Federal Register / Vol. 75, No. 98 / Friday, May 21, 2010 / Proposed Rules 28517 

Commission has established the 

following allotment of time and order of 

presentation. The meeting will convene 

at 1:30 p.m., May 24, 2010, in the 

Commission’s Main Hearing Room 100, 

800 North Capitol Street, NW., 

Washington, DC 20573. 

The Federal Maritime Commission 

welcomes written comments for the 

record. All written comments submitted 

in this proceeding (an Original and 15 

copies) including written statements 

presented at the May 24th meeting are 

due by Friday, June 4, 2010. Written 

submissions, except for confidential 

business information, will be available 

for public inspection. 

PANEL I 

Participant(s) Company Time allotment 

(in minutes) 

Edward D. Greenberg, Attorney for NCBFAA ............................ National Customs Brokers & Forwarders Association of America, Inc..10 

Paulette Kolba, VP Ocean Compliance Panalpina, Inc. ............ Pantainer Ltd. ............................................................................. 10 

Robert J. Schott, President ......................................................... SEASCHOTT, Division of AIRSCHOTT, Inc. ............................ 10 

Robert A. Voltmann, President & CEO ...................................... Transportation Intermediaries Association ................................ 10 

PANEL II 

Participant(s) Company Time allotment 

(in minutes) 

Neil Barni, President ................................................................... CargoSphere .............................................................................. 10 

James E. Devine, President ....................................................... Distribution Publications, Inc. ..................................................... 10 

Stan Levy, President ................................................................... Stan Levy Consulting ................................................................. 10 

Gerard P. Wardell, President; Laurie A. Olson, VP Tariff Operations.RateWave Tariff Services, Inc. .................................................. 10 

Karen V. Gregory, 

Secretary. 

[FR Doc. 2010–12299 Filed 5–20–10; 8:45 am] 

BILLING CODE P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1 and 17 

[WT Docket No. 10–88; RM 11349; FCC 10– 

53] 

2004 and 2006 Biennial Regulatory 

Reviews—Streamlining and Other 

Revisions of the Commission’s Rules 

Governing Construction, Marking and 

Lighting of Antenna Structures; 

Amendments To Modernize and Clarify 

the Commission’s Rules Concerning 

Construction, Marking and Lighting of 

Antenna Structures 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this Notice of Proposed 

Rulemaking (NPRM), the Commission 

seeks comment on revisions to the 

Commission’s rules governing the 

construction, marking, and lighting of 

antenna structures. The Commission 

initiates this proceeding to update and 

modernize the Commission’s rules. 

DATES: Interested parties may file 

comments on or before July 20, 2010, 

and reply comments on or before 

August 19, 2010. Written comments on 

the Paperwork Reduction Act proposed 

information collection requirements 

must be submitted by the public, Office 

of Management and Budget (OMB), and 

other interested parties on or before July 

20, 2010. 

ADDRESSES: You may submit comments, 

identified by WT Docket No. 10–88; RM 

11349; FCC 10–53, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• Mail: Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although the Commission continues to 

experience delays in receiving U.S. 

Postal Service mail). All filings must be 

addressed to the Commission’s 

Secretary, Office of the Secretary, 

Federal Communications Commission. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: 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. 

In addition to filing comments with 

the Secretary, a copy of any comments 

on the Paperwork Reduction Act 

information collection requirements 

contained herein should be submitted to 

the Federal Communications 

Commission via e-mail to PRA@fcc.gov 

and to Nicholas A. Fraser, Office of 

Management and Budget, via e-mail to 

Nicholas_A._Fraser@omb.eop.gov or via 

fax at 202–395–5167. 

FOR FURTHER INFORMATION CONTACT: John 

Borkowski, Wireless 

Telecommunications Bureau, (202) 418– 

0626, e-mail John.Borkowski@fcc.gov. 

For additional information concerning 

the Paperwork Reduction Act 

information collection requirements 

contained in this document, send an email to PRA@fcc.gov or contact Judith B. 

Herman at 202–418–0214 or via the 

Internet at Judith-B.Herman@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking in WT Docket No. 

10–88; RM 11349; FCC 10–53, adopted 

April 12, 2010, and released on April 

20, 2010. The full text of the NPRM is 

available for public inspection and 

copying during business hours in the 

FCC Reference Information Center, 

Portals II, 445 12th Street, SW., Room 

CY–A257, Washington, DC 20554. It 

also may be purchased from the 

Commission’s duplicating contractor at 

Portals II, 445 12th Street, SW., Room 

CY–B402, Washington, DC 20554; the 

contractor’s Web site, http:// 

www.bcpiweb.com; or by calling (800) 

378–3160, facsimile (202) 488–5563, or 

e-mail FCC@BCPIWEB.com. Copies of 


srobinson on DSKHWCL6B1PROD with PROPOSALS
28518 Federal Register / Vol. 75, No. 98 / Friday, May 21, 2010 / Proposed Rules 

the public notice also may be obtained 

via the Commission’s Electronic 

Comment Filing System (ECFS) by 

entering the docket number WT Docket 

No. 10–88. Additionally, the complete 

item is available on the Federal 

Communications Commission’s Web 

site at http://www.fcc.gov. 

Synopsis of the Notice of Proposed 

Rulemaking 

I. Introduction 

1. In this Notice of Proposed 

Rulemaking (NPRM), the Commission 

seeks comment on revisions to the 

Commission’s part 17 rules governing 

the construction, marking, and lighting 

of antenna structures. The Commission 

initiates this proceeding to update and 

modernize the part 17 rules. These 

proposed revisions are intended to 

improve compliance with these rules 

and allow the Commission to enforce 

them more effectively, helping to better 

ensure the safety of pilots and aircraft 

passengers nationwide. These proposed 

revisions would also remove outdated 

and burdensome requirements without 

compromising the Commission’s 

statutory responsibility to prevent 

antenna structures from being hazards 

or menaces to air navigation. 

II. Discussion 

2. This NPRM proposes amendments 

to the part 17 rules to update and 

modernize them, including harmonizing 

them with Federal Aviation 

Administration (FAA) rules where 

appropriate. The following discussion 

will examine the entirety of part 17, 

considering: (1) Antenna structure 

registration and marking and lighting 

specifications; (2) maintenance of 

marking and lighting; and (3) other 

matters. 

A. Antenna Structure Registration and 

Marking and Lighting Specifications 

1. Provisions Governing Specification of 

Marking and Lighting 

3. The provisions governing 

specification of marking and lighting for 

registered antenna structures are set 

forth in Sections 17.21 through 17.23 of 

the rules. Section 17.21 specifies that 

painting and lighting of an antenna 

structure is required if the structure 

exceeds 200 feet in height or if it 

requires aeronautical study, unless an 

applicant can show that absence of (or 

lesser) marking would not impair air 

safety. Section 17.22 provides that the 

Commission will generally assign 

specifications for painting and lighting 

in accordance with FAA Circulars 

referenced in Section 17.23, but also 

provides that if such painting or lighting 

is confusing, or endangers rather than 

assists airmen, the Commission may 

specify painting or lighting in the 

individual situation. Section 17.23 

provides that, unless otherwise 

specified by the Commission, each new 

or altered antenna structure to be 

registered on or after January 1, 1996, 

must conform to the FAA’s painting and 

lighting recommendations set forth on 

the structure’s FAA determination of 

‘‘no hazard’’ as referenced in FAA 

Advisory Circulars AC 70/7460–1J 

(‘‘Obstruction Marking and Lighting’’) 

and AC 150/5345–43E (‘‘Specification 

for Obstruction Lighting Equipment’’), 

both of which are cross-referenced. 

4. In its 2004 Biennial Review 

Comments, PCIA—the Wireless 

Infrastructure Association (PCIA) states 

that FAA Advisory Circular AC 70/460– 

1J referenced in Section 17.23 has been 

superseded, creating a conflict between 

the Commission’s marking and lighting 

requirements and the FAA’s. In the 

Biennial Review Proceeding, PCIA, 

CTIA—the Wireless Association (CTIA), 

and Cingular Wireless LLC (Cingular) 

proposed that Section 17.23 be amended 

to reference the most recent versions of 

the FAA Advisory Circulars. PCIA seeks 

this rule change in its Petition for 

Rulemaking as well. In their comments 

on PCIA’s Petition for Rulemaking, 

Cingular, Crown Castle USA, Inc. 

(Crown Castle), and the National 

Association of Broadcasters (NAB) agree 

that the Commission’s rules should be 

consistent with the most recent FAA 

painting and lighting recommendations. 

In its Petition for Rulemaking, PCIA also 

seeks to amend Section 17.23 to clarify 

that the lighting and marking 

specifications assigned to a structure by 

the Commission upon registration do 

not change unless the FAA recommends 

new specifications for that particular 

structure. 

5. The Commission proposes several 

revisions to these provisions. First, the 

Commission agrees with commenters 

that the rules should not reference 

obsolete editions of the Advisory 

Circulars. Rather than updating the 

references in the current rules, however, 

the Commission proposes to delete any 

reference to Advisory Circulars as 

unnecessary and potentially confusing. 

Because each antenna structure owner is 

clearly notified through the registration 

process of the specifications that apply 

to a particular structure, first by the 

FAA itself in its ‘‘no hazard’’ 

determination, and then by the 

Commission in the owner’s antenna 

structure registration, the Commission 

believes that specific reference in the 

rules to particular Advisory Circulars is 

unnecessary. Such references also may 

cause confusion if the FAA updates the 

relevant circulars more frequently than 

the Commission amends its part 17 

rules. Also, certain older registrations 

reference discontinued FCC Form 715/ 

715A rather than the Advisory 

Circulars. To avoid these results, the 

Commission proposes that the rules 

require the marking and lighting 

recommended in the FAA 

determination and associated study, 

unless otherwise specified, rather than 

in any particular circular. The 

Commission seeks comment on this 

proposal, and in particular on whether 

there are any circumstances in which 

this approach would not be clear. 

6. PCIA proposes that the Commission 

specify in the rules that lighting and 

marking requirements do not change 

unless the FAA recommends new 

specifications for particular structures. 

PCIA believes this language is necessary 

to clarify that a revised FAA Circular 

does not impose new obligations upon 

already-approved antenna structures. 

PCIA also indicates that this proposal 

seeks rule codification of a statement 

made on the FCC’s Web site. The 

Commission seeks comment on PCIA’s 

proposal. The Commission also seeks 

comment on whether, in the event the 

FAA changes its standards, it may 

instead be preferable for the 

Commission to have the flexibility to 

apply any new standards retroactively. 

Should the Commission defer in the 

first instance to the FAA as the expert 

agency on aircraft navigation safety as to 

whether revised standards should be 

applied to existing structures, unless 

otherwise specified by the FCC? 

7. Consistent with this discussion, the 

Commission proposes several specific 

changes to the rules. Section 17.4 of the 

rules contains an overview of the 

antenna structure registration process. 

The Commission proposes adding to 

§ 17.4 a provision clarifying that the 

FAA’s recommended specifications are 

generally mandatory, but that the 

Commission may specify additional or 

different requirements. The Commission 

believes stating this simply up front will 

provide clarity regarding the central 

obligation of structure owners. The 

Commission also proposes to amend 

§ 17.4 to indicate that no changes may 

be made to the lighting or marking 

specifications on an antenna structure 

registration without prior FAA and 

Commission approval. The Commission 

seeks comment on these proposals. 

8. With respect to §§ 17.21 through 

17.23, the Commission first proposes to 

amend § 17.21(a), which provides that 

antenna structures shall be painted and 

lighted when they exceed 60.96 meters 

(200 feet) in height above ground level 


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or they require special aeronautical 

study. The Commission proposes to 

instead reference FAA notification 

requirements. The Commission believes 

that referencing FAA notification 

requirements will clarify which antenna 

structures must comply with § 17.21. 

The Commission would retain the 

provision in § 17.21(b) that the 

Commission may modify requirements 

‘‘for painting and/or lighting of antenna 

structures when it is shown by the 

applicant that the absence of such 

marking would not impair the safety of 

air navigation, or that a lesser marking 

requirement would insure the safety 

thereof.’’ The Commission then proposes 

to delete as unnecessary the first 

sentence of § 17.22, which provides: 

‘‘Whenever painting or lighting is 

required, the Commission will generally 

assign specifications in accordance with 

the FAA Advisory Circulars referenced 

in Section 17.23.’’ The Commission 

would redesignate as paragraph 17.21(c) 

the remainder of current § 17.22, 

specifying that ‘‘[i]f an antenna 

installation is of such a nature that its 

painting and lighting in accordance 

with these specifications are confusing, 

or endanger rather than assist airmen, or 

are otherwise inadequate, the 

Commission will specify the type of 

painting and lighting or other marking 

to be used in the individual situation.’’ 

Finally, the Commission would amend 

§ 17.23, as discussed above, to replace 

the reference to specific Advisory 

Circulars with a more general reference 

to the FAA’s determination of no hazard 

and associated study, and to clarify the 

structure owner’s obligation to comply 

with any other specifications prescribed 

by the Commission. The Commission 

seeks comment on all these proposals. 

9. Finally, the Commission proposes 

deleting § 17.17(a). The Commission’s 

proposed removal of reference to FAA 

circulars in § 17.23 would eliminate the 

need for the stated exception in 

§ 17.17(a). Moreover, the language in 

§ 17.17(a) has resulted in some 

confusion as to what painting and 

lighting specifications antenna 

structures authorized prior to July 1, 

1996, must maintain. The Commission 

does not make a specific proposal to 

amend § 17.17(b) in this Notice, but the 

Commission notes that the Commission 

would need to conform § 17.17(b) to any 

decision regarding PCIA’s proposal to 

specify that lighting and marking 

requirements do not change unless the 

FAA recommends new specifications 

for particular structures. The 

Commission seeks comment on these 

proposals. 

2. Accuracy of Location and Height Data 

10. Section 17.4(a)(1) provides that 

alteration of an existing antenna 

structure requires a new registration. 

However, the Commission’s rules do not 

define what constitutes an alteration 

such that a new registration is required. 

In the ASR Streamlining Order (11 FCC 

Rcd at 4287), the Commission 

determined that any change or 

correction of antenna structure site data 

of one second or greater in longitude or 

latitude, or one foot or greater in height, 

requires a new aeronautical study and a 

new determination by the FAA. The 

Commission noted that these criteria are 

consistent with the FAA’s standards for 

when a new notification is required. In 

order to clarify the obligations of 

antenna structure owners, the 

Commission proposes adding a new 

section to § 17.4 specifying that any 

change in height of one foot or greater 

or any change in coordinates of one 

second or greater requires prior 

approval from the FAA and the 

Commission. The Commission seeks 

comment on this proposal. 

11. Consistent with this standard, the 

Commission also seeks comment on 

whether to amend its rules to require 

that the height information provided on 

FCC Form 854 must be accurate within 

one foot and the coordinates provided 

in FCC Form 854 must be accurate 

within one second of longitude and 

latitude. The Commission further seeks 

comment on whether to require that 

antenna structure owners must use the 

most accurate data available when 

reporting height information and site 

coordinates, and on whether the 

Commission should specify a particular 

survey method. In the ASR Streamlining 

Order, the Commission stated that 

antenna structure owners ‘‘may use 

surveying tools of differing accuracy, 

such as maps, GPS receivers, or GPS 

receivers with differential corrections to 

obtain site data.’’ Moreover, in the ASR 

Clarification Order (15 FCC Rcd at 

8678–8679), the Commission declined 

to mandate a specific accuracy standard 

for the submission of antenna structure 

data in deference to the FAA. It has 

been the Commission’s experience, 

however, that measurements taken 

using older survey methods may differ 

significantly from those performed 

using current GPS technology. In light 

of developments in technology and 

practice, the Commission therefore finds 

it appropriate to revisit whether the 

Commission should specify accuracy 

standards or survey methods. The 

Commission asks commenters to 

address whether the Commission 

should continue to defer to the FAA’s 

expertise, and whether the 

Commission’s promulgation of rules 

would risk creating conflicts with the 

FAA’s process. Any comments 

proposing a specific method should 

explain that method and the benefits of 

mandating it for new antenna structure 

registrants. 

3. Structures Requiring FAA 

Notification 

12. Section 17.7 of the Commission’s 

rules sets forth which antenna 

structures require notification to the 

FAA. Section 17.14 of the Commission’s 

rules sets forth certain categories of 

antenna structures that are exempt from 

notification to the FAA. Sections 17.7 

and 17.14 are restatements of FAA rules. 

Specifically, § 17.7 of the Commission’s 

rules is a restatement of § 77.13 of the 

FAA’s rules. Section 17.14 of the 

Commission’s rules is a restatement of 

§ 77.15 of the FAA’s rules. These 

restatements of FAA rules in 

Commission rules appear to be 

unnecessary and duplicative, and their 

inclusion risks creating confusion in the 

event the FAA were to change its 

criteria. The Commission therefore 

proposes to delete §§ 17.7 and 17.14 of 

the Commission’s rules. In lieu of these 

full restatements of FAA rules, the 

Commission proposes adding crossreferences to relevant FAA rules in 

§ 17.4 of the Commission’s rules, which 

provides that the owner of any proposed 

or existing antenna structure that 

requires notice of proposed construction 

to the FAA must register the structure 

with the Commission. The Commission 

seeks comment on this tentative 

conclusion, and on whether there is any 

reason the Commission should retain 

language in its own rules stating which 

antenna structures require notification 

to the FAA. 

4. Pending FAA Rulemaking Proceeding 

13. The FAA’s current part 77 rules 

set forth regulations pertaining to the 

physical attributes of objects (including 

communications facilities) that may 

affect navigable airspace. Under these 

rules, parties proposing to construct or 

modify a structure must file a ‘‘Notice of 

Proposed Construction or Alteration’’ 

with the FAA. The FAA then conducts 

an obstruction evaluation to determine 

whether the proposed structure will 

pose a hazard to air navigation. The 

Commission has, in turn, required any 

antenna structure for which a Notice of 

Proposed Construction or Alteration 

must be filed with the FAA to be 

registered with the Commission as well. 

As discussed in more detail above, this 

registration requirement is the vehicle 

by which the Commission exercises its 


srobinson on DSKHWCL6B1PROD with PROPOSALS
28520 Federal Register / Vol. 75, No. 98 / Friday, May 21, 2010 / Proposed Rules 

authority under the Communications 

Act to require painting and lighting of 

towers that may constitute a hazard to 

air navigation. 

14. In a Notice of Proposed 

Rulemaking released in June, 2006, the 

FAA has proposed to modify its 

notification rules. Under the FAA’s 

proposal, among other things, events 

that give rise to a notification 

requirement would be expanded to 

include construction of new facilities 

that operate on specified frequency 

bands, changes in authorized frequency, 

addition of new frequencies, increases 

in effective radiated power or antenna 

height above certain thresholds, and 

changes in antenna configuration for 

communications facilities that operate 

in specified radio frequency bands, 

independent of the physical attributes of 

such facilities. The Commission seeks 

comment on how the outcome of the 

FAA’s proceeding may affect any of the 

matters being considered in the instant 

proceeding. In particular, the 

Commission seeks comment on 

whether, if the FAA were to adopt its 

proposed rules in whole or in part, the 

Commission should modify any of its 

rules or change any proposed 

approaches to issues addressed in this 

proceeding. In this regard, one such 

significant issue is whether the 

Commission should continue to require 

all instances of ‘‘Notice of Proposed 

Construction or Alteration’’ required by 

the FAA to result in an antenna 

structure registration or amendment of 

antenna structure registration with the 

Commission. 

B. Maintenance of Marking and Lighting 

15. The part 17 rules also detail 

certain requirements that concern the 

maintenance of the marking and lighting 

on antenna structures. These 

requirements include inspection and 

maintenance of lighting, records of 

extinguishment or improper functioning 

of lights, and maintenance of painting. 

The Commission believes that some of 

these requirements are unnecessarily 

burdensome to antenna structure 

owners and may be less effective at 

preventing hazards to air navigation 

than certain alternatives. The 

Commission also believes that some 

interpretations of these requirements 

overly complicate its enforcement 

efforts in this important public safety 

area. Therefore, the Commission is 

proposing several amendments and 

deletions to streamline and clarify these 

rules. 

