Federal Communications Commission FCC 96-301
Before the
Federal Communications Commission 
Washington, D.C. 20554
In the Matter of )
)Amendment of Section 1.420(f) ) MM Docket No. 95-110 
of the Commission's Rules ) 
Concerning Automatic Stays of ) 
Certain Allotment Orders )
REPORT AND ORDER
Adopted: July 5, 1996 Released: August 8, 1996 
By the Ootniission:
I. INTRODUCTION
1. By this Report and Order, we delete that portion of Section 1.420(f) of the Commission's 
rules, 47 C.F.R. § 1.420(f), which, for rulemaking proceedings to amend the FM or TV Table 
of Allotments, 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 FM or 
TV channel. By this action, we remove an incentive for the filing of petitions for reconsideration 
that are largely without merit, thereby expediting the provision of expanded service to the public 
and conserving Commission resources now expended processing these meritless petitions. 
Further, we shall apply this procedural change to pending proceedings, thereby lifting automatic 
stays currently in effect pursuant to the existing rule.1
II. BACKGROUND
The Existing Rule
2. The automatic stay rule currently 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 on the petition.2
1 Pursuant to Section 1.3 of the Commission's Rules, 47 C.F.R. § 1.3, we initiated this proceeding on our own 
motion to improve Commission procedures governing proposals to amend the FM Table of Allotments and the 
Television Table of Allotments. Notice of Proposed Rulemaking in MM Docket No. 95-110, 10 FCC Red 7753 
(1995).
: 47 C.F.R. § 1.420(f).
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Federal Communications Commission FCC 96-301
3. The rule applies to amendments to the TV or FM Tables of Allotments where the 
Commission has modified the authorization of the petitioner, another licensee, or another 
permittee to specify operation on a different channel. Where a licensee or permittee other than 
the petitioner might be directed to operate on a different channel in order to accommodate a 
proposed allotment change, that licensee or permittee is notified of the pending proceeding and 
is ordered to show cause, if any, why the modification should not be approved.3 Also, although 
Section 1.420(f) refers only to petitions for reconsideration, the rule has also been applied 
routinely to orders challenged by applications for review.4 In repealing the automatic stay 
provision for petitions for reconsideration, we also abandon this parallel policy.5
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. 
In addition to the automatic stay provision cited above, Section 1.420(f) provides:
Petitions for reconsideration and responsive pleadings shall be served on parties to the 
proceeding and on any licensee or permittee whose authorization may be modified to 
specify operation on a different channel, and shall be accompanied by a certificate of 
service...6
Thus, the automatic stay was intended to help ensure that affected parties have the opportunity 
to comment before proposed modifications to their authorizations become effective.7
5. However, as discussed in the Notice, broadcasters whose authorizations are not 
proposed to be modified frequently file challenges to approvals of their competitors' proposals 
to improve service, thereby triggering the automatic stay. Only a very small percentage of these 
challenges are ultimately successful. The automatic stay prohibits licensees from constructing 
modified facilities authorized by the Commission until final resolution of any outstanding petition 
for reconsideration or until the stay is otherwise lifted. Our proposal to repeal the rule is 
intended to remove the incentive it creates for parties to challenge agency approval of a 
competitor's modification proposal simply to forestall institution of new competitive service. The 
Notice asserted that these petitions cause unjustifiable expense for parties and absorb valuable
3 See 47 U.S.C. § 316(a); 47 C.F.R. § 1.87. For convenience, we shall use the term "licensee" to include both 
licensees and permittees.
4 See Arlington. TX. 6 FCC Red 2050, 2051 n. 2 (1991).
3 For convenience, we shall use the term "petitions for reconsideration" to include applications for review.
6 47 C.F.R. § 1.420(f).
See Memorandum Opinion and Order. 57 FCC 2d 699, 700 (1975).
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Federal Communications Commission FCC 96-301
staff resources that might otherwise be directed to resolution of new proposals to improve 
broadcast service.
