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###### Federal Communications Commission

          - 47 CFR Part 25 
          - [IB Docket No. 00-99; FCC 00-186] 

# AGENCY:

Federal Communications Commission. 

# ACTION:

Proposed rule. 

# SUMMARY:

The Federal Communications Commission requests information and comment on whether users or service providers of telecommunications services have sufficient opportunity to access INTELSAT space segment capacity directly from INTELSAT to meet their service and capacity requirements. The Notice of Proposed Rulemaking also seeks comment on potential Commission action should it conclude that sufficient opportunity does not exist for users and service providers to access INTELSAT directly. 

# DATES:

Submit comments on or before June 23, 2000; submit reply comments on or before July 6, 2000; and submit responses to reply comments on July 11, 2000. 

# ADDRESSES:

                        Office of the Secretary, Federal Communications Commission, 445 Twelfth Street, SW, Washington, DC 20554. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.                         *See Electronic Filing of Documents in Rulemaking Proceedings,*63 FR 24121 (May 1, 1998). Comments filed through the ECFS can be sent as an electronic file via the Internet to                         *http://www.fcc.gov/​e-file/​ecfs.html.*                        Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption proceeding, however, commentors must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commentors should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commentors should send an e-mail to                         *ecfs@fcc.gov,*                        and should include the following words in the body of the message, “get form<your e-mail address>.” A sample form and directions will be sent in reply.                     

# FOR FURTHER INFORMATION CONTACT:

 

                        James Ball,  202-418-0427                               ( print page 35313)    

Michael McCoin,  202-418-0774 

Alexandria Field,  202-418-2064 

# SUPPLEMENTARY INFORMATION:

 

1. The Commission is required to conduct this rulemaking pursuant to the recently enacted Open-Market Reorganization for the Betterment of International Telecommunications Act (the ORBIT Act). Section 641(b) of the ORBIT Act requires the Commission to determine whether “sufficient opportunity” exists for users and service providers “to access INTELSAT space segment capacity directly from INTELSAT to meet their service and capacity requirements.” If the Commission finds that “sufficient opportunity” does not exist, the Commission is required to “take appropriate action to facilitate direct access,” and otherwise “to take such steps as may be necessary to prevent circumvention of the intent” of the section. Section 641(c) of the Act states that “nothing in this section shall be construed to permit the modification or abrogation of any contract.”

2. In 1999, the Commission permitted users and service providers in the United States to obtain Level 3 direct access to INTELSAT space segment capacity. Direct Access to the INTELSAT System (Report and Order), 64 FR 54561 (October 7, 1999), 14 FCC Rcd 15703 (1999). Level 3 access permits non-signatory users and service providers to enter into contractual agreements with INTELSAT for space segment capacity at the same rates that INTELSAT charges its Signatories. The subsequently enacted ORBIT Act mandates that users and providers of telecommunications services shall be permitted to obtain Level 3 direct access to INTELSAT and requires the Commission to conduct this rulemaking. 

3. The Notice requests comment on whether users and service providers have sufficient opportunity to access INTELSAT capacity directly to meet their service or capacity requirements. There are two parts to this issue: (1) The impact of INTELSAT's current distribution procedures on users and service providers seeking direct access, and (2) the availability of INTELSAT existing and planned space segment capacity to satisfy the needs of users and service providers. The Notice reviews INTELSAT's current distribution arrangements and tentatively concludes that these arrangements could disadvantage new direct access users in obtaining capacity. The Notice also seeks comment on the effect of post-privatization distribution arrangements on the ability of U.S. users and service providers to access INTELSAT directly. 

4. Additionally, the Notice identifies those existing and planned satellites capable of serving the United States. It requires Comsat Corporation, the U.S. Signatory to INTELSAT, to provide information both as to what capacity on these satellites is uncommitted and what capacity has been committed, either to Comsat or other Signatories under INTELSAT's current distribution arrangements. The Notice requests users and service providers to comment on whether uncommitted capacity on existing and planned satellites will give them sufficient opportunity to access INTELSAT directly to meet their service and capacity requirements. 

5. The Notice also requests comment on what alternatives exist for taking “appropriate action” if the Commission finds that “sufficient opportunity” does not exist for users and service providers to access INTELSAT directly. The Notice tentatively concludes that the first option for resolving capacity shortage problems should be commercial solutions between Comsat and users or service providers. The Notice further requests comment on regulatory actions that may be appropriate if commercial solutions appear unattainable. It requests comment on whether such actions may be necessary. Comsat has tied up future capacity on planned and yet-to-be launched satellites that is unique to the needs of a particular user or service provider because of operational requirements of its foreign correspondent or other operational, commercial, technical or economic considerations. The burden would be on the user or service provider to demonstrate that capacity is unique and regulatory action required. 