1. Inspection and Maintenance of 

Lighting 

16. The basic regime governing 

inspection and maintenance of required 

lighting is set forth in §§ 17.47, 17.48, 

and 17.56(a) of the rules. Section 17.47 

of the rules requires antenna structure 

owners to make an observation of the 

antenna structure’s lights at least once 

each 24 hours either visually or by 

observing an automatic properly 

maintained indicator designed to 

register any failure of such lights or, 

alternatively, to provide and properly 

maintain an automatic alarm system 

designed to detect any failure of such 

lights and to provide indication of such 

failure to the owner. Section 17.47 also 

requires antenna structure owners to 

inspect at intervals not to exceed 3 

months all automatic or mechanical 

control devices, indicators, and alarm 

systems associated with the antenna 

structure lighting to insure that such 

apparatus is functioning properly. 

Section 17.48(a) of the Rules requires 

immediate notification to the nearest 

Flight Service Station (FSS) or office of 

the FAA of any observed or otherwise 

known extinguishment or improper 

functioning of any top steady burning 

light or any flashing obstruction light, 

regardless of its position on the antenna 

structure, not corrected within 30 

minutes. Upon notification of such an 

incident, the FAA issues a Notice to 

Airmen (NOTAM) to alert aircraft of the 

light outage. Section 17.48(b) of the 

Rules provides that ‘‘[a]n 

extinguishment or improper functioning 

of a steady burning side intermediate 

light or lights, shall be corrected as soon 

as possible, but notification to the FAA 

or [sic] such extinguishment or 

improper functioning is not required.’’ 

Section 17.56(a) of the rules requires 

antenna structure owners to replace or 

repair lights, automatic indicators or 

automatic control or alarm systems as 

soon as practicable. 

17. In their comments to the 2004 

Biennial Review, PCIA, CTIA and 

Cingular argue that quarterly physical 

inspection of antenna structures 

imposes needless and costly burdens 

and adds nothing to the reliability of the 

system. Also, the Commission, initially, 

and later the Wireless 

Telecommunications Bureau on 

delegated authority, have granted 

several tower owners waivers of 

§ 17.47(b) of the Rules to permit annual 

rather than quarterly inspections for 

their automatic or mechanical control 

devices, indicators and alarm systems 

associated with their antenna structure 

lighting, on the basis that they use 

advanced monitoring systems. In its 

Petition for Rulemaking, PCIA, 

consistent with these waiver requests, 

recommends amendment of Section 

17.47(b) of the rules to exempt systems 

using network operations control (NOC) 

center-based monitoring technologies 

from any requirement to regularly 

inspect all automatic or mechanical 

systems associated with antenna 

structure lighting. Sprint Nextel 

Corporation (Sprint Nextel), Cingular, 

Crown Castle and NAB all support such 

a rule amendment. In comments on a 

waiver request, Hark Tower Systems, 

Inc., also supported this approach. 

18. The Commission seeks comment 

on two possible alternative changes to 

§ 17.47. First, the Commission seeks 

comment on whether to delete § 17.47 of 

the rules in its entirety. The 

Commission is concerned that the 

current regime, which includes separate 

requirements for inspecting lighting 

systems, providing notice of 

extinguished lights, and replacing 

malfunctioning lights and monitoring 

systems, may create ambiguity for 

antenna structure owners regarding 

their regulatory obligations. In 

particular, an antenna structure owner 

may incorrectly conclude that so long as 

it performs the inspections required 

under § 17.47, it will not be subject to 

enforcement action if its lights fail to 

function. Eliminating the inspection 

requirements under § 17.47 would make 

clear that what matters is that the 

lighting required under the antenna 

structure registration remains on, or, if 

required lights become extinguished, 

that the structure owner promptly 

request a NOTAM. If these requirements 

are not met, the Commission may 

subject the structure owner to 

enforcement action regardless of the 

measures it followed to inspect its 

lighting and monitoring systems; and if 

these requirements are met, it would be 

immaterial to us how the structure 

owner ensured that its lights would 

remain functioning or NOTAMs would 

be requested. The Commission seeks 

comment on this possible approach, 

including on whether inspection 

requirements are necessary to ensure 

responsible monitoring of lighting 

systems. 

19. Second, if the Commission 

determines not to eliminate all 

inspection requirements, the 

Commission seeks comment on whether 

to amend § 17.47(b) to exempt certain 

systems using NOC center-based 

monitoring technologies from the 

requirement to quarterly inspect all 

automatic or mechanical systems 

associated with antenna structure 

lighting. As explained in the 

Commission’s order granting waivers to 


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American Tower Corporation (ATC) and 

Global Signal, Inc. (GSI), the types of 

systems used by ATC, GSI, and others 

reliably diagnose problems, including 

any failures of control devices, 

indicators and alarm systems, within 

real time. Thus, quarterly inspections of 

such systems may unnecessarily burden 

antenna structure owners without 

promoting aircraft navigation safety, and 

relieving inspection requirements for 

such towers may encourage tower 

owners to adopt state-of-the-art systems. 

In granting the ATC and GSI waiver 

requests, the Commission found that the 

use of advanced technology in those 

instances provided the benefits of more 

rapid response for lighting failures, with 

attendant aircraft safety benefits. The 

Commission seeks comment on the 

benefits and drawbacks of eliminating 

quarterly inspection requirements for 

systems utilizing advanced selfmonitoring technology, and on whether 

required regular inspections that are less 

frequent, such as annually, should be 

retained. The Commission also seeks 

comment as to how the systems to be 

exempted from the quarterly inspection 

requirement should be defined. 

20. The Commission proposes to 

retain the requirement in § 17.48(a) that 

antenna structure owners promptly 

report outages of top steady burning 

lights or flashing antenna structure 

lights to the FAA. However, the 

Commission believes amendment of this 

provision is necessary to ensure that a 

NOTAM is maintained so long as any 

outage continues. The FAA cancels all 

such notices within 15 days. However, 

the Commission’s rules do not currently 

require antenna structure owners to 

notify the FAA if repairs to an antenna 

structure’s lights require more than 15 

days. Therefore, the Commission 

proposes to require antenna structure 

owners to provide continuously active 

NOTAM notice to the FAA of these 

lighting outages in accordance with 

current FAA requirements. Accordingly, 

antenna structure owners would be 

required to contact the FAA to extend 

the lighting outage date after 15 days 

and provide a return to service date. The 

Commission seeks comment on this 

proposal. The Commission specifically 

asks commenters to discuss how the 

Commission should balance the public 

interest benefit of having antenna 

structure owners contact the FAA every 

15 days during a light outage against the 

burden on antenna structure owners of 

continual notification requirements. The 

Commission also notes that the 

reporting requirement of § 17.48(a) 

requires that the FAA be notified ‘‘by 

telephone or telegraph.’’ The 

Commission tentatively concludes that 

this rule should be updated to require 

notification by means acceptable to the 

FAA, which currently is by a 

nationwide toll-free telephone number 

for reporting lighting outages, and the 

Commission seeks comment on this 

proposal. 

21. Finally, the Commission requests 

comment on whether its rules should 

include time frames for replacing or 

repairing extinguished lights 

notwithstanding the issuance of a 

NOTAM, and if so, what those time 

frames should be. The Commission 

believes that the current requirements to 

replace or repair lights ‘‘as soon as 

practicable’’ (in § 17.56(a)) or ‘‘as soon as 

possible’’ (in § 17.48(b)) may be overly 

vague, and may engender confusion as 

to whether diligent efforts to correct 

lighting malfunctions obviate the need 

for a NOTAM. Accordingly, the 

Commission tentatively concludes that 

these provisions should be deleted. By 

proposing to delete these rule sections, 

however, the Commission does not 

intend to provide antenna structure 

owners with an unlimited amount of 

time to repair the lighting systems on 

their antenna structures, nor does the 

Commission suggest that antenna 

structure owners may avoid repairing 

the lighting systems on their antenna 

structures indefinitely by continually 

filing for NOTAMs. Moreover, because 

the FAA does not accept notifications or 

issue NOTAMs for extinguished steady 

burning side intermediate lights, in the 

absence of Section 17.48(b) the 

Commission’s rules would contain no 

requirements relating to maintenance of 

these lights. The Commission therefore 

seeks comment on whether the 

Commission should implement a time 

limitation for lighting system repairs. If 

such a requirement is implemented, 

should it be based on the geographic 

location of the antenna structure? 

Should weather conditions be 

considered when determining the 

reasonableness of a time period 

requirement? The Commission seeks 

comment on these proposals. 

2. Elimination of Unnecessary 

Provisions 

22. Sections 17.45, 17.51, and 17.56(b) 

each set forth specific requirements for 

antenna structure owners to follow in 

exhibiting or maintaining lights. Section 

17.45 of the rules specifies the type of 

temporary warning lights to be used 

during construction of antenna 

structures for which red obstruction 

lighting is required. Section 17.51 of the 

rules requires red obstruction lighting to 

be on from sunset to sunrise and high 

intensity and medium intensity lighting 

to burn continuously. Section 17.56(b) 

requires that the flash tubes in a high 

intensity obstruction lighting system 

shall be replaced whenever the peak 

effective daytime intensity falls below 

200,000 candelas. 

23. The Commission notes that in 

their 2004 Biennial Review comments, 

PCIA, CTIA and Cingular ask that 

§ 17.51 be amended to harmonize it 

with Section 17.48 (Notification of 

Extinguishment or Improper 

Functioning Lights). Specifically, PCIA 

states that § 17.51 should be revised to 

provide that a malfunctioning flashing 

light does not violate § 17.51, so long as 

a NOTAM has been sought by the tower 

owner or operator and issued by the 

FAA. PCIA also suggests that § 17.51 

should provide that it is not violated 

when a malfunction is beyond the 

control of the tower owner/operator 

(such as in a power failure). 

24. The Commission tentatively 

concludes that each of these provisions 

should be deleted because the relevant 

requirements are specified in the FAA 

determination of no hazard and 

associated study for each tower, and the 

separate identification of specific 

requirements in the Commission’s rules 

is therefore unnecessary and may create 

ambiguity in cases of conflict. Any 

antenna structure which is assigned 

specifications by the FAA for lighting is 

also assigned Chapter 4 (Lighting 

Guideline) of FAA Advisory Circular 

AC 70/7460–1. This chapter details the 

type of construction lights, both red and 

white, that should be used during 

construction. Chapter 4 also details 

requirements for the inspection, repair 

and maintenance of lights. Any antenna 

structure which is assigned red 

obstruction, high intensity or medium 

intensity lighting by the FAA is also 

assigned the applicable chapter (Chapter 

5, 6 or 7) of the same FAA Advisory 

Circular (AC 70/7460–1) on its antenna 

structure registration. The Commission 

therefore proposes to delete each of 

these rule provisions in order to 

promote clarity and avoid potential 

conflicts. The Commission seeks 

comment on this tentative conclusion, 

and in particular on whether there are 

any instances in which the FAA would 

not assign the relevant specifications in 

its Advisory Circular. 

25. The Commission does not agree 

with the commenters’ position that its 

lighting requirements should include an 

exception where lights are extinguished 

due to loss of power beyond the 

structure owner’s control. As discussed 

above, the Commission is proposing 

amending § 17.48 to clearly state the 

basic requirement to maintain the 

required lighting or, if lights become 


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extinguished, obtain and maintain a 

NOTAM. Thus, if lights become 

extinguished due to loss of power, the 

structure owner will remain in 

compliance with the rules if it 

immediately notifies the FAA and 

renews the notification every 15 days. 

The Commission does not believe it is 

either necessary or consistent with 

aircraft navigation safety to exempt 

outages due to loss of power from this 

process. Moreover, the Commission is 

not persuaded that the effects of power 

outages are beyond the control of 

antenna structure owners, or beyond 

their ability to remedy. The Commission 

seeks comment above on whether the 

Commission should establish time 

limits for repair or replacement of 

extinguished lights. Any rules that the 

Commission might adopt setting such 

time limits would apply to lights that 

are off due to a power outage. The 

Commission seeks comment on this 

analysis. 

3. Records of Extinguishment or 

Improper Functioning of Lights 

26. Section 17.49 requires antenna 

structure owners to maintain a record of 

observed or otherwise known 

extinguishments or improper 

functioning of structure lights. The 

Commission proposes to amend this 

provision by adding a requirement to 

maintain such records for two years and 

provide the records to the Commission 

upon request. The Commission 

tentatively concludes that this retention 

period best balances the Commission’s 

need to determine the compliance 

record against the burden of record 

retention on antenna structure owners. 

The Commission seeks comment on this 

tentative conclusion, and in particular 

on whether two years is the appropriate 

retention period. The Commission 

encourages commenters to provide data 

regarding the burden this record 

retention would impose on antenna 

structure owners, and the Commission 

invites comment on whether the 

Commission should eliminate the 

recordkeeping requirement entirely. 

4. Maintenance of Painting 

27. Section 17.50 of the rules specifies 

that antenna structures requiring 

painting under part 17 shall be cleaned 

or repainted as often as necessary to 

maintain good visibility. In their 2004 

Biennial Review Comments, PCIA, CTIA 

and Cingular argue that the Commission 

needs an unambiguous standard for 

measuring good visibility, and suggest 

that the rule be amended to reflect the 

standard used by the FAA. In particular, 

PCIA proposes that the Commission 

amend § 17.50 to require that the ‘‘paint 

on the structure must be within the 

color tolerance depicted on the FAA’s 

‘In Service Aviation Orange Tolerance 

Chart’ as measured against the base of 

the tower from a distance of one-quarter 

mile.’’ Cingular states that the current 

lack of a standard for ‘‘good visibility’’ 

‘‘leads to the potential for inconsistent 

enforcement.’’ 

28. The Commission requests 

comment on whether to amend § 17.50 

to specifically provide for use of the 

FAA’s ‘In Service Aviation Orange 

Tolerance Chart’ to determine whether a 

structure needs to be cleaned or 

repainted. In the field, the 

Commission’s Enforcement Bureau 

currently determines whether a 

structure needs to be cleaned or 

repainted by comparing it to the FAA’s 

In Service Aviation Orange Tolerance 

Chart at the base of the structure and/ 

or by observing the structure at onequarter mile distance from the structure. 

The Commission believes that each of 

these approaches has certain benefits. 

On one hand, a close inspection of the 

tower may provide more information 

about the condition of the paint (e.g., 

whether it is flaking) and about the 

actual color and how closely it matches 

the required parameters. On the other 

hand, a view from one-quarter mile 

distance, although subjective, may 

closely approximate tower visibility and 

conspicuity that pilots would encounter 

and therefore may better ensure that 

towers are visible. However, a view 

from a distance may be subject to 

inconsistencies depending upon such 

factors as direction, time of day, weather 

conditions, and silhouetting. Adding a 

specific reference to the color chart in 

§ 17.50 could provide a more objective 

standard for gauging the condition of 

required painting and may provide 

better guidance for antenna structure 

owners and promote consistent 

enforcement. The Commission therefore 

seeks comment on whether to 

incorporate such a reference. 

29. If the Commission does amend the 

rules to defer to the In Service Aviation 

Orange Tolerance Chart, the 

Commission further seeks comment on 

whether to compare the FAA’s In 

Service Aviation Orange Tolerance 

Chart to the tower at a distance of onequarter mile, as PCIA proposes, or at the 

base of the tower, as is the Enforcement 

Bureau’s practice. The instructions on 

the FAA chart direct that ‘‘to use the 

charts place each directly over the 

surface to be examined.’’ However, a 

more distant view may be most 

consistent with the FAA’s Advisory 

Circular on Obstruction Marking and 

Lighting, which indicates that ‘‘the color 

should be sampled on the upper half of 

the structure, since weathering is greater 

there.’’ The Commission seeks comment 

on which of these methods of using the 

chart, or both or neither, should be 

referenced in the rule. The Commission 

also seeks comment on whether, and if 

so how, the rule should combine use of 

the chart with other methods of gauging 

visibility, as well as any other 

suggestions on how the rule should be 

drafted. 

C. Other Matters 

1. Definitions 

30. Section 17.2(a) of the rules defines 

an ‘‘antenna structure’’ as including ‘‘the 

radiating and/or receive system, its 

supporting structures and any 

appurtenances mounted thereon.’’ 

Section 17.2(c) defines an ‘‘antenna 

structure owner’’ as the individual or 

entity vested with ownership, equitable 

ownership, dominion, or title to the 

antenna structure. Commenters argue 

that because the definition of ‘‘antenna 

structure’’ includes antennas and other 

appurtenances, the definition of 

‘‘antenna structure owner’’ could be read 

to include the service providers who 

own these antennas. Commenters 

therefore urge the Commission to amend 

its rules to clarify that the obligations of 

antenna structure owners fall only on 

the owner of the underlying structure. 

Specifically, in their comments to the 

2004 Biennial Review, PCIA, CTIA and 

Cingular urge the Commission to revise 

the definition of antenna structure so 

that compliance obligations of 

infrastructure providers and licensed 

carriers are not ambiguous. PCIA and 

Cingular both argue that the definition 

needs to be revised to reinforce 

Commission decisions that the antenna 

structure owner is responsible for 

marking, lighting and notification 

responsibilities relating to the structure. 

31. The Commission has previously 

made clear that registration 

responsibilities fall squarely on the 

antenna structure owners, and not on 

the licensees or permittees that are 

merely tenants of the structures. 

Nonetheless, the Commission agrees 

that incorporating a more precise 

definition into its rules would promote 

clarity for all parties. The Commission 

therefore proposes amending § 17.2(c) to 

provide that the antenna structure 

owner is the owner of ‘‘the underlying 

structure that supports or is intended to 

support antennas and other 

appurtenances.’’ The Commission seeks 

comment on this proposal, including 

any unintended consequences that may 

result from this change. 

32. The Commission also tentatively 

concludes that § 17.2(a) should be 


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amended to clarify both when a 

structure becomes, and when a structure 

ceases to be, an ‘‘antenna structure’’ 

under its rules. Section 303(q) of the Act 

provides that ‘‘[i]n the event that the 

tower ceases to be licensed by the 

Commission for the transmission of 

radio energy, the owner of the tower 

shall maintain the prescribed painting 

and/or illumination of such tower until 

it is dismantled . * * *’’ Consistent with 

this provision, the Commission 

proposes amending § 17.2(a) to provide 

that a structure will continue to be 

considered an antenna structure and 

subject to its part 17 requirements until 

such time as that structure is 

dismantled, regardless of whether the 

structure continues to be used for the 

transmission and/or receipt of radio 

energy. Similarly, the Commission 

believes it is consistent with the intent 

of § 303(q) that a structure constructed 

for the primary purpose of transmitting 

or receiving radio energy be treated as 

an antenna structure subject to its rules 

from the time construction begins, 

regardless of whether the structure 

immediately is being used for its 

intended purpose. The Commission 

therefore proposes amending § 17.2(a) to 

reflect this tentative conclusion as well. 

The Commission seeks comment on 

these proposals. Finally, the 

Commission notes that the term 

‘‘antenna structure’’ is defined in both 

§§ 1.907 and 17.2(a) of the 

Commission’s rules. The Commission 

seeks comment on whether these two 

definitions should be harmonized. 

2. Structures Not Requiring Registration 

33. Under the Commission’s rules, not 

all antenna structures must be registered 

with the Commission, only those of 

certain heights, depending on their 

location. Despite this limitation, some 

antenna structure owners have 

voluntarily registered their structures 

with the Commission, even though such 

registration is not required. The 

Commission seeks comment on whether 

the rules concerning antenna structures 

should be enforced against such 

voluntarily registered structures. In 

addition, the Commission seeks 

comment on whether owners of antenna 

structures that do not require 

registration should be prohibited from 

registering their towers, and whether 

antenna structure owners who have 

voluntarily registered structures should 

be required to withdraw their 

registrations from the Commission’s 

antenna structure database. Such an 

action could reduce confusion 

concerning the regulatory status of these 

structures. The Commission seeks 

comment on both the benefits and 

drawbacks to the Commission and the 

public of keeping voluntarily registered 

structures in the database, as well as of 

permitting additional structures to be 

voluntarily registered. In this regard, the 

Commission notes that antenna 

structure owners often register 

structures that fall below the 

Commission’s height thresholds in order 

to file an Environmental Assessment 

and obtain a Finding Of No Significant 

Impact under the Commission’s 

environmental rules. The Commission 

invites comment regarding what 

changes to its environmental processing 

may be necessary if antenna structure 

registration under these circumstances 

were to be limited. 

