Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Rules and Regulations 25865

merely the Bureau’s implementation

and clarification of the existing

Commission rule requiring that

contributions be based on end-user

telecommunications revenues. Because

Line 48 is not a new substantive rule,

the Bureau neither exceeded its

delegated authority nor violated the

notice and comment requirements of the

APA. Accordingly, we reject the parties’

procedural claims.

B. Substantiative Arguments Regarding

the Inclusion of Carrier-Imposed

Universal Service Charges in the

Contribution Base

6. The parties argue that including

carrier-imposed universal service

charges in the contribution base creates

a circular formula that drives up the

contribution base, causing increased

contributions, which result in higher

carrier-imposed universal service

charges that further drive up the

contribution base. Thus, the parties

claim that the inclusion of carrierimposed universal service charges in the

contribution base disserves the public

interest because it results in an

upwardly spiraling ‘‘vicious cycle’’ of

perpetual increases in carrier

contributions to the universal service

support mechanisms. For example,

PCIA supplies the following

descriptions of this alleged effect:

[I]f a carrier receives $100 in revenues for

flat-rated services from an end-user over a

given period, and assuming a 10 percent

contribution rate, the carrier’s contribution

would be $10. If the carrier passes the $10

through to the customer, the revenues

received from the customer (in the next

comparable period) would increase to $110.

If the $10 pass through is considered ‘‘end

user telecommunications revenues,’’ the

contribution would increase to $11, as an

assessment would be included on the

recovery of contributions from the customer.

Metrocall and Blooston provide

similar examples. Upon closer

examination, however, the inclusion of

carrier-imposed universal service

charges in the contribution base does

not have the effect claimed by the

parties.

7. In each of their examples, the

parties assume that, all other things

being equal, the contribution factor

remains constant as the contribution

base increases. This assumption,

however, is mathematically impossible.

The contribution factor is the ratio of

total universal service program costs to

the contribution base. Stated as a

mathematical equation, the contribution

factor can be described as follows:

Contribution Factor = Total Program Costs

Contribution Base

The total program costs and the

contribution base are independent

variables in this equation. The

contribution factor, on the other hand,

is the dependent variable, i.e., the

contribution factor is dependent on the

amount of the total program costs and

the contribution base. Because the

contribution base is the denominator in

this equation, the contribution factor is

inversely proportional to the

contribution base. In other words, as the

contribution base increases, all other

things being equal,the contribution

factor must decrease.

8. As demonstrated by the exhibit, all

other things being equal, when carrierimposed universal service charges are

included in the contribution base, the

contribution base increases, the

contribution factor decreases in

proportion to the increase in the

contribution base, and the amount of

each carrier’s contribution remains

constant. Therefore, the parties’

‘‘vicious cycle’’ argument is unfounded.

Moreover, if carrier-imposed universal

service charges were not included in the

contribution base, there would be a

competitive imbalance in the

Commission’s contribution

methodology. All other things being

equal, a carrier that chose to recover its

contributions by increasing its rates

would have an increased individual

contribution base and an increased

contribution. A carrier that chose to

recover its contributions by imposing a

line-item charge would not have an

increased individual contribution base

or an increased contribution. Such a

result would put carriers choosing to

raise their rates at a disadvantage

compared to carriers choosing to impose

a line-item charge, would render

illusory the ‘‘choice’’ of recovery

methods, and would violate the

universal service principle of

competitive neutrality. Accordingly, for

all of the foregoing reasons, we reject

the parties’ claims that carrier-imposed

universal service charges should be

excluded from the contribution base.

III. Ordering Clauses

9. The authority contained in sections

1–4, 201–205, 218–220, 254, 303(r), 403,

and 405 of the Communications Act of

1934, as amended, and section 1.429 of

the Commission’s rules, Twenty-First

Order on Reconsideration in CC Docket

No. 96–45 and the Memorandum

Opinion and order in CC Docket Nos.

96–45, 97–21, and 98–171 are adopted.

10. The authority contained in

sections 4(i) and 405 of the

Communications Act of 1934, as

amended, and section 1.429 of the

Commission’s rules, the Petition for

Partial Reconsideration and

Clarification filed by the Personal

Communications Industry Association

on July 17, 1997 is denied to the extent

stated.

11. The authority contained in

sections 4(i) and 405 of the

Communications Act of 1934, as

amended, and section 1.106 of the

Commission’s rules, the Petition for

Reconsideration filed by the Personal

Communications Industry Association

on August 31, 1998 is denied.

