[Federal Register Volume 61, Number 105 (Thursday, May 30, 1996)]
[Proposed Rules]
[Pages 27230-27242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13572]
[[Page 27229]]
_______________________________________________________________________
Part VI
Department of Commerce
_______________________________________________________________________
National Telecommunications and Information Administration
_______________________________________________________________________
15 CFR Part 2301
Public Telecommunications Facilities Program; Proposed Rule
Federal Register / Vol. 61, No. 105 / Thursday, May 30, 1996 /
Proposed Rules
[[Page 27230]]
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
15 CFR Part 2301
[Docket No. 960524148-6148-01]
RIN 0660-AA09
Public Telecommunications Facilities Program
AGENCY: National Telecommunications and Information Administration
(NTIA), Commerce.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The National Telecommunications and Information Administration
(NTIA) is issuing a Notice of Proposed Rulemaking. This Notice is
intended to clarify and/or revise the rules and appendix 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. 390-393, and 397-399b (1988), 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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NTIA intends to issue Final Rules after it has received, evaluated
and addressed public comments on these Proposed Rules.
DATES: Comments must be filed no later than the close of business on
July 15, 1996.
ADDRESSES: Persons and organizations interested in commenting on the
Proposed Rules must send three copies of any comments to: Public
Telecommunications Facilities Program, NTIA, Department of Commerce,
14th Street and Constitution Avenue, NW, Room 4625, Washington, DC
20230. Attention: Dennis Connors.
FOR FURTHER INFORMATION CONTACT: Persons desiring further information
regarding the Proposed Rules should contact Dennis Connors, Public
Telecommunications Facilities Program, NTIA, DOC, 14th Street and
Constitution Avenue NW., Room 4625, Washington, DC 20230, telephone
(202) 482-5802.
SUPPLEMENTARY INFORMATION: In March 1995, President Clinton issued a
directive to Federal agencies regarding their responsibilities under
his Regulatory Reform Initiative. This initiative is part of the
National Performance Review and calls for immediate, comprehensive
regulatory reform. The President directed that all agencies undertake
an exhaustive review of all their regulations with an emphasis on
eliminating or modifying those that are obsolete or otherwise in need
of reform. These Proposed Rules represent the first step in NTIA's
response to this directive for the PTFP.
In keeping with the Presidential directive, NTIA has taken this
opportunity to thoroughly review the existing 1991 Rules.2 We are
proposing a number of changes discussed below which simplify or delete
requirements. In order to clarify the rules, we have removed internal
repetition as well as duplication of requirements set forth for
grantees in other government rules and regulations.
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\2\ See 15 CFR Part 2301, published in the Federal Register,
Vol. 56, No. 226, p. 59168. (November 22, 1991).
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The change most readily apparent to those familiar with the 1991
Rules is that the Proposed Rules have been completely reorganized to
make it easier for applicants and grantees to understand the
requirements of the program. Additional headers have been added and
minor language changes made to increase clarity. However, unless
discussed further below, the intent of the regulations remains the same
as in the 1991 Rules.
The most significant policy change contained in the Proposed Rules
includes a complete revision of the evaluation criteria which formerly
was contained in two sections, Sec. 2301.13 Funding Criteria for
Construction Applications and Sec. 2301.14 Funding Criteria for
Planning Applications. The Proposed Rules combine both construction and
planning evaluation criteria into a new Sec. 2301.17. The Proposed
Rules also add a description of PTFP's technical evaluation process in
Sec. 2301.16 and a description of the selection process used to award
grants in Sec. 2301.18.
Two clarifications have been made in the funding priorities, which
previously were contained in the Appendix to the 1991 Rules and are now
incorporated into the Proposed Rules at Sec. 2301.4. NTIA proposes to
modify the former Priority 4, Replacement and Improvement of Basic
Equipment for Existing Broadcast Stations. Under the proposed
Sec. 2301.(4)(b)(4) NTIA has redesignated this section as Priority 4,
Improvement of Public Broadcasting Services and expanded its scope. In
addition to the projects formerly included under Priority 4, NTIA now
will consider projects to construct public broadcast stations to
address underserved needs in an area already served by other public
broadcasting facilities. Under the previous funding priorities in the
Appendix to the 1991 Rules, NTIA considered applications intended to
serve areas already served by other public broadcasting facilities
within the Special Applications category while other broadcast projects
were considered within the funding Priorities. NTIA believes that all
broadcast applications should be evaluated within the funding
priorities. NTIA continues to believe that the PTFP's highest
priorities are the provision of a first signal to a geographic area
(Priority 1), urgent replacement of equipment at the sole station
serving a geographic area (Priority 2), and first local origination
(Priority 3). Therefore, projects to construct public broadcast
stations to address underserved needs in an area already served by
other public broadcasting facilities will be considered in Priority 4A,
where they will be considered with other applications from stations in
areas already served by another public broadcasting facility. The
remainder of Priority 4A and Priority 4B remain unchanged from the
Appendix to the 1991 Rules.
