[Federal Register Volume 75, Number 98 (Friday, May 21, 2010)]
[Proposed Rules]
[Pages 28517-28540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12142]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 17
[WT Docket No. 10-88; RM 11349; FCC 10-53]
2004 and 2006 Biennial Regulatory Reviews--Streamlining and Other
Revisions of the Commission's Rules Governing Construction, Marking and
Lighting of Antenna Structures; Amendments To Modernize and Clarify the
Commission's Rules Concerning Construction, Marking and Lighting of
Antenna Structures
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this Notice of Proposed Rulemaking (NPRM), the Commission
seeks comment on revisions to the Commission's rules governing the
construction, marking, and lighting of antenna structures. The
Commission initiates this proceeding to update and modernize the
Commission's rules.
DATES: Interested parties may file comments on or before July 20, 2010,
and reply comments on or before August 19, 2010. Written comments on
the Paperwork Reduction Act proposed information collection
requirements must be submitted by the public, Office of Management and
Budget (OMB), and other interested parties on or before July 20, 2010.
ADDRESSES: You may submit comments, identified by WT Docket No. 10-88;
RM 11349; FCC 10-53, 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.
Mail: 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.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: fcc.gov">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.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act information collection
requirements contained herein should be submitted to the Federal
Communications Commission via e-mail to fcc.gov">PRA@fcc.gov and to Nicholas A.
Fraser, Office of Management and Budget, via e-mail to [email protected] or via fax at 202-395-5167.
FOR FURTHER INFORMATION CONTACT: John Borkowski, Wireless
Telecommunications Bureau, (202) 418-0626, e-mail
fcc.gov">John.Borkowski@fcc.gov. For additional information concerning the
Paperwork Reduction Act information collection requirements contained
in this document, send an e-mail to fcc.gov">PRA@fcc.gov or contact Judith B.
Herman at 202-418-0214 or via the Internet at fcc.gov">Judith-B.Herman@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking in WT Docket No. 10-88; RM 11349; FCC 10-53,
adopted April 12, 2010, and released on April 20, 2010. The full text
of the NPRM is available for public inspection and copying during
business hours in the FCC Reference Information Center, Portals II, 445
12th Street, SW., Room CY-A257, Washington, DC 20554. It also may be
purchased from the Commission's duplicating contractor at Portals II,
445 12th Street, SW., Room CY-B402, Washington, DC 20554; the
contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-
3160, facsimile (202) 488-5563, or e-mail [email protected]. Copies of
[[Page 28518]]
the public notice also may be obtained via the Commission's Electronic
Comment Filing System (ECFS) by entering the docket number WT Docket
No. 10-88. Additionally, the complete item is available on the Federal
Communications Commission's Web site at http://www.fcc.gov.
Synopsis of the Notice of Proposed Rulemaking
I. Introduction
1. In this Notice of Proposed Rulemaking (NPRM), the Commission
seeks comment on revisions to the Commission's part 17 rules governing
the construction, marking, and lighting of antenna structures. The
Commission initiates this proceeding to update and modernize the part
17 rules. These proposed revisions are intended to improve compliance
with these rules and allow the Commission to enforce them more
effectively, helping to better ensure the safety of pilots and aircraft
passengers nationwide. These proposed revisions would also remove
outdated and burdensome requirements without compromising the
Commission's statutory responsibility to prevent antenna structures
from being hazards or menaces to air navigation.
II. Discussion
2. This NPRM proposes amendments to the part 17 rules to update and
modernize them, including harmonizing them with Federal Aviation
Administration (FAA) rules where appropriate. The following discussion
will examine the entirety of part 17, considering: (1) Antenna
structure registration and marking and lighting specifications; (2)
maintenance of marking and lighting; and (3) other matters.
A. Antenna Structure Registration and Marking and Lighting
Specifications
1. Provisions Governing Specification of Marking and Lighting
3. The provisions governing specification of marking and lighting
for registered antenna structures are set forth in Sections 17.21
through 17.23 of the rules. Section 17.21 specifies that painting and
lighting of an antenna structure is required if the structure exceeds
200 feet in height or if it requires aeronautical study, unless an
applicant can show that absence of (or lesser) marking would not impair
air safety. Section 17.22 provides that the Commission will generally
assign specifications for painting and lighting in accordance with FAA
Circulars referenced in Section 17.23, but also provides that if such
painting or lighting is confusing, or endangers rather than assists
airmen, the Commission may specify painting or lighting in the
individual situation. Section 17.23 provides that, unless otherwise
specified by the Commission, each new or altered antenna structure to
be registered on or after January 1, 1996, must conform to the FAA's
painting and lighting recommendations set forth on the structure's FAA
determination of ``no hazard'' as referenced in FAA Advisory Circulars
AC 70/7460-1J (``Obstruction Marking and Lighting'') and AC 150/5345-
43E (``Specification for Obstruction Lighting Equipment''), both of
which are cross-referenced.
4. In its 2004 Biennial Review Comments, PCIA--the Wireless
Infrastructure Association (PCIA) states that FAA Advisory Circular AC
70/460-1J referenced in Section 17.23 has been superseded, creating a
conflict between the Commission's marking and lighting requirements and
the FAA's. In the Biennial Review Proceeding, PCIA, CTIA--the Wireless
Association (CTIA), and Cingular Wireless LLC (Cingular) proposed that
Section 17.23 be amended to reference the most recent versions of the
FAA Advisory Circulars. PCIA seeks this rule change in its Petition for
Rulemaking as well. In their comments on PCIA's Petition for
Rulemaking, Cingular, Crown Castle USA, Inc. (Crown Castle), and the
National Association of Broadcasters (NAB) agree that the Commission's
rules should be consistent with the most recent FAA painting and
lighting recommendations. In its Petition for Rulemaking, PCIA also
seeks to amend Section 17.23 to clarify that the lighting and marking
specifications assigned to a structure by the Commission upon
registration do not change unless the FAA recommends new specifications
for that particular structure.
5. The Commission proposes several revisions to these provisions.
First, the Commission agrees with commenters that the rules should not
reference obsolete editions of the Advisory Circulars. Rather than
updating the references in the current rules, however, the Commission
proposes to delete any reference to Advisory Circulars as unnecessary
and potentially confusing. Because each antenna structure owner is
clearly notified through the registration process of the specifications
that apply to a particular structure, first by the FAA itself in its
``no hazard'' determination, and then by the Commission in the owner's
antenna structure registration, the Commission believes that specific
reference in the rules to particular Advisory Circulars is unnecessary.
Such references also may cause confusion if the FAA updates the
relevant circulars more frequently than the Commission amends its part
17 rules. Also, certain older registrations reference discontinued FCC
Form 715/715A rather than the Advisory Circulars. To avoid these
results, the Commission proposes that the rules require the marking and
lighting recommended in the FAA determination and associated study,
unless otherwise specified, rather than in any particular circular. The
Commission seeks comment on this proposal, and in particular on whether
there are any circumstances in which this approach would not be clear.
6. PCIA proposes that the Commission specify in the rules that
lighting and marking requirements do not change unless the FAA
recommends new specifications for particular structures. PCIA believes
this language is necessary to clarify that a revised FAA Circular does
not impose new obligations upon already-approved antenna structures.
PCIA also indicates that this proposal seeks rule codification of a
statement made on the FCC's Web site. The Commission seeks comment on
PCIA's proposal. The Commission also seeks comment on whether, in the
event the FAA changes its standards, it may instead be preferable for
the Commission to have the flexibility to apply any new standards
retroactively. Should the Commission defer in the first instance to the
FAA as the expert agency on aircraft navigation safety as to whether
revised standards should be applied to existing structures, unless
otherwise specified by the FCC?
7. Consistent with this discussion, the Commission proposes several
specific changes to the rules. Section 17.4 of the rules contains an
overview of the antenna structure registration process. The Commission
proposes adding to Sec. 17.4 a provision clarifying that the FAA's
recommended specifications are generally mandatory, but that the
Commission may specify additional or different requirements. The
Commission believes stating this simply up front will provide clarity
regarding the central obligation of structure owners. The Commission
also proposes to amend Sec. 17.4 to indicate that no changes may be
made to the lighting or marking specifications on an antenna structure
registration without prior FAA and Commission approval. The Commission
seeks comment on these proposals.
8. With respect to Sec. Sec. 17.21 through 17.23, the Commission
first proposes to amend Sec. 17.21(a), which provides that antenna
structures shall be painted and lighted when they exceed 60.96 meters
(200 feet) in height above ground level
[[Page 28519]]
or they require special aeronautical study. The Commission proposes to
instead reference FAA notification requirements. The Commission
believes that referencing FAA notification requirements will clarify
which antenna structures must comply with Sec. 17.21. The Commission
would retain the provision in Sec. 17.21(b) that the Commission may
modify requirements ``for painting and/or lighting of antenna
structures when it is shown by the applicant that the absence of such
marking would not impair the safety of air navigation, or that a lesser
marking requirement would insure the safety thereof.'' The Commission
then proposes to delete as unnecessary the first sentence of Sec.
17.22, which provides: ``Whenever painting or lighting is required, the
Commission will generally assign specifications in accordance with the
FAA Advisory Circulars referenced in Section 17.23.'' The Commission
would redesignate as paragraph 17.21(c) the remainder of current Sec.
17.22, specifying that ``[i]f an antenna installation is of such a
nature that its painting and lighting in accordance with these
specifications are confusing, or endanger rather than assist airmen, or
are otherwise inadequate, the Commission will specify the type of
painting and lighting or other marking to be used in the individual
situation.'' Finally, the Commission would amend Sec. 17.23, as
discussed above, to replace the reference to specific Advisory
Circulars with a more general reference to the FAA's determination of
no hazard and associated study, and to clarify the structure owner's
obligation to comply with any other specifications prescribed by the
Commission. The Commission seeks comment on all these proposals.
9. Finally, the Commission proposes deleting Sec. 17.17(a). The
Commission's proposed removal of reference to FAA circulars in Sec.
17.23 would eliminate the need for the stated exception in Sec.
17.17(a). Moreover, the language in Sec. 17.17(a) has resulted in some
confusion as to what painting and lighting specifications antenna
structures authorized prior to July 1, 1996, must maintain. The
Commission does not make a specific proposal to amend Sec. 17.17(b) in
this Notice, but the Commission notes that the Commission would need to
conform Sec. 17.17(b) to any decision regarding PCIA's proposal to
specify that lighting and marking requirements do not change unless the
FAA recommends new specifications for particular structures. The
Commission seeks comment on these proposals.
2. Accuracy of Location and Height Data
10. Section 17.4(a)(1) provides that alteration of an existing
antenna structure requires a new registration. However, the
Commission's rules do not define what constitutes an alteration such
that a new registration is required. In the ASR Streamlining Order (11
FCC Rcd at 4287), the Commission determined that any change or
correction of antenna structure site data of one second or greater in
longitude or latitude, or one foot or greater in height, requires a new
aeronautical study and a new determination by the FAA. The Commission
noted that these criteria are consistent with the FAA's standards for
when a new notification is required. In order to clarify the
obligations of antenna structure owners, the Commission proposes adding
a new section to Sec. 17.4 specifying that any change in height of one
foot or greater or any change in coordinates of one second or greater
requires prior approval from the FAA and the Commission. The Commission
seeks comment on this proposal.
11. Consistent with this standard, the Commission also seeks
comment on whether to amend its rules to require that the height
information provided on FCC Form 854 must be accurate within one foot
and the coordinates provided in FCC Form 854 must be accurate within
one second of longitude and latitude. The Commission further seeks
comment on whether to require that antenna structure owners must use
the most accurate data available when reporting height information and
site coordinates, and on whether the Commission should specify a
particular survey method. In the ASR Streamlining Order, the Commission
stated that antenna structure owners ``may use surveying tools of
differing accuracy, such as maps, GPS receivers, or GPS receivers with
differential corrections to obtain site data.'' Moreover, in the ASR
Clarification Order (15 FCC Rcd at 8678-8679), the Commission declined
to mandate a specific accuracy standard for the submission of antenna
structure data in deference to the FAA. It has been the Commission's
experience, however, that measurements taken using older survey methods
may differ significantly from those performed using current GPS
technology. In light of developments in technology and practice, the
Commission therefore finds it appropriate to revisit whether the
Commission should specify accuracy standards or survey methods. The
Commission asks commenters to address whether the Commission should
continue to defer to the FAA's expertise, and whether the Commission's
promulgation of rules would risk creating conflicts with the FAA's
process. Any comments proposing a specific method should explain that
method and the benefits of mandating it for new antenna structure
registrants.
3. Structures Requiring FAA Notification
12. Section 17.7 of the Commission's rules sets forth which antenna
structures require notification to the FAA. Section 17.14 of the
Commission's rules sets forth certain categories of antenna structures
that are exempt from notification to the FAA. Sections 17.7 and 17.14
are restatements of FAA rules. Specifically, Sec. 17.7 of the
Commission's rules is a restatement of Sec. 77.13 of the FAA's rules.
Section 17.14 of the Commission's rules is a restatement of Sec. 77.15
of the FAA's rules. These restatements of FAA rules in Commission rules
appear to be unnecessary and duplicative, and their inclusion risks
creating confusion in the event the FAA were to change its criteria.
The Commission therefore proposes to delete Sec. Sec. 17.7 and 17.14
of the Commission's rules. In lieu of these full restatements of FAA
rules, the Commission proposes adding cross-references to relevant FAA
rules in Sec. 17.4 of the Commission's rules, which provides that the
owner of any proposed or existing antenna structure that requires
notice of proposed construction to the FAA must register the structure
with the Commission. The Commission seeks comment on this tentative
conclusion, and on whether there is any reason the Commission should
retain language in its own rules stating which antenna structures
require notification to the FAA.
4. Pending FAA Rulemaking Proceeding
13. The FAA's current part 77 rules set forth regulations
pertaining to the physical attributes of objects (including
communications facilities) that may affect navigable airspace. Under
these rules, parties proposing to construct or modify a structure must
file a ``Notice of Proposed Construction or Alteration'' with the FAA.
The FAA then conducts an obstruction evaluation to determine whether
the proposed structure will pose a hazard to air navigation. The
Commission has, in turn, required any antenna structure for which a
Notice of Proposed Construction or Alteration must be filed with the
FAA to be registered with the Commission as well. As discussed in more
detail above, this registration requirement is the vehicle by which the
Commission exercises its
[[Page 28520]]
authority under the Communications Act to require painting and lighting
of towers that may constitute a hazard to air navigation.
14. In a Notice of Proposed Rulemaking released in June, 2006, the
FAA has proposed to modify its notification rules. Under the FAA's
proposal, among other things, events that give rise to a notification
requirement would be expanded to include construction of new facilities
that operate on specified frequency bands, changes in authorized
frequency, addition of new frequencies, increases in effective radiated
power or antenna height above certain thresholds, and changes in
antenna configuration for communications facilities that operate in
specified radio frequency bands, independent of the physical attributes
of such facilities. The Commission seeks comment on how the outcome of
the FAA's proceeding may affect any of the matters being considered in
the instant proceeding. In particular, the Commission seeks comment on
whether, if the FAA were to adopt its proposed rules in whole or in
part, the Commission should modify any of its rules or change any
proposed approaches to issues addressed in this proceeding. In this
regard, one such significant issue is whether the Commission should
continue to require all instances of ``Notice of Proposed Construction
or Alteration'' required by the FAA to result in an antenna structure
registration or amendment of antenna structure registration with the
Commission.
B. Maintenance of Marking and Lighting
15. The part 17 rules also detail certain requirements that concern
the maintenance of the marking and lighting on antenna structures.
These requirements include inspection and maintenance of lighting,
records of extinguishment or improper functioning of lights, and
maintenance of painting. The Commission believes that some of these
requirements are unnecessarily burdensome to antenna structure owners
and may be less effective at preventing hazards to air navigation than
certain alternatives. The Commission also believes that some
interpretations of these requirements overly complicate its enforcement
efforts in this important public safety area. Therefore, the Commission
is proposing several amendments and deletions to streamline and clarify
these rules.
