[Federal Register: March 13, 2003 (Volume 68, Number 49)]
[Proposed Rules]
[Page 12020-12023]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13mr03-27]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[CC Docket No. 96-45; FCC 03-13]
Federal-State Joint Board on Universal Service
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rule.
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SUMMARY: In this document, the Commission seeks comment on the
Recommended Decision of the Federal-State Joint Board on Universal
Service (Joint Board) regarding the definition of services supported by
universal service. In its Recommended Decision, the Joint Board
generally recommended that the Commission not modify the existing list
of services supported by universal service. The Joint Board was unable
to reach agreement, however, on whether equal access to interexchange
service (equal access) satisfies the statutory criteria contained in
the Communications Act of 1934, as amended, and should be added to the
list of supported services. The Commission seeks comment regarding the
Joint Board's recommendations and positions.
DATES: Comments are due on or before April 14, 2003. Reply comments are
due on or before April 28, 2003.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Suite TW-A325, Marlene H. Dortch, Office of the Secretary, Washington,
DC, 20554. See SUPPLEMENTARY INFORMATION for further filing
instructions.
FOR FURTHER INFORMATION CONTACT: Katherine Tofigh, Attorney or Diane
Law Hsu, Deputy Division Chief, Wireline Competition Bureau,
Telecommunications Access Policy Division, (202) 418-7400.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking in CC Docket No. 96-45 released on February 25,
2003. The full text of this document is available for public inspection
during regular business hours in the FCC Reference Center, Room CY-
A257, 445 Twelfth Street, SW., Washington, DC 20554.
I. Notice of Proposed Rulemaking
1. In this Notice of Proposed Rulemaking (NPRM), we seek comment on
the Recommended Decision of the Federal-State Joint Board on Universal
Service (Joint Board) regarding the definition of services supported by
universal service. A copy of the Recommended Decision can be found at
17 FCC Rcd 14095 (Wir. Com. Bur. rel. Jul. 10, 2002). In its
Recommended Decision, the Joint Board generally recommended that the
Commission not modify the existing list of services supported by
universal service. The Joint Board was unable to reach agreement,
however, on whether equal access to interexchange service (equal
access) satisfies the statutory criteria contained in section 254(c) of
the Communications Act of 1934, as amended (the Act), and should be
added to the list of supported services. We seek comment regarding the
Joint Board's recommendations and positions.
II. Procedural Issues
A. Ex Parte Presentations
2. This is a permit but disclose rulemaking proceeding. Ex parte
presentations are permitted, except during the Sunshine Agenda period,
as long as they are disclosed as provided in the Commission's rules.
B. Initial Paperwork Reduction Act Analysis
3. This NPRM may modify an information collection. As part of a
continuing effort to reduce paperwork burdens, we invite the general
public and the Office of Management and Budget (OMB) to take this
opportunity to comment on the information collections contained in this
NPRM, as required by the Paperwork Reduction Act of 1995, Public Law
104-13. Public and agency comments are due at the same time as other
comments on this NPRM; OMB comments are due May 12, 2003. Comments
should address: (a) Whether the proposed collection of information is
necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
C. Initial Regulatory Flexibility Analysis
4. As required by the Regulatory Flexibility Act (RFA), the
Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities by
the policies and rules proposed in this NPRM. Written public comments
are requested on this IRFA. Comments must be identified as responses to
the IRFA and must be filed by the deadlines for comments on the NPRM
provided. The Commission will send a copy of the NPRM, including this
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration. In addition, the NPRM and IRFA (or summaries thereof)
will be published in the Federal Register.
D. Need for and Objectives of the Proposed Rules
5. Pursuant to section 254(c) of the Act, the Joint Board on
Universal Service may periodically make recommendations to modify the
list of supported services, in order to take account for advances in
telecommunications and information technologies and services. On
December 21, 2000, the Commission requested the Joint Board to review
the definition of universal service and make recommendations regarding
whether modifications to the definition are warranted. The Joint Board
subsequently released a public notice seeking comment on the services,
if any, that should be added to or removed from the list of core
services. On July 10, 2002, the Joint Board released its
recommendations regarding the list of services supported by universal
service. The NPRM seeks comment on the Joint Board's recommendations.
