[Federal Register Volume 75, Number 98 (Friday, May 21, 2010)]
[Proposed Rules]
[Pages 28517-28540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12142]


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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.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> 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.
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#54121717616460146835743c26313269" http: fcc.gov">fcc.gov</a>">FCC504@fcc.gov</a> 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 <a href="/cdn-cgi/l/email-protection#e5b5b7a4a5d984c58d978083d8" http: fcc.gov">fcc.gov</a>">PRA@fcc.gov</a> and to Nicholas A. 
Fraser, Office of Management and Budget, via e-mail to <a href="/cdn-cgi/l/email-protection#eea0878d8681828f9db1afc0b1a89c8f9d8b9cae81838cc08b819ec0898198"><span class="__cf_email__" data-cfemail="4d03242e2522212c3e120c63120b3f2c3e283f0d22202f6328223d632a223b">[email protected]</span></a> or via fax at 202-395-5167.

FOR FURTHER INFORMATION CONTACT: John Borkowski, Wireless 
Telecommunications Bureau, (202) 418-0626, e-mail 
<a href="/cdn-cgi/l/email-protection#2d67424543036f425f46425a5e46446d114c0d455f484b10" http: fcc.gov">fcc.gov</a>">John.Borkowski@fcc.gov</a>. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an e-mail to <a href="/cdn-cgi/l/email-protection#0f5f5d4e4f336e2f677d6a6932" http: fcc.gov">fcc.gov</a>">PRA@fcc.gov</a> or contact Judith B. 
Herman at 202-418-0214 or via the Internet at <a href="/cdn-cgi/l/email-protection#90dae5f4f9e4f8bdd2bed8f5e2fdf1fed0acf1b0f8e2f5f6ad" http: fcc.gov">fcc.gov</a>">Judith-B.Herman@fcc.gov</a>.

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 <a href="/cdn-cgi/l/email-protection#de989d9d9e9c9d8e97899b9cf0bdb1b3"><span class="__cf_email__" data-cfemail="e6a0a5a5a6a4a5b6afb1a3a4c885898b">[email protected]</span></a>. Copies of

[[Page 28518]]

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 Sec.  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 Sec.  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 Sec. Sec.  17.21 through 17.23, the Commission 
first proposes to amend Sec.  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

[[Page 28519]]

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 Sec.  17.21. The Commission 
would retain the provision in Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  17.17(a). The 
Commission's proposed removal of reference to FAA circulars in Sec.  
17.23 would eliminate the need for the stated exception in Sec.  
17.17(a). Moreover, the language in Sec.  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 Sec.  17.17(b) in 
this Notice, but the Commission notes that the Commission would need to 
conform Sec.  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 Sec.  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, Sec.  17.7 of the 
Commission's rules is a restatement of Sec.  77.13 of the FAA's rules. 
Section 17.14 of the Commission's rules is a restatement of Sec.  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 Sec. Sec.  17.7 and 17.14 
of the Commission's rules. In lieu of these full restatements of FAA 
rules, the Commission proposes adding cross-references to relevant FAA 
rules in Sec.  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

[[Page 28520]]

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 Sec. Sec.  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 Sec.  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 Sec.  17.47. First, the Commission seeks comment on whether 
to delete Sec.  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 Sec.  17.47, it will not be subject to enforcement 
action if its lights fail to function. Eliminating the inspection 
requirements under Sec.  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 Sec.  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

[[Page 28521]]

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 self-monitoring 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 Sec.  
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 Sec.  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 
Sec.  17.56(a)) or ``as soon as possible'' (in Sec.  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 Sec.  17.51 be amended to 
harmonize it with Section 17.48 (Notification of Extinguishment or 
Improper Functioning Lights). Specifically, PCIA states that Sec.  
17.51 should be revised to provide that a malfunctioning flashing light 
does not violate Sec.  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 
Sec.  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 Sec.  
17.48 to clearly state the basic requirement to maintain the required 
lighting or, if lights become

