Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61065

(b) * * *

(4) * * *

(iii) * * *

(B) In a case described in paragraph

(b)(4)(iii)(A) of this section,

reimbursement will be reduced, unless

such reduction is waived based on

special circumstances. The amount of

this reduction shall be at least ten

percent of the amount otherwise

allowable for services for which

preauthorization (including

preauthorization for continued stays in

connection with concurrent review

requirements) approval should have

been obtained, but was not obtained.

* * * * *

(c) * * *

(2) The physician acknowledgment

required for Medicare under 42 CFR

412.46 is also required for CHAMPUS as

a condition for payment and may be

satisfied by the same statement as

required for Medicare, with substitution

or addition of ‘‘CHAMPUS’’ when the

word ‘‘Medicare’’ is used.

* * * * *

(d) * * *

(2) * * *

(iii) Review for physician’s

acknowledgment of annual receipt of

the penalty statement as contained in

the Medicare regulation at 42 CFR

412.46.

* * * * *

(e) * * *

(3) * * *

(i) If the diagnostic and procedural

information in the patient’s medical

record is found to be inconsistent with

the hospital’s coding or DRG

assignment, the hospital’s coding on the

CHAMPUS claim will be appropriately

changed and payments recalculated on

the basis of the appropriate DRG

assignment.

(ii) If the information stipulated under

paragraph (d)(2) of this section is found

not to be correct, the PRO will change

the coding and assign the appropriate

DRG on the basis of the changed coding.

* * * * *

Dated: November 7, 1997.

L.M. Bynum,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 97–29975 Filed 11–13–97; 8:45 am]

BILLING CODE 5000–04–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 60 and 63

[FRL–5921–1]

Hazardous Waste Combustors;

Continuous Emissions Monitoring

Systems; Proposed Rule—Notice of

Data Availability

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of data availability.

SUMMARY: This announcement is a

notice of advanced availability of a test

report pertaining to the proposed

requirement for Particulate Matter (PM)

Continuous Emissions Monitoring

Systems (CEMS) for hazardous waste

combustors: ‘‘Draft Particulate Matter

Continuous Emissions Monitoring

Systems Demonstration’’, dated October

1997. The report documents PM CEMS

demonstration tests conducted between

September 1996 and May 1997 at the

DuPont, Inc. Experimental Station OnSite Incinerator, in Wilmington,

Delaware. Included in the report are the

testing scheme, raw data, and

discussion of results. Appendices to the

report include: Method 5I—

Determination of Low Level Particulate

Matter Emissions from Stationary

Sources; Revised Draft Performance

Specification 11—Specifications and

Test Procedures for PM CEMS in

Stationary Sources; and Appendix F to

40 CFR Part 60, Quality Assurance

Requirements for PM CEMS used for

Compliance Determination.

FOR FURTHER INFORMATION CONTACT: To

obtain the October 1997, Draft PM

CEMS Demonstration test report, call

the RCRA Hotline at 1–800–424–9346 or

TDD 1–800–553–7672 (hearing

impaired). Callers within the

Washington Metropolitan Area must

dial 703–412–9810 or TDD 703–412–

3323 (hearing impaired). The RCRA

Hotline is open Monday–Friday, 9:00

a.m. to 6:00 p.m., Eastern Time.

SUPPLEMENTARY INFORMATION: On April

19, 1996, EPA proposed the Revised

Standards for Hazardous Waste

Combustors (i.e., incinerators, cement

and lightweight aggregate kilns that

burn hazardous waste). The revised

standards would limit emissions of PM

at these facilities and address the

application of PM CEMS for compliance

monitoring. See 61 FR 17358. On March

21, 1997, EPA published a Notice of

Data Availability (NODA) that further

examined the issues concerning PM

CEMS as compliance instruments. See

62 FR 13776. EPA published an

additional NODA on May 2, 1997, to

inform the public of: (1) Significant

changes the Agency is considering on

aspects of the proposal based on public

comments and new information; and (2)

the Agency’s own re-evaluation of

MACT standard-setting approaches

based on new data and public

comments.

The proposed rule would require that

PM CEMS be used to document

compliance with the proposed PM

standards. To be effective for

compliance monitoring, the Agency

determined that commercially available

PM CEMS must meet certain

performance specifications. The results

of the demonstration tests assist in the

development of these PM CEMS

performance specifications.

EPA plans to follow today’s NODA

with a second NODA which will discuss

issues pertaining to the demonstration

test report and PM CEMS

implementation considerations. The

second NODA will provide the

opportunity to comment on the report

and the issues.

