Proposed Rule2024-02039
Priority Application Review for Broadcast Stations That Provide Local Journalism or Other Locally Originated Programming
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Published
February 8, 2024
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) issues a Notice of Proposed Rulemaking to prioritize processing review of certain applications filed by commercial and noncommercial radio and television broadcast stations that provide locally originated programming. The Commission's goal is to provide additional incentive to stations to provide programming that responds to the needs and interests of the communities they are licensed to serve. In 2017, the Commission eliminated the rule that required broadcast stations to maintain a main studio located in or near their community of license, as well as the associated requirement that the main studio have program origination capability. We propose this processing priority in order to further encourage radio and TV stations to serve their community of license with local journalism or other locally originated programming. Such prioritization would be granted to renewal applicants, as well as applicants for assignment or transfer of license, that certify they provide locally originated programming, thereby advancing our efforts to promote localism and serve local communities across the nation.
Full Text
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<title>Federal Register, Volume 89 Issue 27 (Thursday, February 8, 2024)</title>
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[Federal Register Volume 89, Number 27 (Thursday, February 8, 2024)]
[Proposed Rules]
[Pages 8622-8629]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02039]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 24-14; FCC 24-1; FR ID 198888]
Priority Application Review for Broadcast Stations That Provide
Local Journalism or Other Locally Originated Programming
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) issues a Notice of Proposed Rulemaking to prioritize
processing review of certain applications filed by commercial and
noncommercial radio and television broadcast stations that provide
locally originated programming. The Commission's goal is to provide
additional incentive to stations to provide programming that responds
to the needs and interests of the communities they are licensed to
serve. In 2017, the Commission eliminated the rule that required
broadcast stations to maintain a main studio located in or near their
community of license, as well as the associated requirement that the
main studio have program origination capability. We propose this
processing priority in order to further encourage radio and TV stations
to serve their community of license with local journalism or other
locally originated programming. Such prioritization would be granted to
renewal applicants, as well as applicants for assignment or transfer of
license, that certify they provide locally originated programming,
thereby advancing our efforts to promote localism and serve local
communities across the nation.
DATES: Comments may be filed on or before March 11, 2024, and reply
comments may be filed on or before April 8, 2024.
ADDRESSES: You may submit comments and reply comments, identified by MB
Docket No. 24-14, by any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: <a href="https://apps.fcc.gov/ecfs/">https://apps.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
<bullet> Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). <a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>.
People with Disabilities. To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#fc9a9f9fc9ccc8bc9a9f9fd29b938a"><span class="__cf_email__" data-cfemail="97f1f4f4a2a7a3d7f1f4f4b9f0f8e1">[email protected]</span></a> or call the
Consumer and Governmental Affairs Bureau at (202) 418-0530.
FOR FURTHER INFORMATION CONTACT: Kim Matthews, Media Bureau, Policy
Division, at (202) 418-2154, or by email at <a href="/cdn-cgi/l/email-protection#e6ad8f8bc8ab8792928e839195a6808585c8818990"><span class="__cf_email__" data-cfemail="86cdefeba8cbe7f2f2eee3f1f5c6e0e5e5a8e1e9f0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), in MB Docket No. 24-14; FCC 24-1,
adopted on January 10, 2024 and released on January 17, 2024. The full
text of this document is available for download at <a href="https://docs.fcc.gov/public/attachments/FCC-24-1A1.pdf">https://docs.fcc.gov/public/attachments/FCC-24-1A1.pdf</a>.
To request materials in accessible formats (braille, large print,
computer diskettes, or audio recordings), please send an email to
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="a4e2e7e7919490e4c2c7c78ac3cbd2">[email protected]</a> or call the Consumer & Government Affairs Bureau at
(202) 418-0530 (VOICE), (202) 418-0432 (TTY).
