Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 / Proposed Rules 24145

unimproved, permeable parking lots,

and buffer zones.

* * * * *

4. Section 206.434 is amended by

deleting paragraph (e) and redesignating

paragraphs (f) and (g) as paragraphs (e)

and (f).

Dated: April 24, 1998.

James L. Witt,

Director.

[FR Doc. 98–11641 Filed 4–30–98; 8:45 am]

BILLING CODE 6718–02–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 76

[CS Docket No. 98–54; FCC 98–68]

1998 Biennial Regulatory Review

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: In the Notice of Proposed

Rulemaking (‘‘NPRM‘‘), the Commission

seeks comment or ways to simplify and

make more uniform the Cable

Television Service pleading and

complaint process rules. This

proceeding is initiated in conjunction

with the Commission’s 1998 biennial

regulatory review. The intended effect

of this proceeding is to reduce the

regulatory burden on franchising

authorities, cable operators, and other

interested persons making filings under

the rules.

DATES: Comments are due on or before

June 22, 1998. Reply comments are due

on or before July 7, 1998. Public

Information requirements are due June

30, 1998.

ADDRESSES: Federal Communications

Commission, 1919 M Street, NW., Room

222, Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT:

Thomas Horan, Consumer Protection

and Competition Division, Cable

Services Bureau, at (202) 418–7200.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Notice of Proposed

Rulemaking in CS Docket No. 98–54,

FCC 98–68 which was adopted on April

13, 1998 and released on April 22, 1998.

A copy of the complete item is available

for inspection and copying during

normal business hours in the FCC

Reference Center, Room 239, 1919 M

Street, NW., Washington, D.C. 20554.

The complete text may be purchased

from the Commission’s copy contractor,

International Transcription Service,

Inc., 1231 20th Street, NW.,

Washington, D.C. 20036, (202) 857–

3800. The complete Notice of Proposed

Rulemaking also is available on the

Commission’s Internet home page

(http://www.fcc.gov).

Summary of Action:

I. Background

1. On April 13, 1998, the Federal

Communications Commission

(‘‘Commission’’) adopted a Notice of

Proposed Rulemaking which sought

comment or ways to simplify and make

more uniform the Cable Television

Service pleading and complaint process

rules, 47 CFR 76. The NPRM is

summarized below.

A. Introduction

2. Under the Commission’s current

part 76 rules, the procedures for

initiating Commission action on a cable

television service issue vary depending

on the rules upon which the pleading or

complaint is based. Although there are

practical and legal reasons for the

different pleading procedures, there

may be some common elements to every

pleading or complaint that could be

made uniform across the broad

spectrum of issues raised under part 76.

The Commission thus seeks comment

on whether we can or should institute

some uniform pleading process and, if

so, what form it should take.

B. Discussion

3. The Commission is initiating this

proceeding in conjunction with the

Commission’s 1998 biennial regulatory

review pursuant to section 11 of the

1996 Telecommunications Act, 47

U.S.C. 161. Pursuant to section 11,

Congress instructed the Commission to

conduct a biennial review of regulations

that apply to operations and activities of

any provider of telecommunications

service and to repeal or modify any

regulation it determines to be no longer

in the public interest. Although section

11 does not specifically refer to cable

operators, the Commission has

determined that the first biennial review

presents an opportunity for a thorough

examination of all of the Commission’s

regulations. The Commission believes

that, where possible, simplification of

the complaint processes for part 76 rules

by instituting a uniform system would

likely serve the public interest by

lessening confusion and reducing the

regulatory burden on franchising

authorities, cable operators, and other

interested persons making filings under

the part 76 rules.

4. At least thirteen different types of

petitions or complaints could be filed to

initiate Commission action related to

the part 76 rules. Each type of petition

or complaint has particular

requirements regarding the conditions

that must be satisfied before a filing can

be made, who must be served with the

filing, and the deadline time for a

response. One reason for this variation

is that our rules have been adopted over

a period of time in response to changes

in the Communications Act and, more

specifically, for changes with respect to

cable issues passed in 1984, 1992, and

1996. The rules adopted to implement

changes in the law may have adopted a

complaint process with its own unique

procedures when an existing complaint

process would have been sufficient. For

example, following the filing of a

petition for special relief, interested

persons may submit comments or

oppositions within twenty days after the

date of public notice of the filing of such

petition. In contrast, with respect to a

petition for an issuance of an order to

show cause, interested persons may

submit comments or oppositions within

thirty days after the petition has been

filed. In this proceeding, the

Commission seeks comment on whether

these types of differences should be

maintained or whether in circumstances

of similar pleadings, the procedural

rules associated with those pleadings

should be the same.