12. The authority contained in

sections 4(i) and 405 of the

Communications Act of 1934, as

amended, and section 1.106 of the

Commission’s rules, the Petition for

Reconsideration filed by Metrocall, Inc.

on August 31, 1998 is denied.

List of Subjects in 47 CFR Part 54

Universal service.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 00–11101 Filed 5–3–00; 8:45 am]

BILLING CODE 6712–01–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[FCC 00–130; MM Docket No. 98–175; RM–

9364]

Television Broadcasting Services;

Digital Television Broadcasting

Services; Buffalo, NY

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: In a Memorandum Opinion

and Order, the Commission denies the

Application for Review filed by

Coalition for Noncommercial Media

(‘‘CNM’’), and affirms the Mass Media

Bureau’s Report and Order 64 FR 45893

(August 23, 1999). The Bureau’s action

had granted the noncommercial

educational channel reservation swap

for Channels 17 and *23 in Buffalo, New

York and related digital channels

requested by licensee Western New

York Public Broadcasting Association.

That Report and Order also had denied

oppositions filed by Grant Television,

Inc., licensee of WNYO–TV, Buffalo,

New York, WKBW–TV Licensee, Inc.,

licensee of Station WKBW–TV, Buffalo,

New York, Kevin Smardz, President of

Southtowns Christian Center, Lakeview,

New York, and CNM.

DATES: Effective July 3, 2000.

25866 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Rules and Regulations

FOR FURTHER INFORMATION CONTACT:

Victoria M. McCauley, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s

Memorandum Opinion and Order, MM

Docket No. 98–175, adopted April 6,

2000, and released April 19, 2000. The

full text of this Commission decision is

available for inspection and copying

during normal business hours in the

FCC Reference Center (Room 239), 445

12th Street, SW, Washington, DC. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Services, Inc., (202) 857–

3800, 1231 20th Street, NW,

Washington, DC 20036.

Summary of Memorandum Opinion

and Order

Before us is an Application for

Review of the Report and Order which

amended the Television Table of

Allotments for Buffalo, New York at the

request of Western New York Public

Broadcasting Association (‘‘WNYPBA’’),

licensee of Stations WNED–TV, Channel

17, and WNEQ–TV, Channel *23,

Buffalo, New York, to reflect Channel 17

as reserved for noncommercial

educational use, and Channel 23 as

nonreserved, and related changes to the

DTV Table of Allotments. Coalition for

Noncommercial Media (‘‘CNM’’), a

group of Buffalo-Area citizens and

WNED/WNEQ–TV viewers filed this

Application for Review, alleging that the

Mass Media Bureau erred in making

these amendments.

Background

The Report and Order granting the

change of reservation considered and

rejected arguments opposing

WNYPBA’s request by Grant Television,

Inc. licensee of WNYO–TV, Buffalo,

New York, WKBW–TV Licensee, Inc.,

licensee of Station WKBW–TV, Buffalo,

New York, Kevin Smardz, President of

Southtowns Christian Center, Lakeview,

New York, and CNM. The Report and

Order also denied CNM’s

counterproposal requesting that the

Commission amend the TV Table of

Allotments to reserve all unreserved

channels being used for noncommercial

operation on the grounds that it was not

mutually exclusive with the WNYPBA

proposal.

The Report and Order held (1) that

the exchange of reservation would serve

the public interest, and (2) that it could

be effectuated under the Commission’s

existing rules and policies. The Bureau

noted the transaction would serve the

public interest because there would be

no diminution in noncommercial

educational service in Buffalo and that

such service would actually expand

because Station WNED–TV, clearly the

more powerful and broad reaching of

the two stations would be on a reserved

channel. It also noted that WNYPBA

could sell Station WNED–TV, arguably

the more valuable and marketable

station, on unreserved Channel 17 as a

commercial entity at any time, but that

it had foregone this opportunity in order

to retain noncommercial educational

service on Station WNED–TV on

Channel *17.

The Bureau also pointed out that

under the Commission’s rules allowing

intraband channel swaps between

commercial and noncommercial

stations, WNYPBA, after selling Station

WNED–TV, could have then swapped

channels with WNED–TV’s new

licensee and reached the same result as

its proposed reservation exchange, and

that avoiding this two-stage filing would

also serve the public interest.

The Bureau also addressed CNM’s

‘‘counterproposal,’’ which had two

aspects: One requesting that we reserve

Channel 17 at Buffalo, and one

requesting that we reserve all

unreserved channels of stations which

were being operated noncommercially.

The Bureau considered CNM’s

counterproposal as not appropriately

filed in this proceeding because CNM’s

request to reserve all unreserved

channels of stations being operated as

noncommercial stations was not

mutually exclusive with WNYPBA’s

proposal at Buffalo.

