Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41603

number OPP–301007, to: Public

Information and Records Integrity

Branch, Information Resources and

Services Division (7502C), Office of

Pesticide Programs, Environmental

Protection Agency, 1200 Pennsylvania

Ave., NW., Washington, DC 20460. In

person or by courier, bring a copy to the

location of the PIRIB described in Unit

I.B.2. You may also send an electronic

copy of your request via e-mail to: oppdocket@epa.gov. Please use an ASCII

file format and avoid the use of special

characters and any form of encryption.

Copies of electronic objections and

hearing requests will also be accepted

on disks in WordPerfect 6.1/8.0 file

format or ASCII file format. Do not

include any CBI in your electronic copy.

You may also submit an electronic copy

of your request at many Federal

Depository Libraries.

B. When Will the Agency Grant a

Request for a Hearing?

A request for a hearing will be granted

if the Administrator determines that the

material submitted shows the following:

There is a genuine and substantial issue

of fact; there is a reasonable possibility

that available evidence identified by the

requestor would, if established resolve

one or more of such issues in favor of

the requestor, taking into account

uncontested claims or facts to the

contrary; and resolution of the factual

issues(s) in the manner sought by the

requestor would be adequate to justify

the action requested (40 CFR 178.32).

IV. Regulatory Assessment

Requirements

This final rule extends a time-limited

tolerance under FFDCA section 408.

The Office of Management and Budget

(OMB) has exempted these types of

actions from review under Executive

Order 12866, entitled Regulatory

Planning and Review (58 FR 51735,

October 4, 1993). This final rule does

not contain any information collections

subject to OMB approval under the

Paperwork Reduction Act (PRA), 44

U.S.C. 3501 et seq., or impose any

enforceable duty or contain any

unfunded mandate as described under

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA) (Public

Law 104–4). Nor does it require any

prior consultation as specified by

Executive Order 13084, entitled

Consultation and Coordination with

Indian Tribal Governments (63 FR

27655, May 19, 1998); special

considerations as required by Executive

Order 12898, entitled Federal Actions to

Address Environmental Justice in

Minority Populations and Low-Income

Populations (59 FR 7629, February 16,

1994); or require OMB review or any

Agency action under Executive Order

13045, entitled Protection of Children

from Environmental Health Risks and

Safety Risks (62 FR 19885, April 23,

1997). This action does not involve any

technical standards that would require

Agency consideration of voluntary

consensus standards pursuant to 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). Since

tolerances and exemptions that are

established on the basis of a FIFRA

section 18 petition under FFDCA

section 408, such as the tolerance in this

final rule, do not require the issuance of

a proposed rule, the requirements of the

Regulatory Flexibility Act (RFA) (5

U.S.C. 601 et seq.) do not apply. In

addition, the Agency has determined

that this action will not have a

substantial direct effect on States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132, entitled

Federalism (64 FR 43255, August 10,

1999). Executive Order 13132 requires

EPA to develop an accountable process

to ensure ‘‘meaningful and timely input

by State and local officials in the

development of regulatory policies that

have federalism implications.’’ ‘‘Policies

that have federalism implications’’ is

defined in the Executive Order to

include regulations that have

‘‘substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government.’’ This final rule

directly regulates growers, food

processors, food handlers and food

retailers, not States. This action does not

alter the relationships or distribution of

power and responsibilities established

by Congress in the preemption

provisions of FFDCA section 408(n)(4).

V. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of this final

rule in the Federal Register. This final

rule is not a ‘‘major rule’’ as defined by

5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

Environmental protection,

Administrative practice and procedure,

Agricultural commodities, Pesticides

and pests, Reporting and recordkeeping

requirements.

Dated: June 2, 2000.

Peter Caulkins,

Acting Director, Registration Division, Office

of Pesticide Programs.

Therefore, 40 CFR chapter I is

amended as follows:

PART 180–[AMENDED]

1. The authority citation for part 180

continues to read as follows:

Authority: 21 U.S.C. 321(q), 346(a)

and 371.

§ 180.516 [Amended]

2. In § 180.516, amend the table in

paragraph (b) by changing the date ‘‘5/

31/00’’ to read ‘‘5/31/01’’.

