[Federal Register Volume 74, Number 100 (Wednesday, May 27, 2009)]
[Proposed Rules]
[Pages 25205-25208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12310]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket Nos. 07-294, 06-121, 02-277, 04-228; MM Docket Nos. 01-235,
01-317, 00-244; FCC 09-33]
Promoting Diversification of Ownership in the Broadcasting
Services
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Fourth Further Notice of Proposed Rulemaking (Fourth
FNPRM) seeks comment on whether to modify FCC Form 323-E, the Ownership
Report filed by noncommercial educational (NCE) licensees of AM, FM,
and TV broadcast stations, to obtain gender, race, and ethnicity data.
Obtaining the information, the FCC believes, would further its goal to
design policies to advance diversity in the broadcast industry. The
Fourth FNPRM also seeks comment on whether to collect gender, race and
ethnicity ownership information for low power FM (LPFM) licensees or
whether to continue to exempt LPFM licensees from the 323-E filing
requirements.
DATES: Submit comments on or before June 26, 2009 and submit reply
comment on or before July 13, 2009. Submit written comments on the PRA
proposed information collection requirements on or before July 27,
2009.
ADDRESSES: You may submit comments, identified by MB Docket Nos. 07-
294; 06-121; 02-277; 04-228; MM Docket Nos. 01-235; 01-317; 00-244, by
any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
Mail: Submit hand-delivery paper comments to the
Commission's contractor at 236 Massachusetts Avenue, NE., Suite 110,
Washington, DC 20002. Submit commercial overnight mail to 9300 East
Hampton Drive, Capitol Heights, MD 20743. Submit U.S. Postal Service
First-Class, Express, and Priority mail to 445 12th Street, SW.,
Washington, DC 20554.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or phone: (202)
418-0530 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Mania Baghdadi, (202) 418-2330; Amy
Brett (202) 418-2300.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth
FNPRM adopted April 8, 2009, and May 5, 2009. The full text of this
document is available for public inspection and copying during regular
business hours in the FCC Reference Center, Federal Communications
Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These
documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs). The complete text may be purchased from the Commission's copy
contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554.
Submit PRA comments to Nicholas A. Fraser, Office of Management and
Budget, by e-mail at [email protected] or via fax at
(202) 395-5167 and to Cathy Williams, Federal Communications
Commission, Room 1-C823, 445 12th Street, SW., Washington, DC or by e-
mail at [email protected] or [email protected].]
Filing Requirements
Ex Parte Rules. The Fourth FNPRM will be treated as ``permit-but-
disclose'' subject to the ``permit-but-disclose'' requirements under
Section 1.1206(b) of the Commission's rules. Ex parte presentations are
permissible if disclosed in accordance with Commission rules, except
during the Sunshine Agenda period when presentations, ex parte or
otherwise, are generally prohibited. Persons making oral ex parte
presentations are reminded that a memorandum summarizing a presentation
must contain a summary of the substance of the presentation and not
merely a listing of the subjects discussed. More than a one- or two-
sentence description of the views and arguments presented is generally
required. Additional rules pertaining to oral and written presentations
are set forth in Section 1.1206(b) of the Commission's rules.
Comments and Reply Comments. Pursuant to sections 1.415 and 1.419
of the Commission's rules, interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. Comments may be filed using (1) the Commission's
Electronic Comment Filing System (ECFS); (2) the Federal Government's
eRulemaking Portal; or (3) by filing paper copies. Electronic Filers:
Comments may be filed electronically using the Internet by accessing
the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking
Portal: http://www.regulations.gov. Filers should follow the
instructions provided on the Web site for submitting comments. For ECFS
filers, if multiple docket or rulemaking numbers appear in the caption
of this proceeding, filers must transmit one electronic copy of the
comments for each docket or rulemaking number referenced in the
caption. In completing the transmittal screen, filers should include
their full name, U.S. Postal Service mailing address, and the
applicable docket or rulemaking number. Parties may also submit an
electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to [email protected], and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
[[Page 25206]]
Paper Filers: Parties who choose to file by paper must file an
original and four copies of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number. Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although the FCC continues to experience delays in
receiving U.S. Postal Service mail). All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission. The Commission's contractor will receive
hand-delivered or messenger-delivered paper filings between 8 a.m. to 7
p.m. All hand deliveries must be held together with rubber bands or
fasteners. Any envelopes must be disposed of before entering the
building.