Synopsis
I. Background
1. One of a broadcaster's fundamental public service obligations is
to provide programming that is responsive to the needs and interests of
its community of license. The Communications Act requires the
Commission to determine, in the case of applications for licenses,
``whether the public interest, convenience, and necessity will be
served by granting such application.'' The Commission has consistently
interpreted this requirement to mean that licensees must air
programming
[[Page 8623]]
that serves their local community. The main studio and local program
origination rules were originally adopted to ensure that broadcast
stations fulfill their local service obligations. In furtherance of
section 307(b) of the Communications Act of 1934, as amended (the Act),
which requires the Commission to ``make such distribution of licenses,
frequencies, hours of operation, and of power among the several States
and communities as to provide for a fair, efficient, and equitable
distribution of radio service to each of the same,'' each broadcast
radio and television station is assigned to a community of license that
it is obligated to serve. The main studio rule required stations to
maintain the main studio in or near its community of license to
facilitate interaction between the station and the local community it
is licensed to serve. The Commission also required that the main studio
have a ``meaningful management and staff presence'' to fulfill the main
studio's function, and that the main studio be equipped with production
and transmission facilities.
2. Locally originated programming was deemed an important element
of a station's service obligations from the time location requirements
for AM, FM, and TV broadcast stations were first adopted. As the main
studio played a key role in the origination of a broadcast station's
programming, its location in the community helped to ensure that the
station could participate in community activities, that community
members could participate in live programs, and that community
residents could more easily present complaints or suggestions to the
station. The Commission reasoned that interaction between the station
and the community would help foster programming responsive to community
needs and concerns.
3. In 2017, however, the Commission eliminated the main studio rule
and the associated requirements that the main studio have full-time
management and staff present during normal business hours, and that it
have program origination capability. The Commission found that
technological changes have ``rendered local studios unnecessary'' as a
means for viewers and listeners to contact or access their local
station. The Commission noted that most community members communicate
with stations via email, station websites, telephone, or other means,
rather than visiting a main studio, and that public inspection files
can now be viewed on the Commission's Online Public Inspection File
(OPIF) database. The Commission also found that there was no evidence
that the physical location of a station's main studio is the reason
broadcasters are able to deliver content that meets the needs and
interests of the local community.
4. The elimination of the main studio rule and its associated
requirements followed other, earlier steps taken by the Commission to
reduce or eliminate regulations applicable to TV and radio broadcasters
that were intended to reinforce the obligation of stations to provide
programming responsive to community needs and interests. In its radio
and television deregulation orders, the Commission eliminated its
formal ascertainment and program log requirements and quantitative
guidelines regarding the duration, type, and time of presentation of
nonentertainment programming. While the Commission concluded generally
that these requirements were no longer necessary or appropriate means
to ensure station operation in the public interest, it reaffirmed the
continuing obligation of all licensees to provide issue-responsive
programming.
5. Currently, the Commission requires stations to prepare quarterly
a list of programs that ``have provided the most significant treatment
of community issues.'' The purpose of this requirement is to provide
both the public and the Commission with information needed to monitor a
licensee's performance in meeting its public interest obligation of
providing programming that is responsive to its community. Our current
rules require full-power radio and TV and Class A TV broadcasters to
post these issues/programs lists on the station's OPIF. Further, as
part of the broadcast station license renewal process, the Commission
is required to find that ``the station has served the public interest,
convenience, and necessity'' during its preceding license term.
II. Discussion
6. To provide an additional incentive to stations to broadcast
content responsive to the needs of the local community, particularly
news and information, we propose to adopt a change in our application
processing procedures that would benefit those radio and TV
broadcasters that certify that they provide locally originated content.
Specifically, when reviewing applications for renewal, transfer, or
assignment of license, we propose to adopt a processing policy to
prioritize evaluation of those applications filed by stations that
certify that they provide locally originated programming. These
applications would be the first to be reviewed, which would likely
result in quicker action and, if the application is granted, quicker
approval of these applications.
7. We tentatively conclude that our proposal to award priority
application review to applicants that provide locally originated
programming advances the Commission's longstanding policy goal of
encouraging licensees to air programming that serves the needs and
interests of their local community. We also tentatively conclude that
the provision by a station of locally originated programming serves as
a reasonable gauge of whether the station is serving the public
interest by providing programming that is responsive to particular
local needs. In addition, by focusing on where the programming is
created, our proposal avoids having the Commission try to evaluate the
content of a station's broadcasts to determine their local nature.