[FR Doc. 00–17075 Filed 7–5–00; 8:45 am]

BILLING CODE 6560–50–F

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 101

[CC Docket No. 92–97; FCC 00–223]

Removal of LMDS Eligibility

Restriction

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document allows to

sunset as of June 30, 2000, the Local

Multipoint Distribution Service (LMDS)

eligibility restriction. That restriction

prohibits incumbent local exchange

carriers and cable companies from

having an attributable interest in the

LMDS A block license that overlaps

with ten percent or more of the

population in their service areas. The

action is taken to complete the

Commission’s review of this restriction.

EFFECTIVE DATE: Effective June 30, 2000.

FOR FURTHER INFORMATION CONTACT:

Peter Wolfe, 202–418–1310.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Third

Report and Order and Memorandum

Opinion and Order (Third R&O/MO&O)

in CC Docket No. 92–97; FCC 00–00–

223, adopted June 20, 2000, and

41604 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations

released June 27, 2000. The complete

text of this Third R&O/MO&O is

available for inspection and copying

during normal business hours in the

FCC Reference Information Center,

Courtyard Level, 445 12th Street, S.W.,

Washington, DC, and also may be

purchased from the Commission’s copy

contractor, International Transcription

Services (ITS, Inc.), CY–B400, 445 12th

Street, S.W., Washington, DC.

Synopsis of the Third R&O/MO&O

1. This Third R&O/MO&O completes

the Commission’s review of the Local

Multipoint Distribution Service (LMDS)

eligibility restriction, which prohibits

incumbent local exchange carriers

(LECs) and cable companies from

having an attributable interest in the

LMDS A block license that overlaps

with ten percent or more of the

population in their service area. As a

result of that review, the Commission

allows the scheduled sunset of that

restriction to occur as of June 30, 2000.

The eligibility restriction was adopted

in the Second Report and Order in this

proceeding (62 FR 23148, April 29,

1997), subject to an expiration date of

June 30, 2000. The Commission, in

adopting the restriction, noted that it

would undertake a review of the

restriction prior to its sunset. (47 CFR

101.1003(a).)

2. In adopting the LMDS eligibility

restriction, the Commission considered

four factors. First, that LMDS was a

likely vehicle for the provision of local

telephony, multi-channel video

distribution (MVPD) service, or both.

Second, the Commission found that the

incumbent local exchange carriers

(LECs) and incumbent cable companies

were dominant in their respective

markets, would have a strong incentive

to obtain an LMDS license in order to

prevent a new entrant from obtaining

the license and competing directly in

the incumbent’s current market, and

would have no incentive to use the

LMDS spectrum to offer services that

would compete with their own services.

Third, the Commission determined that

a short-term eligibility restriction, with

an opportunity for review, would be the

best means to increase competition in

the local and telephony and MVPD

markets, in light of the Commission’s

belief that there would be sufficient

entity and increases in competition to

permit sunset within three years.

Fourth, the Commission found that

efficiencies arising from ownership of

an LMDS system by an incumbent LEC

or incumbent cable provider had not

been shown.

3. As a result of its review, the

Commission first concludes that the

standard for determining whether to

sunset the eligibility restriction should

be whether open eligibility poses a

significant likelihood of substantial

competitive harm in specific markets,

and, if so, whether eligibility

restrictions are an effective way to

address that harm. The Commission

determines that the record does not

support a conclusion that open

eligibility poses such a significant threat

of substantial competitive harm in

specific markets; indeed, open

eligibility may improve the availability

of services, especially in rural areas.

4. The Commission, as discussed

more fully in the complete text of the

Third R&O/MO&O, therefore finds that

the LMDS eligibility restriction should

be allowed to sunset because open

eligibility (1) will not pose a significant

likelihood of substantial competitive

harm in any market; (2) is likely to

provide access to additional capital to

fully develop LMDS; (3) will treat LMDS

similarly to substitutable spectrum; and

(4) should help make services more

available in rural areas.

Administrative Matters

Final Regulatory Flexibility Analysis

5. This is a summary of the Final

Regulatory Flexibility Analysis. The full

Final Regulatory Flexibility Analysis

may be found at Appendix D of the

complete Third Report and Order and

Memorandum Opinion and Order.

