Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Proposed Rules 10011

Rule Making is issued until the matter

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 97–5355 Filed 3–4–97; 8:45 am]

BILLING CODE 6712–01–P

47 CFR Part 73

[MM Docket No. 97–85, RM–9026]

Radio Broadcasting Services;

Belgrade, MT

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: This document requests

comments on a petition filed by Gallatin

Valley Witness, Inc., proposing the

allotment of Channel 256A to Belgrade,

Montana, as that community’s second

local FM broadcast service. The

coordinates for Channel 256A are 45–

46–36 and 111–10–36.

DATES: Comments must be filed on or

before April 21, 1997, and reply

comments on or before May 6, 1997.

ADDRESSES: Federal Communications

Commission, Washington, DC. 20554. In

addition to filing comments with the

FCC, interested parties should serve the

petitioner’s counsel, as follows: Bryan

Cave LLP, 700 Thirteenth Street, NW,

Suite 600, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT:

Kathleen Scheuerle, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rule Making, MM Docket No.

97–85, adopted February 21, 1997, and

released February 28, 1997. The full text

of this Commission decision is available

for inspection and copying during

normal business hours in the

Commission’s Reference Center (Room

239), 1919 M Street, NW., Washington,

DC. The complete text of this decision

may also be purchased from the

Commission’s copy contractors,

International Transcription Services,

Inc., 2100 M Street, NW., Suite 140,

Washington, DC. 20037, (202) 857–3800.

Provisions of the Regulatory

Flexibility Act of l980 do not apply to

this proceeding.

Members of the public should note

that from the time a Notice of Proposed

Rule Making is issued until the matter

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contact.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 97–5356 Filed 3–4–97; 8:45 am]

BILLING CODE 6712–01–P

47 CFR Part 73

[MM Docket No. 97–83; RM–8948]

Radio Broadcasting Services;

Westport, WA

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission requests

comments on a petition filed by

Chehalis Broadcasting Company

proposing the allotment of Channel

267A at Westport, Washington, as the

community’s first local aural

transmission service. Channel 267A can

be allotted to Westport in compliance

with the Commission’s minimum

distance separation requirements at city

reference coordinates. The coordinates

for Channel 267A at Westport are North

Latitude 46–53–24 and West Longitude

124–06–06. Since Westport is located

within 320 kilometers (200 miles) of the

U.S.-Canadian border, concurrence of

the Canadian government has been

requested.

DATES: Comments must be filed on or

before April 21, 1997, and reply

comments on or before May 6, 1997.

ADDRESSES: Federal Communications

Commission, Washington, DC 20554. In

addition to filing comments with the

FCC, interested parties should serve the

petitioner, or its counsel or consultant,

as follows: Henry E. Crawford, Esq.,

1150 Connecticut Ave., NW., Suite 900,

Washington, DC 20036 (Counsel for

Petitioner).

FOR FURTHER INFORMATION CONTACT:

Sharon P. McDonald, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rule Making, MM Docket No.

97–83, adopted February 21, 1997, and

released February 28, 1997. The full text

of this Commission decision is available

for inspection and copying during

normal business hours in the FCC

Reference Center (Room 239), 1919 M

Street, NW., Washington, DC. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Service, Inc., (202) 857–

3800, 2100 M Street, NW., Suite 140,

Washington, DC 20037.

Provisions of the Regulatory

Flexibility Act of 1980 do not apply to

this proceeding.

Members of the public should note

that from the time a Notice of Proposed

Rule Making is issued until the matter

is no longer subject to Commission

consideration or court review, all ex

parte contacts are prohibited in

Commission proceedings, such as this

one, which involve channel allotments.

