Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26757

Order 13045 because it authorizes a

state program.

Compliance With Executive Order

13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies

with consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

This rule is not subject to Executive

Order 13084 because it does not

significantly or uniquely affects the

communities of Indian tribal

governments. The State is not

authorized to implement the RCRA

hazardous waste program in Indian

country. This action has no effect on the

hazardous waste program that EPA

implements in the Indian country

within the State.

Paperwork Reduction Act

Under the Paperwork Reduction Act,

44 U.S.C. 3501 et seq., Federal agencies

must consider the paperwork burden

imposed by any information request

contained in a proposed rule or a final

rule. This rule will not impose any

information requirements upon the

regulated community.

National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Public Law

104–113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) that are developed or

adopted by voluntary consensus

standards bodies. The NTTAA directs

EPA to provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

This action does not involve technical

standards. Therefore, EPA did not

consider the use of any voluntary

consensus standards.

List of Subjects in 40 CFR Part 271

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous waste, Hazardous waste

transportation, Indian country,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements.

Authority: This action is issued under the

authority of sections 2002(a), 3006 and

7004(b) of the Solid Waste Disposal Act as

amended 42 U.S.C. 6912(a), 6926, 6974(b).

Dated: April 28, 2000.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

[FR Doc. 00–11421 Filed 5–8–00; 8:45 am]

BILLING CODE 6560–50–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 79

[MM Docket No. 95–176; FCC 00–136]

Implementation of Section 305 of the

Telecommunications Act of 1996,

Closed Captioning and Video

Description of Video Programming:

Accessibility of Emergency

Programming

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document adopts

regulations requiring emergency

information that is provided to viewers

be made accessible to persons with

hearing disabilities. This action is

necessary in order to comply with

section 305 of the Telecommunications

Act of 1996. This action is intended to

further the protection of life, health,

safety, and property, of persons with

hearing disabilities.

DATES: The rule in this document

contains information collection

requirements that are not effective until

approved by the Office of Management

and Budget. The Commission will

publish a document in the Federal

Register announcing the effective date

of this rule. Written comments by the

public on the new information

collection are due July 10, 2000.

ADDRESSES: In addition to filing

comments with the Office of the

Secretary, a copy of any comments on

the information collection contained

herein should be submitted to Judy

Boley, Federal Communications

Commission, Room 1–C804, 445 12th

Street, SW, Washington, DC 20554, or

via the Internet to jboley@fcc.gov.

FOR FURTHER INFORMATION CONTACT:

Marcia Glauberman (202) 418–7200,

TTY (202) 418–7172, or via Internet at

mglauber@fcc.gov. For additional

information concerning the information

collection(s) contained in this

document, contact Judy Boley at (202)

418–0214, or via the Internet at

jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Second

Report and Order, FCC 00–136, adopted

April 13, 2000; released April 14, 2000.

The full text of the Commission’s

Second Report and Order 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, DC 20554, or may be

purchased from the Commission’s copy

contractor, International Transcription

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

Street, NW, Washington, DC 20036, or

may be reviewed via Internet at http://

www.fcc.gov/csb/ or http://

www.fcc.gov/cib/dro.

The Second Report and Order

contains a new information collection

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. OMB, the general public, and

other Federal agencies are invited to

comment on the new information

collection contained in this proceeding.

Paperwork Reduction Act

The Second Report and Order

contains a new information collection.

The Commission, as part of its

continuing effort to reduce paperwork

burdens, invites the general public to

comment on the information collection

contained in this Second Report and

Order as required by the Paperwork

Reduction Act of 1995, Public Law 104–

13. Public and agency comments are

due July 10, 2000. Comments should

address: (a) Whether the new collection

of information is necessary for the

proper performance of the functions of

26758 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

the Commission, including whether the

information shall have practical utility;

(b) the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility, and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

OMB Control Number: 3060–XXXX.

Title: Accessibility of Programming

Providing Emergency Information—

Section 79.2.

Form No.: Not Applicable.

Type of Review: New collection.

Respondents: Individuals or

households; business or other for-profit;

not-for-profit institutions; and/or state,

local or tribal governments.

