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Policies to Promote Rural Radio Service

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Released: May 16, 2012
Federal Communications Commission
Washington, D.C. 20554
May 16, 2012

DA 12-741

Small Entity Compliance Guide

Policies to Promote Rural Radio Service and to Streamline Allotment

and Assignment Procedures
FCC 11-28
MB Docket No. 09-52

This Guide is prepared in accordance with the requirements of Section
212 of the Small Business Regulatory Enforcement Fairness Act of 1996.
It is intended to help small entities—small businesses, small
organizations (non-profits), and small governmental jurisdictions—
comply with the new rules adopted in the above-referenced FCC
rulemaking docket(s). This Guide is not intended to replace the rules
and, therefore, final authority rests solely with the rules. Although we
have attempted to cover all parts of the rules that might be especially
important to small entities, the coverage may not be exhaustive. This
Guide may, perhaps, not apply in a particular situation based upon the
circumstances, and the FCC retains the discretion to adopt approaches
on a case-by-case basis that may differ from this Guide, where
appropriate. Any decisions regarding a particular small entity will be
based on the statute and regulations.

In any civil or administrative action against a small entity for a violation
of rules, the content of the Small Entity Compliance Guide may be
considered as evidence of the reasonableness or appropriateness of
proposed fines, penalties or damages. Interested parties are free to file
comments regarding this Guide and the appropriateness of its
application to a particular situation; the FCC will consider whether the
recommendations or interpretations in the Guide are appropriate in that
situation. The FCC may decide to revise this Guide without public notice
to reflect changes in the FCC’s approach to implementing a rule, or to
clarify or update the text of the Guide. Direct your comments and
recommendations, or calls for further assistance, to the FCC’s
Consumer Center:

1-888-CALL-FCC (1-888-225-5322)

TTY: 1-888-TELL-FCC (1-888-835-5322)

Fax: 1-866-418-0232

fccinfo@fcc.gov

Decision Document and Internet Link

·  Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment
Procedures
, Second Report and Order, First Order on Reconsideration, and Second Further
Notice of Proposed Rule Making, FCC 11-28, 26 FCC Rcd 2556 (2011); 76 Fed. Reg. 14362
(Mar. 16, 2011) (Second Further Notice of Proposed Rule Making); 76 Fed. Reg. 18942 (April 6,
2011) (Second Report and Order, First Order on Reconsideration);
http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0303/FCC-11-28A1.doc (Word);
http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0303/FCC-11-28A1.pdf (Acrobat).

Background

· As part of the Commission’s commitment to diversity of ownership and programming, as well
as the federal government’s obligation to assist Tribes in preserving their cultures and languages,
and to promote tribal self-government, the Commission proposed a Tribal Priority under Section
307(b) of the Communications Act (“Section 307(b)”), which compels the Commission to
distribute radio service in a fair, efficient, and equitable manner. The Tribal Priority was
designed to assist Tribes and tribal entities that propose primarily to serve tribal lands and
populations in obtaining new radio stations. The proposed Tribal Priority addresses the marked
imbalance in the tribal population of the United States and the area of tribal lands, versus the
number and reach of tribal-owned radio stations to serve these populations. On February 3, 2010,
the Commission released a First Report and Order (25 FCC Rcd 1583 (2010)) adopting rules that
establish the Tribal Priority for federally recognized Native American Tribes and Alaska Native
Villages (“Tribes”), tribal consortia, and entities that are majority owned or controlled by Tribes.
In the Second Report and Order and First Order on Reconsideration, the Commission enhanced
the Tribal Priority, making it available to even more Tribes, especially those without tribal lands
or with tribal lands too small or irregularly shaped to qualify under the coverage provisions of the
Tribal Priority as originally adopted.
· In the Notice of Proposed Rule Making in this proceeding (24 FCC Rcd 5239 (2009)), the
Commission also expressed concern that the auction and allotment processes, used to implement
Section 307(b), have resulted in a disproportionate number of awards of new radio service to
large, well-served urbanized areas, and that moreover our channel allotment policies have
resulted in a large number of radio stations moving from rural and smaller communities to
urbanized areas or adjacent to them. In the Second Report and Order, the Commission
established a rebuttable presumption that an FM allotment or AM new station proponent seeking
to locate at a community in an urbanized area, or that would cover or could be modified to cover
more than 50 percent of an urbanized area, was in fact proposing a service to the entire urbanized
area, and accordingly would not award such an applicant a preference for providing first local
transmission service absent a compelling showing (1) that the proposed community is truly
independent of the urbanized area, (2) of the community’s specific need for an outlet for local
expression separate from the urbanized area, and (3) of the proposed station’s ability to provide
that outlet. The Commission made other changes to assignment and allotment policies, including
policies favoring new or relocated service to underserved areas (those receiving five or fewer
radio services), and requiring more specificity regarding the claimed public interest benefits of
changes to a station’s community of license.

