MM Docket. No. 95-31
Reexamination of the Comparative Standards for New Noncommercial Educational Applicants
Adopted: February 28, 1995 Released:
March 17, 1995
Comment Date: [30 days after release]
Reply Date:
[15 days after close of comment]
By the Commission:
II. BACKGROUND
2. The standard comparative issue designated in NCE proceedings currently inquires into "the extent to which each of the proposed operations will be integrated into the overall cultural and educational objectives of the respective applicants." New York University, 10 RR 2d 215, 217-8 (1967). The Commission also asks whether "other factors" in the record demonstrate that one applicant will provide a superior noncommercial educational broadcast service. See New York University, supra; see also Carnegie-Mellon Student Government Corporation, 7 FCC Rcd 3814, 3915-6 (1992). Between 1970 and approximately 1988, NCE Hearing Designation Orders contained an additional criterion: the manner in which the proposed operation of the respective applicants meets the needs of the community to be served. See Pacifica Foundation, 21 FCC 2d 216, 221 (Rev. Bd. 1970); Seattle Public Schools, 103 FCC 2d 862 (1986). See also Black Television Workshop of Santa Rosa, Inc., 65 RR 2d 34 (Rev. Bd. 1984); and Southeastern Bible College, 85 FCC 2d 936, 937 (Rev. Bd. 1981).(n2)
3. In 1992, we initiated a general proceeding to reform
the criteria used to select among mutually exclusive applicants
for new broadcast facilities. Notice of Proposed Rulemaking
In the Matter of Reexamination of the Policy Statement
on Comparative Broadcast Hearings, GC Docket No. 92-52,
7 FCC Rcd 2664 (1992)("NPRM"). See also Second Further
Notice of Proposed Rulemaking, 9 FCC Rcd 2821 (1994)("NPRM2")
(soliciting additional comments in light of the appellate
decision in Bechtel v. FCC, 10 F.3d 874 (D.C. Cir. 1993)).
In the NPRM, we made the following statement with respect
to the criteria used in NCE comparative proceedings:
Under current practice, applicants for noncommercial stations
are not compared using the same criteria as those used
for commercial applicants. Instead, noncommercial applicants
are evaluated as to the extent to which each of the proposed
operations will be"integrated into the overall operations
and objectives" of the respective applicants. New York
University, 10 RR 2d 215, 217-8 ¶¶ 8-9 (1967). Upon reflection,
it appears that use of such a vague standard may make rational
choices among noncommercial applicants difficult, if not
impossible. We note, for example, that the Review Board,
for this very reason, recently urged the Commission to
reexamine the comparative
analysis to be applied in these cases. Real Life Educational
Foundation of Baton Rouge, Inc., 6 FCC Rcd 2577, 2580 n.
8 (Rev. Bd. 1991) (subsequent history omitted).
NPRM, 7 FCC Rcd at 2669.
4. We therefore tentatively concluded that the "vague
standard" currently used in NCE comparative proceedings
"should be eliminated" and that we should consider using
a modified version of the "point system" proposed in the
NPRM for commercial applicants. We invited comments on
these proposals and on: (i) whether the criteria used to
select commercial applicants were relevant in NCE proceedings;
(ii) whether different or additional criteria should be
used; and (iii) whether a different comparative approach
should be followed for state-owned public broadcasters
as opposed to other NCE applicants. Id.
5. In response, we received six sets of comments from interested parties on June 2, 1992: (i) joint comments from The Association of America's Public Television Stations and National Public Radio ("APTS/NPR");(n3) (ii) the National Federation of Community Broadcasters ("NFCB");(n4) (iii) joint comments from a group of NCE Broadcasters ("NCE Licensees"),(n5) (iv) Valley Public Television, Inc. ("Valley"), (v) the Georgia Public TelecommunicationsCommission ("GPTC");(n6) and (vi) Harry M. Plotkin. APTS/NPR also filed reply comments on June 30, 1992, responding specifically to the submission of NFCB. Finally, APTS/NPR filed brief joint comments in response to NPRM2 on July 22, 1994.(n7)
7. Most of the existing comments agree on one major point:
that the current NCE comparative criteria are inadequate.
They also agree on several less critical points, including
that: (1) the traditional commercial comparative criteria
are inappropriate for NCE applicants; (2) "time-sharing"
should be eliminated from consideration in NCE comparative
proceedings; (3) auxiliary power should be eliminated as
a comparative criterion; and (4) a comparative coverage
factor should be applied in some manner. APTS/NPR and
NFCB were the only commenters who described detailed alternatives
to the existing criteria for selecting from among competing
NCE applicants. Their proposals were widely divergent.
