Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69573

Paperwork Reduction Act information 

collection requirements contained in 

this document, contact Judith B. 

Herman at 202–418–0214, or via 

Internet at Judith-B.Herman@fcc.gov.

SUPPLEMENTARY INFORMATION: This 

proposed rulemaking, 69 FR 63489, 

November 2, 2004, concerns a decision 

to provide additional twenty megahertz 

of spectrum that can be used to offer a 

variety of broadband and advanced 

wireless services (AWS), potentially 

including ‘‘third generation’’ (3G) 

wireless services, the Commission ask 

for public comment on licensing, 

technical, and operational rules to 

govern the use of the 1915–1920 MHz, 

1995–2000 MHz, and 2020–2025 MHz 

and 2175–2180 MHz bands designated 

for AWS. The Commission announced 

its desire to provide licensees of this 

spectrum with flexibility to provide any 

fixed or mobile service consistent with 

the technical parameters of allocation.

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary.

[FR Doc. 04–26384 Filed 11–29–04; 8:45 am] 

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 51

[WC Docket No. 02–78; FCC 04–252] 

Petition of Mid-Rivers Telephone 

Cooperative, Inc. for Order Declaring It 

To Be an Incumbent Local Exchange 

Carrier in Terry, MT Pursuant to 

Section 251(h)(2)

AGENCY: Federal Communications 

Commission.

ACTION: Proposed rule.

SUMMARY: This Notice of Proposed 

Rulemaking (NPRM) solicits comment 

on the application of section 251(h)(2) 

of the Communications Act of 1934, as 

amended, regarding the reclassification 

of competitive local exchange carriers 

(LECs) to incumbent LECs. Mid-Rivers 

Telephone Cooperative, Inc. (MidRivers) filed a petition to be classified 

as an incumbent LEC. The Commission 

makes tentative conclusions addressing 

Mid-Rivers petition in part and poses 

questions concerning the application of 

section 251(h)(2) in Mid-Rivers case, as 

well as other similar cases.

DATES: Comments are due on or before 

December 30, 2004, and reply comments 

are due on or before January 14, 2005.

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. See

SUPPLEMENTARY INFORMATION for further 

filing instructions.

FOR FURTHER INFORMATION CONTACT: Ian 

Dillner, Attorney, Competition Policy 

Division, Wireline Competition Bureau, 

at (202) 418–1191, or at 

Ian.Dillner@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking in WC Docket No. 

02–78, adopted October 21, 2004, and 

released November 15, 2004 (NPRM). 

The complete text of this NPRM is 

available for inspection and copying 

during normal business hours in the 

FCC Reference Information Center, 

Portals II, 445 12th Street, SW., Room 

CY–A257, Washington, DC 20554. This 

document may also be purchased from 

the Commission’s duplicating 

contractor, Best Copy and Printing, Inc., 

Portals II, 445 12th Street, SW., Room 

CY–B402, Washington, DC 20554, 

telephone 1–800–378–3160. It is also 

available on the Commission’s Web site 

at http://www.fcc.gov.

Comments may be filed using the 

Commission’s Electronic Comment 

Filing System (ECFS) or by filing paper 

copies. All filings should refer to WC 

Docket No. 02–78. Comments filed 

through ECFS can be sent as an 

electronic file via the Internet at

http://www.fcc.gov/e-file/ecfs.html.

Only one copy of an electronic 

submission must be filed. In completing 

the transmittal screen, commenters 

should include their full name, postal 

service mailing address, and the 

applicable docket number, which in this 

instance is WC Docket No. 02–78. 

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 

ecfshelp@fcc.gov, and should include 

the following words in the regarding 

line of the message: ‘‘get form<your email address>.’’ A sample form and 

directions will be sent in reply. 

Parties who choose to file by paper 

must file an original and four copies of 

each filing. Parties filing by paper must 

also send three (3) courtesy copies to the 

attention of Janice M. Myles, Wireline 

Competition Bureau, Competition 

Policy Division, 445 12th Street, SW., 

Suite 5–C327, Washington, DC 20554, or 

via e-mail janice.myles@fcc.gov. Paper 

filings and courtesy copies must be 

delivered in the following manner. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although 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, DC 20002. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. This facility is the 

only location where hand-delivered or 

messenger-delivered paper filings or 

courtesy copies for the Commission’s 

Secretary and Commission staff will be 

accepted. 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 

12th Street, SW., Washington, DC 

20554. 

All filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

Each comment and reply comment 

must include a short and concise 

summary of the substantive arguments 

raised in the pleading. Comments and 

reply comments must also comply with 

section 1.48 and all other applicable 

sections of the Commission’s rules. We 

direct all interested parties to include 

the name of the filing party and the date 

of the filing on each page of their 

comments and reply comments. All 

parties are encouraged to utilize a table 

of contents, regardless of the length of 

their submission. 

