**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of: )

) CS Docket No. 98-132

1998 Biennial Regulatory Review \-- )

Streamlining of Cable Television Services )

Part 76 Public File and Notice Requirements )

)

**ORDER ON RECONSIDERATION**

**AND**

**FURTHER NOTICE OF PROPOSED RULE MAKING**

**Adopted: May 8, 2000** **Released: May 18, 2000**

**Comment Date: \[21 days after Federal Register publication\]**

**Reply Comment Date: \[31 days after Federal Register publication\]**

By the Commission:

## I. INTRODUCTION

1\. The Commission, on its own motion, commences this *Order on
Reconsideration and Further Notice of Proposed Rule Making*
(\"*Reconsideration and Further NPRM*\") in connection with the *1998
Biennial Regulatory Review \-- Streamlining of Cable Television Services
Part 76 Public File and Notice Requirements, Report and Order*
(\"*Order*\")[^1] pursuant to Sections 1.411 and 1.421 of the
Commission\'s rules.[^2] In the *Order*, the Commission revised and
streamlined the public file and notice requirements set forth in the
Commission\'s Part 76 cable television rules.[^3] The *Order* reduced
the regulatory burden faced by cable operators with regard to public
file requirements by: (1) reorganizing the public file requirements into
three new subparts of Part 76; (2) providing cable operators with an
alternative to maintaining a paper public file; (3) eliminating outdated
public file requirements; and (4) expanding the definition of small
cable systems for purposes of the public inspection rules.

2\. We have discovered that the \"Notice of Proposed Rule Making\"
("NPRM") in this proceeding inadvertently was not published in the
Federal Register. Section 1.412 of the Commission\'s rules provides that
prior notice of proposed rulemaking is ordinarily given by publication
of a NPRM in the *Federal Register.*[^4] Section 1.412 (b)(5) of the
Commission\'s rules creates an exception to the prior notice requirement
for, among other things, rules involving Commission organization,
procedure, or practice.[^5] In this proceeding, the NPRM contained
proposed changes in the Commission\'s public file and notice
requirements which were predominately procedural in nature and, thus,
pursuant to Section 1.412(b)(5), did not require prior notice by
publication in the *Federal Register*. Upon further review, the
Commission has determined that one provision that was adopted in the
Order contains a substantive rule change and required prior notice. We
therefore vacate that portion of the Order for which prior notice was
required but not given, and hereby give notice of, and seek comment on,
our intent to reinstate the vacated rule.

**II. DISCUSSION**

3\. The *Order* reorganized the Commission\'s public file, notice,
recordkeeping, and reporting requirements that provide consumers with
information about the cable services they receive and the rates they
pay.[^6] Those requirements were previously found in various sections
throughout Part 76 of the Commission\'s rules. The reorganization
created three new subparts in Part 76 \-- subparts T, U, V, which
contain public notice and file requirements. Subpart T contains notice
requirements, subpart U contains recordkeeping requirements, and subpart
V contains reporting and filing requirements. The *Order* further
created an alternative to paper recordkeeping by permitting cable
operators to maintain public information in a computer database, and
eliminated regulations which were outdated, e.g., rate freeze
regulations. The Commission has determined that those actions were
purely procedural in nature and did not alter the substantive public
file requirements with which cable operators must comply. Thus, we
clarify that such actions fall within the purview of the exception to
prior notice found in Section 1.412(b)(5) of the Commission\'s rules.
Accordingly, those actions will become effective thirty (30) days after
publication in the Federal Register.

4\. The *Order* further adopted an expansion of the definition of small
cable systems for purposes of the public inspection rules, which does
alter the substantive public file requirements for a certain subset of
cable operators. The *Order* redesignated Section 76.305(a) of the
Commission\'s rules as new rule 76.1700(a). Prior to the *Order*,
Section 76.305(a) provided an exemption from certain recordkeeping
requirements for cable operators with fewer than 1000 subscribers and
prescribed recordkeeping requirements for cable operators with 1000 or
more subscribers.[^7] In the *Order*, the Commission redesignates the
rule, maintains the exemption, and adds a limited exemption for cable
operators with 1000 or more subscribers, but fewer than 5000
subscribers. New Section 76.1700(a) provides as follows:

