3070 Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Parts 10 and 15

[CGD 94–055]

RIN 2115–AF23

Licensing and Manning for Officers of

Towing Vessels

AGENCY: Coast Guard, DOT.

ACTION: Notice of public meetings;

request for comments.

SUMMARY: The Coast Guard is holding

four public meetings on its proposed

rule to revise the requirements for

licensing mariners who operate

inspected as well as uninspected towing

vessels. The proposed rule would

ensure that all towing vessels are

manned by officers holding licenses

specifically authorizing their service.

The Coast Guard is holding the public

meetings to receive additional views on

the licensing issues in the proposed

rule.

DATES: The meeting in Memphis,

Tennessee, will be held on February 11,

1998, from 9 a.m. to 5 p.m. The meeting

in Houston, Texas, will be held on

February 13, 1998, from 9 a.m. to 5 p.m.

The meeting in Boston, Massachusetts,

will be held on February 18, 1998, from

9 a.m. to 5 p.m. The meeting in Seattle,

Washington, will be held on February

24, 1998, from 9 a.m. to 5 p.m. Written

material must reach the Coast Guard not

later than February 20, 1998. Comments

on the supplemental notice of proposed

rulemaking must be received on or

before February 24, 1998.

ADDRESSES: The Memphis meeting will

be held in the City Council Chambers,

125 North Main, Memphis, TN 38103.

The Boston meeting will be held in the

Coast Guard Marine Safety Office, 455

Commercial Street, Boston, MA 02109–

1045. The Houston meeting will be held

at Hollywood Marine Inc., 16402–1/2

Dezavala, Channelview, TX 77530. The

Seattle meeting will be held in the

South Auditorium, Federal Building,

915 Second Avenue, Seattle, WA

98174–1067. You may send written

comments to the Executive Secretary,

Marine Safety Council (G–LRA) [CGD

94–055], U.S. Coast Guard

Headquarters, 2100 Second Street, SW.,

Washington, DC 20593–0001, or deliver

them to room 3406 at the same address

between 9:30 a.m. and 2 p.m., Monday

through Friday, except Federal holidays.

The telephone number is 202–267–

1477.

The Executive Secretary maintains the

public docket for this rulemaking.

Comments will become part of this

docket and will be available for

inspection or copying at room 3406,

U.S. Coast Guard Headquarters, between

9:30 a.m. and 2 p.m., Monday through

Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

LCDR Don Darcy, Operating and

Environmental Standards Division (G–

MSO–1), U.S. Coast Guard

Headquarters, 2100 Second Street, SW.,

Washington, DC 20593–0001, telephone

202–267–0221.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages

interested persons to participate in this

rulemaking by submitting written data,

views, or arguments. Persons submitting

comments should include their names

and addresses, identify this rulemaking

[CGD 94–055] and the specific section of

the proposed rule to which each

comment applies, and give the reasons

for each comment. Please submit two

copies of all comments and attachments

in an unbound format, no larger than

81⁄2 by 11 inches, suitable for copying

and electronic filing. Persons wanting

acknowledgment of receipt of comment

should enclose stamped, self-addressed

postcards or envelopes.

The Coast Guard will consider all

comments received during the comment

period. It may change this proposed rule

in view of the comments.

Public Meeting

Attendance is open to the public.

Persons who are hearing-impaired may

request sign translation by asking the

person under FOR FURTHER INFORMATION

CONTACT at least one week before the

meeting. With advance notice, and as

time permits members of the public may

make oral presentations during the

meeting. Persons wishing to make oral

presentations should notify the person

listed under FOR FURTHER INFORMATION

CONTACT no later than the day before the

meeting. Written material may be

submitted before, during, or after the

meeting. Persons unable to attend the

public meetings should submit written

comments as outlined in the interim

rule by February 24, 1998.

Dated: January 13, 1998.

R. L. Skewes,

Captain, U.S. Coast Guard, Acting Director

of Standards Marine Safety and

Environmental Protection.

