1998 Biennial Regulatory ReviewStreamlining of Mass Media Applications, Rules, and Processes; Policies and Rules Regarding Minority and Female Ownership of Mass Media Facilities

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 73

[MM Docket Nos. 98-43, 94-149; FCC 98-281]

1998 Biennial Regulatory Review--Streamlining of Mass Media

Applications, Rules, and Processes; Policies and Rules Regarding

Minority and Female Ownership of Mass Media Facilities

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this Report and Order, the Commission adopts an electronic

filing mandate for 15 Mass Media Bureau broadcast application and

reporting forms, including sales forms and applications for new

commercial stations and modifications to licensed facilities, after a

phase in period. In conjunction with electronic filing, the Commission

revises the requirements for extending the construction periods of

broadcast stations, for selling unbuilt construction permits and for

submitting ownership reports for commercial and noncommercial stations.

The Commission also modifies the reporting requirements on the Annual

Ownership Report form to include a section on the race and gender of

individuals with attributable interests in broadcast licensees.

Finally, the Commission institutes a formal program of both pre-and

post-application grant random audits. The Commission is implementing

the changes to eliminate rules and revise procedures that consume

significant staff resources, create excessive filing burdens, and/or do

not sufficiently advance key regulatory objectives. The intended effect

of the changes is to reduce filing burdens and increase the efficiency

of application processing while preserving the public's ability to

fully participate in Commission broadcast licensing processes.

This Report and Order contains modified information collections

subject to the Paperwork Reduction Act of 1995 (``PRA''), Public Law

104-13, and has been submitted to the Office of Management and Budget

(``OMB'') for review under section 3507(d) of the PRA.

EFFECTIVE DATES: February 16, 1999. 47 CFR 73.3615(a) will become

effective 120 days after publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Lisa Scanlan, Audio Services Division,

Mass Media Bureau, (202) 418-2720; Jerianne Timmerman, Video Services

Division, Mass Media Bureau, (202) 418-1600. For additional information

concerning the information collections contained in this Report and

Order, contact Judy Boley at (202) 418-0214, or via the Internet at

[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report

and Order in MM Dockets 98-43 and 94-149, adopted October 22, 1998, and

released November 25, 1998. The complete text of this Report and Order

is available for inspection and copying during regular business hours

in the FCC Reference Center, and may also be purchased from the

Commission's copy contractor, International Transcription Service,

(202) 857-3800 (phone), (202) 857-3805 (facsimile), 1231 20th Street,

NW, Washington, DC 20036.

SYNOPSIS OF REPORT AND ORDER:

I. Introduction

1. With this Report and Order, we make fundamental changes in our

broadcast application and licensing procedures. In the Notice of

Proposed Rulemaking initiating this proceeding, 63 FR 19226 (April 17,

1998), we proposed numerous modifications to those procedures that we

believe would serve the public interest by reducing applicant and

licensee burdens, increasing the efficiency of application processing,

and preserving the public's ability to participate fully in our

broadcast licensing processes. After careful consideration of the

proposals in the NPRM and the comments received, we now adopt these

various measures. Specifically, we adopt an electronic filing mandate

for key Mass Media Bureau broadcast application and reporting forms

after a phase in period. We also revise our requirements for extending

the construction periods of broadcast stations; for selling unbuilt

station construction permits; and for submitting ownership reports for

commercial and noncommercial educational stations. Additionally, we

modify the Annual Ownership Report to require the provision of

information on the racial and gender identity of broadcast licensees.

To preserve the integrity of our streamlined application processes, we

are implementing a two-pronged formal program of audits.

II. Discussion

A. Electronic Filing of Applications

Mandatory Electronic Filing

2. The Mass Media Bureau is currently developing electronic

versions of various broadcast applications and reporting forms as part

of a wide-ranging effort to computerize and streamline the Mass Media

Bureau's processes in order to expedite service to the public.

Electronic versions of the following 15 forms are being developed: FCC

Forms 301, 302-AM, 302-FM, 302-TV, 302-DTV, 314, 315, 316, 340, 345,

346, 347, 349, 350, and 5072. FCC Form 398, the Children's Television

Programming Report, is already available in electronic format. We

believe phasing in mandatory electronic filing will provide a period

for broadcast licensees, permittees and applicants, including small

market broadcasters, to become familiar with, and accustomed to using,

the Internet generally and our electronic system specifically to submit

their applications. Although we feel that a phase in period should be

sufficient for broadcast licensees, permittees and applicants to become

accustomed to utilizing our electronic application system, we

nonetheless note that an applicant can request a waiver of our

mandatory electronic filing requirements, even after the close of the

phase in period.

3. With regard to the length of time of the phase in period, we

have determined that electronic filing will become mandatory, on a

form-by-form basis, six months after each Mass Media Bureau form

becomes available for filing electronically. We expect the 15 Mass

Media Bureau forms specified above to become available for filing

electronically no earlier than March of 1999. Thus, electronic filing

of these key broadcast application forms will not become mandatory

before the fall of 1999. With regard to the FCC Form 398 (Children's

Television Programming Report) specifically, which has been available

for submission electronically since the spring of 1997, we will require

licensees to file it electronically as of January 10, 1999.

Operation and Security of Electronic System

4. We anticipate that applicants will file their Mass Media Bureau

applications electronically via the Commission's site on the World Wide

Web. Applicants will not be able to file applications on diskette

because the submission of diskettes is not compatible with our Web-

based system (HTML), would increase the risk of

[[Page 70041]]

virus importation into the Commission's system, and would unduly

increase the burdens on the Commission's resources. The Commission's

Web-based system will not be hardware or software product or

manufacturer specific; all commonly available computer hardware and

software will be compatible with the Commission's electronic system.

5. The electronic system will provide immediate notification to

applicants that their electronically filed applications have been

received. The system will afford applicants the ability to submit

amendments, make corrections to electronically filed applications and

submit narrative, explanatory exhibits. We note that Mass Media Bureau

forms and applications filed electronically pursuant to this Report and

Order must be received by the electronic filing system before midnight

on the filing date. We believe it unnecessary and burdensome to require

applicants to also submit paper copies of electronically filed

applications during the phase in period.

6. For any broadcast application for which a fee is required, the

electronic system will inform the applicant that a fee is required and

an FCC Form 159 (Remittance Advice) must be filed. Fee payments will

continue to be made to the Commission's lock-box bank--Mellon Bank in

Pittsburgh, Pennsylvania. Applications will be accepted after we have

received confirmation electronically from Mellon Bank that the

applicant has made the appropriate payment.

7. Security for the Mass Media Bureau's electronic system will be

consistent with all other Commission electronic filing systems.

Applications will be filed electronically utilizing passwords chosen by

the applicants and unique account numbers that are internally generated

by the system and assigned to applicants. Applicants and licensees will

be obligated to provide TINs so as to fulfill the Commission's

obligations under the Debt Collection Improvement Act (DCIA), Omnibus

Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No.

104-134, 110 Stat. 1321 (1996). Due to security concerns, however,

passwords and unique account numbers, rather than TINs, will be used

for the filing of applications.

8. The general public will be able to view electronically filed

applications through the Commission's site on the World Wide Web.

Public access to all electronic submissions will be ``read only.'' We

anticipate that electronic access to broadcast applications will

enhance the public's ability to view applications and participate in

the Commission's processes.