6. In order to ensure compliance with

the requirements contained in the

Regulatory Flexibility Act (RFA) and to

alert all affected entities of the

repercussions of the Commission’s

action, an Initial Regulatory Flexibility

Analysis (IRFA) was incorporated in

Appendix B of the Sixth Notice of

Proposed Rulemaking (Sixth NPRM), 64

FR 71373, December 21, 1999, in this

proceeding. Additionally, a Final

Regulatory Flexibility Analysis was

included in Appendix D of the Second

Report and Order in this proceeding.

The Commission sought written public

comment on the proposals in the Fifth

NPRM (62 FR 16514, April 7, 1997),

including comment on the IRFA. The

present Final Regulatory Flexibility

Analysis (FRFA), contained in the Third

Report and Order and Memorandum

Opinion and Order (Third R&O),

conforms to the RFA.

Need for, and Objectives, of the Third

R&O

7. The Commission allows to sunset

the Local Multipoint Distribution

Service (LMDS) eligibility restriction

which prohibits incumbent local

exchange carriers (ILECs) and cable

companies from having an attributable

interest in the LMDS A-block license

that overlaps with ten percent or more

of the population in their service areas.

This restriction was initially imposed

because of concern the ILECs and the

cable companies would use LMDS

spectrum to eliminate the threat of

competitive entry in the local exchange

telephone and cable markets, in which

they are dominant. The Third R&O finds

that the LMDS A-block eligibility

restriction is no longer necessary to

protect LMDS as a source of competition

with ILECs and incumbent cable

companies, and that the benefits of

removing the restriction outweigh any

benefits of retaining the restriction.

Summary of Significant Issues Raised

By Public Comments in Response to the

IRFA or the FRFA

8. The central issue in this proceeding

is the continued need for the eligibility

restriction. The restriction was adopted

subject to an expiration date of June 30,

2000. The expiration date, like the other

issues in this proceeding, was the result

of notice and comment procedures. The

Commission received fourteen

comments and eight reply comments in

response to the Sixth NPRM.

9. No comments were received

directly regarding the IRFA or the FRFA

contained in the Second R&O. The Sixth

NPRM sought comment on whether the

standard for determining whether the

restriction is extended should be that

the incumbent LECs or cable companies

continue to have substantial market

power in the provision of local

telephone or cable television services, or

if a different standard should be used.

As discussed in paragraphs 6–7 of the

Third R&O, the Sixth NPRM also

suggested two alternative standards.

Although most of the commenters

support allowing the eligibility rule to

sunset, those who comment on the

standard are somewhat divided. Several

commenters argue in favor of using the

market dominance standard to decide

whether the eligibility should sunset.

10. The Commission agrees with the

majority of parties who comment on the

standard issue, and either urge the

Commission to adopt the 39 GHz

standard or at least to reject the

‘‘substantial market power’’ standard.

Therefore, the Commission adopts the

39 GHz standard. In paragraphs 8–9 of

the Third R&O, the Commission details

the rationale for selecting the 39 GHz

test as the appropriate standard to apply

in determining whether the LMDS

restriction should sunset.

11. The Sixth NPRM asked what

services are likely to be provided on

LMDS. The Commission agrees with the

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41605

majority of commenters on this issue

who contend that the LMDS A block

licensees provide or are expected to

provide broadband services, instead of

local telephone or cable services.

Because the Commission believes that

the LMDS A block is not being used to

provide services which are primarily

local exchange or multi-channel video

distribution (MVPD), the Third R&O

concludes that it is unlikely that the

possible use of LMDS spectrum by

incumbents will result in the blocking

of entry into those services, and thus

allows the restriction to lapse.

Commenters also generally contend that

the broadband market is robust and

competitive, and that incumbent cable

companies and incumbent LECs could

not use LMDS spectrum to dominate the

broadband market. The Commission

finds that an increasing number of

broadband firms and technologies are

providing growing competition to

incumbent LECs and cable companies,

apparently limiting the threat that they

will be able to preclude competition in

the provision of broadband services.

The Commission also finds no evidence

that the incumbent LECs or incumbent

cable companies have the incentive to

warehouse LMDS licenses in order to

protect their control of these markets

from competition. These issues are

discussed at paragraphs 14—21 in the

Third R&O.

12. Although the majority of

commenters favor the sunset of LMDS

eligibility restrictions, some

commenters argue that it is premature to

terminate the restriction because the

first LMDS products are just becoming

available in the United States.