Amending the Rule
6. Comments. Most of the commenters in this proceeding, including the Federal 
Communications Bar Association (FCBA), agree with the Notice's preliminary observations and 
analysis, supporting our proposal to eliminate the automatic stay rule.8 Citing their own 
experiences, several licensees contend that the rule has harmed them and obstructed the public 
interest.9 They assert that, as a general matter, the public is disserved by delaying the benefits. 
of improved service. Further, they state, a licensee's reason for seeking a channel reallotment 
is often to allow it to remain financially viable. However, because of the delay caused by the 
automatic stay rule, the facilities in question may go dark or never be constructed at all, despite 
the Commission's having already approved the needed modification.10
7. In contrast, two other parties claim that they and the public interest are protected by 
the existing rule. 11 They argue that, once a licensee has appealed an involuntary reallotment, it 
should remain protected from having to cause disruption to itself and to the community by 
changing its operating channel until there is greater certainty, as determined by the appeal, that 
to do so would serve the public interest. These commenters state that the automatic stay rule 
serves the public interest in providing such protection.12 Similarly, they add, the petitioners that 
are seeking the changes can themselves benefit from the automatic stay provision, because the 
rule spares them the expense of effecting a change that the Commission subsequently disallows
8 Seven parties, five of whom support the proposal, submitted comments or reply comments in this proceeding.
9 See Comments of Carlos J. Colon Ventura (Colon); KRTS, Inc. (KRTS); Randolph Weigner (Weigner); and 
Westview Communications (Westview). Our discussion of these individual situations is limited to the effect of the 
automatic stay, regardless of the outcome of the appeal. This Report and Order should in no way be interpreted to 
address the merits of any of these cases.
10 See, e.g.. Colon Comments at 3, 5.
" Comments of Sampit Broadcasters (Sampit) and Roy E. Henderson (Henderson). For example, Henderson, 
the permittee of station KHEN(FM), Caldwell, Texas, states that he has been directed to change to another channel 
in order to accommodate another broadcaster's reallotment. He adds that he is seeking reconsideration of that action, 
and that the automatic stay is currently protecting his and the public's interests during the appeal. Henderson 
Comments at 5. Henderson's petition for reconsideration was subsequently denied. Caldwell. TX, et. al. 10 FCC 
Red 7285 (Alloc. Branch 1995), recon. denied. DA 96-654 (released May 9, 1996).
12 Sampit cites specific cases in which the automatic stay provision has protected a party from having to make 
what would have been an unnecessary change to its facilities: Sampit Comments at 2-3, citing Elkins, West Virginia, 
et. al. 6 FCC Red 5830 (Alloc. Branch 1991), recon. granted, 7 FCC Red 5527 (Policy and Rules Div. 1992), rev, 
denied, 10 FCC Red 10433 (1995); Ashland. MO, et. al, 8 FCC Red 1799 (Alloc. 1993), recon. granted. 9 FCC Red 
2306 (Policy and Rules Div. 1994).
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______________Federal Communications Commission_______FCC 96-301
on appeal.13 Even if most third-party appeals are meritless, the commenters assert, the benefits 
of preventing disruptive and involuntary changes that will have to be undone upon the resolution 
of even that small percentage of appeals that are merited outweigh the expense or inconvenience 
caused by the rule. 14 Finally, Henderson argues that if the Commission is concerned about the 
time being taken to process petitions for reconsideration, then the remedy is to devote more 
resources to processing. The commenter claims that it should not take long to dispose of 
meritless appeals, adding that the party seeking to uphold the Commission's action can always 
request expedited review.15
8. Commenters that favor repealing the rule respond that its primary purpose would still 
be promoted even if it were eliminated: affected parties would still have the opportunity to 
comment before a directed change in their facilities becomes effective. For example, the FCBA 
notes that the Commission's rules would still require it to inform affected stations of actions 
having an impact on their interests. Further, the commenter contends, the substantive merits of 
an appeal would not be affected by the absence of an automatic stay. Instead, the appellate 
process would more closely resemble that used by the Commission in broadcast contexts such 
as station sales, where the parties may consummate their transaction before finality at their own 
risk. 16 Moreover, to address the additional expenses incurred by an accommodating station when 
reconsideration is granted, commenters suggest that the station that had implemented the change 
could be required to reimburse the licensee for the costs of reverting to the original 
authorization. 17 Finally, commenters note that even without the automatic stay rule, the 
Commission has the authority to stay an action, either upon its own motion or upon the request 
of a party. 18 Therefore, they state, if it appears that a petition for reconsideration may have merit, 
the Commission can issue a stay, determining that the public interest would be served by 
maintaining the status quo, rather than by risking an unnecessary and disruptive change in 
facilities.19
9. Discussion. The record before us confirms the Notice's observation that the automatic 
stay rule has regularly resulted in delay in the commencement of construction and the provision 
of expanded service to the public. Not even those commenters who oppose a change in the rule