Number of Respondents: 100 viewers

and 100 video program distributors =

200 Total Respondents.

Estimated Time per Response: 1 and

2 hours, respectively.

Total Annual Burden: 300 hours.

Cost to Respondents: $ 16,200.

Needs and Uses: The information will

be used by the Commission to enforce

new § 79.2. Viewers may file complaints

alleging violation of this rule with the

Commission. The Commission will

notify video programming distributors

of the complaint, and the distributor

will provide the Commission with a

response to the complaint.

Synopsis of the Second Report and

Order

1. The Second Report and Order

(‘‘Order’’) adopts a rule requiring that

emergency information that is provided

to viewers be made accessible to

persons with hearing disabilities

throughout the transition period

established as part of the closed

captioning rules. See 47 CFR 79.1. Such

information may be made accessible

either through closed captioning or by

using a method of visual presentation.

Emergency information is information,

about a current emergency, that is

intended to further the protection of life,

health, safety, and property, i.e., critical

details regarding the emergency and

how to respond to the emergency. In

determining which particular details

about the emergency need to be made

accessible, programmers may rely on

their own good faith judgments.

2. Definition of emergency

information. We find that it is

appropriate to define emergency

information as information, about a

current emergency, provided to viewers

that is intended to further the protection

of life, health, safety, and property, i.e.,

critical details regarding the emergency

and how to respond to the emergency.

Examples of the types of emergencies

covered could include tornadoes,

hurricanes, floods, tidal waves,

earthquakes, icing conditions, heavy

snows, widespread fires, discharge of

toxic gases, widespread power failures,

industrial explosions, civil disorders,

school closings and changes in school

bus schedules resulting from such

conditions, and warnings and watches

of impending changes in weather. These

examples are intended to provide

guidance as to what is covered by the

rule and are not intended to be an

exhaustive list.

3. Our definition of emergency

information will include the provision

of critical details in an accessible

manner. Critical details could include,

among other things, specific details

regarding the areas that will be affected

by the emergency, evacuation orders,

detailed descriptions of areas to be

evacuated, specific evacuation routes,

approved shelters or the way to take

shelter in one’s home, instructions on

how to secure personal property, road

closures, and how to obtain relief

assistance. In determining whether

particular details need to be made

accessible, we will permit programmers

to rely on their own good faith

judgments. Under this rule, distributors

are not required to provide in an

accessible format all of the information

about an emergency situation that they

are providing to viewers aurally, only

the aural information intended to

further the protection of life, health,

safety, and property.

4. Accessibility of Emergency

Information. The rule we are adopting

requires that emergency information

that is provided in the audio portion of

the programming must be accessible to

persons with hearing disabilities, either

through closed captioning or by using a

method of visual presentation. Such

methods include, but are not limited to,

open captioning, crawls or scrolls.

These rules apply regardless of whether

the provision of information regarding

an emergency occurs during a regularly

scheduled newscast, an unscheduled

break-in during regular programming, as

part of continuing coverage of a

situation, or in any other fashion. We

will adopt the suggestion of some

commenters that we restrict the

application of the rule to the provision

of emergency information that is

primarily intended for distribution to an

audience in the geographic area in

which the emergency is occurring.

5. As was noted in the June 1999 Fact

Sheet on Closed Captioning, the

Commission has received numerous

reports of the loss of captioning during

otherwise captioned programs. The

requirement that video distributors

‘‘pass through’’ to viewers all captions

they receive is intended to ensure that

captioned programs are distributed with

captions from beginning to end without

exception. The Fact Sheet reminded

video distributors that when providing

other information, such as school

closings or weather warnings, readable

captions should continue to be

provided. We endorse this

interpretation and amend our rules to

require that emergency information

provided by means other than closed

captioning should not block any closed

captioning, and vice versa.

6. Exemptions. Because we are not

mandating the use of closed captioning

as the sole means for making emergency

information accessible, we find that

exemptions to this rule are unnecessary.

Consistent with this conclusion, with

respect to entities that are exempt from

any aspect of the closed captioning

rules, we find that such exemption does

not extend to the obligation to provide

accessible emergency information.

