[Federal Register Volume 74, Number 150 (Thursday, August 6, 2009)]
[Rules and Regulations]
[Pages 39219-39228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18863]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[WC Docket No. 07-267; FCC 09-56]


Forbearance Procedures

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this Report and Order, the Commission adopts procedural 
rules to govern petitions for forbearance filed pursuant to section 10 
of the Communications Act of 1934, as amended. The Commission has found 
that procedural rules are needed to specify parties' rights and 
obligations with regard to such petitions. The Commission's actions are 
designed to ensure that its procedures for handling forbearance 
petitions are front-loaded, actively managed, transparent, and fair.

DATES: Effective September 8, 2009 except Sec.  1.54 which contains 
information collection requirements that have not been approved by OMB. 
The FCC will publish a document in the Federal Register announcing the 
effective date for those requirements.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Interested parties may contact 
Jonathan Reel, Wireline Competition Bureau, (202) 418-1580.
    For additional information concerning the Paperwork Reduction Act 
information collection requirements contained in this document, contact 
Judith B. Herman at (202) 418-0214, or via the Internet at <a href="/cdn-cgi/l/email-protection#6f251a0b061b07422d41270a1d020e012f090c0c41080019"><span class="__cf_email__" data-cfemail="6f251a0b061b07422d41270a1d020e012f090c0c41080019">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order (Order) in WC Docket No. 07-267, FCC 09-56, adopted June 26, 
2009, and released June 29, 2009. The complete text of this document 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., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 
telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, 
or via e-mail at http://www.bcpiweb.com. It is also available on the 
Commission's Web site at http://www.fcc.gov.

Synopsis of Report and Order

    1. In November 2007, the Commission released a Notice of Proposed 
Rulemaking (the Forbearance Procedures NPRM) (73 FR 6888-01, February 
6, 2008) initiating a rulemaking proceeding to establish procedural 
rules regarding the Commission's consideration of petitions for 
forbearance filed pursuant to section 10 of the Communications Act of 
1934, as amended, (the Act). In this NPRM, the Commission sought 
comment on measures that had been proposed in a petition filed by Covad 
Communications Group, NuVox Communications, XO Communications, LLC, 
Cavalier Telephone Corp., and McLeodUSA Telecommunications Services, 
Inc. The Commission sought comment on, among other questions, whether 
all petitions for forbearance should be complete as filed; whether a 
petitioner for forbearance should have to demonstrate separately how it 
has satisfied each component of the forbearance standard; and whether 
the Commission must issue a written order on all forbearance 
proceedings. The Commission also asked whether the forbearance process 
was being used as Congress intended, how individual forbearance 
proceedings relate to industry-wide proceedings, and what burdens, 
including administrative and financial costs, forbearance proceedings 
place on stakeholders in the industry.
    2. In this Order, the Commission adopts procedural rules regarding 
forbearance petitions that reflect the Commission's experience in 
addressing more than 120 forbearance petitions that have been filed 
under section 10 as well as the record in response to the Forbearance 
Procedures NPRM. In particular, the Commission adopts rules requiring 
that forbearance petitions be ``complete as filed.'' This is consistent 
with the principle that whenever a petitioner files a petition for 
forbearance, the petitioner bears the burden of proof with respect to 
establishing that the statutory criteria for granting forbearance are 
met. The Commission also adopts procedures to ensure that forbearance 
petitions are addressed in a timely, equitable, and predictable manner. 
Further, the Commission provides that a forbearance petition may no 
longer be withdrawn or significantly narrowed by the petitioner after 
the tenth business day after the due date for reply comments without 
Commission authorization. These actions and the other actions in the 
Order seek to implement procedures for handling forbearance petitions 
in a manner that is front-loaded, actively managed, transparent, and 
fair.
    3. Petitions Must be Complete as Filed. In the Forbearance 
Procedures NPRM, the Commission sought comment on whether forbearance 
petitions should be required to be ``complete as filed.'' Here, the 
Commission concludes that section 10 petitions for forbearance must be 
complete as described below. Henceforth, the Commission requires 
forbearance petitions to state explicitly the scope of the relief 
requested; to address each prong of the statute as it applies to the 
rules or provisions from which the petitioner seeks relief; to identify 
any other proceedings pending before the Commission where the 
petitioner speaks to the relevant issues (or declare not to have spoken 
to the issue, if that is the case); and to comply with simple format 
requirements intended to facilitate our and the public's review of the 
petition.
    4. The requirement does not prevent a petitioner from seeking 
additional data from third parties. At the time of filing, forbearance 
petitioners must identify the nature of the third-party information 
they need, the parties they believe possess it, and how the information 
relates to the petition. The requirement does not limit a petitioner's 
ability to respond to arguments and data in oppositions and comments 
with counter-arguments and responsive data. A petitioner may submit 
substantively new material, including new

[[Page 39220]]

