7744 Federal Register / Vol. 62, No. 34 / Thursday, February 20, 1997 / Proposed Rules

accessing the system, call the help desk

at (919) 541–5384 in Research Triangle

Park, NC.

Dated: February 13, 1997.

Richard Wilson,

Acting Assistant Administrator for Air and

Radiation.

[FR Doc. 97–4330 Filed 2–18–97; 1:50 pm]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Chapter I

[CC Docket No. 96–152, FCC 97–35]

Implementation of the

Telecommunications Act of 1996:

Telemessaging, Electronic Publishing,

and Alarm Monitoring Services

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Further Notice of

Proposed Rulemaking (FNPRM),

released February 7, 1977, seeks

comment on the meaning of certain

terms in section 274 of the

Telecommunications Act of 1996, (Act),

which governs Bell Operating

Companies’ provision of electronic

publishing services. The intent of the

FNPRM is to compile a record in

sufficient detail for us to determine the

meaning of those terms in this context.

DATES: Comments are due on or before

April 4, 1997 and reply comments are

due on or before April 25, 1997. Written

comments by the public on the

proposed and/or modified information

collections are due April 4, 1997 and

reply comments must be submitted no

later than April 25, 1997. Written

comments must be submitted by the

Office of Management and Budget

(OMB) on the proposed and/or modified

information collections on or before

April 21, 1997.

ADDRESSES: Comments and reply

comments should be sent to Office of

the Secretary, Federal Communications

Commission, 1919 M Street, N.W.,

Room 222, Washington, D. C. 20554,

with a copy to Janice Myles of the

Common Carrier Bureau, 1919 M Street,

N.W., Room 544, Washington, D. C.

20554. Parties should also file one copy

of any documents filed in this docket

with the Commission’s copy contractor,

International Transcription Services,

Inc., 2100 M Street, N.W., Suite 140,

Washington, D. C. 20037. In addition to

filing comments with the Secretary, a

copy of any comments on the

information collections contained

herein should be submitted to Dorothy

Conway, Federal Communications

Commission, 1919 M Street, N.W.,

Room 234, Washington, D. C. 20554, or

via the Internet to dconway@fcc.gov,

and to Timothy Fain, OMB Desk Officer,

725—17th Street, N.W.,10236 NEOB,

Washington, D. C. 20503 or via the

Internet to fainlt@al.eop.gov.

FOR FURTHER INFORMATION CONTACT: Lisa

Sockett, Attorney, Common Carrier

Bureau, Policy and Program Planning

Division, (202) 418–1580. For additional

information concerning the information

collections contained in this FNPRM

contact Dorothy Conway at 202–418–

0217, or via the Internet at

dconway@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s FNPRM

adopted February 6, 1997 and released

February 7, 1997 (FCC 97–35). This

FNPRM contains proposed or modified

information collections subject to the

Paperwork Reduction Act of 1995

(PRA). It has been submitted to the

Office of Management and Budget

(OMB) for review under the PRA. The

OMB, the general public, and other

Federal agencies are invited to comment

on the proposed or modified

information collections contained in

this proceeding. The full text of this

FNPRM is available for inspection and

copying during normal business hours

in the FCC Reference Center, 1919 M

St., Room 239, N.W., Washington, D. C.

The complete text also may be obtained

through the World Wide Web, at http:/

/www.fcc.gov/Bureaus/Common

Carrier/Orders/fcc9735.wp, or may be

purchased from the Commission’s copy

contractor, International Transcription

Service, Inc., (202) 857–3800, 2100 M

St., N.W., Suite 140, Washington, D. C.

20037.

Paperwork Reduction Act: This

FNPRM contains either a proposed or

modified information collection. The

Commission, as part of its continuing

effort to reduce paperwork burdens,

invites the general public and OMB to

comment on the information collections

contained in this FNPRM, as required

by the Paperwork Reduction Act of

1995, Public Law 104–13. Public and

agency comments are due at the same

time as other comments on this FNPRM;

OMB notification of action is due April

21, 1997. Comments should address: (a)

whether the proposed collection of

information is necessary for the proper

performance of the functions of the

Commission, including whether the

information shall have practical utility;

(b) the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility, and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

OMB Approval Number: None.

Title: Section 274(b)(3)(B)—Written

Contracts Filed with the Commission

and Made Publicly Available (CC

Docket No. 96–152, FNPRM).