Expenses for complying with this rule

shall not be counted when making

calculations of expenditures under 47

CFR 79.1(d)(11). All entities, therefore,

must comply with the rule adopted in

this Order.

7. Responsibility for and

determination of compliance. As with

the closed captioning rules, video

programming distributors will be

responsible for compliance with the rule

and video programming distributors

will not be responsible for video

programming that is by law not subject

to their editorial control, including but

not limited to the signals of television

broadcast stations distributed by

multichannel video programming

distributors. A local broadcast station

licensee, as the video programming

distributor, will be responsible for its

compliance with the rule regardless of

the delivery technology used to deliver

its signals to consumers (e.g., cable,

direct broadcast satellite service). We

note that many local or regional

nonbroadcast networks are owned by

the multichannel video programming

distributors. Where the network is not

owned by the multichannel video

programming distributor, as we noted in

the closed captioning rules, we expect

that distributors will incorporate the

requirement into their contracts with

producers and owners, and that parties

will negotiate for an efficient allocation

of responsibilities.

8. Those entities that are permitted to

count captions created using the

electronic newsroom technique still

must comply with this rule. Where they

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26759

cannot provide the required emergency

information using this technique, they

must use another method of visual

presentation to ensure the same

accessibility for persons with hearing

disabilities as for any other viewer, as

required by the rule.

9. In the Order on Reconsideration in

this proceeding, 63 FR 55959 (October

20, 1998), we limited those entities for

which the electronic newsroom

technique may count towards

compliance with the closed captioning

rules. We stated that, as we move

through the transition period, we will

continue to review and expand the class

of providers that cannot count the

electronic newsroom technique towards

compliance with the closed captioning

rules, and that we expect that the ability

to use the electronic newsroom

technique will by far be the exception

rather than the general rule, and that

only those entities that are so small or

who present unusual circumstances will

be permitted to continue to use the

electronic newsroom technique because

live closed captioning would be an

economic burden. To the extent we

continue to permit entities to use the

electronic newsroom technique, we will

determine whether these entities will be

permitted to continue to use means

other than closed captioning for

emergency information in the context of

reviewing and expanding the limitation

on the use of the electronic newsroom

technique.

10. In recognition of this problem and

viewers’ frustration when captions are

lost during a program, the current rules

require video program distributors to

transmit the original closed captions of

a captioned program to viewers intact

unless the program is edited and the

captions would have to be reformatted.

Video distributors also are responsible

for making sure that their equipment is

working properly to ensure the accurate

transmission of the closed captions. Any

loss of captions prior to the end of a

program or scrambling of captions

would be a violation of this rule.

11. Enforcement. Complaints may be

filed with the Commission and viewers

do not have to wait until after the end

of the current calendar quarter before

filing, or receiving a response to, their

complaints. A complaint alleging a

violation of this section may be

transmitted to the Commission by any

reasonable means, such as letter,

facsimile transmission, telephone

(voice/TRS/TTY), Internet e-mail,

audio-cassette recording, and Braille, or

some other method that would best

accommodate the complainant’s

disability. The complaint should

include the name of the video

programming distributor against whom

the complaint is alleged, the date and

time of the omission of emergency

information, and the type of emergency.

The Commission will notify the video

programming distributor of the

complaint, and the distributor will reply

to the complaint within 30 days.

12. Effective Date. The rule will be

effective upon OMB approval.

Final Regulatory Flexibility Analysis

13. As required by the Regulatory

Flexibility Act (‘‘RFA’’), 5 U.S.C. 603.

The RFA, 5 U.S.C. 601 et seq., has been

amended by the Contract with America

Advancement Act of 1996, Public Law

No. 104–121, 110 Stat. 847 (1996)

(‘‘CWAAA’’). Title II of the CWAAA is

the Small Business Regulatory

Enforcement Fairness Act of 1996

(‘‘SBREFA’’). An initial Regulatory

Flexibility Analysis (‘‘IRFA’’) was

incorporated in the Further Notice of

Proposed Rulemaking (‘‘FNPRM’’) in

this proceeding. Closed Captioning and

Video Description of Video

Programming, Implementation of

Section 305 of the Telecommunications

Act of 1996, Video Programming

Accessibility, MM Docket No. 95–176,

Further Notice of Proposed Rulemaking,

63 FR 3070 (January 21, 1998). The

Commission sought written public

comment on the proposals in the

FNPRM, including comment on the

IRFA. This Final Regulatory Flexibility

Analysis (‘‘FRFA’’) conforms to the

RFA.