information, data, studies, or arguments, at the request of the 
Commission, as well as in response to oppositions. The Commission may 
be expected to require updated data from a petitioner prior to reaching 
some determinations, and the filing requirement in no way prevents the 
Commission from seeking information or clarification from any source, 
or basing its forbearance decision on all timely-filed evidence.
    5. Scope. A petitioner for forbearance must identify clearly in the 
petition the scope of the requested relief. In particular, the petition 
must state the following with specificity: (1) Each statutory 
provision, rule, or requirement from which forbearance is sought; (2) 
each carrier, or group of carriers, for which forbearance is sought; 
(3) each service for which forbearance is sought; (4) the geographic 
location, zone, or area in which forbearance is sought; and (5) any 
other factor, condition, or limitation relevant to determining the 
scope of the requested relief. The Commission's ability to make the 
determinations within the statutory time frame required is 
significantly compromised when a petition does not clearly state the 
relief sought.
    6. The Prima Facie Case. A petition for forbearance must include in 
the petition the facts, information, data, and arguments on which the 
petitioner intends to rely to make the prima facie case for 
forbearance. Specifically, the prima facie case must show in detail how 
each of the statutory criteria are met with regard to each statutory 
provision or rule from which forbearance is sought. A petition for 
forbearance must take into account relevant Commission precedent. If 
the petitioner intends to rely on data or information in the possession 
of third parties, the petition must identify the data or information, 
and the parties that possess it, and explain the relationship of the 
information to the prima facie case. When the petition is filed at the 
Commission, the petitioner must provide a copy of it to each party 
identified as possessing relevant data or information, and the relevant 
Bureau will respond to requests for third-party discovery on a case-by-
case basis. Other than third-party information, a petition may not rely 
on data or information that is not made available, without charge, to 
the Commission staff and interested parties that agree to comply with 
any protective orders the Commission issues in the course of the 
proceeding.
    7. Relevant Proceedings. A petition for forbearance must identify 
any proceeding pending before the Commission in which the petitioner 
has requested, or otherwise taken a position regarding, relief that is 
identical to, or comparable to, the relief sought in the forbearance 
petition. Alternatively, the petition must state that the petitioner 
has not, in a pending proceeding, requested or otherwise taken a 
position on the relief sought, if that is the case.
    8. Format and Filing Requirements. Petitions for forbearance must 
comply with the Commission's general filing requirements in 47 CFR 
1.49. In addition, all petitions for forbearance must be e-mailed to 
<a href="/cdn-cgi/l/email-protection#80e6eff2e2e5e1f2e1eee3e5c0e6e3e3aee7eff6"><span class="__cf_email__" data-cfemail="dcbab3aebeb9bdaebdb2bfb99cbabfbff2bbb3aa">[email protected]</span></a> at the time of filing. All filings including all 
data related to a forbearance petition must be provided in a searchable 
format. The steps a filer must take to ensure its submission is 
searchable will vary by context. At a minimum, a party that submits 
large spreadsheets of data should submit electronic copies of those 
data formatted so as to allow Commission staff and other interested 
parties a meaningful opportunity to analyze those data. A forbearance 
petition must include (1) a plain, concise, written summary statement 
of the relief sought; (2) a full statement of the petitioner's prima 
facie case for relief; and (3) appendices that list (a) the scope of 
relief sought, (b) all relevant data, including market analysis, and 
(c) any supporting statements or affidavits.
    9. Burden of Proof. The Commission concludes that the petitioner 
bears the burden of proof--that is, of providing convincing analysis 
and evidence to support its petition for forbearance. This has 
historically been the case in American jurisprudence. The burden of 
proof is on the proponent in both formal rulemaking and formal 
adjudication, but the Commission considers arguments whether a 
forbearance proceeding more closely resembles rulemaking or 
adjudication to be largely beside the point. Whatever passing 
similarity to other procedures petitions for forbearance may have, the 
essential nature of a petition for forbearance is that it is a petition 
for relief from regulation. The petitioner asks the Commission to 
forbear from enforcing against it one or more rules or statutory 
provisions, which the Commission will do if it determines that the 
petition meets the statutory criteria. The Commission requires 
petitioners to produce sufficient evidence and analysis to warrant the 
grant of a forbearance petition, and in this order states explicitly 
that the burden of proof is on forbearance petitioners at the outset 
and throughout the proceeding.
    10. The Commission further clarifies that the ``burden of proof'' 
for the purpose of forbearance proceedings encompasses both the burden 
of production and the burden of persuasion. The burden of production in 
this context requires that the petitioner state a complete prima facie 
case in the petition, the precise requirements of which are discussed 
in the ``complete as filed'' section. The burden of persuasion requires 
that, in addition to stating a prima facie case, the petitioner's 
evidence and analysis must withstand the evidence and analysis 
propounded by those opposing the petition for forbearance. If the 
petitioner does not support the case for forbearance with sufficient 
evidence and persuasive arguments, the Commission cannot make an 
informed and reasoned determination that the statutory criteria are 
met. In determining whether a petitioner has met its burden of proof, 
the totality of the record will be taken into consideration. For 
example, the Commission will consider evidence filed in the record by 
third parties that is favorable to the petitioner's position as part of 
the petitioner's showing.
    11. Transparency. After the rules adopted in this Order take 
effect, the Commission will post on its web site a timeline intended to 
identify the stages of review of forbearance petitions. The web page 
will also contain docket numbers, contact information, and a link to 
the Commission's Electronic Comment Filing System. Posting this 
information will promote a better understanding of how the Commission 
gives full and timely attention to the issues presented in a 
forbearance petition, and will establish a framework that describes how 
review of a forbearance petition should normally progress.
    12. A general timeline necessarily oversimplifies the process, and 
the circumstances of individual cases will differ. Internal deadlines 
create no enforceable rights for private parties, and such targets 
should be understood rather as goals for internal Commission action. 
The timeline should therefore be viewed as a flexible tool, and the 
order and timing may vary. Generally, the later stages and times are 
intended to indicate procedural goals for the most complex petitions. 
The statutory obligation to determine each of section 10's three prongs 
takes precedence over the informal timeline, and the Commission's 
failure to adhere to a benchmark is not indicative of how it will 
resolve the issues raised in a proceeding.
    13. Filing and Initial Review. Filing a petition starts the clock 
on the statutory time limit. The Bureau will review the petition upon 
receipt. A petition that on its face is incomplete or defective will be 
summarily denied. As a practical