B. Streamlining Application Processing

Use of Certifications, Instructions and Worksheets

9. In order to obtain the full benefits of electronic filing, we

have recast key Mass Media Bureau forms into ``yes'' or ``no''

certification formats, supplemented with detailed worksheets and

instructions. The revised forms will facilitate application processing,

result in more accurate databases and easier public access to

information, thus benefiting broadcasters, the public and the

Commission. The revised forms will also substantially reduce the amount

of information applicants must submit, restricting the use of exhibits

to waiver requests or to circumstances where additional information is

necessary to support application elements potentially inconsistent with

precedent, processing standards, Commission rules and policies, and the

Act. Additionally, we will include an ``explanation'' checkbox beside

the ``yes'' or ``no'' checkboxes on certain questions on the

application form. To facilitate a smooth transition, we will

selectively introduce paper versions of the new forms before the

development of our electronic filing system is complete. Public notices

will detail transition information concerning the use of these revised

paper forms.

10. Application worksheets are available to applicants as

instruments to provide guidance in completing certification questions.

We will not require that applicants retain worksheets at the Commission

and/or in their public files. We believe it would be contrary to our

goals of easing regulatory burdens and increasing application

processing efficiencies to, in essence, treat the worksheets as part of

the application and subject them to review by the Commission and the

public in all circumstances. In this regard, however, we note that it

may be advantageous for licensees to retain the worksheets, as well as

other data or documentation used to support certifications, for use in

response to Commission audits and inquiries.

Assignment and Transfer Applications: Forms 314 and 315 To fully

realize the processing efficiencies obtainable through electronic

filing, we determined that significant changes in our sales

applications forms (Forms 314 and 315) and license assignment and

transfer rules are warranted.

a. Rule Revision: Payment Restrictions on the Sale of Unbuilt

Stations

11. We affirm the holding in Bill Welch, 3 FCC Rcd 6502 (1988),

that there is no per se statutory proscription against the for-profit

sales of unbuilt stations. Moreover, we no longer believe that

retention of the rule is necessary to maintain the integrity of our

licensing processes. Thus, we will, both for outstanding commercial

station construction permits and commercial station construction

permits that will be issued pursuant to the auction process, eliminate

the no profit rule restricting payment upon assignment or transfer of

an unbuilt station to reimbursement of a seller's expenses. We also

will eliminate the no profit limitation for noncommercial educational

station construction permits granted prior to the release of this

Report and Order, as well as for those granted subsequent to the

release of this Report and Order as ``singletons.'' However, except for

those granted as ``singletons,'' we defer deciding on whether we should

permit subsequently issued noncommercial educational station

construction permits to be sold for a profit.

12. For commercial stations, use of competitive bidding procedures

to resolve mutual exclusivity among commercial broadcast applicants

will soon replace both the traditional comparative hearing process for

full-service radio and television stations and the system of random

selection formerly employed to award certain low power television and

television translator licenses. Our concern with spectrum speculation

in an auction environment, where there are strict bidding and payment

requirements and where the winning bidder has paid fair market value

for an authorization, is minimal. We also believe that the competitive

bidding process itself, where the permittee may be required to make a

substantial front end payment, provides a strong impetus for timely

station construction. Even in cases where a commercial permit is not

issued pursuant to an auction, e.g., because only one application was

filed for a frequency and therefore the application was granted as a

``singleton,'' we believe it is appropriate to eliminate reimbursement

restrictions. Even assuming that ``singleton'' commercial station

permittees do not have the same impetus to build quickly in order to

recoup auction expenditures, we believe that the automatic cancellation

and forfeiture provisions adopted in this Report and Order will provide

sufficient incentives to construct authorized facilities promptly.

13. Regarding outstanding commercial and noncommercial construction

permits issued prior to the release of this Report and Order, we will

also eliminate reimbursement restrictions.

[[Page 70042]]

Most current permittees filed construction permit applications under

rules that prohibited the sale of a permit at a profit. Thus again, our

concern that the construction permit was issued merely as the result of

a speculative filing is minimal. Furthermore, some commercial station

construction permits were recently issued pursuant to settlement

agreements facilitated by section 309(i) of the Communications Act,

which, inter alia, required the Commission to waive the no profit rule

with regard to settlements among certain applicants entered into by

February 1, 1998. In principle, these authorizations were acquired at

fair market value and we see no justification for imposing price

restrictions on their sale now. We note, however, that the Commission's

current settlement rules will continue to apply to pending mutually

exclusive commercial and noncommercial applications, i.e., any pending

applicants who did not take advantage of the Commission's prior windows

for settling for more than out-of-pocket expenses and who wish to

settle now are, absent a waiver of the provisions of 47 CFR 73.3525,

restricted to out-of-pocket expenditures.

14. Under current processing rules, we continue to accept

applications for FM facilities on the reserved band and to grant

permits in circumstances where no mutually exclusive application is

timely filed or where a global settlement agreement among all mutually

exclusive applicants is approved. With regard to noncommercial station

permits granted as ``singletons'' on or after the release of this

Report and Order, we will eliminate the no-profit rule. However, in

instances where there are mutually exclusive noncommercial applications

filed on or after the release of this Report and Order and a permit is

subsequently issued as the result of a settlement, we believe a more

cautious approach is required. We recognize that a proceeding is

pending to develop a selection process for mutually exclusive

noncommercial educational station applicants. See Reexamination of the

Comparative Standards for Noncommercial Educational Applicants, Further

Notice of Proposed Rulemaking, FCC 98-269 (released October 21, 1998).

Until the issues in that proceeding are resolved, we will not be in a

position to determine whether adopting procedures that would permit

settlements among those applicants and subsequent for-profit sales

could frustrate the goals of that proceeding.

15. Finally, we address the issue of the for profit sale of permits

by permittees who received bidding credits as designated entities in

the auction context. Generally, we will follow the provisions of Part 1

of the auction rules and apply transfer limitations to the extent they

are applied in other auctionable services. Thus, where bidding credits

are used in a broadcast auction, for a five year period, the Commission

will require a designated entity seeking approval of a transfer or an

assignment to a non-designated entity, or who proposes to take any

other action relating to ownership or control that will result in loss

of status as an eligible designated entity, to reimburse the government

for the amount of the bidding credit, plus interest, before transfer of

the license will be permitted.

b. Requirement to Submit Contracts with Assignment and Transfer

Applications

16. Applicants will assess their sales and organizational documents

against the series of standards set forth in the expanded instructions

to Forms 314 and 315 and will be required to certify that a transaction

conforms fully to the instruction standards, the Commission's rules and

policies, and the Act, or to disclose those specific aspects of the

transaction for which waivers are sought and/or where compliance with

the Act, and our rules and policies is uncertain. We emphasize,

however, that if an application raises concerns on its face, or

presents particularly significant public interest issues, or where an

objection is filed, relevant provisions of the sales agreements will be

reviewed by the staff on a case-by-case basis. In addition, we will

rely on a two-pronged random audit program to enhance the reliability

of applicants' certifications. To further reduce filing burdens on

licensees, we will also adopt the proposal to eliminate, as

duplicative, the Sec. 73.3613(b) requirement that sales agreements and

contracts be filed with the Commission within thirty days of execution,

where the reporting entity has already filed the sales contract with

the assignment or transfer application.

17. Applicants must continue to submit copies of sales agreements

so that we can continue our practice of maintaining copies of

unredacted sales agreements and contracts in the public reference room.

Similarly, if the parties have an oral agreement, a written description

of its material terms must be submitted with the application. We will

continue to require that contracts submitted for retention in the

public reference room disclose sales price. Since contracts and

agreements are ``material pertaining to'' the sales application, they

must also, pursuant to the public file rule, be retained in the

station's public file until final action has been taken on the

application. If we determine that the documents have not been submitted

for use in the public reference room, we will neither accept for

filing, nor process the application for assignment or transfer.

Similarly, we will suspend application processing if it comes to our

attention that the documents have not been placed in the station's

public file.