1. Legal Basis
6. The legal basis as proposed for this NPRM is contained in
Sec. Sec. 4(i), 4(j), 201-205, 214, 254, and 403 of the Communications
Act of 1934, as amended.
2. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules will Apply
7. The RFA directs agencies to provide a description of, and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed modifications to the definition of universal
services. To
[[Page 12021]]
estimate the number of small entities that could be affected by these
proposed modifications to the Commission's rules, we first consider the
statutory definition of ``small entity'' under the RFA. The RFA defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small business
concern'' under the Small Business Act. A small business concern is one
that: (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).
8. We have included small incumbent LECs in this present RFA
analysis. As noted above, a ``small business'' under the RFA is one
that, inter alia, meets the pertinent small business size standard
(e.g., a telephone communications business having 1,500 or fewer
employees), and ``is not dominant in its field of operation.'' The
SBA's Office of Advocacy contends that, for RFA purposes, small
incumbent LECs are not dominant in their field of operation because any
such dominance is not ``national'' in scope. We have therefore included
small incumbent LECs in this RFA analysis, although we emphasize that
this RFA action has no effect on Commission analyses and determinations
in other, non-RFA contexts.
9. The most reliable source of information regarding the total
numbers of common carrier and related providers nationwide, including
the numbers of commercial wireless entities, appears to be data the
Commission publishes annually in its Trends in Telephone Service
report. These carriers include, inter alia, incumbent local exchange
carriers, competitive local exchange carriers, competitive access
providers, interexchange carriers, other wireline carriers and service
providers (including shared-tenant service providers and private
carriers), operator service providers, pay telephone operators,
providers of telephone toll service, wireless carriers and services
providers, and resellers.
10. Total Number of Telephone Companies Affected. The United States
Bureau of the Census (the ``Census Bureau'') reports that, at the end
of 1997, there were 6,239 firms engaged in providing telephone
services, as defined therein. This number contains a variety of
different categories of carriers, including local exchange carriers,
interexchange carriers, competitive access providers, cellular
carriers, mobile service carriers, operator service providers, pay
telephone operators, PCS providers, covered SMR providers, and
resellers. It seems certain that some of those 6,239 telephone service
firms may not qualify as small entities because they are not
``independently owned and operated.'' For example, a PCS provider that
is affiliated with an interexchange carrier having more than 1,500
employees would not meet the definition of a small business. It is
reasonable to conclude, therefore, that 6,239 or fewer telephone
service firms are small entity telephone service firms that may be
affected by the decisions proposed in this NPRM.
11. Local Exchange Carriers and Competitive Access Providers.
Neither the Commission nor the SBA has developed a definition for small
providers of local exchange services. The closest applicable definition
under the SBA rules is for wired telecommunications carriers. This
provides that a wired telecommunications carrier is a small entity if
it employs no more than 1,500 employees. According to the most recent
Commission data there are 1,619 local services providers with 1,500 or
fewer employees. Because it seems certain that some of these carriers
are not independently owned and operated, we are unable at this time to
estimate with greater precision the number of these carriers that would
qualify as small business concerns under SBA's definition. Of the 1,619
local service providers, 1,024 are incumbent local exchange carriers,
411 are Competitive Access Providers (CAPs) and Competitive Local
Exchange Carriers (CLECs), 131 are resellers and 53 are other local
exchange carriers. Consequently, we estimate that fewer than 1,619
providers of local exchange service are small entities or small
incumbent local exchange carriers that may be affected.
12. Interexchange Carriers. Neither the Commission nor the SBA has
developed a definition of small entities specifically applicable to
providers of interexchange services (IXCs). The closest applicable
definition under the SBA rules is for wired telecommunications
carriers. This provides that a wired telecommunications carrier is a
small entity if it employs no more than 1,500 employees. According to
the most recent Commission data regarding the number of these carriers
nationwide of which we are aware appears, there are 181 IXCs with 1,500
or fewer employees. Because it seems certain that some of these
carriers are not independently owned and operated, we are unable at
this time to estimate with greater precision the number of these
carriers that would qualify as small business concerns under SBA's
definition. Consequently, we estimate that there are fewer than 181
small entity IXCs that may be affected by the proposals in the NPRM.
