Implementation of Sections 204(a) and 204(c) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures)

FEDERAL COMMUNICATIONS COMMISSION

47 CFR PARTS 1 and 73

[FCC 96-172]

Implementation of Sections 204(a) and 204(c) of the

Telecommunications Act of 1996 (Broadcast License Renewal Procedures)

AGENCY: Federal Communications Commission.

ACTION: Final Rule,

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SUMMARY: The Commission is implementing Sections 204(a) and 204(c) of

the Telecommunications Act of 1996, which eliminate comparative renewal

hearings for broadcast applications filed after May 1, 1995 and direct

the Commission to grant a broadcaster's renewal application if

statutory renewal standards are met. The action is necessary in order

to conform the Commission's rules to Section 204(a) and (c) of the

Telecommunications Act, and the intended effect of the action is to

conform the rules to those statutory provisions.

EFFECTIVE DATE: April 25, 1996.

FOR FURTHER INFORMATION CONTACT: Mania K. Baghdadi, Mass Media Bureau,

Policy and Rules Division (202) 418-2130.

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

(In the Matter of Implementation of Sections 204(a) and 204(c) of the

Telecommunications Act of 1996 (Broadcast Renewal Procedures)), adopted

April 12, 1996, and released April 12, 1996. The complete text of this

Order 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 Order

1. This Order implements Sections 204(a) and 204(c) of the

Telecommunications Act of 1996 (``Telecom Act'') [Pub. L. No. 104-104,

[[Page 18290]]

110 Stat. 56 (1996)], which adopts new Section 309(k) of the

Communications Act applicable to broadcast renewal applications filed

after May 1, 1995, eliminating comparative renewal hearings,

establishing instead a new two-step renewal procedure, and directing

the Commission to grant a broadcaster's renewal application if

statutory renewal standards are met.

2. New Section 309(k) states:

(1) * * * If the licensee of a broadcast station submits an

application to the Commission for renewal of such license, the

Commission shall grant the application if it finds, with respect to

that station, during the preceding term of its license--

(A) the station has served the public interest, convenience, and

necessity;

(B) there have been no serious violations by the licensee of this

Act or the rules and regulations of the Commission; and

(C) there have been no other violations by the licensee of this Act

or the rules and regulations of the Commission which, taken together,

would constitute a pattern of abuse.

(2) * * * If any licensee of a broadcast station fails to meet the

requirements of this subsection, the Commission may deny the

application for renewal in accordance with paragraph (3), or grant such

application on terms and conditions as are appropriate, including

renewal for a term less than the maximum otherwise permitted.

(3) * * * If the Commission determines, after notice and

opportunity for a hearing as provided in subsection (e), that a

licensee has failed to meet the requirements specified in paragraph (1)

and that no mitigating factors justify the imposition of lesser

sanctions, the Commission shall--

(A) issue an order denying the renewal application filed by such

licensee under Section 308; and

(B) only thereafter accept and consider such applications for a

construction permit as may be filed under section 308 specifying the

channel or broadcasting facilities of the former licensee.

(4) * * * In making the determinations specified in paragraph (1)

or (2), the Commission shall not consider whether the public interest,

convenience, and necessity might be served by the grant of a license to

a person other than the renewal applicant.

47 U.S.C. Sec. 309(k).

3. Additionally, Section 204(a)(2) of the Telecom Act amends

Section 309(d) of the Communications Act, 47 U.S.C. Sec. 309(d), to

make the standard for filing petitions to deny conform to the statutory

renewal standards. Thus, the statutory renewal standards are made

applicable to the petitioner's required showing and the Commission's

consequent findings in the case of a petition to deny a renewal

application filed after the statutory effective date.

4. The Telecom Act does not define the terms contained in the

renewal standards embodied in Section 309(k), and we likewise do not

define those terms in the Order. It is our present intent to continue

to apply existing policy statements and case law, refining these as

appropriate on a case-by-case basis, in interpreting the statutory

terms that govern the new renewal process. If we determine at some

future time that further clarification is appropriate, we shall conduct

such proceedings as may be warranted.