1. Inspection and Maintenance of Lighting
16. The basic regime governing inspection and maintenance of
required lighting is set forth in Sec. Sec. 17.47, 17.48, and 17.56(a)
of the rules. Section 17.47 of the rules requires antenna structure
owners to make an observation of the antenna structure's lights at
least once each 24 hours either visually or by observing an automatic
properly maintained indicator designed to register any failure of such
lights or, alternatively, to provide and properly maintain an automatic
alarm system designed to detect any failure of such lights and to
provide indication of such failure to the owner. Section 17.47 also
requires antenna structure owners to inspect at intervals not to exceed
3 months all automatic or mechanical control devices, indicators, and
alarm systems associated with the antenna structure lighting to insure
that such apparatus is functioning properly. Section 17.48(a) of the
Rules requires immediate notification to the nearest Flight Service
Station (FSS) or office of the FAA of any observed or otherwise known
extinguishment or improper functioning of any top steady burning light
or any flashing obstruction light, regardless of its position on the
antenna structure, not corrected within 30 minutes. Upon notification
of such an incident, the FAA issues a Notice to Airmen (NOTAM) to alert
aircraft of the light outage. Section 17.48(b) of the Rules provides
that ``[a]n extinguishment or improper functioning of a steady burning
side intermediate light or lights, shall be corrected as soon as
possible, but notification to the FAA or [sic] such extinguishment or
improper functioning is not required.'' Section 17.56(a) of the rules
requires antenna structure owners to replace or repair lights,
automatic indicators or automatic control or alarm systems as soon as
practicable.
17. In their comments to the 2004 Biennial Review, PCIA, CTIA and
Cingular argue that quarterly physical inspection of antenna structures
imposes needless and costly burdens and adds nothing to the reliability
of the system. Also, the Commission, initially, and later the Wireless
Telecommunications Bureau on delegated authority, have granted several
tower owners waivers of Sec. 17.47(b) of the Rules to permit annual
rather than quarterly inspections for their automatic or mechanical
control devices, indicators and alarm systems associated with their
antenna structure lighting, on the basis that they use advanced
monitoring systems. In its Petition for Rulemaking, PCIA, consistent
with these waiver requests, recommends amendment of Section 17.47(b) of
the rules to exempt systems using network operations control (NOC)
center-based monitoring technologies from any requirement to regularly
inspect all automatic or mechanical systems associated with antenna
structure lighting. Sprint Nextel Corporation (Sprint Nextel),
Cingular, Crown Castle and NAB all support such a rule amendment. In
comments on a waiver request, Hark Tower Systems, Inc., also supported
this approach.
18. The Commission seeks comment on two possible alternative
changes to Sec. 17.47. First, the Commission seeks comment on whether
to delete Sec. 17.47 of the rules in its entirety. The Commission is
concerned that the current regime, which includes separate requirements
for inspecting lighting systems, providing notice of extinguished
lights, and replacing malfunctioning lights and monitoring systems, may
create ambiguity for antenna structure owners regarding their
regulatory obligations. In particular, an antenna structure owner may
incorrectly conclude that so long as it performs the inspections
required under Sec. 17.47, it will not be subject to enforcement
action if its lights fail to function. Eliminating the inspection
requirements under Sec. 17.47 would make clear that what matters is
that the lighting required under the antenna structure registration
remains on, or, if required lights become extinguished, that the
structure owner promptly request a NOTAM. If these requirements are not
met, the Commission may subject the structure owner to enforcement
action regardless of the measures it followed to inspect its lighting
and monitoring systems; and if these requirements are met, it would be
immaterial to us how the structure owner ensured that its lights would
remain functioning or NOTAMs would be requested. The Commission seeks
comment on this possible approach, including on whether inspection
requirements are necessary to ensure responsible monitoring of lighting
systems.
19. Second, if the Commission determines not to eliminate all
inspection requirements, the Commission seeks comment on whether to
amend Sec. 17.47(b) to exempt certain systems using NOC center-based
monitoring technologies from the requirement to quarterly inspect all
automatic or mechanical systems associated with antenna structure
lighting. As explained in the Commission's order granting waivers to
[[Page 28521]]
American Tower Corporation (ATC) and Global Signal, Inc. (GSI), the
types of systems used by ATC, GSI, and others reliably diagnose
problems, including any failures of control devices, indicators and
alarm systems, within real time. Thus, quarterly inspections of such
systems may unnecessarily burden antenna structure owners without
promoting aircraft navigation safety, and relieving inspection
requirements for such towers may encourage tower owners to adopt state-
of-the-art systems. In granting the ATC and GSI waiver requests, the
Commission found that the use of advanced technology in those instances
provided the benefits of more rapid response for lighting failures,
with attendant aircraft safety benefits. The Commission seeks comment
on the benefits and drawbacks of eliminating quarterly inspection
requirements for systems utilizing advanced self-monitoring technology,
and on whether required regular inspections that are less frequent,
such as annually, should be retained. The Commission also seeks comment
as to how the systems to be exempted from the quarterly inspection
requirement should be defined.
20. The Commission proposes to retain the requirement in Sec.
17.48(a) that antenna structure owners promptly report outages of top
steady burning lights or flashing antenna structure lights to the FAA.
However, the Commission believes amendment of this provision is
necessary to ensure that a NOTAM is maintained so long as any outage
continues. The FAA cancels all such notices within 15 days. However,
the Commission's rules do not currently require antenna structure
owners to notify the FAA if repairs to an antenna structure's lights
require more than 15 days. Therefore, the Commission proposes to
require antenna structure owners to provide continuously active NOTAM
notice to the FAA of these lighting outages in accordance with current
FAA requirements. Accordingly, antenna structure owners would be
required to contact the FAA to extend the lighting outage date after 15
days and provide a return to service date. The Commission seeks comment
on this proposal. The Commission specifically asks commenters to
discuss how the Commission should balance the public interest benefit
of having antenna structure owners contact the FAA every 15 days during
a light outage against the burden on antenna structure owners of
continual notification requirements. The Commission also notes that the
reporting requirement of Sec. 17.48(a) requires that the FAA be
notified ``by telephone or telegraph.'' The Commission tentatively
concludes that this rule should be updated to require notification by
means acceptable to the FAA, which currently is by a nationwide toll-
free telephone number for reporting lighting outages, and the
Commission seeks comment on this proposal.
21. Finally, the Commission requests comment on whether its rules
should include time frames for replacing or repairing extinguished
lights notwithstanding the issuance of a NOTAM, and if so, what those
time frames should be. The Commission believes that the current
requirements to replace or repair lights ``as soon as practicable'' (in
Sec. 17.56(a)) or ``as soon as possible'' (in Sec. 17.48(b)) may be
overly vague, and may engender confusion as to whether diligent efforts
to correct lighting malfunctions obviate the need for a NOTAM.
Accordingly, the Commission tentatively concludes that these provisions
should be deleted. By proposing to delete these rule sections, however,
the Commission does not intend to provide antenna structure owners with
an unlimited amount of time to repair the lighting systems on their
antenna structures, nor does the Commission suggest that antenna
structure owners may avoid repairing the lighting systems on their
antenna structures indefinitely by continually filing for NOTAMs.
Moreover, because the FAA does not accept notifications or issue NOTAMs
for extinguished steady burning side intermediate lights, in the
absence of Section 17.48(b) the Commission's rules would contain no
requirements relating to maintenance of these lights. The Commission
therefore seeks comment on whether the Commission should implement a
time limitation for lighting system repairs. If such a requirement is
implemented, should it be based on the geographic location of the
antenna structure? Should weather conditions be considered when
determining the reasonableness of a time period requirement? The
Commission seeks comment on these proposals.
2. Elimination of Unnecessary Provisions
22. Sections 17.45, 17.51, and 17.56(b) each set forth specific
requirements for antenna structure owners to follow in exhibiting or
maintaining lights. Section 17.45 of the rules specifies the type of
temporary warning lights to be used during construction of antenna
structures for which red obstruction lighting is required. Section
17.51 of the rules requires red obstruction lighting to be on from
sunset to sunrise and high intensity and medium intensity lighting to
burn continuously. Section 17.56(b) requires that the flash tubes in a
high intensity obstruction lighting system shall be replaced whenever
the peak effective daytime intensity falls below 200,000 candelas.
23. The Commission notes that in their 2004 Biennial Review
comments, PCIA, CTIA and Cingular ask that Sec. 17.51 be amended to
harmonize it with Section 17.48 (Notification of Extinguishment or
Improper Functioning Lights). Specifically, PCIA states that Sec.
17.51 should be revised to provide that a malfunctioning flashing light
does not violate Sec. 17.51, so long as a NOTAM has been sought by the
tower owner or operator and issued by the FAA. PCIA also suggests that
Sec. 17.51 should provide that it is not violated when a malfunction
is beyond the control of the tower owner/operator (such as in a power
failure).
24. The Commission tentatively concludes that each of these
provisions should be deleted because the relevant requirements are
specified in the FAA determination of no hazard and associated study
for each tower, and the separate identification of specific
requirements in the Commission's rules is therefore unnecessary and may
create ambiguity in cases of conflict. Any antenna structure which is
assigned specifications by the FAA for lighting is also assigned
Chapter 4 (Lighting Guideline) of FAA Advisory Circular AC 70/7460-1.
This chapter details the type of construction lights, both red and
white, that should be used during construction. Chapter 4 also details
requirements for the inspection, repair and maintenance of lights. Any
antenna structure which is assigned red obstruction, high intensity or
medium intensity lighting by the FAA is also assigned the applicable
chapter (Chapter 5, 6 or 7) of the same FAA Advisory Circular (AC 70/
7460-1) on its antenna structure registration. The Commission therefore
proposes to delete each of these rule provisions in order to promote
clarity and avoid potential conflicts. The Commission seeks comment on
this tentative conclusion, and in particular on whether there are any
instances in which the FAA would not assign the relevant specifications
in its Advisory Circular.
25. The Commission does not agree with the commenters' position
that its lighting requirements should include an exception where lights
are extinguished due to loss of power beyond the structure owner's
control. As discussed above, the Commission is proposing amending Sec.
17.48 to clearly state the basic requirement to maintain the required
lighting or, if lights become
[[Page 28522]]
extinguished, obtain and maintain a NOTAM. Thus, if lights become
extinguished due to loss of power, the structure owner will remain in
compliance with the rules if it immediately notifies the FAA and renews
the notification every 15 days. The Commission does not believe it is
either necessary or consistent with aircraft navigation safety to
exempt outages due to loss of power from this process. Moreover, the
Commission is not persuaded that the effects of power outages are
beyond the control of antenna structure owners, or beyond their ability
to remedy. The Commission seeks comment above on whether the Commission
should establish time limits for repair or replacement of extinguished
lights. Any rules that the Commission might adopt setting such time
limits would apply to lights that are off due to a power outage. The
Commission seeks comment on this analysis.
3. Records of Extinguishment or Improper Functioning of Lights
26. Section 17.49 requires antenna structure owners to maintain a
record of observed or otherwise known extinguishments or improper
functioning of structure lights. The Commission proposes to amend this
provision by adding a requirement to maintain such records for two
years and provide the records to the Commission upon request. The
Commission tentatively concludes that this retention period best
balances the Commission's need to determine the compliance record
against the burden of record retention on antenna structure owners. The
Commission seeks comment on this tentative conclusion, and in
particular on whether two years is the appropriate retention period.
The Commission encourages commenters to provide data regarding the
burden this record retention would impose on antenna structure owners,
and the Commission invites comment on whether the Commission should
eliminate the recordkeeping requirement entirely.
4. Maintenance of Painting
27. Section 17.50 of the rules specifies that antenna structures
requiring painting under part 17 shall be cleaned or repainted as often
as necessary to maintain good visibility. In their 2004 Biennial Review
Comments, PCIA, CTIA and Cingular argue that the Commission needs an
unambiguous standard for measuring good visibility, and suggest that
the rule be amended to reflect the standard used by the FAA. In
particular, PCIA proposes that the Commission amend Sec. 17.50 to
require that the ``paint on the structure must be within the color
tolerance depicted on the FAA's `In Service Aviation Orange Tolerance
Chart' as measured against the base of the tower from a distance of
one-quarter mile.'' Cingular states that the current lack of a standard
for ``good visibility'' ``leads to the potential for inconsistent
enforcement.''
28. The Commission requests comment on whether to amend Sec. 17.50
to specifically provide for use of the FAA's `In Service Aviation
Orange Tolerance Chart' to determine whether a structure needs to be
cleaned or repainted. In the field, the Commission's Enforcement Bureau
currently determines whether a structure needs to be cleaned or
repainted by comparing it to the FAA's In Service Aviation Orange
Tolerance Chart at the base of the structure and/or by observing the
structure at one-quarter mile distance from the structure. The
Commission believes that each of these approaches has certain benefits.
On one hand, a close inspection of the tower may provide more
information about the condition of the paint (e.g., whether it is
flaking) and about the actual color and how closely it matches the
required parameters. On the other hand, a view from one-quarter mile
distance, although subjective, may closely approximate tower visibility
and conspicuity that pilots would encounter and therefore may better
ensure that towers are visible. However, a view from a distance may be
subject to inconsistencies depending upon such factors as direction,
time of day, weather conditions, and silhouetting. Adding a specific
reference to the color chart in Sec. 17.50 could provide a more
objective standard for gauging the condition of required painting and
may provide better guidance for antenna structure owners and promote
consistent enforcement. The Commission therefore seeks comment on
whether to incorporate such a reference.
29. If the Commission does amend the rules to defer to the In
Service Aviation Orange Tolerance Chart, the Commission further seeks
comment on whether to compare the FAA's In Service Aviation Orange
Tolerance Chart to the tower at a distance of one-quarter mile, as PCIA
proposes, or at the base of the tower, as is the Enforcement Bureau's
practice. The instructions on the FAA chart direct that ``to use the
charts place each directly over the surface to be examined.'' However,
a more distant view may be most consistent with the FAA's Advisory
Circular on Obstruction Marking and Lighting, which indicates that
``the color should be sampled on the upper half of the structure, since
weathering is greater there.'' The Commission seeks comment on which of
these methods of using the chart, or both or neither, should be
referenced in the rule. The Commission also seeks comment on whether,
and if so how, the rule should combine use of the chart with other
methods of gauging visibility, as well as any other suggestions on how
the rule should be drafted.
C. Other Matters
1. Definitions
30. Section 17.2(a) of the rules defines an ``antenna structure''
as including ``the radiating and/or receive system, its supporting
structures and any appurtenances mounted thereon.'' Section 17.2(c)
defines an ``antenna structure owner'' as the individual or entity
vested with ownership, equitable ownership, dominion, or title to the
antenna structure. Commenters argue that because the definition of
``antenna structure'' includes antennas and other appurtenances, the
definition of ``antenna structure owner'' could be read to include the
service providers who own these antennas. Commenters therefore urge the
Commission to amend its rules to clarify that the obligations of
antenna structure owners fall only on the owner of the underlying
structure. Specifically, in their comments to the 2004 Biennial Review,
PCIA, CTIA and Cingular urge the Commission to revise the definition of
antenna structure so that compliance obligations of infrastructure
providers and licensed carriers are not ambiguous. PCIA and Cingular
both argue that the definition needs to be revised to reinforce
Commission decisions that the antenna structure owner is responsible
for marking, lighting and notification responsibilities relating to the
structure.
31. The Commission has previously made clear that registration
responsibilities fall squarely on the antenna structure owners, and not
on the licensees or permittees that are merely tenants of the
structures. Nonetheless, the Commission agrees that incorporating a
more precise definition into its rules would promote clarity for all
parties. The Commission therefore proposes amending Sec. 17.2(c) to
provide that the antenna structure owner is the owner of ``the
underlying structure that supports or is intended to support antennas
and other appurtenances.'' The Commission seeks comment on this
proposal, including any unintended consequences that may result from
this change.