5. The rules associated with each

different pleading type are designed to

establish fair and expeditious

procedures for receiving, considering,

and resolving issues related to the cable

television service rules. The

Commission believes that there are

some aspects of the pleading

requirements in part 76 rules that could

be made uniform. The Commission

seeks comment on which aspects of the

pleading processes can be made

consistent regardless of the part 76 rule

under which the complaint is being

filed; or alternatively, which pleading

processes are similar and should have

similar procedures. Specifically, is it

appropriate to have the same or

different (1) periods of time to formulate

and file a complaint; (2) service

requirements; (3) pleading cycles; (4)

affidavit and evidentiary requirements;

and (5) burdens of proof? The

Commission also seek proposals on how

to achieve a more streamlined

complaint process for part 76 pleadings.

Specifically,the Commission seeks

comment on those filing requirements,

now unique to a particular type of

pleading or complaint, that are

beneficial and should be applied

universally to all part 76 pleadings; and

conversely, which filing requirements

are not useful and should be eliminated.

II. Procedural Matters

A. Regulatory Flexibility Analysis

6. As required by the Regulatory

Flexibility Act (RFA), 5 U.S.C. 603, the

Commission has prepared an Initial
24146 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 / Proposed Rules

Regulatory Flexibility Analysis (IRFA)

of the expected impact on small entities

of the proposals in the NPRM. Written

public comments are requested on the

IRFA. Comments on the IRFA must have

a separate and distinct heading

designating them as responses to the

IRFA and must be filed by the deadlines

for comments on the NPRM. The

Commission will send a copy of the

NPRM, including this IRFA, to the Chief

Counsel for Advocacy of the Small

Business Administration.

1. Need for, and objectives of, the

proposed rules.

7. The Commission has proposed to

simply and unify the pleading and

complaint process rules for Cable

Television Service, 47 CFR 76. The

Commission has tentatively concluded

that such a procedure would serve the

public interest by making the pleading

and complaint process for 47 CFR 76

less confusing and less burdensome.

2. Legal basis.

8. The authority for the action

proposed for this rulemaking is

contained in Section 4 of the

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

154.

3. Description and estimate of the

number of small entities

9. The Commission is required to

provide a description of and, where

feasible, an estimate of the number of

small entities that will be affected by the

proposed rules, if adopted. The RFA

defines the term ‘‘small entity’’ as

having the same meaning as the terms

‘‘small business’’ and ‘‘small

organization.’’ In addition, the term

‘‘small business’’ has the same meaning

as the term ‘‘small business concern’’

under section 3 of the Small Business

Act. Under the Small Business Act, a

‘‘small business concern’’ is one which:

(1) is independently owned and

operated; (2) is not dominant in its field

of operation; and (3) meets any

additional criteria established by the

Small Business Administration

(‘‘SBA’’).

10. Small MVPDs. The SBA has

developed a definition of small entities

for cable and other pay television

services, which includes all such

companies generating $11 million or

less in annual receipts. This definition

includes cable system operators, closed

circuit television services, direct

broadcast satellite services, multipoint

distribution systems, satellite master

antenna systems and subscription

television services. According to the

Bureau of the Census, there were 1,758

total cable and other pay television

services and 1,423 had less than $11

million in revenue. The Commission

addresses below each service

individually to provide a more precise

estimate of small entities.

11. Cable Systems. The Commission

has developed, with SBA’s approval,

our own definition of a small cable

system operator for the purposes of rate

regulation. Under 47 CFR 76.901(e), a

‘‘small cable company’’ is one serving

fewer than 400,000 subscribers

nationwide. Based on our most recent

information, the Commission estimates

that there were 1439 cable operators that

qualified as small cable companies at

the end of 1995. Since then, some of

those companies may have grown to

serve over 400,000 subscribers, and

others may have been involved in

transactions that caused them to be

combined with other cable operators.

