[Federal Register: August 14, 2008 (Volume 73, Number 158)]
[Proposed Rules]
[Page 47568-47574]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au08-16]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 10
[PS Docket No. 07-287; FCC 08-164]
Commercial Mobile Alert System
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
[[Page 47569]]
(Commission or FCC) seeks comment on whether it should adopt rules that
require non-commercial educational (NCE) and public broadcast
television station licensees and permittees to test the equipment that
they are required to install pursuant to the rules adopted in the CMAS
Second Report and Order (FCC 08-164), which the Commission released
along with this Further Notice of Proposed Rulemaking (FNPRM). The
Commission also seeks comment on how any such testing rules should be
implemented.
DATES: Comments are due on or before September 15, 2008, and reply
comments are due on or before September 29, 2008.
ADDRESSES: The Office of the Secretary, Federal Communications
Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554.
You may submit comments, identified by PS Docket No. 07-287, by any of
the following methods:
Federal eRulemaking Portal: http://www.regulations.gov/.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Jeffery Goldthorp, Communications
Systems Analysis Division, Public Safety and Homeland Security Bureau,
Federal Communications Commission at (202) 418-1096.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's CMAS
Further Notice of Proposed Rulemaking in PS Docket No. 07-287, FCC 08-
164, adopted and released on July 8, 2008. The complete text of this
document is available for inspection and copying during normal business
hours in 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, Best Copy
and Printing, Inc., in person at 445 12th Street, SW, Room CY-B402,
Washington, DC 20554, via telephone at (202) 488-5300, via facsimile at
(202) 488-5563, or via e-mail at FCC@BCPIWEB.COM. Alternative formats
(computer diskette, large print, audio cassette, and Braille) are
available to persons with disabilities by sending an e-mail to
FCC504@fcc.gov or calling the Consumer and Governmental Affairs Bureau
at (202) 418-0530, TTY (202) 418-0432. This document is also available
on the Commission's Web site at http://www.fcc.gov.
Comment and Reply Comment Filing Instructions. Pursuant to sections
1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419,
interested parties may file comments and reply to comments on or before
the dates indicated on the first page of this document. All filings
should refer to PS Docket No. 07-287. Comments may be filed using: (1)
The Commission's Electronic Comment Filing System (ECFS), (2) the
Federal Government's eRulemaking Portal, or (3) by filing paper copies.
See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR
24121 (1998).
[dec22] Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the Web site for submitting
comments.
[dec221] For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Parties may also submit
an electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to ecfs@fcc.gov, and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
[dec221] Paper Filers: 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,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although the Commission continues to experience delays in
receiving U.S. Postal Service mail). All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
[dec221] The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 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.
[dec221] Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
[dec221] U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an e-mail to FCC504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
Initial Paperwork Reduction Act of 1995 Analysis. This FNPRM may
result in a new or modified information collection requirement. If the
Commission adopts any new or revised information collection requirement
as a result of this proceeding, the Commission will publish a notice in
the Federal Register inviting the public to comment on the new or
revised information collection requirement, as required by the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C.
3501-3520). In addition, pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the
Commission will seek specific comment on how it might ``further reduce
the information collection burden for small business concerns with
fewer than 25 employees.''
Comments and reply comments must include a short and concise
summary of the substantive discussion and questions raised in the
FNPRM. All interested parties should include the name of the filing
party and the date of the filing on each page of their comments and
reply comments. The Commission strongly encourages parties to track the
organization set forth in this FNPRM in order to facilitate our
internal review process. Comments and reply comments must otherwise
comply with section 1.48 and all other applicable sections of the
Commission's rules.
[[Page 47570]]
Synopsis of the Further Notice of Proposed Rulemaking
1. In the CMAS Second Report and Order, released concurrently with
this Further Notice of Proposed Rulemaking, the Commission took two
further steps towards the establishment of a functioning CMAS. First,
it adopted rules that require NCE and public broadcast television
station licensees and permittees ``to install necessary equipment and
technologies on, or as part of, any broadcast television digital signal
transmitter to enable the distribution of geographically targeted
alerts by commercial mobile service providers that have elected to
transmit emergency alerts * * *'' Second, the Commission implemented
section 602(f) of the WARN Act which requires the Commission to adopt
rules requiring ``technical testing for commercial mobile service
providers that elect to transmit emergency alerts and for the devices
and equipment used by such providers for transmitting such alerts.'' In
this FNPRM, the Commission seeks comment on whether it should adopt
rules that require NCE and public broadcast television station
licensees and permittees to test the equipment that the Commission has
required that they install in the CMAS Second Report and Order.