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 97–5358 Filed 3–4–97; 8:45 am]

BILLING CODE 6712–01–P

47 CFR Part 76

[CS Docket No. 97–80; FCC 97–53]

Commercial Availability of Navigation

Devices

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Federal Communications

Commission seeks comments on

proposals to implement Section 629 of

the Communications Act of 1934, as

amended, 47 U.S.C. 549, concerning the

commercial availability of navigation

devices. This notice is prompted by

Section 304 of the 1996

Telecommunications Act, which

became law on February 5, 1996, adding

this provision to the Communications

Act. This action is intended to

implement the 1996 Act.
10012 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Proposed Rules

DATES: Comments are due on or before

May 16, 1997 and reply comments are

due on or before June 16, 1997.

ADDRESSES: Federal Communications

Commission, 1919 M Street, NW.,

Washington, DC 20554.

FOR FURTHER INFORMATION, CONTACT:

Technical Information: Michael Lance,

Cable Services Bureau, (202) 418–7014.

Legal Information: Barrett L. Brick,

Cable Services Bureau, (202) 418–1065.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rulemaking, CS Docket No.

97–80, adopted February 11, 1997 and

released on February 20, 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

Service, (202) 857–3800, 1919 M Street,

NW., Washington, DC 20554.

Synopsis of the Notice of Proposed Rule

Making

1. In this notice of proposed

rulemaking, the Commission seeks

comment on proposals to implement

Section 629 of the Communications Act,

added as part of the

Telecommunications Act of 1996,

Public Law 104–104, 110 Stat. 56 (1996)

(1996 Act). Section 629 instructs the

Commission to promote the commercial

availability to consumers of navigation

devices: That is, equipment used to

access multichannel video programming

and other services offered over

multichannel video programming

systems. The Commission is also

instructed not to jeopardize the security

of services offered over multichannel

video programming systems.

2. The Commission first seeks

comment regarding the scope and

meaning of Section 629. The

Commission tentatively concludes that

the coverage of Section 629 is broad in

terms of the multichannel video

programming distributors (MVPDs)

involved, including cable television,

multichannel broadcast television, DBS,

MMDS, and SMATVs. The Commission

also tentatively concludes that Section

629 is broad in terms of the type of

equipment covered, including not just

equipment used to receive video

programming, but also equipment used

to access other services offered by

MVPDs over their systems. The

Commission seeks comments on these

conclusions, and also on methods to

narrow the focus of the rulemaking

process and rules adopted in order best

to accomplish the statutory objectives.

3. The Commission seeks comment on

the meaning of commercial availability

in the context of Section 629. The

Commission proposes to incorporate a

consumer right to attach equipment into

the rules, modeled after the telephony

right to attach which had its genesis in

Carterphone, 13 FCC 2d 420, recon.

denied, 14 FCC 2d 571 (1968), and seeks

comment on this proposal. The

Commission recognizes that in

implementing Section 629, there is a

need to assure that customer premises

equipment (CPE) does not cause harm to

the network to which the CPE is

attached, and that the networks

technical integrity is maintained. The

Commission seeks comment on how

best to accomplish this task. The

Commission tentatively concludes that

existing Part 15 certification rules

should adequately address signal

leakage issues surrounding existing

navigation devices, and seeks comment

on this conclusion. The Commission

also seeks comment on whether the

marketplace will sufficiently address

signal quality issues involving

navigation devices.

4. Section 629 requires that navigation

devices be commercially available from

vendors not affiliated with any MVPD.

The Commission tentatively concludes

that the definition of affiliate in Section

3 of the 1996 Act, which establishes a

ten percent equity interest threshold, is

applicable to Section 629 and seeks

comment on this conclusion.

5. The Commission seeks comment

not only on issues raised by current

equipment distribution models, but also

on whether and what degree of

standardization might be necessary so

that navigation devices may be

geographically portable or may be

interoperable to function with different

types of MVPDs or both. The

Commission seeks comment on the

incremental cost of additional

capabilities in this context. The

Commission also seeks comment on the

process whereby any necessary

standards might be developed to

promote competition. The Commission

states its desire not to develop standards

itself, but rather urges the adoption of

voluntary standards by those affected.

