Code of Federal Regulations: Containing a Codification of Documents of ...

§1.1525 Settlement.

The applicant and Bureau counsel may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded. If a prevailing party and Bureau counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement. If the Administrative Law Judge approves the proposed settlement, it shall be forwarded to the Commission for final approval.

$1.1526 Further proceedings.

(a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or Bureau counsel, or on his or her own initiative, the Administrative Law Judge may order further proceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than substantial justification, an evidentiary hearing. Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.

(b) A request that the Administrative Law Judge order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.

[47 FR 3786, Jan. 27, 1982, as amended at 52 FR 11653, Apr. 10, 1987]

$1.1527 Decision.

The Administrative Law Judge shall issue an initial decision on the application as soon as possible after completion of proceedings on the application. The decision shall include written findings and conclusions on the applicant's eligibility and status as a prevailing

party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the Commission's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the reasons for the allocation made.

§1.1528 Commission review.

Either the applicant or Bureau counsel may seek Commission review of the initial decision on the fee application, or the Commission may decide to review the decision on its own initiative, in accordance with §§1.276 through 1.282 of this chapter. Except as provided in §1.1525, if neither the applicant nor Bureau counsel seeks review and the Commission does not take review on its own initiative, the initial decision on the application shall become a final decision of the Commission 50 days after it is issued. Whether to review a decision is a matter within the discretion of the Commission. If review is taken, the Commission will issue a final decision on the application or remand the application to the Administrative Law Judge for further proceedings.

$1.1529 Judicial review.

Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).

§1.1530 Payment of award.

An applicant seeking payment of an award from the Commission shall submit to the General Counsel a copy of the Commission's final decision granting the award, accompanied by a statement that the applicant will not seek review of the decision in the United States courts, or a copy of the court's order directing payment. The Commission will pay the amount awarded to the applicant unless judicial review of the award or the underlying decision of the adversary adjudication has been

sought by the applicant or any other party to the proceeding.

Subpart L-Random Selection Procedures for Mass Media Services

AUTHORITY: 47 U.S.C. 309(i).

SOURCE: 48 FR 27202, June 13, 1983, unless otherwise noted.

GENERAL PROCEDURES

§1.1601 Scope.

The provisions of this subpart, and the provisions referenced herein, shall apply to applications for initial licenses or construction permits or for major changes in the facilities of authorized stations in the following services:

(a) Low Power Television and Television Translator Broadcasting.

§1.1602 Designation for random selection.

Applications in the services specified in §1.1601 shall be tendered, accepted or dismissed, filed, publicly noted and subject to random selection and hearing in accordance with any relevant rules. Competing applications for an initial license or construction permit shall be designated for random selection and hearing in accordance with the procedures set forth in §§1.1603 through 1.1623 and § 73.3572 of this chapter.

§ 1.1603 Conduct of random selection. The random selection probabilities will be calculated in accordance with the formula set out in rules §§1.1621 through 1.1623.

[48 FR 27202, June 13, 1983, as amended at 48 FR 43330, Sept. 23, 1983]

§1.1604 Post-selection hearings.

(a) Following the random selection, the Commission shall announce the "tentative selectee" and, where permitted by §73.3584 invite Petitions to Deny its application. Following the responsive pleadings thereto, the Commission shall:

(1) In the case of low power television stations, take action pursuant to either §§ 73.3591, 73.3592 or § 73.3593.

(b) If, after such hearing as may be necessary, the Commission determines that the "tentative selectee" has met the requirements of §73.3591(a) it will make the appropriate grant. If the Commission is unable to make such a determination, it shall order that another random selection be conducted from among the remaining mutually exclusive applicants, in accordance with the provisions of this subpart.

(c) If, on the basis of the papers before it, the Commission determines that a substantial and material question of fact exists, it shall designate that question for hearing. Hearings may be conducted by the Commission or, in the case of a matter which requires oral testimony for its resolution, an Administrative Law Judge.

§ 1.1621 Definitions.

(a) Medium of mass communications

(2) Hispanics

(3) American Indians,

(4) Alaska Natives, (5) Asians, and

(6) Pacific Islanders.

(1) If the applicant is a proprietorship, is the proprietor,

(2) If the applicant is a partnership, holds any partnership interest,

(3) If the applicant is a trust, is the beneficiary thereof,

(4) If the applicant is an unincorporated association or non-stock corporation, is a member, or, in the case of a nonmembership association or corporation, a director,

(5) If the applicant is a stock corporation, is the beneficial owner of voting shares.