32. The Commission also tentatively concludes that Sec. 17.2(a)
should be
[[Page 28523]]
amended to clarify both when a structure becomes, and when a structure
ceases to be, an ``antenna structure'' under its rules. Section 303(q)
of the Act provides that ``[i]n the event that the tower ceases to be
licensed by the Commission for the transmission of radio energy, the
owner of the tower shall maintain the prescribed painting and/or
illumination of such tower until it is dismantled . * * *'' Consistent
with this provision, the Commission proposes amending Sec. 17.2(a) to
provide that a structure will continue to be considered an antenna
structure and subject to its part 17 requirements until such time as
that structure is dismantled, regardless of whether the structure
continues to be used for the transmission and/or receipt of radio
energy. Similarly, the Commission believes it is consistent with the
intent of Sec. 303(q) that a structure constructed for the primary
purpose of transmitting or receiving radio energy be treated as an
antenna structure subject to its rules from the time construction
begins, regardless of whether the structure immediately is being used
for its intended purpose. The Commission therefore proposes amending
Sec. 17.2(a) to reflect this tentative conclusion as well. The
Commission seeks comment on these proposals. Finally, the Commission
notes that the term ``antenna structure'' is defined in both Sec. Sec.
1.907 and 17.2(a) of the Commission's rules. The Commission seeks
comment on whether these two definitions should be harmonized.
2. Structures Not Requiring Registration
33. Under the Commission's rules, not all antenna structures must
be registered with the Commission, only those of certain heights,
depending on their location. Despite this limitation, some antenna
structure owners have voluntarily registered their structures with the
Commission, even though such registration is not required. The
Commission seeks comment on whether the rules concerning antenna
structures should be enforced against such voluntarily registered
structures. In addition, the Commission seeks comment on whether owners
of antenna structures that do not require registration should be
prohibited from registering their towers, and whether antenna structure
owners who have voluntarily registered structures should be required to
withdraw their registrations from the Commission's antenna structure
database. Such an action could reduce confusion concerning the
regulatory status of these structures. The Commission seeks comment on
both the benefits and drawbacks to the Commission and the public of
keeping voluntarily registered structures in the database, as well as
of permitting additional structures to be voluntarily registered. In
this regard, the Commission notes that antenna structure owners often
register structures that fall below the Commission's height thresholds
in order to file an Environmental Assessment and obtain a Finding Of No
Significant Impact under the Commission's environmental rules. The
Commission invites comment regarding what changes to its environmental
processing may be necessary if antenna structure registration under
these circumstances were to be limited.
3. Posting of Antenna Structure Registration Number
34. Section 17.4(g) provides: ``Except as provided in paragraph (h)
of this section, the Antenna Structure Registration [ASR] number must
be displayed in a conspicuous place so that it is readily visible near
the base of the antenna structure.'' In its Petition for Rulemaking,
PCIA contends that it is not always possible to post the ASR number so
that it is both ``readily visible'' and ``near the base'' of the tower.
PCIA and Cingular both comment that the Commission's ``Posting
Guidelines'' indicate that in such instances an appropriate place to
post the ASR number is ``along a perimeter fence'' or ``at the point of
entry of the gate.'' PCIA recommends amendment of the rule to expressly
permit posting of the ASR number at a compound fence or gate. Sprint
Nextel, Crown Castle, NAB and Cingular concur.
35. The purpose of Sec. 17.4(g) is to ensure that a member of the
general public can identify the structure in the event of a light
outage or other air safety hazard and report the problem to the
Commission and/or the FAA, as well as to ensure that FCC and FAA
personnel can readily identify the structure. As currently written,
however, the rule does not require that the ASR number be posted in a
place that would be visible to the general public. The Commission
therefore proposes to modify Sec. 17.4 to require that antenna
structure owners display the ASR number so that it would be visible to
a member of the general public who reaches the closest publicly
accessible location near the base of the antenna structure. Where two
or more separate locations of this nature exist for a single antenna
structure, such as two roads from different directions to a mountaintop
site, the Commission would require posting the Antenna Structure
Registration number at each such location. The Commission tentatively
concludes that amending the rule in this manner would both clarify the
obligations of antenna structure owners and promote timely remediation
when lighting is observed to be malfunctioning or extinguished. The
Commission further tentatively concludes that it is unnecessary for the
ASR number to be posted both at the base of the tower and at a point
that is visible to the general public. The Commission seeks comment on
these tentative conclusions, including whether there would be benefits
to requiring an additional posting of the ASR number near the base of
the tower where that location is not readily visible to the public. The
Commission also seeks comment on how the rule should address those
situations where two towers having separate ASR numbers may be located
within a single fenced area, as well as situations in which an antenna
structure is located on a building.
4. Provision of Antenna Structure Registration to Tenants
36. Section 17.4(f) requires that antenna structure owners
immediately provide copies of FCC Form 854R (antenna structure
registration) to each tenant licensee and permittee. In their Biennial
Review comments, PCIA, CTIA and Cingular propose that the Commission
eliminate this requirement altogether, and shift the burden to the
Commission's licensees and permittees to obtain a copy of the Form 854R
from the Commission's Web site. In its Petition for Rulemaking, PCIA
specifically recommends that the rule should instead require antenna
structure owners to provide tenants with the ASR number or some
indication that the ASR has been changed or updated, so that licensees
and permittees may obtain relevant Form 845R (antenna structure
registration) information from the FCC's ASR Online System. Sprint
Nextel, Cingular, Crown Castle and NAB agree, arguing that the
requirement to provide paper copies no longer serves any practical
purpose and imposes unnecessary costs.
37. The Commission agrees that antenna structure owners should no
longer be required to provide paper copies of the Form 854R to their
tenants, as the relevant information and access to the form can
ordinarily be provided at least as effectively, and more economically,
by electronic means. However, the Commission believes it is essential
that the tenant licensees and permittees know when the antenna
structure has been registered, and how to access the registration form.
The
[[Page 28524]]
Commission therefore proposes to amend the relevant rules to allow
antenna structure owners, as an alternative to providing a copy of Form
854R, to notify tenant licensees and permittees that the structure has
been registered, and give the tenant licensees and permittees the
antenna structure's registration number along with the link for the
Commission's antenna structure registration Web site. This notification
may be done using paper mail or electronic mail. The Commission seeks
comment on this proposal.
5. Notification of Construction or Dismantlement
38. Section 17.57 requires that antenna structure owners notify the
Commission within 24 hours of construction or dismantlement of an
antenna structure, and immediately for changes in height or ownership.
In its Biennial Review comments, PCIA recommends changing Sec. 17.57
to harmonize the timing for these requirements with FAA rules. In its
Petition for Rulemaking, PCIA indicates specifically that its proposal
in this regard would be to change from 24 hours to five days the time
for notification of construction or dismantlement, and to change from
``immediately'' to five days the time for notification of changes in
height or ownership. Cingular and NAB support the concept of
harmonization of the Commission's rules with FAA rules regarding
notification of construction and/or dismantlement.
39. The Commission tentatively concludes that the Commission should
not adopt these proposed changes. Initially, the Commission notes that
neither PCIA nor Cingular cites the relevant FAA requirements or
explains why they are appropriate for the Commission's purposes. In any
event, these FCC notification requirements promote accuracy of the
Commission's information, and it would not appear to create any
conflict for them to be stricter than the FAA's. Given the simple
nature of notification filings, commenters have not shown that the time
frames are unreasonably burdensome. The Commission seeks comment on
this issue, including discussion of any burdens that the existing rule
may impose.
6. Facilities on Federal Land
40. Section 17.58 of the Commission's rules provides that any
application proposing new or modified transmitting facilities to be
located on land under the jurisdiction of the U.S. Forest Service or
the Bureau of Land Management shall include a statement that the
facilities will be so located, and that the applicant shall comply with
the requirements of Sec. 1.70 of the rules. This rule was adopted in
1967, along with former Sec. 1.70, which prescribed procedures for
handling applications involving the use of certain lands and
reservations under the jurisdiction of the U.S. Government. Those
procedures were abolished in 1977 at the request of the Department of
Agriculture and the Department of the Interior, at which point that
iteration of Sec. 1.70 was deleted. As Sec. 17.58 was intended to
promote compliance with procedures that no longer exist, the Commission
now proposes to delete Sec. 17.58. The Commission seeks comment on
this proposal, including whether there is any reason to retain a
requirement that the Commission be notified of facilities on Forest
Service or Bureau of Land Management lands.
III. Conclusion
41. By this NPRM, the Commission proposes various clarifications
and amendments to the part 17 rules, in order to allow antenna
structure owners to more efficiently and cost effectively ensure their
compliance with those rules. The Commission seeks comment on these
proposals.
IV. Procedural Matters
A. Initial Regulatory Flexibility Analysis
42. As required by the Regulatory Flexibility Act of 1980, see 5
U.S.C. 603, 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 Notice of Proposed Rule
Making (NPRM). Written public comments are requested on this IRFA.
Comments must be specifically identified as responses to the IRFA and
must be filed by the deadlines for comments on the Notice provided in
Section V.A. of the item. The Commission will send a copy of the NPRM,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.
1. Need for and Objectives of the Proposed Rules
43. Section 303(q) of the Communications Act vests in the
Commission the authority to require painting and/or lighting of radio
towers that may constitute a hazard to air navigation. Part 17 of the
Commission's rules sets forth procedures for identifying those antenna
structures that might affect air navigation, consistent with
recommendations made by the Federal Aviation Administration (FAA), and
for registering such structures with the Commission. The Commission
requires owners of antenna structures to register with the Commission
those structures that meet the registration criteria and to exercise
primary responsibility for the prescribed painting and lighting. The
proposed rules seek to achieve the best framework to continue to
fulfill the Commission's statutory responsibility to require antenna
structure owners, registrants and Commission licensees to do whatever
is necessary to prevent antenna structures from being hazards or
menaces to air navigation.
44. The Commission proposes to amend Sec. 17.4(a) and Sec. Sec.
17.21, 17.22 (redesignated as Sec. 17.21(c)), and 17.23 and to delete
Sec. 17.17(a) of the Commission's rules regarding antenna structure
registration and painting and lighting specifications. The Commission
also proposes conforming edits to Sec. Sec. 1.61(a)(5) and 17.1(b).
These proposed changes are intended to clarify the relationship between
the Commission's rules and procedures and those of the FAA and to
ensure continued consistency in those rules and procedures. The
Commission also asks whether to amend Sec. 17.17(b) (redesignated as
Sec. 17.24) by providing that a revised FAA Circular does not impose
new obligations on already-approved antenna structures.
45. In order to clarify the obligations of antenna structure owners
and to conform the Commission's regulations to Commission and FAA
practice, the Commission proposes adding new sections to Sec. 17.4
specifying that any change in height of one foot or greater, any change
in coordinates of one second or greater, or any change in marking and
lighting specifications requires prior approval from the FAA and the
Commission. The Commission also proposes to consider whether to specify
accuracy standards or survey methods in order to ensure consistency of
data.
46. The Commission proposes to delete Sec. Sec. 17.7 and 17.14 of
the Commission's rules, which are restatements of FAA rules, and to
substitute cross-references to relevant FAA rules in Sec. 17.4 of the
Commission's rules. This change could reduce the risk of confusion in
the event the FAA were to change its criteria.
47. The Commission proposes to amend its rules governing inspection
and maintenance of lighting by: (1) Amending Sec. 17.47 to eliminate
or reduce requirements to perform
[[Page 28525]]
inspections of lighting and light monitoring systems; (2) amending
Sec. 17.48(a) to require antenna structure owners to provide
continuously active notice to the FAA of lighting outages; and (3)
deleting vague references to timely repair timeframes in Sec. Sec.
17.48(b) and 17.56(a). The Commission proposes to consider whether to
eliminate Sec. 17.47 in its entirety or to retain modified inspection
requirements and whether to substitute more specific repair time
limitations. These proposals are intended to relieve unnecessary
burdens and reduce confusion while ensuring that aircraft navigation
safety is best protected.
48. The Commission proposes to delete Sec. Sec. 17.45, 17.51, and
17.56(b), which set forth specific requirements for exhibiting and
maintaining lights, because they are unnecessary and may create
ambiguity in cases of conflict with FAA specifications. This change
could reduce the risk of confusion.
49. Section 17.49 requires antenna structure owners to maintain a
record of observed or otherwise known extinguishments or improper
functioning of structure lights. The Commission proposes to add a
requirement to maintain such records for two years and provide the
records to the Commission upon request in order to balance the
Commission's need to determine the compliance record against the burden
of record retention on antenna structure owners.
50. The Commission is considering a proposal to amend Sec. 17.50
to require use of the FAA's `In Service Aviation Orange Tolerance
Chart' to determine whether a structure needs to be cleaned or
repainted and to specify how the chart is to be used. These changes may
provide more objective standards for gauging visibility.
51. The Commission proposes to amend Sec. 17.2(a) of the
Commission's rules to clarify both when a structure becomes, and when a
structure ceases to be, an ``antenna structure'' under our rules. The
Commission also proposes to amend Sec. 17.2(c) of the Commission's
rules to clarify that the obligations of an ``antenna structure owner''
fall only on the owner of the underlying structure, and not on tenants,
thus promoting clarity for all parties.
52. The Commission also proposes to consider whether the rules
concerning antenna structures should be enforced against voluntarily
registered structures, whether owners of antenna structures that do not
require registration should be prohibited from registering their
towers, and whether antenna structure owners who have voluntarily
registered structures should be required to withdraw their
registrations from the Commission's antenna structure database. Such
action could reduce confusion by clarifying the regulatory status of
these structures.
53. The Commission proposes to modify Sec. 17.4(g) to require that
antenna structure owners display the Antenna Structure Registration
(ASR) number so that it would be visible to a member of the general
public who reaches the closest publicly accessible location near each
point of access to the antenna structure. The Commission further
proposes to delete the requirement that the ASR number be posted near
the base of the antenna structure. The Commission tentatively concludes
that amending the rule in this manner would clarify the obligations of
antenna structure owners, promote timely remediation when lighting is
observed to be malfunctioning or extinguished, and eliminate
unnecessary postings.
54. Section 17.4(f) requires that antenna structure owners
immediately provide copies of FCC Form 854R (antenna structure
registration) to each tenant licensee and permittee. Sections 17.4(e)
and 17.6(c) impose a similar requirement on the first licensee in cases
where the antenna structure owner is unable to file Form 854 because it
is subject to a denial of Federal benefits under the Anti-Drug Abuse
Act of 1988. The Commission proposes to amend these rules to allow the
alternative of providing a link to the Commission's antenna structure
registration Web site via paper or electronic mail.
55. The Commission proposes to delete Sec. 17.58, which was
intended to promote compliance with procedures that are now obsolete.
This change would streamline the antenna structure registration
process.
2. Legal Basis
56. The legal basis for any action that may be taken pursuant to
the Notice is contained in Sections 4(i), 4(j), 11, and 303(q) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i) through (j),
161, 303(q).
3. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules May Apply
57. 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 proposed rules.\1\ The RFA generally defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' \2\ In addition, the term ``small business'' has the
same meaning as the term ``small business concern'' under the Small
Business Act.\3\ 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'').\4\
---------------------------------------------------------------------------
\1\ 5 U.S.C. 604(a)(3).
\2\ 5 U.S.C. 601(6).
\3\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\4\ 15 U.S.C. 632.
---------------------------------------------------------------------------
58. The Notice proposes rule changes that would impose requirements
on a large number of entities relating to the registration of and
maintenance of painting and lighting on antenna structures. Due to the
number and diversity of owners of antenna structures and other
responsible parties, including small entities that are Commission
licensees as well as non-licensee tower companies, the Commission
classifies and quantifies them in the remainder of this section.
