Filing of Contracts
| Published date | 21 December 2018 |
| Record Number | 2018-26595 |
| Court | Federal Communications Commission |
Federal Register, Volume 83 Issue 245 (Friday, December 21, 2018)
[Federal Register Volume 83, Number 245 (Friday, December 21, 2018)]
[Rules and Regulations]
[Pages 65551-65559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26595]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 74
[MB Docket Nos. 18-4, 17-105; FCC 18-145]
Filing of Contracts
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
eliminates a paper filing requirement for broadcast station contracts
and documents and instead requires that these same documents are either
uploaded or listed in the online public file within 30 days.
DATES: Effective Date: January 22, 2019.
FOR FURTHER INFORMATION CONTACT: Christopher Clark, Industry Analysis
Division, Media Bureau, FCC, (202) 418-2609. For additional information
concerning the information collection requirements contained in the
Report and Order, contact Cathy Williams at (202) 418-2918, or via the
internet at PRA@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, FCC 18-145, in MB Docket Nos. 18-4 and 17-105, adopted and
released on October 23, 2018. The complete text of this document is
available electronically via the search function on the FCC's
Electronic Document Management System (EDOCS) web page at https://apps.fcc.gov/edocs_public/ (https://apps.fcc.gov/edocs_public/). The
complete document is available for inspection and copying in the FCC
Reference Information Center, 445 12th Street SW, Room CY-A257,
Washington, DC 20554 (for hours of operation, see https://www.fcc.gov/general/fcc-reference-information-center). To request materials in
accessible formats for people with disabilities (Braille, large print,
electronic files, audio format), send an email to fcc504@fcc.gov (mail
to: fcc504@fcc.gov) or call the FCC's Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
[[Page 65552]]
Synopsis
1. In this Report and Order (Order), we eliminate the paper filing
requirement in Sec. 73.3613 of our rules. Sec. 73.3613 currently
requires licensees and permittees of commercial and noncommercial AM,
FM, television, and international broadcast stations to file paper
copies of certain documents with the Commission within 30 days of
execution. Broadcast licensees and permittees have been required to
file paper copies of station documents with the Commission since the
late 1930s. As part of our Modernization of Media Regulation
Initiative, earlier this year we released a Notice of Proposed
Rulemaking (NPRM) tentatively concluding that the paper filing
requirement for Sec. 73.3613 documents had outlived its usefulness and
should be eliminated. We adopt that tentative conclusion herein and
eliminate the routine paper filing requirement as discussed below. Our
action today advances our goal of eliminating outdated and unnecessary
regulatory burdens that can impede competition and innovation in media
markets. In addition, our action today is consistent with other steps
the Commission has taken to reduce paper submissions and make documents
available electronically.
2. Elimination of Routine Paper Filings for Commercial and
Noncommercial AM, FM, and Television Stations. Consistent with the
NPRM's tentative conclusion, we eliminate the paper filing requirement
for Sec. 73.3613 documents for commercial and noncommercial AM, FM,
and television stations.\1\ Given the ready access afforded by the
online public inspection file (OPIF), stations already provide easy
access to such documents, making routine paper filings redundant and
unnecessary. Commenters agree that we can eliminate the 1930s-era paper
filing requirement and rely on the OPIF to ensure that the public has
access to relevant documents. As currently set forth in Sec. Sec.
73.3526 and 73.3527 of our regulations,\2\ our existing OPIF rules
require that stations retain in the OPIF a copy of their most recent,
complete ownership report together with all related material. And under
our rules, ownership reports must include a list of all documents
currently filed with the Commission pursuant to Sec. 73.3613 for the
stations covered by the report. Our present rules require that these
documents be made available for public inspection via the OPIF.
Specifically, stations are currently required to either (i) upload the
documents directly to the OPIF or (ii) maintain an up-to-date list of
the documents in the OPIF and provide copies to requesting parties
within seven days.\3\ Accordingly, we eliminate the routine paper
filing requirement for such documents, and we rely on our OPIF rules as
discussed herein. In addition, we will continue to rely on our long-
standing ability to obtain Sec. 73.3613 documents from licensees and
permittees upon request, as needed. If the Commission requests a copy
of a Sec. 73.3613 document, then, as is currently the case under our
existing rules, the licensee or permittee must provide the Commission
with a complete, unredacted copy of such document. Currently, LPTV
stations are required to file network affiliation agreements with the
Commission as specified in Sec. 73.3613(a). Because we are retaining
our ability to obtain Sec. 73.3613 documents upon request, LPTV
stations will be required to submit network affiliation agreements to
the Commission upon request and within seven days of such request.
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\1\ Consistent with the proposal in the NPRM, we will require
that stations make their Sec. 73.3613 documents available to the
Commission and the public via the options set forth in the existing
public file rules, as discussed below.
\2\ Sec. 73.3526 of our rules contains OPIF requirements for
commercial broadcast stations, while Sec. 73.3527 contains OPIF
requirements for noncommercial educational broadcast stations.
\3\ Our public file rules also require licensees and permittees
to retain copies of TBAs and JSAs involving a commercial AM, FM, or
television station in the station's public file.
