**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**NOTICE OF PROPOSED RULE MAKING**

**Adopted: July 21, 2007 Released: July 30, 2007**

**Comment Date: \[30 days after date of publication in the Federal
Register\]**

**Reply Comment Date: \[45 days after date of publication in the Federal
Register\]**

By the Commission: Commissioners Copps and Adelstein issuing separate
statements.

Table of Contents

Heading Paragraph \#

I. introduction 1

II\. discussion 3

A. Broadcaster Public Service Announcements and Other Consumer Education
Requirements 4

B. Broadcaster Consumer Education Reporting 7

C. MVPD Customer Bill Notices 9

D. Consumer Electronics Manufacturer Notices 11

E. Consumer Electronics Retailer Training and Education Reporting 13

F. DTV.gov Partner Consumer Education Reporting 15

G. Other Proposals 17

III\. procedural matters 18

A. Filing Requirements 18

B. Paperwork Reduction Act of 1995 Analysis 24

C. Congressional Review Act 27

D. Initial Regulatory Flexibility Act Analysis 28

IV\. ordering clauses 29

APPENDIX A: Initial Regulatory Flexibility Act Analysis for the Notice
of Proposed Rulemaking

APPENDIX B: Letter from the Honorable John D. Dingell, Chairman of the
Committee on Energy and Commerce, and the Honorable Edward J. Markey,
Chairman of the Subcommittee on Telecommunications and the Internet,
U.S. House of Representatives

# introduction

1.  In this Notice of Proposed Rulemaking, we seek public comment on
    several proposals relating to consumer education about the digital
    television ("DTV") transition. From the beginning of the transition
    of the nation's broadcast television service from analog to digital
    television service, the Commission has been committed to working
    with representatives from industry, public interest groups, and
    Congress to make the significant benefits of digital broadcasting
    available to the public. The digital transition will make valuable
    spectrum available for both public safety uses and expanded wireless
    competition and innovation. It will also provide consumers with
    better quality television picture and sound, and make new services
    available through multicasting. These innovations, however, are
    dependent upon widespread consumer understanding of the benefits and
    mechanics of the transition. The Congressional decision to establish
    a hard deadline of February 17, 2009, for the end of full-power
    analog broadcasting has made consumer awareness even more
    critical.[^1]

2.  While the Commission has been engaged in various DTV outreach
    efforts, we seek comment on whether there are additional steps which
    we can and should take. Representatives John D. Dingell, Chairman of
    the Committee on Energy and Commerce, and Edward J. Markey, Chairman
    of the Subcommittee on Telecommunications and the Internet, recently
    wrote to the Commission to express interest in the pace and scope of
    consumer education about the transition.[^2] As the Congressmen
    observed, "the Commission is particularly well suited to lead this
    effort given its existing expertise and resources."[^3] Noting the
    particular dangers of insufficient outreach to certain communities,
    they proposed a number of specific actions that they believe the
    Commission should take. This notice requests comment on the
    Commission's authority to take these actions and invites discussion
    of their benefits and any other measures we could take to facilitate
    the transition.

# discussion

3.  The Letter suggests that, as a general matter, "the Commission could
    use its existing authority to compel industry to contribute time and
    resources to a coordinated, national consumer education
    campaign."[^4] We agree that we should take whatever steps we can to
    promote a coordinated, national DTV consumer education campaign and
    seek comment on the best means of achieving that goal. In
    particular, we seek comment on the potential Commission initiatives
    raised by Representatives Dingell and Markey. For each potential
    initiative, we particularly seek comment on: 1) the Commission's
    authority to implement the proposal; 2) the likely effectiveness of
    the proposal (*i.e.*, whether it would appreciably increase public
    awareness and understanding of the DTV transition); 3) the best
    methods of implementation; 4) the policy implications; and 5)
    constitutional concerns, if any.

## Broadcaster Public Service Announcements and Other Consumer Education Requirements

4.  The Letter suggests that the Commission consider using its
    regulatory authority to "require television broadcasters to air
    periodic public service announcements and a rolling scroll about the
    digital transition."[^5]

5.  We propose to require television broadcast licensees to conduct
    on-air consumer education efforts. Such on-air efforts, we believe,
    are the most effective and efficient way to reach over-the-air
    television viewers about the coming digital switch-over. What should
    these announcements include, and when and how often should they run?
    Should we impose similar requirements on all television broadcast
    licensees or should there be distinctions made among licensees?
    Should the Commission produce an announcement or group of
    announcements to be used by all broadcasters, or simply provide a
    list of points that must be conveyed in any compliant announcement?
    What text or images should the rolling scroll include? Would it be
    constant or intermittent? On what date would it begin to run, and
    during which hours would it be required? Would the on-air education
    requirements increase as the transition date approaches? How would
    we track the effectiveness of the outreach efforts? Should
    broadcasters be required to formally assess and report on consumer
    awareness and preparedness, particularly in certain communities? If
    so, which communities warrant special attention? Should there be
    some mechanism for making adjustments in our requirements to reflect
    these ongoing assessments? Should we adopt certification
    requirements to ensure that broadcasters are complying? Would
    forfeitures for noncompliance be appropriate in this area? If so,
    how would they be calculated?

6.  We recognize that, even if the proposals discussed herein are
    successful at increasing consumer awareness of the February 17, 2009
    deadline, many consumers will need additional assistance in
    preparing themselves for that date. For instance, consumers may have
    specific questions about the adequacy of their existing antenna or
    how to install a converter box when they get it home. We seek
    comment on what steps the Commission or industry can and should take
    to ensure that consumers have access to the information and
    assistance they need. This could include, for instance, the
    establishment or further development of a dedicated consumer
    help-line or other targeted assistance.[^6]

## Broadcaster Consumer Education Reporting

7.  The Letter suggests that the Commission consider requiring
    "broadcast licensees and permittees to report, every 90 days, their
    consumer education efforts, including the time, frequency, and
    content of public service announcements aired by each station in a
    market, with civil penalties for noncompliance."[^7]

8.  What level of detail should reports to the Commission on consumer
    education efforts contain? What additional burdens would preparing,
    submitting, and retaining such reports place on licensees and
    permittees? Could these burdens be met by small broadcasters and NCE
    stations? Is there an alternative to requiring the filing of such
    reports with the Commission? For example, could broadcasters
    publicly summarize and describe their consumer outreach efforts via
    web pages, press releases, in their public file,[^8] or otherwise?
    How would this approach be monitored and enforced by the Commission?
    What benefits would these reports create for the government and
    public? How should any forfeitures for noncompliance be calculated?

