Rule2022-17337
Class D FM Station Exemptions
Primary source
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Published
August 12, 2022
Effective
September 12, 2022
Issuing agencies
Federal Communications Commission
Abstract
In this document the Media Bureau (Bureau) of the Federal Communications Commission (Commission or FCC) adopts changes to its public inspection file rules to reinstate the text of an explanatory note that was inadvertently deleted from the Code of Federal Regulations. The note clarified that Class D FM stations, or stations whose programming is wholly "Instructional," are exempt from the requirement to maintain issues and programs lists in their public inspection file. Reinstatement of this explanatory text will provide clarity to regulatees as to their public inspection file obligations.
Full Text
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<title>Federal Register, Volume 87 Issue 155 (Friday, August 12, 2022)</title>
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[Federal Register Volume 87, Number 155 (Friday, August 12, 2022)]
[Rules and Regulations]
[Pages 49769-49771]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17337]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 22-240; DA 22-662; FR ID 97781]
Class D FM Station Exemptions
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document the Media Bureau (Bureau) of the Federal
Communications Commission (Commission or FCC) adopts changes to its
public inspection file rules to reinstate the text of an explanatory
note that was inadvertently deleted from the Code of Federal
Regulations. The note clarified that Class D FM stations, or stations
whose programming is wholly ``Instructional,'' are exempt from the
requirement to maintain issues and programs lists in their public
inspection file. Reinstatement of this explanatory text will provide
clarity to regulatees as to their public inspection file obligations.
DATES: Effective September 12, 2022.
FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Chief, Media Bureau,
Audio Division, (202) 418-2721; Alexander Sanjenis, Assistant Division
Chief, Media Bureau, Audio Division, (202) 418-2779.
[[Page 49770]]
SUPPLEMENTARY INFORMATION: This is a summary of the Media Bureau's
Order (Order), MB Docket No. 22-240; DA 22-662, adopted and released on
June 22, 2022. The full text of this document will be available via the
FCC's Electronic Comment Filing System (ECFS), <a href="https://www.fcc.gov/cgb/ecfs/">https://www.fcc.gov/cgb/ecfs/</a>. Documents will be available electronically in ASCII, Microsoft
Word, and/or Adobe Acrobat. Alternative formats are available for
people with disabilities (braille, large print, electronic files, audio
format), by sending an email to <a href="/cdn-cgi/l/email-protection#fa9c9999cfcaceba9c9999d49d958c"><span class="__cf_email__" data-cfemail="4b2d28287e7b7f0b2d2828652c243d">[email protected]</span></a> or calling the
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
Paperwork Reduction Act of 1995 Analysis
This document does not contain any new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995
(PRA), Public Law 104-13, see 44 U.S.C. 3507.
Therefore, it does not contain any new or modified information
collection burdens for small business concerns with fewer than 25
employees, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4).
Congressional Review Act
The Bureau will send a copy of this Order to Congress and the
Government Accountability Office (GAO) pursuant to the Congressional
Review Act, 5 U.S.C. 801(a)(1)(A).
Synopsis
1. Introduction. In this Order, the Bureau re-codifies clarifying
language from a Note that was inadvertently eliminated from Sec.
73.3527 of the Commission's rules (Rules) relating to the online public
inspection file obligations of applicants, permittees, or licensees
whose existing or prospective facilities are Class D FM stations or
whose programming is wholly ``Instructional'' (referred to collectively
herein as ``Class D FM stations''). We re-codify the language as text
in our Rules to conform to the publishing conventions of the National
Archives and Records Administration's Office of the Federal Register.
This amendment to the Rules does not change any regulatory obligations.
Instead, Sec. 73.3527 will more accurately state the entities to which
it applies, eliminating potential confusion among Class D FM stations.
2. Section 73.3527 outlines the online public inspection file
obligations of noncommercial educational stations. Section
73.3527(e)(8) states that ``nonexempt noncommercial education broadcast
stations'' are required to maintain in their online public inspection
files a quarterly ``list of programs that have provided the station's
most significant treatment of community issues during the preceding
three month period.'' However, the Rule does not define ``nonexempt''
or provide any explanation of which stations are exempt from this
requirement.
3. Prior to the adoption of Sec. 73.3527, the Commission had
clarified that Class D FM stations are exempt from the requirement that
stations maintain in their public files a list of programs addressing
problems in the station's community, FCC 76-234, 41 FR 12424-01 (Mar.
25, 1976) (1976 R&O). Although the Commission required that NCE
stations place in their public files such lists, the Commission
codified in a Note to its Rules that ``[e]xempt licensees include those
offering wholly instructional programming and those operating under
Class D, 10-watt authorizations.'' In 1984, the Commission revisited
the requirement for stations to maintain issues/programs lists, FCC 84-
294, 49 FR 33658-01 (Aug. 24, 1984) (1984 R&O). The 1984 R&O again
noted that Class D FM stations are exempt from the issues/programs
lists requirements due to the limited nature of the service they
provide. Although the Commission's order highlighted the exemption for
Class D FM stations, the actual text of the new Sec. 73.3527
inadvertently omitted that exemption.