With the proposed revision of Priority 4, all broadcast
applications have been placed within the five funding priorities. The
Special Applications category therefore will consist solely of
nonbroadcast projects and the language of the Special Applications
category has been revised at Sec. 2301.(4)(a).
Under Sec. 390 of the Act, NTIA has the authority to consider
applications which further the delivery of public telecommunications
services to as many citizens in the United States as possible by the
most efficient and economical means. NTIA recognizes that the issue of
conversion to advanced digital technologies is of great importance for
the future viability of public broadcasting facilities in the United
States. NTIA believes that public broadcasters must adequately plan for
the transition to advanced digital technologies and will therefore
welcome applications which will assist in planning for the digital
conversion of public broadcasting facilities.
The following reviews each section of the Proposed Rules and
compares it with similar sections in the 1991 Rules.
Section 2301.1 Program Purposes
The new Sec. 2301.1 Program Purposes replaces Sec. 2301.2 Program
Purposes in the 1991 Rules. This section of the 1991 Rules for the most
part repeated the language contained in Sec. 393(b) of the Act. NTIA
believes that the overall purposes of the PTFP are better expressed in
Sec. 390 of the Act. This
[[Page 27231]]
section of the Act, restated in the new Sec. 2301.1, now serves as an
introduction to the PTFP Regulations.
Section 2301.2 Definitions
The new Sec. 2301.2 Definitions repeats for the most part
Sec. 2301.1 Definitions in the 1991 Rules. The definition for the term
``Non-Federal financial support'' has been deleted. The term is no
longer used since the requirement to report on three years of Non-
Federal financial support (Sec. 2301.5(d)(2)(viii) of the 1991 Rules)
has been deleted.
Three new definitions have been added. A new definition for the
term ``planning'' has been added to complement the definition for the
term ``construction,'' and a new definition has been added for
``closing date'' since the term is used throughout the Proposed Rules.
Further, the definition of ``Federal interest period'' has been
expanded to clarify that limitations on the use of Federally-funded
public telecommunications facilities, such as the prohibition on the
use PTFP funded equipment for the broadcast of advertisements (see
Sec. 2301.19(a)(5)) or the restrictions on sectarian use (see
Sec. 2301.19(b)) extend for the useful life of the equipment, whether
or not this period extends beyond the 10 year Federal interest period.
We are also adopting the definition of ``minorities'' which was
previously set forth in our policy statement printed in the Federal
Register, Vol. 44, No. 111, p. 33032.
Section 2301.3 Applicant Eligibility
The new Sec. 2301.3 Applicant Eligibility was contained as a part
of Secs. 2301.4(a), (b) and (e) Eligible Organizations and Projects of
the 1991 Final Rules. On December 22, 1995, NTIA issued a notice and an
amendment to the PTFP regulations in the Federal Register (60 FR 66491,
Dec. 22, 1995) on its policy with regard to sectarian activities. The
December 22, 1995 Notice revised the previous Sec. 2301.4 on
eligibility. The revisions outlined in that Notice are included in the
Proposed Rules in Sec. 2301.3. The process of obtaining preliminary
eligibility determinations (Sec. 2301.3(d)) has been simplified and
much of the prior language specifying this procedure (Sec. 2301.4(f) in
the 1991 Rules) has been eliminated.
Section 2301.4 Scope of Projects
The new Sec. 2301.4 Scope of Projects contains the material
included in the Appendix to the 1991 Rules dealing with Special
Applications and Priorities. This section replaces Sec. 2301.4(c) of
the 1991 Rules, which for the most part was another paraphrase of
Sec. 393(b) of the Act. We believe that it is more useful to applicants
that this new Sec. 2301.4 contain the scope of eligible projects
developed by NTIA to achieve the objectives of Sec. 393(b) of the Act.
