Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Rules and Regulations 375

to the U.S. Coast Guard. We stated that

technical details for this procedure (e.g.,

where the MMSI database will reside,

and how to ensure database access for

all parties) would be developed upon

mutual agreement between the

participants, the Commission, and the

U.S. Coast Guard. We have received

letters from seven parties expressing

interest in issuing domestic MMSIs and

supporting our effort to privatize the

procedures for issuing domestic MMSIs.

We believe that multiple entities will

allow increased options for vessel

operators to choose an MMSI and that

competition between the entities will

help insure reasonable fees.

4. In order to expedite the issuing of

domestic MMSIs by private entities, we

are amending § 0.331 to delegate

authority to the Chief, Wireless

Telecommunications Bureau to enter

into written agreements on a

nondiscriminatory basis with qualified

entities who desire to issue domestic

MMSIs. The form and general terms of

these agreements will be announced at

a later date by Public Notice, as well as

the names and addresses of entities with

whom we have entered into written

agreements. This list of entities will be

updated and announced by Public

Notice as necessary. This delegation of

authority will reduce unnecessary

administrative burdens and processing

delays for both the maritime community

and the Commission and allow us to

expedite the issuing of domestic MMSIs.

5. Our decision to delegate authority

to the Chief, Wireless

Telecommunications Bureau is

procedural in nature and therefore is not

subject to the notice and comment and

effective date requirements of the

Administrative Procedures Act. See 5

U.S.C. 553(b)(A), (d); Kessler v. FCC,

326 F.2d 673 (D.C. Cir. 1963).

Ordering Clauses

6. The authority contained in sections

4(i) and 303(r) of the Communications

Act of 1934, as amended, 47 U.S.C.

154(i) and 303(r), part 0 of the

Commission’s rules IS AMENDED as set

forth in the rule changes below,

effective upon the adoption date of this

Order.

List of Subjects in 47 CFR Part 0

Administrative practice and

procedure.

Federal Communications Commisson.

Magalie Roman Salas,

Secretary.

Accordingly, Title 47 of the Code of

Federal Regulations, Part 0, is amended

as follows:

PART 0—COMMISSION

ORGANIZATION

1. The authority citation for part 0

continues to read as follows:

Authority: Secs. 5, 48 Stat. 1068, as

amended; 47 U.S.C. 155.

2. Section 0.131 paragraph (n) is

revised to read as follows:

§ 0.131 Functions of the Bureau.

* * * * *

(n) Administers the Commission’s

commercial radio operator (part 13 of

this chapter) and amateur radio

programs (part 97 of this chapter) and

the program for construction, marking

and lighting of antenna structures (part

17 of this chapter) and the issuing

maritime mobile service identities

(MMSIs).

* * * * *

[FR Doc. 00–176 Filed 1–4–00; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 76

[CS Docket No. 96–46; FCC 99–341]

Implementation of Section 302 of the

Telecommunications Act of 1996:

Open Video Systems

AGENCY: Federal Communications

Commission.

ACTION: Final rule; order on remand.

SUMMARY: This document amends

various Commission rules in connection

with the open video system proceeding

as a result of rulings in the United States

Court of Appeals Fifth Circuit case, City

of Dallas, Texas v. FCC. The Fifth

Circuit considered consolidated appeals

of the Commission’s open video system

rules, affirming in part, reversing in

part, and remanding in part, those rules

to meet the needs of consumers and

competitive entities.

DATES: Effective January 5, 2000.

FOR FURTHER INFORMATION CONTACT:

Steve Broeckaert at (202) 418–7200 or

via internet at sbroecka@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Order on

Remand, CS Docket No. 96–46, FCC 99–

341, adopted November 9, 1999 and

released November 19, 1999. The

Commission adopted proposed rules on

Open Video Systems in Notice of

Proposed Rule Making, 61 FR 10496

(1996). The complete text of this Order

on Remand is available for inspection

and copying during normal business

hours in the FCC Reference Center

(Room CY–A257) at its headquarters,

445 12th Street, SW Washington, D.C.

20554, or may be purchased from the

Commission’s copy contractor,

International Transcription Service,

Inc., (202) 857–3800, 1231 20th Street,

NW, Washington, D.C. 20036, or may be

reviewed via internet at http://

www.fcc.gov/csb/.

