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Docket No. 87267  X-Band Allotment Plan hh,Vj) l  XH-  MEMORANDUM OPINION AND ORDER lU  X -X` hp x (#%'0*,.8135@8:motion we conform the revised plan to Region 2 treaty requirements and eliminate software   Mcoding errors in the frequency preclusion and allotment plan programs. We also clarify the   second harmonic interference standard which has been applied in this proceeding. We deny the   other petitions for reconsideration. The Mass Media Bureau is concurrently reissuing the   ZExpanded Band allotment plan (the "Third Allotment Plan") based on the changes adopted in this Order.  X -$ THE WGNY PETITION ă  X - 3. The Second Harmonic Interference Standard. Stations operating on 810, 820, 830,   [840, and 850 kHz have the potential to cause interference to Expanded Band stations operating  X-  at twice the carrier frequency of the existing band stations, i.e., to Expanded Band stations  X-  {operating on 1620, 1640, 1660, 1680, and 1700 kHz. Such second harmonic interference is   xcaused by the generation of the second harmonic of the lower frequency within the radio receiver.   kSection 73.182 restricts the location of the transmission facilities of 540 800 kHz stations in   yorder to prevent second harmonic interference to existing band stations. Sunrise Broadcasting   of New York, Inc., licensee of WGNY, Newburgh, New York ("WGNY") maintains that the  X-  -Commission did not follow the standard announced in Order I to calculate harmonic interference   kbetween existing and Expanded Band stations. Moreover, WGNY contends that we should  X-  <reconsider the stated Order I standard which provides significantly greater harmonic interference   protection than the standard set forth in the Commission's rules. It argues that the rule, itself,   is too preclusive and urges the Commission to "revisit" this issue to ensure that the final allotment plan achieves the greatest possible interference reductions among licensed stations.  Xq- N4. In Order I, we proposed to preclude Expanded Band assignments which would result   [in prohibited second harmonic overlap, as determined in accordance with 47 C.F.R. 73.182(s).  XE-  See Order I, 10 FCC Rcd at 12148. However, Order I misstates this rule as prohibiting a new,  X0-  i.e., Expanded Band, station assignment where "the service area of an existing station...would"0 ,))ZZ>"  X-  koverlap the service area of a potential Expanded Band station...." Id. In fact, subsection (s)   -generally prohibits the licensing of two stations, one with a frequency twice the other, unless the   transmission facilities of the lower frequency station is located outside the service area of the  X-  Lhigher frequency station.`X} yO6-  ;ԍ "Two stations, one with a frequency twice of the other, should not be assigned in the same groundwave service   area unless special precautions are taken to avoid interference from the second harmonic of the station operating on the lower frequency...." 47 C.F.R. 73.182(s).` Notwithstanding the erroneous formulation of 47 C.F.R. 73.182(s)  X-  in Order I, the second harmonic studies actually used in generating the allotment plan precluded   zonly those potential Expanded Band assignments where the calculated groundwave service   contour of the Expanded Band station would encompass the transmitter site of an authorized   jharmonicallyrelated station. Thus, the harmonic interference standard applied is substantially  XL-less preclusive than previously indicated and is similar to the approach which WGNY advocates.  X - 5. However, contrary to the implication in Order I, 10 FCC Rcd at 12148, the staff, in   =fact, did not strictly apply Section 73.182(d) in calculating prohibited harmonic interference for   the purpose of generating the First Allotment Plan. Section 73.182(d) defines the service area of  X -  a station for the purpose of these calculations.$ } {Ot-  ԍ Order I, 10 FCC Rcd at 12148 ("The service area of a station is that area protected from interference and is  {O>-  defined as the 0.5 mV/m for rural areas in Section 73.182(d) of the rules."); Order II, 11 FCC Rcd at 12448   ("Section 73.182(d) of the Commission's rules defines [the Section 73.182(s)] service area as the 0.5 mV/m contour."). Pursuant to this subsection an AM station's   "primary service" area is calculated on the basis of its 2.0 mV/m contour in communities of at   least 2,500 persons and its 0.5 mV/m contour elsewhere. The computer program, however, used the more preclusive 0.5 mV/m signal strength for the protected contour in all instances.  