18. Prior to the implementation of electronic filing procedures, we

will initially require applicants to file a single paper copy of the

sales agreement with the assignment or transfer application, and

eliminate duplicate copies which are submitted as part of the current

triplicate paper filing procedures. The processing staff will

immediately forward this copy of the contract to the public reference

room. Upon the implementation of electronic filing procedures for sales

applications, the public will have access to electronic copies of sales

agreements transmitted with the application and made available in the

public reference room. The staff will review the electronic copy of the

sales agreement for the proposed transaction only where application

responses, exhibits, waiver requests and/or objections raise relevant

issues.

c. Requirement to Submit Contour Overlap Maps

19. We modify the sales application processing scheme as it relates

to the radio contour overlap map. In lieu of Commission staff reviewing

these maps in every instance to ensure that the application complies

with our multiple ownership rules, applicants themselves will assess

and certify compliance. We have developed instructions and worksheets

that will help applicants understand all relevant rules and concepts.

With conscientious use of these tools, applicants can accurately

determine whether or not they should certify compliance with our

current rules. As with the sales contracts, we emphasize that if an

application raises concerns on its face, or presents significant public

interest issues, or where an objection is filed, the contour overlap

maps will be reviewed by the staff on a case by case basis.

20. We will retain our practice of maintaining copies of contour

overlap maps in the Commission's public reference room. We will require

applicants to file a single copy of the contour overlap map (or submit

an electronic version) with the application for assignment or transfer.

The processing staff will not review the map unless application

responses, exhibits, or waiver requests raise multiple ownership

issues, but the public will be able to access the map and bring any

[[Page 70043]]

concerns or objections to the attention of the Commission staff.

21. Since the radio contour overlap map constitutes ``material

related to'' the application, it must, pursuant to the public file

rule, also be maintained in the public inspection file along with the

application for assignment or transfer for review by the general public

until final action has been taken. As with sales contracts, we will

refrain from processing any application when contour maps are not

submitted with the application, or when we become aware that they have

not been retained in the local public file according to the provisions

of the local public file rule.

3. New Commercial Station and Facility Change Applications: Form

301

a. Rule Revisions

22. We modify 47 CFR 73.316 to shift the filing requirements

regarding certain directional antenna information to the license

application stage of the FM authorization process. Elimination of the

requirement under 47 CFR 73.316(c) to file directional antenna

information with the construction permit application would provide

applicants maximum flexibility in choosing an antenna manufacturer when

constructing a facility. Should the absence of definitive information

concerning a specific directional antenna preclude grant of a

construction permit application, the Commission can request the

appropriate antenna information prior to grant. We also modify 47 CFR

73.1675(a) to eliminate the map requirement for auxiliary facilities

for the FM and TV services and 47 CFR 73.1030(a) by eliminating the

application disclosure requirement regarding the date of radio

astronomy and research installation notification. These revisions will

reduce filing burdens without endangering the technical integrity of

the broadcast services. The staff will continue to afford the radio

astronomy installations a 20 day comment period regarding applicable

proposals. Furthermore, the staff will verify compliance with 47 CFR

73.1675(a) using technical data submitted in FCC Form 301.

b. Form Revisions

23. We will revise FCC Form 301 to decrease the number of required

technical exhibits and significantly reduce applicant filing burdens.

Exhibits will be required only in connection with the most critical

technical and public safety matters, such as FM spacing, contour

protection, and radio frequency electromagnetic exposure guidelines. We

will employ a ``Tech Box'' to incorporate all critical technical data

required for engineering review. In the event of any discrepancies

between data in the ``Tech Box'' and data submitted elsewhere in the

application, the data in the ``Tech Box'' will be used. We are

confident that our revised form and the few associated exhibits yield

core technical data. As with other forms, we will also provide a

detailed set of instructions to ensure that applicants can correctly

determine compliance with Commission rules and policies and will employ

our audit program to ensure that questions have been answered

accurately.

24. Specifically, we have reorganized the AM section of Form 301 to

provide individual ``Tech Boxes'' for Daytime, Nighttime and critical

hours operations. We have also eliminated references to blanketing

interference and cross-modulation from the FM technical portion of the

form because these rules are only applicable once a station is

operating and are therefore not practically considered at the

construction permit application stage.

25. We will no longer require the submission of tower sketches to

inform the Commission of co-located antennas. The information provided

in the ``Tech Box,'' concerning the proposed facility, in conjunction

with information from the Commission's engineering database regarding

co-located and nearby existing broadcast facilities, are sufficient to

enable the staff to make accurate determinations about compliance with

radiofrequency electromagnetic exposure guidelines and to determine if

a proposed antenna may disrupt other nearby facilities.

26. Except for AM station applicants, the Commission will no longer

require the filing of site maps with FCC Form 301. Technology such as

Global Positioning Satellite receivers is now readily available and

allows applicants to accurately determine coordinates without the use

of site maps. However, site maps for AM stations retain their

importance, because AM facilities, with their longer wavelengths, are

much more susceptible to undesirable effects from nearby structures,

such as buildings, antenna towers and water towers. Therefore, we will

retain the requirement for AM applicants to submit transmitter site

maps to evaluate the proposed site with respect to the surrounding

electromagnetic environment. Finally, various cosmetic changes,

corrections for typographical errors, and form congruence suggestions

have been incorporated into the new Form 301.

C. Enforcement

27. A strong enforcement program, including random audits, is

necessary to insure the integrity of the application process under our

new streamlined procedures. Petitions to deny and informal objections

will remain as adjuncts to audits. We believe that these complementary

factors, along with a formal audit program, will deter abuse of the

application process.

28. Specifically, we will adopt a formal program of random audits,

which will subject selected broadcast applications to heightened

scrutiny prior to grant and will additionally subject selected

applications to audit after grant. The pre-grant audit program will be

applicable to commercial and noncommercial radio and television station

applications that will be selected randomly by computer. Over the

course of a year, the computer will randomly select up to a total of

approximately five percent of all applications filed in the radio and

television services. The applicants who filed these applications will

then be notified of their selection for an audit, and will be directed

by letter to provide certain additional documentation and information

for our review. This documentation should be readily available to the

selected applicants, and, if promptly furnished to the Commission, the

processing of the applications subject to audit should not be unduly

impeded. We expect that any pre-grant review will be conducted during

the 30-day period for the filing of petitions to deny against the

applications. Although we will choose applications for audit on a

random basis, if an application raises concerns on its face or presents

particularly significant public interest concerns, we may decide to

conduct an audit even if the application did not fall into the group

chosen by random selection. As to the concern that, under the proposed

audit system, innocent, careless mistakes will be elevated to serious

offenses, we note that the staff will continue its current practice of

considering all the circumstances surrounding the submission of

inaccurate or incomplete information in determining the need for and

the severity of a sanction. We anticipate that clear guidance provided

in the instructions, worksheets and forms will result in fewer

mistakes.

29. After receiving the requested information from an audited

applicant, we will examine the documentation and analyze it for

consistency with the certifications and representations in the

streamlined application and for compliance with all Commission rules

and policies. Applicants may be required to provide further information

to explain any discrepancies between the application filed and the

supporting documentation submitted, and will be

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given an opportunity to respond to all Commission questions and

concerns. In pre-grant audit cases where we find that an applicant has

made inaccurate certifications, the Commission may dismiss the

application and require the resubmission of a corrected application,

may also impose a forfeiture, or may defer action for further

investigation and possible designation for hearing.

30. We will also randomly subject up to five percent of all

applications to more extensive post-grant audits. Post-grant audits may

include comparison of the application being audited with all relevant

Commission files and databases as well as other available sources of

pertinent information. Upon analysis of the above-described

information, the staff may issue a letter of inquiry requiring

submission of all the application's supporting and background

documentation not found in its independent search. The staff will also

allow the applicants an opportunity to explain any apparent

discrepancies. Upon receipt and analysis of all relevant information,

the staff will prepare either a close-out letter, instructions to

correct any violations, if appropriate, admonition, forfeiture, hearing

designation order, or an order to show cause why an order of revocation

should not be issued. We retain the discretion to reexamine this audit

program after it has been in operation for a reasonable period of time

and to make any changes that are needed to address problems or to

enhance the program's effectiveness.

