[Federal Register Volume 69, Number 227 (Friday, November 26, 2004)]
[Proposed Rules]
[Pages 68859-68865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26161]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 4

[ET Docket No. 04-35; FCC 04-188]


Disruptions to Communications

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document expands the record in this proceeding to focus 
specifically on the unique communications needs of airports, including 
wireless and satellite communications. In this regard, we request 
comment on the additional types of airport communications (e.g.,

[[Page 68860]]

wireless, satellite) that should be required to file service disruption 
reports--particularly from a homeland security and defense perspective. 
These types of airport communications may include, for example, 
communications that are provided by ARINC as well as commercial 
communications (e.g., air-to-ground and ground-to-air telephone 
communications) as well as intra-airline commercial links. We also seek 
comment on whether the outage-reporting requirements for special 
facilities should be extended to cover general aviation airports (GA) 
and, if so, what the applicable threshold criteria should be.

DATES: Comments must be filed on or before January 25, 2005, and reply 
comments February 24, 2005.

FOR FURTHER INFORMATION CONTACT: Charles Iseman at (202) 418-2444, 
<a href="/cdn-cgi/l/email-protection#7d1e151c0f11180e53140e18101c133d1b1e1e531a120b"><span class="__cf_email__" data-cfemail="f6959e97849a9385d89f85939b9798b6909595d8919980">[email protected]</span></a>, Office of Engineering and Technology, TTY (202) 
418-2989.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking, portion of the Report and Order 
and Further Notice of Proposed, ET Docket No. 04-35, FCC 04-188, 
adopted August 4, 2004, and released August 19, 2004. The full text of 
this document is available for inspection and copying during normal 
business hours in the FCC Reference Center (Room CY-A257), 445 12th 
Street, SW., Washington, DC 20554. The complete text of this document 
may also be purchased from the Commission's copy contractor, Best Copy 
and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 
20554. The full text may also be downloaded from the Commission's Web 
site: http://hraunfoss.fcc.gov/edocspublic/attachmatch/FCC-04-30A1.doc. 
Alternate formats are available to persons with disabilities by 
contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments on or before 
January 25, 2005, and reply comments on or before February 24, 2005. 
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 FR 24121, May 1, 1998. Comments 
filed through the 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 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 <a href="/cdn-cgi/l/email-protection#f792949184b7919494d9909881"><span class="__cf_email__" data-cfemail="4326202530032520206d242c35">[email protected]</span></a>, 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. Parties who choose to 
file by paper must file an original and four copies of each filing. All 
paper filings must be addressed to the Commission's Secretary, Office 
of the Secretary, Federal Communications Commission. 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. 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.

Summary of Further Notice of Proposed Rulemaking

    1. The Further Notice of Proposed Rulemaking (FNPRM) was initiated 
to expand the record in this proceeding to focus specifically on the 
unique communications needs of airports. In this regard, we request 
comment on the additional types of airport communications (e.g., 
wireless, satellite) that should be subject to service disruption 
reports, particularly from the perspective of homeland security and 
national defense. These communications may include, for example, 
communications that are provided by ARINC as well as commercial 
communications (e.g., air-to-ground and ground-to-air telephone 
communications) as well as intra-airline commercial links. We also seek 
comment on whether the outage-reporting requirements for special 
facilities should be extended to cover general aviation airports and, 
if so, what the applicable threshold criteria should be. Based on the 
comments that the Commission receives in this proceeding and on its 
analysis of the information that is before it, the Commission may make 
such additional modifications to its communications outage-reporting 
requirements for special offices and facilities, with respect to 
airports, as may be necessary or desirable to fulfill, more fully, the 
objectives that are set forth in the Communications Act.
    2. Airports that Qualify as Special Offices and Facilities, 
Pertinent Outage-Reporting Criteria, and Proposed Revisions. Section 
4.5(b) of the Commission's rules (adopted by the Report and Order in 
this proceeding, but not yet in effect) includes as ``special offices 
and facilities'' those airports that are listed as current primary 
(PR), commercial service (CM), and reliever (RL) airports in the FAA's 
National Plan of Integrated Airports Systems (NPIAS) (as issued at 
least one calendar year prior to the outage). Section 4.9 of the 
Commission's rules (also not yet in effect) requires communications 
providers to report outages of at least 30 minutes duration that 
potentially affect special offices and facilities. Satellite 
communications providers and wireless communications providers, 
however, are exempt from this requirement to the extent that it applies 
to airports. This Further Notice of Proposed Rulemaking is initiated to 
expand the record in this proceeding to focus specifically on the 
unique communications needs of airports, particularly from the 
perspective of homeland security and national defense. In this regard, 
we request comment on the additional types of airport communications 
(e.g., wireless, satellite) that should be subject to service 
disruption reports. These communications may include, for example, 
communications that are provided by ARINC as well as commercial 
communications (e.g., air-to-ground and ground-to-air telephone 
communications) as well as intra-airline commercial links. We also seek 
comment on whether the outage-reporting requirements for special 
facilities should be extended to cover general aviation airports (GA) 
and, if so, what the applicable threshold criteria should be.