Consequently, the Commission

estimates that there are fewer than 1439

small entity cable system operators that

may be affected by the decisions and

rules the Commission is adopting. The

Commission believes that only a small

percentage of these entities currently

provide qualifying ‘‘telecommunications

services’’ as required by the

Communications Act and, therefore,

estimate that the number of such

entities are significantly fewer than

noted.

12. The Communications Act also

contains a definition of a small cable

system operator, which is ‘‘a cable

operator that, directly or through an

affiliate, serves in the aggregate fewer

than 1% of all subscribers in the United

States and is not affiliated with any

entity or entities whose gross annual

revenues in the aggregate exceed

$250,000,000.’’ The Commission has

determined that there are 61,700,000

subscribers in the United States.

Therefore, the Commission found that

an operator serving fewer than 617,000

subscribers shall be deemed a small

operator, if its annual revenues, when

combined with the total annual

revenues of all of its affiliates, do not

exceed $250 million in the aggregate.

Based on available data, the

Commission finds that the number of

cable operators serving 617,000

subscribers or less totals 1450. Although

it seems certain that some of these cable

system operators are affiliated with

entities whose gross annual revenues

exceed $250,000,000, the Commission is

unable at this time to estimate with

greater precision the number of cable

system operators that would qualify as

small cable operators under the

definition in the Communications Act.

13. Multipoint Multichannel

Distribution Systems (‘‘MMDS’’). The

Commission refined the definition of

‘‘small entity’’ for the auction of MMDS

as an entity that together with its

affiliates has average gross annual

revenues that are not more than $40

million for the preceding three calendar

years. This definition of a small entity

in the context of MMDS auctions has

been approved by the SBA.

14. The Commission completed its

MMDS auction in March 1996 for

authorizations in 493 basic trading areas

(‘‘BTAs’’). Of 67 winning bidders, 61

qualified as small entities. Five bidders

indicated that they were minorityowned and four winners indicated that

they were women-owned businesses.

MMDS is an especially competitive

service, with approximately 1573

previously authorized and proposed

MMDS facilities. Information available

to us indicates that no MMDS facility

generates revenue in excess of $11

million annually. The Commission

concludes that, for purposes of this

FRFA, there are approximately 1634

small MMDS providers as defined by

the SBA and the Commission’s auction

rules.

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

Because DBS provides subscription

services, DBS falls within the SBA

definition of cable and other pay

television services (SIC 4841). As of

December 1996, there were eight DBS

licensees. Estimates of 1996 revenues

for various DBS operators are

significantly greater than $11,000,000

and range from a low of $31,132,000 for

Alphastar to a high of $1,100,000,000

for Primestar. Accordingly, the

Commission concludes that no DBS

operator qualifies as a small entity.

16. Home Satellite Dish (‘‘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 Cband satellites by programmers for

receipt and distribution by MVPDs, of

which 115 channels are scrambled and

approximately 150 are unscrambled.

HSD owners can watch unscrambled

channels without paying a subscription

fee. To receive scrambled channels,

however, an HSD owner must purchase

an integrated receiver-decoder from an

equipment dealer and pay a

subscription fee to an HSD

programming packager. Thus, HSD

users include: (1) viewers who subscribe

to a packaged programming service,

which affords them access to most of the

same programming provided to

subscribers of other MVPDs; (2) viewers

who receive only nonsubscription

programming; and (3) viewers who

receive satellite programming services

illegally without subscribing.

17. According to the most recently

available information, there are
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 / Proposed Rules 24147

approximately 30 program packagers

nationwide offering packages of

scrambled programming to retail

consumers. These program packagers

provide subscriptions to approximately

2,314,900 subscribers nationwide. This

is an average of about 77,163 subscribers

per program packager. This is

substantially smaller than the 400,000

subscribers used in the Commission’s

definition of a small multiple system

operator (‘‘MSO’’). Furthermore,

because this an average, it is likely that

some program packagers may be

substantially smaller.

18. Open Video System (‘‘OVS’’). The

Commission has certified nine OVS

operators. Of these nine, only two are

providing service. On October 17, 1996,

Bell Atlantic received approval for its

certification to convert its Dover, New

Jersey Video Dialtone (‘‘VDT’’) system to

OVS. Bell Atlantic subsequently

purchased the division of Futurevision

which had been the only operating

program package provider on the Dover

system, and has begun offering

programming on this system using these

resources. Metropolitan Fiber Systems

was granted certifications on December

9, 1996, for the operation of OVS

systems in Boston and New York, both

of which are being used to provide

programming. Bell Atlantic and

Metropolitan Fiber Systems have

sufficient revenues to assure us that

they do not qualify as small business

entities. Little financial information is

available for the other entities

authorized to provide OVS that are not

yet operational. The Commission

believes that one OVS licensee may

qualify as a small business concern.

