Main Studio and Local Public Inspection Files for Broadcast Stations

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 97-138; FCC 99-118]

Main Studio and Local Public Inspection Files for Broadcast

Stations

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document revises and clarifies the Commission's rules

regarding the main studio and local public inspection files of

broadcast television and radio stations. The intended effect of this

action is to amend the retention requirements as well as other required

changes to the Commission's rules.

EFFECTIVE DATE: August 2, 1999.

FOR FURTHER INFORMATION CONTACT: Victoria McCauley, Policy and Rules

Division, Mass Media Bureau (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's MO&O,

FCC 99-118, adopted May 25, 1999; released May 28, 1999. The full text

of the Commission's MO&O is available for inspection and copying during

normal business hours in the FCC Dockets Branch (Room TW-A306), 445

12th St. S.W., Washington, D.C, 20554. The complete text of this MO&O

may also be purchased from the Commission's copy contractor,

International Transcription Services (202) 857-3800, 1231 20th St.,

N.W., Washington, D.C. 20036.

Synopsis of Memorandum Opinion and Order

1. In the Report and Order (``R&O''), 63 FR 49487 (September 16,

1998), in this proceeding, we amended our rules regarding the main

studio and local public inspection file for broadcast stations. In

doing so, our goals were twofold: to strike an appropriate balance

between ensuring that the public has

[[Page 35942]]

reasonable access to each station's main studio and public file while

minimizing regulatory burdens on licensees, and to adopt clear rules

that are easy to administer and understand. Consistent with these

goals, we provided broadcast licensees additional flexibility in

locating their main studios, required the collocation of public files

and main studios, and clarified and updated our rules regarding the

required contents of the public inspection files. In addition, we

adopted an accommodation that requires stations to make available, by

mail upon telephone request, photocopies of documents in the public

file, including our revised version of ``The Public and Broadcasting.''

2. We have received five partial or limited petitions for

reconsideration of the R&O in this proceeding and one opposition to the

petitions for reconsideration. In response to these petitions for

reconsideration, we take this opportunity to affirm, revise, or clarify

certain of our actions. We will modify the rules by amending the scope

of the accommodation and by revising slightly and clarifying the

document retention requirements. We also address other requested

changes.

A. Accommodation

3. In the R&O, we amended section 73.1125 of our rules to allow a

station to locate its main studio at any location that is within either

the principal community contour of any station, of any service,

licensed to its community of license or 25 miles from the reference

coordinates of the center of its community of license, whichever it

chooses. We also amended sections 73.3526 and 73.3527 of our rules to

require all stations to locate their public files, which include their

political files, at their main studios. Because these rule changes

could result in a station's public file being located a greater

distance from its community of license than previously permitted, as an

accommodation, we also amended sections 73.3526 and 73.3527 to require

all stations to make available, by mail upon telephone request,

photocopies of documents in the public and political file. As adopted,

the rules continue to provide that the station may require the person

requesting the copies to pay the reasonable cost of photocopying in

advance and require the station to pay postage. To facilitate requests

for public file documents over the telephone, the new rules also

require stations to provide callers, if they wish to receive one, a

copy of the new edition of ``The Public and Broadcasting'' free of

charge. We did not amend the requirements regarding program origination

capability, staff presence or toll-free service.

4. One petitioner argues that some of the newly adopted provisions

are unduly burdensome and should be substantially modified or deleted

and that the Administrative Procedure Act, the Paperwork Reduction Act

and the Regulatory Flexibility Act bar the Commission from lawfully

adopting any of the new requirements. Another petitioner argues that

the accommodation should be retained as adopted, and apply to all

broadcasters stations equally.

5. Discussion. We will retain the accommodation with modifications

as discussed below. We continue to believe that the accommodation is

necessary and reasonable now that broadcasters have much more

flexibility in locating their public files. We disagree with State

Broadcasters that our R&O in this proceeding was contrary to the APA,

the PRA or the RFA. The R&O was based on a thorough record developed

after a full opportunity for comment on the proposed changes to the

rules in question. Our decision reasonably met our stated goals of

``balancing between ensuring that the public has reasonable access to

each station's main studio and public file and minimizing the

regulatory burdens on licensees.'' Our decision was also based on the

``bedrock obligation'' of each broadcast licensee to serve the needs

and interests of its community of license. The PRA and RFA require

agencies to ensure that they do not impose unnecessary burdens on

members of industry, including small businesses and the public.