2. Initially, the Commission seeks comment on its authority to
require testing of this equipment by NCE and public broadcast
television station licensees and permittees. Does the Commission's
authority to require the testing of NCE and public broadcast television
station equipment derive directly from section 602(c) and/or 602(f) of
the WARN Act? Does it arise from some other legal authority?
3. In its recommendations, the CMSAAC noted that an important part
of a successful CMAS will be the ability to effectively test and
troubleshoot the various CMAS components and interfaces. In this
regard, the CMSAAC recommended that the Alert Gateway support several
types of testing, including functional testing for the C interface.
Accordingly, as indicated above, the Commission requires Participating
CMS providers to test CMAS alert delivery across the ``C'' interface.
The rules the Commission adopted in the CMAS Second Report and Order
require licensees and permittees of NCE and public broadcast television
stations to install necessary equipment and technologies at, or as part
of, their digital television transmitters that will provide them with
the capability to receive CMAS alerts sent from the Alert Gateway over
a secure, alternate interface and to transmit the alerts to the CMS
Provider Gateways of participating CMS providers. NCE and public
broadcast television station licensees and permittees will, in essence,
provide a redundant path by which participating CMS providers will be
able to receive geo-targeted alerts. In light of this, should they be
required to participate in CMAS testing? If so, how should this be
implemented? Should the Commission implement similar requirements as
those it has adopted for participating CMS providers in the Second
Report and Order? Should a different testing regime be implemented
given the unique characteristics of NCE/public broadcast television
stations and digital television technology? The Commission seeks
comment on all of these issues.
Initial Regulatory Flexibility Analysis
4. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this present Initial
Regulatory Flexibility Analysis (IRFA) of the possible significant
economic impact on a substantial number of small entities by the
policies and rules proposed in this FNPRM. 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 FNPRM
provided in Section IV of the item. The Commission will send a copy of
the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of
the Small Business Administration (SBA). In addition, the FNPRM and
IRFA (or summaries thereof) will be published in the Federal Register.
5. Need for, and Objectives of, the Proposed Rules. With the FNPRM,
the Federal Communications Commission (Commission) seeks comment
whether it should require non-commercial educational (NCE) and public
broadcast television station licensees and permittees to test the
``necessary equipment and technologies [that they have installed] on,
or as part of, any broadcast television digital signal transmitter to
enable the distribution of geographically targeted alerts by commercial
mobile service providers that have elected to transmit emergency
alerts.'' The Commission seeks comment on this issue in order to
satisfy the statutory requirement imposed by the WARN Act that the
Commission implement an effective Commercial Mobile Alert System
(CMAS).
6. Section 602(c) of the WARN Act requires the Commission to adopt
rules under which licensees and permittees of noncommercial educational
(NCE) broadcast stations or public broadcast stations install necessary
equipment and technologies on, or as part of, any broadcast television
digital signal transmitter to enable the distribution of geographically
targeted alerts by CMS providers that have elected to participate in
the CMAS. Further, section 602(f) of the WARN Act requires the
Commission to adopt rules for technical testing requirements for CMS
providers that elect to transmit emergency alerts and for the devices
and equipment used by such providers for transmitting such alerts. In
this FNPRM the Commission seeks comment on questions concerning the
testing obligations of NCE and public broadcast television station
licensees and permittees that have installed the equipment required by
section 602(c) of the WARN Act.
7. Legal Basis. Authority for the actions proposed in the FNPRM may
be found in sections 1, 4(i) and (o), 201, 303(r), 403, and 706 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (o),
201, 303(r), 403, and 606, as well as sections 602(a), (b), (c), (f),
603, 604 and 606 of the WARN Act.
Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply
8. 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 rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. 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).
9. Small Businesses. Nationwide, there are a total of approximately
22.4 million small businesses, according to SBA data.
10. Small Organizations. A ``small organization'' is generally
``any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.'' Nationwide, as of 2002,
there were approximately 1.6 million small organizations.