5. Administrative Matters. We are revising the rules as detailed

below without providing prior notice and an opportunity for comment.

For applications filed after May 1, 1995, the revisions simply reflect

the changes mandated by the applicable provisions of the Telecom Act

eliminating comparative renewals and codifying certain renewal

standards. We find that notice and comment procedures are unnecessary,

and that this action therefore falls within the ``good cause''

exception of the Administrative Procedure Act (``APA''). See 5 U.S.C.

553(b)(B) (notice requirements inapplicable ``when the agency for good

cause . . . finds that notice and public procedure thereon are

impracticable, unnecessary, or contrary to the public interest''). We

further find for the same reasons that good cause exists to make the

rule changes adopted herein effective upon publication of this Order in

the Federal Register. See id. at 553(d)(3). The rule changes adopted in

this Order do not involve discretionary action by the Commission.

Rather, they simply reiterate in our rules specific terms set forth in

legislation. Additionally, with respect to the revisions that involve

rules of agency organization and procedure, the notice and comment

requirements of the APA are inapplicable. See 5 U.S.C. Sec. 553(b)(A).

6. Termination of Comparative Renewal Rule Making. In light of the

elimination of the comparative renewal procedure, we will terminate BC

Docket No. 81-742, in which the Commission is considering reforming the

comparative renewal process. See Third Further Notice of Inquiry and

Notice of Proposed Rule Making in BC Docket No. 81-742, 4 FCC Rcd 6363

(1989) [57 FR 35357 (August 25, 1989]) and preceding Notices of Inquiry

and Notice of Proposed Rule Making cited therein. We believe that it

would not represent the most productive use of our resources to

conclude Docket No. 81-742 since it will apply only to a limited number

of comparative renewal proceedings.

7. Effective Dates. Pursuant to the Telecom Act, Section 309(k)

will be applied to renewal applications filed after May 1, 1995, and

the rule changes made to implement the new renewal provisions of the

Telecom Act reflect the statutory effective date. Pending comparative

renewal proceedings and mutual exclusivities involving applications

filed on or before May 1, 1995 will be concluded pursuant to the

current rules, and accordingly, we will leave intact procedural

provisions of the current rules that refer to comparative renewal

proceedings until those pending proceedings and exclusivities are

finally resolved. We wish to reiterate that our failure to amend or

eliminate a rule that refers to or applies to comparative renewal

proceedings results only from the need to conclude those ongoing

proceedings. We wish to make clear that applications filed on or before

May 1, 1995 will be subject to our current renewal standards and

procedures, while applications filed after May 1, 1995 will be subject

to the new renewal provisions adopted in Section 204 of the Telecom

Act.

8. Ordering Clause. Accordingly, IT IS ORDERED that, pursuant to

Section 204 of the Telecommunications Act of 1996, and to Sections 4(i)

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

Secs. 154(i), 303(r), Parts 1 and 73 of the Commission's Rules is

amended as set forth below. The rule changes are effective upon

publication of this Order in the Federal Register. IT IS FURTHER

ORDERED that BC Docket No. 81-742 is hereby terminated.

List of Subjects

47 CFR Part 1

Radio, Television.

47 CFR Part 73

Radio broadcasting, Television broadcasting.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Parts 1 and 73 of Title 47 of the Code of Federal Regulations are

amended as follows:

[[Page 18291]]

PART 1--PRACTICE AND PROCEDURE

1. The authority citation for Part 1 continues to read as follows:

Authority: 47 U.S.C. 151, 154, 303 and 309(j) unless otherwise

noted.

2. Section 1.227 is amended by revising paragraph (b)(6) to read as

follows:

Sec. 1.227 Consolidations.

* * * * *

(b) * * *

(6) An application which is mutually exclusive with an application

for renewal of license of a broadcast station filed on or before May 1,

1995 will be designated for comparative hearing with such license

renewal application if it is substantially complete and tendered for

filing no later than the date prescribed in Sec. 73.3516(e).