Synopsis of the Notice of Proposed 

Rulemaking 

1. Background. Mid-Rivers Telephone 

Cooperative, Inc. (Mid-Rivers), a 

competitive LEC in the Terry, Montana 

exchange, filed a petition with the 

Commission requesting classification as 

an incumbent LEC in the Terry 

exchange pursuant to section 251(h)(2) 

of the Communications Act of 1934, as 

amended (the Act or Communication 

Act). This provision allows the 

Commission to determine ‘‘by rule’’ to 

treat a competitive LEC as an incumbent 

LEC if it satisfies a three-prong test: (1) 

The carrier occupies a market position 

comparable to an incumbent LEC; (2) 

the carrier has ‘‘substantially replaced’’

an incumbent LEC, and; (3) the 

reclassification serves the public 

interest, convenience, and necessity. 47 

U.S.C. 251(h)(2). 

2. Mid-Rivers, also an incumbent LEC 

in a nearby exchange, filed this petition 

as a result of its success in acquiring 

approximately 93 percent of the access 

69574 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

lines in the Terry exchange, almost 

exclusively on its own facilities. MidRivers asserts that it should be classified 

as an incumbent LEC. Mid-Rivers’

petition is supported by several parties, 

but also is opposed by two parties. 

3. Notice of Proposed Rulemaking.

For Mid-Rivers to be treated as an 

incumbent LEC, the Commission must 

first find that it ‘‘occupies a position in 

the market for telephone exchange 

service with an area that is comparable 

to the position occupied by [an 

incumbent LEC]’’. 47 U.S.C. 

251(h)(2)(A). The Commission seeks 

comment on how to define the relevant 

‘‘area’’ under section 251(h)(2)(A). 

Assuming that the Terry exchange is the 

relevant ‘‘area,’’ the Commission 

tentatively concludes that Mid-Rivers 

satisfies the first prong of the statutory 

standard, based on their provisioning of 

facilities based service to 93 percent of 

the exchange. 

4. The second prong of section 

251(h)(2)(B) requires a showing that 

Mid-Rivers has ‘‘substantially replaced’’

an incumbent LEC. 47 U.S.C. 

251(h)(2)(B). The Commission set out a 

standard for fulfilling this requirement 

in the Guam Declaratory Ruling and 

NPRM, where the applicant LEC 

provides services ‘‘to all or virtually all’’

of the subscribers in the area. 62 FR 

29320–01, adopted, 63 FR 42275–01. 

Again, assuming the relevant ‘‘area’’ is 

the Terry exchange, the Commission 

tentatively concludes that Mid-Rivers 

has ‘‘substantially replaced’’ Qwest, 

based on its 93 percent share of the 

exchange, satisfying section 

251(h)(2)(B). 47 U.S.C. 251(h)(2)(B). 

5. Additionally, the Commission 

seeks comment on whether the 

requested classification will fulfill the 

‘‘public interest, convenience, and 

necessity’’ requirements under 

251(h)(2)(C). As part of this inquiry, we 

also seek comment on the benefits of 

advanced services provided by MidRivers and on whether the public 

interest is satisfied, possibly including 

consideration of broader market 

conditions. We also seek comment on 

the significance of universal service 

concerns, including possible effects on 

high-cost universal service support. 

Further, we seek comment on the 

relevance of access charge issues to the 

public interest analysis.

6. Another consideration, which the 

Mid-Rivers petition does not discuss, is 

the subsequent regulatory treatment of 

Qwest, as Qwest still fits the literal 

definition of an incumbent LEC. 

Because this is a novel issue for the 

Commission, and section 251(h) is silent 

on the matter, we seek comment on 

what regulatory treatment is appropriate 

for legacy incumbent LECs. 

Furthermore, the Commission seeks 

comment on whether automatic 

reclassification of the legacy incumbent 

LEC is an appropriate result of 

reclassifying the competitive LEC. The 

Commission also requests comment on 

whether two incumbent LECs can coexist in an exchange, and the 

implications this would have on the 

current implementation of the Act 

including, universal service, and other 

rules predicated on a single incumbent 

LEC per area. The Commission has 

authority under section 10 of the Act to 

forbear from certain requirements and 

seeks comments on whether this is the 

required mechanism to address the 

situation. 

7. Finally, the Commission seeks to 

develop a record on other 

considerations regarding this petition. 