13 Sampit Comments at 3-4, citing Lancaster. Wisconsin, et. al. 6 FCC Red 6113 (Alloc. Branch 1991), recon. 
granted. 9 FCC Red 1937 (Policy and Rules Div. 1994).
14 Henderson Comments at 1-3; Sampit Comments at 2-4.
15 Henderson Comments at 4.
16 FCBA Comments at 3, 5-6; KRTS Comments at 5-6.
17 FCBA Comments at 4-5; KRTS Reply Comments at 3.
'" 47 C.F.R. §§ 1.102(b) and 1.106(n).
19 FCBA Comments at 5; Colon Reply Comments at 2-3; KRTS Reply Comments at 3.
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Federal Communications Commission FCC 96-301
dispute the assertion that the vast majority of petitions for reconsideration are ultimately denied. 
We believe that the many apparently meritless petitions for reconsideration the rule appears to 
have encouraged have imposed a substantial and unwarranted cost on local communities, 
individual broadcasters, and the Commission itself. First, significant populations are denied the 
advantages of improved service for long periods of time. Second, the inability to effect the 
authorized change can cause stations to go dark or not be constructed at all, harming both 
broadcasters and the public. Third, as both video and audio technologies evolve, television and 
radio broadcasters must be able to adapt as quickly as possible to changes in their competitive 
environments. The delays inherent hi an automatic stay procedure necessarily constrain 
broadcasters' flexibility hi this regard. Finally, by facilitating meritless petitions for 
reconsideration, the rule needlessly diverts resources that otherwise would be available to the 
Commission for the performance of other necessary functions. In short, we see numerous benefits 
to eliminating the automatic stay provision. We recognize, as Henderson has suggested, that 
more expeditious processing would reduce the delay involved in automatic stay cases, but 
unavoidable delays grounded in necessary pleading cycles and the tune required to prepare and 
consider decisions disposing of the case, would remain.20 Such postponements in implementing 
unproved service to the public are simply unwarranted where they are prompted by meritless or 
frivolous petitions.
10. In assessing the advisability of deleting the stay provisions, we must, of course, 
consider any detriments which might result from such action. We conclude that any costs 
imposed by eliminating the stay provision are modest or can be significantly moderated by other, 
less restrictive processing approaches. Specifically, we note that permittees and licensees affected 
by allotment changes who would no longer be entitled to the protection of an automatic stay 
would nonetheless continue to have substantial procedural protections under the Commission's 
Rules. 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 
parties to be affirmatively informed of actions potentially affecting their interests will continue 
to be protected. And, any licensees or permittees whose authorizations would actually be 
modified to accommodate an underlying allotment change would continue to be afforded the full 
procedural benefits of a show cause proceeding in which they might object to the required 
frequency change. Further, in order to minimize the risk of imposing significant costs on 
licensees or permittees required to change channels as a result of an allotment change, we will 
make every effort to reach and promptly decide any petition for reconsideration filed against the 
underlying allotment action by such a party. Where it is not possible to do so, we retain the 
authority, as the commenters have noted, to impose a stay in individual cases and we will be 
particularly cognizant of requests for stay filed by any party whose authorization would be
20 We note in this regard that, over the past year, the staff has significantly diminished the time it takes to 
process petitions for reconsideration. Moreover, the staff specifically undertakes to identify and quickly dispose of 
frivolous petitions.
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Federal Communications Commission FCC 96-301
changed involuntarily.21 Finally, we note that elimination of the automatic stay provision will 
not prejudice final resolution of any challenges to the underlying staff decision.
