[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Notices]
[Pages 81274-81276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32493]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
[GN Docket No. 10-244; DA 10-2259]
Media and Wireless Telecommunications Bureaus Seek Comment on
Recommendation of the Advisory Committee on Diversity for
Communications in the Digital Age
AGENCY: Federal Communications Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Media and Wireless Telecommunications Bureaus of the
Federal Communications Commission seek comment on a recommendation of
the Advisory Committee on Diversity for Communications in the Digital
Age that the Commission consider a new preference program in its
competitive bidding process to provide bidding credits to individuals
and entities who have overcome substantial disadvantage.
DATES: Comments are due on or before February 7, 2011; reply comments
are due on or before February 25, 2011.
ADDRESSES: You may submit comments, identified by GN Docket No. 10-244,
by any of the following methods:
Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
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. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St., SW., Room TW-A325, Washington, DC 20554. 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.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or telephone: 202-
418-0530 or TTY: 202-418-0432.
FOR FURTHER INFORMATION CONTACT: Media Bureau, Industry Analysis
Division: Amy Brett at (202) 418-2330, or Wireless Telecommunications
Bureau, Auctions and Spectrum Access Division: Sayuri Rajapakse at
(202) 418-0660.
SUPPLEMENTARY INFORMATION: This is a summary of the public notice,
released December 2, 2010, in GN Docket No. 10-244, seeking comment on
the Advisory Committee's Recommendation released on October 14, 2010.
The Advisory Committee's Recommendation, which was released as an
attachment to the public notice, is available at http://www.fcc.gov/DiversityFAC/meeting101410.html. The complete texts of the public
notice and Recommendation are available for public inspection and
copying from 8 a.m. to 4:30 p.m. ET Monday through Thursday or from 8
a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information
Center, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The
public notice may be purchased from the Commission's duplicating
contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street, SW.,
Room CY-B402, Washington, DC 20554, telephone 202-488-5300, fax 202-
488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering documents from BCPI, please provide the
appropriate FCC document number, for example, DA 10-2259. The public
notice is also available on the Internet at the Commission's Web site
or by using the search function for GN Docket No. 10-244 on the ECFS
Web page at http://www.fcc.gov/cgb/ecfs/.
On October 14, 2010, the Advisory Committee on Diversity for
Communications in the Digital Age (``Advisory Committee'') formally
recommended that the Federal Communications Commission (``Commission'')
undertake a notice of proposed rulemaking to consider how the
Commission could design, adopt, and implement an additional new
preference program in its competitive bidding process. Under the
proposed preference, persons or entities who have overcome substantial
disadvantage would be eligible for a bidding credit. The Advisory
Committee explains that the new preference ``would expand the pool of
designated entities to include those qualified applicants who have
overcome substantial disadvantage,'' noting that the proposed program
is
[[Page 81275]]
analogous in some respects to programs used by educational institutions
in their admissions processes.
The Advisory Committee's Recommendation acknowledges that a number
of issues concerning the design and implementation of its proposal
would need to be refined and resolved by the Commission in a future
rulemaking proceeding. The Media and Wireless Telecommunications
Bureaus seek information that will assist the Commission in considering
whether to launch a proceeding to further examine the components of the
recommended preference. The Bureaus seek comment on the proposal and
are especially interested in comments on the following questions.
Interested parties need not address all the questions presented, but
are encouraged to respond to those about which they have particular
knowledge or information.
I. Authority and Objectives
Sections 309(j)(3)(B) and (4)(D) of the Communications Act of 1934,
as amended, direct the Commission respectively to seek to disseminate
licenses among ``a wide variety of applicants, including small
businesses, rural telephone companies, and businesses owned by members
of minority groups and women'' and to ``ensure that small businesses,
rural telephone companies, and businesses owned by members of minority
groups and women are given the opportunity to participate in the
provision of spectrum-based services.'' The Commission has established
a program to promote the involvement of statutorily-identified
designated entities in the provision of spectrum-based services.