Given that other entities have been

authorized to provide OVS service but

have not yet begun to generate revenues,

the Commission concludes that at least

some of the OVS operators qualify as

small entities.

19. Satellite Master Antenna

Television (‘‘SMATVs’’). Industry

sources estimate that approximately

5200 SMATV operators were providing

service as of December 1995. Other

estimates indicate that SMATV

operators serve approximately 1.05

million residential subscribers as of

September 1996. The ten largest

SMATV operators together pass 815,740

units. If the Commission assumes 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, the Commission is 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, the Commission

concludes that a substantial number of

SMATV operators qualify as small

entities.

20. Local Multipoint Distribution

System (‘‘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). The SBA

definition for cable and other pay

services is defined above. A small

radiotelephone entity is one with 1500

employees or less. However, for the

purposes of this NPRM, the Commission

includes only an estimate of LMDS

video service providers.

21. LMDS is a service for which

licenses were auctioned by the FCC

beginning in February 1998. 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, the Commission 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.

The Commission has not yet received

approval by the SBA for this definition.

22. There is only one company,

CellularVision, that is currently

providing LMDS video services.

Although the Commission does not

collect data on annual receipts, the

Commission assumes that

CellularVision is a small business under

both the SBA definition and our

proposed auction rules. Accordingly,

the Commission affirms its tentative

conclusion that a majority of the

potential LMDS licensees will be small

entities, as that term is defined by the

SBA.

23. Program Producers and

Distributors. The Commission has not

developed a definition of small entities

applicable to producers or distributors

of television programs. Therefore, the

Commission will utilize the SBA

classifications of Motion Picture and

Video Tape Production (SIC 7812),

Motion Picture and Video Tape

Distribution (SIC 7822), and Theatrical

Producers (Except Motion Pictures) and

Miscellaneous Theatrical Services (SIC

7922). These SBA definitions provide

that a small entity in the television

programming industry is an entity with

$21.5 million or less in annual receipts

for SIC 7812 and 7822, and $5 million

or less in annual receipts for SIC 7922.

The 1992 Bureau of the Census data

indicate the following: (1) there were

7265 U.S. firms classified as Motion

Picture and Video Production (SIC

7812), and that 6987 of these firms had

$16,999 million or less in annual

receipts and 7002 of these firms had

$24,999 million or less in annual

receipts; (2) there were 1139 U.S. firms

classified as Motion Picture and Tape

Distribution (SIC 7822), and that 1007 of

these firms had $16,999 million or less

in annual receipts and 1013 of these

firms had $24,999 million or less in

annual receipts; and (3) there were 5671

U.S. firms classified as Theatrical

Producers and Services (SIC 7922), and

that 5627 of these firms had less than $5

million in annual receipts.

24. Each of these SIC categories is

very broad and includes firms that may

be engaged in various industries

including television. Specific figures are

not available as to how many of these

firms exclusively produce and/or

distribute programming for television or

how many are independently owned

and operated. Consequently, the

Commission concludes that there are

approximately 6987 small entities that

produce and distribute taped television

programs, 1013 small entities primarily

engaged in the distribution of taped

television programs, and 5627 small

producers of live television programs

that may be affected by the rules

adopted in this proceeding.

4. Description of reporting,

recordkeeping, and other compliance

requirements

25. The Commission is not proposing

any new or modified recordkeeping or

information collection requirements.

5. Significant alternatives which

minimize the impact on small entities,

and which are consistent with stated

objectives.

26. The Notice solicits comments and

proposals for means to simplify or make

uniform 47 CFR 76 pleading and

complaint process rules. Any significant

alternatives presented in the comments

will be considered.

6. Federal rules which overlap,

duplicate, or conflict with these rules.