## MVPD Customer Bill Notices

9.  The Letter suggests that the Commission consider requiring, "as a
    license condition or through customer service or other consumer
    protection or public interest requirements, all multichannel video
    programming distributors (MVPDs) to insert periodic notices in
    customer bills that inform consumers about the digital television
    transition and their customers' future viewing options, with civil
    penalties for noncompliance."[^9]

10. What should these notices include and how often should they be
    provided? Should the Commission provide a standard text, describing
    the transition, to be used by MVPDs, or simply a list of points that
    must be conveyed? How should these notices be conveyed to customers
    who rely on electronic billing or automatic billing? How should the
    phrase "future viewing options" be interpreted? How should any
    forfeitures for noncompliance be calculated?

## Consumer Electronics Manufacturer Notices

11. The Letter suggests that the Commission consider requiring
    "manufacturers to include information with television receivers and
    related devices about the transition, with civil penalties for
    noncompliance."[^10]

12. This proposal would require manufacturers to include information
    describing the transition with any television set or related device
    that they import or distribute in the United States. What would it
    mean to "include" information? Must this information be in written
    form and physically packaged with each unit shipped? Could
    manufacturers make arrangements with retailers to provide
    information, either written or verbal, at the point of sale? As for
    the information itself, should the Commission provide a standard
    text to be used by all manufacturers, or simply a list of points
    that must be conveyed? What devices and classes of devices should be
    considered "related"? For example, should the requirement apply to
    VCRs, DVRs, DVD players, etc? Should this requirement apply to all
    new "television receivers and related devices," that are imported or
    distributed in the United States after the effective date of these
    rules?

## Consumer Electronics Retailer Training and Education Reporting

13. The Letter suggests that the Commission consider working "with NTIA
    to require retailers who participate in the converter box coupon
    program to detail their employee training and consumer information
    plans and have Commission staff conduct spot inspections to
    ascertain whether such objectives are being met at stores."[^11]

14. We anticipate that any requirements and enforcement efforts tied to
    the converter box coupon program will be developed in consultation
    with the National Telecommunications and Information Administration.
    What would be an appropriate employee training and consumer
    information plan? Should NTIA and the FCC establish the elements of
    a legally sufficient plan? Would penalties for noncompliance be
    appropriate in this area? If so, would they most appropriately be
    based on failure to report a plan, failure to follow a reported
    plan, failure to establish a sufficient plan, or any of these?

## DTV.gov Partner Consumer Education Reporting

15. The Letter suggests that the Commission consider requiring "partners
    identified on the Commission's digital television Web site to report
    their specific consumer outreach efforts."[^12]

16. At the moment, more than 50 partners are listed at
    [www.dtv.gov/partners.html](http://www.dtv.gov/partners.html). What
    level of detail would be mandated in these reports? Would they be
    confidential reports to the Commission or publicly filed?
    Alternatively, could we provide partners with guidelines and allow
    them to publicly announce, via web pages, press releases, or
    otherwise, their consumer outreach efforts? How would this approach
    be monitored and enforced by the Commission? Would reporting simply
    become a requirement for "partner" status, such that failure to
    comply leads only to removal from the "Partners" page? If other
    penalties would be appropriate, what would they be and what would be
    the basis for our authority to impose them?

## Other Proposals

17. We note that the Letter contains several other potential consumer
    education mechanisms, including broadcaster public file requirements
    or other public announcements, notice requirements by
    telecommunications carriers that receive funds under the Low Income
    Federal universal service program, or reporting requirements by 700
    MHz auction winners. We seek comment on these and other initiatives
    that the Commission can and should undertake to educate the public
    on the DTV transition.

# procedural matters

## Filing Requirements 

18. ***[Ex Parte Rules]{.underline}***. This proceeding will be treated
    as a "permit-but-disclose" proceeding subject to the
    "permit-but-disclose" requirements under Section 1.1206(b) of the
    Commission's rules.[^13] Ex parte presentations are permissible if
    disclosed in accordance with Commission rules, except during the
    Sunshine Agenda period when presentations, ex parte or otherwise,
    are generally prohibited. Persons making oral ex parte presentations
    are reminded that a memorandum summarizing a presentation must
    contain a summary of the substance of the presentation and not
    merely a listing of the subjects discussed. More than a one- or
    two-sentence description of the views and arguments presented is
    generally required.[^14] Additional rules pertaining to oral and
    written presentations are set forth in Section 1.1206(b).

19. ***[Comments and Reply Comments]{.underline}***. Pursuant to
    Sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R. §§
    1.415, 1.419, interested parties may file comments on or before the
    dates indicated on the first page of this document. Comments may be
    filed using the Commission's Electronic Comment Filing System
    ("ECFS") or by filing paper copies. *See* Electronic Filing of
    Documents in Rulemaking Proceedings, 63 Fed. Reg. 24121 (1998). To
    request materials in accessible formats for people with disabilities
    (braille, large print, electronic files, audio format), send an
    e-mail to <fcc504@fcc.gov> or call the Consumer & Governmental
    Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

20. Comments filed through ECFS can be sent as an electronic file via
    the Internet to <http://www.fcc.gov/e-file/ecfs.html>. Generally,
    only one copy of an electronic submission must be filed. In
    completing the transmittal screen, commenters should include their
    full name, U.S. Postal mailing address, and the applicable docket
    number. Parties may also submit an electronic comment by Internet
    e-mail. To get filing instructions for e-mail comments, commenters
    should send an e-mail to <ecfs@fcc.gov>, and should include the
    following words in the body of the message: "get form \<your e-mail
    address\>." A sample form and directions will be sent in reply.

21. 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 (although we continue to experience
    delays in receiving U.S. Postal Service mail). The Commission's
    contractor, Natek, Inc., will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, NE, Suite 110, Washington, D.C., 20002.
    The filing hours at this location are 8:00 a.m. to 7:00 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
    mail, Express Mail, and Priority Mail, should be addressed to 445
    12^th^ Street, SW, Washington, D.C., 20554. All filings must be
    addressed to the Commission's Secretary: Office of the Secretary,
    Federal Communications Commission.