The Commission seeks comment on the

techniques it should use should

standards prove to be necessary or

desirable toward assuring the

commercial availability of navigation

devices, including alternatives to actual

standard setting.

6. The Commission recognizes that

some of the technologies implicated by

this proceeding may be wholly or

partially proprietary in nature. The

Commission seeks comment on its

authority to affect proprietary rights,

and on what limitations existing

proprietary rights may place on the

Commission’s authority to mandate

commercial availability of navigation

devices.

7. Section 629 instructs the

Commission not to jeopardize the

security of services offered over

multichannel video programming

systems, nor to impede service

providers’ legal rights to prevent theft of

service. In order to fashion effective

rules that fulfill this requirement, the

Commission seeks data and information

on existing security methodologies

employed by MVPD industries, and

seeks comment on what it means to

jeopardize security and to impede a

programmer’s rights to prevent theft of

service. The Commission recognizes

that equipment that performs security

functions is often combined with

equipment that performs other

functions. The Commission seeks

comment on the possibility of

unbundling security from nonsecurity

equipment. The Commission tentatively

concludes, should such unbundling be

necessary, that the preferred option for

developing the necessary framework to

accomplish this would be to adopt only

a conduct or performance rule

mandating the separation involved,

leaving to the industry participants

involved the task of developing the

necessary interface standards. The

Commission also seeks comment on

whether the affected industries could

voluntarily adopt and the Commission

approve a variant of the decoder

interface connector discussed in the

First Report and Order in ET Docket No.

93–7, 9 FCC Rcd 1981, 59 FR 25339

(May 16, 1994) and in the Memorandum

Opinion and Order in ET Docket No.

93–7, 11 FCC Rcd 4121, 61 FR 18508

(April 26, 1996). The Commission also

seeks comment on the impact of the

1996 Act’s amendments to Section 624A

of the Communications Act on the

Commission’s authority under Section

629.

8. Section 629 allows MVPDs to offer

navigation devices to consumers if the

charges are separately stated and not

subsidized by charges for the service

accessed by the devices. The

Commission tentatively concludes that

continuing with existing forms of

regulations that are broadly intended to

constrain the subsidization of

equipment prices from regulated service

revenues is most consistent with the

1996 Act, and seeks comment on this

conclusion, as well as on alternative

means of addressing subsidy issues.

9. Section 629 requires the

Commission to waive any implementing
Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Proposed Rules 10013

1 5 U.S.C. 603. The RFA has been amended by the

Contract With America Advancement Act of 1996,

Public Law 104–121, 110 Stat. 847 (1996)

(‘‘CWAAA’’). Title II of the CWAAA is the ‘‘Small

Business Regulatory Enforcement Fairness Act of

1996’’ (‘‘SBREFA’’), codified at 5 U.S.C. 601 et seq. 2 5 U.S.C. 601(3) (1980).

3U.S. Census Bureau, 1992 Economic Census,

1992 Census of Transportation, Communications

and Utilities at Firm Size 1–123.

4 47 CFR 76.901(e). The Commission developed

this definition based on its determinations that a

small cable system operator is one with annual

revenues of $100 million or less. Implementation of

Sections of the 1992 Cable Act: Rate Regulation,

Sixth Report and Order and Eleventh Order on

Reconsideration, 10 FCC Rcd 7393, 60 FR 35854

(July 12, 1995).

5Paul Kagan Associates, Inc., Cable TV Investor,

Feb. 29, 1996 (based on figures for Dec. 30, 1995).

6 47 U.S.C. 543(m)(2).

7 47 CFR 76.1403(b).