11. Small Governmental Jurisdictions. The term ``small governmental
jurisdiction'' is defined generally as ``governments of cities, towns,
[[Page 47571]]
townships, villages, school districts, or special districts, with a
population of less than fifty thousand.'' Census Bureau data for 2002
indicate that there were 87,525 local governmental jurisdictions in the
United States. The Commission estimates that, of this total, 84,377
entities were ``small governmental jurisdictions.'' Thus, the
Commission estimates that most governmental jurisdictions are small.
12. Wireless Telecommunications Carriers (except Satellite). Since
2007, the SBA has recognized wireless firms within this new, broad,
economic census category. Prior to that time, the SBA had developed a
small business size standard for wireless firms within the now-
superseded census categories of ``Paging'' and ``Cellular and Other
Wireless Telecommunications.'' Under the present and prior categories,
the SBA has deemed a wireless business to be small if it has 1,500 or
fewer employees. Because Census Bureau data are not yet available for
the new category, the Commission will estimate small business
prevalence using the prior categories and associated data. For the
first category of Paging, data for 2002 show that there were 807 firms
that operated for the entire year. Of this total, 804 firms had
employment of 999 or fewer employees, and three firms had employment of
1,000 employees or more. For the second category of Cellular and Other
Wireless Telecommunications, data for 2002 show that there were 1,397
firms that operated for the entire year. Of this total, 1,378 firms had
employment of 999 or fewer employees, and 19 firms had employment of
1,000 employees or more. Thus, using the prior categories and the
available data, the Commission estimates that the majority of wireless
firms can be considered small.
13. Cellular Radiotelephone Service. As noted, the SBA has
developed a small business size standard for small businesses in the
category ``Wireless Telecommunications Carriers (except satellite).''
Under that SBA category, a business is small if it has 1,500 or fewer
employees. Since 2007, the SBA has recognized wireless firms within
this new, broad, economic census category. Prior to that time, the SBA
had developed a small business size standard for wireless firms within
the now-superseded census categories of ``Paging'' and ``Cellular and
Other Wireless Telecommunications.'' Under the present and prior
categories, the SBA has deemed a wireless business to be small if it
has 1,500 or fewer employees. Because Census Bureau data are not yet
available for the new category, the Commission will estimate small
business prevalence using the prior categories and associated data.
14. For the first category of Paging, data for 2002 show that there
were 807 firms that operated for the entire year. Of this total, 804
firms had employment of 999 or fewer employees, and three firms had
employment of 1,000 employees or more. For the second category of
Cellular and Other Wireless Telecommunications, data for 2002 show that
there were 1,397 firms that operated for the entire year. Of this
total, 1,378 firms had employment of 999 or fewer employees, and 19
firms had employment of 1,000 employees or more. Thus, using the prior
categories and the available data, the Commission estimates that the
majority of wireless firms can be considered small.
15. Auctions. In addition, the Commission notes that, as a general
matter, the number of winning bidders that qualify as small businesses
at the close of an auction does not necessarily represent the number of
small businesses currently in service. Also, the Commission does not
generally track subsequent business size unless, in the context of
assignments or transfers, unjust enrichment issues are implicated.
16. Broadband Personal Communications Service. The broadband
Personal Communications Service (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission has created a small business
size standard for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar years.
For Block F, an additional small business size standard for ``very
small business'' was added and is defined as an entity that, together
with its affiliates, has average gross revenues of not more than $15
million for the preceding three calendar years. These small business
size standards, in the context of broadband PCS auctions, have been
approved by the SBA. No small businesses within the SBA-approved small
business size standards bid successfully for licenses in Blocks A and
B. There were 90 winning bidders that qualified as small entities in
the C Block auctions. A total of 93 ``small'' and ``very small''
business bidders won approximately 40 percent of the 1,479 licenses for
Blocks D, E, and F. On March 23, 1999, the Commission reauctioned 155
C, D, E, and F Block licenses; there were 113 small business winning
bidders. On January 26, 2001, the Commission completed the auction of
422 C and F PCS licenses in Auction 35. Of the 35 winning bidders in
this auction, 29 qualified as ``small'' or ``very small'' businesses.
Subsequent events concerning Auction 35, including judicial and agency
determinations, resulted in a total of 163 C and F Block licenses being
available for grant.