22. ***[Availability of Documents]{.underline}***. Comments, reply
    comments, and ex parte submissions will be available for public
    inspection during regular business hours in the FCC Reference
    Center, Federal Communications Commission, 445 12^th^ Street, S.W.,
    CY-A257, Washington, D.C., 20554. Persons with disabilities who need
    assistance in the FCC Reference Center may contact Bill Cline
    at (202) 418-0267 (voice), (202) 418-7365 (TTY), or
    <bill.cline@fcc.gov>. These documents also will be available from
    the Commission's Electronic Comment Filing System. Documents are
    available electronically in ASCII, Word 97, and Adobe Acrobat.
    Copies of filings in this proceeding may be obtained from Best Copy
    and Printing, Inc., Portals II, 445 12^th^ Street, S.W., Room
    CY-B402, Washington, D.C., 20554; they can also be reached by
    telephone, at (202) 488-5300 or (800) 378-3160; by e-mail at
    <fcc@bcpiweb.com>; or via their website at
    [http://www.bcpiweb.com](http://www.bcpiweb.com/). 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 and Governmental
    Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

23. ***[Additional Information]{.underline}***. For additional
    information on this proceeding, contact Eloise Gore,
    <Eloise.Gore@fcc.gov>, or Lyle Elder, <Lyle.Elder@fcc.gov>, of the
    Media Bureau, Policy Division, (202) 418-2120.

## Paperwork Reduction Act of 1995 Analysis

24. The *Notice of Proposed Rulemaking* contains proposed information
    collection(s) subject to the Paperwork Reduction Act of 1995
    ("PRA").[^15] It will be submitted to the Office of Management and
    Budget (OMB) for review under the PRA. OMB, the general public, and
    other Federal agencies are invited to comment on the proposed
    information collection(s) contained in this proceeding.

25. Written comments by the public on the new and/or modified
    information collections are due on or before 60 days after the date
    of publication in the Federal Register. In addition to filing
    comments with the Office of the Secretary, a copy of any comments on
    the proposed information collection requirements contained herein
    should be submitted to Cathy Williams, Federal Communications
    Commission, 445 12th St, S.W., Room 1-C823, Washington, D.C., 20554,
    or via the Internet to <Cathy.Williams@fcc.gov>.

26. *Further Information.* For additional information concerning the PRA
    proposed information collection requirements contained in this
    *Notice*, contact Cathy Williams at 202-418-2918, or via the
    Internet to <Cathy.Williams@fcc.gov>.

## Congressional Review Act 

27. The Commission will send a copy of this *Notice of Proposed
    Rulemaking* in a report to be sent to Congress and the General
    Accounting Office pursuant to the Congressional Review Act, 5 U.S.C.
    § 801(a)(1)(A).

## Initial Regulatory Flexibility Act Analysis

28. The Initial Regulatory Flexibility Analysis for the *Notice of
    Proposed Rulemaking* is found in Appendix A, *infra*.

# ordering clauses

29. **IT IS ORDERED** that, pursuant to authority contained in Sections
    4(i), 303(r), 335, and 336, of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 154(i), 303(r), 335, and 336, this *Notice of
    Proposed Rulemaking* **IS HEREBY ADOPTED**.

30. **IT IS FURTHER ORDERED** that the Consumer and Governmental Affairs
    Bureau, Reference Information Center, **SHALL SEND** a copy of this
    *Notice of Proposed Rulemaking*, including the Initial Regulatory
    Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
    Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**Initial Regulatory Flexibility Act Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA)[^16] the Commission has prepared this Initial Regulatory
    Flexibility Analysis (IRFA) of the possible economic impact on a
    substantial number of small entities by the policies and rules
    proposed in this *Notice of Proposed Rulemaking* ("*Notice*").
    Written public comments are requested on this IRFA. Comments must be
    identified as responses to the IRFA and must be filed by the
    deadlines for comments on the *Notice* provided in paragraph 18 of
    the Order. The Commission will send a copy of the *Notice*,
    including this IRFA, to the Chief Counsel for Advocacy of the Small
    Business Administration (SBA).[^17] In addition, the *Notice* and
    IRFA (or summaries thereof) will be published in the Federal
    Register.[^18]

**A.** **Need for, and Objectives of, the *Notice***

31. Our goals in this proceeding are to further educate consumers about
    the digital television transition; to engage all sectors of the
    television industry in support of that transition; and, in so doing,
    to facilitate the nation's transition to digital broadcast
    television. Specifically, the *Notice* considers whether the
    Commission should compel industry to participate in a coordinated,
    nationwide consumer outreach campaign, and seeks comment on other
    potential Commission initiatives. For each of these potential
    initiatives, we are concerned with the Commission's authority to
    implement them; the best method of implementation; their likely
    effectiveness; any policy implications; and any constitutional
    concerns.

32. Despite extensive consumer outreach efforts by the Commission and
    others, a large percentage of the public is not sufficiently
    informed about the DTV transition. This is a serious concern,
    because the many benefits of the transition could be severely
    limited by insufficient consumer awareness. Therefore, this *Notice*
    proposes that the Commission spearhead a nationwide consumer
    education campaign, and solicits comment on six specific elements
    that might be part of such a campaign. These elements are based on
    specific potential Commission initiatives raised by Congressmen
    Dingell and Markey.[^19] The first potential initiative would
    require all MVPDs to include periodic notices about the transition
    in customer bills, and asks how these notices should be conveyed to
    customers who rely on electronic or automatic billing. The second
    would require all manufacturers of "television receivers or related
    devices" to include transition information with the devices, and
    asks about the scope of the term "related devices." The third
    potential initiative would require that the Commission work with
    NTIA to require retailers who participate in the converter box
    coupon program to create employee training and consumer information
    plans and file them with the Commission, which would conduct spot
    checks to verify compliance. The fourth potential initiative would
    require the "Partners" listed on the Commission's DTV.gov page to
    report their consumer outreach efforts, and asks what level of
    detail would be required and whether these reports would be publicly
    available. The final two potential initiatives would require public
    service announcements ("PSAs") about the transition and filings by
    broadcasters detailing their consumer education efforts. The
    *Notice* asks about the content of the announcements, the frequency
    with which they would be shown, and whether there should be
    forfeitures for noncompliance. Finally, the *Notice* seeks comment
    generally on other proposals for consumer education.

**B. Legal Basis**

33. The authority for the action proposed in this rulemaking is
    contained in Sections 1, 4(i) and (j), 309(j), 325, 336, 338, 614,
    and 615 of the Communications Act of 1934, as amended, 47 U.S.C.
    §§151, 154(i) and (j), 309(j), 325, 336, 338, 534, and 535.