59. Cellular Licensees. The SBA has developed a small business size
standard for small businesses in the category ``Wireless
Telecommunications Carriers (except satellite).'' \5\ Under that SBA
category, a business is small if it has 1,500 or fewer employees.\6\
The census category of ``Cellular and Other Wireless
Telecommunications'' is no longer used and has been superseded by the
larger category ``Wireless Telecommunications Carriers (except
satellite)''. However, since currently available data was gathered when
``Cellular and Other Wireless Telecommunications'' was the relevant
category, earlier Census Bureau data collected under the category of
``Cellular and Other Wireless Telecommunications'' will be used here.
Census Bureau data for 2002 show that there were 1,397 firms in this
category that operated for the entire year.\7\ Of this total, 1,378
firms had employment of 999 or fewer employees, and 19 firms had
employment of 1,000 employees or
[[Page 28526]]
more.\8\ Thus, under this category and size standard, the majority of
firms can be considered small.
---------------------------------------------------------------------------
\5\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517210.
\6\ Id.
\7\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
\8\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1000
employees or more.''
---------------------------------------------------------------------------
60. 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.\9\ 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.\10\ These
small business size standards, in the context of broadband PCS
auctions, have been approved by the SBA.\11\ 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.\12\ On March 23,
1999, the Commission reauctioned 155 C, D, E, and F Block licenses;
there were 113 small business winning bidders.\13\ On January 26, 2001,
the Commission completed the auction of 422 C and F Block PCS licenses
in Auction 35.\14\ 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.
---------------------------------------------------------------------------
\9\ See Amendment of Parts 20 and 24 of the Commission's Rules--
Broadband PCS Competitive Bidding and the Commercial Mobile Radio
Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7850-7852
paras. 57-60 (1996); see also 47 CFR 24.720(b).
\10\ See Amendment of Parts 20 and 24 of the Commission's
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile
Radio Service Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 7852
para. 60.
\11\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator, Small
Business Administration, dated December 2, 1998.
\12\ FCC News, ``Broadband PCS, D, E and F Block Auction
Closes,'' No. 71744 (rel. January 14, 1997).
\13\ See ``C, D, E, and F Block Broadband PCS Auction Closes,''
Public Notice, 14 FCC Rcd 6688 (WTB 1999).
\14\ See ``C and F Block Broadband PCS Auction Closes; Winning
Bidders Announced,'' Public Notice, 16 FCC Rcd 2339 (2001).
---------------------------------------------------------------------------
61. 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.\15\ Through these
auctions, the Commission awarded a total of forty-one licenses, 11 of
which were obtained by four small businesses.\16\ 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.\17\ 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.\18\ 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.\19\ The SBA
has approved these small business size standards.\20\ A third auction
commenced on October 3, 2001, and closed on October 16, 2001. Here,
five bidders won 317 (MTA and nationwide) licenses.\21\ Three of these
claimed status as a small or very small entity and won 311 licenses.
---------------------------------------------------------------------------
\15\ Implementation of Section 309(j) of the Communications
Act--Competitive Bidding Narrowband PCS, Third Memorandum Opinion
and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 175,
196 para. 46 (1994).
\16\ See ``Announcing the High Bidders in the Auction of Ten
Nationwide Narrowband PCS Licenses, Winning Bids Total
$617,006,674,'' Public Notice, PNWL 94-004 (rel. Aug. 2, 1994);
``Announcing the High Bidders in the Auction of 30 Regional
Narrowband PCS Licenses; Winning Bids Total $490,901,787,'' Public
Notice, PNWL 94-27 (rel. Nov. 9, 1994).
\17\ Amendment of the Commission's Rules to Establish New
Personal Communications Services, Narrowband PCS, Second Report and
Order and Second Further Notice of Proposed Rule Making, 15 FCC Rcd
10456, 10476 para. 40 (2000).
\18\ Id.
\19\ Id.
\20\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator, Small
Business Administration, dated December 2, 1998.
\21\ See ``Narrowband PCS Auction Closes,'' Public Notice, 16
FCC Rcd 18663 (WTB 2001).
---------------------------------------------------------------------------
62. Specialized Mobile Radio. The Commission awards ``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.\22\ The Commission awards ``very small entity'' bidding
credits to firms that had revenues of no more than $3 million in each
of the three previous calendar years.\23\ The SBA has approved these
small business size standards for the 900 MHz Service.\24\ The
Commission has held auctions for geographic area licenses in the 800
MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5,
1995, and closed on April 15, 1996. Sixty bidders claiming that they
qualified as small businesses under the $15 million size standard won
263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR
auction for the upper 200 channels began on October 28, 1997, and was
completed on December 8, 1997. Ten bidders claiming that they qualified
as small businesses under the $15 million size standard won 38
geographic area licenses for the upper 200 channels in the 800 MHz SMR
band.\25\ A second auction for the 800 MHz band was held on January 10,
2002, and closed on January 17, 2002, and included 23 licenses. One
bidder claiming small business status won five licenses.\26\
---------------------------------------------------------------------------
\22\ 47 CFR 90.814(b)(1).
\23\ Id.
\24\ See Letter to Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
August 10, 1999.
\25\ See ``Correction to Public Notice DA 96-586 `FCC Announces
Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz
SMR in Major Trading Areas,''' Public Notice, 18 FCC Rcd 18367 (WTB
1996).
\26\ See ``Multi-Radio Service Auction Closes,'' Public Notice,
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------
63. The auction of the 1,050 800 MHz SMR geographic area licenses
for the General Category channels began on August 16, 2000, and was
completed on September 1, 2000. Eleven bidders that won 108 geographic
area licenses for the General Category channels in the 800 MHz SMR band
qualified as small businesses under the $15 million size standard. In
an auction completed on December 5, 2000, a total of 2,800 Economic
Area licenses in the lower 80 channels of the 800 MHz SMR service were
sold. Of the 22 winning bidders, 19 claimed ``small business'' status
and won 129 licenses. Thus, combining all
[[Page 28527]]
three auctions, 40 winning bidders for geographic licenses in the 800
MHz SMR band claimed status as small business.
64. In addition, there are numerous incumbent site-by-site SMR
licensees and licensees with extended implementation authorizations in
the 800 and 900 MHz bands. The Commission does not know how many firms
provide 800 MHz or 900 MHz geographic area SMR pursuant to extended
implementation authorizations, nor how many of these providers have
annual revenues of no more than $3 million or $15 million (the special
small business size standards), or have no more than 1,500 employees
(the generic SBA standard for wireless entities, discussed, supra). One
firm has over $15 million in revenues. The Commission assumes, for
purposes of this analysis, that all of the remaining existing extended
implementation authorizations are held by small entities.
65. Advanced Wireless Services. The Report and Order adopting
service rules for Advanced Wireless Services (AWS) in the 1710-1755 and
2110-2155 MHz bands \27\ affected applicants who wish to provide
service in the 1710-1755 MHz and 2110-2155 MHz bands. As discussed in
the AWS-1 Service Rules Order, the Commission does not know precisely
the type of service that a licensee in these bands might seek to
provide.\28\ Nonetheless, the Commission anticipates 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 Service Rules Order
adopted the same small business size standards that the Commission
adopted for the broadband PCS service. In particular, the Order defined
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 Order also
provided small businesses with a bidding credit of 15 percent and very
small businesses with a bidding credit of 25 percent. In the auction
held August 9 through September 18, 2006, 55% of the winning bidders
were small businesses (57 of 104).\29\
---------------------------------------------------------------------------
\27\ Service Rules for Advanced Wireless Services in the 1.7 GHz
and 2.1 GHz Bands, WT Docket No. 02-353, 18 FCC Rcd 25162 (2003)
(AWS-1 Service Rules Order).
\28\ See id., at para. 144.
\29\ See News Release ``Statements of FCC Chairman and
Commissioners Before the Committee on Energy and Commerce,
Subcommittee on Telecommunications and the Internet, U.S. House of
Representatives'', Chairman Martin's Written Statement, Exhibit 3,
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-281580A2.pdf,
(4/15/2008).
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66. Rural Radiotelephone Service. The Commission uses the SBA small
business size standard applicable to Wireless Telecommunications
Carriers (except satellite), i.e., an entity employing no more than
1,500 persons.\30\ There are approximately 1,000 licensees in the Rural
Radiotelephone Service, and the Commission estimates that there are
1,000 or fewer small entity licensees in the Rural Radiotelephone
Service that may be affected by the rules and policies adopted herein.
---------------------------------------------------------------------------
\30\ 13 CFR 121.201, NAICS code 517210.
---------------------------------------------------------------------------
67. 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
or less for each of the three preceding years, and a ``very small
business'' as an entity with average gross revenues of $15 million or
less for each of the three preceding years.\31\ The SBA has approved
these definitions.\32\ 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.
---------------------------------------------------------------------------
\31\ Amendment of the Commission's Rules to Establish Part 27,
the Wireless Communications Service (WCS), Report and Order, 12 FCC
Rcd 10785, 10879 para. 194 (1997).
\32\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission, from Aida Alvarez, Administrator, Small
Business Administration, dated December 2, 1998.
---------------------------------------------------------------------------
68. 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
definition of 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. Note that the census category
of ``Cellular and Other Wireless Telecommunications'' is no longer used
and has been superseded by the larger category ``Wireless
Telecommunications Carriers (except satellite)''. This category
provides that a small business is a wireless company employing no more
than 1,500 persons.\33\ However, since currently available data was
gathered when ``Cellular and Other Wireless Telecommunications'' was
the relevant category, earlier Census Bureau data collected under the
category of ``Cellular and Other Wireless Telecommunications'' will be
used here. Census Bureau data for 2002 show that there were 1,397 firms
in this category that operated for the entire year.\34\ Of this total,
1,378 firms had employment of 999 or fewer employees, and 19 firms had
employment of 1,000 employees or more.\35\ Therefore, the majority of
firms can be considered small.
---------------------------------------------------------------------------
\33\ 13 CFR 121.201, NAICS code 517210.
\34\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization,'' Table 5, NAICS code 517212 (issued Nov. 2005).
\35\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1,000
employees or more.''
---------------------------------------------------------------------------
69. 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
subject to spectrum auctions. In the 220 MHz Third Report and Order,
the Commission adopted a small business size standard for defining
``small'' and ``very small'' businesses for purposes of determining
their eligibility for special provisions such as bidding credits and
installment payments.\36\ This small business 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.\37\ A ``very small business'' is
defined as an entity that, together with
[[Page 28528]]
its affiliates and controlling principals, has average gross revenues
that do not exceed $3 million for the preceding three years.\38\ The
SBA has approved these small size standards.\39\ Auctions of Phase II
licenses commenced on September 15, 1998, and closed on October 22,
1998.\40\ 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.\41\ Thirty-nine
small businesses won 373 licenses in the first 220 MHz auction. A
second auction included 225 licenses: 216 EA licenses and 9 EAG
licenses. Fourteen companies claiming small business status won 158
licenses.\42\ A third auction included four licenses: 2 BEA licenses
and 2 EAG licenses in the 220 MHz Service. No small or very small
business won any of these licenses.\43\
---------------------------------------------------------------------------
\36\ Amendment of Part 90 of the Commission's Rules to Provide
For the Use of the 220-222 MHz Band by the Private Land Mobile Radio
Service, Third Report and Order, 12 FCC Rcd 10943, 11068-70 paras.
291-295 (1997).
\37\ Id. at 11068 para. 291.
\38\ Id.
\39\ See Letter to Daniel Phythyon, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
January 6, 1998.
\40\ See generally ``220 MHz Service Auction Closes,'' Public
Notice, 14 FCC Rcd 605 (WTB 1998).
\41\ See ``FCC Announces It is Prepared to Grant 654 Phase II
220 MHz Licenses After Final Payment is Made,'' Public Notice, 14
FCC Rcd 1085 (WTB 1999).
\42\ See ``Phase II 220 MHz Service Spectrum Auction Closes,''
Public Notice, 14 FCC Rcd 11218 (WTB 1999).
\43\ See ``Multi-Radio Service Auction Closes,'' Public Notice,
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------
70. 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.\44\ 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.\45\ 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.\46\ SBA approval of these definitions is not required.\47\
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.\48\ 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.\49\ 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).\50\ 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.\51\ Accordingly, at this time there are 54 licenses in
the 700 MHz Guard Bands.
---------------------------------------------------------------------------
\44\ See Service Rules for the 746-764 MHz Bands, and Revisions
to Part 27 of the Commission's Rules, Second Report and Order, 15
FCC Rcd 5299 (2000).
\45\ Id. at 5343 para. 108.
\46\ Id.
\47\ Id. At 5343 para. 108 n.246 (for the 746-764 MHz and 776-
704 MHz bands, the Commission is exempt from 15 U.S.C. 632, which
requires Federal agencies to obtain Small Business Administration
approval before adopting small business size standards).
\48\ See ``700 MHz Guard Bands Auction Closes: Winning Bidders
Announced,'' Public Notice, 15 FCC Rcd 18026 (2000).
\49\ See ``700 MHz Guard Bands Auctions Closes: Winning Bidders
Announced,'' Public Notice, 16 FCC Rcd 4590 (WTB 2001).
\50\ See In the Matter of Service Rules for the 698-746, 747-762
and 777-792 MHz Bands, WT Docket 06-150, Second Report and Order, 22
FCC Rcd 15289, 15339-15344 paras. 118-134 (2007) (700 MHz Second
Report and Order).
\51\ Id.
---------------------------------------------------------------------------
71. 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 with attributed average
annual gross revenues that exceed $15 million and do not exceed $40
million for 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 $15 million for the preceding three
years.\52\ 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.\53\ The SBA has approved these small size
standards.\54\
---------------------------------------------------------------------------
\52\ See Auction of 700 MHz Band Licenses Scheduled for January
24, 2008, AU Docket No. 07-157, Notice and Filing Requirements,
Minimum Opening Bids, Reserve Prices, Upfront Payments, and Other
Procedures for Auctions 73 and 76, DA 07-4171 at para. 70 (WTB rel.
Oct. 5, 2007); Reallocation and Service Rules for the 698-746 MHz
Spectrum Band (Television Channels 52-59), Report and Order, 17 FCC
Rcd 1022, 1087-88 (2002).
\53\ Id. at 1088.
\54\ See Letter to Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
August 10, 1999.
---------------------------------------------------------------------------
72. 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.\55\ 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.\56\
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.\57\
---------------------------------------------------------------------------
\55\ See ``Lower 700 MHz Band Auction Closes,'' Public Notice,
17 FCC Rcd 17272 (WTB 2002).
\56\ See ``Lower 700 MHz Band Auction Closes,'' Public Notice,
18 FCC Rcd 11873 (WTB 2003).
\57\ Id.
---------------------------------------------------------------------------
73. The remaining 62 megahertz of commercial spectrum was auctioned
on January 24 through March 18, 2008. As explained above, bidding
credits for all of these licenses were available to ``small
businesses'' and ``very small businesses.'' Auction 73 concluded with
1,090 provisionally winning bids covering 1,091 licenses and totaling
$19,592,420,000. The provisionally winning bids for the A, B, C, and E
Block licenses exceeded the aggregate reserve prices for those blocks.
The provisionally winning bid for the D Block license, however, did not
meet the applicable reserve price and thus did not become a winning
bid. Approximately 55 small businesses had
[[Page 28529]]
winning bids.\58\ Currently, the 10 remaining megahertz associated with
the D block have not yet been assigned.\59\
---------------------------------------------------------------------------
\58\ See ``Auction of 700 MHz Band Licenses Closes,'' Public
Notice, 23 FCC Rcd 4572 (WTB 2008).
\59\ See fcc.gov Web site at http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73.
---------------------------------------------------------------------------
74. Private and Common Carrier Paging. The SBA had developed a
small business size standard for wireless firms within the broad
economic census category of ``Paging''.\60\ However, the census
category ``Paging'' is no longer used and has been superseded by the
larger category ``Wireless Telecommunications Carriers (except
satellite).'' \61\ Under that SBA category, a business is small if it
has 1,500 or fewer employees.\62\ However, since currently available
data was gathered when ``Paging'' was the relevant category, earlier
Census Bureau data collected under the category of ``Paging'' will be
used here. Census Bureau data for 2002 show that there were 807 firms
in this category that operated for the entire year.\63\ Of this total,
804 firms had employment of 999 or fewer employees, and three firms had
employment of 1,000 employees or more.\64\ Thus, under this category,
the majority of firms can be considered small.