However, neither the PRA nor the RFA requires any administrative agency

to reduce burdens if to do so would undermine the agency's ability to

fulfill the obligations of its originating statute. Pursuant to the PRA

and RFA, we sought comment on the paperwork burdens and the regulatory

burdens on small businesses in the Notice of Proposed Rule Making and

received no comments. We also analyzed these burdens in the R&O and

found that our actions properly balanced the needs of the entities

involved and the public, and imposed no unnecessary burdens. In

addition, the rules were approved by the Office of Management and

Budget, which specifically analyzed any paperwork burdens.

6. At the time we adopted the R&O, we considered several different

methods of accommodation and weighed the comparative burdens and public

benefits associated with each. Our determination struck a reasonable

balance among the competing proposals raised in the record. We

considered such proposals as requiring courier, fax or e-mail delivery,

or requiring stations to make their studio available at non-business

hours by appointment and found that such proposals were not reasonable

either because they would not serve the public universally or would

unduly burden stations. We also considered a proposal to require

stations either to provide transportation to requesters, or to

transport the public file to them, and determined that such

accommodations would be unreasonably burdensome to station owners. On

the other hand, we considered such suggestions as allowing a licensee

to choose the actual method of public access, and concluded that this

approach would not assure reasonable accommodations for the public. We

found that the accommodation furthers our stated goals of balancing

public access with regulatory burden and ease and clarity of

administration. We considered comments arguing, as does State

Broadcasters in its Petition, that the accommodation could discourage

stations from locating outside the community, and that it could, if not

limited, result in frivolous or harassing requests. As we noted in the

R&O, we believe that the rules as adopted address many of these

concerns. For example, a requestor is entitled to ``The Public and

Broadcasting,'' which should provide adequate guidance to make an

intelligent request for information. In addition, the rules regarding

public file contents, as revised, will be much easier to understand and

administer for both licensees and the public seeking information.

Again, as we stated in the R&O, the person seeking documents from a

station's public file will continue to be required to pay the

reasonable expenses of photocopying, which should reduce the

possibility for abusive and frivolous requests.

7. In response to concerns raised by various petitioners, we will

nonetheless modify the accommodation in several respects as discussed.

The modifications we adopt will more narrowly tailor the accommodation,

and thereby lessen regulatory burdens without undermining the public's

ability to acquire reasonable access to relevant information about a

broadcast station.

8. Geographic Limitation. On reconsideration, we will revise

sections 73.3526(c)(2) and 73.3527(c)(2) to require that only those

stations whose public file is located at a main studio outside the city

limits of the community of license be required to provide the

accommodation. We believe that this narrowing of the accommodation is

justified. Stations that remain in the

[[Page 35943]]

community of license should be reasonably accessible to the public they

serve. Indeed, we adopted the accommodation in the R&O in order to

compensate for the fact that broadcasters may now move their public

files to more distant locations outside the community of license. If a

station chooses to locate its main studio and public file in its

community of license under the new rules, the public file will be

reasonably accessible just as before, and there should be no need for

the accommodation. We will not, however, exempt from the accommodation

stations whose public files are outside the community at the main

studio pursuant to a waiver granted prior to our R&O in this

proceeding. Under the new rule, these stations no longer require a

waiver and thus should be treated in the same manner as other stations

in the same circumstances.

9. We also will revise sections 73.3526(c)(2) and 73.3527(c)(2) to

limit the required mailing area for documents requested by phone to the

geographic service area of the station in question. Stations will not

be required to provide this accommodation to persons outside this area.

For a TV station, this area is defined by the area encompassed by the

station's Grade B contour; for a radio station, it is the area within

the station's protected service contour. This will clarify the scope of

the accommodation requirement and minimize disputes over who is

eligible for the accommodation. We nonetheless encourage, but will not

require, stations to make the accommodation to persons living outside

that immediate service area who may be able to view or listen to the

station. We urge stations to act in good faith to accommodate viewers

and listeners who reasonably claim to receive their signal even though

they reside outside the relevant service contour.

10. We believe that narrowing the accommodation in this fashion is

consistent with the underlying goals of this proceeding which focused

on ensuring the continued access of local viewers and listeners of each

station, even where a station relocates its main studio outside of its

community of license. Given the limited purpose of the accommodation,

we believe the accommodation should be tailored to the listeners and

viewers that are served by the station. We acknowledge that, as MAP,

et. al., have pointed out, the accommodation, if not limited to a

station's geographic service area, could offer collateral benefits,

such as mail access to local citizens' attorneys who happen to be

located outside the service area, or allowing citizens to compare

performance of local broadcasters with distant broadcasters, or

enabling national organizations and academics to collect information

from broadcasters nationwide. Such considerations, however, are beyond

the scope of this process and we do not address them here.