We seek comment on whether revised 

Commission rules might resolve this 

situation. We also seek comment on 

current market trends that are related to 

this issue, and what underlying market 

and regulatory motivations are driving 

such a trend. We seek further comment 

on the process the Commission should 

use to address any further applications 

of this type. If the record indicates that 

a number of similar carriers are 

interested in filing similar applications, 

we seek comment on whether and how 

to administer an efficient process. 

Paperwork Reduction Act 

8. This NPRM does not contain 

proposed information collection(s) 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. In 

addition, therefore, it does not contain 

any proposed ‘‘information collection 

burden for small business concerns with 

fewer than 25 employees,’’ pursuant to 

the Small Business Paperwork Relief 

Act of 2002, Public Law 107–198, see 44 

U.S.C. 3506(c)(4). 

Initial Regulatory Flexibility Analysis 

9. As required by the RFA, the 

Commission has prepared this IRFA of 

the possible significant economic 

impact on a substantial number of small 

entities by the policies and rules 

proposed in this NPRM. Written public 

comments are sought on this IRFA. 

Comments must be identified as 

responses to the IRFA and must be filed 

by the deadlines for comments on the 

NPRM. The Commission will send a 

copy of the NPRM, including this IRFA, 

to the Chief Counsel for SBA Advocacy. 

1. Need for, and Objectives of, the 

Proposed Rules 

10. The Commission initiates this 

rulemaking proceeding because the 

Mid-Rivers’ petition raises novel and 

difficult questions implicating several of 

the Commission’s major policies 

affecting LECs of all sizes, including 

local competition, universal service, and 

access charges. In this proceeding, we 

seek comment on whether Mid-Rivers 

satisfies the requirements of section 

251(h)(2) to be classified as an 

incumbent LEC in Terry, Montana. To 

this end, the Commission makes 

tentative conclusions that Mid-Rivers 

satisfies the first two statutory prongs of 

section 251(h)(2). However, the 

Commission will weigh these tentative 

conclusions against the alternative 

possibility that Mid-Rivers does not 

satisfy the standards set forth in the Act. 

The Commission also plans to consider 

whether the petition satisfies the third 

prong of section 251(h)(2)—the public 

interest standard—and will weigh the 

benefits of granting the application 

against other considerations, such as the 

impact on other major Commission 

policies. Furthermore, the Commission 

plans to review: (1) The subsequent 

regulatory treatment of Qwest, including 

whether two incumbent LECs can serve 

the same exchange, and whether the 

Commission is authorized to reclassify 

Qwest as a competitive LEC; (2) whether 

the Act permits expected future 

applications of this type to be decided 

by final order rather than by 

rulemaking; and (3) the appropriate 

regulatory requirements for 

classification changes such as these. 

Thus, we ask interested parties to 

address how the Commission can best 

balance its objective to advance local 

competition and other policy goals 

within the existing statutory and 

regulatory framework. The Commission 

also plans to consider the various 

alternative approaches, as described in 

the Notice of Proposed Rulemaking. 

2. Legal Basis 

11. The legal basis for any action that 

may be taken pursuant to this Notice is 

contained in sections 4, 10, 201–202, 

214, 303 and 403 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154, 160, 201–204, 

214, 303, and 403, section 706 of the 

Telecommunications Act of 1996, 47 

U.S.C. 157nt, and §§ 1.1, 1.48, 1.411, 

1.412, 1.415, 1.419, and 1.1200–1.1216, 

of the Commission’s rules, 47 CFR 1.1, 

1.48, 1.411, 1.412, 1.415, 1.419, and 

1.1200–1.1216. 

3. Description and Estimate of the 

Number of Small Entities To Which the 

Proposed Rules Would Apply 

12. The RFA directs agencies to 

provide a description of, and, where 

feasible, an estimate of, the number of 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69575

small entities that may be affected by 

the rules adopted herein. The RFA 

generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’

under the Small Business Act. A ‘‘small 

business concern’’ is one which: (1) Is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the Small Business 

Administration (SBA). 

13. In this section, we further describe 

and estimate the number of small entity 

licensees and regulatees that may be 

affected by rules adopted in this Order. 

The most reliable source of information 

regarding the total numbers of certain 

common carrier and related providers 

nationwide, as well as the number of 

commercial wireless entities, appears to 

be the data that the Commission 

publishes in its Trends in Telephone 

Service report. The SBA has developed 

small business size standards for 

wireline and wireless small businesses 

within the three commercial census 

categories of Wired 

Telecommunications Carriers, Paging, 

and Cellular and Other Wireless 

Telecommunications. Under these 

categories, a business is small if it has 

1,500 or fewer employees. Below, using 

the above size standards and others, we 

discuss the total estimated numbers of 

small businesses that might be affected 

by our actions.