11. As a result of the action we take here, parties requesting amendment of the Table of 
Allotments may, upon release of an initial staff decision granting their request, proceed to 
implement the change through applications and construction notwithstanding the filing of 
petitions for reconsideration of the initial decision. We emphasize, of course, that parties electing 
to proceed before the allotment decision is final do so at their own risk and must bear the costs 
of any subsequent action reversing or revising the allotment decision.22
Application to Pending Cases
12. Comments. Most parties that address the issue assert that the elimination of the 
automatic stay rule should be applied to all existing cases, to expedite service to the public. 
They note that, just as with prospective cases, no prejudice will occur to parties seeking 
reconsideration, because the Commission will still consider each case on its merits. Also, they 
state, the Commission can impose stays on a case-by-case basis if necessary.23 On the other 
hand, Henderson argues that application to pending cases would impose increased inequity on 
licensees and their communities, and it would needlessly disrupt cases in progress.24
13. Discussion. We disagree with Henderson's analysis of applying the amended rule 
to pending cases. Section 1.420(f) of the Commission's Rules, 47 C.F.R. § 1.420(f), involves 
matters of Commission practice and procedure. The change we adopt today will not affect our 
substantive analysis of any pending petition for reconsideration or application for review. 
Changes in procedural rules may be applied in adjudications arising before their enactment
21 See 47 C.F.R. §§ 1.102(b), 1.106(n), and 1.429(k). We note that a party has a high burden to meet in order 
to demonstrate that a stay of a Commission action is warranted. Specifically, the Commission will grant a motion 
for stay only if the moving party can demonstrate that: (1) there is a substantial likelihood that it will succeed on 
the merits; (2) it will suffer irreparable injury if the stay is not granted; (3) the injury which the party suffers will 
outweigh the harm to the adverse party; and (4) the stay will be in the public interest. See Washington Metropolitan 
Area Transit Commission v. Holiday Tours. Inc.. 559 F.2d 841 (D.C. Cir. 1977), and Virginia Petroleum Jobbers 
Association v. F.P.C.. 259 F.2d 921 (D.C. Cir. 1958).
22 Colon proposes that we further amend Section 1.420(f) by making the application for review the immediate 
method of appealing an initial staff allotment action. Colon argues that eliminating petitions for reconsideration will 
save time for all parties, conserve Commission resources, and still ensure the right of all parties to full Commission 
review. Colon Comments at 4-6. We decline to adopt this proposal. We believe that our actions today are sufficient 
to accomplish the goals cited by Colon.
23 See, e.g.. FCBA Comments at 6; KRTS Comments at 6.
24 Henderson Comments at 5.
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Federal Communications Commission FCC 96-301
without raising concerns about retroactivity.25 Moreover, in repealing the automatic stay rule, we 
are concluding that such action will not cause undue inequity or disruption to future cases. 
Henderson does not indicate how the effect on pending cases would be any different, since all 
parties will continue to have their rights of appeal to the Commission undisturbed. Further, we 
have no indication in the record that any parties will endure any unusual hardships by application 
of the rule to pending cases. Consequently, we see no reason to retain a rule that we have 
determined does not serve the public interest. Accordingly, we shall lift the stay with respect to 
any petitions for reconsideration or applications for review pending as of the effective date of this 
Report and Order. By increasing the efficiency of our processes even sooner and with regard to 
more cases, we will further our objective of expediting provision of improved service to the 
public.
ffl. ADMINISTRATIVE MATTERS
Paperwork Reduction Act of 1995 Analysis
14. The decision herein has been analyzed with respect to the Paperwork Reduction Act 
of 1995, Pub. L. No. 104-13, and found to impose or propose no modified information collection 
requirement on the public.
Ordering Clauses
15. ACCORDINGLY, IT IS ORDERED that Section 1.420(f) of- the Commission's Rules, 
47 C.F.R. § 1.420(f), IS AMENDED as set forth in Appendix C.
16. IT IS FURTHER ORDERED that any stay granted pursuant to Section 1.420(f) of the 
Commission's Rules, 47 C.F.R. § 1.420(f), that is in effect on the effective date of this Report 
and Order IS LIFTED.