---------------------------------------------------------------------------
\60\ 13 CFR 121.201, NAICS code 517211.
\61\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517210.
\62\ Id.
\63\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization,'' Table 5, NAICS code 517211 (issued Nov. 2005).
\64\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is for firms with ``1,000
employees or more.''
---------------------------------------------------------------------------
75. 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.\65\ 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.\66\ The SBA has
approved these small business size standards.\67\ An auction of
Metropolitan Economic Area licenses commenced on February 24, 2000, and
closed on March 2, 2000.\68\ Of the 2,499 licenses auctioned, 985 were
sold.\69\ Fifty-seven companies claiming small business status won 440
licenses.\70\ 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.\71\ 132 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.\72\ Currently, there are
approximately 24,000 Private Paging site-specific licenses and 74,000
Common Carrier Paging licenses. According to the Commission's Trends in
Telephone Service, 375 such carriers reported that they were engaged in
the provision of either paging or ``messaging service.'' \73\ Of these,
the Commission estimates that 370 are small, under the SBA-approved
small business size standard.\74\ The Commission estimates that the
majority of private and common carrier paging providers would qualify
as small entities under the SBA definition.
---------------------------------------------------------------------------
\65\ Amendment of Part 90 of the Commission's Rules to Provide
for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
Service, PR Docket No. 89-552, Third Report and Order and Fifth
Notice of Proposed Rulemaking, 12 FCC Rcd 10943, 11068-70, paras.
291-295 (1997).
\66\ See Letter to Amy Zoslov, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, FCC, from A.
Alvarez, Administrator, SBA (Dec. 2, 1998) (SBA Dec. 2, 1998
Letter).
\67\ Revision of Part 22 and Part 90 of the Commission's Rules
to Facilitate Future Development of Paging Systems, Memorandum
Opinion and Order on Reconsideration and Third Report and Order, 14
FCC Rcd 10030, paras. 98-107 (1999).
\68\ Id. at 10085, para. 98.
\69\ See ``929 and 931 MHz Paging Auction Closes,'' Public
Notice, 15 FCC Rcd 4858 (WTB 2000).
\70\ See id.
\71\ See ``Lower and Upper Paging Band Auction Closes,'' Public
Notice, 16 FCC Rcd 21821 (WTB 2002).
\72\ See ``Lower and Upper Paging Bands Auction Closes,'' Public
Notice, 18 FCC Rcd 11154 (WTB 2003).
\73\ See Trends in Telephone Service, Industry Analysis
Division, Wireline Competition Bureau, Table 5.3 (Number of
Telecommunications Service Providers by Size of Business) (June
2005).
\74\ 13 CFR 121.201, NAICS code 517210.
---------------------------------------------------------------------------
76. Air-Ground Radiotelephone Service. The Commission uses the SBA
definition of small business size applicable to Wireless
Telecommunications Carriers (except satellite), i.e., an entity
employing no more than 1,500 persons.\75\ There are approximately 100
licensees in the Air-Ground Radiotelephone Service, and the Commission
estimates that almost all of them qualify as small under the SBA small
business size standard.
---------------------------------------------------------------------------
\75\ Id.
---------------------------------------------------------------------------
77. Aviation and Marine Radio Services. Small businesses in the
aviation and marine radio services use a very high frequency (VHF)
marine or aircraft radio and, as appropriate, an emergency position-
indicating radio beacon (and/or radar) or an emergency locator
transmitter. The Commission has not developed a small business size
standard specifically applicable to these small businesses. For
purposes of this analysis, the Commission uses the SBA small business
size standard for the category Wireless Telecommunications Carriers
(except satellite), which is 1,500 or fewer employees.\76\ Most
applicants for recreational licenses are individuals. Approximately
47,750 ship station licensees, who hold approximately 56,250 ship
station licenses, and approximately 27,700 aircraft station licensees,
who hold approximately 32,000 aircraft station licenses, operate
domestically and are not subject to the radio carriage requirements of
any statute or treaty. For purposes of our evaluations in this
analysis, the Commission estimates that there are up to approximately
75,450 licensees that are small businesses (or individuals) under the
SBA standard. In addition, between December 3, 1998 and December 14,
1998, the Commission held an auction of 42 VHF Public Coast licenses in
the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz
(coast transmit) bands. For purposes of the auction, the Commission
defined a ``small'' business as an entity that, together with
controlling interests and affiliates, has average gross revenues for
the preceding three years not to exceed $15 million. In addition, a
``very small'' business is one that, together with controlling
interests and affiliates, has average gross revenues for the preceding
three years not to exceed $3 million.\77\ There are approximately 6,100
Marine Coast Service licenses, held by approximately 3,600 licensees,
and the Commission estimates that almost all of them qualify as
``small'' businesses under the above special small business size
standards.
---------------------------------------------------------------------------
\76\ Id.
\77\ Amendment of the Commission's Rules Concerning Maritime
Communications, PR Docket No. 92-257, Third Report and Order and
Memorandum Opinion and Order, 13 FCC Rcd 19853 (1998).
---------------------------------------------------------------------------
78. Fixed Microwave Services. Fixed microwave services include
common
[[Page 28530]]
carrier,\78\ private operational-fixed,\79\ and broadcast auxiliary
radio services.\80\ At present, there are approximately 31,428 common
carrier fixed licensees and 79,732 private operational-fixed licensees
and broadcast auxiliary radio licensees in the microwave services. The
Commission has not created a size standard for a small business
specifically with respect to fixed microwave services. For purposes of
this analysis, the Commission uses the SBA small business size standard
for the category ``Wireless Telecommunications Carriers (except
satellite),'' which provides that a small business is a wireless
company employing no more than 1,500 persons.\81\ The Commission does
not have data specifying the number of these licensees that have more
than 1,500 employees, and thus is unable at this time to estimate with
greater precision the number of fixed microwave service licensees that
would qualify as small business concerns under the SBA's small business
size standard. Consequently, the Commission estimates that there are up
to 31,428 common carrier fixed licensees and up to 79,732 private
operational-fixed licensees and broadcast auxiliary radio licensees in
the microwave services that may be small and may be affected by the
rules and policies adopted herein. The Commission notes, however, that
the common carrier microwave fixed licensee category includes some
large entities.
---------------------------------------------------------------------------
\78\ See 47 CFR 101 et seq. (formerly, part 21 of the
Commission's Rules) for common carrier fixed microwave services
(except Multipoint Distribution Service).
\79\ Persons eligible under parts 80 and 90 of the Commission's
Rules can use Private Operational-Fixed Microwave services. See 47
CFR parts 80 and 90. Stations in this service are called
operational-fixed to distinguish them from common carrier and public
fixed stations. Only the licensee may use the operational-fixed
station, and only for communications related to the licensee's
commercial, industrial, or safety operations.
\80\ Auxiliary Microwave Service is governed by part 74 of Title
47 of the Commission's rules. See 47 CFR part 74. This service is
available to licensees of broadcast stations and to broadcast and
cable network entities. Broadcast auxiliary microwave stations are
used for relaying broadcast television signals from the studio to
the transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes mobile television
pickups, which relay signals from a remote location back to the
studio.
\81\ 13 CFR 121.201, NAICS code 517210.
---------------------------------------------------------------------------
79. Offshore Radiotelephone Service. This service operates on
several UHF television broadcast channels that are not used for
television broadcasting in the coastal areas of states bordering the
Gulf of Mexico.\82\ There is presently one licensee in this service.
The Commission uses the SBA definition applicable to Wireless
Telecommunications Carriers (except satellite), i.e., an entity
employing no more than 1,500 persons.\83\ The Commission is unable to
estimate at this time the number of licensees that would qualify as
small entities under the SBA definition. The Commission assumes, for
purposes of this analysis, that the licensee is a small entity, as that
term is defined by the SBA.
---------------------------------------------------------------------------
\82\ This service is governed by Subpart I of Part 22 of the
Commission's rules. See 47 CFR 22.1001 through 22.1037.
\83\ 13 CFR 121.201, NAICS code 517210.
---------------------------------------------------------------------------
80. 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.\84\ 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.\85\
The SBA has approved these small business size standards.\86\ 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 polices adopted herein.
---------------------------------------------------------------------------
\84\ See Amendment of the Commission's Rules Regarding the 37.0-
38.6 GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, Report and
Order, 63 FR 6079 (Feb. 6, 1998).
\85\ Id.
\86\ See Letter to Kathleen O'Brien Ham, Chief, Auctions and
Industry Analysis Division, Wireless Telecommunications Bureau, FCC,
from Aida Alvarez, Administrator, SBA (Feb. 4, 1998).
---------------------------------------------------------------------------
81. Broadband Radio Service and Educational Broadband Service. The
Broadband Radio Service (``BRS''), formerly known as the Multipoint
Distribution Service (``MDS''),\87\ and the Educational Broadband
Service (``EBS''), formerly known as the Instructional Television Fixed
Service (``ITFS''),\88\ use 2 GHz band frequencies to transmit video
programming and provide broadband services to residential
subscribers.\89\ 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.\90\
The Commission estimates that the number of wireless cable subscribers
is approximately 100,000, as of March 2005. 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.\91\
Note that the census category of ``Cable and Other Program
Distribution'' is no longer used and has been superseded by the larger
category ``Wireless Telecommunications Carriers (except satellite).''
This category provides that a small business is a wireless company
employing no more than 1,500 persons.\92\ However, since currently
available data was gathered when ``Cable and Other Program
Distribution'' was the relevant category, earlier Census Bureau data
collected under the category of ``Cable and Other Program
Distribution'' will be used here. Other standards also apply, as
described.
---------------------------------------------------------------------------
\87\ See 47 CFR part 21, subpart K; Amendment of Parts 1, 21,
73, 74 and 101 of the Commission's Rules to Facilitate the Provision
of Fixed and Mobile Broadband Access, Educational and Other Advanced
Services in the 2150-2162 and 2500-2690 MHz Bands; Part 1 of the
Commission's Rules--Further Competitive Bidding Procedures;
Amendment of Parts 21 and 74 to Enable Multipoint Distribution
Service and the Instructional Television Fixed Service Amendment of
Parts 21 and 74 to Engage in Fixed Two-Way Transmissions; Amendment
of Parts 21 and 74 of the Commission's Rules With Regard to
Licensing in the Multipoint Distribution Service and in the
Instructional Television Fixed Service for the Gulf of Mexico, 19
FCC Rcd 14165 (2004) (``MDS/ITFS Order'').
\88\ See 47 CFR part 74, subpart I; MDS/ITFS Order, 19 FCC Rcd
14165 (2004).
\89\ See Annual Assessment of the Status of Competition in the
Market for the Delivery of Video Programming, Eleventh Annual
Report, 20 FCC Rcd 2507, 2565 para. 131 (2006) (``2006 Cable
Competition Report'').
\90\ Id.
\91\ 13 CFR 121.201, NAICS code 515210.
\92\ 13 CFR 121.201, NAICS code 517210.
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82. The Commission has defined small MDS (now BRS) entities in the
context of Commission license auctions. In the 1996 MDS auction,\93\
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.\94\ This definition of a small entity in the context of
MDS auctions has been approved by the SBA.\95\ 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 hundreds of MDS licensees and wireless cable
operators that did not receive their
[[Page 28531]]
licenses as a result of the MDS auction and that fall under the former
SBA small business size standard for Cable and Other Program
Distribution.\96\ 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 of these small entity MDS
(or BRS) providers, as defined by the SBA and the Commission's auction
rules.
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\93\ MDS Auction No. 6 began on November 13, 1995, and closed on
March 28, 1996. (67 Bidders won 493 licenses.)
\94\ 47 CFR 21.961(b)(1).
\95\ See ITFS Order, 10 FCC Rcd at 9589.
\96\ Hundreds of stations were licensed to incumbent MDS
licensees prior to implementation of Section 309(j) of the
Communications Act of 1934, 47 U.S.C. 309(j). For these pre-auction
licenses, the applicable standard is SBA's small business size
standard for ``Cable and Other Program Distribution'' (annual
receipts of $13.5 million or less). See 13 CFR 121.201, NAICS code
515210.
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83. 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).\97\ The Commission estimates
that there are currently 2,452 EBS licenses, held by 1,524 EBS
licensees, and all but 100 of the licenses are held by educational
institutions. Thus, the Commission estimates that at least 1,424 EBS
licensees are small entities.
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\97\ In addition, the term ``small entity'' under SBREFA applies
to small organizations (nonprofits) and to small governmental
jurisdictions (cities, counties, towns, townships, villages, school
districts, and special districts with populations of less than
50,000). 5 U.S.C. 601(4) through (6). The Commission does not
collect annual revenue data on EBS licensees.
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84. 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.\98\ The auction of the 986 Local Multipoint
Distribution Service (LMDS) licenses began on February 18, 1998, and
closed on March 25, 1998. The Commission established a small business
size standard for LMDS licenses as an entity that has average gross
revenues of less than $40 million in the three previous calendar
years.\99\ 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.\100\ The SBA has approved these small
business size standards in the context of LMDS auctions.\101\ 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.
---------------------------------------------------------------------------
\98\ See Local Multipoint Distribution Service, Second Report
and Order, 12 FCC Rcd 12545 (1997).
\99\ Id.
\100\ See id.
\101\ See Letter to Dan Phythyon, Chief, Wireless
Telecommunications Bureau, FCC, from Aida Alvarez, Administrator,
SBA (Jan. 6, 1998).
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85. 218-219 MHz Service. The first auction of 218-219 MHz
(previously referred to as the Interactive and Video Data Service or
IVDS) spectrum resulted in 178 entities winning licenses for 594
Metropolitan Statistical Areas (``MSAs'').\102\ Of the 594 licenses,
567 were won by 167 entities qualifying as small businesses. For that
auction, the Commission defined a small business as 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.\103\ In the 218-219 MHz Report and Order and Memorandum
Opinion and Order, the Commission defined 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 exceeding $15 million for the preceding three
years.\104\ A very small business is defined as an entity that,
together with its affiliates and persons or entities that hold
interests in such an entity and its affiliates, has average annual
gross revenues not exceeding $3 million for the preceding three
years.\105\ The SBA has approved of these definitions.\106\ A
subsequent auction is not yet scheduled. Given the success of small
businesses in the previous auction, and the prevalence of small
businesses in the subscription television services and message
communications industries, the Commission assumes for purposes of this
analysis that in future auctions, many, and perhaps most, of the
licenses may be awarded to small businesses.
---------------------------------------------------------------------------
\102\ See ``Interactive Video and Data Service (IVDS)
Applications Accepted for Filing,'' Public Notice, 9 FCC Rcd 6227
(1994).
\103\ Implementation of Section 309(j) of the Communications
Act--Competitive Bidding, PP Docket No. 93-253, Fourth Report and
Order, 9 FCC Rcd 2330 (1994). 59 FR 24947 (May 13, 1994).
\104\ Amendment of Part 95 of the Commission's Rules to Provide
Regulatory Flexibility in the 218-219 MHz Service, WT Docket No. 98-
169, Report and Order and Memorandum Opinion and Order, 15 FCC Rcd
1497 64 FR 59656 (Nov. 3, 1999).
\105\ Id.
\106\ See Letter from Aida Alvarez, Administrator, SBA, to
Daniel Phythyon, Chief, WTB, FCC (Jan. 6, 1998) (``Alvarez to
Phythyon Letter 1998'').
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86. 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 was formerly that of
``Cellular and Other Wireless Telecommunications'' companies. Note that
the census category of ``Cellular and Other Wireless
Telecommunications'' is no longer used and has been superseded by the
larger category ``Wireless Telecommunications Carriers (except
satellite).'' This category provides that a small business is a
wireless company employing no more than 1,500 persons.\107\ However,
since currently available data was gathered when ``Cellular and Other
Wireless Telecommunications'' was the relevant category, earlier Census
Bureau data collected under the category of ``Cellular and Other
Wireless Telecommunications'' will be used here. The Commission
believes that there are only two licensees in the 24 GHz band that were
relocated from the 18 GHz band, Teligent \108\ and TRW, Inc. It is our
understanding that Teligent and its related companies have fewer 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.