Synopsis of Order on Remand

I. Introduction and Background

1. In this Order on Remand, the

Commission amends its rules in

accordance with the Fifth Circuit’s

decision in City of Dallas, Texas v. FCC

which reviewed consolidated appeals of

the Commission’s open video system

rules. The Telecommunications Act of

1996 (‘‘1996 Act’’) added section 653 to

the Communications Act of 1934,

establishing open video systems as a

framework for entry into the video

programming marketplace. The

Commission adopted a series of orders

prescribing rules and policies governing

the establishment and operation of open

video systems. Among the decisions

reached in rulemakings implementing

the open video system provision of the

1996 Act, the Commission concluded

that Congress did not intend to restrict

open video system service to telephone

companies alone, and permitted nonlocal exchange carriers and cable

operators to operate, and to obtain

carriage on open video systems where

consistent with the public interest,

convenience, and necessity.

2. Five petitions were filed with the

Fifth Circuit and the challenges fell into

three separate categories: (i) National

Association of Telecommunications

Advisors and Officers, the City of

Dallas, and the U.S. Conference of

Mayors challenged the impact of the

Commission’s open video system rules

on local governments; (ii) National

Cable Television Association challenged

the treatment of cable operators under

the video system rules; and (iii)

BellSouth challenged the requirement

that open video system operators obtain

Commission certification before

commencing construction related to

open video systems.

3. The Fifth Circuit affirmed the

Commission’s rules: (i) limiting the fees

that localities may charge to open video

system operators pursuant to section

653(c)(2)(B) of the Communications Act;

(ii) prohibiting localities from requiring

open video systems to provide

institutional networks; and (iii)

prohibiting non-local exchange carrier

cable operators and cable operators

whose franchises have expired from

becoming open video system operators

376 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Rules and Regulations

unless they face effective competition.

Key provisions of the Commission’s

open video system rules, however, were

reversed and remanded by the Fifth

Circuit, requiring amendment of those

rule provisions by the Commission. The

following outlines the changes.

II. Key Changes

4. Preemption of Open Video System

Franchises. Section 653(c)(1)(C) of the

Communications Act provides that Parts

III and IV of Title VI shall not apply to

open video system operators. Included

in Title VI is section 621(b)(1), which

provides that a cable operator may not

provide cable service without a

franchise. The Commission concluded,

in Implementation of Section 302 of the

Telecommunications Act of 1996: Open

Video Systems, (‘‘Second Report and

Order’’), FCC–96–249, 11 FCC Rcd

18223 (1996) that localities are

prohibited from requiring that open

video system operators obtain a

franchise prior to construction and

operation of its system.

5. The Fifth Circuit concluded that

the Commission’s preemption of local

franchising requirements is at odds with

the 1996 Act’s preservation of state and

local authority. However, the Court

ruled that simply saying that section

621 shall not apply to open video

system operators does not expressly

preempt local franchising authority, as

section 601(c)(1) of the 1996 Act directs

that amendments shall not be construed

to modify, impair, or supercede Federal,

State or local law unless expressly so

provided in such Act or amendments.

6. While discussed in detail by the

Court, the franchise prohibition had not

been codified and the Commission had

implemented no rules. Consequently, in

this Order on Remand the Commission

need not amend its rules to effectuate

the Fifth Circuit’s decision on this

matter. The decision to impose a

franchise requirement on an open video

system operator is left to the discretion

of a locality.

7. Commission Certification Prior to

Construction of New Facilities. In the

Second Report and Order, the

Commission stated that open video

system operators may apply for

certification at any time before

commencement of service. If

construction of a new plant is required,

however, the applicant must obtain

Commission approval of its certification

prior to commencement of construction.

Bell South argued to the Fifth Circuit

that the Commission’s pre-construction

certification requirement was contrary

to language of sections 651 and 653 of

the Communications Act. The Fifth

Circuit agreed, finding that the

Commission erred in adopting a preconstruction certification rule.

8. The Commission codified the preconstruction requirement at § 76.1502(a)

of its rules. As a result of the Fifth

Circuit’s decision, the Commission

deletes the pre-construction certification

requirement from § 76.1502(a) of the

Commission’s Rules.

9. Local Exchange Carriers as Cable

Operators. Section 653(a)(1) states that a

local exchange carrier (‘‘LEC’’) may

provide cable service to subscribers in

its telephone service area through an

open video system. In adopting rules to

effectuate this provision the

Commission determined that it would

not permit a cable operator to become

an open video system operator in its

cable franchise area if effective

competition is not present for video

programming delivery, even if it also

becomes certified as a local exchange

carrier within the franchise area. The

Commission concluded that although

section 653(a) allows LECs, without

qualification, to operate open video

systems within their telephone service

area, it does not apply to cable operators

that are also LECs. The Commission

codified this provision at § 76.1501 of

its rules.