6. We choose not to incorporate into the generation of the Third Allotment Plan the two   Ksignal strength contour values given in Section 73.182(d) and conclude that it is more appropriate   to determine harmonic preclusions based solely on the 0.5 mV/m protection standard, regardless   of the population of the community in which the transmission facilities of the lower frequency   station is located. This action is consistent with our objective throughout this proceeding to   Mauthorize, to the maximum extent possible, new interferencefree AM station services in the   Expanded Band. The 0.5 mV/m standard comports with the technical framework used to develop   each of the allotment plans, and its use is generally more consistent with interference protection   Lstandards in the AM service than is the 2.0 mV/m contour. We further note that the Expanded  X-  Band proceeding has defined a station's daytime service area as its 0.5 mV/m contour. AM  X-  zImprovement Order, 6 FCC Rcd at 6310; see also id. at 628788 (affirming use of "protected"   value of 0.5 mV/m for determining where station provides adequate signal). Additionally, the  XX-  jdaytime component of the improvement factor, see Note 1, infra, parallels this definition, using  XC-  Na station's 0.5 mV/m contour to calculate its daytime service area. See 47 C.F.R. 73.35.ZC} yO%-  ԍ In contrast, the 2.0 mV/m primary service contour specified in Section 73.182(d) is no longer factored into  {O&-  interference analyses in AM application processing. AM Improvement Order, 6 FCC Rcd at 629092. It has been used in hearings to compare the areas and populations served by facilities proposed in competing applications.  "C ,-(-(ZZ{"   xMoreover, the use of two contour values, depending on the location of the existing band station's   ktransmission facilities, would likely engender disputes about the location and population of   particular communities, boundaries of unincorporated areas and similar factuallyintensive   controversies that could consume limited staff resources without necessarily improving the overall   allotment plan. Finally, our preliminary analysis indicates that the use of two contour values   would not, to any significant extent, permit additional Expanded Band Allotments. For all of   -these reasons we believe the better course is to continue to protect migrators to this contour and   preclude second harmonic Expanded Band frequency assignments where the proposed station's 0.5 mV/m contour would encompass the transmitter site of an authorized 810850 kHz station.  7. Finally, WGNY proposes that, rather than incorporating the harmonic protection   .requirements of Section 73.182, we should preclude Expanded Band allotments only where the   operating station's 10 mV/m contour overlaps any portion of the Expanded Band station's 2.0   mV/m contour. WGNY submits that its less restrictive standard would promote the efficient use   kof the Expanded Band. We disagree. The importance of making interferencefree Expanded   <Band assignments tips the balance against WGNY's preclusion standard which would needlessly   >expose some Expanded Band stations to second harmonic interference. We do not wish to   achieve the goal of reducing interference to the existing band at the expense of increasing the   Mpotential for harmonic interference to new Expanded Band stations. Accordingly, we reject  XK-WGNY's proposal.K} yO-  jԍ #X\  P6G;IP##C\  P6QIP#WGNY also contends that application of  73.182(s) itself is "not logical" in view of the rule's explicit   limitation that "the Commission, in general, will not take this kind of interference into consideration when   ;authorizing stations." WGNY misreads this section. The quoted language refers to receiver image interference, not   harmonic interference. In fact, no Expanded Band frequencies were precluded on the basis of potential receiver image interference.  X- 8. TIS Station Protection. WGNY calculates that federal TIS Station KPC712 should   0have but did not preclude a WGNY allotment on 1620 kHz. Thus, it claims, a flawed   -computer program incorrectly computed the contour separations for federal TIS stations. WGNY concludes that the Commission must generate a new allotment list.  9. Under the protection standards developed in this proceeding, a federal TIS station   [operating on 1610 kHz would preclude a first adjacent Expanded Band assignment on 1620 kHz   where the TIS station is less than 15 kilometers from the proposed station's 0.5 mV/m contour.  Xe-  Order I, 10 FCC Rcd at 12148.hex} X!-#d6X@`7s@##X\  P6G;IP#э#C\  P6QIP##Xj\  P6G; XP# #X\  P6G;IP##C\  P6QIP#We stated:   c  X` ` Federal travellers information station protection will be defined by the distance   Dbetween the Expanded Band and federal travellers information station transmitter.   