---------------------------------------------------------------------------
\107\ 13 CFR 121.201, NAICS code 517210.
\108\ Teligent acquired the DEMS licenses of FirstMark, the only
licensee other than TRW in the 24 GHz band whose license has been
modified to require relocation to the 24 GHz band.
---------------------------------------------------------------------------
87. 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.\109\ ``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.\110\ The SBA has approved these small business size
standards.\111\ These size standards will apply to the future auction,
if held.
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\109\ Amendments to Parts 1, 2, 87 and 101 of the Commission's
Rules to License Fixed Services at 24 GHz, Report and Order, 15 FCC
Rcd 16934, 16967 (2000); see also 47 CFR 101.538(a)(2).
\110\ Amendments to Parts 1, 2, 87 and 101 of the Commission's
Rules to License Fixed Services at 24 GHz, Report and Order, 15 FCC
Rcd 16934, 16967 (2000); see also 47 CFR 101.538(a)(1).
\111\ See Letter to Margaret W. Wiener, Deputy Chief, Auctions
and Industry Analysis Division, Wireless Telecommunications Bureau,
FCC, from Gary M. Jackson, Assistant Administrator, SBA (July 28,
2000).
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[[Page 28532]]
88. Private Land Mobile Radio. Private Land Mobile Radio (``PLMR'')
systems serve an essential role in a range of industrial, business,
land transportation, and public safety activities. These radios are
used by companies of all sizes operating in all U.S. business
categories. The SBA has not developed a definition of small entity
specifically applicable to PLMR licensees due to the vast array of PLMR
users. Therefore, solely for purposes of citing to currently available
data, the Commission will use a superseded SBA definition applicable to
Cellular and Other Wireless Telecommunications. Note that the census
category of ``Cellular and Other Wireless Telecommunications'' is no
longer used and has been superseded by the larger category ``Wireless
Telecommunications Carriers (except satellite).'' This category
provides that a small business is a wireless company employing no more
than 1,500 persons.\112\ However, since currently available data was
gathered when ``Cellular and Other Wireless Telecommunications'' was
the relevant category, earlier Census Bureau data collected under the
category of ``Cellular and Other Wireless Telecommunications'' will be
used here.
---------------------------------------------------------------------------
\112\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517210.
---------------------------------------------------------------------------
89. The Commission is unable at this time to estimate the number of
small businesses which could be impacted by the rules. The Commission's
1994 Annual Report on PLMRs \113\ indicates that at the end of fiscal
year 1994 there were 1,087,267 licensees operating 12,481,989
transmitters in the PLMR bands below 512 MHz. Because any entity
engaged in a commercial activity is eligible to hold a PLMR license,
the revised rules in this context could potentially impact every small
business in the United States.
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\113\ Federal Communications Commission, 60th Annual Report,
Fiscal Year 1994, at paragraph 116.
---------------------------------------------------------------------------
90. Public Safety Radio Services. Public Safety radio services
include police, fire, local government, forestry conservation, highway
maintenance, and emergency medical services. There are a total of
approximately 44,083 licensees within these services. Governmental
entities \114\ as well as private businesses comprise the licensees for
these services. All governmental entities with populations of less than
50,000 fall within the definition of a small entity.\115\
---------------------------------------------------------------------------
\114\ 47 CFR 1.1162.
\115\ 5 U.S.C. 601(5).
---------------------------------------------------------------------------
91. Location and Monitoring Service (``LMS''). Multilateration LMS
systems use non-voice radio techniques to determine the location and
status of mobile radio units. For purposes of auctioning LMS licenses,
the Commission has defined ``small business'' as an entity that,
together with controlling interests and affiliates, has average annual
gross revenues for the preceding three years not to exceed $15
million.\116\ A ``very small business'' is defined as an entity that,
together with controlling interests and affiliates, has average annual
gross revenues for the preceding three years not to exceed $3
million.\117\ These definitions have been approved by the SBA.\118\ An
auction for LMS licenses commenced on February 23, 1999, and closed on
March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to
four small businesses. The Commission concludes that the number of LMS
licensees affected by this Report and Order includes these four
entities. The Commission cannot accurately predict the number of
remaining licenses that could be awarded to small entities in future
LMS auctions. In addition, there are numerous site-by-site non-
multilateration licensees, and the Commission does not know how many of
these providers have annual revenues of no more than $15 million. The
Commission assumes, for purposes of this analysis, that all of these
licenses are held by small entities, as that small business size
standard is established by the SBA.
---------------------------------------------------------------------------
\116\ Amendment of Part 90 of the Commission's Rules to Adopt
Regulations for Automatic Vehicle Monitoring Systems, Second Report
and Order, 13 FCC Rcd 15182 para. 20 (1998); see also 47 CFR
90.1103.
\117\ Id.
\118\ See Letter to Thomas J. Sugrue, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration (Feb. 22,
1999).
---------------------------------------------------------------------------
92. Multiple Address Systems. Entities using Multiple Address
Systems (MAS) spectrum, in general, fall into two categories: (1) Those
using the spectrum for profit-based uses, and (2) those using the
spectrum for private internal uses. With respect to the first category,
the Commission defines ``small entity'' for MAS licensees as an entity
that has average gross revenues of less than $15 million in the three
previous calendar years.\119\ ``Very small business'' is defined as an
entity that, together with its affiliates, has average gross revenues
of not more than $3 million for the preceding three calendar
years.\120\ The SBA has approved of these definitions.\121\ The
majority of these entities will most likely be licensed in bands where
the Commission has implemented a geographic area licensing approach
that would require the use of competitive bidding procedures to resolve
mutually exclusive applications. The Commission's licensing database
indicates that, as of April 16, 2010, there were a total of 11,653
site-based MAS station authorizations. Of these, 58 authorizations were
associated with common carrier service. In addition, the Commission's
licensing database indicates that, as of April 16, 2010, there were a
total of 3,330 EA market area MAS authorizations.
---------------------------------------------------------------------------
\119\ See Amendment of the Commission's Rules Regarding Multiple
Address Systems, Report and Order, 15 FCC Rcd 11956, 12008 para. 123
(2000).
\120\ Id.
\121\ See Letter to Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, from
Aida Alvarez, Administrator, Small Business Administration, dated
June 4, 1999.
---------------------------------------------------------------------------
93. With respect to the second category, which consists of entities
that use, or seek to use, MAS spectrum to accommodate their own
internal communications needs, MAS serves an essential role in a range
of industrial, safety, business, and land transportation activities.
MAS radios are used by companies of all sizes, operating in virtually
all U.S. business categories, and by all types of public safety
entities. For the majority of private internal users, the definitions
developed by the SBA would be more appropriate than the Commission's
definition. The applicable definition of small entity in this instance
appears to be the ``Wireless Telecommunications Carriers (except
satellite)'' definition under the SBA rules.\122\ Under that SBA
category, a business is small if it has 1,500 or fewer employees.\123\
The Commission's licensing database indicates that, as of April 16,
2010, of the 11,653 total MAS station authorizations, 10,773
authorizations were for private radio service.
---------------------------------------------------------------------------
\122\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517210.
\123\ Id.
---------------------------------------------------------------------------
94. Television Broadcasting. The proposed rules and policies apply
to television broadcast licensees and potential licensees of television
service. The SBA defines a television broadcast station as a small
business if such station has no more than $14 million in annual
receipts.\124\ Business concerns included in this industry are those
``primarily engaged in broadcasting
[[Page 28533]]
images together with sound.'' \125\ The Commission has estimated the
number of licensed commercial television stations to be 1,392.\126\
According to Commission staff review of the BIA/Kelsey, MAPro
Television Database (``BIA'') as of April 7, 2010, about 1,015 of an
estimated 1,380 commercial television stations \127\ (or about 74
percent) have revenues of $14 million or less and thus qualify as small
entities under the SBA definition. The Commission has estimated the
number of licensed non-commercial educational (NCE) television stations
to be 390.\128\ The Commission notes, however, that, in assessing
whether a business concern qualifies as small under the above
definition, business (control) affiliations \129\ must be included. Our
estimate, therefore, likely overstates the number of small entities
that might be affected by our 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.
---------------------------------------------------------------------------
\124\ See 13 CFR 121.201, NAICS Code 515120.
\125\ Id. This category description continues, ``These
establishments operate television broadcasting studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in
turn broadcast the programs to the public on a predetermined
schedule. Programming may originate in their own studios, from an
affiliated network, or from external sources.'' Separate census
categories pertain to businesses primarily engaged in producing
programming. See Motion Picture and Video Production, NAICS code
512110; Motion Picture and Video Distribution, NAICS Code 512120;
Teleproduction and Other Post-Production Services, NAICS Code
512191; and Other Motion Picture and Video Industries, NAICS Code
512199.
\126\ See News Release, ``Broadcast Station Totals as of
December 31, 2009,'' 2010 WL 676084 (F.C.C.) (dated Feb. 26, 2010)
(``Broadcast Station Totals''); also available at http://www.fcc.gov/mb/.
\127\ The Commission recognizes that this total differs slightly
from that contained in Broadcast Station Totals, supra note 446;
however, the Commission is using BIA's estimate for purposes of this
revenue comparison.
\128\ See Broadcast Station Totals, supra note 126.
\129\ ``[Business concerns] are affiliates of each other when
one concern controls or has the power to control the other or a
third party or parties controls or has the power to control both.''
13 CFR 121.103(a)(1).
---------------------------------------------------------------------------
95. 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 estimates 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 our estimates of small businesses to which they apply may
be over-inclusive to this extent.
96. Class A TV, LPTV, and TV translator stations. The rules and
policies proposed in this Notice include licensees of Class A TV
stations, low power television (LPTV) stations, and TV translator
stations, as well as potential licensees in these television services.
The same SBA definition that applies to television broadcast licensees
would apply to these stations. The SBA defines a television broadcast
station as a small business if such station has no more than $14
million in annual receipts.\130\ Currently, there are approximately 537
licensed Class A stations, 2,386 licensed LPTV stations, and 4,359
licensed TV translators.\131\ Given the nature of these services, the
Commission will presume that all of these licensees qualify as small
entities under the SBA definition. The Commission notes, however, that
under the SBA's definition, revenue of affiliates that are not LPTV
stations should be aggregated with the LPTV station revenues in
determining whether a concern is small. Our estimate may thus overstate
the number of small entities since the revenue figure on which it is
based does not include or aggregate revenues from non-LPTV affiliated
companies. The Commission does not have data on revenues of TV
translator or TV booster stations, but virtually all of these entities
are also likely to have revenues of less than $14 million and thus may
be categorized as small, except to the extent that revenues of
affiliated non-translator or booster entities should be considered.
---------------------------------------------------------------------------
\130\ See 13 CFR 121.201, NAICS Code 515120.
\131\ See Broadcast Station Totals, supra note 126.
---------------------------------------------------------------------------
97. Radio Broadcasting. The proposed rules and policies could apply
to radio broadcast licensees, and potential licensees of radio service.
The SBA defines a radio broadcast station as a small business if such
station has no more than $7 million in annual receipts.\132\ Business
concerns included in this industry are those primarily engaged in
broadcasting aural programs by radio to the public.\133\ According to
Commission staff review of the BIA/Kelsey Master Access Radio Analyzer
Database on April 7, 2010, about 10,900 of 11,200 commercial radio
stations (or about 97 percent) have revenues of $7 million or less and
thus qualify as small entities under the SBA definition. The Commission
notes, however, that, in assessing whether a business concern qualifies
as small under the above definition, business (control) affiliations
\134\ must be included. Our estimate, therefore, likely overstates the
number of small entities that might be affected by our action, because
the revenue figure on which it is based does not include or aggregate
revenues from affiliated companies.
---------------------------------------------------------------------------
\132\ See 13 CFR 121.201, NAICS Code 515112.
\133\ Id.
\134\ ``[Business concerns] are affiliates of each other when
one concern controls or has the power to control the other or a
third party or parties controls or has to power to control both.''
13 CFR 121.103(a)(1).
---------------------------------------------------------------------------
98. 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 radio station is dominant in
its field of operation. Accordingly, the estimates of small businesses
to which rules may apply do not exclude any radio station from the
definition of a small business on this basis and therefore may be 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 our estimates of small businesses to which they apply may
be over-inclusive to this extent.
99. FM translator stations and low power FM stations. The proposed
rules and policies could affect licensees of FM translator and booster
stations and low power FM (LPFM) stations, as well as potential
licensees in these radio services. The same SBA definition that applies
to radio broadcast licensees would apply to these stations. The SBA
defines a radio broadcast station as a small business if such station
has no more than $7 million in annual receipts.\135\ Currently, there
are approximately 6,155 licensed FM translator and booster stations and
864 licensed LPFM stations.\136\ Given the nature of these services,
the Commission will presume that all of
[[Page 28534]]
these licensees qualify as small entities under the SBA definition.
---------------------------------------------------------------------------
\135\ See 13 CFR 121.201, NAICS Code 515112.
\136\ See News Release, ``Broadcast Station Totals as of
December 31, 2009'' (rel. Feb. 26, 2010) (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-296538A1.pdf269784A1.doc).
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100. Cable Television Systems. The proposed rules and policies
could affect cable television systems. Cable television systems fall
within the SBA standard for Wired Telecommunication Carriers, and in
this category a business is small if it has 1500 or fewer
employees.\137\ This category includes, among others, cable operators,
direct broadcast satellite services, fixed-satellite services, home
satellite dish services, multipoint distribution services, multichannel
multipoint distribution service, Instructional Television Fixed
Service, local multipoint distribution service, satellite master
antenna television systems, and open video systems.\138\ Since
currently available data was gathered when ``Cable and Other Program
Distribution'' was the relevant category, earlier Census Bureau data
collected under the category of ``Cable and Other Program
Distribution'' will be used here. According to Census Bureau data,
there are 1,311 total cable and other pay television service firms that
operate throughout the year of which 1,180 have less than $10 million
in revenue.\139\ Consequently, the Commission estimates that the
majority of providers in this service category are small businesses
that may be affected by the rules and policies adopted herein. The
Commission addresses below each service individually to provide a more
precise estimate of small entities.
---------------------------------------------------------------------------
\137\ 13 CFR 121.201 (NAICS Code 517110). This NAICS Code
applies to all services listed in this paragraph.
\138\ Those MVPDs relying primarily or exclusively on satellite
transmission could also be considered to fall under the ``Satellite
Telecommunications'' category. 13 CFR 121.201 (NAICS Code 517410).
\139\ Economics and Statistics Administration, Bureau of Census,
U.S. Department of Commerce, 1997 Economic Census, Subject Series--
Establishment and Firm Size, Information Sector 51, Table 4 at 50
(2000). The amount of $10 million was used to estimate the number of
small business firms because the relevant Census categories stopped
at $9,999,999 and began at $10,000,000. No category for $1412.5
million existed. Thus, the number is as accurate as it is possible
to calculate with the available information.
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101. Cable System Operators (Rate Regulation Standard). The
Commission has developed its own small business size standards for the
purpose of cable rate regulation. Under the Commission's rules, a
``small cable company'' is one serving 400,000 or fewer subscribers
nationwide.\140\ As of 2008, out of 814 \141\ cable operators all but
10, that is 804, qualify as small cable companies under this
standard.\142\ In addition, under the Commission's rules, a ``small
system'' is a cable system serving 15,000 or fewer subscribers.\143\
Current Commission records show 6000 cable systems. Of these 726 have
20,000 subscribers or more, based on the same records. The Commission
estimates that there are 5,000 small systems based upon this standard.