Designated entities are defined in 47 CFR 1.2110(a) as small
businesses, businesses owned by members of minority groups and/or
women, and rural telephone companies. The Commission's primary method
of promoting the participation of designated entities in competitive
bidding for wireless services has been to award bidding credits
(percentage discounts on winning bid amounts) to small business
applicants. In the context of broadcast services, the Commission
adopted a tiered new entrant bidding credit to promote the objectives
of section 309(j) and further its long-standing commitment to the
diversification of broadcast facility ownership. That bidding credit
may be awarded to broadcast auction applicants having no, or very few,
other media interests. The Advisory Committee's Recommendation would
establish an additional preference for persons or entities that have
overcome substantial disadvantage.
1. Would the proposed preference comply with the Communications Act
and other relevant statutes? Does section 309(j)(4)(D) authorize the
Commission to establish the proposed preference for individuals who
have overcome substantial disadvantage? If not, are there other
statutory provisions that afford sufficient authorization? Would the
Commission need additional legal authority to implement this new
preference?
2. The Commission has previously found that rural telephone
companies and minority- and women-owned businesses that qualify as
small businesses are able to take advantage of the provisions we have
adopted for small businesses. Similarly, in the broadcast context, the
Commission established its new entrant bidding credit, having found
that a preference for new entrants would be the most appropriate way to
implement the statutory provisions regarding opportunities for small,
minority- and women-owned businesses based on then-available
information on opportunities for designated entities to participate in
the provision of broadcast services. The Bureaus seek information to
assess how individuals who have overcome substantial disadvantage have
fared under the Commission's existing auction process and the
designated entity benefits. Have persons who have overcome substantial
disadvantages had difficulty in obtaining licenses under the existing
process and designated entity programs? Do data exist that would
demonstrate that individuals who have overcome substantial disadvantage
are underrepresented in the Commission's auctions process? Is there
evidence that persons who have overcome substantial disadvantage are
more likely than others to utilize Commission licenses in the public
interest, or do so to a greater extent? If no such data exist, what
information could be developed to assess the need for the proposed
bidding preference?
3. In establishing the existing small business bidding credit
program, the Commission found that the preferences would allow
designated entities to overcome barriers that have impeded these
groups' participation in the telecommunications arena, including
barriers related to access to capital. The Advisory Committee's
Recommendation notes that the proposed preference would provide fair
opportunity to those who have overcome substantial disadvantage and
that it would result in the introduction of new entrants having diverse
viewpoints. How would this proposed preference provide additional
opportunities to individuals and entities that differ from those
available under our current bidding credit programs?
4. The Advisory Committee's Recommendation observes that the
proposed overcoming disadvantage preference would be subject to a
``rational basis'' constitutional standard and that any Commission
rulemaking ``must support the conclusion that the overcoming
disadvantage preference program will serve the public interest and is a
rational way to further'' the program's public interest objectives.
What public or governmental interests would be served by establishing
such a bidding preference? Commenters are specifically invited to
provide information on what interests would be served under this
program that are not being addressed with the Commission's existing
bidding credit programs.
5. Are there additional constitutional issues raised by the
Advisory Committee's Recommendation that the Commission should
consider? If so, what are they? How might they be mitigated or
eliminated?
II. Eligibility for Preference
6. The Advisory Committee's Recommendation supplies a non-
exhaustive list of disadvantages that may have had a substantial
negative impact on an individual's ``entry into or advancement in the
professional world or other comparable context'' that might justify the
award of a preference, such as physical disabilities or psychological
disorders that have rendered professional or business advancement
substantially more difficult. Are there other categories of
disadvantages that should qualify an individual for preferences beyond
those listed in the Recommendation? Should any of the proposed
disadvantages not be included? Should any of the disadvantages take
precedence over others? Should there be a point system to weigh the
relative merit of different disadvantages? Should the Commission
develop and publish an exclusive list of qualifying disadvantages, or
should determinations about whether a substantial disadvantage is
qualifying be made on a case-by-case basis?
7. The Advisory Committee's Recommendation suggests that any
disadvantage must be ``substantial'' in order to qualify an applicant
for a preference. By what means should the Commission assess and/or
quantify what experience would demonstrate ``substantial''
disadvantage?
8. What degree of success in overcoming a substantial disadvantage
would an applicant have to demonstrate in order to evidence its
eligibility for such a preference? How should
[[Page 81276]]
applicants be required to document their successes in ``substantially''
or at least ``partially'' overcoming disadvantages? Should any
successes documented be limited to the applicant's professional
achievements, or should success in other contexts be considered by the
Commission?