8. APTS/NPR urges retaining and "refining" the existing
NCE comparative criteria and sets forth three proposed
"clarifying guidelines" to facilitate the Commission's
evaluation of competing NCE applicants. First, APTS/NPR
states that the Commission should examine which applicant
will best integrate the station operations with its educational
and cultural objectives. In making this evaluation, the
Commission should consider, inter alia, whether the applicant:
(1) has clear, definable educational and cultural objectives;
(2) has objectives directed outwardly tothe community of
license, not exclusively to the licensee; and (3) describes
adequately its anticipated program format and plan for
program promotion and submits adequate evidence that it
can implement its service. Second, the Commission should
determine which applicant's proposed operations will "best
meet community needs." Here, according to APTS/NPR, the
Commission should consider, inter alia, whether the applicant:
(1) has a reasonable process in place to determine educational
and cultural needs; (2) has proposed services and objectives
that will meet identified community needs; and (3) has
a governing board composition that is broadly representative
of the community to be served or, in the case of state/local
government licensees, is accountable to the public. Finally,
proffers APTS/NPR, the Commission should look to whether
"any other factors demonstrate that one applicant will
provide superior broadcast service." Such factors would
include, inter alia, whether an applicant's proposal: (1)
would permit operating efficiencies by virtue of "common
ownership" of NCE facilities; (2) would demonstrate a workable
ability to bring service to unserved or underserved areas;
and (3) will use available technology fully. APTS/NPR
comments, at 18.
9. NFCB, on the other hand, urges the adoption of an
all-or-nothing "point system" which relies on criteria
that, for the most part, are not now considered in the
NCE context. The factors NFCB suggests are: diversification
(3 points); minority control (3 points); spectrum efficiency
(a coverage comparison) (3 points); local program origination
(2 points); local residence of principals (2 points); and
finder's preference (only as a "tiebreaker")(1 point).
10. NFCB did not file reply comments on the APTS/NPR
proposal. However, APTS/NPR states in its reply comments
that NFCB's proposal is too narrowly focused and will favor
only one subset of public broadcaster -- the small community
radio station -- "without a corresponding increase in
the likelihood that these stations will better serve the
Commission's objectives [for NCE service]." APTS/NPR reply
comments, at 11. The disparity in viewpoints leads us
to believe that we should seek further comments from other
interested parties on the proposals made by APTS/NPR and
NFCB and on related issues, as well as the submission of
alternative proposals.
1. Generally, whether the existing NCE criteria should
be retained and, if so, whether the "refinements" to the
criteria proposed by APTS/NPR are appropriate? Specifically,
are certain of the the APTS/NPR proposals, including, for
example, the proposals tofavor applicants with objectives
that are "directed outwardly to the ... listening community,
and not exclusively to the licensee itself," to favor applicants
with a governing board that "is broadly representative
of the community to be served," and to favor applicants
who can demonstrate operating efficiencies through "common
ownership," likely to unfairly disadvantage certain types
of applicants and why?
2. Should the factors enumerated in (1) above and/or other
factors APTS/NPR proposed be eliminated or modified? Should
the factors proposed by APTS/NPR be weighted in the manner
suggested? If factors in addition to those proposed by
APTS/NPR should be considered, what are they and how should
they be weighted?
3. Should a "point system" be adopted in place of the
existing NCE comparative criteria, as proposed by NFCB?
If so, are NFCB's proposed comparative factors both appropriate
and comprehensive, and are the weights suggested by NFCB
appropriate? If not, what factors should be considered
and how much weight should be given to each factor. Additionally,
what factor(s) should be employed as a "tiebreaker," and
how should those factors be applied?
4. What would be the impact of both the APTS/NPR and NFCB
proposals on the universe of potential applicants, i,e,,
do either or both proposals accommodate the wide
variety of applicants currently eligible to apply
for NCE stations?
5. Would some system other than the two proposed in comments
currently before us better serve the Commission's goals
in selecting among noncommercial educational applicants,
and if so, how should that system be structured?
6. Should the mandatory "share-time" arrangement consideration
be retained as a means of resolving NCE mutually exclusive
groups?
7. Should a different comparative approach be followed
for state-owned public broadcasters as opposed to other
NCE applicants and, if so, how should this separate comparative
approach be structured?
8. Should the Commission impose a "holding period" for
NCE stations granted as a result of comparative hearing
to insure the continued viability of the criteria usedin
the selection process, as stressed in Bechtel v. FCC, supra,
or should some other mechanism be employed for that purpose?