11. Specific Guidelines. In the R&O we granted stations the ability

to require payment for copies prior to mailing them and noted that

stations would be required to send a copy of ``The Public and

Broadcasting'' free of charge to anyone requesting it. We declined to

impose a numerical limit on accommodation requests a member of the

public could make.

12. We decline to adopt the petitioners' proposals that we further

delineate the types and amount of information stations are to give over

the telephone. We reiterate our determination in the R&O. Therein, we

gave an example of the type of telephone service we envisioned:

stations, if asked, should describe to a caller the number of pages and

time periods covered by a particular ownership report or children's

television programming report, or the types of applications actually

maintained in the station's public file and the dates they were filed

with the FCC. As we stated, we also encourage stations to place the

descriptions of their public files on the Internet. Again, we will not

set a numerical limit on telephone requests. Particularly with the

modifications we make to the accommodation today, we do not expect

licensees to be unduly burdened by this requirement. Nor are we

convinced that citizen requests for information will be made in bad

faith to any significant extent, or that stations will be overwhelmed

by such requests. A licensee, may, of course, seek a waiver or special

relief from the Commission in the event such circumstances arise.

13. We also decline to adopt or recommend a specific form to be

used by stations when fulfilling telephone requests. Stations may, of

course, at their discretion, use forms to streamline the processing of

requests and collection of associated charges. In addition, we will

retain our original requirement that stations pay the cost of postage

for mailing the documents requested by telephone. We believe this cost

is reasonable considering the flexibility that the new rules grants to

stations and the additional cost to the public of travelling to the

more distant main studio location in order to view the file in person.

14. Exempt Political File. The R&O made no substantive change to

the political file rules. The only change in procedure regarding the

political file was that requests for the political file's contents were

included in the accommodation just as any other aspect of the public

file would be. Prior to the effective date of the rules, we granted a

temporary and partial stay of the effective date of the accommodation

provision only as it applied to requests to gain access to the contents

of stations' political files. This effective date was stayed only until

the end of the Fall 1998 election season, which occurred only days

after the actual effective date of the rules.

15. We will grant petitioners' request and not require that

stations extend the accommodation to requests for the political file.

We believe that this change balances the needs of broadcasters with the

needs of the public. A petitioner states that its experience shows that

candidates or their representatives are the heaviest visitors to a

station's public file. These persons may make daily or even more

frequent requests for political file information during a campaign,

because the information is in flux throughout each day of the campaign.

As we recognized at the time we granted the temporary stay, a heavy

volume of telephone calls could unduly disrupt a station's operations.

This volume of telephone requests could occur in any election season.

In exempting the political file from the accommodation, we also expect

that candidates or their representatives, when seeking political file

information in their professional capacities, are more likely to have

greater resources and be more able to access the main studio and public

file in person than would an average citizen. Since candidates or their

representatives, rather than the general public, are the persons most

likely to be affected by this exemption, we do not believe that the

exemption will adversely affect the public interest.

B. Document Retention Requirements

16. Applications. In the R&O, the Commission amended sections

73.3526 and 73.3527 to provide that all applications be retained in a

station's public file during the period each application is pending or,

if granted pursuant to a waiver, during the period that the waiver

remains in effect. Those rules had previously contained confusing

requirements for retention which many parties requested we revise. In

the R&O we revised the rule to include all applications, but we

clarified and shortened the period of retention to the period during

which an application remains pending. We also

[[Page 35944]]

changed the retention period of applications granted pursuant to a

waiver to the period during which the waiver is in effect.

17. We affirm sections 73.3526 and 73.3527 as revised in the R&O.

We are not persuaded by the argument that we should adhere to the

spirit of the original public file proceeding in 1965 to require

retention only of those applications that require local public notice.

Members of the public may very well have an interest in reviewing all

of a licensee's pending applications, even those not placed on local

public notice. Moreover, our amendment to this rule to include all

applications in the public file simplifies this rule greatly. We

believe that the addition of some applications will not burden

stations, because the number of additional applications is small, and

inclusion of all applications relieves licensees and permitees of the

need to seek counsel regarding the question of which applications need

be kept. In addition, we amended this rule to change the retention

period of applications to the period during which they are pending

before the Commission or the courts. This shortens and clarifies the

retention period which previously had required that applications be

retained throughout the renewal period during which they were filed.