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3. Consistent with the previous practice for paper filings under
Sec. 73.3613, we will require that stations update their inventory of
Sec. 73.3613 documents in the public file within 30 days of execution
of such documents, including amendments, supplements, and
cancellations. Nearly all commenters support such a requirement. While
the public broadcasting organizations assert that requiring ``periodic
updates'' would be sufficient for public broadcast stations, we are
concerned that such a vague requirement would create uncertainty as to
when these stations must update the public file to reflect changes to
their inventory of Sec. 73.3613 documents. Accordingly, rather than
rely on each station to define the appropriate frequency of updates, we
require that all stations, including public broadcast stations, update
their inventory of Sec. 73.3613 documents in the OPIF within 30 days
of execution of such documents, including amendments, supplements, and
cancellations.
4. We decline to require that all Sec. 73.3613 documents, rather
than simply a list of such documents, be uploaded directly to the OPIF.
Since 1998, our public file rules have allowed stations the option of
retaining either copies or a list of Sec. 73.3613 documents in the
public file, and no commenter asserts that the option to retain a list
in the file has deprived the public of information that is relevant to
station ownership or assessing renewal applications. In addition, we
note that the public has direct access to information about station
owners via ownership reports, which are also retained in the OPIF.
Thus, contrary to some commenters' assertions, retaining the option for
stations to list Sec. 73.3613 documents in the public file and provide
them upon request will not deprive the Commission and the public of
information relevant to station ownership. As discussed below, we
reject assertions that eliminating paper filings and allowing stations
to provide access to Sec. 73.3613 documents via the options set forth
in our existing OPIF rules will decrease transparency and delay access
to such documents by the public. Under the approach we adopt herein,
interested parties will be able to obtain Sec. 73.3613 documents
either directly from the OPIF or within seven days of submitting a
request to a station that lists the documents in the OPIF, without
having to travel to the Commission's Reference Information Center (RIC)
to request a copy of a document filed with the Commission in paper.
Rather than delaying access to Sec. 73.3613 documents and increasing
burdens on the Commission and the public, we believe that the OPIF
reduces the time and expense for interested parties to obtain copies of
Sec. 73.3613 documents. Indeed, as discussed below, today only a
limited number of people visit the RIC to view Sec. 73.3613 documents
filed with the Commission in paper.
5. We agree with Gray Television that a station that lists its
Sec. 73.3613 documents in the OPIF should be required to include the
execution and expiration dates, if any, for each such document. No
commenter opposes this proposal. Accordingly, we require stations that
list Sec. 73.3613 documents in the OPIF to include on their list all
of the information required for such documents on ownership reports.
This will provide the information necessary to keep track of expiring
documents and thereby help ensure that stations maintain a current
inventory of their Sec. 73.3613 documents in the OPIF.
6. We conclude that eliminating the paper filing requirement and
relying on our OPIF rules as discussed herein will reduce burdens on
broadcasters while preserving transparency and ensuring
[[Page 65553]]
that the Commission and the public can obtain relevant information in a
timely fashion. As a result of our decision today, stations will no
longer have to spend time and money preparing paper copies of Sec.
73.3613 documents and having them mailed or hand-delivered to the
Commission, often by outside legal counsel. Importantly, the Commission
and the public will still have easy access to Sec. 73.3613 documents
via the OPIF as discussed above. Furthermore, the Commission will
continue to have the ability to obtain unredacted copies of such
documents from stations upon request. Therefore, contrary to some
commenters' assertions, we do not believe that eliminating routine
paper filings will meaningfully impact the ability of the Commission
and other interested parties to review Sec. 73.3613 documents for
commercial and noncommercial AM, FM, and television stations. Because
Sec. 73.3613 documents are either contained in the OPIF or available
upon request to the station, there is no longer a need for the public
to travel to the Commission's RIC to view these documents. Indeed,
based on a review of the Commission's internal records, just over 500
people--or an average of 2 people per business day--visited the RIC
from September 2017 through August 2018, including Commission staff and
people viewing other available files. The RIC files include not only
Sec. 73.3613 documents filed with the Commission but also a lot of
information on licensing applications, as well as Commission
proceedings, programs, and activities. Thus, the total number of
visitors to the RIC cannot be equated to the number of people who
viewed the broadcast station paper files made available in the RIC, or
more specifically, the Sec. 73.3613 documents contained in those
files, which is unknown but could be much fewer than the total number
of visitors to the RIC. Moreover, the total number of visitors to the
RIC includes Commission staff, and it is unknown how many visitors were
members of the public.
7. To effectuate the changes we adopt today, we will revise the
relevant public file rules by replacing the current reference to the
documents listed on ownership reports (i.e., Sec. 73.3613 documents)
with a direct reference to the list of documents in Sec. 73.3613. We
agree with the National Association of Broadcasters that this approach
will clarify the relevant public file requirements in Sec. Sec.
73.3526(e)(5) and 73.3527(e)(4) of our rules and also avoid the need to
attempt to incorporate the lengthy, detailed list of Sec. 73.3613
documents into two distinct sections of our rules. Incorporating the
list of Sec. 73.3613 documents into our public file rules would
significantly increase the length and complexity of those rules. While
one commenter asserts in general terms that we should eliminate Sec.
73.3613 from our rules entirely, no commenter has proposed a specific
method of doing so in a manner that addresses our concerns. In addition
to significantly increasing the length and complexity of our public
file rules, we also raised other concerns about eliminating Sec.
73.3613 of our rules entirely. Specifically, in the NPRM we sought
comment on how we would address the documents currently specified in
Sec. 73.3613(e), which licensees and permittees currently are not
required to file with the Commission but must keep at the station and
make them available for inspection upon request by the Commission. We
also sought comment on how we would address Sec. 73.3613(a)(1), which
currently includes a definition of ``network'' that is cross referenced
in the Telecommunications Act of 1996 and in our Dual Network Rule. No
commenter has offered a proposal for addressing these issues.