Significant changes in Sec. 2301.4(a) Special Applications and
Sec. 2301.4(b)(4) Priority 4 applications were discussed earlier in
this document. Sec. 2301.4(b)(1)(iv) adds language to clarify how PTFP
considers the presence of AM daytime only stations in determining the
Priority for proposed FM facilities serving a similar coverage area.
Sec. 2301.4(c) parallels Sec. 2301.3(d) of the Proposed Rules in
permitting potential applicants to obtain preliminary eligibility
determinations. Sec. 2301.4(d) maintains the intent of
Sec. 2301.4(f)(3) of the 1991 Rules that the Agency will review all
applications after the closing date and that a preliminary eligibility
determination does not guarantee that the Agency will accept a future
application.
Section 2301.5 Special Consideration
The new Sec. 2301.5 Special Consideration is based in part on
Sec. 2301.3 Special Consideration in the 1991 Rules. The section has
been revised to reflect language in the Act (Sec. 392(f)). The sentence
regarding a requirement for special consideration of a minimum 50%
level of control of the applicant by women and minorities has been
deleted.
Section 2301.6 Amount of Federal Funding
The new Sec. 2301.6 Amount of Federal Funding is based upon
Sec. 2301.16 Amount of the Federal Grant in the 1991 Rules. Several
sentences in this section have been rearranged within the section to
group similar issues and increase the clarity of the regulation. We are
also taking this opportunity to clarify PTFP's position on the level of
matching funds required for broadcast equipment replacement,
improvement and augmentation projects and to make it more consistent
with treatment of non-Federal cost share under OMB Circular A-110 and
15 CFR Part 24. The new Sec. 2301.6(b)(ii) is a restatement of NTIA
policy previously published on November 22, 1991 (Fed. Reg. Vo. 56, No.
226, p. 59191) which indicates the presumption of 50% Federal
participation for equipment replacement, improvement and augmentation
projects. New language in Sec. 2301.6(b)(2) clarifies NTIA's existing
policy that obligating funds for equipment before the closing date is
considered ownership or acquisition of equipment and is not normally
permitted. However, NTIA will now consider on a case-by-base basis
inclusion of equipment as matching funds purchased prior to the closing
date due to unusual circumstances when a clear and compelling showing
is made. Sec. 2301.6(d) has been revised to indicate that if a grantee
obligates Federal funds before the project start date, those costs may
be disallowed. This revision replaces language in the 1991 Rules
(Sec. 2301.23(a)-(c)) which gave the Department the option of
terminating the entire grant.
Section 2301.7 Eligible and Ineligible Project Costs
The new Sec. 2301.7 Eligible and Ineligible Project Costs is based
on Sec. 2301.17 Items and Costs Ineligible for Federal funds from the
1991 Rules. Specific information on the eligible and ineligible costs
has been deleted from this section. The new language formalizes a
procedure that NTIA has been following in recent years, which is to
annually publish a list of eligible and ineligible costs in the Federal
Register as part of the solicitation of applications. The list will be
distributed as part of the application materials. Sec. 2301.7(c) has
been revised to reflect the change noted in the prior section regarding
Sec. 2301.6(b)(2).
Section 2301.8 Submission of Applications
Section 2301.9 Deferred Applications
Section 2301.10 Applications Resulting From Catastrophic Damage or
Emergency Situations
The new Secs. 2301.8 Submission of Applications, 2301.9 Deferred
Applications and 2301.10 Applications Resulting From Catastrophic
Damage or Emergency Situations are all derived from Sec. 2301.5
Application Procedures in the 1991 Rules. The former Sec. 2301.5 has
been divided into three sections for clarity, but the application
procedures contained in the three new sections are similar to that of
the 1991 Rules. Lengthy sections from the old Sec. 2301.5 regarding the
specific requirements to be submitted in a new or deferred application
have been deleted (e.g. Secs. 2301.5(d)(2)(i-xxii)) and 2301.5(e)(4)(i-
xi). Removing the specific requirements from the Rules will give NTIA
the flexibility of future reductions in requirements on the application
form to lessen the burden on applicants. For example, in FY 1997, NTIA
will, under the Proposed Rules, delete the requirement to submit the
three year report on Non-Federal Financial Support (Exhibit B) now
required by the 1991 Rules and contained in the current application
form. Specific requirements of the application are now and will
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continue to be contained in the application form that will be
distributed as part of application materials.