3. Posting of Antenna Structure 

Registration Number 

34. Section 17.4(g) provides: ‘‘Except 

as provided in paragraph (h) of this 

section, the Antenna Structure 

Registration [ASR] number must be 

displayed in a conspicuous place so that 

it is readily visible near the base of the 

antenna structure.’’ In its Petition for 

Rulemaking, PCIA contends that it is 

not always possible to post the ASR 

number so that it is both ‘‘readily 

visible’’ and ‘‘near the base’’ of the tower. 

PCIA and Cingular both comment that 

the Commission’s ‘‘Posting Guidelines’’ 

indicate that in such instances an 

appropriate place to post the ASR 

number is ‘‘along a perimeter fence’’ or 

‘‘at the point of entry of the gate.’’ PCIA 

recommends amendment of the rule to 

expressly permit posting of the ASR 

number at a compound fence or gate. 

Sprint Nextel, Crown Castle, NAB and 

Cingular concur. 

35. The purpose of § 17.4(g) is to 

ensure that a member of the general 

public can identify the structure in the 

event of a light outage or other air safety 

hazard and report the problem to the 

Commission and/or the FAA, as well as 

to ensure that FCC and FAA personnel 

can readily identify the structure. As 

currently written, however, the rule 

does not require that the ASR number 

be posted in a place that would be 

visible to the general public. The 

Commission therefore proposes to 

modify § 17.4 to require that antenna 

structure owners display the ASR 

number so that it would be visible to a 

member of the general public who 

reaches the closest publicly accessible 

location near the base of the antenna 

structure. Where two or more separate 

locations of this nature exist for a single 

antenna structure, such as two roads 

from different directions to a 

mountaintop site, the Commission 

would require posting the Antenna 

Structure Registration number at each 

such location. The Commission 

tentatively concludes that amending the 

rule in this manner would both clarify 

the obligations of antenna structure 

owners and promote timely remediation 

when lighting is observed to be 

malfunctioning or extinguished. The 

Commission further tentatively 

concludes that it is unnecessary for the 

ASR number to be posted both at the 

base of the tower and at a point that is 

visible to the general public. The 

Commission seeks comment on these 

tentative conclusions, including 

whether there would be benefits to 

requiring an additional posting of the 

ASR number near the base of the tower 

where that location is not readily visible 

to the public. The Commission also 

seeks comment on how the rule should 

address those situations where two 

towers having separate ASR numbers 

may be located within a single fenced 

area, as well as situations in which an 

antenna structure is located on a 

building. 

4. Provision of Antenna Structure 

Registration to Tenants 

36. Section 17.4(f) requires that 

antenna structure owners immediately 

provide copies of FCC Form 854R 

(antenna structure registration) to each 

tenant licensee and permittee. In their 

Biennial Review comments, PCIA, CTIA 

and Cingular propose that the 

Commission eliminate this requirement 

altogether, and shift the burden to the 

Commission’s licensees and permittees 

to obtain a copy of the Form 854R from 

the Commission’s Web site. In its 

Petition for Rulemaking, PCIA 

specifically recommends that the rule 

should instead require antenna structure 

owners to provide tenants with the ASR 

number or some indication that the ASR 

has been changed or updated, so that 

licensees and permittees may obtain 

relevant Form 845R (antenna structure 

registration) information from the FCC’s 

ASR Online System. Sprint Nextel, 

Cingular, Crown Castle and NAB agree, 

arguing that the requirement to provide 

paper copies no longer serves any 

practical purpose and imposes 

unnecessary costs. 

37. The Commission agrees that 

antenna structure owners should no 

longer be required to provide paper 

copies of the Form 854R to their tenants, 

as the relevant information and access 

to the form can ordinarily be provided 

at least as effectively, and more 

economically, by electronic means. 

However, the Commission believes it is 

essential that the tenant licensees and 

permittees know when the antenna 

structure has been registered, and how 

to access the registration form. The 


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Commission therefore proposes to 

amend the relevant rules to allow 

antenna structure owners, as an 

alternative to providing a copy of Form 

854R, to notify tenant licensees and 

permittees that the structure has been 

registered, and give the tenant licensees 

and permittees the antenna structure’s 

registration number along with the link 

for the Commission’s antenna structure 

registration Web site. This notification 

may be done using paper mail or 

electronic mail. The Commission seeks 

comment on this proposal. 

5. Notification of Construction or 

Dismantlement 

38. Section 17.57 requires that 

antenna structure owners notify the 

Commission within 24 hours of 

construction or dismantlement of an 

antenna structure, and immediately for 

changes in height or ownership. In its 

Biennial Review comments, PCIA 

recommends changing § 17.57 to 

harmonize the timing for these 

requirements with FAA rules. In its 

Petition for Rulemaking, PCIA indicates 

specifically that its proposal in this 

regard would be to change from 24 

hours to five days the time for 

notification of construction or 

dismantlement, and to change from 

‘‘immediately’’ to five days the time for 

notification of changes in height or 

ownership. Cingular and NAB support 

the concept of harmonization of the 

Commission’s rules with FAA rules 

regarding notification of construction 

and/or dismantlement. 

39. The Commission tentatively 

concludes that the Commission should 

not adopt these proposed changes. 

Initially, the Commission notes that 

neither PCIA nor Cingular cites the 

relevant FAA requirements or explains 

why they are appropriate for the 

Commission’s purposes. In any event, 

these FCC notification requirements 

promote accuracy of the Commission’s 

information, and it would not appear to 

create any conflict for them to be stricter 

than the FAA’s. Given the simple nature 

of notification filings, commenters have 

not shown that the time frames are 

unreasonably burdensome. The 

Commission seeks comment on this 

issue, including discussion of any 

burdens that the existing rule may 

impose. 

6. Facilities on Federal Land 

40. Section 17.58 of the Commission’s 

rules provides that any application 

proposing new or modified transmitting 

facilities to be located on land under the 

jurisdiction of the U.S. Forest Service or 

the Bureau of Land Management shall 

include a statement that the facilities 

will be so located, and that the 

applicant shall comply with the 

requirements of § 1.70 of the rules. This 

rule was adopted in 1967, along with 

former § 1.70, which prescribed 

procedures for handling applications 

involving the use of certain lands and 

reservations under the jurisdiction of 

the U.S. Government. Those procedures 

were abolished in 1977 at the request of 

the Department of Agriculture and the 

Department of the Interior, at which 

point that iteration of § 1.70 was 

deleted. As § 17.58 was intended to 

promote compliance with procedures 

that no longer exist, the Commission 

now proposes to delete § 17.58. The 

Commission seeks comment on this 

proposal, including whether there is any 

reason to retain a requirement that the 

Commission be notified of facilities on 

Forest Service or Bureau of Land 

Management lands. 

III. Conclusion 

41. By this NPRM, the Commission 

proposes various clarifications and 

amendments to the part 17 rules, in 

order to allow antenna structure owners 

to more efficiently and cost effectively 

ensure their compliance with those 

rules. The Commission seeks comment 

on these proposals. 

IV. Procedural Matters 

A. Initial Regulatory Flexibility Analysis 

42. As required by the Regulatory 

Flexibility Act of 1980, see 5 U.S.C. 603, 

as amended (RFA), the Commission has 

prepared this present Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

a substantial number of small entities by 

the policies and rules proposed in this 

Notice of Proposed Rule Making 

(NPRM). Written public comments are 

requested on this IRFA. Comments must 

be specifically identified as responses to 

the IRFA and must be filed by the 

deadlines for comments on the Notice 

provided in Section V.A. of the item. 

The Commission will send a copy of the 

NPRM, including this IRFA, to the Chief 

Counsel for Advocacy of the Small 

Business Administration (SBA). In 

addition, the NPRM and IRFA (or 

summaries thereof) will be published in 

the Federal Register. 

1. Need for and Objectives of the 

Proposed Rules 

43. Section 303(q) of the 

Communications Act vests in the 

Commission the authority to require 

painting and/or lighting of radio towers 

that may constitute a hazard to air 

navigation. Part 17 of the Commission’s 

rules sets forth procedures for 

identifying those antenna structures that 

might affect air navigation, consistent 

with recommendations made by the 

Federal Aviation Administration (FAA), 

and for registering such structures with 

the Commission. The Commission 

requires owners of antenna structures to 

register with the Commission those 

structures that meet the registration 

criteria and to exercise primary 

responsibility for the prescribed 

painting and lighting. The proposed 

rules seek to achieve the best framework 

to continue to fulfill the Commission’s 

statutory responsibility to require 

antenna structure owners, registrants 

and Commission licensees to do 

whatever is necessary to prevent 

antenna structures from being hazards 

or menaces to air navigation. 

44. The Commission proposes to 

amend § 17.4(a) and §§ 17.21, 17.22 

(redesignated as § 17.21(c)), and 17.23 

and to delete § 17.17(a) of the 

Commission’s rules regarding antenna 

structure registration and painting and 

lighting specifications. The Commission 

also proposes conforming edits to 

§§ 1.61(a)(5) and 17.1(b). These 

proposed changes are intended to clarify 

the relationship between the 

Commission’s rules and procedures and 

those of the FAA and to ensure 

continued consistency in those rules 

and procedures. The Commission also 

asks whether to amend § 17.17(b) 

(redesignated as § 17.24) by providing 

that a revised FAA Circular does not 

impose new obligations on alreadyapproved antenna structures. 

45. In order to clarify the obligations 

of antenna structure owners and to 

conform the Commission’s regulations 

to Commission and FAA practice, the 

Commission proposes adding new 

sections to § 17.4 specifying that any 

change in height of one foot or greater, 

any change in coordinates of one second 

or greater, or any change in marking and 

lighting specifications requires prior 

approval from the FAA and the 

Commission. The Commission also 

proposes to consider whether to specify 

accuracy standards or survey methods 

in order to ensure consistency of data. 

46. The Commission proposes to 

delete §§ 17.7 and 17.14 of the 

Commission’s rules, which are 

restatements of FAA rules, and to 

substitute cross-references to relevant 

FAA rules in § 17.4 of the Commission’s 

rules. This change could reduce the risk 

of confusion in the event the FAA were 

to change its criteria. 

47. The Commission proposes to 

amend its rules governing inspection 

and maintenance of lighting by: (1) 

Amending § 17.47 to eliminate or 

reduce requirements to perform 


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1 5 U.S.C. 604(a)(3). 

2 5 U.S.C. 601(6). 

3 5 U.S.C. 601(3) (incorporating by reference the 

definition of ‘‘small business concern’’ in the Small 

Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 

601(3), the statutory definition of a small business 

applies ‘‘unless an agency, after consultation with 

the Office of Advocacy of the Small Business 

Administration and after opportunity for public 

comment, establishes one or more definitions of 

such term which are appropriate to the activities of 

the agency and publishes such definition(s) in the 

Federal Register.’’ 

4 15 U.S.C. 632. 

5 13 CFR 121.201, North American Industry 

Classification System (NAICS) code 517210. 

6 Id. 

7U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

Firm Size (Including Legal Form of Organization,’’ 

Table 5, NAICS code 517212 (issued Nov. 2005). 

inspections of lighting and light 

monitoring systems; (2) amending 

§ 17.48(a) to require antenna structure 

owners to provide continuously active 

notice to the FAA of lighting outages; 

and (3) deleting vague references to 

timely repair timeframes in §§ 17.48(b) 

and 17.56(a). The Commission proposes 

to consider whether to eliminate § 17.47 

in its entirety or to retain modified 

inspection requirements and whether to 

substitute more specific repair time 

limitations. These proposals are 

intended to relieve unnecessary burdens 

and reduce confusion while ensuring 

that aircraft navigation safety is best 

protected. 

48. The Commission proposes to 

delete §§ 17.45, 17.51, and 17.56(b), 

which set forth specific requirements for 

exhibiting and maintaining lights, 

because they are unnecessary and may 

create ambiguity in cases of conflict 

with FAA specifications. This change 

could reduce the risk of confusion. 

49. Section 17.49 requires antenna 

structure owners to maintain a record of 

observed or otherwise known 

extinguishments or improper 

functioning of structure lights. The 

Commission proposes to add a 

requirement to maintain such records 

for two years and provide the records to 

the Commission upon request in order 

to balance the Commission’s need to 

determine the compliance record 

against the burden of record retention 

on antenna structure owners. 

50. The Commission is considering a 

proposal to amend § 17.50 to require use 

of the FAA’s ‘In Service Aviation 

Orange Tolerance Chart’ to determine 

whether a structure needs to be cleaned 

or repainted and to specify how the 

chart is to be used. These changes may 

provide more objective standards for 

gauging visibility. 

51. The Commission proposes to 

amend § 17.2(a) of the Commission’s 

rules to clarify both when a structure 

becomes, and when a structure ceases to 

be, an ‘‘antenna structure’’ under our 

rules. The Commission also proposes to 

amend § 17.2(c) of the Commission’s 

rules to clarify that the obligations of an 

‘‘antenna structure owner’’ fall only on 

the owner of the underlying structure, 

and not on tenants, thus promoting 

clarity for all parties. 

52. The Commission also proposes to 

consider whether the rules concerning 

antenna structures should be enforced 

against voluntarily registered structures, 

whether owners of antenna structures 

that do not require registration should 

be prohibited from registering their 

towers, and whether antenna structure 

owners who have voluntarily registered 

structures should be required to 

withdraw their registrations from the 

Commission’s antenna structure 

database. Such action could reduce 

confusion by clarifying the regulatory 

status of these structures. 

53. The Commission proposes to 

modify § 17.4(g) to require that antenna 

structure owners display the Antenna 

Structure Registration (ASR) number so 

that it would be visible to a member of 

the general public who reaches the 

closest publicly accessible location near 

each point of access to the antenna 

structure. The Commission further 

proposes to delete the requirement that 

the ASR number be posted near the base 

of the antenna structure. The 

Commission tentatively concludes that 

amending the rule in this manner would 

clarify the obligations of antenna 

structure owners, promote timely 

remediation when lighting is observed 

to be malfunctioning or extinguished, 

and eliminate unnecessary postings. 

54. Section 17.4(f) requires that 

antenna structure owners immediately 

provide copies of FCC Form 854R 

(antenna structure registration) to each 

tenant licensee and permittee. Sections 

17.4(e) and 17.6(c) impose a similar 

requirement on the first licensee in 

cases where the antenna structure 

owner is unable to file Form 854 

because it is subject to a denial of 

Federal benefits under the Anti-Drug 

Abuse Act of 1988. The Commission 

proposes to amend these rules to allow 

the alternative of providing a link to the 

Commission’s antenna structure 

registration Web site via paper or 

electronic mail. 

55. The Commission proposes to 

delete § 17.58, which was intended to 

promote compliance with procedures 

that are now obsolete. This change 

would streamline the antenna structure 

registration process. 

2. Legal Basis 

56. The legal basis for any action that 

may be taken pursuant to the Notice is 

contained in Sections 4(i), 4(j), 11, and 

303(q) of the Communications Act of 

1934, as amended, 47 U.S.C. 154(i) 

through (j), 161, 303(q). 

3. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules May Apply 

57. 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 

proposed rules.1 The RFA generally 

defines the term ‘‘small entity’’ as having 

the same meaning as the terms ‘‘small 

business,’’ ‘‘small organization,’’ and 

‘‘small governmental jurisdiction.’’ 2 In 

addition, the term ‘‘small business’’ has 

the same meaning as the term ‘‘small 

business concern’’ under the Small 

Business Act.3 A ‘‘small business 

concern’’ is one which: (1) Is 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the Small Business 

Administration (‘‘SBA’’).4

58. The Notice proposes rule changes 

that would impose requirements on a 

large number of entities relating to the 

registration of and maintenance of 

painting and lighting on antenna 

structures. Due to the number and 

diversity of owners of antenna 

structures and other responsible parties, 

including small entities that are 

Commission licensees as well as nonlicensee tower companies, the 

Commission classifies and quantifies 

them in the remainder of this section. 

59. Cellular Licensees. The SBA has 

developed a small business size 

standard for small businesses in the 

category ‘‘Wireless Telecommunications 

Carriers (except satellite).’’ 5 Under that 

SBA category, a business is small if it 

has 1,500 or fewer employees.6 The 

census category of ‘‘Cellular and Other 

Wireless Telecommunications’’ is no 

longer used and has been superseded by 

the larger category ‘‘Wireless 

Telecommunications Carriers (except 

satellite)’’. However, since currently 

available data was gathered when 

‘‘Cellular and Other Wireless 

Telecommunications’’ was the relevant 

category, earlier Census Bureau data 

collected under the category of ‘‘Cellular 

and Other Wireless 

Telecommunications’’ will be used here. 

Census Bureau data for 2002 show that 

there were 1,397 firms in this category 

that operated for the entire year.7 Of this 

total, 1,378 firms had employment of 

999 or fewer employees, and 19 firms 

had employment of 1,000 employees or 


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8 Id. The census data do not provide a more 

precise estimate of the number of firms that have 

employment of 1,500 or fewer employees; the 

largest category provided is for firms with ‘‘1000 

employees or more.’’ 

9See Amendment of Parts 20 and 24 of the 

Commission’s Rules—Broadband PCS Competitive 

Bidding and the Commercial Mobile Radio Service 

Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 

7850–7852 paras. 57–60 (1996); see also 47 CFR 

24.720(b). 

10See Amendment of Parts 20 and 24 of the 

Commission’s Rules—Broadband PCS Competitive 

Bidding and the Commercial Mobile Radio Service 

Spectrum Cap, Report and Order, 11 FCC Rcd 7824, 

7852 para. 60. 

11See Letter to Amy Zoslov, Chief, Auctions and 

Industry Analysis Division, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, from Aida Alvarez, 

Administrator, Small Business Administration, 

dated December 2, 1998. 

12FCC News, ‘‘Broadband PCS, D, E and F Block 

Auction Closes,’’ No. 71744 (rel. January 14, 1997). 

13See ‘‘C, D, E, and F Block Broadband PCS 

Auction Closes,’’ Public Notice, 14 FCC Rcd 6688 

(WTB 1999). 

14See ‘‘C and F Block Broadband PCS Auction 

Closes; Winning Bidders Announced,’’ Public 

Notice, 16 FCC Rcd 2339 (2001). 

15 Implementation of Section 309(j) of the 

Communications Act—Competitive Bidding 

Narrowband PCS, Third Memorandum Opinion and 

Order and Further Notice of Proposed Rulemaking, 

10 FCC Rcd 175, 196 para. 46 (1994). 

16See ‘‘Announcing the High Bidders in the 

Auction of Ten Nationwide Narrowband PCS 

Licenses, Winning Bids Total $617,006,674,’’ Public 

Notice, PNWL 94–004 (rel. Aug. 2, 1994); 

‘‘Announcing the High Bidders in the Auction of 30 

Regional Narrowband PCS Licenses; Winning Bids 

Total $490,901,787,’’ Public Notice, PNWL 94–27 

(rel. Nov. 9, 1994). 

17Amendment of the Commission’s Rules to 

Establish New Personal Communications Services, 

Narrowband PCS, Second Report and Order and 

Second Further Notice of Proposed Rule Making, 15 

FCC Rcd 10456, 10476 para. 40 (2000). 

18 Id. 

19 Id. 

20See Letter to Amy Zoslov, Chief, Auctions and 

Industry Analysis Division, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, from Aida Alvarez, 

Administrator, Small Business Administration, 

dated December 2, 1998. 

21See ‘‘Narrowband PCS Auction Closes,’’ Public 

Notice, 16 FCC Rcd 18663 (WTB 2001). 

22 47 CFR 90.814(b)(1). 

23 Id. 

24See Letter to Thomas Sugrue, Chief, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, from Aida Alvarez, 

Administrator, Small Business Administration, 

dated August 10, 1999. 

25See ‘‘Correction to Public Notice DA 96–586 

‘FCC Announces Winning Bidders in the Auction 

of 1020 Licenses to Provide 900 MHz SMR in Major 

Trading Areas,’’’ Public Notice, 18 FCC Rcd 18367 

(WTB 1996). 