[[Page 39221]]

matter, the initial review upon filing should determine whether the 
petition appears to be complete, coherent, and sufficiently specific to 
serve as a basis for comment. The legal standard for summary denial is 
whether the petition, viewed in the light most favorable to the 
petitioner, fails to meet the requirements for forbearance specified in 
the statute.
    14. Summary denial on receipt gives petitioners an early 
opportunity to cure and refile, and respects interested parties' 
resources. Failure by the Bureau to summarily deny a petition upon 
receipt does not establish or even imply that the petition is 
``complete as filed.'' It merely establishes that the petitioner has 
observed the filing procedures adopted today and that no fatal 
insufficiency is evident upon cursory review. Threshold questions about 
a petition's completeness may be sufficiently complex to require 
comment and consideration.
    15. Public Notice. If a petition appears to be complete and 
coherent on its face, the Bureau will give public notice and post the 
petition on the forbearance page of the Commission's Web site. The 
notice will announce the pleading cycle, which will typically allow 30 
days for comments and 15 days for replies, with longer cycles for the 
more complex petitions. The Bureau may issue a protective order, as 
needed. Motions for summary denial may be filed not later than the due 
date for comments, to which the petitioner may file an opposition not 
later than the due date for replies. In the interest of completing the 
record in one cycle, and consistent with our formal complaint rules, 
replies to oppositions to motions for summary denial will not be 
permitted. The Commission retains the flexibility to ensure that the 
time for comment on any individual forbearance petition is both 
adequate and not needlessly long.
    16. Motions for Summary Denial. Commenters may use motions for 
summary denial to focus their attention on completeness and clarity, 
and should avoid conflating these threshold issues with their 
substantive arguments. A contention, for example, that a petition does 
not address an issue at a sufficiently granular level to permit 
meaningful analysis of whether or not the statutory criteria are met 
might form the basis of a motion for summary denial. Because the 
Commission expects the arguments and scope of the relief sought to vary 
widely from petition to petition, the adequate granularity of data may 
likewise vary, and for that reason the Commission will judge on a case-
by-case basis whether or not a petition for forbearance requires 
supporting data at, for example, the wire center level. Failure by the 
Bureau to deny a petition summarily does not establish that the 
petition is ``complete as filed.'' Although the Bureau may grant a 
motion for summary denial, it may instead use the record generated by 
the motion to better understand threshold issues early in the process. 
The Commission may address a motion for denial at any time, up to and 
including the statutory time limit for Commission action.
    17. Intermediate Period. An intermediate period consisting roughly 
of months 3 through 10 follows the closing of the comment cycle. During 
this period, the Bureau will consider whether to grant or deny routine 
or less complex forbearance petitions that clearly meet, or clearly 
fail to meet, the statutory forbearance criteria. The Commission may be 
able to resolve such petitions within six months of their filing. For 
more complex petitions, the Bureau may actively develop the record 
where appropriate during this intermediate period, and will review 
comments, analyze data, and discuss the merits of the petition with the 
Commissioners and their staff.
    18. Circulation and Quiet Period. The final period will generally 
consist roughly of months 11 and 12 in normal cases, or months 14 and 
15 if the Commission requires an extension of time. In this Order, the 
Commission adopts an internal deadline of seven days prior to the 
statutory deadline for voting any forbearance order, whether on 
circulation or at an agenda meeting. An early vote gives a majority 
that votes against the circulated draft an opportunity to draft a 
replacement order prior to the statutory deadline. An early vote also 
will generally ensure that the Commission will be able to make the 
necessary determinations and release an order before the statutory 
deadline.
    19. Each step described below is calculated against the statutory 
deadline, and not against the deadline for the vote, which the 
Commission determines, as set forth above, should occur seven days 
prior to the statutory deadline. The Bureau will circulate a draft 
order addressing a complex forbearance petition no later than 28 days 
prior to the statutory deadline, which is to say, 21 days prior to the 
voting deadline, unless all Commissioners agree to a shorter period. 
The Commission establishes a two-week quiet period before the statutory 
deadline (one week before the voting deadline) for forbearance 
petitions, which is analogous to the one-week quiet period before an 
agenda meeting. A public notice, posted on the Web site, will announce 
the beginning of the quiet period, which may occur earlier in the 
proceeding in cases where the Commission does not require the full 
statutory period to render a decision.
    20. Withdrawal of Forbearance Petitions. The Commission concludes 
that it, rather than solely the petitioner, should decide whether or 
not a forbearance proceeding concludes with any action other than the 
issuance of a decision by the Commission. Henceforth, for the reasons 
set forth below, a petitioner may not withdraw a forbearance petition, 
nor may a petitioner narrow a petition so significantly as to amount to 
a withdrawal of a large portion of the forbearance relief originally 
requested by the petitioner after the date that its reply comments are 
due plus 10 business days, unless the Commission authorizes the 
withdrawal. A petitioner is free to withdraw or narrow a petition prior 
to such date. The Commission has a significant stake in the matter if 
it is to maintain control over its own agenda and apportion its 
resources in a way that serves the public interest. For similar 
reasons, Federal Rule of Civil Procedure 41 requires a complainant to 
get court permission before withdrawing a complaint if the withdrawal 
comes after the filing of an answer or motion for summary judgment.
    21. Permitting parties to withdraw petitions in the late stages of 
a proceeding that are otherwise headed for denial could also distort 
the Commission's jurisprudence. Over time, Commission precedent could 
tilt toward orders that contain analysis and reasoning in support of 
forbearance petitioners, and away from orders that make a case against 
them. If petitioners are allowed to select the orders that the 
Commission adopts, they could inadvertently or deliberately push 
precedent in a direction favorable to themselves, and thus exert undue 
influence on regulatory policy.
    22. Application to Pending Petitions. The new complete-as-filed 
rules take effect after this Order has been published in the Federal 
Register and subject to approval by the Office of Management and 
Budget. Other new requirements will apply to pending petitions, 
including rules that require a petitioner to seek permission from the 
relevant Bureau before filing new arguments or data (except in response 
to new arguments or data filed by commenters, to which the petitioner 
may respond by right); rules that limit when forbearance petitions may 
be withdrawn or narrowed as of right; rules that limit ex parte 
contacts in the final

[[Page 39222]]

weeks before a decision is due; and any other rule that ``would [not] 
impair rights a party possessed when he acted, increase a party's 
liability for past conduct, or impose new duties with respect to 
transactions already completed.'' In contrast to the new filing 
requirements, these rules do not apply to a petitioner's past actions 
and thus are not directly retroactive. Thus, they will take effect 30 
days after publication of this Order in the Federal Register.