Dated: November 5, 1997.

David Bussard,

Acting Director, Office of Solid Waste.

[FR Doc. 97–30019 Filed 11–13–97; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 76

[CS Docket No. 95–184; MM Docket No. 92–

260; FCC 97–376]

Inside Wiring

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission has adopted

a Report and Order and Second Further

Notice of Proposed Rulemaking which

addresses rules and policies concerning

cable inside wiring. The Report and

Order segment of this decision may be

found elsewhere in this issue of the

Federal Register. The Second Further

Notice of Proposed Rulemaking

(‘‘Second Further Notice’’) segment

seeks comment on proposed

amendments to the Commission’s

regulations relating to exclusive service

contracts, application of cable inside

wiring rules to all multichannel video

programming distributors (‘‘MVPDs’’),

signal leakage reporting requirements,

and simultaneous use of home run

wiring. This action was necessary

because exclusive service contracts and
61066 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

access to home run wiring are

significant competitive issues in

multiple dwelling unit buildings

(‘‘MDUs’’). In addition, this action was

necessary in order to ensure that all

MVPDs are treated equitably under our

inside wiring rules. The intended effect

of this action is to expand opportunities

for new entrants seeking to compete in

distributing video programming and to

ensure that the Commission’s inside

wiring rules remain pro-competitive.

DATES: Comments must be submitted on

or before December 23, 1997 and reply

comments must be submitted on or

before January 22, 1998.

ADDRESSES: Comments and reply

comments should be sent to Office of

the Secretary, Federal Communications

Commission, 1919 M Street, NW,

Washington, DC 20554. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

Center, Room 239, Federal

Communications Commission, 1919 M

Street NW, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Rick

Chessen, Cable Services Bureau, (202)

418–7200.

SUPPLEMENTARY INFORMATION: The

following is a synopsis of the Second

Further Notice segment of the

Commission’s Report and Order and

Second Further Notice of Proposed

Rulemaking in CS Docket No. 95–184

and MM Docket No. 92–260, FCC No.

97–376, adopted October 9, 1997 and

released October 17, 1997. The full text

of this decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street, NW,

Washington, DC 20554, and may be

purchased from the Commission’s copy

contractor, International Transcription

Services, Inc. (202) 857–3800 (phone),

(202) 857–3805 (fax), 1231 20th Street,

NW, Washington, DC 20036.

Synopsis

I. Introduction

1. The Second Further Notice

addresses issues raised in the Notice of

Proposed Rulemaking in CS Docket No.

95–184, 61 FR 3657 (February 1, 1996)

(‘‘Inside Wiring Notice’’), the Order On

Reconsideration and Further Notice of

Proposed Rulemaking in MM Docket

No. 92–260, 61 FR 6131 (February 16,

1996) and 61 FR 6210 (February 16,

1996) (‘‘Cable Home Wiring Further

Notice’’), and the Further Notice of

Proposed Rulemaking in CS Docket No.

95–184 and MM Docket No. 92–260, 62

FR 46453 (September 3, 1997) (‘‘Inside

Wiring Further Notice’’) regarding

potential changes in our telephone and

cable inside wiring rules in light of the

evolving telecommunications

marketplace.

II. Second Further Notice of Proposed

Rulemaking

A. Exclusive Service Contracts

2. We believe that exclusive service

contracts between MDU owners and

MVPDs can be pro-competitive or anticompetitive, depending upon the

circumstances involved. The term

‘‘MDU owner’’ (sometime referred to as

the ‘‘premises owner’’) as used herein

includes whatever entity owns or

controls the common areas of an

apartment building, condominium or

cooperative. Some alternative providers

have commented that in order to initiate

service in an MDU, they must be able to

use exclusive contracts to ensure their

ability to recover investment costs.

Other alternative providers have argued

that the Commission should limit the

ability of incumbent cable operators to

enter into exclusive contracts with MDU

owners.

3. We seek comment on whether the

Commission should adopt a ‘‘cap’’ on

the length of exclusive contracts for all

MVPDs that would limit the

enforceability of exclusive contracts to

the amount of time reasonably necessary

for an MVPD to recover its specific

capital costs of providing service to that

MDU, including, but not limited to, the

installation of inside wiring, headend

equipment and other start-up costs.

