsibility determination''
process in a punitive or detrimental manner against potential award
recipients. As an agency which has been provided authority to make
discretionary decisions for the Federal Government, it is reasonable
for NTIA to make every effort to determine that potential award
recipients are responsible. To the extent possible, the regulation is
intended to ensure that there are no matters facing potential award
recipients that might significantly and negatively impact on their
business honesty, financial integrity and/or ability to successfully
perform the proposed grant activity. We think that the trust vested in
NTIA demands that it makes a reasonable attempt to protect the public
interest by trying to ensure that it deals with only responsible
parties. Therefore, no changes have been made to this section.
Based on ``a reasonable person'' standard which is employed
throughout these regulations, we feel that Sec. 2301.8(i) is clear.
Unsatisfactory performance essentially means that one does not
substantially achieve his or her project goals and objectives. As
project goals and objectives vary from one project to another,
unsatisfactory performance must, to some extent, be situationally
determined. It would be unreasonable to attempt to precisely define
``unsatisfactory performance'' in the regulation for all projects, all
circumstances and for all times.
Section 2301.10 Applications Resulting From Catastrophic Damage or
Emergency Situations
APTS and RMCPB commented on NTIA's addition of a phrase regarding
``complete equipment failure'' to this section on applications
resulting from catastrophic damage or emergency situations. RMCPB
characterized the proposal as being ``a box of Pandoras''. APTS warned
that NTIA may inadvertently create a loophole in the funding priorities
by creating incentives for applicants to claim that the imminent loss
of an essential piece of equipment warrants an immediate grant. APTS
continued that unlike a catastrophic loss, a clearly defined
unanticipated event, the complete loss of essential equipment lacks any
clearly defining moment. APTS concluded that, in many cases, the
``loss'' may have been avoided by a timely request for funding.
NTIA believes that APTS and RMCPB raise valid concerns, which are
shared by the Agency. NTIA's intent in making this proposal was to be
able to quickly respond to the emergency of a complete failure of basic
equipment essential to a station's continued operation, whether that
failure was caused by natural or manmade causes. This section is
limited to equipment essential to a station's continued operation. We
do not believe this section would include most program origination
equipment but rather would be applicable to equipment such as
transmitters, tower, antennas, STL's or similar equipment which, if the
equipment failed, would result in a complete loss of service to the
community. For example, NTIA recently received an emergency request
from an applicant regarding the strengthening of a tower. A recent
engineering study on the tower indicated that the tower was dangerously
overloaded and in danger of imminent collapse. NTIA felt that it was
both prudent and good business sense to make the modest investment in
strengthening the tower on an emergency grant basis rather than risking
loss of service to a community and incur the greater expense of
replacing a collapsed tower.
NTIA will, therefore, retain the originally proposed language in
this section but will add clarifying language in regarding the nature
of the equipment eligible for emergency applications, as well as
language indicating that an applicant claiming complete equipment
failure must document the circumstances of the equipment failure and
demonstrate that the equipment has
[[Page 57972]]
been maintained in accordance with standard engineering practice.
Section 2301.11 Service of Applications
NPR and RMCPB supported NTIA's proposal in Sec. 2301.11 that the
applicant's notification to the SPOC, the FCC and the state
telecommunications agencies need only be a summary of the application,
rather than the full application required in prior PTFP Rules. Both
organizations cautioned, however, that if selecting/compiling excerpt
materials is too complicated, it will be an added burden on applicants
instead of a benefit. RMCPB noted that the New Mexico Commission on
Public Broadcasting only needs to review pages 1 and 2 of the PTFP
application form and the narrative. NTIA's intent in proposing that
applicants submit a summary of the application rather than the full
application to the SPOC and other appropriate agencies was intended to
reduce the paperwork burden on applicants. We did not intend this
summary to be a burdensome exercise and the information suggested by
RMCPB appears to be reasonable notification. In making notification to
the appropriate agencies, applicants should make clear that additional
information regarding their PTFP application is available upon request.
Future application materials will provide guidance as to what should be
included in the summary to provide adequate notification to the
requisite agencies while reducing the notification burden on all
applicants.
Section 2301.18 Selection Process
NTIA is making two revisions to this section to clarify internal
procedures in the selection process for the public. At Sec. 2301.18(a)
and the new Sec. 2301.18(b), we have added language which clarifies
that the PTFP Director presents recommendations to the OTIA Associate
Administrator for review and approval prior to their submission to the
NTIA Administrator. We have also clarified in the new
Sec. 2301.18(a)(4) that NTIA may consider in the selection of a grant
recipient whether the applicant has any current NTIA grants. This
provision recognizes that in some instances the presence of a current
NTIA grant is relevant in the decision to make a new award and does not
prohibit the award of new grants to current grant recipients.
Restatement of Existing Policies
We are also taking this opportunity to restate several long-
standing PTFP policies which were published in the preambles of
previous PTFP rules or as a separate policy statement. The following
policies remain in effect:
Evidence of Tax-exempt Status
Applicants who are eligible for a section 501(c)(3) exemption from
the IRS or the equivalent exemption from the Commonwealth of Puerto
Rico must submit a copy of that exemption. Applicants who are
ineligible for section 501(c)(3) exemption but who can demonstrate
nonprofit status by showing an applicable State tax exemption will be
considered on a case-by-case basis. They must submit: (a) Evidence of
their State tax-exempt status; (b) citation to, and a copy of, the
State statutory provisions governing that exemption; and (c) a brief
statement explaining why they lack a section 501(c)(3) exemption. (Fed.
Reg. Vol. 44, No. 104, p. 30899)
Equipment Which Becomes Obsolete Before the End of the Ten-year Period
of Federal Interest
In the case of equipment which becomes obsolete or wears out before
the ten-year period of Federal interest expires, we will permit the
trade-in or sale of the equipment and application of the remaining
portion of the ten-year period to the new equipment. (Fed. Reg. Vol.
44, No. 104, p. 30910)
Selection of Priority
In preparing the narrative portions of its application, each
applicant should state under which priority it desires NTIA to consider
its application. In doing so, each applicant makes sure that its
application contains sufficient documentation to justify its
qualification under the selected priority. NTIA will then evaluate the
application with the selected priority unless the Agency determines
that the priority selected by the applicant is not supported by the
documentation provided. Each applicant will be notified of any change
in the priority under which its application is to be considered. Such
notifications will be in writing and will not be subject to appeal.
(Fed. Reg. Vol. 47, No. 228, p. 53653)
Award of Deferred Applications
The Administrator retains the discretion to award grants to
deferred applications at any time where the Administrator can determine
with reasonable certainty that the particular project is exceptionally
meritorious (on the basis of the Agency's preliminary determination of
all other applications within the priority) and that the Agency would
fund the project after completing the evaluation of all the
applications in the priority (on the basis of the Agency's prior
experience in making grants.) Under this process, the Agency will be
able to fund applications that the Agency had deferred in the prior
year because of technical problems (such as the inability to obtain the
necessary FCC authorizations) which have since been eliminated. (Fed.
Reg. Vol. 47. No. 50, p. 11232.)