D. Modifying Construction Permit Extension Procedures

31. We conclude that a three-year construction period would provide

all permittees an adequate and realistic time to construct and amend 47

CFR 73.3598 to provide each permittee with a total of three

unencumbered years during which it may construct its broadcast

facility. Under these new procedures, the Commission will toll the

construction period only when construction is encumbered due to an act

of God, or when a construction permit is the subject of administrative

or judicial review. An act of God is defined in terms of natural

disasters (e.g., floods, tornados, hurricanes, or earthquakes), will be

narrowly construed, and include only those periods where the permittee

demonstrates that construction progress was impossible, notwithstanding

its diligent efforts. Covered administrative and judicial review falls

into two categories. The first consists of petitions for

reconsideration and applications for review within the Commission of

the grant of a construction permit or a permit extension, and any

appeal of any Commission action thereon. The second category consists

of any cause of action pending before any court of competent

jurisdiction relating to any necessary local, state, or federal

requirement for the construction or operation of the station, including

any environmental requirement. Thus, a permit would not qualify for

tolling on the basis of the pendency of a zoning application before a

local zoning board. In light of these new procedures, we eliminate the

current practice of providing additional time for construction after a

permit has been modified or assigned.

32. The lengthened three year construction period will also apply

to modifications of licensed facilities. Likewise, the grounds for

tolling a construction period will apply to modifications of licensed

facilities. The lengthened three-year construction period will apply to

NTSC permittees to construct either analog or digital new station

facilities. This Report and Order does not impact DTV build-out

requirements, the deadline for which remains 2006.

33. In lieu of FCC Form 307, the current form by which a permittee

may apply for an extension, we adopt a notification procedure under

which a permittee must inform the Commission of the circumstances that

it believes should toll its construction period. A permittee must

notify the Commission as promptly as possible and, in any event, within

30 days, of the act of God that has blocked construction, or the

initiation of a relevant administrative or judicial review. The

construction period will be tolled for the length of time that a

diligent permittee will need to recover from the effects of the event.

A permittee must also notify the Commission promptly when the relevant

administrative or judicial review is resolved. A permittee that needs

more than six months to resume construction after a natural disaster

must submit additional supporting information at six-month intervals

explaining construction progress, and the steps it has taken and

proposes to take to resolve any remaining impediments. The burden is

upon the permittee to show that any further tolling of the construction

period is warranted. Notification must be in the form of a letter

submitted in triplicate to the Secretary. The letter notification must

also be placed by the permittee in the local public file of the

station(s) concerned.

34. Construction permits granted pursuant to these rules are

subject to automatic forfeiture, without further Commission action,

upon expiration of an unencumbered three-year construction period.

Additionally, we eliminate that part of 47 CFR 73.3535(a) that requires

that ``[b]efore such an application can be granted, the permittee or

assignee must certify that it will immediately begin building after the

modification is granted or the assignment is consummated.'' We also

eliminate the requirement that permittees who modify unbuilt stations

certify that construction will commence immediately upon grant. See 47

CFR 73.3535(b). The analogous certification requirement for assignees

and transferees will likewise be eliminated. No additional time will be

granted when the permittee has had, in all, at least three unencumbered

years to construct.

E. Modification of Pro Forma Assignments and Transfers

35. In the Notice of Proposed Rulemaking, we raised a question and

invited comment as to whether 47 U.S.C. 310(d) would afford the

Commission the flexibility to give a blanket consent to certain pro

forma broadcast station assignments and transfers of control. We have

determined that it would not be prudent to make such a fundamental

change in our interpretation of 47 U.S.C. 310(d) without Congressional

guidance. Therefore, we decline at this time to adopt the notification

process suggested in the Notice.

F. Streamlined Ownership Reporting Requirements

36. We modify our existing ownership reporting rules to require

commercial and noncommercial broadcast licensees to file Ownership

Reports (FCC Form 323 or 323-E) when they file their stations' license

renewal applications and every two years thereafter. For commercial

licensees, we will delay the effective date of this rule modification

until our new Ownership Report, which will include questions concerning

minority and female ownership is available. Thus, commercial licensees

should continue to file FCC Form 323 according to their current

schedule until they have filed the revised form one time. Thereafter,

they may file under the relaxed requirements. We also formalize the

Commission's current practice of requesting an Ownership Report within

30 days of consummation of an approved assignment or transfer by

amending 47 CFR 73.3615 to specifically require that commercial and

noncommercial licensees and permittees file Ownership Reports within 30

days of consummating authorized assignments or transfers of licenses.

We also eliminate the Commission's existing supplemental

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reporting requirement, under which a noncommercial educational licensee

or permittee must file an Ownership Report within 30 days after any

change in previously reported information.

G. Information on Minority and Female Ownership

37. To develop more precise information on minority and female

ownership of mass media facilities, we amend FCC Form 323 to include a

section on the race and gender of individuals with attributable

interests in broadcast licensees. Our revised Annual Ownership Report

form will provide annual information on the state and progress of

minority and female ownership and enable both Congress and the

Commission to assess the need for, and success of, programs to foster

opportunities for minorities and females to own broadcast facilities.

In this regard, our information collection is consistent with our

mandate under 47 U.S.C. 309(j) and 47 U.S.C. 257. Pursuant to 47 CFR

73.3615(a), sole proprietorships and partnerships composed solely of

natural persons are exempt from the filing requirement. However, we

encourage these licensees to file information voluntarily regarding

gender and racial identity, so that we may more accurately measure

minority and female broadcast ownership. The modified reporting

requirement will only apply to the FCC Form 323, Annual Ownership

Report, required of commercial broadcasters. We will consider at a

later date whether to apply the requirement to the FCC Form 323-E

required of noncommercial stations. The groups on which we will seek

information are those to which our minority and female ownership

policies have historically applied. In addition to females, these

classifications are Black, Hispanic, Native American, Alaska Native,

Asian, and Pacific Islander. Thus, we will amend Section 73.3615 of the

Commission's Rules to require the provision of information on the

gender and racial identity of all parties with attributable interests

in commercial broadcast licensees.

III. Administrative Matters

38. The complete text of this Report and Order, 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 NW, Washington DC, and it may be

purchased from the Commission's copy contractor, International

Transcription Service Inc., 1231 20th Street NW, Washington, DC 20036,

(202) 857-3800.

39. Paperwork Reduction Act of 1995 Analysis. The action contained

herein has been analyzed with respect to the Paperwork Reduction Act of

1995 and found to impose new or modified reporting and recordkeeping

requirements or burdens on the public. Implementation of these new or

modified reporting and recordkeeping requirements will be subject to

approval by the Office of Management and Budget as prescribed by the

Act. The new or modified paperwork requirements contained in this

Report and Order (which are subject to approval by the Office of

Management and Budget) will go into effect upon OMB approval.

Final Regulatory Flexibility Analysis (FRFA)

40. 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 for each of the dockets in this

proceeding, MM Docket Nos. 98-43 and 94-149. The Commission sought

written public comments on the proposals set forth in each Notice,

including comment on each IRFA. The Commission's Final Regulatory

Flexibility Analysis (FRFA) in this Report and Order 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

41. Specifically, this Report and Order: (1) Streamlines broadcast

application procedures, (2) speeds introduction of new and expanded

services to the public, (3) reduces administrative burden on

regulatees, (4) increases public access to information about the

Bureau's actions and processing activities, and (5) maximizes

efficiency in the use of Commission resources. The Report and Order

maintains the technical integrity of broadcast services while fostering

the Commission's goals of competition and diversity, continuing

enforcement of the Commission's core rules and policies, and permitting

members of the public a continued opportunity to monitor station

performance. This action is taken in conjunction with the Commission's

1998 biennial regulatory review. Although Congress did not mandate this

area of review, the Commission nonetheless undertook it to assure that

its rules and processes are no more regulatory than necessary to

achieve Commission goals.