8Paul Kagan Associates, Inc., Cable TV Investor,

Feb. 29, 1996 (based on figures for Dec. 30, 1995).

regulation adopted for a limited period

of time upon an appropriate showing

that such a waiver is necessary to assist

the development or introduction of new

or improved multichannel video

programming or other service offered

over multichannel video programming

systems, technology, or products. The

Commission tentatively concludes that

where such waivers are required and

requested, these requests should be

looked upon sympathetically and

expansively. The Commission seeks

comment on this analysis. The

Commission also seeks comment on

whether guidelines need to be set to

define the limited time contemplated,

and also on whether the Commission’s

existing waiver procedures need to be

modified to comply with the statutory

mandate that the Commission act on a

waiver within 90 days of its filing.

10. Section 629 provides that

implementing regulations which are

adopted shall cease to apply upon a

Commission determination that the

MVPD market is fully competitive, that

the market for navigation devices is

fully competitive, and that elimination

of the regulations will promote

competition and the public interest. The

Commission seeks comment on the

service category and geographic market

analyses required, as well as the

circumstances in general under which

regulatory involvement might terminate.

The Commission tentatively concludes

that regulations for certain types of

equipment may not need to be adopted

in the first place if competition is

already fully robust, and seeks comment

on this conclusion.

Initial Regulatory Flexibility Analysis

11. As required by Section 603 of the

Regulatory Flexibility Act (‘‘RFA’’), 1 the

Commission has prepared the following

Initial Regulatory Flexibility Analysis

(‘‘IRFA’’) of the expected significant

economic impact on small entities by

the policies and rules proposed in this

Notice of Proposed Rulemaking. Written

public comments are requested on the

IRFA. These comments must be filed in

accordance with the same filing

deadlines as comments on the rest of the

Notice but they must have a separate

and distinct heading designating them

as responses to the IRFA. The Secretary

shall send a copy of this Notice to be

sent to the Chief Counsel for Advocacy

of the Small Business Administration

(‘‘SBA’’) in accordance with 5 U.S.C.

603(a).

12. Need for and Objectives of the

Proposed Rules: The 1996 Act requires

the Commission to promulgate rules

designed to promote the commercial

availability of navigation devices. The

Commission is issuing this Notice to

seek comment on the proposed rules

intended to implement this provision of

the 1996 Act, and to provide a record for

a Commission decision on issues

discussed in the Notice.

13. Legal Basis: Authority for this

proposed rulemaking is contained in

Sections 4(i), 4(j), 303(r), and 629 of the

Communications Act of 1934 as

amended, 47 U.S.C. 154(i), 154(j),

303(r), and §§ 304 and 549 of the

Telecommunications Act of 1996,

Public Law 104–104, 110 Stat. 56

(1996).

14. Description and Estimate of Small

Entities to Which the Proposed Rules

Will Apply: Implementation of Section

304 will have the positive result of

opening up to small entities the market

to supply navigation devices directly to

cable and other subscribers. In addition,

small businesses will have the

opportunity to become the

manufacturers of navigation devices.

While any policies or rules developed in

this proceeding could have an impact

on small businesses that manufacture,

distribute, or use converter boxes,

interactive communications equipment,

and other equipment used by consumers

to access multichannel video

programming and other services offered

over multichannel video programming

systems, this proceeding seeks comment

on how this burden, if any, could be

mitigated for small entities.

15. The Regulatory Flexibility Act

defines the term ‘‘small entity’’ as

having the same meaning as the terms

‘‘small business,’’ ‘‘small organization,’’

and ‘‘small business concern’’ under

Section 3 of the Small Business Act. 2 A

small 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 SBA.

16. Small MVPDs: SBA has developed

a definition of small entity for cable and

other pay television services, which

includes all such companies generating

less than $11 million in revenue

annually. This definition includes cable

systems operators, closed circuit

television services, direct broadcast

satellite services, multipoint

distribution systems, satellite master

antenna systems and subscription

television services. According to the

Census Bureau, there were 1,323 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 1992.3

17. Cable Systems: The Commission

has developed its own definition of a

small cable system operator for the

purposes of rate regulation. Under the

Commission’s rules, a ‘‘small cable

company,’’ is one serving fewer than

400,000 subscribers nationwide. 4 Based

on our most recent information, we

estimate that there were 1,439 cable

operators that qualified as small cable

system operators at the end of 1995.5

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 1,439 small

entity cable system operators that may

be affected by the decisions and rules

proposed in this Notice.