Accordingly, we conclude that retaining the list of documents in Sec.
73.3613 and revising our public file rules to refer directly to that
list is best for clarity and will most effectively keep stations
informed of their obligations.
8. The text of the revised rules can be found in Appendix A hereto.
In addition to the specific rule changes discussed above, we are also
eliminating Sec. 73.1226(c) of our rules, which currently requires
that certain documents be kept at the station and made available for
inspection by any authorized representative of the FCC upon request.
Because Sec. 73.3613(e) currently contains a similar list of documents
that must be kept at the station and made available for inspection upon
request by the FCC, we conclude that we can eliminate Sec. 73.1226(c)
and revise the relevant subsection of Sec. 73.3613 to include every
document that is currently listed in Sec. 73.1226(c), except for
``contracts relating to the sale of broadcast time to `time brokers'
for resale,'' which are already required to be made available for
inspection pursuant to our OPIF rules. In addition, we are also
eliminating Sec. 73.3613(a)(3) of our rules, which currently requires
that stations notify the Commission in writing when a network
affiliation agreement is cancelled or terminated. Because we are no
longer requiring that stations file network affiliation agreements with
the Commission in paper routinely, it does not make sense to continue
requiring routine written notifications whenever such an agreement is
cancelled or terminated. Further, such written notifications are no
longer necessary given that (i) the expiration date of the affiliation
agreement will be available either through the copy uploaded to the
OPIF or in the document list; and (ii) the documents in the OPIF or the
list must be updated within 30 days of a cancellation of an agreement.
We also reformat the notes to Sec. Sec. 73.3526 and 73.3527 to conform
to the requirements of the Office of the Federal Register and make
additional, conforming edits as shown in Appendix A. We direct the
Media Bureau to make all form modifications and take any other steps
necessary to implement all the rule changes and other decisions adopted
herein.
9. Streamlining Disclosure Requirements for TBAs and JSAs. In order
to avoid overlap and duplication in our rules, we adopt the NPRM's
tentative conclusion to eliminate the filing requirement for
attributable time brokerage agreements (TBAs) and attributable joint
sales agreements (JSAs) in Sec. 73.3613(d) of our rules. This
provision duplicates an existing OPIF disclosure requirement;
therefore, it is no longer necessary to retain Sec. 73.3613(d)
following the elimination of the paper filing requirement. Because
Sec. 73.3613(d) also contains important definitional information
describing the subset of TBAs and JSAs that must be included on
ownership reports which remain undisturbed by this item, we find it
necessary to incorporate this definitional information elsewhere, as
discussed below.
10. Sec. 73.3613(d) currently defines attributable TBAs and
attributable JSAs and requires that they be filed with the Commission
by the brokering station. A TBA, also referred to as local marketing
agreement (LMA), involves ``the sale by a licensee of discrete blocks
of time to a `broker' that supplies the programming to fill that time
and sells the commercial spot announcements in it.'' A JSA is an
agreement that authorizes a broker to sell some or all of the
advertising time on the brokered station. As discussed above, stations
must also disclose these and other Sec. 73.3613 documents on ownership
reports and make the documents available via the OPIF pursuant to Sec.
73.3526(e)(5). However, as discussed in the NPRM, our existing OPIF
rule for commercial stations contains another provision that
specifically requires stations to upload
[[Page 65554]]
all TBAs and JSAs directly to the OPIF for both the brokering and
brokered stations, regardless of whether or not such agreements are
attributable. Thus, we do not need to retain Sec. 73.3613(d) to ensure
that the Commission and the public have access to this subset of TBAs
and JSAs. Accordingly, we eliminate Sec. 73.3613(d) of our rules to
streamline our disclosure requirements for TBAs and JSAs. Consistent
with our decision above to require updates to the OPIF within 30 days
of executing a Sec. 73.3613 document, we will require that stations
update the OPIF to reflect new or amended TBAs and JSAs within 30 days
of execution of such documents, including amendments, supplements, and
cancellations.
11. Despite the elimination of the paper filing requirement, we
continue to require that attributable TBAs and attributable JSAs be
disclosed by the licensee of the brokering station on its ownership
report. The Commission has previously determined that such agreements
permit a degree of influence or control that is cognizable as an
attributable ownership interest in the brokered station for purposes of
determining the brokering licensee's compliance with our broadcast
ownership rules. As such, the Commission included attributable TBAs and
attributable JSAs in the list of agreements that must be disclosed on
ownership reports. Because our decision today does not change these
prior determinations,\4\ licensees brokering time under an attributable
TBA or an attributable JSA must continue listing such agreements on
ownership reports. We will make this clear in the instructions to FCC
Form 323.
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\4\ We also note that the NPRM did not propose to eliminate the
requirement that these agreements be disclosed on ownership reports
and that any such change is beyond the scope of this proceeding.
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12. Redaction of Confidential or Proprietary Information. We adopt
our tentative conclusion to extend the explicit redaction allowance for
TBAs and JSAs to all Sec. 73.3613 documents to the extent they contain
confidential or proprietary information, and require that unredacted
copies be provided to the Commission upon request. No commenter asserts
that we should not extend this explicit redaction allowance for
confidential or proprietary information to all Sec. 73.3613 documents,
although some commenters urge us to clarify what constitutes
``confidential or proprietary information'' and the procedure for
indicating redactions.
