Preemption of State and Local Zoning and Land Use Restrictions on the Siting, Placement and Construction of Broadcast Transmission Facilities

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[MM Docket 97-182; DA No. 98-458]

Preemption of State and Local Zoning and Land Use Restrictions on

the Siting, Placement and Construction of Broadcast Transmission

Facilities

AGENCY: Federal Communications Commission.

ACTION: Supplemental proposed rule.

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SUMMARY: The Commission has received a petition from the National

Audubon Society (``Audubon'') requesting the preparation of an

Environmental Impact Statement pursuant to the National Environmental

Policy Act, in connection with the Commission's Notice of Proposed Rule

Making in the Matter of Preemption of State and Local Zoning and Land

Use Restrictions on the Siting, Placement and Construction of Broadcast

Station Transmission Facilities. By this Public Notice, interested

parties are invited to file comments as to whether the rule proposed

would have a significant environmental impact and what that impact

would be.

DATES: Comments must be filed on or before April 14, 1998, Reply

Comments must be filed on or before April 29, 1998.

ADDRESSES: All comments should be addressed to Office of the Secretary,

Federal Communications Commission, 1919 M Street, NW, Washington, DC

20554.

FOR FURTHER INFORMATION CONTACT: Amy Nathan or Susanna Zwerling, Policy

and Rules Division, Mass Media Bureau (202) 418-2130.

SUPPLEMENTARY INFORMATION: This is a summary of the Mass Media Bureau's

Public Notice. Also included in this notice is the Initial Regulatory

Flexibility Analysis for the NPRM. The full text of this Notice is

available for inspection and copying during normal business hours in

the FCC Dockets Branch (Room 239), 1919 M Street N.W., Washington, D.C.

The complete text of this Notice may also be purchased from the

Commission's copy contractor, International Transcription Services

(202) 857-3800 2100 M Street, N.W., Suite 140, Washington, D.C. 20037.

Synopsis of Notice

The Commission has received a petition from Audubon requesting the

preparation of an Environmental Impact Statement pursuant to the

National Environmental Policy Act (``NEPA''), 42 U.S.C. 4332, in

connection with the Commission's Notice of Proposed Rule Making In the

Matter of Preemption of State and Local Zoning and Land Use

Restrictions on the Siting, Placement and Construction of Broadcast

Station Transmission Facilities (FCC No. 97-296, MM Docket No. 97-182)

(``NPRM''). Pursuant to 47 CFR 1.1307(c), Audubon is entitled to file

such petition, and the Mass Media Bureau is required to ``review the

petition and consider the environmental concerns that have been

raised.'' This Public Notice addresses only the environmental issues

raised by Audubon's petition, and represents just one part of the

Commission's ongoing proceeding in MM Docket No. 97-182.

The NPRM requested comment on whether and in what circumstances the

Commission should preempt certain state and local actions on zoning and

land use ordinances which present an obstacle to the rapid

implementation of digital television service. The Commission released

the NPRM on August 19, 1997 published September 2, 1997 (62 FR 46241),

comments were due October 30, 1997, and reply comments were due

December 1, 1997.

Audubon filed its petition on December 1, 1997, requesting that the

Commission prepare an Environmental Impact Statement (``EIS'') and

solicit public comment on that EIS. Audubon alleges that the rule

proposed by the NPRM constitutes a major federal action affecting the

environment, and therefore requiring the preparation of an EIS pursuant

to NEPA. In addition, Audubon alleges that the Commission's regulations

require an environmental analysis of any action that may affect a

listed species or may lead to construction in wetlands. 47 CFR

1.1307(c)

By this Public Notice, we seek comment as to first, whether the

proposal contained in the NPRM would have a significant environmental

effect such that an EIS should be prepared; and second, what would be

the environmental effect of the proposal.

The initiation of this proceeding is not intended to affect in any

way the expeditious processing of digital television construction

permit applications. This proceeding also will not affect the current

requirement that licensees represent that their applications meet the

requirements of NEPA. The Mass Media Bureau takes very seriously the

responsibilities conferred by NEPA to evaluate the effects of its

actions on the quality of the environment. The Bureau continues to

review applicants' representations of

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compliance with section 1.1307 and with NEPA.

Comments on this Public Notice must be filed on or before April 14,

1998, and reply comments must be filed by April 29, 1998. To file

formally in this proceeding, participants must file an original and

four copies of all comments, reply comments, and supporting comments.

All comments should reference FCC Docket No. 97-296 and MM Docket No.

97-182 and should be addressed to: Office of the Secretary, Federal

Communications Commission, 1919 M Street, NW, Washington, DC 20554.

Initial Regulatory Flexibility Analysis

The Federal Register notice for the NPRM, released August 19, 1997,

omitted the Initial Regulatory Flexibility Analysis (``IRFA'')

connected with the NPRM. A synopsis of that IRFA follows.

As required by section 603 of the Regulatory Flexibility Act

(``RFA''), 5 U.S.C. 603, the Commission is incorporating an IRFA of the

expected impact on small entities of the policies and proposals in the

NRPM. Written public comments concerning the effect of the proposals in

the NRPM including the IRFA, on small businesses are requested.

Comments must be identified as responses to the IRFA and must be filed

by the deadlines for the submission of comments in this proceeding. The

Office of Public Affairs shall send a copy of the NPRM, including the

IRA, to the Chief Counsel for Advocacy of the Small Business

Administration in accordance with paragraph 603(a) of the Regulatory

Flexibility Act.