Paragraphs 23–33 in the Third R&O

explain the Commission’s rationale for

rejecting this contention. Briefly, the

Third R&O sunsets the LMDS eligibility

restriction because open eligibility (1)

will not pose a significant likelihood of

substantial competitive harm in any

market; (2) is likely to provide access to

additional capital to fully develop

LMDS; (3) will treat LMDS similarly to

substitutable spectrum; and (4) should

help make services more available in

rural areas. Paragraphs 14–21of the

Third R&O find that the record does not

support a conclusion that open

eligibility poses a significant threat of

substantial competitive harm in specific

markets, LEC or MVPD, or that

eligibility restrictions are an effective

way of addressing potential competitive

harm. Paragraph 24 of the Third R&O

discusses how removal of the restriction

may result in access to capital resources

to more fully develop LMDS. Paragraphs

26 and 27 detail why LMDS should be

treated no differently from other

substitutable spectrum.

13. Paragraphs 28–29 discuss

allegations by rural commenters that the

LMDS in-region eligibility restriction

imposes several disadvantages on small,

rural telecommunications carriers. The

Third R&O, while recognizing that the

eligibility restriction was initially

imposed on rural markets because the

Commission believed that it could

stimulate competition to LEC’s in these

markets, now finds that this has not

occurred, and that allowing the

eligibility restriction to sunset will

remove possible impediments to small

and rural carrier LMDS deployment.

The negative effects of the eligibility

restriction on small and rural entities

and consumers, are discussed more

fully in paragraphs 28–32 of the Third

R&O.

Description and Estimate of the Number

of Small Entities to Which Rules Will

Apply

14. 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. The RFA

generally defines the term ‘‘small

entity’’ as having the same meaning as

the terms ‘‘small business,’’ ‘‘small

organization,’’ and ‘‘small governmental

jurisdiction.’’ In addition, the term

‘‘small business’’ has the same meaning

as the term ‘‘small business concern’’

under the Small Business Act. A small

business concern is one which: (1) Is

independently owned and operated; (2)

is not dominant in its field of operation;

and (3) satisfies any additional criteria

established by the Small Business

Administration (SBA). A small

organization is generally ‘‘any not-forprofit enterprise which is independently

owned and operated and is not

dominant in its field.’’ Nationwide, as of

1992, there were approximately 275,801

small organizations.

Common Carrier Services and Related

Entities. According to data in the most

recent Commission Carrier Locator

Interstate Service Providers report, there

are 3,528 interstate carriers, including

inter alia, local exchange carriers,

wireline carriers and service providers,

interexchange carriers, competitive

access providers, operator service

providers, pay telephone operators,

providers of telephone toll service,

providers of telephone exchange

service, and resellers.

The SBA has defined establishments

engaged in providing ‘‘Radiotelephone

Communications’’ and ‘‘Telephone

Communications, Except

Radiotelephone’’ to be small businesses

when they have no more than 1,500

employees. The Commission discusses

the total estimated number of telephone

companies falling within the two

categories and the number of small

businesses in each, and then attempts to

refine further those estimates to

correspond with the categories of

telephone companies that are commonly

used under the rules.

The Commission includes small

incumbent LECs in this present RFA

analysis. The SBA’s Office of Advocacy

contends that, for RFA purposes, small

incumbent LECs are not dominant in

their field of operation because any such

dominance is not ‘‘national’’ in scope.

Total Number of Telephone

Companies Affected. The U.S. Bureau of

the Census (Census Bureau) reports that,

at the end of 1992, there were 3,497

firms engaged in providing telephone

services, as defined therein, for at least

one year. This number contains a

variety of different categories of carriers,

including local exchange carriers,

interexchange carriers, competitive

access providers, cellular carriers,

mobile service carriers, operator service

providers, pay telephone operators,

covered specialized mobile radio

providers, and resellers. The

Commission finds it reasonable to

conclude that fewer than 3,497

telephone service firms are small entity

telephone service firms or small ILECs

that may be affected by the action taken

in this Third R&O.

Wireline Carriers and Service

Providers. The SBA has developed a

definition of small entities for telephone

communications companies except

radiotelephone (wireless) companies.