Form No.: N/A.

Type of Review: New collection.

Information Collection

No. of

respondents

(approx.)

Estimated

time per

response

Total annual

burden

Written contracts filed with the Commission ......... 7 1⁄4 hour per contract ...... 3—150 hours per respondent (21—1050 hours

total).

Written contracts made publicly available ............. 7 3⁄4 hour per contract ...... 9—450 hours per respondent (63—3150 hours

total).

Total Annual Burden: 21—3,150

hours for all respondents.

Respondents: Businesses or other for

profit.

Estimated costs per respondent: $0.

Needs and Uses: The Commission

proposes the information collections to

implement section 274(b)(3)(B) of the

Act. The information may be used by

the Commission, unaffiliated electronic

publishing providers competing with

electronic publishing providers

affiliated with the BOC, and any other

member of the public interested in

monitoring the BOCs’ compliance with

the Act.
Federal Register / Vol. 62, No. 34 / Thursday, February 20, 1997 / Proposed Rules 7745

Synopsis of Further Notice of Proposed

Rulemaking

I. Further Notice of Proposed

Rulemaking

A. Meaning of ‘‘Control’’ and ‘‘Financial

Interest’’

1. We concluded above, in Part III.A,

that a BOC engaged in the provision of

electronic publishing is subject to

section 274 only to the extent that it

controls, or has a financial interest in,

the content of the information being

disseminated over its basic telephone

services. The record compiled in this

proceeding, however, does not provide

sufficient detail for us to determine the

meaning of ‘‘control’’ and ‘‘financial

interest’’ in this context. By clarifying

these terms, we believe we will be in a

better position to determine when, and

under what circumstances, a BOC’s

participation in a service constitutes

BOC provision of electronic publishing

service subject to the requirements of

section 274.

i. Meaning of ‘‘Control’’

2. The term ‘‘control’’ in section

274(i)(4) is defined according to

regulations promulgated by the

Securities and Exchange Commission

implementing the Securities Exchange

Act of 1934. As defined thereunder, the

term ‘‘control’’ means ‘‘the possession,

direct or indirect, of the power to direct

or cause the direction of the

management and policies of a person,

whether through the ownership of

voting securities, by contract, or

otherwise.’’ We tentatively conclude

that this definition, which defines the

term ‘‘control’’ in a corporate context, is

inappropriate for determining the

meaning of ‘‘control’’ in the present

context, i.e., when a BOC has ‘‘control’’

of the content of information

transmitted via its basic telephone

service. We therefore seek comment on

how we should determine whether a

BOC has ‘‘control’’ of the content of the

information being disseminated under

section 274.

3. For example, we seek comment on

whether an ownership interest is

required for a BOC to have ‘‘control’’ of

the content of the information. If so, we

seek comment on the percentage of

ownership interest necessary for the

BOC to be deemed to be in ‘‘control’’ of

the content of the information.

Alternatively, we seek comment on

whether ‘‘control’’ should be broadly

interpreted to include the ability of a

BOC, when acting as a gateway

provider, to limit the types of

information to which its gateway

connects. NYNEX suggests that this

ability does not imply the type of

‘‘control’’ over the underlying

information being transmitted and,

therefore, does not constitute electronic

publishing. We seek comment on this

interpretation.

ii. Meaning of ‘‘Financial Interest’’

4. We also seek comment on the

meaning of the term ‘‘financial interest.’’

We tentatively conclude that a BOC has

a ‘‘financial interest’’ in the content of

the information when the BOC owns the

information or has a direct or indirect

equity interest in the information being

disseminated via its basic telephone

services. We seek comment on this

tentative conclusion. We also seek

comment on other forms of BOC

participation that should be considered

indicia of ‘‘financial interest.’’ For

example, NYNEX maintains that a

‘‘financial interest’’ in the content of the

information should not be interpreted to

include receipt of compensation by a

BOC for managing and presenting the

content of unaffiliated entities as part of

its gateway services. Alternatively,

PacTel contends that a ‘‘financial

interest’’ must be a legally protected

property interest.’’ We seek comment on

these interpretations.

