Broadcast Services; Allocations; Automatic Stay

FEDERAL COMMUNICATIONS COMMISSION

47 CFR PART 1

[MM Docket No. 95-110; FCC 95-277]

Broadcast Services; Allocations; Automatic Stay

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rule making.

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SUMMARY: This Notice of Proposed Rule Making proposes to delete the

automatic stay provision in Section 1.420(f) of the Commission's rules.

That rule applies to proposals to amend the FM and TV Tables of

Allotments and provides for

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an automatic stay upon the filing of a petition for reconsideration of

any Commission order modifying an authorization to specify operation on

a different channel. The purpose of the proposed amendment is to remove

any incentive to challenge an agency order simply to delay institution

of expanded service by a competitor, and to expedite provision of

improved service to the public.

DATES: Comments are due by August 28, 1995, and reply comments are due

by September 12, 1995.

ADDRESSES: Federal Communications Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Kim Matthews (202-739-0774), Mass

Media Bureau.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's

Notice of Proposed Rule Making (NPRM) in MM Docket No. 95-110, adopted

July 10, 1995, and released July 21, 1995. The complete text of this

NPRM is available for inspection and copying during normal business

hours in the FCC Reference Center (Room 239), 1919 M Street, NW.,

Washington, DC, and also may be purchased from the Commission's copy

contractor, International Transcription Service, (202) 857-3800, 2100 M

Street, NW., Suite 140, Washington, DC 20037.

Synopsis of Notice of Proposed Rule Making

1. With this Notice of Proposed Rule Making (NPRM), the Commission

proposes to delete that portion of Section 1.420(f) of its rules, 47

CFR 1.420(f), which provides for an automatic stay, upon the filing of

a petition for reconsideration, of any Commission order modifying an

authorization to specify operation on a different channel. The purpose

of the proposed amendment is to remove an apparent incentive for the

filing of petitions for reconsideration that are largely without merit

and to expedite provision of expanded service to the public.

2. Section 1.420(f) provides, in pertinent part:

* * * The filing of a petition for reconsideration of an order

modifying an authorization to specify operation on a different

channel shall stay the effect of a change in the rules pending

action of the petition.

3. Although Section 1.420(f) refers only to petitions for

reconsideration, the Commission staff has also applied the automatic

stay to orders challenged by applications for review.\1\ Our proposal

to delete the automatic stay provision for petitions for

reconsideration would also eliminate automatic stays in the context of

applications for review.

\1\See Arlington TX, 6 FCC Rcd 2050, 2051 n. 2 (1991).

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4. The automatic stay was adopted by the Commission in 1975 as part

of a provision that requires service of petitions for reconsideration

in proceedings for amendment of the FM and TV Tables of Allotments on

any licensee or permittee whose authorized frequency could be changed.

Thus, it is apparent that the automatic stay was intended to help

ensure that affected parties have the opportunity to comment before

proposed modifications to their authorizations become effective.

5. Our intent in proposing to delete the automatic stay provision

is to discourage parties from filing meritless petitions for

reconsideration or applications for review that can substantially delay

implementation of improved broadcast service. It is our experience that

parties increasingly are filing challenges to approvals of their

competitor's proposals to improve service, thereby triggering the

automatic stay. Only a very small percentage of these petitions or

applications for review are ultimately successful. Because the stay

prohibits licensees from constructing modified facilities authorized by

the Commission until final resolution of any outstanding

reconsideration or application for review,\2\ or until the stay is

lifted, the stay provides an incentive for parties to challenge agency

approval of a competitor's modification proposal simply to forestall

institution of new competitive service. These petitions cause

unjustifiable expense for parties and absorb valuable staff resources.

\2\See, e.g., Arlington, TX, supra n. 1.

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6. Elimination of the automatic stay would facilitate

implementation of improved service to licensee communities, thereby

promoting more efficient use of broadcast spectrum and resulting in

significant public interest benefits. Because Section 1.420(f) will

continue to require that petitions for reconsideration be served on any

licensee or permittee whose authorization could be modified, the rights

of these interested parties to be affirmatively informed of actions

potentially affecting their interests will continue to be protected.

