Federal Register / Vol. 72, No. 40 / Thursday, March 1, 2007 / Proposed Rules 9289 

implemented a CAA program to attain 

the 8-hour ozone NAAQS at this time or 

has participated in a compact. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

and Safety Risks’’ (62 FR 19885, April 

23, 1997) applies to any rule that (1) is 

determined to be ‘‘economically 

significant’’ as defined under E.O. 

12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

The EPA interprets E.O. 13045 as 

applying only to those regulatory 

actions that are based on health or safety 

risks, such that the analysis required 

under section 5–501 of the Order has 

the potential to influence the regulation. 

This proposed rule is not subject to 

E.O. 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to E.O. 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355; May 

22, 2001 because it is not a significant 

regulatory action under E.O. 12866. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (NTTAA), Public Law No. 104–

113, section 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards (VCS) 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 VCS bodies. The NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable VCS. 

This proposed rule does not involve 

technical standards. Therefore, EPA is 

not considering the use of any VCS. The 

EPA will encourage States that have 

compact areas to consider the use of 

such standards, where appropriate, in 

the development of their SIPs. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629; 

Feb. 16, 1994 establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. 

The health and environmental risks 

associated with ozone were considered 

in the establishment of the 8-hour, 0.08 

ppm ozone NAAQS. The level is 

designed to be protective with an 

adequate margin of safety. 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control. 

Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 

42 U.S.C. 7501–7511f; 42 U.S.C. 7601(a)(1). 

Dated: February 23, 2007. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. E7–3584 Filed 2–28–07; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 07–29; FCC 07–7] 

Implementation of the Cable Television 

Consumer Protection and Competition 

Act of 1992 Development of 

Competition and Diversity in Video 

Programming Distribution: Section 

628(c)(5) of the Communications Act: 

Sunset of Exclusive Contract 

Prohibition 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission initiates a review to 

determine whether the prohibition on 

exclusive programming contracts 

continues to be necessary to preserve 

and protect competition and diversity in 

the distribution of video programming. 

Previously, the Commission retained for 

five years, until October 5, 2007, the 

prohibition on exclusive contracts. The 

Commission provided that, during the 

year before the expiration of the current 

5-year extension on October 5, 2007, a 

review would be undertaken to 

determine whether or not the 

exclusivity prohibition should sunset. 

The Commission also seeks comment on 

whether and how our procedures for 

resolving program access disputes under 

Section 628 should be modified. 

DATES: Comments for this proceeding 

are due on or before April 2, 2007; reply 

comments are due on or before April 16, 

2007. 

ADDRESSES: You may submit comments, 

identified by MB Docket No. 07–29, by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web Site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• People With Disabilities: Contact 

the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202–

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact Karen Kosar, 

Karen.Kosar@fcc.gov of the Media 

Bureau, Policy Division, (202) 418–

2120. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s NPRM of 

Proposed Rulemaking, FCC 07–7, 

adopted on February 7, 2007, and 

released on February 20, 2007. The full 

text of this document is available for 

public inspection and copying during 

regular business hours in the FCC 

Reference Center, Federal 

Communications Commission, 445 12th 

Street, SW., CY–A257, Washington, DC 

20554. These documents will also be 

available via ECFS (http://www.fcc.gov/ 

cgb/ecfs/). (Documents will be available 

electronically in ASCII, Word 97, and/ 


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or Adobe Acrobat.) The complete text 

may be purchased from the 

Commission’s copy contractor, 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Initial Paperwork Reduction Act of 

1995 Analysis 

This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104–

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ‘‘for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Summary of the NPRM of Proposed 

Rulemaking 

I. Introduction 

1. We issue this NPRM of Proposed 

Rulemaking (‘‘NPRM’’) pursuant to 

Section 628(c)(5) of the 

Communications Act of 1934, as 

amended (‘‘Communications Act’’) and 

Section 76.1002(c)(6) of the 

Commission’s rules. In areas served by 

a cable operator, Section 628(c)(2)(D) 

generally prohibits exclusive contracts 

for satellite cable programming or 

satellite broadcast programming 

between vertically integrated 

programming vendors and cable 

operators. Section 628(c)(5) directed 

that this prohibition on exclusive 

programming contracts would cease to 

be effective on October 5, 2002, unless 

the Commission found that such 

prohibition ‘‘continues to be necessary 

to preserve and protect competition and 

diversity in the distribution of video 

programming.’’ In a proceeding 

commenced prior to the sunset date 

specified by Congress, the Commission 

examined whether the prohibition 

should sunset or be extended; see 

Implementation of the Cable Television 

Consumer Protection and Competition 

Act of 1992—Development of 

Competition and Diversity in Video 

Programming Distribution: Section 

628(c)(5) of the Communications Act: 

Sunset of Exclusive Contract 

Prohibition, 66 FR 54972–02 (2001) 

(‘‘NPRM’’). The Commission concluded 

that the prohibition remained necessary 

to preserve and protect competition and 

diversity in the distribution of video 

programming and extended the term of 

the prohibition on exclusive contracts 

between cable operators and vertically 

integrated programmers for five years 

(i.e., through October 5, 2007); see 

Implementation of the Cable Television 

Consumer Protection and Competition 

Act of 1992—Development of 

Competition and Diversity in Video 

Programming Distribution: Section 

628(c)(5) of the Communications Act: 

Sunset of Exclusive Contract 

Prohibition, 67 FR 49247–01 (2002) 

(‘‘Sunset Report and Order’’). The 

Commission provided that, during the 

year before the expiration of the 5-year 

term, a review would again be 

undertaken to determine whether the 

exclusivity prohibition continues to be 

necessary to preserve and protect 

competition and diversity in the 

distribution of video programming. This 

NPRM initiates that review. Further, this 

NPRM also seeks comment on whether 

and how our procedures for resolving 

program access disputes under Section 

628 should be modified. 

II. Background 

2. The focus of Congress in enacting 

the program access provisions, adopted 

as part of the Cable Television 

Consumer Protection and Competition 

Act of 1992 (‘‘1992 Cable Act’’), was to 

encourage entry into the multichannel 

video programming distribution 

(‘‘MVPD’’) market by existing or 

potential competitors to traditional 

cable systems by making available to 

those entities the programming 

necessary to enable them to become 

viable competitors. The 1992 Cable Act 

and its legislative history reflect 

congressional findings that increased 

horizontal concentration of cable 

operators, combined with extensive 

vertical integration, created an 

imbalance of power, both between cable 

operators and program vendors and 

between incumbent cable operators and 

their multichannel competitors. Vertical 

integration means the combined 

ownership of cable systems and 

suppliers of cable programming. 