**C.** **Description and Estimate of the Number of Small Entities**

**To Which the *Notice* Will Apply**

34. The IRFA directs the Commission to provide a description of and,
    where feasible, an estimate of the number of small entities that
    will be affected by the proposed rules.[^20] The IRFA defines the
    term "small entity" as having the same meaning as the terms "small
    business," "small organization," and "small business concern" under
    Section 3 of the Small Business Act.[^21] Under the Small Business
    Act, a small business concern is one which: (1) is independently
    owned and operated; (2) is not dominant in its field of operation;
    and (3) satisfies any additional criteria established by the Small
    Business Administration ("SBA").[^22] The rules we may adopt as a
    result of the comments filed in response to this *Notice* would
    affect all MVPDs (including satellite carriers and cable operators),
    broadcast television stations, consumer electronics ("CE")
    retailers, and CE manufacturers. A description of these small
    entities, as well as an estimate of the number of such small
    entities, is provided below.

35. ***Cable and Other Program Distribution***. The SBA has developed a
    small business size standard for cable and other program
    distribution services (aka multichannel video programming
    distributors, "MVPDs"), which includes all such companies generating
    \$13.5 million or less in revenue annually.[^23] 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.[^24] 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.[^25] 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. We address below each service individually to provide a more
    precise estimate of small entities.

36. ***Cable System Operators (Rate Regulation Standard)***. The
    Commission has developed its own small business size standard for
    cable system operators, for purposes of rate regulation. Under the
    Commission\'s rules, a "small cable company" is one serving fewer
    than 400,000 subscribers nationwide.[^26] The most recent estimates
    indicate that there were 1,439 cable operators who qualified as
    small cable system operators at the end of 1995.[^27] Since then,
    some of those companies may have grown to serve over 400,000
    subscribers, and others may have been involved in transactions that
    caused them to be combined with other cable operators. Consequently,
    the Commission estimates that there are now fewer than 1,439 small
    entity cable system operators that may be affected by the rules and
    policies adopted herein.

37. ***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."[^28] The
    Commission has determined that there are 67,700,000 subscribers in
    the United States.[^29] Therefore, an operator serving fewer than
    677,000 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.[^30] Based
    on available data, the Commission estimates that the number of cable
    operators serving 677,000 subscribers or fewer, totals 1,450.[^31]
    The Commission neither requests nor collects information on whether
    cable system operators are affiliated with entities whose gross
    annual revenues exceed \$250 million,[^32] and therefore is unable,
    at this time, to estimate more accurately the number of cable system
    operators that would qualify as small cable operators under the size
    standard contained in the Communications Act of 1934.

38. ***Satellite Carriers**.* The term "satellite carrier" includes
    entities providing services as described in 17 U.S.C. § 119(d)(6)
    using the facilities of a satellite or satellite service licensed
    under Part 25 of the Commission's rules to operate in Direct
    Broadcast Satellite (DBS) or Fixed-Satellite Service (FSS)
    frequencies.[^33] As a general practice, not mandated by any
    regulation, DBS licensees usually own and operate their own
    satellite facilities as well as package the programming they offer
    to their subscribers. In contrast, satellite carriers using FSS
    facilities often lease capacity from another entity that is licensed
    to operate the satellite used to provide service to subscribers.
    These entities package their own programming and may or may not be
    Commission licensees themselves. In addition, a third situation may
    include an entity using a non-U.S. licensed satellite to provide
    programming to subscribers in the United States pursuant to a
    blanket earth station license.[^34]

39. ***Direct Broadcast Satellite ("DBS") Service**.* DBS service is a
    nationally distributed subscription service that delivers video and
    audio programming via satellite to a small parabolic "dish" antenna
    at the subscriber's location. Because DBS provides subscription
    services, DBS falls within the SBA-recognized definition of Cable
    and Other Program Distribution.[^35] This definition provides that a
    small entity is one with \$13.5 million or less in annual
    receipts.[^36] Currently, only four operators hold licenses to
    provide DBS service, which requires a great investment of capital
    for operation. All four currently offer subscription services. Two
    of these four DBS operators, DIRECTV[^37] and EchoStar
    Communications Corporation ("EchoStar"),[^38] report annual revenues
    that are in excess of the threshold for a small business. A third
    operator, Rainbow DBS, is a subsidiary of Cablevision's Rainbow
    Network, which also reports annual revenues in excess of \$13.5
    million, and thus does not qualify as a small business.[^39] The
    fourth DBS operator, Dominion Video Satellite, Inc. ("Dominion"),
    offers religious (Christian) programming and does not report its
    annual receipts.[^40] The Commission does not know of any source
    which provides this information and, thus, we have no way of
    confirming whether Dominion qualifies as a small business. Because
    DBS service requires significant capital, we believe it is unlikely
    that a small entity as defined by the SBA would have the financial
    wherewithal to become a DBS licensee. Nevertheless, given the
    absence of specific data on this point, we acknowledge the
    possibility that there are entrants in this field that may not yet
    have generated \$13.5 million in annual receipts, and therefore may
    be categorized as a small business, if independently owned and
    operated.

40. ***Fixed-Satellite* Service *("FSS")***. The FSS is a
    radiocommunication service between earth stations at a specified
    fixed point or between any fixed point within specified areas and
    one or more satellites.[^41] The FSS, which utilizes many earth
    stations that communicate with one or more space stations, may be
    used to provide subscription video service. Therefore, to the extent
    FSS frequencies are used to provide subscription services, FSS falls
    within the SBA-recognized definition of Cable and Other Program
    Distribution, which includes all such companies generating \$13.5
    million or less in revenue annually.[^42] Although a number of
    entities are licensed in the FSS, not all such licensees use FSS
    frequencies to provide subscription services. Two of the DBS
    licensees (EchoStar and DirecTV) have indicated interest in using
    FSS frequencies to broadcast signals to subscribers. It is possible
    that other entities could similarly use FSS frequencies, although we
    are not aware of any entities that might do so.