Support for Salary Expenses
NTIA regards its primary mandate to be funding the acquisition of
equipment and only secondarily the funding of salary expenses, even
when allowed by law. Moreover, NTIA notes that the competition for PTFP
funding remains intense. To ensure that PTFP monies are distributed as
effectively as possible in this competitive atmosphere, NTIA must weigh
carefully its support for any project cost not directly involved with
the purchase of equipment.
Therefore, NTIA generally will not fund salary expenses, including
staff installation costs, pre-application legal and engineering fees,
and pre-operational expenses of new entities. NTIA will support such
costs only when the applicant demonstrates that exceptional need exists
or that substantially greater efficiency would result from the use of
staff installation instead of contractor installation.
As regards the installation of transmission equipment, NTIA
strongly favors the use of either manufacturer or professional
contractor personnel and commonly funds these costs. NTIA believes that
the value of transmission equipment and the complicated nature of its
installation require expertise beyond that normally found on station
staffs.
NTIA will rarely support requests for assistance for the
installation of studio and test equipment, whether that installation is
by staff or by contract employees. Such installation is normally of
minimum difficulty, and the associated installation costs should be
absorbed in the recipient's normal operating budget. Again, NTIA will
take into account demonstrations of exceptional need. (Fed. Reg. Vol.
56, No. 226, p. 59172)
Sectarian Activities
Applicants are advised that on December 22, 1995, NTIA issued a
notice and an amendment to the PTFP regulations in the Federal Register
on its policy with regard to sectarian activities. Under NTIA's prior
policy, NTIA funds could not be used for any sectarian purposes. Under
the revised policy, while religious activities cannot be the essential
thrust of a grant, an
[[Page 57973]]
application will not be ineligible where sectarian activities are only
incidental or attenuated to the overall project purposes for which
funding is requested. (60 Fed. Reg. 66491).
It has been determined that this rule is not significant for
purposes of Executive Order (E.O.) 12866.
A Regulatory Flexibility Analysis is not required under The
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because the rules
were not required to be promulgated as proposed rules before issuance
as final rules by section 553 of the Administrative Procedures Act (5
U.S.C. 553) or by any other law. This rule does not contain policies
with Federalism implications sufficient to warrant preparation of a
Federalism assessment under Executive Order 12612.
The Department has determined that these rules will not
significantly affect the quality of the human environment. Therefore,
no draft or final Environmental Impact Statement has been or will be
prepared. Notwithstanding any other provision of law, no person is
required to respond to nor shall a person be subject to a penalty for
failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act unless that collection of
information displays a currently valid OMB Control Number.
The Office of Management and Budget has approved the information
collection requirements contained in these rules pursuant to the
Paperwork Reduction Act under OMB Control Nos. 0660-0003, 0660-0001 and
0605-0001. The public reporting burden for the application requirements
vary from 16 hours to 200 hours with an estimated average of 125 hours
per application, including associated exhibits; the reporting and
record keeping burden for the grant monitoring reports vary from 1 to
24 hours depending on the respective requirement; and, the reporting
burden for the name-check form (CD-346) is estimated at 15 minutes.
These estimates include the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collections of information. Send comments
regarding these burden estimates, or any other aspects of the
collections of information, including suggestions for reducing this
burden, to the Office of Policy and Coordination and Management, NTIA,
U.S. Department of Commerce, Washington, DC 20230; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503 (Attention: NTIA Desk Officer).
(Catalogue of Federal Domestic Assistance No. 11.550)
List of Subjects in 15 CFR Part 2301
Administrative procedure, Grant programs-communications, Reporting
and recordkeeping requirements, Telecommunications.
Larry Irving,
Administrator.
For the reasons set out above, part 2301 of title 15, Code of
Federal Regulations, is revised to read as follows:
PART 2301--PUBLIC TELECOMMUNICATIONS FACILITIES PROGRAM
Subpart A--General
2301.1 Program purposes.
2301.2 Definitions.
Subpart B--Application Requirements
2301.3 Applicant eligibility.
2301.4 Types of projects and broadcast priorities.
2301.5 Special consideration.
2301.6 Amount of Federal funding.
2301.7 Eligible and ineligible project costs.
2301.8 Submission of applications.
2301.9 Deferred applications.
2301.10 Applications resulting from catastrophic damage or
emergency situations.
2301.11 Service of applications.
2301.12 Federal communications commission authorizations.
2301.13 Public comments.
2301.14 Supplemental application information.
2301.15 Withdrawal of applications.
Subpart C--Evaluation and Selection Process
2301.16 Technical evaluation process.
2301.17 Evaluation criteria for construction and planning
applications.
2301.18 Selection process.
Subpart D--Post-Award Requirements
2301.19 General conditions attached to the Federal award.
2301.20 Schedules and reports.
2301.21 Payment of Federal funds.
2301.22 Protection, acquisition, and substitution of equipment.
Subpart E--Completion of Projects
2301.23 Completion of projects.
2301.24 Final Federal payment.
2301.25 Retention of records and annual status reports.
Subpart F--Waivers
2301.26 Waivers.
Authority: 47 U.S.C. 390-393 and 397-399b.
Subpart A--General
Sec. 2301.1 Program Purposes.
Pursuant to section 390 of the Act, (The Communications Act of
1934, as amended), the purpose of the Public Telecommunications
Facilities Program (PTFP) is to assist, through matching grants, in the
planning and construction of public telecommunications facilities in
order to achieve the following objectives:
(a) Extend delivery of public telecommunications services to as
many citizens in the United States as possible by the most efficient
and economical means, including the use of broadcast and nonbroadcast
technologies;
(b) Increase public telecommunications services and facilities
available to, operated by, and owned by minorities and women; and
(c) Strengthen the capability of existing public television and
radio stations to provide public telecommunications services to the
public.
Sec. 2301.2 Definitions.
Act means Part IV of Title III of the Communications Act of 1934,
47 U.S.C. 390-393 and 397-399b, as amended.
Administrator means the Assistant Secretary for Communications and
Information of the United States Department of Commerce who is also
Administrator of the National Telecommunications and Information
Administration.
Agency means the National Telecommunications and Information
Administration of the United States Department of Commerce.
Broadcast means the distribution of electronic signals to the
public at large using television (VHF or UHF) or radio (AM or FM)
technologies.
Closing date means the date and time which the Administrator sets
as the deadline for the receipt of applications during a grant cycle.
Construction (as applied to public telecommunications facilities)
means acquisition (including acquisition by lease), installation, and
improvement of public telecommunications facilities and preparatory
steps incidental to any such acquisition, installation or improvement.
Department means the United States Department of Commerce.
FCC means the Federal Communications Commission.
Federal interest period means the period of time during which the
Federal government retains a reversionary interest in all facilities
constructed with Federal grant funds. This period begins with the
purchase of the facilities and
[[Page 57974]]
continues for ten (10) years after the official completion date of the
project. Although OMB Circular A-110, sections 33 and 34 (58 FR 62992,
Nov. 29, 1993) and 15 CFR 24.31 and 24.32, specify that the Federal
government maintains a reversionary interest in the facilities for as
long as the facilities are needed for the originally authorized
purpose, PTFP's authorizing statute (47 U.S.C. 392(g)) limits the
reversionary period for ten years for purposes of this program.