18. With respect to retaining applications granted pursuant to a

waiver, we reaffirm our decision to require retention of all

applications granted pursuant to a waiver for the duration of the

waiver's applicability. As we stated in the R&O, we believe these

applications must remain available to the public for the entire period

the waiver is in effect to ensure the public can assist the FCC in

evaluating licensee performance in light of the representations made in

the application and waiver request. We also believe that the burden of

retaining the application is outweighed by the need to keep an accurate

and complete record of a station's operations. We decline to apply this

requirement only to particular types of waivers. To do so could

undermine the public's ability to examine licensee performance under

the waiver, and could also unduly complicate what should be a

straightforward and easy-to-apply requirement.

19. Electronic Mail. In the R&O, we amended our rules to require

licensees to retain e-mail messages as well as traditional printed

communications. We will modify this requirement. Section 73.3526(e)(9)

was modified to extend the retention requirements to the same sort of

e-mail communications as have historically applied to traditional mail

communications. We recognize that personal e-mails in the workplace

have become quite common, much more so than letters, and that our

requirement may have had an overbroad result. To ensure that only e-

mails regarding the operation of the station be retained, we will limit

the e-mail retention requirement to e-mails sent to a publicly

advertised e-mail address, or to station management, and we will

specifically exclude the personal e-mails of staff members. We expect

this exclusion of personal e-mail to avoid the possible overbroad

effect of including e-mail sent to a lower level employee that might

contain an inconsequential reference to station operation. We encourage

stations to advertise e-mail addresses to which comments and

suggestions may be sent, but we do not require this.

20. Donors' Lists. Section 73.3527(a)(8) of our rules requires that

noncommercial educational stations maintain the lists of donors

supporting specific programs. In the R&O, we considered but denied a

petition asking us to delete this requirement from the public file.

That petition argued that this provision was obsolete because it is

rooted in the program log requirements that were deleted in 1980. This

issue was again raised on reconsideration.

21. We disagree that this provision is obsolete. As we stated in

the R&O, the donor list requirement is tied to our sponsorship

identification requirements under Section 317 of the Act and section

73.1212 of our rules, which require noncommercial educational stations

to acknowledge donors. The basic premise of these provisions is that

the public is entitled to know by whom they are being persuaded. The

donor list requirement for noncommercial licensees is related to the

Commission's determination that noncommercial educational stations are

permitted to limit their on-air program sponsorship announcements to

major donors or underwriters only, but must maintain a complete donor

list in their public files. Although donor lists originated as an

optional alternative to logging, they were deliberately retained when

the logging requirements were deleted, and stations retained their

obligations to identify donors in accordance with section 73.1212.

Parties had ample notice and opportunity to comment on this provision

in this Docket, and their positions were given full consideration. The

donor lists provide the only complete information regarding program

sponsorship on noncommercial stations, and therefore will be retained.

We note that the list for each program must be maintained for two years

after broadcast of the program.

22. With respect to the definition of ``donors supporting specific

programs,'' we will apply the same definition as applies to

``sponsors'' under the sponsorship identification provisions. That is,

we expect licensees under Section 317(a)(2)(c) of the Act to exercise

``reasonable diligence'' to obtain the requisite information to assure

that a proper identification is made. We note in this regard that

section 73.1212(e) requires licensees to disclose the ``true identity''

of those on whose behalf a payment is made. In making this

determination, unless furnished with ``credible, unrefuted evidence''

that a sponsor is acting on behalf of a third party, the broadcaster

may rely on the plausible assurances of the person paying for the time

that they are the true sponsor.

23. Letters concerning violent programming. Section 73.1202 of our

rules requires that licensees of commercial AM, FM and Television

broadcast stations retain in their public files for three years all

written comments and suggestions received from the public regarding

station operation. Section 73.3526 implements this provision with

similar language. There is no similar provision requiring licensees of

noncommercial educational stations to retain such written

correspondence. In the R&O we nonetheless required that all

noncommercial television licensees include in their renewal

applications a summary of any letters they receive regarding violent

programming even though these licensees are not required to retain such

letters themselves under our rules. We based this determination on

Section 204(b) of the Telecommunications Act of 1996 (``1996 Act'').