Application for Review

CNM argues again that the Bureau

should have denied WNYPBA’s request

for the channel reservation swap. CNM

goes on to argue that the Bureau failed

to consider its ‘‘counterproposal.’’ It

then repeats all of the arguments it

made in its comments before the

Bureau. CNM’s Petition for Emergency

Relief, supported by CIPB, requests that

the Commission stay the effect of the

Report and Order, and prevent

WNYPBA from converting Station

WNEQ–TV (or WNED–TV) to

commercial operation until the

resolution of its proposal to reserve

Channel 17 in this matter.

Discussion

As a preliminary matter, we will note

that CNM’s Petition for Emergency

Relief is moot and will be dismissed.

Furthermore, we will not address

CNM’s repeated arguments against the

reservation swap. The Bureau properly

addressed CNM’s arguments in the

Report and Order and we will not

disturb its decision. However, we will

address CNM’s argument that the

Bureau overlooked the first aspect of

CNM’s ‘‘counterproposal,’’ to reserve

Channel 17 at Buffalo. CNM argues that

pursuant to the holding of Ashbacker v.

F.C.C. (‘‘Ashbacker’’), the Bureau erred

when it failed specifically to address its

disposal of CNM’s ‘‘counterproposal’’

requesting the reservation of Channel 17

at Buffalo on a comparative basis with

the proposal filed by WNYPBA.

While the Bureau may have omitted

mention of its specific disposal of

CNM’s ‘‘counterproposal’’ to reserve

Channel 17 at Buffalo, any error this

involved was harmless. First, a third

party may not petition for a change in

another station’s authorization,

particularly if the licensee has

disavowed an interest in the particular

proposed change. In addition, contrary

to CNM’s argument, the Bureau

correctly held that the rule of Ashbacker

does not apply to channel exchanges

because the channels are occupied.

Finally, although the two proposals may

have been mutually exclusive as a

matter of common usage because they

could not co-exist, they were not

mutually exclusive within the strict

interpretation of that phrase as a term of

art applied to broadcast channel

allotments, which presumes a shortspacing between two channels.

We also note that the Bureau correctly

held that the second aspect of CNM’s

‘‘counterproposal,’’ to reserve all

unreserved channels of stations

operating as noncommercial educational

stations was not appropriately filed in

this matter. The Bureau was constrained

to limit its decision to the merits of the

issues as they applied to the instant

parties. The issue of reserving all

unreserved channels on which licensees

operate noncommercially is a matter

appropriately raised as a general

rulemaking, not as an issue to be

resolved in an adjudicatory proceeding

such as this.

Finally, CNM repeats an argument

made to the Bureau that allowing this

transaction could spark a ‘‘flood’’ of

requests by other public broadcasters

seeking to sell their ‘‘second channel’’

public television stations. CNM claims

that the Bureau’s answer to this

argument mischaracterized the number

of noncommercial stations operating on

unreserved frequencies. CNM is

incorrect. The Bureau correctly referred

to the number of communities in which

a pair of co-owned (rather than

independently owned) noncommercial

stations is operating with one station on

an unreserved channel.

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Rules and Regulations 25867

List of Subjects in 47 CFR Part 73

Television broadcasting, Digital

television broadcasting.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 00–11099 Filed 5–3–00; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AD67

Endangered and Threatened Wildlife

and Plants; Reclassification of Yacare

Caiman in South America From

Endangered to Threatened, and the

Listing of Two Other Caiman Species

as Threatened by Reason of Similarity

of Appearance

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) is reclassifying the

yacare caiman (Caiman yacare; also

known as Caiman crocodilus yacare)

from its present endangered status to

threatened status under the Endangered

Species Act because the current

endangered listing does not correctly

reflect the present status of this species.

The Service also is listing the common

caiman (Caiman crocodilus crocodilus)

and the brown caiman (Caiman

crocodilus fuscus) as threatened by

reason of similarity of appearance.

Caiman yacare is native to Argentina,

Brazil, Paraguay, and Bolivia. Caiman

crocodilus crocodilus and C. c. fuscus

occur in Mexico and Central and South

America. All three taxa are listed in

Appendix II of the Convention on

International Trade in Endangered

Species of Wild Fauna and Flora

(CITES), which allows for international

commercial trade in these species.

Listing the two taxa as threatened by

reason of similarity of appearance will

assist in protecting the yacare caiman by

facilitating wildlife inspections of

shipments at the ports of entry and

detection of illegal shipments.