Initial Regulatory Flexibility Act Analysis

    3. As required by the Regulatory Flexibility Act (``RFA''),\1\ the 
Commission has prepared this Initial

[[Page 68861]]

Regulatory Flexibility Act Analysis (``IRFA'') of the possible 
significant economic impact on small entities by the policies and rules 
proposed in this Further Notice of Proposed Rulemaking (``FNPRM''). 
Written public comments are requested on this IRFA and must be filed by 
the January 25, 2005. The Commission will send a copy of the FNPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration.\2\ In addition, the FNPRM including the IRFA 
(or summaries thereof) will be published in the Federal Register.\3\
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    \1\ 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 
1966 (SBREFA), Public Law 104-121, 110 Stat. 847 (1996).
    \2\ 5 U.S.C. 603(a).
    \3\ Id.
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    A. Need for and Objectives of the Proposed Rules. The Commission 
seeks to expand the record in this proceeding in order to focus 
specifically on the unique communications needs of airports. In this 
regard, the Commission requests comment on the additional types of 
airport communications (e.g., wireless, satellite) that should be 
subject to service disruption reports, particularly from the 
perspective of homeland security and national defense. These 
communications may include, for example, communications that are 
provided by ARINC as well as commercial communications (e.g., air-to-
ground and ground-to-air telephone communications) as well as intra-
airline commercial links. The Commission also seeks comment on whether 
the outage-reporting requirements for special facilities should be 
extended to cover general aviation airports and, if so, what the 
applicable threshold criteria should be. Potentially, all of the 
airports in the United States may need to be used by aircraft for 
emergency landings. The potential loss life or property through 
commercial aircraft crashes can be catastrophic. The need, however, for 
communications among non-commercial (as well as commercial) airports 
and the rest of the United States becomes more apparent in the contexts 
of general aviation and government aviation in which many non-
commercial planes carry, for example, personnel who are essential to 
national defense and homeland security, as well as government officials 
from Federal, State, local, and foreign governments. Moreover, all of 
the airports in the United States are potential launching pads for 
terrorist activities. As a consequence, it is essential that all 
personnel at airports throughout the United States be able to access 
appropriate government and civilian personnel to avert acts of 
terrorism. Finally, commercial communications links are used by 
airports to support navigation, traffic control, maintenance, and 
restoration. Those commercial communications links need to be 
functioning continuously. The requirements for which we seek comment 
would be in addition to those adopted in the Report and Order in this 
proceeding. Those requirements apply to wireline and cable circuit-
switched telecommunications with airports that are listed as current 
primary (PR), commercial service (CM), and reliever (RL) airports in 
the FAA's National Plan of Integrated Airport Systems (NPIAS) (as 
issued at least one calendar year prior to the outage). Outages 
affecting any of these airports for 30 minutes or more must be 
reported.
    B. Legal Basis. The legal basis for the rule changes proposed in 
the FNPRM are contained in sections 1, 4(i), 4(k), 4(o), 218, 219, 230, 
256, 301, 302(a), 303(f), 303(g), 303(j), 303(r), 303(v), 403, 
621(b)(3), and 621(d) of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 154(i), 154(k), 154(o), 218, 219, 230, 256, 301, 302(a), 
303(f), 303(g), 303(j), 303(r), 303(v), 403, 621(b)(3), and 621(d), and 
in Sec.  1704 of the Omnibus Consolidated and Emergency Supplemental 
Appropriations Act of 1998, 44 U.S.C. 1704.
    C. Description and Estimates of the Number of Small Entities to 
Which the Rules Adopted in This Further Notice May Apply. The RFA 
directs agencies to provide a description of and, where feasible, an 
estimate of the number of small entities that will be affected by the 
proposed rules.\4\ The RFA generally defines the term ``small entity'' 
as having the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.''\5\ In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act.\6\ 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).\7\
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    \4\ 5 U.S.C. 603(b) (3), 604(a) (3).
    \5\ Id. at 601(6).
    \6\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such terms which are appropriate to the activities of 
the agency and publishes such definitions(s) in the Federal 
Register.''
    \7\ 15 U.S.C. 632.
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    The Commission further describes and estimates the number of small 
entity licensees and regulatees that may be affected by rules adopted 
pursuant to this Report and 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.\8\ The SBA has developed 
small business size standards for wireline and wireless small 
businesses within the three commercial census categories of Wired 
Telecommunications Carriers,\9\ Paging,\10\ and Cellular and Other 
Wireless Telecommunications.\11\ 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.
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    \8\ FCC, Wireline Competition Bureau, Industry Analysis and 
Technology Division, ``Trends in Telephone Service'' at Table 5.3, 
Page 5-5 (Aug. 2003) (hereinafter ``Trends in Telephone Service''). 
This source uses data that are current as of December 31, 2001.
    \9\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517110.
    \10\ 13 CFR 121.201, NAICS code 517211.
    \11\ 13 CFR 121.201, NAICS code 517212.
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    We have included small incumbent local exchange carriers in this 
present RFA analysis. As noted, 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.'' \12\ 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.\13\ 
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.
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    \12\ 15 U.S.C. 632.
    \13\ Letter from Jere W. Glover, Chief Counsel for Advocacy, 
SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small 
Business Act contains a definition of ``small-business concern,'' 
which the RFA incorporates into its own definition of ``small 
business.'' See 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 
601(3) (RFA). SBA regulations interpret ``small business concern'' 
to include the concept of dominance on a national basis. 13 CFR 
121.102(b).
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    Wired Telecommunications Carriers. The SBA has developed a small 
business size standard for Wired Telecommunications Carriers, which