This section amended Section 308(d) of the Communications Act of 1934

to require that

[e]ach applicant for the renewal of a commercial or noncommercial

television license shall attach as an exhibit to the application a

summary of written comments and suggestions received from the public

and maintained by the licensee (in accordance with Commission

regulations) that comment on the applicant's programming, if any,

and that are characterized by the commenter as constituting violent

programming.

In the R&O we found that this requirement was appropriate in light

of Congress' concern with violent programming, and would help ensure

that the Commission and the public are kept informed of concerns raised

by the public about such programming on both commercial and

noncommercial stations.

[[Page 35945]]

24. A petitioner argues that since, under the Commission's rules,

noncommercial stations are not required to maintain letters from the

public, and the Commission has not revised this requirement, Section

308(d) does not contemplate a summary of letters to be filed by any

noncommercial educational television licensee at renewal.

25. On reconsideration, we grant petitioner's request. Section

308(d) requires licensees to summarize only those letters maintained by

licensees ``in accordance with Commission regulations.'' In the R&O, we

did not amend section 73.3527 to require noncommercial educational

licensees to retain letters from the public regarding violent

programming. Since noncommercial educational licensees are not required

to maintain these letters under our rules, we will not require them to

file a summary of letters received with their renewal, even if they

voluntarily retain the letters they receive. Without such a limitation,

noncommercial stations would be subject to the more onerous burden of

summarizing letters received during the entire renewal term while

commercial broadcasters would be required to summarize only those

letters received during the last three years of their renewal term. We

believe this is consistent with the plain meaning of the statute. We

also note that reports regarding violent television programming have

raised little concern about the programming aired by noncommercial

educational television stations.

26. Ownership Reports for Noncommercial Educational Stations. The

R&O made an editorial amendment to the public file rule for

noncommercial educational stations, 47 CFR 73.3527, to add the

requirement, previously omitted, that those stations retain in their

public files, a copy of their most recently filed complete ownership

report (FCC Form 323-E) ``together with any subsequent supplemental

report or statement filed with the FCC certifying that the current

report is accurate. * * *'' We made this change to reflect the same

requirement in the rule governing ownership reports, 47 CFR 73.3615.

27. We will retain the rule as revised. In the Mass Media

Streamlining R&O, we amended section 73.3615 to require noncommercial

educational stations to file ownership reports with the same frequency

as commercial stations are required to file. The requirement in section

73.3527 that noncommercial educational licensees retain in the public

file the most recent, complete ownership report on file with the FCC

for the station, and a certification that the current report is

accurate, is fully consistent with this amendment to section 73.3615.

C. Miscellaneous Matters

28. Issuance of ``The Public and Broadcasting''. In the R&O we

stated that the Commission's staff would issue a revised version of the

broadcast manual, ``The Public and Broadcasting.'' One petitioner asks

that the Commission solicit public comment on this manual prior to

issuing it.

29. We do not believe that it is necessary to solicit public

comment on ``The Public and Broadcasting.'' The manual is merely a

summary of our existing policies and rules relating to broadcast

stations, including the changes to the rules enacted in this docket. It

will be revised from time to time and issued on the Commission's web

page so that stations can keep the most updated version in their public

files. We disagree that this document requires notice and comment. The

manual will not effectuate any rule change, but merely provides a

general summary of our rules and policies for the public.

30. Official Source for City-Center Coordinates. In the R&O we

amended the rule governing main studio location to allow a station to

locate its main studio at any location that is within either the

principal community contour of any station, of any service, licensed to

its community of license or 25 miles from the reference coordinates of

the center of its community of license. For Commission licensing

purposes as set forth in section 73.208 of our rules, a community's

reference coordinates are generally the coordinates listed in the

United States Department of Interior publication entitled ``Index to

the National Atlas of the United States'' (``Atlas Index''). An

alternative reference point, if none is listed in the Atlas Index, are

the coordinates of the main post office. A petitioner argues that the

Atlas Index is out-of-date and out-of-print and thus requires

replacement.

31. We are not amending section 73.208(a)(1) at this time. We do

not believe that this change is necessary at this time and is beyond

the scope of this proceeding as it would affect the use of city-center

coordinates for other licensing purposes. We do not anticipate many

instances involving a discrepancy with city-center coordinates. In the

event problems with community coordinates arise, we will address them

on a case-by-case basis.