14. We have included small 

incumbent local exchange carriers in 

this present RFA analysis. As noted 

above, a ‘‘small business’’ under the 

RFA is one that, inter alia, meets the 

pertinent small business size standard 

(e.g., a telephone communications 

business having 1,500 or fewer 

employees), and ‘‘is not dominant in its 

field of operation.’’ The SBA’s Office of 

Advocacy contends that, for RFA 

purposes, small incumbent local 

exchange carriers are not dominant in 

their field of operation because any such 

dominance is not ‘‘national’’ in scope. 

We have therefore included small 

incumbent local exchange carriers in 

this RFA analysis, although we 

emphasize that this RFA action has no 

effect on Commission analyses and 

determinations in other, non-RFA 

contexts. 

15. Wired Telecommunications 

Carriers. The SBA has developed a 

small business size standard for Wired 

Telecommunications Carriers, which 

consists of all such companies having 

1,500 or fewer employees. According to 

Census Bureau data for 1997, there were 

2,225 firms in this category, total, that 

operated for the entire year. Of this 

total, 2,201 firms had employment of 

999 or fewer employees, and an 

additional 24 firms had employment of 

1,000 employees or more. Thus, under 

this size standard, the great majority of 

firms can be considered small. 

16. Incumbent Local Exchange 

Carriers (LECs). Neither the Commission 

nor the SBA has developed a small 

business size standard specifically for 

incumbent local exchange services. The 

appropriate size standard under SBA 

rules is for the category Wired 

Telecommunications Carriers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 1,310 

carriers have reported that they are 

engaged in the provision of incumbent 

local exchange services. Of these 1,310 

carriers, an estimated 1,025 have 1,500 

or fewer employees and 285 have more 

than 1,500 employees. Consequently, 

the Commission estimates that most 

providers of incumbent local exchange 

service are small businesses that may be 

affected by our proposed action. 

17. Competitive Local Exchange 

Carriers (CLECs), Competitive Access 

Providers (CAPs), ‘‘Shared-Tenant 

Service Providers,’’ and ‘‘Other Local 

Service Providers.’’ Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically for these service providers. 

The appropriate size standard under 

SBA rules is for the category Wired 

Telecommunications Carriers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 563 

carriers have reported that they are 

engaged in the provision of either 

competitive access provider services or 

competitive local exchange carrier 

services. Of these 563 carriers, an 

estimated 472 have 1,500 or fewer 

employees and 91 have more than 1,500 

employees. In addition, 14 carriers have 

reported that they are ‘‘Shared-Tenant 

Service Providers,’’ and all 14 are 

estimated to have 1,500 or fewer 

employees. In addition, 37 carriers have 

reported that they are ‘‘Other Local 

Service Providers.’’ Of the 37, an 

estimated 36 have 1,500 or fewer 

employees and one has more than 1,500 

employees. Consequently, the 

Commission estimates that most 

providers of competitive local exchange 

service, competitive access providers, 

‘‘Shared-Tenant Service Providers,’’ and 

‘‘Other Local Service Providers’’ are 

small entities that may be affected by 

our proposed action. 

18. Interexchange Carriers (IXCs).

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for providers of 

interexchange services. The appropriate 

size standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 281 carriers have 

reported that they are engaged in the 

provision of interexchange service. Of 

these, an estimated 254 have 1,500 or 

fewer employees and 27 have more than 

1,500 employees. Consequently, the 

Commission estimates that the majority 

of IXCs are small entities that may be 

affected by our proposed action. 

19. Operator Service Providers (OSPs).

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for operator 

service providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 23 carriers have 

reported that they are engaged in the 

provision of operator services. Of these, 

an estimated 22 have 1,500 or fewer 

employees and one has more than 1,500 

employees. Consequently, the 

Commission estimates that the majority 

of OSPs are small entities that may be 

affected by our proposed action. 

20. Prepaid Calling Card Providers.

The SBA has developed a size standard 

for a small business within the category 

of Telecommunications Resellers. Under 

that SBA size standard, such a business 

is small if it has 1,500 or fewer 

employees. According to Commission 

data, 32 companies reported that they 

were engaged in the provision of 

prepaid calling cards. Of these 32 

companies, an estimated 31 have 1,500 

or fewer employees and one has more 

than 1,500 employees. Consequently, 

the Commission estimates that the great 

majority of prepaid calling card 

providers are small entities that may be 

affected by the rules and policies 

adopted herein.

21. Other Toll Carriers. Neither the 

Commission nor the SBA has developed 

a size standard for small businesses 

specifically applicable to ‘‘Other Toll 

Carriers.’’ This category includes toll 

carriers that do not fall within the 

categories of interexchange carriers, 

OSPs, prepaid calling card providers, 

satellite service carriers, or toll resellers. 

