§ 153.12 Criteria for evaluation of applications.

(a) In order to achieve the objectives of section 392(d) of the act, the Commissioner, in determining whether to approve an application for a Federal grant in whole or in part and the amount of such grant, or whether to defer action on such an application, will consider, in addition to criteria set forth in § 100a.26(b) of this chapter, excepting paragraphs (3), (6), and (8) of § 100a.26(b) of this chapter, the following factors:

(1) Specific program priorities set forth in Appendix B to this part;

(2) The extent to which the noncommercial educational broadcasting station associated with the project will contribute to meeting the needs for, and to improving the quality of, noncommercial educational broadcasting in the State and Nation;

(3) The general and specific educational and cultural needs of the local geographic area and population for noncommercial educational broadcasting service, as well as the need for local outlets for the origination of noncommercial educational broadcasting programs; the extent to which those needs are being or will be met by existing or proposed noncommercial educational broadcasting stations; and the extent to which the project is necessary to meet those needs;

(4) Equitable geographical distribution of funds throughout the States, and the impact of the Federal funds requested upon the State maximum limitation set forth by the Act;

(5) The need to equip existing stations for:

(i) Minimum state-of-the-art reproduction and/or program production capability consistent with current technological development and

(ii) Effective use of channels comparable to commercial stations in the same locality;

(6) The extent to which provision has been made for the cooperation and participation of educational, cultural, and community service agencies, institutions, and organizations within the service area of the station;

(7) The extent to which the various items of transmission apparatus proposed are necessary to, and capable of,

achieving the objectives of the project (as measured in part by standards for project apparatus specified in Appendix A-II to this part);

(8) The cost-effectiveness of Federal funds in relationship to objectives of the project, and the extent to which non-Federal funds will be used to meet the total cost of the project;

(9) How quickly the applicant can be expected to complete the project after grant award;

(10) Whether the transmission apparatus will be used for noncommercial educational broadcasting on a reserved channel;

(11) The standards by which the noncommercial educational broadcasting station will operate, including the number of hours of broadcast proposed, the size of the professional staff to be employed, and the adequacy of income, operating budget, facilities, power, and program service.

(12) The nature, amount, and recency of any prior grants to the same applicant;

(13) The provisions of any relevant statewide or regional noncommercial educational broadcast plans; and

or

(14) The recommendations, if any, of the State educational television radio agency.

(b) Applications under this part will not be approved by the Commissioner if they request funding to:

(1) Establish (or to improve only the production facilities of) a station with very low transmission power;

(2) Provide a facility primarily for student training activities; and/or

(3) Provide program services which are limited in nature, scope, and hours of broadcast.

(47 U.S.C. 392 (a), (c), (d), and (e); 394)

§ 153.13 Action on applications.

(a) After consideration of the application, any comments and replies filed by interested parties, and any other relevant information, the Commissioner will take one of the actions provided for in § 100a.27(a) of this chapter, Provided, That when the Commissioner denies approval of the application, in whole or in part, the Commissioner will set forth in writing the grounds and reasons therefor. Such denial shall not become final until 30 calen-.

dar days from the date of such denial, within which time the applicant may file with the Commissioner a petition for reconsideration pursuant to § 153.22 unless the right to file such a petition is waived in writing by the applicant.

(b) Upon the Commissioner's approval or denial, in whole or in part, of an application, the Commissioner will, in accordance with the provisions of § 100a.27(c) of this chapter, inform: (1) The applicant,

(2) Each State educational television or radio agency, if any, in any State, any part of which lies within the service area of the applicant's broadcast station,

(3) The FCC, and

(4) The Corporation.

(c) If the Commissioner awards a grant, the grant award document shall include grant terms and conditions set forth in Appendix A to Subchapter A of this Chapter, excepting terms and conditions 2, 3 (b) and (c), 5(e), 10, 11,

14, 20(a), 23, and 24 of such Appendix, and whatever other provisions are required by Federal law or regulations, or may be deemed necessary or desirable for the achievement of the purposes of the program supported under this part.