Key Objectives of Proceeding

· Authorize and implement the Tribal Priority.

· Amend, codify, and clarify certain assignment, allotment, and auction policies and procedures,
in particular, limiting the award of dispositive preferences to applicants for new AM broadcast
stations, and requiring more detailed showings by applicants proposing new or relocated
broadcast service in and near urbanized areas, in order to maintain existing service, and provide
for new service, to rural and smaller communities.

Entities Directly Affected by the Rule

· Federally recognized Native American Tribes and Alaska Native Villages and their citizens
· Applicants for AM, FM, Noncommercial Educational (“NCE”) FM radio stations
· AM, FM, NCE FM radio broadcasters
· Proponents of new allotments in the non-reserved FM broadcast band

Key Compliance Requirements

·

Tribal Priority.

To qualify for the Tribal Priority, as modified by the Commission in the
Second Report and Order and First Order on Reconsideration, an applicant must demonstrate
that it meets all of the following eligibility criteria:
(1)
the applicant is either a federally recognized Tribe or tribal consortium, or an
entity 51 percent or more of which is owned or controlled by a Tribe or Tribes.
Qualifying Tribes or tribal entities must be those at least a portion of whose tribal
lands lie within the principal community contour of the proposed facility.
Although the 51 or greater percent Tribal control threshold need not consist of a
single Tribe, the qualifying entity must be 51 percent or more owned or
controlled by Tribes at least a portion of whose tribal lands lie within the
facility’s principal community contour;
(2)
(a) at least 50 percent of the area within the proposed station’s daytime principal
community contour is over that Tribe’s Tribal Lands, or (b) the proposed
principal community contour (i) encompasses 50 percent or more of that Tribe’s
Tribal Lands, (ii) serves at least 2,000 people living on Tribal Lands, and (iii) the
total population on Tribal Lands residing within the station’s service contour
constitutes at least 50 percent of the total covered population. In neither (a) nor
(b) may the applicant claim the priority if the proposed principal community
contour would cover more than 50 percent of the Tribal Lands of a non-applicant
Tribe.
(To the extent that a Tribe lacks Tribal Lands, the Commission will be receptive
to requests for waiver of the above-listed tribal land coverage provisions that
demonstrate a geographic area identified with the Tribe. Likewise, the
Commission will entertain requests for waiver of the other requirements where
appropriate);
(3)
the proposed community of license must be located on tribal lands; and
(4)
the tribal applicant must propose first or second aural (reception) service, or first
local tribal-owned transmission service at the proposed community of license, in
the case of a proposed commercial facility. The tribal applicant must propose at
least a first local tribal-owned noncommercial educational transmission service,
in the case of a proposed NCE facility.
· In the event that two or more applicants claiming the Tribal Priority are mutually exclusive, the
one providing the highest level of service to the greatest population will prevail. The Tribal

