Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 73

[MB Docket No. 05-210; FCC 06-163]

Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services

AGENCY:

Federal Communications Commission (FCC).

ACTION:

Final rule.

SUMMARY:

In this document, the Commission adopted a number of procedures and procedural changes designed to streamline the process of allocating new FM channels and modifying the communities of license of existing radio stations, and to reduce current backlogs in proceedings to amend the FM Table of Allotments. In the R&O, the Commission also announced that it would lift a freeze on all new petitions to amend the FM Table

of Allotments, as of the effective date of the R&O.

DATES:

Effective January 19, 2007.

FOR FURTHER INFORMATION CONTACT:

Peter Doyle, Chief, Media Bureau, Audio Division, (202) 418-2700 or

Peter.Doyle@fcc.gov

; Thomas Nessinger, Attorney-Advisor, Media Bureau, Audio Division, (202) 418-2700 or

Thomas.Nessinger@fcc.gov

.

For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams at 202-418-2918, or via the Internet at

Cathy.Williams@fcc.gov

.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act of 1995 Analysis

The Report and Order (“R&O”) contains new and modified information collection requirements, which were proposed in the NPRM and are subject to the Paperwork Reduction Act of 1995 (“PRA”).

1

These information collection requirements were submitted on July 19, 2005, to the Office of Management and Budget (“OMB”) for review under Section 3507(d) of the PRA. In addition, the general public and other Federal agencies were invited to comment on these information collection requirements in the NPRM. The Commission further notes that pursuant to the Small Business Paperwork Relief Act of 2002, it previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” The Commission received no comments concerning these information collection requirements. On September 15, 2005, the Commission obtained OMB approval for these information collection requirements, encompassed by OMB Control No. 3060-0027. This R&O adopts the information collection requirements, as proposed.

1

The Paperwork Reduction Act of 1995 (“PRA”), Pub. L. 104-13, 109 Stat 163 (1995) (codified in Chapter 35 of title 44 U.S.C.).

Because, as detailed in the R&O, the Commission extends its new community of license minor modification procedures to FM NCE licensees and permittees, FCC Form 340 must be modified to accommodate the new information collection requirements of those procedures. The procedural requirements for FM NCE applicants for change of community of license will become effective after approval by OMB. The Commission published a separate

Federal Register

Notice seeking public comment on this new information collection requirement on November 22, 2006 (

see

71 FR 67581 (November 22, 2006)). Upon OMB approval, the Commission will issue a public notice announcing the effective date of this rule.

This is a synopsis of the Commission's Report and Order (R&O), FCC 06-163, adopted November 3, 2006, and released November 29, 2006. The full text of the R&O is available for inspection and copying during regular business hours in the FCC Reference Center, 445 Twelfth Street, SW., Room CY-A257, Portals II, Washington, DC 20554, and may also be purchased from the Commission's copy contractor, BCPI, Inc., Portals II, 445 Twelfth Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. via their Web site,

http://www.bcpi.com

, or call 1-800-378-3160. This document is available in alternative formats (computer diskette, large print, audio record, and Braille). Persons with disabilities who need documents in these formats may contact Brian Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or via e-mail at

Brian.Millin@fcc.gov

.

Synopsis of Order

1. With this Report and Order (“R&O”), the Commission makes certain changes to its procedures for allotting and assigning channels, classes, and communities of license for AM and FM broadcast stations, as proposed in the original Notice of Proposed Rule Making (“NPRM”) in this proceeding.

Revision of Procedures Governing Amendments to FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services, Notice of Proposed Rule Making

, 20 FCC Rcd 11169 (2005). Specifically, the Commission makes changes of community of license for commercial full-power AM standard band and commercial and noncommercial educational (“NCE”) full-power FM broadcast stations a minor modification, to be accomplished by first come-first served minor modification application, subject to certain procedural requirements described below. To accommodate this change, the FM Table of Allotments, 47 CFR 73.202, shall henceforth contain only vacant allotments, and authorized full-power non-reserved band FM facilities already occupying allotments shall be listed only in the Media Bureau's Consolidated Data Base System (“CDBS”). As it does now, CDBS shall reflect the authorizations granted to those broadcasters operating on the listed channels and communities, and which are entitled to protection under our current rules. The Commission further adopts the proposal that it require allocations proponents simultaneously to file Form 301 applications with their allocations proposals, to submit the designated Form 301 filing fee, and to certify on Form 301 that they intend to apply to participate in auction bidding for the allotment should their proposal be adopted. The Commission also adopts the proposal to modify its rules to allow electronic filing of allocations documents. The Commission also lifts the current freeze on the filing of new petitions to amend the FM Table of Allotments, as of the effective date of the R&O. At this time, however, the Commission does not adopt the proposal to limit the number of proposals to add additional allotments or modify vacant allotments within a single rule making proposal, although it delegates to staff the discretion to return unreasonably large proposals or counter-proposals, if warranted. The Commission also declines to change its policy disfavoring the removal of a community's sole local transmission service to become another community's first local service, instead reiterating the need for parties contemplating such moves to seek waiver of the policy using existing law, and to demonstrate clearly the public interest benefits of such moves that would outweigh application of the policy in particular cases.

2. The Commission adopts the proposal to allow AM and FM full-power stations to change community of license by first come-first served minor modification application. Most commenters favored this proposal, and some opponents would mute their objections if the Commission adopted certain procedural safeguards. As the Commission tentatively concluded in the NPRM, and upon examination of the record in this proceeding, the Commission finds that the public interest would be served by streamlining current city of license modification procedures and employing certain safeguards to ensure that Section 307(b) of the Communications Act of 1934, as amended (47 U.S.C. 307(b)) (“Section 307(b)”) and other concerns are accommodated. The Commission also concludes that, given the maturity of the FM service, there is no need to continue utilizing rule making procedures to modify FM stations' communities of license merely because such procedures provide an opportunity to counter-propose allotments. The use of first come-first served procedures is consistent with the doctrine enunciated in

Ashbacker

v.

U.S.

, 326 U.S. 327 (1945), and the Commission believes

that there have been ample opportunities for potential counter-proponents to propose new FM station allotments during the 43 years that the Commission has relied on the current Table of Allotments. Further, all parties will continue to have reasonable opportunities to make such proposals. Moreover, to the extent that commenters object to the lack of opportunity to file competing applications, because the Commission proposes to limit such applications to those mutually exclusive with the applicant's existing facilities, foreclosing competing applications does not, as a practical matter, deprive potential applicants of opportunities for comparative consideration. Finally, the Commission is convinced that adopting the proposed new procedure will preserve limited agency resources, reduce the time needed to process community of license changes and, accordingly, expedite the provision of enhanced broadcast service to the public.

3. Community of license changes for commercial and NCE full-power AM standard band and FM broadcast licensees may be filed as minor modification applications. These minor modification applications processed on a first come-first served basis will be limited to those applications where the proposed daytime facilities are mutually exclusive with the applicant's existing daytime facilities. Related minor change applications must be submitted concurrently, and will be subject to the requirements and restrictions that apply to contingent minor modification application filings.

See

47 CFR 73.3517(e). Required reference coordinate changes (which are not set out in the Table of Allotments) will not count against the current limit of four contingent minor modification applications that may be filed simultaneously. Parties seeking to employ this procedure must file, with their applications, a detailed exhibit demonstrating that the proposed change constitutes a preferential arrangement of allotments under Section 307(b) of the Act as compared to the existing allotment(s). The Commission will require a narrative showing that the proposed community of license change represents a net service benefit, under the Section 307(b) priorities and policies used since 1982.