Commenters have suggested exclusivity

periods such as five to six years, seven

years and seven to ten years as

reasonable. We seek comment on what

would be a reasonable period of time for

a provider to recoup its specific

investment costs in an MDU. We seek

comment on an approach under which

a presumption that all existing and

future exclusivity provisions would be

enforceable for a maximum term of

seven years, except for exceptional cases

in which the MVPD could demonstrate

that it has not had a reasonable

opportunity to recover its specific

investment costs. For instance, the

exclusivity of a ‘‘perpetual’’ exclusive

contract entered into in 1983 would no

longer be enforceable; however, if the

service provider completed a substantial

rebuild of its plant in 1996, the provider

may be able to show that it has not had

a reasonable opportunity to recover its

investment costs notwithstanding the

fact that the exclusive contract was

entered into more than seven years ago.

Similarly, a provider may be able to

show that it has not had an opportunity

to recover its costs where it provided

discounted service in the early years of

an exclusive contract with the

expectation of making its returns in later

years. We inquire whether there should

be different treatment accorded existing

contracts and future contracts. We also

seek comment on the appropriate forum

for such a showing and whether the

enforceability of an exclusivity

provision should be extended only for

the time period reasonably necessary for

the provider to recover its costs.

4. If a ‘‘cap’’ is adopted, we seek

comment on whether service providers

would generally be able to structure

their business arrangements so as to

recover their capital costs within that

time limit. After a video service

provider has had an opportunity to

recover its costs under an exclusive

contract on a particular property, we

seek comment on whether we should

prohibit future exclusive contracts

between the video service provider and

the property owner, unless the service

provider can demonstrate that the

exclusive contract is necessary to

recoup a substantial new investment in

the property. We also inquire whether

MDU owners should be afforded an

opportunity to terminate the exclusive

contract and retain the inside wiring, in

exchange for a payment to the provider

compensating it for unrecovered

investment costs. We seek to determine

what circumstances allow MDU owners

and tenants to receive the benefits of

technological improvements most

expeditiously, while at the same time

enhancing competition among MVPDs.

5. In the alternative, we seek comment

on whether the Commission should

only limit exclusive contracts where the

MVPD involved possesses market

power. The Supreme Court has noted:

‘‘Exclusive dealing is an unreasonable

restraint on trade only when a

significant fraction of buyers or sellers

are frozen out of a market by the

exclusive deal.’’ Jefferson Parish Hosp.

Dist. No. 2 v. Hyde, 466 U.S. 2, 45

(1984), citing Standard Oil v. United

States, 337 U.S. 293 (1949). We seek

comment on circumstances

encompassing the video distribution

market and whether the Commission

can and should restrict or prohibit

MVPDs with market power from

entering into or enforcing exclusive

service contracts. In particular, we seek

comment on how to define ‘‘market

power’’ for these purposes, as well as

how to define the relevant geographic

market.

6. We are concerned about the

administrative practicability of making

market power determinations on a

widespread, case-by-case basis and seek

comment on whether we should

establish any presumptions in this
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61067

regard. We seek comment on whether

our decision not to preempt state

mandatory access statutes effectively

means that non-cable MVPDs cannot

enforce exclusive agreements in those

states, even where such agreements may

be pro-competitive. We also seek

comment on any other issues relevant to

the analysis of market power and

exclusive contracts in the context of this

proceeding.

7. In addition, we seek comment on

whether the Commission can and

should take any specific actions

regarding so-called ‘‘perpetual’’

exclusive contracts (i.e., those running

for the term of a cable franchise and any

extensions thereof). For instance, under

the market power approach, we seek

comment on whether the Commission

should adopt a presumption that the

MVPDs involved possessed market

power when such contracts were

executed. Under the seven-year ‘‘cap’’

approach, we seek comment on whether

‘‘perpetual’’ exclusive contracts would

simply fall within the general rule

limiting the enforceability of exclusive

contracts to seven years from execution

unless the MVPD can demonstrate that

it has not had a reasonable opportunity

to recover its specific capital costs.

8. Under one proposal, property

owners that have committed to longterm perpetual exclusive contracts

would have a window of 180 days to

take a ‘‘fresh look’’ at the marketplace to

renegotiate or terminate those contracts

without liability in order to avail

themselves of a competitive alternative

service provider. We seek comment on

whether we can and should adopt a

‘‘fresh look’’ for ‘‘perpetual’’ exclusive

contracts. In addition, we seek comment

on several implementation issues: (1)

whether the ‘‘fresh look’’ would apply

only to ‘‘perpetual’’ exclusive contracts

and, if so, how such contracts

reasonably can be distinguished from

other long-term exclusive contracts; (2)

the scope of the ‘‘fresh look’’ and how

the ‘‘fresh look’’ period would be

triggered to ensure a viable choice exists

(e.g., whether the ‘‘fresh look’’ be

applied on an MDU-by-MDU basis upon

the request of a private cable operator

able to serve the MDU, or more

generally on a franchise-by-franchise

basis where competitive choices exist in

the franchise area); and (3) whether the

‘‘fresh look’’ would be a one-time

opportunity or whether there could be

additional ‘‘fresh look’’ windows in

light of the development of new

technology and the entry of new video

service providers.