Priority ranks between the current Priority (1) and co-equal Priorities (2) and (3) in the case of
commercial applicants. Thus, the Tribal Priority will not take precedence over a proposal to
provide first reception service to a greater than de minimis population, but will take precedence
over the provision of second local reception service, or over a proposal for first local non-tribal
owned transmission service. Likewise, an NCE applicant qualifying for the Tribal Priority will
take precedence over all mutually exclusive applications, except an applicant proposing bona fide
first aural reception service to a greater than de minimis population.
● The Tribal Priority will be applied at the allotment stage of the commercial FM licensing
procedures; to commercial AM applications filed during an AM filing window, as part of the
threshold Section 307(b) analysis; and to applications filed in an NCE FM filing window as the
first part of the fair distribution analysis. NCE applicants must also meet all NCE eligibility and
licensing requirements.
· Holding period restrictions, commencing with the award of a construction permit until the
completion of four years of on-air operation, will apply to any authorization or allotment awarded
pursuant to the Tribal Priority. In the case of an AM or NCE FM authorization awarded to a
tribal applicant, the permittee/licensee will be prohibited during this period from making: (1) any
change that would lower tribal ownership below the 51 percent threshold; (2) a change of
community of license; or (3) a technical change that would cause less than 50 percent of the
principal community contour to cover tribal lands. However, gradual changes in the composition
of an NCE board that do not change the nature of the organization or break continuity of control
will not violate the four-year holding period restrictions. Also, we will allow assignments or
transfers within the four-year holding period, provided that the assignee/transferee also qualifies
for the Tribal Priority in all respects. In the case of a commercial FM allotment, the restrictions
will apply only to any proposed change of community of license or technical change as described
above. The winner at auction of an FM allotment added to the Table of Allotments under a Tribal
Priority, whether the winning bidder is Tribal or non-Tribal, must still provide broadcast service
primarily to tribal lands for the entire four-year holding period.
·

Rural Radio – Section 307(b).

The analysis of applications and proposals under Section
307(b) was modified by the Commission in the Second Report and Order, with particular
attention paid to applications to establish new service in or near urbanized areas, when mutually
exclusive with applications for new service to rural or smaller communities, as well as
applications to move existing stations from rural and smaller communities to urbanized areas.
The Commission outlined new procedures in three related but distinct situations: applications for
new AM stations, proposals for new commercial FM allotments, and applications to change the
community of license of an existing station.
· Applications for new AM stations. Priority (3) (first local transmission service). With
regard to proposals for first local transmission service under Priority (3), any new AM
station proposal for a community located within an urbanized area, that would place a
daytime principal community signal over 50 percent or more of an urbanized area, or that
could be modified to provide such coverage, will be presumed to be a proposal to serve
the entire urbanized area rather than the proposed community (the “urbanized area
service presumption”). This is a slightly modified version of the same standard
previously used in determining whether an applicant for a new AM station must provide a
showing under Faye and Richard Tuck (3 FCC Rcd 5374, 5376 (1988)). The
determination of whether a proposed facility “could be modified” to cover 50 percent or
more of an urbanized area will be limited to a consideration of rule-compliant minor
modifications to the proposal, without changing the proposed antenna configuration or