A. Need for, and Objectives of, This

Second Report and Order

14. Section 713 of the

Communications Act, which was added

by the Telecommunications Act of 1996,

required the Commission to make new

video programming fully accessible to

persons with hearing disabilities. 47

U.S.C. 613. In the course of adopting

rules to implement this section of the

Act, the Commission noted its concern

that viewers with hearing disabilities

may not always have access to the same

emergency information as is currently

available to other viewers and decided

to further examine ways to make this

programming accessible. See Report and

Order, 62 FR 48487 (September 16,

1997). This Second Report and Order

adopts rules to ensure that emergency

information is available to persons with

hearing disabilities either through

closed captioning or by using a method

of visual presentation.

B. Summary of Significant Issues Raised

by Public Comments in Response to the

IRFA

15. Telecommunications for the Deaf,

Inc. (‘‘TDI’’) filed the only comment on

the IRFA in the context of its general

comments. It proposes that all video

programming providers be required to

contribute to a Commission

administered fund based on their gross

revenues. This fund would be used for

rebates to small entities (e.g., low power

television stations, small cable

operators) for the costs incurred when

providing captioned emergency

information. We decline to adopt this

proposal since our rule does not require

the closed captioning of emergency

information. The rule imposes modest

obligations on video programming

distributors and provides each entity

sufficient flexibility to determine the

most feasible and affordable method for

making emergency information

accessible to persons with hearing

disabilities.

16. TDI also states that we should not

adopt a reporting requirement, except

where a specified number of complaints

have been logged for non-compliance,

because a reporting requirement would

impose an undue burden. TDI

Comments at 4. The Commission

decided that no reporting requirement

was necessary to implement the rule,

but rather to rely on a complaint process

to ensure compliance. Therefore, we

will not adopt TDI’s suggestion to

minimize reporting requirements.

C. Description and Estimate of the

Number of Small Entities to Which the

Rule Will Apply

17. 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. 5 U.S.C. 603(b)(3). The RFA

generally defines ‘‘small entity’’ as

having the same meaning as the terms

‘‘small business,’’ ‘‘small organization,’’

and ‘‘small governmental jurisdiction’’

and ‘‘the same meaning as the term

‘small business concern’ under the

Small Business Act’’ unless the

Commission has developed one or more

definitions that are appropriate for its

activities. 5 U.S.C. 601(3) (incorporating

by reference the definition of ‘‘small

business concern’’ in 15 U.S.C. 632). A

small business concern is one which: (1)

Is independently owned and operated;

(2) is not dominant in its field of

operation; and (3) satisfies any

additional criteria established by the

Small Business Administration

(‘‘SBA’’). 15 U.S.C. 632. Pursuant to 5

U.S.C. 601(3), the statutory definition of

26760 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

a small business applies ‘‘unless an

agency after consultation with the Office

of Advocacy of the SBA and after

opportunity for public comment,

establishes one or more definitions of

such term which are appropriate to the

activities of the agency and publishes

such definition(s) in the Federal

Register.’’ Below we address the video

programming distributors (i.e.,

multichannel video programming

distributors (‘‘MVPDs’’) and broadcast

stations) subject to the rule adopted in

this Order and provide estimates of the

affected small entities.

18. Small MVPDs. The SBA has

developed a definition of small entities

for cable and other pay television

services under Standard Industrial

Classification 4841 (SIC 4841), which

covers subscription television services,

which includes all such companies with

annual gross revenues of $11 million or

less. 13 CFR 121.201. This definition

includes cable systems operators, closed

circuit television services, direct

broadcast satellite services, multipoint

distribution systems, satellite master

antenna systems and subscription

television services. According to the

Census Bureau, there were 1,423 such

cable and other pay television services

generating less than $11 million in

revenue that were in operation for at

least one year at the end of 1992. The

following provides a more precise

estimate for each MVPD service

individually.