26See ‘‘Multi-Radio Service Auction Closes,’’ 

Public Notice, 17 FCC Rcd 1446 (WTB 2002). 

more.8 Thus, under this category and 

size standard, the majority of firms can 

be considered small. 

60. Broadband Personal 

Communications Service. The 

broadband Personal Communications 

Service (PCS) spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission has created a small 

business size standard for Blocks C and 

F as an entity that has average gross 

revenues of less than $40 million in the 

three previous calendar years.9 For 

Block F, 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.10 These small business 

size standards, in the context of 

broadband PCS auctions, have been 

approved by the SBA.11 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 qualified as small entities in the C 

Block auctions. A total of 93 ‘‘small’’ and 

‘‘very small’’ business bidders won 

approximately 40 percent of the 1,479 

licenses for Blocks D, E, and F.12 On 

March 23, 1999, the Commission 

reauctioned 155 C, D, E, and F Block 

licenses; there were 113 small business 

winning bidders.13 On January 26, 2001, 

the Commission completed the auction 

of 422 C and F Block PCS licenses in 

Auction 35.14 Of the 35 winning bidders 

in this auction, 29 qualified as ‘‘small’’ 

or ‘‘very small’’ businesses. Subsequent 

events concerning Auction 35, 

including judicial and agency 

determinations, resulted in a total of 163 

C and F Block licenses being available 

for grant. 

61. Narrowband Personal 

Communications Service. The 

Commission held an auction for 

Narrowband Personal Communications 

Service (PCS) licenses that commenced 

on July 25, 1994, and closed on July 29, 

1994. A second commenced on October 

26, 1994, and closed on November 8, 

1994. For purposes of the first two 

Narrowband PCS auctions, ‘‘small 

businesses’’ were entities with average 

gross revenues for the prior three 

calendar years of $40 million or less.15

Through these auctions, the 

Commission awarded a total of forty-one 

licenses, 11 of which were obtained by 

four small businesses.16 To ensure 

meaningful participation by small 

business entities in future auctions, the 

Commission adopted a two-tiered small 

business size standard in the 

Narrowband PCS Second Report and 

Order.17 A ‘‘small business’’ is an entity 

that, together with affiliates and 

controlling interests, has average gross 

revenues for the three preceding years of 

not more than $40 million.18 A ‘‘very 

small business’’ is an entity that, 

together with affiliates and controlling 

interests, has average gross revenues for 

the three preceding years of not more 

than $15 million.19 The SBA has 

approved these small business size 

standards.20 A third auction 

commenced on October 3, 2001, and 

closed on October 16, 2001. Here, five 

bidders won 317 (MTA and nationwide) 

licenses.21 Three of these claimed status 

as a small or very small entity and won 

311 licenses. 

62. Specialized Mobile Radio. The 

Commission awards ‘‘small entity’’ 

bidding credits in auctions for 

Specialized Mobile Radio (SMR) 

geographic area licenses in the 800 MHz 

and 900 MHz bands to firms that had 

revenues of no more than $15 million in 

each of the three previous calendar 

years.22 The Commission awards ‘‘very 

small entity’’ bidding credits to firms 

that had revenues of no more than $3 

million in each of the three previous 

calendar years.23 The SBA has approved 

these small business size standards for 

the 900 MHz Service.24 The 

Commission has held auctions for 

geographic area licenses in the 800 MHz 

and 900 MHz bands. The 900 MHz SMR 

auction began on December 5, 1995, and 

closed on April 15, 1996. Sixty bidders 

claiming that they qualified as small 

businesses under the $15 million size 

standard won 263 geographic area 

licenses in the 900 MHz SMR band. The 

800 MHz SMR auction for the upper 200 

channels began on October 28, 1997, 

and was completed on December 8, 

1997. Ten bidders claiming that they 

qualified as small businesses under the 

$15 million size standard won 38 

geographic area licenses for the upper 

200 channels in the 800 MHz SMR 

band.25 A second auction for the 800 

MHz band was held on January 10, 

2002, and closed on January 17, 2002, 

and included 23 licenses. One bidder 

claiming small business status won five 

licenses.26

63. The auction of the 1,050 800 MHz 

SMR geographic area licenses for the 

General Category channels began on 

August 16, 2000, and was completed on 

September 1, 2000. Eleven bidders that 

won 108 geographic area licenses for the 

General Category channels in the 800 

MHz SMR band qualified as small 

businesses under the $15 million size 

standard. In an auction completed on 

December 5, 2000, a total of 2,800 

Economic Area licenses in the lower 80 

channels of the 800 MHz SMR service 

were sold. Of the 22 winning bidders, 

19 claimed ‘‘small business’’ status and 

won 129 licenses. Thus, combining all 


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27Service Rules for Advanced Wireless Services 

in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 

02–353, 18 FCC Rcd 25162 (2003) (AWS–1 Service 

Rules Order). 

28See id., at para. 144. 

29See News Release ‘‘Statements of FCC 

Chairman and Commissioners Before the 

Committee on Energy and Commerce, 

Subcommittee on Telecommunications and the 

Internet, U.S. House of Representatives’’, Chairman 

Martin’s Written Statement, Exhibit 3, http:// 

hraunfoss.fcc.gov/edocs_public/attachmatch/DOC281580A2.pdf, (4/15/2008). 

30 13 CFR 121.201, NAICS code 517210. 

31Amendment of the Commission’s Rules to 

Establish Part 27, the Wireless Communications 

Service (WCS), Report and Order, 12 FCC Rcd 

10785, 10879 para. 194 (1997). 

32See Letter to Amy Zoslov, Chief, Auctions and 

Industry Analysis Division, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, from Aida Alvarez, 

Administrator, Small Business Administration, 

dated December 2, 1998. 

33 13 CFR 121.201, NAICS code 517210. 

34U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

Firm Size (Including Legal Form of Organization,’’ 

Table 5, NAICS code 517212 (issued Nov. 2005). 

35 Id. The census data do not provide a more 

precise estimate of the number of firms that have 

employment of 1,500 or fewer employees; the 

largest category provided is for firms with ‘‘1,000 

employees or more.’’ 

36Amendment of Part 90 of the Commission’s 

Rules to Provide For the Use of the 220–222 MHz 

Band by the Private Land Mobile Radio Service, 

Third Report and Order, 12 FCC Rcd 10943, 11068– 

70 paras. 291–295 (1997). 

37 Id. at 11068 para. 291. 

three auctions, 40 winning bidders for 

geographic licenses in the 800 MHz 

SMR band claimed status as small 

business. 

64. In addition, there are numerous 

incumbent site-by-site SMR licensees 

and licensees with extended 

implementation authorizations in the 

800 and 900 MHz bands. The 

Commission does not know how many 

firms provide 800 MHz or 900 MHz 

geographic area SMR pursuant to 

extended implementation 

authorizations, nor how many of these 

providers have annual revenues of no 

more than $3 million or $15 million (the 

special small business size standards), 

or have no more than 1,500 employees 

(the generic SBA standard for wireless 

entities, discussed, supra). One firm has 

over $15 million in revenues. The 

Commission assumes, for purposes of 

this analysis, that all of the remaining 

existing extended implementation 

authorizations are held by small 

entities. 

65. Advanced Wireless Services. The 

Report and Order adopting service rules 

for Advanced Wireless Services (AWS) 

in the 1710–1755 and 2110–2155 MHz 

bands 27 affected applicants who wish to 

provide service in the 1710–1755 MHz 

and 2110–2155 MHz bands. As 

discussed in the AWS–1 Service Rules 

Order, the Commission does not know 

precisely the type of service that a 

licensee in these bands might seek to 

provide.28 Nonetheless, the Commission 

anticipates that the services that will be 

deployed in these bands may have 

capital requirements comparable to 

those in the broadband Personal 

Communications Service (PCS), and that 

the licensees in these bands will be 

presented with issues and costs similar 

to those presented to broadband PCS 

licensees. Further, at the time the 

broadband PCS service was established, 

it was similarly anticipated that it 

would facilitate the introduction of a 

new generation of service. Therefore, 

the AWS–1 Service Rules Order adopted 

the same small business size standards 

that the Commission adopted for the 

broadband PCS service. In particular, 

the Order defined a ‘‘small business’’ as 

an entity with average annual gross 

revenues for the preceding three years 

not exceeding $40 million, and a ‘‘very 

small business’’ as an entity with 

average annual gross revenues for the 

preceding three years not exceeding $15 

million. The Order also provided small 

businesses with a bidding credit of 15 

percent and very small businesses with 

a bidding credit of 25 percent. In the 

auction held August 9 through 

September 18, 2006, 55% of the 

winning bidders were small businesses 

(57 of 104).29

66. Rural Radiotelephone Service. The 

Commission uses the SBA small 

business size standard applicable to 

Wireless Telecommunications Carriers 

(except satellite), i.e., an entity 

employing no more than 1,500 

persons.30 There are approximately 

1,000 licensees in the Rural 

Radiotelephone Service, and the 

Commission estimates that there are 

1,000 or fewer small entity licensees in 

the Rural Radiotelephone Service that 

may be affected by the rules and 

policies adopted herein. 

67. Wireless Communications 

Services. This service can be used for 

fixed, mobile, radiolocation, and digital 

audio broadcasting satellite uses in the 

2305–2320 MHz and 2345–2360 MHz 

bands. The Commission defined ‘‘small 

business’’ for the wireless 

communications services (WCS) auction 

as an entity with average gross revenues 

of $40 million or less for each of the 

three preceding years, and a ‘‘very small 

business’’ as an entity with average gross 

revenues of $15 million or less for each 

of the three preceding years.31 The SBA 

has approved these definitions.32 The 

Commission auctioned geographic area 

licenses in the WCS service. In the 

auction, which commenced on April 15, 

1997, and closed on April 25, 1997, 

there were seven bidders that won 31 

licenses that qualified as very small 

business entities, and one bidder that 

won one license that qualified as a small 

business entity. 

68. 220 MHz Radio Service—Phase I 

Licensees. The 220 MHz service has 

both Phase I and Phase II licenses. Phase 

I licensing was conducted by lotteries in 

1992 and 1993. There are approximately 

1,515 such non-nationwide licensees 

and four nationwide licensees currently 

authorized to operate in the 220 MHz 

Band. The Commission has not 

developed a definition of small entities 

specifically applicable to such 

incumbent 220 MHz Phase I licensees. 

To estimate the number of such 

licensees that are small businesses, the 

Commission applies the small business 

size standard under the SBA rules 

applicable to ‘‘Cellular and Other 

Wireless Telecommunications’’ 

companies. Note that the census 

category of ‘‘Cellular and Other Wireless 

Telecommunications’’ is no longer used 

and has been superseded by the larger 

category ‘‘Wireless Telecommunications 

Carriers (except satellite)’’. This category 

provides that a small business is a 

wireless company employing no more 

than 1,500 persons.33 However, since 

currently available data was gathered 

when ‘‘Cellular and Other Wireless 

Telecommunications’’ was the relevant 

category, earlier Census Bureau data 

collected under the category of ‘‘Cellular 

and Other Wireless 

Telecommunications’’ will be used here. 

Census Bureau data for 2002 show that 

there were 1,397 firms in this category 

that operated for the entire year.34 Of 

this total, 1,378 firms had employment 

of 999 or fewer employees, and 19 firms 

had employment of 1,000 employees or 

more.35 Therefore, the majority of firms 

can be considered small. 

69. 220 MHz Radio Service—Phase II 

Licensees. The 220 MHz service has 

both Phase I and Phase II licenses. The 

Phase II 220 MHz service is subject to 

spectrum auctions. In the 220 MHz 

Third Report and Order, the 

Commission adopted a small business 

size standard for defining ‘‘small’’ and 

‘‘very small’’ businesses for purposes of 

determining their eligibility for special 

provisions such as bidding credits and 

installment payments.36 This small 

business standard indicates that a ‘‘small 

business’’ is an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues not 

exceeding $15 million for the preceding 

three years.37 A ‘‘very small business’’ is 

defined as an entity that, together with 


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38 Id. 

39See Letter to Daniel Phythyon, Chief, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, from Aida Alvarez, 

Administrator, Small Business Administration, 

dated January 6, 1998. 

40See generally ‘‘220 MHz Service Auction 

Closes,’’ Public Notice, 14 FCC Rcd 605 (WTB 1998). 

41See ‘‘FCC Announces It is Prepared to Grant 

654 Phase II 220 MHz Licenses After Final Payment 

is Made,’’ Public Notice, 14 FCC Rcd 1085 (WTB 

1999). 

42 See ‘‘Phase II 220 MHz Service Spectrum 

Auction Closes,’’ Public Notice, 14 FCC Rcd 11218 

(WTB 1999). 

43See ‘‘Multi-Radio Service Auction Closes,’’ 

Public Notice, 17 FCC Rcd 1446 (WTB 2002). 

44See Service Rules for the 746–764 MHz Bands, 

and Revisions to Part 27 of the Commission’s Rules, 

Second Report and Order, 15 FCC Rcd 5299 (2000). 

45 Id. at 5343 para. 108. 

46 Id. 

47 Id. At 5343 para. 108 n.246 (for the 746–764 

MHz and 776–704 MHz bands, the Commission is 

exempt from 15 U.S.C. 632, which requires Federal 

agencies to obtain Small Business Administration 

approval before adopting small business size 

standards). 

48See ‘‘700 MHz Guard Bands Auction Closes: 

Winning Bidders Announced,’’ Public Notice, 15 

FCC Rcd 18026 (2000). 

49See ‘‘700 MHz Guard Bands Auctions Closes: 

Winning Bidders Announced,’’ Public Notice, 16 

FCC Rcd 4590 (WTB 2001). 

50See In the Matter of Service Rules for the 698– 

746, 747–762 and 777–792 MHz Bands, WT Docket 

06–150, Second Report and Order, 22 FCC Rcd 

15289, 15339–15344 paras. 118–134 (2007) (700 

MHz Second Report and Order). 

51 Id. 

52See Auction of 700 MHz Band Licenses 

Scheduled for January 24, 2008, AU Docket No. 07– 

157, Notice and Filing Requirements, Minimum 

Opening Bids, Reserve Prices, Upfront Payments, 

and Other Procedures for Auctions 73 and 76, DA 

07–4171 at para. 70 (WTB rel. Oct. 5, 2007); 

Reallocation and Service Rules for the 698–746 

MHz Spectrum Band (Television Channels 52–59), 

Report and Order, 17 FCC Rcd 1022, 1087–88 

(2002). 

53 Id. at 1088. 

54See Letter to Thomas Sugrue, Chief, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, from Aida Alvarez, 

Administrator, Small Business Administration, 

dated August 10, 1999. 

55See ‘‘Lower 700 MHz Band Auction Closes,’’ 

Public Notice, 17 FCC Rcd 17272 (WTB 2002). 

56See ‘‘Lower 700 MHz Band Auction Closes,’’ 

Public Notice, 18 FCC Rcd 11873 (WTB 2003). 

57 Id. 

its affiliates and controlling principals, 

has average gross revenues that do not 

exceed $3 million for the preceding 

three years.38 The SBA has approved 

these small size standards.39 Auctions of 

Phase II licenses commenced on 

September 15, 1998, and closed on 

October 22, 1998.40 In the first auction, 

908 licenses were auctioned in three 

different-sized geographic areas: Three 

nationwide licenses, 30 Regional 

Economic Area Group (EAG) Licenses, 

and 875 Economic Area (EA) Licenses. 

Of the 908 licenses auctioned, 693 were 

sold.41 Thirty-nine small businesses 

won 373 licenses in the first 220 MHz 

auction. A second auction included 225 

licenses: 216 EA licenses and 9 EAG 

licenses. Fourteen companies claiming 

small business status won 158 

licenses.42 A third auction included four 

licenses: 2 BEA licenses and 2 EAG 

licenses in the 220 MHz Service. No 

small or very small business won any of 

these licenses.43

70. 700 MHz Guard Bands Licenses. 

In the 700 MHz Guard Bands Order, the 

Commission adopted size standards for 

‘‘small businesses’’ and ‘‘very small 

businesses’’ for purposes of determining 

their eligibility for special provisions 

such as bidding credits and installment 

payments.44 A small business in this 

service is an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues not 

exceeding $40 million for the preceding 

three years.45 Additionally, a ‘‘very 

small business’’ is 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.46

SBA approval of these definitions is not 

required.47 An auction of 52 Major 

Economic Area (MEA) licenses for each 

of two spectrum blocks commenced on 

September 6, 2000, and closed on 

September 21, 2000.48 Of the 104 

licenses auctioned, 96 licenses were 

sold to nine bidders. Five of these 

bidders were small businesses that won 

a total of 26 licenses. A second auction 

of remaining 700 MHz Guard Bands 

licenses commenced on February 13, 

2001, and closed on February 21, 2001. 

All eight of the licenses auctioned were 

sold to three bidders. One of these 

bidders was a small business that won 

a total of two licenses.49 Subsequently, 

in the 700 MHz Second Report and 

Order, the Commission reorganized the 

licenses pursuant to an agreement 

among most of the licensees, resulting 

in a spectral relocation of the first set of 

paired spectrum block licenses, and an 

elimination of the second set of paired 

spectrum block licenses (many of which 

were already vacant, reclaimed by the 

Commission from Nextel).50 A single 

licensee that did not participate in the 

agreement was grandfathered in the 

initial spectral location for its two 

licenses in the second set of paired 

spectrum blocks.51 Accordingly, at this 

time there are 54 licenses in the 700 

MHz Guard Bands. 

71. 700 MHz Band Commercial 

Licenses. There is 80 megahertz of nonGuard Band spectrum in the 700 MHz 

Band that is designated for commercial 

use: 698–757, 758–763, 776–787, and 

788–793 MHz Bands. With one 

exception, the Commission adopted 

criteria for defining two groups of small 

businesses for purposes of determining 

their eligibility for bidding credits at 

auction. These two categories are: (1) 

‘‘Small business,’’ which is defined as an 

entity with attributed average annual 

gross revenues that exceed $15 million 

and do not exceed $40 million for the 

preceding three years; and (2) ‘‘very 

small business,’’ which is defined as an 

entity with attributed average annual 

gross revenues that do not exceed $15 

million for the preceding three years.52

In Block C of the Lower 700 MHz Band 

(710–716 MHz and 740–746 MHz), 

which was licensed on the basis of 734 

Cellular Market Areas, the Commission 

adopted a third criterion for 

determining eligibility for bidding 

credits: an ‘‘entrepreneur,’’ which is 

defined as an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues that are not 

more than $3 million for the preceding 

three years.53 The SBA has approved 

these small size standards.54

72. An auction of 740 licenses for 

Blocks C (710–716 MHz and 740–746 

MHz) and D (716–722 MHz) of the 

Lower 700 MHz Band commenced on 

August 27, 2002, and closed on 

September 18, 2002. Of the 740 licenses 

available for auction, 484 licenses were 

sold to 102 winning bidders. Seventytwo of the winning bidders claimed 

small business, very small business, or 

entrepreneur status and won a total of 

329 licenses.55 A second auction 

commenced on May 28, 2003, and 

closed on June 13, 2003, and included 

256 licenses: Five EAG licenses and 251 

CMA licenses.56 Seventeen winning 

bidders claimed small or very small 

business status and won 60 licenses, 

and nine winning bidders claimed 

entrepreneur status and won 154 

licenses.57

73. The remaining 62 megahertz of 

commercial spectrum was auctioned on 

January 24 through March 18, 2008. As 

explained above, bidding credits for all 

of these licenses were available to 

‘‘small businesses’’ and ‘‘very small 

businesses.’’ Auction 73 concluded with 

1,090 provisionally winning bids 

covering 1,091 licenses and totaling 

$19,592,420,000. The provisionally 

winning bids for the A, B, C, and E 

Block licenses exceeded the aggregate 

reserve prices for those blocks. The 

provisionally winning bid for the D 

Block license, however, did not meet 

the applicable reserve price and thus 

did not become a winning bid. 

Approximately 55 small businesses had 


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58See ‘‘Auction of 700 MHz Band Licenses 

Closes,’’ Public Notice, 23 FCC Rcd 4572 (WTB 

2008). 