> **§76.1700 Records to be maintained locally by cable system
> operators**.
>
> \(a\) *Recordkeeping requirements.* The operator of every cable
> television system having fewer than 1,000 subscribers is exempt from
> the public inspection requirements contained in § 76.1701 (political
> file); §76.1715 (sponsorship identification); §76.1702 (EEO records
> available for public inspection); §76.1703 (commercial records for
> children\'s programming); §76.1704 (proof-of-performance test data);
> and §76.1706 (signal leakage logs and repair records). The operator of
> every cable television system having 1000 or more subscribers but
> fewer than 5000 subscribers shall, upon request, provide the
> information required by §76.1715 (sponsorship identification);
> §76.1702 (EEO records available for public inspection); §76.1703
> (commercial records for children\'s programming); §76.1704
> (proof-of-performance test data); and §76.1706 (signal leakage logs
> and repair records) but shall maintain for public inspection a file
> containing a copy of all records required to be kept by §76.1701
> (political file). The operator of every cable television system having
> 5000 or more subscribers shall maintain for public inspection a file
> containing a copy of all records which are required to be kept by
> §76.1701 (political file); §76.1715 (sponsorship identification);
> §76.1702 (EEO records available for public inspection); §76.1703
> (commercial records for children\'s programming); §76.1704
> (proof-of-performance test data); and §76.1706 (signal leakage logs
> and repair records).

5\. The Commission finds that new rule 76.1700(a) creates a substantive
rule change for cable operators with 1000 or more subscribers, but fewer
than 5000 subscribers and, accordingly, the provision is subject to the
prior notice requirement contained in Section 1.412 of the Commission\'s
rules. We therefore vacate that portion of the *Order* promulgating
Section 76.1700(a), and seek comment on the amendment of Section
76.305(a) of the Commission\'s rules as indicated in now vacated Section
76.1700(a).

**III. INITIAL REGULATORY FLEXIBILITY ANALYSIS**

6.  As required by Section 603 of the Regulatory Flexibility Act
    ("RFA"),[^8] the Commission is incorporating an Initial Regulatory
    Flexibility Analysis ("IRFA") of the possible significant economic
    impact on small entities by the policies and proposals in this
    *Reconsideration and Further NPRM*. 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 the submission of
    comments in this proceeding. The Commission will send a copy of this
    *Reconsideration and Further NPRM*, including the IRFA, to the Chief
    Counsel for Advocacy of the Small Business Administration in
    accordance with Section 603(a) of the RFA.[^9] In addition, the
    *Reconsideration and Further NPRM* will be published in the Federal
    Register.[^10]

# 

# A. Need for, and Objectives of, the Proposed Rules. 

7.  The Commission adopted *1998 Biennial Regulatory Review --
    Streamlining of Cable Television Services Part 76 Public File and
    Notice Requirements, Report and Order ("Order")* pursuant to Section
    11 of the 1996 Telecommunications Act which requires the Commission
    to conduct a biennial review of regulations that apply to operations
    and activities of any provider of telecommunications service and to
    repeal or modify any regulation it determines to be no longer in the
    public interest.[^11] Although Section 11 does not specifically
    refer to cable operators, the Commission has determined that the
    first biennial review presented an excellent opportunity for a
    thorough examination of all of the Commission's regulations. The
    initial NPRM in this proceeding was not published in the Federal
    Register. This *Reconsideration and Further NPRM* finds that, with
    the exception of one provision, the rules adopted in the *Order* are
    procedural in nature and subject to the prior notice exemption
    contained in Section 1.412(b)(5) of the Commission's rules.[^12]
    This *Reconsideration and Further NPRM* also vacates that portion of
    the *Order* which contains a substantive rule change for which prior
    notice was required but not given and gives notice of, and seeks
    comment on, our intent to reinstate the vacated rule.