17. IT IS FURTHER ORDERED that, pursuant to the Contract with America 
Advancement Act of 1996, the amendment set forth in Appendix C WILL BECOME 
EFFECTIVE either 30 days after publication in the Federal Register or upon the receipt by 
Congress of a report in compliance with the Contract with America Advancement Act of 1996, 
Pub. L. No. 104-121,'whichever is later?
18. IT IS FURTHER ORDERED that this proceeding IS TERMINATED.
19. Additional Information. For additional information regarding this proceeding, please 
contact Paul R. Gordon, Mass Media Bureau, Policy and Rules Division, (202) 418-2130.
25 See Landsraf v. USI Film Products. 114 S.Ct. 1483, 1502 (1994), citing Ex pane Collett. 337 U.S. 55, 71, 
(1949).
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FEDERAL COMMUNICATIONS COMMISSION
William P. Caton 
Acting Secretary
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APPENDIX A 
Regulatory Flexibility Analysis
As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C. § 603 (RFA), an Initial 
Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking 
(NPRM) in this proceeding.26 The Commission sought written public comments on the proposals 
in the NPRM. including on the IRFA. The Commission's Final Regulatory Flexibility Analysis27 
in this Report and Order is as follows:
A. Need For and Objectives of Action:
The Commission's Rules provide for an automatic stay, upon the filing of a petition for 
reconsideration, of any Commission order modifying an authorization to provide for operation 
on a different FM or TV channel, which is effected by way of an allotment rule making 
proceeding. The automatic stay provisions for certain reconsideration petitions in these 
proceedings has created an incentive for the filing of petitions for reconsideration that are largely 
without merit, thereby delaying the provision of expanded service to the public. In order to" 
reduce that delay, the Commission is repealing the rule.
B. Significant Issues Raised by the Public in Response to the Initial Analysis:
No comments were received specifically in response to the Initial Regulatory Flexibility 
Analysis contained in Notice of Proposed Rulemaking. However, commenters generally 
addressed the effects of the automatic stay rule on FM and TV licensees, including small 
businesses. Several commenters argued that the delay associated with the automatic stay can 
prevent licensees from effecting authorized improvements to their facilities, and they accordingly 
supported the rule change. A few commenters contended that the current delay protects third- 
party licensees from incurring the costs associated with needlessly modifying and remodifying 
their stations.
C. Description and Number of Small Entities To Which the Rule Will Apply:
1. Definition of a "Small Business"
Under the Regulatory Flexibility Act, small entities may include small organizations, small 
businesses, and small governmental jurisdictions. 5 U.S.C. § 601(6). The Regulatory Flexibility
26 Notice of Proposed Rulemaking in MM Docket No. 95-110, 10 FCC Red 7753 (1995).
27 Our final analysis conforms to the RFA, as amended by the Contract With America Advancement Act of 
1996, P.L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Subtitle II of CWAAA is "The Small Business Regulatory 
Enforcement Fairness Act of 1996".
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Federal Communications Commission FCC 96-301
Act, 5 U.S.C. § 601(3) generally defines the term "small business" as having the same meaning 
as the term "small business concern" under the Small Business Act, 15 U.S.C. § 632. A small 
business concern is one which: (1) is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria established by the Small Business 
Administration ("SBA"). Id. According to the SBA's regulations, entities engaged in radio or 
television broadcasting may have a maximum of $5.0 million or $10.5 million, respectively, in 
annual receipts in order to qualify as a small business concern.28 13 C.F.R. §§ 121.201 This 
standard also applies in determining whether an entity is a small business for purposes of the 
Regulatory Flexibility Act.
Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies "unless an 
agency after consultation with the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such definition(s) in the Federal 
Register." While we tentatively believe that the foregoing definition of "small business" greatly 
overstates the number of radio and television broadcast stations that are small businesses and is 
not suitable for purposes of determining the impact of the new rules on small business, we did 
not propose an alternative definition in the IRFA.29 Accordingly, for purposes of this Report and 
Order, we utilize the SBA's definition in determining the number of small businesses to which 
the rules apply, but we reserve the right to adopt a more suitable definition of "small business" 
as applied to radio and television broadcast stations and to consider further the issue of the
2S This revenue cap appears to apply to noncommercial educational television stations, as well as to commercial 
television stations. See Executive Office of the President, Office of Management and Budget, Standard Industrial 
Classification Manual (1987), at 283, which describes "Television Broadcasting Stations (SIC Code 4833) as:
Establishments primarily engaged in broadcasting visual programs by television to the public, 
except cable and other pay television services. Included in this industry are commercial, religious, 
educational and other television stations. Also included here are establishments primarily engaged 
in television broadcasting and which produce taped television program materials.
29 We have pending proceedings seeking comment on the definition of and data relating to small businesses. 
In our Notice of Inquiry in GN Docket No. 96-113 (In the Matter of Section 257 Proceeding to Identify and 
Eliminate Market Entry Barriers for Small Businesses), FCC 96-216, released May 21, 1996, we requested 
commenters to provide profile data about small telecommunications businesses in particular services, including 
television, and the market entry barriers they encounter, and we also sought comment as to how to define small 
businesses for purposes of implementing Section 257 of the Telecommunications Act of 1996, which requires us to 
identify market entry barriers and to prescribe regulations to eliminate those barriers. The comment and reply 
comment deadlines in that proceeding have not yet elapsed. Additionally, in our Order and Notice of Proposed Rule 
Makin£ in MM Docket No. 96-16 (In the Matter of Streamlining Broadcast EEO Rule and Policies, Vacating the 
EEO Forfeiture Policy Statement and Amending Section 1.80 of the Commission's Rules to Include EEO Forfeiture 
Guidelines), 11 FCC Red 5154 (1996). we invited comment as to whether relief should be afforded to stations: (1) 
based on small staff and what size staff would be considered sufficient for relief, e.g., 10 or fewer full-time 
employees; (2) based on operation in a small market; or (3) based on operation in a market with a small minority 
work force. We have not concluded the foregoing rule making.
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Federal Communications Commission FCC 96-301
number of small entities that are radio and television broadcasters in the future. Further, in this 
RFA, we will identify the different classes of small radio and television stations that may be 
impacted by the rules adopted in this Report and Order.
2. Issues in Applying the Definition of a "Small Business"
As discussed below, we could not precisely apply the foregoing definition of "small 
business" in developing our estimates of the number of small entities to which the rules will 
apply. Our estimates reflect our best judgments based on the data available to us.
An element of the definition of "small business" is that the entity not be dominant in its 
field of operation. We were unable at this time to define or quantify the criteria that would 
establish whether a specific television or radio station is dominant in its field of operation. 
Accordingly, the following estimates of small businesses to which the new rules will apply do 
not exclude any television or radio station from the definition of a small business on this basis 
and are therefore overinclusive to that extent. An additional element of the definition of "small 
business" is that the entity must be independently owned and operated. We attempted to factor 
in this element by looking at revenue statistics for owners of television and radio stations. 
However, as discussed further below, we could not fully apply this criterion, and our estimates 
of small businesses to which the rules may apply may be overinclusive to this extent.
With respect to applying the revenue cap, the SBA has defined "annual receipts" 
specifically in 13 C.F.R § 121.104, and its calculations include an averaging process. We do not 
currently require submission of financial data from licensees that we could use to apply the 
SBA's definition of a small business. Thus, for purposes of estimating the number of small 
entities to which the rules apply, we are limited to considering the revenue data that are publicly 
available, and the revenue data on which we rely may not correspond completely with the SBA 
definition of annual receipts.
Under SBA criteria for determining annual receipts, if a concern has acquired an affiliate or 
been acquired as an affiliate during the applicable averaging period for determining annual 
receipts, the annual receipts in determining size status include the receipts of both firms. 13 
C.F.R. § 121.104(d)(l). The SBA defines affiliation in 13 C.F.R. § 121.103. While the 
Commission refers to an affiliate generally as a station affiliated with a network, the SBA's 
definition of affiliate is analogous to our attribution rules. Generally, under the SBA's definition, 
concerns are affiliates of each other when one concern controls or has the power to control the 
other, or a third party or parties controls or has the power to control both. 13 C.F.R. § 
121.103(a)(l). The SBA considers factors such as ownership, management, previous relationships 
with or ties to another concern, and contractual relationships, in determining whether affiliation 
exists. 13 C.F.R. § 121.103(a)(2). Instead of making an independent determination of whether 
radio and television stations were affiliated based on SBA's definitions, we relied on the data 
bases available to jus to afford us that information.