59See fcc.gov Web site at http://wireless.fcc.gov/ 

auctions/ 

default.htm?job=auction_summary&id=73. 

60 13 CFR 121.201, NAICS code 517211. 

61 13 CFR 121.201, North American Industry 

Classification System (NAICS) code 517210. 

62 Id. 

63U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

Firm Size (Including Legal Form of Organization,’’ 

Table 5, NAICS code 517211 (issued Nov. 2005). 

64 Id. The census data do not provide a more 

precise estimate of the number of firms that have 

employment of 1,500 or fewer employees; the 

largest category provided is for firms with ‘‘1,000 

employees or more.’’ 

65Amendment of Part 90 of the Commission’s 

Rules to Provide for the Use of the 220–222 MHz 

Band by the Private Land Mobile Radio Service, PR 

Docket No. 89–552, Third Report and Order and 

Fifth Notice of Proposed Rulemaking, 12 FCC Rcd 

10943, 11068–70, paras. 291–295 (1997). 

66See Letter to Amy Zoslov, Chief, Auctions and 

Industry Analysis Division, Wireless 

Telecommunications Bureau, FCC, from A. Alvarez, 

Administrator, SBA (Dec. 2, 1998) (SBA Dec. 2, 

1998 Letter). 

67Revision of Part 22 and Part 90 of the 

Commission’s Rules to Facilitate Future 

Development of Paging Systems, Memorandum 

Opinion and Order on Reconsideration and Third 

Report and Order, 14 FCC Rcd 10030, paras. 98–107 

(1999). 

68 Id. at 10085, para. 98. 

69See ‘‘929 and 931 MHz Paging Auction Closes,’’ 

Public Notice, 15 FCC Rcd 4858 (WTB 2000). 

70See id. 

71See ‘‘Lower and Upper Paging Band Auction 

Closes,’’ Public Notice, 16 FCC Rcd 21821 (WTB 

2002). 

72See ‘‘Lower and Upper Paging Bands Auction 

Closes,’’ Public Notice, 18 FCC Rcd 11154 (WTB 

2003). 

73See Trends in Telephone Service, Industry 

Analysis Division, Wireline Competition Bureau, 

Table 5.3 (Number of Telecommunications Service 

Providers by Size of Business) (June 2005). 

74 13 CFR 121.201, NAICS code 517210. 

75 Id. 

76 Id. 

77Amendment of the Commission’s Rules 

Concerning Maritime Communications, PR Docket 

No. 92–257, Third Report and Order and 

Memorandum Opinion and Order, 13 FCC Rcd 

19853 (1998). 

winning bids.58 Currently, the 10 

remaining megahertz associated with 

the D block have not yet been 

assigned.59

74. Private and Common Carrier 

Paging. The SBA had developed a small 

business size standard for wireless firms 

within the broad economic census 

category of ‘‘Paging’’.60 However, the 

census category ‘‘Paging’’ is no longer 

used and has been superseded by the 

larger category ‘‘Wireless 

Telecommunications Carriers (except 

satellite).’’ 61 Under that SBA category, a 

business is small if it has 1,500 or fewer 

employees.62 However, since currently 

available data was gathered when 

‘‘Paging’’ was the relevant category, 

earlier Census Bureau data collected 

under the category of ‘‘Paging’’ will be 

used here. Census Bureau data for 2002 

show that there were 807 firms in this 

category that operated for the entire 

year.63 Of this total, 804 firms had 

employment of 999 or fewer employees, 

and three firms had employment of 

1,000 employees or more.64 Thus, under 

this category, the majority of firms can 

be considered small. 

75. In the Paging Third Report and 

Order, the Commission developed a 

small business size standard for ‘‘small 

businesses’’ and ‘‘very small businesses’’ 

for purposes of determining their 

eligibility for special provisions such as 

bidding credits and installment 

payments.65 A ‘‘small business’’ is an 

entity that, together with its affiliates 

and controlling principals, has average 

gross revenues not exceeding $15 

million for the preceding three years. 

Additionally, a ‘‘very small business’’ is 

an entity that, together with its affiliates 

and controlling principals, has average 

gross revenues that are not more than $3 

million for the preceding three years.66

The SBA has approved these small 

business size standards.67 An auction of 

Metropolitan Economic Area licenses 

commenced on February 24, 2000, and 

closed on March 2, 2000.68 Of the 2,499 

licenses auctioned, 985 were sold.69

Fifty-seven companies claiming small 

business status won 440 licenses.70 An 

auction of MEA and Economic Area 

(EA) licenses commenced on October 

30, 2001, and closed on December 5, 

2001. Of the 15,514 licenses auctioned, 

5,323 were sold.71 132 companies 

claiming small business status 

purchased 3,724 licenses. A third 

auction, consisting of 8,874 licenses in 

each of 175 EAs and 1,328 licenses in 

all but three of the 51 MEAs, 

commenced on May 13, 2003, and 

closed on May 28, 2003. Seventy-seven 

bidders claiming small or very small 

business status won 2,093 licenses.72

Currently, there are approximately 

24,000 Private Paging site-specific 

licenses and 74,000 Common Carrier 

Paging licenses. According to the 

Commission’s Trends in Telephone 

Service, 375 such carriers reported that 

they were engaged in the provision of 

either paging or ‘‘messaging service.’’ 73

Of these, the Commission estimates that 

370 are small, under the SBA-approved 

small business size standard.74 The 

Commission estimates that the majority 

of private and common carrier paging 

providers would qualify as small 

entities under the SBA definition. 

76. Air-Ground Radiotelephone 

Service. The Commission uses the SBA 

definition of small business size 

applicable to Wireless 

Telecommunications Carriers (except 

satellite), i.e., an entity employing no 

more than 1,500 persons.75 There are 

approximately 100 licensees in the AirGround Radiotelephone Service, and the 

Commission estimates that almost all of 

them qualify as small under the SBA 

small business size standard. 

77. Aviation and Marine Radio 

Services. Small businesses in the 

aviation and marine radio services use 

a very high frequency (VHF) marine or 

aircraft radio and, as appropriate, an 

emergency position-indicating radio 

beacon (and/or radar) or an emergency 

locator transmitter. The Commission has 

not developed a small business size 

standard specifically applicable to these 

small businesses. For purposes of this 

analysis, the Commission uses the SBA 

small business size standard for the 

category Wireless Telecommunications 

Carriers (except satellite), which is 

1,500 or fewer employees.76 Most 

applicants for recreational licenses are 

individuals. Approximately 47,750 ship 

station licensees, who hold 

approximately 56,250 ship station 

licenses, and approximately 27,700 

aircraft station licensees, who hold 

approximately 32,000 aircraft station 

licenses, operate domestically and are 

not subject to the radio carriage 

requirements of any statute or treaty. 

For purposes of our evaluations in this 

analysis, the Commission estimates that 

there are up to approximately 75,450 

licensees that are small businesses (or 

individuals) under the SBA standard. In 

addition, between December 3, 1998 

and December 14, 1998, the 

Commission held an auction of 42 VHF 

Public Coast licenses in the 157.1875– 

157.4500 MHz (ship transmit) and 

161.775–162.0125 MHz (coast transmit) 

bands. For purposes of the auction, the 

Commission defined a ‘‘small’’ business 

as an entity that, together with 

controlling interests and affiliates, has 

average gross revenues for the preceding 

three years not to exceed $15 million. In 

addition, a ‘‘very small’’ business is one 

that, together with controlling interests 

and affiliates, has average gross 

revenues for the preceding three years 

not to exceed $3 million.77 There are 

approximately 6,100 Marine Coast 

Service licenses, held by approximately 

3,600 licensees, and the Commission 

estimates that almost all of them qualify 

as ‘‘small’’ businesses under the above 

special small business size standards. 

78. Fixed Microwave Services. Fixed 

microwave services include common 


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78See 47 CFR 101 et seq. (formerly, part 21 of the 

Commission’s Rules) for common carrier fixed 

microwave services (except Multipoint Distribution 

Service). 

79Persons eligible under parts 80 and 90 of the 

Commission’s Rules can use Private OperationalFixed Microwave services. See 47 CFR parts 80 and 

90. Stations in this service are called operationalfixed to distinguish them from common carrier and 

public fixed stations. Only the licensee may use the 

operational-fixed station, and only for 

communications related to the licensee’s 

commercial, industrial, or safety operations. 

80Auxiliary Microwave Service is governed by 

part 74 of Title 47 of the Commission’s rules. See 

47 CFR part 74. This service is available to licensees 

of broadcast stations and to broadcast and cable 

network entities. Broadcast auxiliary microwave 

stations are used for relaying broadcast television 

signals from the studio to the transmitter, or 

between two points such as a main studio and an 

auxiliary studio. The service also includes mobile 

television pickups, which relay signals from a 

remote location back to the studio. 

81 13 CFR 121.201, NAICS code 517210. 

82This service is governed by Subpart I of Part 

22 of the Commission’s rules. See 47 CFR 22.1001 

through 22.1037. 

83 13 CFR 121.201, NAICS code 517210. 

84See Amendment of the Commission’s Rules 

Regarding the 37.0–38.6 GHz and 38.6–40.0 GHz 

Bands, ET Docket No. 95–183, Report and Order, 63 

FR 6079 (Feb. 6, 1998). 

85 Id. 

86See Letter to Kathleen O’Brien Ham, Chief, 

Auctions and Industry Analysis Division, Wireless 

Telecommunications Bureau, FCC, from Aida 

Alvarez, Administrator, SBA (Feb. 4, 1998). 

87See 47 CFR part 21, subpart K; Amendment of 

Parts 1, 21, 73, 74 and 101 of the Commission’s 

Rules to Facilitate the Provision of Fixed and 

Mobile Broadband Access, Educational and Other 

Advanced Services in the 2150–2162 and 2500– 

2690 MHz Bands; Part 1 of the Commission’s 

Rules—Further Competitive Bidding Procedures; 

Amendment of Parts 21 and 74 to Enable 

Multipoint Distribution Service and the 

Instructional Television Fixed Service Amendment 

of Parts 21 and 74 to Engage in Fixed Two-Way 

Transmissions; Amendment of Parts 21 and 74 of 

the Commission’s Rules With Regard to Licensing 

in the Multipoint Distribution Service and in the 

Instructional Television Fixed Service for the Gulf 

of Mexico, 19 FCC Rcd 14165 (2004) (‘‘MDS/ITFS 

Order’’). 

88See 47 CFR part 74, subpart I; MDS/ITFS Order, 

19 FCC Rcd 14165 (2004). 

89See Annual Assessment of the Status of 

Competition in the Market for the Delivery of Video 

Programming, Eleventh Annual Report, 20 FCC Rcd 

2507, 2565 para. 131 (2006) (‘‘2006 Cable 

Competition Report’’). 90 Id. 91 13 CFR 121.201, NAICS code 515210. 92 13 CFR 121.201, NAICS code 517210. 93MDS Auction No. 6 began on November 13, 

1995, and closed on March 28, 1996. (67 Bidders 

won 493 licenses.) 94 47 CFR 21.961(b)(1). 95See ITFS Order, 10 FCC Rcd at 9589. 

carrier,78 private operational-fixed,79

and broadcast auxiliary radio services.80

At present, there are approximately 

31,428 common carrier fixed licensees 

and 79,732 private operational-fixed 

licensees and broadcast auxiliary radio 

licensees in the microwave services. 

The Commission has not created a size 

standard for a small business 

specifically with respect to fixed 

microwave services. For purposes of 

this analysis, the Commission uses the 

SBA small business size standard for the 

category ‘‘Wireless Telecommunications 

Carriers (except satellite),’’ which 

provides that a small business is a 

wireless company employing no more 

than 1,500 persons.81 The Commission 

does not have data specifying the 

number of these licensees that have 

more than 1,500 employees, and thus is 

unable at this time to estimate with 

greater precision the number of fixed 

microwave service licensees that would 

qualify as small business concerns 

under the SBA’s small business size 

standard. Consequently, the 

Commission estimates that there are up 

to 31,428 common carrier fixed 

licensees and up to 79,732 private 

operational-fixed licensees and 

broadcast auxiliary radio licensees in 

the microwave services that may be 

small and may be affected by the rules 

and policies adopted herein. The 

Commission notes, however, that the 

common carrier microwave fixed 

licensee category includes some large 

entities. 

79. Offshore Radiotelephone Service. 

This service operates on several UHF 

television broadcast channels that are 

not used for television broadcasting in 

the coastal areas of states bordering the 

Gulf of Mexico.82 There is presently one 

licensee in this service. The 

Commission uses the SBA definition 

applicable to Wireless 

Telecommunications Carriers (except 

satellite), i.e., an entity employing no 

more than 1,500 persons.83 The 

Commission is unable to estimate at this 

time the number of licensees that would 

qualify as small entities under the SBA 

definition. The Commission assumes, 

for purposes of this analysis, that the 

licensee is a small entity, as that term 

is defined by the SBA. 

80. 39 GHz Service. The Commission 

created a special small business size 

standard for 39 GHz licenses—an entity 

that has average gross revenues of $40 

million or less in the three previous 

calendar years.84 An additional size 

standard for ‘‘very small business’’ is: an 

entity that, together with affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years.85 The SBA has approved 

these small business size standards.86

The auction of the 2,173 39 GHz 

licenses began on April 12, 2000, and 

closed on May 8, 2000. The 18 bidders 

who claimed small business status won 

849 licenses. Consequently, the 

Commission estimates that 18 or fewer 

39 GHz licensees are small entities that 

may be affected by the rules and polices 

adopted herein. 

81. Broadband Radio Service and 

Educational Broadband Service. The 

Broadband Radio Service (‘‘BRS’’), 

formerly known as the Multipoint 

Distribution Service (‘‘MDS’’),87 and the 

Educational Broadband Service (‘‘EBS’’), 

formerly known as the Instructional 

Television Fixed Service (‘‘ITFS’’),88 use 

2 GHz band frequencies to transmit 

video programming and provide 

broadband services to residential 

subscribers.89 These services, 

collectively referred to as ‘‘wireless 

cable,’’ were originally designed for the 

delivery of multichannel video 

programming, similar to that of 

traditional cable systems, but over the 

past several years licensees have 

focused their operations instead on 

providing two-way high-speed Internet 

access services.90 The Commission 

estimates that the number of wireless 

cable subscribers is approximately 

100,000, as of March 2005. The SBA 

small business size standard for the 

broad census category of Cable and 

Other Program Distribution, which 

consists of such entities generating 

$13.5 million or less in annual receipts, 

appears applicable to MDS and ITFS.91

Note that the census category of ‘‘Cable 

and Other Program Distribution’’ is no 

longer used and has been superseded by 

the larger category ‘‘Wireless 

Telecommunications Carriers (except 

satellite).’’ This category provides that a 

small business is a wireless company 

employing no more than 1,500 

persons.92 However, since currently 

available data was gathered when ‘‘Cable 

and Other Program Distribution’’ was 

the relevant category, earlier Census 

Bureau data collected under the 

category of ‘‘Cable and Other Program 

Distribution’’ will be used here. Other 

standards also apply, as described. 

82. The Commission has defined 

small MDS (now BRS) entities in the 

context of Commission license auctions. 

In the 1996 MDS auction,93 the 

Commission defined a small business as 

an entity that had annual average gross 

revenues of less than $40 million in the 

previous three calendar years.94 This 

definition of a small entity in the 

context of MDS auctions has been 

approved by the SBA.95 In the MDS 

auction, 67 bidders won 493 licenses. Of 

the 67 auction winners, 61 claimed 

status as a small business. At this time, 

the Commission estimates that of the 61 

small business MDS auction winners, 48 

remain small business licensees. In 

addition to the 48 small businesses that 

hold BTA authorizations, there are 

hundreds of MDS licensees and wireless 

cable operators that did not receive their 


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96Hundreds of stations were licensed to 

incumbent MDS licensees prior to implementation 

of Section 309(j) of the Communications Act of 

1934, 47 U.S.C. 309(j). For these pre-auction 

licenses, the applicable standard is SBA’s small 

business size standard for ‘‘Cable and Other 

Program Distribution’’ (annual receipts of $13.5 

million or less). See 13 CFR 121.201, NAICS code 

515210. 

97 In addition, the term ‘‘small entity’’ under 

SBREFA applies to small organizations (nonprofits) 

and to small governmental jurisdictions (cities, 

counties, towns, townships, villages, school 

districts, and special districts with populations of 

less than 50,000). 5 U.S.C. 601(4) through (6). The 

Commission does not collect annual revenue data 

on EBS licensees. 

98See Local Multipoint Distribution Service, 

Second Report and Order, 12 FCC Rcd 12545 

(1997). 

99 Id. 

100See id. 

101See Letter to Dan Phythyon, Chief, Wireless 

Telecommunications Bureau, FCC, from Aida 

Alvarez, Administrator, SBA (Jan. 6, 1998). 

102See ‘‘Interactive Video and Data Service 

(IVDS) Applications Accepted for Filing,’’ Public 

Notice, 9 FCC Rcd 6227 (1994). 

103 Implementation of Section 309(j) of the 

Communications Act—Competitive Bidding, PP 

Docket No. 93–253, Fourth Report and Order, 9 FCC 

Rcd 2330 (1994). 59 FR 24947 (May 13, 1994). 

104Amendment of Part 95 of the Commission’s 

Rules to Provide Regulatory Flexibility in the 218– 

219 MHz Service, WT Docket No. 98–169, Report 

and Order and Memorandum Opinion and Order, 

15 FCC Rcd 1497 64 FR 59656 (Nov. 3, 1999). 

105 Id. 

106See Letter from Aida Alvarez, Administrator, 

SBA, to Daniel Phythyon, Chief, WTB, FCC (Jan. 6, 

1998) (‘‘Alvarez to Phythyon Letter 1998’’). 

107 13 CFR 121.201, NAICS code 517210. 

108Teligent acquired the DEMS licenses of 

FirstMark, the only licensee other than TRW in the 

24 GHz band whose license has been modified to 

require relocation to the 24 GHz band. 

109Amendments to Parts 1, 2, 87 and 101 of the 

Commission’s Rules to License Fixed Services at 24 

GHz, Report and Order, 15 FCC Rcd 16934, 16967 

(2000); see also 47 CFR 101.538(a)(2). 

110Amendments to Parts 1, 2, 87 and 101 of the 

Commission’s Rules to License Fixed Services at 24 

GHz, Report and Order, 15 FCC Rcd 16934, 16967 

(2000); see also 47 CFR 101.538(a)(1). 

111See Letter to Margaret W. Wiener, Deputy 

Chief, Auctions and Industry Analysis Division, 

Continued 

licenses as a result of the MDS auction 

and that fall under the former SBA 

small business size standard for Cable 

and Other Program Distribution.96

Information available to us indicates 

that there are approximately 850 of 

these licensees and operators that do not 

generate revenue in excess of $13.5 

million annually. Therefore, the 

Commission estimates that there are 

approximately 850 of these small entity 

MDS (or BRS) providers, as defined by 

the SBA and the Commission’s auction 

rules. 

83. Educational institutions are 

included in this analysis as small 

entities; however, the Commission has 

not created a specific small business 

size standard for ITFS (now EBS).97 The 

Commission estimates that there are 

currently 2,452 EBS licenses, held by 

1,524 EBS licensees, and all but 100 of 

the licenses are held by educational 

institutions. Thus, the Commission 

estimates that at least 1,424 EBS 

licensees are small entities. 

84. Local Multipoint Distribution 

Service. Local Multipoint Distribution 

Service (LMDS) is a fixed broadband 

point-to-multipoint microwave service 

that provides for two-way video 

telecommunications.98 The auction of 

the 986 Local Multipoint Distribution 

Service (LMDS) licenses began on 

February 18, 1998, and closed on March 

25, 1998. The Commission established a 

small business size standard for LMDS 

licenses as an entity that has average 

gross revenues of less than $40 million 

in the three previous calendar years.99

An additional small business size 

standard for ‘‘very small business’’ was 

added as an entity that, together with its 

affiliates, has average gross revenues of 

not more than $15 million for the 

preceding three calendar years.100 The 

SBA has approved these small business 

size standards in the context of LMDS 

auctions.101 There were 93 winning 

bidders that qualified as small entities 

in the LMDS auctions. A total of 93 

small and very small business bidders 

won approximately 277 A Block 

licenses and 387 B Block licenses. On 

March 27, 1999, the Commission reauctioned 161 licenses; there were 40 

winning bidders. 