10. The Fifth Circuit disagreed with

the Commission’s determination, as it

applied to LEC cable operators, holding

that a local exchange carrier, without

qualification, may provide cable service

in its telephone area through an open

video system. In accordance with the

Fifth Circuit’s decision, the Commission

amends § 76.1501 to provide that the

effective competition requirement does

not apply to a LEC cable operator that

seeks open video system certification

within its cable service area.

11. Open Video System Operator

Discretion. In the Second Report and

Order, the Commission granted open

video system operators discretion to

permit carriage of competing, in-region

cable operators or their affiliates’

programming. This provision was

codified in § 76.1503(c)(2)(v)(A) of the

Commission’s rules. The Fifth Circuit

invalidated the Commission’s rules

permitting an open video system

operator discretion to permit carriage of

a competing, in-region cable operator’s

programming, finding that section

653(b)(1)(A) requires the Commission to

prohibit an operator of an open video

system from discriminating among

video programming providers with

regard to carriage on its open video

system. The Fifth Circuit instructed the

Commission, on remand, to forbid

discrimination among video

programming providers, as section

653(b)(1)(A) requires. In this Order on

Remand, the Commission concludes

that the most efficient and expeditious

method of discharging the Fifth Circuit’s

remand is to delete § 76.1503(c)(2)(v)(A)

of the Commission’s rules which grants

discretion to open video system

operators with regard to carriage of the

programming of competing, in-region

cable operators and their affiliates.

III. Ordering Clauses

12. Pursuant to sections 4(i), 303(r)

and 653 of the Communications Act of

1934, as amended, 47 U.S.C. 154(i),

303(r), and 573, the Commission’s rules

are hereby amended.

13. The Commission’s Office of Public

Affairs, Reference Operation Division,

shall send a copy of this Order on

Remand including the Supplemental

Final Regulatory Flexibility Analysis, to

the Chief Counsel for Advocacy of Small

Business Administration, in accordance

with paragraph section 603(a) of this

Regulatory Flexibility Act. Public Law

96–354, 94 Stat. 1164, 5 U.S.C. 601 et

seq. (1981).

List of Subjects in 47 CFR Part 76

Open video system.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

For the reasons discussed in the

preamble, The Federal Communications

Commission amends 47 CFR Part 76 as

follows:

PART 76—MULTICHANNEL VIDEO

AND CABLE TELEVISION SERVICE

1. The authority citation for Part 76

continues to read as follows:

Authority: 47 U.S.C. 151, 152, 153, 154,

301, 302, 303, 303a, 307, 308, 309, 312, 315,

317, 325, 503, 521, 522, 531, 532, 533, 534,

535, 536, 537, 543, 544, 544a, 545, 548, 549,

552, 554, 556, 558, 560, 561, 571, 572, 573.

2. Section 76.1501 is revised to read

as follows:

§ 76.1501 Qualifications to be an open

video system operator.

Any person may obtain a certification

to operate an open video system

pursuant to Section 653(a)(1) of the

Communications Act, 47 U.S.C.

573(a)(1), except that an operator of a

cable system may not obtain such

certification within its cable service area

unless it is subject to ‘‘effective

competition’’ as defined in Section

623(l)(1) of the Communications Act, 47

U.S.C. 543(l)(1). The effective

competition requirement of the

preceding sentence does not apply to a

local exchange carrier that is also a

cable operator that seeks open video

system certification within its cable

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Rules and Regulations 377

service area. A cable operator that is not

subject to effective competition within

its cable service area may file a petition

with the Commission, seeking a finding

that particular circumstances exist that

make it consistent with the public

interest, convenience, and necessity to

allow the operator to convert its cable

system to an open video system.

Nothing herein shall be construed to

affect the terms of any franchising

agreement or other contractual

agreement.

3. Section 76.1502 is amended by

revising paragraph (a) to read as follows:

§ 76.1502 Certification.

(a) An operator of an open video

system must certify to the Commission

that it will comply with the

Commission’s regulations in 47 CFR

76.1503, 76.1504, 76.1506(m), 76.1508,

76.1509, and 76.1513. The Commission

must approve such certification prior to

the commencement of service at such a

point in time that would allow the

applicant sufficient time to comply with

the Commission’s notification

requirements.

* * * * *

4. Section 76.1503 is amended by

revising paragraph (c)(2)(v) to read as

follows:

§ 76.1503 Carriage of video programming

providers on open video systems.

* * * * *

(c) * * *

(2) * * *

(v) Notwithstanding the general

prohibition on an open video system

operator’s discrimination among video

programming providers contained in

paragraph (a) of this section, a

competing, in-region cable operator or

its affiliate(s) that offer cable service to

subscribers located in the service area of

an open video system shall not be

entitled to obtain capacity on such open

video system, except where a showing

is made that facilities-based competition

will not be significantly impeded.