8. The Commission has recognized that programming does not have to
be locally originated to have interest or value to audiences in any
particular community and has suggested that locally originated content
may not always be responsive to a community's needs or interests. But
the corollary that some may read into those statements--that locally
originated programming is not valuable enough to warrant Commission
attention--goes too far. To the contrary, programming containing at
least some locally sourced content appears quite likely to be
responsive to local concerns and interests. We believe that the
incentives behind the creation of local programming (including but not
limited to financial incentives) tend to align local creators with the
needs and interests of local audiences; evidence suggests that creators
of local programming would be unlikely to expend time and financial
resources on material that has little or no appeal to local listeners
and viewers. We also recognize that the line between ``local'' and
``non-local'' is not always a sharp one; broadcasters may ``localize''
a state, national, or international issue by providing local commentary
or local expert explanations on the probable effect of the issue on
people within the station's signal contour. Such content plainly also
serves local needs and interests. We seek comment on these views.
9. Accordingly, to the degree that the Main Studio Elimination
Order could be read to the contrary, we tentatively conclude that
locally originated programming usually reflects needs, interests,
circumstances, or perspectives that may be quite pertinent to that
community and that production of local broadcast programming remains a
key
[[Page 8624]]
consideration. We also question whether the Main Studio Elimination
Order's predictive judgment--that the Commission's action there would
foster creation of more and better local content--has actually come to
pass. We invite comment on these views and request commenters to
provide analysis and data in support of their positions. Under our
proposal, licensees will continue to ultimately have the discretion to
determine what mix of local and non-local programming will best serve
the community. We tentatively conclude our proposal does not interfere
with this discretion but merely offers an opportunity to licensees to
obtain prioritized review of applications if they certify that they
provide programming that is locally originated. We invite comment
generally on these views.
A. Processing Priority
10. We tentatively conclude that our proposal would apply only to
those applications for which processing is not immediately available
because the application has a hold, petition to deny, or other pending
issue that requires further staff review. Applications without holds or
other processing issues requiring additional staff review, also
referred to here as ``simple'' applications, would be acted upon
consistent with current routine processing procedures. In contrast,
applications that have holds related to the applicant's failure to
comply with Commission rules, or where petitions to deny or informal
objections have been filed, generally require additional staff research
and processing time before they can be processed. The amount of time it
takes to process these types of applications is often dependent upon
the number of applications pending before the Commission at any given
time, the complexity of the issues involved, and the availability of
Commission staff to process the applications in light of other agency
priorities. With respect to these more ``complex'' applications, we
propose that the staff first would consider those that are filed
together with a certification that the station provides programming
that is locally originated. We tentatively conclude this approach will
not slow the review of ``simple'' applications that are otherwise
grantable but will create a priority system for more ``complex''
applications that require further staff attention. We will not delay
the processing of a ``simple'' application while a more ``complex''
application with a certification is pending. We seek comment on this
approach.
11. We propose that the decision by a licensee to elect to certify
that the station meets the local programming guideline be purely
voluntary, and we seek comment on this proposal. With respect to those
licensees that either cannot, or choose not, to provide a
certification, the Commission staff will process the licensee's
application pursuant to its normal procedures. Applications that do not
include a certification will not be scrutinized or processed
differently as a substantive matter than applications with a
certification, other than the prioritization proposal discussed above.
12. While we do not propose at this time to extend our proposed
application processing priority to modification applications, waiver
requests, or requests for Special Temporary Authority (STA), we invite
comment on whether these types of applications and requests should be
included in our proposal herein. Based upon the experience of the
Media's Bureaus licensing divisions, we note that the review time for
these applications is generally more abbreviated than for renewals and
transactions, and therefore such a prioritization may not be
appreciably relevant. Despite this, should these, or other, kind of
requests be treated in the same manner as renewal applications and
applications for assignment and transfer of control for purposes of
application processing priority?
13. Finally, we do not propose to offer priority application
review, as outlined herein, to applications filed for radio translators
or boosters or TV translators. Booster stations do not originate
programming and translator stations may only originate a very limited
amount of programming so the underlying purpose of the proposed
processing policy--i.e., to further incentivize broadcast licensees to
serve community needs and interests through production of locally
originated programming--would not apply. Accordingly, we believe there
would be minimal value, if any, in asking these stations to certify
they provide locally originated programming content. As noted above, we
tentatively conclude this approach will not slow the review of
``simple'' applications that are otherwise grantable. We seek comment
on our proposals and findings.
