[Federal Register Volume 74, Number 150 (Thursday, August 6, 2009)]
[Rules and Regulations]
[Pages 39219-39228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18863]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[WC Docket No. 07-267; FCC 09-56]
Forbearance Procedures
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this Report and Order, the Commission adopts procedural
rules to govern petitions for forbearance filed pursuant to section 10
of the Communications Act of 1934, as amended. The Commission has found
that procedural rules are needed to specify parties' rights and
obligations with regard to such petitions. The Commission's actions are
designed to ensure that its procedures for handling forbearance
petitions are front-loaded, actively managed, transparent, and fair.
DATES: Effective September 8, 2009 except Sec. 1.54 which contains
information collection requirements that have not been approved by OMB.
The FCC will publish a document in the Federal Register announcing the
effective date for those requirements.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Interested parties may contact
Jonathan Reel, Wireline Competition Bureau, (202) 418-1580.
For additional information concerning the Paperwork Reduction Act
information collection requirements contained in this document, contact
Judith B. Herman at (202) 418-0214, or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order (Order) in WC Docket No. 07-267, FCC 09-56, adopted June 26,
2009, and released June 29, 2009. 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., 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898,
or via e-mail at http://www.bcpiweb.com. It is also available on the
Commission's Web site at http://www.fcc.gov.
Synopsis of Report and Order
1. In November 2007, the Commission released a Notice of Proposed
Rulemaking (the Forbearance Procedures NPRM) (73 FR 6888-01, February
6, 2008) initiating a rulemaking proceeding to establish procedural
rules regarding the Commission's consideration of petitions for
forbearance filed pursuant to section 10 of the Communications Act of
1934, as amended, (the Act). In this NPRM, the Commission sought
comment on measures that had been proposed in a petition filed by Covad
Communications Group, NuVox Communications, XO Communications, LLC,
Cavalier Telephone Corp., and McLeodUSA Telecommunications Services,
Inc. The Commission sought comment on, among other questions, whether
all petitions for forbearance should be complete as filed; whether a
petitioner for forbearance should have to demonstrate separately how it
has satisfied each component of the forbearance standard; and whether
the Commission must issue a written order on all forbearance
proceedings. The Commission also asked whether the forbearance process
was being used as Congress intended, how individual forbearance
proceedings relate to industry-wide proceedings, and what burdens,
including administrative and financial costs, forbearance proceedings
place on stakeholders in the industry.
2. In this Order, the Commission adopts procedural rules regarding
forbearance petitions that reflect the Commission's experience in
addressing more than 120 forbearance petitions that have been filed
under section 10 as well as the record in response to the Forbearance
Procedures NPRM. In particular, the Commission adopts rules requiring
that forbearance petitions be ``complete as filed.'' This is consistent
with the principle that whenever a petitioner files a petition for
forbearance, the petitioner bears the burden of proof with respect to
establishing that the statutory criteria for granting forbearance are
met. The Commission also adopts procedures to ensure that forbearance
petitions are addressed in a timely, equitable, and predictable manner.
Further, the Commission provides that a forbearance petition may no
longer be withdrawn or significantly narrowed by the petitioner after
the tenth business day after the due date for reply comments without
Commission authorization. These actions and the other actions in the
Order seek to implement procedures for handling forbearance petitions
in a manner that is front-loaded, actively managed, transparent, and
fair.
3. Petitions Must be Complete as Filed. In the Forbearance
Procedures NPRM, the Commission sought comment on whether forbearance
petitions should be required to be ``complete as filed.'' Here, the
Commission concludes that section 10 petitions for forbearance must be
complete as described below. Henceforth, the Commission requires
forbearance petitions to state explicitly the scope of the relief
requested; to address each prong of the statute as it applies to the
rules or provisions from which the petitioner seeks relief; to identify
any other proceedings pending before the Commission where the
petitioner speaks to the relevant issues (or declare not to have spoken
to the issue, if that is the case); and to comply with simple format
requirements intended to facilitate our and the public's review of the
petition.
4. The requirement does not prevent a petitioner from seeking
additional data from third parties. At the time of filing, forbearance
petitioners must identify the nature of the third-party information
they need, the parties they believe possess it, and how the information
relates to the petition. The requirement does not limit a petitioner's
ability to respond to arguments and data in oppositions and comments
with counter-arguments and responsive data. A petitioner may submit
substantively new material, including new
[[Page 39220]]
information, data, studies, or arguments, at the request of the
Commission, as well as in response to oppositions. The Commission may
be expected to require updated data from a petitioner prior to reaching
some determinations, and the filing requirement in no way prevents the
Commission from seeking information or clarification from any source,
or basing its forbearance decision on all timely-filed evidence.
5. Scope. A petitioner for forbearance must identify clearly in the
petition the scope of the requested relief. In particular, the petition
must state the following with specificity: (1) Each statutory
provision, rule, or requirement from which forbearance is sought; (2)
each carrier, or group of carriers, for which forbearance is sought;
(3) each service for which forbearance is sought; (4) the geographic
location, zone, or area in which forbearance is sought; and (5) any
other factor, condition, or limitation relevant to determining the
scope of the requested relief. The Commission's ability to make the
determinations within the statutory time frame required is
significantly compromised when a petition does not clearly state the
relief sought.
6. The Prima Facie Case. A petition for forbearance must include in
the petition the facts, information, data, and arguments on which the
petitioner intends to rely to make the prima facie case for
forbearance. Specifically, the prima facie case must show in detail how
each of the statutory criteria are met with regard to each statutory
provision or rule from which forbearance is sought. A petition for
forbearance must take into account relevant Commission precedent. If
the petitioner intends to rely on data or information in the possession
of third parties, the petition must identify the data or information,
and the parties that possess it, and explain the relationship of the
information to the prima facie case. When the petition is filed at the
Commission, the petitioner must provide a copy of it to each party
identified as possessing relevant data or information, and the relevant
Bureau will respond to requests for third-party discovery on a case-by-
case basis. Other than third-party information, a petition may not rely
on data or information that is not made available, without charge, to
the Commission staff and interested parties that agree to comply with
any protective orders the Commission issues in the course of the
proceeding.