Reasons Why Agency Action is Being Considered

In its Fifth Report and Order in its digital television proceeding

(MM Docket No. 87-268) the Commission adopted an accelerated roll-out

schedule for digital television stations. That schedule requires the

top four network affiliates in the top ten television markets to

construct their digital television facility and begin emitting signals

by May 1, 1999. Affiliates of these four networks in markets 11-30 must

be on the air by November 1, 1999. All other commercial stations will

have to construct their DTV facilities by May 1, 2002, and

noncommercial stations by May 1, 2003. The Commission found this

accelerated schedule necessary to promote the success of DTV and allow

for spectrum recovery, a goal shared by Congress. In a rule making

petition filed by the National Association of Broadcasters and the

Association of Maximum Service Television the Petitioners claim that

state and local zoning and land use laws, ordinances, and procedures

may have a delaying effect on the siting, placement and construction of

new television towers that will be needed for DTV. Additionally, they

contend, the antennas of many FM radio stations will need to be

displaced from existing towers to enable them to support new DTV

antenna arrays and these FM stations will have to build new towers to

enable them to continue to serve the public. Accordingly, they ask the

Commission to adopt a rule preempting state and local laws, ordinances

and procedures that could work to delay the inauguration of DTV

service. The Commission believes the prompt deployment of DTV is

essential to several goals, and that compliance with such local

requirements may, at least in some cases, both make compliance with

both these procedures and the roll-out schedule impossible.

Additionally, it believes that some of these state and local

regulations may stand as obstacles to the accomplishment of the rapid

transition to DTV service and the spectrum recovery that it will

permit. This recovery is also an important congressional purpose as

evidenced by its 1996 adoption of 47 U.S.C. 336.

Need for and Objectives of the Proposed Rule Changes

Petitioners have demonstrated that at least some state and local

zoning and land use laws, ordinances and procedures may, unless

preempted by the Commission, prevent television broadcasters from

meeting the construction schedule for DTV stations established by the

Commission, retarding the recovery of frequency spectrum by the

government for reallotment and delaying digital service to the public.

Additionally, in some cases they may result in discontinuation of FM

radio service to the public should displaced FM antennas be unable to

relocate to new antenna towers.

Legal Basis

Authority for the actions proposed in this NPRM may be found in

sections 4(i), 303(r), and 336 of the Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 303(r), and 336. Recording, Recordkeeping,

and Other Compliance Requirements The Commission is not proposing any

new or modified recordkeeping or information collection requirements in

this proceeding. Federal Rules that Overlap, Duplicate, or Conflict

with the Proposed Rules: The initiatives and proposed rules raised in

this proceeding do not overlap, duplicate or conflict with any other

rules. Description and Estimate of the Number of Small Entities to

Which the Proposed Rules Will Apply: Under the RFA, small entities may

include small organizations, small businesses, and small governmental

jurisdictions. The RFA 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 which are appropriate to the activities

of the agency and publishes such definition(s) in the Federal

Register.'' The proposed rules and policies will apply to television

broadcasting licensees, radio broadcasting licensees and potential

licensees of either service. The Small Business Administration 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. Separate

establishments primarily engaged in producing taped television program

materials are classified under another SIC number. There were 1,509

television stations operating in the nation in 1992. That number has

remained fairly constant as indicated by the approximately 1,558

operating television broadcasting stations in the nation as of May 31,

1997. For 1992 the number of television stations that produced less

than $10.0 million in revenue was 1,155 establishments.

Additionally, the Small Business Administration 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

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by radio to the public. Included in this industry are commercial

religious, educational, and other radio stations. Radio broadcasting

stations which primarily are engaged in radio broadcasting and which

produce radio program materials are similarly included. However, radio

stations which are separate establishments and are primarily engaged in

producing radio program material are classified under another SIC

number. The 1992 Census indicates that 96 percent (5,861 of 6,127)

radio station establishments produced less than $5 million in revenue

in 1992. Official Commission records indicate that 11,334 individual

radio stations were operating in 1992. As of May 31, 1997, official

Commission records indicate that 12,156 radio stations were operating,

of which 7,342 were FM stations.

Thus, the proposed rules will affect many of the approximately

1,558 television stations; approximately 1,200 of those stations are

considered small businesses. Additionally, the proposed rules will

affect some of the 12,156 radio stations, approximately 11,670 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 proposals contained in this

item.

The number of entities that may seek to obtain a television or

radio broadcast license is unknown. We invite comment on this number.

Any Significant Alternatives Minimizing the Impact on Small

Entities and Consistent with the Stated Objectives

This NPRM solicits comment on a variety of alternatives discussed

herein. Any significant alternatives presented in the comments will be

considered. The Commission believes that the proposed rules and

policies may be necessary to promote the speedy deployment of digital

television service and the prompt recovery of broadcast frequency

spectrum for reallotment. We seek comment on this belief.

Report to Small Business Administration

The Commission shall send a copy of this Initial Regulatory

Flexibility Analysis along with this Notice to the Small Business

Administration pursuant to the RFA.

List of Subjects in 47 CFR Part 1

Television, Radio broadcasting.

Federal Communications Commission.

Roy J. Stewart,

Chief, Mass Media Bureau.

[FR Doc. 98-6861 Filed 3-19-98; 8:45 am]

BILLING CODE 6712-01-P