6For cochannel and first adjacent channel projections, we will use the distances   Eset out in Section 90.242(a)(2)(i) of our Rules: distance to the Expanded Band   sstation's 0.5 mV/m contour plus 130 km for co-channel; distance to the 0.5 mV/m contour plus 15 km for first adjacent channel.x` h Based on a review of the Second Allotment Plan computer   =program, we have determined that the staff applied a different preclusion standard, calculating"P ,-(-(ZZ"   distance separations on the basis of the Expanded Band station's .25 mV/m contour. As a result,   =several stations, including WGNY, were erroneously considered for a 1620 kHz assignment on   Mthis basis. The TIS station computer program preclusion component has been corrected to  X-  conform to Order I. We note that WGNY is precluded on both 1610 kHz and 1620 kHz by Station KPC712.  Xx-P  OTHER PETITIONS FOR RECONSIDERATION  XJ-  10. The remaining petitions for reconsideration attempt to relitigate arguments raised and   fully considered at earlier stages of this proceeding. It is well settled that reconsideration will  X -  =not be granted merely to rehash matters already treated and resolved. See, e.g., WWIZ, Inc., 37  X -  MFCC 2d 685 (1964), aff'd sub nom. Lorain Journal Co. v. FCC, 351 F 2d 824 (D.C. Cir. 1965),  X -  ycert. denied, 383 U.S. 967 (1966). We briefly address seriatim those arguments which we reject as repetitious or otherwise without merit.  11. Western New York Public Broadcasting Association, licensee of WNED(AM),   [Buffalo, New York ("WNED") and Triad Network, Inc., permittee of WWGB(AM), Greensboro,   KNorth Carolina ("WWBG") each contend that it is entitled to a specific explanation of the reasons   their respective stations were not included in the Second Allotment Plan. The staff has made  XS-  available its analyses to WNED and WWBG and their requests will be denied. S} yO-  ԍ#X\  P6G;IP# #C\  P6QIP#Summary sheets of each petitioner's computer preclusion study, which identified the universe of frequency   assignments for each potential migrator, have been associated with MM Docket 87267 and made available for public   inspection. Also associated therewith are the data on which each station's improvement factor was calculated. Thus,   all applicants had the opportunity to evaluate fully the basis for Commission action in each specific case. MM   Docket 87267 is available for public inspection in the Public Reference Room (Room 239, 1919 M St., N.W.   Washington D.C.) and copies of this material may be obtained from the Commission's duplicating contractor,   International Transcription Services, Inc., (202) 8573800. The database is also available in computer readable form   by special order from the U.S. Department of Commerce, National Technical Information Service ("NTIS"), 5288  yO -Port Royal Road, Springfield, Virginia 22161.  WWBG also   seeks reconsideration of the "decision" to select only a small number of migrating stations. It   argues that the allotment plan specifies only two stations in North Carolina, two in Virginia, one   in Tennessee, one in South Carolina and none in West Virginia, even though, in WWBG's view,   zthe Commission could make additional interferencefree Expanded Band assignments in this   region. WWBG urges the Commission to reconsider whether the Expanded Band separation   requirements are too strict. Lloyd B. Roach, Incorporated, licensee of WPWA(AM), Chester,   Pennsylvania ("WPWA") asserts that unless the Commission makes some assignments in   LDelaware and Pennsylvania, over 11,000,000 people will never benefit from the Expanded Band  X-  program. These contentions have been previously considered.r } {O#-ԍ#X\  P6G;IP# #C\  P6QIP#In Order I, 10 FCC Rcd at 62816282, we stated:  {O$-  XX` ` The Commission fully considered the public interest in the AM Improvement  {Oa%-  Order and the Reconsideration Order. It was determined that the public interest   was best served by attempting to reduce overall interference in the existing band  yO&-  as a whole. The time to reconsider the rulemaking has long since passed. . . . "&,-(-($'"   Lastly, stations in North Carolina, Virginia, West Virginia, Tennessee, South   Carolina, Long Island, New England, the New York City metropolitan area or   Pennsylvania would have received allotments where there was demand for an  yO-  allotment and where "its location was not precluded from receiving an  yO-allotment." x` r No grounds have been presented"x ,-(-(ZZ"   warranting reconsideration. Accordingly, the Third Allotment Plan adheres to the spacing  X-requirements previously adopted in this proceeding. $x} yO-  ԍ Minimum co, first and second adjacent channel separations in the Expanded Band are 800, 200 and 53  {O-  kilometers, respectively. See AM Improvement Order, 6 FCC Rcd at 6356. Stations operating on 1590 and 1600  {O -  kHz also are protected on the basis of these minimum distance separations. See Order I, 10 FCC Rcd at 12149; 47 C.F.R. 73.37(f).  