13. We clarify that, for purposes of the redaction allowance,
confidential or proprietary information is information that would be
accorded confidential treatment pursuant to our general rules for
seeking non-disclosure of information submitted to the Commission.
Sec. Sec. 0.457(d) and 0.459 of our rules provide for confidential
treatment of trade secrets and commercial or financial information
obtained from any person and privileged or confidential. Because an
individualized determination is required to decide whether confidential
or proprietary information not specified in Sec. 0.457 of our rules is
to be withheld from routine public inspection, we reject the American
Cable Association's assertion that information related in any way to
retransmission consent should never be redacted. However, we emphasize
that the redaction allowance applies to Sec. 73.3613 documents only to
the extent they contain confidential or proprietary information. Thus,
we expect that licensees and permittees will redact only such
information that is actually confidential or proprietary, if any, and
leave all other information unredacted in the copy of the Sec. 73.3613
document they make available to the Commission and the public.
14. Moreover, we require that each copy of a Sec. 73.3613 document
containing confidential or proprietary information have the same
material redacted and that licensees and permittees must not provide
different redacted versions of the same document to requesting parties.
Licensees and permittees must clearly indicate where redactions are
being made. If a person believes that a Sec. 73.3613 document has been
inappropriately redacted, he or she may file a response in opposition
under Sec. 0.459(d) of our rules if the licensee or permittee of the
station filed a request for confidentiality pursuant to Sec. 0.459.
Otherwise, the person may file a complaint with the Commission if he or
she believes that the station has violated our public file rules or
redacted information that is not actually confidential or proprietary.
15. A station that provides a redacted version of a Sec. 73.3613
document to a requesting party must provide the party with the redacted
document within seven days of the party's request for a copy of the
document. Thus, we will not permit stations that choose to retain a
list of Sec. 73.3613 documents in the public file to wait months
before providing a copy of those documents to a requesting party. We
note that under our existing rules, information submitted to the
Commission under a request for confidentiality is treated as
confidential until the Commission acts on the request and all
subsequent appeal and stay proceedings have been exhausted. Thus, even
absent an explicit redaction allowance, broadcasters would still be
able to redact information submitted to the Commission under a request
for confidentiality, and the Commission would withhold that information
from third parties in accordance with its existing rules. Therefore, we
reject the notion that the explicit redaction allowance will delay
parties' access to relevant information.
16. Elimination of Routine Paper Filings for International
Broadcast Stations. International broadcast stations, which are
authorized on a seasonal basis, employ frequencies allocated to the
broadcasting service between 5,900 and 26,100 kHz, the transmissions of
which are intended to be received in foreign countries. These stations,
which are often operated by churches and other religious organizations,
do not serve local communities in the United States. We adopt our
tentative conclusion to eliminate the requirement that licensees and
permittees of international broadcast stations routinely file Sec.
73.3613 documents with the Commission and retain our ability to obtain
these documents from licensees and permittees upon request, as needed.
No commenter opposes elimination of the Sec. 73.3613 paper filing
requirement for international broadcast stations.
17. We conclude that the current justifications for requiring
disclosure of Sec. 73.3613 documents by commercial and noncommercial
AM, FM, and television stations do not apply to international broadcast
stations. As discussed in the NPRM, the routine disclosure of Sec.
73.3613 documents by commercial and noncommercial AM, FM, and
television stations supplements the information that these stations are
required to provide in their ownership reports. However, the same is
not true for international broadcast stations, which are not subject to
the routine ownership reporting obligations that apply to the other
broadcast services. Moreover, international broadcast stations are not
subject to the ownership rules applicable to commercial AM, FM, and
television stations, nor are they subject to the relevant operational
provisions applicable to noncommercial FM and television stations. For
purposes of enforcing the statutory bar against de facto transfers of
control of international broadcast stations without prior Commission
authorization, we believe it is sufficient to retain our ability to
obtain Sec. 73.3613 documents from licensees and permittees of
international broadcast stations upon request, as needed. Because the
record provides no basis for continuing to
[[Page 65555]]
require that international broadcast stations routinely file Sec.
73.3613 documents with the Commission, we eliminate the routine paper
filing requirement for Sec. 73.3613 documents for international
broadcast stations.
18. Paperwork Reduction Act Analysis.--This document contains a
non-substantive and non-material modification of information collection
requirements that is subject to approval by the Office of Management
and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995,
Public Law 104-13 (44 U.S.C. 3501-3520). In addition, we note that
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought
specific comment on how it might further reduce the information
collection burden for small business concerns with fewer than 25
employees. In the present document, we have assessed the effects of our
decision to eliminate the paper filing requirement for Sec. 73.3613
documents and rely instead on our public file rules and our ability to
obtain Sec. 73.3613 documents from broadcast licensees and permittees
upon request. We find that the rule changes adopted herein will relieve
broadcast licensees and permittees of the time and expense associated
with filing paper copies of Sec. 73.3613 documents with the
Commission, and that affected small entities, including those with
fewer than 25 employees, will only benefit from the actions taken in
this document.
Final Regulatory Flexibility Analysis
19. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Notice of Proposed Rulemaking (NPRM) in MB Docket
18-4. The Commission sought written public comments on proposals in the
NPRM, including comment on the IRFA. The Commission received no direct
comments on the IRFA. The present Final Regulatory Flexibility Analysis
(FRFA) conforms to the RFA.