The closest applicable size standard 

under SBA rules is for Wired 

Telecommunications Carriers. Under 

that size standard, such a business is 

69576 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

small if it has 1,500 or fewer employees. 

According to Commission’s data, 65 

companies reported that their primary 

telecommunications service activity was 

the provision of other toll services. Of 

these 65 companies, an estimated 62 

have 1,500 or fewer employees and 

three have more than 1,500 employees. 

Consequently, the Commission 

estimates that most ‘‘Other Toll 

Carriers’’ are small entities that may be 

affected by the rules and policies 

adopted herein. 

22. Wireless Service Providers. The 

SBA has developed a small business 

size standard for wireless firms within 

the two broad economic census 

categories of ‘‘Paging’’ and ‘‘Cellular and 

Other Wireless Telecommunications.’’

Under both SBA categories, a wireless 

business is small if it has 1,500 or fewer 

employees. For the census category of 

Paging, Census Bureau data for 1997 

show that there were 1,320 firms in this 

category, total, that operated for the 

entire year. Of this total, 1,303 firms had 

employment of 999 or fewer employees, 

and an additional 17 firms had 

employment of 1,000 employees or 

more. Thus, under this category and 

associated small business size standard, 

the great majority of firms can be 

considered small. For the census 

category Cellular and Other Wireless 

Telecommunications, Census Bureau 

data for 1997 show that there were 977 

firms in this category, total, that 

operated for the entire year. Of this 

total, 965 firms had employment of 999 

or fewer employees, and an additional 

12 firms had employment of 1,000 

employees or more. Thus, under this 

second category and size standard, the 

great majority of firms can, again, be 

considered small. Broadband PCS. The 

broadband PCS spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission defined ‘‘small entity’’ for 

Blocks C and F as an entity that has 

average gross revenues of $40 million or 

less in the three previous calendar 

years. For Block F, an additional 

classification for ‘‘very small business’’

was added and is defined as an entity 

that, together with its affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years.’’ These standards 

defining ‘‘small entity’’ in the context of 

broadband PCS auctions have been 

approved by the SBA. No small 

businesses, within the SBA-approved 

small business size standards bid 

successfully for licenses in Blocks A 

and B. There were 90 winning bidders 

that qualified as small entities in the 

Block C auctions. A total of 93 small 

and very small business bidders won 

approximately 40 percent of the 1,479 

licenses for Blocks D, E, and F. On 

March 23, 1999, the Commission reauctioned 347 C, D, E, and F Block 

licenses. There were 48 small business 

winning bidders. On January 26, 2001, 

the Commission completed the auction 

of 422 C and F Broadband PCS licenses 

in Auction No. 35. Of the 35 winning 

bidders in this auction, 29 qualified as 

‘‘small’’ or ‘‘very small’’ businesses. 

Subsequent events, concerning Auction 

305, including judicial and agency 

determinations, resulted in a total of 163 

C and F Block licenses being available 

for grant. In addition, we note that, as 

a general matter, the number of winning 

bidders that qualify as small businesses 

at the close of an auction does not 

necessarily represent the number of 

small businesses currently in service. 

Also, the Commission does not 

generally track subsequent business size 

unless, in the context of assignments or 

transfers, unjust enrichment issues are 

implicated. 

23. Narrowband Personal 

Communications Services. The 

Commission held an auction for 

Narrowband PCS licenses that 

commenced on July 25, 1994, and 

closed on July 29, 1994. A second 

auction commenced on October 26, 

1994 and closed on November 8, 1994. 

For purposes of the first two 

Narrowband PCS auctions, ‘‘small 

businesses’’ were entities with average 

gross revenues for the prior three 

calendar years of $40 million or less. 

Through these auctions, the 

Commission awarded a total of 41 

licenses, 11 of which were obtained by 

four small businesses. To ensure 

meaningful participation by small 

business entities in future auctions, the 

Commission adopted a two-tiered small 

business size standard in the 

Narrowband PCS Second Report and 

Order. 65 FR 35875, June 6, 2000. A 

‘‘small business’’ is an entity that, 

together with affiliates and controlling 

interests, has average gross revenues for 

the three preceding years of not more 

than $40 million. A ‘‘very small 

business’’ is an entity that, together with 

affiliates and controlling interests, has 

average gross revenues for the three 

preceding years of not more than $15 

million. The SBA has approved these 

small business size standards. A third 

auction commenced on October 3, 2001 

and closed on October 16, 2001. Here, 

five bidders won 317 (Metropolitan 

Trading Areas and nationwide) licenses. 

Three of these claimed status as a small 

or very small entity and won 311 

licenses.