5. In addition, we seek comment on

whether we should establish a de

minimis exception to the financial

interest requirement once financial

interest has been established. For

example, if a BOC has a financial

interest in only one percent of the

content of the information, should it be

required to provide the electronic

publishing service through a ‘‘separated

affiliate’’ or ‘‘electronic publishing joint

venture’’? If not, should the BOC be

required to do so if it has a financial

interest of ten percent? We seek

comment on the percentage of financial

interest in an electronic publishing

service, as defined in section 274(h),

that makes a BOC subject to the

requirements of section 274.

B. Meaning of ‘‘Transaction’’ in

Section 274(b)(3) and the Requirements

of Section 274(b)(3)(B)

6. Section 274(b)(3) provides that a

separated affiliate or electronic

publishing joint venture established

pursuant to section 274(a) and the BOC

with which it is affiliated shall ‘‘carry

out transactions (A) in a manner

consistent with such independence, (B)

pursuant to written contracts or tariffs

that are filed with the Commission and

made publicly available, and (C) in a

manner that is auditable in accordance

with generally accepted accounting

standards.’’ We note that the clause in

section 274(b)(3)(B), ‘‘pursuant to

written contracts or tariffs that are filed

with the Commission,’’ can be read to

require the filing of both contracts and

tariffs with the Commission, or only the

filing of tariffs. In addition, the phrase

‘‘and made publicly available,’’ could

refer only to ‘‘tariffs’’ or also to ‘‘written

contracts.’’ Although the Accounting

Safeguards NPRM (61 FR 40161 (August

1, 1996)) sought comment on section

274(b)(3), no commenters in that

proceeding specifically addressed these

issues regarding section 274(b)(3)(B).

7.‘‘Filed with the Commission.’’ We

seek comment on whether BOCs should

be required under section 274(b)(3)(B) to

file both written contracts and tariffs on

Commission premises. We note that,

pursuant to existing practice, BOCs are

already required to file tariffs with the

Commission. We also note that section

211 of the Communications Act imposes

a general requirement on common

carriers to ‘‘file with the Commission’’

copies of ‘‘contracts, agreements, or

arrangements with other carriers, or

with common carriers not subject to the

provisions of [the Communications

Act]’’ relating to communications traffic.

Our rules implementing this section,

however, require only that certain

carriers file certain types of contracts

with the Commission.’’ As to the

remaining contracts within the scope of

section 211, carriers are permitted to

comply with section 211 by keeping the

contracts on their premises such that

they are ‘‘readily accessible to

Commission staff and members of the

public upon reasonable request.’’ We

invite parties to comment on whether

we can and should adopt these

procedures to implement the statutory

language in section 274(b)(3)(B).

8. ‘‘Made Publicly Available.’’ We

tentatively conclude that section

274(b)(3)(B) requires that both written

contracts and tariffs be made ‘‘publicly

available.’’ As noted above, BOCs are

already required to make their tariffs

and certain written contracts with other

carriers publicly available by filing them

with the Commission and make others

contracts accessible upon reasonable

request. We find that interpreting this

section to require all contracts, as well

as tariffs, to be made ‘‘publicly

available,’’ is necessary to ensure that

BOCs are complying with the

nondiscrimination and accounting

safeguards of the Act and to enable

competitors to detect discrimination

and potential improper cost allocations

by the BOCs. We seek comment on this

tentative conclusion.

9. Assuming that section 274(b)(3)(B)

does not require BOCs to file all their

written contracts with separated

affiliates or electronic publishing joint

ventures on Commission premises, we
7746 Federal Register / Vol. 62, No. 34 / Thursday, February 20, 1997 / Proposed Rules

seek comment on the means by which

a BOC and its separated affiliate or

electronic publishing joint venture must

make their contracts ‘‘publicly

available’’ pursuant to section

274(b)(3)(B). In interpreting a similar

requirement in section 272(b)(5), which

requires that BOCs and their section 272

affiliates reduce their transactions to

writing and make them available for

public inspection, we found that a BOC

must make information ‘‘available for

public inspection’’ pursuant to that

section by making it available at its

corporate headquarters and not the

RBOC corporate headquarters or the

corporate headquarters of the BOC’s

holding company. We stated that this

information must include a certification

statement identical to the certification

statement currently required to be

included with all Automated Reporting

and Management Information System

(‘‘ARMIS’’) reports. We also concluded

that detailed written descriptions of

transactions between BOCs and their

section 272 affiliates must be made

available to the public on the Internet

within ten days of the transaction. We

therefore seek comment on whether, for

written contracts within section

274(b)(3)(B) that we decide need not be

filed on Commission premises, we

should interpret the ‘‘publicly

available’’ requirement of this section in

the same manner as we interpreted the

‘‘available for public inspection’’

requirement in section 272(b)(5).