B. Applications Eligible for Processing Priority
1. ``Local'' Market
14. Under our proposal, we would prioritize the review of
applications filed by stations that provide locally originated
programming. We invite comment on how we should define ``local'' for
this purpose. The former main studio rule required each AM, FM, and
television broadcast station to maintain a main studio that is located
either: ``(1) [w]ithin the station's community of license; (2) [a]t any
location within the principal community contour of any AM, FM, or TV
broadcast station licensed to the station's community of license; or
(3) [w]ithin twenty-five miles from the reference coordinates of the
center of its community of license as described in Sec.
73.208(a)(1).'' Should we define ``locally originated'' programing as
programming originated within one or more of these geographic areas?
One purpose of the former main studio rule was to ensure that the
station complied with its local service obligations. Would adopting a
definition of the geographic area in which ``locally originated ''
programming is created for purposes of priority application review in a
manner similar to the geographic area used for the former main studio
rule help ensure that this programming reflects the needs and interests
of the local community? Should we instead define the ``local'' market
as the station's service contour? As service contours generally
encompass a larger geographic area than a station's community of
license or principal community contour, this definition would give the
station more flexibility with respect to where local programming could
be originated. We invite comment generally on how to define the
geographic area in which a program should be originated in order to
qualify as ``local'' under our proposal herein. Should we define the
local market differently for radio stations than for TV stations?
Should we define the local market differently for low power TV stations
than full power TV stations?
2. Locally ``Originated'' Programming
15. We also invite comment on how to define programming
``originated'' locally for purposes of qualifying for priority
application review. We propose that any kind of activity involved in
creating audio (radio) or video (TV) programming that occurs within the
``local'' market, as defined in this proceeding, would be sufficient.
Local program origination could involve, for example, activities such
as program scripting, recording (video or audio) at a studio or other
location in the local market, or editing. Our proposed approach would
include programming that contains video or audio recordings that were
made at locations outside the local market, as long as the program also
includes some other element of local
[[Page 8625]]
creation. For particular programming that contains content made at
locations outside the local market, should we establish a minimum
amount of required locally originated programming? What other kinds of
local activities should qualify as local program origination?
16. We note that, in the case of mutually exclusive applications
for new Low Power FM (LPFM) stations, the Commission's rules favor the
selection of applicants that pledge to provide at least eight hours of
locally originated programming each day. The LPFM rules define ``local
origination'' as ``the production of programming by the licensee within
ten miles of the coordinates of the proposed transmitting antenna'' and
provides the following examples of locally originated programming:
``licensee produced call-in shows, music selected and played by a disc
jockey present on site, broadcasts of events at local schools, and
broadcasts of musical performances at a local studio or festival,
whether recorded or live.'' We propose that these kinds of programs and
activities would qualify as locally originated programming for purposes
of our proposed priority application review, and invite comment on this
proposal. Are there other examples of locally originated programming we
should provide?
17. We note that, in the LPFM context for resolving mutually
exclusive applications, the rules require the locally originated
programming to be produced by the licensee. We do not propose to adopt
a similar requirement for this priority application review proposal.
Thus, we propose that the locally originated content can be produced by
a third party that is not the licensee. We invite comment on this
approach.
18. The LPFM rules further provide that local origination ``does
not include the broadcast of repetitive or automated programs or time-
shifted recordings of non-local programming whatever its source.''
Should we exclude these kinds of programs and/or time-shifted
recordings from the definition of local programming for purposes of
priority application review? In addition, the LPFM rules provide that
``local origination does not include a local program that has been
broadcast twice, even if the licensee broadcasts the program on a
different day or makes small variations in the program thereafter.'' In
adopting this restriction for LPFM, the Commission noted that local
origination is a ``central virtue'' of that service and that there was
``room for abuse'' if repetitious, automated programs could count as
locally originated. Should we adopt this same restriction on repetition
of locally originated programming for purposes of priority application
review? With respect to television stations, should we define ``locally
originated programming'' for purposes of priority application review as
programming containing simultaneous video and audio programming where
the audio portion of the programming directly relates to the video
portion of the program? This would mean that, for television
applicants, video-only or audio-only programming would not count for
purposes of obtaining priority application review. For television
stations, would this restriction help ensure that locally originated
programming contains the type of television services viewers expect TV
stations to provide?