[FR Doc. 98–1399 Filed 1–20–98; 8:45 am]

BILLING CODE 4910–14–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 79

[MM Docket No. 95–176; FCC 98–3]

Closed Captioning of Video

Programming

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: Viewers with hearing

disabilities may not always have access

to the same televised emergency

information that is currently available to

other viewers. The Commission adopted

this Further Notice of Proposed

Rulemaking (‘‘Further Notice’’) seeking

information and comment regarding

appropriate rules and policies to

promote and to ensure the accessibility

of televised emergency information to

persons with hearing disabilities. Closed

captioning rules for emergency

information programs were not adopted

in the Report and Order in MM Docket

No. 95–176, In the Matter of Closed

Captioning and Video Description of

Video Programming, Video

Programming Accessibility (‘‘Closed

Captioning Order’’) due to the limited

comments submitted in that proceeding

on the issue of captioning of such

programs.

The Further Notice does not contain

proposed or modified information

collections subject to the Paperwork

Reduction Act of 1995 (PRA), Public

Law 104–13.

DATES: Comments are due on or before

February 25, 1998 and reply comments

are due on or before March 27, 1998.

ADDRESSES: Office of the Secretary,

Federal Communications Commission,

1919 M Street, NW, Washington, DC

20554.

FOR FURTHER INFORMATION CONTACT:

Alexis D. Johns, Cable Services Bureau,

(202) 418–7038, TTY (202) 418–7172.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Further

Notice of Proposed Rulemaking, MM

Docket 95–176, adopted January 9, 1998

and released January 14, 1998. The full

text of this Further Notice 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,

and may be purchased from the

Commission’s copy contractor,

International Transcription Service,

(202) 857–3800, 1231 20th Street, NW,

Washington, D.C. 20036.
Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Proposed Rules 3071

Synopsis of the Further Notice of

Proposed Rulemaking

1. The rules we adopted in the Closed

Captioning Order require video program

providers to increase gradually the

amount of captioned new programming

offered over time. The rules require

minimum captioning benchmarks to be

met at two year intervals, starting on

January 1, 2000. Appendix B at

§ 79.1(b)(1) (62 FR 48487, September 16,

1997). New programming is defined as

programs first published or exhibited

after January 1, 1998. Appendix B at

§ 79.1(a)(5) (62 FR 48487, September 16,

1997). The rules allow video program

providers to exercise discretion with

respect to what types of programs to

caption first, and permit video program

providers to caption news programming

using the electronic newsroom (‘‘ENR’’)

method. Para. 47 and Appendix B at

§ 79.1(e)(3) (62 FR 48487, September 16,

1997). ENR captions are created from

the text in the station’s news script

computers. With ENR, only text

transmitted from the scripting

computers onto teleprompters is

captioned; unscripted material, such as

live reports from the field, reports of

breaking news, and weather and sports

reporting, is not captioned.

2. The emergency information which

we address in this Further Notice falls

under the Closed Captioning Order’s

definition of new programming. By

‘‘emergency information,’’ we generally

mean state, local and regional

emergency announcements or reports,

including interruptions of regularlyscheduled programming and latebreaking reports during live news

programs. Pursuant to the rules adopted

in the Closed Captioning Order,

emergency information would be

subject to the same closed captioning

requirements as other new

programming. Such programming

would not be required to be offered with

closed captioning before 2000 at the

earliest, and each video program

provider would have the discretion to

determine whether to give emergency

information priority for captioning

relative to other new programming. In

addition, under the rules, a video

program provider could caption its live

news programming using the ENR

method, which could leave much

emergency information inaccessible to

persons with hearing disabilities since it

is likely to be late-breaking news and

unscripted.

3. Given the significant health and

safety issues inherent in emergency

information, in the Closed Captioning

Order we concluded that closed

captioning requirements for emergency

information should be considered

further. In this Further Notice, we seek

comment on how our rules can best

ensure that such programs are accessible

to viewers with hearing disabilities. We

request comment on whether separate

transitional closed captioning

requirements are needed for emergency

information or whether there are other

methods of providing accessibility for

this type of programming.