13. Operator Service Providers, Prepaid Calling Card Providers,
Satellite Service Carriers, Toll Resellers, Other Toll Carriers, and
Payphone Providers. Neither the Commission nor SBA has developed a
definition particular to operator service providers (OSPs), prepaid
calling card providers, satellite service carriers, toll resellers,
other toll carriers, or payphone providers. The closest applicable
definition for these carrier-types under SBA rules is for telephone
communications companies other than radiotelephone (wireless)
companies. The most reliable source of information regarding the number
of these carriers nationwide of which we are aware appears to be the
data that we collect annually on the Form 499-A. According to our most
recent data, there are 20 OSPs, 31 prepaid calling card providers, 25
satellite service carriers, 538 toll resellers, 37 other toll carriers,
and 933 payphone providers that have 1,500 of fewer employees. Although
it seems certain that some of these carriers are not independently
owned and operated, we are unable at this time to estimate with greater
precision the number of these carriers that would qualify as small
business concerns under SBA's definition. Consequently, we estimate
that there are fewer than 20 OSPs, 31 prepaid calling card providers,
25 satellite service carriers, 538 toll resellers, 37 other toll
carriers, and 933 payphone providers may be affected by the decisions
and rules adopted in this NPRM.
14. Cellular and Wireless Telephony. Neither the Commission nor the
SBA has developed a definition of small entities specifically for
wireless telephony. The closest definition is the SBA definition for
cellular and other wireless telecommunications. Under this definition,
a cellular licensee is a small entity if it employs no more than 1,500
employees. According to the most recent Commission data, 858 providers
classified themselves as providers of wireless telephony, including
cellular telecommunications, Personal Communications Service, and
Specialized Mobile Radio (SMR) Telephony Carriers. 291 providers report
having 1,500 or fewer employees. We do not have data specifying the
number of these carriers that are not independently owned and operated,
and thus are unable at this time to estimate with greater precision the
number of cellular service carriers that would qualify as small
business concerns
[[Page 12022]]
under the SBA's definition. Consequently, we estimate that there are
fewer than 291 wireless telephony carriers that may be affected.
15. Other Wireless Services. Neither the Commission nor the SBA has
developed a definition of small entities specifically applicable to
wireless services other than wireless telephony. The closest applicable
definition under the SBA rules is again that of cellular and other
wireless telecommunications, under which a service provider is a small
entity if it employs no more than 1,500 employees. According to the
most recent Commission data, 884 providers with 1,500 of fewer
employees classified themselves as paging services, SMR dispatch,
wireless data carriers, or other mobile service providers. We do not
have data specifying the number of these carriers that are not
independently owned and operated, and thus are unable at this time to
estimate with greater precision the number of wireless service
providers that would qualify as small business concerns under the SBA's
definition. Consequently, we estimate that there are fewer than 884
wireless service providers that may be affected.
3. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
16. Should the Commission decide to revise the definition of
universal service, the associated rule changes could modify the
reporting and recordkeeping requirements of some telecommunications
service providers regulated under the Communications Act.
17. Section 254(e) states that only eligible telecommunications
carriers (ETCs) designated pursuant to section 214(e) shall be eligible
to receive Federal universal service support. In order to be designated
an ETC, a carrier must throughout its service area ``offer the services
that are supported by Federal universal service support mechanisms
under section 254(c).'' Carriers generally apply to their state
commission for designation as carriers eligible to receive universal
service support, but seek designation from the Commission if they are
not subject to the jurisdiction of the state commission. If the
definition of supported services is modified, service provides may be
required to verify to either the state or Commission that any services
added to the definition of universal service are offered throughout
their service areas and that they advertise the availability of such
services. Entities, especially small businesses, are encouraged to
quantify the cost of compliance for reporting possible additions to the
list of supported services.