[[Page 28522]]

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 Sec.  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 Sec.  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 one-quarter 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 Sec.  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 one-quarter 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 Sec.  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 Sec.  17.2(a) 
should be

[[Page 28523]]

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 Sec.  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 Sec.  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 
Sec.  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 Sec. Sec.  
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 Sec.  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 Sec.  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

[[Page 28524]]

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 Sec.  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 Sec.  1.70 of the rules. This rule was adopted in 
1967, along with former Sec.  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 Sec.  1.70 was deleted. As Sec.  17.58 was intended to 
promote compliance with procedures that no longer exist, the Commission 
now proposes to delete Sec.  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 Sec.  17.4(a) and Sec. Sec.  
17.21, 17.22 (redesignated as Sec.  17.21(c)), and 17.23 and to delete 
Sec.  17.17(a) of the Commission's rules regarding antenna structure 
registration and painting and lighting specifications. The Commission 
also proposes conforming edits to Sec. Sec.  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 Sec.  17.17(b) (redesignated as 
Sec.  17.24) by providing that a revised FAA Circular does not impose 
new obligations on already-approved 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 Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  17.47 to eliminate 
or reduce requirements to perform

[[Page 28525]]

inspections of lighting and light monitoring systems; (2) amending 
Sec.  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 Sec. Sec.  
17.48(b) and 17.56(a). The Commission proposes to consider whether to 
eliminate Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 non-licensee 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

[[Page 28526]]

more.\8\ Thus, under this category and size standard, the majority of 
firms can be considered small.
---------------------------------------------------------------------------

    \5\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517210.
    \6\  Id.
    \7\ U.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).
    \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.''
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    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.
---------------------------------------------------------------------------

    \9\ See 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).
    \10\ See 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.
    \11\ See 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.
    \12\ FCC News, ``Broadband PCS, D, E and F Block Auction 
Closes,'' No. 71744 (rel. January 14, 1997).
    \13\ See ``C, D, E, and F Block Broadband PCS Auction Closes,'' 
Public Notice, 14 FCC Rcd 6688 (WTB 1999).
    \14\ See ``C and F Block Broadband PCS Auction Closes; Winning 
Bidders Announced,'' Public Notice, 16 FCC Rcd 2339 (2001).
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    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.
---------------------------------------------------------------------------

    \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).
    \16\ See ``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).
    \17\ Amendment 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.
    \20\ See 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.
    \21\ See ``Narrowband PCS Auction Closes,'' Public Notice, 16 
FCC Rcd 18663 (WTB 2001).
---------------------------------------------------------------------------

    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\
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    \22\ 47 CFR 90.814(b)(1).
    \23\ Id.
    \24\ See Letter to Thomas Sugrue, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration, dated 
August 10, 1999.
    \25\ See ``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).
    \26\ See ``Multi-Radio Service Auction Closes,'' Public Notice, 
17 FCC Rcd 1446 (WTB 2002).
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    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

[[Page 28527]]

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\
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    \27\ Service 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).
    \28\ See id., at para. 144.
    \29\ See 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/DOC-281580A2.pdf, 
(4/15/2008).
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    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.
---------------------------------------------------------------------------

    \30\ 13 CFR 121.201, NAICS code 517210.
---------------------------------------------------------------------------

    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.
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    \31\ Amendment 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).
    \32\ See 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \33\ 13 CFR 121.201, NAICS code 517210.
    \34\ U.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.''
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    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

[[Page 28528]]