20. Need for, and Objectives of, the Report and Order. The Report
and Order (Order) eliminates the requirement that licensees and
permittees of commercial and noncommercial AM, FM, television, and
international broadcast stations routinely file paper copies of station
contracts and other documents with the Commission as currently
specified in Sec. 73.3613 of the Commission's rules. Given that the
Commission's existing public file rules now require that licensees and
permittees of commercial and noncommercial AM, FM, and televisions
stations make copies of their Sec. 73.3613 documents available online,
the Order finds that Sec. 73.3613's requirement that licensees and
permittees also file copies of such documents in paper with the
Commission to be outdated and unnecessary. Rather than retaining this
antiquated paper filing requirement, the Commission will rely on its
existing public file rules to ensure access to Sec. 73.3613 documents
as discussed in the Order and retain the ability to obtain these
documents from licensees and permittees upon request, as needed. The
Commission's existing public file rules require licensees and
permittees to either (i) upload the documents directly to the OPIF or
(ii) maintain an up-to-date list of the documents in the OPIF and
provide copies to requesting parties within seven days.
21. In addition to eliminating the paper filing requirement for
Sec. 73.3613 documents, the Order also eliminates a redundant
disclosure requirement pertaining to certain Sec. 73.3613 documents
and expands an existing redaction allowance for confidential or
proprietary information in Sec. 73.3613 documents. The Order requires
that unredacted copies the documents be provided to the Commission upon
request and that any confidential or proprietary information that is
redacted must be marked consistently throughout the document.
22. The Order arises from a Public Notice issued by the Commission
in May 2017, launching an initiative to modernize the Commission's
media regulations. The majority of the parties that filed comments in
this proceeding agree that the routine paper filing requirement at
issue is redundant and should be eliminated. The Order concludes that
eliminating this requirement is consistent with other actions the
Commission has taken to reduce paper submissions and advances the
Commission's goal of eliminating outdated and unnecessary regulatory
burdens that can impede competition and innovation in media markets.
23. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. No comments were filed in direct response to the
IRFA.
24. Response to Comments by the Chief Counsel for Advocacy of the
Small Business Administration. Pursuant to the Small Business Jobs Act
of 2010, which amended the RFA, the Commission is required to respond
to any comments filed by the Chief Counsel for Advocacy of the SBA and
to provide a detailed statement of any change made to the proposed
rules as a result of those comments. The Chief Counsel did not file any
comments in response to this proceeding.
25. Description and Estimate of the Number of Small Entities to
Which Rules Will Apply. The RFA directs agencies to provide a
description of and, where feasible, an estimate of the number of small
entities that will be affected by the rules 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; and (3) satisfies any additional criteria established by the
SBA. The final rules adopted herein affect small television and radio
broadcast stations. A description of these small entities, as well as
an estimate of the number of such small entities, is provided below.
26. Television Broadcasting. This Economic Census category
``comprises 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 has
created the following small business size standard for such businesses:
Those having $38.5 million or less in annual receipts. The 2012
Economic Census reports that 751 firms in this category operated in
that year. Of that number, 656 had annual receipts of less than
$25,000,000, and 95 had annual receipts of $25,000,000 or more. Based
on this data, we estimate that the majority of commercial television
broadcasters are small entities under the applicable SBA size standard.
27. In addition, the Commission has estimated the number of
licensed commercial television stations to be 1,349. Of this total,
1,277 stations had revenues of $38.5 million or less, according to
Commission staff review of the BIA Kelsey Inc. Media Access Pro
Television Database (BIA) on October 1, 2018. Such entities, therefore,
qualify as small entities under the SBA definition. The Commission has
estimated the number of licensed noncommercial
[[Page 65556]]
educational (NCE) television stations to be 412. The Commission,
however, does not compile and does not have access to information on
the revenue of NCE stations that would permit it to determine how many
such stations would qualify as small entities.
28. We note, however, that in assessing whether a business concern
qualifies as ``small'' under the above definition, business (control)
affiliations must be included. Our estimate, therefore likely
overstates the number of small entities that might be affected by our
action, 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'' requires that
an entity not be dominant in its field of operation. We are unable at
this time to define or quantify the criteria that would establish
whether a specific television broadcast station is dominant in its
field of operation. Accordingly, the estimate of small businesses to
which the proposed rules would apply does not exclude any television
station from the definition of a small business on this basis and
therefore could be over-inclusive.
29. There are also 1,911 LPTV stations and 389 Class A stations.
Given the nature of these services, we will presume that all of these
entities qualify as small entities under the above SBA small business
size standard.
30. Radio Stations. This economic Census category ``comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public.'' The SBA has created the following small business
size standard for this category: Those having $38.5 million or less in
annual receipts. Census data for 2012 shows that 2,849 firms in this
category operated in that year. Of this number, 2,806 firms had annual
receipts of less than $25,000,000, and 43 firms had annual receipts of
$25,000,000 or more. Therefore, based on the SBA's size standard, the
majority of such entities are small entities.
31. Apart from the U.S. Census, the Commission has estimated the
number of licensed commercial AM radio stations to be 4,626 stations
and the number of commercial FM radio stations to be 6,737, for a total
number of 11,363. Of this total, 11,362 stations had revenues of $38.5
million or less, according to Commission staff review of the BIA Kelsey
Inc. Media Access Pro Television Database (BIA) on October 1, 2018. In
addition, the Commission has estimated the number of noncommercial
educational FM radio stations to be 4,130. NCE stations are non-profit,
and therefore considered to be small entities. Therefore, we estimate
that the majority of radio broadcast stations are small entities.
