16514 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

DOT is unnecessary. The proposed

amended regulation would remain in

effect for only 4 hours each day for two

days.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.), the Coast Guard

must consider whether this proposal

will have a significant economic impact

on a substantial number of small

entities. ‘‘Small entities’’ include

independently owned and operated

small businesses that are not dominant

in their field and that otherwise qualify

as ‘‘small business concerns’’ under

Section 3 of the Small Business Act (15

U.S.C. 632).

For reasons set forth in the above

Regulatory Evaluation, the Coast Guard

certifies under 5 U.S.C. 605(b) that this

proposal, if adopted, would not have a

significant economic impact on a

substantial number of small entities.

Collection of Information

These proposed regulations contain

no collection of information

requirements under the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.).

Federalism

This action has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612, and it has been determined that

the rulemaking does not have sufficient

Federalism implications to warrant the

preparation of a Federalism Assessment.

Environmental Assessment

The Coast Guard has considered the

environmental impact of this action and

has determined pursuant to section

2.B.2.e.(34)(h) of Commandant

Instruction M16475.1B, that this action

is categorically excluded from further

environmental documentation.

List of Subjects in 33 CFR Part 100

Regattas and marine parades.

Proposed Regulations

In consideration of the foregoing, Part

100 of Title 33, Code of Federal

Regulations, the Coast Guard proposes

to be amended as follows:

1. The authority citation for Part 100

continues to read as follows:

Authority: 33 U.S.C. 1233; 49 CFR 1.46.

2. In section 100.717, paragraph (c) is

revised to read as follows:

§ 100.717 Special Local Regulations; Fort

Myers Beach, FL.

* * * * *

(c) Effective Dates: This section is

effective each day from 11 a.m. through

3 p.m. EDT annually during the third

Saturday and Sunday of May.

Dated: March 27, 1997.

J.W. Lockwood,

Rear Admiral, U.S. Coast Guard, Commander,

Seventh Coast Guard District.

[FR Doc. 97–8744 Filed 4–4–97; 8:45 am]

BILLING CODE 4910–14–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR PART 101

[CC Docket No. 92–297; FCC 97–82]

Use of the 28 GHz and 31 GHz Bands

for Local Multipoint Distribution

Service

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Commission adopts a

Second Report and Order, Order on

Reconsideration and Fifth Notice of

Proposed Rulemaking regarding the use

of the 28 GHz and 31 GHz Bands for

Local Multipoint Distribution Service

(LMDS). The Second Report and Order

designates an additional 300 megahertz

of spectrum in the 31 GHz band to

LMDS and adopts service and

competitive bidding rules for LMDS.

The Order on Reconsideration denies

petitions for reconsideration of the

Commission’s dismissal of applications

for waiver of the Commission’s point-topoint rules governing the 28 GHz band.

These portions of the decision will be

summarized in a future edition of the

Federal Register. The Fifth Notice of

Proposed Rulemaking (Fifth NPRM)

seeks comment on specific rules to be

applied for the partitioning and

disaggregation of LMDS licenses. This

action is taken to establish a record from

which to consider procedural,

administrative and operational rules for

partitioning and disaggregating LMDS

licenses and to reach an ultimate

decision. This Fifth NPRM contains new

information collections subject to the

Paperwork Reduction Act of 1995

(PRA). It will be submitted to the Office

of Management and Budget (OMB) for

review under the PRA. The general

public is invited to comment on the

proposed information collections

contained in this proceeding.

DATES: Comments are due on or before

April 21, 1997, and reply comments are

due on or before May 6, 1997. Written

comments by the public on the

proposed information collections are

due by April 21, 1997.

ADDRESSES: Secretary, Federal

Communications Commission,

Washington, DC 20554. 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,

NW., Washington, DC 20554, or via the

Internet to dconway@fcc.gov.