[[Page 68862]]

consists of all such companies having 1,500 or fewer employees.\14\ 
According to Census Bureau data for 1997, there were 2,225 firms in 
this category, total, that operated for the entire year.\15\ 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.\16\ 
Thus, under this size standard, the majority of firms can be considered 
small.
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    \14\ 13 CFR 121.201 (1997), NAICS code 513310 (changed to 517110 
in October 2002).
    \15\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 5, NAICS code 513310 (issued October 2000).
    \16\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is ``Firms with 1,000 
employees or more.''
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    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.\17\ According to Commission data,\18\ 1,337 carriers 
have reported that they are engaged in the provision of incumbent local 
exchange services. Of these 1,337 carriers, an estimated 1,032 have 
1,500 or fewer employees and 305 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 
action.
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    \17\ 13 CFR 121.201, NAICS code 517110 (changed from 513310 in 
Oct. 2002).
    \18\ ``Trends in Telephone Service'' at Table 5.3.
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    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.\19\ 
According to Commission data,\20\ 609 carriers have reported that they 
are engaged in the provision of either competitive access provider 
services or competitive local exchange carrier services. Of these 609 
carriers, an estimated 458 have 1,500 or fewer employees and 151 have 
more than 1,500 employees. In addition, 16 carriers have reported that 
they are ``Shared-Tenant Service Providers,'' and all 16 are estimated 
to have 1,500 or fewer employees. In addition, 35 carriers have 
reported that they are ``Other Local Service Providers.'' Of the 35, an 
estimated 34 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 action.
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    \19\ 13 CFR 121.201, NAICS code 517110 (changed from 513310 in 
Oct. 2002).
    \20\ ``Trends in Telephone Service'' at Table 5.3.
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    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.\21\ According to Commission data,\22\ 261 carriers have 
reported that they are engaged in the provision of interexchange 
service. Of these, an estimated 223 have 1,500 or fewer employees and 
38 have more than 1,500 employees. Consequently, the Commission 
estimates that the majority of IXCs are small entities that may be 
affected by our action.
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    \21\ 13 CFR 121.201, NAICS code 517110 (changed from 513310 in 
Oct. 2002).
    \22\ ``Trends in Telephone Service'' at Table 5.3.
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    Wireless Service Providers. The SBA has developed a small business 
size standard for wireless small businesses within the two separate 
categories of Paging \23\ and Cellular and Other Wireless 
Telecommunications.\24\ Under both SBA categories, a wireless business 
is small if it has 1,500 or fewer employees. According to the 
Commission's most recent data,\25\ 1,387 companies reported that they 
were engaged in the provision of wireless service. Of these 1,387 
companies, an estimated 945 have 1,500 or fewer employees and 442 have 
more than 1,500 employees.\26\ Consequently, the Commission estimates 
that most wireless service providers are small entities that may be 
affected by the rules and policies adopted.
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    \23\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517211.
    \24\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517212.
    \25\ FCC, Wireline Competition Bureau, Industry Analysis and 
Technology Division, Trends in Telephone Service, Table 5.3, (August 
2002).
    \26\ Id.
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    Broadband Personal Communications Service. The broadband Personal 
Communications Service (PCS) spectrum is divided into six frequency 
blocks designated A through F, and the Commission has held auctions for 
each block. The Commission 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.\27\ 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.'' \28\ These standards defining ``small entity'' in the context 
of broadband PCS auctions have been approved by the SBA.\29\ 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.\30\ On March 23, 
1999, the Commission re-auctioned 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. Based on this 
information, the Commission concludes that the number of small 
broadband PCS licenses would have included the 90 winning C Block 
bidders, the 93 qualifying bidders in the D, E, and F Block auctions, 
the 48 winning bidders in the 1999 re-auction, and the 29 winning 
bidders in the 2001 re-auction, for a total of 260 small entity 
broadband PCS providers, as defined by the SBA small business size 
standards and the Commission's auction rules. Consequently, the 
Commission estimates that 260 broadband PCS providers would have been 
small

[[Page 68863]]