site, and also limited to spectrum availability as of the close of the filing window. An
applicant can rebut the urbanized area service presumption by making a compelling
showing (1) that the proposed community is truly independent of the urbanized area, (2)
of the community’s specific need for an outlet for local expression separate from the
urbanized area and (3) the ability of the proposed station to provide that outlet. The
required compelling showing may be based on the existing three-pronged Tuck test.
However, the eight-part test of independence, which is the third prong of the Tuck test,
will be more rigorously scrutinized than has sometimes been the case in the past. For
example, an applicant should submit actual evidence of the number of local residents who
work in the community, not merely extrapolations from commute times or observations
that there are businesses where local residents could work if they so chose. Similarly, the
record should include actual evidence that the community’s residents perceive themselves
as separate and distinct from the urbanized area, rather than merely self-serving
statements to that effect from town officials or business leaders. Moreover, certain of the
Tuck independence factors have become increasingly anachronistic, and accordingly will
not be given as much weight. For example, as local telephone companies have started to
discontinue routine distribution of telephone directories, factor five is less meaningful
than it once was. Similarly, with the closing of even major city newspapers, the lack of a
local newspaper should not necessarily be fatal to a finding of independence, though it is
still a relevant factor. The mere existence of a city- or town-posted site on the World
Wide Web, however, is not a substitute for evidence of independent media also covering
a community, as a means of demonstrating a community’s independence from an
urbanized area. In addition to demonstrating independence, a compelling showing
sufficient to rebut the urbanized area service presumption must also include evidence of
the community’s need for an outlet for local expression. For example, an applicant may
rely on factors such as the community’s rate of growth; the existence of substantial local
government necessitating coverage; and/or physical, geographical, or cultural barriers
separating the community from the remainder of the urbanized area. An applicant will be
afforded wide latitude in attempting to overcome the presumption, but a compelling
showing will be required. Pursuant to Sections 73.3571(k)(2) and 73.3571(k)(3) of the
Commission’s Rules (47 C.F.R. § 73.3571(k)(2)-(3)), an AM applicant, licensee, or
permittee that receives a dispositive preference under Priority (3) will be prohibited from
changing its community of license for a period of four years of on-air operations.
● Priority (4) (other public interest matters). With regard to proposals to be compared
under Priority (4), other public interest matters, a new AM applicant proposing third,
fourth, and/or fifth reception service to at least 25 percent of the population in the
proposed primary service area, as defined in Section 73.182(d) of the Commission’s
Rules (47 C.F.R. § 182(d)),1 where the proposed community of license has two or fewer
local transmission services, may receive a dispositive Section 307(b) preference under
Priority (4). For purposes of this analysis, “community of license” will be considered to
be the entire urbanized area if the proposed community of license is subject to the
urbanized area service presumption set forth above. Alternatively, the Commission will
allow, but not require, new AM applicants not meeting the above-stated 25 percent / two
transmission service standard to submit a Service Value Index (“SVI”) showing, as set


1 Pursuant to this rule section, the signal strength required for primary groundwave service is 0.5 mV/m for
communities under 2,500 population, and 2.0 mV/m for communities of 2,500 or more. Consequently,
communities with populations of 2,500 or more, situated between the 2.0 mV/m and 0.5 mV/m
groundwave contours, are not considered to receive service from the AM station or proposal in question.