Congress concluded at that time that 

vertically integrated program suppliers 

had the incentive and ability to favor 

their affiliated cable operators over 

other multichannel program 

distributors, such as other cable 

systems, home satellite dish (‘‘HSD’’) 

distributors, direct broadcast satellite 

(‘‘DBS’’) providers, satellite master 

antenna television (‘‘SMATV’’) systems, 

and wireless cable operators; see 

Implementation of Sections 12 and 19 of 

the Cable Television Consumer 

Protection and Competition Act of 1992: 

Development of Competition and 

Diversity in Video Programming 

Distribution and Carriage, 58 FR 27658–

02 (1993) (‘‘First Report and Order’’), 

recon., 59 FR 66255–01 (1994), further 

recon., 60 FR 3099–01 (1994); see 47 

U.S.C. 522(13) (‘‘multichannel video 

programming distributor’’ means ‘‘a 

person such as, but not limited to, a 

cable operator, a multichannel 

multipoint distribution service, a direct 

broadcast satellite service, or a 

television receive-only satellite program 

distributor, who makes available for 

purchase, by subscribers or customers, 

multiple channels of video 

programming’’). 

3. When the Commission promulgated 

regulations implementing the program 

access provisions of Section 628, it 

recognized that Congress placed a 

higher value on new competitive entry 

into the MVPD marketplace than on the 

continuation of exclusive distribution 

practices when such practices impede 

this entry. Congress absolutely 

prohibited exclusive contracts for 

satellite cable programming or satellite 

broadcast programming between 

vertically integrated programming 

vendors and cable operators in areas 

unserved by cable, and generally 

prohibited exclusive contracts within 

areas served by cable. The term 

‘‘satellite cable programming’’ means 

video programming which is 

transmitted via satellite and which is 

primarily intended for direct receipt by 

cable operators for their retransmission 

to cable subscribers, except that such 

term does not include satellite broadcast 

programming. The term ‘‘satellite 

broadcast programming’’ means 

broadcast video programming when 

such programming is retransmitted by 

satellite and the entity retransmitting 

such programming is not the 

broadcaster or an entity performing such 

retransmission on behalf of and with the 

specific consent of the broadcaster. 

Specifically, the prohibition with regard 

to served areas, Section 628(c)(2)(D), 

states that: 

with respect to distribution to persons in 

areas served by a cable operator, [the 

Commission shall] prohibit exclusive 

contracts for satellite cable programming or 

satellite broadcast programming between a 

cable operator and a satellite cable 

programming vendor in which a cable 

operator has an attributable interest or a 

satellite broadcast programming vendor in 

which a cable operator has an attributable 

interest, unless the Commission determines 

* * * that such contract is in the public 

interest. 

Thus, in areas served by cable, the 

prohibition is not absolute. Congress 


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recognized that, in areas served by 

cable, some exclusive contracts may 

serve the public interest by providing 

offsetting benefits to the video 

programming market or assisting in the 

development of competition among 

MVPDs. Any cable operator, satellite 

cable programming vendor in which a 

cable operator has an attributable 

interest, or satellite broadcast 

programming vendor in which a cable 

operator has an attributable interest 

seeking to enforce or enter into an 

exclusive contract in an area served by 

a cable operator must submit a ‘‘petition 

for exclusivity’’ to the Commission for 

approval. 

4. The Commission’s factual findings, 

analysis, and rationale for retaining the 

prohibition on exclusivity are fully set 

forth in the Sunset Report and Order 

and need not be reiterated here, other 

than to note that the Commission 

concluded that: 

[t]he competitive landscape of the market for 

the distribution of multichannel video 

programming has changed for the better since 

1992. The number of MVPDs that compete 

with cable and the number of subscribers 

served by those MVPDs have increased 

significantly. We find, however, that the 

concern on which Congress based the 

program access provisions—that in the 

absence of regulation, vertically integrated 

programmers have the ability and incentive 

to favor affiliated cable operators over 

nonaffiliated cable operators and 

programming distributors using other 

technologies such that competition and 

diversity in the distribution of video 

programming would not be preserved and 

protected—persists in the current 

marketplace. 

Specific aspects of the Sunset Report 

and Order will be discussed below 

where relevant to provide context for 

the matters upon which we seek inquiry 

in this NPRM. 

III. Notice of Proposed Rulemaking 

A. Sunset of Exclusive Contract 

Prohibition 

5. Congress based the program access 

provisions on its concern that in the 

absence of regulation, vertically 

integrated programmers have the 

incentive and ability to favor affiliated 

cable operators over nonaffiliated cable 

operators and programming distributors 

using other technologies such that 

competition and diversity in the 

distribution of video programming 

would not be preserved and protected. 

We ask whether this concern has 

diminished or increased in today’s 

marketplace. 

6. In the Sunset Report and Order, the 

Commission examined the status of the 

MVPD market over the decade between 

the adoption of the program access 

provisions and the sunset review. The 

Commission observed that cable’s 

overall market share declined from 95 

percent in 1992 to 78 percent at the time 

of the Sunset Report and Order. The 

Commission also considered DBS, 

which at the time served 18 percent of 

MVPD households. Finally, the 

Commission noted that other 

competitors such as multichannel 

multipoint distribution service 

(‘‘MMDS’’), SMATV, and HSD, had not 

fared as well, comprising less than four 

percent of all MVPD subscribers. As of 

June 2005, basic cable subscribers 

comprised approximately 69 percent of 

all MVPD households and DIRECTV and 

EchoStar Communications Corporation 

(‘‘EchoStar’’) (marketed as the DISH 

Network) served approximately 27.7 

percent of all MVPD households 

nationwide. As of June 2005, MMDS, 

SMATV and HSD operators served less 

than three percent of all MVPD 

subscribers. How has the exclusivity 

prohibition impacted the general state of 

competition among MVPD operators? 

We seek comment on the current status 

of all these current MVPD competitors 

to cable and their continued viability 

should the prohibition on exclusivity be 

permitted to sunset. In addition, how 

would the absence of an exclusivity 

prohibition affect the likelihood that 

potential MVPD competitors will enter 

the market? 

7. We request information as to 

whether developments in the 

marketplace since the passage of the 

1992 Cable Act and our 2002 sunset 

review have diminished or increased 

the need for the exclusivity prohibition. 