FOR FURTHER INFORMATION CONTACT:

Bob James, Private Wireless Division,

(202) 418–0680, Mark Bollinger or Jay

Whaley, Auctions Division, (202) 418–

0660, or Joe Levin or Jane Phillips,

Policy Division, (202) 418–1310. For

additional information concerning the

information collections contained in

this Fifth NPRM, contact Dorothy

Conway at 202–418–0217, or via the

Internet at dconway@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Fifth NPRM segment of

the Second Report and Order, Order on

Reconsideration and Fifth Notice of

Proposed Rulemaking in CC Docket No.

92–297, FCC 97–82, adopted March 11,

1997, and released March 13, 1997. The

Second Report and Order portion of this

decision will be summarized in a future

edition of the Federal Register. The

complete 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, and

also may be purchased from the

Commission’s copy contractor,

International Transcription Service,

(202) 857–3800, 2100 M Street, NW.,

Suite 140, Washington, DC 20037.

Paperwork Reduction Act

1. This Fifth NPRM contains a

proposed information collection. The

Commission, as part of its continuing

effort to reduce paperwork burdens,

invites the general public to comment

on the information collections

contained in this Fifth NPRM, 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

Fifth NPRM. 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
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16515

collection techniques or other forms of

information technology.

OMB Approval Number: 3060–0531.

Title: Redesignation of 27.5 GHz

Frequency Band, Establishing Rules and

Policies for Local Multipoint

Distribution (NPRM CC Docket No. 92–

297).

Form No.: N/A.

Type of Review: Reinstatement, with

change, of a previously approved

collection for which approval has

expired.

Respondents: Business or other forprofit.

Number of Respondents: 197.

Estimated Time Per Response: 21

hours.

Total Annual Burden: 3,132.5 hours.

Total Annual Cost: $205,800.

Needs and Uses: The information

requested will be used by FCC

personnel to determine whether

partitioning and disaggregation

applicants are qualified legally and

technically to be licensed to use the

radio spectrum.

OMB Approval Number: New

Collection (which adds respondents to

three existing collections 3060–0105,

FCC 430; 3060–0068, FCC 702; 3060–

0623, FCC 600).

Title: Redesignation of 27.5 GHz

Frequency Band, Establishing Rules and

Policies for Local Multipoint

Distribution (NPRM CC Docket No. 92–

297).

Form No.: FCC Forms 430, 600, and

702.

Type of Review: New collection.

Respondents: Potential LMDS

applicants.

Number of Respondents; Estimated

Time Per Response and Total Annual

Burden: If the proposed changes in the

Fifth NPRM are adopted the

respondents and burden for the FCC

Form’s 430, 600, and 702 as follows:

The FCC 430 has 1,900 respondents, to

be increased to 3,433; the estimated

time for completion is 2 hours per

respondent. The total annual burden for

the FCC 430 is now 3,800 hours, and

would increase to 6,866 hours. The FCC

600 has 194,769 respondents, which

would be increased to 198,053. The

estimated time for completion is 4 hours

per respondent. The total annual burden

is currently 779,076. This figure will be

increased to 792,212 hours if the

changes proposed in the Fifth NPRM are

adopted. The Form 702 has 1,000

respondents, to be increased to 2,644

respondents. The estimated time for

completion is 5 hours per respondent.

The total annual burden for the FCC 702

is now 5,000 hours and would increase

to 13,220 hours.

Needs and Uses: The information will

be used by Commission personnel to

determine if the licensee is a qualifying

entity to obtain a partitioned license or

disaggregated spectrum. Additionally,

the information will be used by

Commission personnel to determine

who is using spectrum and thus

maintain the integrity of the spectrum.

Synopsis of the Fifth Notice of Proposed

Rulemaking

2. The Commission has concluded in

the Second Report and Order that any

LMDS licensee will be permitted to

partition or disaggregate portions of its

authorization. As part of the next phase

of our LMDS rulemaking, the

Commission is proposing specific

procedural, administrative, and

operational rules to ensure effective

implementation of the general

partitioning and disaggregation rules

adopted in the Second Report and Order

for LMDS. It is the Commission’s

tentative view that a more complete

delineation of these partitioning and

disaggregation mechanisms, which we

hope to achieve in this rulemaking, will

ensure realization of the competitive

benefits that are at the core of our

partitioning and disaggregation policy.