12. Additional Considerations. We have previously indicated
that the current NCE comparative standards are vague and
difficult to apply. NPRM, supra, 7 FCC Rcd at 2669. Because
we are here instituting a rulemaking to develop new standards
for choosing among mutually exclusive applicants, we believe
it inappropriate to continue to designate mutually exclusive
NCE applications for hearing under the existing comparative
criteria. Similarly, we believe it is inappropriate to
continue to adjudicate under the existing comparative criteria
pending hearing proceedings involving mutually exclusive
proposals for new noncommercial broadcast facilities.
Therefore, we are as of the release date of this Notice
imposing a partial freeze on the processing of NCE-FM applications.
In light of this freeze, we will, as noted in paragraph
1, supra, make every effort to resolve the questions addressed
herein as quickly as possible.
13. We will continue to accept NCE applications and to
process those NCE applications which are not mutually exclusive,
and we will continue to rule on and approve appropriate
universal settlements among mutually exclusive NCE applicants.
Until we have adopted new or revised NCE-FM comparative
criteria in this proceeding, however, we will not designate
mutually exclusive NCE applications for comparative hearing.
Further, as of the release date of this Notice, the Administrative
Law Judges, the Review Board, and the Commission will no
longer issue decisions in pending hearing proceedings involving
competing applicants for NCE broadcast facilities where
those decisions would rely upon the existing comparative
criteria for NCE applicants. To avoid unnecessary delay,
however, the Administrative Law Judges, the Review Board,
and the Commission will continue to facilitate, consider,
and approve, where appropriate, settlements among NCE applicants
now involved in hearing proceedings provided such settlements
are consistent with current Commission policies governing
those agreements.
14. In light of our decision here to hold relevant pending
hearing proceedings in abeyance until such time as we adopt
new or revised comparative criteria, we solicit comments
as to how we should apply any newly adopted criteria to
these cases. For example, should we permit applicants
in these cases to file one-time as-of-right amendments
for purposes of taking into account the new or revised
criteria?
B. Regulatory Flexibility Act
16. An Initial Regulatory Flexibility Analysis is contained
in the Appendix to this Notice.
C. Authority
17. Authority for the Rulemaking action is contained in
47 U.S.C. §§154(i), 154(j), 303(r), 309(g), 309(i), 403.
19. IT IS FURTHER ORDERED, That pursuant to applicable
procedures set forth in Sections 1.415 and 1.419 of the
Commission's Rules, comments SHALL BE FILED on or before
, and Reply comments shall be filed on or before
. To file formally in this proceeding, commenters must
file an original and four copies of all comments, reply
comments, and supporting comments. If commenters want
each Commissioner to receive a personal copy of their comments,
they must file an original plus nine copies. Comments
and reply comments should be sent to the Office of the
Secretary, Federal Communications Commission, Washington,
D.C. 20554. In addition, commenters should file a copy
of any such pleadings with the Chief, Mass Media Bureau,
Room 314, 1919 M Street, N.W., Washington, D.C. 20554.
Commenters should also file one copy of any documents
filed in this docket with the Commission's duplicating
contractor, International Transcription Service, 2100 M
Street, N.W., Washington, D.C. 20036. Comments and reply
comments will be available for public inspection during
regular business hours in the FCC Reference Center (Room
239), 1919 M Street, N.W., Washington, D.C. 20554.
20. For further information, contact Michael F. Wagner,
(202) 418-2720, Mass Media Bureau.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
APPENDIX
Objectives
The Commission seeks to adopt more meaningful criteria
and to adopt a simplified hearing process to select new
noncommercial educational broadcast licensees on an expedited
basis.
Legal Basis
Action is being taken pursuant to 47 U.S.C. §§154(i) and
(j), 303(r), 309(g) and (i), and 403.
Reporting, Record-Keeping, and Other Compliance Requirements
This proposal would reduce such requirements by eliminating
and simplifying litigation involved in prosecuting a mutually
exclusive application for a new noncommercial educational
broadcast facility.
Federal Rules which Overlap, Duplicate or Conflict with
the Proposed Rules
None
Description, Potential Impact, and Number of Small Entities
Affected
This proposal would benefit all small noncommercial educational
entities seeking a new noncommercial educational broadcast
facility by reducing and simplifying the administrative
burdens associated with the comparative hearing process.
Any Significant Alternative Minimizing Impact on Small
Entities and Consistent with the Stated Objectives
None
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
IV. QUESTIONS FOR COMMENT . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. Generally, whether the existing NCE criteria
should be retained and, if so, whether the "refinements"
to the criteria proposed by APTS/NPR are appropriate?