85. 218–219 MHz Service. The first 

auction of 218–219 MHz (previously 

referred to as the Interactive and Video 

Data Service or IVDS) spectrum resulted 

in 178 entities winning licenses for 594 

Metropolitan Statistical Areas 

(‘‘MSAs’’).102 Of the 594 licenses, 567 

were won by 167 entities qualifying as 

small businesses. For that auction, the 

Commission defined a small business as 

an entity that, together with its affiliates, 

has no more than a $6 million net worth 

and, after federal income taxes 

(excluding any carry over losses), has no 

more than $2 million in annual profits 

each year for the previous two years.103

In the 218–219 MHz Report and Order 

and Memorandum Opinion and Order, 

the Commission defined a small 

business as an entity that, together with 

its affiliates and persons or entities that 

hold interests in such an entity and 

their affiliates, has average annual gross 

revenues not exceeding $15 million for 

the preceding three years.104 A very 

small business is defined as an entity 

that, together with its affiliates and 

persons or entities that hold interests in 

such an entity and its affiliates, has 

average annual gross revenues not 

exceeding $3 million for the preceding 

three years.105 The SBA has approved of 

these definitions.106 A subsequent 

auction is not yet scheduled. Given the 

success of small businesses in the 

previous auction, and the prevalence of 

small businesses in the subscription 

television services and message 

communications industries, the 

Commission assumes for purposes of 

this analysis that in future auctions, 

many, and perhaps most, of the licenses 

may be awarded to small businesses. 

86. 24 GHz—Incumbent Licensees. 

This analysis may affect incumbent 

licensees who were relocated to the 24 

GHz band from the 18 GHz band, and 

applicants who wish to provide services 

in the 24 GHz band. The applicable SBA 

small business size standard was 

formerly that of ‘‘Cellular and Other 

Wireless Telecommunications’’ 

companies. Note that the census 

category of ‘‘Cellular and Other Wireless 

Telecommunications’’ is no longer used 

and has been superseded by the larger 

category ‘‘Wireless Telecommunications 

Carriers (except satellite).’’ This category 

provides that a small business is a 

wireless company employing no more 

than 1,500 persons.107 However, since 

currently available data was gathered 

when ‘‘Cellular and Other Wireless 

Telecommunications’’ was the relevant 

category, earlier Census Bureau data 

collected under the category of ‘‘Cellular 

and Other Wireless 

Telecommunications’’ will be used here. 

The Commission believes that there are 

only two licensees in the 24 GHz band 

that were relocated from the 18 GHz 

band, Teligent 108 and TRW, Inc. It is 

our understanding that Teligent and its 

related companies have fewer than 

1,500 employees, though this may 

change in the future. TRW is not a small 

entity. Thus, only one incumbent 

licensee in the 24 GHz band is a small 

business entity. 

87. 24 GHz—Future Licensees. With 

respect to new applicants in the 24 GHz 

band, the small business size standard 

for ‘‘small business’’ is an entity that, 

together with controlling interests and 

affiliates, has average annual gross 

revenues for the three preceding years 

not in excess of $15 million.109 ‘‘Very 

small business’’ in the 24 GHz band is 

an entity that, together with controlling 

interests and affiliates, has average gross 

revenues not exceeding $3 million for 

the preceding three years.110 The SBA 

has approved these small business size 

standards.111 These size standards will 

apply to the future auction, if held. 


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Wireless Telecommunications Bureau, FCC, from 

Gary M. Jackson, Assistant Administrator, SBA 

(July 28, 2000). 

112 13 CFR 121.201, North American Industry 

Classification System (NAICS) code 517210. 

113Federal Communications Commission, 60th 

Annual Report, Fiscal Year 1994, at paragraph 116. 

114 47 CFR 1.1162. 

115 5 U.S.C. 601(5). 

116Amendment of Part 90 of the Commission’s 

Rules to Adopt Regulations for Automatic Vehicle 

Monitoring Systems, Second Report and Order, 13 

FCC Rcd 15182 para. 20 (1998); see also 47 CFR 

90.1103. 

117 Id. 

118See Letter to Thomas J. Sugrue, Chief, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, from Aida Alvarez, 

Administrator, Small Business Administration (Feb. 

22, 1999). 

119See Amendment of the Commission’s Rules 

Regarding Multiple Address Systems, Report and 

Order, 15 FCC Rcd 11956, 12008 para. 123 (2000). 

120 Id. 

121See Letter to Thomas Sugrue, Chief, Wireless 

Telecommunications Bureau, Federal 

Communications Commission, from Aida Alvarez, 

Administrator, Small Business Administration, 

dated June 4, 1999. 

122 13 CFR 121.201, North American Industry 

Classification System (NAICS) code 517210. 

123 Id. 

124See 13 CFR 121.201, NAICS Code 515120. 

88. Private Land Mobile Radio. Private 

Land Mobile Radio (‘‘PLMR’’) systems 

serve an essential role in a range of 

industrial, business, land transportation, 

and public safety activities. These 

radios are used by companies of all sizes 

operating in all U.S. business categories. 

The SBA has not developed a definition 

of small entity specifically applicable to 

PLMR licensees due to the vast array of 

PLMR users. Therefore, solely for 

purposes of citing to currently available 

data, the Commission will use a 

superseded SBA definition applicable to 

Cellular and Other Wireless 

Telecommunications. Note that the 

census category of ‘‘Cellular and Other 

Wireless Telecommunications’’ is no 

longer used and has been superseded by 

the larger category ‘‘Wireless 

Telecommunications Carriers (except 

satellite).’’ This category provides that a 

small business is a wireless company 

employing no more than 1,500 

persons.112 However, since currently 

available data was gathered when 

‘‘Cellular and Other Wireless 

Telecommunications’’ was the relevant 

category, earlier Census Bureau data 

collected under the category of ‘‘Cellular 

and Other Wireless 

Telecommunications’’ will be used here. 

89. The Commission is unable at this 

time to estimate the number of small 

businesses which could be impacted by 

the rules. The Commission’s 1994 

Annual Report on PLMRs 113 indicates 

that at the end of fiscal year 1994 there 

were 1,087,267 licensees operating 

12,481,989 transmitters in the PLMR 

bands below 512 MHz. Because any 

entity engaged in a commercial activity 

is eligible to hold a PLMR license, the 

revised rules in this context could 

potentially impact every small business 

in the United States. 

90. Public Safety Radio Services. 

Public Safety radio services include 

police, fire, local government, forestry 

conservation, highway maintenance, 

and emergency medical services. There 

are a total of approximately 44,083 

licensees within these services. 

Governmental entities 114 as well as 

private businesses comprise the 

licensees for these services. All 

governmental entities with populations 

of less than 50,000 fall within the 

definition of a small entity.115

91. Location and Monitoring Service 

(‘‘LMS’’). Multilateration LMS systems 

use non-voice radio techniques to 

determine the location and status of 

mobile radio units. For purposes of 

auctioning LMS licenses, the 

Commission has defined ‘‘small 

business’’ as an entity that, together with 

controlling interests and affiliates, has 

average annual gross revenues for the 

preceding three years not to exceed $15 

million.116 A ‘‘very small business’’ is 

defined as an entity that, together with 

controlling interests and affiliates, has 

average annual gross revenues for the 

preceding three years not to exceed $3 

million.117 These definitions have been 

approved by the SBA.118 An auction for 

LMS licenses commenced on February 

23, 1999, and closed on March 5, 1999. 

Of the 528 licenses auctioned, 289 

licenses were sold to four small 

businesses. The Commission concludes 

that the number of LMS licensees 

affected by this Report and Order 

includes these four entities. The 

Commission cannot accurately predict 

the number of remaining licenses that 

could be awarded to small entities in 

future LMS auctions. In addition, there 

are numerous site-by-site nonmultilateration licensees, and the 

Commission does not know how many 

of these providers have annual revenues 

of no more than $15 million. The 

Commission assumes, for purposes of 

this analysis, that all of these licenses 

are held by small entities, as that small 

business size standard is established by 

the SBA. 

92. Multiple Address Systems. Entities 

using Multiple Address Systems (MAS) 

spectrum, in general, fall into two 

categories: (1) Those using the spectrum 

for profit-based uses, and (2) those using 

the spectrum for private internal uses. 

With respect to the first category, the 

Commission defines ‘‘small entity’’ for 

MAS licensees as an entity that has 

average gross revenues of less than $15 

million in the three previous calendar 

years.119 ‘‘Very small business’’ is 

defined as an entity that, together with 

its affiliates, has average gross revenues 

of not more than $3 million for the 

preceding three calendar years.120 The 

SBA has approved of these 

definitions.121 The majority of these 

entities will most likely be licensed in 

bands where the Commission has 

implemented a geographic area 

licensing approach that would require 

the use of competitive bidding 

procedures to resolve mutually 

exclusive applications. The 

Commission’s licensing database 

indicates that, as of April 16, 2010, there 

were a total of 11,653 site-based MAS 

station authorizations. Of these, 58 

authorizations were associated with 

common carrier service. In addition, the 

Commission’s licensing database 

indicates that, as of April 16, 2010, there 

were a total of 3,330 EA market area 

MAS authorizations. 

93. With respect to the second 

category, which consists of entities that 

use, or seek to use, MAS spectrum to 

accommodate their own internal 

communications needs, MAS serves an 

essential role in a range of industrial, 

safety, business, and land transportation 

activities. MAS radios are used by 

companies of all sizes, operating in 

virtually all U.S. business categories, 

and by all types of public safety entities. 

For the majority of private internal 

users, the definitions developed by the 

SBA would be more appropriate than 

the Commission’s definition. The 

applicable definition of small entity in 

this instance appears to be the ‘‘Wireless 

Telecommunications Carriers (except 

satellite)’’ definition under the SBA 

rules.122 Under that SBA category, a 

business is small if it has 1,500 or fewer 

employees.123 The Commission’s 

licensing database indicates that, as of 

April 16, 2010, of the 11,653 total MAS 

station authorizations, 10,773 

authorizations were for private radio 

service. 

94. Television Broadcasting. The 

proposed rules and policies apply to 

television broadcast licensees and 

potential licensees of television service. 

The SBA defines a television broadcast 

station as a small business if such 

station has no more than $14 million in 

annual receipts.124 Business concerns 

included in this industry are those 

‘‘primarily engaged in broadcasting 


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125 Id. This category description continues, 

‘‘These establishments operate television 

broadcasting studios and facilities for the 

programming and transmission of programs to the 

public. These establishments also produce or 

transmit visual programming to affiliated broadcast 

television stations, which in turn broadcast the 

programs to the public on a predetermined 

schedule. Programming may originate in their own 

studios, from an affiliated network, or from external 

sources.’’ Separate census categories pertain to 

businesses primarily engaged in producing 

programming. See Motion Picture and Video 

Production, NAICS code 512110; Motion Picture 

and Video Distribution, NAICS Code 512120; 

Teleproduction and Other Post-Production 

Services, NAICS Code 512191; and Other Motion 

Picture and Video Industries, NAICS Code 512199. 

126See News Release, ‘‘Broadcast Station Totals as 

of December 31, 2009,’’ 2010 WL 676084 (F.C.C.) 

(dated Feb. 26, 2010) (‘‘Broadcast Station Totals’’); 

also available at http://www.fcc.gov/mb/. 

127The Commission recognizes that this total 

differs slightly from that contained in Broadcast 

Station Totals, supra note 446; however, the 

Commission is using BIA’s estimate for purposes of 

this revenue comparison. 

128See Broadcast Station Totals, supra note 126. 

129 ‘‘[Business concerns] are affiliates of each 

other when one concern controls or has the power 

to control the other or a third party or parties 

controls or has the power to control both.’’ 13 CFR 

121.103(a)(1). 

130See 13 CFR 121.201, NAICS Code 515120. 

131See Broadcast Station Totals, supra note 126. 

132See 13 CFR 121.201, NAICS Code 515112. 

133 Id. 

134 ‘‘[Business concerns] are affiliates of each 

other when one concern controls or has the power 

to control the other or a third party or parties 

controls or has to power to control both.’’ 13 CFR 

121.103(a)(1). 

135 See 13 CFR 121.201, NAICS Code 515112. 

136See News Release, ‘‘Broadcast Station Totals as 

of December 31, 2009’’ (rel. Feb. 26, 2010) (http: 

//hraunfoss.fcc.gov/edocs_public/attachmatch/ 

DOC–296538A1.pdf269784A1.doc). 

images together with sound.’’ 125 The 

Commission has estimated the number 

of licensed commercial television 

stations to be 1,392.126 According to 

Commission staff review of the BIA/ 

Kelsey, MAPro Television Database 

(‘‘BIA’’) as of April 7, 2010, about 1,015 

of an estimated 1,380 commercial 

television stations 127 (or about 74 

percent) have revenues of $14 million or 

less and thus qualify as small entities 

under the SBA definition. The 

Commission has estimated the number 

of licensed non-commercial educational 

(NCE) television stations to be 390.128

The Commission notes, however, that, 

in assessing whether a business concern 

qualifies as small under the above 

definition, business (control) 

affiliations 129 must be included. Our 

estimate, therefore, likely overstates the 

number of small entities that might be 

affected by our action, because the 

revenue figure on which it is based does 

not include or aggregate revenues from 

affiliated companies. The Commission 

does not compile and otherwise does 

not have access to information on the 

revenue of NCE stations that would 

permit it to determine how many such 

stations would qualify as small entities. 

95. In addition, an element of the 

definition of ‘‘small business’’ is that the 

entity not be dominant in its field of 

operation. The Commission is unable at 

this time to define or quantify the 

criteria that would establish whether a 

specific television station is dominant 

in its field of operation. Accordingly, 

the estimates of small businesses to 

which rules may apply do not exclude 

any television station from the 

definition of a small business on this 

basis and are therefore over-inclusive to 

that extent. Also as noted, an additional 

element of the definition of ‘‘small 

business’’ is that the entity must be 

independently owned and operated. 

The Commission notes that it is difficult 

at times to assess these criteria in the 

context of media entities and our 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

96. Class A TV, LPTV, and TV 

translator stations. The rules and 

policies proposed in this Notice include 

licensees of Class A TV stations, low 

power television (LPTV) stations, and 

TV translator stations, as well as 

potential licensees in these television 

services. The same SBA definition that 

applies to television broadcast licensees 

would apply to these stations. The SBA 

defines a television broadcast station as 

a small business if such station has no 

more than $14 million in annual 

receipts.130 Currently, there are 

approximately 537 licensed Class A 

stations, 2,386 licensed LPTV stations, 

and 4,359 licensed TV translators.131

Given the nature of these services, the 

Commission will presume that all of 

these licensees qualify as small entities 

under the SBA definition. The 

Commission notes, however, that under 

the SBA’s definition, revenue of 

affiliates that are not LPTV stations 

should be aggregated with the LPTV 

station revenues in determining whether 

a concern is small. Our estimate may 

thus overstate the number of small 

entities since the revenue figure on 

which it is based does not include or 

aggregate revenues from non-LPTV 

affiliated companies. The Commission 

does not have data on revenues of TV 

translator or TV booster stations, but 

virtually all of these entities are also 

likely to have revenues of less than $14 

million and thus may be categorized as 

small, except to the extent that revenues 

of affiliated non-translator or booster 

entities should be considered. 

97. Radio Broadcasting. The proposed 

rules and policies could apply to radio 

broadcast licensees, and potential 

licensees of radio service. The SBA 

defines a radio broadcast station as a 

small business if such station has no 

more than $7 million in annual 

receipts.132 Business concerns included 

in this industry are those primarily 

engaged in broadcasting aural programs 

by radio to the public.133 According to 

Commission staff review of the BIA/ 

Kelsey Master Access Radio Analyzer 

Database on April 7, 2010, about 10,900 

of 11,200 commercial radio stations (or 

about 97 percent) have revenues of $7 

million or less and thus qualify as small 

entities under the SBA definition. The 

Commission notes, however, that, in 

assessing whether a business concern 

qualifies as small under the above 

definition, business (control) 

affiliations 134 must be included. Our 

estimate, therefore, likely overstates the 

number of small entities that might be 

affected by our action, because the 

revenue figure on which it is based does 

not include or aggregate revenues from 

affiliated companies. 

98. In addition, an element of the 

definition of ‘‘small business’’ is that the 

entity not be dominant in its field of 

operation. The Commission is unable at 

this time to define or quantify the 

criteria that would establish whether a 

specific radio station is dominant in its 

field of operation. Accordingly, the 

estimates of small businesses to which 

rules may apply do not exclude any 

radio station from the definition of a 

small business on this basis and 

therefore may be over-inclusive to that 

extent. Also as noted, an additional 

element of the definition of ‘‘small 

business’’ is that the entity must be 

independently owned and operated. 

The Commission notes that it is difficult 

at times to assess these criteria in the 

context of media entities and our 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

99. FM translator stations and low 

power FM stations. The proposed rules 

and policies could affect licensees of 

FM translator and booster stations and 

low power FM (LPFM) stations, as well 

as potential licensees in these radio 

services. The same SBA definition that 

applies to radio broadcast licensees 

would apply to these stations. The SBA 

defines a radio broadcast station as a 

small business if such station has no 

more than $7 million in annual 

receipts.135 Currently, there are 

approximately 6,155 licensed FM 

translator and booster stations and 864 

licensed LPFM stations.136 Given the 

nature of these services, the 

Commission will presume that all of 


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137 13 CFR 121.201 (NAICS Code 517110). This 

NAICS Code applies to all services listed in this 

paragraph. 

138Those MVPDs relying primarily or exclusively 

on satellite transmission could also be considered 

to fall under the ‘‘Satellite Telecommunications’’ 

category. 13 CFR 121.201 (NAICS Code 517410). 

139Economics and Statistics Administration, 

Bureau of Census, U.S. Department of Commerce, 

1997 Economic Census, Subject Series— 

Establishment and Firm Size, Information Sector 

51, Table 4 at 50 (2000). The amount of $10 million 

was used to estimate the number of small business 

firms because the relevant Census categories 

stopped at $9,999,999 and began at $10,000,000. No 

category for $1412.5 million existed. Thus, the 

number is as accurate as it is possible to calculate 

with the available information. 

140 47 CFR 76.901(e). The Commission 

determined that this size standard equates 

approximately to a size standard of $100 million or 

less in annual revenues. The Commission 

developed this definition based on its 

determination that a small cable system operator is 

one with annual revenues of $100 million or less. 

See Implementation of Sections of the 1992 Cable 

Act: Rate Regulation, Sixth Report and Order and 

Eleventh Order on Reconsideration, 10 FCC Rcd 

7393, 7408 (1995). 

141Cable MSO Ownership, A Geographical 

Analysis, 2009 Edition, 14–31, SNL Kagan (June 

2009). 

142 Id. at 12. 

143 47 CFR 76.901(c). 

144 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & 

nn. 1–3.). 

145See Cable TV Investor: Deals & Finance, No. 

655, SNL Kagan, March 31, 2009, at 6. 

146 47 CFR 76.901(f); see Public Notice, FCC 

Announces New Subscriber Count for the 

Definition of Small Cable Operator, DA 01–158 

(Cable Services Bureau, Jan. 24, 2001). 

147Cable MSO Ownership at 12. 

148The Commission does receive such 

information on a case-by-case basis if a cable 

operator appeals a local franchise authority’s 

finding that the operator does not qualify as a small 

cable operator pursuant to Section 76.901(f) of the 

Commission’s rules. See 47 CFR 76.901(f). 149U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517410 Satellite Telecommunications’’; http:// 

www.census.gov/naics/2007/def/ND517410.HTM. 150 13 CFR 121.201, NAICS code 517410. 151U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

Firm Size (Including Legal Form of Organization),’’ 

Table 4, NAICS code 517410 (issued Nov. 2005). 152 Id. An additional 38 firms had annual receipts 

of $25 million or more. 153U.S. Census Bureau, 2007 NAICS Definitions, 

‘‘517919 All Other Telecommunications’’; http:// 

www.census.gov/naics/2007/def/ 

ND517919.HTM#N517919. 