17. Narrowband Personal Communications Service. The Commission held
an auction for narrowband Personal Communications Service (PCS)
licenses that commenced on July 25, 1994, and closed on July 29, 1994.
A second commenced on October 26, 1994 and closed on November 8, 1994.
For purposes of the first two narrowband PCS auctions, ``small
businesses'' were entities with average gross revenues for the prior
three calendar years of $40 million or less. Through these auctions,
the Commission awarded a total of forty-one licenses, 11 of which were
obtained by four small businesses. To ensure meaningful participation
by small business entities in future auctions, the Commission adopted a
two-tiered small business size standard in the Narrowband PCS Second
Report and Order. A ``small business'' is an entity that, together with
affiliates and controlling interests, has average gross revenues for
the three preceding years of not more than $40 million. A ``very small
business'' is an entity that, together with affiliates and controlling
interests, has average gross revenues for the three preceding years of
not more than $15 million. The SBA has approved these small business
size standards. A third auction commenced on October 3, 2001 and closed
on October 16, 2001. Here, five bidders won 317 (MTA and nationwide)
licenses. Three of these claimed status as a small or very small entity
and won 311 licenses.
18. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission
defined ``small business'' for the wireless communications services
(WCS) auction as an entity with average gross revenues of $40 million
for each of the three preceding years, and a ``very small business'' as
an entity with average gross revenues of $15 million for each of the
three preceding years. The SBA has approved these definitions. The
Commission auctioned geographic area licenses in the WCS service. In
the auction, which commenced on April 15, 1997 and closed on April 25,
1997, there were seven bidders that won 31 licenses that qualified as
very small business entities, and one bidder that won one license that
qualified as a small business entity.
[[Page 47572]]
19. 700 MHz Guard Bands Licenses. In the 700 MHz Guard Bands Order,
the Commission adopted size standards for ``small businesses'' and
``very small businesses'' for purposes of determining their eligibility
for special provisions such as bidding credits and installment
payments. A small business in this service is an entity that, together
with its affiliates and controlling principals, has average gross
revenues not exceeding $40 million for the preceding three years.
Additionally, a ``very small business'' is an entity that, together
with its affiliates and controlling principals, has average gross
revenues that are not more than $15 million for the preceding three
years. SBA approval of these definitions is not required. An auction of
52 Major Economic Area (MEA) licenses for each of two spectrum blocks
commenced on September 6, 2000, and closed on September 21, 2000. Of
the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five
of these bidders were small businesses that won a total of 26 licenses.
A second auction of remaining 700 MHz Guard Bands licenses commenced on
February 13, 2001, and closed on February 21, 2001. All eight of the
licenses auctioned were sold to three bidders. One of these bidders was
a small business that won a total of two licenses. Subsequently, in the
700 MHz Second Report and Order, the Commission reorganized the
licenses pursuant to an agreement among most of the licensees,
resulting in a spectral relocation of the first set of paired spectrum
block licenses, and an elimination of the second set of paired spectrum
block licenses (many of which were already vacant, reclaimed by the
Commission from Nextel). A single licensee that did not participate in
the agreement was grandfathered in the initial spectral location for
its two licenses in the second set of paired spectrum blocks.
Accordingly, at this time there are 54 licenses in the 700 MHz Guard
Bands.
20. 700 MHz Band Commercial Licenses. There is 80 megahertz of non-
Guard Band spectrum in the 700 MHz Band that is designated for
commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands. With
one exception, the Commission adopted criteria for defining two groups
of small businesses for purposes of determining their eligibility for
bidding credits at auction. These two categories are: (1) ``Small
business,'' which is defined as an entity that has attributed average
annual gross revenues that do not exceed $15 million during the
preceding three years; and (2) ``very small business,'' which is
defined as an entity with attributed average annual gross revenues that
do not exceed $40 million for the preceding three years. In Block C of
the Lower 700 MHz Band (710-716 MHz and 740-746 MHz), which was
licensed on the basis of 734 Cellular Market Areas, the Commission
adopted a third criterion for determining eligibility for bidding
credits: An ``entrepreneur,'' which is defined as an entity that,
together with its affiliates and controlling principals, has average
gross revenues that are not more than $3 million for the preceding
three years. The SBA has approved these small size standards.