However, Federal Constitutional limitations on the use of the
facilities survive for the useful life of the facilities whether or not
this period extends beyond the ten-year Federal interest period.
Minorities means American Indians, Alaska Natives, Asian or Pacific
Islanders, Hispanics, and Blacks, not of Hispanic Origin.
Nonbroadcast means the distribution of electronic signals by a
means other than broadcast technologies. Examples of nonbroadcast
technologies are Instructional Television Fixed Service (ITFS),
satellite systems, and coaxial or fiber optic cable.
Noncommercial educational broadcast station or public broadcast
station means a television or radio broadcast station that is eligible
to be licensed by the FCC as a noncommercial educational radio or
television broadcast station and that is owned (controlled) and
operated by a state, a political or special purpose subdivision of a
state, public agency or nonprofit private foundation, corporation,
institution, or association, or owned (controlled) and operated by a
municipality and transmits only noncommercial educational, cultural or
instructional programs.
Noncommercial telecommunications entity means any enterprise that
is owned (controlled) and operated by a state, a political or special
purpose subdivision of a state, a public agency, or a nonprofit private
foundation, corporation, institution, or association; and that has been
organized primarily for the purpose of disseminating audio or video
noncommercial educational, cultural or instructional programs to the
public by means other than a primary television or radio broadcast
station, including, but not limited to, coaxial cable, optical fiber,
broadcast translators, cassettes, discs, satellite, microwave or laser
transmission.
Nonprofit (as applied to any foundation, corporation, institution,
or association) means a foundation, corporation, institution, or
association, no part of the net earnings of which inures, or may
lawfully inure, to the benefit of any private shareholder or
individual.
Operational cost means those approved costs incurred in the
operation of an entity or station such as overhead labor, material,
contracted services (such as building or equipment maintenance),
including capital outlay and debt service.
Planning (as applied to public telecommunications facilities) means
activities to form a project for which PTFP construction funds may be
obtained.
Pre-operational costs means all nonconstruction costs incurred by
new public telecommunications entities before the date on which they
began providing service to the public, and all nonconstruction costs
associated with the expansion of existing stations before the date on
which such expanded capacity is activated, except that such costs shall
not include any portion of the salaries of any personnel employed by an
operating public telecommunications entity.
PTFP means the Public Telecommunications Facilities Program, which
is administered by the Agency.
PTFP Director means the Agency employee who recommends final action
on public telecommunications facilities applications and grants to the
Administrator.
Public telecommunications entity means any enterprise which is a
public broadcast station or noncommercial telecommunications entity and
which disseminates public telecommunications services to the public.
Public telecommunications facilities means apparatus necessary for
production, interconnection, captioning, broadcast, or other
distribution of programming, including but not limited to studio
equipment, cameras, microphones, audio and video storage or processors
and switchers, terminal equipment, towers, antennas, transmitters,
remote control equipment, transmission line, translators, microwave
equipment, mobile equipment, satellite communications equipment,
instructional television fixed service equipment, subsidiary
communications authorization transmitting and receiving equipment,
cable television equipment, optical fiber communications equipment, and
other means of transmitting, emitting, storing, and receiving images
and sounds or information, except that such term does not include the
buildings to house such apparatus (other than small equipment shelters
that are part of satellite earth stations, translators, microwave
interconnection facilities, and similar facilities).
Public telecommunications services means noncommercial educational
and cultural radio and television programs, and related noncommercial
instructional or informational material that may be transmitted by
means of electronic communications.
Sectarian means that which has the purpose or function of advancing
or propagating a religious belief.
State includes each of the fifty states, the District of Columbia,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Northern Mariana Islands.
System of public telecommunications entities means any combination
of public telecommunications entities acting cooperatively to produce,
acquire or distribute programs, or to undertake related activities.
Useful life means the normal operating life of equipment.
Subpart B--Application Requirements
Sec. 2301.3 Applicant eligibility.
(a) To apply for and receive a PTFP Construction or Planning Grant,
an applicant must be:
(1) A public or noncommercial educational broadcast station;
(2) A noncommercial telecommunications entity;
(3) A system of public telecommunications entities;
(4) A nonprofit foundation, corporation, institution, or
association organized primarily for educational or cultural purposes
(see also 60 FR 66491 (Dec. 22, 1995)); or
(5) A state, local, or Indian tribal government (or agency
thereof), or a political or special purpose subdivision of a state.
(b) An applicant whose proposal requires an authorization from the
FCC must be eligible to receive such authorization.
(c) If an applicant does not meet the above eligibility
requirements, the application may be rejected and returned without
further consideration.
(d) An applicant may request a preliminary determination of
eligibility any time prior to the closing date.
Sec. 2301.4 Types of Projects and Broadcast Priorities.
An applicant may file an application with the Agency for a planning
or construction grant. To achieve the objectives set forth at 47 U.S.C.
393(b), the Agency has developed the following categories. Each
application shall be identified as a broadcast or nonbroadcast project
and must fall
[[Page 57975]]
within at least one of the following categories:
(a) Special applications. NTIA possesses the discretionary
authority to recommend awarding grants to eligible nonbroadcast
applicants whose proposals are unique or innovative and which address
demonstrated and substantial community needs (e.g., service to the
blind or deaf and nonbroadcast projects offering educational or
instructional services).
(b) Broadcast applications. The Broadcast Priorities are set forth
in order of priority for funding.
(1) Priority 1--Provision of Public Telecommunications Facilities
for First Radio and Television Signals to a Geographic Area. Within
this category, NTIA establishes three subcategories:
(i) Priority 1A--Projects that include local origination capacity.
This subcategory includes the planning or construction of new
facilities that can provide a full range of radio and/or television
programs, including material that is locally produced. Eligible
projects include new radio or television broadcast stations, new cable
systems, or first public telecommunications service to existing cable
systems, provided that such projects include local origination
capacity.
(ii) Priority 1B--Projects that do not include local origination
capacity. This subcategory includes projects such as increases in tower
height and/or power of existing stations and construction of
translators, cable networks, and repeater transmitters that will result
in providing public telecommunications services to previously unserved
areas.
(iii) Priority 1C--Projects that provide first nationally
distributed programming. This subcategory includes projects that
provide satellite downlink facilities to noncommercial radio and
television stations that would bring nationally distributed programming
to a geographic area for the first time.
(iv) Priority 1 and its subcategories apply only to grant
applicants proposing to plan or construct new facilities to bring
public telecommunications services to geographic areas that are
presently unserved, i.e., areas that do not receive public
telecommunications services. (It should be noted that television and
radio are considered separately for the purposes of determining
coverage. In reviewing applications from FM stations that propose to
serve, or that already serve, areas covered by AM-daytime only
stations, PTFP will evaluate the amount of service provided via the AM-
daytime only station in determining whether the FM proposal qualifies
for a Priority 1 or Priority 2, as appropriate.)
(v) An applicant proposing to plan or construct a facility to serve
a geographical area that is presently unserved should indicate the
number of persons who would receive a first public telecommunications
signal as a result of the proposed project.