(47 U.S.C. 392(c), 394)

Subpart C-Federal Financial Participation and Conditions of Federal Grant

§ 153.14 Amount of Federal grant.

(a) In accordance with §§ 100a.50 and 100a.51 of this chapter, and subject to the provisions of paragraphs (b) and (c) of this section, the Federal grant award shall be an amount determined by the Commissioner and set forth in the grant award document, which in no case shall exceed 75 percent of the amount which he determines to be the estimated, total, reasonable, and necessary cost of the project. Such cost shall include the following:

(1) The purchase price of transmission apparatus (or fair market value of donated transmission apparatus) to be acquired in the project (in accordance with the provisions of Appendix A to this part); and

(2) Other costs related to the planning, acquisition, and installation of transmission apparatus in the project (in accordance with provisions of Appendix A to this part).

(b) Project costs shall not include the value of:

(1) Transmission apparatus owned by the applicant prior to the effective date of acceptance by the Commissioner for filing of the application, and services related thereto. Such effective date of acceptance for filing shall be specified in the FEDERAL REGISTER notice provided for under § 153.9(a) and shall be no earlier than the date on which the application was first received by the Commissioner in substantially approvable form;

(2) Transmission apparatus to the extent acquired or installed by donation from the United States or with Federal funds provided from sources other than under this part; and

(3) Transmission apparatus previously acquired or installed by a person other than the applicant by donation from the United States, or with Federal funds pursuant to this part or any other provisions of law.

(c) The total amount of the Federal grant award may not exceed the amount reasonable and necessary to meet the monetary cost of the transmission apparatus and personnel services in the project which are not donated.

(d) If the actual costs incurred in completing the project are less than the estimated costs which constituted the basis for the Commissioner's determination of the amount of the Federal grant award, the amount of the final grant shall be that amount of the actual total project cost remaining after deducting the amount of local matching funds certified by the applicant at the time of project approval as being available for use in the project (including the fair-market value of gifts, if any) provided that in no case shall the final Federal grant exceed the Federal grant award.

(e) Notwithstanding § 100a.51 of this chapter, grant awards under this part will not be revised by the Commissioner if the effect of the revision is to increase the amount of the grant award.

(47 U.S.C. 392(e), 394; 20 U.S.C. 1221c(b)(1), 1221c(b)(3))

§ 153.15 Payment of Federal grant.

(a) No payments under any award will be made unless and until the recipient complies with all relevant requirements imposed by this part, and until confirmation has been received from the FCC that any necessary existing authorization is current and valid and any necessary new authorization has been granted and such grant has become final.

(b) After the conditions indicated in paragraph (a) of this section have been satisfied, and notwithstanding §§ 100a.60-100a.64 of this chapter, payments will be made to the grantee in such installments consistent with construction progress, as the Commissioner may determine. The Commissioner may require as a precondition to any such payments such site visits by representatives of the Department as he may deem appropriate to determine construction progress.

(47 U.S.C. 392(e), 394)

§ 153.16 Conditions of Federal grant.

(a)(1) Federal grants under this part shall not be subject to §§ 100a.156, 100a.159, 100a.161, 100a.172, 100a.173, 100a.260, 100a.270, and 100a.276 of this chapter.

(2) As applied to grants under this part, the terms "construction" and "facilities" used in Subpart K of Part 100a of this chapter shall have the applicable definitions set forth in § 153.3.

(3) As applied to grants under this part, "program income”, as the term is used in Subpart M of Part 100a, of this chapter, shall not include income to the grantee generated by its television or radio programming.