7. Relevant Proceedings. A petition for forbearance must identify
any proceeding pending before the Commission in which the petitioner
has requested, or otherwise taken a position regarding, relief that is
identical to, or comparable to, the relief sought in the forbearance
petition. Alternatively, the petition must state that the petitioner
has not, in a pending proceeding, requested or otherwise taken a
position on the relief sought, if that is the case.
8. Format and Filing Requirements. Petitions for forbearance must
comply with the Commission's general filing requirements in 47 CFR
1.49. In addition, all petitions for forbearance must be e-mailed to
[email protected] at the time of filing. All filings including all
data related to a forbearance petition must be provided in a searchable
format. The steps a filer must take to ensure its submission is
searchable will vary by context. At a minimum, a party that submits
large spreadsheets of data should submit electronic copies of those
data formatted so as to allow Commission staff and other interested
parties a meaningful opportunity to analyze those data. A forbearance
petition must include (1) a plain, concise, written summary statement
of the relief sought; (2) a full statement of the petitioner's prima
facie case for relief; and (3) appendices that list (a) the scope of
relief sought, (b) all relevant data, including market analysis, and
(c) any supporting statements or affidavits.
9. Burden of Proof. The Commission concludes that the petitioner
bears the burden of proof--that is, of providing convincing analysis
and evidence to support its petition for forbearance. This has
historically been the case in American jurisprudence. The burden of
proof is on the proponent in both formal rulemaking and formal
adjudication, but the Commission considers arguments whether a
forbearance proceeding more closely resembles rulemaking or
adjudication to be largely beside the point. Whatever passing
similarity to other procedures petitions for forbearance may have, the
essential nature of a petition for forbearance is that it is a petition
for relief from regulation. The petitioner asks the Commission to
forbear from enforcing against it one or more rules or statutory
provisions, which the Commission will do if it determines that the
petition meets the statutory criteria. The Commission requires
petitioners to produce sufficient evidence and analysis to warrant the
grant of a forbearance petition, and in this order states explicitly
that the burden of proof is on forbearance petitioners at the outset
and throughout the proceeding.
10. The Commission further clarifies that the ``burden of proof''
for the purpose of forbearance proceedings encompasses both the burden
of production and the burden of persuasion. The burden of production in
this context requires that the petitioner state a complete prima facie
case in the petition, the precise requirements of which are discussed
in the ``complete as filed'' section. The burden of persuasion requires
that, in addition to stating a prima facie case, the petitioner's
evidence and analysis must withstand the evidence and analysis
propounded by those opposing the petition for forbearance. If the
petitioner does not support the case for forbearance with sufficient
evidence and persuasive arguments, the Commission cannot make an
informed and reasoned determination that the statutory criteria are
met. In determining whether a petitioner has met its burden of proof,
the totality of the record will be taken into consideration. For
example, the Commission will consider evidence filed in the record by
third parties that is favorable to the petitioner's position as part of
the petitioner's showing.
11. Transparency. After the rules adopted in this Order take
effect, the Commission will post on its web site a timeline intended to
identify the stages of review of forbearance petitions. The web page
will also contain docket numbers, contact information, and a link to
the Commission's Electronic Comment Filing System. Posting this
information will promote a better understanding of how the Commission
gives full and timely attention to the issues presented in a
forbearance petition, and will establish a framework that describes how
review of a forbearance petition should normally progress.
12. A general timeline necessarily oversimplifies the process, and
the circumstances of individual cases will differ. Internal deadlines
create no enforceable rights for private parties, and such targets
should be understood rather as goals for internal Commission action.
The timeline should therefore be viewed as a flexible tool, and the
order and timing may vary. Generally, the later stages and times are
intended to indicate procedural goals for the most complex petitions.
The statutory obligation to determine each of section 10's three prongs
takes precedence over the informal timeline, and the Commission's
failure to adhere to a benchmark is not indicative of how it will
resolve the issues raised in a proceeding.
13. Filing and Initial Review. Filing a petition starts the clock
on the statutory time limit. The Bureau will review the petition upon
receipt. A petition that on its face is incomplete or defective will be
summarily denied. As a practical
[[Page 39221]]
matter, the initial review upon filing should determine whether the
petition appears to be complete, coherent, and sufficiently specific to
serve as a basis for comment. The legal standard for summary denial is
whether the petition, viewed in the light most favorable to the
petitioner, fails to meet the requirements for forbearance specified in
the statute.
14. Summary denial on receipt gives petitioners an early
opportunity to cure and refile, and respects interested parties'
resources. Failure by the Bureau to summarily deny a petition upon
receipt does not establish or even imply that the petition is
``complete as filed.'' It merely establishes that the petitioner has
observed the filing procedures adopted today and that no fatal
insufficiency is evident upon cursory review. Threshold questions about
a petition's completeness may be sufficiently complex to require
comment and consideration.
15. Public Notice. If a petition appears to be complete and
coherent on its face, the Bureau will give public notice and post the
petition on the forbearance page of the Commission's Web site. The
notice will announce the pleading cycle, which will typically allow 30
days for comments and 15 days for replies, with longer cycles for the
more complex petitions. The Bureau may issue a protective order, as
needed. Motions for summary denial may be filed not later than the due
date for comments, to which the petitioner may file an opposition not
later than the due date for replies. In the interest of completing the
record in one cycle, and consistent with our formal complaint rules,
replies to oppositions to motions for summary denial will not be
permitted. The Commission retains the flexibility to ensure that the
time for comment on any individual forbearance petition is both
adequate and not needlessly long.