9. If we were to adopt a ‘‘fresh look’’

for ‘‘perpetual’’ exclusive contracts, we

seek comment on whether we should

open a 180-day ‘‘fresh look’’ window for

MDU owners upon the effective date of

our rules, unless the ‘‘perpetual’’

exclusive contract was entered into less

than seven years earlier, in which case

the ‘‘fresh look’’ window would open

for that MDU at the end of the sevenyear period. We also seek comment on

whether the MVPD should be able to

apply to the Commission for an

extension if the MVPD can demonstrate

that it has not had a reasonable

opportunity to recover its specific

capital costs by the end of this sevenyear period. Further, we seek comment

on whether, if an MDU owner does not

enter into a new contract during its

initial ‘‘fresh look’’ period, a new 180-

day ‘‘fresh look’’ window should open

at the expiration of each subsequent

franchise period until the MDU owner

opts out of its ‘‘perpetual’’ exclusive

contract. We seek comment on whether

this framework would protect MDU

owners who do not have a competitive

alternative and therefore would be

prejudiced by a one-time ‘‘fresh look’’

window, while ensuring that the

MVPDs involved have a reasonable

opportunity to recover their costs.

10. We also seek comment on our

statutory authority to adopt the

exclusive contracts proposals discussed

above. We also seek comment on any

other constitutional, statutory or

common law implications that these

proposals raise.

B. Application of Cable Inside Wiring

Rules to All MVPDs

11. We propose to apply our cable

home wiring rules for single-unit

installations to all MVPDs in the same

manner that they apply to cable

operators. We believe that applying

those rules to all MVPDs would promote

competitive parity and facilitate the

ability of a subscriber whose premises

was initially wired by a non-cable

MVPD to change providers. We seek

comment on this proposal and on our

authority to adopt it.

12. We also propose to expand to all

MVPDs the rule we are adopting herein

regarding cable subscribers’ rights, prior

to termination of service, to provide and

install their own cable home wiring and

to connect additional home wiring to

the wiring installed and owned by the

cable operator. We believe that applying

this rule to all MVPDs will promote the

same consumer benefits as in the cable

context: increased competition and

consumer choice, lower prices and

greater technical innovation. We seek

comment on this proposal, and in

particular on the Commission’s

authority for expanding this rule to all

MVPDs.

C. Signal Leakage Reporting

Requirements

13. Section 76.615 of the

Commission’s signal leakage rules

requires cable operators to file certain

information with the Commission when

operating in the aeronautical radio

frequency bands. 47 CFR 76.615. In

particular, § 76.615(b)(7) requires cable

operators to file annually with the

Commission the results of their signal

leakage tests conducted pursuant to

§ 76.611. 47 CFR 76.611 and

76.615(b)(7). We are concerned that the

reporting requirements of § 76.615(b)(7)

may impose undue burdens on small

broadband service providers, including

small cable operators. We seek comment

on whether certain categories of

broadband service providers should be

exempt from the filing requirements of

§ 76.615(b)(7) and, if so, what criteria

the Commission should use in defining

those providers. We would not propose

to exempt any broadband service

providers from the testing requirements

of § 76.615(b)(7), but simply the

requirement to report the results of such

tests to the Commission. For instance,

we seek comment on whether we

should exempt small broadband service

providers from the filing requirements

of § 76.615(b)(7) based on an existing

definition in the Commission’s rules, a

particular number of subscribers served,

the length of the cable plant or some

other criteria. For example, we have

defined a small cable system as any

system that serves 15,000 or fewer

subscribers and a small cable company

as one serving a total of 400,000 or

fewer subscribers over all of its systems.

Sixth Report and Order and Eleventh

Order on Reconsideration, MM Docket

Nos. 92–266 and 93–215

(Implementation of Sections of the

Cable Television Consumer Protection

and Competition Act of 1992: Rate

Regulation), 60 FR 35854 (July 12,

1995). We seek comment on the risks to

safety of life communications posed by

such an exemption. We also seek

comment on any other changes in this

area that would reduce burdens, yet

meet the goals of protecting against

signal leakage.

