[Federal Register Volume 63, Number 176 (Friday, September 11, 1998)]
[Rules and Regulations]
[Pages 48615-48633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23963]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 73 and 74
[MM Docket No. 97-234, GC Docket No. 92-52, and GEN Docket No. 90-264;
FCC 98-194]
Implementation of Competitive Bidding for Commercial Broadcast
and Instructional Television Fixed Service Licenses
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This First Report and Order (First R&O) implements the Federal
Communications Commission's amended auction authority. Specifically,
the First R&O adopts rules and procedures for auctioning pending and
future mutually exclusive applications for construction permits in the
various commercial broadcast services; determines that competing
Instructional Television Fixed Service (ITFS) applications are subject
to auction; and adopts procedures for resolving pending broadcast
comparative renewal cases, in which the Commission is not authorized to
use auctions. To further the goals of the designated entity provisions
of the Commission's auction authority, the First R&O adopts a tiered
``new entrant'' bidding credit for entities with controlling interests
in either no, or less than four, other media entities. The First R&O
notes that the Commission intends to continue its review of the
barriers to entry or growth that may exist for small, minority- and
women-owned businesses in broadcasting, and to make adjustments to its
designated entity provisions, as appropriate, in light of these
studies.
EFFECTIVE DATE: November 10, 1998.
FOR FURTHER INFORMATION CONTACT: Jerianne Timmerman, Video Services
Division, Mass Media Bureau at (202) 418-1600; Lisa Scanlan, Audio
Services Division, Mass Media Bureau at (202) 418-2720; Lee Martin,
Office of General Counsel at (202) 418-1720.
SUPPLEMENTARY INFORMATION:
Summary
This First R&O implements: (1) amended Section 309(j) of the
Communications Act (Act), which requires that the Commission use
auctions to select from among virtually all mutually exclusive
applications for initial licenses and construction permits, including
broadcast construction permits, and (2) new Section 309(l) of the Act,
which
[[Page 48616]]
authorizes auctions to resolve pending comparative licensing cases
involving applications for full-service commercial radio or television
stations filed before July 1, 1997. As proposed in this proceeding, the
First R&O amends the disparate application procedures for the various
broadcast services to establish a uniform window filing approach that
should facilitate the determination of mutually exclusive groups of
applications for auction purposes, and also establishes rules and
procedures for auctioning mutually exclusive applications for broadcast
construction permits that follow, as closely as possible, the
Commission's general part 1 auction rules.
General Authority to Use Competitive Bidding to Award Secondary and
Primary Commercial Broadcast Licenses
2. Under amended Section 309(j)(1), the Commission found that
auctions are mandatory for all secondary commercial broadcast services
(e.g., LPTV, FM translator and television translator services).
Similarly, the Commission found that, except for certain pending
applications that are subject to new Section 309(l), its auction
authority is mandatory, rather than permissive, for all full power
commercial radio and analog television stations. Nothing in the
statutory language or in the accompanying legislative history indicates
that the requirement to use competitive bidding for ``any initial
license or construction permit'' is limited to full power radio and
analog television stations, or that Congress intended such a
limitation. Nor are secondary commercial broadcast service licenses
exempted from the auction requirement under Section 309(j)(2), which
enumerates the certain types of spectrum licenses that are not subject
to competitive bidding.
3. The Commission stated further that all pending mutually
exclusive applications for these secondary broadcast services must be
resolved through a system of competitive bidding. Nothing in Section
309(j)(1) suggests that the requirement to use auctions applies only to
applications filed in the future. The only statutory reference to
pending applications is contained in Section 309(l), and the Commission
determined that Congress did not intend to include pending secondary
broadcast applications within Section 309(l).
Statutory Authority to Use Competitive Bidding for Modification
Applications
4. The Commission concluded that it is not precluded by the terms
of Section 309(j) from auctioning mutually exclusive modification
applications. The Commission recognized, however, that competing major
modification applications can often be resolved by changes to the
engineering proposals submitted by applicants and may raise special
considerations where settlements are particularly appropriate. The
Commission will therefore allow applicants who have, under the window
filing procedures adopted in the First R&O for new station applications
and major modification applications, filed either competing major
modification applications, or competing major modification and new
station applications, to resolve their mutual exclusivities by means of
engineering solutions or settlements during a limited period after the
filing of short-form applications but before the start of the auction.
The Commission stated that it would apply competitive bidding
procedures to resolve mutual exclusivities among major modification
applications and between major modification and initial applications,
if the parties are unable to resolve their mutual exclusivities during
a limited period, as established by public notice, following the filing
of short-form applications.
5, The Commission determined that it would not, however, generally
subject competing minor modification applications to auction
procedures. Given the infrequency with which minor modification
applications are mutually exclusive and the less significant changes
usually proposed in minor modification applications, the Commission
will encourage parties ``to use engineering solutions, negotiation * *
* and other means'' to resolve any mutual exclusivities. 47 U.S.C.
309(j)(6)(E).
Statutory Exemption for Noncommercial Educational and Public
Broadcast Stations
6. The Commission determined that it had not received sufficiently
focused comment to finally resolve in this proceeding the issues
relating to noncommercial educational and public broadcast stations.
While the exemption in Section 309(j)(2)(C) for noncommercial
educational broadcasters clearly precludes the Commission from using
competitive bidding to award broadcast station licenses on the reserved
noncommercial frequencies, there are difficult issues as to how the
Commission should apply this provision when noncommercial educational
and public broadcasters apply for frequencies in the commercial band.
The Commission found that its decision on these issues would be aided
by a further round of comment. Therefore, the Commission stated that it
would not proceed to auction at this time any pending cases where both
noncommercial and commercial applicants have filed competing
applications for nonreserved channels; these cases will be resolved
following the release of a report and order in our noncommercial
proceeding, MM Docket No. 95-31.
Discretion to Use Auctions in Pending Cases Involving pre-July 1,
1997 Applications
7. The Commission found that it has discretion under new Section
309(l) to resolve comparative licensing proceedings that involve pre-
July 1, 1997 applications for full service commercial radio and
television stations by either competitive bidding procedures or through
the comparative hearing process. The explicit language of Section
309(l)(1) provides that the Commission ``shall have the authority to
conduct a competitive bidding proceeding,'' in contrast to the
mandatory language of Section 309(j)(1) providing that ``the Commission
shall grant the license . . . through a system of competitive
bidding.'' The Commission concluded that the language of Section 309(l)
unambiguously addresses a situation in which auctions are permissible,
but are not required.
Public Interest Considerations Favoring Resolution of Pending Cases
by Competitive Bidding
8. The Commission stated that auctions will generally be fairer and
more expeditious than deciding the pending mutually exclusive
applications filed before July 1, 1997 through the comparative hearing
process. Auctions will generally expedite service and better serve the
public interest in these cases, because competitive bidding is a more
efficient and cost-effective method of assigning spectrum in cases of
mutual exclusivity than any previously employed method. The Commission
concluded that there is no inherent unfairness in using auctions,
rather than comparative hearings, to resolve mutual exclusivity among
these pre-July 1, 1997 applications, as most of these applicants filed
after Bechtel v. FCC, 10 F.3d 875 (D.C. Cir. 1993), which made it clear
that some change in the existing selection criteria was inevitable. The
Commission also found that changing the selection process for pending
applications filed before July 1, 1997 is not impermissibly retroactive
or
[[Page 48617]]
otherwise unlawful. The pre-July 1, 1997 applicants, whether their
applications are pending on the processing line or have been designated
for hearing, have no vested right to a comparative hearing that is
abridged by the Commission's decision to award such authorizations by a
system of competitive bidding. The Commission moreover noted that the
impact of this regulatory change is ameliorated somewhat by the
statutory requirement that auctions to resolve these pre-July 1 pending
cases be closed to other participants.
Treatment of Pending Hearing Cases
9. The Commission concluded that, even for the small number of
pending cases involving pre-July 1, 1997 applications that have
progressed at least through an Initial Decision by an Administrative
Law Judge, auctions better serve the public interest than comparative
hearings. While these pending applicants have spent considerable time
and money prosecuting their applications and have experienced
significant delays in obtaining a final decision as to the selection of
the licensee, these circumstances do not, the Commission determined,
outweigh the additional delays, uncertainty and administrative costs
that would be incurred by resolving these cases through the comparative
hearing process.
Scope of Section 309(l)
10. The Commission found that, where post-June 30th applications
are mutually exclusive with two or more pre-July 1, 1997 applications,
it is compelled by the express language of Section 309(l)(2) to dismiss
them and conduct a competitive bidding procedure that is restricted to
the pre-July 1, 1997 applications. The Commission also stated that,
given the express reference to ``competing applications'' in Section
309(l), this provision does not apply to a single pre-July 1, 1997
application. Under Section 309(l)(2), the Commission is statutorily
precluded from permitting post-June 30th applicants to participate as
qualified bidders in a competitive bidding procedure conducted to
resolve mutual exclusivity among two or more pre-July 1, 1997 competing
applications. The First R&O notes that the practical effect of this
distinction between applications filed before July 1st and after June
30th will be limited, as the Commission believes that settlement
agreements have been filed in connection with the small number of cases
involving post-June 30th applications mutually exclusive with two or
more pre-July 1, 1997 applications.
Pending Applications Not Subject to Section 309(l)
11. The most significant issue with regard to the pending
applications falling outside the scope of Section 309(l) concerns the
pool of bidders who will be eligible for any auction of these mutually
exclusive applications. Specifically, the Commission has the discretion
to restrict the class of eligible bidders to those with applications
already filed, or to reopen the filing period for additional applicants
that would be eligible to participate in the auction. The Commission
concluded that, in cases of pending mutually exclusive applications not
subject to Section 309(l) where the relevant period or window for
filing applications under the existing procedures has expired, the
public interest would not be served by reopening the filing period for
additional mutually exclusive applications. The Commission found no
compelling reason to reopen filing windows that have already expired to
permit the filing of additional applications by applicants who failed
to file during the Commission's previously clearly delineated filing
periods.
12. The Commission noted, however, that there are pending a number
of broadcast applications (primarily AM and FM translator) that have
never been subjected to competition because periods or windows for the
filing of competing applications have not yet been opened by the
Commission. Rather than open individual filing windows or issue
individual cut-off lists for each of these pending broadcast
applications, the Commission decided that it would be more efficient to
simply include these applications in the first general auction
conducted for new applicants in the relevant service.
Competitive Bidding Design
13. The Commission announced that it would conduct all auctions of
mutually exclusive broadcast applications in conformity with the
general competitive bidding rules set forth in part 1 of the
Commission's rules. However, because the same type of auction
methodology may not be appropriate for all mutually exclusive broadcast
and secondary broadcast applications, different approaches may be
warranted to resolve mutual exclusivity among certain categories of
broadcast applications and for ``daisy chain'' situations. The
Commission concluded that the appropriate auction design will vary
depending on the type of service involved, the number of construction
permits at stake, how many bidders are likely to participate, and the
degree to which interdependence may be important to those likely to bid
on a particular type of permit. The Commission delegated authority to
the Mass Media Bureau and the Wireless Telecommunications Bureau (the
Bureaus) to seek comment on and establish an appropriate auction design
methodology prior to the start of each broadcast auction or group of
broadcast auctions. The Commission also delegated to the Bureaus
authority to seek comment on and, as appropriate, to establish upfront
payments, minimum opening bids and/or reserve prices for each broadcast
auction or group of broadcast auctions.
Auction Application Procedures
14. The Commission will follow for all broadcast service auctions
the procedural and payment rules set forth in the general part 1
auction rules, with certain modifications. Specifically, the First R&O
replaces the Commission's disparate filing procedures for the various
broadcast services with a specific time period, or auction window,
during which all applicants seeking to participate in an auction must
file their applications for new broadcast facilities or for major
changes to existing facilities. Applicants will be required to submit
only a short-form application (FCC Form 175) prior to any auction, and
only winning bidders will need to file complete long-forms (FCC Form
301 for AM, FM and television stations, FCC Form 346 for LPTV and
television translators, or FCC Form 349 for FM translators).
Specifically, in response to a public notice announcing a window for
the filing of broadcast and/or secondary broadcast applications for new
stations and for major changes to existing facilities, applicants will
be required to file a short-form application, along with any
engineering data necessary to determine mutual exclusivity in a
particular service. The Commission stated that, prior to auction, it
would examine the engineering data submitted by applicants for the non-
table services (AM, LPTV, and television and FM translators) only to
the extent necessary to determine the mutually exclusive groups of
applications for auction purposes. Applicants for FM stations need not
submit any engineering data in addition to their FCC Form 175
applications, as such data is not needed to make determinations of
mutual exclusivity in the FM service.
15. The Commission determined to follow the general auction rule
mandating electronic filing, and will
[[Page 48618]]
require all applicants for broadcast auctions to file their FCC Form
175 applications electronically beginning January 1, 1999, unless it is
not operationally feasible. Applicants for non-table services, who must
submit engineering information with their short-forms, will be required
to file the engineering section of the electronic versions of the FCC
Forms 301, 346 and 349, which are currently being developed.