People with Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202)
418-0432 (TTY). Persons with disabilities who need assistance in the
FCC Reference Center may contact Bill Cline at (202) 418-0267 (voice),
(202) 418-0432 (TTY), or [email protected].
Availability of Documents. Comments, reply comments, and ex parte
submissions will be available for public inspection during regular
business hours in the FCC Reference Center, Federal Communications
Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These
documents also will be available from the Commission's Electronic
Comment Filing System. Documents are available electronically in ASCII,
Word 97, and Adobe Acrobat. Copies of filings in this proceeding may be
obtained from Best Copy and Printing, Inc., Portals II, 445 12th
Street, SW., Room CY-B402, Washington, DC 20554; they can also be
reached by telephone, at (202) 488-5300 or (800) 378-3160; by e-mail at
[email protected]; or via their Web site at http://www.bcpiweb.com.
Summary of the Fourth Further Notice of Proposed Rulemaking
1. Noncommercial Entities. The FCC Form 323-E Ownership Report is
filed by NCE licensees of AM, FM, and TV broadcast stations. Currently,
Form 323-E does not ask gender, race, or ethnicity data questions. The
FCC seeks comment on whether to include this information on the form.
The FCC tentatively concludes that obtaining gender, race, and
ethnicity information would further its goal to design policies to
advance diversity in the broadcast industry. The FCC believes that data
from the entire universe of NCE stations are necessary to provide a
comprehensive picture of broadcast ownership, including ownership by
women and minorities in the broadcast industry. Researchers and the GAO
support modifying the filing requirements to collect ownership data for
NCE stations.
2. The FCC recognizes, however, that there are a number of data
collection issues that could thwart its efforts to obtain minority and
gender data due to the complex ownership structure of some NCE
licensees. Many NCE broadcast licensees are non-profit, non-stock
entities, or governmental organizations that are controlled by
governing boards or trustees composed of members who do not have a
financial stake in the licensee organization. Their structure and
organization raise difficult issues as to how to define ownership in
the NCE context.
3. The FCC seeks comment on how to define ownership, including
minority and/or female ownership, in the NCE context. The FCC
recognizes that organizational documents are important in defining an
NCE entity's structure and mission, including whether it serves
underserved audiences. However, these documents would not provide the
same kind of empirical evidence that ownership statistics provide in
the commercial context. The FCC asks whether looking at the composition
of the board of directors or other governing entity of an NCE station
would be adequate for this purpose. It also asks whether that
information would meaningfully expand its information on minority and
female ownership. In addition, the FCC seeks comment on any potential
reporting and recordkeeping burdens on NCE entities. It asks whether
difficulties in defining ownership in this context would compromise the
integrity of the data and whether there are ways to minimize burdens on
NCEs from this proposed reporting requirement. Assuming the FCC decides
to seek information as to minority and female ``ownership'' of NCE
licensees, it also seeks comment on whether to adopt the same or
similar modifications to Form 323-E that are adopted in the
accompanying Order for Form 323. For instance, it seeks comment on
whether to establish a uniform biennial filing date and a uniform date
as of which filers must identify ownership interests. It also seeks
comment as to how to assure data quality, including whether measures
such as improving the computer interface process, building in
additional checks for Form 323-E to perform verification and review
functions, and ensuring that all data filed is in a format that can be
electronically searched, aggregated, and cross-referenced, are
appropriate and sufficient.
4. LPFM licensees and permittees are currently exempt from filing
Form 323-E. As of December 31, 2008, there are 859 LPFM licensees, all
of which are NCE entities. The FCC seeks comment on whether to require
LPFM licensees to file Form 323-E as the FCC proposes to revise it, to
collect minority and gender information for LPFM licensees or to
continue to exempt LPFM licensees from the 323-E filing requirements.
The FCC seeks comment on whether the exclusion of any NCE ownership
information, such as information on LPFM licensees, would diminish the
usefulness of the new data. The FCC also invites comment as to whether
it would be burdensome for LPFM licensees to report this information
and, if so, how burdensome. If the FCC decides to collect this data
from LPFM licensees, it seeks comment on whether LPFM licensees should
be required to file Form 323-E or another shorter form that only seeks
minority and gender ownership information.