4. As we stated in the Closed

Captioning Order, providing all viewers

with accurate information regarding

emergencies is of great importance, and

we are concerned that viewers with

hearing disabilities may not always have

access to the same information that is

available to other viewers. As a

threshold matter, we seek comment on

the types of information and programs

that should be considered ‘‘emergency

information’’ for the purposes of our

rules. We note that the Commission

currently requires broadcast licensees to

make the emergency information

programming that they transmit

accessible to persons who are deaf or

hard of hearing. See 47 CFR 73.1250(h).

The types of emergency information

contemplated in the Further Notice are

not those which must be transmitted by

the Emergency Alert System (‘‘EAS’’)

under our existing rules. See 47 CFR

11.1 et seq. Use of the EAS is required

only in the event of a national

emergency, though state and local

authorities may use the EAS to provide

early warnings to communities about

regional, state and local emergencies.

The rules and policies proposed in this

Further Notice are not intended to

conflict with or supersede the EAS rules

in any way. The broadcast rule

enumerates the following examples of

emergency situations as being subject to

the rule: tornadoes, hurricanes, floods,

tidal waves, earthquakes, icing

conditions, heavy snows, widespread

fires, discharge of toxic gases,

widespread power failures, industrial

explosions, civil disorders, and school

closings and changes in school bus

schedules resulting from such

conditions. We tentatively conclude that

for this purpose, we should broadly

define emergency information to ensure

that sufficient information regarding

situations that affect the safety of

viewers is available to persons with

hearing disabilities with the same

immediacy as it is for other viewers. To

the types of situations cited in the

existing broadcast rule, we believe that

it would be appropriate to add warnings

and watches of impending changes in

weather affecting the safety of viewers,

and seek comment on how to define

such situations. We also seek comment

on whether defining emergency

information more broadly here than in

the broadcast rule would cause any

practical problems or other

complications for entities subject to

emergency closed captioning

requirements.

5. We seek comment on whether it is

feasible to require video program

providers to supply closed captions for

emergency information programs. By its

nature, emergency information is not

typically programming that can be prerecorded and captioned in advance of

airing. A requirement that such

programs be captioned would therefore

oblige providers to obtain real-time

captioning services for such programs.

As we described in the Closed

Captioning Order, real-time captioning

resources are somewhat limited at this

time. We declined to require that all live

news programming be captioned using

real-time captioners in part due to

concerns about the limited real-time

resources in existence and the need to

allow captioning companies sufficient

time to recruit and train more captioners

to meet the increased demands for their

services that the rules will create.

6. We seek comment on the estimated

costs, in both financial and human

resource terms, that a captioning

requirement for emergency information

will impose on video providers. In

particular, we seek updated information

on the number of real-time captioners

currently available as well as the

number projected to be available in the

near future. In the event a real-time

captioning requirement is instituted for

emergency information, we seek

comment on the effect such a rule will

have on the availability of live

captioning resources for other types of

live programming. Captioning

companies and commenters who

regularly use real-time captioning

services should submit detailed

information on the hourly costs charged

for such services, and whether and

under what conditions those costs vary.

Is it feasible for video program providers

to have real-time captioners ‘‘on call’’

for closed captioning when emergencies

arise, or would providers have to hire

full-time staff to produce live closed

captions? What would it cost to hire an

‘‘on call’’ real-time captioner?

7. We request information on the

availability and feasibility of providing

live captions remotely in emergency

situations. Where an emergency affects

a large geographic region, all video

providers in that region will need to

access real-time captioning resources at

the same time. Given the limited

number of real-time captioning
3072 Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Proposed Rules

resources available at present, it may

not be possible for each provider to

obtain the necessary captioning

assistance within its geographic region.

For example, a major snowstorm such as

that which occurred on the East Coast

in early 1996 could place a significant

strain on real-time resources throughout

the northeast and mid-Atlantic states.