32. Main Studio Issues. One petitioner asks that we clarify that

stations operating pursuant to a main studio or public file waiver

prior to the R&O in this proceeding who are now in compliance with our

rules, be relieved of special obligations placed on them as a condition

of grant of the waiver. It cites to obligations such as regular visits

to the community by station management, establishment of a Citizens

Advisory Board to meet with station management twice a year, coverage

of local events in programming, maintenance of the public file in the

community and providing toll-free telephone service to the community

which it admits are a restatement of a licensee's obligation under any

circumstances. To address these concerns, we clarify that stations

whose waivers are moot because their operations now are in compliance

with the Commission's rules with respect to main studio location are no

longer subject to any conditions placed on them by a previously granted

waiver of the main studio or public file rules. These stations are,

however, of course obligated to comply with all Commission rules,

including those regarding toll-free telephone service and coverage of

local issues, just as all other licensees.

33. Another petitioner filed a Petition for Clarification or

Declaratory Ruling requesting that noncommercial educational stations

that operate as satellite stations pursuant to a main studio waiver be

allowed to locate their public files at the main studio of the main

``feeder'' station. In the R&O, we stated that all stations, including

those operating pursuant to a main studio waiver, would be required to

locate their public files at their main studios, wherever located. We

hereby clarify that this includes noncommercial educational satellite

stations operating under a main studio waiver. These stations must

maintain their public files at the main studios of the stations at

which their programming is originated, and must provide the

accommodation to listeners or residents as required under the amended

rules.

III. Administrative Matters

34. 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 no new or modified reporting and recordkeeping

requirements or burdens on the public.

35. Supplemental Final Regulatory Flexibility Analysis. As required

by the Regulatory Flexibility Act (RFA), an Initial Regulatory

Flexibility Analysis (``IRFA'') was incorporated into the Notice of

Proposed Rulemaking, 62 FR 32061 (June 12, 1997), in this

[[Page 35946]]

proceeding. The Commission sought written public comment on the

expected impact of the proposed policies and rules on small entities in

the Notice, including comments on the IRFA. Based on the comments in

response to the Notice, the Commission included a Final Regulatory

Flexibility Analysis (``FRFA'') into the R&O. While no petitioners

seeking reconsideration of the R&O raised issues directly related to

the FRFA, the Commission is amending the rules in a manner that may

affect small entities. Accordingly, this Supplemental Regulatory

Flexibility Analysis (``Supplemental FRFA'') addresses those amendments

and conforms to the RFA.

36. Need for Action and Objectives of the Rule: The need for and

objectives of the modifications adopted in this MO&O are the same as

those discussed in the Final Regulatory Analysis in the R&O. The main

studio and public inspection file rules seek to ensure that members of

the local community have access to the broadcast stations that are

obligated under the FCC's rules to serve them. Our goals here are to

relieve undue regulatory burdens on licensees while retaining their

basic obligations to serve their communities of license, and adopt a

rule that is clear and easy to administer.

B. Summary of Significant Issues Regarding FRFA Raised in Petitions for

Reconsideration

37. No parties address the FRFA in their petitions for

reconsideration, or any subsequent filings. We note, however, that

State Broadcasters claim that the Regulatory Flexibility Act bars the

Commission from lawfully adopting any of the new requirements. They

argue that the burdens of the ``new requirements'' will violate the

RFA, again because they do not provide an exemption for any

broadcasters, particularly those who choose not to relocate their

public files. Noting how they believe the accommodation provisions will

particularly affect small broadcasters, they allege that the Commission

has not limited the regulatory burdens placed on small businesses as

required by the RFA, and therefore that the public file/political file

requirements contradict the intent of the RFA. Our action today

modifying the accommodation will alleviate some of the concerns

expressed by State Broadcasters. We exempt broadcasters whose main

studios and public files are located in the community of license, and

narrow the scope of the mailing requirement of the accommodation to

persons within the service area of the station. The first exemption

will alleviate the burden on some small broadcasters and the second

will relieve all broadcasters, including small broadcasters.

C. Description and Estimate of the Number of Small Entities to Which

the Rules Will Apply

38. Under the RFA, small entities may 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 4 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.''

39. As noted, an FRFA was incorporated into the R&O. In that

analysis, the Commission described in detail the various kinds of small

business entities that may be affected by these rules. In this MO&O, we

address petitions for reconsideration filed in response to the R&O. In

this Supplemental FRFA, we incorporate by reference the description and

estimate of the number of small entities from the previous FRFA in this

proceeding.