In this regard, we seek comment on 

three events which have occurred in the 

multichannel programming market 

since our 2002 sunset review. First, we 

seek comment on the increase in the 

provision of MVPD service by local 

exchange carriers (‘‘LECs’’). For 

example, AT&T is moving forward with 

its IP-enabled broadband network called 

‘‘Project Lightspeed,’’ using both Fiber 

to the Node (‘‘FTTN’’) and Fiber to the 

Home (‘‘FTTH’’) to deliver video and 

other services to residential customers. 

AT&T states that it currently has 

approximately 3,000 customers, with 

more projected once it launches beyond 

San Antonio, Texas. In addition, 

Verizon is deploying a FTTH network 

that delivers video, telephony, and highspeed Internet access service. Verizon 

estimates that it had 100,000 video 

subscribers at the end of the 3rd quarter, 

2006, and that they will have 175,000 

video subscribers and pass 1.8 million 

households by the end of 2006. Second, 

we seek comment on the impact of the 

acquisition of control of the assets of 

Hughes Electronics Corporation by The 

News Corporation Limited (‘‘News 

Corp.’’). Through this transaction, News 

Corp. placed under common control 

DIRECTV, the nation’s second largest 

MVPD, and the broadcast and 

multichannel programming assets of the 

Fox Entertainment Group. We note that 

in this decision, the Commission placed 

certain conditions on News Corp. and 

DIRECTV in order to ensure that the 

access and non-discrimination 

requirements of the program access 

rules would continue to apply to News 

Corp.’s national and regional cable 

programming, and to obtain additional 

protections encompassed by the parties’

related commitments. Further, the 

Commission stated that these conditions 

would continue to apply as long as it 

deemed News Corp. to have an 

attributable interest in DIRECTV and the 

Commission’s program access rules 

relating to satellite cable programming 

vendors affiliated with cable operators 

are in effect. If the Commission’s 

program access rules are modified, then 

the Commission determined that these 

conditions would be modified to 

conform to the Commission’s revised 

rules. We note that News Corp. recently 

proposed an $11 billion asset swap with 

Liberty Media to trade News Corp.’s 38 

percent stake in DIRECTV and some 

other assets for Liberty’s shareholding in 

News Corp. This proposal, if approved, 

would give Liberty control of DIRECTV. 

Finally, we seek comment on the recent 

acquisition by Comcast Corporation and 

Time Warner, Inc. of the assets of 

Adelphia Communications Corporation. 

We seek comment on the extent, if any, 

to which these specific events should 

inform our analysis of whether to retain 

the prohibition on exclusivity. In 

addition, we seek comment on any other 

relevant developments in the MVPD 

market since our 2002 sunset review 

that we should consider in deciding 

whether to retain the prohibition on 

exclusivity. 

8. We ask whether competitive 

MVPDs’ access to what some refer to as 

‘‘marquee’’ or ‘‘must have’’ vertically 

integrated programming, such as CNN, 

HBO, TNT, Discovery and others, 

remains essential to successful 

implementation of competitive services. 

Does satellite-delivered vertically 

integrated programming remain 

necessary to the viability of competitive 

MVPDs because there is no good 

substitute programming available? We 

also ask whether the retention of the 

exclusivity prohibition affects access to 

national and regional sports 


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programming networks. We seek 

comment on the effects that the 

exclusivity prohibition has had on the 

development and production of 

programming for the current MVPD 

marketplace. We concluded in the 

Sunset Report and Order that the 

retention of the exclusivity prohibition 

would not reduce incentives to create 

new or diverse programming. In 

support, we noted that the number of 

national programming services 

increased from the exclusivity 

prohibition’s inception in 1992 from 87 

to 294 in 2001. We also noted that the 

number of vertically integrated 

programming services nearly doubled 

from 56 in 1994 to 104 in 2001 and 

concluded that the ban did not serve as 

a disincentive for cable MSOs to 

develop new cable networks. Since the 

extension of the exclusivity ban in 2002, 

has there been a significant overall 

increase or decrease in the 

development, promotion, and launch of 

new and diverse programming services? 

We note that, our most recent report on 

the status of video competition found 

that, as of June 2005, there were 531 

satellite-delivered national 

programming networks. How has the 

exclusivity prohibition affected 

investment incentives in the current 

marketplace for both vertically 

integrated and independent 

programming? We also ask if there has 

been any change in the resources of 

nonaffiliated cable operators and 

competitive MVPDs and their ability to 

develop their own programming, 

thereby limiting their dependence on 

‘‘must have’’ vertically integrated 

programming. Finally, we ask what 

effect the retention of the exclusivity 

ban has had on the launch of local 

origination programming that may have 

a more limited geographic appeal. 

9. We also ask how the current state 

of cable system clusters and distribution 

of regional video programming services 

affiliated with cable operators should 

affect our decision regarding the 

exclusivity prohibition. As the 

Commission concluded in the Sunset 

Report and Order, ‘‘[w]e believe that 

clustering, accompanied by an increase 

in vertically integrated regional 

programming networks affiliated with 

cable MSOs that control system clusters, 

will increase the incentive of cable 

operators to practice anticompetitive 

foreclosure of access to vertically 

integrated programming.’’ We seek 

comment on the continuing validity of 

this conclusion and whether events 

since the Sunset Report and Order 

mitigate or exacerbate the impact of 

clustering. In particular, we seek 

comment on what impact our recent 

approval of the acquisition of the assets 

of Adelphia Communications by 

Comcast and Time Warner has on this 

topic. We also seek comment on 

whether the current state of horizontal 

consolidation in the cable industry 

increases incentives for anticompetitive 

foreclosure of access to vertically 

integrated programming. 

10. We seek comment on whether the 

exclusivity prohibition continues to be 

necessary to preserve and protect 

diversity in the distribution of 

programming. Our focus in this area is 

not on programming diversity, but 

rather on ‘‘preserving and protecting 

diversity in the distribution of video 

programming—i.e., ensuring that as 

many MVPDs as possible remain viable 

distributors of video programming.’’ As 

the Commission observed in the Sunset 

Report and Order, ‘‘[o]ther than the two 

largest non-cable MVPDs, DirecTV and 

EchoStar, nonaffiliated cable operators 

and competitive MVPDs * * * assert 

that they lack the resources and ability 

to develop their own programming and 

are thus dependent on access to the 

programming of others, including ‘must 

have’ vertically integrated 

programming.’’ Does this continue to be 

true for nonaffiliated cable operators 

and competitive MVPDs in today’s 

marketplace? We seek comment on 

whether retention of the exclusivity 

prohibition in the current climate helps 

to ensure that as many MVPDs as 

possible remain viable distributors of 

video programming. One of Congress’

express findings in enacting the 1992 

Cable Act was that ‘‘[t]here is a 

substantial governmental and First 

Amendment interest in promoting a 

diversity of views provided through 

multiple technology media.’’ Would the 

sunset of the exclusivity prohibition in 

the current state of the market limit or 

foreclose access to vertically integrated 

programming so as to jeopardize a 

diverse market of existing and potential 

competitors? 