NOTE 1: For purposes of applying the diversity preference to such entities only the other ownership interests of those with a 1% or more beneficial interest in the entity will be cognizable.

NOTE 2: For the purposes of this section, a daily newspaper is one which is published four or more days per week, which is in the English language, and which is circulated generally in the community of publication. A college newspaper is not considered as being circulated generally.

NOTE 3: For the purposes of applying the diversity preference, the ownership interests of the spouse of an applicant's principal will not presumptively be attributed to the applicant.

[48 FR 27202, June 13, 1983, as amended at 50 FR 5992, Feb. 13, 1985]

1.1622 Preferences.

(a) Any applicant desiring perference in the random selection shall so indicate as part of its application. Such an applicant shall list any owner who owns all or part of a medium of mass communications or who is a member of a minority group, together with a precise identification of the ownership interest held in such me-dium of mass communications or name of the minority group, respectively. Such an applicant shall also state whether more than 50% of the ownership interests in it are held by members of minority groups and the number of media of mass communications more than 50% of whose ownership interests are held by the applicant and/or its owners.

(b) Preference factors as incorporated in the percentage calculations §1.1623, shall be granted as follows: (1) Applicants, more than 50% of whose ownership interests are held by members of minority groups-2:1.

(2) Applicants whose owners in the aggregate hold more than 50% of the ownership interests in no other media of mass communications-2:1.

(3) Applicants whose owners in the aggregate hold more than 50% of the ownership interest in one, two or three other media of mass communications1.5:1.

(d) Preferences will be determined on the basis of ownership interests as of the date of release of the latest Public Notice announcing the acceptance of the last-filed mutually exclusive application.

(e) No preferences pursuant to §1.1622(b)(2) or (b)(3) shall be granted to any LPTV or MDS applicant whose owners, when aggregated, have an ownership interest of more than 50 percent in the following media of mass communications, if the service areas of those media as described herein wholly encompass or are encompassed by the protected predicted contour, computed in accordance with §74.707(a), of the low power TV or TV translator station for which the license or permit is sought, or computed in accordance with §21.902(d), of the MDS station for which the license or permit is sought.

(1) AM broadcast station-predicted or measured 2 mV/m groundwave contour, computed in accordance with §73.183 or § 73.186;

(2) FM broadcast station-predicted 1 mV/m contour, computed in accordance with §73.313;

(3) TV broadcast station-Grade A contour, computed in accordance with § 73.684;

(4) Low power TV or TV translator station-protected predicted contour, computed in accordance with §74.707(a);

(5) Cable television system franchise area, nor will the diversity preference be available to applicants whose proposed transmitter site is located within the franchise area of a cable system in which its owners, in the aggregate, have an ownership interest of more than 50 percent.

(6) Daily newspaper community of publication, nor will the diversity preference be available to applicants whose proposed transmitter site is located within the community of publication of a daily newspaper in which its owners, in the aggregate, have an ownership interest of more than 50 percent.

(7) Multipoint Distribution Servicestation service area, computed in accordance with § 21.902(d).

[48 FR 27202, June 13, 1983, as amended at 50 FR 5992, Feb. 13, 1985; 50 FR 11161, Mar. 20, 1985]

§ 1.1623 Probability calculation.

(a) All calculations shall be computed to no less than three significant digits. Probabilities will be truncated to the number of significant digits used in a particular lottery.

(b) Divide the total number of applicants into 1.00 to determine pre-preference probabilities.

(d) Divide each applicant's probability pursuant to paragraph (c) of this section by the sum of such probabilities to determine intermediate probabilities.

(e) Add the intermediate probabilities of all applicants who received a preference pursuant to §1.1622 (b)(2) or (b)(3).

(f)(1) If the sum pursuant to paragraph (e) of this section is .40 or greater, proceed to paragraph (g) of this section.

(2) If the sum pursuant to paragraph (e) of this section is less than .40, then multiply each such intermediate probability by the ratio of .40 to such sum. Divide .60 by the number of applicants who did not receive a preference pursuant to §1.1622 (b)(2) or (b)(3) to determine their new intermediate probabilities.

(g) Multiply each applicant's probability pursuant to paragraph (f) of this section by the applicable preference ratio from §1.1622(b)(1).

(h) Divide each applicant's probability pursuant to paragraph (g) of this section by the sum of such probabilities to determine the final selection percentage.

§1.1701 Purpose.

(a) The regulations in this subpart implement section 7 of the Radio Broadcasting to Cuba Act, Pub. L. 98111, 97 Stat. 749 (1983). That statute is referred to in this subpart as "the Act."