18. 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.’’ 6 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.7 Based on available data,

we find that the number of cable

operators serving 617,000 subscribers or

less totals 1,450. 8 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
10014 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Proposed Rules

9 47 CFR 21.961(b)(1).

10See Amendment of Parts 21 and 74 of the

Commission’s Rules With Regard to Filing

Procedures in the Multipoint Distribution Service

and in the Instructional Television Fixed Service

and Implementation of Section 309(j) of the

Communications Act—Competitive Bidding, MM

Docket No. 94–31 and PP Docket No. 93–253,

Report and Order, 10 FCC Rcd 9589, 60 FR 36524

(July 17, 1995).

11SBREFA also applies to nonprofit organizations

and governmental organizations such as cities,

counties, towns, townships, villages, school

districts, or special districts, with populations of

less than 50,000. 5 U.S.C. 601(5).

12Report in CS Docket No. 96–133 (‘‘1996

Competition Report’’), FCC 96–496 at ¶ 49, 62 FR

5627 (February 6, 1997).

13 Id.

14 Id.

15 Id.

16 1996 Competition Report at ¶81.

17 Id.

18 Id.

19 13 CFR § 121.201.

20 In the Matter of Rulemaking to Amend Parts 1,

2, 21, and 25 of the Commission’s Rules to

Redesignate the 27.5–29.5 GHz Frequency Band, to

Reallocate the 29.5–30.0 GHz Frequency Band, to

Establish Rules and Policies for Local Multipoint

Distribution Service and for Fixed Satellite Services

and Suite 12 Group Petition for Pioneer’s Preference

(‘‘Third NPRM’’), CC Docket No. 92–297, 11 FCC

Rcd 53, at ¿188, 60 FR 43740 (August 23, 1995).

number of cable system operators that

would qualify as small cable operators

under the definition in the

Communications Act.

19. 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.9 This definition of a

small entity in the context of the

Commission’s Report and Order

concerning MMDS auctions that has

been approved by the SBA.10

20. 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 MDS facility

generates revenue in excess of $11

million annually. We tentatively

conclude that for purposes of this IRFA,

there are approximately 1634 small

MMDS providers as defined by the SBA

and the Commission’s auction rules.

21. ITFS: There are presently 2032

ITFS licensees. All but one hundred of

these licenses are held by educational

institutions. Educational institutions are

included in the definition of a small

business.11 However, we do not collect

annual revenue data for ITFS licensees

and are not able to ascertain how many

of the 100 non-educational licensees

would be categorized as small under the

SBA definition. Thus, we tentatively

conclude that at least 1932 licensees are

small businesses.

22. DBS: As of December 1996, there

were eight DBS licensees. However, 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.

23. 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 MVPDs, of which

115 channels are scrambled and

approximately 150 are unscrambled.12

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 MVPDs; (2)

viewers who receive only nonsubscription 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.13

24. According to the most recently

available information, there are

approximately 30 program packagers

nationwide offering packages of

scrambled programming to retail

consumers.14 These program packagers

provide subscriptions to approximately

2,314,900 subscribers nationwide.15

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.

25. SMATVs: Industry sources

estimate that approximately 5200

SMATV operators were providing

service as of December 1995.16 Other

estimates indicate that SMATV

operators serve approximately 1.05

million residential subscribers as of

September 1996.17 The ten largest

SMATV operators together pass 815,740

units.18 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 tentatively conclude

that a substantial number of SMATV

operators qualify as small entities.

26. LMDS: Unlike the above pay

television services, LMDS technology

and spectrum allocation will allow

licensees to provide wireless telephony,

data, and/or video services. A 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). A small

radiotelephone entity is one with 1500

employees or less.19 However, for the

purposes of this Notice, we include only

an estimate of LMDS video service

providers.