C. Certification
19. We propose to provide priority staff review to licensees that
certify that the station(s) provides on average at least three hours
per week of locally originated programming. We note that, to be
eligible for Class A status, the CBPA required that low power TV
stations, during the 90 days preceding the date of enactment of the
statute, broadcast an average of at least three hours per week of
programming produced within the ``market area'' served by the station.
Should we adopt the same three-hour guideline for purposes of priority
staff review? We note that under a three-hour per week criteria,
stations on the air 24 hours per day seven days each week that air
locally originated programming for just two minutes at the top of each
hour would exceed a three-hour guideline. Should the guideline number
be greater or less than three hours? Should it be prorated for stations
that are on the air less than 24 hours per day? Should the amount be
the same for radio and television stations? Should it be the same for
commercial and non-commercial stations? Should applicants be required
to have met the required amount of hours per week for a minimum number
of days or weeks prior to filing of the application? If so, what would
be an appropriate minimum number of days or weeks? As in the CBPA,
would 90 days prior to the filing of the application be an appropriate
timeframe? Should applicants also be required to continue to meet the
required amount of hours per week while the subject application is
pending? Should applicants be required to re-certify compliance while
the application is pending? Should applicants also be required to
continue to meet the required amount of hours per week for a minimum
number of days or weeks after the application is granted? If so, what
would be an appropriate minimum number of days or weeks?
20. We propose that the Media Bureau add a question to each FCC
application form for which expedited processing would be made available
(e.g., each TV/radio renewal, transfer, and assignment application
form) asking the licensee whether it certifies, under penalty of
perjury, that the station(s) provides at least three hours per week of
locally originated programming, consistent with the criteria adopted in
this proceeding. We invite comment on this approach. We propose that,
in the case of applications involving multiple stations (such as an
application proposing the transfer or assignment of multiple stations),
priority review be available only if the applicant certifies that every
station included in the application meets the priority processing
criteria, and invite comment on this proposal. Should we require the
applicant to provide any additional information that would permit the
Commission to review the certification, such as identifying the
programs the applicant claims are locally originated?
D. Digital Equity and Inclusion
21. Finally, the Commission, as part of its continuing effort to
advance digital equity for all, including people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, invites comment on any
equity-related considerations and benefits (if any) that may be
associated with the proposals and issues discussed herein.
Specifically, we seek comment on how our proposals may promote or
inhibit advances in diversity, equity, inclusion, and accessibility, as
well the scope of the Commission's relevant legal authority.
III. Procedural Matters
22. Ex Parte Rules--Permit-But-Disclose. The proceeding this NPRM
initiates shall be treated as a ``permit-but-disclose'' proceeding in
accordance with the Commission's ex parte rules. Persons making ex
parte presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days
after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte
[[Page 8626]]
presentations are reminded that memoranda summarizing the presentation
must (1) list all persons attending or otherwise participating in the
meeting at which the ex parte presentation was made, and (2) summarize
all data presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda, or other filings in the proceeding, the presenter may
provide citations to such data or arguments in his or her prior
comments, memoranda, or other filings (specifying the relevant page
and/or paragraph numbers where such data or arguments can be found) in
lieu of summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with rule 1.1206(b).
In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding, and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
23. Filing Requirements--Comments and Replies. Pursuant to
Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415,
1.419, 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 the Commission's Electronic Comment Filing System
(ECFS). See Electronic Filing of Documents in Rulemaking Proceedings,
63 FR 24121 (1998).
24. During the time the Commission's building is closed to the
general public and until further notice, if more than one docket or
rulemaking number appears in the caption of a proceeding, paper filers
need not submit two additional copies for each additional docket or
rulemaking number; an original and one copy are sufficient.
25. Regulatory Flexibility Act. The Regulatory Flexibility Act of
1980, as amended (RFA), requires that an agency prepare a regulatory
flexibility analysis for notice and comment rulemakings, unless the
agency certifies that ``the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' Accordingly, we have prepared an Initial Regulatory
Flexibility Analysis (IRFA) concerning the possible impact of the rule
changes proposed in this NPRM on small entities. Written public
comments are requested on the IRFA. Comments must be filed by the
deadlines for comments on the NPRM indicated on the first page of this
document and must have a separate and distinct heading designating them
as responses to the IRFA.