N12. WPWA and WGNY object to the coprimary status accorded federal TIS stations in   this proceeding, a policy designed to protect these lowpowered stations while promoting   opportunities for Expanded Band allotments. WPWA notes that the Second Allotment Plan   contains only one 1610 kHz assignment. It argues that the Commission erred in not requiring   [the involuntary relocation of federal TIS stations to other frequencies, including 1710 kHz, and   [that as a result a significant opportunity to improve the AM broadcast band may be lost. This  X1-  issue already has been consideredh 1d } yOF-ԍ #X\  P6G;IP##C\  P6QIP#We stated:   &XX` ` Federal travelers information stations will continue on 1610 kHz on a coprimary    basis "until they can be reaccommodated in an orderly fashion on an alternate  {O-  frequency." See Reconsideration Order, 8 FCC Rcd at 3257. Once a   determination is made as to the appropriateness and timing of this   reaccommodation, AM stations that were precluded from receiving an allotment   'because of conflicts with federal travelers information stations will be afforded  {O-  Fan opportunity to migrate to the Expanded Band. Order II, 11 FCC Rcd at 12447.x` h and WPWA's request for reconsideration will be denied.   WGNY reargues its contention that under the Commission's rules, federal TIS stations are   secondary, not coprimary, to regular AM stations and therefore, that they should only be   .protected on a limited basis. WGNY complains that the Commission appears to have awarded  X -  N"permanent primary status" to federal TIS stations and proposes that we make 1610 kHz   assignments in this proceeding conditioned on the federal TIS station vacating the frequency  X -within two years of the grant. We deny WGNY's requests as repetitive.[  8} {O -  -ԍ #X\  P6G;IP##C\  P6QIP#See Order I, 10 FCC Rcd at 12146 (explaining coprimary policy and casebycase treatment of potential  yOZ!-Expanded Band allotments on 1610 and 1620 kHz).#X\  P6G;IP#[  B13. WGNY also renews its suggestion that the Commission use measured soil   Kconductivity data to calculate station contours where such data was on file prior to June 30, 1993.   The Commission fully explored and rejected this approach as marginally beneficial and"K ,-(-(ZZ "  X-  administratively unwieldy.; } {Oy-  ԍ #X\  P6G;IP##C\  P6QIP#See Order II 11 FCC Rcd 1244748 (use of theoretical M3 ground conductivity data would facilitate Expanded Band implementation and best foster overall goals of this proceeding).; WGNY fails to persuade us that relying uniformly on theoretical   Mconductivity values for the assignment of Expanded Band allotments is either illadvised or  X-unlawful."} yO-ԍ #X\  P6G;IP##C\  P6QIP#This issue has been fully considered. We stated:   c ` ` In calculating the daytime contours, theoretical conductivity values will be used   for the purpose of determining the daytime improvement factor. Although it   (would be possible to use measured conductivity data in connection with the  yO -  ccontour calculations for the improvement factor, we conclude that the benefits   of this approach would be very minimal. In order to use such data fairly, a    complete search of all available data for all stations would be necessary. Even    with all measured conductivity values considered, we believe that, with few   cexceptions, the effect of the measurement data would even out and there would  {O -  be little overall impact on the ultimate ranking of the prospective migrators. See  {Ow-AM Improvement Order, 6 FCC Rcd at 6310. Accordingly, WGNY's request to use measured conductivity data will be denied.  