Federal Register / Vol. 87, No. 82 / Thursday, April 28, 2022 / Proposed Rules 25181 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WC Docket No. 17–84; FCC 22–20; FRS 

83033] 

Accelerating Wireline and Wireless 

Broadband Deployment by Removing 

Barriers to Infrastructure Investment 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) seeks comment on 

measures that the Commission may 

adopt to better align the financial 

incentives of utilities and attachers with 

respect to pole replacements. 

Specifically, the Commission seeks 

comment on the circumstances in which 

attachers should not be required to pay 

the entire cost of pole replacements 

needed to accommodate their new 

attachments and the proper allocation of 

costs in those situations, whether and 

how the Commission should revise its 

rules to address pole replacement cost 

issues, whether there are changes the 

Commission could make to its rules that 

would help utilities and attachers avoid 

disputes and expedite the resolution of 

pole attachment complaints, and the 

appropriate scope of refunds ordered by 

the Commission when it determines that 

a pole attachment rate, term, or 

condition is unjust and unreasonable. 

DATES: Comments are due on or before 

June 27, 2022, and reply comments are 

due on or before July 27, 2022. 

ADDRESSES: You may submit comments, 

identified by WC Docket No. 17–84, by 

any of the following methods: 

D Federal Communications 

Commission’s Website: https://

apps.fcc.gov/ecfs/. Follow the 

instructions for submitting comments. 

D Mail: Parties who choose to file by 

paper must file an original and one copy 

of each filing. Filings can be sent by 

commercial overnight courier, or by 

first-class or overnight U.S. Postal 

Service mail. All filings must be 

addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

Commercial overnight mail (other than 

U.S. Postal Service Express Mail and 

Priority Mail) must be sent to 9050 

Junction Drive, Annapolis Junction, MD 

20701. U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 45 L Street NE, 

Washington, DC 20554. Effective March 

19, 2020, and until further notice, the 

Commission no longer accepts any hand 

or messenger delivered filings. This is a 

temporary measure taken to help protect 

the health and safety of individuals, and 

to mitigate the transmission of COVID– 

19. See FCC Announces Closure of FCC 

Headquarters Open Window and 

Change in Hand-Delivery Policy, Public 

Notice, DA 20–304 (March 19, 2020), 

https://www.fcc.gov/document/fcccloses-headquarters-open-window-andchanges-hand-delivery-policy. 

D People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by email: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: 

Michael Ray, Competition Policy 

Division, Wireline Competition Bureau, 

at (202) 418–0357, michael.ray@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Second 

Further Notice of Proposed Rulemaking 

(Second Further Notice) in WC Docket 

No. 17–84, adopted March 16, 2022, 

released March 18, 2022. The full text 

of this document is available for public 

inspection on the Commission’s website 

at https://www.fcc.gov/document/fccseeks-comment-resolving-disputes-overpole-replacement-costs. To request 

materials in accessible formats for 

people with disabilities (e.g., braille, 

large print, electronic files, audio 

format, etc.) or to request reasonable 

accommodations (e.g., accessible format 

documents, sign language interpreters, 

CART, etc.), send an email to fcc504@

fcc.gov or call the Consumer & 

Governmental Affairs Bureau at (202) 

418–0530 (voice) or (202) 418–0432 

(TTY). 

Synopsis 

I. Second Further Notice of Proposed 

Rulemaking 

1. In this Second Further Notice, we 

seek comment on ways to eliminate or 

expedite the resolution of pole 

replacement disputes by establishing 

clear standards for when and how 

utilities and attachers must share in the 

costs of a pole replacement that is 

precipitated by a new attachment 

request. In the Pole Replacement 

Declaratory Ruling, the Bureau found 

that it would be contrary to the 

Commission’s rules and policies to 

require a new attacher to pay the entire 

cost of a pole replacement when a pole 

already requires replacement (e.g., 

because the pole is out of compliance 

with current safety and utility 

construction standards or it has been 

red-tagged) at the time a request for a 

new or modified attachment is made. 

According to the Bureau, even if the 

new attacher might benefit from that 

type of pole replacement, it is not 

‘‘necessitated solely as a result’’ of the 

new attachment pursuant to the 

language in Section 1.1408(b) of our 

rules and therefore the utility may not 

impose all make-ready costs of that pole 

replacement on the new attacher. The 

Bureau based its clarification on the cost 

causation and cost sharing principles 

codified in Section 1.1408(b). We affirm 

the Bureau’s findings in the Pole 

Replacement Declaratory Ruling as 

consistent with Section 224, the 

Commission’s rules, and past 

Commission precedent. 

2. On July 16, 2020, NCTA—the 

internet & Television Association filed a 

Petition asking the Commission to 

clarify its rules in the context of pole 

replacements. The record developed in 

response to the NCTA Petition indicates 

significant disagreement between 

utilities and attachers about when a pole 

replacement is not ‘‘necessitated solely’’ 

by a new attachment when the 

circumstances do not involve a 

preexisting violation or red-tagged pole. 

We seek comment on these more 

ambiguous situations and the role the 

Commission should take in providing 

further guidance regarding pole 

replacements. We also take this 

opportunity to seek comment on 

additional scenarios in which financial 

responsibility for pole replacements 

should be shared by attachers and 

utilities and how those costs should be 

apportioned. Additionally, we seek 

comment on the scope of utility liability 

for pole attachment rate refunds when 

rates are found to be unjust and 

unreasonable. 

A. Determining the Applicability of Cost 

Causation and Cost Sharing 

3. In the Pole Replacement 

Declaratory Ruling, the Bureau clarified, 

pursuant to the language in Section 

1.1408(b) of our rules, that when a new 

attachment request precipitates a pole 

replacement, but the pole must also be 

replaced for other reasons, the pole 

replacement is not ‘‘necessitated solely’’ 

by the new attachment and all of the 

parties that benefit from the 

replacement must share proportionally 

in the cost, including utilities. Under 

this standard, and consistent with the 

2018 Wireline Infrastructure Order, the 

Bureau made clear that this standard 

applies when the pole must be replaced 


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due to a preexisting violation or because 

it has been red-tagged. 

4. We seek comment on whether there 

are additional situations in which a pole 

replacement is not ‘‘necessitated solely’’ 

by a new attachment request. Is it 

possible for a future planned pole 

replacement to serve as grounds for 

concluding that the pole must be 

replaced for other reasons at the time of 

the new attachment request? If so, in 

what circumstances? For example, if the 

utility has already scheduled the 

requested pole for replacement one or 

two years after the new attachment 

request is made, could we deem that 

known and scheduled replacement as 

necessary at the time that the new 

attachment request is made and 

therefore consider the replacement of 

the pole to not be ‘‘necessitated solely’’ 

by the new attachment? Should the 

Commission codify a definition of 

‘‘necessitated solely’’ for the purposes of 

Section 1.1408(b) and, if so, what 

should that definition be? When 

considering situations ‘‘necessitated 

solely’’ by a need to create capacity for 

a new attachment, should the term 

‘‘capacity’’ refer to both additional space 

needed to accommodate the new 

attachment and/or the need for a 

stronger pole to increase loading 

capacity? Should the Commission 

codify a definition of ‘‘red-tagging’’ or 

other terminology that distinguishes 

between priority replacements that need 

to be performed immediately due to the 

status of a pole from non-priority 

replacements that may be implemented 

at a later time? The Commission has 

previously described a ‘‘red-tagged’’ 

pole as one found to be non-compliant 

with safety standards and placed on a 

utility’s replacement schedule. Crown 

Castle argues that the Commission 

should employ a broader definition that 

includes ‘‘any pole where, based on an 

existing condition, the utility contends 

the pole must be replaced before any 

new attachment, or change to an 

existing attachment, may be made.’’ 

5. Even if a pole replacement is 

necessitated for a reason other than a 

new attachment request, Section 

1.1408(b) requires existing attachers 

(including the utility) to pay a 

proportional share of the replacement 

costs only if they ‘‘directly benefit’’ from 

the replacement. The Commission has 

previously determined that an 

incidental benefit is not sufficient to 

hold these attachers accountable for the 

pole replacement costs. When 

addressing additional circumstances to 

which the clarification in the Pole 

Replacement Declaratory Ruling should 

apply, if any, we ask that commenters 

specify whether any benefits that accrue 

to existing attachers are direct versus 

incidental and how they define those 

terms for the purposes of their 

arguments. We ask that commenters be 

clear about the criteria that distinguish 

a direct benefit from an incidental 

benefit and cite all economic and legal 

authorities that support their positions. 

6. We seek comments specifically 

addressing whether a utility directly 

benefits from a pole replacement that is 

necessary to correct a preexisting 

violation that the utility did not cause. 

As stated in the 2018 Wireline 

Infrastructure Order, utilities may not 

hold new attachers responsible for the 

costs of correcting a preexisting 

violation. That does not necessarily 

mean, however, that the utility is 

ultimately responsible for all of the 

costs in all cases. Rather, the party that 

is responsible for the violation is 

responsible for the costs of correcting 

the violation, and the utility is 

authorized to seek recovery from the 

violating party. What are the 

circumstances under which existing 

attachers, as opposed to utilities, may be 

responsible for preexisting violations 

that require an entire pole to be 

replaced? In such situations, are there 

ways that a utility directly benefits from 

a pole replacement that corrects a 

preexisting violation within the 

meaning of the first two sentences of 

Section 1.1408(b), even if it did not 

cause the violation? For instance, in 

concluding that a utility may not hold 

a new attacher responsible for costs 

arising from the correction of safety 

violations caused by other attachers, the 

former Cable Services Bureau 

determined that it was up to the utility 

‘‘to require other attachers to reimburse 

[the utility] or otherwise pay for 

corrections of safety violations.’’ In the 

2018 Wireline Infrastructure Order, the 

Commission found that a utility may not 

hold a new attacher responsible for the 

costs of a preexisting violation caused 

by another attacher or delay the 

completion of make-ready to 

accommodate a new attachment while it 

‘‘attempts to identify or collect from the 

party who should pay for correction of 

the preexisting violation.’’ In the context 

of pole replacements, should we 

construe these precedents to mean that 

the utility is responsible for the costs of 

correcting the violation vis-a`-vis the 

new attacher, and, therefore, directly 

benefits when the pole replacement 

needed to accommodate the new 

attachment corrects the violation? If so, 

does that financial responsibility and 

direct benefit require the utility to share 

in the costs of the replacement under 

Section 1.1408(b)? 

7. We also seek comment on how to 

identify and quantify the costs of a pole 

replacement that are proportional to the 

direct benefit obtained by a utility from 

a pole replacement that is not 

necessitated solely by a new attachment 

request. We remain committed to the 

long-standing principle that when 

‘‘capital costs would not have been 

incurred ‘but for’ the pole attachment 

demand . . . the attacher—the cost 

causer—pays for these costs.’’ In the 

context of make-ready charges for a new 

attachment, that includes the ‘‘direct 

incremental costs of making space 

available to the [attacher],’’ but excludes 

costs that are not required to 

accommodate the new attachment. 

Make-ready is ‘‘the modification or 

replacement of a utility pole, or of the 

lines or equipment on the utility pole, 

to accommodate additional facilities on 

the utility pole.’’ Make-ready charges to 

prepare a pole for a new attachment are 

‘‘non-recurring costs for which the 

utility is directly compensated and as 

such are excluded from expenses used 

in the rate calculation.’’ 

8. How should we distinguish the 

incremental costs attributable to the 

new attacher from the costs that should 

be attributable to utilities when a pole 

replacement is necessary to make space 

for the new attachment and for a reason 

that directly benefits the utility? In the 

context of a pole that also needs to be 

replaced to correct a preexisting 

violation or because it has been redtagged, should the new attacher be 

responsible for the difference in cost 

between a taller or stronger pole needed 

to accommodate its attachment and 

what it would cost to replace the 

existing pole with one of the same type 

and size or strength? Is there a different 

way to apportion the cost of the new 

pole between its owner and the new 

attacher? How should other costs 

associated with pole replacements, such 

as the cost of transferring existing 

attachments to the new pole, be 

apportioned between the utility and 

new attacher? We ask that commenters 

submit data and documents describing 

and substantiating the precise costs of 

pole replacements in each scenario 

addressed above and specify the party 

that causes them to be incurred. 