16. Consistent with the part 1 anti-collusion rule, the Commission
announced that applicants in broadcast auctions will be required to
identify on their short-form applications any parties with whom they
have entered into any consortium arrangements, joint ventures,
partnerships or other agreements or understandings which relate in any
way to the competitive bidding process. In addition, applicants will be
required to certify on their short-form applications that they have not
entered into any explicit or implicit agreements, arrangements or
understandings of any kind with any parties, other than those
identified, regarding the amount of their bids, bidding strategies, or
the particular construction permits on which they will or will not bid.
After short-form applications are filed and prior to the time that the
winning bidder has made its required down payment, all bidders will be
prohibited from cooperating, collaborating, discussing or disclosing in
any manner the substance of their bids or bidding strategies with other
bidders that have applied to bid in the same geographic license area,
unless such bidders are members of a bidding consortium or other joint
bidding arrangement identified on the bidder's short-form application.
17. The Commission also determined to follow in broadcast auctions
the general part 1 auction rules with regard to post-auction
procedures, including the payment by winning bidders of their bids and
the withdrawal, default and disqualification of winning bidders. The
First R&O additionally adopted a shortened 10-day period for the filing
of petitions to deny against the long-form applications filed by
auction winners.
Designated Entities
18. Due to the insufficiency of the record in this proceeding, the
First R&O does not make a final determination regarding the adoption of
bidding credits or other special measures to enhance participation by
various designated entities, including small, minority- and women-owned
businesses, in broadcast service and ITFS auctions. The First R&O does
adopt a tiered new entrant bidding credit to further the goals of the
designated entity provisions of Section 309(j); specifically,
applicants with no controlling interests in any media outlets will
receive a 35% bidding credit, and applicants with controlling interests
in no more than three media outlets, none of which serve the same area
as the proposed station, will receive a 25% bidding credit. Following
the completion of certain pending evidentiary studies, the Commission
anticipates the release of a further report and order in this
proceeding addressing designated entity issues in the broadcast
context. If additional or alternative designated entity measures are
ultimately adopted in this further order following the completion of
the Commission's evidentiary studies, then any such measures will be
applicable to the auction of any broadcast and ITFS applications then
on file with the Commission. To prevent any unjust enrichment by
designated entities utilizing the new entrant bidding credit, we will
follow the general part 1 auction rules in requiring, under certain
circumstances involving assignments or transfers, the reimbursement of
bidding credits utilized in obtaining broadcast licenses via auction.
Auction Authority for Instructional Television Fixed Service
19. The Commission determined that, because Section 309(j)
generally requires the use of competitive bidding to resolve mutually
exclusive applications with only certain specified exemptions, it does
not have the discretion to create another exemption from competitive
bidding for ITFS. When Congress explicitly enumerates certain
exceptions to a general requirement, additional exceptions should not
be implied, and the list of exemptions from the Commission's general
auction authority set forth in Section 309(j)(2) is clearly exhaustive,
rather than merely illustrative, of the types of licenses or permits
that may not be awarded through a system of competitive bidding.
Because ITFS is not one of the services exempted from competitive
bidding in Section 309(j)(2), the First R&O concludes that competing
ITFS applications must be subjected to competitive bidding procedures.
The Commission declined to interpret the exemption from competitive
bidding for noncommercial educational broadcast stations contained in
Section 309(j)(2)(C) to include ITFS. As the Commission has stated and
the courts have recognized, ITFS is not a broadcast service, and
therefore it does not fall within the scope of the Section 309(j)(2)(C)
exemption from competitive bidding for noncommercial broadcasters.
20. The Commission stated, however, that it will request that
Congress amend Section 309(j) so that the statute clearly reflects its
intent with regard to ITFS. Absent a clear statement from Congress that
it means to exempt ITFS from competitive bidding, then the Commission
will proceed with the auction of mutually exclusive ITFS applications.
The Commission stated that it will not commence ITFS auctions
immediately so as to allow sufficient time to obtain Congressional
guidance.
21. The Commission found that pending ITFS applications are outside
the scope of new Section 309(l) of the Act, which provides that the
Commission has discretion regarding the resolution of pending
comparative licensing proceedings involving pre-July 1, 1997
applications for commercial radio and television stations. Accordingly,
pending mutually exclusive ITFS applications must be resolved by
competitive bidding pursuant to Section 309(j)(1). However, the
Commission determined that it would not serve the public interest to
accept additional competing ITFS applications despite its authority to
do so; thus, the eligible bidders in any auction of the pending ITFS
applications will be limited to those with applications already on
file.
Resolution of Pending Comparative Renewal Proceedings
22. With regard to the very small number of pending comparative
renewal proceedings, the Commission determined that the most equitable
and expeditious approach would be simply to permit the renewal
applicants and their challengers, within the confines of the generally
phrased standard comparative issue, to present the factors and evidence
they believe most appropriate. If the renewal applicant can demonstrate
substantial performance and thus an entitlement to a renewal
expectancy, this will continue to be the most important factor and can
be expected in most cases to outweigh other considerations in favor of
the challenger.
23. The complete text of this First R&O, including any statements,
is available for inspection and copying during normal business hours in
the Federal Communications Commission Reference Center (Room 239), 1919
M Street, N.W., Washington, D.C., and it may be purchased from the
Commission's copy contractor, International Transcription Service,
[[Page 48619]]
Inc., 1231 20th Street, N.W., Washington, D.C. 20036, (202)857-3800.
Final Regulatory Flexibility Analysis (FRFA)
Summary
24. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C.
603, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated
in the Notice of Proposed Rulemaking (NPRM) in this proceeding. The
Commission sought written public comments on the proposals in the NPRM,
including on the IRFA. The Commission's Final Regulatory Flexibility
Analysis (FRFA) in this First R&O conforms to the RFA, as amended by
the Contract With America Advancement Act of 1996, Public Law 104-121,
110 Stat. 847 (1996).
Need For and Objectives of Action
25. This First R&O adopts rules to implement the Balanced Budget
Act of 1997 (Budget Act), Public Law 105-33, 111 Stat. 251 (1997),
which amended Section 309(j) and adopted new Section 309(l) of the
Communications Act to expand the Commission's competitive bidding
authority to include, inter alia, the commercial broadcast and
secondary broadcast services.
Significant Issues Raised by the Public in Response to the Initial
Analysis
26. No comments were received specifically in response to the IRFA
contained in the NPRM. However, some comments did address certain small
business issues. A number of commenters called for the adoption of
bidding credits for small businesses to ensure their participation in
broadcast spectrum auctions. To promote diversification of ownership of
broadcast stations, a number of commenters also supported the adoption
of bidding credits for non-group owners, who would likely be small
businesses. Some commenters argued that upfront payments should be
small enough to allow small businesses to compete effectively.
Commenters generally opposed the use of competitive bidding for
selecting among mutually exclusive Instructional Television Fixed
Service (ITFS) applicants, who are primarily educational institutions
and governmental educational entities.
27. Small business-related issues were also raised by commenters
more indirectly. A small number of commenters opposed requiring
prospective bidders in broadcast auctions to file their short-form
applications (FCC Form 175) electronically, contending that electronic
filing would be a barrier to participation by those not computer
literate or by low power television (LPTV) and translator applicants
(many of whom are small businesses). Several commenters also asked the
Commission to reconfirm its support for certain previously-adopted
special measures to protect LPTV and television translator stations
that are displaced during the transition to digital television. A small
number of commenters additionally contended that it was unfair or
inequitable to auction secondary broadcast services (LPTV and
television and FM translators), the licensees of which tend to be small
businesses.
Description and Number of Small Entities Involved
28. Under the RFA, small entities include small organizations,
small businesses, and small governmental jurisdictions. 5 U.S.C.
601(6). The RFA, 5 U.S.C. 601(3), defines the term ``small business''
as having the same meaning as the term ``small business concern'' under
the Small Business Act. See 15 U.S.C. 632. A small business concern is
one which: (1) is independently owned and operated; (2) is not dominant
in its field of operation; and (3) satisfies any additional criteria
established by the Small Business Administration (SBA). Pursuant to the
RFA, the statutory definition of a small business applies when
considering the impact of an agency's action(s) ``unless an agency
after consultation with the Office of Advocacy of the SBA and after
opportunity for public comment, established one or more definitions of
such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register.''
29. In the NPRM we stated that we tentatively believe that the
SBA's definition of ``small business'' greatly overstates the number of
radio and television broadcast stations that are small businesses and
is not particularly suitable for the Commission's purposes, and we
sought comment on how we should define small business for this purpose.
While we utilized the SBA's definition to determine the number of small
businesses to which any auction procedures would apply, we reserved the
right to adopt a more suitable definition of ``small business'' as
applied to radio and television broadcast stations. We received no
comment in response to the IRFA on how to define radio and television
broadcast ``small businesses.'' Therefore, we will continue to utilize
the SBA's definitions for the purposes of this FRFA.
30. Radio Broadcasting Stations. The SBA defines a radio
broadcasting station that has no more than $5 million in annual
receipts as a small business. A radio broadcasting station is an
establishment primarily engaged in broadcasting aural programs by radio
to the public. Included in this industry are commercial, religious,
educational, and other radio stations. Radio broadcasting stations
which primarily are engaged in radio broadcasting and which produce
radio program materials are similarly included. Official Commission
records indicate that 11,334 individual radio stations were operating
in 1992. The 1992 Census indicates that 96 percent of radio station
establishments (5,861 of 6,127) produced less than $5 million in
revenue in 1992. As of May 31, 1998, official Commission records
indicate that 4,724 AM radio stations, 7,595 FM radio stations and
3,011 FM translator/booster stations were licensed. We conclude a
similarly high percentage (96 percent) of current radio broadcasting
licensees are small entities.
31. Television Broadcasting Stations. The SBA defines a television
broadcasting station that is independently owned and operated, is not
dominant in its field of operation, and has no more than $10.5 million
in annual receipts as a small business. Television broadcasting
stations consist of establishments primarily engaged in broadcasting
visual programs by television to the public, except cable and other pay
television services. Included in this industry are commercial,
religious, educational, and other television stations. Also included
are establishments primarily engaged in television broadcasting and
which produce taped television program materials. There were 1,509
television stations operating in the nation in 1992. In 1992, there
were 1,155 television station establishments that produced less than
$10.0 million in revenue (76.5 percent). As of May 31, 1998, official
Commission records indicate that 1,579 full power television stations,
2089 low power television stations, and 4924 television translator
stations were licensed. We conclude that a similarly high percentage of
current television broadcasting licensees are small entities (76.5
percent).
32. ITFS. In addition, there are presently 2032 ITFS licensees. All
but 100 of these licenses are held by educational institutions.
Educational institutions may be included in the definition of a small
entity. ITFS is a non-pay, non-commercial educational microwave service
that, depending on
[[Page 48620]]
SBA categorization, has, as small entities, entities generating either
$10.5 million or less, or $11.0 million or less, in annual receipts.
However, we do not collect, nor are we aware of other collections of,
annual revenue data for ITFS licensees. Thus, we conclude that up to
1932 of these licensees are small entities.
33. Pending and Future Applicants Affected by Rulemaking. The
auction procedures set forth in the First R&O will affect pending and
future competing applicants for the various commercial broadcast
services and for ITFS. We estimate that, as of the adoption date of the
First R&O, there are approximately: (1) 700 mutually exclusive pending
applications for commercial radio stations; (2) 200 pending competing
applications for full power commercial analog television stations; (3)
100 mutually exclusive pending applications for low power television
stations and television translator stations; (4) 30 competing
applications for FM translator stations; and (5) 200 or more mutually
exclusive pending applications for ITFS stations. The Commission has no
data on file as to whether entities with pending permit applications,
which are subject to the new auction rules adopted for the broadcast
services, meet the SBA's definition of a small business concern.
However, we conclude that, given the smaller size of the markets at
issue in the pending applications, most of the entities with pending
applications for a permit to construct a new primary or secondary
broadcast station are small entities, as defined by the SBA rules. It
is not possible, at this time, to estimate the number of markets for
which mutually exclusive applications will be received in the future,
nor the number of entities that in the future may seek a construction
permit for a new broadcast station. Given the fact that fewer new
stations (particularly fewer analog television stations) will be
licensed in the future and that these stations generally will be
located in smaller, more rural areas, we conclude that most of the
entities applying for these stations will be small entities, as defined
by the SBA rules.
Summary of Projected Reporting, Recordkeeping and Other Compliance
Requirements
34. The First R&O adopts a number of rules that include reporting,
recordkeeping, and compliance requirements. These requirements will
apply to all applicants subject to the new competitive bidding
procedures, as more fully detailed in the First R&O (referred to in
this section more generally as ``applicants'').