14. WHTG, Inc., licensee of WHTG(AM), Eatontown, New Jersey ("WHTG") argues that   the Second Allotment Plan should be amended with respect to Station WJRZ, Toms River, New   lJersey. WJRZ has an improvement factor of 37.5019 and is listed as a potential 1620 kHz   migrator in the Second Allotment Plan. However, on September 14, 1995, the Chief of the   Audio Services Division, Mass Media Bureau, denied an application for extension of time to   construct WJRZ, cancelled the construction permit, and deleted the WJRZ call sign. The  X -  Commission has denied review of this action. Knox Broadcasting, Inc., FCC 9763 (adopted   .February 20, 1997). WHTG contends that WJRZ should be removed from the Third Allotment   jPlan, in which it remains listed as a potential 1620 kHz migrator, because the cancellation of the   WJRZ permit has already achieved the Commission's goal of reducing congestion in the existing   AM band. We reject WHTG's request as premature. If and when the cancellation of the WJRZ  X -  .construction permit becomes final, i.e., beyond administrative and judicial review, we will then  X-make 1620 kHz available.q^ } {O-  Kԍ See AM Improvement Order, 6 FCC Rcd at 6318 (establishing second filing window timetable for petitions  {O-  by existing stations to migrate to expanded band for those allotments that have not been authorized). See also Order  {O_-II, 11 FCC Rcd at 12447.q  m15. Olga I. Fernandez, permittee of WJIT(AM), Sabana, Puerto Rico ("WJIT") argues   that the database used to generate the Second Allotment Plan erroneously treated WJITAM as   a daytimeonly station. It requests that the Commission recalculate its improvement factor  X!-  <ranking to take into account its authority to broadcast 1000 watts nighttime. In Order I, licensees  X -  ywere afforded a 30day period to file requests to correct the database.zX } yOi%-  Ѝ We provided the following instructions for potential migrators:    ` ` After the thirtyday correction period, no further requests for change will be   saccepted, and the database will be "frozen" and used as corrected. This final"&,-(-('"   corrected database will be the June 30, 1993B database and will be used to generate the revised improvement factor rankings and revised allotment plan.  {O- ` ` ` Order I, 10 FCC Rcd at 121442145. z Basic fairness and our" z,-(-(ZZ"   interest in administrative finality foreclose any further consideration of proposed changes to the June 30, 1996B database. We deny WJIT's request as untimely.  16. Dynastar Communications, Inc., licensee of WWNR(AM), Beckley, West Virginia   ("WWNR") requests that its improvement factor be recalculated because it now proposes to  X-  =broadcast in stereo. The April 15, 1993 Public Notice, which announced the filing window for   Expanded Band petitioners, required applicants to file their intentions to broadcast with AM   stereo facilities by June 30, 1993. WWNR's request is untimely. WWNR "will not be allowed  XJ-to improve its position by any change made subsequent to June 30, 1993." Id.  X - 17. Radio Property Ventures, licensee of KQXI(AM), Arvada, Colorado ("KQXI") was   originally selected as potentially eligible to migrate to the Expanded Band. However, it was not   listed in the Second Allotment Plan. KQXI contends that its improvement factor may have been   improperly determined because it is not clear that the Commission calculated the station's   jimprovement factor on the basis of its 10 kW nighttime facility. KQXI raised this issue in 1993,   long before the thirtyday period for proposing 1996B database changes, when it sought   reconsideration of the staff's initial calculation of the KQXI improvement factor. The staff   granted reconsideration and amended the database at that time so that KQXI would be credited  Xf-  ywith 10 kW nighttime power operations. See Letter to Jerold L. Jacobs, Esq., released October   4, 1994 (Ref. 1800B2BSB). Notwithstanding the apparent discrepancy between this   Mdetermination and certain printout materials made available to the public, the staff manually   confirmed the KQXI improvement factor calculation, including the station's nighttime authority,  X -  prior to the Second Allotment Plan computer run.  z} yO7-  <ԍ#X\  P6G;IP##C\  P6QIP# The computer software used by the staff is available from NTIS. See footnote 4. Accordingly, KQXI can verify the staff calculations.  KQXI next argues that it was erroneously   ydenied consideration for an allotment on 1700 kHz. Our review shows that KQXI was properly   jprecluded from 1700 kHz by its harmonic relationship to Station KOA, Denver, Colorado which  X-  operates on 850 kHz. Lastly, KQXI contends that there must be a per se error in the process   used to generate the Second Allotment Plan because only one of the nine stations originally found   potentially eligible to apply for an allotment on 1680 kHz also appears in the revised plan.   [Although KQXI is correct in noting the substantial differences between 1700 kHz assignments   [in the First and Second Allotment Plans, it has not shown any error in the selection of stations included in the latter list. We reject KQXI's unsupported and speculative theory.  