9. Finally, we seek comment on 

whether we should revise our cost 

allocation rules to modify or replace the 

direct benefit versus incidental benefit 

standard set forth in Section 1.1408(b). 

Is there a more equitable and efficient 

standard for determining when parties 

should share in the costs of modifying 

a facility? What are the costs and 

benefits of applying an alternate 

standard? We ask that commenters 


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proposing alternate standards detail 

how costs would be allocated under the 

proposed standard’s terms in real-world 

scenarios, specifically addressing the 

economic and operational impacts on 

the parties, including whether the 

standard would allow utilities to fully 

recover the costs of establishing 

additional capacity on their poles. We 

also ask that commenters explain 

whether any proposed alternate 

standard would promote or deter 

broadband deployment or the ability of 

utilities and attachers to successfully 

negotiate pole attachment agreements, 

including whether it would lead to an 

increase or decrease in pole attachment 

disputes. 

B. Allocating Costs When Utilities 

Directly Benefit From Pole 

Replacements 

10. Attachers have represented to the 

Commission that utilities often seek to 

hold them responsible for all costs of 

replacing a pole that is needed to make 

space for a new attachment, even if all 

of those costs are not needed to 

accommodate the new attachment (e.g., 

pole upgrades, increasing capacity 

beyond the needs of the new 

attachment). While some utilities 

indicate that this is not the case and that 

new rules in this area are unnecessary, 

others have not denied it or have 

attempted to justify it with a broad 

interpretation of the Commission’s cost 

causation policy, i.e., but for the new 

attachment request, the pole 

replacement would not have occurred at 

all, so the attacher should pay all costs 

of the replacement. Stated differently, 

some utilities contend that while 

implementing a pole replacement is 

necessitated solely by the new 

attachment, they should be able to 

enhance the pole in some way that is 

not necessitated by the new attachment 

without incurring financial 

responsibility for those enhancements. 

Attachers have also argued that utilities 

receive a windfall when they hold new 

attachers responsible for all the costs of 

a pole replacement because it eliminates 

or reduces the costs they would have 

otherwise had to pay to replace the pole 

in the future (i.e., financial 

responsibility for the utility’s 

deteriorating and aging infrastructure is 

shifted to the attacher). In particular, the 

white paper submitted by Charter’s 

economist, Dr. Patricia Kravtin, states 

that ‘‘since the future replacement of the 

pole from the utility’s perspective is ‘an 

inevitable event’ that it would 

eventually have to pay for itself, the 

practice of transferring the full cost of 

that replacement onto new attachers 

(who must either pay to obtain access or 

choose to abandon their investment 

plans) results in burdens to the 

attaching entity far exceeding the costs 

they actually cause the pole owner to 

incur over a more meaningful time 

horizon.’’ We seek comment on the 

conclusions reached by Dr. Kravtin as 

they relate to the cost allocations and 

causes of pole replacements. Utilities 

counter that the early retirement of their 

poles precipitated by a new attachment 

comes at a cost—the value they lose in 

a capital asset that has not yet reached 

the end of its useful life—and that under 

the Commission’s cost causation policy, 

they are entitled to compensation for the 

unrealized value of a pole that would 

otherwise remain in service. 

11. While we acknowledge that the 

economic and legal arguments made by 

utilities could have merit, we are 

concerned by the frequent statements in 

the record that attachers are being 

required to absorb costs that are not 

caused by their attachments and/or 

result in attachers assuming financial 

responsibility for a utility’s capital 

assets. Our concern is rooted in the 

potential impact on the deployment of 

broadband networks if the financial 

resources available for deployments are 

depleted by these costs. That said, we 

are keenly aware of the need to carefully 

examine the impact any changes to our 

cost allocation rules may have on the 

ability of utilities to fully recover the 

costs of expanding capacity to 

accommodate new attachments to avoid 

the unintended consequence of 

increased attachment denials. Section 

224 does not provide the Commission 

with authority to require utilities to 

replace poles when additional capacity 

is needed to accommodate a new 

attachment. Utility commenters argue 

that ‘‘[i]f utilities are no longer 

compensated for pole replacements and 

can no longer control the pole 

replacement process, many utility pole 

owners will decide they can no longer 

economically or safely replace poles on 

a voluntary basis for new attachers. The 

‘clarification’ would deny new attachers 

access to poles that require replacement 

to accommodate them.’’ 

12. To evaluate and resolve these 

competing concerns, we seek comment 

on whether the Commission should 

revise its pole attachment rules to 

expressly recognize that utilities 

directly benefit from pole replacements 

that are precipitated by a new 

attachment request and establish clear 

standards for when and how utilities 

should be required to pay a proportional 

share of the total pole replacement 

costs. We limit our inquiries to 

situations where a pole replacement is 

needed to accommodate a new 

attachment due to lack of capacity. We 

are aware of allegations by attachers that 

some utilities erroneously or 

disingenuously claim that an existing 

pole lacks capacity to accommodate a 

new attachment and insist that the pole 

must be replaced at the attacher’s cost. 

The rules clearly prohibit such conduct 

by utilities, and the Commission is fully 

capable of adjudicating such disputes 

through its complaint process, and we 

believe that is the appropriate avenue 

for attachers asserting such claims to 

seek relief. Would clear standards on 

these points expedite cost dispute 

resolution between the parties? Or, are 

any disputes likely to be fact-specific 

and better addressed in adjudicatory 

proceedings? Are further cost allocation 

rules for pole replacements unnecessary 

and/or could they result in more 

attachment requests being denied as 

some utilities claim? 

1. Responsibility for Pole Upgrades and 

Modifications Unrelated to New 

Attachments 

13. Attachers have represented to the 

Commission that, when a pole 

replacement is needed to expand 

capacity for a new attachment, utilities 

use that pole replacement as an 

opportunity to upgrade a pole (e.g., 

increase its class or grade) or expand 

their own use of the pole in a manner 

that is unrelated to the new attachment 

(e.g., expand capacity for future use by 

the utility itself or to rent to a different 

attacher). When that occurs, attachers 

represent that they are held accountable 

for the cost of upgrade/expanded use 

modifications made at the same time as 

the make-ready for their new 

attachments. According to NCTA, 

utilities insist that they are entitled to 

shift those costs to the new attacher 

because, even if the upgrade/expanded 

use modifications are not required to 

effectuate the new attachment, the 

utility would not have made them if a 

pole replacement had not been required 

to accommodate the new attachment. 

Attachers argue that, under the 

Commission’s rules and precedent, they 

may not be held accountable for such 

costs because they are not necessitated 

by the new attachment. Utilities who 

shift the costs of upgrade/expanded use 

modifications to new attachers claim 

that, as described above, the pole 

replacement required to accommodate 

the new attachment is the ‘‘but for’’ 

cause of those modification costs. We 

note that some utilities have represented 

to the Commission that they do not hold 

new attachers responsible for pole 

upgrades that are not required by a new 

attachment and that new rules are 

unnecessary in this area. 


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14. We seek comment on whether 

utilities directly benefit when they use 

pole replacements precipitated by an 

attachment request to upgrade or 

enhance their poles and whether 

utilities should pay a proportional share 

of the total pole replacement costs. As 

an initial matter, we seek comment on 

whether the Commission’s existing cost 

allocation rules and precedent require 

clarification on this point. Section 

1.1408(b) of the Commission’s rules 

states, in pertinent part, that ‘‘[t]he costs 

of modifying a facility shall be borne 

. . . by all parties that directly benefit 

from the modification,’’ and that each 

party that directly benefits from the 

modification shall share proportionally 

in its costs, but it then qualifies that 

language by stating, ‘‘[n]otwithstanding 

the foregoing, a party with a preexisting 

attachment to a pole . . . shall not be 

required to bear any of the costs of 

rearranging or replacing its attachment 

if such rearrangement or replacement is 

necessitated solely as a result of an 

additional attachment . . . sought by 

another party.’’ If a pole upgrade is 

necessitated at the time a pole is 

replaced to create capacity for a new 

attachment, does the text of Section 

1.1408(b) allocate all costs of the pole 

replacement, including those for 

unrelated upgrade/expansion 

modifications, to the new attacher? Or 

does it merely shield other attachers, 

and not the utility, from bearing any 

upgrade costs? We note that the text of 

Section 1.1408(b) does not appear to 

include replacing a pole after receiving 

a modification request as an instance of 

‘‘piggybacking.’’ The third sentence of 

the rule states that ‘‘[a] party with a 

preexisting attachment to the modified 

facility shall be deemed to directly 

benefit from a modification if, after 

receiving notification of such 

modification . . . it adds to or modifies 

its attachment.’’ While a ‘‘facility’’ may 

include a pole and a ‘‘modification’’ 

includes replacing a pole, adding to or 

modifying an attachment is not the same 

thing as installing a new, upgraded pole. 

15. In the Local Competition Order, 

the Commission stated that an attacher 

is responsible for the entire cost of a 

new pole needed to create new capacity 

for its attachment ‘‘unless [other parties 

with attachments] expanded their own 

use of the facilities at the same time.’’ 

In the latter event, the other parties that 

expanded their own use of the facilities 

would need to share in the cost of the 

new pole. This language is broader than 

the text of Section 1.1408(b) of the 

Commission’s rules. Whereas the rule 

text speaks to pole replacements that are 

‘‘necessitated solely as a result of’’ the 

new attachment, the language in the 

Local Competition Order addresses 

situations where the pole replacement is 

an ‘‘opportunity’’ for the utility and 

other attachers to ‘‘expand their own 

use’’ of the new pole. 

16. We seek comment on how to 

reconcile these cost attribution 

standards in the Commission’s rules and 

precedent in the context of a utility 

using a pole replacement that is 

‘‘necessitated solely’’ by a new 

attachment request as an opportunity to 

upgrade the requested pole in a manner 

that is not required by the new 

attachment. Does Section 1.1408(b) of 

our rules limit the cost-sharing 

statements in our precedent? Do the 

statements in our precedent establish a 

cost-sharing standard for a set of facts 

that is not contemplated by the codified 

rule? 

17. Should the Commission address 

this issue by revising Section 1.1408(b) 

to expressly create a presumption that 

utilities directly benefit when they use 

a pole replacement precipitated by a 

new attachment request as an 

opportunity to upgrade the pole or 

expand it for its own use and should, 

therefore, pay a proportional share of 

the pole replacement costs? If so, what 

are the specific circumstances to which 

such a presumption would apply? 

Specifically, we seek comment on when 

an upgrade or expanded use of a pole 

by a utility confers an incidental versus 

direct benefit to a utility. For instance, 

NCTA and other commenters urge us to 

require utilities to share in the costs of 

a pole replacement that results in the 

utility obtaining excess capacity for its 

own use. The Commission has 

previously stated that, while that excess 

capacity may confer benefits on utilities, 

utilities are not under any obligation to 

share the future revenue they may 

receive due to that excess capacity, even 

if they did not share in the costs of the 

modification that created the excess 

capacity. Further, the Commission 

found that excess pole capacity could be 

‘‘particularly cumbersome’’ if it remains 

unused for extended periods. Should 

these statements be understood to mean 

that the Commission has considered 

excess pole capacity to be an incidental 

benefit of a pole replacement rather than 

a direct benefit? Are there grounds for 

the Commission to conclude that excess 

capacity resulting from a pole 

replacement is a direct benefit to 

utilities and they should, therefore, 

share in the replacement costs? Are 

there other benefits that a utility obtains 

when a pole is replaced to accommodate 

a new attachment that the Commission 

should treat as incidental as opposed to 

direct? Or, as utilities claim, is it 

unnecessary to modify our rules to 

address cost allocation when utilities 

use a new attachment request that 

precipitates a pole replacement as an 

opportunity to upgrade the pole or 

expand it for its own use? In addressing 

these questions, we ask that commenters 

be specific with respect to how they are 

defining incidental and direct benefits, 

their economic bases for those 

definitions, and how they apply or do 

not apply to each circumstance 

proposed as a benefit to utilities. 