D. Description of Reporting, Recordkeeping and Other Compliance

Requirements

40. The MO&O adopts modifications to the rules adopted in the R&O,

which further modify existing recordkeeping requirements. The MO&O

declines to repeal the accommodation. The MO&O, however, narrows the

accommodation to require that only those stations whose public file is

located at a main studio outside the city limits of the community of

license provide the accommodation. It also revises the accommodation to

limit the required mailing area for documents requested by phone to the

geographic service area of the station in question. In addition, the

item specifically exempts from the accommodation requests for documents

from the political file.

41. Regarding document retention, the MO&O declines to adopt a

requirement that stations retain only applications requiring local

public notice. It also declines to delete the rules requiring

noncommercial educational stations to retain donors' lists and

ownership certifications of ``no change.'' The MO&O amends the rule

requiring retention of all e-mails pertaining to station operation and

limits the retention requirement to e-mails pertaining to station

operation sent to a publicly advertised e-mail address, or to station

management, specifically excluding the personal e-mails of staff

members.

42. The MO&O also declines to solicit public comment on ``The

Public and Broadcasting'' prior to its issuance, and denies a request

that we amend the rule designating the official source for city-center

coordinates. In addition, the draft deletes the requirement in the R&O

that noncommercial educational stations include with their renewal a

summary of letters they received through the license term concerning

violent programming. It clarifies that stations that were previously

granted waivers and that now operate in compliance with the rules are

no longer bound by any of the terms of the waiver. It further clarifies

that stations operating under a main studio waiver, especially

satellite noncommercial educational stations, are required to maintain

their public files at their main studio at the station at which their

programming originates and must comply with the terms of the

accommodation as amended.

43. The MO&O restricts the application of the accommodation by

geographic scope and volume of material. It reduces which materials are

required to be kept in the public file, and clarifies the required

retention period for public file materials. No special skills will be

necessary to comply with these requirements. This reduces the burden on

licensees, both by clearly defining what must be retained, and the

period during which it must be retained.

Considered:

44. By narrowing the accommodation to require that only those

stations whose public file is located at a main studio outside the city

limits of the community of license provide the accommodation, the MO&O

reduces burdens on small entities who choose not to relocate outside

their communities of license. By limiting the accommodation to mailing

to persons within the geographic service area of the station in

question, the MO&O reduces burdens on all licensees, including small

entities. In addition, the item specifically exempts from the

accommodation requests for documents

[[Page 35947]]

from the political file, which will reduce burdens.

45. Amending the rule to exclude personal e-mail of employees and

restricting the retention requirement to e-mail sent to a publicized

box or to station management reduces burdens on small entities. By

relieving stations that were previously granted waivers and that now

operate in compliance with the rules of the conditions of their waivers

we reduce burdens on small entities who previously were required to

take specific steps to accomplish community outreach to are no longer

bound by any of the terms of the waiver. By clarifying that stations

operating under a main studio waiver, especially satellite

noncommercial educational stations, are required to maintain their

public files at their main studio at the station at which their

programming originates and must comply with the terms of the

accommodation as amended, we reduce burdens on those stations of

maintaining separate public files.

F. Federal Rules that May Duplicate, Overlap, or Conflict With the

Proposed Rules

46. None.

47. Report to Congress: The Commission will send a copy of the

MO&O, including this SFRFA, 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 will send a copy of

the MO&O, including SFRFA, to the Chief Counsel for Advocacy of the

Small Business Administration. A copy of the Main Studio and Public

Inspection File MO&O and SFRFA (or summaries thereof) will also be

published in the Federal Register. See 5 U.S.C. 604(b).131.

Ordering Clauses

48. Accordingly, it is ordered that, pursuant to the authority

contained in Sections 154, 303, and 307 of the Communications Act of

1934, as amended, 47 U.S.C. 154, 303, and 307, 47 CFR 73.3526 and

73.3527 are amended, as set forth in the rule changes.

49. It is further ordered that, the rule changes set forth shall be

effective 30 days after publication in the Federal Register.

50. It is further ordered that the Petitions for Reconsideration in

this proceeding are granted to the extent described, and are otherwise

denied.

51. It is further ordered that the Commission's Office of Public

Affairs, Reference Operations Division, shall send a copy of this MO&O,

including the Supplementary Final Regulatory Flexibility Analysis, to

the Chief Counsel for Advocacy of the Small Business Administration.