X(-w0 OTHER MATTERS ă  n18. In reviewing the several challenges to our frequency preclusion and allotment",-(-(ZZ"   methodologies, we have identified several software errors. The preclusion program permitted   assignments on 1620 and 1640 in certain parts of the Virgin Islands and on 1620 and 1690 kHz   in other parts. However, under the Region 2 Treaty, United States Virgin Islands Expanded Band   assignments are permitted without geographic limitation on 1620 and 1690 kHz only. Moreover,   the staff also concluded that minor geographic coding discrepancies left open the possibility of   Florida Expanded Band assignments which could conflict with international agreements. The   preclusion program has been modified to conform to treaty restrictions. Finally, the staff has   yeliminated several other coding errors following an exhaustive review of the software programs  XH-  which generate the frequency preclusion tables and allotment plan. See Central Florida  X3-  MEnterprises v. FCC, 598 F.2d 37, 48 n.51 (D.C. Cir. 1978) (while reconsideration petitions are  X -  =pending, the Commission may reconsider other issues on its own motion), cert. dismissed, 441 U.S. 957 (1979).  X - Y REVISED ALLOTMENT PLAN  X -  19. The modifications to the Expanded Band computer programs adopted on   reconsideration impact on the frequencies available for assignment, the selection of stations  X-  eligible to migrate, and the frequencies assigned to potential migrators. In these circumstances,  Xh-  !we concur with WGNY that the portion of Public Notice II which sets forth the Second   Allotment Plan must be rescinded and a new allotment plan generated. The Mass Media Bureau  X<-  \is releasing a public notice ("Public Notice III") concurrently with the release of this Order.  X'-  xPublic Notice III lists the eightyeight stations eligible to apply for Expanded Band authorizations   under the Third Allotment Plan and their specific allotments. Previously, we announced that   applications for construction permits for Expanded Band stations would not be requested until the   revised allotment plan becomes a final Commission action. We now conclude that the public   interest would be better served by calling for the filing of construction permit applications within  X-  ninety days of the release of Public Notice III. Under the Third Allotment Plan, fiftynine   =licensees have not changed allotments. Nineteen stations have been reassigned to a different   frequency. Nine licensees listed in the Second Allotment plan can no longer be accommodated in the Expanded Band, and ten other licensees are now eligible for migration.  XE- @20. Accordingly, IT IS ORDERED that Attachment II to Public Notice, Mass Media   KBureau Announces Revised Expanded AM Broadcast Band Improvement Factors and Allotment  X-Plan, DA 9696408 (released March 22, 1996) IS RESCINDED.  X- 21. IT IS FURTHER ORDERED that the petition for reconsideration filed by Sunrise   Broadcasting of New York, Inc., licensee of Station WGNY, Newburgh, New York IS   GRANTED to the extent indicated above, and the petitions for reconsideration filed by Western   /New York Public Broadcasting Association, licensee of Station WNED, Buffalo, New York,   yTriad Network, Inc., permittee of Station WWBG, Greensboro, North Carolina, Lloyd B. Roach,   Incorporated, licensee of Station WPWA, Chester, Pennsylvania, WHTG, Inc., licensee of Station   WHTG, Eatontown, New Jersey, Olga I. Fernandez, permittee of Station WJIT, Sabana, P.R.,   Dynastar Communications, Inc., licensee of Station WWNR, Beckley, West Virginia, and Radio Property Ventures, licensee of Station KQXI, Arvada, Colorado, ARE DENIED."7' ,-(-(ZZ%"Ԍ _22. IT IS FURTHER ORDERED that the petition for reconsideration filed by Press Broadcasting Company, Inc. IS DISMISSED. ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION ` `  hh,VWilliam F. Caton ` `  hh,VActing Secretary" ,-(-(ZZ"  X- HAPPENDIX ă  X-  FINAL REGULATORY FLEXIBILITY ANALYSIS X-lU   X- XAs required by the Regulatory Flexibility Act (RFA), 5 U.S.C.  603 (RFA),(#  X-an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in Review of the Technical  Xx-Assignment Criteria for the AM Broadcast Service, 5 FCC Rcd 4381 (1990) (Technical  Xc-Assignment Criteria Rulemaking). The Commission sought written public comments on the  XN-proposals in Technical Assignment Criteria Rulemaking, including the IRFA. The  X9-Commission's Final Regulatory Flexibility Analysis (FRFA) in Report and Order, Review of  X$ -the Technical Assignment Criteria for the AM Broadcast Service, 6 FCC Rcd 6273 (1991)  X -(Report and Order) was issued prior to enactment of the amendments to the RFA Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which was enacted as Title II of the Contract With America Advancement Act of 1966 (CWAAA), Pub. L. No.  