The Proposed Rules drop the specific requirement in the 1991 Rules
(Sec. 2301.5(d)(2)) that an applicant submit ``an original and one copy
of the Agency application form'' but now specifies at the new
Sec. 2301.8(d) that the applicant submit ``the number of copies
specified by the Agency.'' This will permit NTIA to be flexible, within
OMB guidelines, on the number of applications forms required in order
to complete processing of the applications in a timely manner.
Two paragraphs from the Additional Information section in the 1991
Rules (Sec. 2301.6(d)(1) and (2)) were relocated to the new Submission
of Applications section (Sec. 2301.8(g) and (h)) to notify potential
applicants of the use of Name Check forms and financial responsibility
determinations in the application review process. In Secs. 2301.8(g)
and(h), the Proposed Rules clarify the uses of these reports in the
application review process. The new Sec. 2301.8(i) is Department of
Commerce policy.
The new Sec. 2301.10 Applications Resulting From Catastrophic
Damage or Emergency Situations contains one significant change from
Sec. 2301.5(g) of the 1991 Rules. Under Sec. 2301.10(a), NTIA proposes
to consider the complete failure of basic equipment essential to a
station's continued operation, even if the failure is not the result of
a natural or manmade disaster, as an emergency situation which may
warrant immediate consideration of an application.
Section 2301.11 Service of Applications
The new Sec. 2301.11 Service of Applications was the former
Sec. 2301.7 Service of Applications in the 1991 Rules. Section
Sec. 2301.11(c) has been clarified to indicate that applicants must
notify the State Single Points of Contact (SPOC) in each state relevant
to the project that an application for funding has been submitted to
PTFP. In the opening sentence to this section, we further clarify that
the 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. 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 2301.12 Federal Communications Commission Authorizations
The new Sec. 2301.12 Federal Communications Commission
Authorizations was the former 2301.8 Federal Communications Commission
in the 1991 Rules. The section contains a few minor editorial
improvements in (a), (c), and (g) with no change in intent.
Section 2301.13 Public Comments
The new Sec. 2301.13 Public Comments is based on the former
Sec. 2301.11 Public Comments in the 1991 Rules. Under the new
Sec. 2301.13(a), NTIA intends to publish a list of all applications
received. This replaces the publishing of a list of applications
accepted for filing (Sec. 2301.9(a) contained in the 1991 Rules.) The
former listing of applications accepted for filing was often
incomplete, as determinations of eligibility were sometimes made after
the publication of the notice. NTIA believes that publication of a full
listing of applications received can be done soon after the closing
date, and better serves the public by permitting a longer period of
time for receipt of public comments. Sec. 2301.13(c) clarifies that
copies of the applications are available for public inspection in the
NTIA offices. The new Sec. 2301.13(d) has been modified to clarify that
only those public comments which oppose an application must be served
on the applicant. Sec. 2301.13(e) clarifies the use of the public
comments.
Section 2301.14 Supplemental Application Information
The new Sec. 2301.14 Supplemental Application Information is based
on Sec. 2301.6 Additional Information from the 1991 Rules. Paragraph
(b)(4) of this section has been revised to reduce the burden on
applicants. Where the 1991 rules require notification to NTIA of any
changes in the applicants ``board structure, in the applicant's
501(c)(3) status, or in the applicant's Articles of Incorporation or
Bylaws,'' the Proposed Rules only require notification to NTIA of
changes ``that affect the applicant's eligibility.'' In the new
organization of the Proposed Rules, several paragraphs have been moved
into or out of this section. Sec. 2301.15(f)(1) of the 1991 Rules was
moved into this section and is now contained in the new
Sec. 2301.14(d). As previously noted, two paragraphs from the
Additional Information section in the 1991 Rules (Secs. 2301.6(d) (1)
and (2)) were relocated to the new Submission of Applications section
(Secs. 2301.5 (h) and (i)).
Section 2301.15
Withdrawal of Applications
The new Sec. 2301.15 Withdrawal of Applications is taken from
Sec. 2301.9(g) of the 1991 Rules and placed in this separate section
for clarity. The section has been slightly revised with no change in
intent.