16. Motions for Summary Denial. Commenters may use motions for
summary denial to focus their attention on completeness and clarity,
and should avoid conflating these threshold issues with their
substantive arguments. A contention, for example, that a petition does
not address an issue at a sufficiently granular level to permit
meaningful analysis of whether or not the statutory criteria are met
might form the basis of a motion for summary denial. Because the
Commission expects the arguments and scope of the relief sought to vary
widely from petition to petition, the adequate granularity of data may
likewise vary, and for that reason the Commission will judge on a case-
by-case basis whether or not a petition for forbearance requires
supporting data at, for example, the wire center level. Failure by the
Bureau to deny a petition summarily does not establish that the
petition is ``complete as filed.'' Although the Bureau may grant a
motion for summary denial, it may instead use the record generated by
the motion to better understand threshold issues early in the process.
The Commission may address a motion for denial at any time, up to and
including the statutory time limit for Commission action.
17. Intermediate Period. An intermediate period consisting roughly
of months 3 through 10 follows the closing of the comment cycle. During
this period, the Bureau will consider whether to grant or deny routine
or less complex forbearance petitions that clearly meet, or clearly
fail to meet, the statutory forbearance criteria. The Commission may be
able to resolve such petitions within six months of their filing. For
more complex petitions, the Bureau may actively develop the record
where appropriate during this intermediate period, and will review
comments, analyze data, and discuss the merits of the petition with the
Commissioners and their staff.
18. Circulation and Quiet Period. The final period will generally
consist roughly of months 11 and 12 in normal cases, or months 14 and
15 if the Commission requires an extension of time. In this Order, the
Commission adopts an internal deadline of seven days prior to the
statutory deadline for voting any forbearance order, whether on
circulation or at an agenda meeting. An early vote gives a majority
that votes against the circulated draft an opportunity to draft a
replacement order prior to the statutory deadline. An early vote also
will generally ensure that the Commission will be able to make the
necessary determinations and release an order before the statutory
deadline.
19. Each step described below is calculated against the statutory
deadline, and not against the deadline for the vote, which the
Commission determines, as set forth above, should occur seven days
prior to the statutory deadline. The Bureau will circulate a draft
order addressing a complex forbearance petition no later than 28 days
prior to the statutory deadline, which is to say, 21 days prior to the
voting deadline, unless all Commissioners agree to a shorter period.
The Commission establishes a two-week quiet period before the statutory
deadline (one week before the voting deadline) for forbearance
petitions, which is analogous to the one-week quiet period before an
agenda meeting. A public notice, posted on the Web site, will announce
the beginning of the quiet period, which may occur earlier in the
proceeding in cases where the Commission does not require the full
statutory period to render a decision.
20. Withdrawal of Forbearance Petitions. The Commission concludes
that it, rather than solely the petitioner, should decide whether or
not a forbearance proceeding concludes with any action other than the
issuance of a decision by the Commission. Henceforth, for the reasons
set forth below, a petitioner may not withdraw a forbearance petition,
nor may a petitioner narrow a petition so significantly as to amount to
a withdrawal of a large portion of the forbearance relief originally
requested by the petitioner after the date that its reply comments are
due plus 10 business days, unless the Commission authorizes the
withdrawal. A petitioner is free to withdraw or narrow a petition prior
to such date. The Commission has a significant stake in the matter if
it is to maintain control over its own agenda and apportion its
resources in a way that serves the public interest. For similar
reasons, Federal Rule of Civil Procedure 41 requires a complainant to
get court permission before withdrawing a complaint if the withdrawal
comes after the filing of an answer or motion for summary judgment.
21. Permitting parties to withdraw petitions in the late stages of
a proceeding that are otherwise headed for denial could also distort
the Commission's jurisprudence. Over time, Commission precedent could
tilt toward orders that contain analysis and reasoning in support of
forbearance petitioners, and away from orders that make a case against
them. If petitioners are allowed to select the orders that the
Commission adopts, they could inadvertently or deliberately push
precedent in a direction favorable to themselves, and thus exert undue
influence on regulatory policy.
22. Application to Pending Petitions. The new complete-as-filed
rules take effect after this Order has been published in the Federal
Register and subject to approval by the Office of Management and
Budget. Other new requirements will apply to pending petitions,
including rules that require a petitioner to seek permission from the
relevant Bureau before filing new arguments or data (except in response
to new arguments or data filed by commenters, to which the petitioner
may respond by right); rules that limit when forbearance petitions may
be withdrawn or narrowed as of right; rules that limit ex parte
contacts in the final
[[Page 39222]]
weeks before a decision is due; and any other rule that ``would [not]
impair rights a party possessed when he acted, increase a party's
liability for past conduct, or impose new duties with respect to
transactions already completed.'' In contrast to the new filing
requirements, these rules do not apply to a petitioner's past actions
and thus are not directly retroactive. Thus, they will take effect 30
days after publication of this Order in the Federal Register.