27. None.

7. Report to Congress.

28. The Commission shall send a copy

of this IRFA along with this Notice in

a report to Congress pursuant to the

Small Business Regulatory Enforcement

Fairness Act of 1996, codified at 5
24148 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 / Proposed Rules

U.S.C. 801(a)(1)(A). A copy of this IRFA

will also be published in the Federal

Register.

B. Paperwork Reduction Act of 1995

Analysis

29. The requirements proposed in this

Notice have been analyzed with respect

to the Paperwork Reduction Act of 1995

(the ‘‘1995 Act’’) and would impose new

and modified information collection

requirements on the public. The

Commission, as part of its continuing

effort to reduce paperwork burdens,

invites the general public to take this

opportunity to comment on the

proposed information collection

requirements contained in this Notice,

as required by the 1995 Act. Public

comments are due June 30, 1998.

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

would 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.

30. Written comments by the public

on the proposed new and modified

information collection requirements are

June 30, 1998. Comments should be

submitted to Judy Boley, Federal

Communications Commission, Room

234, 1919 M Street, NW., Washington,

D.C. 20554, or via the Internet to

jboley@fcc.gov. For additional

information on the proposed

information collection requirements,

contact Judy Boley at 202–418–0214 or

via the Internet at the above address.

C. Ex Parte Presentations

31. The NPRM is a permit but disclose

notice and comment rule making

proceeding. Ex parte presentations are

permitted, except during the Sunshine

Agenda period, provided they are

disclosed as provided in Commission

rules. See generally 47 CFR 1.1202,

1.1203, and 1.1206(a).

D. Comments

32. 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 June 22,

1998 and reply comments on or before

July 7, 1998. To file formally in this

proceeding, you must file an original

and four copies of all comments, reply

comments, and supporting comments.

Parties are also asked to submit, if

possible, draft rules that reflect their

positions. 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 Office of the Secretary,

Federal Communications Commission,

1919 M Street, NW., Room 222,

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

Thomas Horan of the Cable Services

Bureau, 2033 M Street, NW., 7th Floor,

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., 1231 20th Street, NW.,

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, NW., Room 239,

Washington, D.C. 20554.

33. Parties are also asked to submit

comments and reply comments on

diskette, where possible. 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 Thomas Horan of the Cable

Services Bureau, 2033 M Street, NW.,

7th Floor, Washington, D.C. 20554.

Such a submission must 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.

List of Subjects in 47 CFR Part 76

Administrative practice and

procedure.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98–11617 Filed 4–30–98; 8:45 am]

BILLING CODE 6712–01–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 217

[Docket No. 980414094–8094–01; I.D. No.

091797A]

RIN 0648–AK55

Endangered and Threatened Wildlife

and Plants; Definition of ‘‘Harm’’

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: This proposed rule defines

the term ‘‘harm,’’ which is contained in

the definition of ‘‘take’’ in the

Endangered Species Act. The purpose of

this rulemaking is to clarify the type of

harm that may result in a take of a listed

species under the ESA. This is not a

change in existing law. This proposed

rule defines the term ‘‘harm’’ to include

any act which actually kills or injures

fish or wildlife. Such acts may include

significant habitat modification or

degradation that significantly impairs

essential behavioral patterns of fish or

wildlife.

DATES: Comments must be received by

June 30, 1998.

ADDRESSES: Comments should be sent to

Chief, Endangered Species Division,

Office of Protected Resources, NMFS,

1315 East-West Highway, Silver Spring,

MD 20910.

FOR FURTHER INFORMATION CONTACT: Joe

Blum, NMFS, 1315 East-West Highway,

Silver Spring, MD 20910, phone

(301)713–1401 or Garth Griffin, NMFS,

525 NE Oregon St, Suite 500, Portland,

OR 97232, phone (503)231–2005.

SUPPLEMENTARY INFORMATION:

Background

Section 9 of the ESA makes it illegal

to take an endangered species of fish or

wildlife. The definition of ‘‘take’’ is to

‘‘harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or

to attempt to engage in any such

conduct.’’ (16 U.S.C. 1532(19)). The U.S.

Fish and Wildlife Service (FWS) issued

a regulation further defining the term

‘‘harm’’ to eliminate confusion

concerning its meaning (40 FR 44412;

46 FR 54748). The FWS’ definition of

‘‘harm’’ has been upheld by the

Supreme Court as a reasonable

interpretation of the term and supported

by the broad purpose of the ESA to

conserve endangered and threatened