# B. Legal Basis. 

# 

# 8. The authority for the action proposed for this rulemaking is contained in Sections 4(i)-(j) and 303 (r) of the Communications Act of 1934, as amended.[^13] 

> **C. Description and Estimate of the Number of Small Entities To Which
> the Proposed Rules Will Apply.**

9\. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted.[^14] The RFA 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.[^15] 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.[^16]

10\. The R*econsideration and Further NPRM* contains a proposal which
applies to cable operators with 1000 or more subscribers, but fewer than
5000 subscribers. The Commission has developed, with SBA's approval, its
own definition of a small cable system operator for rate regulation
purposes. Under the Commission's rules, a "small cable company" is one
serving fewer than 400,000 subscribers nationwide.[^17] Based on our
most recent information, we estimate that there were 1439 cable
operators that qualified as small cable system operators at the end of
1995.[^18] Consequently, we estimate that fewer than 1439 small entity
cable system operators may be affected by the decisions and rules we
propose.

D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements.

11\. The *Reconsideration and Further NPRM* will not increase the
recordkeeping or information collection requirements for any cable
operator. In fact, the proposed revision will decrease certain
recordkeeping requirements for cable operators with 1000 or more, but
fewer than 5000 subscribers. The proposed rule eliminates the
requirement that cable operators with 1000 or more, but less than 5000
subscribers maintain certain records in their public file. The proposed
rule provides that those records need only be provided pursuant to a
specific request. Thus, the proposed rule revision will result in
reductions in administrative costs borne by cable operators in
connection with reproducing and maintaining certain records in their
public files.

> **E. Steps taken to Minimize Significant Economic Impact on Small
> Entities and Significant Alternatives Considered.**
>
> 12\. 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: (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. We considered and are proposing the establishment
> of reduced regulatory burdens on small entities with regard to certain
> recordkeeping requirements. In the *Reconsideration and Further NPRM*,
> we seek comment on the proposed rule revision which will ease the
> recordkeeping requirements for certain small cable operators. We are
> aware of no alternatives to further reduce burdens on small entities
> consistent with the important regulatory objectives served by the
> reporting requirements. All alternatives presented in comments to the
> *Reconsideration and Further NPRM* will be considered.

F. Federal Rules that May Duplicate, Overlap, or Conflict with the
Proposed Rules.

13. None.

#### PROCEDURAL MATTERS

A.  **Paperwork Reduction Act Statement**

14\. The requirements proposed in this *Reconsideration and Further
NPRM* have been analyzed with respect to the Paperwork Reduction Act of
1995 (the \"1995 Act\") and have been found to impose modified
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 take this
opportunity to comment on the information collection requirements
contained in this *Reconsideration and Further NPRM*, as required by the
1995 Act. Public and agency comments are due at the same time as other
comments on this *Reconsideration and Further NPRM*; OMB comments are
due 60 days from the date of publication of the *Reconsideration and
Further NPRM* in the Federal Register. 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.

15\. Written comments by the public on the proposed modified information
collection requirements are due at the same time as other comments on
this *Reconsideration and Further NPRM*. Written comments must be
submitted by OMB on the proposed modified information collection
requirements on or before 60 days from date of publication of the
*Reconsideration and Further NPRM* in the Federal Register. Comments on
the information collections contained herein should be submitted to Judy
Foley, Federal Communications Commission, Room 1-C804, 445 12^th^
Street, S.W., Washington, D.C. 20554, or via the Internet to
jboley@fcc.gov. For additional information on the information collection
requirements, contact Judy Boley at 202-418-0214 or via the Internet at
the above address.

### B. Ex Parte Rules

16\. 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 rules.[^19] 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. Additional rules pertaining to oral and written presentations
are set forth in Section 1.1206(b).

**C. Filing of Comments and Reply Comments**

17\. Pursuant to applicable procedures set forth in Sections 1.415 and
1.419 of the Commission\'s rules, 47 C.F.R. §§1.415 and 1.419,
interested parties may file comments **\[21 days after Federal Register
publication\]** and reply comments **\[31 days after Federal Register
publication\]**. We believe the comment periods are reasonable given the
fact that the proposed rule was published with the *Order* that was
released last year and the issue on which comment is sought is narrow
and non-technical. Comments may be filed using the Commission\'s
Electronic Comment Filing System (\"ECFS\") or by filing paper
copies.[^20] Comments filed through the ECFS can be sent as an
electronic file via the Internet to \<http://www.fcc/e-file/ecfs.html\>.
Generally, only one copy of an electronic submission must be filed. If
multiple docket or rulemaking numbers appear in the caption of this
proceeding, however, commenters must transmit one electronic copy of the
comments to each docket or rulemaking number referenced in the caption.
In completing the transmittal screen, commenters should include their
full name, postal service mailing address, and the applicable docket or
rulemaking number. Parties may also submit an electronic comment by
Internet e-mail. To get filing instructions 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.