35. Applicants will be required to submit a short-form application
(FCC Form 175) prior to any auction. Only winning bidders will need to
file complete long-forms (FCC Form 301 for AM, FM and television
stations, FCC Form 346 for LPTV and television translators, or FCC Form
349 for FM translators). Specifically, in response to a public notice
announcing a window for the filing of broadcast and/or secondary
broadcast applications for new stations and for major changes in
existing facilities, applicants will be required to file a short-form
application, along with any engineering data necessary to determine
mutual exclusivity in a particular service. Applicants for broadcast
auctions will be required to follow the general auction rules, 47 CFR
1.2105, with regard to completion of the short form and exhibits to be
submitted with the short form. Also consistent with the Commission's
general part 1 auction rules, all applicants for broadcast auctions
must file their FCC Form 175 applications electronically beginning
January 1, 1999.
36. Applicants may be subject to upfront payments, minimum opening
bids and/or reserve prices in order to participate in broadcast service
auctions. The Mass Media Bureau in conjunction with the Wireless
Telecommunications Bureau shall seek public comment on and, as
appropriate, shall establish these mechanisms for each auction, or
group of auctions, in the broadcast services.
37. Following the close of bidding in an auction, winning bidders
will be required to submit a down payment, file an appropriate long-
form application for each construction permit for which it was the high
bidder, and pay the balance of their winning bids in a timely manner.
Broadcast auction participants will also be subject to the bid
withdrawal, default and disqualification payments set forth in the
general part 1 auction rules.
38. A licensee, or holder of a construction permit, who utilized a
new entrant bidding credit will be required to reimburse the government
for the amount of the bidding credit, plus interest, as a condition for
Commission approval of the assignment or transfer of the license or
permit to an entity that would not have qualified for the new entrant
credit, as generally provided in the Commission's part 1 rules.
Steps Taken to Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
39. Due to the insufficiency of the record in this proceeding, the
First R&O does not make a final determination regarding the adoption of
bidding credits or other special measures to enhance participation by
various designated entities, including small businesses, in broadcast
service and ITFS auctions. Such measures will be considered in a
further report and order to be issued at a later time. For all auctions
held prior to ultimate resolution of the designated entity issue, the
First R&O adopts a tiered new entrant bidding credit for entities with
controlling interests in either no, or less than four, other media
entities so as to enhance participation by small businesses and other
designated entities, including small businesses owned by women and
minority group members. Following the completion of certain pending
evidentiary studies, the Commission may, in a further report and order
in this proceeding, adopt additional or alternative bidding credits or
other measures that more directly alleviate any adverse impact on small
businesses (including those owned by women or by minority group
members) of the requirement to participate in an auction to obtain a
construction permit to provide commercial broadcast service. If
additional or alternative designated entity measures are ultimately
adopted, then any such measures will be applicable to the auction of
any broadcast and ITFS applications then on file with the Commission.
40. Moreover, even if further special measures are not ultimately
adopted, we believe that some of the competitive bidding procedures
adopted in this First R&O reduce the time and cost of securing
commercial broadcast and ITFS licenses to the ultimate benefit of small
businesses. For example, entities interested in bidding for broadcast
station permits will not be required to submit a long-form application
prior to auction. We will require only that a short-form application be
submitted prior to auction, although applicants in the non-table
services will be required to submit the engineering data necessary to
make determinations of mutual exclusivity. The procedures adopted here
further expedite service to the public, thereby reducing the cost to
small entities of participating in these auctions, by limiting our pre-
auction application processing to what is necessary to determine mutual
exclusivity.
[[Page 48621]]
41. After careful consideration and in light of Congress' directive
in the Budget Act, we found that a shortened period of 10 days is
appropriate for the filing of petitions to deny against the long-form
applications filed by broadcast auction winners. We have also
eliminated the requirement that applicants affirmatively certify their
financial qualifications and the availability of their proposed tower
locations in their applications.
42. We recognize that, despite the efficiency of auctions and the
resulting reduction in the costs associated with filing an application,
having to participate in an auction may limit the opportunities
available to small businesses. However, except for certain commercial
broadcast applications filed before July 1, 1997, Section 309(j)(1)
requires that the Commission use competitive bidding procedures to
award virtually all construction permits for commercial broadcast
stations where mutually exclusive applications are filed. After
carefully considering the comments, we determined that auctions are
statutorily required to resolve mutually exclusive secondary broadcast
service applications, as nothing in the statute or in the legislative
history reflects an intention to limit Section 309(j)(1) to full power
radio and television applications.
43. Relying on the fact that the exemption from competitive bidding
set forth in Section 309(j)(2) is expressly limited to noncommercial
educational and public broadcast stations, we also determined that the
exemption does not apply to ITFS, which is a non-broadcast service.
Thus, although we agreed with commenters that ITFS is similar to
noncommercial educational broadcast service and that Section 309(j) may
not reflect on its face Congress's intent regarding the treatment of
competing ITFS applications, we found that auctions are statutorily
required to resolve all pending and future mutually exclusive ITFS
applications. However, we will request that Congress amend Section
309(j) so that the statute clearly reflects its intent with regard to
ITFS. Absent a clear statement from Congress that it means to exempt
ITFS from competitive bidding, we will proceed to auction mutually
exclusive ITFS applications. ITFS auctions will not commence
immediately, however, in order to allow sufficient time for the
Commission to obtain Congressional guidance.
44. We also determined to use competitive bidding to resolve
mutually exclusive major modification applications. Although some
commenters opposed the auctioning of modification applications,
commenters did not suggest another method of resolving mutually
exclusive major modification applications that is as efficient as
competitive bidding. We will, however, allow applicants who have filed
competing major modification applications, or competing major
modification and new station applications, to resolve their mutual
exclusivity by means of engineering solutions or settlement before
proceeding to auction. We saw less utility to be gained from subjecting
minor change applications to competitive bidding procedures; thus, in
accord with the comments, the parties will be expected to work together
to resolve any mutual exclusivities between minor modification
applications.
45. Section 309(l) governs the resolution of approximately 130
pending comparative licensing proceedings involving pre-July 1, 1997,
applications for new commercial radio or television stations that did
not settle within the 180-day waiver period prescribed by Congress. For
settlements executed within that period, we waived our settlement
rules, including the prohibition against ``white knight'' settlement
agreements where a full-market settlement was involved. Based upon the
express language of Section 309(l), we concluded that in cases that did
not settle, we have discretion to resolve applications subject to that
provision by either auction or comparative hearings. Some commenters
favored the use of comparative hearings for these pending pre-July 1,
1997 cases and expressed concern that the switch to auctions would
detrimentally affect the quality of broadcast service. We found that
Congress itself has made the judgment that auctions are generally
preferable to comparative hearings, and concluded that, by providing us
with the discretion to determine whether or not to use auctions in
pending pre-July 1st cases, Congress intended the Commission to focus
on any special circumstances in these cases that would tip the policy
balance in favor of comparative hearings, not to re-visit the general
congressional determination that broadcast auctions serve the public
interest.
46. In exercising this discretion, we concluded that, even for the
few pre-July 1, 1997 cases that had already progressed through an
Initial Decision by an Administrative Law Judge, auctions will
generally be fairer and more expeditious than deciding these pending
cases through the comparative hearing process, particularly since the
court's invalidation of the key comparative criterion prevents us from
deciding any of these cases according to the applicants' reasonable
expectation when they filed their applications. We found that for the
Commission's Administrative Law Judges to adjudicate and decide the
approximately 130 pending proceedings would take many years while
auctions can be carried out much more quickly.
47. We rejected arguments raised by commenters that changing the
selection process for pending applications filed before July 1, 1997 is
impermissibly retroactive or otherwise unlawful. We found that none of
the pre-July 1, 1997 applicants subject to the new Section 309(l) have
a vested right to a comparative hearing that is abridged by our
decision to resolve such applications by competitive bidding. And, in
any event, the economic impact of this regulatory change is ameliorated
somewhat by the statutory requirement that auctions to decide these
pending cases be closed to other participants.
48. Based upon the express language of Section 309(l)(2), we found
that, where post-June 30, 1997 applications are mutually exclusive with
two or more pre-July 1, 1997 applications, we must dismiss them and
conduct a competitive bidding procedure that is restricted to the pre-
July 1, 1997 applications. We rejected arguments by some commenters
that the distinction between pre-July 1st and post June 30th
applications is arbitrary. We found that Congress adopted a bright line
distinction and that this distinction operates to exclude some
applicants but to include others does not make it unlawful. Moreover,
the practical effect of this bright line distinction will be limited,
as we believe that settlement agreements have been filed in connection
with the small number of cases involving post-June 30th applications
mutually exclusive with two or more pre-July 1st applications.
49. Except for applications subject to Section 309(l), there is no
statutory bar to reopening new filing periods for applications that
would be mutually exclusive with pending applications. We agreed with
commenters that reopening already closed filing periods would not serve
the public interest since it would delay, rather than expedite, the
resolution of the pending applications, and would defeat the reasonable
expectations of applicants who timely filed long-form applications.
50. As a matter of fairness to pending applicants, we determined to
refund all hearing and certain filing fees paid by all pending
applicants. But we declined the suggestion of various commenters
[[Page 48622]]
that we also reimburse the legitimate and prudent expenses of pending
pre-July 1st applicants subject to the comparative freeze, who either
do not participate in the auction or are outbid in the auction. We are
aware of no legal authority to make such additional reimbursement and
concluded we have no obligation to do so.
51. We concluded that, consistent with our approach in most of the
Commission's previous auctions, broadcast and ITFS applicants should be
required to submit upfront payments with their short-form applications
prior to auction. We also reserved the right to adopt minimum opening
bid and/or reserve prices for each license. Establishing upfront
payments, minimum opening bid and/or reserve prices may have a
significant economic impact on small businesses interested in applying
for commercial broadcast and ITFS licenses. However, upfront payments
have been required in our general part 1 auction rules since they were
first promulgated, and Congress has directed us to prescribe minimum
opening bids or reserve prices unless we specifically determine that
this will not serve the public interest. While we were unpersuaded by
generalized assertions that reserve prices or minimum opening bids
would contravene the public interest, we directed the staff to seek
comment on, and as appropriate, establish upfront payments, opening
bids and/or reserve prices for each auction or group auctions.
52. A number of commenters opposed our proposal to apply the anti-
collusion rule to broadcast service auctions, believing instead that
auction applicants should be permitted to conclude settlement
agreements following the short-form filing deadline with those
applicants with whom they are mutually exclusive. We noted that we
adopted the anti-collusion rule to both prevent and to facilitate the
detection of collusive conduct, thereby enhancing the competitiveness
of the auction process and the post-auction market structure. We found
that the rule has proven effective in the numerous spectrum auctions
conducted to date, and concluded to apply the rule to broadcast
auctions, although a limited exception to the anti-collusion rule will
be made, as discussed above, in the context of mutually exclusive major
modification applications.
53. For the pending comparative renewal proceedings (which may not
be resolved by auction), we determined that the most equitable and
expeditious approach would be simply to permit the renewal applicants
and their challengers, within the confines of the generally phrased
standard comparative issues, to present whatever factors and evidence
they believe most appropriate.
Report to Congress
54. The Commission will send a copy of the First R&O, including
this FRFA, in a report to be sent to Congress pursuant to the Small
Business Regulatory Enforcement Fairness Act of 1996. 3See 5 U.S.C.
801(a)(1)(A). In addition, the Commission will send a copy of the First
R&O, including the FRFA, to the Chief Counsel for Advocacy of the Small
Business Administration.
55. Authority for issuance of this First R&O is contained in
Sections 4(i) and (j), 301, 303(f), 303(g), 303(h), 303(j), 303(r),
307(c), 308(b), 309(j), 309(l) and 403 of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 154(j), 301, 303(f), 303(g),
303(h), 303(j), 303(r), 307(c), 308(b), 309(j), 309(l) and 403.
List of Subjects in 47 CFR parts 1, 73 and 74
Radio broadcasting, Reporting and recordkeeping requirements,
Television broadcasting.
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
Rule Changes
Parts 1, 73 and 74 of Chapter 1 of Title 47 of the Code of Federal
Regulations are amended as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority for part 1 continues to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j),
155, 225, and 303(r).
2. Section 1.65 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 1.65 Substantial and significant changes in the information
furnished by applicants to the Commission.
(a) Each applicant is responsible for the continuing accuracy and
completeness of information furnished in a pending application or in
Commission proceedings involving a pending application. Whenever the
information furnished in the pending application is no longer
substantially accurate and complete in all significant respects, the
applicant shall as promptly as possible and in any event within 30
days, unless good cause is shown, amend or request the amendment of his
application so as to furnish such additional or corrected information
as may be appropriate. Whenever there has been a substantial change as
to any other matter which may be of decisional significance in a
Commission proceeding involving the pending application, the applicant
shall as promptly as possible and in any event within 30 days, unless
good cause is shown, submit a statement furnishing such additional or
corrected information as may be appropriate, which shall be served upon
parties of record in accordance with Sec. 1.47. Where the matter is
before any court for review, statements and requests to amend shall in
addition be served upon the Commission's General Counsel. For the
purposes of this section, an application is ``pending'' before the
Commission from the time it is accepted for filing by the Commission
until a Commission grant or denial of the application is no longer
subject to reconsideration by the Commission or to review by any court.