7. Elimination of the automatic stay, while allowing licensees to

commence construction and operation of their modified facilities, would

not prejudice final resolution of any challenges to the initial staff

decision. Licensees who proceed, where feasible, to construct and

operate new facilities in instances in which a petition for

reconsideration or application for review is pending bear the risk of

an adverse final decision, and must take whatever steps are necessary

to comply with the final order. Moreover, the Commission retains the

authority to impose a stay in individual cases where circumstances

warrant.\3\

\3\See 47 CFR 1.102(b), 1.106(n), and 1.115(h).

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8. We propose both to eliminate the automatic stay in prospective

cases, and to lift the stay with respect to any petitions for

reconsideration or applications for review pending as of the effective

date of the Report and Order in this proceeding. We believe that

lifting the stay in pending cases will further our objective of

expediting provision of improved service to the public. We invite

comment on this second aspect of our proposal in particular, as well as

on our general proposal to eliminate the automatic stay.

Administrative Matters

9. Pursuant to applicable procedures set forth in Sections 1.415

and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested

parties may file comments on or before August 28, 1995 and reply

comments on or before September 12, 1995. To file formally in this

proceeding, you must file an original and four copies of all comments,

reply comments, and supporting comments. If you want each Commissioner

to receive a personal copy of your comments, you must file an original

plus nine copies. You should send comments and reply comments to Office

of the Secretary, Federal Communications Commission, Washington, DC

20554. Comments and reply comments will be available for public

inspection during regular business hours in the FCC Reference Center

(Room 239), 1919 M Street, NW., Washington, DC 20554.

10. This is a non-restricted notice and comment rulemaking

proceeding. Ex parte presentations are permitted, except during the

Sunshine Agenda period, provided they are disclosed as provided in the

Commission's rules. See 47 CFR 1.1202, 1.1203, and 1.1206(a).

Initial Regulatory Flexibility Analysis

11. Reason for Action: This proceeding was initiated to improve

Commission procedures governing proposals to amend the FM and TV Tables

of Allotments.

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12. Objectives of the Action: The actions proposed in the Notice

are intended to reduce the workload in the Allocations Branch of the

Policy and Rules Division of the FCC's Mass Media Bureau by eliminating

an apparent incentive to challenge agency approval of another station's

modification proposal.

13. Legal Basis: The proposed action is authorized under sections 4

and 303 of the Communications Act of 1934, as amended. 47 U.S.C.

Secs. 154, 303.

14. Reporting, Record-keeping and Other Compliance Requirements:

None.

15. Federal Rules which Overlap, Duplicate or Conflict with the

Proposed rule: None.

16. Description, Potential Impact and Number of Small Entities

Involved: Approximately 11,000 existing television and radio

broadcasters of all sizes may be affected by the proposals contained in

this Notice.

17. Any Significant Alternatives Minimizing the Impact on Small

Entities and Consistent with the Stated Objectives: The proposals

contained in this Notice do not impose additional burdens on small

entities.

18. As required by Section 603 of the Regulatory Flexibility Act,

the Commission has prepared an Initial Regulatory Flexibility Analysis

(IRFA) of the expected impact on small entities of the proposals

suggested in this document. The IRFA is set forth above. Written public

comments are requested on the IRFA. These comments must be filed in

accordance with the same filing deadlines as comments on the rest of

the Notice, but they must have a separate and distinct heading

designating them as responses to the Initial Regulatory Flexibility

Analysis. The Secretary shall send a copy of the Notice of Proposed

Rule Making, including the Initial Regulatory Flexibility Analysis, to

the Chief Counsel for Advocacy of the Small Business Administration in

accordance with paragraph 603(a) of the Regulatory Flexibility Act.

Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. Section 601 et seq (1981).

List of Subjects in 47 CFR Part 1

Administrative practice and procedure.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 95-18802 Filed 7-31-95; 8:45 am]

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