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\
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    \36\ Amendment 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.
    \38\ Id.
    \39\ See Letter to Daniel Phythyon, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration, dated 
January 6, 1998.
    \40\ See generally ``220 MHz Service Auction Closes,'' Public 
Notice, 14 FCC Rcd 605 (WTB 1998).
    \41\ See ``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).
    \43\ See ``Multi-Radio Service Auction Closes,'' Public Notice, 
17 FCC Rcd 1446 (WTB 2002).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \44\ See 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).
    \48\ See ``700 MHz Guard Bands Auction Closes: Winning Bidders 
Announced,'' Public Notice, 15 FCC Rcd 18026 (2000).
    \49\ See ``700 MHz Guard Bands Auctions Closes: Winning Bidders 
Announced,'' Public Notice, 16 FCC Rcd 4590 (WTB 2001).
    \50\ See 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.
---------------------------------------------------------------------------

    71. 700 MHz Band Commercial Licenses. There is 80 megahertz of non-
Guard 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\
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    \52\ See 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.
    \54\ See Letter to Thomas Sugrue, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration, dated 
August 10, 1999.
---------------------------------------------------------------------------

    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. 
Seventy-two 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\
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    \55\ See ``Lower 700 MHz Band Auction Closes,'' Public Notice, 
17 FCC Rcd 17272 (WTB 2002).
    \56\ See ``Lower 700 MHz Band Auction Closes,'' Public Notice, 
18 FCC Rcd 11873 (WTB 2003).
    \57\ Id.
---------------------------------------------------------------------------

    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

[[Page 28529]]

winning bids.\58\ Currently, the 10 remaining megahertz associated with 
the D block have not yet been assigned.\59\
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    \58\ See ``Auction of 700 MHz Band Licenses Closes,'' Public 
Notice, 23 FCC Rcd 4572 (WTB 2008).
    \59\ See fcc.gov Web site at http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=73.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \60\ 13 CFR 121.201, NAICS code 517211.
    \61\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517210.
    \62\ Id.
    \63\ U.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.''
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \65\ Amendment 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).
    \66\ See 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).
    \67\ Revision 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.
    \69\ See ``929 and 931 MHz Paging Auction Closes,'' Public 
Notice, 15 FCC Rcd 4858 (WTB 2000).
    \70\ See id.
    \71\ See ``Lower and Upper Paging Band Auction Closes,'' Public 
Notice, 16 FCC Rcd 21821 (WTB 2002).
    \72\ See ``Lower and Upper Paging Bands Auction Closes,'' Public 
Notice, 18 FCC Rcd 11154 (WTB 2003).
    \73\ See 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.
---------------------------------------------------------------------------

    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 Air-Ground Radiotelephone Service, and the Commission 
estimates that almost all of them qualify as small under the SBA small 
business size standard.
---------------------------------------------------------------------------

    \75\  Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \76\ Id.
    \77\ Amendment 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).
---------------------------------------------------------------------------

    78. Fixed Microwave Services. Fixed microwave services include 
common

[[Page 28530]]

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.
---------------------------------------------------------------------------

    \78\ See 47 CFR 101 et seq. (formerly, part 21 of the 
Commission's Rules) for common carrier fixed microwave services 
(except Multipoint Distribution Service).
    \79\ Persons eligible under parts 80 and 90 of the Commission's 
Rules can use Private Operational-Fixed Microwave services. See 47 
CFR parts 80 and 90. Stations in this service are called 
operational-fixed 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.
    \80\ Auxiliary 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.
---------------------------------------------------------------------------

    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.
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    \82\ This 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.
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    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.
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    \84\ See 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.
    \86\ See Letter to Kathleen O'Brien Ham, Chief, Auctions and 
Industry Analysis Division, Wireless Telecommunications Bureau, FCC, 
from Aida Alvarez, Administrator, SBA (Feb. 4, 1998).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \87\ See 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'').
    \88\ See 47 CFR part 74, subpart I; MDS/ITFS Order, 19 FCC Rcd 
14165 (2004).
    \89\ See 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.
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    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

[[Page 28531]]

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.
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    \93\ MDS 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).
    \95\ See ITFS Order, 10 FCC Rcd at 9589.
    \96\ Hundreds 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.
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    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.
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    \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.
---------------------------------------------------------------------------