27. LMDS is a service that is expected

to be auctioned by the FCC in 1997. 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 Third

NPRM, we proposed to define 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.20 We have not yet

received approval by the SBA for this

definition.

28. 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
Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Proposed Rules 10015

21This category excludes establishments

primarily engaged in the manufacturing of

household audio and visual equipment which is

categorized as SIC 3651. See infra for SIC 3651 data.

22 13 CFR 121.201, (SIC) Code 3663.

23U.S. Dept. of Commerce, 1992 Census of

Transportation, Communications and Utilities,

Table 1D, (issued May 1995), SIC category 3663.

24 13 CFR 121.201, (SIC) Code 3651.

25U.S. Small Business Administration 1995

Economic Census Industry and Enterprise Report,

Table 3, SIC Code 3651, (Bureau of the Census data

adapted by the Office of Advocacy of the U.S. Small

Business Administration).

26 13 CFR 121.201, (SIC) Code 3571.

27U.S. Small Business Administration 1995

Economic Census Industry and Enterprise Report,

Table 3, SIC Code 3571, (Bureau of the Census data

adapted by the Office of Advocacy of the U.S. Small

Business Administration).

28U.S. Small Business Administration 1992

Economic Census Industry and Enterprise Report,

Table 2D, SIC 7812, (Bureau of the Census data

adapted by the Office of Advocacy of the U.S. Small

Business Administration) (SBA 1992 Census

Report). The Census data does not include a

category for $6.5 million therefore, we have

reported the closest increment below and above the

$6.5 million threshold. There is a difference of 88

firms between the $4.999 and $7.499 million annual

receipt categories. It is possible that these 88 firms

could have annual receipts of $6.5 million or less

and therefore, would be classified as small

businesses.

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 and the Commission’s

proposed definition.

29. Small Manufacturers: The SBA

has developed definitions of small

entity for manufacturers of household

audio and video equipment (SIC 3651)

and for radio and television

broadcasting and communications

equipment (SIC 3663). In each case, the

definition includes all such companies

employing 750 or fewer employees.

30. Electronic Equipment

Manufacturers: The Commission has not

developed a definition of small entities

applicable to manufacturers of

electronic equipment. Therefore, we

will utilize the SBA definition of

manufacturers of Radio and Television

Broadcasting and Communications

Equipment.21 According to the SBA’s

regulations, a TV equipment

manufacturer must have 750 or fewer

employees in order to qualify as a small

business concern.22 Census Bureau data

indicates that there are 858 U.S. firms

that manufacture radio and television

broadcasting and communications

equipment, and that 778 of these firms

have fewer than 750 employees and

would be classified as small entities.23

The Census Bureau category is very

broad, and specific figures are not

available as to how many of these firms

are exclusive manufacturers of

television equipment or how many are

independently owned and operated. We

conclude that there are approximately

778 small manufacturers of radio and

television equipment.

31. Electronic Household/Consumer

Equipment: The Commission has not

developed a definition of small entities

applicable to manufacturers of

electronic equipment used by

consumers, as compared to industrial

use by television licensees and related

businesses. Therefore, we will utilize

the SBA definition applicable to

manufacturers of Household Audio and

Visual Equipment. According to the

SBA’s regulations, a household audio

and visual equipment manufacturer

must have 750 or fewer employees in

order to qualify as a small business

concern.24 Census Bureau data indicates

that there are 410 U.S. firms that

manufacture radio and television

broadcasting and communications

equipment, and that 386 of these firms

have fewer than 500 employees and

would be classified as small entities.25

The remaining 24 firms have 500 or

more employees; however, we are

unable to determine how many of those

have fewer than 750 employees and

therefore, also qualify as small entities

under the SBA definition. Furthermore,

the Census Bureau category is very

broad, and specific figures are not

available as to how many of these firms

are exclusive manufacturers of

television equipment for consumers or

how many are independently owned

and operated. We conclude that there

are approximately 386 small

manufacturers of television equipment

for consumer/household use.