See Revision of FM Assignment Polices and Procedures

, 90 FCC 2d 88 (1982). Applicants also will be required to confirm the community status of the proposed new community of license, demonstrating that it constitutes a community suitable for allotment purposes. Between our body of Section 307(b) precedent and the procedural safeguards discussed herein, these procedures will ensure that grant of such applications comports with the Commission's statutory mission under Section 307(b) to distribute radio service fairly, efficiently, and equitably. Additionally, as noted in the NPRM, our minimum distance separation standards and spectrum congestion will limit substantial urban migration. The new procedure will also address the concerns that led the Commission in 1999 to decline to treat such applications as minor changes as well as most commenters' Section 307(b) concerns.

See 1998 Biennial Regulatory Review—Streamlining of Radio Technical Rules in Parts 73 and 74 of the Commission's Rules

, First Report and Order, 14 FCC Rcd 5272, 5278 (1999).

4. The Commission adopts certain additional safeguards to ensure that the public interest is served by the new procedures introduced herein. In performing Section 307(b) analyses under the new procedures adopted herein, the Commission will carefully consider whether an application would promote the fair, efficient, and equitable distribution of radio service. Under this analysis, a new permittee that obtained its permit after being awarded a dispositive Section 307(b) preference in an AM auction filing window should not be allowed to change communities prior to the commencement of broadcast operations in the originally authorized community unless the new community would compare equally or more favorably to the communities specified by the other mutually exclusive applicants in the auction Section 307(b) analysis. For example, an AM auction applicant that received a Priority (3) preference by proposing first local service to a larger community than that specified in a competing applicant's first local service proposal could not seek to modify the initial construction permit by later specifying a community with a smaller population than the competitor's proposed community. Otherwise, AM auction applicants could initially select their communities solely on the basis of providing the greatest Section 307(b) advantage and avoiding an auction, without actually serving those communities. Likewise, the Commission will not award rapid, successive community changes that sidestep the mutual exclusivity requirement of the new procedure. Accordingly, any application proposing a community of license change filed by a permittee that has not built its current permitted facilities and that is not mutually exclusive with either the applicant's built and operating facilities or its original allotment shall be returned as unacceptable for filing. The analysis set forth in

Faye and Richard Tuck, Inc.

, Memorandum Opinion and Order, 3 FCC Rcd 5374 (1988), will be carefully applied in considering Section 307(b) showings submitted in support of first come-first served applications to change communities of license, and that a first local service preference will not be awarded to a community that is largely interdependent with the Urbanized Area or surrounding communities. The Commission declines to adopt a service floor requirement such as that suggested in the NPRM, believing that existing Section 307(b) priorities and policies are sufficient to safeguard existing service. The Commission finds that existing procedural requirements, along with local public notice requirements (

see

47 CFR 73.3580(c)(3), (d)(3), and (f)), will provide reasonable notice and opportunity for interested parties to comment under the new procedures introduced in the R&O. Broadcasters and members of the public may participate in the process of evaluating the grantability of a minor modification application to change community of license by filing informal objections. Arguments, evidence, and precedent may be presented in an informal objection as readily as in a more formal petition to deny, and are subject to the same evidentiary and legal standards. Moreover, the statutory right to file a petition for reconsideration, enumerated in Section 405 of the Communications Act of 1934, as amended (47 U.S.C. 405), provides a safety net for both relevant public interest considerations and participation by interested parties. Further, with regard to notice of applications, such minor modification applications will be listed in the Media Bureau's CDBS-generated “Broadcast Applications” public notices, much as AM major change applications are listed now. Due to the importance of local broadcast service to communities, however, the Commission believes it is vital that residents are provided adequate notice to enable them to file informal objections to, or comments in support of, a particular move. Thus, the Commission adopts its proposal to require the proponent to give local public notice in connection with such applications, notwithstanding that minor modification applicants generally need not provide local public notice.

See

47 CFR 73.3580(a). Specifically, applicants under this new procedure

shall provide local public notice as set forth in Sections 73.3580(c)(3), (d)(3), and (f) of the Commission's rules (47 CFR 73.3580(c)(3), (d)(3), and (f)), and shall certify such compliance in Form 301. The Media Bureau shall also provide notice in the

Federal Register

that an application to modify an AM or FM station's community of license has been filed. Moreover, the Bureau will not act upon such an application until at least 60 days after publication in the

Federal Register

. The combination of local public notice under 47 CFR 73.3580, publication in the

Federal Register

, and the 60-day prohibition on Commission action will provide interested parties with ample notice and opportunity to comment on proposed community of license changes under our new procedures. Applicants themselves need only comply with the local public notice procedures, which are well known to licensees and permittees. The newspaper publication requirements of 47 CFR 73.3580(c)(3) will require the applicant to publish both in the current community of license and the proposed community, so as to give maximum notice to all residents potentially affected by grant of the application.

5. This new procedure will apply both to commercial full-service broadcast stations and also to full-power NCE stations. NCE FM allotments in the reserved band are not included in the Table of Allotments (see 47 CFR 73.201, 73.202(a), and 73.501(a)), and as non-tabled facilities such licensees must undergo a process similar to that undergone by AM licensees if they wish to change their communities of license, in that they must wait for an NCE filing window before applying to change communities. However, while reserved band NCE FM stations are non-tabled, the reserved band resembles the non-reserved FM band in most other respects, including maturity of the service, application of spacing rules, and spectrum congestion near larger cities. Because of these similarities, the Commission finds that the rationales for adopting the new procedure, such as streamlining of the current two-step process and maturity of the FM service, apply equally to NCE stations, and thus the new procedure will apply to NCE stations. However, the new procedures will not apply to expanded band AM stations, as allowing community of license changes by minor modification application for such stations could jeopardize the Commission's ability to develop a comprehensive plan for additional expanded band AM licensing.

6. There are currently fewer than 25 pending community change rule making proceedings for which a

Report and Order

has not been released. These parties will not be required to dismiss their rule making petitions and refile their proposals in the form of an application. However, a rule making petitioner that has submitted a community of license change proposal that could, under the new procedures, be filed as a minor modification application will be permitted to withdraw its rule making petition and to resubmit its proposal as an application on the effective date of the new procedure. A party choosing to dismiss a rule making petition and refile as an application may adversely affect its position with respect to earlier filed petitions for rule making or earlier or simultaneously filed applications. Parties opting to dismiss and refile should carefully consider whether doing so would be advantageous to their cut-off rights.