---------------------------------------------------------------------------
\140\ 47 CFR 76.901(e). The Commission determined that this size
standard equates approximately to a size standard of $100 million or
less in annual revenues. The Commission developed this definition
based on its determination that a small cable system operator is one
with annual revenues of $100 million or less. See Implementation of
Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and
Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408
(1995).
\141\ Cable MSO Ownership, A Geographical Analysis, 2009
Edition, 14-31, SNL Kagan (June 2009).
\142\ Id. at 12.
\143\ 47 CFR 76.901(c).
---------------------------------------------------------------------------
102. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, also contains a size standard
for small cable system operators, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than 1
percent of all subscribers in the United States and is not affiliated
with any entity or entities whose gross annual revenues in the
aggregate exceed $250,000,000.'' \144\ There are approximately 63.7
million cable subscribers in the United States today.\145\ Accordingly,
an operator serving fewer than 637,000 subscribers shall be deemed a
small operator if its annual revenues, when combined with the total
annual revenues of all its affiliates, do not exceed $250 million in
the aggregate.\146\ Based on available data, the Commission finds that
the number of cable operators serving 637,000 subscribers or less is
also 804.\147\ The Commission notes that the Commission neither
requests nor collects information on whether cable system operators are
affiliated with entities whose gross annual revenues exceed $250
million.\148\ Although it seems certain that some of these cable system
operators are affiliated with entities whose gross annual revenues
exceed $250,000,000, the Commission is unable at this time to estimate
with greater precision the number of cable system operators that would
qualify as small cable operators under the definition in the
Communications Act.
---------------------------------------------------------------------------
\144\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3.).
\145\ See Cable TV Investor: Deals & Finance, No. 655, SNL
Kagan, March 31, 2009, at 6.
\146\ 47 CFR 76.901(f); see Public Notice, FCC Announces New
Subscriber Count for the Definition of Small Cable Operator, DA 01-
158 (Cable Services Bureau, Jan. 24, 2001).
\147\ Cable MSO Ownership at 12.
\148\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's
finding that the operator does not qualify as a small cable operator
pursuant to Section 76.901(f) of the Commission's rules. See 47 CFR
76.901(f).
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103. Satellite Telecommunications. The category of Satellite
Telecommunications ``comprises establishments primarily engaged in
providing telecommunications services to other establishments in the
telecommunications and broadcasting industries by forwarding and
receiving communications signals via a system of satellites or
reselling satellite telecommunications.'' \149\ The category has a
small business size standard of $15 million or less in average annual
receipts, under SBA rules.\150\ For this category, Census Bureau data
for 2002 show that there were a total of 371 firms that operated for
the entire year.\151\ Of this total, 307 firms had annual receipts of
under $10 million, and 26 firms had receipts of $10 million to
$24,999,999.\152\ Consequently, the Commission estimates that the
majority of Satellite Telecommunications firms are small entities that
might be affected by its action.
---------------------------------------------------------------------------
\149\ U.S. Census Bureau, 2007 NAICS Definitions, ``517410
Satellite Telecommunications''; http://www.census.gov/naics/2007/def/ND517410.HTM.
\150\ 13 CFR 121.201, NAICS code 517410.
\151\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization),'' Table 4, NAICS code 517410 (issued Nov. 2005).
\152\ Id. An additional 38 firms had annual receipts of $25
million or more.
---------------------------------------------------------------------------
104. All Other Telecommunications. Satellite-related businesses
within this category include ``establishments primarily engaged in
providing specialized telecommunications services, such as satellite
tracking, communications telemetry, and radar station operation. This
industry also includes establishments primarily engaged in providing
satellite terminal stations and associated facilities connected with
one or more terrestrial systems and capable of transmitting
telecommunications to, and receiving telecommunications from, satellite
systems.'' \153\ For this category, Census Bureau data for 2002 show
that there were a total of 332 firms that operated for the entire
year.\154\ Of this total, 303
[[Page 28535]]
firms had annual receipts of under $10 million and 15 firms had annual
receipts of $10 million to $24,999,999.\155\ Consequently, the
Commission estimates that the majority of All Other Telecommunications
firms are small entities that might be affected by its action.
---------------------------------------------------------------------------
\153\ U.S. Census Bureau, 2007 NAICS Definitions, ``517919 All
Other Telecommunications''; http://www.census.gov/naics/2007/def/ND517919.HTM#N517919.
\154\ U.S. Census Bureau, 2002 Economic Census, Subject Series:
Information, ``Establishment and Firm Size Including Legal Form of
Organization),'' Table 4, NAICS code 517910 (issued Nov. 2005).
\155\ Id. An additional 14 firms had annual receipts of $25
million or more.
---------------------------------------------------------------------------
105. Non-Licensee Tower Owners. The Commission's rules require that
any entity proposing to construct an antenna structure over 200 feet or
within the glide slope of an airport must register the antenna
structure with the Commission on FCC Form 854.\156\ Thus, non-licensee
tower owners may be subject to any new or additional requirements
adopted in this proceeding. As of April 14, 2010, there were 103,444
registration records in a `Constructed' status and 13,291 registration
records in a `Granted, Not Constructed' status in the Antenna Structure
Registration (ASR) database. This includes both towers registered to
licensees and towers registered to non-licensee tower owners. The
Commission does not keep information from which the Commission can
easily determine how many of these towers are registered to non-
licensees or how many non-licensees have registered towers.\157\ In
addition, the Commission does not keep data on businesses with annual
revenue over $25 million. Moreover, the SBA has not developed a size
standard for small businesses in the category ``Tower Owners.''
Therefore, the Commission is unable to estimate the number of non-
licensee tower owners that are small entities. However, because these
regulations impact tower owners, the Commission is choosing a category
related to our jurisdiction because of the nexus between our regulatory
function and telecommunications with respect to towers. The Commission
will assume that nearly all non-licensee tower companies are small
businesses under the SBA's definition for ``All Other
Telecommunications.'' \158\
---------------------------------------------------------------------------
\156\ 47 CFR 17.4(a), 17.7(a).
\157\ The Commission notes, however, that approximately 13,000
towers are registered to 10 cellular carriers with 1,000 or more
employees.
\158\ 13 CFR 121.201, North American Industry Classification
System (NAICS) code 517919. Under this category, a business is small
if it has 1,500 or fewer employees.
---------------------------------------------------------------------------
4. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
106. This NPRM proposes to amend Sec. 17.4(g) by requiring that
the Antenna Structure Registration Number be displayed so that it is
conspicuously visible and legible from every point of ingress/egress to
the publicly accessible area nearest the base of the antenna structure,
instead of only near the base of the structure as before. If Sec.
17.4(g) is amended, the owner of the structure would have to display
the Antenna Structure Registration Number so that it is conspicuously
visible and legible from potentially multiple locations near the base
of the antenna structure instead of only at one location.
107. The NPRM proposes to amend Sec. 17.48 by requiring antenna
structure owners to provide continuously active notice to the FAA of
lighting outages to allow the FAA to timely maintain Notices to Airmen
(NOTAMs) or issue new NOTAMs, as necessary. Specifically, if the lights
cannot be repaired within 15 days, the owner shall notify the FAA to
extend the outage date and report a return to service date. The owner
will repeat this process every 15 days until the lights are repaired.
If the amendment to Sec. 17.48 is adopted, the owner of the structure
would have to provide continuously active notice to the FAA of lighting
outages, instead of the one time notice currently required.
108. Although Sec. 17.49 of the rules requires antenna structure
owners to maintain a record of observed or otherwise known
extinguishments or improper functioning of structure lights, it does
not currently specify how long the record should be kept or what is to
be done with it. The Notice proposes that the record be kept for two
years and that it be provided to the Commission upon request. If
adopted, antenna structure owners would be required to keep their
records for two years and provide them to the Commission upon request.
5. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
109. The Commission proposes to amend Sec. 17.4(a) and Sec. Sec.
17.21, 17.22 (redesignated as Sec. 17.21(c)), and 17.23 and delete
Sec. 17.17(a) of the Commission's rules regarding antenna structure
registration and painting and lighting specifications. The Commission
also proposes conforming edits to Sec. Sec. 1.61(a)(5) and 17.1(b).
These proposed changes are intended both to promote aircraft navigation
safety and also to reduce regulatory burdens on small entities by
clarifying the relationship between the Commission's rules and
procedures and those of the FAA and ensuring continued consistency in
those rules and procedures. The Commission asks commenters to suggest
alternatives that may further reduce the impact on small entities while
achieving the above intended goals. The Commission specifically seeks
comment on whether to further reduce regulatory burdens on small
entities by amending Sec. 17.17(b) (redesignated as Sec. 17.24) to
provide that a revised FAA Circular does not impose new obligations on
already-approved antenna structures. The Commission seeks comment on
whether such deregulatory action would unduly limit the Commission's
flexibility and whether it would afford appropriate deference to the
FAA's expertise and how possible alternatives could further lessen the
burden on small businesses while achieving these goals.
110. In order to clarify the obligations of antenna structure
owners and conform the Commission's regulations to Commission and FAA
practice, the Commission proposes adding new sections to Sec. 17.4
specifying that any change in height of one foot or greater, any change
in coordinates of one second or greater, or any change in marking and
lighting specifications requires prior approval from the FAA and the
Commission. These proposed changes are intended both to promote
aircraft navigation safety and to ease regulatory burdens by
streamlining regulations and reducing confusion. The Commission also
proposes to consider whether to specify accuracy standards or survey
methods in order to ensure consistency of data. The Commission seeks to
hear about alternative rules that would achieve the same goals while
reducing burdens to small business.
111. The Commission proposes to delete Sec. Sec. 17.7 and 17.14 of
the Commission's rules, which are restatements of FAA rules, and to
substitute cross-references to relevant FAA rules in Sec. 17.4 of the
Commission's rules. This change could ease burdens on regulated
entities, including small businesses, by reducing the risk of confusion
in the event the FAA were to change its criteria. The Commission seeks
any alternatives to these proposed changes that would further reduce
burdens on small business while achieving these goals.
112. The Commission proposes to amend its rules governing
inspection and maintenance of lighting by: (1) Amending Sec. 17.47 to
eliminate or reduce requirements to perform inspections of lighting and
light monitoring systems; (2) amending Sec. 17.48(a) to require
antenna structure owners to provide continuously active notice to the
FAA of lighting outages; and (3) deleting vague references to timely
repair timeframes in Sec. Sec. 17.48(b) and 17.56(a). The Commission
seeks to
[[Page 28536]]
receive suggestions as to possible alternatives in this area that would
best balance the goal of eliminating unnecessary regulatory burdens
with the imperative to preserve aircraft navigation safety, while
reducing the burden on small entities.
113. The Commission proposes to delete Sec. Sec. 17.45, 17.51, and
17.56(b), which set forth specific requirements for exhibiting and
maintaining lights, because they are unnecessary and may create
ambiguity in cases of conflict with FAA specifications. These proposed
changes are intended both to promote aircraft navigation safety and to
ease regulatory burdens on all regulated entities by streamlining
regulations and reducing confusion. The Commission determined not to
propose an exception to lighting requirements where lights are
extinguished due to a loss of power beyond the owner's control because
such an exception appears inconsistent with aircraft navigation safety.
The Commission seeks alternative proposals, if any such proposals would
reduce the burden on small entities.
114. Sec. 17.49 requires antenna structure owners to maintain a
record of observed or otherwise known extinguishments or improper
functioning of structure lights. The Commission proposes to add a
requirement to maintain such records for two years and provide the
records to the Commission upon request in order to balance the
Commission's need to determine the compliance record against the burden
of record retention on antenna structure owners. The Commission
tentatively concludes that this proposal best balances the Commission's
need for a compliance record against the burden of record retention.
The Commission seeks to receive alternative proposals based on data
regarding the burden this record retention would impose on antenna
structure owners, including the alternative of eliminating the
recordkeeping requirement entirely. Such alternative proposals should
address the issue of reducing burdens on small business.
115. The Commission requests comment on whether to amend Sec.
17.50 to require use of the FAA's ``In Service Aviation Orange
Tolerance Chart'' to determine whether a structure needs to be cleaned
or repainted and to specify how the chart is to be used. These changes
may provide more objective standards for gauging visibility. The
Commission seeks alternative proposals that would achieve this goal
while further reducing the burden on small business.
116. The Commission proposes to amend Sec. 17.2(a) of the
Commission's rules to clarify both when a structure becomes, and when a
structure ceases to be, an ``antenna structure'' under its rules. The
Commission also proposes to amend Sec. 17.2(c) of the Commission's
rules to clarify that the obligations of an ``antenna structure owner''
fall only on the owner of the underlying structure, and not on tenants,
thus promoting clarity for all parties. The Commission seeks to receive
alternate proposals that address the effects of these proposed rule
changes in general, and more specifically on small entities.
117. The Commission asks commenters to address alternatives
regarding whether the rules concerning antenna structures should be
enforced against voluntarily registered structures, whether owners of
antenna structures that do not require registration should be
prohibited from registering their towers, and whether antenna structure
owners who have voluntarily registered structures should be required to
withdraw their registrations from the Commission's antenna structure
database. Such action could reduce confusion by clarifying the
regulatory status of these structures. The Commission seeks to receive
alternate proposals addressing the benefits and drawbacks of such
action, particularly with respect to its impact on antenna structure
owners that are small businesses.
118. The Commission proposes to modify Sec. 17.4(g) to require
that antenna structure owners display the ASR number so that it would
be visible to a member of the general public who reaches the closest
publicly accessible location near each point of access to the antenna
structure. The Commission further proposes to delete the requirement
that the ASR number be posted near the base of the antenna structure.
The Commission tentatively concludes that amending the rule in this
manner would clarify the obligations of antenna structure owners,
promote timely remediation when lighting is observed to be
malfunctioning or extinguished, and eliminate unnecessary postings. The
Commission seeks alternate proposals that would best achieve these
goals while reducing the burdens on small business.
119. Section 17.4(f) requires that antenna structure owners
immediately provide copies of FCC Form 854R (antenna structure
registration) to each tenant licensee and permittee. Sections 17.4(e)
and 17.6(c) impose a similar requirement on the first licensee where
the antenna structure owner is unable to file Form 854 because it is
subject to a denial of Federal benefits under the Anti-Drug Abuse Act
of 1988. The Commission proposes to amend these rules to allow the
alternative of providing a link to the Commission's antenna structure
registration Web site via paper or electronic mail. The Commission
tentatively concludes that this proposal would best reduce the burden
on regulated entities, including small businesses, while ensuring that
tenant licensees and permittees remain informed. Thus, the Commission
determined not to propose eliminating this requirement altogether or
simply requiring antenna structure owners to provide their tenants with
the ASR number. The Commission seeks alternative proposals that would
achieve its goals.
120. The Commission determined not to propose eliminating Sec.
17.57 to increase to five days the time period for notifying the
Commission of construction, dismantlement, and changes in height or
ownership. The Commission notes that the existing time periods have not
been shown to be inconsistent with FAA requirements and that they
promote the accuracy of the Commission's information. The Commission
seeks discussion of alternate proposals that will reduce burdens on
small business, including discussion of any burdens the existing rule
may impose.
121. The Commission proposes to delete Sec. 17.58, which was
intended to promote compliance with procedures that are now obsolete.
This change would streamline the antenna structure registration
process, thereby easing the burden on regulated entities. The
Commission seeks discussion of any alternative proposals that would
also reduce burdens on small entities.
122. For each of the proposals in the Notice, the Commission seeks
discussion, and where relevant, alternative proposals, on the effect
that each prospective new requirement, or alternative rules, might have
on small entities. For each proposed rule or alternative, the
Commission seeks discussion about the burden that the prospective
regulation would impose on small entities and how the Commission could
impose such regulations while minimizing the burdens on small entities.
For each proposed rule, the Commission asks whether there are any
alternatives the Commission could implement that could achieve the
Commission's goals while at the same time minimizing the burdens on
small entities. For the duration of this docketed proceeding, the
Commission will continue to examine alternatives with the objectives of
eliminating
[[Page 28537]]
unnecessary regulations and minimizing any significant economic impact
on small entities.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
123. None.
B. Initial Paperwork Reduction Act
124. This document contains proposed information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments
are due July 20, 2010.