Could video program providers use realtime captioners located in other areas

(e.g., California) unaffected by the

emergency to offer remote captioning

under such circumstances? Would

remote real-time captioning incur

greater costs or be less costly than local

live captioning under such

circumstances?

8. We specifically seek comment on

whether emergency programming

should be given a higher priority for

captioning than other types of new

programs. Specifically, should we

require that emergency information be

provided with captions prior to the

commencement of the captioning

requirement for other new programs? If

so, when should video program

providers be required to begin

captioning these programs? With respect

to the minimum benchmarks for

captioning of new programs, we ask

whether video program providers

should be required to supply closed

captions for emergency information

programs during the transition period,

regardless of whether the provider has

already met its captioning benchmark

for new programs. Would such a

requirement be feasible, or would it

pose significant logistical problems or

economic burdens on video program

providers? We tentatively conclude that

any textual presentation of emergency

information programs should be

required to incorporate substantially the

entire text of the audio portion of the

program. We seek comment on this

tentative conclusion.

9. The closed captioning rules also

include exemptions based on video

program providers’ gross revenues.

Under the revenue exemption, video

program providers with annual gross

revenues of less than $3 million per

channel are exempt from all captioning

requirements, except for the obligation

to pass through captions where

programs are received from the program

supplier with captions. Appendix B at

§ 79.1(d)(12) (62 FR 48487, September

16, 1997). Also, our rules provide that

once a video program provider has

spent an amount equal to 2% of its gross

annual revenues on captioning, that

provider need not spend any more

money on captioning. Appendix B at

§ 79.1(d)(11) (62 FR 48487, September

16, 1997). We seek comment as to

whether these exemptions should be

suspended for the limited purpose of

emergency information programming

closed captioning. Should all video

program providers be required to supply

closed captions for emergency

information, even where the provider is

otherwise eligible for one of our

revenue-based exemptions? How would

such a rule affect small entities such as

small or low power television stations

and small cable operators? Commenters

should submit proposals for reducing

the burdens on small entities that such

a mandatory closed captioning rule

might impose.

10. Alternatively, we ask whether

other methods of visually presenting

emergency information would be

acceptable in lieu of a closed captioning

requirement. As noted above, the

Commission currently requires

broadcast licensees to make such

programming accessible to persons who

are deaf or hard of hearing. To the

extent broadcast licensees transmit

emergency information programming,

they are required by our rules to

transmit such programs both aurally and

visually or only visually. The broadcast

rules allow television stations to ‘‘use

any method of visual presentation

which results in a legible message

conveying the essential emergency

information,’’ including, but not limited

to, slides, electronic captioning, manual

methods (e.g., hand printing), or

mechanical printing processes. 47 CFR

73.1250(h). However, no equivalent

obligation exists for emergency

information transmitted by cable

television operators or other

multichannel video program

distributors (‘‘MVPDs’’). We seek

comment as to whether an extension of

the existing broadcast rules to cover

emergency information disseminated by

MVPDs, in conjunction with our

existing captioning rules, would be

appropriate or sufficient to address the

concerns raised in this Further Notice.

11. In addition, an emergency

information program may consist of an

audio report that is not displayed

visually, or the audio portion of the

report may be longer and offer more

complete information than that

displayed visually, leaving viewers with

hearing disabilities without full details

on the situation. We seek information

on methods or requirements that could

be adopted to ensure that all pertinent

details are accessible. We also seek

comment on a proposal submitted by

Cal-TVA for cases where local stations

are unable to provide an instant visual

transcription of audio emergency

messages. Cal-TVA recommends use of

a second text channel that a viewer may

switch to within ten minutes of the

airing of an emergency message, to read

a typed report of the audio message and

any actions the viewer is being

instructed to take. We seek comment

regarding the feasibility of this proposal,

and request information regarding other

possible methods of ensuring the

accessibility of this information to

persons with hearing disabilities.