Final Regulatory Flexibility Analysis, WC Docket No. 07-267
(Forbearance Petitions Procedural Rules)
23. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA) an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Notice of Proposed Rulemaking (NPRM) to this
proceeding. See 73 FR 6888-01, February 6, 2008. The Commission sought
written public comment on the proposals in the NPRM, including comment
on the IRFA. The Commission received no comment on the IRFA. This Final
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for and Objectives of the Report and Order
24. This Report and Order (Order) implements procedural rules
governing petitions for forbearance filed pursuant to sections 10 of
the Communications Act of 1934, as amended, (the Act). Pursuant to
section 10, the Commission shall forbear from applying any statutory
provision or regulation if it determines that: (1) Enforcement of the
regulation is not necessary to ensure that the telecommunications
carrier's charges, practices, classifications, or regulations are just,
reasonable, and not unjustly or unreasonably discriminatory; (2)
enforcement of the regulation is not necessary to protect consumers;
and (3) forbearance from applying such provision or regulation is
consistent with the public interest. In determining whether forbearance
is consistent with the public interest, the Commission also must
consider ``whether forbearance from enforcing the provision or
regulation will promote competitive market conditions.'' The procedural
rules adopted in this Order require that forbearance petitions must be
``complete as filed.'' The Order also clarifies that whenever a
petitioner files a petition for forbearance, the petitioner bears the
burden of proof with respect to establishing that the statutory
criteria for granting forbearance are met. The rules adopted in this
Order are needed to ensure that forbearance petitions are addressed in
a manner that is actively managed, transparent, and fair.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
25. No commenter responded directly to the IRFA. One commenter,
SBA, specifically addresses the needs of small carriers. The Commission
agrees with SBA that a complete-as-filed requirement will better enable
all interested parties to present their views before the Commission;
that establishment of a framework brings clarity to the forbearance
process; and that, when the statutory language fails to indicate
whether the petitioner must carry the burden of proof, the petitioner
has the burden of proof because it is the petitioner that is requesting
regulatory change.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
26. 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 SBA.
27. The rules and guidance adopted by this Order will concern
procedures relating to petitions for forbearance filed pursuant to
section 10 of the Act. The Commission has determined that the group of
small entities directly affected by the rules adopted herein consists
of wireline and wireless telecommunications carriers. Therefore, in the
Order, the Commission considers the impact of the rules on carriers. A
description of such small entities, as well as an estimate of the
number of such small entities, is provided below.
28. Small Businesses. Nationwide, there are a total of
approximately 22.4 million small businesses according to SBA data.
29. Small Organizations. Nationwide, there are approximately 1.6
million small organizations.
30. Small Governmental Jurisdictions. The term ``small governmental
jurisdiction'' is defined generally as ``governments of cities, towns,
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.
1. Wireline Carriers and Service Providers
31. The Commission has included small incumbent local exchange
carriers (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. The
Commission has therefore included small incumbent LECs in this RFA
analysis, although the Commission emphasizes that this RFA action has
no effect on Commission analyses and determinations in other, non-RFA
contexts.
32. Incumbent LECs. Neither the Commission nor the SBA has
developed a small business size standard specifically for incumbent
LECs. The appropriate size standard under SBA rules is for the category
Wired Telecommunications Carriers. Under that size standard, such a
business is small if it has 1,500 or fewer employees. According to
Commission data, 1,303 carriers have reported that they are engaged in
the provision of incumbent local exchange services. Of these 1,303
carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have
more than 1,500 employees. Consequently, the Commission estimates that
most providers of incumbent local exchange service are small businesses
that may be affected by our action.
33. Competitive LECs, Competitive Access Providers (CAPs),
``Shared-Tenant Service Providers,'' and ``Other Local Service
Providers.'' Neither the Commission nor the SBA has developed a small
business size standard specifically for these service providers. The
appropriate size standard under SBA rules is for the category Wired
Telecommunications Carriers. Under that size standard, such a business
is small if it has 1,500 or fewer employees. According to Commission
data, 859 carriers have reported that they are engaged in the provision
of either competitive access provider services or
[[Page 39223]]
competitive LEC services. Of these 859 carriers, an estimated 741 have
1,500 or fewer employees and 118 have more than 1,500 employees. In
addition, 16 carriers have reported that they are ``Shared-Tenant
Service Providers,'' and all 16 are estimated to have 1,500 or fewer
employees. In addition, 44 carriers have reported that they are ``Other
Local Service Providers.'' Of the 44, an estimated 43 have 1,500 or
fewer employees and one has more than 1,500 employees. Consequently,
the Commission estimates that most providers of competitive local
exchange service, competitive access providers, ``Shared-Tenant Service
Providers,'' and ``Other Local Service Providers'' are small entities.
34. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA has developed a small business size standard specifically for
providers of interexchange services. The appropriate size standard
under SBA rules is for the category Wired Telecommunications Carriers.
Under that size standard, such a business is small if it has 1,500 or
fewer employees. According to Commission data, 330 carriers have
reported that they are engaged in the provision of interexchange
service. Of these, an estimated 309 have 1,500 or fewer employees and
21 have more than 1,500 employees. Consequently, the Commission
estimates that the majority of IXCs are small entities that may be
affected by our action.
2. Wireless Telecommunications Service Providers
35. Below, for those services subject to auctions, 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.
36. Wireless Service Providers. The SBA has developed a small
business size standard for wireless firms within the two broad economic
census categories of ``Paging'' and ``Cellular and Other Wireless
Telecommunications.'' Under both SBA categories, a wireless business is
small if it has 1,500 or fewer employees. For the census category of
Paging, Census Bureau data for 2002 show that there were 807 firms in
this category 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. Thus, under this category and
associated small business size standard, the majority of firms can be
considered small. For the census category of Cellular and Other
Wireless Telecommunications, Census Bureau data for 2002 show that
there were 1,397 firms in this category 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, under this second category and size standard, the majority of
firms can, again, be considered small.