42. Further, the Order revises our Ownership Report form, FCC Form

323, to include a section requiring each owner to identify the race or

ethnicity and the gender of each person holding an attributable

ownership interest in its broadcast facility. Doing so will allow the

Commission to determine accurately the current state of minority and

female ownership of broadcast facilities and to chart the success of

any measures that we may eventually adopt in this proceeding in

promoting ownership by minorities and women. Information about the

status of minority and female broadcast ownership will also help us to

fulfill our responsibilities under section 257 of the

Telecommunications Act of 1996 to identify and eliminate market entry

barriers for entrepreneurs and other small businesses in the provision

and ownership of telecommunications services and information services.

47 U.S.C. 257. In implementing Section 257, the Commission is mandated

to ``promote the policies and purposes of this Act favoring diversity

of media voices, vigorous economic competition, technological

advancement, and promotion of the public interest, convenience and

necessity.''

Significant Issues Raised by Public Comments in Response to the IRFAs

43. No comments were received specifically in response to the IRFA

in MM Docket No. 98-43. However, some comments in that proceeding did

address certain small business issues. Primarily, commenters were

concerned that not all small businesses are currently connected to the

Internet and therefore would be unable to immediately participate in

the electronic filing initiative adopted herein without additional

expense. Commenters were also concerned that eliminating the

requirement that permittees file sales contracts will hurt small

business because lending institutions will be unable to access

necessary sales price information. One commenter, Cumulus Media,

commented that streamlining the application process will inevitably

decrease the cost of doing business for small broadcasters and that

broadcasters could then shift their resources into benefits for the

public, such as more local programming and sponsorship of community

events.

44. Four commenters endorsed our proposed amendment to FCC Form

323, which would require a broadcaster to provide information regarding

the race or ethnicity and the gender of any individual with an

attributable ownership interest in its broadcast facility. All four

commenters stated that the collection of such information is essential

in order to monitor the

[[Page 70046]]

effectiveness of minority and female ownership programs. One commenter

points out that race and gender-based remedies must be narrowly

tailored and terminate once fair representation has been achieved and,

therefore, the collection of such data is necessary to these ends. The

commenter asserts that the collection of statistical information on the

race and gender of station employees to monitor equal employment

opportunity compliance has been useful and the burden of its collection

minimal. While another commenter urges that the revised form include a

designation of the gender and race of the owner of the station, the

first commenter suggests that we add questions concerning whether women

or members of racial or ethnic minority groups hold ownership interests

in the station and, if so, the percentage interest held by each group,

the minority total, the female total, whether either total constitutes

a controlling interest, whether women or minorities otherwise exercise

control, and whether any minority ownership policies or devices were

used by the current owners in acquiring the station.

45. Another issue raised by commenters concerning amendment of FCC

Form 323 concerns how the Commission should define relevant groups. One

commenter, Press Broadcasting Company, Inc., argues that the Commission

has not clearly defined ``minorities'' beyond ``Black, Hispanic, Native

American, Alaska Native, Asian and Pacific Islander,'' and that the

Commission's definition of minorities is arbitrary and inconsistent

with its definition in other proceedings.

Description and Estimate of the Number of Small Entities to which Rules

will Apply

46. 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), generally defines the term ``small

business'' as having the same meaning as the term ``small business

concern'' under the Small Business Act, 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 5 U.S.C. 601(3), the statutory definition of a small

business applies ``unless an agency after consultation with the Office

of Advocacy of the SBA and after opportunity for public comment,

establishes one or more definitions of such term that are appropriate

to the activities of the agency and publishes such definition(s) in the

Federal Register.'' We received no comment in response to either IRFA

on how to define radio and television broadcast ``small businesses.''

Therefore, we will continue to utilize SBA's definitions for the

purpose of this FRFA.

47. The rules and policies adopted in the Report and Order will

apply to all broadcast licensees. The SBA defines a television

broadcasting station that 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. For 1992, the number of

television stations that produced less than $10.0 million in revenue

was 1,155 establishments. There were approximately 1,583 operating

television broadcasting stations in the nation as of September 30,

1998, of which approximately 1,219 are considered small businesses.

48. 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 that primarily are engaged in

radio broadcasting and that produce radio program materials are

similarly included. As of September 30, 1998, Commission records

indicate that 12,373 radio stations were operating, of which 11,878

were considered small businesses.

49. Thus, the measures adopted here will affect the approximately

1,583 television stations, approximately 1,219 of which are considered

small businesses. Additionally, the measures adopted here will also

affect the 12,373 radio stations, approximately 11,878 of which are

small businesses. These estimates may overstate the number of small

entities since the revenue figures on which they are based do not

include or aggregate revenues from non-television or non-radio

affiliated companies. In addition to owners of operating radio and

television stations, any entity who seeks or desires to obtain a

television or radio broadcast license may be affected by the rules and

procedures adopted in this item. The number of entities that may seek

to obtain a television or radio broadcast license is unknown.

Description of Projected Reporting, Recordkeeping and Other Compliance

Requirements

50. The measures adopted in the Report and Order will reduce the

reporting required of prospective and current applicants, permittees

and licensees. All measures aim to reduce the overall administrative

burden upon both the public and the Commission. For example, we have

adopted a phase-in period for mandatory electronic filing. We note that

such a phase-in procedure has been used elsewhere to benefit small

businesses. For example, the Securities and Exchange Commission

incorporated its mandatory filing rules in stages. While most companies

were phased into the electronic filing system in 1993, small businesses

were not completely phased in until May 1996. We believe that

electronic filing will, among other things, speed the processing of

applications, save Commission resources, and make filing easier for

regulatees by informing them of certain errors in their applications

before they are actually sent.

51. The full benefits of electronic filing and processing would not

be realized simply by converting the current version of each form into

an electronic format. Accordingly, we have deleted or narrowed overly

burdensome questions and will now rely more extensively on applicant

certifications. These changes will both reduce applicant filing burdens

and streamline our processing of sales, new station, and facility

modification applications. The Report and Order revises Commission

requirements for extending the construction periods of broadcast

stations; for selling unbuilt construction permits; and for submitting

ownership reports for commercial and noncommercial stations. To

preserve the integrity of our streamlined application process, the

Report and Order implements a formal program of both pre- and post-

application grant random audits.

52. In addition, many broadcast licensees will need to file

modified FCC Form 323, and include information on the race or ethnicity

and gender of individuals with attributable interests in the broadcast

license. However, not all broadcast licensees are required to file

ownership forms. Specifically, pursuant to 47 CFR 73.3615(a), sole

proprietorships and partnerships

[[Page 70047]]

composed solely of natural persons are exempt from the filing

requirement. We encourage those licensees to file information

voluntarily regarding gender and racial identity, so that we may more

accurately measure minority and female broadcast ownership. In

addition, our modified reporting requirement will apply only to

commercial broadcast stations. The reporting requirements of

noncommercial broadcasters as set forth in 47 CFR 73.3615(d) will

remain unchanged.

Steps Taken to Minimize Significant Economic Impact on Small Entities,

and Significant Alternatives Considered

53. This Order sets forth the Commission's new streamlined rules

and procedures. The streamlined rules and procedures are intended to

reduce applicant and licensee burdens, realize fully the benefits of

the Mass Media Bureau's electronic filing initiative, and preserve the

public's ability to participate fully in the Commission's broadcast

licensing processes. These streamlined rules and procedures are

designed to reduce filing burdens and increase the efficiency of

application processing. All significant alternatives presented in the

comments were considered, and some were adopted herein, including the

addition of an explanation checkbox and the provision of accompanying

narrative exhibits to the certification forms, under specific

circumstances, in order to reduce the number of application amendments

and thereby further preserve staff resources while reducing the

paperwork burden on applicants.