11. Congress initially set a 10-year 

period for Commission review of 

Section 628(c)(2)(D) in order to 

determine whether the exclusive 

contract prohibition continued to be 

necessary to preserve and protect 

competition and diversity in the 

distribution of video programming. 

After completing its review, the 

Commission determined in the Sunset 

Report and Order that a five-year term 

provided a sufficient period in which to 

initiate a subsequent sunset review. If 

we determine in this proceeding that 

Section 628(c)(2)(D) should be retained 

and extended for another period of 

years, we seek comment on what time 

frame would be appropriate, taking into 

consideration the current and potential 

future competitive environment. We 

also seek comment on whether the 

exclusivity prohibition, if retained, 

should be automatically abolished 

depending on the triggering of a specific 

event or events in the marketplace. 

12. We also seek comment on any 

new trends in the industry that would 

indicate that the MVPD distribution and 

program production sectors are moving 

toward the type of market structure that 

would support the sunset of the 

exclusivity prohibition. Finally, we seek 

comment on any other issues 

appropriate to our inquiry in accordance 

with Section 628(c)(5). 

B. Program Access Complaint 

Procedures 

13. This NPRM also seeks comment 

on whether and how our procedures for 

resolving program access disputes under 

Section 628 should be modified. Our 

rules provide that any MVPD aggrieved 

by conduct that it believes constitutes a 

violation of Section 628 and the 

Commission’s program access rules may 

file a complaint at the Commission in 

accordance with 47 CFR 76.7 and 

76.1003. The Commission’s rules 

provide that before an MVPD may file 

such a complaint, it must first notify the 

cable operator or satellite programming 

vendor that it intends to file the 

complaint. The complaining MVPD 

must allow the cable operator or vendor 

10 days to respond to the prefiling 

NPRM prior to filing its complaint with 

the Commission. The necessary contents 

of the complaint are specified in the 

rules, including a requirement that any 

damages sought must be clearly stated 

in the complaint. Once a complaint is 

filed, the cable operator or satellite 

programming vendor shall answer 

within 20 days of service of the 

complaint. Replies to the answer are 

due 10 days thereafter. Any program 

access complaint must be filed within 

one year of the date on which the MVPD 

enters into a contract with the 

programming vendor, the programming 

vendor offers the programming to the 

MVPD, or the MVPD notifies the cable 

operator or programming vendor that it 

intends to file a complaint with the 

Commission. The rules also address the 

determination of the proper damages to 

be assessed, including a recognition that 

the parties be given an opportunity to 

reach agreement on damages. In 

addition, the Commission has stated its 

goals for resolution of program access 

complaints which are: five months from 

the submission of a complaint for denial 

of programming cases, and nine months 


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for all other program access complaints, 

such as price discrimination cases. 

14. We seek comment on whether and 

how our procedures for resolving 

program access disputes should be 

modified. The scope of our inquiry is 

limited to our rules governing the 

program access complaint process. In 

particular, we seek comment on the 

costs associated with the complaint 

process and whether the pre-filing 

NPRM, pleading requirements, 

evidentiary standards, timing, and 

potential remedies are appropriate and 

effective. In addition, we seek comment 

on whether additional time limits 

would improve the existing process. For 

instance, we seek comment on whether 

specific time limits on the Commission, 

the parties, or others would promote a 

speedy and just resolution of these 

disputes. 

15. Are the Commission’s program 

access complaint rules and procedures 

adequate? We seek comment on these 

issues and on additional procedures that 

would address infirmities. For example, 

are complaints resolved in a timely 

manner? Are our rules governing 

discovery and protection of confidential 

information adequate? Should the 

Commission adopt alternative 

procedures or remedies such as 

mandatory standstill agreements and/or 

arbitration, as it has done in two recent 

mergers? Commenters that favor these 

alternative procedures should address 

the Commission’s authority to adopt 

them. 

IV. Administrative Matters 

16. Ex Parte Rules. This is a permitbut-disclose NPRM and comment 

rulemaking proceeding. Ex parte 

presentations are permitted, except 

during the Sunshine Agenda period, 

provided that they are disclosed as 

provided in the Commission’s rules. See 

generally 47 CFR 1.1202, 1.1203, and 

1.1206(a). 

17. Comment Information. Pursuant 

to sections 1.415 and 1.419 of the 

Commission’s rules, 47 CFR 1.415, 

1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated on the first 

page of this document. Comments may 

be filed using: (1) The Commission’s 

Electronic Comment Filing System 

(ECFS), (2) the Federal Government’s 

eRulemaking Portal, or (3) by filing 

paper copies. See Electronic Filing of 

Documents in Rulemaking Proceedings, 

63 FR 24121 (1998). 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the website for submitting 

comments. 

• For ECFS filers, if multiple docket 

or rulemaking numbers appear in the 

caption of this proceeding, filers must 

transmit one electronic copy of the 

comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. 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, filers should send an email to ecfs@fcc.gov, and include the 

following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although we continue to experience 

delays in receiving U.S. Postal Service 

mail). All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. 

• The Commission’s contractor will 

receive hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail should be 

addressed to 445 12th Street, SW., 

Washington DC 20554. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202–

418–0432 (tty). 

18. Initial Paperwork Reduction Act 

Analysis. This document does not 

contain proposed information 

collection(s) subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. In addition, therefore, it 

does not contain any new or modified 

‘‘information collection burden for 

small business concerns with fewer than 

25 employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

19. Initial Regulatory Flexibility 

Analysis. As required by the Regulatory 

Flexibility Act, the Commission has 

prepared an Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

a substantial number of small entities of 

the proposals addressed in this NPRM of 

Proposed Rulemaking. The IRFA is set 

forth in the Appendix. Written public 

comments are requested on the IRFA. 

These comments must be filed in 

accordance with the same filing 

deadlines for comments on the Further 

NPRM, and they should have a separate 

and distinct heading designating them 

as responses to the IRFA. 

20. Additional Information. For 

additional information on this 

proceeding, please contact Karen Kosar, 

Policy Division, Media Bureau at (202) 

418–1053. 