* * * * *

[FR Doc. 00–110 Filed 1–4–00; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 648

[Docket No. 991217342–9342–01; I.D.

120199D]

RIN 0648–AN15

Fisheries of the Northeastern United

States; Northeast Multispecies

Fishery; Framework 31 to the

Northeast Multispecies Fishery

Management Plan

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule and technical

amendment.

SUMMARY: NMFS issues this final rule to

implement management measures

contained in Framework (FW) 31 of the

Northeast Multispecies Fishery

Management Plan (FMP). These

measures include: An increase in the

Gulf of Maine (GOM) cod trip limit to

400 lb (181.4 kg) per day with a

maximum possession limit of 4,000 lb

(1,814.4 kg); modification of the manner

in which allowable trip limit overages

are permitted and are calculated; and

closure of an inshore area comprising

Massachusetts Bay and Stellwagen Bank

for February 2000. These measures

constitute an inseason adjustment to the

measures currently in place. The intent

of this rule is to reduce discards in the

GOM cod fishery while still achieving

mortality objectives of the rebuilding

plan in the FMP. In addition, this rule

corrects errors contained in the final

rule published October 15, 1999 (64 FR

55821), which implemented the

approved measures contained in

Amendment 9 to the FMP. The October

15, 1999, rule inadvertently omitted

regulatory text to implement the

approved Atlantic halibut measures.

DATES: Effective January 5, 2000, except

for amendments to § 648.81 which are

effective January 31, 2000, and the

revision of § 648.88 (a)(1) which is

effective November 15, 1999.

ADDRESSES: Copies of the FW 31

document, its Regulatory Impact Review

(RIR), the Environmental Assessment

(EA), and other supporting documents,

and documents regarding Amendment 9

are available from Paul J. Howard,

Executive Director, New England

Fishery Management Council, 5

Broadway (Route 1), Saugus, MA

01906–1036.

FOR FURTHER INFORMATION CONTACT:

Thomas A. Warren, Fishery

Management Specialist, 978–281–9347.

SUPPLEMENTARY INFORMATION:

GOM Cod Measures

FW 27, which became effective on

May 1, 1999, implemented measures to

address overfishing and achieve the

rebuilding goals of the FMP for GOM

cod for the 1999 fishing year (May 1,

1999, through April 30, 2000). Because

the status of the GOM cod stock was

characterized by the Multispecies

Monitoring Committee as collapsing, the

New England Fishery Management

Council (Council) chose a target total

allowable catch (TAC) of 782 mt, which

corresponded to the precautionary

fishing mortality rate (F) goal of F0.01.

This TAC was selected as a target to

ensure that the FMAX TAC of 1,340 mt

was not exceeded. FW 27 increased the

size and duration of closed areas,

decreased the cod landing limit to 200

lb (90.7 kg) per day at sea (DAS), and

required the Regional Administrator

(RA) to reduce the landing limit to

between 5 and 100 lb (2.3 kg and 45.4

kg) per DAS, when 402 mt of GOM cod

was landed (30 percent of the FMAX

target and 50 percent of the F0.1 target).

The 200-lb (90.7-kg) landing limit was

reduced to 30 lb (13.6 kg) per DAS on

May 28, 1999, based upon the RA’s

projection that 402 mt had been landed.

Meanwhile, industry reports of high

levels of discarding of cod precipitated

the Council’s May 28, 1999, request for

emergency action to raise the GOM cod

trip limit. NMFS determined that the

situation did not meet the requirements

for emergency action. Instead, on

August 3, 1999, NMFS implemented

interim measures to reduce levels of

discarding and overall fishing mortality.

These interim measures consisted of a

landing limit of 100 lb (45.4 kg) per

DAS, with a maximum possession limit

of 500 lb (226.8 kg). The procedure for

landing trip limit overages and the

associated accounting of DAS (running

clock) were revised to limit the amount

of allowed overage to the equivalent of

1 day’s landing limit. The interim

measures are in effect through January

30, 2000.

FW 31 contains three measures with

respect to GOM cod: (1) A GOM cod

landing limit of 400 lb (181.4 kg) per

DAS with a maximum possession limit

of 4,000 lb (1,814.4 kg); (2) the closure,

in February 2000, of an area of the GOM

comprising Massachusetts Bay and

Stellwagen Bank to vessels using gear

capable of catching groundfish, with the

exception of vessels using scallop

dredge gear; and (3) an extension of the