21. An auction of 740 licenses for Blocks C (710-716 MHz and 740-
746 MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on
August 27, 2002, and closed on September 18, 2002. Of the 740 licenses
available for auction, 484 licenses were sold to 102 winning bidders.
Seventy-two of the winning bidders claimed small business, very small
business, or entrepreneur status and won a total of 329 licenses. A
second auction commenced on May 28, 2003, and closed on June 13, 2003,
and included 256 licenses: five EAG licenses and 251 CMA licenses.
Seventeen winning bidders claimed small or very small business status
and won 60 licenses, and nine winning bidders claimed entrepreneur
status and won 154 licenses.
22. The remaining 62 megahertz of commercial spectrum is currently
scheduled for auction on January 24, 2008. As explained above, bidding
credits for all of these licenses will be available to ``small
businesses'' and ``very small businesses.''
23. Advanced Wireless Services. In the AWS-1 Report and Order, the
Commission adopted rules that affect applicants who wish to provide
service in the 1710-1755 MHz and 2110-2155 MHz bands. The Commission
did not know precisely the type of service that a licensee in these
bands might seek to provide. Nonetheless, the Commission anticipated
that the services that will be deployed in these bands may have capital
requirements comparable to those in the broadband Personal
Communications Service (PCS), and that the licensees in these bands
will be presented with issues and costs similar to those presented to
broadband PCS licensees. Further, at the time the broadband PCS service
was established, it was similarly anticipated that it would facilitate
the introduction of a new generation of service. Therefore, the AWS-1
Report and Order adopts the same small business size definition that
the Commission adopted for the broadband PCS service and that the SBA
approved. In particular, the AWS-1 Report and Order defines a ``small
business'' as an entity with average annual gross revenues for the
preceding three years not exceeding $40 million, and a ``very small
business'' as an entity with average annual gross revenues for the
preceding three years not exceeding $15 million. The AWS-1 Report and
Order also provides small businesses with a bidding credit of 15
percent and very small businesses with a bidding credit of 25 percent.
24. Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service (``BRS''), formerly known as Multipoint
Distribution Service (``MDS''), and Educational Broadband Service
(``EBS''), formerly known as Instructional Television Fixed Service
(``ITFS''), use frequencies at 2150-2162 and 2500-2690 MHz to transmit
video programming and provide broadband services to residential
subscribers. These services, collectively referred to as ``wireless
cable,'' were originally designed for the delivery of multichannel
video programming, similar to that of traditional cable systems, but
over the past several years licensees have focused their operations
instead on providing two-way high-speed Internet access services. The
Commission estimates that the number of wireless cable subscribers is
approximately 100,000 as of March 2005. As described below, the SBA
small business size standard for the broad census category of Cable and
Other Program Distribution, which consists of such entities generating
$13.5 million or less in annual receipts, appears applicable to MDS and
ITFS. Other standards also apply, as described.
25. The Commission has defined small MDS (now BRS) entities in the
context of Commission license auctions. In the 1996 MDS auction, the
Commission defined a small business as an entity that had annual
average gross revenues of less than $40 million in the previous three
calendar years. This definition of a small entity in the context of MDS
auctions has been approved by the SBA. In the MDS auction, 67 bidders
won 493 licenses. Of the 67 auction winners, 61 claimed status as a
small business. At this time, the Commission estimates that of the 61
small business MDS auction winners, 48 remain small business licensees.
In addition to the 48 small businesses that hold BTA authorizations,
there are approximately 392 incumbent MDS licensees that have gross
revenues that are not more than $40 million and are
[[Page 47573]]
thus considered small entities. MDS licensees and wireless cable
operators that did not receive their licenses as a result of the MDS
auction fall under the SBA small business size standard for Cable and
Other Program Distribution. Information available to us indicates that
there are approximately 850 of these licensees and operators that do
not generate revenue in excess of $13.5 million annually. Therefore,
the Commission estimates that there are approximately 850 small entity
MDS (or BRS) providers, as defined by the SBA and the Commission's
auction rules.
26. Educational institutions are included in this analysis as small
entities; however, the Commission has not created a specific small
business size standard for ITFS (now EBS). The Commission estimates
that there are currently 2,032 EBS licensees, and all but 100 of the
licenses are held by educational institutions. Thus, the Commission
estimates that at least 1,932 EBS licensees are small entities.