32. International Broadcast Stations. Neither the Commission nor
the SBA has developed a definition of small entities specifically
applicable to international broadcast stations. The closest applicable
SBA size standards and U.S. Census Bureau category is Radio Stations.
Establishments in this industry are primarily engaged in broadcasting
aural programs by radio to the public with programming that may
originate in their own studio, from an affiliated network, or from
external sources. The SBA small business size standard for this
category is firms having $38.5 million or less in annual receipts. U.S.
Census Bureau data for 2012 shows that 2,849 radio station firms
operated during that year. Of this number, 2,806 firms had annual
receipts of less than $25,000,000, and 43 firms had annual receipts of
$25,000,000 or more. Therefore, based on the SBA's size standard the
majority of entities in this industry are small entities.
33. According to the Commission's records there were 16
international broadcast stations operating as of September 13, 2018.
The Commission however does not request nor collect annual revenue
information; therefore, the Commission is unable to estimate the number
of international broadcast stations that would constitute a small
business under the SBA definition.
34. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements. In this section, we identify the reporting,
recordkeeping, and other compliance requirements in the Order and
consider whether small entities are affected disproportionately by any
such requirements.
35. Reporting Requirements. The Order requires licensees and
permittees to update the Sec. 73.3613 documents in their online public
file or the list of such documents within 30 days of executing such
documents. This 30-day timeframe for updating the inventory of Sec.
73.3613 documents in the public file is consistent with the previous
rule, which required licensees and permittees to file the documents
with the Commission in paper within 30 days of execution.
36. Recordkeeping Requirements. The existing public file rules give
stations the option of either (i) retaining copies of their Sec.
73.3613 documents in the public file or (ii) maintaining an up-to-date
list of such documents in the public file and providing copies to a
requesting party within seven days. The Order retains these existing
options for disclosing Sec. 73.3613 documents in the public file. To
preserve the current level of access to Sec. 73.3613 documents, the
Order clarifies that stations must ensure that their inventory of such
documents in the public file is up to date, regardless of whether the
station chooses to retain copies or a list of Sec. 73.3613 documents
in the public file, and provide copies of their Sec. 73.3613 documents
to the Commission and the public within seven days upon request.
Stations that upload a list of Sec. 73.3613 documents to the public
file must include on that list all of the information that the
Commission requires for such documents on broadcast ownership reports,
including a description of each document, the parties to the document,
the month and year of execution, the month and year of expiration, and
the document type. This will provide the information necessary for the
public to keep track of expiring documents and help ensure that
stations maintain a current record of their Sec. 73.3613 documents in
the public file.
37. Other Compliance Requirements. The Order does not adopt new
compliance requirements.
38. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered. The RFA requires an
agency to describe any significant alternatives that it has considered
in reaching its approach, which may include the following four
alternatives (among others): (1) The establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.
39. The Order eliminates the paper filing requirement for Sec.
73.3613 documents and adopts other rule changes to streamline
disclosure requirements and explicitly allow for the redaction of
confidential or proprietary information in such documents. These
actions are intended to modernize the Commission's regulations and
reduce costs and recordkeeping burdens for affected entities, including
small entities. Under the revised rules, affected entities no longer
will need to expend time and resources filing paper copies of Sec.
73.3613 documents with the Commission.
40. For commercial and noncommercial AM, FM, and television
[[Page 65557]]
stations, the Commission will rely on its existing public file rules,
which already require that these stations make copies of Sec. 73.3613
documents available to the public online. The existing public file
rules provide these stations with flexibility to select the disclosure
method that is less burdensome with respect to Sec. 73.3613 documents,
while still ensuring timely access to the documents by the public and
the Commission. In the Order, the Commission declines to eliminate this
flexibility by requiring that stations upload all their Sec. 73.3613
documents directly to the online public file, as suggested by certain
commenters. Eliminating the existing option allowing these stations to
maintain an up-to-date list of Sec. 73.3613 documents in the public
file and to provide copies to requesting parties within seven days
would impose unnecessary burdens on broadcast licensees and permittees,
including small businesses. For international broadcast stations, the
Commission retains its ability to obtain Sec. 73.3613 documents from
licensees and permittees upon request, as needed.
41. The Order also eliminates a redundant disclosure obligation
pertaining to certain Sec. 73.3613 documents and expands an existing
redaction allowance for confidential or proprietary information in
Sec. 73.3613 documents. Currently, Sec. 73.3613 explicitly allows the
redaction of confidential or proprietary information for attributable
TBAs and JSAs, provided that unredacted versions of the agreements
shall be provided to the Commission upon request. The Order concludes
that Sec. 73.3613's specific provision allowing the redaction of TBAs
and JSAs, including the requirement that unredacted copies shall be
made available to the Commission upon request, should apply to all
Sec. 73.3613 documents to the extent that they contain confidential or
proprietary information. Redaction would be necessary only when a
document is posted to the online public file or provided to the
Commission or the public upon request.
42. The rule amendments adopted in the Order will relieve affected
broadcast stations, including smaller stations, of the obligation to
file paper copies of certain information with the Commission. We find
it reasonable to conclude that the benefits of adopting the amendments
discussed in the Order will outweigh any associated costs, and we
anticipate that affected entities, including small entities, will
benefit from the actions taken in the Order.