Commenters disagreeing with this

approach should explain why, and

propose alternative approaches.

10. Meaning of ‘‘Transaction.’’ We

also seek comment on what constitutes

a ‘‘transaction’’ for purposes of section

274(b)(3). We note that, for purposes of

section 272(b)(5), we concluded that

only once the BOC and its affiliate have

agreed upon the terms and conditions

for telephone exchange and exchange

access does the agreement constitute a

‘‘transaction.’’ We also found that an

agreement between a BOC and its

affiliate for the provision of unbundled

elements and facilities pursuant to

explicit terms and conditions also

constitutes a ‘‘transaction.’’ We seek

comment here on whether we should

adopt similar conclusions in the context

of section 274(b)(3). We note, however,

that section 274(d) requires BOCs to

provide ‘‘network access and

interconnections for basic telephone

service to electronic publishers at just

and reasonable rates that are tariffed (so

long as rates for such services are

subject to rate regulation).’’ We therefore

tentatively conclude that, although

section 274(b)(3)(B) provides that

transactions must be carried out

pursuant to ‘‘written contracts or

tariffs,’’ the specific transactions

described in section 274(d) may only be

carried out pursuant to tariff (so long as

such services are subject to rate

regulation). We seek comment on this

tentative conclusion.

C. Procedural Matters

i. Ex Parte Presentations

This FNPRM is a non-restricted

notice-and-comment rulemaking

proceeding. Ex parte presentations are

permitted, in accordance with the

Commission’s rules, provided that they

are disclosed as required.

ii. Regulatory Flexibility Certification

12. Section 603 of the Regulatory

Flexibility Act, (RFA) as amended,

requires an initial regulatory flexibility

analysis in notice and comment

rulemaking proceedings, unless we

certify that ‘‘the rule will not, if

promulgated, have a significant

economic impact on a substantial

number of small entities.’’ A ‘‘small

entity’’ is an entity that is

independently owned and operated; is

not dominant in its field of operation;

and meets any additional criteria

established by the Small Business

Administration (SBA). SBA regulations

define small telecommunications

entities in SIC code 4813 (Telephone

Companies Except Radio Telephone) as

entities with fewer than 1,500

employees. This proceeding pertains to

the BOCs which, because they are

dominant in their field of operation and

have more than 1,500 employees, do not

qualify as small entities under the RFA.

We also note that none of the BOCs is

a small entity because each BOC is an

affiliate of a Regional Holding Company

(RHC), and all of the BOCs or their

RHCs have more than 1,500 employees.

We therefore certify, pursuant to section

605(b) of the RFA, that the tentative

conclusions, if adopted, will not have a

significant economic impact on a

substantial number of small entities.

The Secretary shall send a copy of this

FNPRM, including this certification and

statement, to the Chief Counsel for

Advocacy of the Small Business

Administration. A copy of this

certification will also be published in

the Federal Register.

iii. Initial Paperwork Reduction Act of

1995 Analysis

13. This FNPRM contains either a

proposed or modified information

collection. As part of its continuing

effort to reduce paperwork burdens, we

invite the general public and the OMB

to take this opportunity to comment on

the information collections contained in

this FNPRM, as required by the

Paperwork Reduction Act of 1995,

Public Law 104–13. Public and agency

comments are due at the same time as

other comments on this FNPRM; OMB

comments are due 60 days from the date

of publication of this FNPRM in the

Federal Register. Comments should

address: (a) whether the proposed

collection of information is necessary

for the proper performance of the

functions of the Commission, including

whether the information shall have

practical utility; (b) the accuracy of the

Commission’s burden estimates; (c)

ways to enhance the quality, utility, and

clarity of the information collected; and

(d) ways to minimize the burden of the

collection of information on the

respondents, including the use of

automated collection techniques or

other forms of information technology.

iv. Comment Filing Procedures

14. Pursuant to applicable procedures

set forth in Sections 1.415 and 1.419 of

the Commission’s rules, 47 CFR 1.415,

1.419, interested parties may file

comments on or before April 4, 1997,

and reply comments on or before April

25, 1997. To file formally in this

proceeding, you must file an original

and six copies of all comments, reply

comments, and supporting comments. If

you want each Commissioner to receive

a personal copy of your comments, you

must file an original and eleven copies.

