Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Proposed Rules 3075

should be noted that, under the SBA’s

definitions, revenues of affiliates that

are not television stations should be

aggregated with the television station

revenues in determining whether a

concern is small. The estimates

overstate the number of small entities

since the revenue figures on which they

are based do not include or aggregate

such revenues from nontelevision

affiliated companies.

36. Reporting, Recordkeeping and

Compliance Requirements: The Further

Notice seeks comment on whether we

should require video programming

providers (including broadcast licensees

and MVPDs) to closed caption or

otherwise visually display emergency

programming and similar special reports

to ensure the accessibility of these types

of video programs to viewers with

hearing disabilities. If this proposal is

adopted, video programming providers

may choose to maintain records of the

closed captioned emergency

programming carried in order to resolve

any disputes which may arise regarding

compliance.

37. Federal Rules Which Overlap,

Duplicate or Conflict With the

Commission’s Proposal: None.

38. Any Significant Alternatives

Minimizing the Impact on Small Entities

and Consistent With the Stated

Objectives: The Closed Captioning

Order directs us to initiate proceedings

to establish captioning requirements for

emergency programming. We seek

comment on proposals to promote and

ensure the accessibility of emergency

programming and other special reports

to persons with hearing disabilities. We

also seek comment on methods of

visually displaying emergency

information to viewers other than closed

captioning which may be less costly or

burdensome than captioning.

Ex Parte

39. This is a non-restricted notice and

comment rule making proceeding. Ex

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

40. 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

February 25, 1998 and reply comments

on or before March 27, 1998. All

relevant and timely comments will be

considered before final action is taken

in this proceeeding. 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, N.W., Washington, D.C. 20554.

41. Accordingly, It is ordered that

pursuant to the authority contained in

Sections 4(i), 303(r), and 713 of the

Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 303(r), and

613, the Further Notice of Proposed

Rulemaking IS ADOPTED.

42. It is further ordered that the Office

of Public Affairs shall send a copy of

this Further Notice of Proposed

Rulemaking, including the Initial

Regulatory Flexibility Analysis, to the

Chief Counsel for Advocacy of the Small

Business Administration, in accordance

with paragraph 603(a) of the Regulatory

Flexibility Act, Pub. L. 96–354, 94 Stat.

1164, 5 U.S.C. §§ 601 et seq. (1981).

List of Subjects in 47 CFR Part 79

Closed Captioning of Video

Programming.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98–1394 Filed 1–20–98; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 101

[ET Docket No. 95–183; PP Docket No. 93–

253; FCC 97–391]

Use of the 38.6–40.0 GHz Band for

Fixed Microwave Service

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission adopts a

Second Notice of Proposed Rule Making

regarding the use of the 38.6–40.0 GHz

Band for fixed microwave services.

Specifically, the Commission seeks

comment on the appropriate unjust

enrichment requirements for approving

partitioning and disaggregation

arrangements involving a complete or

partial transfer of a license owned by a

qualified small business to a non-small

business or a small business eligible for

a smaller bidding credit.

DATES: Comments are due on or before

February 20, 1998, and reply comments

are due on or before March 9, 1998.

ADDRESSES: Federal Communications

Commission, 1919 M Street, N.W.,

Room 222, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Susan Magnotti, Public Safety and

Private Wireless Division, (202) 418–

0871, or Christina Eads Clearwater,

Auctions Division, (202) 418–0660.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Second

Notice of Proposed Rule Making in the

Report and Order and Second Notice of

Proposed Rule Making, ET Docket No.

95–183, PP Docket No. 93–253, FCC 97–

391, adopted October 24, 1997, and

released November 3, 1997. The

complete text of this Report and Order

and Second Notice of Proposed Rule

Making 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, 1231 20th Street, N.W.,

Washington, DC 20036.

Synopsis of the Second Notice of

Proposed Rule Making in the Report

and Order and Second Notice of

Proposed Rule Making

1. The Commission has concluded in

the Report and Order that any 39 GHz

licensee will be permitted to partition or

disaggregate portions of its

authorization. In the Second Notice of

Proposed Rule Making, the Commission

seeks comment regarding what

restrictions to impose on partitioning

and/or disaggregation by licensees that

have received bidding credits when the

buyer is a small business subject to less

favorable bidding credits or a non-small

business not eligible for bidding credits.