(2) Priority 3--Replacement of Basic Equipment of Existing
Essential Broadcast Stations. (i) Projects eligible for consideration
under this category include the urgent replacement of obsolete or worn
out equipment at ``essential stations'' (i.e., existing broadcast
stations that provide either the only public telecommunications signal
or the only locally originated public telecommunications signal to a
geographical area).
(ii) To show that the urgent replacement of equipment is necessary,
applicants must provide documentation indicating excessive downtime, or
a high incidence of repair (i.e., copies of repair records, or letters
documenting non-availability of parts). Additionally, applicants must
show that the station is the only public telecommunications station
providing a signal to a geographical area or the only station with
local origination capacity in a geographical area.
(iii) The distinction between Priority 2 and Priority 4 is that
Priority 2 is for the urgent replacement of basic equipment for
essential stations. Where an applicant seeks to ``improve'' basic
equipment in its station (i.e., where the equipment is not ``worn
out''), or where the applicant is not an essential station, NTIA would
consider the applicant's project under Priority 4.
(3) Priority 3--Establishment of a First Local Origination Capacity
in a Geographical Area. (i) Projects in this category include the
planning or construction of facilities to bring the first local
origination capacity to an area already receiving public
telecommunications services from distant sources through translators,
repeaters, or cable systems.
(ii) Applicants seeking funds to bring the first local origination
capacity to an area already receiving some public telecommunications
services may do so, either by establishing a new (and additional)
public telecommunications facility, or by adding local origination
capacity to an existing facility. A source of a public
telecommunications signal is distant when the geographical area to
which the source is brought is beyond the grade B contour of the
origination facility.
(4) Priority 4 Improvement of Public Broadcasting Services.
(i) Projects eligible for consideration under this category are
intended to improve the delivery of public broadcasting services to a
geographic area. These projects include the establishment of a public
broadcast facility to serve a geographic area already receiving public
telecommunications services, projects for the replacement of basic
obsolete or worn-out equipment at existing public broadcasting
facilities and the upgrading of existing origination or delivery
capacity to current industry performance standards (e.g., improvements
to signal quality, and significant improvements in equipment
flexibility or reliability). As under Priority 2, applicants seeking to
replace or improve basic equipment under Priority 4 should show that
the replacement of the equipment is necessary by including in their
applications data indicating excessive downtime, or a high incidence of
repair (such as documented in repair records). Within this category,
NTIA establishes two subcategories: Priority 4A and Priority 4B.
(ii) Priority 4A. (A) Applications to replace urgently needed
equipment from public broadcasting stations that do not meet the
Priority 2 criteria because they do not provide either the only public
telecommunications signal or the only locally originated public
telecommunications signal to a geographic area. NTIA will also consider
applications that improve as well as replace urgently needed
production-related equipment at public radio and television stations
that do not qualify for Priority 2 consideration but that produce, on a
continuing basis, significant amounts of programming distributed
nationally to public radio or television stations.
(B) The establishment of public broadcasting facilities to serve a
geographic area already receiving public telecommunications services.
The applicant must demonstrate that it will address underserved needs
in an area which significantly differentiates its service from what is
already available in its service area.
(C) The acquisition of satellite downlinks for public radio
stations in areas already served by one or more full-service public
radio stations. The applicant must demonstrate that it will broadcast a
program schedule that does not merely duplicate what is already
available in its service area.
(D) The acquisition of the necessary items of equipment to bring
the inventory of an already-operating station to the basic level of
equipment requirements established by PTFP. This
[[Page 57976]]
is intended to assist stations that went on the air with a complement
of equipment well short of what the Agency considers as the basic
complement.
(iii) Priority 4B. The improvement and non-urgent replacement of
equipment at any public broadcasting station.
(5) Priority 5 Augmentation of Existing Broadcast Stations.
Projects in this category would equip an existing station beyond a
basic capacity to broadcast programming from distant sources and to
originate local programming.
(i) Priority 5A Projects to equip auxiliary studios at remote
locations, or to provide mobile origination facilities. An applicant
must demonstrate that significant expansion in public participation in
programming will result. This subcategory includes mobile units,
neighborhood production studios, or facilities in other locations
within a station's service area that would make participation in local
programming accessible to additional segments of the population.
(ii) Priority 5B--Projects to augment production capacity beyond
basic level in order to provide programming or related materials for
other than local distribution. This subcategory would provide equipment
for the production of programming for regional or national use. Need
beyond existing capacity must be justified.
(6) Other cases. NTIA possesses the discretionary authority to
recommend awarding grants to eligible broadcast applicants whose
proposals are so unique or innovative that they do not clearly fall
within the five Priorities listed in this section. Innovative projects
submitted under this category must address demonstrated and sub
stantial community needs or must address issues related to the
conversion of public broadcasting facilities to advanced digital
technologies.
(c) An applicant may request a preliminary determination of whether
a proposed project fits within at least one of the above listed
categories any time prior to the closing date.
(d) All applications will be reviewed after the closing date. If an
application does not fall within one of the listed categories, it may
be rejected and returned without further consideration.
Sec. 2301.5 Special consideration.
In accordance with section 392(f) of the Act, the Agency will give
special consideration to applications that foster ownership of,
operation of, and participation in public telecommunications entities
by minorities and women. Ownership and operation of includes the
holding of management and other positions in the entity, especially
those concerned with programming decisions and day-to-day operation and
management. Participation may be shown by the entity's involvement of
women and minorities in public telecommunications through its
programming strategies as meeting the needs and interests of those
groups. Minorities include American Indians or Alaska natives; Asian or
Pacific Islanders, Hispanics, and Blacks, not of Hispanic Origin. The
special consideration element is provided as one of several evaluation
criteria contained in the regulations at 15 CFR 2301.17(b)(6).
Sec. 2301.6 Amount of Federal funding.
(a) Planning grants. The Agency may provide up to one hundred (100)
percent of the funds necessary for the planning of a public
telecommunications construction project.
(1) Seventy-five (75) percent Federal funding will be the general
presumption for projects to plan for a public telecommunications
construction project.
(2) A showing of extraordinary need (e.g., small community group
proposing to initiate new public telecommunication service) will be
taken into consideration as justification for grants of up to 100% of
the total project cost.
(b) Construction grants. (1) A Federal grant for the construction
of a public telecommunications facility may not exceed seventy-five
(75) percent of the amount determined by the Agency to be the
reasonable and necessary cost of such project.
(i) Seventy-five (75) percent Federal funding will be the general
presumption for projects to activate stations or to extend service.
(ii) Fifty (50) percent Federal funding will be the general
presumption for the replacement, improvement or augmentation of
equipment. A showing of extraordinary need (i.e. small community-
licensee stations or a station that is licensed to a large institution
[e.g., a college or university] documenting that it does not receive
direct or in-kind support from the larger institution), or an emergency
situation will be taken into consideration as justification for grants
of up to 75% of the total project cost for such proposals.
(2) Since the purpose of the PTFP is to provide financial
assistance for the acquisition of public telecommunications facilities,
total project costs do not normally include the value of eligible
apparatus owned or acquired by the applicant prior to the closing date.