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3. Estimates Based on BIA Data
We have performed a study based on the data contained in the BIA Publications, Inc. Master 
Access Television Analyzer Database, which lists a total of 1,141 full-power commercial 
television stations. We have excluded from our calculations Low Power Television (LPTV) 
Stations and translator stations, two secondary services that have traditionally not had standing 
in allotment proceedings, which are the subject of this rule. It should be noted that the 
percentage figures derived from the data base may be underinclusive because the data base does 
not list revenue estimates for noncommercial educational stations, and these are therefore 
excluded from our calculations based on the data base. Non-commercial stations also have a 
diminished regulatory burden by virtue of the rule change adopted in this Report and Order. The 
data indicate that, based on 1995 revenue estimates, 440 full-power commercial television stations 
had an estimated revenue of 10.5 million dollars or less. That represents 54 percent of 
commercial television stations with revenue estimates listed in the BIA program. The data base 
does not list estimated revenues for 331 stations. Using an extreme scenario, if those 331 
commercial stations for which no revenue is listed are counted as small stations, there would be 
a total of 771 stations with an estimated revenue of 10.5 million dollars or less, representing 
approximately 68 percent of the 1,141 commercial television stations listed in the BIA data base.
Alternatively, if we look at owners of commercial television stations as listed in the BIA data 
base, there are a total of 488 owners. The data base lists estimated revenues for 60 percent of 
these owners, or 295. Of these 295 owners, 158 or 54 percent had annual revenues of 10.5 
million dollars or less. Using an extreme scenario, if the 193 owners for which revenue is not 
listed are assumed to be small, the total of small entities would constitute 72 percent of owners.
In summary, based on the foregoing extreme analysis based on the data in the BIA data base, 
we estimate that as many as approximately 771 commercial television stations (about 68 percent 
of all commercial televisions stations) could be classified as small entities. As we noted above, 
these estimates are based on a definition that we believe greatly overstates the number of 
television broadcasters that are small businesses. Further, it should be noted that under the 
SBA's definitions, revenues of affiliated businesses that are not television stations should be 
aggregated with the television station revenues in determining whether a concern is small. The 
estimates overstate the number of small entities since the revenue figures on which they are based 
do not include or aggregate such revenues from non-television affiliated companies.
There are approximately 10,250 commercial radio broadcasting stations and 1,810 
noncommercial radio broadcast stations of all sizes in the nation, with approximately 5,200 
different commercial owners. For the same reasons as above, the exact number of small radio 
broadcasting entities to which the elimination of the rule will apply is unknown. Based on 1995 
revenue estimates, the BIA Publications, Inc. Master Access Analyzer Database data base indicates 
that 3,314 commercial radio stations had an estimated revenue of $5.0 million or less. That 
represents approximately 90 percent of commercial radio stations with revenue estimates listed 
in the BIA program. The data base does not list estimated revenue for 6,571 stations. Using the
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most extreme scenario, if those 6,571 stations for which no revenue estimates is listed are 
counted as small stations, there would be a total of 9,885 stations with an estimated revenue of 
$5.0 million dollars or less, representing approximately 96 percent of the 10,257 commercial 
radio stations listed in the BIA data base.
Alternatively, if we look at owners of commercial radio stations as listed in the BIA data 
base, there are a total of 5,207 owners. The data base lists estimated revenues for 29 percent of 
these owners, or 1,532. Of these 1,532 owners, 1,344 or 88 percent had annual revenue of less 
than $5.0 million. Using the most extreme scenario, if the 3,675 owners for which revenue 
estimates are not listed are assumed to be small businesses, then the total of small entities would 
constitute 96 percent of commercial radio station owners. Further, many noncommercial radio 
broadcasters are considered to be small entities. Thus, a large number of owners of radio 
broadcast facilities of several types (commercial AM, commercial FM, and noncommercial FM 
stations) could benefit from the rule amendment herein adopted.