(b) Section 7 of the Act provides for the payment of compensation by the United States Information Agency (USIA) to radio broadcast station licensees for allowable expenses they incur in mitigating interference from Cuba to the broadcast service they provide. Subsection 7(c) directs the Federal Communications Commission to issue appropriate regulations and establish procedures for carrying out section 7.

(c) The regulations in this subpart M establish the standards, requirements, and procedures that the Federal Communications Commission will apply in making findings as to whether applicants for compensation under section 7 of the Radio Broadcasting to Cuba Act qualify for it, and if they do, in what amounts. The Commission will transmit those findings to the USIA for guidance in the discharge of the responsibility that the Act places upon the USIA to make such compensation payments.

§1.1702 Definition of Cuban interference.

For the purposes of this subpart M, Cuban interference to a United States AM broadcast station is radiation from a radio transmitter in Cuba at a level that, under the provisions of the Final Acts of the Regional Administrative Radio Conference, Rio de Janeiro 1981, ("the Rio AM Agreement") would be treated as causing objectionable interference if it occurred between signatory countries.

§ 1.1703 Method for calculating the level of Cuban interference.

(a) The FCC will prepare, periodically update, and make publicly available a list of Cuban stations known to be operating on the 107 channels allocated

for AM broadcasting. The list will show the location and calculated operating power of each Cuban station.

(b) In order to obtain the data needed to calculate the power of Cuban sta

tions, the Commission will arrange for the monitoring of the groundwave signals of Cuban AM stations at suitable locations. The field strengths of the signals of Cuban stations operating on all 107 AM channels and the directions from which they are transmitted will be logged as nearly semi-monthly as practicable. The data so obtained will be used in making studies on the basis of which the location and transmitter power of each Cuban station will be calculated.

(c) In order to determine the existence and level of interference to United States AM radio broadcast stations for the purposes of this subpart, Cuban stations will be presumed to be operating at the locations and with the powers determined in the manner stated in paragraphs (a) and (b) of this section; and the methods for calculating interference prescribed in the "Rio AM Agreement” referred to in §1.1702 will be used.

§ 1.1704 Minimum level and duration of interference qualifying licensees for compensation.

In order to be eligible for compensation under section 7 of the Act, the licensee of a United States AM radio broadcast station that does not come within the exception under §1.1706(b) of this subpart must:

(a) Using the methods provided in §1.1703(c), and treating the station's primary and secondary service areas separately, show that a Cuban station causes objectionable interference to the affected station's signals in a portion of its primary and secondary service area where at least 10% of the total population within that otherwise interference-free primary or secondary service area reside;

(b) Using the methods provided in §1.1705, show that the signals of a Cuban station have been detected within the service area of the affected station on at least half of the days during a prescribed test period. The reception of such Cuban signals must be separately shown to occur during that part or those parts of the day (i.e., during daytime hours, nighttime hours, or both) when the interference pertinent to an application for compensation occurs.

1.1705 Method for determining duration of Cuban interference.

(a) Section 1.1703 prescribes how the existence and level of Cuban interference will be determined. This §1.1705 prescribes how the duration or incidence of Cuban interference will be determined in order to show compliance with the minimum interference "duration" requirements of §1.1704(b).

(b) Unless the exception in §1.1706(b) applies, applicants for compensation shall monitor and log the signals of interfering Cuban stations in the manner prescribed in paragraphs (c) through (e) of this section, and shall submit the results of such monitoring to the Commission.

(c) Using equipment and methods conforming with good engineering practice, licensees whose applications for compensation are based on Cuban interference experienced during daytime hours shall, on 60 consecutive days, take and log field strength measurements of the signal of the interfering Cuban station between two hours after local sunrise and two hours before local sunset during brief intervals when the transmitter of the affected station is turned off. Except as provided in paragraph (e)(1) of this section, measurements shall be taken within the portion of the station's otherwise interference-free service area where the calculations performed in accordance with §1.1703(c) predict that Cuban interference will occur.

(d) Applicants who experience interference by Cuban groundwave signals to their primary service areas at night shall similarly take and log field strength measurements as provided in paragraph (c) of this section, but during nighttime hours instead of during the daytime.

(e)(1) Applicants who experience nighttime interference by Cuban skywave signals to the primary service areas of their Class II, Class III, or Class IV stations shall similarly take and log field strength measurements of the Cuban signals on 60 consecutive days during the nighttime hours between two hours after local sunset and two hours before local sunrise. Such measurements shall be taken in the general vicinity of the affected station's transmitter, but not so close as

« Previous Continue »

Books