D. Simultaneous Use of Home Run

Wiring

14. As stated above, DIRECTV

suggests that the Commission should

establish a ‘‘virtual’’ demarcation point

from which an alternative provider

could share the wiring simultaneously

with the cable operator. Other

alternative providers endorse this view,

if it is technically possible, and CEMA

states that some of its members are
61068 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

currently developing equipment that

will allow multiple uses of a single

broadband wire. Cable operators

generally oppose DIRECTV’s suggestion

that two video service providers may

share a single wire, stating that the

alternative provider would have to use

different frequency bands to avoid

interference, and, while theoretically

possible, most systems do not have

sufficient bandwidth capacity to carry

multiple MVPDs. DIRECTV

acknowledges that only service

providers that use different parts of the

spectrum technically may be able to

share a single wire.

15. We believe that the sharing of a

single wire by multiple service

providers deserves further exploration.

We seek comment on DIRECTV’s

proposal that we require competing

broadband service providers to share a

single home run wire in MDUs. In

particular, we seek comment on the

current technical, practical and

economic feasibility and limitations of

sharing of home run wiring. We also

seek comment on our legal authority to

impose such a requirement and whether

such a requirement would constitute an

impermissible taking of private property

under the Fifth Amendment.

III. Initial Regulatory Flexibility Act

Analysis

16. As required by section 603 of the

Regulatory Flexibility Act, 5 U.S.C. 603,

(‘‘RFA’’), the Commission has prepared

an Initial Regulatory Flexibility

Analysis (‘‘IRFA’’) of the expected

significant impact on small entities by

the policies and rules proposed in this

Second Further Notice. Written public

comments are requested on the IRFA.

These comments must be filed in

accordance with the same filing

procedures as other comments in this

proceeding, but they must be have a

separate and distinct heading

designating them as responses to the

IRFA. The Secretary shall send a copy

of this Second Further Notice, including

the IRFA, to the Chief Counsel for

Advocacy of the Small Business

Administration in accordance with

section 603(a) of the RFA. In addition,

the Second Further Notice and IRFA (or

summaries thereof) will be published in

the Federal Register, pursuant to 5

U.S.C. 603(a).

Need for Action and Objectives of the

Proposed Rules

17. The Commission issues this

Second Further Notice to consider

additional rules to promote competition

and enhance consumer choice. In

particular, we seek comment on the

competitive implications of exclusive

service contracts between MDU owners

and MVPDs, and whether we should: (1)

limit exclusive contracts to a time

certain; (2) adopt restrictions on the

ability of MVPDs to enter into exclusive

contracts; or (3) adopt a ‘‘fresh look’’ for

‘‘perpetual’’ exclusive contracts. In

addition, we propose to expand to all

MVPDs the rule regarding cable

subscribers’ rights, prior to termination

of service, to provide and install their

own cable home wiring and to connect

additional home wiring to the wiring

installed and owned by the MVPD. We

also ask whether certain categories of

broadband service providers (e.g., small

broadband service providers, including

small cable operators) should be exempt

from the signal leakage reporting

requirements in § 76.615(b)(7). Finally,

we seek comment on the current

technical, practical, economic, and legal

limitations of requiring competing

broadband service providers to share a

single home run wire in MDUs.

Legal Basis

18. This Second Further Notice is

adopted pursuant to sections 1, 4, 224,

251, 303, 601, 623, 624, and 632 of the

Communications Act of 1934, as

amended, 47 U.S.C. §§ 151, 154, 224,

251, 303, 521, 543, 544, and 552.

Description and Estimate of the Number

of Small Entities Impacted

19. The RFA directs the Commission

to provide a description of and, where

feasible, an estimate of the number of

small entities that will be affected by the

proposed rules. The RFA defines the

term ‘‘small entity’’ as having the same

meaning as the terms ‘‘small business,’’

‘‘small organization,’’ and ‘‘small

governmental jurisdiction,’’ and the

same meaning as the term ‘‘small

business concern’’ under section 3 of

the Small Business Act. Under the

Small Business Act, a ‘‘small business

concern’’ is one that: (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’’). The rules we

propose in this Second Further Notice

will affect MVPDs and MDU owners.

20. Small MVPDs: SBA has developed

a definition of a small entity for cable

and other pay television services, which

includes all such companies generating

$11 million or less in annual receipts.

This definition includes cable system

operators, closed circuit television

services, direct broadcast satellite

services, multipoint distribution

systems, satellite master antenna

systems and subscription television

services. According to the Bureau of the

Census, there were 1423 such cable and

other pay television services generating

less than $11 million in revenue that

were in operation for at least one year

at the end of 1992. We will address each

service individually to provide a more

succinct estimate of small entities.