19. Cable Services or Systems. The

Commission has developed, with SBA’s

approval, its own definition of a ‘‘small

cable company’’ and ‘‘small system’’ for

the purposes of rate regulation. Under

the Commission’s rules, a ‘‘small cable

company,’’ is one serving fewer than

400,000 subscribers nationwide. 47 CFR

76.901(e). The Commission developed

this definition based on its

determinations that a small cable

company is one with annual revenues of

$100 million or less. Based on our most

recent information, we estimate that

there were 1,439 cable companies that

qualified as small cable companies at

the end of 1995. Since then, some of

those companies may have grown to

serve over 400,000 subscribers, and

others may have been involved in

transactions that caused them to be

combined with other cable companies.

Consequently, we estimate that there are

fewer than 1,439 small entity cable

companies that may be affected by the

proposal adopted in this Second Report

and Order. The Commission’s rules also

define a ‘‘small system,’’ for the

purposes of cable rate regulation, as a

cable system with 15,000 or fewer

subscribers. 47 CFR 76.901(c). We do

not request nor do we collect

information concerning cable systems

serving 15,000 or fewer subscribers and

thus are unable to estimate at this time

the number of small cable systems

nationwide.

20. The Communications Act also

contains a definition of a ‘‘small cable

operator,’’ which is ‘‘a cable operator

that, directly or through an affiliate,

serves in the aggregate fewer than 1

percent of all subscribers in the United

States and is not affiliated with any

entity or entities whose gross annual

revenues in the aggregate exceed

$250,000,000.’’ 47 U.S.C. 543(m)(2). The

Commission has determined that there

are 61,700,000 subscribers in the United

States. Therefore, we found that an

operator serving fewer than 617,000

subscribers is deemed a small operator,

if its annual revenues, when combined

with the total annual revenues of all of

its affiliates, do not exceed $250 million

in the aggregate. 47 CFR 76.1403(b).

Based on available data, we find that the

number of cable operators serving

617,000 subscribers or less totals 1,450.

Although it seems certain that some of

these cable system operators are

affiliated with entities whose gross

annual revenues exceed $250,000,000,

we are unable at this time to estimate

with greater precision the number of

cable system operators that would

qualify as small cable operators under

the definition in the Communications

Act.

21. Multichannel Multipoint

Distribution Service (‘‘MMDS’’). In its

IFRA in this proceeding, the

Commission included an analysis of

local multipoint distribution systems

(‘‘LMDS’’). At that time, there was one

video programming distributor using

LMDS frequencies to provide video

services. Since the FNPRM, that

distributor ceased operation and it

appears that LMDS licensees will use

these frequencies for services other than

video distribution. MMDS systems,

often referred to as ‘‘wireless cable,’’

transmit video programming to

subscribers using the microwave

frequencies of the Multipoint

Distribution Service (‘‘MDS’’) and

Instructional Television Fixed Service

(‘‘ITFS’’). The Commission has defined

‘‘small entity’’ for purposes of the

auction of MDS frequencies as an entity

that, together with its affiliates, has

average gross annual revenues that are

not more than $40 million for the

preceding three calendar years. 47 CFR

21.961(b)(1).

This definition of a small entity in the

context of MDS auctions has been

approved by the SBA. The Commission

completed its MDS auction in March

1996 for authorizations in 493 basic

trading areas (‘‘BTAs’’). Of 67 winning

bidders, 61 qualified as small entities.

One of these small entities, O’ahu

Wireless Cable, Inc., was subsequently

acquired by GTE Media Ventures, Inc.,

which did not qualify as a small entity

for purposes of the MDS auction.

22. MDS also includes licensees of

stations authorized prior to the auction.

As noted, the SBA has developed a

definition of small entities for pay

television services, which includes all

such companies generating $11 million

or less in annual receipts. 13 CFR

121.201. This definition includes

multipoint distribution systems, and

thus applies to MDS licensees and

wireless cable operators that did not

participate in the MDS auction.

Information available to us indicates

that there are 832 of these licensees and

operators that do not generate revenue

in excess of $11 million annually.

Therefore, for purposes of the FRFA, we

find there are approximately 892 small

MDS providers as defined by the SBA

and the Commission’s auction rules.