4. Alternative Classification of Small Stations
An alternative way to classify small radio and television stations is by the number of 
employees. The Commission currently applies a standard based on the number of employees in 
administering its Equal Employment Opportunity Rule (EEO) for broadcasting.30 Thus, radio or 
television stations with fewer than five full-time employees are exempted from certain EEO 
reporting and recordkeeping requirements.31 We estimate that the total number of broadcast 
stations with 4 or fewer employees is approximately 4,239.32
30 The Commission's definition of a small broadcast station for purposes of applying its EEO rule was adopted 
prior to the requirement of approval by the Small Business Administration 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 1992, Pub. L. No. 102-366, § 222(b)(l), 106 Stat. 999 (1992), as further amended by the Small 
Business Administration Reauthonzation and Amendments Act of 1994, Pub. L. No. 103-403, § 301, 108 Stat. 4187 
(1994). 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).
31 See, e.g.. 47 C.F.R. § 73.3612 (Requirement to file annual employment reports on Form 395 applies to 
licensees with five or more full-time employees); rirst Report and Order in Docket No. 21474 (In the Matter of 
Amendment of 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 maintaining the effectiveness of our broadcast EEO enforcement. Order and Notice of Proposed Rule 
Making in MM Docket No. 96-16 (In the Matter of Streamlining Broadcast EEO Rule and Policies, Vacating the 
EEO Forfeiture Policy Statement and Amending Section 1.80 of the Commission's Rules to Include EEO Forfeiture 
Guidelines), 11 FCC Red 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 full-time employees. Id. at 1 21.
32 Compilation of 1994 Broadcast Station Annual Employment Reports (FCC form 395B), Equal Opportunity 
Employment Branch, Mass Media Bureau, FCC.
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D. Projected Compliance Requirements of the Rule:
This Report and Order imposes no new reporting, recordkeeping, or other compliance 
requirements.
E. Significant Alternatives Considered Minimizing the Economic Impact on Small Entities 
and Consistent with the Stated Objectives:
The action taken does not impose additional burdens on small entities and, as discussed in 
detail at H 9-10 of the Report and Order, will in fact have a positive economic impact, as 
entities, including small entities, will be able to increase their service more expeditiously and 
with fewer legal challenges. A small entity opposing Commission action by petitioning for 
reconsideration will still be able to seek a stay in an individual case, based on the merits of that 
case. In those cases where a third party is required to move involuntarily, all costs are borne by 
the party initiating the request for changes to the allotment table. This should adequately address 
the concerns of commenters opposed to this rule change.
F. Report to Congress
The Secretary shall send a copy of this Final Regulatory Flexibility Analysis along with this 
Report and Order in a report to Congress pursuant to Section 251 of the Small Business 
Regulatory Enforcement Fairness Act of 1996, codified at 5 U.S.C. § 801(a)(l)(A). A copy of 
this RFA will also be published in the Federal Register.
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APPENDIX B
List of Commenters
Carlos J. Colon Ventura
Federal Communications Bar Association
Roy E. Henderson
KRTS, Inc.
Sampit Broadcasters
Randolph Weigner
Westview Communications
List of Reply Commenters
Carlos J. Colon Ventura 
KRTS, Inc.
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APPENDIX C 
Rules
Part 1 of Title 47 of the Code of Federal Regulations is amended to read as follows: 
PART 1 - PRACTICE AND PROCEDURE
1. The Authority Citation for Part 1 continues to read as follows: 
AUTHORITY: 47 U.S.C. 151, 154, 303, and 309(j), unless otherwise noted.
2. Paragraph (f) of § 1.420 is revised to read as follows:
§ 1.420 Additional Procedures in Proceedings for amendment of the FM or TV Table of 
Allotments.
* * * * *
(f) Petitions for reconsideration and responsive pleadings shall be served on parties to 
the proceeding and on any licensee or permittee whose authorization may be modified to specify 
operation on a different channel, and shall be accompanied by a certificate of service.
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