52. It is further ordered that upon release of this MO&O, this

proceeding is hereby terminated.

List of Subjects in 47 CFR Part 73

Radio broadcasting, Television broadcasting.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Part 73 of Title 47 of the Code of Federal Regulations is amended

as follows:

PART 73--RADIO BROADCAST SERVICES

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

Authority: 47 U.S.C. 154, 303, 334, and 336.

2. Sec. 73.3526 is amended by revising paragraphs (c)(2), and

(e)(9) to read as follows:

Sec. 73.3526 Local public inspection file of commercial stations.

* * * * *

(c) * * *

* * * * *

(2) The applicant, permittee, or licensee who maintains its main

studio and public file outside its community of license shall:

(i) Make available to persons within its geographic service area,

by mail upon telephone request, photocopies of documents in the file

(see Sec. 73.3526(c)(1)), excluding the political file (see

Sec. 73.3526(e)(6)), and the station shall pay postage;

(ii) Mail the most recent version of ``The Public and

Broadcasting'' to any member of the public that requests a copy; and

(iii) Be prepared to assist members of the public in identifying

the documents they may ask to be sent to them by mail, for example, by

describing to the caller, if asked, the period covered by a particular

report and the number of pages included in the report.

Note to Paragraph (c)(2): For purposes of this section,

geographic service area includes the area within the Grade B contour

for TV, 1 mV/m contour for all FM station classes except .7 mV/m for

Class B1 stations and .5 mV/m for Class B stations, and .5 mV/m

contour for AM stations.

* * * * *

(e) * * *

* * * * *

(9) Letters and e-mail from the public. (i) All written comments

and suggestions received from the public regarding operation of the

station, unless the letter writer has requested that the letter not be

made public or when the licensee feels that it should be excluded from

public inspection because of the nature of its content, such as a

defamatory or obscene letter. Letters and electronic mail messages

shall be retained for a period of three years from the date on which

they are received by the licensee.

(ii) For purposes of this section, written comments and suggestions

received from the public include electronic mail messages transmitted

via the internet to station management or an e-mail address publicized

by the station. Personal e-mail messages sent to station employees need

not be retained. Licensees may retain e-mails either on paper or in a

computer file. Licensees who choose to maintain a computer file of e-

mails may make the file available to the public either by providing the

public with access to a computer terminal at the location of the public

file, or providing the public with a copy of such e-mails on computer

diskette, upon request. In the case of identical communications,

licensees and permittees may retain one sample copy of the letter or

electronic mail message together with a list identifying other parties

who sent identical communications.

* * * * *

3. Sec. 73.3527 is amended by revising paragraphs (c)(2), and

(e)(9), and by revising the first sentence of paragraph (e)(4) to read

as follows:

Sec. 73.3527 Local public inspection file of noncommercial educational

stations.

* * * * *

(c) * * *

* * * * *

(2) The applicant, permittee, or licensee who maintains its main

studio and public file outside its community of license shall:

(i) Make available to persons within its geographic service area,

by mail upon telephone request, photocopies of documents in the file

(see Sec. 73.3527(c)(1)), excluding the political file (see

Sec. 73.3527(e)(5)), and the station shall pay postage;

(ii) Mail the most recent version of ``The Public and

Broadcasting'' to any member of the public that requests a copy; and

(iii) Be prepared to assist members of the public in identifying

the documents they may ask to be sent to them by mail, for example, by

describing to the caller, if asked, the period covered by a

[[Page 35948]]

particular report and the number of pages included in the report.

Note to Paragraph (c)(2): For purposes of this section,

geographic service area includes the area within the protected

service contour in a particular service: Grade B contour for TV, 1

mVm contour for all FM station classes except .7 mV/m for Class B1

stations and .5 mV/m for Class B stations, and .5 mV/m contour for

AM stations.

* * * * *

(e) * * *

* * * * *

(4) Ownership reports and related materials. A copy of the most

recent, complete ownership report filed with the FCC for the station,

together with any subsequent statement filed with the FCC certifying

that the current report is accurate, and together with all related

material. * * *

* * * * *

(9) Donor lists. The lists of donors supporting specific programs.

These lists shall be retained for two years from the date of the

broadcast of the specific program supported.

* * * * *

[FR Doc. 99-16831 Filed 7-1-99; 8:45 am]

BILLING CODE 6712-01-U