2. The Commission seeks comment on

the type of unjust enrichment

requirements that should be placed as a

condition for approval of partitioning

and disaggregation arrangements, e.g.,

an application for a partial transfer of a

license owned by a qualified small

business to a non-small business. The

Commission tentatively concludes that

these unjust enrichment provisions

would include payment of any bidding

credit that it may adopt for small

business and would be applied on a

proportional basis. The Commission

seeks comment on how such unjust

enrichment amounts should be

calculated, especially in light of the

difficulty of devising a methodology or
3076 Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Proposed Rules

formula that will differentiate the

relative market value of the

opportunities to provide service to

various partitioned areas within a

geographic or market area. The

Commission seeks comment on whether

it should consider the price paid by the

partitionee in determining the

percentage of the outstanding principal

balance to be repaid.

3. The Commission tentatively

concludes that if it permits a small

business licensee to disaggregate to

another qualified small business that

would not qualify for the same level of

bidding credit as the disaggregating

licensee, the disaggregating licensee will

be required to repay a portion of the

benefit it received. The Commission

seeks comment on how that amount

should be calculated. The Commission

seeks comment on what provisions, if

any, it should adopt to address the

situation of a small business licensee’s

disaggregation followed by default in

payment of a winning bid at auction.

Regulatory Flexibility Act/Initial

Regulatory Flexibility Analysis

4. As required by section 603 of the

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

the Commission has prepared an Initial

Regulatory Flexibility Analysis (IRFA)

of the expected impact on small entities

of the proposals suggested in the Second

Notice of Proposed Rule Making.

Written public comments are requested

on the IRFA. These comments must be

filed in accordance with the same filing

deadlines as comments on this Second

Notice of Proposed Rule Making, but

they must have a separate and distinct

heading designating them as responses

to the IRFA. The Secretary shall send a

copy of this Second Notice of Proposed

Rule Making, 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. 601 et seq. (1981).

5. Need for and Objectives of the

Action. In the companion Report and

Order, the Commission expanded the

Commission’s geographic partitioning

provisions to all 39 GHz licensees and

permitted spectrum disaggregation. The

Commission seeks further comment on

the use of partitioning and

disaggregation by parties taking

advantage of bidding credits under the

Commission’s competitive bidding

licensing rules, and certain technical

rules. The expansion of the partitioning

and disaggregation rules in the Report

and Order to include all 39 GHz

licensees implements, in part, the

requirements of section 257 of the

Telecommunications Act of 1996, which

requires that the Commission eliminate

entry barriers into the

telecommunications market for small

businesses. In the Second Notice of

Proposed Rule Making, the Commission

tentatively concludes that unjust

enrichment provisions should apply

when a licensee has benefitted from the

small business provisions (i.e.,

installment plans and bidding credits)

in the auction rules and then partitions

a portion of the license area to another

entity that would not qualify for such

benefits or would not qualify for the

same level of benefits. The Commission

seeks comment on how such unjust

enrichment should be calculated under

each scenario. The Commission further

seeks comments on what the respective

obligations of the participants in

partitioning transfer should be.

6. Legal Basis. The proposed action is

authorized under sections 4(i), 257,

303(r), and 309(j) of the

Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 257, 303(r),

and 309(j).

7. Description and Number of Small

Entities Involved. The unjust

enrichment proposals with respect to

partitioning and disaggregation will

affect all small businesses that avail

themselves of partitioning and/or

disaggregation, including small

businesses currently holding 39 GHz

licenses who choose to partition and/or

disaggregate and small businesses who

may acquire licenses through

partitioning and/or disaggregation. The

Commission is required to estimate in

its Final Regulatory Flexibility Analysis

the number of small entities to which a

rule will apply, provide a description of

such entities, and assess the impact of

the rule on such entities.