Final Regulatory Flexibility Analysis, WC Docket No. 07-267 
(Forbearance Petitions Procedural Rules)

    23. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA) an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rulemaking (NPRM) to this 
proceeding. See 73 FR 6888-01, February 6, 2008. The Commission sought 
written public comment on the proposals in the NPRM, including comment 
on the IRFA. The Commission received no comment on the IRFA. This Final 
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for and Objectives of the Report and Order

    24. This Report and Order (Order) implements procedural rules 
governing petitions for forbearance filed pursuant to sections 10 of 
the Communications Act of 1934, as amended, (the Act). Pursuant to 
section 10, the Commission shall forbear from applying any statutory 
provision or regulation if it determines that: (1) Enforcement of the 
regulation is not necessary to ensure that the telecommunications 
carrier's charges, practices, classifications, or regulations are just, 
reasonable, and not unjustly or unreasonably discriminatory; (2) 
enforcement of the regulation is not necessary to protect consumers; 
and (3) forbearance from applying such provision or regulation is 
consistent with the public interest. In determining whether forbearance 
is consistent with the public interest, the Commission also must 
consider ``whether forbearance from enforcing the provision or 
regulation will promote competitive market conditions.'' The procedural 
rules adopted in this Order require that forbearance petitions must be 
``complete as filed.'' The Order also clarifies that whenever a 
petitioner files a petition for forbearance, the petitioner bears the 
burden of proof with respect to establishing that the statutory 
criteria for granting forbearance are met. The rules adopted in this 
Order are needed to ensure that forbearance petitions are addressed in 
a manner that is actively managed, transparent, and fair.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    25. No commenter responded directly to the IRFA. One commenter, 
SBA, specifically addresses the needs of small carriers. The Commission 
agrees with SBA that a complete-as-filed requirement will better enable 
all interested parties to present their views before the Commission; 
that establishment of a framework brings clarity to the forbearance 
process; and that, when the statutory language fails to indicate 
whether the petitioner must carry the burden of proof, the petitioner 
has the burden of proof because it is the petitioner that is requesting 
regulatory change.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    26. 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 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 SBA.
    27. The rules and guidance adopted by this Order will concern 
procedures relating to petitions for forbearance filed pursuant to 
section 10 of the Act. The Commission has determined that the group of 
small entities directly affected by the rules adopted herein consists 
of wireline and wireless telecommunications carriers. Therefore, in the 
Order, the Commission considers the impact of the rules on carriers. A 
description of such small entities, as well as an estimate of the 
number of such small entities, is provided below.
    28. Small Businesses. Nationwide, there are a total of 
approximately 22.4 million small businesses according to SBA data.
    29. Small Organizations. Nationwide, there are approximately 1.6 
million small organizations.
    30. Small Governmental Jurisdictions. The term ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, towns, 
townships, villages, school districts, or special districts, with a 
population of less than fifty thousand.'' Census Bureau data for 2002 
indicate that there were 87,525 local governmental jurisdictions in the 
United States. The Commission estimates that, of this total, 84,377 
entities were ``small governmental jurisdictions.'' Thus, the 
Commission estimates that most governmental jurisdictions are small.
1. Wireline Carriers and Service Providers
    31. The Commission has included small incumbent local exchange 
carriers (LECs) 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 LECs are not dominant in their field of 
operation because any such dominance is not ``national'' in scope. The 
Commission has therefore included small incumbent LECs in this RFA 
analysis, although the Commission emphasizes that this RFA action has 
no effect on Commission analyses and determinations in other, non-RFA 
contexts.
    32. Incumbent LECs. Neither the Commission nor the SBA has 
developed a small business size standard specifically for incumbent 
LECs. 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, 1,303 carriers have reported that they are engaged in 
the provision of incumbent local exchange services. Of these 1,303 
carriers, an estimated 1,020 have 1,500 or fewer employees and 283 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.
    33. Competitive LECs, 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, 859 carriers have reported that they are engaged in the provision 
of either competitive access provider services or

[[Page 39223]]