7. In order to accommodate the new procedure, the Commission will remove the allotments of currently authorized and awarded FM facilities from the Table of Allotments (47 CFR 73.202). Currently, all vacant FM allotments as well as FM assignments (that is, channels and communities occupied by authorized facilities) are listed in the Table of Allotments. All of these represent allotments and assignments added to the Table of Allotments through notice-and-comment rule making procedures over more than 40 years of the Table of Allotments' existence. Vacant allotments, which must be protected by all subsequent filings, serve as placeholders for future facilities. The same cut-off principles will apply to implementing applications filed under our comparative commercial and NCE procedures. Once an assignment is made, i.e., upon “reservation,” this record supersedes the vacant allotment. Thus, it is unnecessary for “occupied” allotments (that is, those that are licensed, permitted, or reserved) to be listed in the Table of Allotments—the authorizations and reserved assignments, reflected in CDBS, protect those facilities and govern their technical facilities and communities of license. Once a station is authorized, application procedures provide reasonable opportunities to interested parties to comment on or object to further modifications of authorized facilities. For this reason, as well as the maturity of the FM service discussed above, it is no longer necessary to change authorized non-reserved band FM stations' attributes through notice-and-comment rule making. Thus, the Commission shall amend the Table of Allotments to reflect only vacant allotments that do not correspond to an authorized station or reserved assignment. Assignments for licensed, permitted, and reserved facilities (those for which applications are pending) will be reflected solely in CDBS. In CDBS, channel/frequency and community assignments for currently authorized stations are represented as “FA USE.” “FA RSV” is used to designate assignments for winning auction bidders, NCE tentative selectees, and proposed assignments for stations that have filed, or have been directed to file, modification applications for authorized stations. These designations will continue to be used in CDBS to indicate the status and cut-off rights of assignments. Changes to the channel, class, or community of existing facilities will constitute changes to the individual authorizations or applications, rather than to 47 CFR 73.202, and therefore may be made through minor modification application procedures (as adjacent channel and class modifications have been made under the Commission's “one-step” procedures). However, the Commission will permit an FM non-reserved band permittee or licensee to use notice and comment procedures to modify its current assignment to specify a non-adjacent class upgrade or downgrade in the same community of license. This action is taken to preserve the facility improvement options now set forth at Section 1.420(g)(1) and (2). The Commission will retain the Table for vacant allotments and will continue to use rule making procedures to establish new channel allotments, as the procedures for new allotments allow for efficient consideration of all proposals and counterproposals in keeping with the Commission's Section 307(b) obligations. While Section 307(b) considerations enter into community of license changes to authorized facilities as well, the same detailed rule making procedures are not as essential when dealing with changes to authorized stations not subject to competing applications. Thus, new allotments and changes to vacant allotments will continue to be made via notice-and-comment rule making procedures. To the extent that a proposal or counter-proposal is contingent upon one or more such changes to vacant allotments, such proposals will also continue to be made via rule making proceedings. However, as discussed below, the Media Bureau will return any rule making proposals or

counterproposals that do not propose changes to vacant allotments, except for notice and comment filings submitted pursuant to Section 1.420(g)(1) or (2).

8. A common aspect of FM allotment petitions and counterproposals, including city of license modifications, are proposed channel substitutions for both vacant allotments and authorized facilities. Rule making proponents are limited to two “involuntary” channel substitutions for authorized stations.

See Columbus, Central City, Crookston, Kearney, Lexington, McCook, and Valentine, Nebraska; and Hill City, Kansas

, Report and Order, FCC 86-59, 59 RR 2d 1184 (MMB 1984) (“

Columbus, Nebraska

”). Current procedures impose no limit on voluntary, i.e., consensual, channel substitutions. The bifurcated procedures adopted in the R&O for allotments and assignments require new procedures for these city of license application and rule making components. Channel substitutions for authorized facilities will be treated as “minor” changes. Voluntary channel changes must be proposed in the Form 301 applications as set forth below. Involuntary channel changes for authorized stations must be specified in the Form 301 application, but will continue to be limited to two under the

Columbus, Nebraska

policy. The staff will issue an order to show cause with regard to an involuntary channel change if it determines that the entire city of license modification proposal is acceptable for filing. These procedures accord with our current procedures, under which an order to show cause is issued when a rule making proponent seeks an involuntary change to another facility. Proposals to substitute channels for vacant allotments will be filed in accordance with established rule making procedures.

9. Under these revised procedures, certain FM city of license modification proposals may consist of several contingent applications. Some “hybrid” filings will consist of both applications and rule making filings. Both the “pure” and “hybrid” proposals will be subject to the requirements and restrictions that apply to contingent coordinated FM minor change filings.

See

47 CFR 73.3517(c). It is not necessary to prohibit contingent city of license modification proposals. The staff currently and regularly handles rule making proposals involving several different allotments and communities. All contingent applications filed pursuant to the procedures adopted here will be subject to identical Section 307(b) analysis. The Commission is satisfied that this analysis will function effectively in the application context, just as it does in the rule making context, to safeguard the goals and principals of Section 307(b). All related proposals must be simultaneously filed and clearly cross-reference each of the other component filings. The dismissal, denial or return of any component filing will result in the dismissal or return of all the related filings. Both “pure” application and “hybrid” filings will be subject to the four-application limit. Both voluntary and involuntary channel changes for authorized stations will count toward the four-application limit. Those components filed pursuant to rule making procedures will not count toward the four-application limit.

10. In the NPRM, the Commission showed that a small percentage of petitioners seeking new allotments in the FM Table of Allotments (also known as “drop-in” petitions) were responsible for an inordinate percentage of the drop-in petitions filed. To date, those drop-in proponents have not actively participated in the auctions process. Thus, there appears to be a fundamental disconnect between those adding new allotments and those seeking to obtain authorizations pursuant to the Commission's competitive bidding procedures. Accordingly, in the NPRM the Commission proposed a mechanism to encourage only

bona fide

proponents to seek to add channels to the Table. The mechanism proposed was to require an allocations proponent simultaneously to file a Form 301 application, and pay the appropriate fee, with its petition for rule making. The applicant would also certify in the application that, if its allotment was adopted, it intended to apply to participate in the auction for the new channel. That form would then become the proponent's application for construction permit, should the channel be allotted and the petitioner be the winning bidder. Previously, rule making proponents for new FM allotments needed only to state that they were interested in applying for the station if allotted, and paid no filing fee until and unless the allotment was made and an application filed. The Commission believes that requiring Form 301 and the concurrent filing fee with a petition for rule making, which is currently not required, would discourage insincere proponents, and further believes, as stated in the NPRM, that the public interest is best served by processing only those proposals for new allotments filed by

bona fide

potential applicants, rather than devoting scarce staff resources to processing allotment proposals that may represent less-than-optimal choices to actual auction participants. Accordingly, the Commission adopts this proposal. A party filing a petition for rule making to add a new allotment to the Table, whether as an original proposal or as a counterproposal, must simultaneously file a Form 301 application specifying the proposed facilities. A separate Form 301 and fee must be filed for each proposed new allotment. The application shall include a certification that, if the FM channel allotment requested is adopted, petitioner/counter-proponent intends to apply to participate in the auction of the channel allotment requested and specified in this application. In the event the petitioner or counter-proponent is the high bidder for the allotment, it need only file an amendment to its Form 301 application, if necessary, and will not pay a further filing fee. However, while the Commission need not refund application filing fees paid by applicants whose applications are not granted (

see Establishment of a Fee Collection Program to Implement the Provisions of the Omnibus Budget Reconciliation Act of 1989

, Memorandum Opinion and Order, 6 FCC Rcd 5919, 5925 n.40 (1991), citing Conference Report, 1989 U.S. Code Cong. & Ad. News at 3036), the Commission recognizes the inequity in retaining filing fees from parties whose rule making proposals are not granted, as the unfavorable disposition of their proposals would render their Form 301 applications a nullity.