26. Providing Accountability Through Transparency Act. The
Providing Accountability Through Transparency Act requires each agency,
in providing notice of a rulemaking, to post online a brief plain-
language summary of the proposed rule. Accordingly, the Commission will
publish the required summary of this Notice of Proposed Rulemaking/
Further Notice of Proposed Rulemaking on <a href="https://www.fcc.gov/proposed-rulemakings">https://www.fcc.gov/proposed-rulemakings</a>.
IV. Paperwork Reduction Act
27. This document proposes new or modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens and pursuant to the Paperwork Reduction Act of
1995, Public Law 104-13, invites the general public and the Office of
Management and Budget (OMB) to comment on these information collection
requirements. In addition, pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we
seek specific comment on how we might further reduce the information
collection burden for small business concerns with fewer than 25
employees.
V. Initial Regulatory Flexibility Analysis
28. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) concerning the possible significant
economic impact on small entities by the policies and rules proposed in
the Notice of Proposed Rulemaking (NPRM). 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 provided on the
first page of the NPRM. The Commission will send a copy of the NPRM,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
29. In this NPRM, we propose to prioritize processing review of
certain applications filed by commercial and noncommercial radio and
television broadcast stations that provide locally originated
programming. Our goal is to provide additional incentive to stations to
provide programming that responds to the needs and interests of the
communities they are licensed to serve. In 2017, the Commission
eliminated the rule that required broadcast stations to maintain a main
studio located in or near their community of license, as well as the
associated requirement that the main studio have program origination
capability. We propose this processing priority in order to further
encourage radio and TV stations to serve their community of license
with local journalism or other locally originated programming. Such
prioritization would be granted to renewal applicants, as well as
applicants for assignment or transfer of license, that certify they
provide locally originated programming, thereby advancing our efforts
to promote localism and serve local communities across the nation.
30. The NPRM also seeks comment on the Commission's proposal to
exclude television translator and radio translator and booster stations
from the proposed priority application review proposal and on whether
its proposals may promote or inhibit advances in diversity, equity,
inclusion, and accessibility, as well as the scope of the Commission's
relevant legal authority.
B. Legal Basis
31. The proposed action is authorized pursuant to sections 1, 2,
4(i), 4(j), 303, 307, and 309 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i), 154(j), 303, 307, and 309.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
32. 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 generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' 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;
[[Page 8627]]
and (3) satisfies any additional criteria established by the SBA.
33. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe, at the
outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the SBA'sOffice of
Advocacy, in general a small business is an independent business having
fewer than 500 employees. These types of small businesses represent
99.9% of all businesses in the United States, which translates to 33.2
million businesses.
34. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. Nationwide, for tax year 2020, there were
approximately 447,689 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
35. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2017 Census of Governments indicate there were
90,075 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. Of
this number, there were 36,931 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 12,040 special purpose governments--independent school districts
with enrollment populations of less than 50,000. Accordingly, based on
the 2017 U.S. Census of Governments data, we estimate that at least
48,971 entities fall into the category of ``small governmental
jurisdictions.''
36. Television Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting images together with
sound.'' These establishments operate television broadcast studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in turn
broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studio, from an affiliated
network, or from external sources. The SBA small business size standard
for this industry classifies businesses having $41.5 million or less in
annual receipts as small. 2017 U.S. Census Bureau data indicate that
744 firms in this industry operated for the entire year. Of that
number, 657 firms had revenue of less than $25,000,000. Based on this
data we estimate that the majority of television broadcasters are small
entities under the SBA small business size standard.
37. As of March 31, 2023, there were 1,375 licensed commercial
television stations. Of this total, 1,282 stations (or 93.2%) had
revenues of $41.5 million or less in 2021, according to Commission
staff review of the BIA Kelsey Media Access Pro Television Database
(BIA) on April 7, 2023, and therefore these licensees qualify as small
entities under the SBA definition. In addition, the Commission
estimates as of March 31, 2023, there were 383 licensed noncommercial
educational (NCE) television stations, 381 Class A TV stations, and
1,887 LPTV stations. The Commission, however, does not compile and
otherwise does not have access to financial information for these
television broadcast stations that would permit it to determine how
many of these stations qualify as small entities under the SBA small
business size standard. Nevertheless, given the SBA's large annual
receipts threshold for this industry and the nature of these television
station licensees, we presume that all of these entities qualify as
small entities under the above SBA small business size standard.