27. Common Carrier Paging. As noted, the SBA has developed a small
business size standard for wireless firms within the broad economic
census category of ``Wireless Telecommunications Carriers (except
Satellite).'' Under this category, the SBA deems a business to be small
if it has 1,500 or fewer employees. Since 2007, the SBA has recognized
wireless firms within this new, broad, economic census category. Prior
to that time, the SBA had developed a small business size standard for
wireless firms within the now-superseded census categories of
``Paging'' and ``Cellular and Other Wireless Telecommunications.''
Under the present and prior categories, the SBA has deemed a wireless
business to be small if it has 1,500 or fewer employees. Because Census
Bureau data are not yet available for the new category, the Commission
will estimate small business prevalence using the prior categories and
associated data. For the first category of Paging, data for 2002 show
that there were 807 firms that operated for the entire year. Of this
total, 804 firms had employment of 999 or fewer employees, and three
firms had employment of 1,000 employees or more. For the second
category of Cellular and Other Wireless Telecommunications, data for
2002 show that there were 1,397 firms that operated for the entire
year. Of this total, 1,378 firms had employment of 999 or fewer
employees, and 19 firms had employment of 1,000 employees or more.
Thus, using the prior categories and the available data, the Commission
estimates that the majority of wireless firms can be considered small.
Thus, under this category, the majority of firms can be considered
small.
28. In the Paging Third Report and Order, the Commission developed
a small business size standard for ``small businesses'' and ``very
small businesses'' for purposes of determining their eligibility for
special provisions such as bidding credits and installment payments. A
``small business'' is an entity that, together with its affiliates and
controlling principals, has average gross revenues not exceeding $15
million for the preceding three years. Additionally, a ``very small
business'' is an entity that, together with its affiliates and
controlling principals, has average gross revenues that are not more
than $3 million for the preceding three years. The SBA has approved
these small business size standards. An auction of Metropolitan
Economic Area licenses commenced on February 24, 2000, and closed on
March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-
seven companies claiming small business status won. Also, according to
Commission data, 365 carriers reported that they were engaged in the
provision of paging and messaging services. Of those, the Commission
estimates that 360 are small, under the SBA-approved small business
size standard.
29. Wireless Communications Service. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses. The Commission established small business size standards for the
wireless communications services (WCS) auction. A ``small business'' is
an entity with average gross revenues of $40 million for each of the
three preceding years, and a ``very small business'' is an entity with
average gross revenues of $15 million for each of the three preceding
years. The SBA has approved these small business size standards. The
Commission auctioned geographic area licenses in the WCS service. In
the auction, there were seven winning bidders that qualified as ``very
small business'' entities, and one that qualified as a ``small
business'' entity.
30. Wireless Communications Equipment Manufacturers. While these
entities are merely indirectly affected by the Commission's action, the
Commission is describing them to achieve a fuller record. The Census
Bureau defines this category as follows: ``This industry comprises
establishments primarily engaged in manufacturing radio and television
broadcast and wireless communications equipment. Examples of products
made by these establishments are: transmitting and receiving antennas,
cable television equipment, GPS equipment, pagers, cellular phones,
mobile communications equipment, and radio and television studio and
broadcasting equipment.'' The SBA has developed a small business size
standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: all such firms having
750 or fewer employees. According to Census Bureau data for 2002, there
were a total of 1,041 establishments in this category that operated for
the entire year. Of this total, 1,010 had employment of under 500, and
an additional 13 had employment of 500 to 999. Thus, under this size
standard, the majority of firms can be considered small.
31. Software Publishers. While these entities are merely indirectly
affected by the Commission's action, the Commission is describing them
to achieve a fuller record. These companies may design, develop or
publish software and may provide other support services to software
purchasers, such as providing documentation or assisting in
installation. The companies may also design software to meet the needs
of specific users. The SBA has developed a small business size standard
of $23 million or less in average annual receipts for the category of
Software Publishers. For Software Publishers, Census Bureau data for
2002 indicate that there were 6,155 firms in the category that operated
for the entire year. Of these, 7,633 had annual receipts of under $10
million, and an additional 403 firms had receipts of between $10
million and $24,999,999. For providers of Custom Computer Programming
Services, the Census Bureau data indicate that there were 32,269 firms
that operated for the entire year. Of these, 31,416 had annual receipts
of under $10 million, and an additional 565 firms had receipts of
between $10 million and $24,999,999. Consequently, the Commission
estimates that the majority of the firms in this category are small
entities that may be affected by the Commission's action.