24. Specialized Mobile Radio. The 

Commission awards ‘‘small entity’’

bidding credits in auctions for 

Specialized Mobile Radio (SMR) 

geographic area licenses in the 800 MHz 

and 900 MHz bands to firms that had 

revenues of no more than $15 million in 

each of the three previous calendar 

years. The Commission awards ‘‘very 

small entity’’ bidding credits to firms 

that had revenues of no more than $3 

million in each of the three previous 

calendar years. The SBA has approved 

these small business size standards for 

the 900 MHz Service. The Commission 

has held auctions for geographic area 

licenses in the 800 MHz and 900 MHz 

bands. The 900 MHz SMR auction began 

on December 5, 1995, and closed on 

April 15, 1996. Sixty bidders claiming 

that they qualified as small businesses 

under the $15 million size standard won 

263 geographic area licenses in the 900 

MHz SMR band. The 800 MHz SMR 

auction for the upper 200 channels 

began on October 28, 1997, and was 

completed on December 8, 1997. Ten 

bidders claiming that they qualified as 

small businesses under the $15 million 

size standard won 38 geographic area 

licenses for the upper 200 channels in 

the 800 MHz SMR band. A second 

auction for the 800 MHz band was held 

on January 10, 2002 and closed on 

January 17, 2002 and included 23 BEA 

licenses. One bidder claiming small 

business status won five licenses. 

25. 39 GHz Service. The Commission 

created a special small business size 

standard for 39 GHz licenses—an entity 

that has average gross revenues of $40 

million or less in the three previous 

calendar years. An additional size 

standard for ‘‘very small business’’ is: 

An entity that, together with affiliates, 

has average gross revenues of not more 

than $15 million for the preceding three 

calendar years. The SBA has approved 

these small business size standards. The 

auction of the 2,173 39 GHz licenses 

began on April 12, 2000 and closed on 

May 8, 2000. The 18 bidders who 

claimed small business status won 849 

licenses. Consequently, the Commission 

estimates that 18 or fewer 39 GHz 

licensees are small entities that may be 

affected by the rules and polices 

proposed herein. 

26. Multipoint Distribution Service, 

Multichannel Multipoint Distribution 

Service, and Instructional Television 

Fixed Service. Multichannel Multipoint 

Distribution Service (MMDS) systems, 

often referred to as ‘‘wireless cable,’’

transmit video programming to 

subscribers using the microwave 

frequencies of the Multipoint 

Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 69577

Distribution Service (MDS) and 

Instructional Television Fixed Service 

(ITFS). In connection with the 1996 

MDS auction, the Commission defined 

‘‘small business’’ as an entity that, 

together with its affiliates, has average 

gross annual revenues that are not more 

than $40 million for the preceding three 

calendar years. The SBA has approved 

of this standard. The MDS auction 

resulted in 67 successful bidders 

obtaining licensing opportunities for 

493 Basic Trading Areas (BTAs). Of the 

67 auction winners, 61 claimed status as 

a small business. At this time, we 

estimate that of the 61 small business 

MDS auction winners, 48 remain small 

business licensees. In addition to the 48 

small businesses that hold BTA 

authorizations, there are approximately 

392 incumbent MDS licensees that have 

gross revenues that are not more than 

$40 million and are thus considered 

small entities. 

27. In addition, the SBA has 

developed a small business size 

standard for Cable and Other Program 

Distribution, which includes all such 

companies generating $12.5 million or 

less in annual receipts. According to 

Census Bureau data for 1997, there were 

a total of 1,311 firms in this category, 

total, that had operated for the entire 

year. Of this total, 1,180 firms had 

annual receipts of under $10 million, 

and an additional 52 firms had receipts 

of $10 million or more but less than $25 

million. Consequently, we estimate that 

the majority of providers in this service 

category are small businesses that may 

be affected by the proposed rules and 

policies. 

28. Finally, while SBA approval for a 

Commission-defined small business size 

standard applicable to ITFS is pending, 

educational institutions are included in 

this analysis as small entities. There are 

currently 2,032 ITFS licensees, and all 

but 100 of these licenses are held by 

educational institutions. Thus, we 

tentatively conclude that at least 1,932 

ITFS licensees are small businesses. 

29. Incumbent 24 GHz Licensees. This 

analysis may affect incumbent licensees 

who were relocated to the 24 GHz band 

from the 18 GHz band, and applicants 

who wish to provide services in the 24 

GHz band. The applicable SBA small 

business size standard is that of 

‘‘Cellular and Other Wireless 

Telecommunications’’ companies. This 

category provides that such a company 

is small if it employs no more than 

1,500 persons. According to Census 

Bureau data for 1997, there were 977 

firms in this category, total, that 

operated for the entire year. Of this 

total, 965 firms had employment of 999 

or fewer employees, and an additional 

12 firms had employment of 1,000 

employees or more. Thus, under this 

size standard, the great majority of firms 

can be considered small. These broader 

census data notwithstanding, we believe 

that there are only two licensees in the 

24 GHz band that were relocated from 

the 18 GHz band, Teligent and TRW, 

Inc. It is our understanding that Teligent 

and its related companies have less than 

1,500 employees, though this may 

change in the future. TRW is not a small 

entity. Thus, only one incumbent 

licensee in the 24 GHz band is a small 

business entity. 