18. If the Commission were to adopt 

the presumption described above, what 

would be a proportional allocation of 

the costs of a pole replacement that is 

precipitated by a new attacher and then 

used as an opportunity for the utility to 

upgrade or expand its use of the pole? 

What are the incremental costs of 

upgrading the class or grade of the taller 

pole being installed to accommodate the 

new attachment? Should the new 

attacher be responsible for the 

difference in cost between a taller pole 

of a same type as the existing pole and 

the upgraded pole, along with other 

typical make-ready costs of a new 

attachment (e.g., the cost of transferring 

existing attachments to the new pole)? 

If not, what measure should be used? If 

the Commission revisits its position on 

the installation of excess pole capacity, 

should those costs be apportioned in a 

manner similar to when multiple 

attachers use an attachment request to 

upgrade their existing facilities, 

requiring expanded pole capacity, i.e., a 

ratio of the new space on the taller pole 

occupied by the new attacher to the 

total amount of excess capacity on the 

taller pole? 

19. We also seek comment on whether 

adopting a presumption that utilities 

directly benefit from pole replacements 

precipitated by a new attachment when 

the utility uses the pole replacement as 

an opportunity to upgrade or expand its 

use of the pole would have a positive or 

negative effect on pole attachment 

negotiations and, relatedly, the 

deployment of broadband facilities. 

Would it facilitate and expedite 

successful negotiations by eliminating 

areas of dispute? Conversely, would it 

increase the frequency of pole 

attachment denials and delay the 

deployment of broadband networks due 

to utility concerns that they will not be 

fully compensated for the costs caused 

by the attachments? Are there potential 

adverse impacts for utility ratepayers? If 

so, would any of these adverse impacts 

be lessened if the Commission were to 

recognize specific circumstances under 

which the presumption could be 

rebutted? What would those 

circumstances be? What evidentiary 


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showing would utilities need to make to 

substantiate that circumstances exist to 

rebut the presumption? Do these 

considerations vary based on whether 

the pole is located in an ‘‘unserved 

area,’’ and, if so, how should that term 

be defined in this context? 

20. Additionally, we seek comment 

on how the last sentence of Section 

1.1408(b) should be interpreted with 

respect to pole replacements. That 

sentence states, ‘‘If a party makes an 

attachment to the facility after the 

completion of the modification, such 

party shall share proportionately in the 

cost of the modification if such 

modification rendered possible the 

added attachment.’’ What time period is 

reasonable ‘‘after’’ the pole replacement 

occurs for the subsequent attacher to 

share in the costs of the pole 

replacement? Would any subsequent 

attachment to a new pole be considered 

‘‘rendered possible’’ by the pole 

replacement even if it occurred a 

significant time later? 

2. Costs and Benefits of Early Pole 

Retirement 

21. According to NCTA and other 

attachers, ‘‘[p]oles, like other utility 

infrastructure, have a finite life and 

require maintenance and intermittent 

replacement. Replacing an older pole 

with a new one necessarily allows the 

utility to defer the next scheduled 

replacement, including transfer of its 

facilities to the new pole, and reduces 

maintenance costs.’’ In NCTA’s view, 

‘‘where existing utility infrastructure is 

. . . near the end of its useful life, it is 

unjust and unreasonable [under Section 

224(b) of the Act] for pole owners to 

shift the entire cost of a pole 

replacement to a new attacher when the 

pole owner itself derives the 

predominant financial gain, including 

in the form of betterment, from 

replacing and upgrading the pole.’’ 

Attachers argue that utilities should, 

therefore, be required to pay a 

proportional share of pole replacement 

costs whenever a pole is replaced to 

accommodate a new attachment, and 

irrespective of whether they have 

otherwise improved the pole. NCTA 

also argues that shifting the entire cost 

of a pole replacement to a new attacher 

is inconsistent with Section 224(f) of the 

Act because it discriminates against new 

attachers ‘‘seeking to bring broadband to 

an unserved area by imposing unjust 

and unreasonable conditions upon 

access.’’ 

22. Utilities counter that the attachers’ 

position is barred by Section 1.1408(b) 

of the Commission’s rules, which 

mandates that new attachers bear the 

costs of pole replacements necessitated 

solely as a result of their new 

attachments. They also assert that the 

attachers misstate or misunderstand the 

process and economics of scheduling a 

pole for replacement. The record 

indicates that utilities use internal pole 

replacement programs to determine 

when a pole needs to be replaced 

because it is unsafe, unreliable, or unfit. 

These programs involve inspections 

scheduled at periodic intervals during 

which the condition of a pole is 

evaluated. If the pole is deemed to be in 

poor condition or reaching the end of its 

useful life—a status that utilities 

emphasize is distinct from a pole’s 

age—the utility will schedule it for 

replacement. The timing of that 

replacement appears to vary based on 

the provisions of a particular utility’s 

replacement program, but a pole that is 

deteriorating but still safe and 

serviceable may not be scheduled for 

replacement for a period of years after 

the inspection. For example, the 

POWER Coalition explains that its 

members conduct their inspections at 

8–10 year cycles and that if it is 

determined that a pole is not likely to 

remain serviceable until the next cycle 

(i.e., for another 8–10 years), it will be 

replaced in one to two years. Utilities 

argue that when those pole 

replacements are accelerated to create 

capacity for new attachments, they lose 

the value of their capital asset that is 

being retired before it has reached the 

end of its useful life. For these reasons, 

utilities dispute that they obtain a 

benefit when a pole is replaced before 

the end of its useful life. Rather, they 

argue that requiring a new attacher to 

pay the costs of the pole replacement 

ensures that utilities are compensated 

for, among other things, the lost value 

of an asset that would otherwise remain 

in service for years. Some utilities have 

also indicated that state-level oversight 

of their capital budgets and spending 

cycles limits their flexibility to assume 

increased capital expenditures in a 

given year to accommodate 

communications deployments. 

23. We seek additional information 

and documents that will better 

substantiate the economic, legal, and 

practical implications of potentially 

revising our rules governing cost 

sharing. We are particularly interested 

in additional information and analyses 

that expand the economic arguments 

made by utilities and attachers, 

including those addressing their 

respective economic incentives and how 

our rules do or do not effectively align 

them. We recognize that our current cost 

sharing rules have been interpreted to 

shift the financial responsibility of 

utilities for maintaining and replacing 

their capital assets to attachers, and that 

this shift inflates attachers’ pole 

attachment costs. We also recognize that 

the ability of utilities to deny access to 

their poles due to insufficient capacity, 

together with the substantial cost to 

attachers having to deploy underground 

infrastructure in lieu of an attachment, 

potentially confers significant leverage 

to utilities that may disadvantage 

attachers in negotiations to obtain what 

they believe is an equitable allocation of 

pole replacement costs. Utilities counter 

that if they are prevented from fully 

realizing the value of their infrastructure 

assets when a new attachment request 

requires the early retirement of an 

otherwise serviceable pole, there is little 

incentive for them to approve the 

request. 

24. We seek comment on whether 

revising our pole attachment rules to 

require utilities to pay some portion of 

the costs of replacing a pole that is 

necessitated solely to accommodate a 

new attachment would better align the 

economic incentives of the parties, or 

whether it would, as some utilities 

suggest, simply incent utilities to deny 

access to the pole in this circumstance. 

If we were to revise our rules on this 

point, what standards or formula should 

be used to apportion the costs between 

the utility, the new attacher, and any 

other existing attachers? Should we 

adopt NCTA’s suggestion that new 

attachers be responsible for the 

remaining net book value of the pole 

being replaced, measured by the average 

depreciated bare pole investment 

derived using the Commission’s pole 

attachment rate formula? If we were to 

adopt that standard, what, if any, 

additional costs would need to be 

allocated to the new and/or existing 

attachers to ensure that utilities are 

compensated for the costs of 

attachments to their poles? What, if any, 

impact would the standard proposed by 

NCTA have on pole attachment rates, 

costs borne by existing attachers other 

than the utilities, and utility ratepayers? 

The Electric Utilities argue that shifting 

some of the cost of pole replacements to 

utilities ‘‘would actually discriminate 

against existing attachers that have 

already paid the actual cost of makeready necessary to accommodate their 

attachments.’’ According to Electric 

Utilities ‘‘[i]f electric utilities are 

bearing the vast majority of make-ready 

pole replacement costs, then those costs 

will be booked to the appropriate capital 

and O&M accounts (principally FERC 

Accounts 364 and 593), which will, in 

turn, lead to an increase in pole 

attachment rates paid by all attaching 


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entities subject to the FCC’s formulas.’’ 

Is there a different standard of cost 

allocation that would better balance the 

incentives of the parties, be 

administratively simple to apply, and be 

more amenable to utilities? Have states 

that regulate pole attachments adopted 

rules specifying how to allocate the 

upfront cost to replace a pole between 

utilities and attachers that the 

Commission should consider adopting 

or modifying for its own use? 

25. We also seek comment on the 

relationship between the upfront costs 

incurred to replace a pole versus the 

recovery of pole replacement costs 

through recurring pole attachment rates. 

Specifically, would it be more efficient 

and effective to require all costs 

incurred to replace a pole (except where 

a pole replacement is solely necessitated 

by a new attachment) to be recovered 

over time through the allowance for 

depreciation reflected in recurring rates 

calculated pursuant to the 

Commission’s pole attachment rate 

formulas, rather than upfront through 

make-ready fees? Would the utility be 

made whole for early replacement of a 

structurally sound pole through the 

allowance for depreciation expense 

reflected in recurring pole rental rates, 

given the use of accurate depreciation 

rates? Do utilities use group 

depreciation for poles? Do utilities’ pole 

depreciation rates equally reflect the 

probability of late pole replacement, 

relative to average expected useful life, 

and the probability of early 

replacement, whether caused by the 

addition of an attachment or by some 

other reason? Under this approach, 

would the allowance reflected in 

recurring pole attachment rates through 

the application of the rate of return 

component of the carrying charge rate to 

the net cost of a bare pole, as in the 

Commission’s rate formula, fully 

compensate the utility for the cost of 

capital used to finance the remaining 

undepreciated cost of a replacement 

pole? Pole replacement costs (other than 

for pole replacements solely 

necessitated by a new attachment) 

under this approach would be allocated 

in the same way that capital, 

maintenance, and administrative costs 

are allocated under the Commission’s 

recurring pole attachment rate formulas. 

Would this approach reduce barriers to 

entry and at the same time send efficient 

pricing signals for pole investment and 

broadband deployment? Would this 

approach reduce cost allocation and rate 

disputes related to pole replacement? 

Could such an approach be used for 

recovery of all upfront pole replacement 

costs, regardless of the reason for 

replacement? What are the advantages 

and disadvantages of such an approach? 

26. If we were to adopt a standard for 

allocating the costs of a pole 

replacement precipitated by a new 

attachment between utility and 

attachers, should utilities be able to 

contest that the allocation is sufficiently 

compensatory during negotiations with 

attachers and, if necessary, in complaint 

proceedings at the Commission, and 

what showing would be required for 

them to do so? 

27. To help us understand the scale of 

the pole replacement costs at issue, we 

seek data from attachers for a broad 

sample of recent, large broadband 

network buildouts showing the total 

number of poles to which they attached 

and, of those poles, the number for 

which they paid the full cost to replace 

an existing pole. For each project 

identified, we ask that attachers specify 

the total non-recurring costs of the 

project (i.e., costs for the physical 

material of the poles and any and all 

other assets, such as fiber and electronic 

equipment, and labor costs for design, 

engineering, and construction of the 

network) and the total non-recurring 

cost specifically for replacement poles. 