forth in the case of Greenup, Kentucky and Athens, Ohio, Memorandum Opinion and
Order, 6 FCC Rcd 1493, 1495 (1991) (“Greenup”), in order to receive a dispositive
preference under Priority (4). An applicant opting to present a Greenup analysis must
demonstrate a 30 percent differential in SVI between its proposal and the next-highest
ranking proposal before we will award a dispositive Section 307(b) preference under
Priority (4). Except for the two types of showings outlined herein, dispositive Section
307(b) preferences will not be granted under Priority (4). An applicant receiving a
dispositive Section 307(b) preference under Priority (4) will, of course, be subject to the
prohibition on reducing service set forth in Section 73.3571(k)(i) of the Commission’s
Rules (47 C.F.R. § 73.3571(k)(i)). These procedures will apply to applications filed in
future new and major modification AM filing windows, but will not apply to pending
applications filed in the 2004 filing window for AM Auction 84.
· Proposals for FM allotments. Priority (3) (first local transmission service). When
submitting a proposal for a new allotment in the FM Table of Allotments (47 C.F.R. §
73.202), the same urbanized area service presumption as set forth under “Applications for
new AM stations,” above, will apply. The determination of whether a proposed facility
“could be modified” to cover 50 percent or more of an urbanized area will be made based
on an applicant’s certification that there are no existing towers in the area to which, at the
time of filing, the applicant’s antenna could be relocated pursuant to a minor modification
application to serve 50 percent or more of an Urbanized Area. Specifically, a proponent
will need to certify that there could be no rule-compliant minor modification on the
proposed channel to provide a principal community signal over 50 percent or more of an
Urbanized Area, in addition to covering the proposed community of license. In doing so,
proponents must consider all existing registered towers in the Commission’s Antenna
Structure Registration database, in addition to any unregistered towers currently used by
licensed radio stations. Furthermore, applicants and allotment proponents must consider
widely-used techniques, such as directional antennas and contour protection, when
certifying that the proposal could not be modified to provide a principal community
signal over the community of license and 50 percent or more of an Urbanized Area. The
Commission will treat such a showing as establishing a rebuttable presumption of an
allotment that could not be modified to serve both the majority of an Urbanized Area and
the community of license.
● Priority (4) (other public interest matters). If a proposal does not qualify for a first
local transmission service preference, the staff will accord greater weight to proposals to
provide third, fourth, and/or fifth reception service to more than a de minimis population
than is currently the case, and will accord greater weight to such proposals than to simple
differences in raw population totals. Raw population total differentials will be considered
only after other Priority (4) factors that a proponent might present, including the number
of reception services available to the proposed communities and reception areas,
population trends in the proposed communities of license/reception areas, and/or number
of transmission services at the respective communities. Because it is impossible to
anticipate every possible competing allotment proposal, any factor, including reception
population, may be considered when determining dispositive Section 307(b) preferences
in the FM allotment context. However, of all considerations in making new FM
allotments, raw reception population totals – of whatever magnitude – will receive less
weight than other legitimate service-based considerations. These procedures shall not
apply to any non-final FM allotment proceeding as of March 3, 2011, including “hybrid”
coordinated application/allotment proceedings, in which the Commission has modified a
radio station license or granted a construction permit. Except for these proceedings, the

revised procedures will apply to all pending petitions to amend the FM Table of
Allotments, and to all other open FM allotment proceedings and non-final FM allotment
orders.
· Proposals to change community of license. Priority (3) (first local transmission
service). The Commission will apply the urbanized area service presumption outlined
above. The presumption may be rebutted in the same manner as set forth under
“Applications for new AM stations,” above, and will be subject to the same
determinations, described in “Applications for new AM stations” and “Proposals for FM
allotments,” above, as to whether the proposed facility could be modified to cover over
50 percent of an urbanized area.
● Priority (4) (other public interest matters). The Commission will impose an absolute
bar to any facility modification that would create white or gray area (that is, would leave
a population with no reception services or only one reception service). The Commission
will also strongly disfavor any change of community of license that would result in the
net loss of third, fourth, or fifth reception service to more than 15 percent of the
population in the station’s current protected contour. Additionally, the Commission will
strongly disfavor any proposed removal of a second local transmission service from a
community with a population of 7,500 or greater, when determining whether a proposed
community of license change represents a preferential arrangement of allotments or
assignments. Applicants must not only set forth the size of the populations gaining and
losing service under their proposals, but must also state the numbers of services those
populations will receive if the application is granted, and explain how the proposal
advances the revised Section 307(b) priorities. For example, an applicant will not only be
required to detail that it is providing 500,000 listeners with a 21st reception service, and
removing the sixth reception service from 50,000 listeners, but also to provide a rationale
to explain how this service change represents a preferential arrangement of allotments or
assignments.2 Finally, under Priority (4) applicants may offer any other information they
believe to be pertinent to a public interest showing, including the need for further
transmission service at the new community, a drop in population justifying the removal
of transmission service at the old community, population growth in areas surrounding the
proposed new community that can best be met by a centrally located service, or any other
changes in circumstance believed relevant to our consideration. These procedures shall
apply to any applications to change community of license that are pending as of March 3,
2011.

Other Policies and Procedures.