(b) Applications in ITFS and broadcast services subject to
competitive bidding will be subject to the provisions of
Secs. 1.2105(b), 73.5002 and 73.3522 regarding the modification of
their applications.
* * * * *
3. Section 1.1601 is amended by reserving paragraph (a) to read as
follows:
Sec. 1.1601 Scope.
* * * * *
(a) [Reserved]
* * * * *
4. Section 1.604 is amended by revising paragraph (a) to read as
follows:
Sec. 1.1604 Post-selection hearings.
(a) Following the random selection, the Commission shall announce
the ``tentative selectee'' and, where permitted by Sec. 73.3584 invite
Petitions to Deny its application.
* * * * *
PART 73--RADIO BROADCAST SERVICES
5. The authority for part 73 is revised to read as follows:
Authority: 47 U.S.C. 154, 303, 334 and 336.
6. Section 73.1010 is amended by adding paragraph (a)(8) to read as
follows:
Sec. 73.1010 Cross reference to rules in other parts.
* * * * *
(a) * * *
(8) Subpart Q, ``Competitive Bidding Proceedings'' (Secs. 1.2101-
1.2112).
* * * * *
7. Section 73.3500 is amended by adding the following new entry in
numerical order to read as follows:
[[Page 48623]]
Sec. 73.3500 Application and report forms.
------------------------------------------------------------------------
Form number Title
------------------------------------------------------------------------
175............................... Application to Participate in an FCC
Auction
* * * * *
------------------------------------------------------------------------
8. Section 73.3522 is revised to read as follows:
Sec. 73.3522 Amendment of applications.
(a) Broadcast services subject to competitive bidding. (1)
Applicants in all broadcast services subject to competitive bidding
will be subject to the provisions of Secs. 73.5002 and 1.2105(b)
regarding the modification of their short-form applications.
(2) Subject to the provision of Sec. 73.5005, if it is determined
that a long form application submitted by a winning bidder or a non-
mutually exclusive applicant for a new station or a major change in an
existing station in all broadcast services subject to competitive
bidding is substantially complete, but contains any defect, omission,
or inconsistency, a deficiency letter will be issued affording the
applicant an opportunity to correct the defect, omission or
inconsistency. Amendments may be filed pursuant to the deficiency
letter curing any defect, omission or inconsistency identified by the
Commission, or to make minor modifications to the application, or
pursuant to Sec. 1.65. Such amendments should be filed in accordance
with Sec. 73.3513. If a petition to deny has been filed, the amendment
shall be served on the petitioner.
(3) Subject to the provisions of Secs. 73.3571, 73.3572 and
73.3573, deficiencies, omissions or inconsistencies in long-form
applications may not be cured by major amendment. The filing of major
amendments to long-form applications is not permitted. An application
will be considered to be newly filed if it is amended by a major
amendment.
(4) Paragraph (a) of this section is not applicable to applications
for minor modifications of facilities in the non-reserved FM broadcast
service, nor to any application for a reserved band FM station.
(b) Reserved band FM and reserved noncommercial educational
television stations.--(1) Predesignation amendments. Subject to the
provisions of Secs. 73.3525, 73.3572, 73.3573 and 73.3580, mutually
exclusive broadcast applications for reserved band FM stations and
television stations on a reserved channel may be amended as a matter of
right by the date specified (not less than 30 days after issuance) in
the FCC's Public Notice announcing the acceptance for filing of the
last-filed mutually exclusive application. Subsequent amendments prior
to designation of the proceeding for hearing will be considered only
upon a showing of good cause for late filing or pursuant to Sec. 1.65
or Sec. 73.3514. Unauthorized or untimely amendments are subject to
return by the FCC's staff without consideration.
(2) Postdesignation amendments. (i) Except as provided in paragraph
(ii) of this section, requests to amend an application after it has
been designated for hearing will be considered only upon written
petition properly served upon the parties of record in accordance with
Sec. 1.47 and, where applicable, compliance with the provisions of
Sec. 73.3525, and will be considered only upon a showing of good cause
for late filing. In the case of requests to amend the engineering
proposal (other than to make changes with respect to the type of
equipment specified), good cause will be considered to have been shown
only if, in addition to the usual good cause consideration, it is
demonstrated:
(A) That the amendment is necessitated by events which the
applicant could not reasonably have foreseen (e.g., notification of a
new foreign station or loss of transmitter site by condemnation); and
(B) That the amendment does not require an enlargement of issues or
the addition of new parties to the proceeding.
(ii) In comparative broadcast cases (including comparative renewal
proceedings), amendments relating to issues first raised in the
designation order may be filed as a matter of right within 30 days
after that Order or a summary thereof is published in the Federal
Register, or by a date certain to be specified in the Order.
(iii) Notwithstanding the provisions of paragraphs (b)(2)(i) and
(b)(2)(ii) of this section, and subject to compliance with the
provisions of Sec. 73.3525, a petition for leave to amend may be
granted, provided it is requested that the application as amended be
removed from the hearing docket and returned to the processing line.
(c) Minor modifications of facilities in the non-reserved FM broadcast
service.
(1) Subject to the provisions of Secs. 73.3525, 73.3573, and
73.3580, for a period of 30 days following the FCC's issuance of a
Public Notice announcing the tender of an application for minor
modification of a non-reserved band FM station, (other than Class D
stations), minor amendments may be filed as a matter of right.
(2) For applications received on or after August 7, 1992, an
applicant whose application is found to meet minimum filing
requirements, but nevertheless is not complete and acceptable, shall
have the opportunity during the period specified in the FCC staff's
deficiency letter to correct all deficiencies in the tenderability and
acceptability of the underlying application, including any deficiency
not specifically identified by the staff. [For minimum filing
requirements see Sec. 73.3564(a). Examples of tender defects appear at
50 FR 19936 at 19945-46 (May 13, 1985), reprinted as Appendix D, Report
and Order, MM Docket No. 91-347, 7 FCC Rcd 5074, 5083-88 (1992). For
examples of acceptance defects, see 49 FR 47331.] Prior to the end of
the period specified in the deficiency letter, a submission seeking to
correct a tender and/or acceptance defect in an application meeting
minimum filing requirements will be treated as an amendment for good
cause if it would successfully and directly correct the defect. Other
amendments submitted prior to grant will be considered only upon a
showing of good cause for late filing or pursuant to Sec. 1.65 or
Sec. 73.3514.
(3) Unauthorized or untimely amendments are subject to return by
the Commission without consideration. However, an amendment to a non-
reserved band application will not be accepted if the effect of such
amendment is to alter the proposed facility's coverage area so as to
produce a conflict with an applicant who files subsequent to the
initial applicant but prior to the amendment application. Similarly, an
applicant subject to ``first come/first serve'' processing will not be
permitted to amend its application and retain filing priority if the
result of such amendment is to alter the facility's coverage area so as
to produce a conflict with an applicant which files subsequent to the
initial applicant but prior to the amendment.
Note 1 to Sec. 73.3522: When two or more broadcast applications
are tendered for filing which are mutually exclusive with each other
but not in conflict with any previously filed applications which
have been accepted for filing, the FCC, where appropriate, will
announce acceptance of the earliest tendered application and place
the later filed application or applications on a subsequent public
notice of acceptance for filing in order to establish a deadline for
the filing of amendments as a matter of right for all applicants in
the group.
9. Section 73.3525 is amended by revising paragraphs (c) and (d)
and adding paragraph (l) to read as follows:
[[Page 48624]]
Sec. 73.3525 Agreements for removing application conflicts.
* * * * *
(c) Except where a joint request is filed pursuant to paragraph (a)
of this section, any applicant filing an amendment pursuant to
Secs. 73.3522(b)(1) and (c), or a request for dismissal pursuant to
Secs. 73.3568(b)(1) and (c), which would remove a conflict with another
pending application; or a petition for leave to amend pursuant to
Sec. 73.3522(b)(2) which would permit a grant of the amended
application or an application previously in conflict with the amended
application; or a request for dismissal pursuant to Sec. 73.3568(b)(2),
shall file with it an affidavit as to whether or not consideration
(including an agreement for merger of interests) has been promised to
or received by such applicant, directly or indirectly, in connection
with the amendment, petition or request.
(d) Upon the filing of a petition for leave to amend or to dismiss
an application for broadcast facilities which has been designated for
hearing or upon the dismissal of such application on the FCC's own
motion pursuant to Sec. 73.3568, each applicant or party remaining in
hearing, as to whom a conflict would be removed by the amendment or
dismissal shall submit for inclusion in the record of that proceeding
an affidavit stating whether or not he has directly or indirectly paid
or promised consideration (including an agreement for merger of
interests) in connection with the removal of such conflict.
* * * * *
(l) The prohibition of collusion as set forth in Secs. 1.2105(c)
and 73.5002 of this section, which becomes effective upon the filing of
short-form applications, shall apply to all broadcast services subject
to competitive bidding.
10. Section 73.3564 is revised to read as follows:
Sec. 73.3564 Acceptance of applications.
(a)(1) Applications tendered for filing are dated upon receipt and
then forwarded to the Mass Media Bureau, where an administrative
examination is made to ascertain whether the applications are complete.
Except for applications for minor modifications of facilities in the
non-reserved FM band, as defined in Sec. 73.3573(a)(2), long form
applications subject to the provisions of Sec. 73.5005 found to be
complete or substantially complete are accepted for filing and are
given file numbers. In the case of minor defects as to completeness, a
deficiency letter will be issued and the applicant will be required to
supply the missing or corrective information. Applications that are not
substantially complete will not be considered and will be returned to
the applicant.
(2) In the case of minor modifications of facilities in the non-
reserved FM band, applications will be placed on public notice if they
meet the following two-tiered minimum filing requirement as initially
filed in first come/first served proceedings:
(i) The application must include:
(A) Applicant's name and address,
(B) Applicant's original signature,
(C) Principal community,
(D) Channel or frequency,
(E) Class of station, and
(F) Transmitter site coordinates; and
(ii) The application must not omit more than 3 of the second tier
items specified in appendix C, Report and Order, MM Docket No. 91-347,
FCC 92-328, 7 FCC Rcd 5074 (1992). Applications found not to meet
minimum filing requirements will be returned to the applicant.
Applications found to meet minimum filing requirements, but that
contain deficiencies in tender and/or acceptance information, shall be
given an opportunity for corrective amendment pursuant to Sec. 73.3522.
Applications found to be substantially complete and in accordance with
the Commission's core legal and technical requirements will be accepted
for filing. Applications with uncorrected tender and/or acceptance
defects remaining after the opportunity for corrective amendment will
be dismissed with no further opportunity for corrective amendment.
(b) Acceptance of an application for filing merely means that it
has been the subject of a preliminary review by the FCC's
administrative staff as to completeness. Such acceptance will not
preclude the subsequent dismissal of the application if it is found to
be patently not in accordance with the FCC's rules.
(c) At regular intervals, the FCC will issue a Public Notice
listing all long form applications which have been accepted for filing.
Pursuant to Secs. 73.3571(h), 73.3572, and 73.3573(f), such notice
shall establish a cut-off date for the filing of petitions to deny.
With respect to reserved band FM applications, the Public Notice shall
also establish a cut-off date for the filing of mutually exclusive
applications pursuant to Sec. 73.3573(e). However, no application will
be accepted for filing unless certification of compliance with the
local notice requirements of Sec. 73.3580(h) has been made in the
tendered application.
(d) The FCC will specify by Public Notice, pursuant to
Sec. 73.5002, a period for filing applications for new stations or for
major modifications in the facilities of an existing station. Except
for reserved band FM stations and TV stations on reserved noncommercial
educational channels, applications for new and major modifications in
facilities will be accepted only during these window filing periods
specified by the Commission.
(e) Applications for minor modification of facilities may be
tendered at any time, unless restricted by the FCC. These applications
will be processed on a ``first come/first served'' basis and will be
treated as simultaneously tendered if filed on the same day. Any
applications received after the filing of a lead application will be
grouped according to filing date, and placed in a queue behind the lead
applicant. The FCC will periodically release a Public Notice listing
those minor modification of facilities applications accepted for
filing.
(f) If a non-reserved band FM channel allotment becomes vacant,
after the grant of a construction permit becomes final, because of a
lapsed construction permit or for any other reason, the FCC will, by
Public Notice, announce a subsequent filing window for the acceptance
of new applications for such channels.
(g) Applications for operation in the 1605-1705 kHz band will be
accepted only if filed pursuant to the terms of Sec. 73.30(b).
11. Section 73.3568 is revised to read as follows:
Sec. 73.3568 Dismissal of applications.
(a) (1) Failure to prosecute an application, or failure to respond
to official correspondence or request for additional information, will
be cause for dismissal.
(2) Applicants in all broadcast services subject to competitive
bidding will be subject to the provisions of Secs. 73.5002 and
1.2105(b) regarding the dismissal of their short-form applications.
(3) Applicants in all broadcast services subject to competitive
bidding will be subject to the provisions of Secs. 73.5004, 73.5005 and
1.2104(g) regarding the dismissal of their long-form applications and
the imposition of applicable withdrawal, default and disqualification
payments.