8. To assist the Commission in this

analysis, commenters are requested to

provide information regarding how

many total entities, existing and

potential, would be affected by the

proposed rules in the Second Notice of

Proposed Rule Making. In particular, the

Commission seeks estimates of how

many such entities will be considered

small businesses. As explained in the

Final Regulatory Flexibility Analysis in

the Report and Order, the Commission

is utilizing the SBA definition

applicable to radiotelephone companies,

i.e., an entity employing less than 1,500

persons. The Commission seeks

comment on whether this definition is

appropriate for 39 GHz licensees in this

context. Additionally, the Commission

requests each commenter to identify

whether it is a ‘‘small business’’ under

this definition. If a commenter is a

subsidiary of another entity, this

information should be provided for both

the subsidiary and the parent

corporation or entity.

9. Reporting, Recordkeeping, and

Other Compliance Requirements. The

proposals in the Second Notice of

Proposed Rule Making include the

possibility of imposing additional

reporting and/or recordkeeping

requirements in connection with

businesses obtaining licenses through

the partitioning and disaggregation

rules. The information requirements

placed on businesses seeking to obtain

licenses through partitioning or

disaggregation will be used to determine

if the licensee is a qualifying entity to

obtain a partitioned license or

disaggregated spectrum. Those reporting

requirements are stated in the

companion Final Regulatory Flexibility

Act. Those reporting requirements also

will likely be used to ensure that a

licensee is not unjustly enriched by a

partitioning or disaggregation

arrangement.

10. Federal Rules that Overlap,

Duplicate, or Conflict with These

Proposals. None.

11. Significant Alternatives

Minimizing the Impact on Small Entities

Consistent with the Stated Objectives. In

the Second Notice of Proposed Rule

Making, the Commission tentatively

concludes that unjust enrichment

provisions should apply when a

licensee has benefitted from the small

business provisions in the auctions

rules and partitions a portion of the

license area to another entity that would

not qualify for such benefits. The

alternative to applying the unjust

enrichment provisions would be to

allow an entity who had benefitted from

the special bidding provisions for small

businesses to become unjustly enriched

by partitioning a portion of their license

area to parties that do not qualify for

such benefits.

12. Paperwork Reduction Act. This

Second Notice of Proposed Rule Making

contains either a proposed or modified

information collection. As part of its

continuing effort to reduce paperwork

burdens, the Commission invites the

general public and the Office of

Management and Budget (OMB) to take

this opportunity to comment on the

information collections contained in

this Second Notice of Proposed Rule

Making, as required by the Paperwork

Reduction Act of 1995, Pub. L. 104–13.

Public and agency comments are due at

the same time as other comments on

this Second Notice of Proposed Rule

Making; OMB comments are due March

23, 1998. Comments should address: (a)

whether the proposed collection of

information is necessary for the proper

performance of the functions of the
Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Proposed Rules 3077

Commission, including whether the

information shall have practical utility;

(b) the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility, and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

13. Ex Parte Rules. This is a nonrestricted 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’s rules. See generally

47 CFR 1.1201, 1.1203, 1.1206(a).

14. Comment Filing Procedures.

Pursuant to applicable procedures set

forth in §§ 1.415 and 1.419 of the

Commission’s Rules, 47 CFR 1.415 and

1.419, interested parties may file

comments on or before February 20,

1998, and reply comments on or before

March 9, 1998. To file formally in this

proceeding, interested parties must file

an original plus four copies of all

comments, reply comments, and

supporting comments. If commenters

want each Commissioner to receive a

personal copy of their comments, they

must file an original plus nine copies.

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), 1919 M Street, N.W.,

Washington, D.C. 20554.

15. Authority for issuance of this

Report and Order and Second Notice of

Proposed Rule Making, is contained in

§§ 4(i), 257, 303(r), and 309(j) of the

Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 257, 303(r),

and 309(j).

List of Subjects in 47 CFR 101

Communications common carriers,

Radio, Reporting and recordkeeping

requirements.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98–1393 Filed 1–20–98; 8:45 am]

BILLING CODE 6712–01–P