37. Cellular Licensees. The SBA has developed a small business size
standard for wireless firms within the broad economic census category
``Cellular and Other Wireless Telecommunications.'' Under this SBA
category, a wireless business is small if it has 1,500 or fewer
employees. For the census category of Cellular and Other Wireless
Telecommunications, Census Bureau data for 2002 show that there were
1,397 firms in this category 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, under this
category and size standard, the majority of firms can be considered
small. Also, according to Commission data, 437 carriers reported that
they were engaged in the provision of cellular service, Personal
Communications Service (PCS), or Specialized Mobile Radio (SMR)
Telephony services, which are placed together in the data. The
Commission has estimated that 260 of these are small under the SBA
small business size standard.
38. Paging. The SBA has developed a small business size standard
for the broad economic census category of ``Paging.'' Under this
category, the SBA deems a wireless business to be small if it has 1,500
or fewer employees. Census Bureau data for 2002 show that there were
807 firms in this category 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. In addition, according
to Commission data, 365 carriers have reported that they are engaged in
the provision of ``Paging and Messaging Service.'' Of this total, the
Commission estimates that 360 have 1,500 or fewer employees, and five
have more than 1,500 employees. Thus, in this category the majority of
firms can be considered small.
39. The Commission also notes that, in the Paging Second Report and
Order, it adopted a size standard for ``small businesses'' for purposes
of determining their eligibility for special provisions such as bidding
credits and installment payments. In this context, 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. The SBA has approved this definition. An
auction of Metropolitan Economic Area (MEA) licenses commenced on
February 24, 2000, and closed on March 2, 2000. Of the 2,499 licenses
auctioned, 985 were sold. Fifty-seven companies claiming small business
status won 440 licenses. An auction of MEA and Economic Area (EA)
licenses commenced on October 30, 2001, and closed on December 5, 2001.
Of the 15,514 licenses auctioned, 5,323 were sold. One hundred thirty-
two companies claiming small business status purchased 3,724 licenses.
A third auction, consisting of 8,874 licenses in each of 175 EAs and
1,328 licenses in all but three of the 51 MEAs commenced on May 13,
2003, and closed on May 28, 2003. Seventy-seven bidders claiming small
or very small business status won 2,093 licenses. The Commission also
notes that, currently, there are approximately 74,000 Common Carrier
Paging licenses.
40. Wireless Communications Services. 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 or less for each
of the three preceding years, and a ``very small business'' is an
entity with average gross revenues of $15 million or less 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.
41. Wireless Telephony. Wireless telephony includes cellular,
personal communications services (PCS), and specialized mobile radio
(SMR) telephony carriers. As noted earlier, the SBA has developed a
small business size standard for ``Cellular and Other Wireless
Telecommunications'' services. Under that SBA small business size
standard, a business is small if it has 1,500 or fewer employees.
According to Commission data, 432 carriers reported that they were
engaged in the provision of wireless telephony. The Commission has
estimated that 221 of these are small
[[Page 39224]]
under the SBA small business size standard.
42. 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 defined ``small entity'' for
Blocks C and F as an entity that has average gross revenues of $40
million or less in the three previous calendar years. For Block F, an
additional classification 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 standards defining ``small entity'' 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 Block C 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 re-auctioned 347 C, D, E, and F Block licenses.
There were 48 small business winning bidders. On January 26, 2001, the
Commission completed the auction of 422 C and F Broadband PCS licenses
in Auction No. 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.
43. Narrowband Personal Communications Services. The Commission
held an auction for Narrowband PCS licenses that commenced on July 25,
1994, and closed on July 29, 1994. A second auction 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 41 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 (Metropolitan Trading Areas and nationwide)
licenses. Three of these claimed status as a small or very small entity
and won 311 licenses.
44. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II licenses. Phase I licensing was conducted
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized
to operate in the 220 MHz band. The Commission has not developed a
small business size standard for small entities specifically applicable
to such incumbent 220 MHz Phase I licensees. To estimate the number of
such licensees that are small businesses, the Commission applies the
small business size standard under the SBA rules applicable to
``Cellular and Other Wireless Telecommunications'' companies. This
category provides that a small business is a wireless company employing
no more than 1,500 persons. For the census category Cellular and Other
Wireless Telecommunications, Census Bureau data for 1997 show that
there were 977 firms in this category, total, that operated for the
entire year. Of this total, 965 firms had employment of 999 or fewer
employees, and an additional 12 firms had employment of 1,000 employees
or more. Thus, under this second category and size standard, the
majority of firms can, again, be considered small. Assuming this
general ratio continues in the context of Phase I 220 MHz licensees,
the Commission estimates that nearly all such licensees are small
businesses under the SBA's small business size standard. In addition,
limited preliminary census data for 2002 indicate that the total number
of cellular and other wireless telecommunications carriers increased
approximately 321 percent from 1997 to 2002.
45. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service
has both Phase I and Phase II licenses. The Phase II 220 MHz service is
a new service and is subject to spectrum auctions. In the 220 MHz Third
Report and Order, the Commission adopted a small business size standard
for ``small'' and ``very small'' businesses for purposes of determining
their eligibility for special provisions such as bidding credits and
installment payments. This small business size standard indicates that
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. A ``very small business'' is
an entity that, together with its affiliates and controlling
principals, has average gross revenues that do not exceed $3 million
for the preceding three years. The SBA has approved these small
business size standards. Auctions of Phase II licenses commenced on
September 15, 1998, and closed on October 22, 1998. In the first
auction, 908 licenses were auctioned in three different-sized
geographic areas: three nationwide licenses, 30 Regional Economic Area
Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908
licenses auctioned, 693 were sold. Thirty-nine small businesses won
licenses in the first 220 MHz auction. The second auction included 225
licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies
claiming small business status won 158 licenses.