A special rule for these three caiman

populations allows U.S. commerce in

their skins, other parts, and products

from individual countries of origin and

countries of re-export if certain

conditions are satisfied by those

countries prior to exportation to the

United States. These conditions largely

pertain to the implementation of a

CITES Universal Tagging System

Resolution for crocodilian skins

(adopted at the ninth meeting of the

Conference of the Parties) as well as

provisions intended to support

sustainable management of wild

populations of the above three caiman

species/subspecies. In the case where

tagged caiman skins and other parts are

exported to another country, usually for

tanning and manufacturing purposes,

and the processed skins and finished

products are exported to the United

States, the rule prohibits importation or

re-exportation of such skins, parts, and

products if we determine that either the

country of origin or re-export is

engaging in practices that are

detrimental to the conservation of

caiman populations.

The purpose of this rule is threefold.

First, the rule accurately reflects the

conservation status of the yacare

caiman. Second, we wish to promote the

conservation of the yacare caiman by

ensuring proper management of the

commercially harvested caiman species

in the range countries and, through

implementation of trade controls (as

described in the CITES Universal

Tagging System Resolution), to reduce

commingling of caiman specimens.

Third, downlisting of C. yacare to

threatened reconciles listings of the

species in the Act and CITES.

EFFECTIVE DATE: This final rule is

effective on June 5, 2000.

ADDRESSES: The complete file for this

rule is available for public inspection by

appointment, from 8:00 a.m. to 4:30

p.m., Monday through Friday, at the

Office of Scientific Authority, 4401 N.

Fairfax Dr., Room 750, Arlington,

Virginia.

FOR FURTHER INFORMATION CONTACT: Dr.

Javier Alvarez, Office of Scientific

Authority, U.S. Fish and Wildlife

Service, Mail Stop ARLSQ–750,

Washington, DC 20240 (phone: 703–

358–1708; fax: 703–358–2276; e-mail:

r9osa@fws.gov).

SUPPLEMENTARY INFORMATION: 

Note: Portions of the original proposed rule

were re-written to conform to the new

Federal policy on the use of ‘‘plain English’’

in Federal documents. However, the original

intent of the text remains the same. Text in

the proposed rule has also been amended in

this final rule in response to comments

submitted by the public (see ‘‘Comments

Received’’ below) and to coincide with the

CITES Universal Tagging System Resolution.

Background

The yacare caiman was listed as

endangered throughout its entire range

under the predecessor of the

Endangered Species Act (Act) of 1973

on June 2, 1970 (35 FR 8495). (At the

time of the original listing, Peru was

incorrectly listed as one of the range

countries, whereas Paraguay was

excluded. In this final rule, we correct

that situation.) On July 1, 1975, it was

also placed in Appendix II of the

Convention on International Trade in

Endangered Species of Wild Fauna and

Flora—CITES (42 FR 10465). (The

species has never been listed in CITES

Appendix I, which prohibits

international trade in the species if such

activity is conducted for primarily

commercial purposes and/or

determined to be detrimental to the

survival of the species.) The endangered

listing under the Act prohibited imports

and re-exports of the species into/from

the United States. However, the

Appendix II listing allows for regulated

commercial trade elsewhere in the

world, based on certain findings. As a

result, a substantial U.S. law

enforcement problem has occurred

because of the different listing status

under the Act and under CITES. Imports

and re-exports of yacare caiman into/

from the United States without an ESA

permit are prohibited under the Act,

including shipments originating from

countries of origin with valid CITES

export documents. However, imports

and re-exports of products from the

common and brown caimans are legal,

when accompanied by appropriate

CITES documents. Since products

manufactured from the yacare caiman,

common caiman, and the brown caiman

are often indistinguishable as to species

from which they are made, products

from the prohibited yacare caiman are

often commingled with products from

non-prohibited taxa among commercial

shipments into the United States. The

unauthorized entry of prohibited yacare

caiman products constitutes a violation

of the Act, and if the yacare is legally

protected in individual range countries,

then Lacey Act violations may also have

occurred.

Until relatively recently, Argentina,

Bolivia, Brazil, and Paraguay prohibited

the export of caiman products (Brazaitis

in comments on the October 29, 1990,

Federal Register notice [55 FR 43389]).

However, CITES Notification to the

Parties No. 781, issued on March 10,

1994, indicated that Brazil’s CITES

Management Authority had registered

75 ranching operations for producing

skins of C. c. crocodilus and C. yacare.

These ranching operations were

established under provisions of Article

6 B of Brazilian Wildlife Law No. 5.197,

of November 3, 1967. Caiman yacare

from these Brazilian ranches were being

legally traded in the international