30. Future 24 GHz Licensees. With 

respect to new applicants in the 24 GHz 

band, we have defined ‘‘small business’’

as an entity that, together with 

controlling interests and affiliates, has 

average annual gross revenues for the 

three preceding years not exceeding $15 

million. ‘‘Very small business’’ in the 24 

GHz band is defined as an entity that, 

together with controlling interests and 

affiliates, has average gross revenues not 

exceeding $3 million for the preceding 

three years. The SBA has approved 

these definitions. The Commission will 

not know how many licensees will be 

small or very small businesses until the 

auction, if required, is held.

4. Description of Projected Reporting, 

Recordkeeping and Other Compliance 

Requirements 

31. The Commission in this Notice of 

Proposed Rulemaking makes tentative 

conclusions as to some, but not all of 

the necessary requirements of section 

251(h)(2) for a competitive LEC, MidRivers, to be declared an incumbent 

LEC. Should the Commission decide to 

find, after reviewing the record, that 

Mid-Rivers satisfies the requirements of 

section 251(h)(2) to be declared an 

incumbent LEC, and should the 

Commission make a finding as to the 

appropriate regulatory classification of 

the legacy incumbent LEC Qwest, the 

filing and compliance requirements of 

both Mid-Rivers and Qwest could 

potentially change. This is because 

incumbent LEC status often entails 

additional regulatory obligation and our 

decision on how to treat the legacy 

incumbent LEC could reduce Qwest’s 

regulatory obligation. The Commission 

seeks comment in this Notice of 

Proposed Rulemaking regarding what, if 

any, broadly applicable rules would be 

necessary to properly implement this 

provision of the Act. Without more 

certainty about what rules, if any, the 

Commission will choose to adopt, we 

cannot accurately estimate the cost of 

compliance by small carriers. We 

therefore seek comment on the types of 

burdens carriers could face if the 

proposed recommendations are 

adopted. Entities, especially small 

businesses, are encouraged to quantify, 

if possible, the costs and benefits of 

potential reporting, recordkeeping, and 

other compliance requirements. 

5. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

32. The RFA requires an agency to 

describe any significant, specifically 

small business, 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. 

33. While the Commission’s primary 

concern is to implement the provisions 

of the Act, the Commission also plans 

to evaluate any adverse effect that its 

review of issues in this proceeding will 

have on small business entities. Our 

tentative conclusions that Mid-Rivers 

satisfies two of the three prongs of the 

statutory standard apply irrespective of 

the petitioner’s size. However, some of 

the regulations and obligations that 

pertain to the incumbent LEC status that 

Mid-Rivers seeks are, by statute, limited 

in many circumstances because the Act 

exempts certain small incumbent local 

exchange telephone companies from the 

significant obligations of section 251(c). 

Thus, because Mid-Rivers qualifies for 

the exemption because of its small size, 

if our tentative conclusions are adopted 

as a part of an order granting the relief 

requested by Mid-Rivers, it is most 

likely that Mid-Rivers will not be 

subject to many of the costly regulations 

that generally pertain to incumbent 

LECs. Finally, we also consider 

procedural mechanisms that, if 

warranted, could potentially reduce the 

burdens on small entities that wish to 

seek similar treatment from the 

Commission. While it remains unclear 

what effect the alternative choices we 

face in this proceeding will have on 

small business entities, establishing this 

rulemaking will create a full record 

upon which we can more capably weigh 

these matters. 

69578 Federal Register / Vol. 69, No. 229 / Tuesday, November 30, 2004 / Proposed Rules 

6. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

34. None. 

Ordering Clause 

Accordingly, it is ordered that the 

Notice of Proposed Rulemaking is 

adopted.

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary.

[FR Doc. 04–26385 Filed 11–29–04; 8:45 am] 

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT66 

Endangered and Threatened Wildlife 

and Plants; Proposed Critical Habitat 

Designation for the Buena Vista Lake 

Shrew

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule; notice of 

availability of draft economic analysis 

and reopening of public comment 

period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

availability of a draft economic analysis 

for the proposed designation of critical 

habitat for Buena Vista Lake shrew in 

California under the Endangered 

Species Act of 1973, as amended (Act). 