X -104121, 110 Stat. 847 (1996).' } yOE-  Kԍ#]\  PCIP# Title II of the CWAAA is "The Small Business Regulatory Enforcement Fairness Act of 1996" (SBREFA),  {O -codified at 5 U.S.C.  601 et seq. #x6X@K >fX@#' This FRFA is limited to matters raised in response to the  X -Commission's action on reconsideration of Report and Order in Comments in Response to  X-Reconsideration of Implementation of the AM Expanded Band and Allotment Plan, 11 FCC  X-Rcd 12444 (1996) and addressed in this Memorandum Opinion and Order.  Xv-  X_< I. XNeed for and Objectives of this Memorandum Opinion and Order: (#   This proceeding was initiated to improve the quality of AM broadcasting by permitting the migration of existing band stations experiencing significant levels of interference to the  X-expanded AM band, i.e., 1605 1705 kHz. The actions taken in the Memorandum Opinion  X-and Order are consistent with this goal. Specifically, the Memorandum Opinion and Order modifies the frequency preclusion computer program to follow the federal travelers information station interference standards previously specified in this proceeding. It also clarifies the second harmonic interference standard incorporated in the frequency preclusion program. Lastly, the order conforms the revised allotment plan to Region 2 treaty requirements and eliminates software coding errors in the frequency preclusion and allotment plan programs.  X9-   II. Summary of Significant Issues Raised by the Public Comments In Response (#(# X"-to the IRFA: As previously disclosed, no comments have been submitted in this proceeding in response to the IRFA. Out of an abundance of caution we have reconsidered the conclusions previously reached in the FRFA even though this proceeding will directly impact less than one percent of licensed commercial radio stations and less than thirteen percent of the stations eligible to migrate to the expanded band. Nineteen stations have changed frequencies from"# ",-(-(ZZt"" the second to third allotment plans and nine stations listed in the second allotment plan can no longer be accomodated.  X- III. XDescription and Estimate of the Number of Small Entities To Which the  X<Memorandum Opinion and Order Will Apply: (#  X-  The Small Business Administration defines a radio broadcasting station that has $5  Xw-million or less in annual receipts as a small business.w} yO-#Xj\  P6G; XP##X\  P6G;IP#э 13 C.F.R.  121.201, SIC 4832. A radio broadcasting station is an  X`-establishment primarily engaged in broadcasting aural programs by radio to the public.`X} yOi -#Xj\  P6G; XP##X\  P6G;IP#э Economics and Statistics Administration, Bureau of Census, U.S. Department of Commerce.  XI-Included in this industry are commercial, religious, educational, and other radio stations.I} {O -#Xj\  P6G; XP##X\  P6G;IP#э  Id. Radio broadcasting stations which primarily are engaged in radio broadcasting and which  X -produce radio program materials are similarly included. z} {OF-#Xj\  P6G; XP##X\  P6G;IP#э  Id. The 1992 Census indicates that 96 percent (5,861 of 6,127) radio station establishments produced less than $5 million in revenue  X -in 1992.+ } yO-  #Xj\  P6G; XP##X\  P6G;IP#э The Census Bureau counts radio stations located at the same facility as one establishment. Therefore, each colocated AM/FM combination counts as one establishment. + Currently, there are more than 12,000 operating, licensed radio stations. d } {O-  #X\  P6G;IP#э FCC New Release, No. 72140 (released February 5, 1997) (announcing that 4,854 AM, 5,429 FM and 1,868 noncommercial educational FM broadcast stations were licensed as of January 31, 1997). The Commission previously determined that 710 AM licensees and permittees were eligible to migrate to the expanded band, based on timely expressions of interest in these frequencies. This list excludes daytimeonly stations whose calculated interference reduction improvement factor is zero. The third allotment plan, which is being released simultaneously  Xc-with the Memorandum Opinion and Order, lists eightyeight of these stations that are eligible to apply for expanded band authorizations. Nine stations listed on the second allotment plan cannot be accommodated under the new plan. Ten new stations have been added. Many, if not most of the eightyeight potential migrators are small business entities. Because the decision to file a construction permit application and, following grant, to construct an AM broadcast station which operates on an expanded band frequency is wholly voluntary, it is