V. Initial Regulatory Flexibility Analysis 

21. As required by the Regulatory 

Flexibility Act of 1980, as amended (the 

‘‘RFA’’) the Commission has prepared 

this Initial Regulatory Flexibility 

Analysis (‘‘IRFA’’) of the possible 

significant economic impact of the 

policies and rules proposed in this 

NPRM of Proposed Rulemaking 

(‘‘NPRM’’) on a substantial number of 

small entities. Written public comments 

are requested on this IRFA. Comments 

must be identified as responses to the 

IRFA and must be filed by the deadlines 

for comments on the NPRM indicated 

on the first page of this document. The 

Commission will send a copy of the 

NPRM, including this IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration (‘‘SBA’’). In 

addition, the NPRM and IRFA (or 

summaries thereof) will be published in 

the Federal Register. 

A. Need for, and Objectives of, the 

Proposed Regulatory Approaches 

22. The focus of the enactment of the 

program access provisions contained in 

Section 628 of the Communications Act 

of 1934, as amended, adopted as part of 

the Cable Television Consumer 

Protection and Competition Act of 1992, 

was to encourage entry into the 

multichannel video programming 

distribution market (‘‘MVPD’’) by 


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existing or potential competitors to 

traditional cable systems by making 

available to those entities the 

programming necessary to empower 

them to become viable competitors. 

Specifically, this proceeding involves 

Section 628(c)(2)(D), which prohibits, in 

areas served by a cable operator, 

exclusive contracts for satellite cable 

programming or satellite broadcast 

programming between vertically 

integrated programming vendors and 

cable operators unless the Commission 

determines that such exclusivity is in 

the public interest. 

23. Section 628(c)(5) directed that the 

prohibition contained in Section 

628(c)(2)(D) should cease to be effective 

on October 5, 2002, unless the 

Commission found that such 

prohibition ‘‘continues to be necessary 

to preserve and protect competition and 

diversity in the distribution of video 

programming.’’ The Commission 

initiated its proceeding in the matter by 

issuing a NPRM of Proposed 

Rulemaking seeking comment on the 

possible sunset of Section 628(c)(2)(D) 

in October 2001. The Commission’s 

Report and Order, issued in June 2002, 

concluded that the term of the 

prohibition on exclusive contracts 

between cable operators and vertically 

integrated programmers should be 

extended for five (5) years from October 

5, 2002. The prohibition on exclusivity 

is therefore set to expire on October 5, 

2007, unless circumstances in the video 

programming marketplace indicate that 

the prohibition continues to be 

necessary within the meaning of the 

statute. The Commission has stated 

during the year before the expiration of 

the 5-year term, a review again will be 

undertaken to determine whether the 

exclusivity prohibition continues to be 

necessary to preserve and protect 

competition and diversity in the 

distribution of video programming. This 

NPRM initiate this review. 

B. Legal Basis 

24. The authority for the action 

proposed in the rulemaking is contained 

in Section 4(i), 303 and 628 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 303 and 548. 

C. Description and Estimate of the 

Number of Small Entities To Which the 

Proposed Rules Will Apply 

25. 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’’). 

26. Cable and Other Program 

Distribution. The Census Bureau defines 

this category as follows: ‘‘This industry 

comprises establishments primarily 

engaged as third-party distribution 

systems for broadcast programming. The 

establishments of this industry deliver 

visual, aural, or textual programming 

received from cable networks, local 

television stations, or radio networks to 

consumers via cable or direct-to-home 

satellite systems on a subscription or fee 

basis. These establishments do not 

generally originate programming 

material.’’ The SBA has developed a 

small business size standard for Cable 

and Other Program Distribution, which 

is: all such firms having $13.5 million 

or less in annual receipts. According to 

Census Bureau data for 2002, there were 

a total of 1,191 firms in this category 

that operated for the entire year. Of this 

total, 1,087 firms had annual receipts of 

under $10 million, and 43 firms had 

receipts of $10 million or more but less 

than $25 million. An additional 61 firms 

had annual receipts of $25 million or 

more. Thus, under this size standard, 

the majority of firms can be considered 

small. 

27. Cable Companies and Systems. 

The Commission has also developed its 

own small business size standards, for 

the purpose of cable rate regulation. 

Under the Commission’s rules, a ‘‘small 

cable company’’ is one serving 400,000 

or fewer subscribers, nationwide. The 

Commission determined that this size 

standard equates approximately to a size 

standard of $100 million or less in 

annual revenues. Industry data indicate 

that, of 1,076 cable operators 

nationwide, all but eleven are small 

under this size standard. In addition, 

under the Commission’s rules, a ‘‘small 

system’’ is a cable system serving 15,000 

or fewer subscribers. Industry data 

indicate that, of 7,208 systems 

nationwide, 6,139 systems have under 

10,000 subscribers, and an additional 

379 systems have 10,000–19,999 

subscribers. Thus, under this second 

size standard, most cable systems are 

small. 

28. Cable System Operators. The 

Communications Act of 1934, as 

amended, also contains a size standard 

for small cable system operators, 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 an 

operator serving fewer than 677,000 

subscribers shall be deemed a small 

operator, if its annual revenues, when 

combined with the total annual 

revenues of all its affiliates, do not 

exceed $250 million in the aggregate. 

Industry data indicate that, of 1,076 

cable operators nationwide, all but ten 

are small under this size standard. We 

note that the Commission neither 

requests nor collects information on 

whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250 million, 

and therefore we are unable to estimate 

more accurately the number of cable 

system operators that would qualify as 

small under this size standard. The 

Commission does receive such 

information on a case-by-case basis if a 

cable operator appeals a local franchise 

authority’s finding that the operator 

does not qualify as a small cable 

operator pursuant to section 76.901(f) of 

the Commission’s rules. 

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

Service. DBS service is a nationally 

distributed subscription service that 

delivers video and audio programming 

via satellite to a small parabolic ‘‘dish’’

antenna at the subscriber’s location. 

Because DBS provides subscription 

services, DBS falls within the SBArecognized definition of Cable and 

Other Program Distribution. This 

definition provides that a small entity is 

one with $13.5 million or less in annual 

receipts. Currently, only four operators 

hold licenses to provide DBS service, 

which requires a great investment of 

capital for operation. All four currently 

offer subscription services. Two of these 

four DBS operators, DIRECTV and 

EchoStar Communications Corporation 

(‘‘EchoStar’’), report annual revenues 

that are in excess of the threshold for a 

small business. A third operator, 

Rainbow DBS, is a subsidiary of 

Cablevision’s Rainbow Network, which 

also reports annual revenues in excess 

of $13.5 million, and thus does not 

qualify as a small business. The fourth 

DBS operator, Dominion Video Satellite, 

Inc. (‘‘Dominion’’), offers religious 

(Christian) programming and does not 

report its annual receipts. The 

Commission does not know of any 

source which provides this information 

and, thus, we have no way of 

confirming whether Dominion qualifies 


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as a small business. Because DBS 

service requires significant capital, we 

believe it is unlikely that a small entity 

as defined by the SBA would have the 

financial wherewithal to become a DBS 

licensee. Nevertheless, given the 

absence of specific data on this point, 

we acknowledge the possibility that 

there are entrants in this field that may 

not yet have generated $13.5 million in 

annual receipts, and therefore may be 

categorized as a small business, if 

independently owned and operated. 