## Initial Regulatory Flexibility Analysis 

                    As required by the Regulatory Flexibility Act (RFA),[1]                                          the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (Notice). Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice provided in paragraphs 34 through 38. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 5 U.S.C. 603(a). In addition, the Notice and IRFA (or summaries thereof) will be published in the                     **Federal Register**                    .                 

## I. Need for, and Objectives of, the Proposed Rules 

The purpose of the Notice is to comply with the Orbit Act requirement that the Commission initiate a notice and comment proceeding to determine whether sufficient opportunity exists for users and service providers to access INTELSAT space segment capacity directly to meet their service or capacity requirements. If commentors believe that the proposals discussed in the Notice require additional RFA analysis, they should include a discussion of this in their comments. 

## II. Legal Basis 

                    The authority for the Notice is pursuant to the authority contained in sections 1, 4(i), 4(j), 201, 202, 214 and Title III and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 201, 202, 214, 301*et seq.*                     and 403, and sections 102(c), 201(c)(2), and c(11), of the Communications Satellite Act of 1962, as amended, 47 U.S.C. 721(c), 741(c)(12) and (11), section 641 of the Open-Market Reorganization for the Betterment of International Telecommunications Act, Public Law 106-180, 114 Stat. 48 (2000) 641, the applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, and 5 U.S.C. 553 of the Administrative Procedures Act.                

## III. Description and Estimate of the Number of Small Entities to Which Proposed Rule Will Apply 

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 proposed rules, if adopted. 5 U.S.C. 603(b)(3). The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization” and “small business concern” under Section 3 of the Small Business Act. A “small business concern” is one which is (1) independently owned and operated; (2) not dominant in its field of operation; (3) satisfies any additional criteria established by the Small Business Administration (“SBA”). 15 U.S.C. 632. 

                    The Commission has not developed a definition of small entities applicable to satellite service licensees. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (“SBA”) rules applicable to Communications Services                           ( print page 35314)                        “Not Elsewhere Classified.” This definition provides that a small entity is one with $11 million or less in annual receipts. 13 CFR 121.201, Standard Industrial Classification (SIC) Code 4899. According to the SBA, the Census Bureau estimates that there are approximately 631 entities providing communications services, not elsewhere classified. Of those, between 401 and 631 reported annual receipts of less than $9.999 million or less and would qualify as small entities subject to the proposed rules.[2]                                          More precise data is not available.                 

The proposed Notice requires Comsat Corporation (“Comsat”) to provide information concerning existing and future capacity in the INTELSAT system necessary for us to make the determination required by the ORBIT Act. The Commission also may seek information directly from INTELSAT if necessary and appropriate. Comsat's 1999 revenues were in excess of $11 million. Thus, Comsat does not qualify as a small entity under the SBA's definition. U.S. carriers and users, including any small entities, that may be affected indirectly, would likely benefit from the proposed action. 

## IV. Description of Projected Reporting, Recordkeeping or Other Compliance Requirements 

The proposals in the Notice are not expected to result in any additional reporting, recordkeeping and other compliance. 

## V. Steps Taken To Minimize Significant Economic Burden on Small Entities, and Significant Alternatives Considered 

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: (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. 

Without prejudgment as to whether it will determine that “sufficient opportunity” exists, the Commission is seeking comment on alternatives for “appropriate action” should it determine that sufficient opportunity does not exist for users and service providers to access INTELSAT directly. The Commission tentatively concludes that the first option for resolving this problem should be commercial solutions between Comsat and users and service providers. It also seeks comment on possible regulatory action should commercial negotiations fail to yield a solution. The intent of any regulatory action would be to permit users and service providers, including small entities, to benefit from the availability of direct access to INTELSAT space segment capacity to meet service or capacity requirements. We do not expect the proposals to cause any economic burden to small entities, and seek comment on any issues pertinent to this. 

## VI. Federal Rules That Overlap, Duplicate, or Conflict With These Proposed Rules 

None. 

# List of Subjects in 47 CFR Part 25

      - Satellites

Federal Communications Commission. 

Magalie Roman Salas,

Secretary. 

# Footnotes

1.                             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. 104-121, 110 Stat. 847 (1996) (“CWAAA”). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”).                    
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2.                             U.S. Bureau of the Census, U.S. Department of Commerce, 1992 Census of Transportation, Communications, and utilities, UC92-S-1, Subject Series, Establishment and Firm Size, Table D, Employment size of Firms: 1992, SIC Code 4899 (May 1995).                     
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[FR Doc. 00-13759 Filed 6-1-00; 8:45 am] 

BILLING CODE 6712-01-P