3. In the Fifth NPRM we will seek

comment as to how various

requirements imposed on LMDS

licensees (e.g., construction

requirements) may be modified if such

licensees partition or disaggregate their

authorization. We seek comment as to

whether partitioning of LMDS licenses

should be permitted in a manner similar

to the rules for partitioning we have

adopted for broadband PCS licensees. In

addition, we seek comment as to

specific procedural, administrative, and

operational rules under which LMDS

licensees are permitted to disaggregate

their licensed spectrum.

4. We seek comment on the following

specific aspects of partitioning and

disaggregation, which we will need to

address in order to administer the

general partitioning and disaggregation

rules for LMDS licensees that we have

adopted in the Second Report and

Order. For example, we seek comment

as to whether there are any technical or

regulatory constraints unique to the

LMDS service that would render any

aspects of partitioning or disaggregation

impractical or administratively

burdensome. Further, we recognize that

there are special competitive bidding

issues, similar to those raised in the

broadband personal communications

services (PCS) context, that must be

resolved if we permit partitioning and

disaggregation for LMDS. We address

those issues separately in paragraphs 13

through 15, of the Second Report and

Order.

Available License Area

5. In the Partitioning and

Disaggregation Report and Order, (62 FR

653, January 6, 1997) we found that

allowing partitioning of broadband PCS

licenses along any service area defined

by the parties is the most logical

approach. We concluded that allowing

the parties to define the partitioned PCS

service area would allow licensees to

design flexible and efficient partitioning

agreements which would permit

marketplace forces to determine the

most suitable service areas. We also

found that requiring PCS partitioning

along county lines was too restrictive

and might discourage partitioning.

6. We have decided to base LMDS

licenses on Basic Trading Area (BTA)

geographic service areas, finding that

BTAs are logical licensing areas for

LMDS because they comprise areas

within which consumers have a

community of interest. We tentatively

conclude that a flexible approach to

partitioned areas, similar to the one we

adopted for broadband PCS, is

appropriate for LMDS. We therefore

propose to permit partitioning of LMDS

licenses based on any license area

defined by the parties. We seek

comment on this proposal, and in

particular on whether there are any

technical or other issues unique to the

LMDS service that might impede the

adoption of a flexible approach to

defining the partitioned license area.

Minimum or Maximum Disaggregation

Standards

7. We seek comment as to whether we

should augment our general rule

permitting disaggregation of LMDS

spectrum in order to establish minimum

disaggregation standards. We seek to

determine whether, given any unique

characteristics of LMDS, technological

and administrative considerations

warrant the adoption of such standards.

We seek comment as to whether we

should adopt standards which would be

flexible enough to encourage

disaggregation while providing a

standard which is consistent with our

technical rules and by which we would

be able to track disaggregated spectrum

and review disaggregation proposals in

an expeditious fashion.

Combined Partitioning and

Disaggregation

8. We seek comment regarding

whether combined partitioning and

disaggregation should be permitted for

LMDS. By ‘‘combined’’ partitioning and

disaggregation we refer to circumstances
16516 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

in which a licensee would be

authorized, for example, to obtain a

license for a portion of a BTA with only

a portion of the 1,150 megahertz license

or the 150 megahertz license involved in

the disaggregation of spectrum. As

another example, the licensee could

obtain a license consisting of a

partitioned portion of one or more other

licenses held by other LMDS providers

and a disaggregated portion of one or

more other licenses held by other LMDS

providers. We tentatively conclude that

we should permit such combinations in

order to provide carriers with the

flexibility they need to respond to

market forces and demands for service

relevant to their particular locations and

service offerings.

Construction Requirements

9. In paragraphs 266–272 of the Order

we have adopted today we have

promulgated a performance standard

under which a licensee must make a

showing of substantial service at the end

of the license term. In the case of

partitioned LMDS licenses, we propose

that the partitionee must certify that it

will satisfy the same construction

requirements as the original licensee.