30. Private Cable Operators (PCOs) 

also known as Satellite Master Antenna 

Television (SMATV) Systems. PCOs, 

also known as SMATV systems or 

private communication operators, are 

video distribution facilities that use 

closed transmission paths without using 

any public right-of-way. PCOs acquire 

video programming and distribute it via 

terrestrial wiring in urban and suburban 

multiple dwelling units such as 

apartments and condominiums, and 

commercial multiple tenant units such 

as hotels and office buildings. The SBA 

definition of small entities for Cable and 

Other Program Distribution Services 

includes PCOs and, thus, small entities 

are defined as all such companies 

generating $13.5 million or less in 

annual receipts. Currently, there are 

approximately 135 members in the 

Independent Multi-Family 

Communications Council (IMCC), the 

trade association that represents PCOs. 

Individual PCOs often serve 

approximately 3,000–4,000 subscribers, 

but the larger operations serve as many 

as 15,000–55,000 subscribers. In total, 

PCOs currently serve approximately 1.1 

million 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 PCOs, we believe that a substantial 

number of PCO may qualify as small 

entities. 

31. Home Satellite Dish (‘‘HSD’’) 

Service. Because HSD provides 

subscription services, HSD falls within 

the SBA-recognized definition of Cable 

and Other Program Distribution, which 

includes all such companies generating 

$13.5 million or less in revenue 

annually. HSD or the large dish segment 

of the satellite industry is the original 

satellite-to-home service offered to 

consumers, and involves the home 

reception of signals transmitted by 

satellites operating generally in the Cband frequency. Unlike DBS, which 

uses small dishes, HSD antennas are 

between four and eight feet in diameter 

and can receive a wide range of 

unscrambled (free) programming and 

scrambled programming purchased from 

program packagers that are licensed to 

facilitate subscribers’ receipt of video 

programming. There are approximately 

30 satellites operating in the C-band, 

which carry over 500 channels of 

programming combined; approximately 

350 channels are available free of charge 

and 150 are scrambled and require a 

subscription. HSD is difficult to 

quantify in terms of annual revenue. 

HSD owners have access to program 

channels placed on C-band satellites by 

programmers for receipt and 

distribution by MVPDs. Commission 

data shows that, between June 2003 and 

June 2004, HSD subscribership fell from 

502,191 subscribers to 335,766 

subscribers, a decline of more than 33 

percent. The Commission has no 

information regarding the annual 

revenue of the four C-Band distributors. 

32. Wireless Cable Systems. Wireless 

cable systems use the Multipoint 

Distribution Service (‘‘MDS’’) and 

Instructional Television Fixed Service 

(‘‘ITFS’’) frequencies in the 2 GHz band 

to transmit video programming and 

provide broadband services to 

subscribers. Local Multipoint 

Distribution Service (‘‘LMDS’’) is a fixed 

broadband point-to-multipoint 

microwave service that provides for 

two-way video telecommunications. As 

previously noted, the SBA definition of 

small entities for Cable and Other 

Program Distribution, which includes 

such companies generating $13.5 

million in annual receipts, appears 

applicable to MDS, ITFS and LMDS. In 

addition, the Commission has defined 

small MDS and LMDS entities in the 

context of Commission license auctions. 

33. In the 1996 MDS auction, the 

Commission defined a small business as 

an entity that had annual average gross 

revenues of less than $40 million in the 

previous three calendar years. This 

definition of a small entity in the 

context of MDS auctions has been 

approved by the SBA. In the MDS 

auction, 67 bidders won 493 licenses. Of 

the 67 auction winners, 61 claimed 

status as a small business. At this time, 

the Commission estimates that of the 61 

small business MDS auction winners, 48 

remain small business licensees. In 

addition to the 48 small businesses that 

hold BTA authorizations, there are 

approximately 392 incumbent MDS 

licensees that have gross revenues that 

are not more than $40 million and are 

thus considered small entities. We also 

note that MDS licensees and wireless 

cable operators that did not participate 

in the MDS auction must rely on the 

SBA definition of small entities for 

Cable and Other Program Distribution, 

which is: Such entities do not generate 

revenue in excess of $13.5 million 

annually. We estimate that the majority 

of these entities are small. 

34. While SBA approval for a 

Commission-defined small business size 

standard applicable to ITFS is pending, 

educational institutions are included in 

this analysis as small entities. There are 

currently 2,032 ITFS licensees, and all 

but 100 of these licenses are held by 

educational institutions. Thus, the 

Commission estimates that at least 1,932 

ITFS licensees are small businesses. 

35. In the 1998 and 1999 LMDS 

auctions, the Commission defined a 

small business as an entity that had 

annual average gross revenues of less 

than $40 million in the previous three 

calendar years. Moreover, the 

Commission added an additional 

classification for a ‘‘very small 

business,’’ which was defined as an 

entity that had annual average gross 

revenues of less than $15 million in the 

previous three calendar years. These 

definitions of ‘‘small business’’ and 

‘‘very small business’’ in the context of 

the LMDS auctions have been approved 

by the SBA. In the first LMDS auction, 

104 bidders won 864 licenses. Of the 

104 auction winners, 93 claimed status 

as small or very small businesses. In the 

LMDS re-auction, 40 bidders won 161 

licenses. Based on this information, we 

believe that the number of small LMDS 

licenses will include the 93 winning 

bidders in the first auction and the 40 

winning bidders in the re-auction, for a 

total of 133 small entity LMDS 

providers as defined by the SBA and the 

Commission’s auction rules. 