(b) (1) Subject to the provisions of Sec. 73.3525, dismissal of
applications for channels reserved for noncommercial educational use
will be without prejudice where an application has not yet been
designated for hearing, but may
[[Page 48625]]
be made with prejudice after designation for hearing.
(2) Subject to the provisions of Sec. 73.3525, requests to dismiss
an application for a channel reserved for noncommercial educational
use, without prejudice, after it has been designated for hearing, will
be considered only upon written petition properly served upon all
parties of record. Such requests shall be granted only upon a showing
that the request is based on circumstances wholly beyond the
applicant's control which preclude further prosecution of his
application.
(c) Subject to the provisions of Secs. 73.3523 and 73.3525, any
application for minor modification of facilities may, upon request of
the applicant, be dismissed without prejudice as a matter of right.
(d) An applicant's request for the return of an application that
has been accepted for filing will be regarded as a request for
dismissal.
12. Section 73.3571 is revised to read as follows:
Sec. 73.3571 Processing of AM broadcast station applications.
(a) Applications for AM broadcast facilities are divided into three
groups.
(1) In the first group are applications for new stations or for
major changes in the facilities of authorized stations. A major change
for an AM station authorized under this part is any increase in power,
except where accompanied by a complimentary reduction of antenna
efficiency which leads to the same amount, or less, radiation in all
directions (in the horizontal and vertical planes when skywave
propagation is involved, and in the horizontal plane only for daytime
considerations), relative to the presently authorized radiation levels,
or any change in frequency, hours of operation, or community of
license. A major change in ownership is a situation where the original
party or parties to the application do not retain more than 50%
ownership interest in the application as originally filed.
(2) The second group consists of applications for licenses and all
other changes in the facilities of authorized stations.
(3) The third group consists of applications for operation in the
1605-1705 kHz band which are filed subsequent to FCC notification that
allotments have been awarded to petitioners under the procedure
specified in Sec. 73.30.
(b)(1) The FCC may, after acceptance of an application for
modification of facilities, advise the applicant that such application
is considered to be one for a major change and therefore is subject to
the provisions of Secs. 73.3522, 73.3580 and 1.1111 of this chapter
pertaining to major changes. Such major modification applications will
be dismissed as set forth in paragraph (h)(1)(i) of this section.
(2) An amendment to an application which would effect a major
change, as defined in paragraph (a)(1) of this section, will not be
accepted except as provided for in paragraph (h)(1)(i) of this section.
(c) An application for changes in the facilities of an existing
station will continue to carry the same file number even though
(pursuant to FCC approval) an assignment of license or transfer of
control of said licensee or permittee has taken place if, upon
consummation, the application is amended to reflect the new ownership.
(d) If, upon examination, the FCC finds that the public interest,
convenience and necessity will be served by the granting of an
application, the same will be granted. If the FCC is unable to make
such a finding and it appears that a hearing may be required, the
procedure set forth in Sec. 73.3593 will be followed.
(e) Applications proposing to increase the power of an AM station
are subject to the following requirements:
(1) In order to be acceptable for filing, any application which
does not involve a change in site must propose at least a 20% increase
in the station's nominal power.
(2) Applications involving a change in site are not subject to the
requirements in paragraph (e)(1) of this section.
(3) Applications for nighttime power increases for Class D stations
are not subject to the requirements of this section and will be
processed as minor changes.
(4) The following special procedures will be followed in
authorizing Class II-D daytime-only stations on 940 and 1550 kHz, and
Class III daytime-only stations on the 41 regional channels listed in
Sec. 73.26(a), to operate unlimited-time.
(i) Each eligible daytime-only station in the foregoing categories
will receive an Order to Show Cause why its license should not be
modified to specify operation during nighttime hours with the
facilities it is licensed to start using at local sunrise, using the
power stated in the Order to Show Cause, that the Commission finds is
the highest nighttime level--not exceeding 0.5 kW--at which the station
could operate without causing prohibited interference to other domestic
or foreign stations, or to co-channel or adjacent channel stations for
which pending applications were filed before December 1, 1987.
(ii) Stations accepting such modification shall be reclassified.
Those authorized in such Show Cause Orders to operate during nighttime
hours with a power of 0.25 kW or more, or with a power that, although
less than 0.25 kW, is sufficient to enable them to attain RMS field
strengths of 141 mV/m or more at 1 kilometer, shall be redesignated as
Class II-B stations if they are assigned to 940 or 1550 kHz, and as
unlimited-time Class III stations if they are assigned to regional
channels.
(iii) Stations accepting such modification that are authorized to
operate during nighttime hours at powers less than 0.25 kW, and that
cannot with such powers attain RMS field strengths of 141 mV/m or more
at 1 kilometer, shall be redesignated as Class II-S stations if they
are assigned to 940 or 1550 kHz, and as Class III-S stations if they
are assigned to regional channels.
(iv) Applications for new stations may be filed at any time on 940
and 1550 kHz and on the regional channels. Also, stations assigned to
940 or 1550 kHz, or to the regional channels, may at any time,
regardless of their classifications, apply for power increases up to
the maximum generally permitted. Such applications for new or changed
facilities will be granted without taking into account interference
caused to Class II-S or Class III-S stations, but will be required to
show interference protection to other classes of stations, including
stations that were previously classified as Class II-S or Class III-S,
but were later reclassified as Class II-B or Class III unlimited-time
stations as a result of subsequent facilities modifications that
permitted power increases qualifying them to discontinue their ``S''
subclassification.
(f) Applications for minor modifications for AM broadcast stations,
as defined in paragraph (a)(2) of this section, may be filed at any
time, unless restricted by the FCC, and, generally will be processed in
the order in which they are tendered. The FCC will periodically release
a Public Notice listing those applications accepted for filing. Any
such applications found to be mutually exclusive must be resolved
through settlement or technical amendment.
(g) Applications for change of license to change hours of operation
of a Class C AM broadcast station, to decrease hours of operation of
any other class of station, or to change station location involving no
change in transmitter site will be considered without reference to the
processing line.
[[Page 48626]]
(h) Processing new and major AM broadcast station applications.
(1)(i) The FCC will specify by Public Notice, pursuant to Sec. 73.5002,
a period for filing AM applications for a new station or for major
modifications in the facilities of an authorized station. AM
applications for new facilities or for major modifications will be
accepted only during these specified periods. Applications submitted
prior to the appropriate filing period or ``window'' opening date
identified in the Public Notice will be returned as premature.
Applications submitted after the specified deadline will be dismissed
with prejudice as untimely.
(ii) Such AM applicants will be subject to the provisions of
Secs. 1.2105 and 73.5002 regarding the submission of the short-form
application, FCC Form 175, and all appropriate certifications,
information and exhibits contained therein. To determine which AM
applications are mutually exclusive, AM applicants must submit the
engineering data contained in FCC Form 301 as a supplement to the
short-form application. Such engineering data will not be studied for
technical acceptability, but will be protected from subsequently filed
applications as of the close of the window filing period.
Determinations as to the acceptability or grantability of an
applicant's proposal will not be made prior to an auction.
(iii) AM applicants will be subject to the provisions of
Secs. 1.2105 and 73.5002 regarding the modification and dismissal of
their short-form applications.
(2) Subsequently, the FCC will release Public Notices:
(i) identifying the short-form applications received during the
window filing period which are found to be mutually exclusive;
(ii) establishing a date, time and place for an auction;
(iii) providing information regarding the methodology of
competitive bidding to be used in the upcoming auction, bid submission
and payment procedures, upfront payment procedures, upfront payment
deadlines, minimum opening bid requirements and applicable reserve
prices in accordance with the provisions of Sec. 73.5002;
(iv) identifying applicants who have submitted timely upfront
payments and, thus, are qualified to bid in the auction.
(3) If, during the window filing period, the FCC receives non-
mutually exclusive AM applications, a Public Notice will be released
identifying the non-mutually exclusive applicants, who will be required
to submit the appropriate long form application within 30 days of the
Public Notice and pursuant to the provisions of Sec. 73.5005(d). These
non-mutually exclusive applications will be processed and the FCC will
periodically release a Public Notice listing such non-mutually
exclusive applications determined to be acceptable for filing and
announcing a date by which petitions to deny must be filed in
accordance with the provisions of Secs. 73.5006 and 73.3584. If the
applicant is duly qualified, and upon examination, the FCC finds that
the public interest, convenience and necessity will be served by the
granting of the non-mutually exclusive long form application, the same
will be granted.
(4)(i) The auction will be held pursuant to the procedures set
forth in Secs. 1.2101 et seq. and 73.5000 et seq. Subsequent to the
auction, the FCC will release a Public Notice announcing the close of
the auction and identifying the winning bidders. Winning bidders will
be subject to the provisions of Secs. 1.2107 and 73.5003 regarding down
payments and will be required to submit the appropriate down payment
within 10 business days of the Public Notice. Pursuant to Secs. 1.2107
and 73.5005, a winning bidder that meets its down payment obligations
in a timely manner must, within 30 days of the release of the Public
Notice announcing the close of the auction, submit the appropriate
long-form application for each construction permit for which it was the
winning bidder. Long-form applications filed by winning bidders shall
include the exhibits identified in Sec. 73.5005(a).
(ii) These applications will be processed and the FCC will
periodically release a Public Notice listing such applications that
have been accepted for filing and announcing a date by which petitions
to deny must be filed in accordance with the provisions of
Secs. 73.5006 and 73.3584. If the applicant is duly qualified, and upon
examination, the FCC finds that the public interest, convenience and
necessity will be served by the granting of the winning bidder's long-
form application, a Public Notice will be issued announcing that the
construction permit is ready to be granted. Each winning bidder shall
pay the balance of its winning bid in a lump sum within 10 business
days after release of the Public Notice, as set forth in
Secs. 1.2109(a) and 73.5003. Construction permits will be granted by
the Commission following the receipt of the full payment.
(iii) All long-form applications will be cutoff as of the date of
filing with the FCC and will be protected from subsequently filed long-
form applications. Applications will be required to protect all
previously filed commercial and noncommercial applications. Winning
bidders filing long-form applications may change the technical
proposals specified in their previously submitted short-form
applications, but such change may not constitute a major change. If the
submitted long-form application would constitute a major change from
the proposal submitted in the short-form application, the long-form
application will be returned pursuant to paragraph (h)(1)(i) of this
section.
(i) In order to grant a major or minor change application made
contingent upon the grant of another licensee's request for a facility
modification, the Commission will not consider mutually exclusive
applications by other parties that would not protect the currently
authorized facilities of the contingent applicants. Such major change
applications remain, however, subject to the provisions of
Secs. 73.3580 and 1.1111. The Commission shall grant contingent
requests for construction permits for station modifications only upon a
finding that such action will promote the public interest, convenience
and necessity.
13. Section 73.3572 is revised to read as follows:
Sec. 73.3572 Processing of TV broadcast, low power TV, TV translator
and TV booster station applications.
(a) Applications for TV stations are divided into two groups:
(1) In the first group are applications for new stations or major
changes in the facilities of authorized stations. A major change for TV
broadcast stations authorized under this part is any change in
frequency or community of license which is in accord with a present
allotment contained in the Table of Allotments (Sec. 73.606). Other
requests for change in frequency or community of license for TV
broadcast stations must first be submitted in the form of a petition
for rulemaking to amend the Table of Allotments. In the case of low
power TV, TV translator, and TV booster stations authorized under part
74 of this chapter, a major change is any change in:
(i) Frequency (output channel) assignment (does not apply to TV
boosters);
(ii) Transmitting antenna system including the direction of the
radiation, directive antenna pattern or transmission line;
(iii) Antenna height;
(iv) Antenna location exceeding 200 meters; or
(v) Authorized operating power.
(2) However, if the proposed modification of facilities, other than
a
[[Page 48627]]
change in frequency, will not increase the signal range of the low
power TV, TV translator or TV booster station in any horizontal
direction, the modification will not be considered a major change.
(i) Provided that in the case of an authorized low power TV, TV
translator or TV booster which is predicted to cause or receive
interference to or from an authorized TV broadcast station pursuant to
Sec. 74.705 or interference with broadcast or other services under
Sec. 74.703 or Sec. 74.709, that an application for a change in output
channel, together with technical modifications which are necessary to
avoid interference (including a change in antenna location of less than
16.1 km), will not be considered as an application for a major change
in those facilities.
(ii) Provided further, that a low power TV, TV translator or TV
booster station: authorized on a channel from channel 60 to 69, or
which is causing or receiving interference or is predicted to cause or
receive interference to or from an authorized DTV station pursuant to
Sec. 74.706, or which is located within the distances specified below
in paragraph (iii) of this section to the coordinates of co-channel DTV
authorizations (or allotment table coordinates if there are no
authorized facilities at different coordinates), may at any time file a
displacement relief application for a change in output channel,
together with any technical modifications which are necessary to avoid
interference or continue serving the station's protected service area.
Such an application will not be considered as an application for a
major change in those facilities. Where such an application is mutually
exclusive with applications for new low power TV, TV translator or TV
booster stations, or with other nondisplacement relief applications for
facilities modifications, priority will be afforded to the displacement
application(s) to the exclusion of the other applications.