See

47 CFR 1.1113(a)(4). Refunding the filing fee of a successful rule making proponent that loses at auction places the proponent in the same position as competing bidders who were not required to file Form 301 pre-auction. Accordingly, the Commission will entertain waiver requests, pursuant to 47 CFR 1.1117, filed by a petitioner for a new allotment that files a Form 301 for the allotment, and that either has its allotment proposal denied in favor of another proposal or counterproposal, or that applies for the allotment and qualifies to bid for the allotment at auction, if the allotment is awarded to another higher-bidding applicant. A rule making proponent whose proposal is rejected may file its waiver request only after the proceeding is terminated and has become final. A successful rule making proponent who is not the winning bidder for the allotment may file its waiver request only after release of a public notice announcing the winning bidders in the auction. Provided that the waiver applicant has acted in good faith and in accordance with our Rules and

statutes, the Commission will normally grant such waiver requests and issue refunds under 47 CFR 1.1113(a)(4) or 1.1113(a)(5), as applicable. However, such a waiver request will not be viewed favorably if, for example, the rule making petition for a new allotment is returned due to patent legal or engineering defects. Similarly, a successful petitioner that fails to apply to participate in the auction or qualify to bid on the new allotment will not receive a waiver, nor will a petitioner that is the high bidder but either withdraws its high bid or is found unqualified to be the permittee.

11. In the NPRM, the Commission proposed to supplement the policy announced in

Columbus, Nebraska,

which limited to two the number of proposals for involuntary channel substitution changes to the Table of Allotments. The Commission specifically proposed to limit the number of changes to the Table that a party might propose or counter-propose to five, absent waiver based on a showing of significant public interest benefits. It was noted that parties sometimes file proposals (frequently, counterproposals) involving large numbers of changes to facilities, which frequently consumed large amounts of staff resources, and the Commission tentatively concluded that the staff could more efficiently dispose of these proceedings if proponents were required to break them apart into several discrete components. After reviewing comments and upon further consideration, the Commission has determined that it should defer acting on this proposal while it determines the effects on the efficiency of our allocations procedures of the other proposals adopted in the R&O. However, due to concern about the effects of complex proposals and counterproposals on the staff's ability efficiently to process changes to the Table of Allotments, the Commission instructs the staff carefully to review all proposals of five or more changes to the Table of Allotments, including those that may contain fewer than five proposals per party but that are interrelated, such that one party's proposal is dependent on others. The staff may, in its discretion, break such proceedings into smaller ones, return those proposals or counterproposals that do not require changes to vacant allotments and may be filed as minor modification applications, or in extreme cases return proposals or counterproposals in their entirety. The Commission reserves the right to revisit this proposal if deemed necessary in the public interest and to preserve the integrity of the FM allotment and assignment plan.

12. In the NPRM, the Commission proposed to eliminate the existing prohibition against electronic filing of petitions filed in broadcast allotment proceedings, set forth in 47 CFR 1.401(b). Electronic filing has brought substantial benefits in other application contexts, specifically by streamlining processes and enhancing the accuracy and reliability of Commission databases, and those benefits should be extended to the allocations process. Therefore, the Commission adopts the proposal to eliminate from 47 CFR 1.401(b) the prohibition against electronic submission of petitions for rule making in broadcast allocations proceedings. The Media Bureau and Consumer and Governmental Affairs Bureau will announce, by public notice, such procedures as they will devise for submission of broadcast allocations petitions and other documents. It should be noted that, as these are restricted proceedings, such procedures must provide for service on all interested parties, as defined in the Commission's Rules (

see

47 CFR 1.1202(d)), by electronic or other appropriate means.

13. In the NPRM, the Commission sought comment on First Broadcasting Investment Partners, LLC's (“First Broadcasting”) proposal to abandon the Commission's existing policy against removing the sole local transmission service at a community in order to allow it to become the first local transmission service at another community. First Broadcasting contended that this policy undermines the goal of spectrum efficiency which, in its opinion, should favor provision of first local transmission service to the greatest population. First Broadcasting proposed a presumption that it is in the public interest to permit a station providing a community's sole local service to move to another community provided that (a) at least two other stations provide principal community service to the entirety of the current community, (b) the station would be the first local transmission service in the proposed community, (c) the station moving would provide 70 dBμ service to a larger population in the proposed community of license, and (d) the move would not cause any short spacing and/or would fully or partially resolve existing short spacing. First Broadcasting stated that its proposal would enable the staff to consider multiple public interest benefits of such proposed community of license changes, rather than ending its analysis at preservation of local service, and would ensure that the staff's Section 307(b) analysis will be conducted in an objective manner. After careful consideration and review of comments, the Commission declines to adopt this proposal. The Commission rejects the suggestion that objectivity in decision making can only be achieved by application of a defined multi-part test. Moreover, the Commission's experience shows that the reasons given by applicants for wanting to move the sole local service at a community are varied, and are better suited to a case-by-case waiver analysis than to a “one size fits all” test. Thus, the Commission retains its policy disfavoring removal of the sole local transmission service at a community, subject to waiver upon a detailed showing that retention of local service at a station's current community is contrary to the public interest, convenience, and necessity. For example, a showing that circumstances have changed to the extent that the current community of license is no longer a licensable community (due, perhaps, to a precipitous decline in population or significant loss of industry), or is no longer independent of a larger urban area, in the appropriate case might support a waiver to allow move of the station to serve a larger or more independent community. An AM licensee that has lost its transmitter site, and due to terrain or lack of available land cannot find a substitute site that would provide adequate community coverage, might also be able to present a compelling case for waiver. The foregoing examples are offered by way of illustration only, and are neither meant to be exhaustive nor are they meant to imply that a bare allegation of any of these circumstances will result in automatic waiver. All waiver requests are reviewed with an eye toward the particular facts as well as the context in which those facts are presented. Applicants are reminded that the waiver standard requires a detailed recitation of facts and circumstances, including documentary or testimonial (affidavit) evidence where appropriate, demonstrating special circumstances that warrant deviation from the policy, and showing that such deviation serves the public interest.

See Northeast Cellular Telephone Co.

v.

F.C.C.

, 897 F.2d 1164, 1166 (D.C. Cir. 1990), citing

WAIT Radio

v.

F.C.C.

, 418 F.2d 1153, 1157-59 (D.C. Cir. 1969). For example, the bare assertion that a station has lost its site, absent evidence showing an exhaustive but fruitless search for sites from which a sole local transmission service could comply with our technical rules, would not suffice to justify grant of a waiver to allow the station to move

to another community. The standard for waiver of a Commission policy is high for a reason. The Commission's rules and policies impose ongoing community service obligations on broadcasters. Moreover, the Commission has concluded that Section 307(b) policies must take into account the public's legitimate expectation that existing broadcast services will be maintained. These considerations will necessarily limit the ability of licensees to move to larger or more lucrative markets. Thus, a broadcaster that sought to locate in a community is expected to serve that community, as is a broadcaster that purchased the sole local transmission service in a particular community. In the latter case, no broadcaster should invest in a station with the expectation that the Commission will routinely approve a request to move to a different community. However, in the rare but appropriate case, Commission policy permits the sole local broadcaster in a community to show that the public interest supports a move to a new community.

14. In the NPRM, the Commission announced a freeze on the filing of new petitions to amend the Table of Allotments, to enable it to complete this proceeding without adding new rule making proceedings that might better be filed under new procedures, and to help eliminate allocations backlogs. The freeze on filing new petitions to amend the Table of Allotments will be lifted on the effective date of this R&O. Because the procedural changes in this R&O will not become effective until 30 days after publication in the

Federal Register

, at that time applicants may file minor modification applications for changes to community of license of full-power FM, noncommercial educational FM, and standard-band AM stations. Similarly, applicants wishing to file coordinated, contingent minor change applications and petitions for rule making as discussed herein must wait until the new community of license application procedures become effective before filing either minor change applications or rule making petitions.

15. Final Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”)

2

an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rule Making (“NPRM”) to this proceeding.

3

The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. This present Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA.