54. As noted in the Report and Order, the development of electronic

filing procedures will also greatly increase efficiencies to

applicants, while increasing the speed of the licensing process. We

expect that these changes will benefit all, including small entities.

Electronic filing should be easier for applicants than the current

system because the electronic filing system will prompt the applicant

for the necessary information and will provide interactive error

messages if information is not filed correctly. The electronic filing

system will allow the applicant to correct its applications prior to

submitting it. This system will allow all interested parties, including

small entities, easy access to pleadings that are filed in connection

with applications and licenses.

55. We do not believe that the modified race and gender reporting

requirement will impose an undue economic burden on licensees because

they will not be required to obtain information from anyone whose

interests are not already reportable. We have attempted to keep burdens

on broadcast television and radio stations to a minimum by grafting

this information collection onto an existing collection requirement

rather than imposing an entirely new requirement. Additionally, the

information being requested is simply the race and gender of persons

with an attributable interest in the broadcast license. The Commission

rejected requests made by some commenters for the collection of

additional information. The significant alternatives the Commission

considered were: (1) To collect more information than the race and

gender of those with attributable interests (e.g., whether any minority

ownership policies or devices were used by the current owners in

acquiring the station); or (2) collect no information on the race and

gender of persons with attributable interests. The first alternative

could significantly increase the information-gathering and reporting

burden on licensees with little benefit, while the information we

require can be submitted by interested parties during the course of

this proceeding. The second alternative, to collect no race or gender

information, would force the Commission to make important policy

decisions without relevant and important information.

Report to Congress

56. The Commission will send a copy of the 1998 Biennial Regulatory

Review--Streamlining of Mass Media Applications, Rules, and Processes;

Policies and Rules Regarding Minority and Female Ownership of Mass

Media Facilities Report and Order, including this FRFA, in a report to

be sent to Congress pursuant to the Small Business Regulatory

Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A). In

addition, the Commission's Office of Public Affairs, Reference

Operations Division, will send a copy of this Report and Order,

including this FRFA, to the Chief Counsel for Advocacy of the Small

Business Administration.

57. Authority for issuance of the Report and Order is contained in

Sections 4, 301, 303, 307, 308 and 309 of the Communications Act of

1934, as amended, 47 U.S.C. 154, 301, 303, 307, 308 and 309. Sections

1.4 , 73.316, 73.1030, 73.1675, 73.3500, 73.3526, 73.3534, 73.3535,

73.3597, 73.3598, 73.3599, 73.3613 and 73.3615 of the Commission's

Rules, are amended.

58. The rule amendments will become effective 60 days after their

publication in the Federal Register, and the information collection

contained in these rules, with the exception of 47 CFR

73.3526(e)(11)(iii) and 73.3615(a), will become effective 60 days after

publication in the Federal Register, following OMB approval, unless a

notice is published in the Federal Register stating otherwise. The

Commission will publish a notices setting the effective date of 47 CFR

73.3526(e)(11)(iii) and 73.3615(a) upon OMB's approval of these

sections.

59. It is further ordered that the proceeding in MM Docket No. 98-

43 is terminated.

List of Subjects in 47 CFR parts 1 and 73

Radio broadcasting, Television broadcasting.

Federal Communications Commission

Shirley S. Suggs

Chief, Publications Branch

Rule Changes

Parts 1 and 73 of Chapter 1 of Title 47 of the Code of Federal

Regulations are amended as follows:

PART 1--PRACTICE AND PROCEDURE

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

Authority: 47 U.S.C. 151, 154, 207, 303 and 309(j) unless

otherwise noted.

2. Section 1.4 is amended by adding a sentence to paragraph (f) to

read as follows:

Sec. 1.4 Computation of time.

* * * * *

(f) * * * Mass Media Bureau applications and reports filed

electronically pursuant to Sec. 73.3500 of this Chapter must be

received by the electronic filing system before midnight on the filing

date.

PART 73--RADIO BROADCAST SERVICES

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

Authority: 47 U.S.C. 154, 301, 303, 307, 308 and 309.

4. Section 73.316 is amended by revising paragraph (c) to read as

follows:

Sec. 73.316 FM Antenna systems

* * * * *

(c) Applications for directional antennas. (1) Applications for

construction permit proposing the use of directional antenna systems

must include a tabulation of the composite antenna pattern for the

proposed directional antenna. A value of 1.0 must be used to correspond

to the direction of maximum radiation. The pattern must be tabulated

such that 0 deg. corresponds to the direction of maximum radiation or

alternatively, in

[[Page 70048]]

the case of an asymmetrical antenna pattern, the pattern must be

tabulated such that 0 deg. corresponds to the actual azimuth with

respect to true North. In the case of a composite antenna composed of

two or more individual antennas, the pattern required is that for the

composite antenna, not the patterns for each of the individual

antennas. Applications must include valuations tabulated at intervals

of not greater than ten (10) degrees. In addition, tabulated values of

all maximas and minimas, with their corresponding azimuths, must be

submitted.

(2) Applications for license upon completion of antenna

construction must include the following:

(i) A complete description of the antenna system, including the

manufacturer and model number of the directional antenna. It is not

sufficient to label the antenna with only a generic term such as

``dipole.'' In the case of individually designed antennas with no model

number, or in the case of a composite antenna composed of two or more

individual antennas, the antenna must be described as a ``custom'' or

``composite'' antenna, as appropriate. A full description of the design

of the antenna must also be submitted.

(ii) A plot of the composite pattern of the directional antenna. A

value of 1.0 must be used to correspond to the direction of maximum

radiation. The plot of the pattern must be oriented such that 0 deg.

corresponds to the direction of maximum radiation or alternatively, in

the case of an asymmetrical antenna pattern, the plot must be oriented

such that 0 deg. corresponds to the actual azimuth with respect to true

North. The horizontal plane pattern must be plotted to the largest

scale possible on unglazed letter-size polar coordinate paper (main

engraving approximately 18 cm x 25 cm (7 inches x 10 inches)) using

only scale divisions and subdivisions of 1, 2, 2.5, or 5 times 10-nth.

Values of field strength less than 10% of the maximum field strength

plotted on that pattern must be shown on an enlarged scale. In the case

of a composite antenna composed of two or more individual antennas, the

composite antenna pattern should be provided, and not the pattern for

each of the individual antennas.

(iii) A tabulation of the measured relative field pattern required

in paragraph (c)(1) of this section. The tabulation must use the same

zero degree reference as the plotted pattern, and must contain values

for at least every 10 degrees. Sufficient vertical patterns to indicate

clearly the radiation characteristics of the antenna above and below

the horizontal plane. Complete information and patterns must be

provided for angles of -10 deg. from the horizontal plane and

sufficient additional information must be included on that portion of

the pattern lying between +10 deg. and the zenith and -10 deg. and the

nadir, to conclusively demonstrate the absence of undesirable lobes in

these areas. The vertical plane pattern must be plotted on rectangular

coordinate paper with reference to the horizontal plane. In the case of

a composite antenna composed of two or more individual antennas, the

composite antenna pattern should be used, and not the pattern for each

of the individual antennas.

(iv) A statement that the antenna is mounted on the top of an

antenna tower recommended by the antenna manufacturer, or is side-

mounted on a particular type of antenna tower in accordance with

specific instructions provided by the antenna manufacturer.

(v) A statement that the directional antenna is not mounted on the

top of an antenna tower which includes a top-mounted platform larger

than the nominal cross-sectional area of the tower in the horizontal

plane.