32. Computer Manufacturers: The

Commission has not developed a

definition of small entities applicable to

computer manufacturers. Therefore, we

will utilize the SBA definition of

Electronic Computers. According to

SBA regulations, a computer

manufacturer must have 1,000 or fewer

employees in order to qualify as a small

entity.26 Census Bureau data indicates

that there are 716 firms that

manufacture electronic computers and

of those, 659 have fewer than 500

employees and qualify as small

entities.27 The remaining 57 firms have

500 or more employees; however, we

are unable to determine how many of

those have fewer than 1,000 employees

and therefore also qualify as small

entities under the SBA definition. We

conclude that there are approximately

659 small computer manufacturers.

33. Small Retailers: The Commission

has not developed a definition of small

entities applicable to navigation retail

devices. Therefore, we will utilize the

SBA definition. The 1992 Bureau of the

Census data indicates: there were 9,663

U.S. firms classified as Radio, TV &

electronic stores (SIC 5731), and that

9,385 of these firms had $4.999 million

or less in annual receipts and 9,473 of

these firms had $7.499 million or less in

annual receipts.28 Consequently, we

tentatively conclude that there are

approximately 9,663 small entities that

produce and distribute radio, television,

and electronic stores that may be

affected by the decisions and rules

proposed in this Notice.

34. Reporting, Recordkeeping, and

Other Compliance Requirements: The

proposed actions may require MVPDs to

obtain security modules for sale to

subscribers. They may also prohibit

MVPDs from providing CPE which is

not commercially available. In addition,

the proposed actions may require

MVPDs to make available to consumers

basic technical information concerning

the network to which a navigation

device is to be attached (paragraph 56).

This latter proposal, if adopted, would

not necessitate any additional

professional, engineering, or customer

service skills beyond those already

utilized in the ordinary course of

business by MVPDs. Any costs to the

MVPD would be justified by the

competitive benefits; MVPDs and

consumers will benefit from an

increased, more innovative, and more

competitive market for navigation

devices. We seek comment on this.

35. Any Significant Alternatives

Minimizing the Impact On Small

Entities Consistent With the Stated

Objectives: We believe that our

proposals will have the positive result

of opening up to small entities the

market to supply navigation devices

directly to cable and other subscribers

(see discussion at paragraph 84). In

addition, small businesses will have the

opportunity to become the

manufacturers of navigation devices (see

discussion at paragraph 84). While

small businesses would experience

costs associated with maintaining for

sale navigation devices, should we

adopt rules that would require such, we

believe such businesses are capable of

doing so. Should commenters disagree

with this conclusion, we welcome

comments suggesting ways in which

any perceived burden upon small

entities could be mitigated.

36. Federal Rules Which Overlap,

Duplicate or Conflict with Proposed

Rules: None.

Ex Parte

37. This is a non-restricted notice and

comment rule making proceeding. Ex
10016 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Proposed Rules

parte presentations are permitted,

provided they are disclosed as provided

in the Commission’s Rules. See

generally 47 CFR 1.1202, 1.1203 and

1.1206(a).

Comment Dates

38. 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 May 16,

1997 and reply comments on or before

June 16, 1997. All relevant and timely

comments will be considered before

final action is taken in this proceeding.

To file formally in this proceeding,

participants must file an original and

four copies of all comments, reply

comments, and supporting comments. If

participants want each Commissioner to

receive a personal copy of their

comments, an original plus nine copies

must be filed. Comments and reply

comments should be sent to the Office

of the Secretary, Federal

Communications Commission,

Washington, D.C. 20554. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

Center (Room 239) of the Federal

Communications Commission, 1919 M

Street, NW, Washington, DC 20554.

