Federal Register / Vol. 74, No. 150 / Thursday, August 6, 2009 / Rules and Regulations 39219 

■ b. In paragraph (b)(2), after ‘‘11.304,’’, 

add ‘‘11.603,’’. 

§ 11.104 [Removed and Reserved] 

■ 9. Remove and reserve § 11.104. 

■ 10. Revise § 11.601 to read as follows: 

§ 11.601 Applicability. 

This subpart provides for 

endorsement as radio officers for 

employment on vessels, and for the 

issue of STCW endorsements for those 

qualified to serve as radio operators on 

vessels subject to the provisions on the 

Global Maritime Distress and Safety 

System (GMDSS) of Chapter IV of 

SOLAS. SOLAS is available from the 

International Maritime Organization 

(IMO), 4 Albert Embankment, London 

SE1 7SR, England, telephone: +44 (0)20 

7735 7611, http://www.imo.org. 

Dated: July 30, 2009. 

Stefan G. Venckus, 

Chief, Office of Regulations and 

Administrative Law, United States Coast 

Guard. 

[FR Doc. E9–18747 Filed 8–5–09; 8:45 am] 

BILLING CODE 4910–15–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[WC Docket No. 07–267; FCC 09–56] 

Forbearance Procedures 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

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 § 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 JudithB.Herman@fcc.gov. 

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 


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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 

forbearance@fcc.gov 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 


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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 oneweek 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 


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39222 Federal Register / Vol. 74, No. 150 / Thursday, August 6, 2009 / Rules and Regulations 

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), ‘‘SharedTenant 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 


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Federal Register / Vol. 74, No. 150 / Thursday, August 6, 2009 / Rules and Regulations 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. Fiftyseven 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 thirtytwo 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 


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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 reauctioned 347 C, D, E, and F Block 

licenses. There were 48 small business 

winning bidders. On January 26, 2001, 

the Commission completed the auction 

of 422 C and F Broadband PCS licenses 

in Auction No. 35. Of the 35 winning 

bidders in this auction, 29 qualified as 

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

Subsequent events, concerning Auction 

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 


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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-tomultipoint 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 reauction, 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 reauction, for a total of 133 small entity 

LMDS providers. 


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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 forbearance@fcc.gov 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 


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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 § 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 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 1 as 

follows: 

PART 1—PRACTICE AND 

PROCEDURE 

■ 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. 

■ 2. Section 1.49 is amended by: 

■ A. Removing the word ‘‘and’’ from 

paragraph (f)(1)(ii); 

■ B. Removing the period at the end of 

paragraph (f)(1)(iii) and adding ‘‘; and’’ 

in its place; and 

■ C. Adding paragraph (f)(1)(iv) to read 

as follows: 

§ 1.49 Specifications as to pleadings and 

documents. 

* * * * * 

(f)(1) * * * 

(iv) Petition for forbearance 

proceedings. 

* * * * * 

■ 3. Add undesignated center heading 

below § 1.52 to read as follows: 

Forbearance Proceedings 

■ 4. Add new §§ 1.54 through 1.59 to 

read as follows: 

§ 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 § 1.49. 

(1) Petitions for forbearance shall be emailed to forbearance@fcc.gov 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 § 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. 


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39228 Federal Register / Vol. 74, No. 150 / Thursday, August 6, 2009 / Rules and Regulations 

§ 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. 

§ 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. 

§ 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. 

§ 1.58 Forbearance petition quiet period 

prohibition. 

The prohibition in § 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. 

§ 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 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–1533; MB Docket No. 09–70; RM– 

11534] 

Television Broadcasting Services; 

Amarillo, TX 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commission grants a 

petition for rulemaking filed by 

Amarillo Junior College District, the 

licensee of noncommercial educational 

station KACV–DT, DTV channel *8, 

Amarillo, Texas requesting the 

substitution of DTV channel *9 for DTV 

channel *8 at Amarillo. 

DATES: This rule is effective August 6, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Adrienne Y. Denysyk, Media Bureau, 

(202) 418–1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Report 

and Order, MB Docket No. 09–70, 

adopted July 13, 2009, and released July 

14, 2009. The full text of this document 

is available for public inspection and 

copying during normal business hours 

in the FCC’s Reference Information 

Center at Portals II, CY–A257, 445 12th 

Street, SW., Washington, DC 20554. 

This document will also be available via 

ECFS (http://www.fcc.gov/cgb/ecfs/). 

(Documents will be available 

electronically in ASCII, Word 97, and/ 

or Adobe Acrobat.) This document may 

be purchased from the Commission’s 

duplicating contractor, Best Copy and 

Printing, Inc., 445 12th Street, SW., 

Room CY–B402, Washington, DC 20554, 

telephone 1–800–478–3160 or via e-mail 

http://www.BCPIWEB.com. To request 

this document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

information collection burden ‘‘for 

small business concerns with fewer than 

25 employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. 

The Commission will send 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). 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR Part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336. 

§ 73.622 [Amended] 

■ 2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Texas, is amended by adding 

DTV channel *9 and removing DTV 

channel *8 at Amarillo. 

Federal Communications Commission. 

Clay C. Pendarvis, 

Associate Chief, Video Division, Media 

Bureau. 

[FR Doc. E9–18262 Filed 8–5–09; 8:45 am] 

BILLING CODE 6712–01–P 


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