41. ***Private Cable Operators (PCOs) also known as Satellite Master
    Antenna Television (SMATV) Systems***. PCOs, also known as SMATV
    systems or private communication operators, are video distribution
    facilities that use closed transmission paths without using any
    public right-of-way. PCOs acquire video programming and distribute
    it via terrestrial wiring in urban and suburban multiple dwelling
    units such as apartments and condominiums, and commercial multiple
    tenant units such as hotels and office buildings. The SBA definition
    of small entities for Cable and Other Program Distribution Services
    includes PCOs and, thus, small entities are defined as all such
    companies generating \$13.5 million or less in annual receipts.[^43]
    Currently, there are approximately 135 members in the Independent
    Multi-Family Communications Council (IMCC), the trade association
    that represents PCOs.[^44] Individual PCOs often serve approximately
    3,000-4,000 subscribers, but the larger operations serve as many as
    15,000-55,000 subscribers. In total, PCOs currently serve
    approximately 1.1 million subscribers.[^45] Because these operators
    are not rate regulated, they are not required to file financial data
    with the Commission. Furthermore, we are not aware of any privately
    published financial information regarding these operators. Based on
    the estimated number of operators and the estimated number of units
    served by the largest ten PCOs, we believe that a substantial number
    of PCOs qualify as small entities.

42. ***Home Satellite Dish ("HSD") Service**.* Because HSD provides
    subscription services, HSD falls within the SBA-recognized
    definition of Cable and Other Program Distribution, which includes
    all such companies generating \$13.5 million or less in revenue
    annually.[^46] HSD or the large dish segment of the satellite
    industry is the original satellite-to-home service offered to
    consumers, and involves the home reception of signals transmitted by
    satellites operating generally in the C-band frequency. Unlike DBS,
    which uses small dishes, HSD antennas are between four and eight
    feet in diameter and can receive a wide range of unscrambled (free)
    programming and scrambled programming purchased from program
    packagers that are licensed to facilitate subscribers' receipt of
    video programming. There are approximately 30 satellites operating
    in the C-band, which carry over 500 channels of programming
    combined; approximately 350 channels are available free of charge
    and 150 are scrambled and require a subscription. HSD is difficult
    to quantify in terms of annual revenue. HSD owners have access to
    program channels placed on C-band satellites by programmers for
    receipt and distribution by MVPDs. Commission data shows that,
    between June 2003 and June 2004, HSD subscribership fell from
    502,191 subscribers to 335,766 subscribers, a decline of more than
    33 percent.[^47] The Commission has no information regarding the
    annual revenue of the four C-Band distributors.

43. ***Open Video Systems ("OVS")**.* The OVS framework provides
    opportunities for the distribution of video programming other than
    through cable systems. Because OVS operators provide subscription
    services,[^48] OVS falls within the SBA-recognized definition of
    Cable and Other Program Distribution Services, which provides that a
    small entity is one with \$13.5 million or less in annual
    receipts.[^49] The Commission has certified 25 OVS operators with
    some now providing service. Broadband service providers (BSPs) are
    currently the only significant holders of OVS certifications or
    local OVS franchises, even though OVS is one of four
    statutorily-recognized options for local exchange carriers (LECs) to
    offer video programming services.[^50] As of June 2003, BSPs served
    approximately 1.4 million subscribers, representing 1.49 percent of
    all MVPD households.[^51] Among BSPs, however, those operating under
    the OVS framework are in the minority, with approximately eight
    percent operating with an OVS certification.[^52] Serving
    approximately 460,000 of these subscribers, Affiliates of
    Residential Communications Network, Inc. ("RCN") is currently the
    largest BSP and 11th largest MVPD.[^53] RCN received approval to
    operate OVS systems in New York City, Boston, Washington, D.C. and
    other areas. The Commission does not have financial information
    regarding the entities authorized to provide OVS, some of which may
    not yet be operational. We thus believe that at least some of the
    OVS operators may qualify as small entities.

44. ***Television Broadcasting**.* The SBA defines a television
    broadcasting station as a small business if such station has no more
    than \$13 million in annual receipts.[^54] Business concerns
    included in this industry are those "primarily engaged in
    broadcasting images together with sound."[^55] According to
    Commission staff review of the BIA Publications, Inc. Master Access
    Television Analyzer Database (BIA) on  March 30, 2007,
    about  986 of  an estimated 1,374 commercial television
    stations[^56] (or approximately  72  percent) have revenues of
    \$13.5  million or less and thus qualify as small entities under the
    SBA definition.  We note, however, that, in assessing whether a
    business concern qualifies as small under the above definition,
    business (control) affiliations[^57] 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 has estimated the number of licensed NCE
    television stations to be 380.[^58]  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.

45. ***Class A TV, LPTV, and TV translator stations***. The rules and
    policies could also apply to licensees of Class A TV stations, low
    power television (LPTV) stations, and TV translator stations, as
    well as to 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 \$13 million in annual receipts.[^59]

46. Currently, there are approximately 567 licensed Class A stations,
    2,227 licensed LPTV stations, 4,518 licensed TV translators and 11
    TV booster stations.[^60] Given the nature of these services, we
    will presume that all of these licensees qualify as small entities
    under the SBA definition. We note, 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. We do 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 \$13 million and thus may be
    categorized as small, except to the extent that revenues of
    affiliated non-translator or booster entities should be considered.

47. In addition, an element of the definition of "small business" is
    that the entity not be dominant in its field of operation. We are
    unable at this time to define or quantify the criteria that would
    establish whether a specific television station is dominant in its
    field of operation. Accordingly, the estimate of small businesses to
    which rules may apply do not exclude any television station from the
    definition of a small business on this basis and are therefore
    over-inclusive to that extent. Also as noted, an additional element
    of the definition of "small business" is that the entity must be
    independently owned and operated. We note 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.

48. ***Retailers***. The proposals in this *Notice* would apply only to
    retailers that choose to participate in the converter box coupon
    program. The list of retailers who will be participating will not be
    finalized until March 2008,[^61] but they will likely include
    dedicated consumer electronics stores and internet-based stores.

49. ***Radio, Television, and Other Electronics Stores**.* The Census
    Bureau defines this economic census category as follows: "This U.S.
    industry comprises: (1) establishments known as consumer electronics
    stores primarily engaged in retailing a general line of new
    consumer-type electronic products; (2) establishments specializing
    in retailing a single line of consumer-type electronic products
    (except computers); or (3) establishments primarily engaged in
    retailing these new electronic products in combination with repair
    services."[^62] The SBA has developed a small business size standard
    for Radio, Television, and Other Electronics Stores, which is: all
    such firms having \$8 million or less in annual receipts.[^63]
    According to Census Bureau data for 2002, there were 10,380 firms in
    this category that operated for the entire year.[^64] Of this total,
    10,080 firms had annual sales of under \$5 million, and 177 firms
    had sales of \$5 million or more but less than \$10 million.[^65]
    Thus, the majority of firms in this category can be considered
    small.