Ordering Clauses
43. Accordingly, it is ordered that, pursuant to the authority
found in sections 1, 4(i), 4(j), 303(r), 309, 310, and 336 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j),
303(r), 309, 310, and 336, this Report and Order is adopted.
44. It is further ordered that, pursuant to the authority found in
sections 1, 4(i), 4(j), 303(r), 309, 310, and 336 of the Communications
Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 309,
310, and 336, the Commission's rules are amended as set forth in
Appendix A. The amendments in this final rule shall become effective
thirty (30) days after publication of the text of this Report and Order
or a summary thereof in the Federal Register.
45. It is further ordered that the Commission shall send a copy of
this Report and 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).
46. It is further ordered that, should no petitions for
reconsideration or petitions for judicial review be timely filed, MB
Docket No. 18-4 shall be terminated and its docket closed.
List of Subjects
47 CFR Part 73
Radio, Reporting and recordkeeping requirements, Television.
47 CFR Part 74
Reporting and recordkeeping requirements, Television.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 73 and 74 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.
Sec. 73.1226 [Amended]
0
2. Amend Sec. 73.1226 by removing paragraph (c).
0
3. Amend Sec. 73.3526 by removing the note to paragraph (e)(3) and
notes 1 and 2 to paragraph (e), revising paragraphs (e)(3), (5), (14),
and (16), and adding paragraph (f) to read as follows:
Sec. 73.3526 Local public inspection file of commercial stations.
* * * * *
(e) * * *
(3)(i) Citizen agreements. A copy of every written citizen
agreement. These agreements shall be retained for the term of the
agreement, including any renewal or extension thereof.
(ii) For purposes of this section, a citizen agreement is a written
agreement between a broadcast applicant, permittee, or licensee, and
one or more citizens or citizen groups, entered for primarily
noncommercial purposes. This definition includes those agreements that
deal with goals or proposed practices directly or indirectly affecting
station operations in the public interest, in areas such as--but not
limited to--programming and employment. It excludes common commercial
agreements such as advertising contracts; union, employment, and
personal services contracts; network affiliation, syndication, program
supply contracts, etc. However, the mere inclusion of commercial terms
in a primarily noncommercial agreement--such as a provision for payment
of fees for future services of the citizen-parties (see ``Report and
Order,'' Docket 19518, 57 FCC 2d 494 (1976))--would not cause the
agreement to be considered commercial for purposes of this section.
* * * * *
(5) Ownership reports and related materials. A copy of the most
recent, complete ownership report filed with the FCC for the station,
together with any statements filed with the FCC certifying that the
current report is accurate, and together with all related material.
These materials shall be retained until a new, complete ownership
report is filed with the FCC, at which time a copy of the new report
and any related materials shall be placed in the file. The permittee or
licensee must retain in the public file either a copy of the station
documents listed in Sec. 73.3613(a) through (c) or an up-to-date list
of such documents. If the permittee or licensee elects to maintain an
up-to-date list of such documents, the list must include all the
information that the permittee or licensee is required to provide on
ownership reports for each document, including, but not limited to, a
description of the document, the parties to the document, the month and
year of execution, the month and year of expiration, and the document
type (e.g., network affiliation agreement, articles of incorporation,
[[Page 65558]]
bylaws, management consultant agreement with independent contractor).
Regardless of which of these two options the permittee or licensee
chooses, it must update the inventory of Sec. 73.3613 documents in the
public file to reflect newly executed Sec. 73.3613 documents,
amendments, supplements, and cancellations within 30 days of execution
thereof. Licensees and permittees that choose to retain a list of Sec.
73.3613 documents must provide a copy of any Sec. 73.3613 document(s)
to requesting parties within 7 days. In maintaining copies of such
documents in the public file or providing copies upon request,
confidential or proprietary information may be redacted where
appropriate.
* * * * *
(14) Radio and television time brokerage agreements. For commercial
radio and television stations, a copy of every agreement or contract
involving time brokerage of the licensee's station or of another
station by the licensee, whether the agreement involves stations in the
same markets or in differing markets, with confidential or proprietary
information redacted where appropriate. These agreements shall be
placed in the public file within 30 days of execution and retained in
the file as long as the contract or agreement is in force.
* * * * *
(16) Radio and television joint sales agreements. For commercial
radio and commercial television stations, a copy of agreement for the
joint sale of advertising time involving the station, whether the
agreement involves stations in the same markets or in differing
markets, with confidential or proprietary information redacted where
appropriate. These agreements shall be placed in the public file within
30 days of execution and retained in the file as long as the contract
or agreement is in force.
* * * * *
(f)(1) For purposes of this section, action taken on an application
tendered with the FCC becomes final when that action is no longer
subject to reconsideration, review, or appeal either at the FCC or in
the courts.
(2) For purposes of this section, the term ``all related material''
includes all exhibits, letters, and other documents tendered for filing
with the FCC as part of an application, report, or other document, all
amendments to the application, report, or other document, copies of all
documents incorporated therein by reference and not already maintained
in the public inspection file, and all correspondence between the FCC
and the applicant pertaining to the application, report, or other
document, which according to the provisions of Sec. Sec. 0.451 through
0.461 of this chapter are open for public inspection at the offices of
the FCC.
0
4. Amend Sec. 73.3527 by removing notes 1 and 2 to paragraph (e),
revising paragraph (e)(4), and adding paragraph (f) to read as follows:
Sec. 73.3527 Local public inspection file of noncommercial
educational stations.