Section 2301.16 Technical Evaluation Process
The new Sec. 2301.16 Technical Evaluation Process combines elements
from several sections in the 1991 Rules. The new Sec. 2301.16(a) is
based on Sec. 2301.13 of the 1991 Rules. Secs. 2301.16 (c), (d), and
(e) parallel the procedures currently used by NTIA in the review of the
PTFP applications and are similar to the information contained in the
Notice of Closing Date for the FY 1996 Grant Cycle, published in the
Federal Register on February 22, 1996 (FR xxx). The new Sec. 2301.16(d)
is also based on Secs. 2301.12 (b) and (c) of the 1991 Rules.
Section 2301.17 Evaluation Criteria for Construction and Planning
Applications
The new Sec. 2301.17 Evaluation Criteria for Construction and
Planning Applications is totally new and replaces Sec. 2301.13 Funding
Criteria for Construction Applications and Sec. 2301.14 Funding
Criteria for Planning Applications in the 1991 Rules. The new
Sec. 2301.17 proposes six broad criteria upon which the applications
will be evaluated. These are: Project Objectives, Applicant
Qualifications, Urgency, Financial Qualifications, Special
Consideration, and either Technical Qualifications (for construction
projects) or Planning Qualifications (for planning projects). This new
section combines the evaluation criteria for planning and construction
applications in one place, reduces redundancy and clarifies the
evaluation criteria. The Agency will provide each applicant with
guidance in the application materials on the appropriate type of
documentation to meet each of the evaluation criteria which reflects
the type and priority of the application being proposed. We have not
assigned a weight to each of the criterion. In prior years, we have
weighted all criteria equally. We are soliciting comment on the
appropriate weights to be assigned.
Section 2301.18 Selection Process
The new Sec. 2301.18 Selection Process is a new section which
serves to distinguish the evaluation factors used in Sec. 2301.17 from
those additional factors used in the selection of the grant.
Secs. 2301.18 (a) and (b) parallel the procedures currently used by
NTIA in
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the selection of the PTFP applications for funding and are similar to
the information contained in the Notice of Closing Date for the FY 1996
Grant Cycle, published in the Federal Register on February 22, 1996
(Fed. Reg. Vol. 61, No. 36, p. 6912). The new Sec. 2301.18(c) is the
same as Sec. 2301.8(h) of the 1991 Rules. The new Secs. 2301.16 (d) and
(e) are based on Sec. 2301.15 (a) and (b) of the 1991 Rules.
Section 2301.19 General Conditions Attached to the Federal Award
The new Sec. 2301.19 General Conditions Attached to the Federal
Award is the first of several new sections which are derived from
Sec. 2301.22 Conditions Attached to the Federal Award in the 1991
Rules. The new Sec. 2301.19 combines, in order, the following
paragraphs from Sec. 2301.22 of the 1991 Rules, (b)(1), (2), (3), (16),
(4), (5), (11), and 2301.22(d). The remainder of Sec. 2301.22 in the
1991 Rules has been included in other sections as discussed below or
deleted as unnecessary. The new Sec. 2301.19(c) is based on
Sec. 2301.23(c)(1) of the 1991 rules with the last two sentences of the
new Sec. 2301.19(c) added for clarity.
Section 2301.20 Schedules and Reports
The new Sec. 2301.20 Schedules and Reports is based on
Secs. 2301.22(b) (8) and (12) Conditions Attached to the Federal Grant
in the 1991 Rules. These two paragraphs have been given their own
section for clarity. Several adjoining paragraphs, including
Secs. 2301.22(b) (9)-(11) and (13)-(17) have been deleted as
unnecessary as they are redundant with other sections of the Proposed
Rules or restate other law or OMB circulars.
Section 2301.21 Payment of Federal Funds
The new Sec. 2301.21 Payment of Federal Funds is based on
Sec. 2301.18 Payment of the Federal Grant of the 1991 Rules.
Sec. 2301.18(c) was removed from this section of the 1991 Rules and was
relocated to the new Sec. 2301.20(c) as more appropriate.
Section Sec. 2301.22 Protection, Acquisition and Substitution of
Equipment
The new Sec. 2301.22 Protection, Acquisition and Substitution of
Equipment, is based on Secs. 2301.22(a) and 2301.22(b)(7) of the 1991
Rules. Several portions of these paragraphs have been deleted as
redundant with other sections of the Proposed Rules. The new
Sec. 2301.22 includes several changes designed to provide the Agency
with flexibility in administering the program and to lessen the
regulatory impact on grantees. These changes deal with the conditions
under which a grantee is required to provide evidence of liens,
insurance and leases sufficient to protect the Federal government's 10
year reversionary interest in the PTFP funded equipment. The 1991 Rules
do not provide NTIA with any flexibility in requiring these items. The
Proposed Rules discuss the requirements that a grantee protect the
Federal government's interest in PTFP funded equipment by obtaining
insurance, having sufficient lease/ownership rights to property, and
securing the Federal interest by a lien. However, the Proposed Rules
delete specific ways that these items must be documented to the Agency.