entities that could be affected by the rules and policies adopted 
herein. The results of Auction No. 35, however, were set aside and the 
licenses previously awarded to NextWave, which had qualified as a small 
entity, were reinstated. 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.
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    \27\ See Amendment of Parts 20 and 24 of the Commission's 
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile 
Radio Service Spectrum Cap, WT Docket No. 96-59, Report and Order, 
61 FR 33859 (July 1, 1996); see also 47 CFR 24.720(b).
    \28\ See Amendment of Parts 20 and 24 of the Commission's 
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile 
Radio Service Spectrum Cap, WT Docket No. 96-59, Report and Order, 
61 FR 33859 (July 1, 1996).
    \29\ See, e.g., Implementation of Section 309(j) of the 
Communications Act--Competitive Bidding, PP Docket No. 93-253, Fifth 
Report and Order, 59 FR 37566 (July 22, 1994).
    \30\ FCC News, Broadband PCS, D, E and F Block Auction Closes, 
No. 71744 (released January 14, 1997). See also Amendment of the 
Commission's Rules Regarding Installment Payment Financing for 
Personal Communications Services (PCS) Licenses, WT Docket No. 97-
82, Second Report and Order, 62 FR 55348 (Oct. 24, 1997).
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    Narrowband Personal Communications Services. To date, two auctions 
of narrowband personal communications services (PCS) licenses have been 
conducted. For purposes of the two auctions that have already been 
held, ``small businesses'' were entities with average gross revenues 
for the prior three calendar years of $40 million or less. Through 
these auctions, the Commission has awarded a total of 41 licenses, out 
of which 11 were obtained by small businesses. To ensure meaningful 
participation of small business entities in future auctions, the 
Commission has adopted a two-tiered small business size standard in the 
Narrowband PCS Second Report and Order.\31\ 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.\32\ In the future, the 
Commission will auction 459 licenses to serve Metropolitan Trading 
Areas (MTAs) and 408 response channel licenses. There is also one 
megahertz of narrowband PCS spectrum that has been held in reserve and 
that the Commission has not yet decided to release for licensing. The 
Commission cannot predict accurately the number of licenses that will 
be awarded to small entities in future auctions. However, four of the 
16 winning bidders in the two previous narrowband PCS auctions were 
small businesses, as that term was defined under the Commission's 
Rules. The Commission assumes, for purposes of this analysis that a 
large portion of the remaining narrowband PCS licenses will be awarded 
to small entities. The Commission also assumes that at least some small 
businesses will acquire narrowband PCS licenses by means of the 
Commission's partitioning and disaggregation rules.
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    \31\ In the Matter of Amendment of the Commission's Rules to 
Establish New Personal Communications Services, Narrowband PCS, ET 
Docket No. 92-100, PP Docket No. 93-253, Second Report and Order and 
Second Further Notice of Proposed Rulemaking, 65 FR 35875 (June 6, 
2000).
    \32\ See Letter to Amy Zoslov, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, FCC, from 
Aida Alvarez, Administrator, SBA (Dec. 2, 1998).
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    800 MHz and 900 MHz Specialized Mobile Radio Licenses. The 
Commission awards ``small entity'' and ``very small entity'' bidding 
credits in auctions for SpecializedMobile 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, 