46. 800 MHz and 900 MHz Specialized Mobile Radio Licenses. The
Commission awards ``small entity'' and ``very small entity'' bidding
credits in auctions for Specialized Mobile Radio (SMR) geographic area
licenses in the 800 MHz and 900 MHz bands to firms that had revenues of
no more than $15 million in each of the three previous calendar years,
or that had revenues of no more than $3 million in each of the previous
calendar years, respectively. These bidding credits apply to SMR
providers in the 800 MHz and 900 MHz bands that either hold geographic
area licenses or have obtained extended implementation authorizations.
The Commission does not know how many firms provide 800 MHz or 900 MHz
geographic area SMR service pursuant to extended implementation
authorizations, nor how many of these providers have annual revenues of
no more than $15 million. One firm has over $15 million in revenues.
The Commission assumes, for purposes here, that all of the remaining
existing extended implementation authorizations are held by small
entities, as that term is defined by the SBA. The Commission has held
auctions for geographic area licenses in the 800 MHz and 900 MHz SMR
bands. There were 60 winning bidders that qualified as small or very
small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won
in the 900 MHz
[[Page 39225]]
auction, bidders qualifying as small or very small entities won 263
licenses. In the 800 MHz auction, 38 of the 524 licenses won were won
by small and very small entities.
47. 700 MHz Guard Band Licensees. In the 700 MHz Guard Band Order,
the Commission adopted 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'' as 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. An auction of 52 Major Economic Area (MEA) licenses 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 700 MHz Guard Band 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.
48. 39 GHz Service. The Commission created a special small business
size standard for 39 GHz licenses--an entity that has average gross
revenues of $40 million or less in the three previous calendar years.
An additional size standard for ``very small business'' is: an entity
that, together with affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years. The SBA has
approved these small business size standards. The auction of the 2,173
39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The
18 bidders who claimed small business status won 849 licenses.
Consequently, the Commission estimates that 18 or fewer 39 GHz
licensees are small entities that may be affected by the rules and
policies adopted herein.
49. Wireless Cable Systems. Wireless cable systems use 2 GHz band
frequencies of the Broadband Radio Service (``BRS''), formerly
Multipoint Distribution Service (``MDS''), and the Educational
Broadband Service (``EBS''), formerly Instructional Television Fixed
Service (``ITFS''), to transmit video programming and provide broadband
services to residential subscribers. These services 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. Local Multipoint Distribution Service (``LMDS'') is a fixed
broadband point-to-multipoint microwave service that provides for two-
way video telecommunications. 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, ITFS and
LMDS. Other standards also apply, as described.
50. The Commission has defined small MDS (now BRS) and LMDS
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
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.
51. 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 ITFS (or EBS) licensees, and all but 100
of the licenses are held by educational institutions. Thus, the
Commission estimates that at least 1,932 ITFS licensees are small
entities.
52. In the 1998 and 1999 LMDS auctions, the Commission defined a
small business as an entity that has annual average gross revenues of
less than $40 million in the previous three calendar years. Moreover,
the Commission added an additional classification for a ``very small
business,'' which was defined as an entity that had annual average
gross revenues of less than $15 million in the previous three calendar
years. These definitions of ``small business'' and ``very small
business'' in the context of the LMDS auctions have been approved by
the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of
the 104 auction winners, 93 claimed status as small or very small
businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based
on this information, the Commission believes that the number of small
LMDS licenses will include the 93 winning bidders in the first auction
and the 40 winning bidders in the re-auction, for a total of 133 small
entity LMDS providers as defined by the SBA and the Commission's
auction rules.
53. Local Multipoint Distribution Service. Local Multipoint
Distribution Service (LMDS) is a fixed broadband point-to-multipoint
microwave service that provides for two-way video telecommunications.
The auction of the 1,030 LMDS licenses began on February 18, 1998 and
closed on March 25, 1998. The Commission established a small business
size standard for LMDS licensees as an entity that has average gross
revenues of less than $40 million in the three previous calendar years.
An additional small business size standard for ``very small business''
was added as an entity that, together with its affiliates, has average
gross revenues of not more than $15 million for the preceding three
calendar years. The SBA has approved these small business size
standards in the context of LMDS auctions. There were 93 winning
bidders that qualified as small entities in the LMDS auctions. A total
of 93 small and very small business bidders won approximately 277 A
Block licenses and 387 B Block licenses. On March 27, 1999, the
Commission re-auctioned 161 licenses; there were 40 winning bidders.
Based on this information, the Commission concludes that the number of
small LMDS licenses consists of the 93 winning bidders in the first
auction and the 40 winning bidders in the re-auction, for a total of
133 small entity LMDS providers.
[[Page 39226]]
54. 218-219 MHz Service. The first auction of 218-219 MHz spectrum
resulted in 170 entities winning licenses for 594 Metropolitan
Statistical Area (MSA) licenses. Of the 594 licenses, 557 were won by
entities qualifying as a small business. For that auction, the small
business size standard was an entity that, together with its
affiliates, has no more than a $6 million net worth and, after federal
income taxes (excluding any carry over losses), has no more than $2
million in annual profits each year for the previous two years. In the
218-219 MHz Report and Order and Memorandum Opinion and Order, the
Commission established a small business size standard for a ``small
business'' as an entity that, together with its affiliates and persons
or entities that hold interests in such an entity and their affiliates,
has average annual gross revenues not to exceed $15 million for the
preceding three years. A ``very small business'' is defined as an
entity that, together with its affiliates and persons or entities that
holds interests in such an entity and its affiliates, has average
annual gross revenues not to exceed $3 million for the preceding three
years. The Commission cannot estimate, however, the number of licenses
that will be won by entities qualifying as small or very small
businesses under our rules in future auctions of 218-219 MHz spectrum.
55. 24 GHz--Incumbent Licensees. This analysis may affect incumbent
licensees who were relocated to the 24 GHz band from the 18 GHz band
and applicants who wish to provide services in the 24 GHz band. The
applicable SBA small business size standard is that of ``Cellular and
Other Wireless Telecommunications'' companies. This category provides
that such a company is small if it employs no more than 1,500 persons.