(iii)(A) The geographic separations to co-channel DTV facilities or
allotment reference coordinates, as applicable, within which to qualify
for displacement relief are the following:
(1) Stations on UHF channels: 265 km (162 miles)
(2) Stations on VHF channels 2-6: 280 km (171 miles)
(3) Stations on VHF channels 7-13: 260 km (159 miles)
(B) Engineering showings of predicted interference may also be
submitted to justify the need for displacement relief.
(iv) Provided further, that the FCC may, within 15 days after
acceptance of any other application for modification of facilities,
advise the applicant that such application is considered to be one for
a major change and therefore subject to the provisions of
Secs. 73.3522, 73.3580, and 1.1111 of this chapter pertaining to major
changes. Such major modification applications filed for low power TV,
TV translator, TV booster stations, and for a non-reserved television
allotment, are subject to competitive bidding procedures and will be
dismissed if filed outside a specified filing period. See 47 CFR
73.5002(a).
(b) A new file number will be assigned to an application for a new
station or for major changes in the facilities of an authorized
station, when it is amended so as to effect a major change, as defined
in paragraph (a)(1) of this section, or result in a situation where the
original party or parties to the application do not retain more than
50% ownership interest in the application as originally filed and
Sec. 73.3580 will apply to such amended application. An application for
change in the facilities of any existing station will continue to carry
the same file number even though (pursuant to FCC approval) an
assignment of license or transfer of control of such licensee or
permittee has taken place if, upon consummation, the application is
amended to reflect the new ownership.
(c) Amendments to low power TV, TV translator, TV booster stations,
or non-reserved television applications, which would require a new file
number pursuant to paragraph (b) of this section, are subject to
competitive bidding procedures and will be dismissed if filed outside a
specified filing period. See 47 CFR 73.5002(a). When an amendment to an
application for a reserved television allotment would require a new
file number pursuant to paragraph (b) of this section, the applicant
will have the opportunity to withdraw the amendment at any time prior
to designation for a hearing if applicable; and may be afforded,
subject to the discretion of the Administrative Law Judge, an
opportunity to withdraw the amendment after designation for a hearing.
(d) Applications for TV stations on reserved noncommercial
educational channels will be processed as nearly as possible in the
order in which they are filed. Such applications will be placed in the
processing line in numerical sequence, and will be drawn by the staff
for study, the lowest file number first. In order that those
applications which are entitled to be grouped for processing may be
fixed prior to the time processing of the earliest filed application is
begun, the FCC will periodically release a Public Notice listing
applications which have been accepted for filing and announcing a date
(not less than 30 days after issuance) on which the listed applications
will be considered available and ready for processing and by which all
mutually exclusive applications and petitions to deny the listed
applications must be filed.
(e)(1) The FCC will specify by Public Notice, pursuant to
Sec. 73.5002, a period for filing applications for a new non-reserved
television, low power TV and TV translator stations or for major
modifications in the facilities of such authorized station.
(2) Such applicants shall be subject to the provisions of
Secs. 1.2105 and competitive bidding procedures. See 47 CFR 73.5000 et
seq.
(f) Applications for minor modifications for television broadcast,
low power television and TV translator stations, as defined in
paragraph (a)(2) of this section, may be filed at any time, unless
restricted by the FCC, and, generally, will be processed in the order
in which they are tendered.
(g) TV booster station applications may be filed at any time.
Subsequent to filing, the FCC will release a Public Notice accepting
for filing and proposing for grant those applications which are not
mutually exclusive with any other TV translator, low power TV, or TV
booster application, and providing for the filing of Petitions To Deny
pursuant to Sec. 73.3584.
14. Section 73.3573 is revised to read as follows:
Sec. 73.3573 Processing FM broadcast station applications.
(a) Applications for FM broadcast stations are divided into two
groups:
(1) In the first group are applications for new stations or for
major changes in the facilities of authorized stations. A major change
for an FM station authorized under this part is any change in frequency
or community of license which is in accord with a present allotment
contained in the Table of Allotments (Sec. 73.202(b)). A licensee or
permittee may seek the higher or lower class adjacent channel,
intermediate frequency or co-channel or the same class adjacent channel
of its existing FM broadcast station authorization by filing a minor
change application. Other requests for change in frequency or community
of license for FM stations must first be submitted in the form of a
petition for rulemaking to amend the Table of Allotments. Long-form
applications submitted pursuant to Sec. 73.5005 for a new FM broadcast
service may propose a higher or lower class adjacent channel,
intermediate frequency or co-channel. For
[[Page 48628]]
noncommercial educational FM stations, a major change is any change in
frequency or community of license or any change in power or antenna
location or height above average terrain (or combination thereof) which
would result in a change of 50% or more in the area within the
station's predicted 1 mV/m field strength contour. (A change in area is
defined as the sum of the area gained and the area lost as a percentage
of the original area.) A major change in ownership is a situation where
the original party or parties to the application do not retain more
than 50% ownership interest in the application as originally filed.
(2) The second group consists of applications for licenses and all
other changes in the facilities of authorized stations.
(b)(1) The FCC may, after the acceptance of an application for
modification of facilities, advise the applicant that such application
is considered to be one for a major change and therefore subject to the
provisions of Secs. 73.3522, 73.3580 and 1.1111 of this chapter
pertaining to major changes. Such major modification applications in
the non-reserved band will be dismissed as set forth in paragraph
(f)(2)(i) of this section.
(2) An amendment to a non-reserved band application which would
effect a major change, as defined in paragraph (a)(1) of this section,
will not be accepted, except as provided for in paragraph (f)(2)(i) of
this section.
(3) A new file number will be assigned to a reserved band
application for a new station or for major changes in the facilities of
an authorized station, when it is amended so as to effect a major
change, as defined in paragraph (a)(1) of this section. Where an
amendment to a reserved band application would require a new file
number, the applicant will have the opportunity to withdraw the
amendment at any time prior to designation for hearing, if applicable;
and may be afforded, subject to the discretion of the Administrative
Law Judge, an opportunity to withdraw the amendment after designation
for hearing.
(c) An application for changes in the facilities of any existing
station will continue to carry the same file number even though
(pursuant to FCC approval) an assignment of license or transfer of
control of such licensee or permittee has taken place if, upon
consummation, the application is amended to reflect the new ownership.
(d) If, upon examination, the FCC finds that the public interest,
convenience and necessity will be served by the granting of an
application for FM broadcast facilities, the same will be granted. If
the FCC is unable to make such a finding and it appears that a hearing
may be required, the procedure given in Sec. 73.3593 will be followed.
(e) Applications for reserved band and Class D FM broadcast
stations will be processed as nearly as possible in the order in which
they are filed. Such applications will be placed in the processing line
in numerical sequence, and will be drawn by the staff for study, the
lowest file number first. In order that those applications which are
entitled to be grouped for processing may be fixed prior to the time
processing of the earliest filed application is begun, the FCC will
periodically release a Public Notice listing applications which have
been accepted for filing and announcing a date (not less than 30 days
after publication) on which the listed applications will be considered
available and ready for processing and by which all mutually exclusive
applications and/or petitions to deny the listed applications must be
filed.
(f) Processing non-reserved FM broadcast station applications. (1)
Applications for minor modifications for non-reserved FM broadcast
stations, as defined in paragraph (a)(2) of this section, may be filed
at any time, unless restricted by the FCC, and, generally, will be
processed in the order in which they are tendered. The FCC will
periodically release a Public Notice listing those applications
accepted for filing. Processing of these applications will be on a
``first come/first serve'' basis with the first acceptable application
cutting off the filing rights of subsequent applicants. All
applications received on the same day will be treated as simultaneously
tendered and, if they are found to be mutually exclusive, must be
resolved through settlement or technical amendment. Applications
received after the tender of a lead application will be grouped,
according to filing date, behind the lead application in a queue. The
priority rights of the lead applicant, as against all other applicants,
are determined by the date of filing, but the filing date for
subsequent applicants for that channel and community only reserves a
place in the queue. The rights of an applicant in a queue ripen only
upon a final determination that the lead applicant is unacceptable and
if the queue member is reached and found acceptable. The queue will
remain behind the lead applicant until a construction permit is finally
granted, at which time the queue dissolves.
(2) (i) The FCC will specify by Public Notice, pursuant to
Sec. 73.5002(a), a period for filing non-reserved band FM applications
for a new station or for major modifications in the facilities of an
authorized station. FM applications for new facilities or for major
modifications will be accepted only during the appropriate filing
period or ``window.'' Applications submitted prior to the window
opening date identified in the Public Notice will be returned as
premature. Applications submitted after the specified deadline will be
dismissed with prejudice as untimely.
(ii) Such FM applicants will be subject to the provisions of
Secs. 1.2105 and 73.5002 regarding the submission of the short-form
application, FCC Form 175, and all appropriate certifications,
information and exhibits contained therein. FM applicants may submit a
set of preferred site coordinates as a supplement to the short-form
application. Any specific site indicated by FM applicants will not be
studied for technical acceptability, but will be protected from
subsequently filed applications as a full-class facility as of the
close of the window filing period. Determinations as to the
acceptability or grantability of an applicant's proposal will not be
made prior to an auction.
(iii) FM applicants will be subject to the provisions of
Secs. 1.2105 and 73.5002(c) regarding the modification and dismissal of
their short-form applications.
(3) Subsequently, the FCC will release Public Notices:
(i) identifying the short-form applications received during the
window filing period which are found to be mutually exclusive;
(ii) establishing a date, time and place for an auction;
(iii) providing information regarding the methodology of
competitive bidding to be used in the upcoming auction, bid submission
and payment procedures, upfront payment procedures, upfront payment
deadlines, minimum opening bid requirements and applicable reserve
prices in accordance with the provisions of Sec. 73.5002;
(iv) identifying applicants who have submitted timely upfront
payments and, thus, are qualified to bid in the auction.
(4) If, after the close of the appropriate window filing period, a
non-reserved FM allotment remains vacant, the window remains closed
until the FCC, by Public Notice, specifies a subsequent period for
filing non-reserved band FM applications for a new station or for major
modifications in the facilities of an authorized station pursuant to
paragraph (f)(2)(i) of this section. If,
[[Page 48629]]
during the window filing period, the FCC receives only one application
for any non-reserved FM allotment, a Public Notice will be released
identifying the non-mutually exclusive applicant, who will be required
to submit the appropriate long-form application within 30 days of the
Public Notice and pursuant to the provisions of Sec. 73.5005. These
non-mutually exclusive applications will be processed and the FCC will
periodically release a Public Notice listing such non-mutually
exclusive applications determined to be acceptable for filing and
announcing a date by which petitions to deny must be filed in
accordance with the provisions of Secs. 73.5006 and 73.3584 of this
chapter. If the applicant is duly qualified, and upon examination, the
FCC finds that the public interest, convenience and necessity will be
served by the granting of the non-mutually exclusive long-form
application, it will be granted.
(5)(i) The auction will be held pursuant to the procedures set
forth in Secs. 1.2101 et seq. and 73.5000 et seq. Subsequent to the
auction, the FCC will release a Public Notice announcing the close of
the auction and identifying the winning bidders. Winning bidders will
be subject to the provisions of Secs. 1.2107 and 73.5003 regarding down
payments and will be required to submit the appropriate down payment
within 10 business days of the Public Notice. Pursuant to Secs. 1.2107
and 73.5005, a winning bidder that meets its down payment obligations
in a timely manner must, within 30 days of the release of the public
notice announcing the close of the auction, submit the appropriate
long-form application for each construction permit for which it was the
winning bidder. Long-form applications filed by winning bidders shall
include the exhibits identified in Sec. 73.5005(a).
(ii) These applications will be processed and the FCC will
periodically release a Public Notice listing such applications that
have been accepted for filing and announcing a date by which petitions
to deny must be filed in accordance with the provisions of
Secs. 73.5006 and 73.3584 of this chapter. If the applicant is duly
qualified, and upon examination, the FCC finds that the public
interest, convenience and necessity will be served by the granting of
the winning bidder's long-form application, a Public Notice will be
issued announcing that the construction permit is ready to be granted.
Each winning bidder shall pay the balance of its winning bid in a lump
sum within 10 business days after release of the Public Notice, as set
forth in Secs. 1.2109(a) and 73.5003(c). Construction permits will be
granted by the Commission following the receipt of the full payment.
(iii) All long-form applications will be cut-off as of the date of
filing with the FCC and will be protected from subsequently filed long-
form applications and rulemaking petitions. Applications will be
required to protect all previously filed commercial and noncommercial
applications. Winning bidders filing long-form applications may change
the technical proposals specified in their previously submitted short-
form applications, but such change may not constitute a major change.
If the submitted long-form application would constitute a major change
from the proposal submitted in the short-form application or the
allotment, the long-form application will be returned pursuant to
paragraph (f)(2)(i) of this section.