The Census Bureau reports that there

were 2,321 such telephone companies

in operation for at least one year at the

end of 1992. According to the SBA’s

definition, a small business telephone

company other than a radiotelephone

company is one employing no more

than 1,500 persons. All but 26 of the

2,321 non-radiotelephone companies

listed by the Census Bureau were

reported to have fewer than 1,000

employees. Thus, even if all 26 of those

companies had more than 1,500

employees, there would still be 2,295

non-radiotelephone companies that

might qualify as small entities or small

ILECs. The Commission is unable at this

time to estimate with greater precision

the number of wireline carriers and

service providers that would qualify as

small business concerns under the

SBA’s definition. Consequently, the

Commission estimates that fewer than

2,295 small telephone communications

companies other than radiotelephone

companies are small entities or small

41606 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations

ILECs that may be affected by the

actions taken in this Third R&O.

Local Exchange Carriers, Competitive

Access Providers, Competitive Local

Exchange Carriers. Neither the

Commission nor the SBA has developed

a definition for small providers of local

exchange service, competitive access

providers, or competitive local exchange

carriers. The closest applicable

definition under the SBA rules is for

telephone communications companies

other than radiotelephone (wireless)

companies. According to the most

recent telecommunications industry

revenue data, 1,348 carriers reported

that they were engaged in the provision

of incumbent local exchange services,

and 212 carriers reported that they were

providing competitive access or

competitive local exchange services.

The Commission is unable at this time

to estimate with greater precision the

number of LECs that would qualify as

small business concerns under the

SBA’s definition. Consequently, the

Commission estimates that fewer than

1,560 providers of local exchange

service, or of competitive access or

competitive local exchange services are

small entities or small entities that may

be affected by the actions taken in this

Third R&O.

A-Block LMDS Providers. The total

number of A-block LMDS licenses is

limited to 493, one for each Basic

Trading Area. The Commission has held

auctions for all 493 licenses, in which

it defined ‘‘very small business’’

(average gross revenues for the three

preceding years of not more than $15

million), ‘‘small business’’ (more than

$15 million but not more than $40

million), and ‘‘entrepreneur’’ (more than

$40 but not more than $75 million)

bidders. There have been 99 winning

bidders that qualified in these categories

in these auctions all of which may be

affected by the actions taken in this

Third R&O

Cable Services or Systems. The SBA

has developed a definition of small

entities for cable and other pay

television services, which includes all

such companies generating $11 million

or less in revenue annually. 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 data from 1992, there were 1,788

total cable and other pay television

services and 1,423 had less than $11

million in revenue.

The Commission has developed its

own definition of a small cable system

operator for the purposes of rate

regulation. Under the Commission’s

rules, a ‘‘small cable company’’ is one

serving fewer than 400,000 subscribers

nationwide. Based on its most recent

information, the Commission estimates

that there were 1,439 cable operators

that qualified as small cable system

operators at the end of 1995, and that

there are currently fewer than 1,439

small entity cable system operators.

The Communications Act also

contains a definition of a small cable

system 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.’’ The Commission has

determined that there are 66 million

subscribers in the United States.

Therefore, the Commission found that

an operator serving fewer than 660,000

subscribers shall be 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.

Based on available data, the

Commission finds that the number of

cable operators serving 660,000

subscribers or less totals 1,450. The

Commission does not request or collect

information concerning whether cable

system operators are affiliated with

entities whose gross annual revenues

exceed $250 million, and thus 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.

It should be further noted that recent

industry estimates project that there will

be a total of 66 million subscribers.

Description of Projected Reporting,

Recordkeeping, and Other Compliance

Requirements

The actions taken in the Third R&O

entail no new or revised reporting,

recordkeeping or other compliance

requirements.

Steps Taken To Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

Although the Commission LMDS

eligibility restriction was initially

intended to stimulate competition

between all sorts of entities, including

small entities, only two of the 19

comments that were filed ask that the

restriction be retained. The restriction

was adopted with a June 30, 2000,

sunset date to allow sufficient time for

the Commission to conduct a thorough

review of the effectiveness of the

restriction. The Commission first adopts

the 39 GHz approach to determine if the

restriction should be extended. Two

other alternative standards exist. The

first alternative allows that the

incumbent LECs or cable companies

continue to have substantial market

power in the provision of local

telephone or cable television services.