4

2

See

5 U.S.C. 603. The RFA,

see

5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), Pub. L. 104-121, Title II, 110 Stat. 847 (1996). The SBREFA was enacted as Title II of the Contract With America Advancement Act of 1996 (“CWAAA”).

3

NPRM,

20 FCC Rcd 11169, 11190, 11192.

4

See

5 U.S.C. 604.

16. Need for, and Objectives of, the Report and Order. This Report and Order (“R&O”) adopts rule changes and procedures to streamline the Commission's procedures for adding and modifying certain broadcast station allotments, and to streamline the Commission's FM commercial allotment procedures by allowing electronic filing of rule making petitions to change the FM Table of Allotments. In particular, the rules adopted by this R&O, as required by statute, will permit broadcast permittees and licensees of all full-service AM and FM broadcast stations (except for AM stations in the expanded band) to change their stations' communities of license by filing a minor modification application rather than through rule making proceedings. The new rules also will require parties seeking to add new allotments to the FM Table of Allotments simultaneously to file Form 301 for the new facilities at the time of filing a petition for rule making, rather than after auction. Finally, the new rules eliminate a rule-based prohibition against proponents of new channels in the FM Table of Allotments filing petitions for rule making electronically.

17. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.

18. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted herein.

5

The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small government jurisdiction.”

6

In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.

7

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).

8

5

5 U.S.C. 603(b)(3).

6

Id.

Sec. 601(6).

7

Id.

Sec. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). 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 Small Business Administration 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

.” 5 U.S.C. 601(3).

8

15 U.S.C. 632. Application of the statutory criteria of dominance in its field of operation and independence are sometimes difficult to apply in the context of broadcast television. Accordingly, the Commission's statistical account of television stations may be over-inclusive.

19. The subject rules and policies potentially will apply to all AM and commercial FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has $6.5 million or less in annual receipts as a small business.

9

A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public.

10

Included in this industry are commercial, religious, educational, and other radio stations.

11

Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included.

12

However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under another NAICS number.

13

According to Commission staff review of BIA Publications, Inc. Master Access Radio Analyzer Database on November 2, 2006, about 10,449 (95%) of 10,979 commercial radio stations have revenue of $6.5 million or less. First Broadcasting, which filed the Petition for Rule Making in this proceeding, is included in the definition of “small business.” We note, however, that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by any ultimate changes to the allocation rules.

9

See

13 CFR 121.201, NAICS Code 515112.

10

Id.

11

Id.

12

Id.

13

Id.

20. Description of Projected Reporting, Record Keeping and other Compliance Requirements. As described, certain rules and procedures will change, but at most will only minimally increase the reporting requirements on existing and potential radio licensees and permittees, insofar as some of the proposed changes require the filing of application forms rather

than rule making petitions. However, the forms to be filed are existing FCC application forms with which broadcasters are already familiar, so any additional burdens are minimal. Applicants seeking to modify a station community of license will need to include, with their Form 301 applications, an exhibit detailing how the proposed community change comports with the policies underlying Section 307(b) of the Communications Act of 1934, as amended. However, current practice requires that rule making proponents demonstrate that the proposed new community of license represents a superior arrangement of allotments under Section 307(b), so any new burdens are minimal. The new rule will also require that applicants for a new community of license provide local public notice in local newspapers and on air. These will impose additional burdens upon applicants. These burdens are identical to those imposed upon applicants for new broadcast facilities and applicants seeking to assign or transfer broadcast licenses. As such, any new burdens are familiar to broadcast licensees, are already set forth in our rules, and are necessary to ensure that members of the public are notified of proposed changes and are afforded the opportunity to comment.

21. Additionally, parties seeking to add new allotments to the FM Table of Allotments must simultaneously file FCC Form 301 with their petitions to add new allotments, and pay the Form 301 filing fee at that time. This requires petitioners for new allotments to file Form 301 earlier in the process than is the case now. However, it is the same Form 301 as is currently filed by successful auction bidders. The only difference from Form 301 currently filed by applicants consists of a certification that the proponent of the new FM allotment will participate in the auction for the new channel if allotted. To the extent that the proponent/applicant is not the winning bidder for the new allotment, the applicant may apply for waiver and refund of the fee; however, the burden will be increased to the extent that such an unsuccessful bidder would not currently be required to file Form 301.

22. Steps Taken to Minimize Significant Impact of Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

14

14

5 U.S.C. 603(c)(1)-(c)(4).

23. The procedural changes adopted in the R&O for adding FM channel allotments and changing stations' communities of license are designed to make the process faster and more efficient, reducing delays to broadcasters in implementing new radio service. The procedure for changing a station's community of license will move from the current two-step process to a one-step minor application process, thus saving applicants time and resources. The Commission will require that petitioners for new FM channel allotments simultaneously file Form 301, and pay the prescribed filing fee for Form 301. Although this requires payment of the filing fee earlier than is the case in current practice, to the extent that petitioners ultimately obtain construction permits for these allotments, it is a fee they would be required to pay in any event, therefore this requirement should impose a minimal burden on petitioners. The Commission also eliminates the current prohibition on electronic filing of petitions to amend the FM Table of Allotments and comments on such proposals. Electronic filing, when implemented, will reduce burdens on all broadcasters, including small entities, by reducing the time and effort spent in preparing and submitting such documents in hard copy, as is the current practice.

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

R&O,

including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996.

15

In addition, the Commission will send a copy of the

R&O,

including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the

R&O

and FRFA (or summaries thereof) will also be published in the

Federal Register

.

16

15

See id.

Sec. 801(a)(1)(A).

16

See id.

Sec. 604(b).

Ordering Clauses

25. Accordingly,

it is ordered,

pursuant to the authority contained in Sections 1, 2, 4(i), 303(r), and 307 of the Communications Act of 1934, 47 U.S.C 151, 152, 154(i), 303(r), and 307, this

Report and Order

is hereby adopted and the Commission's Rules

are hereby amended

as set forth in the Rule Changes.

26.

It is further ordered

that the rule amendments set forth in the Rule Changes

will become effective

30 days after publication in the

Federal Register

.

27.

It is further ordered

that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 1

Practice and procedure.

47 CFR Part 73

Radio broadcast services.

Federal Communications Commission.

William F. Caton,

Deputy Secretary.

Rule Changes

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1 and 73 as follows:

PART 1—PRACTICE AND PROCEDURE

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

Authority:

15 U.S.C. 79

et seq.

; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 303(r), and 309.

2. Section 1.401 is amended by revising paragraph (b) and the last sentence of paragraph (d) to read as follows:

§ 1.401

Petitions for rulemaking.

(b) The petition for rule making shall conform to the requirements of §§ 1.49, 1.52, and 1.419(b) (or § 1.420(e), if applicable), and shall be submitted or addressed to the Secretary, Federal Communications Commission, Washington, DC 20554, or may be submitted electronically.

(d) * * * Petitions to amend the FM Table of Allotments must be accompanied by the appropriate construction permit application and payment of the appropriate application filing fee.

3. Section 1.420 is amended by revising the section heading, revising

paragraph (g) and adding new Note to § 1.420 following paragraph (j); the revisions set forth below are to read as follows:

§ 1.420

Additional procedures in proceedings for amendment of the FM or TV Tables of Allotments, or for amendment of certain FM assignments.

(g) The Commission may modify the license or permit of a UHF TV station to a VHF channel in the same community in the course of the rule making proceeding to amend § 73.606(b), or it may modify the license or permit of an FM station to another class of channel through notice and comment procedures, if any of the following conditions are met:

(1) There is no other timely filed expression of interest, or

(2) If another interest in the proposed channel is timely filed, an additional equivalent class of channel is also allotted, assigned or available for application.