The partitionee then must meet the

prescribed service requirements in its

partitioned area while the partitioner is

responsible for meeting those

requirements in the area it has retained.

10. In the case of disaggregated LMDS

licenses, we propose to adopt rules for

LMDS licensees similar to those

disaggregation certification rules we

have adopted for broadband PCS. (See

Partitioning and Disaggregation Report

and Order, at paras. 61–63.) Under such

a certification approach, the

disaggregating parties would be required

to submit a certification, signed by both

the disaggregator and disaggregatee,

stating whether one or both of the

parties will retain responsibility for

meeting the performance requirement

for the LMDS market involved. If one

party takes responsibility for meeting

the performance requirement, then

actual performance by that party would

be taken into account in a renewal

proceeding at the end of the license

term, but such performance would not

affect the status of the other party’s

license. If both parties agree to share the

responsibility for meeting the

performance requirement, then the

performance of each of the parties

would be taken into account in the

respective renewal proceedings.

License Term

11. In the Order we have adopted

today we established a 10-year license

term for LMDS licenses. In this Fifth

NPRM we are proposing that LMDS

licenses should be eligible for a license

renewal expectancy based upon the

criteria established in Section 22.940(a)

of the Commission’s Rules.

12. In the Partitioning and

Disaggregation Report and Order, we

found that allowing parties acquiring a

partitioned license or disaggregated

spectrum to ‘‘re-start’’ the license term

from the date of the grant of the partial

assignment application could allow

parties to circumvent our established

license term rules and unnecessarily

delay service. We seek comment as to

whether our LMDS rules should

similarly provide that parties obtaining

partitioned LMDS licenses or

disaggregated spectrum hold their

license for the remainder of the original

licensee’s 10-year license term. In

addition, we seek comment as to

whether LMDS partitionees and

disaggregatees should be afforded the

same renewal expectancy as we have

proposed for other LMDS licensees. We

tentatively conclude that limiting the

license term of the partitionee or

disaggregatee is necessary to ensure that

there is maximum incentive for parties

to pursue available spectrum as quickly

as practicable.

Competitive Bidding Issues

13. Competitive bidding issues similar

to those in broadband PCS arise in the

context of LMDS partitioning and

disaggregation. Our competitive bidding

rules for the LMDS service include

provisions for installment payments and

bidding credits for small businesses and

businesses with average annual gross

revenues not exceeding $75 million. We

also adopted rules to prevent unjust

enrichment by such entities that seek to

transfer licenses obtained through use of

one of these special benefits.

14. We tentatively conclude that

LMDS partitionees and disaggregatees

that would qualify for installment

payments should be permitted to pay

their pro rata share of the remaining

Government obligation through

installment payments. We seek

comment on this tentative conclusion.

We further invite comment as to the

exact mechanisms for apportioning the

remaining Government obligation

between the parties and whether there

are any unique circumstances that

would make devising such a scheme for

LMDS more difficult than for broadband

PCS. Since LMDS service areas are

allotted on a geographic basis, in a

manner similar to broadband PCS, we

propose using population as the

objective measure to calculate the

relative value of the partitioned area and

amount of spectrum disaggregated as the

objective measure for disaggregation,

and we seek comment on this proposal.

15. We seek comment regarding

whether to apply unjust enrichment

rules to small business LMDS licensees,

or LMDS licensees with average annual

gross revenues not exceeding $75

million, that partition or disaggregate to

larger businesses. Commenters should

address how to calculate unjust

enrichment payments for LMDS

licensees paying through installment

payments and those that were awarded

bidding credits that partition or

disaggregate to larger businesses.

Commenters should address whether

the unjust enrichment payments should

be calculated on a proportional basis,

using population of the partitioned area

and amount of spectrum disaggregated

as the objective measures. We propose

using methods similar to those adopted

for broadband PCS for calculating the

amount of the unjust enrichment

payments that must be paid in such

circumstances, and we seek comment

on this proposal. (See Partitioning and

Disaggregation Report and Order at

paras. 34–35).