23. The SBA definition of small

entities for pay television services,

which includes such companies

generating $11 million in annual

receipts, appears applicable to ITFS. 13

CFR 121.201. There are presently 2,032

ITFS licensees. All but 100 of these

licenses are held by educational

institutions. Educational institutions are

included in the definition of a small

business. SBREFA also applies to

nonprofit organizations and

governmental organizations such as

cities, counties, towns, townships,

villages, school districts, or special

districts, with populations of less than

50,000. 5 U.S.C. 601(5). However, we do

not collect annual revenue data for ITFS

licensees, and are not able to ascertain

how many of the 100 non-educational

licensees would be categorized as small

under the SBA definition. Thus, we

tentatively conclude that at least 1,932

licensees are small businesses.

24. Satellite Master Antenna

Television (‘‘SMATV’’) Systems. The

SBA definition of small entities for

cable and other pay television services

specifically includes SMATV services

and, thus, small entities are defined as

all such companies generating $11

million or less in annual receipts. 13

CFR 121.201. Industry sources estimate

that approximately 5,200 SMATV

operators were providing service as of

December 1995. Other estimates

indicate that SMATV operators serve

approximately 1.05 million residential

subscribers as of September 1996. The

ten largest SMATV operators together

pass 815,740 units. If we assume that

Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations 26761

these SMATV operators serve 50% of

the units passed, the ten largest SMATV

operators serve approximately 40% of

the total number of SMATV subscribers.

Because these operators are not rate

regulated, they are not required to file

financial data with the Commission.

Furthermore, we are not aware of any

privately published financial

information regarding these operators.

Based on the estimated number of

operators and the estimated number of

units served by the largest ten SMATVs,

we believe that a substantial number of

SMATV operators qualify as small

entities.

25. Direct Broadcast Satellite (‘‘DBS’’)

Service. The SBA includes DBS service

in its classification of cable and other

pay television services. Therefore, a

small DBS service is defined as a

company generating $11 million or less

in annual receipts. 13 CFR 121.201. As

of November 1999, there were four DBS

licensees, one of which was not in

operation. Providing DBS service

requires a great investment of capital to

build, launch, and operate satellite

systems. Typically, small businesses do

not have the financial ability to become

DBS licensees because of the high

implementation costs associated with

launching satellites. Most recent

industry statistics suggest that the

revenue attributed to DBS subscribers

for EchoStar was $682.8 million for the

year of 1998 and $1.55 billion for

DirecTV. We do not have similar

revenue information for the third

operating licensee, Dominion Video

Satellite, Inc. However, we do not

believe that any DBS licensees could be

categorized as a small business.

26. Home Satellite Dish (‘‘HSD’’)

Service. The market for HSD service is

difficult to quantify. HSD owners have

access to more than 500 channels of

programming placed on C-band

satellites by programmers for receipt

and distribution by MVPDs, of which

350 channels are scrambled and

approximately 150 channels are

unscrambled. To receive scrambled

channels, an HSD owner must purchase

an integrated receiver-decoder from an

equipment dealer and pay a

subscription fee to an HSD

programming packager. Thus, those

HSD users that subscribe to a

programming package are similar to

consumers that subscribe to cable and

other pay television services.

Accordingly, it appears that the

definition of small entity under SIC

4841 (i.e., all such companies generating

$11 million or less in annual receipts),

13 CFR 121.201, would be applicable to

this service.

27. According to the most recently

available information, there are

approximately 20 to 25 program

packagers nationwide offering packages

of scrambled programming to retail

consumers. As of June 1999, these

program packagers provide

subscriptions to approximately

1,783,411 subscribers nationwide. This

is an average of about 90,000 subscribers

per program packager. This is

substantially smaller than the 400,000

subscribers used in the Commission’s

definition of a small multiple system

operator (‘‘MSO’’). Furthermore,

because this is an average, it is likely

that some program packagers may be

substantially smaller.