Initial Paperwork Reduction Act Analysis
5. The Fourth FNPRM contains potential information collection
requirements subject to the Paperwork Reduction Act of 1995 (``PRA''),
Public Law 104-13. OMB, the general public, and other Federal agencies
are invited to comment on the potential new and modified information
collection requirements contained in this Fourth FNPRM. If the
information collection requirements are adopted, the Commission will
submit the appropriate documents to the Office of Management and Budget
(OMB) for review under Section 3507(d) of the PRA and OMB, the general
public, and other Federal agencies will again be invited to comment on
the new and modified information collection requirements adopted by the
Commission. Comments should address: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
burden estimates; (c) ways to enhance the quality, utility, and clarity
of the information collected; and (d) ways to minimize the burden of
the collection of information on the respondents, including the use of
[[Page 25207]]
automated collection techniques or other forms of information
technology. Pursuant to the Small Business Paperwork Relief Act of
2002, Ex. Public Law 107-98, see 44 U.S.C. 3506(c)(4), the FCC seeks
specific comment on how it might ``further reduce the information
collection burden for small business concerns with fewer than 25
employees.''
Initial Regulatory Flexibility Analysis
6. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA''), the Commission has prepared an Initial Regulatory
Flexibility Analysis (``IRFA'') of the possible economic impact on
small entities by the policies and rules proposed in this Fourth FNPRM.
Written public comments are requested on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by the deadlines
for comments on the Fourth FNPRM. The Commission will send a copy of
the Fourth FNPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (``SBA'').
A. Need for, and Objectives of, the Proposed Rules
7. The Fourth FNPRM invites comment on proposed revisions to FCC
Form 323-E, which would for the first time collect information on
minority and female ownership of noncommercial radio and television
licensees. The objective of the information collection is to obtain
comprehensive ownership data to further the Commission's goal to design
policies to advance diversity in the broadcast industry. In addition,
the Fourth FNPRM seeks comment on whether to require LPFM licensees,
which are noncommercial broadcast licensees, to file Form 323-E on a
biennial basis and to file information as to their minority and female
ownership.
B. Legal Basis
8. This Fourth FNPRM is adopted pursuant to sections 1, 2(a), 3,
4(i, j), 257, 301, 303(r), 307-10, and 614-15 of the Communications Act
of 1934, as amended, 47 U.S.C. 151, 152(a), 153, 154(i, j), 257, 301,
303(r), 307-10, 534-35.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
9. The RFA directs agencies to provide a description of, and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental entity''
under Section 3 of the Small Business Act. In addition, the term
``small business'' has the same meaning as the term ``small business
concern'' under the Small Business Act. 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 SBA.
10. Television Broadcasting. The rules and policies proposed herein
apply to licensees of noncommercial television stations, as well as
potential licensees of noncommercial television stations. In this
context, the application of the statutory definition to television
stations is of concern. The Small Business Administration defines a
television broadcasting station that has no more than $14 million in
annual receipts as a small business. Business concerns included in this
industry are those ``primarily engaged in broadcasting images together
with sound.'' According to Commission staff review of the BIA Financial
Network, Inc. Media Access Pro Television Database as of February 19,
2009 there are about 392 noncommercial television stations. The FCC
does not have revenue data or revenue estimates for these stations.
These stations rely primarily on grants and contributions for their
operations, so the FCC will assume that all of these entities qualify
as small businesses. In assessing whether a business entity qualifies
as small under the above definition, business control affiliations must
be included. The FCC is unable to include or aggregate revenues from
affiliated companies or entities so its assumption may overstate the
number of small entities that might be affected by the proposal to
require these entities to file Form 323-E.
11. An element of the definition of ``small business'' is that the
entity not be dominant in its field of operation. The Commission is
unable at this time and in this context to define or quantify the
criteria that would establish whether a specific noncommercial
television station is dominant in its market of operation. Accordingly,
the foregoing estimate of small businesses to which the proposed
information collection may apply does not exclude any television
stations from the definition of a small business on this basis and is
therefore over-inclusive to that extent. An additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. It is difficult at times to assess
this criterion in the context of media entities, and the Commission's
estimate of small businesses to which the proposed information
collection may apply may be over-inclusive to this extent.
12. Radio Broadcasting. The rules and policies proposed herein
apply to licensees of noncommercial radio stations, as well as to
potential licensees of noncommercial radio stations. The Small Business
Administration defines a radio broadcasting entity that has $7 million
or less in annual receipts as a small business. Business concerns
included in this industry are those ``primarily engaged in broadcasting
aural programs by radio to the public.'' According to Commission staff
review of the BIA Financial Network, Inc. Media Access Pro Radio
Analyzer Database as of February 19, 2009 there are about 3,141
noncommercial radio stations. The FCC does not have revenue data or
revenue estimates for these stations. These stations rely primarily on
grants and contributions for their operations, so it will assume that
all of these entities qualify as small businesses. In assessing whether
a business entity qualifies as small under the above definition,
business control affiliations must be included. The FCC is unable to
include or aggregate revenues from affiliated companies or entities so
its assumption may overstate the number of small entities that might be
affected by the proposal to require these entities to file Form 323-E.