21. Cable Systems: The Commission

has developed its own definition of a

small cable company for the purposes of

rate regulation. Under the Commission’s

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

serving fewer than 400,000 subscribers

nationwide. 47 CFR 76.901(e). Based on

our most recent information, we

estimate that there were 1439 cable

operators that qualified as small cable

companies at the end of 1995. Since

then, some of those companies may

have grown to serve over 400,000

subscribers, and others may have been

involved in transactions that caused

them to be combined with other cable

operators. Consequently, we estimate

that there are fewer than 1439 small

entity cable system operators that may

be affected by the decisions and rules

proposed in this Second Further Notice.

22. 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% 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 61,700,000

subscribers in the United States.

Therefore, we found that an operator

serving fewer than 617,000 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,

we find that the number of cable

operators serving 617,000 subscribers or

less totals 1450. Although it seems

certain that some of these cable system

operators are affiliated with entities

whose gross annual revenues exceed

$250,000,000, we are unable at this time

to estimate with greater precision the

number of cable system operators that

would qualify as small cable operators

under the definition in the

Communications Act.

23. MMDS: The Commission refined

the definition of ‘‘small entity’’ for the

auction of MMDS as an entity that

together with its affiliates has average

gross annual revenues that are not more

than $40 million for the preceding three

calendar years. This definition of a

small entity in the context of the

Commission’s Report and Order
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules 61069

concerning MMDS auctions has been

approved by the SBA.

24. The Commission completed its

MMDS auction in March 1996 for

authorizations in 493 basic trading areas

(‘‘BTAs’’). Of 67 winning bidders, 61

qualified as small entities. Five bidders

indicated that they were minorityowned and four winners indicated that

they were women-owned businesses.

MMDS is an especially competitive

service, with approximately 1573

previously authorized and proposed

MMDS facilities. Information available

to us indicates that no MMDS facility

generates revenue in excess of $11

million annually. We believe that there

are approximately 1634 small MMDS

providers as defined by the SBA and the

Commission’s auction rules.

25. ITFS: There are presently 1,989

licensed educational ITFS stations and

97 licensed commercial ITFS stations.

Educational institutions are included in

the definition of a small business.

However, we do not collect annual

revenue data for ITFS licensees and are

unable to ascertain how many of the 97

commercial stations would be

categorized as small under the SBA

definition. Thus, we believe that at least

1,989 ITFS licensees are small

businesses.

26. DBS: There are presently nine

DBS licensees, some of which are not

currently in operation. The Commission

does not collect annual revenue data for

DBS and, therefore, is unable to

ascertain the number of small DBS

licensees that could be impacted by

these proposed rules. Although DBS

service requires a great investment of

capital for operation, we acknowledge

that there are several new entrants in

this field that may not yet have

generated $11 million in annual

receipts, and therefore may be

categorized as a small business, if

independently owned and operated.

27. HSD: The market for HSD service

is difficult to quantify. Indeed, the

service itself bears little resemblance to

other MVPDs. HSD owners have access

to more than 265 channels of

programming placed on C-band

satellites by programmers for receipt

and distribution by video service

providers, of which 115 channels are

scrambled and approximately 150 are

unscrambled. HSD owners can watch

unscrambled channels without paying a

subscription fee. To receive scrambled

channels, however, an HSD owner must

purchase an integrated receiver-decoder

from an equipment dealer and pay a

subscription fee to an HSD

programming packager. Thus, HSD

users include: (1) viewers who subscribe

to a packaged programming service,

which affords them access to most of the

same programming provided to

subscribers of other video service

providers; (2) viewers who receive only

non-subscription programming; and (3)

viewers who receive satellite

programming services illegally without

subscribing. Because scrambled

packages of programming are most

specifically intended for retail

consumers, these are the services most

relevant to this discussion.

28. According to the most recently

available information, there are

approximately 30 program packagers

nationwide offering packages of

scrambled programming to retail

consumers. These program packagers

provide subscriptions to approximately

2,314,900 subscribers nationwide. This

is an average of about 77,163 subscribers

per program packager. This is

substantially smaller than the 400,000

subscribers used in the Commission’s

definition of a small MSO. Furthermore,

because this an average, it is likely that

some program packagers may be

substantially smaller.