* * * * *
(e) * * *
(4) Ownership reports and related materials. A copy of the most
recent, complete ownership report filed with the FCC for the station,
together with any subsequent statement filed with the FCC certifying
that the current report is accurate, and together with all related
material. These materials shall be retained until a new, complete
ownership report is filed with the FCC, at which time a copy of the new
report and any related materials shall be placed in the file. The
permittee or licensee must retain in the public file either a copy of
the station documents listed in Sec. 73.3613(a) through (c) or an up-
to-date list of such documents. If the permittee or licensee elects to
maintain an up-to-date list of such documents, the list must include
all the information that the permittee or licensee is required to
provide on ownership reports for each document, including, but not
limited to, a description of the document, the parties to the document,
the month and year of execution, the month and year of expiration, and
the document type (e.g., network affiliation agreement, articles of
incorporation, bylaws, management consultant agreement with independent
contractor). Regardless of which of these two options the permittee or
licensee chooses, it must update the inventory of Sec. 73.3613
documents in the public file to reflect newly executed Sec. 73.3613
documents, amendments, supplements, and cancellations within 30 days of
execution thereof. Licensees and permittees that choose to maintain a
list of Sec. 73.3613 documents must provide a copy of any Sec.
73.3613 document(s) to requesting parties within 7 days. In maintaining
copies of such documents in the public file or providing copies upon
request, confidential or proprietary information may be redacted where
appropriate.
* * * * *
(f)(1) For purposes of this section, a decision made with respect
to an application tendered with the FCC becomes final when that
decision is no longer subject to reconsideration, review, or appeal
either at the FCC or in the courts.
(2) For purposes of this section, the term ``all related material''
includes all exhibits, letters, and other documents tendered for filing
with the FCC as part of an application, report, or other document, all
amendments to the application, report, or other document, copies of all
documents incorporated therein by reference and not already maintained
in the public inspection file, and all correspondence between the FCC
and the applicant pertaining to the application, report, or other
document, which according to the provisions of Sec. Sec. 0.451 through
0.461 of this chapter are open for public inspection at the offices of
the FCC.
0
5. Amend Sec. 73.3613 by revising the section heading, the section
introductory text and paragraph (a) introductory text, removing
paragraphs (a)(3) and (e), and revising paragraphs (a)(2), (b)(3)(iii)
introductory text, (b)(4), and (d) to read as follows:
Sec. 73.3613 Availability to FCC of station contracts.
Each licensee or permittee of a commercial or noncommercial AM, FM,
TV or International broadcast station shall provide the FCC with copies
of the following contracts, instruments, and documents together with
amendments, supplements, and cancellations (with the substance of oral
contracts reported in writing), within 7 days of a request by the FCC.
(a) Network service: Network affiliation contracts between stations
and networks will be reduced to writing and filed upon request as
follows:
* * * * *
(2) Each such filing shall consist of all of the terms and
conditions of such contract, agreement or understanding, including any
other paper or document incorporated by reference or otherwise.
(b) * * *
(3) * * *
(iii) Agreements for the acquisition of licensee's or permittee's
stock by the issuing licensee or permittee corporation, pledges, trust
agreements or abstracts thereof, options to purchase stock and other
executory agreements. Should the FCC request an abstract of the trust
agreement in lieu of the trust agreement, the licensee or permittee
will submit the following information concerning the trust:
* * * * *
(4) Proxies with respect to the licensee's or permittee's stock
running for a period in excess of 1 year, and all proxies, whether or
not running for a period of 1 year, given without full and
[[Page 65559]]
detailed instructions binding the nominee to act in a specified manner.
With respect to proxies given without full and detailed instructions, a
statement showing the number of such proxies, by whom given and
received, and the percentage of outstanding stock represented by each
proxy shall be submitted by the licensee or permittee if the stock
covered by such proxies has been voted. However, when the licensee or
permittee is a corporation having more than 50 stockholders, such
complete information need be filed only with respect to proxies given
by stockholders who are officers or directors, or who have 1% or more
of the corporation's voting stock. When the licensee or permittee is a
corporation having more than 50 stockholders and the stockholders
giving the proxies are not officers or directors or do not hold 1% or
more of the corporation's stock, the only information required to be
filed is the name of any person voting 1% or more of the stock by
proxy, the number of shares voted by proxy by such person, and the
total number of shares voted at the particular stockholders' meeting in
which the shares were voted by proxy.
* * * * *
(d) Other agreements: Subchannel leasing agreements for Subsidiary
Communications Authorization operation; franchise/leasing agreements
for operation of telecommunications services on the television vertical
blanking interval and in the visual signal; time sales contracts with
the same sponsor for 4 or more hours per day, except where the length
of the events (such as athletic contests, musical programs and special
events) broadcast pursuant to the contract is not under control of the
station; and contracts with chief operators or other engineering
personnel.
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
0
6. The authority citation for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, 307, 309, 310, 336 and 554.
Sec. 74.780 [Amended]
0
7. Section 74.780 is amended by revising the entry for ``Section
73.3613--Filing of contracts (network affiliation contracts for low
power TV stations only)'' to read ``Section 73.3613--Availability to
FCC of station contracts (network affiliation contracts for low power
TV stations only)''.
[FR Doc. 2018-26595 Filed 12-20-18; 8:45 am]
BILLING CODE 6712-01-P