4. Subsequently, the Mass Media Bureau issued an order in 1985
noting that the exemption was inadvertently omitted from the text of
Sec. 73.3527 but that Class D FM stations remained exempt from the
requirement to maintain program lists (1985 Bureau Order). Accordingly,
a Note 2 to Sec. 73.3527 was added: ``For purposes of paragraph (a)(7)
of this section, exempt applicants, permittees or licensees include
those whose existing or prospective facilities are Class D FM stations
or whose programming is wholly `Instructional' '' (Class D Note). This
revised version of Sec. 73.3527 was published in the Federal Register
on March 4, 1985, 50 FR 8628-01 (Mar. 4, 1985). and appears in the Code
of Federal Regulations (CFR) editions for 1985, 1986 and 1987.
5. In 1988, the Commission again adopted an order, FCC 88-52, 53 FR
15224 (Apr. 28, 1988), revising the retention of issues/programs lists
in Sec. 73.3527(a)(7) (1988 Order). The 1988 Order revised the rule to
make it consistent with a change made to the companion rule for
commercial stations. The 1987 NPRM that preceded that order did not
propose any change to the Class D exemption; nor did the 1988 Order
discuss any such change. However, the Class D Note did not appear in
the 1988 edition of the CFR, nor in any subsequent edition.
6. Compounding the confusion created by the apparent inadvertent
deletion of the Class D Note following the 1988 Order, the Bureau
issued a Forfeiture Order in 2009, DA 09-590, (UMW) where it
specifically rejected an argument that Class D FM stations are exempt
from the issues/programs list requirement of Sec. 73.3527. Although
UMW correctly states that the Commission did indeed make Class D FM
stations exempt in the 1976 R&O, it incorrectly held that the
Commission did not intend to continue that exemption in effect when it
adopted Sec. 73.3527. UMW did not address the 1985 Bureau Order, which
clarified that Class D FM stations are exempt from Sec. 73.3527, nor
did it explain what stations are considered exempt from the issues/
programs list requirement.
7. Discussion. We find that the omission of the Class D Note from
the 1988 Order and subsequent editions of the CFR was an inadvertent
one, unrelated to the proposal addressed in that order, and re-codify
the exemption that relieves Class D FM stations from the requirement to
maintain issues/programs lists in their online public inspection file.
In reaching this determination, we are guided by the fact that the
Commission never proposed to issue, and never issued, an order
rescinding the Class D Note, or otherwise deleting the Class D Note
from Sec. 73.3527. Our reinstatement of the exemption is consistent
with the holdings in the 1976 R&O and 1984 R&O--as clarified by the
1985 Bureau Order--that Class D FM stations should be exempt from the
issues/programs list requirement. Accordingly, to provide clarity to
Class D FM stations and to conform to the publishing conventions of the
National Archives and Records Administration's Office of the Federal
Register, we amend Sec. 73.3527(e)(8) as set out in the Appendix by
including the text of the Class D Note.
8. We find that notice and comment procedures are unnecessary under
the good cause exception of the Administrative Procedure Act because
re-codifying the inadvertently deleted text of the deleted Class D Note
merely restores an exemption to Sec. 73.3527 that the Commission
established and has never sought to change in subsequent rulemaking
actions. Consequently, we find notice and comment procedures are
unnecessary for this action.
[[Page 49771]]
9. Finally, we disavow the Bureau's holding in UMW. As discussed
above, the 1985 Bureau Order clearly states that Class D FM stations
were meant to be exempted from the issues/programs lists requirement of
Sec. 73.3527, and no subsequent Commission decision changed that
requirement. The removal of the Class D Note from Sec. 73.3527 was not
done pursuant to a Commission action, but rather through apparent
inadvertence. Therefore, that exemption is still valid, and UMW
provides an example of the importance of reflecting this exemption
within the text of Sec. 73.3527(e)(8).
Procedural Matters
10. Regulatory Flexibility Analysis. Because these rule changes are
being adopted without notice and comment, the Regulatory Flexibility
Act does not apply. See 5 U.S.C. 601(2).
11. Paperwork Reduction Act Analysis. The document does not contain
new or modified information collection requirements subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it
does not contain any new of modified information collection burdens for
small business concerns with fewer than 25 employees, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198. See 44
U.S.C. 3506(c)(4).
12. Congressional Review Act. The Media Bureau has determined, and
the Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The Media
Bureau will send a copy of this Order to Congress and the Government
Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
Ordering Clauses
13. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1, 4(i), 4(j), 301, 303, 307, 308, 309, 316, and
319 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
154(i), 154(j), 301, 303, 307, 308, 309, 316, and 319, the Order is
adopted and will become effective 30 days after publication in the
Federal Register.
14. It is further ordered that part 73 of the Commission's rules is
amended as set forth in the Final Rules, effective as of thirty (30)
days after the date of publication in the Federal Register.
15. It is further ordered that the Media Bureau shall send a copy
of the Order in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A).
16. It is further ordered that, should no petitions for
reconsideration or petitions for judicial review be timely filed, MB
Docket No. 22-240 shall be terminated and its docket closed.
List of Subjects in 47 CFR Part 73
Communications equipment, Radio, Reporting and recordkeeping
requirements, Television.
Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
2. Amend Sec. 73.3527 by revising the last sentence of paragraph
(e)(8) to read as follows:
Sec. 73.3527 Online public inspection file of noncommercial
educational stations.
* * * * *
(e) * * *
(8) * * * For the purposes of this section, exempt applicants,
permittees, or licensees include those whose existing or prospective
facilities are Class D FM stations or whose programming is wholly
``Instructional.''
* * * * *
[FR Doc. 2022-17337 Filed 8-11-22; 8:45 am]
BILLING CODE 6712-01-P
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