28. Open Video System (‘‘OVS’’)

Service. As part of the

Telecommunications Act of 1996,

Congress established the OVS

framework for the delivery of

multichannel video programming

service. 47 U.S.C. 571. This new service

is similar to cable television and other

pay television services. Although OVS

is not specifically enumerated under

SIC 4841, it is appropriate to include

OVS in this classification and to apply

the SBA definition of small entity,

which includes all such companies

generating $11 million or less in annual

receipts, to OVS service. 13 CFR

121.201. The Commission has issued 37

certifications to operate OVS systems.

Of these 37 certifications, MFS has

withdrawn its two certifications for New

York City and Boston because it does

not intend to operate open video

systems in these areas and Bell Atlantic

shut down its Dover, New Jersey, system

in favor of its distribution agreement

with DirecTV. Of these 37 certifications,

only one OVS operator, RCN, is

providing service in various service

areas across the United States. Little

financial information is available for the

other entities authorized to provide OVS

that are not yet operational. We believe

that one OVS licensee may qualify as a

small business concern. Given that other

entities have been authorized to provide

OVS service but have not yet begun to

generate revenues, we conclude that at

least some of the OVS operators qualify

as small entities.

29. Small Broadcast Stations. The

SBA defines small television

broadcasting stations as television

broadcasting stations with $10.5 million

or less in annual receipts. 13 CFR

121.201, SIC 4833. Television

broadcasting stations consist of

establishments primarily engaged in

broadcasting visual programs by

television to the public, except cable

and other pay television services.

Included in this industry are

commercial, religious, educational, and

other television stations. Also included

are establishments primarily engaged in

television broadcasting and which

produce taped television program

materials.

30. There were 1,509 full-service

television stations operating in the

nation in 1992. That number has

remained fairly constant as indicated by

the approximately 1,616 operating fullservice television broadcasting stations

in the nation as of September 1999. For

1992, the number of television stations

that produced less than $10 million in

revenue was 1,155 establishments. The

amount of $10 million was used to

estimate the number of small business

establishments because the relevant

Census categories stopped at $9,999,999

and began at $10,000,000. No category

for $10.5 million existed. Thus, the

number is as accurate as it is possible

to calculate with the available

information. Thus, the rule will affect

approximately 1,616 television stations;

approximately 77%, or 1,244, of those

stations are considered small

businesses. We use the 77% figure of

television stations operating at less than

$10 million for 1992 and apply it to the

1999 total of 1,616 television stations to

arrive at stations categorized as small

businesses. These estimates may

overstate the number of small entities

since the revenue figures on which they

are based do not include or aggregate

revenues from non-television affiliated

companies.

D. Description of Projected Reporting,

Recordkeeping, and Other Compliance

Requirements

31. This Second Report and Order

does not adopt any required reporting or

recordkeeping. However, when a video

programming distributor is notified by

the Commission that a complaint

alleging violation of the rule has been

received, the distributor may submit

records, certifications, or other

documentation that demonstrate

compliance with the rule.

E. Steps Taken To Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

32. In the FNPRM, the Commission

sought information and comment

regarding the appropriate rules and

policies to promote and ensure the

accessibility of emergency information

to persons with hearing disabilities. We

requested comment on whether separate

transitional closed captioning

requirements are needed for emergency

information or whether there are other

methods of providing accessibility for

this type of programming.

26762 Federal Register / Vol. 65, No. 90 / Tuesday, May 9, 2000 / Rules and Regulations

33. In this Second Report and Order,

the Commission defines emergency

information and adopts a requirement

that video programming distributors

must make emergency information

accessible to persons with hearing

disabilities either through closed

captioning or by using a method of

visual presentation. Such methods

include, but are not limited to, open

captioning, crawls or scrolls. We

concluded that a rule requiring closed

captioning or a method of visual

presentations achieves the goal of

ensuring that the same critical

information about an emergency is

accessible to persons with hearing

disabilities as is available to other

viewers. The rule also provides

significant flexibility to the video

programming distributor by allowing it

to determine the most feasible and

affordable method for making such

information accessible. Therefore, the

rule will not impose an economic

burden on video programming

distributors, including small entities.

F. Report to Congress

34. The Commission will send a copy

of this Second Report and Order,

including this FRFA, in a report to

Congress pursuant to the Small Business

Regulatory Enforcement Fairness Act of

1996, 5 U.S.C. 801(a)(1)(A). A copy of

this Second Report and Order and FRFA

(or summary thereof) will also be

published in the Federal Register,

pursuant to 5 U.S.C.A. 604(b), and will

be sent to the Chief Counsel for

Advocacy of the Small Business

Administration.