Note 1 to Sec. 73.3573: Applications to modify the channel and/
or class of an FM broadcast station to an adjacent channel,
intermediate frequency (IF) channel, or co-channel shall not require
any other amendments to the Table of Allotments. Such applications
may resort to the provisions of the Commission's Rules permitting
short spaced stations as set forth in Sec. 73.215 as long as the
applicant shows by separate exhibit attached to the application the
existence of an allotment reference site which meets the allotment
standards, the minimum spacing requirements of Sec. 73.207 and the
city grade coverage requirements of Sec. 73.315. This exhibit must
include a site map or, in the alternative, a statement that the
transmitter will be located on an existing tower. Examples of
unsuitable allotment reference sites include those which are
offshore, in a national or state park in which tower construction is
prohibited, on an airport, or otherwise in an area which would
necessarily present a hazard to air navigation.
Note 2 to Sec. 73.3573: Processing of applications for new low
power educational FM applications: Pending the Commission's restudy
of the impact of the rule changes pertaining to the allocations of
10-watt and other low power noncommercial educational FM stations,
applications for such new stations, or major changes in existing
ones, will not be accepted for filing. Exceptions are: (1) In
Alaska, applications for new Class D stations or major changes in
existing ones are acceptable for filing; and (2) applications for
existing Class D stations to change frequency are acceptable for
filing. In (2), upon the grant of such application, the station
shall become a Class D (secondary) station. (See First Report and
Order, Docket 20735, FCC 78-386, 43 FR 25821, and Second Report and
Order, Docket 20735, FCC 78-384, 43 FR 39704.) Effective date of
this FCC imposed ``freeze'' was June 15, 1978. Applications which
specify facilities of at least 100 watts effective radiated power
will be accepted for filing.
Note 3 to Sec. 73.3573: For rules on processing FM translator
and booster stations, see Sec. 74.1233 of this chapter.
15. Add Subpart I, which includes Secs. 73.5000 through 73.5009, to
read as follows:
PART 73--RADIO BROADCAST SERVICES
Subpart I--Competitive Bidding Procedures
Sec.
73.5000 Services subject to competitive bidding.
73.5001 Competitive bidding procedures.
73.5002 Bidding application and certification procedures;
prohibition of collusion.
73.5003 Submission of upfront payments, down payments and full
payments.
73.5004 Bid withdrawal, default and disqualification.
73.5005 Filing of long-form applications.
73.5006 Filing of petitions to deny against long-form applications.
73.5007 Designated entity provisions.
73.5008 Definitions applicable for designated entity provisions.
73.5009 Assignment or transfer of control.
Subpart I--Competitive Bidding Procedures
Sec. 73.5000 Services subject to competitive bidding.
(a) Mutually exclusive applications for new facilities and for
major changes to existing facilities in the following broadcast
services are subject to competitive bidding: AM; FM; FM translator;
analog television; low power television; and television translator.
Mutually exclusive applications for new facilities and for major
changes to existing facilities in the Instructional Television Fixed
Service (ITFS) are also subject to competitive bidding. The general
competitive bidding procedures found in 47 CFR Part 1, Subpart Q will
apply unless otherwise provided in 47 CFR Part 73 and Part 74.
(b) Mutually exclusive applications for broadcast channels in the
reserved portion of the FM band (Channels 200-220) and for television
broadcast channels reserved for noncommercial educational use are not
subject to competitive bidding procedures.
Sec. 73.5001 Competitive bidding procedures.
(a) Specific competitive bidding procedures for broadcast service
and ITFS auctions will be set forth by public notice prior to any
auction. The Commission may also design and test alternative
procedures, including combinatorial bidding and real time bidding. See
47 CFR 1.2103 and 1.2104.
(b) The Commission may utilize the following competitive bidding
mechanisms in broadcast service and ITFS auctions:
[[Page 48630]]
(1) Sequencing. The Commission will establish and may vary the
sequence in which broadcast service construction permits and ITFS
licenses will be auctioned.
(2) Grouping. In the event the Commission uses either a
simultaneous multiple round competitive bidding design or combinatorial
bidding in broadcast service or ITFS auctions, the Commission will
determine which construction permits or licenses will be auctioned
simultaneously or in combination.
(3) Reservation price. The Commission may establish a reservation
price, either disclosed or undisclosed, below which a broadcast
construction permit or ITFS license subject to auction will be not
awarded.
(4) Minimum and maximum bid increments. The Commission may, by
announcement before or during broadcast service or ITFS auctions,
require minimum bid increments in dollar or percentage terms. The
Commission may, by announcement before or during broadcast service or
ITFS auctions, establish maximum bid increments in dollar or percentage
terms.
(5) Minimum opening bids. The Commission may establish a minimum
opening bid for each broadcast construction permit or ITFS license
subject to auction.
(6) Stopping rules. The Commission will establish stopping rules
before or during multiple round broadcast service or ITFS auctions in
order to terminate the auction within a reasonable time.
(7) Activity rules. The Commission will establish activity rules
which require a minimum amount of bidding activity. In the event that
the Commission establishes an activity rule in connection with a
simultaneous multiple round auction, each bidder will be entitled to
request and will be automatically granted a certain number of waivers
of such rule during the auction.
Sec. 73.5002 Bidding application and certification procedures;
prohibition of collusion.
(a) Prior to any broadcast service or ITFS auction, the Commission
will issue a public notice announcing the upcoming auction and
specifying the period during which all applicants seeking to
participate in an auction must file their applications for new
broadcast or ITFS facilities or for major changes to existing
facilities. Broadcast service or ITFS applications for new facilities
or for major modifications will be accepted only during these specified
periods. This initial and other public notices will contain information
about the completion and submission of applications to participate in
the broadcast or ITFS auction, any materials that must accompany the
applications, and any filing fee that must accompany the applications
or any upfront payments that will need to be submitted. Such public
notices will also, in the event mutually exclusive applications are
filed for broadcast construction permits or ITFS licenses, contain
information about the method of competitive bidding to be used and more
detailed instructions on submitting bids and otherwise participating in
the auction. In the event applications are submitted that are not
mutually exclusive with any other application in the same service, such
applications will be identified by public notice and will not be
subjected to auction.
(b) To participate in broadcast service or ITFS auctions, all
applicants must timely submit short-form applications (FCC Form 175),
along with all required certifications, information and exhibits,
pursuant to the provisions of 47 CFR 1.2105(a) and any Commission
public notices. So determinations of mutual exclusivity for auction
purposes can be made, applicants for non-table broadcast services or
for ITFS must also submit the engineering data contained in the
appropriate FCC form (FCC Form 301, FCC Form 346, FCC Form 349 or FCC
Form 330). Beginning January 1, 1999, all short-form applications must
be filed electronically.
(c) Applicants in all broadcast service or ITFS auctions will be
subject to the provisions of 47 CFR 1.2105(b) regarding the
modification and dismissal of their short-form applications.
Notwithstanding the general applicability of Section 1.2105(b) to
broadcast and ITFS auctions, applicants who file mutually exclusive
major modification applications, or mutually exclusive major
modification and new station applications, will be permitted to make
amendments to their engineering submissions following the filing of
their short-form applications so as to resolve their mutual
exclusivity.
(d) The prohibition of collusion set forth in 47 CFR 1.2105(c),
which becomes effective upon the filing of short-form applications,
shall apply to all broadcast service or ITFS auctions. Notwithstanding
the general applicability of Section 1.2105(c) to broadcast and ITFS
auctions, applicants who file mutually exclusive major modification
applications, or mutually exclusive major modifications and new station
applications, will be permitted to resolve their mutual exclusivities
by means of engineering solutions or settlements during a limited
period after the filing of short-form applications. Such period will be
further specified by Commission public notices.
Sec. 73.5003 Submission of upfront payments, down payments and full
payments.
(a) To be eligible to bid, each bidder in every broadcast service
or ITFS auction shall submit an upfront payment prior to the
commencement of bidding, as set forth in any public notices and in
accordance with 47 CFR 1.2106.
(b) Within ten (10) business days following the close of bidding
and notification to the winning bidders, each winning bidder in every
broadcast service or ITFS auction shall make a down payment in an
amount sufficient to bring its total deposits up to twenty (20) percent
of its high bid(s), as set forth in 47 CFR 1.2107(b).
(c) Each winning bidder in every broadcast service or ITFS auction
shall pay the balance of its winning bid(s) in a lump sum within ten
(10) business days after release of a public notice announcing that the
Commission is prepared to award the construction permit(s) or
license(s), as set forth in 47 CFR 1.2109(a). If a winning bidder fails
to pay the balance of its winning bid in a lump sum by the applicable
deadline as specified by the Commission, it will be allowed to make
payment within ten (10) business days after the payment deadline,
provided that it also pays a late fee equal to five (5) percent of the
amount due. Broadcast construction permits and ITFS licenses will be
granted by the Commission following the receipt of full payment.
Sec. 73.5004 Bid withdrawal, default and disqualification.
(a) The Commission shall impose the bid withdrawal, default and
disqualification payments set forth in 47 CFR 1.2104(g) upon bidders
who withdraw high bids during the course, or after the close, of any
broadcast service or ITFS auction, who default on payments due after an
auction closes, or who are disqualified. Bidders who are found to have
violated the antitrust laws or the Commission's rules in connection
with their participation in the competitive bidding process may also be
subject to the remedies set forth in 47 CFR 1.2109(d).
(b) In the event of a default by or the disqualification of a
winning bidder in any broadcast service or ITFS auction, the Commission
will follow the procedures set forth in 47 CFR 1.2109
[[Page 48631]]
(b)-(c) regarding the reauction of the construction permit(s) or
license(s) at issue.
Sec. 73.5005 Filing of long-form applications.
(a) Within thirty (30) days following the close of bidding and
notification to the winning bidders, each winning bidder must submit an
appropriate long-form application (FCC Form 301, FCC Form 346, FCC Form
349 or FCC Form 330) for each construction permit or license for which
it was the high bidder. Long-form applications filed by winning bidders
shall include the exhibits required by 47 CFR 1.2107(d) (concerning any
bidding consortia or joint bidding arrangements); Sec. 1.2110(i)
(concerning designated entity status, if applicable); and Sec. 1.2112
(a) and (b) (concerning disclosure of ownership and real party in
interest information, and, if applicable, disclosure of gross revenue
information for small business applicants).
(b) The long-form application should be submitted pursuant to the
rules governing the service in which the applicant is a high bidder and
according to the procedures for filing such applications set out by
public notice. When electronic procedures become available for the
submission of long-form applications, the Commission may require all
winning bidders to file their long-form applications electronically.
(c) An applicant that fails to submit the required long-form
application under this section, and fails to establish good cause for
any late-filed submission, shall be deemed to have defaulted and shall
be subject to the payments set forth in 47 CFR 1.2104(g).
(d) An applicant whose short-form application, submitted pursuant
to 47 CFR 73.5002(b), was not mutually exclusive with any other short-
form application in the same service and was therefore not subject to
auction, shall submit an appropriate long-form application within
thirty (30) days following release of a public notice identifying any
such non-mutually exclusive applicants. The long-form application
should be submitted pursuant to the rules governing the relevant
service and according to any procedures for filing such applications
set out by public notice. The long-form application filed by a non-
mutually exclusive applicant need not contain the additional exhibits,
identified in Sec. 73.5005(a), required to be submitted with the long-
form applications filed by winning bidders. When electronic procedures
become available, the Commission may require any non-mutually exclusive
applicants to file their long-form applications electronically.
Sec. 73.5006 Filing of petitions to deny against long-form
applications.
(a) As set forth in 47 CFR 1.2108, petitions to deny may be filed
against the long-form applications filed by winning bidders in
broadcast service or ITFS auctions and against the long-form
applications filed by applicants whose short-form applications to
participate in a broadcast or ITFS auction were not mutually exclusive
with any other applicant.
(b) Within ten (10) days following the issuance of a public notice
announcing that a long-form application has been accepted for filing,
petitions to deny that application may be filed. Any such petitions
must contain allegations of fact supported by affidavit of a person or
persons with personal knowledge thereof.
(c) An applicant may file an opposition to any petition to deny,
and the petitioner a reply to such opposition. Allegations of fact or
denials thereof must be supported by affidavit of a person or persons
with personal knowledge thereof. The time for filing such oppositions
shall be five (5) days from the filing date for petitions to deny, and
the time for filing replies shall be five (5) days from the filing date
for oppositions.
(d) If the Commission denies or dismisses all petitions to deny, if
any are filed, and is otherwise satisfied that an applicant is
qualified, a public notice will be issued announcing that the broadcast
construction permit(s) or ITFS license(s) is ready to be granted, upon
full payment of the balance of the winning bid(s). See 47 CFR
73.5003(c). Construction of broadcast stations or ITFS facilities shall
not commence until the grant of such permit or license to the winning
bidder.
Sec. 73.5007 Designated entity provisions.
New entrant bidding credit. A winning bidder that qualifies as a
``new entrant'' may use a bidding credit to lower the cost of its
winning bid on any broadcast construction permit. A thirty-five (35)
percent bidding credit will be given to a winning bidder if it and/or
its owners have no recognizable interest (more than fifty (50) percent
or de facto control) in the aggregate, in any other media of mass
communications. A twenty-five (25) percent bidding credit will be given
to a winning bidder if it and/or its owners, in the aggregate, have a
recognizable interest in no more than three mass media facilities. No
bidding credit will be given if any of the commonly owned mass media
facilities serves the same area as the proposed broadcast station, or
if the winning bidder and/or its owners have recognizable interests in
more than three mass media facilities.