List of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–5350 Filed 3–4–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN: 1018—AC10

Endangered and Threatened Wildlife

and Plants, Notice of Reopening of

Comment Period on Proposed

Threatened Status for the Flat-tailed

Horned Lizard

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed Rule, notice of

reopening of comment period.

SUMMARY: The Fish and Wildlife Service

(Service), pursuant to the Endangered

Species Act of 1973, as amended (Act),

provides notice of reopening of the

comment period on proposed

endangered status for the flat-tailed

horned lizard (Phrynosoma mcalli). The

comment period has been reopened to

acquire additional information from

interested parties.

DATES: The public comment period

closes May 9, 1997. Any comments

received by the closing date will be

considered in the final decision on this

proposal.

ADDRESSES: Written comments and

materials concerning this proposal

should be sent directly to the Field

Supervisor, Carlsbad Field Office, 2730

Loker Avenue West, Carlsbad California

92008. Comments and materials

received will be available for public

inspection, by appointment, during

normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT:

Sandy Vissman at (619) 431–9440.

SUPPLEMENTARY INFORMATION:

Background

The flat-tailed horned lizard inhabits

desert areas of southern Riverside,

eastern San Diego, and Imperial

Counties in California; southwestern

Arizona; and adjacent regions of

northwestern Sonora and northeastern

Baja California Norte, Mexico. Within

the United States, populations of the

flat-tailed horned lizard are centered in

portions of the Coachella Valley,

Ocotillo Wells, Anza Borrego Desert,

West Mesa, East Mesa and the Yuma

Desert in California; and the area

between Yuma and the Gila Mountains

in Arizona. The flat-tailed horned lizard

occurs on Federal, State, county, and

privately owned lands.

This species may be threatened by

one or more of the following:

commercial and residential

development, agricultural development,

off-highway vehicle activity, energy

developments, military activities, and

pesticide use.

On November 29, 1993, the Service

published a rule proposing threatened

status for the flat-tailed horned lizard.

The original comment period closed on

January 28, 1994. The Service was

unable to make a final listing

determination on this species because of

a limited budget, other endangered

species assignments driven by court

orders, and higher listing priorities. In

addition, a moratorium on listing

actions (Public Law 104–6) that took

effect April 10, 1995, stipulated that no

funds could be used to make final

listing or critical habitat determinations.

Now that funding has been restored, the

Service is proceeding with a final

determination for this species.

Due to the length of time that has

elapsed since the close of the initial

comment period, changing procedural

and biological circumstances, and the

need to review the best scientific

information available during the

decision-making process, the comment

period is being reopened. Such

changing circumstances include the

recent (October 1996) draft Flat-tailed

Horned lizard Rangewide Management

Strategy, which likely affect the threats

facing the species.

The Service seeks information that

has become available in the last three

years concerning:

(1) Biological, commercial, or other

relevant data on any threat (or lack

thereof) to this species; and

(2) The size, number, or distribution

of populations of this species.

Written comments may be submitted

until May 9, 1997 to the Carlsbad Field

Office, 2730 Loker Avenue West,

Carlsbad, California 92008.

Author: The primary author of this

notice is Sandy Vissman.

Authority

The authority for this action is the

Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.)

Dated: February 26, 1997.

Thomas J. Dwyer,

Acting Regional Director, Region 1.

[FR Doc. 97–5383 Filed 3–4–97; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 970226037–7037–01; I.D.

022197F]

RIN 0648–AJ39

Fisheries of the Exclusive Economic

Zone Off Alaska; Management

Measures to Reduce Seabird Bycatch

in the Hook-and-Line Groundfish

Fisheries

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS proposes regulations to

require operators of hook-and-line

vessels fishing for groundfish in the

Bering Sea and Aleutian Islands

management area (BSAI) and the Gulf of

Alaska (GOA) and federally-permitted

hook-and-line vessels fishing for

groundfish in Alaska waters adjacent to

the BSAI and to the GOA, to conduct