PART 73--RADIO BROADCAST SERVICES

3. The authority citation for part 73 continues to read as follows:

Authority: 46 U.S.C. 154, 303, 304.

4. Section 73.561 is amended by revising the last sentence of the

introductory text of paragraph (b) to read as follows:

Sec. 73.561 Operating schedule; time sharing.

* * * * *

(b) * * * In order to be considered for this purpose, such an

application to share time must be filed no later than the deadline for

filing petitions to deny the renewal application of the existing

licensee, or, in the case of renewal applications filed by the existing

licensee on or before May 1, 1995, no later than the deadline for

filing applications in conflict with the such renewal applications.

* * * * *

5. Section 73.1020 is amended by revising paragraph (b) to read as

follows:

Sec. 73.1020 Station license period.

* * * * *

(b) For the cutoff date for the filing of applications mutually

exclusive with renewal applications that are filed on or before May 1,

1995 and for the deadline for filing petitions to deny renewal

applications, see Sec. 73.3516(e).

6. Section 73.3516 is amended by revising the introductory text of

paragraph (e) and paragraph (e)(1) to read as follows:

Sec. 73.3516 Specification of facilities.

* * * * *

(e) An application for construction permit for a new broadcast

station or for modification of construction permit or license of a

previously authorized broadcast station will not be accepted for filing

if it is mutually exclusive with an application for renewal of license

of an existing broadcast station unless the application for renewal of

license is filed on or before May 1, 1995 and unless the mutually

exclusive construction permit application is tendered for filing by the

end of the first day of the last full calendar month of the expiring

license term. A petition to deny an application for renewal of license

of an existing broadcast station will be considered as timely filed if

it is tendered for filing by the end of the first day of the last full

calendar month of the expiring license term.

(1) If the license renewal application is not timely filed as

prescribed in Sec. 73.3539, the deadline for filing petitions to deny

thereto is the 90th day after the FCC gives public notice that it has

accepted the late-filed renewal application for filing. In the case of

a renewal application filed on or before May 1, 1995, if the license

renewal application is not timely filed as prescribed in Sec. 73.3539,

the deadline for filing applications mutually exclusive therewith is

the 90th day after the FCC gives public notice that it has accepted the

late-filed renewal application for filing.

* * * * *

7. Section 73.3523 is amended by revising paragraph (a) to read as

follows:

Sec. 73.3523 Dismissal of applications in renewal proceedings.

(a) An applicant for construction permit, that has filed an

application that is mutually exclusive with an application for renewal

of a license of an AM, FM or television station (hereinafter competing

applicant'') filed on or before May 1, 1995, and seeks to dismiss or

withdraw its application and thereby remove a conflict between

applications pending before the Commission, must obtain the approval of

the Commission.

* * * * *

8. Section 73.3584 is amended by revising the third sentence of

paragraph (a) to read as follows:

Sec. 73.3584 Procedure for filing petitions to deny.

(a) * * * In the case of applications for renewal of license,

Petitions to Deny may be filed at any time up to the deadline

established in Sec. 73.3516(e). * * *

* * * * *

9. Section 73.3591 is amended by revising the introductory text of

paragraph (a), paragraph (c), and adding new paragraph (d) to read as

follows.

Sec. 73.3591 Grants without hearing.

(a) Except for renewal applications filed after May 1, 1995 which

will be subject to paragraph (d) of this section, in the case of any

application for an instrument of authorization, other than a license

pursuant to a construction permit, the FCC will make the grant if it

finds (on the basis of the application, the pleadings filed or other

matters which it may officially notice) that the application presents

no substantial and material question of fact and meets the following

requirements:

* * * * *

(c) If a petition to deny the application has been filed in

accordance with Sec. 73.3584 and the FCC makes the grant in accordance

with paragraph (a) of this section, the FCC will deny the petition and

issue a concise statement setting forth the reasons for denial and

disposing of all substantial issues raised by the petition.

(d) Renewal applications filed after May 1, 1995 will be governed

by the criteria established in 47 U.S.C. Sec. 309(k).

[FR Doc. 96-10169 Filed 4-24-96; 8:45 am]

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