38. Radio Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting aural programs by
radio to the public.'' Programming may originate in the station's own
studio, from an affiliated network, or from external sources. The SBA
small business size standard for this industry classifies firms having
$41.5 million or less in annual receipts as small. U.S. Census Bureau
data for 2017 show that 2,963 firms operated in this industry during
that year. Of this number, 1,879 firms operated with revenue of less
than $25 million per year. Based on this data and the SBA's small
business size standard, we estimate a majority of such entities are
small entities.
39. The Commission has estimated the number of licensed commercial
radio stations to be 11,153 (4,472 commercial AM stations and 6,681
commercial FM stations). Of this total, 11,151 stations (or 99.98%) had
revenues of $41.5 million or less in 2022, according to Commission
staff review of the BIA Kelsey Inc. Media Access Pro Database (BIA) on
April 7, 2023, and therefore these licensees qualify as small entities
under the SBA definition. In addition, the Commission estimates that as
of March 31, 2023, the number of licensed noncommercial radio stations
to be 4,219, and the number of LPFM Stations to be 1,999. The
Commission however does not compile, and otherwise does not have access
to financial information for these radio stations that would permit it
to determine how many of these stations qualify as small entities under
the SBA small business size standard. Nevertheless, given the SBA's
large annual receipts threshold for this industry and the nature of
radio station licensees, we presume that all of these entities qualify
as small entities under the above SBA small business size standard.
40. We note that in assessing whether a business entity qualifies
as small under the above definition, business control affiliations must
be included. This estimate, therefore, likely overstates the number of
small entities that might be affected, because the revenue figure on
which it is based does not include or aggregate revenues from
affiliated companies. In addition, another 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 to define or quantify
the criteria that would establish whether a specific radio station is
dominant in its field of operation. Accordingly, the estimate of small
businesses to which rules may apply does not exclude any radio station
from the definition of a small business on this basis and therefore may
be over-inclusive to that extent. Also, an additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. The Commission notes that it is
difficult at times to assess these criteria in the context of media
entities and the estimates of small businesses to which they apply may
be over-inclusive to this extent.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
41. We expect that the proposed rules set forth in the NPRM will
impose new
[[Page 8628]]
or additional filing, recordkeeping and reporting requirements for
small and other entities. We note, however, that while the proposed
rules will create additional compliance requirements, the NPRM also
proposes that the decision by a licensee to elect to certify that the
station meets the local programming guideline be purely voluntary. With
respect to those small or other licensees that either cannot, or choose
not, to provide a certification, the Commission staff will process the
licensee's application pursuant to its normal procedures.
42. The NPRM proposes to provide priority in terms of processing
review to applications filed by commercial and noncommercial radio and
television broadcast stations that certify that they provide on average
at least three hours per week of locally originated programming. The
NPRM also seeks comment on whether applicants should also be required
to re-certify compliance while the subject application is pending, and
whether they should be required to continue to meet the required amount
of hours per week for a minimum number of days or weeks after the
application is granted. We propose that the Media Bureau add a question
to each FCC application form for which expedited processing would be
made available (e.g., each TV/radio renewal, transfer, and assignment
application form) asking the licensee whether it certifies, under
penalty of perjury, that the station(s) provides at least three hours
per week of locally originated programming, consistent with the
criteria adopted in this proceeding. We also propose that, in the case
of applications involving multiple stations, priority review be
available only if the applicant certifies that every station included
in the application meets the priority processing criteria. We invite
comment on these proposals. We also seek comment on whether we should
require applicants to provide any additional information that would
permit the Commission to review the certification, such as identifying
the programs the applicant claims are locally originated.