29. OVS: The Commission has

certified nine OVS operators. Because

these services were introduced so

recently and only one operator is

currently offering programming to our

knowledge, little financial information

is available. Bell Atlantic (certified for

operation in Dover) and Metropolitan

Fiber Systems (‘‘MFS,’’ certified for

operation in Boston and New York)

have sufficient revenues to assure us

that they do not qualify as small

business entities. Two other operators,

Residential Communications Network

(‘‘RCN,’’ certified for operation in New

York) and RCN/BETG (certified for

operation in Boston), are MFS affiliates

and thus also fail to qualify as small

business concerns. However, Digital

Broadcasting Open Video Systems (a

general partnership certified for

operation in southern California), Urban

Communications Transport Corp. (a

corporation certified for operation in

New York and Westchester), and

Microwave Satellite Technologies, Inc.

(a corporation owned solely by Frank T.

Matarazzo and certified for operation in

New York) are either just beginning or

have not yet started operations.

Accordingly, we believe that three OVS

licensees may qualify as small business

concerns.

30. SMATVs: Industry sources

estimate that approximately 5200

SMATV operators were providing

service as of December 1995. Other

estimates indicate that SMATV

operators serve approximately 1.05

million residential subscribers as of

September 1996. The ten largest

SMATV operators together pass 815,740

units. If we assume that these SMATV

operators serve 50% of the units passed,

the ten largest SMATV operators serve

approximately 40% of the total number

of SMATV subscribers. Because these

operators are not rate regulated, they are

not required to file financial data with

the Commission. Furthermore, we are

not aware of any privately published

financial information regarding these

operators. Based on the estimated

number of operators and the estimated

number of units served by the largest

ten SMATVs, we believe that a

substantial number of SMATV operators

qualify as small entities.

31. LMDS: Unlike the above pay

television services, LMDS technology

and spectrum allocation will allow

licensees to provide wireless telephony,

data, and/or video services. An LMDS

provider is not limited in the number of

potential applications that will be

available for this service. Therefore, the

definition of a small LMDS entity may

be applicable to both cable and other

pay television (SIC 4841) and/or

radiotelephone communications

companies (SIC 4812). The SBA

definition for cable and other pay

services is defined above. A small

radiotelephone entity is one with 1500

employees or less. For the purposes of

this proceeding, we include only an

estimate of LMDS video service

providers. The vast majority of LMDS

entities providing video distribution

could be small businesses under the

SBA’s definition of cable and pay

television (SIC 4841). However, in the

LMDS Second Report and Order, we

defined a small LMDS provider as an

entity that, together with affiliates and

attributable investors, has average gross

revenues for the three preceding

calendar years of less than $40 million.

We have not yet received approval by

the SBA for this definition.

32. There is only one company,

CellularVision, that is currently

providing LMDS video services.

Although the Commission does not

collect data on annual receipts, we

assume that CellularVision is a small

business under both the SBA definition

and our proposed auction rules. We

tentatively conclude that a majority of

the potential LMDS licensees will be

small entities, as that term is defined by

the SBA.

33. MDU Operators: The SBA has

developed definitions of small entities

for operators of nonresidential

buildings, apartment buildings and

dwellings other than apartment

buildings, which include all such

companies generating $5 million or less

in revenue annually. According to the
61070 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Proposed Rules

Census Bureau, there were 26,960

operators of nonresidential buildings

generating less than $5 million in

revenue that were in operation for at

least one year at the end of 1992. Also

according to the Census Bureau, there

were 39,903 operators of apartment

dwellings generating less than $5

million in revenue that were in

operation for at least one year at the end

of 1992. The Census Bureau provides no

separate data regarding operators of

dwellings other than apartment

buildings, and we are unable at this

time to estimate the number of such

operators that would qualify as small

entities.

Reporting, Recordkeeping, and Other

Compliance Requirements

34. The Second Further Notice seeks

comment on whether small broadband

service providers, including small cable

operators, should be exempt from the

signal leakage reporting requirements in

§ 76.615(b)(7). Such an exemption

would relieve qualifying providers from

only the relevant filing requirements,

but not from the signal leakage testing

requirements.

Significant Alternatives and Steps

Taken to Minimize the Significant

Economic Impact on a Substantial

Number of Small Entities Consistent

With the Stated Objectives

This section analyzes the impact on

small entities of the regulations

proposed or considered in the Second

Further Notice.

35. The Second Further Notice seeks

comment on several proposals which

could minimize the economic impact on

a substantial number of small entities.

For instance, in seeking comment on

what policies should be adopted with

respect to exclusive contracts, the

Commission raises the option of a limit

on the length of exclusive contracts that

would still permit a small MVPD to

obtain exclusive contracts for the period

of time necessary to recover its

investment costs in the MDU building.