50. ***Electronic Shopping***. According to the Census Bureau, this
    economic census category "comprises establishments engaged in
    retailing all types of merchandise using the Internet."[^66] The SBA
    has developed a small business size standard for Electronic
    Shopping, which is: all such entities having \$23 million or less in
    annual receipts.[^67] According to Census Bureau data for 2002,
    there were 4,959 firms in this category that operated for the entire
    year.[^68] Of this total, 4,742 firms had annual sales of under \$10
    million, and an additional 133 had sales of \$10 million to
    \$24,999,999.[^69] Thus, the majority of firms in this category can
    be considered small.

51. ***Electronics Equipment Manufacturers*.** Rules adopted in this
    proceeding could apply to manufacturers of television receiving
    equipment and other types of consumer electronics equipment. The SBA
    has developed definitions of small entity for manufacturers of audio
    and video equipment[^70] as well as radio and television
    broadcasting and wireless communications equipment.[^71] These
    categories both include all such companies employing 750 or fewer
    employees. The Commission has not developed a definition of small
    entities applicable to manufacturers of electronic equipment used by
    consumers, as compared to industrial use by television licensees and
    related businesses. Therefore, we will utilize the SBA definitions
    applicable to manufacturers of audio and visual equipment and radio
    and television broadcasting and wireless communications equipment,
    since these are the two closest NAICS Codes applicable to the
    consumer electronics equipment manufacturing industry. However,
    these NAICS categories are broad and specific figures are not
    available as to how many of these establishments manufacture
    consumer equipment. According to the SBA\'s regulations, an audio
    and visual equipment manufacturer must have 750 or fewer employees
    in order to qualify as a small business concern.[^72] Census Bureau
    data indicates that there are 554 U.S. establishments that
    manufacture audio and visual equipment, and that 542 of these
    establishments have fewer than 500 employees and would be classified
    as small entities.[^73] The remaining 12 establishments have 500 or
    more employees; however, we are unable to determine how many of
    those have fewer than 750 employees and therefore, also qualify as
    small entities under the SBA definition. Under the SBA\'s
    regulations, a radio and television broadcasting and wireless
    communications equipment manufacturer must also have 750 or fewer
    employees in order to qualify as a small business concern.[^74]
    Census Bureau data indicates that there 1,215 U.S. establishments
    that manufacture radio and television broadcasting and wireless
    communications equipment, and that 1,150 of these establishments
    have fewer than 500 employees and would be classified as small
    entities.[^75] The remaining 65 establishments have 500 or more
    employees; however, we are unable to determine how many of those
    have fewer than 750 employees and therefore, also qualify as small
    entities under the SBA definition. We therefore conclude that there
    are no more than 542 small manufacturers of audio and visual
    electronics equipment and no more than 1,150 small manufacturers of
    radio and television broadcasting and wireless communications
    equipment for consumer/household use.

**D. Description of Projected Reporting, Record Keeping, and Other
Compliance Requirements**

52. The *Notice of Proposed Rulemaking* seeks comment on a range of
    potential changes to existing reporting, recordkeeping or other
    compliance requirements. If adopted, these proposals would require:
    MVPDs to modify their customer billing notices; broadcasters to make
    public service announcements and report their efforts; CE retailers
    to prepare and report transition plans and subject themselves to
    audit; CE manufacturers to provide customer notices about the
    transition; and DTV.gov Partners to report their consumer education
    efforts.

**E. Steps Taken to Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered**

53. The RFA requires an agency to describe any significant alternatives
    that it has considered in reaching its proposed approach, which may
    include the following four alternatives (among others): (1) the
    establishment of differing compliance or reporting requirements or
    timetables that take into account the resources available to small
    entities; (2) the clarification, consolidation, or simplification of
    compliance or reporting requirements under the rule for small
    entities; (3) the use of performance, rather than design, standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for small entities.[^76] In this instance, we seek comment on the
    specific proposals outlined by Congressmen Dingell and Markey, but
    we are particularly interested in comments regarding alternatives
    that would reduce any burdens from these proposed rules. We urge
    small entities to provide data on the impact of the questions raised
    in the *Notice of Proposed Rulemaking* and how we might tailor our
    rules to address and minimize the impact on these small businesses.
    We expect that whichever alternatives are chosen, the Commission
    will seek to minimize any adverse effects on small entities.

**F. Federal Rules Which Duplicate, Overlap, or Conflict with the
Commission\'s Proposals**

54. None.

**APPENDIX B**

**Letter from the Honorable John D. Dingell, Chairman of the Committee
on Energy and Commerce, and the Honorable Edward J. Markey, Chairman of
the Subcommittee on Telecommunications and the Internet, U.S. House of
Representatives, to the Honorable Kevin J. Martin, Chairman, the
Honorable Michael J. Copps, Commissioner, the Honorable Jonathan S.
Adelstein, Commissioner, the Honorable Deborah Taylor Tate,
Commissioner, and the Honorable Robert M. McDowell, Commissioner,
Federal Communications Commission.** (attached)

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

 

*Re:       DTV Consumer Education Initiative*

 

We should have one overriding goal in this proceeding -- to make sure
that no over-the-air television viewer wakes up to a blank screen on
February 18, 2009.  Snow outside our front door might be fine on that
cold winter day, but no one of us wants snow inside on our TV screen. 
Given the stakes---not only for television viewers but for so many
others -- including the public safety community and wireless service
providers about to bid on the 700 MHz spectrum -- one would think that
by now DTV consumer education would be a major national priority. 

 

Well, not yet.  According to a survey done earlier this year by the
Association of Public Television Stations, 61% of consumers said they
had ***no idea*** that the transition is taking place.  Contrast that
with the United Kingdom, where 80% of the population is aware of their
digital switch-over (occurring regionally between 2008 and 2012) and it
becomes clear that we have a lot of catching up to do and not much time
to do it.

 

One thing we can do immediately is to start making consumers aware that
the transition is coming and -- crucially -- ***why*** it's happening
and what's in it for them.  The first message consumers hear should not
be about how to get a converter box for a transition they've never heard
of.  To the extent consumers feel that this is something the government
is doing ***to*** them rather than ***for*** them, we will face a very
messy backlash.