(vi) A statement that no other antenna of any type is mounted on

the same tower level as a directional antenna, and that no antenna of

any type is mounted within any horizontal or vertical distance

specified by the antenna manufacturer as being necessary for proper

directional operation.

(vii) A statement from an engineer listing such individual

engineer's qualifications and certifying that the antenna has been

installed pursuant to the manufacturer's instructions.

(viii) A statement from a licensed surveyor that the installed

antenna is properly oriented.

(ix)(A) For a station authorized pursuant to Sec. 73.215 or Sec.

Sec. 73.509, a showing that the root mean square (RMS) of the measured

composite antenna pattern (encompassing both the horizontally and

vertically polarized radiation components (in relative field)) is at

least 85 percent of the RMS of the authorized composite directional

antenna pattern (in relative field). The RMS value, for a composite

antenna pattern specified in relative field values, may be determined

from the following formula:

RMS=the square root of:

[(relative field value 1)\2\ + (relative field value 2)\2\ +....+ (last

relative field value)\2\]

total number of relative field values

(B) where the relative field values are taken from at least 36

evenly spaced radials for the entire 360 degrees of azimuth. The

application for license must also demonstrate that coverage of the

community of license by the 70 dBu contour is maintained for stations

authorized pursuant to Sec. 73.215 on Channels 221 through 300, as

required by Sec. 73.315(a), while noncommercial educational stations

operating on Channels 201 through 220 must show that the 60 dBu contour

covers at least a portion of the community of license.

* * * * *

5. Section 73.1030 is amended by revising paragraph (a) as follows:

Sec. 73.1030 Notifications concerning interference to radio astronomy,

research and receiving installations.

(a)(1) Radio astronomy and radio research installations. In order

to minimize harmful interference at the National Radio Astronomy

Observatory site located at Green, Pocahontas County, West Virginia,

and at the Naval Radio Research Observatory at Sugar Grove, Pendleton

County, West Virginia, a licensee proposing to operate a short-term

broadcast auxiliary station pursuant to Section 74.24, and any

applicant for authority to construct a new broadcast station, or for

authority to make changes in the frequency, power, antenna height, or

antenna directivity of an existing station within the area bounded by

39 deg. 15' N on the north, 78 deg. 30' W on the east, 37 deg. 30' N on

the south, and 80 deg. 30' W on the west, shall notify the Interference

Office, National Radio Astronomy Observatory, P.O. Box 2, Green Bank,

West Virginia 24944. Telephone: (304) 456-2011. The notification shall

be in writing and set forth the particulars of the proposed station,

including the geographical coordinates of the antenna, antenna height,

antenna directivity if any, proposed frequency, type of emission and

power. The notification shall be made prior to, or simultaneously with,

the filing of the application with the Commission. After receipt of

such applications, the FCC will allow a period of 20 days for comments

or objections in response to the notifications indicated. If an

objection to the proposed operation is received during the 20-day

period from the National Radio Astronomy Observatory for itself, or on

behalf of the Naval Radio Research Observatory, the FCC will consider

all aspects of the problem and take whatever action is deemed

appropriate.

(2) Any applicant for a new permanent base or fixed station

authorization to be located on the islands of Puerto Rico, Desecheo,

Mona, Vieques, and Culebra, or for a modification of an existing

authorization to change the frequency,

[[Page 70049]]

power, antenna height, directivity, or location of a station on these

islands shall notify the Interference Office, Arecibo Observatory, Post

Office Box 995, Arecibo, Puerto Rico 00613, in writing or

electronically, of the technical parameters of the proposal. Applicants

shall consult interference guidelines, which will be provided by

Cornell University. Applicants who choose to transmit information

electronically should e-mail to: [email protected]

(i) The notification to the Interference Office, Arecibo

Observatory shall be made prior to, or simultaneously with, the filing

of the application with the Commission. The notification shall state

the geographical coordinates of the antenna (NAD-83 datum), antenna

height above ground, ground elevation at the antenna, antenna

directivity and gain, proposed frequency and FCC Rule Part, type of

emission, and effective radiated power.

(ii) After receipt of such applications, the Commission will allow

the Arecibo Observatory a period of 20 days for comments or objections

in response to the notification indicated. The applicant will be

required to make reasonable efforts to resolve or mitigate any

potential interference problem with the Arecibo Observatory and to file

either an amendment to the application or a modification application,

as appropriate. The Commission shall determine whether an applicant has

satisfied its responsibility to make reasonable efforts to protect the

Observatory from interference.

* * * * *

6. Section 73.1675 is amended by revising paragraph (a) as follows:

Sec. 73.1675 Auxiliary antennas.

(a)(i) An auxiliary antenna is one that is permanently installed

and available for use when the main antenna is out of service for

repairs or replacement. An auxiliary antenna may be located at the same

transmitter site as the station's main antenna or at a separate site.

The service contour of the auxiliary antenna may not extend beyond the

following corresponding contour for the main facility:

(i) AM stations: The 0.5 mV/m field strength contours.

(ii) FM stations: The 1.0 mV/m field strength contours.

(iii) TV stations: The Grade B coverage contours.

(a)(2) An application for an auxiliary antenna for an AM station

filed pursuant to paragraphs (b) or (c) of this section must contain a

map showing the 0.5 mV/m field strength contours of both the main and

auxiliary facilities.

* * * * *

7. Section 73.3500 is amended by adding an (a) paragraph

designation to the introductory text and adding paragraph (b) to read

as follows:

Sec. 73.3500 Application and report forms.

(a) Following are the FCC broadcast application and report forms,

listed by number.

* * * * *

(b) Following are the FCC broadcast application and report forms,

listed by number, that must be filed electronically in accordance with

the filing instructions set forth in the application and report form.

(1) Form 398, in electronic form as of January 10, 1999.

8. Section 73.3526 is amended by revising paragraph (e)(11)(iii) to

read as follows:

Sec. 73.3526 Local public inspection file of commercial stations.

* * * * *

(e)(11)(iii) Children's Television Programming Reports. For

commercial TV broadcast stations, on a quarterly basis, a completed

Children's Television Programming Report (``Report''), on FCC Form 398,

reflecting efforts made by the licensee during the preceding quarter,

and efforts planned for the next quarter, to serve the educational and

informational needs of children. The Report for each quarter is to be

filed by the tenth day of the succeeding calendar quarter. The Report

shall identify the licensee's educational and informational programming

efforts, including programs aired by the station that are specifically

designed to serve the educational and informational needs of children,

and it shall explain how programs identified as Core Programming meet

the definition set forth in Sec. 73.671(c). The Report shall include

the name of the individual at the station responsible for collecting

comments on the station's compliance with the Children's Television

Act, and it shall be separated from other materials in the public

inspection file. These Reports shall be retained in the public

inspection file until final action has been taken on the station's next

license renewal application. Licensees shall publicize in an

appropriate manner the existence and location of these Reports. For an

experimental period of three years, licensees shall file these Reports

with the Commission on an annual basis, i.e. four quarterly reports

filed jointly each year, in electronic form as of January 10, 1999.

These Reports shall be filed with the Commission on January 10, 1998,

January 10, 1999, and January 10, 2000.

* * * * *

9. Section 73.3534 is revised to read as follows:

Sec. 73.3534 Period of construction for Instructional TV Fixed station

construction permit and requests for extension thereof.

(a) Each original construction permit for the construction of a new

Instructional TV Fixed station, or to make changes in such existing

stations, shall specify a period of 18 months from the date of issuance

of the original construction permit within which construction shall be

completed and application for license filed.

(b) Requests for extension of time within which to construct an

Instructional TV Fixed station shall be filed at least 30 days prior to

the expiration date of the construction permit if the facts supporting

such request for extension are known to the applicant in time to permit

such filing. In other cases, a request will be accepted upon a showing

satisfactory to the FCC of sufficient reasons for filing within less

than 30 days prior to the expiration date.