Ordering Clauses

35. Pursuant to the authority

contained in sections 4(i), 303(r), and

713 of the Communications Act of 1934,

as amended, 47 U.S.C. 154(i), 303(r),

and 613, the Commission’s rules are

amended by adding a new § 79.2 as

shown in the rule changes. The

amendments set forth in the rule

changes shall become effective upon

approval from the Office of Management

and Budget.

36. The Commission’s Consumer

Information Bureau, Reference

Information Center, shall send a copy of

this Second 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 79

Closed captioning of video

programming.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons discussed in the

preamble, the Federal Communications

Commission amends 47 CFR part 79 as

follows:

PART 79—CLOSED CAPTIONING OF

VIDEO PROGRAMMING

1. The authority citation for Part 79

continues to read as follows:

Authority: 47 U.S.C. 613.

2. Add § 79.2 to read as follows:

§ 79.2 Accessibility of programming

providing emergency information.

(a) Definitions. (1) For purposes of

this section, the definitions in § 79.1

apply.

(2) Emergency information.

Information, about a current emergency,

that is intended to further the protection

of life, health, safety, and property, i.e.,

critical details regarding the emergency

and how to respond to the emergency.

Examples of the types of emergencies

covered include tornadoes, hurricanes,

floods, tidal waves, earthquakes, icing

conditions, heavy snows, widespread

fires, discharge of toxic gases,

widespread power failures, industrial

explosions, civil disorders, school

closings and changes in school bus

schedules resulting from such

conditions, and warnings and watches

of impending changes in weather.

Note to paragraph (a)(2): Critical details

include, but are not limited to, specific

details regarding the areas that will be

affected by the emergency, evacuation orders,

detailed descriptions of areas to be

evacuated, specific evacuation routes,

approved shelters or the way to take shelter

in one’s home, instructions on how to secure

personal property, road closures, and how to

obtain relief assistance.

(b) Requirements for accessibility of

programming providing emergency

information. (1) Video programming

distributors must make emergency

information, as defined in paragraph (a)

of this section, that is provided in the

audio portion of the programming

accessible to persons with hearing

disabilities, either through closed

captioning or by using a method of

visual presentation.

(2) This rule applies to emergency

information primarily intended for

distribution to an audience in the

geographic area in which the emergency

is occurring.

(3) Emergency information provided

by means other than closed captioning

should not block any closed captioning

and any closed captioning provided

should not block any emergency

information provided by means other

than closed captioning.

(c) Complaint procedures. A

complaint alleging a violation of this

section may be transmitted to the

Commission by any reasonable means,

such as letter, facsimile transmission,

telephone (voice/TRS/TTY), Internet email, audio-cassette recording, and

Braille, or some other method that

would best accommodate the

complainant’s disability. The complaint

should include the name of the video

programming distributor against whom

the complaint is alleged, the date and

time of the omission of emergency

information, and the type of emergency.

The Commission will notify the video

programming distributor of the

complaint, and the distributor will reply

to the complaint within 30 days.

[FR Doc. 00–11483 Filed 5–8–00; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE43

Endangered and Threatened Wildlife

and Plants; Final Determination of

Threatened Status for the Koala

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The Service determines

threatened status for the Australian

koala under the Endangered Species Act

(16 U.S.C. 1531 et seq.) as amended. The

eucalyptus forest and woodland

ecosystems on which this arboreal

marsupial depends have been greatly

reduced. Despite several conservation

actions by the Government of Australia

and State governments, the limited

koala habitat continues to deteriorate.

The species also is threatened by

fragmentation of the habitat that

remains, disease, loss of genetic

variation, and death by dogs and motor

vehicles due to development. Although

differences occur in the health status of

local populations, we are not able to

designate either the current subspecies

or the koalas of particular States as

distinct vertebrate population segments.

Koalas are no longer exploited for their

fur, and it is habitat loss and its

secondary effects that now threaten the

species. This rule extends the