Comments and reply comments should

be sent to the Office of the Secretary,

Federal Communications Commission,

1919 M Street, N.W., Room 222,

Washington, D.C., 20554, with a copy to

Janice Myles of the Common Carrier

Bureau, 1919 M Street, N.W., Room 544,

Washington, D.C., 20554. Parties should

also file one copy of any documents

filed in this docket with the

Commission’s copy contractor,

International Transcription Services,

Inc., 2100 M Street, N.W., Suite 140,

Washington, D.C., 20037. Comments

and reply comments will be available

for public inspection during regular

business hours in the FCC Reference

Center, 1919 M Street, N.W., Room 239,

Washington, D.C., 20554.

15. Comments and reply comments

must include a short and concise

summary of the substantive arguments

raised in the pleading. Comments and

reply comments must also comply with

Section 1.49 and all other applicable

sections of the Commission’s Rules. See

47 CFR 1.49. However, we require here

that a summary be included with all

comments and reply comments,

regardless of length. This summary may

be paginated separately from the rest of
Federal Register / Vol. 62, No. 34 / Thursday, February 20, 1997 / Proposed Rules 7747

the pleading (e.g., as ‘‘i, ii’’). We also

direct all interested parties to include

the name of the filing party and the date

of the filing on each page of their

comments and reply comments. All

parties are encouraged to utilize a table

of contents, regardless of the length of

their submission. Parties may not file

more than a total of ten (10) pages of ex

parte submissions, excluding cover

letters. This 10 page limit does not

include: (1) written ex parte filings

made solely to disclose an oral ex parte

contact; (2) written material submitted

at the time of an oral presentation to

Commission staff that provides a brief

outline of the presentation; or (3)

written materials filed in response to

direct requests from Commission staff.

Ex parte filings in excess of this limit

will not be considered as part of the

record in this proceeding.

16. Parties are also asked to submit

comments and reply comments on

diskette. Such diskette submissions

would be in addition to, and not a

substitute for, the formal filing

requirements addressed above. Parties

submitting diskettes should submit

them to Janice Myles of the Common

Carrier Bureau, 1919 M Street, N.W.,

Room 544, Washington, D.C., 20554.

Such a submission should be on a 3.5

inch diskette formatted in an IBM

compatible form using MS DOS 5.0 and

WordPerfect 5.1 software. The diskette

should be submitted in ‘‘read only’’

mode. The diskette should be clearly

labelled with the party’s name,

proceeding, type of pleading (comment

or reply comments) and date of

submission. The diskette should be

accompanied by a cover letter.

17. Written comments by the public

on the proposed and/or modified

information collections are due April 4,

1997, and reply comments must be

submitted not later than April 25, 1997.

Written comments must be submitted by

the OMB on the proposed and/or

modified information collections on or

before 60 days after date of publication

in the Federal Register. In addition to

filing comments with the Secretary, a

copy of any comments on the

information collections contained

herein should be submitted to Dorothy

Conway, Federal Communications

Commission, Room 234, 1919 M Street,

N.W., Washington, D.C., 20554, or via

the Internet to dconway@fcc.gov, and to

Timothy Fain, OMB Desk Officer, 10236

NEOB, 725—17th Street, N.W.,

Washington, D.C., 20503 or via the

Internet to fainlt@al.eop.gov.

II. Ordering Clauses

18. It is ordered that pursuant to

sections 1, 2, 4, 201, 202, 274 and 303(r)

of the Communications Act of 1934, as

amended, 47 U.S.C. 151, 152, 154, 201,

202, 274, and 303(r), the further notice

of proposed rulemaking is adopted.

19. It is further ordered that the

Secretary shall send a copy of the

further notice of proposed rulemaking,

including the regulatory flexibility

certification, to the Chief Counsel for

Advocacy of the Small Business

Administration, in accordance with

paragraph 603(a) of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–4027 Filed 2–19–97; 8:45 am]

BILLING CODE 6712–01–P