36. Open Video Systems (‘‘OVS’’). The 

OVS framework provides opportunities 

for the distribution of video 

programming other than through cable 

systems. Because OVS operators provide 

subscription services, OVS falls within 

the SBA-recognized definition of Cable 

and Other Program Distribution 

Services, which provides that a small 

entity is one with $13.5 million or less 

in annual receipts. The Commission has 

certified 25 OVS operators with some 

now providing service. Broadband 

service providers (BSPs) are currently 

the only significant holders of OVS 

certifications or local OVS franchises, 

even though OVS is one of four 

statutorily-recognized options for local 

exchange carriers (LECs) to offer video 

programming services. As of June 2003, 

BSPs served approximately 1.4 million 

subscribers, representing 1.49 percent of 

all MVPD households. Among BSPs, 

however, those operating under the OVS 

framework are in the minority, with 


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9296 Federal Register / Vol. 72, No. 40 / Thursday, March 1, 2007 / Proposed Rules 

approximately eight percent operating 

with an OVS certification. Serving 

approximately 460,000 of these 

subscribers, Affiliates of Residential 

Communications Network, Inc. (‘‘RCN’’) 

is currently the largest BSP and 11th 

largest MVPD. RCN received approval to 

operate OVS systems in New York City, 

Boston, Washington, D.C. and other 

areas. The Commission does not have 

financial information regarding the 

entities authorized to provide OVS, 

some of which may not yet be 

operational. We thus believe that at least 

some of the OVS operators may qualify 

as small entities. 

37. Cable and Other Subscription 

Programming. The Census Bureau 

defines this category as follows: ‘‘This 

industry comprises establishments 

primarily engaged in operating studios 

and facilities for the broadcasting of 

programs on a subscription or fee basis 

* * *. These establishments produce 

programming in their own facilities or 

acquire programming from external 

sources. The programming material is 

usually delivered to a third party, such 

as cable systems or direct-to-home 

satellite systems, for transmission to 

viewers.’’ The SBA has developed a 

small business size standard for firms 

within this category, which is: firms 

with $13.5 million or less in annual 

receipts. According to Census Bureau 

data for 2002, there were 270 firms in 

this category that operated for the entire 

year. Of this total, 217 firms had annual 

receipts of under $10 million and 13 

firms had annual receipts of $10 million 

to $24,999,999. Thus, under this 

category and associated small business 

size standard, the majority of firms can 

be considered small. 

38. A ‘‘small business’’ under the RFA 

is one that, inter alia, meets the 

pertinent small business size standard 

(e.g., a telephone communications 

business having 1,500 or fewer 

employees), and ‘‘is not dominant in its 

field of operation.’’ The SBA’s Office of 

Advocacy contends that, for RFA 

purposes, small incumbent local 

exchange carriers are not dominant in 

their field of operation because any such 

dominance is not ‘‘national’’ in scope. 

39. Incumbent Local Exchange 

Carriers (‘‘LECs’’). Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically for incumbent local 

exchange services. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 1,303 carriers have 

reported that they are engaged in the 

provision of incumbent local exchange 

services. Of these 1,303 carriers, an 

estimated 1,020 have 1,500 or fewer 

employees and 283 have more than 

1,500 employees. Consequently, the 

Commission estimates that most 

providers of incumbent local exchange 

service are small businesses. 

40. Competitive Local Exchange 

Carriers, Competitive Access Providers 

(CAPs), ‘‘Shared-Tenant Service 

Providers,’’ and ‘‘Other Local Service 

Providers.’’ Neither the Commission nor 

the SBA has developed a small business 

size standard specifically for these 

service providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 769 carriers have 

reported that they are engaged in the 

provision of either competitive access 

provider services or competitive local 

exchange carrier services. Of these 769 

carriers, an estimated 676 have 1,500 or 

fewer employees and 93 have more than 

1,500 employees. In addition, 12 

carriers have reported that they are 

‘‘Shared-Tenant Service Providers,’’ and 

all 12 are estimated to have 1,500 or 

fewer employees. In addition, 39 

carriers have reported that they are 

‘‘Other Local Service Providers.’’ Of the 

39, an estimated 38 have 1,500 or fewer 

employees and one has more than 1,500 

employees. Consequently, the 

Commission estimates that most 

providers of competitive local exchange 

service, competitive access providers, 

‘‘Shared-Tenant Service Providers,’’ and 

‘‘Other Local Service Providers’’ are 

small entities. 

41. Electric Power Generation, 

Transmission and Distribution. The 

Census Bureau defines this category as 

follows: ‘‘This industry group comprises 

establishments primarily engaged in 

generating, transmitting, and/or 

distributing electric power. 

Establishments in this industry group 

may perform one or more of the 

following activities: (1) Operate 

generation facilities that produce 

electric energy; (2) operate transmission 

systems that convey the electricity from 

the generation facility to the distribution 

system; and (3) operate distribution 

systems that convey electric power 

received from the generation facility or 

the transmission system to the final 

consumer.’’ The SBA has developed a 

small business size standard for firms in 

this category: ‘‘A firm is small if, 

including its affiliates, it is primarily 

engaged in the generation, transmission, 

and/or distribution of electric energy for 

sale and its total electric output for the 

preceding fiscal year did not exceed 4 

million megawatt hours.’’ According to 

Census Bureau data for 2002, there were 

1,644 firms in this category that 

operated for the entire year. Census data 

do not track electric output and we have 

not determined how many of these firms 

fit the SBA size standard for small, with 

no more than 4 million megawatt hours 

of electric output. Consequently, we 

estimate that 1,644 or fewer firms may 

be considered small under the SBA 

small business size standard. 

D. Description of Proposed Reporting, 

Recordkeeping and Other Compliance 

Requirements 

42. The NPRM seeks comment on the 

possible sunset or the retention of 

Section 628(c)(2)(D) of the 

Communications Act. The NPRM also 

seeks comment on whether and how our 

procedures for resolving program access 

disputes under Section 628 should be 

modified. The NPRM does not propose 

any specific reporting, recordkeeping or 

other compliance requirements. 

E. Steps Taken To Minimize Significant 

Impact on Small Entities and Significant 

Alternatives Considered 

43. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in proposing 

regulatory approaches, which may 

include the following four alternatives 

(among others): (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. The NPRM again 

seeks comment on whether Section 

628(c)(2)(D) should cease to be effective, 

pursuant to the sunset provision in 

Section 628(c)(5), or whether Section 

628(c)(2)(D) should be retained. Thus, 

the NPRM invites comment on issues 

that may impact some small entities. 