Inclusion of equipment purchased prior to the closing date will be
considered on a case-by-case basis only when clear and compelling
justifications are provided to PTFP. Obligating funds--either in whole
or in part--for equipment before the closing date is considered
ownership or acquisition of equipment. In like manner, accepting title
to donated equipment prior to the closing date is considered ownership
or acquisition of equipment.
(c) No part of the grantee's matching share of the eligible project
costs may be met with funds:
(1) Paid by the Federal government, except where the use of such
funds to meet a Federal matching requirement is specifically and
expressly authorized by the relevant Federal statute; or
(2) Supplied to an applicant by the Corporation for Public
Broadcasting, except upon a clear and compelling showing of need.
(d) No funds from the Federal share of the total project cost may
be obligated until the award period start date. If an applicant or
recipient obligates anticipated Federal Award funds before the start
date, the Department may refuse to offer the award or, if the award has
already been granted, disallow those costs of the grant. After the
closing date, the applicant may, at its own risk, obligate non-Federal
matching funds for the acquisition of proposed equipment.
Sec. 2301.7 Eligible and ineligible project costs.
(a) Each year the Agency reviews its list of eligible and
ineligible equipment, supplies, and costs. The list is published in the
Federal Register as part of the solicitation for applications and a
copy is provided with every application package for PTFP grants.
(b) All broadcast equipment that a grantee acquires under this
program shall be of professional broadcast quality. An applicant
proposing to utilize nonbroadcast technology shall propose and purchase
equipment that is compatible with broadcast equipment wherever the two
types of apparatus interface.
(c) Total project costs do not include the value of eligible
apparatus owned or acquired by the applicant prior to the closing date
unless approved by PTFP on a case-by-case basis in writing pursuant to
Sec. 2301.6(b)(2).
Sec. 2301.8 Submission of applications.
(a) Applications can be obtained from the following address: Public
Telecommunications Facilities Program,
[[Page 57977]]
NTIA/DOC, 14th Street and Constitution Avenue, NW., Room H-4625,
Washington, DC 20230.
(b) The Administrator shall select and publish in the Federal
Register a closing date by which applications for funding in a current
fiscal year are to be filed.
(c) All applications, whether mailed or hand delivered, must be
received by the Agency at the address listed in the annual Federal
Register announcement requesting applications at or before 5:00 P.M. on
the closing date. Applications received after the closing date shall be
rejected and returned without further consideration (but see
Sec. 2301.26).
(d) A complete application must include all of the information
required by the Agency application materials and must be submitted in
the number of copies specified by the Agency.
(e) Each copy of the Agency application must contain an original
signature of an officer of the applicant who is legally authorized to
sign for the applicant.
(f) Applicants must certify whether they are delinquent on any
Federal debt.
(g) Applicants may be required to submit Name Check forms (Form CD-
346) which may be used to ascertain background information on key
individuals associated with potential grantees as part of the
application, per Department Pre-Award Administrative Requirements and
Policies.
(h) Applicant organizations may also be subject to a responsibility
determination by the Department which may include but not be limited to
reviews of financial and other business activities. Responsibility
determinations are intended to ascertain whether potential grantee
organizations or their key personnel have been involved in or are
facing any matters that might significantly and negatively impact on
their business honesty, financial integrity and/or ability to
successfully perform the proposed grant activities.
(i) Unsatisfactory performance by the applicant under prior Federal
awards may result in the application not being funded.
Sec. 2301.9 Deferred applications.
(a) An applicant may reactivate an application deferred by the
Agency in a prior year during the two consecutive years following the
application's initial filing with the Agency; provided the applicant
has not substantially changed the stated purpose of the application.
(b) To reactivate a deferred application, the applicant must file
an updated application, whether mailed or hand delivered, at or before
5:00 P.M. on the closing date.
(c) An updated application must include all of the information
required by the Agency application materials and must be submitted in
the number of copies specified by the Agency.
(d) Deferred applications that are resubmitted under this section
and contain substantial changes will be considered as new applications.
(e) All deferred applications may be subject to a determination of
eligibility during subsequent grant cycles.
Sec. 2301.10 Applications resulting from catastrophic damage or
emergency situations.
(a) An application may be filed with a request for a waiver of the
closing date, as provided in Sec. 2301.26, when an eligible broadcast
applicant suffers catastrophic damage to the basic equipment essential
to its continued operation as a result of a natural or manmade
disaster, or as the result of complete equipment failure, and is in
dire need of assistance in funding replacement of the damaged
equipment. This section is limited to equipment essential to a
station's continued operation such as transmitters, tower, antennas,
STL's or similar equipment which, if the equipment failed, would result
in a complete loss of service to the community.
(b) The request for a waiver must set forth the circumstances that
prompt the request and be accompanied by appropriate supporting
documentation.
(c) A waiver will be granted only if it is determined that the
applicant either carried adequate insurance or had acceptable self-
insurance coverage.
(d) Applicants claiming complete failure of equipment must document
the circumstances of the equipment failure and demonstrate that the
equipment has been maintained in accordance with standard broadcast
engineering practices.
(e) Applications filed and accepted pursuant to this section must
contain all of the information required by the Agency application
materials and must be submitted in the number of copies specified by
the Agency.
(f) The application will be subject to the same evaluation and
selection process followed for applications received in the normal
application cycle, although the Administrator may establish a special
timetable for evaluation and selection to permit an appropriately
timely decision.
Sec. 2301.11 Service of applications.
On or before the closing date, all new or deferred applicants must
serve a summary copy of the application on the following agencies:
(a) In the case of an application for a construction grant for
which FCC authorization is necessary, the Secretary, Federal
Communications Commission, 1919 M Street, NW., Washington, DC 20554;
(b) The state telecommunications agency(-ies), if any, having
jurisdiction over the development of broadcast and/or nonbroadcast
telecommunications in the state(s) and the community(-ies) to be served
by the proposed project; and
(c) The state office established to review applications under
Executive Order 12372, 47 FR 30959, 3 CFR, 1982 Comp., p. 197, as
amended by Executive Order 12416, 48 FR 15587, 3 CFR, 1983 Comp., p.
186, in all states where equipment requested in the application will be
located and where the state has established such an office and wishes
to review these applications.
Sec. 2301.12 Federal Communications Commission authorizations.
(a) Each applicant whose project requires FCC authorization must
file an application for that authorization on or before the closing
date. NTIA recommends that its applicants submit PTFP-related FCC
applications to the FCC at least 60 days prior to the PTFP closing
date. The applicant should clearly identify itself to the FCC as a PTFP
applicant.
(b) In the case of FCC authorizations where it is not possible or
practical to submit the FCC license application with the PTFP
application, such as C-band satellite uplinks, low-power television
stations and translators, remote pickups, studio-to-transmitter links,
and Very Small Aperture Terminals, a copy of the FCC application as it
will be submitted to the FCC, or the equivalent engineering data, must
be included in the PTFP application.
(c) Applications requesting C-band downlinks are not required to
submit the FCC application or equivalent engineering data as part of
the PTFP application. When such a project is funded, however, grantees
will be required to submit evidence of FCC registration of the C-band
downlink prior to the release of Federal funds.