In addition, the Commission seeks

comment on whether small broadband

service providers, including small cable

operators, should be exempt from the

signal leakage reporting requirements in

§ 76.615(b)(7). The issue of whether

competing providers should be required

to share home run wiring explores the

possibility of another means by which

small MVPDs may be able to access

MDUs. Commenters are invited to

address the economic impact of these

proposals on small entities and offer any

alternatives.

Federal Rules That May Duplicate,

Overlap, or Conflict With the Proposed

Rules

None.

IV. Procedural Provisions

36. Ex parte Rules—‘‘Permit-butDisclose’’ Proceeding. This proceeding

will be treated as a ‘‘permit-butdisclose’’ proceeding subject to the

‘‘permit-but-disclose’’ requirements

under § 1.1206(b) of the rules. 47 CFR

1.1206(b), as revised. Ex parte

presentations are permissible if

disclosed in accordance with

Commission rules, except during the

Sunshine Agenda period when

presentations, ex parte or otherwise, are

generally prohibited. Persons making

oral ex parte presentations are reminded

that a memorandum summarizing a

presentation must contain a summary of

the substance of the presentation and

not merely a listing of the subjects

discussed. More than a one or two

sentence description of the views and

arguments presented is generally

required. See 47 CFR 1.1206(b)(2), as

revised. Additional rules pertaining to

oral and written presentations are set

forth in § 1.1206(b). 47 CFR 1.1206(b).

37. Filing of Comments and Reply

Comments. Pursuant to applicable

procedures set forth in §§ 1.415 and

1.419 of the Commission’s Rules,

interested parties may file comments on

or before December 23, 1997, and reply

comments on or before January 22,

1998. 47 CFR 1.415 and 1.419. To file

formally in this proceeding, you must

file an original plus four copies of all

comments, reply comments, and

supporting comments. If you want each

Commissioner to receive a personal

copy of your comments and reply

comments, you must file an original

plus nine copies. You should send

comments and reply comments to Office

of the Secretary, Federal

Communications Commission, 1919 M

Street, NW, Washington, DC 20554.

Comments and reply comments will be

available for public inspection during

regular business hours in the FCC

Reference Center, Room 239, Federal

Communications Commission, 1919 M

Street NW, Washington DC 20554.

V. Ordering Clauses

38. It is ordered that, pursuant to

sections 1, 4(i), 201–205, 214–215, 220,

303, 623, 624 and 632 of the

Communications Act of 1934, as

amended, 47 U.S.C. §§ 151, 154(i), 201–

205, 214–215, 220, 303, 543, 544 and

552, NOTICE IS HEREBY GIVEN of

proposed amendments to the

Commission’s rules, in accordance with

the proposals, discussions and

statements of issues in the Second

Further Notice of Proposed Rulemaking,

and COMMENT IS SOUGHT regarding

such proposals, discussions and

statements of issues.

39. It is further ordered that the

Commission SHALL SEND a copy of

this Second Further Notice of Proposed

Rulemaking, including the Initial

Regulatory Flexibility Analysis, to the

Chief Counsel for Advocacy of the Small

Business Administration.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–29513 Filed 11–13–97; 8:45 am]

BILLING CODE 6712–01–P

NATIONAL RAILROAD PASSENGER

CORPORATION

49 CFR Part 701

Revision of the Freedom of Information

Act Regulations of the National

Railroad Passenger Corporation and

Implementation of the Electronic

Freedom of Information Act

Amendments of 1996 (Public Law 104–

231)

AGENCY: National Railroad Passenger

Corporation.

ACTION: Proposed rule.

SUMMARY: This notice sets forth

proposed revisions of the Freedom of

Information Act (FOIA) regulations of

the National Railroad Passenger

Corporation (‘‘Amtrak’’). The rules

reflect recent developments in the

statute and case law, including the

Electronic Freedom of Information Act

Amendments of 1996 (Public Law 104–

231). The proposed revisions provide

substantive and procedural changes to

conform to the amendments. Amtrak

has also taken this opportunity to

streamline its rules and include updated

cost figures to be used in calculating

and charging fees.

DATES: Submit comments on or before

December 15, 1997.

ADDRESSES: Address all comments

concerning this proposed rule to

Medaris Oliveri, Freedom of

Information Office, National Railroad

Passenger Corporation, 60

Massachusetts Avenue, N.E.,

Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT:

Medaris Oliveri at 202/906–2728.

SUPPLEMENTARY INFORMATION: These

revisions incorporate changes to the

language and structure of Amtrak’s

regulations and also add new provisions