For example, the new Sec. 2301.22(a) reduces a prior ``The grantee
shall'' in the 1991 Rules (Sec. 2301.18(a)) to the lesser ``The Agency
may require a grantee to'' provide liens within 90 days after a grant
award is received. Language reflecting this approach also appears in
Secs. 2301.22(g)(4), 2301.23((b)(8) and 2301.25(b). Likewise, specific
requirements for an attorney's letter of certification on property
lease/ownership right is also deleted from the regulations. NTIA would
like to explore alternate ways to protect the Federal interest which
will reduce the burden on grantees. We are therefore proposing to
revise these sections of the Proposed Rules to permit this future
flexibility.
The new Sec. 2301.22(e) replaces Sec. 2301.22(c) of the 1991 Rules.
NTIA is proposing to delete several restrictions on the lease of
equipment, specifically the former Sec. 2301.22(c)(1), which required
that the lease be for ``not less than the (10) years,'' and
Sec. 2301.22(c)(2), which limited the cost of the lease to ``not be
more than the total of the non-Federal share of the matching funds.''
NTIA believes that these statements were overly restrictive and now
proposes to consider any lease that is to the ``benefit to the Federal
government'' (new Sec. 2301.22(e)(1)).
The new Secs. 2301.22 (f)-(h) are based on Sec. 2301.23 (c) and (d)
Grant Suspension, Terminations and Transfers in the 1991 Rules and have
been revised for clarity.
Section 2301.23 Completion of Projects
The new Sec. 2301.23 Completion of Projects is based on
Sec. 2301.20 Completion of Projects in the 1991 Rules. Several
paragraphs have been renumbered and minor changes have been made in
Secs. 2301.23(a)(4) and (b)(1) to improve clarity. The requirement in
Sec. 2301.23(b)(4) to provide a copy of the insurance policy has been
dropped inasmuch as the same paragraph requires that the grantee must
certify its insurance coverage. Paragraph Sec. 2301.24(c) was contained
in Sec. 2301.18 in the 1991 Rules and is more appropriate in this
section. This sentence has been revised to clarify that the project
completion date is usually 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.
Section 2301.24 Final Federal Payment
The new Sec. 2301.24 Final Federal Payment is a revision of
Sec. 2301.16(d) of the 1991 Rules. This paragraph was given its own
section in the Proposed Rules for clarity. The language of the section
has been simplified without changing the intent.
Section 2301.25 Retention of Record and Annual Status Reports
The new Sec. 2301.25 Retention of Records and Annual Status Reports
is based on Sec. 2301.19 Retention of Records and Sec. 2301.21 Annual
Status Reports for Construction Projects in the 1991 Rules. The section
was shortened and the language retained notifies applicants and
grantees of NTIA's basic record keeping requirements. Further
information on records retention will be included in materials sent to
grantees at the time an award is made. The detailed procedural
information that is required in the annual status report has been
deleted from the proposed rule and will be provided to grantees at the
time a project is closed out.
Section 2301.26 Waivers
The new Sec. 2301.26 Waivers is based on Sec. 2301.25 Waivers in
the 1991 Rules. A sentence was added to clarify the Administrator's
waiver authority.
One significant section of the 1991 Rules has been deleted in its
entirety. This is Sec. 2301.10 Appeals. Applicants are given the
opportunity to request a preliminary determination of eligibility, and
are provided written notice. The Appeals process was rarely used.
We are also taking this opportunity to restate several long
standing PTFP policies which were published in the preambles of
previous PTFP rules. 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
[[Page 27234]]
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 10 Year Period
of Federal Interest
In the case of equipment which become obsolete or wears out before
the 10-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 10-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 application
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)
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 Sec. 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, D.C. 20230; and to the Office
of Information and Regulatory Affairs, Office of Management and Budget,
Washington, D.C. 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
requirements, Telecommunications.
Larry Irving,
Administrator.
Part 2301 of Title 15, Code of Federal Regulations, is proposed to
be revised to read as follows:
PART 2301--PUBLIC TELECOMMUNICATIONS FACILITIES PROGRAM
Subpart A--General
Sec.