competitive LEC services. Of these 859 carriers, an estimated 741 have 
1,500 or fewer employees and 118 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, 44 carriers have reported that they are ``Other 
Local Service Providers.'' Of the 44, an estimated 43 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.
    34. 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, 330 carriers have 
reported that they are engaged in the provision of interexchange 
service. Of these, an estimated 309 have 1,500 or fewer employees and 
21 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.
2. Wireless Telecommunications Service Providers
    35. Below, for those services subject to auctions, the Commission 
notes 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.
    36. 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 2002 show that there were 807 firms in 
this category that operated for the entire year. Of this total, 804 
firms had employment of 999 or fewer employees, and three firms had 
employment of 1,000 employees or more. Thus, under this category and 
associated small business size standard, the majority of firms can be 
considered small. For the census category of Cellular and Other 
Wireless Telecommunications, Census Bureau data for 2002 show that 
there were 1,397 firms in this category that operated for the entire 
year. Of this total, 1,378 firms had employment of 999 or fewer 
employees, and 19 firms had employment of 1,000 employees or more. 
Thus, under this second category and size standard, the majority of 
firms can, again, be considered small.
    37. Cellular Licensees. The SBA has developed a small business size 
standard for wireless firms within the broad economic census category 
``Cellular and Other Wireless Telecommunications.'' Under this SBA 
category, a wireless business is small if it has 1,500 or fewer 
employees. For the census category of Cellular and Other Wireless 
Telecommunications, Census Bureau data for 2002 show that there were 
1,397 firms in this category that operated for the entire year. Of this 
total, 1,378 firms had employment of 999 or fewer employees, and 19 
firms had employment of 1,000 employees or more. Thus, under this 
category and size standard, the majority of firms can be considered 
small. Also, according to Commission data, 437 carriers reported that 
they were engaged in the provision of cellular service, Personal 
Communications Service (PCS), or Specialized Mobile Radio (SMR) 
Telephony services, which are placed together in the data. The 
Commission has estimated that 260 of these are small under the SBA 
small business size standard.
    38. Paging. The SBA has developed a small business size standard 
for the broad economic census category of ``Paging.'' Under this 
category, the SBA deems a wireless business to be small if it has 1,500 
or fewer employees. Census Bureau data for 2002 show that there were 
807 firms in this category that operated for the entire year. Of this 
total, 804 firms had employment of 999 or fewer employees, and three 
firms had employment of 1,000 employees or more. In addition, according 
to Commission data, 365 carriers have reported that they are engaged in 
the provision of ``Paging and Messaging Service.'' Of this total, the 
Commission estimates that 360 have 1,500 or fewer employees, and five 
have more than 1,500 employees. Thus, in this category the majority of 
firms can be considered small.
    39. The Commission also notes that, in the Paging Second Report and 
Order, it adopted a size standard for ``small businesses'' for purposes 
of determining their eligibility for special provisions such as bidding 
credits and installment payments. In this context, a small business is 
an entity that, together with its affiliates and controlling 
principals, has average gross revenues not exceeding $15 million for 
the preceding three years. The SBA has approved this definition. An 
auction of Metropolitan Economic Area (MEA) licenses commenced on 
February 24, 2000, and closed on March 2, 2000. Of the 2,499 licenses 
auctioned, 985 were sold. Fifty-seven companies claiming small business 
status won 440 licenses. An auction of MEA and Economic Area (EA) 
licenses commenced on October 30, 2001, and closed on December 5, 2001. 
Of the 15,514 licenses auctioned, 5,323 were sold. One hundred thirty-
two companies claiming small business status purchased 3,724 licenses. 
A third auction, consisting of 8,874 licenses in each of 175 EAs and 
1,328 licenses in all but three of the 51 MEAs commenced on May 13, 
2003, and closed on May 28, 2003. Seventy-seven bidders claiming small 
or very small business status won 2,093 licenses. The Commission also 
notes that, currently, there are approximately 74,000 Common Carrier 
Paging licenses.
    40. Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses. The Commission established small business size standards for the 
wireless communications services (WCS) auction. A ``small business'' is 
an entity with average gross revenues of $40 million or less for each 
of the three preceding years, and a ``very small business'' is an 
entity with average gross revenues of $15 million or less for each of 
the three preceding years. The SBA has approved these small business 
size standards. The Commission auctioned geographic area licenses in 
the WCS service. In the auction, there were seven winning bidders that 
qualified as ``very small business'' entities, and one that qualified 
as a ``small business'' entity.
    41. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services (PCS), and specialized mobile radio 
(SMR) telephony carriers. As noted earlier, the SBA has developed a 
small business size standard for ``Cellular and Other Wireless 
Telecommunications'' services. Under that SBA small business size 
standard, a business is small if it has 1,500 or fewer employees. 
According to Commission data, 432 carriers reported that they were 
engaged in the provision of wireless telephony. The Commission has 
estimated that 221 of these are small

[[Page 39224]]

under the SBA small business size standard.
    42. 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. 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 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. Subsequent events, 
concerning Auction 35, including judicial and agency determinations, 
resulted in a total of 163 C and F Block licenses being available for 
grant.
    43. 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. 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.
    44. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service 
has both Phase I and Phase II licenses. Phase I licensing was conducted 
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized 
to operate in the 220 MHz band. The Commission has not developed a 
small business size standard for small entities specifically applicable 
to such incumbent 220 MHz Phase I licensees. To estimate the number of 
such licensees that are small businesses, the Commission applies the 
small business size standard under the SBA rules applicable to 
``Cellular and Other Wireless Telecommunications'' companies. This 
category provides that a small business is a wireless company employing 
no more than 1,500 persons. 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 
majority of firms can, again, be considered small. Assuming this 
general ratio continues in the context of Phase I 220 MHz licensees, 
the Commission estimates that nearly all such licensees are small 
businesses under the SBA's small business size standard. In addition, 
limited preliminary census data for 2002 indicate that the total number 
of cellular and other wireless telecommunications carriers increased 
approximately 321 percent from 1997 to 2002.
    45. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service 
has both Phase I and Phase II licenses. The Phase II 220 MHz service is 
a new service and is subject to spectrum auctions. In the 220 MHz Third 
Report and Order, the Commission adopted a small business size standard 
for ``small'' and ``very small'' businesses for purposes of determining 
their eligibility for special provisions such as bidding credits and 
installment payments. This small business size standard indicates that 
a ``small business'' is an entity that, together with its affiliates 
and controlling principals, has average gross revenues not exceeding 
$15 million for the preceding three years. A ``very small business'' is 
an entity that, together with its affiliates and controlling 
principals, has average gross revenues that do not exceed $3 million 
for the preceding three years. The SBA has approved these small 
business size standards. Auctions of Phase II licenses commenced on 
September 15, 1998, and closed on October 22, 1998. In the first 
auction, 908 licenses were auctioned in three different-sized 
geographic areas: three nationwide licenses, 30 Regional Economic Area 
Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908 
licenses auctioned, 693 were sold. Thirty-nine small businesses won 
licenses in the first 220 MHz auction. The second auction included 225 
licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies 
claiming small business status won 158 licenses.
    46. 800 MHz and 900 MHz Specialized Mobile Radio Licenses. The 
Commission awards ``small entity'' and ``very 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, 
or that had revenues of no more than $3 million in each of the previous 
calendar years, respectively. 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

[[Page 39225]]