Two commenters urge the Commission

to retain the restriction using the market

dominance standard and arguing that

LECs and cable companies remain

dominant in their respective markets.

As discussed in paragraphs 10–11 of the

Third R&O, the Commission rejects

continued use of the market power

standard, because the substantial market

power test does not address whether the

incumbents are able to preclude

competition in other markets which

LMDS licensees wish to enter. No

comments were submitted in support of

the second option that would provide

that the incumbent companies possess

the incentive and ability to purchase the

LMDS block to prevent entry of a

competitor.

Thus, the Commission, in the Third

R&O concludes that the 39 GHz test is

the appropriate standard to apply in

determining whether the LMDS

eligibility should sunset. The 39 GHz

test is a more discerning standard than

the standard market power test in that

it not only considers the broadest set of

market facts and circumstances, but it

also will allow the Commission to focus

on the issues it needs to decide—

whether the incumbents are likely to

use their market power to cause

substantial competitive harm by

preventing the use of LMDS spectrum

for services that would otherwise be

provided by LMDS licensees, and

whether the restrictions will prevent

such actions. Paragraphs 8–9 of the

Third R&O present a complete

discussion of the benefits of the 39 GHz

standard.

Finally, as discussed in paragraphs

22–33 of the Third R&O, the

Commission has considered the benefits

of allowing the eligibility restriction to

expire as opposed to the benefits of

extending it, and determines, with the

support of the large majority of

commenters, that allowing the

restriction to sunset offers the most

benefit to the most parties. Small

businesses in particular stand to benefit

from removal of the eligibility

restriction. Paragraphs 28–32 of the

Third MO&O, for example, discuss the

effect of the LMDS eligibility restriction

on small and rural carrier LMDS

deployment, finding that the restriction

causes undue hardship for rural carriers,

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41607

of which many are small entities,

possibly in violation of the

Telecommunications Act of 1996.

Commenters who argue against

retaining the restriction contend that

application of the restriction to rural

telephone companies imposes

significant economic and social costs,

that communities served by rural ILEC’s

are often not sufficiently lucrative

markets to attract other providers, that

competitive concerns are not applicable

in a rural market, and that rural carriers

lack the resources to warehouse

spectrum. For these reasons, the

Commission believes that small

businesses will benefit from allowing

the LMDS eligibility restriction to

sunset rather than to retain the

restriction.

Report to Congress: The Commission

will send a copy of this Third Report

and Order and Memorandum Opinion

and Order, including this FRFA, in a

report to be sent to Congress pursuant

to the Small Business Regulatory

Enforcement Fairness Act of 1996, 5

U.S.C. 801(a)(1)(A). In addition, the

Commission will send a copy of the

Third Report and Order and

Memorandum Opinion and Order and

this FRFA to the Chief Counsel for

Advocacy of the Small Business

Administration.

Ordering Clauses

It is ordered, that 47 CFR 101.1003 is

removed. This modification shall

become effective on June 30, 2000. (This

rule modification may become effective

on less than 30 days’ notice because it

relieves a restriction. See 5 U.S.C.

553((d))((1). Moreover, the Commission

finds good cause to make this

modification effective on less than 30

days’ notice because the restriction in

the previous rule terminates on June 30,

2000. See 5 U.S.C. 553(d)(3).)

The Commission’s Office of Public

Affairs, Reference Operations Division,

shall send a copy of this MO&O and

FNPRM, including the Initial Regulatory

Flexibility Analysis, to the Chief

Counsel for Advocacy of the Small

Business Administration in accordance

with section 603(a) of the Regulatory

Flexibility Act of 1980, Public Law 96–

354, 94 Stat. 1164, 5 U.S.C. 601–612

(1980).

List of Subjects in 47 CFR Part 101

Communications, Local multipoint

distribution service.

Federal Communications

Commission.

Magalie Roman Salas,

Secretary.

Rule Change

Accordingly, 47 CFR part 101 is

amended as follows:

PART 101—FIXED MICROWAVE

SERVICES

1. The authority citation for Part 101

continues to read as follows:

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

2. § 101.1003 [Removed]

Remove § 101.1003.

[FR Doc. 00–17028 Filed 7–5–00; 8:45 am]

BILLING CODE 6712–01–P