[Federal Register Volume 60, Number 147 (Tuesday, August 1, 1995)]
[Proposed Rules]
[Pages 39134-39136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18802]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR PART 1
[MM Docket No. 95-110; FCC 95-277]
Broadcast Services; Allocations; Automatic Stay
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rule making.
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SUMMARY: This Notice of Proposed Rule Making proposes to delete the
automatic stay provision in Section 1.420(f) of the Commission's rules.
That rule applies to proposals to amend the FM and TV Tables of
Allotments and provides for
[[Page 39135]]
an automatic stay upon the filing of a petition for reconsideration of
any Commission order modifying an authorization to specify operation on
a different channel. The purpose of the proposed amendment is to remove
any incentive to challenge an agency order simply to delay institution
of expanded service by a competitor, and to expedite provision of
improved service to the public.
DATES: Comments are due by August 28, 1995, and reply comments are due
by September 12, 1995.
ADDRESSES: Federal Communications Commission, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Kim Matthews (202-739-0774), Mass
Media Bureau.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making (NPRM) in MM Docket No. 95-110, adopted
July 10, 1995, and released July 21, 1995. The complete text of this
NPRM is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC, and also may be purchased from the Commission's copy
contractor, International Transcription Service, (202) 857-3800, 2100 M
Street, NW., Suite 140, Washington, DC 20037.
Synopsis of Notice of Proposed Rule Making
1. With this Notice of Proposed Rule Making (NPRM), the Commission
proposes to delete that portion of Section 1.420(f) of its rules, 47
CFR 1.420(f), which provides for an automatic stay, upon the filing of
a petition for reconsideration, of any Commission order modifying an
authorization to specify operation on a different channel. The purpose
of the proposed amendment is to remove an apparent incentive for the
filing of petitions for reconsideration that are largely without merit
and to expedite provision of expanded service to the public.
2. Section 1.420(f) provides, in pertinent part:
* * * The filing of a petition for reconsideration of an order
modifying an authorization to specify operation on a different
channel shall stay the effect of a change in the rules pending
action of the petition.
3. Although Section 1.420(f) refers only to petitions for
reconsideration, the Commission staff has also applied the automatic
stay to orders challenged by applications for review.\1\ Our proposal
to delete the automatic stay provision for petitions for
reconsideration would also eliminate automatic stays in the context of
applications for review.
\1\See Arlington TX, 6 FCC Rcd 2050, 2051 n. 2 (1991).
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4. The automatic stay was adopted by the Commission in 1975 as part
of a provision that requires service of petitions for reconsideration
in proceedings for amendment of the FM and TV Tables of Allotments on
any licensee or permittee whose authorized frequency could be changed.
Thus, it is apparent that the automatic stay was intended to help
ensure that affected parties have the opportunity to comment before
proposed modifications to their authorizations become effective.
5. Our intent in proposing to delete the automatic stay provision
is to discourage parties from filing meritless petitions for
reconsideration or applications for review that can substantially delay
implementation of improved broadcast service. It is our experience that
parties increasingly are filing challenges to approvals of their
competitor's proposals to improve service, thereby triggering the
automatic stay. Only a very small percentage of these petitions or
applications for review are ultimately successful. Because the stay
prohibits licensees from constructing modified facilities authorized by
the Commission until final resolution of any outstanding
reconsideration or application for review,\2\ or until the stay is
lifted, the stay provides an incentive for parties to challenge agency
approval of a competitor's modification proposal simply to forestall
institution of new competitive service. These petitions cause
unjustifiable expense for parties and absorb valuable staff resources.
\2\See, e.g., Arlington, TX, supra n. 1.
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6. Elimination of the automatic stay would facilitate
implementation of improved service to licensee communities, thereby
promoting more efficient use of broadcast spectrum and resulting in
significant public interest benefits. Because Section 1.420(f) will
continue to require that petitions for reconsideration be served on any
licensee or permittee whose authorization could be modified, the rights
of these interested parties to be affirmatively informed of actions
potentially affecting their interests will continue to be protected.
7. Elimination of the automatic stay, while allowing licensees to
commence construction and operation of their modified facilities, would
not prejudice final resolution of any challenges to the initial staff
decision. Licensees who proceed, where feasible, to construct and
operate new facilities in instances in which a petition for
reconsideration or application for review is pending bear the risk of
an adverse final decision, and must take whatever steps are necessary
to comply with the final order. Moreover, the Commission retains the
authority to impose a stay in individual cases where circumstances
warrant.\3\
\3\See 47 CFR 1.102(b), 1.106(n), and 1.115(h).
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8. We propose both to eliminate the automatic stay in prospective
cases, and to lift the stay with respect to any petitions for
reconsideration or applications for review pending as of the effective
date of the Report and Order in this proceeding. We believe that
lifting the stay in pending cases will further our objective of
expediting provision of improved service to the public. We invite
comment on this second aspect of our proposal in particular, as well as
on our general proposal to eliminate the automatic stay.
Administrative Matters
9. Pursuant to applicable procedures set forth in Sections 1.415
and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested
parties may file comments on or before August 28, 1995 and reply
comments on or before September 12, 1995. To file formally in this
proceeding, you must file an original and four copies of all comments,
reply comments, and supporting comments. If you want each Commissioner
to receive a personal copy of your comments, you must file an original
plus nine copies. You should send comments and reply comments to Office
of the Secretary, Federal Communications Commission, Washington, DC
20554. Comments and reply comments will be available for public
inspection during regular business hours in the FCC Reference Center
(Room 239), 1919 M Street, NW., Washington, DC 20554.
10. This is a non-restricted notice and comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed as provided in the
Commission's rules. See 47 CFR 1.1202, 1.1203, and 1.1206(a).
Initial Regulatory Flexibility Analysis
11. Reason for Action: This proceeding was initiated to improve
Commission procedures governing proposals to amend the FM and TV Tables
of Allotments.
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12. Objectives of the Action: The actions proposed in the Notice
are intended to reduce the workload in the Allocations Branch of the
Policy and Rules Division of the FCC's Mass Media Bureau by eliminating
an apparent incentive to challenge agency approval of another station's
modification proposal.
13. Legal Basis: The proposed action is authorized under sections 4
and 303 of the Communications Act of 1934, as amended. 47 U.S.C.
Secs. 154, 303.
14. Reporting, Record-keeping and Other Compliance Requirements:
None.
15. Federal Rules which Overlap, Duplicate or Conflict with the
Proposed rule: None.
16. Description, Potential Impact and Number of Small Entities
Involved: Approximately 11,000 existing television and radio
broadcasters of all sizes may be affected by the proposals contained in
this Notice.
17. Any Significant Alternatives Minimizing the Impact on Small
Entities and Consistent with the Stated Objectives: The proposals
contained in this Notice do not impose additional burdens on small
entities.
18. As required by Section 603 of the Regulatory Flexibility Act,
the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small entities of the proposals
suggested in this document. The IRFA is set forth above. Written public
comments are requested on the IRFA. These comments must be filed in
accordance with the same filing deadlines as comments on the rest of
the Notice, but they must have a separate and distinct heading
designating them as responses to the Initial Regulatory Flexibility
Analysis. The Secretary shall send a copy of the Notice of Proposed
Rule Making, including the Initial Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy of the Small Business Administration in
accordance with paragraph 603(a) of the Regulatory Flexibility Act.
Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. Section 601 et seq (1981).
List of Subjects in 47 CFR Part 1
Administrative practice and procedure.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 95-18802 Filed 7-31-95; 8:45 am]
BILLING CODE 6712-01-M