We ask that attachers and utilities 

provide information concerning the 

condition of the poles that were 

replaced and their status within the 

utility’s pole inspection and 

replacement program, including any 

available information concerning the 

term of the pole’s useful life. We also 

request that utilities provide data from 

their year-end 2021 accounts showing: 

(1) Gross pole investment; (2) 

accumulated pole depreciation expense; 

(3) accumulated deferred income taxes 

attributable to poles; (4) net pole 

investment (i.e., gross pole investment 

minus accumulated depreciation 

expense minus accumulated deferred 

income taxes, a result that is equivalent 

to the net cost of a bare pole under the 

Commission’s pole attachment 

formulas); and (5) pole investment 

excluded from gross pole investment (to 

avoid double recovery of the same pole 

costs through the collection of both nonrecurring make-ready and recurring 

rental fees). 

28. We seek comment on whether 

revising our cost sharing rules to 

recognize that utilities directly benefit 

from pole replacements needed to create 

capacity for new attachments and 

should pay a proportional share of those 

costs would have a positive or negative 

impact on the negotiation of pole 

attachment agreements and broadband 

deployment. As the Commission has 

previously recognized, Section 224 of 

the Act does not authorize us to 

mandate that utilities replace poles to 

create capacity for new attachments. We 

ask that commenters supporting or 

recommending specific cost allocation 

methodologies address why their 

favored solution will expedite pole 

attachment approvals without 

increasing denials, benefit consumers by 

connecting more people to broadband, 

and otherwise be in the public interest. 

We also seek comment on whether there 

are constraints on a utility’s ability to 

deny attachment based on lack of 

capacity, such as the nondiscrimination 

requirement in Section 224(f)(2) of the 

Act. For instance, if a utility itself 

provides broadband, would it be 

discriminatory to deny attachment to 

another broadband provider based on 

lack of capacity? 

C. Avoiding and Resolving Disputes 

Between Utilities and Attachers 

29. In addition to the questions above, 

we seek comment on additional 

measures that the Commission could 

adopt that would enable attachers and 

utilities to avoid pole replacement 

disputes and/or quickly resolve them 

when they occur. For instance, ExteNet 

argues that the Commission should 

require utilities to provide potential 

attachers with information concerning 

the condition of, and replacement plans 

for, their poles. Would disputes 

concerning the need for pole 

replacements and associated costs be 

avoided if attachers had access to such 

information when planning their 

deployments? What specific data points 

would utilities need to provide potential 

attachers for such disputes to be 

avoided? What mechanism could 

utilities use to provide such information 

to attachers if required to do so (e.g., an 

internal utility database) and what costs 

would be associated with establishing 

the mechanism(s)? Does the 

Commission have jurisdiction to require 

utilities to provide potential attachers 

with information concerning the status 

of their poles? Are there any other 

revisions or additions that the 

Commission can make to its rules that 

would enable parties to avoid disputes 

concerning pole replacements or 

facilitate the private resolution of those 

disputes? Beyond the topic of pole 

replacements, are there other recurring 

issues with the pole attachment process 

that hinder the ability of broadband 

providers to deploy new facilities? Are 

there other infrastructure-related 

barriers that broadband providers are 

facing in their efforts to quickly deploy 

broadband? What steps should the 

Commission take to address these and 

other problems that may arise, and to 

accelerate their resolution? 


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30. When pole replacement disputes 

cannot be avoided or resolved privately 

by the parties, are there additional 

procedures the Commission should 

adopt to expedite the resolution of pole 

attachment complaints? In November 

2017, the Commission established a 

180-day shot clock for the Enforcement 

Bureau to resolve pole access 

complaints. NCTA argues that the 

Commission should take the additional 

step of announcing policies favoring the 

placement of pole attachment 

complaints arising in unserved areas on 

the Accelerated Docket, which requires 

that proceedings on a complaint be 

concluded within 60 days. We seek 

comment on whether such a step is 

necessary given the 180-day shot clock 

for pole access complaints and the 

discretion already afforded to 

Commission staff to place a complaint 

on the Accelerated Docket if they deem 

it suitable. We seek comment on the 

specific criteria the Commission would 

include in a policy that would guide 

Commission staff on when pole 

attachment complaints should be placed 

on the Accelerated Docket. For example, 

should the Commission’s policy take 

into account the number and 

complexity of the claims, need for 

discovery, need for expert affidavits, 

and ability of the parties to stipulate to 

facts? If the Commission were to adopt 

a policy that favors including pole 

attachment complaints on the 

Accelerated Docket, should it be limited 

to complaints that raise only discrete 

pole access issues and do not require 

the Commission to consider whether a 

rate, term, or condition of attachment is 

unjust or unreasonable? We also seek 

comment on any other procedural 

mechanisms that would expedite the 

resolution of complaints before the 

Commission concerning pole 

replacements. We also seek comment on 

whether there is additional clarity the 

Commission can provide on the scope of 

refunds available under the 

Commission’s existing rules governing 

pole attachment complaints. 

31. The Commission, as part of its 

continuing effort to advance digital 

equity for all, including people of color, 

persons with disabilities, persons who 

live in rural or Tribal areas, and others 

who are or have been historically 

underserved, marginalized, or adversely 

affected by persistent poverty or 

inequality, invites comment on any 

equity-related considerations and 

benefits (if any) that may be associated 

with the proposals and issues discussed 

herein. Specifically, we seek comment 

on how our proposals may promote or 

inhibit advances in diversity, equity, 

inclusion, and accessibility, as well the 

scope of the Commission’s relevant legal 

authority. 

II. Initial Regulatory Flexibility 

Analysis 

32. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), the Commission has prepared 

this Initial Regulatory Flexibility 

Analysis (IRFA) of the possible 

significant economic impact on a 

substantial number of small entities 

from the policies and rule changes 

proposed in this Second Further Notice. 

The Commission requests written public 

comment on this IRFA. Comments must 

be identified as responses to the IRFA 

and must be filed by the deadlines for 

comments on the Second Further 

Notice. The Commission will send a 

copy of the Second Further Notice, 

including this IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration (SBA). In 

addition, the Second Further Notice and 

IRFA (or summaries thereof) will be 

published in the Federal Register. 

A. Need for, and Objectives of, the 

Proposed Rule Changes 

33. The Second Further Notice seeks 

comment on ways to eliminate or 

expedite the resolution of pole 

replacement disputes by establishing 

clear standards for when and how the 

cost causation and cost sharing 

requirements in Section 1.1408(b) of the 

Commission’s rules apply to pole 

replacements. The Second Further 

Notice specifically seeks comment on 

situations in which a pole replacement 

is not ‘‘necessitated solely’’ by a new 

attachment request, whether and to 

what extent utilities directly benefit 

from various types of pole replacements, 

and if the Commission should establish 

standards for when utilities should be 

required to pay a proportional share of 

pole replacement costs. Additionally, 

the Second Further Notice seeks 

comment on whether the Commission 

should adopt an express presumption 

with regard to whether utilities directly 

benefit when they use pole 

replacements precipitated by 

attachment requests to upgrade or 

enhance their poles, as well as whether 

the Commission has previously 

embraced or rejected such a 

presumption. Comments are also sought 

regarding the circumstances in which 

such a presumption would apply, how 

relevant costs would be allocated, and 

whether this presumption would 

positively or negatively impact pole 

attachment negotiations and, relatedly, 

broadband deployment. 

34. The Second Further Notice also 

seeks comment on the costs and benefits 

of early pole retirements. Specifically, 

when retiring a pole early to 

accommodate a new attachment, the 

Second Further Notice seeks comment 

on whether a revision of the 

Commission’s pole attachment rules to 

require utilities to pay a portion of the 

costs of the pole replacement would 

help to align parties’ economic 

incentives. The Second Further Notice 

seeks comment on whether it would be 

more efficient and effective to require 

all costs incurred to replace a 

structurally sound pole for reasons other 

than insufficient capacity to be 

recovered over time through the 

allowance for depreciation reflected in 

recurring rates calculated pursuant to 

the Commission’s pole attachment rate 

formulas, rather than upfront through 

make-ready fees. It also seeks comment 

on whether a revision of the 

Commission’s cost sharing rules to 

recognize that utilities directly benefit 

from pole replacements that create 

capacity for new attachments and 

should thus pay a proportional share of 

the costs would positively or negatively 

affect negotiations of pole attachment 

agreements and broadband deployment. 

The Second Further Notice seeks 

comment on whether the Commission 

should explicitly define certain key 

terms related to pole replacements and 

the rules governing them, including 

‘‘necessitated solely’’ and ‘‘red-tagged.’’ 

Finally, the Second Further Notice seeks 

comment on measures the Commission 

could adopt to avoid disputes 

concerning pole replacements and 

expedite the resolution of complaints 

concerning pole replacements and 

provide more clarity with respect to the 

scope of refunds and payments that may 

be ordered if the Commission 

determines that a pole attachment rate, 

term, or condition is unjust and 

unreasonable. 

B. Legal Basis 

35. The proposed action is authorized 

under Sections 1–4, 201, 202, 214, 224, 

251, and 303(r) of the Communications 

Act of 1934, as amended, 47 U.S.C. 151– 

54, 201, 202, 214, 224, 251, and 303(r). 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Rules Will Apply 

36. The RFA directs agencies to 

provide a description of and, where 

feasible, an estimate of the number of 

small entities that may be affected by 

the rules adopted herein. The RFA 

generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 


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organization,’’ and ‘‘small governmental 

jurisdiction.’’ In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small-business concern’’ 

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) satisfies any 

additional criteria established by the 

SBA. 

37. Small Businesses, Small 

Organizations, Small Governmental 

Jurisdictions. Our actions, over time, 

may affect small entities that are not 

easily categorized at present. We 

therefore describe here, at the outset, 

three broad groups of small entities that 

could be directly affected herein. First, 

while there are industry specific size 

standards for small businesses that are 

used in the regulatory flexibility 

analysis, according to data from the 

Small Business Administration’s (SBA) 

Office of Advocacy, in general a small 

business is an independent business 

having fewer than 500 employees. These 

types of small businesses represent 

99.9% of all businesses in the United 

States, which translates to 32.5 million 

businesses. 

38. Next, the type of small entity 

described as a ‘‘small organization’’ is 

generally ‘‘any not-for-profit enterprise 

which is independently owned and 

operated and is not dominant in its 

field.’’ The Internal Revenue Service 

(IRS) uses a revenue benchmark of 

$50,000 or less to delineate its annual 

electronic filing requirements for small 

exempt organizations. Nationwide, for 

tax year 2020, there were approximately 

447,689 small exempt organizations in 

the U.S. reporting revenues of $50,000 

or less according to the registration and 

tax data for exempt organizations 

available from the IRS. 

39. Finally, the small entity described 

as a ‘‘small governmental jurisdiction’’ 

is defined generally as ‘‘governments of 

cities, counties, towns, townships, 

villages, school districts, or special 

districts, with a population of less than 

fifty thousand.’’ U.S. Census Bureau 

data from the 2017 Census of 

Governments indicate that there were 

90,075 local governmental jurisdictions 

consisting of general purpose 

governments and special purpose 

governments in the United States. Of 

this number there were 36,931 general 

purpose governments (county, 

municipal and town or township) with 

populations of less than 50,000 and 

12,040 special purpose governments— 

independent school districts with 

enrollment populations of less than 

50,000. Accordingly, based on the 2017 

U.S. Census of Governments data, we 

estimate that at least 48,971 entities fall 

into the category of ‘‘small 

governmental jurisdictions.’’ 

40. Wired Broadband internet Access 

Service Providers. (Wired ISPs). 

Providers of wired broadband internet 

access service include various types of 

providers except dial-up internet access 

providers. Wireline service that 

terminates at an end user location or 

mobile device and enables the end user 

to receive information from and/or send 

information to the internet at 

information transfer rates exceeding 200 

kilobits per second (kbps) in at least one 

direction is classified as a broadband 

connection under the Commission’s 

rules. Wired broadband internet services 

fall in the Wired Telecommunications 

Carriers industry. The SBA small 

business size standard for this industry 

classifies firms having 1,500 or fewer 

employees as small. U.S. Census Bureau 

data for 2017 show that there were 3,054 

firms that operated in this industry for 

the entire year. Of this number, 2,964 

firms operated with fewer than 250 

employees. Additionally, according to 

Commission data on internet access 

services as of December 31, 2018, 

nationwide there were approximately 

2,700 providers of connections over 200 

kbps in at least one direction using 

various wireline technologies. The 

Commission does not collect data on the 

number of employees for providers of 

these services, therefore, at this time we 

are not able to estimate the number of 

providers that would qualify as small 

under the SBA’s small business size 

standard. However, in light of the 

general data on fixed technology service 

providers in the Commission’s 2020 

Communications Marketplace Report, 

we believe that the majority of wireline 

internet access service providers can be 

considered small entities. 