32. NCE and Public Broadcast Stations. The Census Bureau defines
this category as follows: ``This industry comprises establishments
primarily engaged in broadcasting images together with sound. These
establishments operate television broadcasting studios and facilities
for the programming and transmission of programs to the public.'' The
SBA has created a small business size standard for Television
Broadcasting entities, which is: such firms having $13 million or less
in annual receipts. According to Commission staff review of the BIA
[[Page 47574]]
Publications, Inc., Master Access Television Analyzer Database as of
May 16, 2003, about 814 of the 1,220 commercial television stations in
the United States had revenues of $12 (twelve) million or less. The
Commission notes, however, that in assessing whether a business concern
qualifies as small under the above definition, business (control)
affiliations must be included. The Commission's estimate, therefore,
likely overstates the number of small entities that might be affected
by the Commission's action, because the revenue figure on which it is
based does not include or aggregate revenues from affiliated companies.
33. In addition, an element of the definition of ``small business''
is that the entity not be dominant in its field of operation. The
Commission is unable at this time to define or quantify the criteria
that would establish whether a specific television station is dominant
in its field of operation. Accordingly, the estimate of small
businesses to which rules may apply do not exclude any television
station from the definition of a small business on this basis and are
therefore over-inclusive to that extent. Also as noted, an additional
element of the definition of ``small business'' is that the entity must
be independently owned and operated. The Commission notes that it is
difficult at times to assess these criteria in the context of media
entities and its estimates of small businesses to which they apply may
be over-inclusive to this extent. There are also 2,117 low power
television stations (LPTV). Given the nature of this service, the
Commission will presume that all LPTV licensees qualify as small
entities under the above SBA small business size standard.
34. The Commission has, under SBA regulations, estimated the number
of licensed NCE television stations to be 380. The Commission notes,
however, that, in assessing whether a business concern qualifies as
small under the above definition, business (control) affiliations must
be included. The Commission's estimate, therefore, likely overstates
the number of small entities that might be affected by the Commission's
action, because the revenue figure on which it is based does not
include or aggregate revenues from affiliated companies. The Commission
does not compile and otherwise does not have access to information on
the revenue of NCE stations that would permit it to determine how many
such stations would qualify as small entities.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
35. There are potential reporting or recordkeeping requirements
proposed in this FNPRM. For example, any testing regime will entail
some form of record keeping. The FNPRM also seeks comment on potential
testing procedures for the CMAS that could affect CMS providers as well
as Wireless Communications Equipment Manufacturers. The proposals set
forth in the FNPRM are intended to advance the Commission's public
safety mission and establish an effective CMAS in a manner that imposes
minimal regulatory burdens on affected entities.
Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
36. The RFA requires an agency to describe any significant
alternatives that it has considered in developing its 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 and reporting requirements under the rule for such 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
such small entities.''
37. As noted in paragraph 1 above, this FNPRM seeks comment on the
narrow question of whether the Commission should require NCE and public
broadcasting television licensees and permittees to test any equipment
that they are required to install pursuant to section 602(c) of the
WARN Act. In commenting on this question, commenters are invited to
propose steps that the Commission may take to minimize any significant
economic impact on small entities. When considering proposals made by
other parties, commenters are invited to propose significant
alternatives that serve the goals of these proposals.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
38. None.
Ex Parte Rules
39. These matters shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules. Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentations must contain summaries of the substance
of the presentations and not merely a listing of the subjects
discussed. More than a one or two sentence description of the views and
arguments presented is generally required. Other requirements
pertaining to oral and written presentations are set forth in section
1.1206(b) of the Commission's rules.
Ordering Clauses
40. It is ordered, that pursuant to sections 1, 4(i) and (o), 201,
303(r), 403, and 706 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and 606, as well as by
sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act, this
Further Notice of Proposed Rulemaking is hereby adopted.
41. It is further ordered that the Commission's Consumer and
Government Affairs Bureau, Reference Information Center, shall send a
copy of this Further Notice of Proposed Rulemaking, including the
Initial Regulatory Flexibility Analysis, to the Chief Council for
Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-18143 Filed 8-13-08; 8:45 am]
BILLING CODE 6712-01-P