According to Census Bureau data for 1997, there were 977 firms in this
category, total, that operated for the entire year. Of this total, 965
firms had employment of 999 or fewer employees, and an additional 12
firms had employment of 1,000 employees or more. Thus, under this size
standard, the great majority of firms can be considered small. These
broader census data notwithstanding, the Commission believes that there
are only two licensees in the 24 GHz band that were relocated from the
18 GHz band, Teligent and TRW, Inc. It is our understanding that
Teligent and its related companies have less than 1,500 employees,
though this may change in the future. TRW is not a small entity. Thus,
only one incumbent licensee in the 24 GHz band is a small business
entity.
56. 24 GHz--Future Licensees. With respect to new applicants in the
24 GHz band, the small business size standard for ``small business'' is
an entity that, together with controlling interests and affiliates, has
average annual gross revenues for the three preceding years not in
excess of $15 million. ``Very small business'' in the 24 GHz band is an
entity that, together with controlling interests and affiliates, has
average gross revenues not exceeding $3 million for the preceding three
years. The SBA has approved these small business size standards. These
size standards will apply to the future auction, if held.
D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
57. The rules adopted in this Order require that petitions for
forbearance must be complete as filed as set forth in new section 1.54
``Petitions for forbearance must be complete as filed.'' Section 1.54
requires that petitions for forbearance must identify the requested
relief, including each provision, rule, or requirement from which
forbearance is sought; each carrier, or group of carriers, for which
forbearance is sought; each service for which forbearance is sought;
each geographic location, zone, or area for which forbearance is
sought; and any other factor, condition, or limitation relevant to
determining the scope of the requested relief. Section 1.54 also
requires that petitions for forbearance must contain facts and
arguments which, if true and persuasive, are sufficient to meet each of
the statutory criteria for forbearance and must specify how each of the
statutory criteria is met with regard to each provision or rule from
which forbearance is sought. If the petitioner intends to rely on data
or information in the possession of third parties, the petition must
identify: the nature of the data or information; the parties believed
to have or control the data or information; and the relationship of the
data or information to facts and arguments presented in the petition. A
petition for forbearance must identify any other petition, rulemaking,
or waiver proceeding pending before the Commission in which the
petitioner has requested, or otherwise taken a position regarding,
relief that is identical to, or comparable to, the relief sought in the
forbearance petition. Alternatively, the petition must declare that the
petitioner has not, in a pending proceeding, requested or otherwise
taken a position on the relief sought.
58. In addition, petitions for forbearance must comply with the
ministerial filing requirements in section 1.49. Petitions for
forbearance must be e-mailed to a temporary repository at
[email protected] at the time for filing. All filings related to a
forbearance petition, including all data, must be provided in a
searchable format. Petitions for forbearance must include: (1) A plain,
concise, written summary statement of the relief sought; (2) a full
statement of the petitioner's prima facie case for relief; (3)
appendices that list: (A) the scope of relief sought as required in
section 1.53(b); (B) all supporting data upon which the petition
intends to rely, including a market analysis; and (C) any supporting
statements or affidavits. To be searchable, a spreadsheet containing a
significant amount of data must be capable of being manipulated to
allow meaningful analysis.
E. Steps Taken To Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered
59. 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.
60. Although the Order imposes compliance or reporting
requirements, nothing in the record suggests that small carriers are
disadvantaged by the new procedural requirements. In fact, small
entities are disadvantaged by the lack of procedural rules governing
consideration of forbearance petitions, because they have had to expend
significant resources to respond to the scattershot arguments that have
been made by much larger entities that have sought and often received
forbearance in recent years. The SBA filed comments in support of the
new information requirement that petitions for forbearance must be
complete as filed.
F. Report to Congress
61. The Commission will send a copy of the Order, including this
FRFA, in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act. A copy
of the Order and FRFA (or
[[Page 39227]]
summaries thereof) will also be published in the Federal Register.
Final Paperwork Reduction Act of 1995 Analysis
62. The Report and Order contains new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995
(PRA), Public Law 104-13. It will be submitted to the Office of
Management and Budget (OMB) for review under Section 3507(d) of the
PRA. The OMB, the general public, and other Federal agencies are
invited to comment on the new and modified information collection
requirements contained in this proceeding. In addition, the Commission
notes that, pursuant to the Small Business Paperwork Relief Act of
2005, Public Law 107-198, see 44 U.S.C. 3506(c)(4) (SBPRA), the
Commission has considered how it might ``further reduce the information
collection burden for small business concerns with fewer than 25
employees.'' The Commission found that the new and modified
requirements must apply fully to small entities (as well as to others)
to protect consumers and further other goals, as described in the
Report and Order.
Congressional Review Act
63. The Commission will include a copy of this Report and Order in
a report to be sent to Congress and the Government Accountability
Office pursuant to the Congressional Review Act. See 5 U.S.C.
801(a)(1)(A).
Ordering Clauses
64. Accordingly, it is ordered, pursuant to sections 1, 4(i), 4(j),
5(c), 10, 201, and 303(r) of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j), 155(c), 160, 201, and 303(r),
that the Report and Order in WC Docket No. 07-267 is adopted, and that
part 1 of the Commission's rules, 47 CFR part 1, is amended as set
forth in Appendix B in the Report and Order.
65. It is further ordered that the rules and the requirements of
this Report and Order shall become effective September 8, 2009 except
Sec. 1.54 which contains information collection requirements that have
not been approved by OMB. The FCC will publish a document in the
Federal Register announcing the effective date for those requirements.
66. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Communications common
carriers.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 1 as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 is revised to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(j), 160,
201, 225, and 303.
0
2. Section 1.49 is amended by:
0
A. Removing the word ``and'' from paragraph (f)(1)(ii);
0
B. Removing the period at the end of paragraph (f)(1)(iii) and adding
``; and'' in its place; and
0
C. Adding paragraph (f)(1)(iv) to read as follows:
Sec. 1.49 Specifications as to pleadings and documents.
* * * * *
(f)(1) * * *
(iv) Petition for forbearance proceedings.
* * * * *
0
3. Add undesignated center heading below Sec. 1.52 to read as follows:
Forbearance Proceedings
0
4. Add new Sec. Sec. 1.54 through 1.59 to read as follows:
Sec. 1.54 Petitions for forbearance must be complete as filed.
(a) Description of relief sought. Petitions for forbearance must
identify the requested relief, including:
(1) Each statutory provision, rule, or requirement from which
forbearance is sought.
(2) Each carrier, or group of carriers, for which forbearance is
sought.
(3) Each service for which forbearance is sought.
(4) Each geographic location, zone, or area for which forbearance
is sought.
(5) Any other factor, condition, or limitation relevant to
determining the scope of the requested relief.
(b) Prima facie case. Petitions for forbearance must contain facts
and arguments which, if true and persuasive, are sufficient to meet
each of the statutory criteria for forbearance.
(1) A petition for forbearance must specify how each of the
statutory criteria is met with regard to each statutory provision or
rule, or requirement from which forbearance is sought.
(2) If the petitioner intends to rely on data or information in the
possession of third parties, the petition must identify:
(i) The nature of the data or information.
(ii) The parties believed to have or control the data or
information.
(iii) The relationship of the data or information to facts and
arguments presented in the petition.
(3) The petitioner shall, at the time of filing, provide a copy of
the petition to each third party identified as possessing data or
information on which the petitioner intends to rely.
(c) Identification of related matters. A petition for forbearance
must identify any proceeding pending before the Commission in which the
petitioner has requested, or otherwise taken a position regarding,
relief that is identical to, or comparable to, the relief sought in the
forbearance petition. Alternatively, the petition must declare that the
petitioner has not, in a pending proceeding, requested or otherwise
taken a position on the relief sought.
(d) Filing requirements. Petitions for forbearance shall comply
with the filing requirements in Sec. 1.49.
(1) Petitions for forbearance shall be e-mailed to
[email protected] at the time for filing.
(2) All filings related to a forbearance petition, including all
data, shall be provided in a searchable format. To be searchable, a
spreadsheet containing a significant amount of data must be capable of
being manipulated to allow meaningful analysis.
(e) Contents. Petitions for forbearance shall include:
(1) A plain, concise, written summary statement of the relief
sought.
(2) A full statement of the petitioner's prima facie case for
relief.
(3) Appendices that list:
(i) The scope of relief sought as required in Sec. 1.54(a);
(ii) All supporting data upon which the petition intends to rely,
including a market analysis; and
(iii) Any supporting statements or affidavits.
(f) Supplemental information. The Commission will consider further
facts and arguments entered into the record by a petitioner only:
(1) In response to facts and arguments introduced by commenters or
opponents.
(2) By permission of the Commission.
[[Page 39228]]
Sec. 1.55 Public notice of petitions for forbearance.
(a) Filing a petition for forbearance initiates the statutory time
limit for consideration of the petition.
(b) The Commission will issue a public notice when it receives a
properly filed petition for forbearance. The notice will include:
(1) A statement of the nature of the petition for forbearance.
(2) The scope of the forbearance sought and a description of the
subjects and issues involved.
(3) The docket number assigned to the proceeding.
(4) A statement of the time for filing oppositions or comments and
replies thereto.
Sec. 1.56 Motions for summary denial of petitions for forbearance.
(a) Opponents of a petition for forbearance may submit a motion for
summary denial if it can be shown that the petition for forbearance,
viewed in the light most favorable to the petitioner, cannot meet the
statutory criteria for forbearance.
(b) A motion for summary denial may not be filed later than the due
date for comments and oppositions announced in the public notice.
(c) Oppositions to motions for summary denial may not be filed
later than the due date for reply comments announced in the public
notice.
(d) No reply may be filed to an opposition to a motion for summary
denial.
Sec. 1.57 Circulation and voting of petitions for forbearance.
(a) If a petition for forbearance includes novel questions of fact,
law or policy which cannot be resolved under outstanding precedents and
decisions, the Chairman will circulate a draft order no later than 28
days prior to the statutory deadline, unless all Commissioners agree to
a shorter period.
(b) The Commission will vote on any circulated order resolving a
forbearance petition not later than seven days before the last day that
action must be taken to prevent the petition from being deemed granted
by operation of law.
Sec. 1.58 Forbearance petition quiet period prohibition.
The prohibition in Sec. 1.1203(a) on contacts with decisionmakers
concerning matters listed in the Sunshine Agenda shall also apply to a
petition for forbearance for a period of 14 days prior to the statutory
deadline under 47 U.S.C. 160(c) or as announced by the Commission.
Sec. 1.59 Withdrawal or narrowing of petitions for forbearance.
(a) A petitioner may withdraw or narrow a petition for forbearance
without approval of the Commission by filing a notice of full or
partial withdrawal at any time prior to the end of the tenth business
day after the due date for reply comments announced in the public
notice.
(b) Except as provided in paragraph (a) of this section, a petition
for forbearance may be withdrawn, or narrowed so significantly as to
amount to a withdrawal of a large portion of the forbearance relief
originally requested by the petitioner, only with approval of the
Commission.
[FR Doc. E9-18863 Filed 8-5-09; 8:45 am]
BILLING CODE 6712-01-P