or that had revenues of no more than $3 million in each of the previous 
calendar years, respectively.\33\ These bidding credits apply to SMR 
providers in the 800 MHz and 900 MHz bands that either hold geographic 
area licenses or have obtained extended implementation authorizations. 
The Commission does not know how many firms provide 800 MHz or 900 MHz 
geographic area SMR service pursuant to extended implementation 
authorizations, nor how many of these providers have annual revenues of 
no more than $15 million. One firm has over $15 million in revenues. 
The Commission assumes, for purposes here, that all of the remaining 
existing extended implementation authorizations are held by small 
entities, as that term is defined by the SBA. The Commission has held 
auctions for geographic area licenses in the 800 MHz and 900 MHz SMR 
bands. There were 60 winning bidders that qualified as small or very 
small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won 
in the 900 MHz auction, bidders qualifying as small or very small 
entities won 263 licenses. In the 800 MHz auction, 38 of the 524 
licenses won were won by small and very small entities. 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.
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    \33\ 47 CFR 90.814(b)(1).
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    Paging. The SBA has developed a small business size standard for 
Paging, which consists of all such firms having 1,500 or fewer 
employees.\34\ According to Census Bureau data for 1997, in this 
category there was a total of 1,320 firms that operated for the entire 
year.\35\ Of this total, 1,303 firms had employment of 999 or fewer 
employees, and an additional seventeen firms had employment of 1,000 
employees or more.\36\ Thus, under this size standard, the majority of 
firms can be considered small.
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    \34\ 13 CFR 121.201, NAICS code 517211 (changed from 513321 in 
October 2002).
    \35\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 5, NAICS code 513321 (issued October 2000).
    \36\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is ``Firms with 1,000 
employees or more.''
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    Rural Radiotelephone Service. The Commission has not adopted a size 
standard for small businesses specific to the Rural Radiotelephone 
Service.\37\ A significant subset of the Rural Radiotelephone Service 
is the Basic Exchange Telephone Radio System (BETRS).\38\ The 
Commission uses the SBA's small business size standard applicable to 
``Cellular and Other Wireless Telecommunications,'' i.e., an entity 
employing no more than 1,500 persons.\39\ There are approximately 1,000 
licensees in the Rural Radiotelephone Service, and the Commission 
estimates that there are 1,000 or fewer small entity licensees in the 
Rural Radiotelephone Service that may be affected by the rules and 
policies adopted in the Report and Order.
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    \37\ The service is defined in 22.99 of the Commission's rules, 
47 CFR 22.99.
    \38\ BETRS is defined in 22.757 and 22.759 of the Commission's 
rules, 47 CFR 22.757 and 22.759.
    \39\ 13 CFR 121.201, NAICS code 517212.
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    Cable and Other Program Distribution.\40\ This category includes 
cable systems operators, closed circuit television services, direct 
broadcast satellite services, multipoint distribution systems, 
satellite master antenna systems, and subscription television services. 
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.\41\ 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, the Commission