(c) Requests for extension of time to construct Instructional TV

Fixed stations will be granted upon a specific and detailed narrative

showing that the failure to complete construction was due to causes not

under the control of the permittee, or upon a specific and detailed

showing of other sufficient justification for an extension.

(d) If a request for extension of time within which to construct an

Instructional TV Fixed station is approved, such an extension will be

limited to a period of no more than 6 months.

(e) A construction permit for an Instructional TV Fixed station

shall be declared forfeited if the station is not ready for operation

within the time specified therein or within such further time as the

FCC may have allowed for completion, and a notation of the forfeiture

of any construction permit under this provision will be placed in the

records of the FCC as of the expiration date.

Sec. 73.3535 [Removed]

10. Section 73.3535 is removed.

11. Section 73.3597 is amended by adding paragraph (c)(1)(iii) as

follows:

Sec. 73.3597 Procedures on transfer and assignment applications.

* * * * *

(c) (1) * * *

(i) * * *

(ii) * * *

[[Page 70050]]

(iii) The provisions of paragraphs (c) and (d) of this section

apply only to mutually exclusive noncommercial educational applications

filed on or after the release of the Report and Order in MM Docket 98-

43, where the construction permit is issued pursuant to settlement

agreement.

* * * * *

12. Section 73.3598 is revised to read as follows:

Sec. 73.3598 Period of construction.

(a) Each original construction permit for the construction of a new

TV, AM, FM or International Broadcast; low power TV; TV translator; TV

booster; FM translator; FM booster; or broadcast auxiliary station, or

to make changes in such existing stations, shall specify a period of

three years from the date of issuance of the original construction

permit within which construction shall be completed and application for

license filed.

(b) The period of construction for an original construction permit

shall toll when construction is prevented by the following causes not

under the control of the permittee:

(i) Construction is prevented due to an act of God, defined in

terms of natural disasters (e.g., floods, tornados, hurricanes, or

earthquakes) or

(ii) the grant of the permit is the subject of administrative or

judicial review (i.e., petitions for reconsideration and applications

for review of the grant of a construction permit pending before the

Commission and any judicial appeal of any Commission action thereon),

or construction is delayed by any cause of action pending before any

court of competent jurisdiction relating to any necessary local, state

or federal requirement for the construction or operation of the

station, including any zoning or environmental requirement.

(c) A permittee must notify the Commission as promptly as possible

and, in any event, within 30 days, of any pertinent event covered by

paragraph (b) of this section, and provide supporting documentation.

All notifications must be filed in triplicate with the Secretary and

must be placed in the station's local public file.

(d) A permittee must notify the Commission promptly when a relevant

administrative or judicial review is resolved. Tolling resulting from

an act of God will automatically cease six months from the date of the

notification described in paragraph (c) of this section, unless the

permittee submits additional notifications at six month intervals

detailing how the act of God continues to cause delays in construction,

any construction progress, and the steps it has taken and proposes to

take to resolve any remaining impediments.

(e) Any construction permit for which construction has not been

completed and for which an application for license has not been filed,

shall be automatically forfeited upon expiration without any further

affirmative cancellation by the Commission.

Sec. 73.3599 [Removed]

13. Section 73.3599 is removed:

14. Section 73.3613 is amended by adding paragraph (b)(7) as

follows:

Sec. 73. 3613 Filing of contracts.

* * * * *

(b) * * *

(7) Agreements providing for the assignment of a license or permit

or agreements for the transfer of stock filed in accordance with FCC

application Forms 314, 315, 316 need not be resubmitted pursuant to the

terms of this rule provision.

15. Section 73.3615 is amended by revising paragraphs (a) and

(a)(1); the first sentence of paragraph (a)(2); paragraph (a) (3) (i)

(A); paragraph (c); paragraph (d) introductory text and paragraphs (e)

and (f) as follows:

Sec. 73.3615 Ownership Reports.

(a) With the exception of sole proprietorships and partnerships

composed entirely of natural persons, each licensee of a commercial AM,

FM, or TV broadcast station shall file an Ownership Report on FCC Form

323 when filing the station's license renewal application and every two

years thereafter on the anniversary of the date that its renewal

application is required to be filed. Licensees owning multiple stations

with different anniversary dates need file only one Report every two

years on the anniversary of their choice, provided that their Reports

are not more than two years apart. A licensee with a current and

unamended Report on file at the Commission may certify that it has

reviewed its current Report and that it is accurate, in lieu of filing

a new Report. Ownership Reports shall provide the following information

as of a date not more than 60 days prior to the filing of the Report:

(1) In the case of an individual, the name, race or ethnicity, and

gender of such individual;

(2) In the case of a partnership, the name, race or ethnicity, and

gender of each partner and the interest of each partner. * * *

(a) * * *

(3) * * *

(i) * * *

(A) The name, residence, citizenship, race or ethnicity, gender,

and stockholding of every officer, director, trustee, executor,

administrator, receiver and member of an association, and any

stockholder which holds stock accounting for 5 percent or more of the

votes of the corporation, except that an investment company, insurance

company, or bank trust department need be reported only if it holds

stock amounting to 10 percent or more of the votes, provided that the

licensee certifies that such entity has made no attempt to influence,

directly or indirectly, the management or operation of the licensee,

and that there is no representation on the licensee's board or among

its officers by any person professionally or otherwise associated with

the entity.

* * * * *

(c) Before any change is made in the organization, capitalization,

officers, directors, or stockholders of a corporation other than

licensee or permittee, which results in a change in the control of the

licensee or permittee, prior FCC consent must be received under

Sec. 73.3540. A transfer of control takes place when an individual or

group in privity, gains or loses affirmative or negative (50%) control.

See instructions on FCC Form 323 (Ownership Report). Each permittee or

licensee of a commercial AM, FM or TV Broadcast station shall file an

Ownership Report on FCC Form 323 within 30 days of consummating

authorized assignments or transfers of permits and licenses. The

Ownership Report of the permittee or licensee shall give the

information required by the applicable portions of paragraph (a) of

this section.

(d) Each licensee of a noncommercial educational AM, FM or TV

broadcast station shall file an Ownership Report on FCC Form 323-E when

filing the station's license renewal application and every two years

thereafter on the anniversary of the date that its renewal application

is required to be filed. Licensees owning more than one noncommercial

educational AM, FM or TV broadcast station with different anniversary

dates need file only one Report every two years on the anniversary of

their choice, provided that their Reports are not more than two years

apart. A licensee with a current and unamended Report on file at the

Commission may certify that it has reviewed its current Report and that

it is accurate, in lieu of filing a new Report. Ownership reports shall

give the following information as of a date not

[[Page 70051]]

more than 60 days prior to the filing of the Ownership Report:

* * * * *

(e) Each permittee of a noncommercial educational AM, FM or TV

broadcast station shall file an Ownership Report on FCC Form 323-E:

(1) Within 30 days of the date of grant by the FCC of an

application for original construction permit and;

(2) On the date that it applies for a station license. The

Ownership Report of the permittee shall give the information required

by the applicable form. A permittee with a current and unamended Report

on file at the Commission may certify that it has reviewed its current

Report and it is accurate, in lieu of filing a new Report.

(f) Each permittee or licensee of a noncommercial educational AM,

FM or TV Broadcast station shall file an Ownership Report on FCC Form

323-E within 30 days of consummating authorized assignments or

transfers of permits and licenses. The Ownership Report of the

noncommercial educational permittee or licensee shall give the

information required by the applicable form.

* * * * *

[FR Doc. 98-33486 Filed 12-17-98; 8:45 am]

BILLING CODE 6712-01-P