41. Internet Service Providers (NonBroadband). Internet access service 

providers using client-supplied 

telecommunications connections (e.g., 

dial-up ISPs) as well as VoIP service 

providers using client-supplied 

telecommunications connections fall in 

the industry classification of All Other 

Telecommunications. The SBA small 

business size standard for this industry 

classifies firms with annual receipts of 

$35 million or less as small. For this 

industry, U.S. Census Bureau data for 

2017 show that there were 1,079 firms 

in this industry that operated for the 

entire year. Of those firms, 1,039 had 

revenue of less than $25 million. 

Consequently, under the SBA size 

standard a majority of firms in this 

industry can be considered small. 

42. Wired Telecommunications 

Carriers. The U.S. Census Bureau 

defines this industry as establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired communications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies. Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services, wired 

(cable) audio and video programming 

distribution, and wired broadband 

internet services. By exception, 

establishments providing satellite 

television distribution services using 

facilities and infrastructure that they 

operate are included in this industry. 

Wired Telecommunications Carriers are 

also referred to as wireline carriers or 

fixed local service providers. 

43. The SBA small business size 

standard for Wired Telecommunications 

Carriers classifies firms having 1,500 or 

fewer employees as small. U.S. Census 

Bureau data for 2017 show that there 

were 3,054 firms that operated in this 

industry for the entire year. Of this 

number, 2,964 firms operated with 

fewer than 250 employees. 

Additionally, based on Commission 

data in the 2021 Universal Service 

Monitoring Report, as of December 31, 

2020, there were 5,183 providers that 

reported they were engaged in the 

provision of fixed local services. Of 

these providers, the Commission 

estimates that 4,737 providers have 

1,500 or fewer employees. 

Consequently, using the SBA’s small 

business size standard, most of these 

providers can be considered small 

entities. 

44. Local Exchange Carriers (LECs). 

Neither the Commission nor the SBA 

has developed a size standard for small 

businesses specifically applicable to 

local exchange services. Providers of 

these services include both incumbent 

and competitive local exchange service 

providers. Wired Telecommunications 

Carriers is the closest industry with an 

SBA small business size standard. 

Wired Telecommunications Carriers are 

also referred to as wireline carriers or 

fixed local service providers. The SBA 

small business size standard for Wired 

Telecommunications Carriers classifies 

firms having 1,500 or fewer employees 

as small. U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

that operated in this industry for the 

entire year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. Additionally, based on 


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Commission data in the 2021 Universal 

Service Monitoring Report, as of 

December 31, 2020, there were 5,183 

providers that reported they were fixed 

local exchange service providers. Of 

these providers, the Commission 

estimates that 4,737 providers have 

1,500 or fewer employees. 

Consequently, using the SBA’s small 

business size standard, most of these 

providers can be considered small 

entities. 

45. Incumbent Local Exchange 

Carriers (Incumbent LECs). Neither the 

Commission nor the SBA have 

developed a small business size 

standard specifically for incumbent 

local exchange carriers. Wired 

Telecommunications Carriers is the 

closest industry with an SBA small 

business size standard. The SBA small 

business size standard for Wired 

Telecommunications Carriers classifies 

firms having 1,500 or fewer employees 

as small. U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

in this industry that operated for the 

entire year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. Additionally, based on 

Commission data in the 2021 Universal 

Service Monitoring Report, as of 

December 31, 2020, there were 1,227 

providers that reported they were 

incumbent local exchange service 

providers. Of these providers, the 

Commission estimates that 929 

providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, the 

Commission estimates that the majority 

of incumbent local exchange carriers 

can be considered small entities. 

46. Competitive Local Exchange 

Carriers (LECs). Neither the Commission 

nor the SBA has developed a size 

standard for small businesses 

specifically applicable to local exchange 

services. Providers of these services 

include several types of competitive 

local exchange service providers. Wired 

Telecommunications Carriers is the 

closest industry with an SBA small 

business size standard. The SBA small 

business size standard for Wired 

Telecommunications Carriers classifies 

firms having 1,500 or fewer employees 

as small. U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

that operated in this industry for the 

entire year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. Additionally, based on 

Commission data in the 2021 Universal 

Service Monitoring Report, as of 

December 31, 2020, there were 3,956 

providers that reported they were 

competitive local exchange service 

providers. Of these providers, the 

Commission estimates that 3,808 

providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, 

most of these providers can be 

considered small entities. 

47. Interexchange Carriers (IXCs). 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for Interexchange 

Carriers. Wired Telecommunications 

Carriers is the closest industry with an 

SBA small business size standard. The 

SBA small business size standard for 

Wired Telecommunications Carriers 

classifies firms having 1,500 or fewer 

employees as small. U.S. Census Bureau 

data for 2017 show that there were 3,054 

firms that operated in this industry for 

the entire year. Of this number, 2,964 

firms operated with fewer than 250 

employees. Additionally, based on 

Commission data in the 2021 Universal 

Service Monitoring Report, as of 

December 31, 2020, there were 151 

providers that reported they were 

engaged in the provision of 

interexchange services. Of these 

providers, the Commission estimates 

that 131 providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, the 

Commission estimates that the majority 

of providers in this industry can be 

considered small entities. 

48. Operator Service Providers (OSPs). 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for operator 

service providers. The closest applicable 

industry with an SBA small business 

size standard is Wired 

Telecommunications Carriers. The SBA 

small business size standard classifies a 

business as small if it has 1,500 or fewer 

employees. U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

in this industry that operated for the 

entire year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. Additionally, based on 

Commission data in the 2021 Universal 

Service Monitoring Report, as of 

December 31, 2020, there were 32 

providers that reported they were 

engaged in the provision of operator 

services. Of these providers, the 

Commission estimates that all 32 

providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, all 

of these providers can be considered 

small entities. 

49. Other Toll Carriers. Neither the 

Commission nor the SBA has developed 

a definition for small businesses 

specifically applicable to Other Toll 

Carriers. This category includes toll 

carriers that do not fall within the 

categories of interexchange carriers, 

operator service providers, prepaid 

calling card providers, satellite service 

carriers, or toll resellers. Wired 

Telecommunications Carriers is the 

closest industry with an SBA small 

business size standard. The SBA small 

business size standard for Wired 

Telecommunications Carriers classifies 

firms having 1,500 or fewer employees 

as small. U.S. Census Bureau data for 

2017 show that there were 3,054 firms 

in this industry that operated for the 

entire year. Of this number, 2,964 firms 

operated with fewer than 250 

employees. Additionally, based on 

Commission data in the 2021 Universal 

Service Monitoring Report, as of 

December 31, 2020, there were 115 

providers that reported they were 

engaged in the provision of other toll 

services. Of these providers, the 

Commission estimates that 113 

providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, 

most of these providers can be 

considered small entities. 

50. The broadband internet access 

service provider category covered by 

these new rules may cover multiple 

wireless firms and categories of 

regulated wireless services. Thus, to the 

extent the wireless services listed below 

are used by wireless firms for broadband 

internet access service, the actions may 

have an impact on those small 

businesses as set forth above and further 

below. In addition, for those services 

subject to auctions, we note that, as a 

general matter, the number of winning 

bidders that claim to qualify as small 

businesses at the close of an auction 

does not necessarily represent the 

number of small businesses currently in 

service. Also, the Commission does not 

generally track subsequent business size 

unless, in the context of assignments 

and transfers or reportable eligibility 

events, unjust enrichment issues are 

implicated. 

51. Wireless Telecommunications 

Carriers (except Satellite). This industry 

comprises establishments engaged in 

operating and maintaining switching 

and transmission facilities to provide 

communications via the airwaves. 

Establishments in this industry have 

spectrum licenses and provide services 

using that spectrum, such as cellular 

services, paging services, wireless 

internet access, and wireless video 

services. The SBA size standard for this 

industry classifies a business as small if 

it has 1,500 or fewer employees. U.S. 

Census Bureau data for 2017 show that 

there were 2,893 firms in this industry 

that operated for the entire year. Of that 

number, 2,837 firms employed fewer 


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than 250 employees. Additionally, 

based on Commission data in the 2021 

Universal Service Monitoring Report, as 

of December 31, 2020, there were 797 

providers that reported they were 

engaged in the provision of wireless 

services. Of these providers, the 

Commission estimates that 715 

providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, 

most of these providers can be 

considered small entities. 

52. Wireless Communications 

Services. Wireless Communications 

Services (WCS) can be used for a variety 

of fixed, mobile, radiolocation, and 

digital audio broadcasting satellite 

services. Wireless spectrum is made 

available and licensed for the provision 

of wireless communications services in 

several frequency bands subject to Part 

27 of the Commission’s rules. Wireless 

Telecommunications Carriers (except 

Satellite) is the closest industry with an 

SBA small business size standard 

applicable to these services. The SBA 

small business size standard for this 

industry classifies a business as small if 

it has 1,500 or fewer employees. U.S. 

Census Bureau data for 2017 show that 

there were 2,893 firms that operated in 

this industry for the entire year. Of this 

number, 2,837 firms employed fewer 

than 250 employees. Thus under the 

SBA size standard, the Commission 

estimates that a majority of licensees in 

this industry can be considered small. 

53. The Commission’s small business 

size standards with respect to WCS 

involve eligibility for bidding credits 

and installment payments in the auction 

of licenses for the various frequency 

bands included in WCS. When bidding 

credits are adopted for the auction of 

licenses in WCS frequency bands, such 

credits may be available to several types 

of small businesses based average gross 

revenues (small, very small and 

entrepreneur) pursuant to the 

competitive bidding rules adopted in 

conjunction with the requirements for 

the auction and/or as identified in the 

designated entities section in Part 27 of 

the Commission’s rules for the specific 

WCS frequency bands. 

54. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

55. 1670–1675 MHz Services. These 

wireless communications services can 

be used for fixed and mobile uses, 

except aeronautical mobile. Wireless 

Telecommunications Carriers (except 

Satellite) is the closest industry with an 

SBA small business size standard 

applicable to these services. The SBA 

size standard for this industry classifies 

a business as small if it has 1,500 or 

fewer employees. U.S. Census Bureau 

data for 2017 show that there were 2,893 

firms that operated in this industry for 

the entire year. Of this number, 2,837 

firms employed fewer than 250 

employees. Thus under the SBA size 

standard, the Commission estimates that 

a majority of licensees in this industry 

can be considered small. 

56. According to Commission data as 

of November 2021, there were three 

active licenses in this service. The 

Commission’s small business size 

standards with respect to 1670–1675 

MHz Services involve eligibility for 

bidding credits and installment 

payments in the auction of licenses for 

these services. For licenses in the 1670– 

1675 MHz service band, a ‘‘small 

business’’ is defined as an entity that, 

together with its affiliates and 

controlling interests, has average gross 

revenues not exceeding $40 million for 

the preceding three years, and a ‘‘very 

small business’’ is defined as an entity 

that, together with its affiliates and 

controlling interests, has had average 

annual gross revenues not exceeding 

$15 million for the preceding three 

years. The 1670–1675 MHz service band 

auction’s winning bidder did not claim 

small business status. 

57. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

58. Wireless Telephony. Wireless 

telephony includes cellular, personal 

communications services, and 

specialized mobile radio telephony 

carriers. The closest applicable industry 

with an SBA small business size 

standard is Wireless 

Telecommunications Carriers (except 

Satellite). The size standard for this 

industry under SBA rules is that a 

business is small if it has 1,500 or fewer 

employees. For this industry, U.S. 