154U.S. Census Bureau, 2002 Economic Census, 

Subject Series: Information, ‘‘Establishment and 

these licensees qualify as small entities 

under the SBA definition. 

100. Cable Television Systems. The 

proposed rules and policies could affect 

cable television systems. Cable 

television systems fall within the SBA 

standard for Wired Telecommunication 

Carriers, and in this category a business 

is small if it has 1500 or fewer 

employees.137 This category includes, 

among others, cable operators, direct 

broadcast satellite services, fixedsatellite services, home satellite dish 

services, multipoint distribution 

services, multichannel multipoint 

distribution service, Instructional 

Television Fixed Service, local 

multipoint distribution service, satellite 

master antenna television systems, and 

open video systems.138 Since currently 

available data was gathered when ‘‘Cable 

and Other Program Distribution’’ was 

the relevant category, earlier Census 

Bureau data collected under the 

category of ‘‘Cable and Other Program 

Distribution’’ will be used here. 

According to Census Bureau data, there 

are 1,311 total cable and other pay 

television service firms that operate 

throughout the year of which 1,180 have 

less than $10 million in revenue.139

Consequently, the Commission 

estimates that the majority of providers 

in this service category are small 

businesses that may be affected by the 

rules and policies adopted herein. The 

Commission addresses below each 

service individually to provide a more 

precise estimate of small entities. 

101. Cable System Operators (Rate 

Regulation Standard). The Commission 

has developed its own small business 

size standards 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.140 As of 2008, out of 814 141

cable operators all but 10, that is 804, 

qualify as small cable companies under 

this standard.142 In addition, under the 

Commission’s rules, a ‘‘small system’’ is 

a cable system serving 15,000 or fewer 

subscribers.143 Current Commission 

records show 6000 cable systems. Of 

these 726 have 20,000 subscribers or 

more, based on the same records. The 

Commission estimates that there are 

5,000 small systems based upon this 

standard. 

102. Cable System Operators 

(Telecom Act Standard). The 

Communications Act of 1934, as 

amended, also contains a size standard 

for small cable system operators, which 

is ‘‘a cable operator that, directly or 

through an affiliate, serves in the 

aggregate fewer than 1 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.’’ 144

There are approximately 63.7 million 

cable subscribers in the United States 

today.145 Accordingly, an operator 

serving fewer than 637,000 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.146 Based on available 

data, the Commission finds that the 

number of cable operators serving 

637,000 subscribers or less is also 

804.147 The Commission notes that the 

Commission neither requests nor 

collects information on whether cable 

system operators are affiliated with 

entities whose gross annual revenues 

exceed $250 million.148 Although it 

seems certain that some of these cable 

system operators are affiliated with 

entities whose gross annual revenues 

exceed $250,000,000, the Commission is 

unable at this time to estimate with 

greater precision the number of cable 

system operators that would qualify as 

small cable operators under the 

definition in the Communications Act. 

103. Satellite Telecommunications. 

The category of Satellite 

Telecommunications ‘‘comprises 

establishments 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.’’ 149 The category 

has a small business size standard of 

$15 million or less in average annual 

receipts, under SBA rules.150 For this 

category, Census Bureau data for 2002 

show that there were a total of 371 firms 

that operated for the entire year.151 Of 

this total, 307 firms had annual receipts 

of under $10 million, and 26 firms had 

receipts of $10 million to 

$24,999,999.152 Consequently, the 

Commission estimates that the majority 

of Satellite Telecommunications firms 

are small entities that might be affected 

by its action. 

104. All Other Telecommunications. 

Satellite-related businesses within this 

category include ‘‘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.’’ 153 For this category, Census 

Bureau data for 2002 show that there 

were a total of 332 firms that operated 

for the entire year.154 Of this total, 303 


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Firm Size Including Legal Form of Organization),’’ 

Table 4, NAICS code 517910 (issued Nov. 2005). 155 Id. An additional 14 firms had annual receipts 

of $25 million or more. 

156 47 CFR 17.4(a), 17.7(a). 

157The Commission notes, however, that 

approximately 13,000 towers are registered to 10 

cellular carriers with 1,000 or more employees. 

158 13 CFR 121.201, North American Industry 

Classification System (NAICS) code 517919. Under 

this category, a business is small if it has 1,500 or 

fewer employees. 

firms had annual receipts of under $10 

million and 15 firms had annual 

receipts of $10 million to 

$24,999,999.155 Consequently, the 

Commission estimates that the majority 

of All Other Telecommunications firms 

are small entities that might be affected 

by its action. 

105. Non-Licensee Tower Owners. The 

Commission’s rules require that any 

entity proposing to construct an antenna 

structure over 200 feet or within the 

glide slope of an airport must register 

the antenna structure with the 

Commission on FCC Form 854.156 Thus, 

non-licensee tower owners may be 

subject to any new or additional 

requirements adopted in this 

proceeding. As of April 14, 2010, there 

were 103,444 registration records in a 

‘Constructed’ status and 13,291 

registration records in a ‘Granted, Not 

Constructed’ status in the Antenna 

Structure Registration (ASR) database. 

This includes both towers registered to 

licensees and towers registered to nonlicensee tower owners. The Commission 

does not keep information from which 

the Commission can easily determine 

how many of these towers are registered 

to non-licensees or how many nonlicensees have registered towers.157 In 

addition, the Commission does not keep 

data on businesses with annual revenue 

over $25 million. Moreover, the SBA 

has not developed a size standard for 

small businesses in the category ‘‘Tower 

Owners.’’ Therefore, the Commission is 

unable to estimate the number of nonlicensee tower owners that are small 

entities. However, because these 

regulations impact tower owners, the 

Commission is choosing a category 

related to our jurisdiction because of the 

nexus between our regulatory function 

and telecommunications with respect to 

towers. The Commission will assume 

that nearly all non-licensee tower 

companies are small businesses under 

the SBA’s definition for ‘‘All Other 

Telecommunications.’’ 158

4. Description of Projected Reporting, 

Recordkeeping and Other Compliance 

Requirements 

106. This NPRM proposes to amend 

§ 17.4(g) by requiring that the Antenna 

Structure Registration Number be 

displayed so that it is conspicuously 

visible and legible from every point of 

ingress/egress to the publicly accessible 

area nearest the base of the antenna 

structure, instead of only near the base 

of the structure as before. If § 17.4(g) is 

amended, the owner of the structure 

would have to display the Antenna 

Structure Registration Number so that it 

is conspicuously visible and legible 

from potentially multiple locations near 

the base of the antenna structure instead 

of only at one location. 

107. The NPRM proposes to amend 

§ 17.48 by requiring antenna structure 

owners to provide continuously active 

notice to the FAA of lighting outages to 

allow the FAA to timely maintain 

Notices to Airmen (NOTAMs) or issue 

new NOTAMs, as necessary. 

Specifically, if the lights cannot be 

repaired within 15 days, the owner shall 

notify the FAA to extend the outage date 

and report a return to service date. The 

owner will repeat this process every 15 

days until the lights are repaired. If the 

amendment to § 17.48 is adopted, the 

owner of the structure would have to 

provide continuously active notice to 

the FAA of lighting outages, instead of 

the one time notice currently required. 

108. Although § 17.49 of the rules 

requires antenna structure owners to 

maintain a record of observed or 

otherwise known extinguishments or 

improper functioning of structure lights, 

it does not currently specify how long 

the record should be kept or what is to 

be done with it. The Notice proposes 

that the record be kept for two years and 

that it be provided to the Commission 

upon request. If adopted, antenna 

structure owners would be required to 

keep their records for two years and 

provide them to the Commission upon 

request. 

5. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

109. The Commission proposes to 

amend § 17.4(a) and §§ 17.21, 17.22 

(redesignated as § 17.21(c)), and 17.23 

and delete § 17.17(a) of the 

Commission’s rules regarding antenna 

structure registration and painting and 

lighting specifications. The Commission 

also proposes conforming edits to 

§§ 1.61(a)(5) and 17.1(b). These 

proposed changes are intended both to 

promote aircraft navigation safety and 

also to reduce regulatory burdens on 

small entities by clarifying the 

relationship between the Commission’s 

rules and procedures and those of the 

FAA and ensuring continued 

consistency in those rules and 

procedures. The Commission asks 

commenters to suggest alternatives that 

may further reduce the impact on small 

entities while achieving the above 

intended goals. The Commission 

specifically seeks comment on whether 

to further reduce regulatory burdens on 

small entities by amending § 17.17(b) 

(redesignated as § 17.24) to provide that 

a revised FAA Circular does not impose 

new obligations on already-approved 

antenna structures. The Commission 

seeks comment on whether such 

deregulatory action would unduly limit 

the Commission’s flexibility and 

whether it would afford appropriate 

deference to the FAA’s expertise and 

how possible alternatives could further 

lessen the burden on small businesses 

while achieving these goals. 

110. In order to clarify the obligations 

of antenna structure owners and 

conform the Commission’s regulations 

to Commission and FAA practice, the 

Commission proposes adding new 

sections to § 17.4 specifying that any 

change in height of one foot or greater, 

any change in coordinates of one second 

or greater, or any change in marking and 

lighting specifications requires prior 

approval from the FAA and the 

Commission. These proposed changes 

are intended both to promote aircraft 

navigation safety and to ease regulatory 

burdens by streamlining regulations and 

reducing confusion. The Commission 

also proposes to consider whether to 

specify accuracy standards or survey 

methods in order to ensure consistency 

of data. The Commission seeks to hear 

about alternative rules that would 

achieve the same goals while reducing 

burdens to small business. 

111. The Commission proposes to 

delete §§ 17.7 and 17.14 of the 

Commission’s rules, which are 

restatements of FAA rules, and to 

substitute cross-references to relevant 

FAA rules in § 17.4 of the Commission’s 

rules. This change could ease burdens 

on regulated entities, including small 

businesses, by reducing the risk of 

confusion in the event the FAA were to 

change its criteria. The Commission 

seeks any alternatives to these proposed 

changes that would further reduce 

burdens on small business while 

achieving these goals. 

112. The Commission proposes to 

amend its rules governing inspection 

and maintenance of lighting by: (1) 

Amending § 17.47 to eliminate or 

reduce requirements to perform 

inspections of lighting and light 

monitoring systems; (2) amending 

§ 17.48(a) to require antenna structure 

owners to provide continuously active 

notice to the FAA of lighting outages; 

and (3) deleting vague references to 

timely repair timeframes in §§ 17.48(b) 

and 17.56(a). The Commission seeks to 


srobinson on DSKHWCL6B1PROD with PROPOSALS
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receive suggestions as to possible 

alternatives in this area that would best 

balance the goal of eliminating 

unnecessary regulatory burdens with 

the imperative to preserve aircraft 

navigation safety, while reducing the 

burden on small entities. 

113. The Commission proposes to 

delete §§ 17.45, 17.51, and 17.56(b), 

which set forth specific requirements for 

exhibiting and maintaining lights, 

because they are unnecessary and may 

create ambiguity in cases of conflict 

with FAA specifications. These 

proposed changes are intended both to 

promote aircraft navigation safety and to 

ease regulatory burdens on all regulated 

entities by streamlining regulations and 

reducing confusion. The Commission 

determined not to propose an exception 

to lighting requirements where lights are 

extinguished due to a loss of power 

beyond the owner’s control because 

such an exception appears inconsistent 

with aircraft navigation safety. The 

Commission seeks alternative proposals, 

if any such proposals would reduce the 

burden on small entities. 

114. § 17.49 requires antenna 

structure owners to maintain a record of 

observed or otherwise known 

extinguishments or improper 

functioning of structure lights. The 

Commission proposes to add a 

requirement to maintain such records 

for two years and provide the records to 

the Commission upon request in order 

to balance the Commission’s need to 

determine the compliance record 

against the burden of record retention 

on antenna structure owners. The 

Commission tentatively concludes that 

this proposal best balances the 

Commission’s need for a compliance 

record against the burden of record 

retention. The Commission seeks to 

receive alternative proposals based on 

data regarding the burden this record 

retention would impose on antenna 

structure owners, including the 

alternative of eliminating the 

recordkeeping requirement entirely. 

Such alternative proposals should 

address the issue of reducing burdens 

on small business. 

115. The Commission requests 

comment on whether to amend § 17.50 

to require use of the FAA’s ‘‘In Service 

Aviation Orange Tolerance Chart’’ to 

determine whether a structure needs to 

be cleaned or repainted and to specify 

how the chart is to be used. These 

changes may provide more objective 

standards for gauging visibility. The 

Commission seeks alternative proposals 

that would achieve this goal while 

further reducing the burden on small 

business. 

116. The Commission proposes to 

amend § 17.2(a) of the Commission’s 

rules to clarify both when a structure 

becomes, and when a structure ceases to 

be, an ‘‘antenna structure’’ under its 

rules. The Commission also proposes to 

amend § 17.2(c) of the Commission’s 

rules to clarify that the obligations of an 

‘‘antenna structure owner’’ fall only on 

the owner of the underlying structure, 

and not on tenants, thus promoting 

clarity for all parties. The Commission 

seeks to receive alternate proposals that 

address the effects of these proposed 

rule changes in general, and more 

specifically on small entities. 

117. The Commission asks 

commenters to address alternatives 

regarding whether the rules concerning 

antenna structures should be enforced 

against voluntarily registered structures, 

whether owners of antenna structures 

that do not require registration should 

be prohibited from registering their 

towers, and whether antenna structure 

owners who have voluntarily registered 

structures should be required to 

withdraw their registrations from the 

Commission’s antenna structure 

database. Such action could reduce 

confusion by clarifying the regulatory 

status of these structures. The 

Commission seeks to receive alternate 

proposals addressing the benefits and 

drawbacks of such action, particularly 

with respect to its impact on antenna 

structure owners that are small 

businesses. 

118. The Commission proposes to 

modify § 17.4(g) to require that antenna 

structure owners display the ASR 

number so that it would be visible to a 

member of the general public who 

reaches the closest publicly accessible 

location near each point of access to the 

antenna structure. The Commission 

further proposes to delete the 

requirement that the ASR number be 

posted near the base of the antenna 

structure. The Commission tentatively 

concludes that amending the rule in this 

manner would clarify the obligations of 

antenna structure owners, promote 

timely remediation when lighting is 

observed to be malfunctioning or 

extinguished, and eliminate 

unnecessary postings. The Commission 

seeks alternate proposals that would 

best achieve these goals while reducing 

the burdens on small business. 

119. Section 17.4(f) requires that 

antenna structure owners immediately 

provide copies of FCC Form 854R 

(antenna structure registration) to each 

tenant licensee and permittee. Sections 

17.4(e) and 17.6(c) impose a similar 

requirement on the first licensee where 

the antenna structure owner is unable to 

file Form 854 because it is subject to a 

denial of Federal benefits under the 

Anti-Drug Abuse Act of 1988. The 

Commission proposes to amend these 

rules to allow the alternative of 

providing a link to the Commission’s 

antenna structure registration Web site 

via paper or electronic mail. The 

Commission tentatively concludes that 

this proposal would best reduce the 

burden on regulated entities, including 

small businesses, while ensuring that 

tenant licensees and permittees remain 

informed. Thus, the Commission 

determined not to propose eliminating 

this requirement altogether or simply 

requiring antenna structure owners to 

provide their tenants with the ASR 

number. The Commission seeks 

alternative proposals that would achieve 

its goals. 

120. The Commission determined not 

to propose eliminating § 17.57 to 

increase to five days the time period for 

notifying the Commission of 

construction, dismantlement, and 

changes in height or ownership. The 

Commission notes that the existing time 

periods have not been shown to be 

inconsistent with FAA requirements 

and that they promote the accuracy of 

the Commission’s information. The 

Commission seeks discussion of 

alternate proposals that will reduce 

burdens on small business, including 

discussion of any burdens the existing 

rule may impose. 

121. The Commission proposes to 

delete § 17.58, which was intended to 

promote compliance with procedures 

that are now obsolete. This change 

would streamline the antenna structure 

registration process, thereby easing the 

burden on regulated entities. The 

Commission seeks discussion of any 

alternative proposals that would also 

reduce burdens on small entities. 

122. For each of the proposals in the 

Notice, the Commission seeks 

discussion, and where relevant, 

alternative proposals, on the effect that 

each prospective new requirement, or 

alternative rules, might have on small 

entities. For each proposed rule or 

alternative, the Commission seeks 

discussion about the burden that the 

prospective regulation would impose on 

small entities and how the Commission 

could impose such regulations while 

minimizing the burdens on small 

entities. For each proposed rule, the 

Commission asks whether there are any 

alternatives the Commission could 

implement that could achieve the 

Commission’s goals while at the same 

time minimizing the burdens on small 

entities. For the duration of this 

docketed proceeding, the Commission 

will continue to examine alternatives 

with the objectives of eliminating 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 98 / Friday, May 21, 2010 / Proposed Rules 28537 

unnecessary regulations and minimizing 

any significant economic impact on 

small entities. 

6. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

123. None. 

B. Initial Paperwork Reduction Act 

124. This document contains 

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. Public and 

agency comments are due July 20, 2010. 

125. Comments should address: (a) 

Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Commission, including whether the 

information shall have practical utility; 

(b) the accuracy of the Commission’s 

burden estimates; (c) ways to enhance 

the quality, utility, and clarity of the 

information collected; and (d) ways to 

minimize the burden of the collection of 

information on the respondents, 

including the use of automated 

collection techniques or other forms of 

information technology. In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

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

the Commission seeks specific comment 

on how the Commission might further 

reduce the information collection 

burden for small business concerns with 

fewer than 25 employees. 

126. OMB Control Number: None. 

127. Title: Part 17 Construction, 

Marking, and Lighting of Antenna 

Structures. 

128. Form No.: None. 

129. Type of Review: New collection. 

130. Respondents: Business or other 

for-profit; Not-for-profit institutions; 

and State, Local or Tribal Governments. 

131. Number of Respondents: 22,000. 

132. Number of Responses: 258,570. 

133. Estimated Time per Response: .1 

hr. to 3 hrs. on average. 

134. Frequency of Response: On 

occasion reporting requirement, 

recordkeeping requirement and third 

party disclosure requirement. 

135. Obligation to Respond: Required 

to obtain or retain benefits. Statutory 

authority for this information collection 

is contained in sections 4(i), 4(j), 11 and 

303(q) of the Communications Act of 

1934, as amended, 47 U.S.C. 154(i) 

through (j), 161, and 303(q). 

136. Total Annual Burden: 378,027 

hours. 

137. Total Annual Costs: $1,287,000. 

138. Privacy Act Impact Assessment: 

No impact. 

139. Nature and Extent of 

Confidentiality: There is no need for 

confidentiality. 

140. Needs and Uses: The 

Commission is requesting OMB 

approval for disclosure, reporting, and 

record keeping requirements pertaining 

to part 17 of the Commission’s rules. In 

order to clarify the obligations of 

antenna structure owners and conform 

the Commission’s regulations to 

Commission and FAA practice, the 

Commission proposes changes to certain 

sections of the Commission’s part 17 

rules. These proposed changes are 

intended both to promote aircraft 

navigation safety and to ease regulatory 

burdens by streamlining regulations and 

reducing confusion. The new 

information collection requirements 

contained in the proposed part 17 

amendments are necessary to 

implement a uniform registration 

process as well as safe and effective 

lighting procedures for owners of 

antenna structures. The following are 

the information collection requirements: 

• 17.4(j)—Antenna structure owners 

must display the Antenna Structure 

Registration (ASR) number so that it 

would be visible to a member of the 

general public who reaches the closest 

publicly accessible location near each 

point of access to the antenna structure; 

• 17.48—Antenna structure owners 

must provide continuously active notice 

to the FAA of antenna structure lighting 

outages; 

• 17.49—Antenna structure owners 

must maintain a record of observed or 

otherwise known extinguishments or 

improper functioning of structure lights 

for two years and provide the records to 

the Commission upon request. 

141. The Commission tentatively 

concludes that these collections are 

necessary to effectuate the above rule 

changes that clarify the obligations of 

antenna structure owners, ensure 

aircraft navigation safety when lighting 

is observed to be malfunctioning or 

extinguished, and eliminate 

unnecessary postings. 