12. Finally, we seek comment on any

other proposals to promote and to

ensure the accessibility of emergency

programming and other special reports

that have not already been raised in this

Further Notice or in the closed

captioning proceeding. In particular, we

ask commenters to address the legal,

policy, and practical implications of any

such proposals.

Initial Regulatory Flexibility Analysis

13. Pursuant to Section 603 of the

Regulatory Flexibility Act (‘‘RFA’’), 5

U.S.C. 603, the Commission has

prepared the following initial regulatory

flexibility analysis (‘‘IRFA’’) of the

expected impact of these proposed

policies and rules on small entities.

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

Further Notice, but they must have a

separate and distinct heading

designating them as responses to the

IRFA. The Secretary shall cause a copy

of this Further Notice to be sent to the

Chief Counsel for Advocacy of the Small

Business Administration (‘‘SBA’’) in

accordance with section 603(a) of the

RFA, 5 U.S.C. 603(a).

14. Reason for Action and Objectives

of the Proposed Rule: Section 713 of the

1996 Act required the Commission to

adopt rules and timetables for the

captioning of video programming by

August 8, 1997. In the course of the

closed captioning proceeding, a few

commenters addressed the particular

need for captioning of emergency

programming and similar special

reports, but the information submitted

to the Commission regarding this issue

was insufficient to support the adoption

of specific captioning rules for

emergency programming. Instead, the

Closed Captioning Order directed that a

separate proceeding be initiated to

address this issue. In this Further

Notice, we seek comment on

appropriate requirements for promoting

and ensuring the accessibility of

emergency programming to viewers

with hearing disabilities.

15. Legal Basis: This Further Notice is

adopted pursuant to Sections 4(i),

303(r), and 713 of the Communications
Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Proposed Rules 3073

Act of 1934, as amended, 47 U.S.C.

154(i), 303(r), and 613.

16. Description and Number of Small

Entities Affected: The RFA 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. 5 U.S.C. 601(3).

A small business 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. 15 U.S.C. 632.

17. 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. 13 CFR 121.201

(SIC 4841). 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. We address below

each service individually to provide a

more precise estimate of small entities.

We seek comment on the tentative

conclusions below.

18. 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 the Commission’s

rules, a ‘‘small cable company’’ is one

serving fewer than 400,000 subscribers

nationwide. 47 CFR 76.901(e). Based on

our most recent information, we

estimate that there were 1,439 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, 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 Futher Notice.

19. 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.’’ 47 U.S.C. § 543(m)(2).

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. 47

CFR 76.1403(b) (SIC 4833). Based on

available data, we find that the number

of cable operators serving 617,000

subscribers or less totals 1,450.

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 number of

cable system operators that would

qualify as small cable operators under

the definition in the Communications

Act.

20. 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. 47 CFR 21.961(b)(1). This

definition of a small entity in the

context of MMDS auctions has been

approved by the SBA.

21. 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 1,573

previously authorized and proposed

MMDS facilities. Information available

to us indicates that no MMDS facility

generates revenue in excess of $11

million annually. We tentatively

conclude that, for purposes of this IRFA,

there are approximately 1,634 small

MMDS providers as defined by the SBA

and the Commission’s auction rules.

22. ITFS: There are presently 2,032

ITFS licensees. All but 100 of these

licenses are held by educational

institutions. Educational institutions are

included in the definition of a small

business. 5 U.S.C. § 601(5). However, we

do not collect annual revenue data for

ITFS licensees, and are not able to

ascertain how many of the 100 noneducational licensees would be

categorized as small under the SBA

definition. Thus, we tentatively

conclude that at least 1,932 licensees are

small businesses.

23. 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. The Commission does not

collect annual revenue data for DBS,

and is unable to determine with

certainty the number of small DBS

licensees that could be affected by these

proposed rules. However, 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, we tentatively conclude

that no DBS operator qualifies as a small

entity.

24. 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.

25. According to the most recently

available information, there are

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 is an average, it is likely

that some program packagers may be

substantially smaller. We seek comment

on these tentative conclusions.