 

Further, the consumer outreach must be conducted in a serious and
coordinated way.  Web sites and pamphlets are fine, but they're not
going to get the job done.  The best way to reach analog television
viewers is through analog television programming.  While voluntary
efforts are welcome, compliance should not be left to chance or
patchwork decisions by individual licensees.  This is especially true in
2008.  With space at a premium in a presidential election year, many
licensees may be tempted to ease off their DTV education efforts and let
others take the laboring oar.  There must be a predictable and
enforceable baseline to which all licensees adhere.  I appreciate my
colleagues' willingness to follow up on the suggestion of Chairman
Dingell and Chairman Markey that the Commission consider requiring
broadcasters to air DTV public service announcements and a rolling
scroll.

 

We have a lot to do between now and February 18, 2009.  Let's hope that
today's action signals an all-out effort to make the transition happen
as seamlessly as possible.

**\
**

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re:* *DTV Consumer Education Initiative*

My support for this item is bittersweet. I'm disappointed that it has
taken the Commission nearly a year and a half since the February 17,
2009 deadline became law to begin to take seriously its obligation to
inform the American people about the impending DTV transition.
Nevertheless, I'm pleased that, after more than a little nudge from
Chairman Dingell and Chairman Markey, this Commission is finally asking
the right questions about how we -- the Commission, broadcasters, cable
operators, consumer electronics retailer and manufacturers -- can
leverage our respective resources to deliver a coordinated message to
the American people.

While we've lost a year and a half since the DTV transition deadline was
enacted, we have about the same amount of time remaining to get our act
together. For starters, that means creating a Federal DTV Transition
Task Force with the National Telecommunication and Information
Administration to leverage the existing resources of the entire federal
government, and to develop a unified, coherent message among all levels
of government. Also, while this NPRM is necessary, the Commission should
not wait for months until we issue an order before we begin to talk to
the affected industries in a constructive manner. The vast majority of
the proposals discussed in today's Notice could be accomplished if the
Commission would simply confer with the affected industries.

We simply cannot afford to waste any more time.

[^1]: Deficit Reduction Act of 2005, Pub. L. No. 109-171, Title III, §§
    3002(a), 3003, 3004, 120 Stat. 21, 22 ("A full-power television
    broadcast license that authorizes analog television service may not
    be renewed to authorize such service for a period that extends
    beyond February 17, 2009."). *See also* 47 U.S.C. § 337(e) and 47
    U.S.C. § 309(j)(14).

[^2]: Letter from the Honorable John D. Dingell, Chairman of the
    Committee on Energy and Commerce, and the Honorable Edward J.
    Markey, Chairman of the Subcommittee on Telecommunications and the
    Internet, U.S. House of Representatives, to the Honorable Kevin J.
    Martin, Chairman, the Honorable Michael J. Copps, Commissioner, the
    Honorable Jonathan S. Adelstein, Commissioner, the Honorable Deborah
    Taylor Tate, Commissioner, and the Honorable Robert M. McDowell,
    Commissioner, Federal Communications Commission, received May 24,
    2007. ("Letter") *See* Appendix B.

[^3]: *Id.* at 3.

[^4]: *Id.*

[^5]: Letter at 3.

[^6]: The Commission\'s toll-free consumer helpline (1-888-CALL-FCC),
    for instance, currently has an IVR system so that consumers can
    press a button to request that DTV materials be mailed to them.

[^7]: *Id.*

[^8]: *See* 47 C.F.R. § 73.3526.

[^9]: *Id.*

[^10]: Letter at 3.

[^11]: *Id.*

[^12]: *Id.* at 4.

[^13]: *See* 47 C.F.R. § 1.1206(b)**.**

[^14]: *See id.,* § 1.1206(b)(2).

[^15]: The Paperwork Reduction Act of 1995 ("PRA"), Pub. L. No. 104-13,
    109 Stat 163 (1995) (codified in Chapter 35 of title 44 U.S.C.).

[^16]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 -- 612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^17]: *See* 5 U.S.C. § 603(a).

[^18]: *See* 5 U.S.C. § 603(a).

[^19]: *See supra* note 2.

[^20]: 5 U.S.C. § 604(b).

[^21]: 5 U.S.C. § 601(3) and (6).

[^22]: 15 U.S.C. § 632.

[^23]: 13 C.F.R. § 121.201 (NAICS Code 517510). This NAICS Code applies
    to all services listed in this paragraph.

[^24]: Those MVPDs relying primarily or exclusively on satellite
    transmission could also be considered to fall under the "Satellite
    Telecommunications" category. 13 C.F.R. § 121.201 (NAICS Code
    517410).

[^25]: 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
    \$12.5 million existed. Thus, the number is as accurate as it is
    possible to calculate with the available information.

[^26]: 47 C.F.R. § 76.901(e). 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
    (1995).

[^27]: Paul Kagan Associates, Inc., Cable TV Investor, February 29, 1996
    (based on figures for December 30, 1995).

[^28]: 47 U.S.C. § 543(m)(2).

[^29]: *See* FCC Announces New Subscriber Count for the Definition of
    Small Cable Operator, Public Notice DA 01-158 (2001).

[^30]: 47 C.F.R. § 76.901(f).

[^31]: *See* FCC Announces New Subscriber Count for the Definition of
    Small Cable Operators, Public Notice, DA 01-0158 (2001).

[^32]: 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 § 76.901(f) of the Commission's rules. *See* 47 C.F.R.
    § 76.909(b).

[^33]: Part 100 of the Commission's rules was eliminated in 2002 and now
    both FSS and DBS satellite facilities are licensed pursuant to Part
    25 of the rules. *Policies and Rules for the Direct Broadcast
    Satellite Service*, 17 FCC Rcd 11331 (2002); 47 C.F.R. § 25.148.

[^34]: *See, e.g., Application Of DirecTV Enterprises, LLC, Request For
    Special Temporary Authority for the DirecTV 5 Satellite; Application
    Of DirecTV Enterprises, LLC, Request for Blanket Authorization for
    1,000,000 Receive Only Earth Stations to Provide Direct Broadcast
    Satellite Service in the U.S. using the Canadian Authorized DirecTV
    5 Satellite at the 72.5° W.L. Broadcast Satellite Service Location,*
    19 FCC Rcd. 15529 (Sat. Div. 2004).

[^35]: 13 C.F.R. § 121.201, NAICS code 517510.