Applications by FM translator stations to move into the
reserved band from the non-reserved band, or to move into the non-reserved band from the
reserved band, may only be filed by FM translator stations that have filed license applications or
are licensed, and that have been operating for at least two years. This prohibition was proposed


2 Such explanation need not be a granular accounting of the reception service provided each individual or
population pocket in the proposed contour. A detailed summary should suffice, for example, to point out
that 50,000 people would receive 20 or more services, 10,000 would receive between 15 and 20 services,
7,000 would receive between 10 and 15 services, etc. The showing should, however, state what service the
modified facility would represent to the majority of the population gaining new service, e.g., the 16th
service to 58 percent of the population, and the corresponding service that the majority of the population
losing service would lose, e.g., 60 percent of the current coverage population would lose the ninth reception
service. An applicant should detail new service or service losses to underserved listeners.

in order to prevent certain translator licensees from, for example, filing minor modification
applications to move from the non-reserved band to the reserved band, thus taking advantage of
the relaxed signal-delivery rules for reserved band translators. The Commission concluded that
the filing of such “band-hopping” applications by FM translator stations prior to construction of
their facilities wastes staff resources, and potentially precludes the use of those frequencies in
future reserved band filing windows for FM translators. This prohibition is now codified at
Section 74.1233 of the Commission’s Rules (47 C.F.R. 74.1233).
● The Commission codified the decision in Nelson Enterprises, Inc., Memorandum Opinion and
Order, 18 FCC Rcd 3414 (2003) (“Nelson”), by explicitly providing that the AM nighttime
interference standards set forth in Section 73.182(k) of the Commission’s Rules (47 C.F.R. §
73.182(k)) are applicable in determining nighttime mutual exclusivity between applications to
provide AM service that are filed in the same window. Section 73.182(k) states that, with respect
to the root-sum-square (“RSS”) values of interfering field strengths referred to in that rule
section, calculation of nighttime interference-free service is accomplished by considering the
signals on the three channels of concern (co-channel and first adjacent channels on either side of
the channel of the station being considered) in order of decreasing magnitude, adding the squares
of the values and extracting the square root of the sum, excluding those signals which are less
than 50 percent of the RSS values of the higher signals already included. The staff will consider
two applications to be mutually exclusive if either would be subject to dismissal because it would
enter the 25 percent exclusion RSS nighttime limit of the other. The Commission determined that
application of these interference standards to new AM proposals will promote the strict
interference standard that the Commission determined necessary to revitalize the AM service.
This standard is codified as a Note to Section 73.3571 of the Rules (47 C.F.R. § 73.3571).

Licensing:

● Electronic Filing Required: FCC Forms 301, 314, 315, 316, and 340 must still be filed
electronically using the Commission’s Consolidated Database System (“CDBS”) Electronic
Filing System via the Internet from the Media Bureau’s Web site at:
http://www.fcc.gov/mb/cdbs.html or
http://fjallfoss.fcc.gov/prod/cdbs/forms/prod/cdbs_ef.htm.
● FCC Form 175 must be filed electronically using the Commission’s Integrated Spectrum
Auction System (“ISAS”). Filing instructions are provided in pre-auction Public Notices.
● Tribes, tribal consortia, and tribal-owned or controlled entities wishing to apply for
noncommercial educational FM broadcast stations in the reserved band, and that wish to employ
the Tribal Priority, must use FCC Form 340, which has been modified to include questions
regarding eligibility to claim the Tribal Priority.
● Tribes, tribal consortia, and tribal-owned or controlled entities wishing to apply for commercial
AM broadcast stations will continue to use FCC Form 175 for their applications. They will claim
eligibility for the Tribal Priority when instructed to submit Section 307(b) information, if
applicable.
● Tribes, tribal consortia, and tribal-owned or controlled entities wishing to petition to add FM
allotments to the Table of Allotments (Section 73.202(b) of the Rules) will continue to do so by
submitting Petitions for Rule Making seeking to add an FM allotment. They will claim eligibility
for the Tribal Priority in the Petition for Rule Making.

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