Census Bureau data for 2017 show that 

there were 2,893 firms that operated for 

the entire year. Of this number, 2,837 

firms employed fewer than 250 

employees. Additionally, based on 

Commission data in the 2021 Universal 

Service Monitoring Report, as of 

December 31, 2020, there were 407 

providers that reported they were 

engaged in the provision of cellular, 

personal communications services, and 

specialized mobile radio services. Of 

these providers, the Commission 

estimates that 333 providers have 1,500 

or fewer employees. Consequently, 

using the SBA’s small business size 

standard, most of these providers can be 

considered small entities. 

59. Broadband Personal 

Communications Service. The 

broadband personal communications 

services (PCS) spectrum encompasses 

services in the 1850–1910 and 1930– 

1990 MHz bands. The closest industry 

with an SBA small business size 

standard applicable to these services is 

Wireless Telecommunications Carriers 

(except Satellite). The SBA small 

business size standard for this industry 

classifies a business as small if it has 

1,500 or fewer employees. U.S. Census 

Bureau data for 2017 show that there 

were 2,893 firms that operated in this 

industry for the entire year. Of this 

number, 2,837 firms employed fewer 

than 250 employees. Thus under the 

SBA size standard, the Commission 

estimates that a majority of licensees in 

this industry can be considered small. 

60. Based on Commission data as of 

November 2021, there were 

approximately 5,060 active licenses in 

the Broadband PCS service. The 

Commission’s small business size 

standards with respect to Broadband 

PCS involve eligibility for bidding 

credits and installment payments in the 

auction of licenses for these services. In 

auctions for these licenses, the 

Commission defined ‘‘small business’’ 

as an entity that, together with its 

affiliates and controlling interests, has 

average gross revenues not exceeding 

$40 million for the preceding three 

years, and a ‘‘very small business’’ as an 

entity that, together with its affiliates 

and controlling interests, has had 


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average annual gross revenues not 

exceeding $15 million for the preceding 

three years. Winning bidders claiming 

small business credits won Broadband 

PCS licenses in C, D, E, and F Blocks. 

61. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these, 

at this time we are not able to estimate 

the number of licensees with active 

licenses that would qualify as small 

under the SBA’s small business size 

standard. 

62. Broadband Personal 

Communications Service. The 

broadband personal communications 

services (PCS) spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission initially defined a ‘‘small 

business’’ for C- and F-Block licenses as 

an entity that has average gross revenues 

of $40 million or less in the three 

previous calendar years. For F-Block 

licenses, an additional small business 

size standard for ‘‘very small business’’ 

was added and is defined as an entity 

that, together with its affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years. These standards, 

defining ‘‘small entity’’ in the context of 

broadband PCS auctions, have been 

approved by the SBA. No small 

businesses within the SBA-approved 

small business size standards bid 

successfully for licenses in Blocks A 

and B. There were 90 winning bidders 

that claimed small business status in the 

first two C-Block auctions. A total of 93 

bidders that claimed small business 

status won approximately 40% of the 

1,479 licenses in the first auction for the 

D, E, and F Blocks. On April 15, 1999, 

the Commission completed the 

reauction of 347 C-, D-, E-, and F-Block 

licenses in Auction No. 22. Of the 57 

winning bidders in that auction, 48 

claimed small business status and won 

277 licenses. 

63. Specialized Mobile Radio 

Licenses. Special Mobile Radio (SMR) 

licenses allow licensees to provide land 

mobile communications services (other 

than radiolocation services) in the 800 

MHz and 900 MHz spectrum bands on 

a commercial basis including but not 

limited to services used for voice and 

data communications, paging, and 

facsimile services, to individuals, 

Federal Government entities, and other 

entities licensed under Part 90 of the 

Commission’s rules. Wireless 

Telecommunications Carriers (except 

Satellite) is the closest industry with an 

SBA small business size standard 

applicable to these services. The SBA 

size standard for this industry classifies 

a business as small if it has 1,500 or 

fewer employees. For this industry, U.S. 

Census Bureau data for 2017 show that 

there were 2,893 firms in this industry 

that operated for the entire year. Of this 

number, 2,837 firms employed fewer 

than 250 employees. Additionally, 

based on Commission data in the 2021 

Universal Service Monitoring Report, as 

of December 31, 2020, there were 119 

providers that reported they were of 

SMR (dispatch) providers. Of this 

number, the Commission estimates that 

all 119 providers have 1,500 or fewer 

employees. Consequently, using the 

SBA’s small business size standard, 

these 119 SMR licensees can be 

considered small entities. 

64. Based on Commission data as of 

December 2021, there were 3,924 active 

SMR licenses. However, since the 

Commission does not collect data on the 

number of employees for licensees 

providing SMR services, at this time we 

are not able to estimate the number of 

licensees with active licenses that 

would qualify as small under the SBA’s 

small business size standard. 

Nevertheless, for purposes of this 

analysis the Commission estimates that 

the majority of SMR licensees can be 

considered small entities using the 

SBA’s small business size standard. 

65. Lower 700 MHz Band Licenses. 

The lower 700 MHz band encompasses 

spectrum in the 698–746 MHz 

frequency bands. Permissible operations 

in these bands include flexible fixed, 

mobile, and broadcast uses, including 

mobile and other digital new broadcast 

operation; fixed and mobile wireless 

commercial services (including FDDand TDD-based services); as well as 

fixed and mobile wireless uses for 

private, internal radio needs, two-way 

interactive, cellular, and mobile 

television broadcasting services. 

Wireless Telecommunications Carriers 

(except Satellite) is the closest industry 

with an SBA small business size 

standard applicable to licenses 

providing services in these bands. The 

SBA small business size standard for 

this industry classifies a business as 

small if it has 1,500 or fewer employees. 

U.S. Census Bureau data for 2017 show 

that there were 2,893 firms that operated 

in this industry for the entire year. Of 

this number, 2,837 firms employed 

fewer than 250 employees. Thus under 

the SBA size standard, the Commission 

estimates that a majority of licensees in 

this industry can be considered small. 

66. According to Commission data as 

of December 2021, there were 

approximately 2,824 active Lower 700 

MHz Band licenses. The Commission’s 

small business size standards with 

respect to Lower 700 MHz Band 

licensees involve eligibility for bidding 

credits and installment payments in the 

auction of licenses. For auctions of 

Lower 700 MHz Band licenses the 

Commission adopted criteria for three 

groups of small businesses. A very small 

business was defined as an entity that, 

together with its affiliates and 

controlling interests, has average annual 

gross revenues not exceeding $15 

million for the preceding three years, a 

small business was defined as an entity 

that, together with its affiliates and 

controlling interests, has average gross 

revenues not exceeding $40 million for 

the preceding three years, and an 

entrepreneur was defined as an entity 

that, together with its affiliates and 

controlling interests, has average gross 

revenues not exceeding $3 million for 

the preceding three years. In auctions 

for Lower 700 MHz Band licenses 

seventy-two winning bidders claiming a 

small business classification won 329 

licenses, twenty-six winning bidders 

claiming a small business classification 

won 214 licenses, and three winning 

bidders claiming a small business 

classification won all five auctioned 

licenses. 

67. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

68. Upper 700 MHz Band Licenses. 

The upper 700 MHz band encompasses 

spectrum in the 746–806 MHz bands. 

Upper 700 MHz D Block licenses are 

nationwide licenses associated with the 

758–763 MHz and 788–793 MHz bands. 

Permissible operations in these bands 


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include flexible fixed, mobile, and 

broadcast uses, including mobile and 

other digital new broadcast operation; 

fixed and mobile wireless commercial 

services (including FDD- and TDDbased services); as well as fixed and 

mobile wireless uses for private, 

internal radio needs, two-way 

interactive, cellular, and mobile 

television broadcasting services. 

Wireless Telecommunications Carriers 

(except Satellite) is the closest industry 

with an SBA small business size 

standard applicable to licenses 

providing services in these bands. The 

SBA small business size standard for 

this industry classifies a business as 

small if it has 1,500 or fewer employees. 

U.S. Census Bureau data for 2017 show 

that there were 2,893 firms that operated 

in this industry for the entire year. Of 

that number, 2,837 firms employed 

fewer than 250 employees. Thus, under 

the SBA size standard, the Commission 

estimates that a majority of licensees in 

this industry can be considered small. 

69. According to Commission data as 

of December 2021, there were 

approximately 152 active Upper 700 

MHz Band licenses. The Commission’s 

small business size standards with 

respect to Upper 700 MHz Band 

licensees involve eligibility for bidding 

credits and installment payments in the 

auction of licenses. For the auction of 

these licenses, the Commission defined 

a ‘‘small business’’ as an entity that, 

together with its affiliates and 

controlling principals, has average gross 

revenues not exceeding $40 million for 

the preceding three years, and a ‘‘very 

small business’’ an entity that, together 

with its affiliates and controlling 

principals, has average gross revenues 

that are not more than $15 million for 

the preceding three years. Pursuant to 

these definitions, three winning bidders 

claiming very small business status won 

five of the twelve available licenses. 

70. Air-Ground Radiotelephone 

Service. Air-Ground Radiotelephone 

Service is a wireless service in which 

licensees are authorized to offer and 

provide radio telecommunications 

service for hire to subscribers in aircraft. 

A licensee may provide any type of airground service (i.e., voice telephony, 

broadband internet, data, etc.) to aircraft 

of any type, and serve any or all aviation 

markets (commercial, government, and 

general). A licensee must provide 

service to aircraft and may not provide 

ancillary land mobile or fixed services 

in the 800 MHz air-ground spectrum. 

71. The closest industry with an SBA 

small business size standard applicable 

to these services is Wireless 

Telecommunications Carriers (except 

Satellite). The SBA small business size 

standard for this industry classifies a 

business as small if it has 1,500 or fewer 

employees. U.S. Census Bureau data for 

2017 show that there were 2,893 firms 

that operated in this industry for the 

entire year. Of this number, 2,837 firms 

employed fewer than 250 employees. 

Thus under the SBA size standard, the 

Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

72. Based on Commission data as of 

December 2021, there were 

approximately four licensees with 110 

active licenses in the Air-Ground 

Radiotelephone Service. The 

Commission’s small business size 

standards with respect to Air-Ground 

Radiotelephone Service involve 

eligibility for bidding credits and 

installment payments in the auction of 

licenses. For purposes of auctions, the 

Commission defined ‘‘small business’’ 

as an entity that, together with its 

affiliates and controlling interests, has 

average gross revenues not exceeding 

$40 million for the preceding three 

years, and a ‘‘very small business’’ as an 

entity that, together with its affiliates 

and controlling interests, has had 

average annual gross revenues not 

exceeding $15 million for the preceding 

three years. In the auction of AirGround Radiotelephone Service licenses 

in the 800 MHz band, neither of the two 

winning bidders claimed small business 

status. 

73. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, the Commission does not 

collect data on the number of employees 

for licensees providing these services 

therefore, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

74. 3650–3700 MHz band. Wireless 

broadband service licensing in the 

3650–3700 MHz band provides for 

nationwide, non-exclusive licensing of 

terrestrial operations, utilizing 

contention-based technologies, in the 

3650 MHz band (i.e., 3650–3700 MHz). 

Licensees are permitted to provide 

services on a non-common carrier and/ 

or on a common carrier basis. Wireless 

broadband services in the 3650–3700 

MHz band fall in the Wireless 

Telecommunications Carriers (except 

Satellite) industry with an SBA small 

business size standard that classifies a 

business as small if it has 1,500 or fewer 

employees. U.S. Census Bureau data for 

2017 show that there were 2,893 firms 

that operated in this industry for the 

entire year. Of this number, 2,837 firms 

employed fewer than 250 employees. 

Thus under the SBA size standard, the 

Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

75. The Commission has not 

developed a small business size 

standard applicable to 3650–3700 MHz 

band licensees. Based on the licenses 

that have been granted, however, we 

estimate that the majority of licensees in 

this service are small internet Access 

Service Providers (ISPs). As of 

November 2021, Commission data 

shows that there were 902 active 

licenses in the 3650–3700 MHz band. 