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.
    47. 700 MHz Guard Band Licensees. In the 700 MHz Guard Band Order, 
the Commission adopted a small business size standard for ``small 
businesses'' and ``very small businesses'' for purposes of determining 
their eligibility for special provisions such as bidding credits and 
installment payments. A ``small business'' as an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues not exceeding $15 million for the preceding three years. 
Additionally, a ``very small business'' is an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues that are not more than $3 million for the preceding three 
years. An auction of 52 Major Economic Area (MEA) licenses commenced on 
September 6, 2000, and closed on September 21, 2000. Of the 104 
licenses auctioned, 96 licenses were sold to nine bidders. Five of 
these bidders were small businesses that won a total of 26 licenses. A 
second auction of 700 MHz Guard Band licenses commenced on February 13, 
2001 and closed on February 21, 2001. All eight of the licenses 
auctioned were sold to three bidders. One of these bidders was a small 
business that won a total of two licenses.
    48. 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 
policies adopted herein.
    49. Wireless Cable Systems. Wireless cable systems use 2 GHz band 
frequencies of the Broadband Radio Service (``BRS''), formerly 
Multipoint Distribution Service (``MDS''), and the Educational 
Broadband Service (``EBS''), formerly Instructional Television Fixed 
Service (``ITFS''), to transmit video programming and provide broadband 
services to residential subscribers. These services were originally 
designed for the delivery of multichannel video programming, similar to 
that of traditional cable systems, but over the past several years 
licensees have focused their operations instead on providing two-way 
high-speed Internet access services. The Commission estimates that the 
number of wireless cable subscribers is approximately 100,000, as of 
March 2005. Local Multipoint Distribution Service (``LMDS'') is a fixed 
broadband point-to-multipoint microwave service that provides for two-
way video telecommunications. As described below, the SBA small 
business size standard for the broad census category of Cable and Other 
Program Distribution, which consists of such entities generating $13.5 
million or less in annual receipts, appears applicable to MDS, ITFS and 
LMDS. Other standards also apply, as described.
    50. The Commission has defined small MDS (now BRS) and LMDS 
entities in the context of Commission license auctions. In the 1996 MDS 
auction, the Commission defined a small business as an entity that had 
annual average gross revenues of less than $40 million in the previous 
three calendar years. This definition of a small entity in the context 
of MDS auctions has been approved by the SBA. In the MDS auction, 67 
bidders won 493 licenses. Of the 67 auction winners, 61 claimed status 
as a small business. At this time, the Commission estimates 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. MDS licensees and wireless cable 
operators that did not receive their licenses as a result of the MDS 
auction fall under the SBA small business size standard for Cable and 
Other Program Distribution. Information available to us indicates that 
there are approximately 850 of these licensees and operators that do 
not generate revenue in excess of $13.5 million annually. Therefore, 
the Commission estimates that there are approximately 850 small entity 
MDS (or BRS) providers, as defined by the SBA and the Commission's 
auction rules.
    51. Educational institutions are included in this analysis as small 
entities; however, the Commission has not created a specific small 
business size standard for ITFS (now EBS). The Commission estimates 
that there are currently 2,032 ITFS (or EBS) licensees, and all but 100 
of the licenses are held by educational institutions. Thus, the 
Commission estimates that at least 1,932 ITFS licensees are small 
entities.
    52. In the 1998 and 1999 LMDS auctions, the Commission defined a 
small business as an entity that has annual average gross revenues of 
less than $40 million in the previous three calendar years. Moreover, 
the Commission added an additional classification for a ``very small 
business,'' which was defined as an entity that had annual average 
gross revenues of less than $15 million in the previous three calendar 
years. These definitions of ``small business'' and ``very small 
business'' in the context of the LMDS auctions have been approved by 
the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of 
the 104 auction winners, 93 claimed status as small or very small 
businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based 
on this information, the Commission believes that the number of small 
LMDS licenses will include the 93 winning bidders in the first auction 
and the 40 winning bidders in the re-auction, for a total of 133 small 
entity LMDS providers as defined by the SBA and the Commission's 
auction rules.
    53. Local Multipoint Distribution Service. Local Multipoint 
Distribution Service (LMDS) is a fixed broadband point-to-multipoint 
microwave service that provides for two-way video telecommunications. 
The auction of the 1,030 LMDS licenses began on February 18, 1998 and 
closed on March 25, 1998. The Commission established a small business 
size standard for LMDS licensees as an entity that has average gross 
revenues of less than $40 million in the three previous calendar years. 
An additional small business size standard for ``very small business'' 
was added as an entity that, together with its 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 in the context of LMDS auctions. There were 93 winning 
bidders that qualified as small entities in the LMDS auctions. A total 
of 93 small and very small business bidders won approximately 277 A 
Block licenses and 387 B Block licenses. On March 27, 1999, the 
Commission re-auctioned 161 licenses; there were 40 winning bidders. 
Based on this information, the Commission concludes that the number of 
small LMDS licenses consists of the 93 winning bidders in the first 
auction and the 40 winning bidders in the re-auction, for a total of 
133 small entity LMDS providers.

[[Page 39226]]

    54. 218-219 MHz Service. The first auction of 218-219 MHz spectrum 
resulted in 170 entities winning licenses for 594 Metropolitan 
Statistical Area (MSA) licenses. Of the 594 licenses, 557 were won by 
entities qualifying as a small business. For that auction, the small 
business size standard was an entity that, together with its 
affiliates, has no more than a $6 million net worth and, after federal 
income taxes (excluding any carry over losses), has no more than $2 
million in annual profits each year for the previous two years. In the 
218-219 MHz Report and Order and Memorandum Opinion and Order, the 
Commission established a small business size standard for a ``small 
business'' as an entity that, together with its affiliates and persons 
or entities that hold interests in such an entity and their affiliates, 
has average annual gross revenues not to exceed $15 million for the 
preceding three years. A ``very small business'' is defined as an 
entity that, together with its affiliates and persons or entities that 
holds interests in such an entity and its affiliates, has average 
annual gross revenues not to exceed $3 million for the preceding three 
years. The Commission cannot estimate, however, the number of licenses 
that will be won by entities qualifying as small or very small 
businesses under our rules in future auctions of 218-219 MHz spectrum.
    55. 24 GHz--Incumbent 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, the Commission believes 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.
    56. 24 GHz--Future Licensees. With respect to new applicants in the 
24 GHz band, the small business size standard for ``small business'' is 
an entity that, together with controlling interests and affiliates, has 
average annual gross revenues for the three preceding years not in 
excess of $15 million. ``Very small business'' in the 24 GHz band is 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 small business size standards. These 
size standards will apply to the future auction, if held.