(d) Any FCC authorization required for the project must be in the
name of the applicant for the PTFP grant.
(e) If the project is to be associated with an existing station,
the FCC operating authority for that station must be current and valid.
(f) For any project requiring new authorization(s) from the FCC,
the applicant must file a copy of each FCC application and any
amendments with the Agency.
[[Page 57978]]
(g) If the applicant fails to file the required FCC application(s)
by the closing date, or if the FCC returns, dismisses, or denies an
application required for the project or any part thereof, or for the
operation of the station with which the project is associ ated, the
Agency may reject and return the application.
(h) No grant will be awarded until confirmation has been received
from the FCC that any necessary authorization will be issued.
Sec. 2301.13 Public comments.
(a) After the closing date, the Agency will publish a list of all
applications received.
(b) The applicant shall make a copy of its application available at
its offices for public inspection during normal business hours.
(c) A copy of the application will be available in the PTFP offices
for public inspection during normal business hours.
(d) Any interested party may file comments with the Agency
supporting or opposing an application and setting forth the grounds for
support or opposition. Any opposing comments must contain a
certification that a copy of the comments has been delivered to the
applicant. Comments must be sent to the address listed in
Sec. 2301.8(a).
(e) The Agency shall incorporate all comments from the public and
any replies from the applicant in the applicant's official file for
consideration during the evaluation of the application.
Sec. 2301.14 Supplemental application information.
(a) The Agency may request from the applicant any additional
information that the Agency deems necessary to clarify the application.
Applicants must provide to the Agency additional information that the
Agency requests within fifteen (15) days of the date of the Agency's
notice. Applicants must submit a copy of the requested information for
each copy of the application submitted by the closing date.
(b) Applicants must immediately provide to the Agency information
received after the closing date that materially affects the
application, including:
(1) State Single Point of Contact and State Telecommunications
Agency comments on applications;
(2) FCC file numbers and changes in the status of FCC applications
necessary for the proposed project;
(3) Changes in the status of proposed local matching funds,
including notification of the passage (including reduction or
rejection) of a proposed state appropriation or receipt (or denial) of
a proposed substantial matching gift;
(4) Changes that affect the applicant's eligibility under
Sec. 2301.3;
(5) Changes in the status of proposed production, participation, or
distribution agreements (if relevant to the proposed project);
(6) Changes in lease or site rights agreements; and
(7) Complete failure of major items of equipment for which
replacement costs have been requested or changes in the status of the
need for the equipment requested.
(c) Applicants must place copies of any additional information
submitted to the Agency in the copy of the application made available
for public inspection pursuant to Sec. 2301.13.
(d) Neither the Department nor the Agency will discuss the merits
of an application when it is under review.
Sec. 2301.15 Withdrawal of applications.
(a) Applicants may request withdrawal of an application from
consideration for funding without affecting future consideration.
Withdrawn applications will be returned by the Agency.
(b) A request that the Agency defer an application for
consideration in a subsequent year will be treated as a request for
withdrawal.
Subpart C--Evaluation and Selection Process
Sec. 2301.16 Technical evaluation process.
(a) In determining whether to approve or defer a construction or
planning grant application, in whole or in part, and the amount of such
grant, the Agency will evaluate all the information in the application
file.
(b) PTFP grants are awarded on the basis of a competitive review
process. The evaluation of the applications is based upon the
evaluation criteria provided under Sec. 2301.17.
(c) The competitive review process may include the following:
evaluation by PTFP staff; technical assessment by engineers; an
evaluation by outside reviewers, all of whom have demonstrated
expertise in either public broadcasting or distance learning; and
rating by a national advisory panel, composed of representatives of
major national public radio and television organizations.
(d) In acting on applications and carrying out other
responsibilities under the Act, the Agency shall consult (as
appropriate) with the FCC, the Corporation for Public Broadcasting,
state telecommunications agencies, public broadcasting agencies,
organizations, and other agencies administering programs that may be
coordinated effectively with Federal assistance provided under the Act;
and, the state office established to review applications under
Executive Order 12372, as amended by Executive Order 12416.
(e) Based upon the evaluation criteria contained in Sec. 2301.17,
the PTFP program staff will prepare summary evaluations. These will
incorporate the outside reviewers' recommendations, engineering
assessments, and program staff evaluations.
Sec. 2301.17 Evaluation criteria for construction and planning
applications.
(a) For each application that is filed in a timely manner by an
applicant, is materially complete, and proposes an eligible project,
the Agency will consider the evaluation criteria listed in
Sec. 2301.17(b):
(1) The criteria in paragraphs (b)(1), Applicant qualifications,
(b)(2), Financial qualifications, of this section are qualifying
criteria. Applications meeting the minimum qualifications on these
criteria will be considered for further review.
(2) The remaining four criteria listed in Sec. 2301.17(b) will be
weighted in the evaluation as follows:
(i) Criteria in paragraph (b)(3), Project objectives, and (b)(4),
Urgency, of this section will be given the most weight in the
evaluation.
(ii) The remaining criteria in paragraph (b)(5), Technical/Planning
qualifications, and (b)(4), Special consideration, of this section will
be given less weight and are listed in descending order.
(b) Evaluation criteria
(1) Applicant qualifications: Documentation that the applicant has
or will have the ability to complete the project, including having
sufficient qualified personnel to operate and maintain the facility,
and to provide services of professional quality.
(2) Financial qualifications: Documentation reflecting the
applicant's ability to provide non-Federal funds required for the
project, including funds for the local match and funds to cover any
ineligible costs required for completion of the project; and to ensure
long-term financial support for the continued operation of the facility
during the Federal interest period.
(3) Project objectives: The degree to which the application
documents that the proposed project fulfills the objectives and
specific requirements of one or more of the categories set forth
[[Page 57979]]
in Sec. 2301.4, documents the applicant's ability to implement the
proposed project and adequately justify the need for Federal funds in
excess of fifty (50) percent of total project costs (see
Sec. 2301.6(b)(2)), if requested for equipment replacement,
improvement, or augmentation projects; and, in the case of planning,
adequately justifies the need for Federal funds in excess of seventy
five (75) percent of total project costs (see Sec. 2301.6(a)(2)), if
requested.
(4) Urgency: Documentation that justifies funding the proposed
project during the current grant cycle or, when appropriate, that the
condition of existing equipment justifies its prompt replacement.
(5)(i) Technical qualifications (construction applicants only).
Documentation that the eligible equipment requested is necessary to
achieve the objectives of the project; that the proposed costs reflect
the most efficient use of Federal funds in achieving project
objectives; that the equipment requested meets current industry
performance standards (and FCC standards, if appropriate) and that an
evaluation of alternative technologies has been completed that
justifies the selection of the requested technology (where alternative
technologies are possible).
(ii) Planning Qualifications (planning applicants only).
Documentation of the feasibility of the proposed planning process and
timetable for achieving the expected results; that costs proposed
reflect the most efficient use of Federal funds; that the applicant has
sufficient qualified staff or consultants to complete the planning
project with professional results; and that an evaluation of
alternative technologies will be incorporated into the plan, if
appropriate.