However, since the Commission does 

not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

76. Fixed Microwave Services. Fixed 

microwave services include common 

carrier, private-operational fixed, and 

broadcast auxiliary radio services. They 

also include the Upper Microwave 

Flexible Use Service (UMFUS), 

Millimeter Wave Service (70/80/90 

GHz), Local Multipoint Distribution 

Service (LMDS), the Digital Electronic 

Message Service (DEMS), 24 GHz 

Service, Multiple Address Systems 

(MAS), and Multichannel Video 

Distribution and Data Service (MVDDS), 

where in some bands licensees can 

choose between common carrier and 

non-common carrier status. Wireless 

Telecommunications Carriers (except 

Satellite) is the closest industry with an 

SBA small business size standard 

applicable to these services. The SBA 

small size standard for this industry 

classifies a business as small if it has 

1,500 or fewer employees. U.S. Census 

Bureau data for 2017 show that there 

were 2,893 firms that operated in this 

industry for the entire year. Of this 

number, 2,837 firms employed fewer 

than 250 employees. Thus under the 

SBA size standard, the Commission 

estimates that a majority of fixed 

microwave service licensees can be 

considered small. 

77. The Commission’s small business 

size standards with respect to fixed 

microwave services involve eligibility 

for bidding credits and installment 

payments in the auction of licenses for 


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the various frequency bands included in 

fixed microwave services. When 

bidding credits are adopted for the 

auction of licenses in fixed microwave 

services frequency bands, such credits 

may be available to several types of 

small businesses based average gross 

revenues (small, very small and 

entrepreneur) pursuant to the 

competitive bidding rules adopted in 

conjunction with the requirements for 

the auction and/or as identified in Part 

101 of the Commission’s rules for the 

specific fixed microwave services 

frequency bands. 

78. In frequency bands where licenses 

were subject to auction, the Commission 

notes that as a general matter, the 

number of winning bidders that qualify 

as small businesses at the close of an 

auction does not necessarily represent 

the number of small businesses 

currently in service. Further, the 

Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

79. Broadband Radio Service and 

Educational Broadband Service. 

Broadband Radio Service systems, 

previously referred to as Multipoint 

Distribution Service (MDS) and 

Multichannel Multipoint Distribution 

Service (MMDS) systems, and ‘‘wireless 

cable,’’ transmit video programming to 

subscribers and provide two-way high 

speed data operations using the 

microwave frequencies of the 

Broadband Radio Service (BRS) and 

Educational Broadband Service (EBS) 

(previously referred to as the 

Instructional Television Fixed Service 

(ITFS)). Wireless cable operators that 

use spectrum in the BRS often 

supplemented with leased channels 

from the EBS, provide a competitive 

alternative to wired cable and other 

multichannel video programming 

distributors. Wireless cable 

programming to subscribers resembles 

cable television, but instead of coaxial 

cable, wireless cable uses microwave 

channels. 

80. In light of the use of wireless 

frequencies by BRS and EBS services, 

the closest industry with an SBA small 

business size standard applicable to 

these services is Wireless 

Telecommunications Carriers (except 

Satellite). The SBA small business size 

standard for this industry classifies a 

business as small if it has 1,500 or fewer 

employees. U.S. Census Bureau data for 

2017 show that there were 2,893 firms 

that operated in this industry for the 

entire year. Of this number, 2,837 firms 

employed fewer than 250 employees. 

Thus under the SBA size standard, the 

Commission estimates that a majority of 

licensees in this industry can be 

considered small. 

81. According to Commission data as 

December 2021, there were 

approximately 5,869 active BRS and 

EBS licenses. The Commission’s small 

business size standards with respect to 

BRS involves eligibility for bidding 

credits and installment payments in the 

auction of licenses for these services. 

For the auction of BRS licenses, the 

Commission adopted criteria for three 

groups of small businesses. A very small 

business is an entity that, together with 

its affiliates and controlling interests, 

has average annual gross revenues 

exceed $3 million and did not exceed 

$15 million for the preceding three 

years, a small business is an entity that, 

together with its affiliates and 

controlling interests, has average gross 

revenues exceed $15 million and did 

not exceed $40 million for the preceding 

three years, and an entrepreneur is an 

entity that, together with its affiliates 

and controlling interests, has average 

gross revenues not exceeding $3 million 

for the preceding three years. Of the ten 

winning bidders for BRS licenses, two 

bidders claiming the small business 

status won 4 licenses, one bidder 

claiming the very small business status 

won three licenses and two bidders 

claiming entrepreneur status won six 

licenses. One of the winning bidders 

claiming a small business status 

classification in the BRS license auction 

has an active licenses as of December 

2021. 

82. The Commission’s small business 

size standards for EBS define a small 

business as an entity that, together with 

its affiliates, its controlling interests and 

the affiliates of its controlling interests, 

has average gross revenues that are not 

more than $55 million for the preceding 

five (5) years, and a very small business 

is an entity that, together with its 

affiliates, its controlling interests and 

the affiliates of its controlling interests, 

has average gross revenues that are not 

more than $20 million for the preceding 

five (5) years. In frequency bands where 

licenses were subject to auction, the 

Commission notes that as a general 

matter, the number of winning bidders 

that qualify as small businesses at the 

close of an auction does not necessarily 

represent the number of small 

businesses currently in service. Further, 

the Commission does not generally track 

subsequent business size unless, in the 

context of assignments or transfers, 

unjust enrichment issues are implicated. 

Additionally, since the Commission 

does not collect data on the number of 

employees for licensees providing these 

services, at this time we are not able to 

estimate the number of licensees with 

active licenses that would qualify as 

small under the SBA’s small business 

size standard. 

83. Satellite Telecommunications. 

This industry comprises firms 

‘‘primarily engaged in providing 

telecommunications services to other 

establishments in the 

telecommunications and broadcasting 

industries by forwarding and receiving 

communications signals via a system of 

satellites or reselling satellite 

telecommunications.’’ Satellite 

telecommunications service providers 

include satellite and earth station 

operators. The SBA small business size 

standard for this industry classifies a 

business with $35 million or less in 

annual receipts as small. U.S. Census 

Bureau data for 2017 show that 275 

firms in this industry operated for the 

entire year. Of this number, 242 firms 

had revenue of less than $25 million. 

Additionally, based on Commission 

data in the 2021 Universal Service 

Monitoring Report, as of December 31, 

2020, there were 71 providers that 

reported they were engaged in the 

provision of satellite 

telecommunications services. Of these 

providers, the Commission estimates 

that approximately 48 providers have 

1,500 or fewer employees. Consequently 

using the SBA’s small business size 

standard, a little more than of these 

providers can be considered small 

entities. 

84. All Other Telecommunications. 

This industry is comprised of 

establishments primarily engaged in 

providing specialized 

telecommunications services, such as 

satellite tracking, communications 

telemetry, and radar station operation. 

This industry also includes 

establishments primarily engaged in 

providing satellite terminal stations and 

associated facilities connected with one 

or more terrestrial systems and capable 

of transmitting telecommunications to, 

and receiving telecommunications from, 

satellite systems. Providers of internet 

services (e.g. dial-up ISPs) or voice over 

internet protocol (VoIP) services, via 

client-supplied telecommunications 

connections are also included in this 

industry. The SBA small business size 

standard for this industry classifies 

firms with annual receipts of $35 

million or less as small. U.S. Census 

Bureau data for 2017 show that there 


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were 1,079 firms in this industry that 

operated for the entire year. Of those 

firms, 1,039 had revenue of less than 

$25 million. Based on this data, the 

Commission estimates that the majority 

of ‘‘All Other Telecommunications’’ 

firms can be considered small. 

85. Because Section 706 of the Act 

requires us to monitor the deployment 

of broadband using any technology, we 

anticipate that some broadband service 

providers may not provide telephone 

service. Accordingly, we describe below 

other types of firms that may provide 

broadband services, including cable 

companies, MDS providers, and 

utilities, among others. 

86. Cable and Other Subscription 

Programming. The U.S. Census Bureau 

defines this industry as establishments 

primarily engaged in operating studios 

and facilities for the broadcasting of 

programs on a subscription or fee basis. 

The broadcast programming is typically 

narrowcast in nature (e.g., limited 

format, such as news, sports, education, 

or youth-oriented). These 

establishments produce programming in 

their own facilities or acquire 

programming from external sources. The 

programming material is usually 

delivered to a third party, such as cable 

systems or direct-to-home satellite 

systems, for transmission to viewers. 

The SBA small business size standard 

for this industry classifies firms with 

annual receipts less than $41.5 million 

as small. Based on U.S. Census Bureau 

data for 2017, 378 firms operated in this 

industry during that year. Of that 

number, 149 firms operated with 

revenue of less than $25 million a year 

and 44 firms operated with revenue of 

$25 million or more. Based on this data, 

the Commission estimates that a 

majority of firms in this industry are 

small. 

87. Cable Companies and Systems 

(Rate Regulation). The Commission has 

developed its own small business size 

standard for the purpose of cable rate 

regulation. Under the Commission’s 

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

serving 400,000 or fewer subscribers 

nationwide. Based on available data, as 

of December 2020, there were 

approximately 45,308,192 basic cable 

video subscribers in the top Cable MSOs 

in the United States. Only five cable 

operators serving cable video 

subscribers in the top Cable MSOs had 

more than 400,000 subscribers. 

Accordingly, the Commission estimates 

that the majority of cable operators are 

small. 

88. Cable System Operators (Telecom 

Act Standard). The Communications 

Act of 1934, as amended, contains a size 

standard for small cable system 

operators, which classifies ‘‘a cable 

operator that, directly or through an 

affiliate, serves in the aggregate fewer 

than one percent 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,’’ as small. As of 

December 2020, there were 

approximately 45,308,192 basic cable 

video subscribers in the top Cable MSOs 

in the United States. Accordingly, an 

operator serving fewer than 453,082 

subscribers shall be deemed a small 

operator if its annual revenues, when 

combined with the total annual 

revenues of all its affiliates, do not 

exceed $250 million in the aggregate. 

Based on available data, all but five of 

the cable operators in the Top Cable 

MSOs have less than 453,082 

subscribers and can be considered small 

entities under this size standard. We 

note however, that the Commission 

neither requests nor collects information 

on whether cable system operators are 

affiliated with entities whose gross 

annual revenues exceed $250 million. 

Therefore, 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. 

89. Electric Power Generators, 

Transmitters, and Distributors. The U.S. 

Census Bureau defines the utilities 

sector industry as comprised of 

‘‘establishments, primarily engaged in 

generating, transmitting, and/or 

distributing electric power. 

Establishments in this industry group 

may perform one or more of the 

following activities: (1) Operate 

generation facilities that produce 

electric energy; (2) operate transmission 

systems that convey the electricity from 

the generation facility to the distribution 

system; and (3) operate distribution 

systems that convey electric power 

received from the generation facility or 

the transmission system to the final 

consumer.’’ This industry group is 

categorized based on fuel source and 

includes Hydroelectric Power 

Generation, Fossil Fuel Electric Power 

Generation, Nuclear Electric Power 

Generation, Solar Electric Power 

Generation, Wind Electric Power 

Generation, Geothermal Electric Power 

Generation, Biomass Electric Power 

Generation, Other Electric Power 

Generation, Electric Bulk Power 

Transmission and Control and Electric 

Power Distribution. 

90. The SBA has established a small 

business size standard for each of these 

groups based on the number of 

employees which ranges from having 

fewer than 250 employees to having 

fewer than 1,000 employees. U.S. 

Census Bureau data for 2017 indicate 

that for the Electric Power Generation, 

Transmission and Distribution industry 

there were 1,693 firms that operated in 

this industry for the entire year. Of this 

number, 1,552 firms had less than 250 

employees. Based on this data and the 

associated SBA size standards, the 

majority of firms in this industry can be 

considered small entities. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

91. The Second Further Notice seeks 

comment on ways to effectively resolve 

pole replacement disputes through the 

establishment of standards for when and 

how utilities and attachers must share 

in the costs of a pole replacement 

necessitated by an attachment request. 