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

    57. The rules adopted in this Order require that petitions for 
forbearance must be complete as filed as set forth in new section 1.54 
``Petitions for forbearance must be complete as filed.'' Section 1.54 
requires that petitions for forbearance must identify the requested 
relief, including each provision, rule, or requirement from which 
forbearance is sought; each carrier, or group of carriers, for which 
forbearance is sought; each service for which forbearance is sought; 
each geographic location, zone, or area for which forbearance is 
sought; and any other factor, condition, or limitation relevant to 
determining the scope of the requested relief. Section 1.54 also 
requires that petitions for forbearance must contain facts and 
arguments which, if true and persuasive, are sufficient to meet each of 
the statutory criteria for forbearance and must specify how each of the 
statutory criteria is met with regard to each provision or rule from 
which forbearance is sought. If the petitioner intends to rely on data 
or information in the possession of third parties, the petition must 
identify: the nature of the data or information; the parties believed 
to have or control the data or information; and the relationship of the 
data or information to facts and arguments presented in the petition. A 
petition for forbearance must identify any other petition, rulemaking, 
or waiver proceeding pending before the Commission in which the 
petitioner has requested, or otherwise taken a position regarding, 
relief that is identical to, or comparable to, the relief sought in the 
forbearance petition. Alternatively, the petition must declare that the 
petitioner has not, in a pending proceeding, requested or otherwise 
taken a position on the relief sought.
    58. In addition, petitions for forbearance must comply with the 
ministerial filing requirements in section 1.49. Petitions for 
forbearance must be e-mailed to a temporary repository at 
<a href="/cdn-cgi/l/email-protection#2f49405d4d4a4e5d4e414c4a6f494c4c01484059"><span class="__cf_email__" data-cfemail="80e6eff2e2e5e1f2e1eee3e5c0e6e3e3aee7eff6">[email protected]</span></a> at the time for filing. All filings related to a 
forbearance petition, including all data, must be provided in a 
searchable format. Petitions for forbearance must include: (1) A plain, 
concise, written summary statement of the relief sought; (2) a full 
statement of the petitioner's prima facie case for relief; (3) 
appendices that list: (A) the scope of relief sought as required in 
section 1.53(b); (B) all supporting data upon which the petition 
intends to rely, including a market analysis; and (C) any supporting 
statements or affidavits. To be searchable, a spreadsheet containing a 
significant amount of data must be capable of being manipulated to 
allow meaningful analysis.

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

    59. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    60. Although the Order imposes compliance or reporting 
requirements, nothing in the record suggests that small carriers are 
disadvantaged by the new procedural requirements. In fact, small 
entities are disadvantaged by the lack of procedural rules governing 
consideration of forbearance petitions, because they have had to expend 
significant resources to respond to the scattershot arguments that have 
been made by much larger entities that have sought and often received 
forbearance in recent years. The SBA filed comments in support of the 
new information requirement that petitions for forbearance must be 
complete as filed.

F. Report to Congress

    61. The Commission will send a copy of the Order, including this 
FRFA, in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act. A copy 
of the Order and FRFA (or

[[Page 39227]]

summaries thereof) will also be published in the Federal Register.

Final Paperwork Reduction Act of 1995 Analysis

    62. The Report and Order contains new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. It will be submitted to the Office of 
Management and Budget (OMB) for review under Section 3507(d) of the 
PRA. The OMB, the general public, and other Federal agencies are 
invited to comment on the new and modified information collection 
requirements contained in this proceeding. In addition, the Commission 
notes that, pursuant to the Small Business Paperwork Relief Act of 
2005, Public Law 107-198, see 44 U.S.C. 3506(c)(4) (SBPRA), the 
Commission has considered how it might ``further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.'' The Commission found that the new and modified 
requirements must apply fully to small entities (as well as to others) 
to protect consumers and further other goals, as described in the 
Report and Order.

Congressional Review Act

    63. The Commission will include a copy of this Report and Order in 
a report to be sent to Congress and the Government Accountability 
Office pursuant to the Congressional Review Act. See 5 U.S.C. 
801(a)(1)(A).

Ordering Clauses

    64. Accordingly, it is ordered, pursuant to sections 1, 4(i), 4(j), 
5(c), 10, 201, and 303(r) of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 154(j), 155(c), 160, 201, and 303(r), 
that the Report and Order in WC Docket No. 07-267 is adopted, and that 
part 1 of the Commission's rules, 47 CFR part 1, is amended as set 
forth in Appendix B in the Report and Order.
    65. It is further ordered that the rules and the requirements of 
this Report and Order shall become effective September 8, 2009 except 
Sec.  1.54 which contains information collection requirements that have 
not been approved by OMB. The FCC will publish a document in the 
Federal Register announcing the effective date for those requirements.
    66. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Communications common 
carriers.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 1 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 is revised to read as follows:

    Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(j), 160, 
201, 225, and 303.

0
2. Section 1.49 is amended by:
0
A. Removing the word ``and'' from paragraph (f)(1)(ii);
0
B. Removing the period at the end of paragraph (f)(1)(iii) and adding 
``; and'' in its place; and
0
C. Adding paragraph (f)(1)(iv) to read as follows:


Sec.  1.49  Specifications as to pleadings and documents.