18\. Parties who choose to file by paper must file an original and four
copies of each filing. If participants want each Commissioner to receive
a personal copy of their comments, an original plus nine copies must be
filed. If more than one docket or rulemaking number appears in the
caption of this proceeding, commenters must submit two additional copies
for each additional docket or rulemaking number. All filings must be
sent to the Commission\'s Secretary, Magalie Roman Salas, Office of the
Secretary, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554. The Cable Services Bureau contact for this
proceeding is Carolyn Fleming at (202) 418-7200, TTY (202) 418-7172, or
at cfleming@fcc.gov.

19\. Parties who choose to file by paper should also submit their
comments on diskette. Parties should submit diskettes to Carolyn
Fleming, Cable Services Bureau, 445 12th Street S.W., Room 4-A802,
Washington, D.C. 20554. Such a submission should be on a 3.5 inch
diskette formatted in an IBM compatible form using MS DOS 5.0 and
WordPerfect 5.1 or compatible software. The diskette should be
accompanied by a cover letter and should be submitted in \"read only\"
mode. The diskette should be clearly labeled with the party\'s name,
proceeding (including the lead docket number in this case, CS Docket No.
98-132), type of pleading (comments or reply comments), date of
submission, and the name of the electronic file on the diskette. The
label should also include the following phrase \"Disk Copy - Not an
Original.\" Each diskette should contain only one party\'s pleadings,
referable in a single electronic file. In addition, commenters must send
diskette copies to the Commission\'s copy contractor, International
Transcription Service, 1231 20th Street, N.W., Washington, D.C. 20036.

## V. ORDERING CLAUSES

20\. Accordingly, **IT IS ORDERED** that, pursuant to Sections 4(i)-(j)
and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
§§154(i)-(j) and 303 (r), and Section 76.1700(a), as adopted by the
Commission in the *1998 Biennial Regulatory Review \-- Streamlining of
Cable Television Services Part 76 Public File and Notice Requirements,
Report and Order,* **IS VACATED.**

21\. **IT IS FURTHER ORDERED** that **NOTICE IS HEREBY GIVEN** of the
proposed amendment to Section 76.305(a) of the Commission\'s rules, 47
C.F.R. § 76.305(a), and **COMMENT IS SOUGHT** regarding the proposed
amendment.

22\. **IT IS FURTHER ORDERED** that the Commission's Consumer
Information Bureau, Reference Information Center, **SHALL SEND** a copy
of this *Reconsideration and Further NPRM*, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

[^1]: 14 FCC Rcd 4653 (1999). The *Order* has not yet been published in
    the Federal Register.

[^2]: 47 C.F.R. §§ 1.411 and 1.421.

[^3]: 47 C.F.R. §§ 76.1 - 76.1514 (1997).

[^4]: 47 C.F.R. § 1.412

[^5]: 47 C.F.R. §1.412(b)(5)

[^6]: *See Order,* 14 FCC Rcd 4653, Exhibit C - Final Rule Changes

[^7]: 47 C.F.R. § 76.305(a).

[^8]: ^?^ *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 *et.
    seq*., has been amended by the Contract With America Advancement Act
    of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II
    of the CWAAA is the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA).

[^9]: 5 U.S.C. § 603(a).

[^10]: *Id.*

[^11]: 47 U.S.C. § 161; FCC News Release (Nov. 18, 1997).

[^12]: 47 C.F.R. § 1.412(b)(5).

[^13]: 47 U.S.C. §§ 154 (i)-(j), 303(r).

[^14]: 5 U.S.C. § 603(b)(3).

[^15]: 5 U.S.C. § 601(3).

[^16]: 5 U.S.C. § 632.

[^17]: 47 C.F.R. § 76.901(e).

[^18]:
    > Paul Kagan Associates, Inc., *Cable TV Investor*, Feb. 26, 1996
    > (based upon figures for December 30, 1995).

[^19]: 47 C.F.R. 1.1206(b), as revised.

[^20]: *See* *Electronic Filing of Documents in Rulemaking Proceedings*,
    63 Fed. Reg. 24,121 (1998).