125. Comments should address: (a) Whether the proposed collection
of information is necessary for the proper performance of the functions
of the Commission, including whether the information shall have
practical utility; (b) the accuracy of the Commission's burden
estimates; (c) ways to enhance the quality, utility, and clarity of the
information collected; and (d) ways to minimize the burden of the
collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology. 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 seeks specific comment on how the Commission might further
reduce the information collection burden for small business concerns
with fewer than 25 employees.
126. OMB Control Number: None.
127. Title: Part 17 Construction, Marking, and Lighting of Antenna
Structures.
128. Form No.: None.
129. Type of Review: New collection.
130. Respondents: Business or other for-profit; Not-for-profit
institutions; and State, Local or Tribal Governments.
131. Number of Respondents: 22,000.
132. Number of Responses: 258,570.
133. Estimated Time per Response: .1 hr. to 3 hrs. on average.
134. Frequency of Response: On occasion reporting requirement,
recordkeeping requirement and third party disclosure requirement.
135. Obligation to Respond: Required to obtain or retain benefits.
Statutory authority for this information collection is contained in
sections 4(i), 4(j), 11 and 303(q) of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i) through (j), 161, and 303(q).
136. Total Annual Burden: 378,027 hours.
137. Total Annual Costs: $1,287,000.
138. Privacy Act Impact Assessment: No impact.
139. Nature and Extent of Confidentiality: There is no need for
confidentiality.
140. Needs and Uses: The Commission is requesting OMB approval for
disclosure, reporting, and record keeping requirements pertaining to
part 17 of the Commission's rules. In order to clarify the obligations
of antenna structure owners and conform the Commission's regulations to
Commission and FAA practice, the Commission proposes changes to certain
sections of the Commission's part 17 rules. These proposed changes are
intended both to promote aircraft navigation safety and to ease
regulatory burdens by streamlining regulations and reducing confusion.
The new information collection requirements contained in the proposed
part 17 amendments are necessary to implement a uniform registration
process as well as safe and effective lighting procedures for owners of
antenna structures. The following are the information collection
requirements:
17.4(j)--Antenna structure owners must display the Antenna
Structure Registration (ASR) number so that it would be visible to a
member of the general public who reaches the closest publicly
accessible location near each point of access to the antenna structure;
17.48--Antenna structure owners must provide continuously
active notice to the FAA of antenna structure lighting outages;
17.49--Antenna structure owners must maintain a record of
observed or otherwise known extinguishments or improper functioning of
structure lights for two years and provide the records to the
Commission upon request.
141. The Commission tentatively concludes that these collections
are necessary to effectuate the above rule changes that clarify the
obligations of antenna structure owners, ensure aircraft navigation
safety when lighting is observed to be malfunctioning or extinguished,
and eliminate unnecessary postings.
C. Other Procedural Matters
1. Ex Parte Presentations
142. The rulemaking 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 generally is required. Other requirements
pertaining to oral and written presentations are set forth in Sec.
1.1206(b) of the Commission's rules.
2. Comment Filing Procedures
143. Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. All filings related to this Notice of Proposed
Rulemaking should refer to WT Docket No. 10-88. 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).
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.
ECFS filers must transmit one electronic copy of the
comments for WT Docket No. 10-88. In completing the transmittal screen,
filers should include their full name, U.S. Postal Service mailing
address, and the applicable docket number. Parties may also submit an
electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to fcc.gov">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.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. 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, Marlene H. Dortch, Office of the Secretary, Federal
Communications Commission, 445 12th Street, SW., Washington, DC 20554.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th Street, SW., Room TW-A325, Washington, DC 20554. The filing
hours
[[Page 28538]]
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.
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.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
144. Parties should send a copy of their filings to John Borkowski,
Federal Communications Commission, Room 6404, 445 12th Street, SW.,
Washington, DC 20554, or by e-mail to fcc.gov">John.Borkowski@fcc.gov. Parties
shall also serve one copy with the Commission's copy contractor, Best
Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room
CY-B402, Washington, DC 20554, (202) 488-5300, or via e-mail to
[email protected].
145. Documents in WT Docket No. 10-88 will be available for public
inspection and copying during business hours at the FCC Reference
Information Center, Portals II, 445 12th Street SW., Room CY-A257,
Washington, DC 20554. The documents may also be purchased from BCPI,
telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562,
e-mail [email protected].
3. Accessible Formats
146. 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) or 202-418-0432 (TTY).
V. Ordering Clauses
147. Accordingly, it is ordered, pursuant to sections 4(i), 4(j),
11 and 303(q) of the Communications Act of 1934, as amended, 47 U.S.C.
154(i) through (j), 161, 303(q), that this Notice in WT Docket No. 10-
88 is adopted.
148. It is further ordered that the Commission's Consumer &
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects
47 CFR Part 1
Reporting and recordkeeping requirements.
47 CFR Part 17
Aviation safety; Communications equipment; Reporting and
recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
For the reason discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 1 and 17 as
follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(j), 155,
157, 225, and 303(r).
2. Section 1.61 is amended by revising paragraph (a)(5) to read as
follows:
Sec. 1.61 Procedures for handling applications requiring special
aeronautical study.
(a)* * *
(5) Upon receipt of FCC Form 854, and attached FAA final
determination of ``no hazard,'' the Bureau may prescribe antenna
structure painting and/or lighting specifications or other conditions
in accordance with the FAA airspace recommendation. Unless otherwise
specified by the Bureau, the antenna structure must conform to the
FAA's painting and lighting recommendations set forth in the FAA's
determination of ``no hazard'' and the associated FAA study number. The
Bureau returns a completed Antenna Structure Registration (FCC Form
854R) to the registrant. If the proposed structure is disapproved the
registrant is so advised.
* * * * *
PART 17--CONSTRUCTION, MARKING, AND LIGHTING OF ANTENNA STRUCTURES
3. The authority citation for part 17 continues to read as follows:
Authority: 47 U.S.C. 154, 303.
4. Section 17.1 is amended by revising paragraph (b) to read as
follows:
Sec. 17.1 Basis and purpose.
* * * * *
(b) The purpose of this part is to prescribe certain procedures for
antenna structure registration and standards with respect to the
Commission's consideration of proposed antenna structures which will
serve as a guide to antenna structure owners.
5. Section 17.2 is amended by revising paragraphs (a), (b) and (c)
to read as follows:
Sec. 17.2 Definitions.
(a) Antenna structure. The term antenna structure means a structure
that is constructed or used for the primary purpose of supporting
antennas to transmit and/or receive radio energy, and any antennas and
other appurtenances mounted thereon, from the time construction of the
supporting structure begins until such time as the supporting structure
is dismantled.
(b) Antenna farm area. A geographical location, with established
boundaries, designated by the Federal Communications Commission, in
which antenna towers with a common impact on aviation may be grouped.
(c) Antenna structure owner. For the purposes of this part, an
antenna structure owner is the individual or entity vested with
ownership, equitable ownership, dominion, or title to the underlying
structure that supports or is intended to support antennas and other
appurtenances. Notwithstanding any agreements made between the owner
and any entity designated by the owner to maintain the antenna
structure, the owner is ultimately responsible for compliance with the
requirements of this part.
* * * * *
6. Revise Sec. 17.4 to read as follows:
Sec. 17.4 Antenna structure registration.
(a) The owner of any proposed or existing antenna structure that
requires notice of proposed construction to the Federal Aviation
Administration (FAA) must register the structure with the Commission.
(See 14 CFR 77.13 for FAA notification requirements.) This includes
those structures used as part of stations licensed by the Commission
for the transmission of radio energy, or to be used as part of a cable
television head end system. If a Federal Government antenna structure
is to be used by a Commission licensee, the structure must be
registered with the Commission. If the FAA exempts an antenna structure
from notification, it is exempt from registration with the Commission.
(See 14 CFR 77.15 for FAA exemptions to its notification requirements.)
(1) For a proposed antenna structure or alteration of an existing
antenna structure, the owner must register the structure prior to
construction or alteration.
(2) For a structure that did not originally fall under the
definition of ``antenna structure,'' the owner must
[[Page 28539]]
register the structure prior to hosting a Commission licensee.
(b) Except as provided in paragraph (i) of this section, each owner
must file FCC Form 854 with the Commission. Additionally, each owner of
a proposed structure referred to in paragraph (a) of this section must
submit a valid FAA determination of ``no hazard.'' In order to be
considered valid by the Commission, the FAA determination of ``no
hazard'' must not have expired prior to the date on which FCC Form 854
is received by the Commission. The height of the structure will include
the highest point of the structure including any obstruction lighting
or lightning arrester.
(c) Absent Commission specification, the painting and lighting
specifications recommended by the FAA are mandatory (see Sec. 17.23 of
this chapter). However, the Commission may specify painting and/or
lighting requirements for each antenna structure registration in
addition to or different from those specified by the FAA.
(d) Any change in the overall height of one foot or greater or
coordinates of one second or greater in longitude or latitude of an
antenna structure requires prior approval from the FAA and the
Commission.
(e) Any change in the marking and lighting specifications described
on any antenna structure registration requires prior approval from the
FAA and the Commission.
(f) If an Environmental Assessment is required under Sec. 1.1307
of this chapter, the Bureau will address the environmental concerns
prior to processing the registration.
(g) If a final FAA determination of ``no hazard'' is not submitted
along with FCC Form 854, processing of the registration may be delayed
or disapproved.
(h) The Commission shall issue, to the registrant, FCC Form 854R,
Antenna Structure Registration, which assigns a unique Antenna
Structure Registration Number. The structure owner shall immediately
provide to all tenant licensees and permittees notification that the
structure has been registered, along with either a copy of Form 854R or
the Antenna Structure Registration Number and a link to the FCC antenna
structure Web site http://wireless.fcc.gov/antenna/. This notification
may be done electronically or via paper mail.
(i) If the owner of the antenna structure cannot file FCC Form 854
because it is subject to a denial of Federal benefits under the Anti-
Drug Abuse Act of 1988, 21 U.S.C. 862, the first tenant licensee
authorized to locate on the structure (excluding tenants that no longer
occupy the structure) must register the structure using FCC Form 854,
and provide a copy of the Antenna Structure Registration (FCC Form
854R) to the owner. The owner remains responsible for providing to all
tenant licensees and permittees notification that the structure has
been registered, consistent with paragraph (h) of this section, and for
posting the registration number as required by paragraph (j) of this
section.
(j) Except as described in paragraph (k) of this section, the
Antenna Structure Registration Number must be displayed so that it is
conspicuously visible and legible from the publicly accessible area
nearest the base of the antenna structure along the publicly accessible
roadway or path. If the base of the antenna structure has more than one
point of ingress/egress, the Antenna Structure Registration Number must
be posted at the publicly accessible area nearest each such point of
ingress/egress. Materials used to display the Antenna Structure
Registration Number must be weather-resistant and of sufficient size to
be easily seen at the base of the antenna structure or at a publicly
accessible location.
(k) The owner is not required to post the Antenna Structure
Registration Number in cases where a Federal, State, or local
government entity provides written notice to the owner that such a
posting would detract from the appearance of a historic landmark. In
this case, the owner must make the Antenna Structure Registration
Number available to representatives of the Commission, the FAA, and the
general public upon reasonable demand.
7. Section 17.6 is amended by revising the section heading and
paragraph (c), to read as follows:
Sec. 17.6 Responsibility for painting and lighting compliance.
* * * * *
(c) If the owner of the antenna structure cannot file FCC Form 854
because it is subject to a denial of federal benefits under the Anti-
Drug Abuse Act of 1988, 21 U.S.C. 862, the first licensee authorized to
locate on the structure must register the structure using FCC Form 854,
and provide a copy of the Antenna Structure Registration (FCC Form
854R) to the owner. The owner remains responsible for providing to all
tenant licensees and permittees notification that the structure has
been registered, consistent with Sec. 17.4(h), and for posting the
registration number as required by Sec. 17.4(j).
8. Revise the heading to subpart B of part 17 to read as follows:
Subpart B--Antenna Farm Areas
Sec. 17.7 [Removed and Reserved]
9. Remove and reserve Sec. 17.7.
Sec. 17.14 [Removed and Reserved]
10. Remove and reserve Sec. 17.14.
Sec. 17.17 [Removed and Reserved]
11. Remove and reserve Sec. 17.17.
12. Section 17.21 is amended by revising the introductory text,
revising paragraph (a) and adding paragraph (c) to read as follows:
Sec. 17.21 Painting and lighting, when required.
Antenna structures shall be painted and lighted when:
(a) Their height exceeds any obstruction standard requiring
notification to the FAA (see Sec. 17.4(a)).
* * * * *
(c) If an antenna installation is of such a nature that its
painting and lighting specifications in accordance with the FAA
airspace recommendation are confusing, or endanger rather than assist
airmen, or are otherwise inadequate, the Commission will specify the
type of painting and lighting or other marking to be used in the
individual situation.
Sec. 17.22 [Removed and Reserved]
13. Remove and reserve Sec. 17.22.
14. Section 17.23 is revised to read as follows:
Sec. 17.23 Specifications for painting and lighting antenna
structures.
Unless otherwise specified by the Commission, each new or altered
antenna structure must conform to the FAA's painting and lighting
specifications set forth in the FAA's final determination of ``no
hazard'' and the associated FAA study for that particular structure.
For purposes of this part, any specifications, standards, and general
requirements set forth by the FAA in the structure's determination of
``no hazard'' and the associated FAA study are mandatory. Additionally,
each antenna structure must be painted and lighted in accordance with
any painting and lighting requirements prescribed on the antenna
structure's registration, or in accordance with any other
specifications provided by the Commission.
15. Add Sec. 17.24 to read as follows:
Sec. 17.24 Existing structures.
No change to painting or lighting criteria or relocation of
airports shall at any time impose a new restriction upon any then
existing or authorized antenna structure or structures.
Sec. 17.45 [Removed and Reserved]
16. Remove and reserve Sec. 17.45.
[[Page 28540]]
17. Section 17.48 is revised to read as follows:
Sec. 17.48 Notification of extinguishment or improper functioning of
lights.
The owner of any antenna structure that requires registration of
the structure with the Commission and has been assigned lighting
specifications referenced in this part shall report immediately to the
Federal Aviation Administration, by means acceptable to the Federal
Aviation Administration, any observed or otherwise known extinguishment
or improper functioning of any top steady burning light or any flashing
obstruction light, regardless of its position on the antenna structure,
not corrected within 30 minutes. If the lights cannot be repaired
within 15 days, the owner shall notify the FAA to extend the outage
date and report a return to service date. The owner will repeat this
process every 15 days until the lights are repaired. Such reports shall
set forth the condition of the light or lights, the circumstances which
caused the failure, the probable date for restoration of service, the
FCC Antenna Structure Registration Number, the height of the structure
(AGL and AMSL if known) and the name, title, address, and telephone
number of the person making the report. Further notification to the
Federal Aviation Administration by means acceptable to the FAA shall be
given immediately upon resumption of normal operation of the light or
lights.
18. Section 17.49 is amended by revising the introductory text to
read as follows:
Sec. 17.49 Recording of antenna structure light inspections in the
owner record.
The owner of each antenna structure which is registered with the
Commission and has been assigned lighting specifications referenced in
this part must maintain a record of any observed or otherwise known
extinguishment or improper functioning of a structure light. This
record shall be retained for a period of two years and provided to the
FCC or its agents upon request. The record shall include the following
information for each such event:
* * * * *
Sec. 17.51 [Removed and Reserved]
19. Remove and reserve Sec. 17.51.
Sec. 17.56 [Removed and Reserved]
20. Remove and reserve Sec. 17.56.
Sec. 17.58 [Removed and Reserved]
21. Remove and reserve Sec. 17.58.
[FR Doc. 2010-12142 Filed 5-20-10; 8:45 am]
BILLING CODE 6712-01-P