[[Page 68864]]

estimates that the majority of providers in this service category are 
small businesses that may be affected by the rules and policies adopted 
herein.
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    \40\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 513220 (changed to 517510 in October 2002).
    \41\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization)'', Table 4, NAICS code 513220 (issued October 2000).
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    Cable System Operators (Rate Regulation Standard). The Commission 
has developed a size standard for small cable system operators for the 
purposes of rate regulation. Under the Commission's rules, a ``small 
cable company'' is one serving fewer than 400,000 subscribers 
nationwide.\42\ Based on our most recent information, we estimate that 
there were 1439 cable operators that qualified as small cable companies 
at the end of 1995.\43\ 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. The Commission's rules define a ``small system,'' for 
the purposes of rate regulation, as a cable system with 15,000 or fewer 
subscribers.\44\ The Commission does not request nor does the 
Commission collect information concerning cable systems serving 15,000 
or fewer subscribers and thus is unable to estimate, at this time, the 
number of small cable systems nationwide.
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    \42\ 47 CFR 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. Implementation of 
Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and 
Order and Eleventh Order on Reconsideration, MM Docket No. 92-266 
and 93-215, 10 FCC Rcd 7393 (1995), 60 FR 10534 (February 27, 1995).
    \43\ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 
1996 (based on figures for Dec. 30, 1995).
    \44\ 47 CFR 76.901(c).
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    Cable System Operators (Telecom Act Standard). The Communications 
Act of 1934, as amended, also contains a definition of a small cable 
system operator, which is ``a cable operator that, directly or through 
an affiliate, serves in the aggregate fewer than 1% 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.'' 
\45\ The Commission has determined that there are 61,700,000 
subscribers in the United States. Therefore, a cable operator serving 
fewer than 617,000 subscribers shall be deemed a small operator, if its 
annual revenues, when combined with the total annual revenues of all of 
its affiliates, do not exceed $250 million in the aggregate.\46\ Based 
on available data, we find that the number of cable operators serving 
617,000 subscribers or less totals approximately 1450.\47\ Although it 
seems certain that some of these cable system operators are affiliated 
with entities whose gross annual revenues exceed $250,000,000, we are 
unable at this time to estimate with greater precision the number of 
cable system operators that would qualify as small cable operators as 
defined in the Communications Act of 1934.
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    \45\ 47 U.S.C. 543(m)(2).
    \46\ 47 CFR 76.1403(b).
    \47\ Cable TV Investor, supra note 43.
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    Satellite Telecommunications Providers. The appropriate size 
standards under SBA rules are for the two broad categories of Satellite 
Telecommunications and Other Telecommunications. Under both categories, 
such a business is small if it has $12.5 or less in average annual 
receipts.\48\ For the first category of Satellite Telecommunications, 
Census Bureau data for 1997 show that there were a total of 324 firms 
that operated for the entire year.\49\ Of this total, 273 firms had 
annual receipts of under $10 million, and an additional twenty-four 
firms had receipts of $10 million to $24,999,999. Thus, the majority of 
Satellite Telecommunications firms can be considered small.
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    \48\ 13 CFR 121.201, NAICS codes 517410 and 517910 (changed from 
513340 and 513390 in Oct. 2002).
    \49\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 4, NAICS code 513340 (issued Oct. 2000).
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    Signaling System 7 (SS7) Providers. The Commission has not 
developed a definition of small entities applicable to Signaling System 
7 providers. We shall apply the SBA's small business size standard for 
Other Telecommunications, which identifies as small all such companies 
having $12.5 million or less in annual receipts.\50\ We believe that 
there are no more than half-a-dozen SS7 providers and doubt that any of 
them have annual receipts less then $12.5 million. In the IRFA to the 
original Notice of Proposed Rulemaking in this proceeding, we had 
assumed that there may be several SS7 providers that are small 
businesses which could be affected by the proposed rules and had 
requested comment on how many SS7 providers exist and on how many of 
these are small businesses that may be affected by our proposed rules. 
No comments provided this information. Therefore, we conclude that none 
of these providers were small businesses.Nonetheless, the Commission 
shall assume that there may now be several SS7 providers that are small 
businesses that could be affected by the proposed rules. The Commission 
requests comment on how many SS7 providers exist and on how many of 
these are small businesses that may be affected by our proposed rules.
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    \50\ 13 CFR 121.201, NAICS code 517910.
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    D. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements. The rule revisions considered in this FNPRM 
could expand the number of airports included as ``special offices and 
facilities'' within the Commission's requirements that communications 
providers report those outages of at least 30 minutes duration that 
potentially affect special offices and facilities. The FNPRM also seeks 
comment, if the rules are expanded to cover general aviation airports, 
on what the pertinent threshold reporting criteria should be. Satellite 
communications and wireless communications are currently exempt from 
the requirement to report outages potentially affecting those airports 
that are special offices and facilities. The FNPRM therefore seeks 
comment on what additional types of airport communications (e.g., 
wireless, satellite) should be subject to service disruption reports, 
particularly from the perspective of homeland security and national 
defense. The Commission anticipates that more than 200 outage reports 
will be filed annually, but estimates that the total number of reports 
from all reporting sources combined will be substantially less than 
1,000 annually. The Commission notes that, occasionally, the proposed 
outage reporting requirements could require the use of professional 
skills, including legal and engineering expertise. Without more data, 
it cannot accurately estimate the cost of compliance by small 
telecommunications providers. But irrespective of any of the reporting 
requirements that are proposed here, the Commission expects that 
telecommunications providers will track, investigate, and correct all 
of their service disruptions as an ordinary part of conducting their 
business operations--and will do so for all service disruptions that 
potentially affect special offices and facilities. As a consequence, 
the Commission believes that in the usual case, the only burden 
associated with the reporting requirements contained in this FNPRM will 
be the time required to notify the Commission and complete the initial 
and final reports. The Commission anticipates that electronic filing, 
as adopted in the Report and Order in this proceeding, should minimize 
the amount of time and effort that will be required to comply with the 
rules that are proposed in this proceeding. In this IFRA, the 
Commission therefore seeks comment on the types of burdens