C. Other Procedural Matters 

1. Ex Parte Presentations 

142. The rulemaking shall be treated 

as a ‘‘permit-but-disclose’’ proceeding in 

accordance with the Commission’s ex 

parte rules. Persons making oral ex 

parte presentations are reminded that 

memoranda summarizing the 

presentations must contain summaries 

of the substance of the presentations 

and not merely a listing of the subjects 

discussed. More than a one or two 

sentence description of the views and 

arguments presented generally is 

required. Other requirements pertaining 

to oral and written presentations are set 

forth in § 1.1206(b) of the Commission’s 

rules. 

2. Comment Filing Procedures 

143. Pursuant to §§ 1.415 and 1.419 of 

the Commission’s rules, 47 CFR 1.415, 

1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated on the first 

page of this document. All filings 

related to this Notice of Proposed 

Rulemaking should refer to WT Docket 

No. 10–88. Comments may be filed 

using: (1) The Commission’s Electronic 

Comment Filing System (ECFS), (2) the 

Federal Government’s eRulemaking 

Portal, or (3) by filing paper copies. See 

Electronic Filing of Documents in 

Rulemaking Proceedings, 63 FR 24121 

(1998). 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the Web site for submitting 

comments. 

• ECFS filers must transmit one 

electronic copy of the comments for WT 

Docket No. 10–88. In completing the 

transmittal screen, filers should include 

their full name, U.S. Postal Service 

mailing address, and the applicable 

docket number. Parties may also submit 

an electronic comment by Internet 

e-mail. To get filing instructions, filers 

should send an e-mail to ecfs@fcc.gov, 

and include the following words in the 

body of the message, ‘‘get form.’’ A 

sample form and directions will be sent 

in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. Filings can be 

sent by hand or messenger delivery, by 

commercial overnight courier, or by 

first-class or overnight U.S. Postal 

Service mail (although the Commission 

continues to experience delays in 

receiving U.S. Postal Service mail). All 

filings must be addressed to the 

Commission’s Secretary, Marlene H. 

Dortch, Office of the Secretary, Federal 

Communications Commission, 445 12th 

Street, SW., Washington, DC 20554. 

• All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th Street, SW., Room TW–A325, 

Washington, DC 20554. The filing hours 


srobinson on DSKHWCL6B1PROD with PROPOSALS
28538 Federal Register / Vol. 75, No. 98 / Friday, May 21, 2010 / Proposed Rules 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

144. Parties should send a copy of 

their filings to John Borkowski, Federal 

Communications Commission, Room 

6404, 445 12th Street, SW., Washington, 

DC 20554, or by e-mail to 

John.Borkowski@fcc.gov. Parties shall 

also serve one copy with the 

Commission’s copy contractor, Best 

Copy and Printing, Inc. (BCPI), Portals 

II, 445 12th Street, SW., Room CY–B402, 

Washington, DC 20554, (202) 488–5300, 

or via e-mail to fcc@bcpiweb.com. 

145. Documents in WT Docket No. 

10–88 will be available for public 

inspection and copying during business 

hours at the FCC Reference Information 

Center, Portals II, 445 12th Street SW., 

Room CY–A257, Washington, DC 20554. 

The documents may also be purchased 

from BCPI, telephone (202) 488–5300, 

facsimile (202) 488–5563, TTY (202) 

488–5562, e-mail fcc@bcpiweb.com. 

3. Accessible Formats 

146. To request materials in accessible 

formats for people with disabilities 

(Braille, large print, electronic files, 

audio format), send an e-mail to 

fcc504@fcc.gov or call the Consumer & 

Governmental Affairs Bureau at 202– 

418–0530 (voice) or 202–418–0432 

(TTY). 

V. Ordering Clauses 

147. Accordingly, it is ordered, 

pursuant to sections 4(i), 4(j), 11 and 

303(q) of the Communications Act of 

1934, as amended, 47 U.S.C. 154(i) 

through (j), 161, 303(q), that this Notice 

in WT Docket No. 10–88 is adopted. 

148. It is further ordered that the 

Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Notice, including the Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects 

47 CFR Part 1 

Reporting and recordkeeping 

requirements. 

47 CFR Part 17 

Aviation safety; Communications 

equipment; Reporting and 

recordkeeping requirements. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Proposed Rules 

For the reason discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

parts 1 and 17 as follows: 

PART 1—PRACTICE AND 

PROCEDURE 

1. The authority citation for part 1 

continues to read as follows: 

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 

151, 154(j), 155, 157, 225, and 303(r). 

2. Section 1.61 is amended by revising 

paragraph (a)(5) to read as follows: 

§ 1.61 Procedures for handling 

applications requiring special aeronautical 

study. 

(a)* * * 

(5) Upon receipt of FCC Form 854, 

and attached FAA final determination of 

‘‘no hazard,’’ the Bureau may prescribe 

antenna structure painting and/or 

lighting specifications or other 

conditions in accordance with the FAA 

airspace recommendation. Unless 

otherwise specified by the Bureau, the 

antenna structure must conform to the 

FAA’s painting and lighting 

recommendations set forth in the FAA’s 

determination of ‘‘no hazard’’ and the 

associated FAA study number. The 

Bureau returns a completed Antenna 

Structure Registration (FCC Form 854R) 

to the registrant. If the proposed 

structure is disapproved the registrant is 

so advised. 

* * * * * 

PART 17—CONSTRUCTION, 

MARKING, AND LIGHTING OF 

ANTENNA STRUCTURES 

3. The authority citation for part 17 

continues to read as follows: 

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

4. Section 17.1 is amended by revising 

paragraph (b) to read as follows: 

§ 17.1 Basis and purpose. 

* * * * * 

(b) The purpose of this part is to 

prescribe certain procedures for antenna 

structure registration and standards 

with respect to the Commission’s 

consideration of proposed antenna 

structures which will serve as a guide to 

antenna structure owners. 

5. Section 17.2 is amended by revising 

paragraphs (a), (b) and (c) to read as 

follows: 

§ 17.2 Definitions. 

(a) Antenna structure. The term 

antenna structure means a structure that 

is constructed or used for the primary 

purpose of supporting antennas to 

transmit and/or receive radio energy, 

and any antennas and other 

appurtenances mounted thereon, from 

the time construction of the supporting 

structure begins until such time as the 

supporting structure is dismantled. 

(b) Antenna farm area. A geographical 

location, with established boundaries, 

designated by the Federal 

Communications Commission, in which 

antenna towers with a common impact 

on aviation may be grouped. 

(c) Antenna structure owner. For the 

purposes of this part, an antenna 

structure owner is the individual or 

entity vested with ownership, equitable 

ownership, dominion, or title to the 

underlying structure that supports or is 

intended to support antennas and other 

appurtenances. Notwithstanding any 

agreements made between the owner 

and any entity designated by the owner 

to maintain the antenna structure, the 

owner is ultimately responsible for 

compliance with the requirements of 

this part. 

* * * * * 

6. Revise § 17.4 to read as follows: 

§ 17.4 Antenna structure registration. 

(a) The owner of any proposed or 

existing antenna structure that requires 

notice of proposed construction to the 

Federal Aviation Administration (FAA) 

must register the structure with the 

Commission. (See 14 CFR 77.13 for FAA 

notification requirements.) This 

includes those structures used as part of 

stations licensed by the Commission for 

the transmission of radio energy, or to 

be used as part of a cable television 

head end system. If a Federal 

Government antenna structure is to be 

used by a Commission licensee, the 

structure must be registered with the 

Commission. If the FAA exempts an 

antenna structure from notification, it is 

exempt from registration with the 

Commission. (See 14 CFR 77.15 for FAA 

exemptions to its notification 

requirements.) 

(1) For a proposed antenna structure 

or alteration of an existing antenna 

structure, the owner must register the 

structure prior to construction or 

alteration. 

(2) For a structure that did not 

originally fall under the definition of 

‘‘antenna structure,’’ the owner must 


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Federal Register / Vol. 75, No. 98 / Friday, May 21, 2010 / Proposed Rules 28539 

register the structure prior to hosting a 

Commission licensee. 

(b) Except as provided in paragraph (i) 

of this section, each owner must file 

FCC Form 854 with the Commission. 

Additionally, each owner of a proposed 

structure referred to in paragraph (a) of 

this section must submit a valid FAA 

determination of ‘‘no hazard.’’ In order 

to be considered valid by the 

Commission, the FAA determination of 

‘‘no hazard’’ must not have expired prior 

to the date on which FCC Form 854 is 

received by the Commission. The height 

of the structure will include the highest 

point of the structure including any 

obstruction lighting or lightning 

arrester. 

(c) Absent Commission specification, 

the painting and lighting specifications 

recommended by the FAA are 

mandatory (see § 17.23 of this chapter). 

However, the Commission may specify 

painting and/or lighting requirements 

for each antenna structure registration 

in addition to or different from those 

specified by the FAA. 

(d) Any change in the overall height 

of one foot or greater or coordinates of 

one second or greater in longitude or 

latitude of an antenna structure requires 

prior approval from the FAA and the 

Commission. 

(e) Any change in the marking and 

lighting specifications described on any 

antenna structure registration requires 

prior approval from the FAA and the 

Commission. 

(f) If an Environmental Assessment is 

required under § 1.1307 of this chapter, 

the Bureau will address the 

environmental concerns prior to 

processing the registration. 

(g) If a final FAA determination of ‘‘no 

hazard’’ is not submitted along with FCC 

Form 854, processing of the registration 

may be delayed or disapproved. 

(h) The Commission shall issue, to the 

registrant, FCC Form 854R, Antenna 

Structure Registration, which assigns a 

unique Antenna Structure Registration 

Number. The structure owner shall 

immediately provide to all tenant 

licensees and permittees notification 

that the structure has been registered, 

along with either a copy of Form 854R 

or the Antenna Structure Registration 

Number and a link to the FCC antenna 

structure Web site http:// 

wireless.fcc.gov/antenna/. This 

notification may be done electronically 

or via paper mail. 

(i) If the owner of the antenna 

structure cannot file FCC Form 854 

because it is subject to a denial of 

Federal benefits under the Anti-Drug 

Abuse Act of 1988, 21 U.S.C. 862, the 

first tenant licensee authorized to locate 

on the structure (excluding tenants that 

no longer occupy the structure) must 

register the structure using FCC Form 

854, and provide a copy of the Antenna 

Structure Registration (FCC Form 854R) 

to the owner. The owner remains 

responsible for providing to all tenant 

licensees and permittees notification 

that the structure has been registered, 

consistent with paragraph (h) of this 

section, and for posting the registration 

number as required by paragraph (j) of 

this section. 

(j) Except as described in paragraph 

(k) of this section, the Antenna 

Structure Registration Number must be 

displayed so that it is conspicuously 

visible and legible from the publicly 

accessible area nearest the base of the 

antenna structure along the publicly 

accessible roadway or path. If the base 

of the antenna structure has more than 

one point of ingress/egress, the Antenna 

Structure Registration Number must be 

posted at the publicly accessible area 

nearest each such point of ingress/ 

egress. Materials used to display the 

Antenna Structure Registration Number 

must be weather-resistant and of 

sufficient size to be easily seen at the 

base of the antenna structure or at a 

publicly accessible location. 

(k) The owner is not required to post 

the Antenna Structure Registration 

Number in cases where a Federal, State, 

or local government entity provides 

written notice to the owner that such a 

posting would detract from the 

appearance of a historic landmark. In 

this case, the owner must make the 

Antenna Structure Registration Number 

available to representatives of the 

Commission, the FAA, and the general 

public upon reasonable demand. 

7. Section 17.6 is amended by revising 

the section heading and paragraph (c), 

to read as follows: 

§ 17.6 Responsibility for painting and 

lighting compliance. 

* * * * * 

(c) If the owner of the antenna 

structure cannot file FCC Form 854 

because it is subject to a denial of 

federal benefits under the Anti-Drug 

Abuse Act of 1988, 21 U.S.C. 862, the 

first licensee authorized to locate on the 

structure must register the structure 

using FCC Form 854, and provide a 

copy of the Antenna Structure 

Registration (FCC Form 854R) to the 

owner. The owner remains responsible 

for providing to all tenant licensees and 

permittees notification that the structure 

has been registered, consistent with 

§ 17.4(h), and for posting the registration 

number as required by § 17.4(j). 

8. Revise the heading to subpart B of 

part 17 to read as follows: 

Subpart B—Antenna Farm Areas 

§ 17.7 [Removed and Reserved] 

9. Remove and reserve § 17.7. 

§ 17.14 [Removed and Reserved] 

10. Remove and reserve § 17.14. 

§ 17.17 [Removed and Reserved] 

11. Remove and reserve § 17.17. 

12. Section 17.21 is amended by 

revising the introductory text, revising 

paragraph (a) and adding paragraph (c) 

to read as follows: 

§ 17.21 Painting and lighting, when 

required. 

Antenna structures shall be painted 

and lighted when: 

(a) Their height exceeds any 

obstruction standard requiring 

notification to the FAA (see § 17.4(a)). 

* * * * * 

(c) If an antenna installation is of such 

a nature that its painting and lighting 

specifications in accordance with the 

FAA airspace recommendation are 

confusing, or endanger rather than assist 

airmen, or are otherwise inadequate, the 

Commission will specify the type of 

painting and lighting or other marking 

to be used in the individual situation. 

§ 17.22 [Removed and Reserved] 

13. Remove and reserve § 17.22. 

14. Section 17.23 is revised to read as 

follows: 

§ 17.23 Specifications for painting and 

lighting antenna structures. 

Unless otherwise specified by the 

Commission, each new or altered 

antenna structure must conform to the 

FAA’s painting and lighting 

specifications set forth in the FAA’s 

final determination of ‘‘no hazard’’ and 

the associated FAA study for that 

particular structure. For purposes of this 

part, any specifications, standards, and 

general requirements set forth by the 

FAA in the structure’s determination of 

‘‘no hazard’’ and the associated FAA 

study are mandatory. Additionally, each 

antenna structure must be painted and 

lighted in accordance with any painting 

and lighting requirements prescribed on 

the antenna structure’s registration, or 

in accordance with any other 

specifications provided by the 

Commission. 

15. Add § 17.24 to read as follows: 

§ 17.24 Existing structures. 

No change to painting or lighting 

criteria or relocation of airports shall at 

any time impose a new restriction upon 

any then existing or authorized antenna 

structure or structures. 

§ 17.45 [Removed and Reserved] 

16. Remove and reserve § 17.45. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
28540 Federal Register / Vol. 75, No. 98 / Friday, May 21, 2010 / Proposed Rules 

17. Section 17.48 is revised to read as 

follows: 

§ 17.48 Notification of extinguishment or 

improper functioning of lights. 

The owner of any antenna structure 

that requires registration of the structure 

with the Commission and has been 

assigned lighting specifications 

referenced in this part shall report 

immediately to the Federal Aviation 

Administration, by means acceptable to 

the Federal Aviation Administration, 

any observed or otherwise known 

extinguishment or improper functioning 

of any top steady burning light or any 

flashing obstruction light, regardless of 

its position on the antenna structure, 

not corrected within 30 minutes. If the 

lights cannot be repaired within 15 

days, the owner shall notify the FAA to 

extend the outage date and report a 

return to service date. The owner will 

repeat this process every 15 days until 

the lights are repaired. Such reports 

shall set forth the condition of the light 

or lights, the circumstances which 

caused the failure, the probable date for 

restoration of service, the FCC Antenna 

Structure Registration Number, the 

height of the structure (AGL and AMSL 

if known) and the name, title, address, 

and telephone number of the person 

making the report. Further notification 

to the Federal Aviation Administration 

by means acceptable to the FAA shall be 

given immediately upon resumption of 

normal operation of the light or lights. 

18. Section 17.49 is amended by 

revising the introductory text to read as 

follows: 

§ 17.49 Recording of antenna structure 

light inspections in the owner record. 

The owner of each antenna structure 

which is registered with the 

Commission and has been assigned 

lighting specifications referenced in this 

part must maintain a record of any 

observed or otherwise known 

extinguishment or improper functioning 

of a structure light. This record shall be 

retained for a period of two years and 

provided to the FCC or its agents upon 

request. The record shall include the 

following information for each such 

event: 

* * * * * 

§ 17.51 [Removed and Reserved] 

19. Remove and reserve § 17.51. 

§ 17.56 [Removed and Reserved] 

20. Remove and reserve § 17.56. 

§ 17.58 [Removed and Reserved] 

21. Remove and reserve § 17.58. 

[FR Doc. 2010–12142 Filed 5–20–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 665 

RIN 0648–AX76 

Fisheries in the Western Pacific; 

Community Development Program 

Process 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of availability of fishery 

ecosystem plan amendments; request for 

comments. 

SUMMARY: NMFS announces that the 

Western Pacific Fishery Management 

Council (Council) proposes to amend 

the fishery ecosystem plans (FEPs) for 

American Samoa, Hawaii, Marianas, 

and western Pacific Pelagics. If 

approved by the Secretary of Commerce 

(Secretary), the amendments would 

establish requirements and procedures 

for reviewing and approving community 

development plans for access to western 

Pacific fisheries. The intent of the 

amendments is to promote the 

participation of island communities in 

fisheries that they have traditionally 

depended upon, but may not have the 

capabilities to support continued and 

substantial participation in, possibly 

due to economic, regulatory, or other 

constraints. 

DATES: Comments on the amendments 

must be received by July 20, 2010. 

ADDRESSES: Comments on the 

amendments, identified by 0648–AX76, 

may be sent to either of the following 

addresses: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal 

www.regulations.gov; or 

• Mail: Mail written comments to 

William L. Robinson, Regional 

Administrator, NMFS, Pacific Islands 

Region (PIR), 1601 Kapiolani Blvd, Suite 

1110, Honolulu, HI 96814–4700. 

Instructions: Comments must be 

submitted to one of these two addresses 

to ensure that the comments are 

received, documented, and considered 

by NMFS. Comments sent to any other 

address or individual, or received after 

the end of the comment period, may not 

be considered. Comments will be posted 

for public viewing after thecomment 

period has closed. All comments 

received are a part of the public record 

and will generally be posted to 

www.regulations.gov without change. 

All personal identifying information 

(e.g., name, address, etc.) submitted 

voluntarily by the commenter may be 

publicly accessible. Do not submit 

confidential business information, or 

otherwise sensitive or protected 

information. NMFS will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word or Excel, WordPerfect, or Adobe 

PDF file formats only. 

Copies of the amendments (which are 

identical for all four FEPs) containing 

background information on the issue are 

available from www.regulations.gov and 

from the Council, 1164 Bishop St., Suite 

1400, Honolulu, HI 96813, tel 808–522– 

8220, fax 808–522–8226, or web site 

www.wpcouncil.org. 

FOR FURTHER INFORMATION CONTACT: 

Jarad Makaiau, NMFS PIR Sustainable 

Fisheries, 808–944–2108. 

SUPPLEMENTARY INFORMATION: This 

document is also available at 

www.gpoaccess.gov/fr. 

Section 305(i)(2) of the MagnusonStevens Act authorizes the Council and 

the Secretary, through NMFS, to 

establish a community development 

program for western Pacific fisheries. 

The intent of the program is to provide 

western Pacific communities access to 

fisheries that they have traditionally 

depended upon, but may not have the 

capabilities to support continued and 

substantial participation in, possibly 

due to economic, regulatory, or other 

constraints. 

In 2002, NMFS announced the 

eligibility criteria for participating in the 

program (67 FR 18512; April 16, 2002). 

To participate in the program, 

communities are required to develop 

and submit a development plan, but 

there is currently no mechanism to 

solicit, review, and approve these plans. 

To address this issue, the Council 

developed and submitted to NMFS for 

review, amendments to the FEPs for 

American Samoa, Hawaii, the Mariana 

Archipelago, and western Pacific 

Pelagics to establish such a mechanism. 

The amendments are identical for each 

FEP. 

To be eligible for the community 

development program, a community 

must: 

1. Be located in American Samoa, 

Guam, Hawaii, or the Northern Mariana 

Islands (collectively, the western 

Pacific); 

2. Consist of community residents 

descended from aboriginal people 

indigenous to the western Pacific area 

who conducted commercial or 

subsistence fishing using traditional 


srobinson on DSKHWCL6B1PROD with PROPOSALS