Note to Paragraph (g):

In certain situations, a licensee or permittee may seek an adjacent, intermediate frequency or co-channel upgrade by application. See § 73.203(b) of this chapter.

Note to § 1.420:

The reclassification of a Class C station in accordance with the procedure set forth in Note 4 to § 73.3573 may be initiated through the filing of an original petition for amendment of the FM Table of Allotments. The Commission will notify the affected Class C station licensee of the proposed reclassification by issuing a notice of proposed rule making, except that where a triggering petition proposes an amendment or amendments to the FM Table of Allotments in addition to the proposed reclassification, the Commission will issue an order to show cause as set forth in Note 4 to § 73.3573, and a notice of proposed rule making will be issued only after the reclassification issue is resolved. Triggering petitions will be dismissed upon the filing, rather than the grant, of an acceptable construction permit application to increase antenna height to at least 451 meters HAAT by a subject Class C station.

PART 73—RADIO BROADCAST SERVICES

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

Authority:

47 U.S.C. 154, 303, 334, 336.

5. Section 73.202 is amended by revising paragraph (a) introductory text, paragraph (a)(2) and paragraph (b), the Note following paragraph (a)(2) remains unchanged, the following revisions are to read as follows:

§ 73.202

Table of Allotments.

(a)

General.

The following Table of Allotments contains the channels (other than noncommercial educational Channels 201-220) designated for use in communities in the United States, its territories, and possessions, and not currently assigned to a licensee or permittee or subject to a pending application for construction permit or license. All listed channels are for Class B stations in Zones I and I-A and for Class C stations in Zone II unless otherwise specifically designated. Channels to which licensed, permitted, and “reserved” facilities have been assigned are reflected in the Media Bureau's publicly available Consolidated Data Base System.

(2) Each channel listed in the Table of Allotments reflects the class of station that is authorized to use it based on the minimum and maximum facility requirements for each class contained in § 73.211.

(b)

Table of FM Allotments.

Channel No.