9. At what level of success, if any, should an applicant who has
overcome substantial disadvantages become ineligible for the preference
(e.g., by what measure of wealth or access to capital)? Should the
Commission adopt different levels of preference based on a measure of
wealth or access to capital? What criteria should be used to disqualify
the applicant from eligibility for a bidding credit? If the Commission
adopts an additional preference such as that recommended by the
Advisory Committee, how should the Commission implement the statutory
requirement to avoid unjust enrichment in the context of its bidding
preference program?
III. Administration
10. The Advisory Committee's Recommendation notes that any
determination of an individual's or entity's eligibility for an
overcoming disadvantage preference would require an examination of all
relevant evidence and would be based on an individualized evaluation.
The individualized reviews that would occur under the proposed program
are subjective in a manner that distinguishes them from existing
designated entity programs, which are based on objective criteria such
as financial data. By what means could applicants demonstrate that they
qualify for the preference? For example, should a narrative explanation
suffice? If not, what information or documentation would be necessary
to substantiate a claim? Should an applicant be permitted to certify
its eligibility for this preference under penalty of perjury in its
short-form application when it seeks to participate in an auction,
similar to the way in which applicants may certify eligibility for new
entrant and small business bidding credits? If so, what guidance can
the Commission provide to potential applicants so that they can make a
good faith certification of eligibility? The Recommendation suggests
that an overcoming disadvantage preference might be applied differently
for different services (e.g., a preference might apply only for more
valuable licenses in a broadcast auction). Would the Commission have to
tailor the preference for specific services in a rulemaking, similar to
its existing practice of establishing the small business definitions on
a service-by-service basis? The Advisory Committee recognized the
importance of reducing subjectivity and achieving consistency among
individualized determinations. What standards could the Commission
implement to achieve those goals?
11. The Advisory Committee's Recommendation suggests that a
determination as to whether applicants have overcome disadvantages
could be made within the existing short-form auction application review
process. What would be the administrative burden for the Commission to
conduct individualized review for such a preference within the
relatively short time frames allotted under the existing auctions
short-form application process? If the Commission were to allocate
additional time in the pre-auction process for such reviews, would the
possible burdens on auction applicants be outweighed by the public
interest benefits of the proposed preference?
12. As an alternative, the Recommendation suggests that applicants
could pre-qualify for preferences and thus avoid subsequent petitions
to deny their licenses targeted at their qualification for the
preference. Are there Administrative Procedure Act or other concerns
for not allowing parties to file petitions challenging a proposed
qualification? Is there a reason to treat this qualification
differently than other qualifications that are subject to the petition
to deny process? Does this raise issues with regard to the requirements
of the Communications Act? If an applicant is found to be qualified
prior to an auction but experiences a change of status during bidding,
or after submitting a winning bid, should the individual remain
eligible for the preference? Should a pre-qualification review strictly
be limited to the overcoming of substantial disadvantage, or should it
be a broader review of an applicant's license qualifications, provided
that the pre-auction process is extended?
13. The Advisory Committee's Recommendation suggests three options
for the management of qualification review: (1) Establishing a
``special cadre'' of Commission officials to evaluate applicant
qualifications; (2) designing a modified Administrative Law Judge
procedure for this purpose; (3) assigning the function to the
Commission's Bureau responsible for oversight of the service in
question. What are the relative advantages and disadvantages of each
option? What aspects of the current process for review of auction
applicant eligibility suggest that these additional options are
necessary for the proposed preference program?
14. The Advisory Committee's Recommendation asks whether a
corporation should be able to receive the proposed preference based on
the qualifications of its principal. What role should the principal
play in a corporation or other business entity to confer eligibility
for the preference on the entity? For instance, should the principal be
required to have majority equity ownership and a management role?
This matter shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules 47 CFR
1.1200, 1.1206. 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. See 47 CFR
1.1206(b). Other rules pertaining to oral and written ex parte
presentations in permit-but-disclose proceedings are set forth in 47
CFR 1.1206(b).
Gary D. Michaels,
Deputy Chief, Auctions and Spectrum Access Division, WTB, Federal
Communications Commission.
[FR Doc. 2010-32493 Filed 12-23-10; 8:45 am]
BILLING CODE 6712-01-P