(b) Each Federal grant under this part shall be subject to the conditions that the grantee shall:

(1) Continue to meet the requirements set forth in § 153.5(c);

(2) Use the Federal grant funds for the purposes for which the Federal grant was made and for the items of transmission apparatus and other expenditure items specified in the application for inclusion in the project, except that the grantee may substitute other items where necessary or

desirable to carry out the purpose of the project and provided that such substitutions will not result in an increase in the grant award and are approved by the Commissioner;

(3) Promptly complete the project and place the noncommercial educational broadcast facilities into operation;

(4) Maintain, during construction of the project and for 10 years after completion of the project, protection against common hazards through adequate insurance coverage or other equivalent undertakings, except that, to the extent the applicant follows a different policy of protection with respect to its other property, the applicant may extend such policy to transmission apparatus acquired and installed under the project;

(5) Permit inspections by the Commissioner or a duly authorized representative of the Commissioner of the transmission apparatus acquired with Federal financial assistance at the time of completion of the project and at any other reasonable time within 10 years after completion of the project. (47 U.S.C. 392(d)(1), 392(f), 394)

Subpart D-Accountability for Federal Funds

§ 153.17 Retention of property records.

Each grantee shall keep intact and accessible fiscal records in accordance with the provisions of § 100a.477 of this chapter, provided that final disposition of nonexpendable personal property purchased under this part for purposes of § 100a.477(b)(2) of this chapter shall be deemed to have occurred 10 years after completion of the project.

(47 U.S.C. 392(f), 393, 394, 20 U.S.C. 1232c(a))

§ 153.18 Final certification.

Upon completion of the project, the grantee shall:

(a) Certify that the noncommercial educational broadcasting station has, where required, FCC authorization to broadcast following acquisition and installation of project equipment; and

(b) Certify that the acquisition and installation of the project equipment

has been completed in accordance with the project as approved by the Commissioner.

(47 U.S.C. 392(f), 394, 20 U.S.C. 1232c(b)(3); 20 U.S.C. 1221c(b)(1))

§ 153.19 Annual status reports.

In addition to reports which may be required to be filed under § 100a.406 and 100a.433 of this chapter, the grantee must file with the Commissioner during the 10-year period commencing with the date of completion of a project:

(a) An annual status report on or before each April 1 following completion of the project, certifying that:

(1) There has been no change in ownership or use of such transmission apparatus during the reporting period, or describing any change during such period;

(2) The grantee continues to be an agency, officer, institution, foundation, corporation, association, or municipality described in § 153.4 as being eligible to receive a grant;

(3) Such transmission apparatus as is owned by the grantee as of that date is being used for noncommercial educational broadcasting purposes; and (4) The requirements § 153.16(b)(4) continue to be met.

of

(b) A copy of each of the following applications and reports, if any, which the grantee files with the FCC with respect to any such transmission apparatus: applications for extension of construction permit, license to cover construction permit, modification of construction permit or license, renewal of license, and for voluntary or involuntary assignment or transfer of control.

(47 U.S.C. 392(f), 394)

§ 153.20 Termination.

In addition to grounds for termination for cause specified in § 100a.495(a) of this chapter, the following circumstances shall constitute grounds for termination under § 100a.495 of this chapter:

(a) Final action by the FCC revoking a construction permit required for such project, denying an application for extension or a required modification of such construction permit, den

ying an application for construction permit to replace such required construction permit, or denying an application for a license to cover the construction permit; or

(b) Forfeiture of a construction permit required for a project for which a grant has been approved.

(47 U.S.C. 394; 20 U.S.C. 1221c(b)(1))
§ 153.21 Change in eligibility or use.

(a) Notwithstanding §§ 100a.215 (b), (c), and (d) and 100a.216 of this chapter, if assistance under this part is terminated pursuant to § 153.20 or if within 10 years after completion of any project with respect to which a Federal grant has been made pursuant to this part:

(1) The grantee ceases to be an agency, officer, institution, foundation, corporation, association, or municipality described in § 153.4 as being eligible to receive a Federal grant; or

(2) Any of the transmission apparatus included in the project ceases to be used for noncommercial educational broadcasting, either permanently or for an indefinite period of time, or such apparatus is used or disposed of for other than noncommercial educational broadcasting (other than as a trade-in for acquisition of other transmission apparatus to be used for such purposes); then the grantee shall (except as provided in paragraph (b) of this section) pay to the United States the amount bearing the same ratio to the then fair-market value of such apparatus, as the amount of the Federal participation bore to the cost of acquisition or installation of such apparatus.