(a) The new entrant bidding credit is not available to applicants
that control, or whose owners control, in the aggregate, more than
fifty (50) percent of any other media of mass communications in the
same area as the proposed broadcast facility. The facilities will be
considered in the ``same area'' if the following defined areas wholly
encompass, or are encompassed by, the proposed broadcast or secondary
broadcast facility's relevant contour:
(1) AM broadcast station--predicted or measured 2mV/m groundwave
contour (see 47 CFR 73.183 or 73.186);
(2) FM broadcast or FM translator station--predicted 1.0 mV/m
contour (see 47 CFR 73.313);
(3) Television broadcast station--Grade A contour (see 47 CFR
73.684);
(4) Low power television or television translator station--the
predicted, protected contour (see 47 CFR 74.707(a));
(5) Cable television system--the franchised community of a cable
system;
(6) Daily newspaper--community of publication; and
(7) Multipoint Distribution Service station--protected service area
(see 47 CFR 21.902(d) or 21.933).
(b) Unjust enrichment. If a licensee or permittee that utilizes a
new entrant bidding credit under this subsection seeks to assign or
transfer control of its license or construction permit to an entity not
meeting the eligibility criteria for the bidding credit, the licensee
or permittee must reimburse the U.S. Government for the amount of the
bidding credit, plus interest based on the rate for ten-year U.S.
Treasury obligations applicable on the date the construction permit was
originally granted, as a condition of Commission approval of the
assignment or transfer. If a licensee or permittee that utilizes a new
entrant bidding credit seeks to assign or transfer control of a license
or construction permit to an entity that is eligible for a lower
bidding credit, the difference between the bidding credit obtained by
the assigning party and the bidding credit for which the acquiring
party would qualify, plus interest based on the rate for ten-year U.S.
Treasury obligations applicable on the date the construction permit was
originally granted, must be paid to the U.S. Government as a condition
of Commission approval of the assignment or transfer. The amount of the
[[Page 48632]]
reimbursement payments will be reduced over time. An assignment or
transfer in the first two years after issuance of the construction
permit to the winning bidder will result in a forfeiture of one hundred
(100) percent of the value of the bidding credit; during year three, of
seventy-five (75) percent of the value of the bidding credit; in year
four, of fifty (50) percent; in year five, twenty-five (25) percent;
and thereafter, no payment. If a licensee or permittee who utilized a
new entrant bidding credit in obtaining a broadcast license or
construction permit acquires within this five-year reimbursement period
an additional broadcast facility or facilities, such that the licensee
or permittee would not have been eligible for the new entrant credit,
the licensee or permittee will not be required to reimburse the U.S.
Government for the amount of the bidding credit.
Sec. 73.5008 Definitions applicable for designated entity provisions.
(a) Scope. The definitions in this section apply to 47 CFR 73.5007,
unless otherwise specified in that section.
(b) A medium of mass communications means a daily newspaper; a
cable television system; or a license or construction permit for a
television station, a low power television or television translator
station, an AM, FM or FM translator broadcast station, a direct
broadcast satellite transponder, or a Multipoint Distribution Service
station.
(c) The owners of a winning bidder shall include the winning
bidder, in the case of a sole proprietor; partner, including limited or
``silent'' partners, in the case of a partnership; the beneficiaries,
in the case of a trust; any member, in the case of a nonstock
corporation or unincorporated association with members; any member of
the governing board (including executive boards, boards of regents,
commissions, or similar governmental bodies where each member has one
vote), in the case of nonstock corporation or unincorporated
association without members; and owners of voting shares, in the case
of stock corporations.
Sec. 73.5009 Assignment or transfer of control.
(a) The reporting requirement contained in 47 CFR 1.2111(a) shall
apply to an applicant seeking approval for a transfer of control or
assignment of a broadcast construction permit or license within three
years of receiving such permit or license by means of competitive
bidding.
(b) The ownership disclosure requirements contained in 47 CFR
1.2112(a) shall apply to an applicant seeking consent to assign or
transfer control of a broadcast construction permit or license awarded
by competitive bidding.
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
16. The authority for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 307, and 554.
17. Section 74.910 is amended by adding the two new entries in
numerical order to read as follows:
Sec. 74.910 Part 73 application requirements pertaining to ITFS
stations.
* * * * *
Sec. 73.3522(a) Amendment of applications.
* * * * *
Sec. 73.5000-73.5006 Competitive Bidding Procedures.
* * * * *
18. Section 74.911 is amended by revising paragraph (c) and
removing paragraph (d) to read as follows:
Sec. 74.911 Processing of ITFS station applications.
* * * * *
(c)(1)(i) The FCC will specify by Public Notice, pursuant to
Sec. 73.5002, a period for filing ITFS applications for a new station
or for major modifications in the facilities of an authorized station.
(ii) Such ITFS applicants shall be subject to the provisions of
Secs. 1.2105 and the ITFS competitive bidding procedures. See 47 CFR
73.5000 et seq.
(2) [Reserved]
Sec. 74.912 [Removed]
19. Section 74.912 is removed.
Sec. 74.913 [Removed]
20. Section 74.913 is removed.
21. Section 74.1233 is revised to read as follows:
Sec. 74.1233 Processing FM translator and booster station
applications.
(a) Applications for FM translator and booster stations are divided
into two groups:
(1) In the first group are applications for new stations or for
major changes in the facilities of authorized stations. In the case of
FM translator stations, a major change is any change in frequency
(output channel), or change (only the gain should be included in
determining amount of change) or increase (but not decrease) in area to
be served greater than ten percent of the previously authorized 1 mV/m
contour. All other changes will be considered minor. All major changes
are subject to the provisions of Secs. 73.3580 and 1.1104 of this
chapter pertaining to major changes.
(2) In the second group are applications for licenses and all other
changes in the facilities of the authorized station.
(b) Applications for booster stations and reserved-band FM
translator stations will be processed as nearly as possible in the
order in which they are filed. Such applications will be placed in the
processing line in numerical sequence, and will be drawn by the staff
for study, the lowest file number first. In order that those
applications which are entitled to be grouped for processing may be
fixed prior to the time processing of the earliest filed application is
begun, the FCC will periodically release a Public Notice listing
reserved-band applications that have been accepted for filing and
announcing a date (not less than 30 days after publication) on which
the listed applications will be considered available and ready for
processing and by which all mutually exclusive applications and/or
petitions to deny the listed applications must be filed.
(c) In the case of an application for an instrument of
authorization, other than a license pursuant to a construction permit,
grant will be based on the application, the pleadings filed, and such
other matters that may be officially noticed. Before a grant can be
made it must be determined that:
(1) There is not pending a mutually exclusive application filed in
accordance with paragraph (b) of this section.
(2) The applicant is legally, technically, financially and
otherwise qualified;
(3) The applicant is not in violation of any provisions of law, the
FCC rules, or established policies of the FCC; and
(4) A grant of the application would otherwise serve the public
interest, convenience and necessity.
(d) Processing non-reserved band FM translator applications. (1)
Applications for minor modifications for non-reserved FM translator
stations, as defined in paragraph (a)(2) of this section, may be filed
at any time, unless restricted by the FCC, and, generally, will be
processed in the order in which they are tendered. The FCC will
periodically release a Public Notice listing those applications
accepted for filing. All minor modification applications found to be
mutually
[[Page 48633]]
exclusive, must be resolved through settlement or technical amendment.
(2)(i) The FCC will specify by Public Notice, pursuant to
Sec. 73.5002(a), a period for filing non-reserved band FM translator
applications for a new station or for major modifications in the
facilities of an authorized station. FM translator applications for new
facilities or for major modifications will be accepted only during
these specified periods. Applications submitted prior to the window
opening date identified in the Public Notice will be returned as
premature. Applications submitted after the specified deadline will be
dismissed with prejudice as untimely.
(ii) Such FM translator applicants will be subject to the
provisions of Secs. 1.2105 and 73.5002(a) regarding the submission of
the short-form application, FCC Form 175, and all appropriate
certifications, information and exhibits contained therein. To
determine which FM translator applications are mutually exclusive, FM
translator applicants must submit the engineering data contained in FCC
Form 349 as a supplement to the short-form application. Such
engineering data will not be studied for technical acceptability, but
will be protected from subsequently filed applications as of the close
of the window filing period. Determinations as to the acceptability or
grantability of an applicant's proposal will not be made prior to an
auction.
(iii) FM translator applicants will be subject to the provisions of
Sec. 1.2105 regarding the modification and dismissal of their short-
form applications.
(iv) Consistent with Sec. 1.2105(a), beginning January 1, 1999, all
short-form applications must be filed electronically.
(3) Subsequently, the FCC will release Public Notices:
(i) identifying the short-form applications received during the
appropriate filing period or ``window'' which are found to be mutually
exclusive;
(ii) establishing a date, time and place for an auction;
(iii) providing information regarding the methodology of
competitive bidding to be used in the upcoming auction, bid submission
and payment procedures, upfront payment procedures, upfront payment
deadlines, minimum opening bid requirements and applicable reserve
prices in accordance with the provisions of Sec. 73.5002;
(iv) identifying applicants who have submitted timely upfront
payments and, thus, are qualified to bid in the auction.
(4) If, during the window filing period, the FCC receives non-
mutually exclusive applications for a non-reserved FM translator
station, a Public Notice will be released identifying the non-mutually
exclusive applicants, who will be required to submit the appropriate
long form application within 30 days of the Public Notice and pursuant
to the provisions of Sec. 73.5005. These non-mutually exclusive
applications will be processed and the FCC will periodically release a
Public Notice listing such non-mutually exclusive applications
determined to be acceptable for filing and announcing a date by which
petitions to deny must be filed in accordance with the provisions of
Secs. 73.5006 and 73.3584 of this chapter. If the applicants are duly
qualified, and upon examination, the FCC finds that the public
interest, convenience and necessity will be served by the granting of
the non-mutually exclusive long-form application, the same will be
granted.
(5)(i) The auction will be held pursuant to the procedures set
forth in Sec. 1.2101. Subsequent to the auction, the FCC will release a
Public Notice announcing the close of the auction and identifying the
winning bidders. Winning bidders will be subject to the provisions of
Sec. 1.2107 regarding down payments and will be required to submit the
appropriate down payment within 10 business days of the Public Notice.
Pursuant to Sec. 1.2107, a winning bidder that meets its down payment
obligations in a timely manner must, within 30 days of the release of
the public notice announcing the close of the auction, submit the
appropriate long-form application for each construction permit for
which it was the winning bidder. Long-form applications filed by
winning bidders shall include the exhibits identified in Sec. 73.5005.
(ii) These applications will be processed and the FCC will
periodically release a Public Notice listing such applications that
have been accepted for filing and announcing a date by which petitions
to deny must be filed in accordance with the provisions of Sec. 73.3584
of this chapter. If the applicants are duly qualified, and upon
examination, the FCC finds that the public interest, convenience and
necessity will be served by the granting of the winning bidder's long-
form application, a Public Notice will be issued announcing that the
construction permit is ready to be granted. Each winning bidder shall
pay the balance of its winning bid in a lump sum within 10 business
days after release of the Public Notice, as set forth in
Sec. 1.2109(a). Construction permits will be granted by the Commission
following the receipt of the full payment.
(iii) All long-form applications will be cut-off as of the date of
filing with the FCC and will be protected from subsequently filed long-
form translator applications. Applications will be required to protect
all previously filed applications. Winning bidders filing long-form
applications may change the technical proposals specified in their
previously submitted short-form applications, but such change may not
constitute a major change. If the submitted long-form application would
constitute a major change from the proposal submitted in the short-form
application or the allotment, the long-form application will be
returned pursuant to paragraph (d)(2)(i) of this section.
(e) Selection of mutually exclusive reserved band FM translator
applications.
(1) Applications for FM translator stations proposing to provide
fill-in service (within the primary station's protected contour) of the
commonly owned primary station will be given priority over all other
applications.
(2) Where applications for FM translator stations are mutually
exclusive and do not involve a proposal to provide fill-in service of
commonly owned primary stations, the FCC may stipulate different
frequencies as necessary for the applicants.
(3) Where there are no available frequencies to substitute for a
mutually exclusive application, the FCC will base its decision on the
following priorities:
(i) first-full-time aural services;
(ii) second full-time aural services; and
(iii) other public interest matters including, but not limited to
the number of aural services received in the proposed service area, the
need for or lack of public radio service, and other matters such as the
relative size of the proposed communities and the growth rate.
(4) Where the procedures in paragraphs (e)(1), (e)(2) and (e)(3) of
this section fail to resolve the mutual exclusivity, the applications
will be processed on a first-come-first-served basis.
[FR Doc. 98-23963 Filed 9-10-98; 8:45 am]
BILLING CODE 6712-01-P