Licensing Issues

16. We propose that all LMDS

licensees who are parties to

disaggregation or partitioning

arrangements must comply with our

technical and service rules established

in the Order we are adopting today. We

also propose that coordination and

negotiation among licensees must be

maintained and applied in licensing

involving disaggregated or partitioned

licenses.

17. We propose to treat the

disaggregation and partitioning of LMDS

licenses to be types of assignments

requiring prior approval by the

Commission. We therefore propose to

follow existing assignment procedures

for disaggregation and partitioning.

Under this proposal, the licensee must

file FCC Form 702 signed by both the

licensee and qualifying entity. The

qualifying entity would also be required

to file an FCC Form 430 unless a current

FCC Form 430 is already on file with the

Commission.

Administrative Matters

18. Pursuant to applicable procedures

set forth in Sections 1.415 and 1.419 of

the Commission’s Rules, 47 CFR

Sections 1.415 and 1.419, interested

parties may file comments on or before

April 21, 1997, and reply comments on

or before May 5, 1997. 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
Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules 16517

Commissioner to receive personal copy

of your comments, you must file an

original plus nine copies. You should

send comments and reply comments to

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), 1919 M Street, N.W.,

Washington, D.C. 20554.

19. This is a non-restricted notice and

comment rulemaking proceeding. Ex

parte presentations are permitted,

except during the Sunshine Agenda

period, provided they are disclosed as

provided in the Commission Rules. See

generally 47 CFR Sections 1.1202,

1.1203, and 1.1206(a).

Initial Regulatory Flexibility Analysis

20. As required by section 603 of the

Regulatory Flexibility Act, the

Commission has prepared an Initial

Regulatory Flexibility Analysis (IRFA)

of the expected impact on small entities

of the proposals suggested in this

document. 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 this Fifth NPRM, but they

must have a separate and distinct

heading designating them as responses

to the IRFA. The Secretary shall send a

copy of this Fifth NPRM, including the

IRFA, to the Chief Counsel for Advocacy

of the Small Business Administration in

accordance with paragraph 603(a) of the

Regulatory Flexibility Act. Public Law

96–354, 94 Stat. 1164, 5 U.S.C. Section

601 et seq. (1981).

Initial Regulatory Flexibility Act

Statement

21. Need for and Objectives: Our

objectives are to afford licensees the

flexibility to disaggregate and partition

their licenses so as to: (1) promote

efficient use of LMDS spectrum by

leaving determinations regarding the

correct size of licenses to the licensees,

who are in the best position to analyze

their business plans, assess new

technology, and determine customer

demand, (2) encourage more rapid

deployment of services in the LMDS

spectrum, (3) enable licensees to

concentrate on core areas or to deliver

services to isolated complexes, such as

rural towns or university campuses, that

do not lie within major market areas,

and (4) provide opportunities for small

businesses seeking to enter the

multichannel video programming

distribution and local telephony

marketplaces.

22. Legal Basis for Proposed Rules:

The proposed action is authorized

under the Administrative Procedure

Act, 5 U.S.C. § 553; and §§ 4(i), 257,

303(g), 303(r), 309(j) and 332(a) of the

Communications Act of 1934, 47 U.S.C.

§§ 154(i), 257, 303(g), 303(r), 309(j),

332(a).

23. Description and Estimate of Small

Entities Subject to the Rules: The service

regulations we adopt to implement

LMDS would apply to all entities

seeking an LMDS license, including

small entities. In addition, the in-region,

temporary eligibility restrictions we

adopt would apply to qualifying LECs

and cable companies. Finally, the rules

we adopt to designate additional

spectrum for LMDS in the 31.0–31.3

GHz band would apply to all entities

providing incumbent services under

existing rules for 31 GHz services. We

consider these three groups of affected

entities separately below.