(b) Where the grantee proposes to cease using any of the transmission apparatus included in the project for noncommercial educational broadcasting (as set forth in paragraph (a)(2) of this section), he may file a petition with the Commissioner requesting release from the obligation to make repayment to the United States, and setting forth with particularity the grounds and reasons for the request. Such petitions will be granted by the Commissioner only for good cause, and only if the proposed cessation of use for noncommercial educational broadcasting has not already taken

place, unless the petitioner demonstrates to the satisfaction of the Commissioner that such cessation was due to causes not under the control of the petitioner. If the Commissioner denies the petition, the grantee may within 30 calendar days from the date of receipt of notice of such denial, file a petition for reconsideration pursuant to § 153.22.

(c) In any case where the Commissioner has reason to believe that any change in eligibility of use of transmission apparatus (as described in paragraph (a) of this section), has already taken place, he will promptly notify the grantee of the grounds and reasons for his belief that repayment to the United States is required. The grantee may, within 30 days from the date of receipt of such notification, file with the Commissioner a petition for reconsideration pursuant to § 153.22.

(d) If the Commissioner determines that the grantee is obligated to make a repayment to the United States, he will seek to reach agreement as to the amount of such repayment. If such an agreement cannot be reached, the Commissioner will cause an action to be brought in the U.S. District Court for the district in which the noncommercial educational broadcasting facilities are situated to determine the amount of the repayment, and will take such action as may be necessary to secure repayment.

(47 U.S.C. 392(f), 394)

§ 153.22 Petition for reconsideration.

(a) A petition for reconsideration as provided in §§ 153.8, 153.13, and 153.21 must be filed timely with the Commissioner, must state with particularity in what respect the Commissioner's action is claimed to be unjust, unwarranted, or erroneous, must specifically indicate the relief sought, and must be accompanied by a written statement on the question presented. The petition for reconsideration may be accompanied by a request for a hearing, in which event the petitioner must state with particularity the grounds and reasons therefor. If the Commissioner designates the matter for hearing, the Commissioner will specify the questions in issue, designate the hearing

officer, and specify the procedures and rules relating to the conduct of the hearing. If the Commissioner does not find that sufficient grounds and reasons exist for granting the relief sought or for providing a requested hearing, the Commissioner will notify the petitioner, giving reasons for the refusal.

(b) In the event of a hearing the hearing officer shall make a written report to the Commissioner based upon the hearing and containing a recommended decision on the issues. A copy of the report shall be mailed to the petitioner, and the petitioner shall have 15 calendar days from the date of receipt (or such additional time as may be given for good cause) to file with the Commissioner a written statement setting forth with particularity alleged errors in the report and discussing any policy and legal issues presented.

(c) If no written statement is made by the petitioner or by a State educational television or radio agency on the report of the hearing officer or if the Commissioner does not decide to review it, such report shall become the final administrative decision without further proceedings. If a written statement is made on the report of the hearing officer or if the Commissioner decides to review it, the Commissioner shall review the record of the proceedings and issue a decision based thereon, setting forth the grounds and reasons therefor.

(d) The Commissioner will notify each State educational television or radio agency, if any, in any State, any part of which lies within the service area of the petitioner's broadcasting station, of the filing of a petition for reconsideration under this section and each such agency will be given an opportunity to comment upon the petition. In the event the Commissioner provides a hearing with respect to an action taken under § 153.13, each such State educational television or radio agency will be given an opportunity to appear and to present relevant information and arguments. Any such agency participating in the hearing will be furnished the report of the hearing officer referred to in paragraph (b) of this section and given an