ALABAMA

Anniston

*261C3

Boligee

297A

Coosada

226A

Frisco City

278A

Livingston

242A

Maplesville

292A

New Hope

278A

Pine Level

248A

Rockford

286A

Saint Florian

274A

ALASKA

Palmer

238C1

ARIZONA

Aguila

297C3

Ajo

295A

Ash Fork

267A

Bagdad

269C3

Chino Valley

223A

Ehrenberg

286C2

First Mesa

247C

Fredonia

278C1

Grand Canyon Village

273C1

Heber

288C2

Huachuca City

232A

Leupp

255C2

Overgaard

232C3

Parker

247C3

Patagonia

251A

Paulden

263C3

Peach Springs

285C3

Pima

*296A

Pinetop

294C1

Quartzsite

275C3, 290C2

Rio Rico

300A

Sells

285A

Snowflake

258C2

Somerton

*260C3

Taylor

278C3

Wickenburg

229C3

Willcox

*223C3

ARKANSAS

Altheimer

251C3

Arkadelphia

228A

Bearden

224A

Clarendon

281A

Cove

232A

Daisy

293C3

Gassville

224A

Greenwood

268A

Hermitage

300A

Paragould

257A

Rison

255A

Sparkman

259A

Strong

296C3

CALIFORNIA

Alturas

268C1, 277C

Amboy

237A

Barstow

267A

Big Sur

240A

Blythe

239B

Burney

225A

Buttonwillow

265A

Cambria

287A, 293A

Cedarville

260A

Cloverdale

274A

Coachella

278A

Covelo

245A

Desert Center

288A

Essex

280B

Greenfield

254A

Hemet

273A

Kerman

224A

Kernville

289A

King City

275A

Lake Isabella

239A

Lamont

247A

McKinleyville

236C3, 277C3

Mecca

274A

Mojave

255A

Murrieta

281A

Nevada City

297A

Portola

269A

Randsburg

271A

Ridgecrest

229A, 252A

San Joaquin

299A

Susanville

262A

Sutter Creek

*298A

Tecopa

291A

Trona

247A

Twentynine Palms

270A

Wasco

224A

Waterford

294A

Westley

*238A

Willow Creek

253A

COLORADO

Arriba

240A

Aspen

228A

Cheyenne Wells

224C1

Crawford

274C3

Crested Butte

246C3

De Beque

275C3

Durango

287A

Flagler

283C3

Fruita

255C3

Genoa

291C3

Gunnison

265C2, 299C3

Hotchkiss

258C3

Hugo

222A

Lake City

247A

Olathe

*270C2, *293C

Orchard Mesa

249C3

Steamboat Springs

255A, 289A

Strasburg

249C3

Stratton

246C1

CONNECTICUT

DELAWARE

DISTRICT OF COLUMBIA

FLORIDA

Big Pine Key

*239A

Cedar Key

261A

Cross City

249C3

Daytona Beach Shores

258A

Eastpoint

283A

Horseshoe Beach

*234C3

Islamorada

283C2

Jasper

298A

Key Largo

237C3

Key West

244A

Lake Park

262A

Live Oak

*259A

Okeechobee

291A

Otter Creek

*240A

Palm Coast

254A

Perry

228A

Port St. Joe

270C3

Silver Springs Shore

259A

Sugarloaf Key

289A

GEORGIA

Alamo

287C3

Americus

295A

Calhoun

233A

Crawfordville

234A

Cusseta

279A

Dexter

276A

Homerville

246A

Lincolnton

254A

Milner

290A

Morgan

228A

Patterson

296A

Pineview

226A

Plains

290A

Plainville

285A

Reynolds

*245A

St. Simons Island

229C3

Tallapoosa

255A

Tignall

244A

Ty Ty

249A

Wadley

227A

Woodbury

233A

Young Harris

236A

HAWAII

Kailua-Kona

244A

Kihei

298C2

IDAHO

McCall

228C3, 238C3, 275C3, 293C3

Weiser

*280C1

ILLINOIS

Abingdon

252A

Altamont

288A

Augusta

253A

Canton

*277A

Cedarville

*258A

Clifton

*297A

Cuba

292A

Freeport

*295A

Grayville

229A

Pinckneyville

*282A

West Salem

266A

INDIANA

Bloomfield

266A

Farmersburg

*242A

Fowler

291A

Madison

*265A

Terre Haute

298B

IOWA

Asbury

*238A

Keosauqua

*271C3

Moville

*246A

North English

246A

Rudd

*268A

KANSAS

Americus

240A

Atwood

292C0

Council Grove

*281C3

KENTUCKY

Burgin

290A

Morgantown

256A

Science Hill

291A

Smith Mills

*233A

LOUISIANA

Anacoco

276C3

Bordelonville

280A

Cameron

296C3

Clayton

266A

Colfax

267A

Dulac

242A

Florien

242A

Franklin

295C3

Golden Meadow

*289C2

Harrisonburg

232A

Haynesville

288A

Homer

*272A

Hornbeck

269A

Lake Providence

224A

Leesville

224A

New Llano

252C3

Oak Grove

289A

Oil City

285A

Opelousas

279A

Ringgold

*253C3

Rosepine

281A

St. Joseph

257C3

Wisner

300C3

MAINE

Monticello

234A

MARYLAND

MASSACHUSETTS

Adams

255A

East Harwich

254A

Nantucket

249A

West Tisbury

*282A

MICHIGAN

Alpena

289A

Crystal Falls

280C2

Custer

263A

Ferrysburg

226A

Fife Lake

240C2

Frederic

237A

Glen Arbor

227A

Harrison

280A

Hubbardston

*279A

Houghton

242C1

Ludington

242A

McBain

300A

Onaway

292C2

Paradise

234A

Pentwater

280A

Traverse City

283A

MINNESOTA

Baudette

233C1

Grand Portage

224C, 245C0, 274C

Red Lake

231C1

MISSISSIPPI

Calhoun City

272A

Greenwood

277A

Holly Springs

243A

Marietta

250A

Oxford

286A

Vaiden

271A

Vardaman

258A

Walnut Grove

244C2

MISSOURI

Alton

290A

Bourbon

231A

Columbia

252C2

Doolittle

283A

Eminence

281A

Grandin

283A

Huntsville

*278C2

Laurie

*265C3

Lowry City

285A

Madison

247C3

Marceline

256A

Marquand

295A

Moberly

223A

MONTANA

Bozeman

*240C3

Cut Bank

274C1

Lewistown

300C1

Montana City

293A

Outlook

289C

Roundup

248A

Whitehall

274A

NEBRASKA

Arthur

300C1

Firth

229A

Hartington

232C2

Hyannis

250C1

Pierce

248C2

NEVADA

Battle Mountain

253A

Fallon Station

287C

Fernley

231C3

Pahrump

272C3

Silver Springs

273C

NEW HAMPSHIRE

Enfield

282A

Groveton

268A

Pittsburg

246A

NEW JERSEY

NEW MEXICO

Alamo Community

*298A

Alamogordo

240C2

Carrizozo

261C2

Clayton

248C1

Grants

244C3

Las Vegas

283C2, 296A

Milan

270A

Roswell

237C0

Taos

228A, 288A

Taos Pueblo

292C3

NEW YORK

Amherst

221A

Celoron

237A

Indian Lake

290A

Keeseville

231A

Montauk

235A

Morrisonville

231A

Rhinebeck

*273A

Rosendale

255A, 273A

NORTH CAROLINA

Dillsboro

237A

Garysburg

276A

Ocracoke

224C1

NORTH DAKOTA

Berthold

264C

Tioga

281C1

Williston

253C1

OHIO

Ashtabula

241A

Cridersville

257A

McConnelsville

279A

North Madison

229A

OKLAHOMA

Arnett

285C2

Boswell

282C3

Broken Bow

285A

Buffalo

224C2

Cheyenne

247C3

Clayton

241A

Coalgate

242A

Cordell

*229A

Covington

290A

Erick

259C2

Haileyville

290A

Haworth

294A

Holdenville

265A

Hollis

274C2

Kiowa

254A

Leedey

297A

Lone Wolf

224A

Mooreland

254A, 300C2

Muldrow

286A

Okeene

268C3

Pawhuska

233A

Pittsburg

232A

Red Oak

227A

Reydon

264C2

Ringwood

285A

Savanna

275A

Sayre

269C2

Stuart

228A

Taloga

226A

Thomas

288A

Tipton

233C3

Tishomingo

259C3

Valliant

234C3

Vici

249A

Wapanucka

298A

Waynoka

231C2

Weatherford

*286A

Wright City

226A

Wynnewood

*283A

OREGON

Clatskanie

225C3

Dallas

*252C3

Diamond Lake

299A

Ione

258A

Keno

253A

Madras

*251C1

Merrill

289A

Monument

280C1

Powers

293C2

Prairie City

260C

Prineville

267C1

Terrebonne

293C2

The Dalles

*268C3

PENNSYLVANIA

Erie

240A

Lawrence Park

224A

Liberty

*298A

Meyersdale

253A

Sheffield

286A

Susquehanna

227A

Sykesville

240A

RHODE ISLAND

SOUTH CAROLINA

Pendleton

240A

Quinby

237A

SOUTH DAKOTA

Edgemont

289C1

Lead

232C

Rosebud

257C

Sisseton

258C2

Wall

299C

TENNESSEE

Linden

267A

Lynchburg

296A

Oliver Springs

291A

Pigeon Forge

292A

TEXAS

Annona

263A

Asherton

284A

Aspermont

226C2

Austwell

290A

Baird

243C3

Ballinger

238A

Balmorhea

283C

Bangs

250C3

Benavides

282A

Benjamin

237C3

Big Lake

246A, 296C2

Big Spring

265C3

Big Wells

271A

Blanket

284A

Blossom

224C2

Brackettville

234A

Bruni

293A

Buffalo Gap

227A

Burnet

*240A

Camp Wood

271A

Canadian

235C1

Carbon

238A

Carrizo Springs

295A

Centerville

274A

Channing

284C

Childress

281C2

Colorado City

257A

Comanche

280A

Cotulla

242A, 264A, 289A

Crosbyton

264C3

Crowell

293C3

Cuney

259A

Dalhart

261C

Denver City

*248C2

Detroit

282C2

Dickens

240A, 294A

Dilley

229A

Eagle Lake

237C3

El Indio

236A

Eldorado

258C1, 285A, 293A

Elkhart

265A

Encinal

259A, 273A, 286A

Encino

250A, 283A

Estelline

263C3

Floydada

255A

Fort Stockton

263C

Freer

288A

Garwood

247A

George West

250A, 292A

Goliad

282A

Goree

275A

Grapeland

232C3

Groom

223A

Guthrie

252A

Hamilton

299A

Hamlin

283C2

Hawley

269A

Hebbronville

232A, 254A

Hewitt

294A

Hico

285A

Hooks

231A

Idalou

299A

Iraan

269C2

Jacksonville

236A

Jayton

231C2

Junction

277C3, 284A, 292A, 297A

Kermit

229A

Knox City

291A

La Pryor

278A

Leakey

257A, 275A, 299A

Llano

293C3

Lockney

271C3

Lometa

253A

Longview

300C2

Lovelady

288A

Marathon

278C

Mason

269C3, 281C2

Matador

221C2, 227C3

Matagorda

252A

McCamey

233C3

McLean

267C3

Memphis

283A, 292A

Menard

242A, 265C2, 287C3

Mertzon

278C2

Meyersville

261A

Moody

256A

Mount Enterprise

231A

Muleshoe

227C1

Mullin

224C3

Munday

270C1

Newcastle

263A

O'Brien

261A

Ozona

275C3, 289C1

Paducah

234C3

Paint Rock

296C3

Palacios

264A

Pampa

277C2

Panhandle

291C3

Pearsall

227A

Pineland

256A

Port Isabel

288A

Premont

287A

Presidio

292C1

Quanah

255C3

Rankin

229C3

Richland Springs

235A, 299A

Rising Star

290C3

Roaring Springs

276C3

Robert Lee

289A

Roby

249A

Rocksprings

235C3

Rotan

290A

Rule

239C2, 253A

Sabinal

296A

San Diego

273A

San Isidro

247A

Sanderson

274C1, 286C2

Santa Anna

282A

Savoy

297A

Shamrock

271A

Sheffield

224C2

Silverton

252A

Smiley

280A

Snyder

235C3

Sonora

237C3, 272A

Spur