13. In this context, the application of the statutory definition to
radio stations is of concern. An element of the definition of ``small
business'' is that the entity not be dominant in its field of
operation. The FCC is unable at this time and in this context to define
or quantify the criteria that would establish whether a specific radio
station is dominant in its field of operation. Accordingly, the
foregoing estimate of small businesses to which the rules may apply
does not exclude any radio station from the definition of a small
business on this basis and is therefore over-inclusive to that extent.
An additional element of the definition of ``small business'' is that
the entity must be independently owned and operated. The FCC notes that
it is difficult at times to assess this criterion in the context of
media entities, and its estimate of small businesses to which the
proposed information collection may apply may be over-inclusive to this
extent.
14. Low Power FM Stations. The proposed information collection
could affect licensees of low power FM (LPFM) stations, as well as
potential licensees in this radio service. The same
[[Page 25208]]
SBA definition that applies to radio broadcast licensees would apply to
these stations. The SBA defines a radio broadcast station as a small
business if such station has no more than $7 million in annual
receipts. As of December 31, 2008, there are approximately 859 licensed
LPFM stations. Given the nature of these services, the FCC will presume
that all of these licensees qualify as small entities under the SBA
definition.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
15. The Fourth FNPRM seeks comment on whether to revise Form 323-E,
the ownership report for noncommercial educational broadcast licensees,
to include minority and gender information. Therefore, the rules might
contain modified information collections for noncommercial broadcast
licensees. The FCC anticipates that changes in reporting or
recordkeeping requirements for noncommercial broadcast entities would
result from the changes in the Commission's Form 323-E necessary to
implement the proposal to collect gender, race or ethnicity data. In
addition, the FCC anticipates that changes in reporting or
recordkeeping requirements for LPFM licensees would result from new
323-E filing requirements. The Fourth FNPRM also seeks comment on
whether to require low power FM (LPFM) licensees to file, on a biennial
basis, Ownership Report, Form 323-E. Therefore, the rules might contain
modified information collections for LPFM licensees.
E. Steps Taken To Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered
16. The RFA requires an agency to describe any significant
alternatives that might minimize any significant economic impact on
small entities. Such alternatives 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 and
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.
17. As noted, the FCC is directed under law to describe any such
alternatives it considers, including alternatives not explicitly listed
above. The Fourth FNPRM seeks comment on the tentative conclusion that
obtaining gender and racial/ethnic information from all noncommercial
stations would further the FCC's goal to design policies to advance
diversity in the broadcast industry. In the alternative, the Commission
could defer until a later time collection of such information. The
Fourth FNPRM also seeks comment on whether the proposed data collection
would impose a significant reporting, recordkeeping, or other
compliance burden on noncommercial entities, especially smaller
noncommercial entities, and whether there are alternative ways to
minimize burdens on NCEs from this proposed reporting requirement. In
particular, the Fourth FNPRM recognizes that organizational documents
are important in defining a noncommercial entity's structure and
mission, including whether it serves underserved audiences. However,
the Fourth FNPRM notes that these documents would not provide the same
kind of empirical evidence that ownership statistics provide in the
commercial context. Therefore, the Fourth FNPRM asks whether looking at
the composition of the board of directors or, in the alternative, some
other governing entity of a noncommercial station would be adequate for
this purpose and whether the information would meaningfully expand the
FCC's information on minority and female ownership. In addition, the
Fourth FNPRM asks whether to establish a uniform biennial filing date
and a uniform date as of which filers must identify ownership
interests. In addition, the Fourth FNPRM asks how to assure data
quality, including whether improving the computer interface process,
building in additional checks for Form 323-E to perform verification
and review functions, and ensuring that all data filed is in a format
that can be electronically searched, aggregated, and cross-referenced,
are appropriate and sufficient. The Fourth FNPRM also seeks comment on
the extent of the burden on LPFM licensees, all of which are smaller
noncommercial entities. The Commission especially encourages small
entities to comment on the proposals in the Fourth FNPRM in this
proceeding. The Commission welcomes comment, including presentation of
alternatives to or modifications of rules proposed herein, on how to
minimize any burdens on small business licensees.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E9-12310 Filed 5-26-09; 8:45 am]
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