Specifically, are certain of the the APTS/NPR proposals,
including, for example, the proposals tofavor applicants
with objectives that are "directed outwardly to
the ... listening community, and not exclusively
to the licensee itself," to favor applicants with
a governing board that "is broadly representative
of the community to be served," and to favor applicants
who can demonstrate operating efficiencies through
"common ownership," likely to unfairly disadvantage
certain types of applicants and why?
2. Should the factors enumerated in (1) above and/or
other factors APTS/NPR proposed be eliminated or
modified? Should the factors proposed by APTS/NPR
be weighted in the manner suggested? If factors
in addition to those proposed by APTS/NPR should
be considered, what are they and how should they
be weighted?
3. Should a "point system" be adopted in place of
the existing NCE comparative criteria, as proposed
by NFCB? If so, are NFCB's proposed comparative
factors both appropriate and comprehensive, and
are the weights suggested by NFCB appropriate?
If not, what factors should be considered and
how much weight should be given to each factor.
Additionally, what factor(s) should be employed
as a "tiebreaker," and how should those factors
be applied?
4. What would be the impact of both the APTS/NPR
and NFCB proposals on the universe of potential
applicants, i,e,, do either or both proposals accommodate
the wide variety of applicants currently eligible
to apply for NCE stations?
5. Would some system other than the two proposed
in comments currently before us better serve the
Commission's goals in selecting among noncommercial
educational applicants, and if so, how should that
system be structured?
6. Should the mandatory "share-time" arrangement
consideration be retained as a means of resolving
NCE mutually exclusive groups?. . . . . . . . . . . . . . . . . . . . 7
V. PROCEDURAL MATTERS
A. Ex Parte Rules -- Non-restricted Proceeding. . . . . . . . . . . . . 15
B. Regulatory Flexibility Act . . . . . . . . . . . . . . . . . . . . . 16
C. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
VI. ORDERING CLAUSES . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
APPENDIX
Footnote 1 As a general matter, we do not consider in this proceeding the standards applicable to resolving mutually exclusive applications filed against renewal applicants. Those standards are the subject of a separate proceeding. See Formulation of Rules and Policies Relating to Broadcast Renewal Applicants, 4 FCC Rcd 6363 (1989), 4 FCC Rcd 4780 (1989); 3 FCC Rcd 5179 (1988). In those cases, however, in which a renewal applicant is not accorded an expectancy and is not disqualified, that applicant would be compared to any competing applicant using the "new" comparative criteria adopted in this proceeding.
Footnote 2 The "community needs" criterion has been omitted from recent NCE Hearing Designation Orders. See Real Educational Foundation of Baton Rouge, Inc., 3 FCC Rcd 4359 (M. M. Bur. 1988); Maricopa Community College District, 3 FCC Rcd 5637 (M.M. Bur. 1988) and Cabrini College, 4 FCC Rcd 5462 (M.M. Bur. 1989). See also Carnegie-Mellon, supra. The Review Board recently opined that this unexplained omission must be "in belated obeisance to the Commission's 1984 [Public Broadcasting] Deregulation Order" [Program Policies and Reporting Requirements Related to Public Broadcasting Licensees, 98 2d 746 (1984)], which eliminated the formal ascertainment procedures for NCE-FM stations. Real Life Educational Foundation of Baton Rouge, Inc., 6 FCC Rcd 2577, 2578 (Rev. Bd. 1991).
Footnote 3 APTS represents most of the nation's public television stations. NPR represents approximately 500 full service public radio stations.
Footnote 4 At the time comments were filed, NFCB had a membership of 62 participating community broadcasters and 115 affiliates.
Footnote 5 The NCE Licensees are: Arizona Board of Regents for Benefit of the University of Arizona, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, Central Michigan University, Columbia College, Iowa Public Broadcasting Board, Kent State University, KVIE, Inc., Nevada Public Radio Corp., the Ohio State University, State of Wisconsin-Educational Communications Board, and WAMC.
Footnote 6 GPTC's "comments" consisted of the submission of the "Brief and Exceptions" filed with the Review Board in a comparative proceeding for a new commercial channel in Roswell, New Mexico, MM Docket No. 89-337. The submission does not specifically address the NCE comparative criteria.
Footnote 7 Jimmy Swaggart Ministries, Inc. ("JSM") later filed comments in response to the Commission's Order, FCC 94I-072, Mimeo No. 42769 (released September 2, 1992), issued subsequent to a voluntary remand of the appeal of the grant of JSM's application for a new NCE FM station. Those comments have been consolidated into the record here.