254A, 260C3

Stamford

233A

Sweetwater

221C3

Teague

237C3

Turkey

244C2, 269A

Van Alstyne

*260A

Weinert

266C3

Wellington

248A

Wells

254A

Westbrook

272A

Wheeler

280C2

Zapata

292A

UTAH

Beaver

259A

Fountain Green

*260A

Manila

228A

Mona

225A

Parowan

300C2

Salina

233C

Toquerville

280C

VERMONT

Albany

233A

Canaan

231C3

Poultney

223A

VIRGINIA

Alberta

299A

Belle Haven

252A

Iron Gate

270A

Lynchburg

229A

Shawsville

273A

Shenandoah

*296A

WASHINGTON

Chewelah

*274C3

Coupeville

266A

Goldendale

240A

Oak Harbor

*233A, 277A

Port Angeles

229A

Sedro-Woolley

289A

Sequim

237A

Union Gap

285A

Waitsburg

272A

WEST VIRGINIA

Glenville

299A

Marlinton

292A

St Marys

*287A

White Sulphur Springs

227A

WISCONSIN

Ashland

*275A

Augusta

*268C3

Boscobel

244C3

Crandon

276C3

Ephraim

295A

Hayward

*232C2

Laona

272C3

New Holstein

225A

Owen

242C3

Rhinelander

243C3

Rosholt

263A

Tigerton

295A

Tomahawk

265C3

Two Rivers

255A

Washburn

*284A

WYOMING

Bairoil

235A

Centennial

248A

Meeteetse

273C

Pine Bluffs

238C3

Reliance

254C3

Sinclair

267C

AMERICAN SAMOA

CENTRAL MARIANAS

GARAPAN

GUAM

PUERTO RICO

Santa Isabel

251A

VIRGIN ISLANDS

Charlotte Amalie

257A

Frederiksted

258A

6. Section 73.203 is revised to read as follows:

§ 73.203

Availability of channels.

(a) Except as provided for in paragraph (b) of this section and § 1.401(d) of this chapter and 73.3573(a)(1), applications may be filed to construct new FM broadcast stations only at the communities and on the channels contained in the Table of Allotments (§ 73.202(b)).

(b) Applications filed on a first come, first served basis for the minor modification of an existing FM broadcast station may propose any change in channel and/or class and/or community not defined as major in § 73.3573(a). Applications for a change in community of license must comply with the requirements set forth in § 73.3573(g).

Note to § 73.203:

This section is limited to non-reserved band changes in channel and/or class and/or community. Applications requesting such changes must meet either the minimum spacing requirements of § 73.207 at the site specified in the application, without resort to the provisions of the Commission's rules permitting short spaced stations as set forth in §§ 73.213 through 73.215, or demonstrate by a separate exhibit attached to the application the existence of a suitable allotment site that fully complies with §§ 73.207 and 73.315 without resort to §§ 73.213 through 73.215.

7. Section 73.1690 is amended by adding paragraph (b)(9) to read as follows:

§ 73.1690

Modification of transmission systems.

(b) * * *

(9) Any change in the community of license, where the proposed new facilities are the same as, or would be mutually exclusive with, the licensee's or permittee's present assignment.

8. Section 73.3571 is amended by revising paragraph (a)(1), and adding new paragraph (j) to read as follows:

§ 73.3571

Processing of AM broadcast station applications.

(a) * * *

(1) In the first group are applications for new stations or for major changes in the facilities of authorized stations. A major change for an AM station authorized under this part is any change in frequency, except frequency changes to non-expanded band first, second or third adjacent channels. A major change in ownership is a situation where the original party or parties to the application do not retain more than 50% ownership interest in the application as originally filed. A major change in community of license is one in which the applicant's daytime facilities at the proposed community are not mutually exclusive, as defined in § 73.37, with the applicant's current daytime facilities, or any change in community of license of an AM station in the 1605-1705 kHz band. All other changes will be considered minor.

(j) Applications proposing to change the community of license of an AM station, except for an AM station in the 1605-1705 kHz band, are considered to be minor modifications under paragraphs (a)(2) and (f) of this section, and are subject to the following requirements:

(1) The applicant must attach an exhibit to its application containing information demonstrating that the proposed community of license change constitutes a preferential arrangement of assignments under Section 307(b) of the Communications Act of 1934, as amended (47 U.S.C. 307(b));

(2) The daytime facilities specified by the applicant at the proposed community of license must be mutually exclusive, as defined in § 73.37, with the applicant's current daytime facilities; and

(3) Notwithstanding the provisions of § 73.3580(a), the applicant must comply with the local public notice provisions of §§ 73.3580(c)(3), 73.3580(d)(3), and 73.3580(f). The exception contained in § 73.3580(e) shall not apply to an application proposing to change the community of license of an AM station.

9. Section 73.3573 is amended by revising paragraph (a)(1), adding new paragraph (g), and revising Note 1 to § 73.3573 (Notes 2, 3, and 4 to § 73.3573 remain unchanged), the revisions are to read as follows:

§ 73.3573

Processing of FM broadcast station applications.

(a) * * *

(1) In the first group are applications for new stations or for major changes of authorized stations. A major change in ownership is any change where the original party or parties to the application do not retain more than 50 percent ownership interest in the application as originally filed. In the case of a Class D or an NCE FM reserved band channel station, a major facility change is any change in antenna location which would not continue to provide a 1 mV/m service to some portion of its previously authorized 1 mV/m service area. In the case of a Class D station, a major facility change is any change in community of license or any change in frequency other than to a first-, second-, or third-adjacent channel. A major facility change for a commercial or a noncommercial educational full service FM station, a winning auction bidder, or a tentative selectee authorized or determined under this part is any change in frequency or community of license which is not in accord with its current assignment, except for the following:

(i) A change in community of license which complies with the requirements of paragraph (g) of this section;

(ii) A change to a higher or lower class co-channel, first-, second-, or third-adjacent channel, or intermediate frequency;

(iii) A change to a same-class first-, second-, or third-adjacent channel, or intermediate frequency;

(iv) A channel substitution, subject to the provisions of Section 316 of the Communications Act for involuntary channel substitutions.

(g) Applications proposing to change the community of license of an FM station or assignment are considered to be minor modifications under paragraphs (a)(2), (e)(1), and (f)(1) of this section, and are subject to the following requirements:

(1) The applicant must attach an exhibit to its application containing information demonstrating that the proposed community of license change constitutes a preferential arrangement of allotments or assignments under Section 307(b) of the Communications Act of 1934, as amended (47 U.S.C. 307(b));

(2) The facilities specified by the applicant at the proposed community of license must be mutually exclusive, as defined in § 73.207 or 73.509, with the applicant's current facilities or its current assignment, in the case of a winning auction bidder or tentative selectee; and

(3) Notwithstanding the provisions of § 73.3580(a), the applicant must comply with the local public notice provisions of §§ 73.3580(c)(3), 73.3580(d)(3), and 73.3580(f). The exception contained in § 73.3580(e) shall not apply to an application proposing to change the community of license of an FM station.

(4) Non-reserved band applications must demonstrate the existence of a suitable assignment or allotment site that fully complies with §§ 73.207 and 73.315 without resort to § 73.213 or 73.215.

Note 1 to § 73.3573:

Applications to modify the channel and/or class to an adjacent channel, intermediate frequency (IF) channel, or co-channel may utilize the provisions of the Commission's Rules permitting short spaced stations as set forth in § 73.215 as long as the applicant shows by separate exhibit attached to the application the existence of an allotment reference site which meets the allotment standards, the minimum spacing requirements of § 73.207 and the city grade coverage requirements of § 73.315. This exhibit must include a site map or, in the alternative, a statement that the transmitter will be located on an existing tower. Examples of unsuitable allotment reference sites include those which are offshore, in a national or state park in which tower construction is prohibited, on an airport, or otherwise in an area which would necessarily present a hazard to air navigation.

[FR Doc. E6-21633 Filed 12-19-06; 8:45 am]

BILLING CODE 6712-01-P