    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 re-auctioned 161 licenses; there were 40 
winning bidders.
---------------------------------------------------------------------------

    \98\ See Local Multipoint Distribution Service, Second Report 
and Order, 12 FCC Rcd 12545 (1997).
    \99\ Id.
    \100\ See id.
    \101\ See Letter to Dan Phythyon, Chief, Wireless 
Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, 
SBA (Jan. 6, 1998).
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    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.
---------------------------------------------------------------------------

    \102\ See ``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).
    \104\ Amendment 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.
    \106\ See Letter from Aida Alvarez, Administrator, SBA, to 
Daniel Phythyon, Chief, WTB, FCC (Jan. 6, 1998) (``Alvarez to 
Phythyon Letter 1998'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \107\ 13 CFR 121.201, NAICS code 517210.
    \108\ Teligent 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \109\ Amendments 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).
    \110\ Amendments 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).
    \111\ See Letter to Margaret W. Wiener, Deputy Chief, Auctions 
and Industry Analysis Division, Wireless Telecommunications Bureau, 
FCC, from Gary M. Jackson, Assistant Administrator, SBA (July 28, 
2000).

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[[Page 28532]]

    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.
---------------------------------------------------------------------------

    \112\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517210.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \113\ Federal Communications Commission, 60th Annual Report, 
Fiscal Year 1994, at paragraph 116.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \114\ 47 CFR 1.1162.
    \115\ 5 U.S.C. 601(5).
---------------------------------------------------------------------------

    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 non-
multilateration 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.
---------------------------------------------------------------------------

    \116\ Amendment 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.
    \118\ See Letter to Thomas J. Sugrue, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration (Feb. 22, 
1999).
---------------------------------------------------------------------------

    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.
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    \119\ See Amendment of the Commission's Rules Regarding Multiple 
Address Systems, Report and Order, 15 FCC Rcd 11956, 12008 para. 123 
(2000).
    \120\ Id.
    \121\ See Letter to Thomas Sugrue, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, from 
Aida Alvarez, Administrator, Small Business Administration, dated 
June 4, 1999.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \122\ 13 CFR 121.201, North American Industry Classification 
System (NAICS) code 517210.
    \123\ Id.
---------------------------------------------------------------------------

    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

[[Page 28533]]

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.
---------------------------------------------------------------------------

    \124\ See 13 CFR 121.201, NAICS Code 515120.
    \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.
    \126\ See 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/.
    \127\ The 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.
    \128\ See 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \130\ See 13 CFR 121.201, NAICS Code 515120.
    \131\ See Broadcast Station Totals, supra note 126.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \132\ See 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).
---------------------------------------------------------------------------

    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

[[Page 28534]]

these licensees qualify as small entities under the SBA definition.
---------------------------------------------------------------------------

    \135\  See 13 CFR 121.201, NAICS Code 515112.
    \136\ See 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).
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    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, fixed-satellite 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.
---------------------------------------------------------------------------

    \137\ 13 CFR 121.201 (NAICS Code 517110). This NAICS Code 
applies to all services listed in this paragraph.
    \138\ Those 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).
    \139\ Economics 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
    \141\ Cable MSO Ownership, A Geographical Analysis, 2009 
Edition, 14-31, SNL Kagan (June 2009).
    \142\ Id. at 12.
    \143\ 47 CFR 76.901(c).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \144\ 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. 1-3.).
    \145\ See 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).
    \147\ Cable MSO Ownership at 12.
    \148\ The 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \149\ U.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.
    \151\ U.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.
---------------------------------------------------------------------------

    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

[[Page 28535]]

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.
---------------------------------------------------------------------------

    \153\ U.S. Census Bureau, 2007 NAICS Definitions, ``517919 All 
Other Telecommunications''; http://www.census.gov/naics/2007/def/ND517919.HTM#N517919.
    \154\ U.S. Census Bureau, 2002 Economic Census, Subject Series: 
Information, ``Establishment and 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.
---------------------------------------------------------------------------