The NPRM seeks comment on what 

impact the retention of the exclusivity 

prohibition has had on the multichannel 

video programming distribution market 

(‘‘MVPD’’) overall. More specifically, 

the NPRM inquires what impact the 

provision has had on the entry of new 

competitive MVPDs into the 

marketplace. It further inquires about 

access by competitive MVPDs to 

‘‘marquee’’ or ‘‘must have’’

programming and whether these 

services still remain essential to the 

successful implementation of 


rmajette on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 40 / Thursday, March 1, 2007 / Proposed Rules 9297 

competitive services. The NPRM also 

seeks information on what impact cable 

system clusters, the distribution of 

regional programming services, and 

horizontal consolidation have on the 

programming marketplace. The NPRM 

also inquires about whether there has 

been any change in the resources and 

ability of nonaffiliated cable operators 

and competitive MVPDs to develop 

their own programming. In addition, 

comment is sought on what effect the 

prohibition has had on preserving and 

protecting diversity in the distribution 

of video programming. 

F. Federal Rules Which Duplicate, 

Overlap, or Conflict With the 

Commission’s Proposals 

None. 

VI. Ordering Clauses 

44. Accordingly, it is ordered that, 

pursuant to the authority contained in 

Sections 4(i), 303 and 628 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 303 and 548, 

notice is hereby given of the proposals 

described in this NPRM of Proposed 

Rulemaking. 

45. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, will send a copy of 

this NPRM of Proposed Rule Making, 

including the IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration, in accordance 

with the Regulatory Flexibility Act. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E7–3520 Filed 2–28–07; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 070215034–7034–01; I.D. 

020907D] 

RIN 0648–AU98 

Sea Turtle Conservation; Fishing Gear 

Inspection Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes to establish 

an inspection program for modified 

pound net leaders in the Virginia waters 

of the mainstem Chesapeake Bay. 

Current regulations require modified 

pound net leaders, as defined in the 

regulations, in a portion of the Virginia 

Chesapeake Bay, and allow them to be 

used in a different portion of the 

Chesapeake Bay. This proposed action 

would ensure that leaders used in those 

areas do in fact meet the definition of a 

modified pound net leader. This action, 

taken under the Endangered Species Act 

of 1973 (ESA), as amended, is intended 

to facilitate compliance with the 

existing regulation, which is designed to 

help protect threatened and endangered 

sea turtles. 

DATES: Comments on this action are 

requested, and must be received at the 

appropriate address or fax number (see 

ADDRESSES) by no later than 5 p.m., 

eastern daylight time, on April 2, 2007. 

ADDRESSES: Written comments may be 

submitted on this proposed rule, 

identified by RIN 0648–AU98, by any 

one of the following methods: 

(1) E-mail: 

poundnetinspection@noaa.gov. Please 

include the RIN 0648–AU98 in the 

subject line of the message. 

(2) Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions on the website for 

submitting comments. 

(3) NMFS/Northeast Region Website: 

http://www.nero.noaa.gov/nero/regs/ 

com.html Follow the instructions on the 

website for submitting comments. 

(4) Mail: Mary A. Colligan, Assistant 

Regional Administrator for Protected 

Resources, NMFS, Northeast Region, 

One Blackburn Drive, Gloucester, MA 

01930, ATTN: Sea Turtle Conservation 

Measures, Proposed Rule 

(5) Facsimile (fax): 978–281–9394, 

ATTN: Sea Turtle Conservation 

Measures, Proposed Rule 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this proposed 

rule may be submitted in one of the 

above formats and by e-mail to 

DavidlRostker@omb.eop.gov, or fax to 

(202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Pasquale Scida (ph. 978–281–9208, fax 

978–281–9394), or Barbara Schroeder 

(ph. 301–713–2322, fax 301–427–2522). 

SUPPLEMENTARY INFORMATION: 

Background 

Based upon documented sea turtle 

interactions with pound net leaders, 

NMFS issued a final rule on May 5, 

2004 (69 FR 24997), that prohibited the 

use of offshore pound net leaders from 

May 6 to July 15 in an area now referred 

to as ‘‘Pound Net Regulated Area I’’. 

Pound Net Regulated Area I is defined 

as the Virginia waters of the mainstem 

Chesapeake Bay, south of 37°19.0′ N. 

lat. and west of 76°13.0′ W. long., and 

all waters south of 37°13.0′ N. lat. to the 

Chesapeake Bay Bridge Tunnel 

(extending from approximately 37°05′ 

N. lat., 75°59′ W. long. to 36°55′ N. lat., 

76 08′ W. long.) at the mouth of the 

Chesapeake Bay, and the portion of the 

James River downstream of the 

Hampton Roads Bridge Tunnel (I–64; 

approximately 36°59.55′ N. lat., 76° 

18.64′ W. long.) and the York River 

downstream of the Coleman Memorial 

Bridge (Route 17; approximately 

37°14.55′ N. lat, 76°30.40′ W. long.). An 

offshore pound net leader refers to a 

leader with the inland end set greater 

than 10 horizontal feet (3 m) from the 

mean low water line. The May 2004 rule 

also placed restrictions on nearshore 

pound net leaders in Pound Net 

Regulated Area I and on all pound net 

leaders employed in ‘‘Pound Net 

Regulated Area II.’’ Pound Net 

Regulated Area II refers to Virginia 

waters of the Chesapeake Bay, outside of 

Pound Net Regulated Area I as defined 

above, extending to the MarylandVirginia State line (approximately 

37°55′ N. lat., 75°55′ W. long.), the Great 

Wicomico River downstream of the 

Jessie Dupont Memorial Highway Bridge 

(Route 200; approximately 37°50.84′ N. 

lat, 76°22.09′ W. long.), the 

Rappahannock River downstream of the 

Robert Opie Norris Jr. Bridge (Route 3; 

approximately 37°37.44′ N. lat, 

76°25.40′ W. long.), and the Piankatank 

River downstream of the Route 3 Bridge 

(approximately 37°30.62′ N. lat, 

76°25.19′ W. long.) to the COLREGS line 

at the mouth of the Chesapeake Bay. 

According to the 2004 rule, nearshore 

pound net leaders in Pound Net 

Regulated Area I and all pound net 

leaders in Pound Net Regulated Area II 

must have mesh size less than 12 inches 

(30.5 cm) stretched mesh and may not 

employ stringers. 

In 2004 and 2005, NMFS 

implemented a coordinated research 

program with pound net industry 

participants and other interested parties 

to develop and test a modified pound 

net leader design with the goal of 

eliminating or reducing sea turtle 

interactions while retaining an 

acceptable level of fish catch. The 

modified pound net leader design used 

in the experiment consisted of a 

combination of mesh and stiff vertical 

lines. The mesh size was equal to or less 

than 8 inches (20.3 cm). The mesh was 

positioned at a depth that was no more 

than one-third the depth of the water. 


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