(6) Special Consideration: For this evaluation criterion,
applicants should demonstrate that its broadcast or non-broadcast
application will achieve significant diversity in the ownership of,
operation of, and participation in public telecommunications
facilities. Applicants may demonstrate how their project will better
serve the characteristics, values and attitudes of diverse listeners by
promoting the development of more effective programming strategies,
conducting station outreach projects, through audience development
efforts, and through the participation of minorities and women on the
Board of Directors, and in other policy making positions.
(c) The Agency will provide each applicant with guidance in the
application materials on the type of documentation necessary to meet
each of the above evaluation criteria.
Sec. 2301.18 Selection process.
(a) The PTFP Director will consider the summary evaluations
prepared by program staff, rank the applications, and present
recommendations to the OTIA Associate Administrator for review and
approval. The Director's recommendations and the OTIA Associate
Administrator's review and approval will take into account the
following selection factors:
(1) The program staff evaluations, including the outside reviewers.
(2) The type of projects and broadcast priorities set forth at
Sec. 2301.4.
(3) Whether the application is for broadcast or a nonbroadcast
project.
(4) Whether the applicant has any current NTIA grants.
(5) The geographic distribution of the proposed grant awards.
(6) The availability of funds.
(b) Upon approval by the OTIA Associate Administrator, the
Director's recommendations will then be presented to the Selecting
Official, the NTIA Administrator.
(c) The Administrator makes final award selections taking into
consideration the Director's recommendations and the degree to which
the slate of applications, taken as a whole, satisfies the program's
stated purposes set forth at Sec. 2301.1 (a) and (c).
(d) No grant will be awarded until confirmation has been received
from the FCC that any necessary authorization will be issued.
(e) After final award selections have been made, the Agency will
notify the applicant of one of the following actions:
(1) Selection of the application for funding, in whole or in part;
(2) Deferral of the application for subsequent consideration;
(3) Rejection of the application with an explanation and the
reason, if an applicant is not eligible or if the proposed project does
not fall within at least one of the categories enumerated at
Sec. 2301.4; or
(4) Return of applications that were deferred by the Agency after
consideration during three grant cycles.
(f) The Agency will notify the following organizations of those
applications selected for funding:
(1) The state educational telecommunications agency(ies), if any,
in any state any part of which lies within the service area of the
applicant's facility;
(2) The FCC; and
(3) The Corporation for Public Broadcasting and, as appropriate,
other public telecommunications entities.
Subpart D--Post-Award Requirements
Sec. 2301.19 General conditions attached to the Federal award.
(a) During the project award period and the remainder of the
Federal interest period, the grantee must:
(1) Continue to be an eligible organization as described in
Sec. 2301.3;
(2) Obtain and continue to hold any necessary FCC authorization(s);
(3) Use the Federal funds for which the grant was made for the
equipment and other expenditure items specified in the application for
inclusion in the project, except that the grantee may substitute other
items where necessary or desirable to carry out the purpose of the
project if approved in advance by the Department in writing. These
changes include but are not limited to the following:
(i) Costs (including planning costs);
(ii) Essential specifications of the equipment;
(iii) The engineering configuration of the project;
(iv) Extensions of the approved grant award period; and
(v) Transfers of a grant award to a successor in interest, pursuant
to Sec. 2301.19(c);
(4) Use the facilities and any monies generated through the use of
the facilities primarily for the provision of public telecommunications
services and ensure that the use of the facilities for other than
public telecommunications purposes does not interfere with the
provision of the public telecommunications services for which the grant
was made;
(5) Not make its facilities available to any person for the
broadcast or other transmission intended to be received directly by the
public, of any advertisement, unless such broadcast or transmission is
expressly and specifically permitted by law or authorized by the FCC;
and
(6) State when advertising for bids for the purchase of equipment
that the Federal government has an interest in facilities purchased
with Federal funds under this program that begins with the purchase of
the facilities and continues for ten (10) years after the completion of
the project.
(b) During the period in which the grantee possesses or uses the
Federally funded facilities, the grantee may not use or allow the use
of the Federally funded equipment for purposes the essential thrust of
which are sectarian for the useful life of the equipment even when this
extends beyond the ten-year Federal interest period. (See NTIA's policy
on sectarian activities at 60 FR 66491, Dec. 22, 1995.)
[[Page 57980]]
(c) If necessary to further the purpose of the Act, the Agency may
reassign a grant to a successor in interest or subsidiary corporation
of a grantee in cases where a similar operational entity remains in
control of the grant and the original objectives of the grant remain in
effect. Each party must provide, in writing, its assent to the
substitution. Any substituted party must meet the eligibility
requirements.
Sec. 2301.20 Schedules and reports.
(a) Within thirty (30) calendar days of the award date the grantee
shall submit to the Agency, in duplicate, a construction schedule or a
revised planning timetable that will include the information requested
in the grant terms and conditions in the award package.
(b) During the project period of this grant, the grantee shall
submit performance reports, in duplicate, on a calendar year quarterly
basis for the period ending March 31, June 30, September 30, and
December 31, or any portions thereof. The Quarterly Performance Reports
should contain the following information:
(1) A comparison of actual accomplishments during the reporting
period with the goals and dates established in the Construction or
Planning Schedule for that reporting period;
(2) A description of any problems that have arisen or reasons why
established goals have not been met;
(3) Actions taken to remedy any failures to meet goals; and
(4) Construction projects must also include a list of equipment
purchased during the reporting period compared with the equipment
authorized. This information must include manufacturer, make and model
number, brief description, number and date of the items purchased, and
cost.
Sec. 2301.21 Payment of Federal funds.
(a) The Department will not make any payment under an award, unless
and until the recipient complies with all relevant requirements imposed
by this Part. Additionally:
(1) The Department will not make any payment until it receives
confirmation that the FCC has granted any necessary authorization;
(2) The Department may not make any payment under an award unless
and until all special award conditions stated in the award documents
that condition the release of Federal funds are met; and
(3) An agreement to share ownership of the grant equipment (e.g., a
joint venture for a tower) must be approved by the Agency before any
funds for the project will be released.
(b) As a general matter, the Agency expects grantees to expend
local matching funds at a rate at least equal to the ratio of the local
match to the Federal grant as stipulated in the grant award.
Sec. 2301.22 Protection, acquisition, and substitution of equipment.
(a) To assure that the Federal investment in public
telecommunications facilities funded under the Act will continue to be
used to provide public telecommunications services to the public during
the Federal interest period, the Agency may require a grantee to:
(1) Execute and record a document establishing that the Federal
government has a priority lien on any facilities purchased with funds
under the Act during the period of continuing Federal interest. The
document shall be recorded where liens are normally recorded in the
community where the facility is located and in the community where the
grantee's headquarters are located; and
(2) File a certified copy of the recorded lien with the
Administrator ninety (90) days after the grant award is received.
(b) The grantee shall maintain protection against common hazards
through adequate insurance coverage or other equivalent undertakings,
except that, to the extent the applicant follows a different policy of
protection with respect to its other property, the applicant may extend
such policy to apparatus acquired and installed under the project. The
grantee shall purchase flood insurance (in communities where such
insurance is available) if the facilities will be constructed in any
area that has been identified by the Federal Emergency Management
Agency as having special flood hazards.
