E7-16457. FCC Seeks Comment on Proposed Application Limit for NCE FM New Station Applications in October 12-October 19, 2007 Window

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

The Commission seeks comment on a proposed application limit in the noncommercial educational FM broadcast application filing window scheduled for October 12-October 19, 2007. The purpose of the proposed limit is to deter speculation and permit the expeditious processing of applications filed in the window. The Commission tentatively concludes that an appropriate limit for any party is an attributable interest in no more than ten applications for new noncommercial educational FM broadcast stations filed in the window, excluding major modification applications and pending applications.

DATES:

Comments are due September 6, 2007. Reply comments are due September 17, 2007. 47 CFR 1.4(b)(1) governs the calculation of such filing dates.

ADDRESSES:

Mail comments and reply comments to the Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, with a copy to the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Irene Bleiweiss, 202-418-2785.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing Addresses. Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/​cgb/​ecfs/​ or the Federal eRulemaking Portal: http://www.regulations.gov. For ECFS filers, in completing the transmittal screen, filers should include their full name, U.S. Postal service mailing address, and the applicable docket number: MM Docket No. 95-31. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to [e-mail], and include the following words in the body of the message: “get form”. A sample form and instructions will be sent in response.

Statement of Legal Authority. The Commission's legal authority for limiting the number of applications a party may file during a broadcast filing window is found in 47 U.S.C. 151, 152(a), 154(i) and (j), 301, 303(g) and (r), 308(b), and 309(j).

Ex Parte Restrictions. This proceeding has been designated “permit but disclose” for purposes of the Commission's ex parte rules, 47 CFR 1.1200-1.1216. Ex parte presentations will be governed by the procedures set forth in 47 CFR 1.1206 applicable to non-restricted proceedings.

Regulatory Flexibility Act. Although we are not proposing a rule change, we have prepared an Initial Regulatory Flexibility Analysis (“IRFA”) which is set forth in the Appendix to the Public Notice. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing procedures and deadlines for comments on the proposed application limit, and should have a separate and distinct heading designating them as responses to the IRFA. The Commission will send a copy of the Public Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). See 5 U.S.C. 603(a). In addition, the Public Notice and the IRFA (or summaries thereof) [are here] published in the Federal Register. See id.

A. Need for, and Objectives of, the Proposed Limit

The Commission has determined that, absent a limit on the number of applications that a party may file in the filing window described in the Public Notice, it is likely that some parties may file a large number of speculative applications. Accordingly, the Commission has tentatively determined that a limit of ten applications for new NCE FM construction permits in the filing window is an appropriate procedural safeguard to deter speculation and permit the expeditious processing of the NCE FM applications filed in the window. The Commission believes that the proposed limit will benefit small entities, as defined below.

B. Legal Basis

The Public Notice is released pursuant to sections 1, 2(a), 4(i) and (j), 301, 303(g) and (r), 308(b), and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i) and (j), 301, 303(g) and (r), 308(b), and 309(j).

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

The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 5 U.S.C. 603(b)(3), The Small Business Administration defines a radio broadcasting entity that has $6.5 million or less in annual receipts as a small business. 13 CFR121.201, NAICS Code 515112. Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” See NAICS Code 515112. We estimate that 95% or more of all NCE FM applicants will be small businesses according to this definition. According to Commission staff review of the BIA Financial Network, Inc., Media Access Radio Analyzer Database as of July 10, 2007, about 10,520 (95 percent) of 11,055 commercial radio stations have revenues of $6.5 million or less.

We note, however, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. Our estimate, therefore, may slightly overstate the number of small entities that might be affected by the proposed application limit, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. In this context, the application of the statutory definition to radio stations is of concern. An element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time and in this context to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the foregoing estimate of small businesses to which the application limit may apply does not exclude any radio station from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent.

D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

We anticipate that none of the changes adopted as a result of the Public Notice would result in an increase to the reporting and recordkeeping requirements of broadcast stations or applicants for NCE FM authorizations. As noted above, we invite small business entities to comment in response to the Public Notice.

E. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered

The Public Notice describes and seeks comment on a proposed limit on the number of new NCE FM applications that may be filed during the filing window described in the Public Notice. The proposed limit is intended to benefit all small NCE entities seeking to establish a new NCE FM service on a local or regional basis by preventing mass filings of speculative applications. The proposed limit excludes both pending applications by NCE FM stations and applicants and new major change applications by existing NCE FM stations seeking to modify their existing authorizations, so the proposal involves no detriment to those applicants. At the same time, the proposed limit should benefit such applicants by expediting the review and processing of applications filed during the window. The proposed limit does not impose any significant compliance or reporting requirements because it would merely set a limit on the number of applications for new NCE FM authorizations that a party could file during the window. Accordingly, we are not aware of any alternatives that would benefit small entities. We encourage small entities to comment on the proposed limit described in the Public Notice.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Limit

None.

Federal Communications Commission.

William F. Caton,

Deputy Secretary.