impossible to predict how many stations will be directly impacted by this proceeding. To the extent that eligible stations elect to migrate to the expanded band, an unknown number of the approximately 4,900 operating, licensed AM broadcast stations could experience some reduced level of interference and congestion in the existing band. Most of these existing band stations also would qualify as "small entities."" ,-(-(ZZA"  X- Alternative Classification of Small Stations. An alternative way to classify small radio stations would be based on the number of employees. The Commission currently applies a standard based on the number of employees in administering its Equal Employment  X-Opportunity Rule (EEO) for broadcasting.z} yO4-  #Xj\  P6G; XP##X\  P6G;IP#э The Commission's definition of a small broadcast station for purposes of applying its EEO rules was adopted   <prior to the requirement of approval by the SBA pursuant to Section 3(a) of the Small Business Act, 15 U.S.C.    <632 (a), as amended by Section 222 of the Small Business Credit and Business Opportunity Enhancement Act of   M1992, Pub. L. No. 102366,  222(b)(1), 106 Stat. 999 (1992), as further amended by the Small Business   wAdministration Reauthorization and Amendments Act of 1994, Pub. L. No. 103403,  301, 108 Stat. 4187 (1994).  {O -  However, this definition was adopted after the public notice and the opportunity for comment. See Report and Order in Docket No. 18244, 23 FCC 2d 430 (1970).  Thus, radio (and television) stations with fewer than five fulltime employees are exempted from certain EEO reporting and record keeping  X-requirements. } {OH -  #Xj\  P6G; XP##X\  P6G;IP#э  See, e.g., 47 C.F.R.  73.3612 (Requirement to file annual employment reports on Form 395 applies to  {O-  licensees with five or more fulltime employees); First Report and 0rder in Docket No.21474 (Amendment of  {O-  Broadcast Equal Employment Opportunity Rules and FCC Form 395), 70 FCC 2d 1466 (1979). The Commission   ;is currently considering how to decrease the administrative burdens imposed by the EEO rule on small stations while   xmaintaining the effectiveness of our broadcast EEO enforcement. Order and Notice of Proposed Rule Making in  {O6-  MM Docket No. 9616 (Streamlining Broadcast EEO Rule and Policies, Vacating the EEO Forfeiture Policy  {O-  Statement and Amending Section 1.80 of the Commission's Rules to Include EEO Forfeiture Guidelines), 11 FCC   Rcd 5154 (1996). One option under consideration is whether to define a small station for purposes of affording such relief as one with ten or fewer fulltime employees.  We estimate that the total number of broadcast stations with 4 or fewer  Xv-employees is approximately 4,239v} yO -  #Xj\  P6G; XP##X\  P6G;IP#э Compilation of 1994 Broadcast Station Annual Employment Reports (FCC Form 395B), Equal Opportunity Employment Branch, Mass Media Bureau, FCC.  and that most of these are radio stations.  X_-    XH- IV.Description of Projected Reporting, Recordkeeping and Other Compliance  X1-XX` ` Requirements: (#`  X -Stations listed in the third allotment plan will be afforded 90 days to file feeable applications for construction permits on the allotted channels. These applications will be placed on cutoff lists following their acceptance for filing to permit the filing of petitions to deny. Each station, following grant of its construction permit application, will have eighteen months to complete station construction and file a feeable application for covering license. To satisfy these requirements it is likely that each of these stations will require the use of professional legal and engineering services.  XK- V.XSignificant Alternatives and Steps Taken By Agency to Minimize Significant Economic Impact on a Substantial Number of Small Entities Consistent with  X-Stated Objectives :(# As noted above, the revised expanded band allotment plan would permit less than thirteen percent of eligible AM station licensees and permittees to migrate to the expanded" <,-(-(ZZr" band. Stations electing to apply for and construct expanded band facilities are subject to essentially the same license processing requirements as an any applicant seeking a new  X-broadcast station. The changes adopted in the Memorandum Opinion and Order were necessary given technical considerations and international treaty requirements.  X- VI.  XX   Report to Congress : The Commission shall send a copy of this Final Regulatory Flexibility Analysis, along with this Report and Order, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.  801(a)(1)(A). A copy of this FRFA will also  X -be published in the Federal Register.l ă  X -