The Second Further Notice does not 

definitively propose any changes to the 

Commission’s current pole attachment 

rules, but does request that commenters 

address the legal implications of any 

rule revisions they propose, which may 

include reporting, recordkeeping, and 

other compliance requirements. For 

example, the Second Further Notice 

seeks comment on whether the 

Commission has jurisdiction to require 

utilities to share information concerning 

the status of utility poles with attachers 

and, if so, the mechanism through 

which such information would be 

provided. 

92. The Second Further Notice seeks 

comment on what situations exist in 

which a pole replacement is not 

‘‘necessitated solely’’ by a new 

attachment request and whether 

codifying a definition of this phrase 

would be helpful for parties seeking to 

comply with Section 1.1408(b) of the 

Commission’s rules. With respect to 

utility benefits, the Second Further 

Notice seeks comment on how to 

identify and quantify the costs 

associated with a pole replacement that 

are proportional to the direct benefit 

obtained by a utility from a replacement 

not necessitated solely by a new 

attachment request. The Second Further 

Notice also seeks comment on whether 

the Commission should revise its pole 

attachment rules to recognize that 

utilities directly benefit from pole 

replacements caused by new attachment 

requests and establish clear standards 

for when utilities should be required to 

pay a proportional share of pole 

replacement costs. Further, the Second 

Further Notice seeks comment on 

whether the Commission should adopt 

an express presumption that utilities 

directly benefit when they use pole 


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replacements precipitated by an 

attachment request to upgrade or 

enhance their poles. The Commission 

then asks how costs should be allocated 

between utilities and attachers if such a 

presumption is adopted and whether 

the Commission should revise its cost 

sharing rules to require utilities to pay 

a portion of the costs of replacing a pole 

to create capacity for new attachments. 

The Commission also seeks comment on 

the scope of utility liability for pole 

attachment rate refunds when rates are 

found to be unjust and unreasonable. 

Should commenters provide compelling 

arguments, some or all of these 

proposals could be adopted. The 

guidance and clarity offered by these 

proposals would lessen the compliance 

impact on small utilities and attaching 

entities with regard to pole 

replacements and pole attachment rate 

refunds. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

93. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities. 

94. The Second Further Notice does 

not propose specific changes to the 

Commission’s pole attachment rules, 

but seeks comment on whether the 

Commission should revise its rules to 

eliminate and expedite the resolution of 

pole replacement disputes between 

utilities and attachers and provide 

clarity with respect to the pole 

attachment rate refund liability for 

utilities. The Commission’s objective in 

requesting this information is to 

determine whether it can and should 

establish clear standards for when and 

how attachers and utilities must share 

the costs of a pole replacement 

precipitated by a new attachment 

request. In considering the cost 

allocations, the Commission seeks 

comment on alternatives that might help 

smaller utilities and attaching entities. 

For example, it asks that when a pole 

needs to be replaced both to 

accommodate a new attachment and to 

correct a preexisting violation, whether 

the new attacher should be responsible 

for the difference in cost between the 

taller pole needed for its attachment and 

what it would cost to replace the 

existing pole with one of the same type 

and size. The Second Further Notice 

also seeks comment on what other 

methods of apportioning costs are 

available in this situation in an attempt 

to properly balance this burden on 

different types of entities. Additionally, 

the Second Further Notice seeks 

comment on the Commission 

recognizing an express presumption 

regarding whether utilities directly 

benefit when they use pole 

replacements precipitated by an 

attachment request to upgrade or 

enhance their poles. The Commission 

seeks comment on cost allocation 

alternatives related to the presumption, 

were it to be adopted, that could be 

helpful to smaller attachers and utilities. 

Specifically, the Second Further Notice 

asks whether the new attacher should 

be responsible for the difference in cost 

between a taller pole of the same type 

as the existing pole and the upgraded 

pole, along with other typical makeready costs of a new attachment, or if 

another measure is more appropriate 

when specific parties are involved. 

Notably, at the conclusion of the Second 

Further Notice, the Commission also 

asks commenters recommending certain 

cost allocation methodologies to address 

why their favored solution will expedite 

pole attachment approvals, benefit 

consumers, and otherwise be in the 

public interest. The Commission further 

seeks comment on the scope of refunds 

available to attachers when pole 

attachment rates are found to be unjust 

and unreasonable. Information 

submitted in response to these requests 

for comment will enable the 

Commission to evaluate the impact that 

revising its cost sharing and rate refund 

rules would impact smaller entities. 

F. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rule 

95. None. 

III. Procedural Matters 

96. Ex Parte Rules. This proceeding 

shall be treated as a ‘‘permit-butdisclose’’ proceeding in accordance 

with the Commission’s ex parte rules. 

Persons making ex parte presentations 

must file a copy of any written 

presentation or a memorandum 

summarizing any oral presentation 

within two business days after the 

presentation (unless a different deadline 

applicable to the Sunshine period 

applies). Persons making oral ex parte 

presentations are reminded that 

memoranda summarizing the 

presentation must (1) list all persons 

attending or otherwise participating in 

the meeting at which the ex parte 

presentation was made, and (2) 

summarize all data presented and 

arguments made during the 

presentation. If the presentation 

consisted in whole or in part of the 

presentation of data or arguments 

already reflected in the presenter’s 

written comments, memoranda, or other 

filings in the proceeding, then the 

presenter may provide citations to such 

data or arguments in his or her prior 

comments, memoranda, or other filings 

(specifying the relevant page and/or 

paragraph numbers where such data or 

arguments can be found) in lieu of 

summarizing them in the memorandum. 

Documents shown or given to 

Commission staff during ex parte 

meetings are deemed to be written ex 

parte presentations and must be filed 

consistent with 47 CFR 1.1206(b). In 

proceedings governed by 47 CFR 1.49(f), 

or for which the Commission has made 

available a method of electronic filing, 

written ex parte presentations and 

memoranda summarizing oral ex parte 

presentations, and all attachments 

thereto, must be filed through the 

electronic comment filing system 

available for that proceeding and must 

be filed in their native format (e.g., .doc, 

.xml, .ppt, searchable .pdf). Participants 

in this proceeding should familiarize 

themselves with the Commission’s ex 

parte rules. 

97. Initial Regulatory Flexibility 

Analysis. Pursuant to the Regulatory 

Flexibility Act, the Commission has 

prepared an Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

small entities of the policies and actions 

considered in the Second Further 

Notice. The text of the IRFA is set forth 

herein. Written public comments are 

requested on this IRFA. Comments must 

be identified as responses to the IRFA 

and must be filed by the deadlines for 

comments on the Second Further 

Notice. The Commission’s Consumer 

and Governmental Affairs Bureau, 

Reference Information Center, will send 

a copy of the Second Further Notice, 

including the IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration. 

98. Contact Person. For further 

information about this proceeding, 

contact Michael Ray, FCC, Wireline 

Competition Bureau, Competition 

Policy Division, 45 L Street NE, 

Washington, DC 20554, (202) 418–0357, 

Michael.Ray@fcc.gov. 

99. Paperwork Reduction Act 

Analysis. This document contains 


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proposed information collection 

requirements. The Commission, as part 

of its continuing effort to reduce 

paperwork burdens, invites the general 

public and the Office of Management 

and Budget (OMB) to comment on the 

information collection requirements 

contained in this document, as required 

by the Paperwork Reduction Act of 

1995, Public Law 104–13. In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, see 44 U.S.C. 3506(c)(4), 

we seek specific comment on how we 

might further reduce the information 

collection burden for small business 

concerns with fewer than 25 employees. 

IV. Ordering Clauses 

100. Accordingly, it is ordered that, 

pursuant to Sections 1–4, 201, and 224 

of the Communications Act of 1934, as 

amended, 47 U.S.C. 151–154, 201, and 

224, this Second Notice of Proposed 

Rulemaking is adopted. 

101. It is further ordered that the 

Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Second Further Notice of Proposed 

Rulemaking, including the Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2022–09029 Filed 4–27–22; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 22–150; RM–11926; DA 22– 

403; FRS 82844] 

Television Broadcasting Services 

Augusta, Maine 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The Federal Communications 

Commission (Commission or FCC) has 

before it a petition for rulemaking filed 

by Maine Public Broadcasting 

Corporation (Petitioner), the licensee of 

WCBB, channel *10, Augusta, Maine. 

The Petitioner requests the substitution 

of channel *20 for channel *10 at 

Augusta in the Table of Allotments. 

DATES: Comments must be filed on or 

before May 31, 2022 and reply 

comments on or before June 13, 2022. 

ADDRESSES: Federal Communications 

Commission, Office of the Secretary, 45 

L Street NE, Washington, DC 20554. In 

addition to filing comments with the 

FCC, interested parties should serve 

counsel for the Petitioner as follows: 

Derek Teslik, Esq., Gray Miller Persh, 

2233 Wisconsin Avenue NW, 

Washington, DC 20007. 

FOR FURTHER INFORMATION CONTACT: 

Joyce Bernstein, Media Bureau, at (202) 

418–1647; or Joyce.Bernstein@fcc.gov. 

SUPPLEMENTARY INFORMATION: In 

support, the Petitioner states that the 

proposed channel substitution would 

serve the public interest, since WCBB is 

one of only two full power stations in 

the market to broadcast on a VHF 

channel, and moving the Station to a 

UHF channel would improve the 

community’s access to WCBB’s Public 

Broadcasting Service (PBS) and other 

public television programming by 

improving indoor reception. According 

to Petitioner, although the proposed 

channel *20 facilities will result in a 

slight reduction in the Station’s 

predicted population served, much of 

the predicted loss area is located outside 

the State of Maine and the vast majority 

is served by Petitioner’s stations 

WMEB–TV, Orono, Maine, and WMEA– 

TV, Biddeford, Maine, or by other PBS 

member stations, WENH–TV, Durham, 

New Hampshire, WLED–TV, Littleton, 

New Hampshire, and WVTB, St. 

Johnsbury, Vermont. Petitioner further 

states that once terrain-limitations are 

factored into the analysis, the new loss 

area that would be created by the 

proposed substitution would contain 

144 persons, which it asserts is well 

below the level the Commission 

considers de minimis in the context of 

considering impermissible loss of 

service. Since the proposed facility is 

located within the Canadian 

coordination zone, concurrence from 

the Canadian government must be 

obtained for this allotment. 

This is a synopsis of the 

Commission’s Notice of Proposed 

Rulemaking, MB Docket No. 22–150; 

RM–11926; DA 22–403, adopted April 

13, 2022, and released April 13, 2022. 

The full text of this document is 

available for download at https://

www.fcc.gov/edocs. To request materials 

in accessible formats (braille, large 

print, computer diskettes, or audio 

recordings), please send an email to 

FCC504@fcc.gov or call the Consumer & 

Government Affairs Bureau at (202) 

418–0530 (VOICE), (202) 418–0432 

(TTY). 

This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 601– 

612, do not apply to this proceeding. 

Members of the public should note 

that all ex parte contacts are prohibited 

from the time a notice of proposed 

rulemaking is issued to the time the 

matter is no longer subject to 

Commission consideration or court 

review, see 47 CFR 1.1208. There are, 

however, exceptions to this prohibition, 

which can be found in § 1.1204(a) of the 

Commission’s rules, 47 CFR 1.1204(a). 

See §§ 1.415 and 1.420 of the 

Commission’s rules for information 

regarding the proper filing procedures 

for comments, 47 CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television. 

Federal Communications Commission. 

Thomas Horan, 

Chief of Staff, Media Bureau. 

Proposed Rule 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 155, 301, 303, 

307, 309, 310, 334, 336, 339. 

■ 2. In § 73.622(j), amend the Table of 

Allotments under Maine by changing 

*10 to *20 in the entry for Augusta to 

read as follows: 

§ 73.622 Digital television table of 

allotments. 

* * * * * 

(j) * * * 

Community Channel No. 

* * * * * 

MAINE 

Augusta ................................. * 20 

* * * * * 

[FR Doc. 2022–08607 Filed 4–27–22; 8:45 am] 

BILLING CODE 6712–01–P 


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