    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 non-licensee 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 non-licensees 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 non-
licensee 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\
---------------------------------------------------------------------------

    \156\ 47 CFR 17.4(a), 17.7(a).
    \157\ The 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.
---------------------------------------------------------------------------

4. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements
    106. This NPRM proposes to amend Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  17.4(a) and Sec. Sec.  
17.21, 17.22 (redesignated as Sec.  17.21(c)), and 17.23 and delete 
Sec.  17.17(a) of the Commission's rules regarding antenna structure 
registration and painting and lighting specifications. The Commission 
also proposes conforming edits to Sec. Sec.  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 Sec.  17.17(b) (redesignated as Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  17.47 to 
eliminate or reduce requirements to perform inspections of lighting and 
light monitoring systems; (2) amending Sec.  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 Sec. Sec.  17.48(b) and 17.56(a). The Commission 
seeks to

[[Page 28536]]

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 Sec. Sec.  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. Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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

[[Page 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:
    <bullet> 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;
    <bullet> 17.48--Antenna structure owners must provide continuously 
active notice to the FAA of antenna structure lighting outages;
    <bullet> 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 Sec.  
1.1206(b) of the Commission's rules.
2. Comment Filing Procedures
    143. Pursuant to Sec. Sec.  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).
    <bullet> 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.
    <bullet> 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 <a href="/cdn-cgi/l/email-protection#1075737663502c7130786275762d" http: fcc.gov">fcc.gov</a>">ecfs@fcc.gov</a>, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
    <bullet> 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.
    <bullet> All hand-delivered or messenger-delivered 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

[[Page 28538]]

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.
    <bullet> 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.
    <bullet> 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 <a href="/cdn-cgi/l/email-protection#2b614443450569445940445c5840426b174a0b43594e4d16" http: fcc.gov">fcc.gov</a>">John.Borkowski@fcc.gov</a>. 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 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="fd9b9e9ebd9f9e8d948a989fd39e9290">[email protected]</a>.
    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 <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="81e7e2e2c1e3e2f1e8f6e4e3afe2eeec">[email protected]</a>.
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:


Sec.  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:


Sec.  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:


Sec.  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 Sec.  17.4 to read as follows:


Sec.  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

[[Page 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 Sec.  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 Sec.  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:


Sec.  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 Sec.  17.4(h), and for posting the 
registration number as required by Sec.  17.4(j).
    8. Revise the heading to subpart B of part 17 to read as follows:

Subpart B--Antenna Farm Areas


Sec.  17.7  [Removed and Reserved]

    9. Remove and reserve Sec.  17.7.


Sec.  17.14  [Removed and Reserved]

    10. Remove and reserve Sec.  17.14.


Sec.  17.17  [Removed and Reserved]

    11. Remove and reserve Sec.  17.17.
    12. Section 17.21 is amended by revising the introductory text, 
revising paragraph (a) and adding paragraph (c) to read as follows:


Sec.  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 Sec.  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.


Sec.  17.22  [Removed and Reserved]

    13. Remove and reserve Sec.  17.22.
    14. Section 17.23 is revised to read as follows:


Sec.  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 Sec.  17.24 to read as follows:


Sec.  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.


Sec.  17.45  [Removed and Reserved]

    16. Remove and reserve Sec.  17.45.

[[Page 28540]]

    17. Section 17.48 is revised to read as follows:


Sec.  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:


Sec.  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:
* * * * *


Sec.  17.51  [Removed and Reserved]

    19. Remove and reserve Sec.  17.51.


Sec.  17.56  [Removed and Reserved]

    20. Remove and reserve Sec.  17.56.


Sec.  17.58  [Removed and Reserved]

    21. Remove and reserve Sec.  17.58.

[FR Doc. 2010-12142 Filed 5-20-10; 8:45 am]
BILLING CODE 6712-01-P


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