18. In addition, ETCs may only use support ``for the provision,
maintenance, and upgrading of facilities and services'' for supported
services. Pursuant to this rule, state regulatory commissions provide
the Commission with annual certifications indicating that ETCs in their
states receiving federal universal service support will use the support
only for its intended purposes. Carriers not subject to the
jurisdiction of the state must submit a sworn affidavit to the
Commission stating that they will use the support only for its intended
purposes. Entities, especially small businesses, are encouraged to
quantify the cost of compliance for certifying possible additions to
the list of supported services.
4. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
19. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
20. As discussed previously, this NPRM seeks comment on the Joint
Board's recommendations regarding the definition of universal service.
The Joint Board determined that the current list of core services
continue to satisfy the criteria outlined in section 254(c) and
recommended that the Commission retain the existing services. For most
of the additional services under consideration, the Joint Board
recommended that the Commission not expand the existing definition of
services that are supported by federal universal service. The Joint
Board, however, was unable to reach agreement on whether equal access
satisfies the statutory criteria contained in section 254(c) of the
Act.
21. Should the definition of universal service be modified, we seek
comment on how to reduce the administrative burden and cost of
compliance for small telecommunications service providers with respect
to each of the proposals. We particularly seek comment from carriers
that are ``small business concerns'' under the Small Business Act.
5. Federal Rules that May Duplicate, Overlap, or Conflict with the
Proposed Rules
22. None.
E. Comment Filing Procedures
23. We invite comment on the issues and questions set forth in the
Notice of Proposed Rulemaking and Initial Regulatory Flexibility
Analysis contained herein. Pursuant to applicable procedures set forth
in Sec. Sec. 1.415 and 1.419 of the Commission's rules, interested
parties may file comments on or before April 14, 2003; and reply
comments on or before April 28, 2003. All filings should refer to CC
Docket No. 96-45. Comments may be filed using the Commission's
Electronic Comment Filing System (ECFS) or by filing paper copies.
24. Comments filed through ECFS can be sent as an electronic file
via the Internet to <http://www.fcc.gov/e-file/ecfs.html.
via the Internet to www.fcc.gov/e-file/ecfs.html.
Generally, only one copy of an electronic submission must be filed. In
completing the transmittal screen, commenters should include their full
name, Postal Service mailing address, and the applicable docket number,
which in this instance is CC Docket No. 96-45. Parties may also submit
an electronic comment by Internet e-mail. To receive filing
instructions for e-mail comments, commenters should send an e-mail to
ecfs@fcc.gov, and should include the following words in the body of the
message: get form . A sample form and
directions will be sent in reply.
25. Parties who choose to file by paper must file an original and
four copies of each filing. If more than one docket or rulemaking
number appears in the caption of this proceeding, commenters must
submit two additional copies for each additional docket or rulemaking
number. Parties who choose to file by paper are hereby notified that
effective December 18, 2001, the Commission's contractor, Vistronix,
Inc., will receive hand-delivered or messenger-delivered paper filings
for the Commission's Secretary at a new location in downtown
Washington, DC. The address is 236 Massachusetts Avenue, NE., Suite
110, Washington, DC 20002. The filing hours at this location will be 8
a.m. to 7 p.m. All hand deliveries must be held together with rubber
bands or fasteners. Any envelopes must be disposed of before entering
the building. This facility is the only location where hand-delivered
or messenger-delivered paper filings for
[[Page 12023]]
the Commission's Secretary will be accepted. Accordingly, the
Commission will no longer accept these filings at 9300 East Hampton
Drive, Capitol Heights, MD 20743. Other messenger-delivered documents,
including documents sent by overnight mail (other than United States
Postal Service (USPS) Express Mail and Priority Mail), must be
addressed to 9300 East Hampton Drive, Capitol Heights, MD 20743. This
location will be open 8 a.m. to 5:30 p.m. The USPS first-class mail,
Express Mail, and Priority Mail should continue to be addressed to the
Commission's headquarters at 445 12th Street, SW., Washington, DC
20554. The USPS mail addressed to the Commission's headquarters
actually goes to our Capitol Heights facility for screening prior to
delivery at the Commission.