Estimates of Potential Applicants of

LMDS

24. SBA has developed definitions

applicable to radiotelephone companies

and to pay television services. We are

using these definitions that SBA has

developed because these categories

approximate most closely the services

that may be provided by LMDS

licensees. The definition of

radiotelephone companies provides that

a small entity is a radiotelephone

company employing fewer than 1,500

persons. (See 13 CFR 121.201, Standard

Industrial Classification (SIC) 4812.)

The definition of a pay television

service is one which has annual receipts

of $11 million or less. (SIC 4841)

25. The size data provided by SBA do

not enable us to make an accurate

estimate of the number of

telecommunications providers which

are small entities because it combines

all radiotelephone companies with 500

or more employees. We therefore use

the 1992 Census of Transportation,

Communications, and Utilities,

conducted by the Bureau of the Census,

which is the most recent information

available. This document shows that

only 12 radiotelephone firms out of a

total of 1,178 such firms which operated

during 1992 had 1,000 or more

employees. Likewise, the size data

provided by SBA do not enable us to

make a meaningful estimate of the

number of cable and pay television

providers which are small entities

because it combines all such providers

with revenues of $11 million or less. We

therefore use the 1992 Census of

Transportation, Communications, and

Utilities (Table 2D), conducted by the

Bureau of the Census, which is the most

recent information available. This

document shows that only 36 of 1,788

firms providing cable and pay television

service have a revenue of greater than

$10 million. Therefore, the majority of

LMDS entities to provide video

distribution and telecommunications

services may be small businesses under

SBA’s definition.

26. The Commission has not

developed a definition of small entities

applicable to LMDS licensees, which is

a new service being licensed in the

Order. The RFA amendments were not

in effect until shortly before the Fourth

Notice of Proposed Rulemaking (Fourth

NPRM) was released, and no data has

been received establishing the number

of small businesses associated with

LMDS. However, in the Third Notice of

Proposed Rulemaking (Third NPRM) we

proposed to auction the spectrum for

assignment and requested information

regarding the potential number of small

businesses interested in obtaining

LMDS spectrum, in order to determine

their eligibility for special provisions

such as bidding credits and installment

payments to facilitate participation of

small entities in the auction process. In

the Order we adopt criteria for defining

small businesses for purposes of

determining such eligibility. We will

use this definition for estimating the

potential number of entities applying for

auctionable spectrum that are small

businesses.

27. As discussed in Section II.D.2.e of

the Order, we adopt criteria for defining

small businesses and other eligible

entities for purposes of defining

eligibility for bidding credits and

installment payments. We define a

small business as an entity that, together

with affiliates and controlling

principals, has average gross revenues

not exceeding $40 million for the three

preceding years (paras. 345 and 348 of

the Order). Additionally, bidding credits

and installment payments are available

to applicants that, together with

affiliates and controlling principals,

have average gross revenues for the

three preceding years of more than $40

million but not more than $75 million

(paras. 349 and 358 of the Order).

28. SBREFA was not in effect until the

record in the Third NPRM closed, and

we did not seek comment on the

potential number of prospective

applicants for LMDS that might qualify

as small businesses. Therefore, we are

unable to predict accurately the number

of applicants for LMDS that would fit

the definition of a small business for

competitive bidding purposes. However,

using the definition of small business

we adopted for auction eligibility, we

can estimate the number of applicants
16518 Federal Register / Vol. 62, No. 66 / Monday, April 7, 1997 / Proposed Rules

that are small businesses by examining

the number of applicants in similar

services that qualified as small

businesses. For example, MDS

authorizes non-common carrier services

similar to what may be developed

through LMDS. The MDS rules provide

a similar definition of a small business

as an entity that, together with its

affiliates, has annual gross revenues for

the three proceeding years not in excess

of $40 million. A total of 154

applications were received in the MDS

auction, of which 141, or 92 percent,

qualified as small businesses.

29. We plan to issue 2 licenses for

each of the 492 BTAs, excluding New

York, that are the geographic basis for

licensing LMDS. Thus, 984 licenses will

be made available for authorization in

the LMDS auction. Inasmuch as 92

percent of the applications were

received in the MDS auction were from

entities qualifying as small businesses,

we anticipate receiving at least the same

from LMDS applicants interested in

providing non-common carrier services.