* * * * *
    (f)(1) * * *
    (iv) Petition for forbearance proceedings.
* * * * *
0
3. Add undesignated center heading below Sec.  1.52 to read as follows:

 Forbearance Proceedings


0
4. Add new Sec. Sec.  1.54 through 1.59 to read as follows:


Sec.  1.54  Petitions for forbearance must be complete as filed.

    (a) Description of relief sought. Petitions for forbearance must 
identify the requested relief, including:
    (1) Each statutory provision, rule, or requirement from which 
forbearance is sought.
    (2) Each carrier, or group of carriers, for which forbearance is 
sought.
    (3) Each service for which forbearance is sought.
    (4) Each geographic location, zone, or area for which forbearance 
is sought.
    (5) Any other factor, condition, or limitation relevant to 
determining the scope of the requested relief.
    (b) Prima facie case. Petitions for forbearance must contain facts 
and arguments which, if true and persuasive, are sufficient to meet 
each of the statutory criteria for forbearance.
    (1) A petition for forbearance must specify how each of the 
statutory criteria is met with regard to each statutory provision or 
rule, or requirement from which forbearance is sought.
    (2) If the petitioner intends to rely on data or information in the 
possession of third parties, the petition must identify:
    (i) The nature of the data or information.
    (ii) The parties believed to have or control the data or 
information.
    (iii) The relationship of the data or information to facts and 
arguments presented in the petition.
    (3) The petitioner shall, at the time of filing, provide a copy of 
the petition to each third party identified as possessing data or 
information on which the petitioner intends to rely.
    (c) Identification of related matters. A petition for forbearance 
must identify any proceeding pending before the Commission in which the 
petitioner has requested, or otherwise taken a position regarding, 
relief that is identical to, or comparable to, the relief sought in the 
forbearance petition. Alternatively, the petition must declare that the 
petitioner has not, in a pending proceeding, requested or otherwise 
taken a position on the relief sought.
    (d) Filing requirements. Petitions for forbearance shall comply 
with the filing requirements in Sec.  1.49.
    (1) Petitions for forbearance shall be e-mailed to 
<a href="/cdn-cgi/l/email-protection#593f362b3b3c382b38373a3c193f3a3a773e362f"><span class="__cf_email__" data-cfemail="aec8c1dccccbcfdccfc0cdcbeec8cdcd80c9c1d8">[email protected]</span></a> at the time for filing.
    (2) All filings related to a forbearance petition, including all 
data, shall be provided in a searchable format. To be searchable, a 
spreadsheet containing a significant amount of data must be capable of 
being manipulated to allow meaningful analysis.
    (e) Contents. Petitions for forbearance shall include:
    (1) A plain, concise, written summary statement of the relief 
sought.
    (2) A full statement of the petitioner's prima facie case for 
relief.
    (3) Appendices that list:
    (i) The scope of relief sought as required in Sec.  1.54(a);
    (ii) All supporting data upon which the petition intends to rely, 
including a market analysis; and
    (iii) Any supporting statements or affidavits.
    (f) Supplemental information. The Commission will consider further 
facts and arguments entered into the record by a petitioner only:
    (1) In response to facts and arguments introduced by commenters or 
opponents.
    (2) By permission of the Commission.

[[Page 39228]]

Sec.  1.55  Public notice of petitions for forbearance.

    (a) Filing a petition for forbearance initiates the statutory time 
limit for consideration of the petition.
    (b) The Commission will issue a public notice when it receives a 
properly filed petition for forbearance. The notice will include:
    (1) A statement of the nature of the petition for forbearance.
    (2) The scope of the forbearance sought and a description of the 
subjects and issues involved.
    (3) The docket number assigned to the proceeding.
    (4) A statement of the time for filing oppositions or comments and 
replies thereto.


Sec.  1.56  Motions for summary denial of petitions for forbearance.

    (a) Opponents of a petition for forbearance may submit a motion for 
summary denial if it can be shown that the petition for forbearance, 
viewed in the light most favorable to the petitioner, cannot meet the 
statutory criteria for forbearance.
    (b) A motion for summary denial may not be filed later than the due 
date for comments and oppositions announced in the public notice.
    (c) Oppositions to motions for summary denial may not be filed 
later than the due date for reply comments announced in the public 
notice.
    (d) No reply may be filed to an opposition to a motion for summary 
denial.


Sec.  1.57  Circulation and voting of petitions for forbearance.

    (a) If a petition for forbearance includes novel questions of fact, 
law or policy which cannot be resolved under outstanding precedents and 
decisions, the Chairman will circulate a draft order no later than 28 
days prior to the statutory deadline, unless all Commissioners agree to 
a shorter period.
    (b) The Commission will vote on any circulated order resolving a 
forbearance petition not later than seven days before the last day that 
action must be taken to prevent the petition from being deemed granted 
by operation of law.


Sec.  1.58  Forbearance petition quiet period prohibition.

    The prohibition in Sec.  1.1203(a) on contacts with decisionmakers 
concerning matters listed in the Sunshine Agenda shall also apply to a 
petition for forbearance for a period of 14 days prior to the statutory 
deadline under 47 U.S.C. 160(c) or as announced by the Commission.


Sec.  1.59  Withdrawal or narrowing of petitions for forbearance.

    (a) A petitioner may withdraw or narrow a petition for forbearance 
without approval of the Commission by filing a notice of full or 
partial withdrawal at any time prior to the end of the tenth business 
day after the due date for reply comments announced in the public 
notice.
    (b) Except as provided in paragraph (a) of this section, a petition 
for forbearance may be withdrawn, or narrowed so significantly as to 
amount to a withdrawal of a large portion of the forbearance relief 
originally requested by the petitioner, only with approval of the 
Commission.

[FR Doc. E9-18863 Filed 8-5-09; 8:45 am]
BILLING CODE 6712-01-P


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