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If you are sending this type of document It should be addressed for
or using this delivery method. . . delivery to. . .
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Hand-delivered or messenger-delivered 236 Massachusetts Avenue,
paper filings for the Commission's NE., Suite 110, Washington,
Secretary. DC 20002 (8 a.m. to 7
p.m.).
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Other messenger-delivered documents, 9300 East Hampton Drive,
including documents sent by overnight Capitol Heights, MD 20743
mail (other than United States Postal (8 a.m. to 5:30 p.m.).
Service Express Mail and Priority Mail).
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United States Postal Service first-class 445 12th Street, SW.,
mail, Express Mail, and Priority Mail. Washington, DC 20554
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All filings must be sent to the Commission's Secretary: Marlene H.
Dortch, Office of the Secretary, Federal Communications Commission, 445
12th Street, SW., Suite TW-A325, Washington, DC 20554.
26. Parties who choose to file by paper should also submit their
comments on diskette to Sheryl Todd, Telecommunications Access Policy
Division, Wireline Competition Bureau, Federal Communications
Commission, 445 12th Street, SW., Room 5-B540, Washington, DC 20554.
Such a submission should be on a 3.5 inch diskette formatted in an IBM
compatible format using Microsoft Word or compatible software. The
diskette should be accompanied by a cover letter and should be
submitted in ``read only'' mode. The diskette should be clearly labeled
with the commenter's name, proceeding (including the docket number, in
this case, CC Docket No. 96-45), type of pleading (comment or reply
comment), date of submission, and the name of the electronic file on
the diskette. The label should also include the following phrase ``Disk
Copy--Not an Original.'' Each diskette should contain only one party's
pleading, preferably in a single electronic file. In addition,
commenters must send diskette copies to the Commission's copy
contractor, Qualex International, Portals II, 445 12th Street, SW.,
Room CY-B402, Washington, DC 20554.
27. Regardless of whether parties choose to file electronically or
by paper, parties should also file one copy of any documents filed in
this docket with the Commission's copy contractor, Qualex
International, Inc., Portals II, 445 12th Street, SW., Room CY-B402,
Washington, DC 20554. Comments and reply comments will be available for
public inspection during regular business hours in the FCC Reference
Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. In
addition, the full text of this document is available for public
inspection and copying during regular business hours at the FCC
Reference Information Center, Portals II, 445 12th Street, SW., Room
CY-A257, Washington, DC, 20554. This document may also be purchased
from the Commission's duplicating contractor, Qualex International,
Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail
qualexint@aol.com.
28. Comments and reply comments must include a short and concise
summary of the substantive arguments raised in the pleading. Comments
and reply comments must also comply with Sec. 1.49 and all other
applicable sections of the Commission's rules. We direct all interested
parties to include the name of the filing party and the date of the
filing on each page of their comments and reply comments. All parties
are encouraged to utilize a table of contents, regardless of the length
of their submission. We also strongly encourage parties to track the
organization set forth in the NPRM in order to facilitate our internal
review process.
F. Further Information
29. Alternative formats (computer diskette, large print, audio
recording, and Braille) are available to persons with disabilities by
contacting Brian Millin at (202) 418-7426 voice, (202) 418-7365 TTY, or
bmillin@fcc.gov. This NPRM can also be downloaded in Microsoft Word and
ASCII formats at http://www.fcc.gov/ccb/universal_service/highcost.
ASCII formats at http://www.fcc.gov/ccb/universal_service/highcost.
III. Ordering Clauses
30. Accordingly, it is ordered that, pursuant to the authority
contained in sections 4(i), 4(j), 201-205, 214, 254, and 403 of the
Communications Act of 1934, as amended, this Notice of Proposed
Rulemaking is adopted.
31. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
List of Subjects in 47 CFR Part 54
Reporting and recordkeeping requirements, Telecommunications,
Telephone.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-6092 Filed 3-12-03; 8:45 am]
BILLING CODE 6712-01-P