We are also reopening the public 

comment period for the proposal to 

designate critical habitat for this species 

to allow all interested parties to 

comment on the proposed rule and the 

associated draft economic analysis. 

Comments previously submitted on the 

proposed rule need not be resubmitted 

as they have been incorporated into the 

public record as part of this reopening 

of the comment period, and will be fully 

considered in preparation of the final 

rule.

DATES: We will accept all comments and 

information received on or before 

December 15, 2004. Any comments that 

we receive after the closing date may 

not be considered in the final decision 

on this proposal.

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposed rule 

by any one of several methods: 

(1) You may submit written comments 

and information to the Field Supervisor, 

Sacramento Fish and Wildlife Office, 

U.S. Fish and Wildlife Service, 2800 

Cottage Way, Suite W–2605, 

Sacramento, CA 95825, or by facsimile 

916/414–6710. 

(2) You may hand-deliver written 

comments to our office, at the address 

given above. 

(3) You may send comments by 

electronic mail (e-mail) to: 

BVLS_pCH@fws.gov. Please see the 

‘‘Public Comments Solicited’’ section 

below for file format and other 

information about electronic filing. In 

the event that our Internet connection is 

not functional, please submit your 

comments by the alternate methods 

mentioned above. 

Comments and materials received, as 

well as supporting documentation used 

in preparation of the proposed critical 

habitat rule, will be available for public 

inspection, by appointment, during 

normal business hours at the above 

address. You may obtain copies of the 

draft economic analysis for the 

proposed designation of critical habitat 

for Buena Vista Lake shrew by 

contacting the Sacramento Fish and 

Wildlife Office at the above address. 

The draft economic analysis and the 

proposed rule for critical habitat 

designation are also available on the 

Internet at http://sacramento.fws.gov/.

In the event that our Internet connection 

is not functional, please obtain copies of 

documents directly from the 

Sacramento Fish and Wildlife Office.

FOR FURTHER INFORMATION CONTACT:

Arnold Roessler, Sacramento Fish and 

Wildlife Office, at the address above 

(telephone 916/414–6600; facsimile 

916/414–6710).

SUPPLEMENTARY INFORMATION: 

Public Comment Solicited 

We solicit comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning our draft 

economic analysis and the proposed 

rule to designate critical habitat for the 

Buena Vista Lake shrew. We 

particularly seek comments concerning: 

(1) The reasons why any habitat 

should or should not be determined to 

be critical habitat as provided by section 

4 of the Act, including whether the 

benefits of exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat; 

(2) Specific information on the 

amount and distribution of shrew 

habitat, and what habitat is essential to 

the conservation of this species and 

why; 

(3) Land use designations and current 

or planned activities in the subject area 

and their possible impacts on proposed 

habitat, specifically impacts of the 

designation on the operation and 

maintenance of irrigation canals, and on 

existing and any planned future oil and 

gas activities within or near the 

proposed designation; 

(4) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation of critical habitat; in 

particular, any impacts on small entities 

or families; 

(5) Whether the economic analysis 

identifies all State and local costs 

attributable to the proposed critical 

habitat designation. If not, what costs 

are overlooked; 

(6) Whether the economic analysis 

makes appropriate assumptions 

regarding current practices and likely 

regulatory changes imposed as a result 

of the designation of critical habitat;

(7) Whether the economic analysis 

correctly assesses the effect on regional 

costs associated with land use controls 

that derive from the designation; 

(8) Assumptions reflected in the 

economic analysis regarding land use 

practices and current, planned, or 

reasonably foreseeable activities in the 

subject areas, including comments or 

information relating to the potential 

effects that the designation could have 

on private landowners as a result of 

actual or foreseeable State and local 

government responses due to the 

California Environmental Quality Act; 

(9) Whether the designation will 

result in disproportionate economic 

impacts to specific areas that should be 

evaluated for possible exclusion from 

the final designation; 

(10) Whether the economic analysis 

appropriately identifies all costs that 

could result from the designation; and 

(11) Whether our approach to critical 

habitat designation could be improved 

or modified in any way to provide for 

greater public participation and 

understanding, or to assist us in 

accommodating public concern and 

comments. 

All comments and information 

submitted during the initial comment 

period on the proposed rule need not be 

resubmitted. If you wish to comment, 

you may submit your comments and 

materials concerning the draft economic 

analysis and proposed rule by any one 

of several methods (see ADDRESSES

section). 

Please submit Internet comments to 

BVLS_pCH@fws.gov in an ASCII file 

format and avoid the use of special 

characters and encryption. Please also 

include ‘‘Attn: Buena Vista Lake shrew 

Critical Habitat’’ in your e-mail subject 

header, and your name and return