30. 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.

31. Reporting, Recordkeeping, and

Other Compliance Requirements: Under

the proposal contained in the Fifth

NPRM: (1) acquisitions by partitioning

or disaggregation will be treated as

assignments of a license and will

require the parties to seek prior

approval of the Commission; (2) the

parties will be required to identify

which of them will be responsible for

complying with the construction

requirements set forth in the Second

Report and Order we have adopted

today, and to submit a certification to

that effect, signed by both parties, (3)

parties failing to meet their construction

requirement obligations will be subject

to forfeiture of their license; and (4)

licensees afforded bidding preferences

and other benefits available to small

entities will be subject to the

Commission’s unjust enrichment rules

should they partition or disaggregate to

entities that are not small businesses. If

adopted, this proposal would apply to

all LMDS licensees and all entities that

attempt to acquire an LMDS license by

means of partitioning or disaggregation.

We request comment on how these

requirements can be modified to reduce

the burden on small entities and still

meet the objectives of the proceeding.

32. Significant Alternatives

Minimizing the Significant Economic

Impact on a Substantial Number of

Small Entities Consistent with the

Stated Objectives: We have not

identified any significant alternatives

that would minimize the significant

economic impact on small entities that

are consistent with the stated objectives

to allow a flexible approach to

partitioning and disaggregation of

LMDS. We tentatively conclude that a

flexible approach affords providers,

including small businesses, the ability

to respond to market forces and

demands for service relevant to their

particular locations and service

offerings.

The regulatory burdens we have

imposed on LMDS licensees with

respect to assignments and buildout

certifications, as well as unjust

enrichment, are necessary in order to

ensure that the public receives the

benefits of innovative new services in a

prompt and efficient manner. We seek

comment on any significant alternatives

that are consistent with the objectives in

the NPRM.

33. Federal Rules That Overlap,

Duplicate, or Conflict with These

Proposed Rules: None.

List of Subjects in 47 CFR Part 101

Communications common carriers,

Radio, Reporting and recordkeeping

requirements.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–8775 Filed 4–4–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AB73

Endangered and Threatened Wildlife

and Plants, Notice of Reopening of

Comment Period on Proposed

Endangered Status for the Peninsular

Ranges Population of the Desert

Bighorn Sheep

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 for the proposed

endangered status for the Peninsular

Ranges population of desert bighorn

sheep (Ovis canadensis). The comment

period has been reopened to acquire

additional information from interested

parties, and to resume the proposed

listing action. In addition, the Service is

seeking public comment on various

articles and reports concerning the

distinctiveness and status of bighorn

sheep in the Peninsular Ranges.

DATES: The public comment period

closes May 7, 1997. Any comments

received by the closing date will be

considered in the final decision on this

proposal.

ADDRESSES: Written comments,

materials and data, and available reports

and articles concerning this proposal

should be sent directly to the Field

Supervisor, Carlsbad Field Office, U.S.

Fish and Wildlife Service, 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:

Peter Sorensen, at the address listed

above (telephone 760/431–9440,

facsimile 760/431–9618).

SUPPLEMENTARY INFORMATION:

Background

The Peninsular Ranges population of

the desert bighorn sheep occurs along

desert slopes of the Peninsular Ranges

from the vicinity of Palm Springs,

California, into northern Baja California,

Mexico. Depressed recruitment, habitat

loss and degradation, disease, loss of

dispersal corridors, and random events

(e.g., drought) affecting small

populations threaten the desert bighorn

sheep in the Peninsular Ranges.

On May 8, 1992, the Service

published a rule proposing endangered

status for the Peninsular Ranges

population of the desert bighorn sheep

(57 FR 19837). The original comment

period closed on November 4, 1992. The

Service was unable to make a final

listing determination regarding the

bighorn sheep 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), which took effect on 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 the Peninsular Ranges population of

the desert bighorn sheep.

Due to the length of time that has

elapsed since the close of the initial

comment period, changing procedural