[^36]: *Id.*

[^37]: DirecTV is the largest DBS operator and the second largest MVPD,
    serving an estimated 13.04 million subscribers nationwide; *see*
    *2005 Cable Competition Report*, 20 FCC Rcd at 2793, ¶ 55.

[^38]: EchoStar, which provides service under the brand name Dish
    Network, is the second largest DBS operator and the fourth largest
    MVPD, serving an estimated 10.12 million subscribers nationwide.
    *Id*.

[^39]: Rainbow DBS, which provides service under the brand name VOOM,
    reported an estimated 25,000 subscribers. *Id*.

[^40]: Dominion, which provides service under the brand name Sky Angel,
    does not publicly disclose its subscribership numbers on an
    annualized basis. *Id*.

[^41]: *See* 47 C.F.R. § 2.1(c).

[^42]: 13 C.F.R. § 121.201, NAICS code 517510.

[^43]: 13 C.F.R. § 121.201, NAICS code 517510.

[^44]: *See 2005 Cable Competition Report*, 20 FCC Rcd at 2816, ¶ 110.
    Previously, the Commission reported that IMCC had 250 members; *see*
    Annual Assessment of the Status of Competition in the Market for the
    Delivery of Video Programming, *Tenth Annual Report*, 19 FCC Rcd
    1606, 1666, ¶ 90 (2004) ("*2004 Cable Competition Report*").

[^45]: *See 2005 Cable Competition Report*, 20 FCC Rcd at 2816, ¶¶ 110.

[^46]: 13 C.F.F. § 121.201, NAICS code 517510.

[^47]: *See 2005 Cable Competition Report*, 20 FCC Rcd at 2798, ¶ 64.
    HSD subscribership declined more than 28 percent between June 2002
    and June 2003. *See 2004 Cable Competition Report*, 19 FCC Rcd at
    1654-55, ¶¶ 73-74.

[^48]: *See* 47 U.S.C. § 573.

[^49]: 13 C.F.R. § 121.201, NAICS code 517510.

[^50]: *See 2005 Cable Competition Report*, 20 FCC Rcd at 2802, ¶ 71.

[^51]: *See 2004 Cable Competition Report*, 19 FCC Rcd at 1659-60, ¶¶
    80-1.

[^52]: *See 2005 Cable Competition Report*, 20 FCC Rcd at 2802, ¶ 71.

[^53]: *Id*. WideOpenWest is the second largest BSP and 15th largest
    MVPD, with cable systems serving about 288,000 subscribers as of
    September 2003. The third largest BSP is Knology, which currently
    serves approximately 174,957 subscribers as of June 2004; *see*
    *2005 Cable Competition Report*, 20 FCC Rcd at 2802, ¶ 71.

[^54]: *See* 13 C.F.R. § 121.201, NAICS Code 515120 (adopted Oct. 2002).

[^55]: NAICS Code 515120. 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.

[^56]: Although we are using BIA\'s estimate for purposes of this
    revenue comparison, the Commission has estimated the number of
    licensed commercial television stations to be 1374.  *See* News
    Release, \"Broadcast Station Totals as of December 31, 2006\" (dated
    Jan. 26, 2007); see
    http://www.fcc.gov/mb/audio/totals/bt061231.html. 

[^57]: "\[Business concerns\] 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
    C.F.R. § 121.103(a)(1).

[^58]: Broadcast Stations Total as of December 31, 2006.

[^59]: See 13 C.F.R. § 121.201, NAICS Code 515120.

[^60]: *See* News Release, \"Broadcast Station Totals as of December 31,
    2006\" (dated Jan. 26, 2007);
    http://www.fcc.gov/mb/audio/totals/bt061231.html.

[^61]: 47 C.F.R. § 301.6 (2007).

[^62]: U.S. Census Bureau, 2002 NAICS Definitions, "443112 Radio,
    Television, and Other Electronics Stores";
    <http://www.census.gov/epcd/naics02/def/NDEF443.HTM>.

[^63]: 13 C.F.R. § 121.201, NAICS code 443112.

[^64]: U.S. Census Bureau, 2002 Economic Census, Industry Series: Retail
    Trade, Table 4, Sales Size of Firms for the United States: 2002,
    NAICS code 443112 (issued November 2005).

[^65]: *Id*. An additional 123 firms had annual sales of \$10 million or
    more. As a measure of small business prevalence, the data on annual
    sales are roughly equivalent to what one would expect from data on
    annual receipts.

[^66]: U.S. Census Bureau, 2002 NAICS Definitions, "454111 Electronic
    Shopping";
    <http://www.census.gov/epcd/naics02/def/NDEF454.HTM#N4541>.

[^67]: 13 C.F.R. § 121.201, NAICS code 454111.

[^68]: U.S. Census Bureau, 2002 Economic Census, Subject Series: Retail
    Trade, Table 4, "Sales Size of Firms for the United States: 2002,"
    NAICS code 454111 (issued Nov. 2005);
    <http://www.census.gov/prod/ec02/ec0244sssz.pdf>. As a measure of
    small business prevalence, the data on annual sales are roughly
    equivalent to what one would expect from data on annual receipts.

[^69]: *Id*. An additional 84 firms had annual sales of \$25 million or
    more.

[^70]: 13 CFR § 121.201, NAICS Code 334310.

[^71]: 13 CFR § 121.201, NAICS Code 334220.

[^72]: 13 CFR § 121.201, NAICS Code 334310.

[^73]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1997 Economic Census, Industry Series -
    Manufacturing, Audio and Video Equipment Manufacturing, Table 4 at 9
    (1999). The amount of 500 employees was used to estimate the number
    of small business firms because the relevant Census categories
    stopped at 499 employees and began at 500 employees. No category for
    750 employees existed. Thus, the number is as accurate as it is
    possible to calculate with the available information.

[^74]: 13 CFR § 121.201, NAICS Code 334220.

[^75]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1997 Economic Census, Industry Series -
    Manufacturing, Radio and Television Broadcasting and Wireless
    Communications Equipment Manufacturing, Table 4 at 9 (1999). The
    amount of 500 employees was used to estimate the number of small
    business firms because the relevant Census categories stopped at 499
    employees and began at 500 employees. No category for 750 employees
    existed. Thus, the number is as accurate as it is possible to
    calculate with the available information.

[^76]: 5 U.S.C. § 603(c)(1) -- (c)(4)