2301.1 Program purposes.
2301.2 Definitions.
[[Page 27235]]
Subpart B--Application Requirements
2301.3 Applicant eligibility.
2301.4 Scope of projects.
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.
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: The Public Telecommunications Financing Act of 1978,
as amended, 47 U.S.C. Secs. 390-393 (Act). (Catalog of Federal
Domestic Assistance No. 11.550)
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 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 continues for ten (10) years after the
official completion date of the project. Although OMB Circular A-110
Secs. ____.33 and ____.34 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 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.
[[Page 27236]]
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.
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;
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 eligibility requirements of
this section, 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 Scope of projects.
An eligible 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 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 so unique or innovative that they do not
clearly fall within the priorities listed in paragraph (b) of this
section. Innovative projects submitted under this category must address
demonstrated and substantial community needs (e.g., service to the
blind or deaf and nonbroadcast projects offering educational or
instructional services).
(b) Priorities. (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 2--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
[[Page 27237]]
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:
(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 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.
(c) An applicant may request a preliminary determination of whether
a proposed project fits within at least one of the categories listed in
this section 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. The special consideration element is provided
as one of several funding criteria contained in the regulations,
specifically, at 15 CFR section 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.
(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.
[[Page 27238]]
(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, 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.
(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 during the prior year if the applicant has not substantially
changed the stated purpose of the application.
(b) An applicant may reactivate a deferred application only during
the two consecutive years following the application's initial filing
with the Agency.
(c) 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.
(d) 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.
(e) Deferred applications that are resubmitted under this section
and contain substantial changes will be considered as new applications.
(f) 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.
(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) 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.
(e) 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, N.W., Washington, DC 20554;
(b) The state telecommunications agency(-ies), if any, having
jurisdiction
[[Page 27239]]
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, as amended by Executive Order 12416, 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.
(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 associated, 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) Applicants may not contact the Department to 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.
(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
[[Page 27240]]
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
eligible applicant, is materially complete, and proposes an eligible
project, the Agency will consider the following factors:
(1) 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 in
Sec. 2301.4.
(2) Applicant Qualifications: Documentation that the applicant has
or will have sufficient qualified staff to complete the project,
operate and maintain the facility, and provide services of professional
quality.
(3) Urgency: Documentation that justifies funding the proposed
project during the current grant cycle.
(4) 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; to ensure
long-term financial support for the continued operation of the facility
during the Federal interest period; to adequately justify the need for
Federal funds in excess of fifty (50) percent of total project costs
(see Sec. 2301.6(b)(ii)), if requested for equipment replacement,
improvement, or augmentation projects; and, in the case of planning,
provide non-Federal support and resources (if proposed by the
applicant), including matching or in-kind support for the project.
(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); that the
condition of existing equipment justifies its prompt replacement; 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: Documentation of the extent to which
broadcast applications would increase minority and women's ownership
of, operation of, and participation in public telecommunications
entities, as stated in Sec. 2301.5
(b) 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 Selecting Official, the NTIA Administrator,
taking into account the following selection factors:
(1) The program staff evaluations, including the outside reviewers.
(2) The scope of projects set forth at Sec. 2301.4.
(3) Whether the application is for broadcast or a nonbroadcast
project.
(4) The geographic distribution of the proposed grant awards.
(5) The availability of funds.
(b) 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.
(c) No grant will be awarded until confirmation has been received
from the FCC that any necessary authorization will be issued.
(d) 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.
(e) 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 agency 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
[[Page 27241]]
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 (10) year Federal interest period.
(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 Secretary of Health and Human
Services 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 Agency 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 Agency
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.
[[Page 27242]]
(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 Administrator two copies of any report or study
conducted in whole or in part with funds provided under this program by
sending the copies to the Agency.
(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, then in no case will the final Federal funds paid exceed
the initial 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), and 15 CFR part 29a
(Audit Requirements for State and Local Governments) or 15 CFR part 29b
(Audit Requirements for Institutions of Higher Education and Other
Nonprofit Organizations), as appropriate.
(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 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.
For good cause shown, the Administrator may waive the regulations
adopted pursuant to section 392(e) of the Act. Waivers may only be
granted for regulatory requirements that are discretionary and not
statutorily mandated.
[FR Doc. 96-13572 Filed 5-29-96; 8:45 am]
BILLING CODE 3510-60-P