[[Page 68865]]

telecommunications providers will face in complying with the proposed 
requirements. Entities, especially small businesses and small entities, 
more generally, are encouraged to quantify the costs and benefits of 
the proposed reporting requirements.
    E. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. Since the inception 
of the outage-reporting requirements in 1992, the average number of 
outages reported each year has remained relatively constant at about 
200. Since 1992, the substitutability of telecommunications through 
different media has increased substantially, and our Nation 
increasingly relies on these substitutes for Homeland Defense and 
National Security. The Commission believes that the proposed 
telecommunications outage reporting requirements are minimally 
necessary to assure that it receives adequate information to perform 
its statutory responsibilities with respect to the reliability of 
telecommunications and their infrastructures. Finally, the Commission 
believes that the proposed requirement that outage reports be filed 
electronically would significantly reduce the burdens and costs 
currently associated with manual filing processes.
    F. Federal Rules That Might Duplicate, Overlap, or Conflict With 
the Proposed Rules. None.

Ordering Clauses

    4. Pursuant to the authority contained in sections 1, 4(i)-(j), 
4(k), 4(o), 218, 219, 230, 256, 301, 302(a), 303(f), 303(g), 303(j), 
303(r), 403, 621(b)(3), and 621(d) of the Communications Act of 1934, 
as amended, 47 U.S.C. 151, 154(i)-(j), 154(k), 154(o), 218, 219, 230, 
256, 301, 302(a), 303(f), 303(g), 303(j), 303(r), 403, 621(b)(3), and 
621(d), and in Section 1704 of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act of 1998, 44 U.S.C. 3504, the Notice of 
Proposed Rulemaking is adopted.
    5. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Further Notice 
of Proposed Rulemaking, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Part 4

    Airports, Communications common carrier, Disruption reports, 
Reporting and recordkeeping requirements, Special Offices and 
Facilities, Telecommunication.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 04-26161 Filed 11-24-04; 8:45 am]
BILLING CODE 6712-01-P


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