26. Open Video Systems (‘‘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
3074 Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Proposed Rules

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. On October 10, 1996, Digital

Broadcasting Open Video Systems

received approval to offer OVS service

in southern California. Digital

Broadcasting Open Video Systems is a

general partnership just beginning

operations. Little financial information

is available for the other entities

authorized to provide OVS that are not

yet operational. Given that other entities

have been authorized to provide OVS

service but have not yet begun to

generate revenues, we tentatively

conclude that at least some of the OVS

operators qualify as small entities.

27. Satellite Master Antenna

Television (‘‘SMATVs’’): Industry

sources estimate that approximately

5,200 SMATV operators were providing

service as of December 1995. Other

estimates indicate that SMATV

operators served approximately 1.05

million residential subscribers as of

September 1996. The ten largest

SMATV operators together pass 815,740

units. 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.

28. 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 in paragraph 16

supra. A small radiotelephone entity is

one with 1500 employees or less. 13

CFR 121.201. However, for the purposes

of this Further Notice, we include only

an estimate of LMDS video service

providers.

29. LMDS is a service that was

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 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, CC

Docket No. 92–297 (60 FR 43740 at

¶ 188, August 23, 1995), 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.

We have not yet received approval by

the SBA for this definition.

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. No

commenters addressed the tentative

conclusions we reached in the Further

Notice. We tentatively conclude that a

majority of the potential LMDS

licensees will be small entities, as that

term is defined by the SBA.

31. Small Broadcast Stations: The

SBA defines small television

broadcasting stations as television

broadcasting stations with $10.5 million

or less in annual receipts. 13 CFR

121.201.

32. Estimates Based on Census and

BIA Data: According to the Bureau of

the Census, in 1992, 1,155 out of 1,478

operating television stations reported

revenues of less than $10 million for

1992. This represents 78% of all

television stations, including

noncommercial stations. The Bureau of

the Census does not separate the

revenue data by commercial and

noncommercial stations in this report.

Neither does it allow us to determine

the number of stations with a maximum

of $10.5 million in annual receipts.

Census data also indicate that 81% of

operating firms (that owned at least one

television station) had revenues of less

than $10 million.

33. We also have performed a separate

study based on the data contained in the

BIA Publications, Inc. Master Access

Television Analyzer Database, which

lists a total of 1,141 full power

commercial television stations. It should

be noted that, using the SBA definition

of small business concern, the

percentage figures derived from the BIA

database may be underinclusive because

the database does not list revenue

estimates for noncommercial

educational stations, and these therefore

are excluded from our calculations

based on the database. The BIA data

indicate that, based on 1995 revenue

estimates, 440 full power commercial

television stations had an estimated

revenue of $10.5 million or less. That

represents 54% of full power

commercial television stations with

revenue estimates listed in the BIA

program. The database does not list

estimated revenues for 331 stations.

Using a worst case scenario, if those 331

stations for which no revenue is listed

are counted as small stations, there

would be a total of 771 stations with an

estimated revenue of $10.5 million or

less, representing approximately 68% of

the 1,141 full power commercial

television stations listed in the BIA data

base.

34. Alternatively, if we look at owners

of commercial television stations as

listed in the BIA database, there are a

total of 488 owners. The database lists

estimated revenues for 60% of these

owners, or 295. Of these 295 owners,

156 or 53% had annual revenues of less

than $10.5 million. Using a worst case

scenario, if the 193 owners for which

revenue is not listed are assumed to be

small, then small entities would

constitute 72% of the total number of

owners.

35. In summary, based on the

foregoing worst case analysis using

Bureau of the Census data, we estimate

that our proposed rules will apply to as

many as 1,150 commercial and

noncommercial television stations (78%

of all stations) that could be classified

as small entities. Using a worst case

analysis based on the data in the BIA

data base, we estimate that as many as

771 commercial television stations

(about 68% of all commercial television

stations) could be classified as small

entities. As we noted above, these

estimates are based on a definition that

we tentatively believe greatly overstates

the number of television broadcasters

that are small businesses. Further, it
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