(c) The grantee shall not dispose of or encumber its title or other
interests in the equipment acquired under this grant during the Federal
interest period.
(d) The grantee shall demonstrate that the grantee has obtained
appropriate title or lease satisfactory to protect the Federal interest
to the site or sites on which apparatus proposed in the project will be
operated. The grantee must have the right to occupy, construct,
maintain, operate, inspect, and remove the project equipment without
impediment to assure the sufficient continuity of operation of the
facility; and nothing must prevent the Federal government from entering
the property and reclaiming or securing PTFP-funded property.
(e) The Agency will allow the acquisition of facilities by lease;
however, the following requirements apply:
(1) The lease must be of benefit to the Federal government;
(2) The actual amount of the lease must not be more than the
outright purchase price would be; and
(3) The lease agreement must state that in the event of anticipated
or actual termination of the lease, the Federal government has the
right to transfer and assign the leasehold to a new grantee for the
duration of the lease contract.
(f) Transfer of equipment. Where the grant equipment is no longer
needed for the original purposes of the project, the Department may
transfer the equipment to the Federal government or an eligible third
party, in accordance with Office of Management and Budget guidelines.
(g) Transfer of Federal interest to different equipment. The
Department may transfer the Federal interest in PTFP-funded equipment
to other eligible equipment presently owned or to be purchased by the
grantee with non-Federal monies, provided the following conditions are
met:
(1) If the Federal interest is to be transferred to other equipment
presently owned or to be purchased by a grantee, the Federal interest
in the new equipment must be at least equal to the Federal interest in
the original equipment.
(2) Equipment previously funded by PTFP that is within the Federal
interest period may not be used in a transfer request as the designated
equipment to which the Federal interest is to be transferred.
(3) The same item can be used only once to substitute for the
Federal interest. However, the Federal interest in several items of
equipment from different grants may be transferred to a single item if
the request for all such transfers is submitted at the same time.
(4) A lien on equipment transferred to the Federal interest may be
required by PTFP and must be recorded in accordance with
Sec. 2301.23(b)(8). A copy of the lien document must be filed with the
PTFP within sixty (60) days of the date of approval of the transfer of
Federal interest.
(h) Termination by buy-out. A grantee may terminate the Federal
revisionary interest in a PTFP grant by buying out the Federal interest
with non-Federal monies. Buy-outs may be requested at any time.
Subpart E--Completion of Projects
Sec. 2301.23 Completion of projects.
(a) Upon completion of a planning project, the grantee must
promptly provide to the Agency two copies of any
[[Page 57981]]
report or study conducted in whole or in part with funds provided under
this program.
(1) This report shall meet the goals and objectives for which the
grant is awarded and shall follow the written instructions and guidance
provided by the Agency. The grant award goals and objectives are stated
in the planning narrative as amended and are incorporated by reference
into the award agreement.
(2) The Agency shall review this report for the extent to which
those goals and objectives are addressed and met, for evidence that the
work contracted for under the grant award was in fact performed, and to
determine whether the written instructions and guidance provided by the
Agency, if any, were followed.
(3) If the Agency determines that the report fails to address or
meet any grant award goals or objectives, or if there is no evidence
that the work contracted for was in fact performed, or if this report
clearly indicates that the written instructions and guidance provided
by the Agency, if any, were disregarded, then the Agency may pursue
remedial action.
(4) An unacceptable final report may result in the disallowance of
claimed costs and the establishment of an account receivable by the
Department.
(b) Upon completion of a construction project, the grantee must:
(1) Certify that the grantee has acquired, installed, and begun
operating the project equipment in accordance with the project as
approved by the Agency, and has complied with all terms and conditions
of the grant as specified in the Grant Award document;
(2) Certify that the grantee has obtained any necessary FCC
authorizations to operate the project apparatus following the
acquisition and installation of the apparatus and document the same;
(3) Certify and document that the facilities have been acquired,
that they are in operating order, and that the grantee is using the
facilities to provide public telecommunications services in accordance
with the project as approved by the Agency;
(4) Certify that the grantee has obtained adequate insurance to
protect the Federal interest in the project in the event of loss
through casualty;
(5) Certify, if not previously provided, that the grantee has
acquired all necessary leases or other site rights required for the
project;
(6) Certify, if appropriate, that the grantee has qualified for
receipt of funds from the Corporation for Public Broadcasting;
(7) Provide a complete and accurate final inventory of equipment
acquired under the project and a final accounting of all project
expenditures, including non-equipment costs (e.g., installation costs);
and
(8) Execute and record a final priority lien, if required by PTFP,
reflecting the completed project and assuring the Federal government's
reversionary interest in all equipment purchased under the grant
project for the duration of the Federal interest period.
(c) When an applicant completes a construction project, the Agency
will assign a completion date that the Agency will use to calculate the
termination date of the Federal interest period. The completion date
will usually be the date on which the project period expires unless the
grantee certifies in writing prior to the project period expiration
date that the project is complete and in accord with the terms and
conditions of the grant, as required under Sec. 2301.23(b)(1). If the
PTFP Director determines that the grantee improperly certified the
project to be complete, the PTFP Director will amend the completion
date accordingly.
Sec. 2301.24 Final Federal payment.
If the total allowable, allocable, and reasonable costs incurred in
completing the planning or construction project are less than the total
project award amount, the Agency shall reduce the amount of the final
Federal share on a pro rata basis. If, however, the actual costs
incurred in completing the project are more than the estimated total
project costs, in no case will the final Federal funds paid exceed the
grant award.
Sec. 2301.25 Retention of records and annual status reports.
(a) All grantees shall keep intact and accessible all records
specified in Office of Management and Budget Circular A-110 (for
educational institutions, hospitals, and nonprofit organizations), or
15 CFR part 24 (for State and Local Governments).
(b) Recipients of construction grants:
(1) Are required to submit an Annual Status Report for each grant
project that is in the Federal interest period. The Reports are due no
later than April 1 in each year of the Federal interest period.
Information about what is to be included in the Annual Status Report is
supplied to grant recipients at the time grants are closed out.
(2) Shall retain an inventory of the equipment for the duration of
the ten-year Federal interest period and shall mark project apparatus
in a permanent manner to assure easy and accurate identification and
reference to inventory records. The marking shall include the PTFP
grant number and an inventory number assigned by the grantee.
(3) May also be required to take whatever steps may be necessary to
ensure that the Federal government's reversionary interest continues to
be protected for the 10-year period by recording, when and where
required, a lien continuation statement and reporting that fact in the
Annual Status Report.
Subpart F--Waivers
Sec. 2301.26 Waivers.
It is the general intent of NTIA not to waive any of its
regulations. However, under extraordinary circumstances and when it is
in the best interests of the Federal government, NTIA, upon its own
initiative or when requested, may waive the regulations adopted
pursuant to section 392(e) of the Act. Waivers may only be granted for
regulatory requirements that are discretionary.
[FR Doc. 96-28771 Filed 11-7-96; 8:45 am]
BILLING CODE 3510-60-P #