43. We propose that licensees that request priority staff review of
an application(s) be required to certify, under penalty of perjury,
that the station meets the criteria adopted in this proceeding. The
NPRM seeks comment on whether we should require applicants to provide
any additional information that would permit the Commission to review
the certification, such as identifying the programs the applicant
claims are locally originated. We expect that the information we
receive in the comments will help the Commission identify and evaluate
relevant compliance matters for small entities, including compliance
costs and other burdens that may emerge as a result of the potential
changes discussed in the NPRM.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
44. The RFA requires an agency to describe any significant,
specifically small business, 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 and
reporting requirements under the rule for such 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 such small
entities.''
45. The NPRM seeks comment generally on its proposal to provide
priority staff review of applications filed by stations that certify
that they provide an average of at least three hours per week of
locally originated programming. The NPRM invites comment on whether
this guideline is appropriate. We also invite comment on all the
proposed approaches and on any alternatives, which will provide the
Commission additional information on possible steps that can be taken
to minimize any significant impact on small entities.
46. In an effort to minimize significant economic impact on small
entities as a result of the proposals that are ultimately adopted, the
NPRM makes clear that a station's participation in certifying that it
meets the qualifications for priority application review is purely
voluntary. A station may choose whether it wants to provide the
additional information to qualify for prioritized review of its
application and, should it decline to, would have its application
processed pursuant to its normal procedures. Applications that do not
include a certification will not be scrutinized or processed
differently as a substantive matter than applications with a
certification, other than the prioritization proposal discussed in the
NPRM.
47. Finally, we do not propose to offer priority application
review, as outlined herein, to applications filed for radio translators
or boosters or TV translators. Booster stations do not originate
programming and translator stations may only originate a very limited
amount of programming so the underlying purpose of the proposed
processing policy--i.e., to further incentivize broadcast licensees to
serve community needs and interests through production of locally
originated programming--would not apply. Accordingly, we believe there
would be minimal value, if any, in asking these stations to certify
they provide locally originated programming. We tentatively conclude
that our prioritized processing approach will not slow the review of
``simple'' applications that are otherwise grantable.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
48. None.
VI. Ordering Clauses
49. Accordingly, it is ordered that, pursuant to the authority
found in sections 1, 2, 4(i), 4(j), 303, 307, and 309 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
154(j), 303, 307, and 309, this Notice of Proposed Rulemaking is
adopted.
50. It is further ordered that the Office of the Secretary,
Reference Information Center, shall send a copy of this Notice of
Proposed Rulemaking, including the Initial Regulatory Flexibility Act
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 73
Television.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 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. Section 73.3514 is amended by adding paragraph (c) to read as
follows:
Sec. 73.3514 Content of applications.
* * * * *
(c) Applicants for renewal, assignment, or transfer of license for
commercial and noncommercial AM, FM, and TV broadcast stations may
request priority staff review of such applications if the applicant
certifies
[[Page 8629]]
that the station provides an average of at least three hours per week
of locally originated programming. This paragraph does not apply to TV
translator or radio translator or booster stations.
(1) For purposes of this provision, locally originated programming
is programming produced either
(i) [W]ithin the station's community of license;
(ii) [A]t any location within the principal community contour of
any AM, FM, or TV broadcast station licensed to the station's community
of license; or
(iii) [W]ithin 25 miles from the reference coordinates of the
center of its community of license as described in Sec. 73.208(a)(1).
(2) For purposes of this provision, locally originated programming
is defined as:
(i) Programming that was created within the area defined in
paragraph (c)(1) of this section. Programming that contains video or
audio recordings that were made at locations outside the area defined
in paragraph (c)(1) of this section qualifies as locally originated
programming as long as the program also includes some other element of
local creation that takes place in the area defined in paragraph (c)(1)
of this section, including program scripting, recording (video or
audio) at a studio or other location in the local market, editing, or
other activity.
(ii) Locally originated programming does not include: the broadcast
of repetitive or automated programs or time-shifted recordings of non-
local programming whatever its source; a local program that has been
broadcast twice, even if the licensee broadcasts the program on a
different day or makes small variations in the program thereafter. In
addition, with respect to television stations, locally originated
programming is programming containing simultaneous video and audio
programming where the audio portion of the programming directly relates
to the video portion of the program.
* * * * *
[FR Doc. 2024-02039 Filed 2-7-24; 8:45 am]
BILLING CODE 6712-01-P
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