Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules 24743

program have risen over the years, but

these increased costs have not been

reflected in certification charges. The

fees charged for NIOSH services do not

recover the costs to maintain the

program. NIOSH will be updating the

fee schedule to reflect the actual costs

to maintain the program.

(1) How should certification fees be

structured and calculated to recoup the

cost of the certification process?

(2) Should manufacturers be required

to pay for manufacturing site and

product audits?

(3) Should fees be collected by NIOSH

for respirator complaint investigations?

Issue 4. The certifications standards

currently limit NIOSH to certify only

complete respirators. Standards are not

provided to evaluate component parts

independently. There are not provisions

in the current addressing

standardization and interchangeability

of components. Any change to a

component part, or a replacement part

that differs from the original, can change

the effectiveness of a respirator, and

decreased effectiveness normally cannot

be detected by the user. To ensure that

respirators perform effectively, they

must be maintained as approved.

Replacement parts are limited to those

specified in the certification for the

manufacturer’s assembly of the

respirator. These are the only

components that have been evaluated

for effectiveness. As a result, a respirator

user must obtain replacement parts and

service from the respirator’s original

manufacturer.

(1) Should NIOSH allow replacement

parts for respirators by manufacturers

other than the original manufacturer of

the respirator?

(2) How should the effectiveness of

replacement parts be assured?

(3) Would NIOSH need to adopt or

develop component-specific

certification requirements to allow

alternate suppliers for replacement

parts?

(4) Should NIOSH consider certifying

respirator components in addition to, or

instead of, complete respirator?

(5) Do other certifying agencies or

standards organizations allow suppliers

other than the original manufacturer to

provide replacement parts for certified

units?

(6) If suppliers other than the original

manufacturer were permitted to provide

replacement parts, how should NIOSH

monitor these alternate suppliers?

(7) If suppliers other than the original

manufacturer were permitted to provide

replacement parts, how should NIOSH

monitor those parts?

(8) Would NIOSH need to adopt

design specifications to ensure that

interchangeability of parts is safe?

Issue 5. Products auditing is an

ongoing NIOSH activity involving the

acquisition of respirators to assure

compliance with NIOSH certification

requirements. These products are

purchased from distributors, inspected,

and tested to verify they continue to

meet the NIOSH certification criteria.

This activity provides a ‘‘snapshot’’ of

the results of quality control, quality

assurance, and manufacturing processes

used to produce the certified respirator.

NIOSH currently procures

approximately 64 respirators a year to

perform product audits. With increasing

budget constraints and the very small

number of respirators that NIOSH can

purchase each year, NIOSH may require

manufacturers to supply respirators

upon request for product audits.

(1) What would be the maximum

number of respirator per year, aside

from problem investigations, that

NIOSH should request from a

manufacturer, at no charge to NIOSH?

(2) How should NIOSH acquire

products for audit (i.e., by voucher,

reimbursement, random selection by

NIOSH at the manufacturer or

distributor)?

(3) Should manufacturer be charged

for these product audits, since they are

a condition of certification?

Issue 6. The NIOSH certification is

issued for an unlimited number of units,

without an expiration date. In the past,

some certified respirators have been

removed from production for a period of

time, then returned to production. Some

certification holders have even gone out

of business. There is currently no

provision for notification to be given to

NIOSH of these events. Typically,

NIOSH becomes aware of these events

only when attempting to purchase the

affected respirator for audit, or as a

result of a field complaint.

Consequently, NIOSH has no

information for most certified

respirators on the number sold, or

whether or not they are still in

production.

The NIOSH certification is only

removed in the event a certification

rescission proceeding is invoked. Since

1919, only a couple of rescission

proceedings have occurred. These

proceedings are costly and time

consuming to NIOSH, the manufacturers

and users.

NIOSH is considering provisions that

will inform the Institute on the

production of respirators under a

certification. These provisions could

limit the time that a certification would

be valid or require notification of

production status.

(1) Should the NIOSH certification be

valid for a limited time?

(2) What conditions should be met for

a time-limited NIOSH certification to be

renewable?

(3) What time limits should be used

for a NIOSH certification and renewal?

(4) Should certification holders be

required to notify NIOSH of changes in

production status and the number of

produced units when production is

halted?

(5) How would purchasers and users

be affected if the certification of their

respirator expires?

(6) Would an expired certification

benefit purchasers and users by

informing them that their respirator is

no longer produced?

(7) Could information on the number

of respirators produced under a

certification be used to benefit

purchasers and users?

Availability and Access of Copies:

Additional copies of this document can

be obtained by calling the NIOSH tollfree information number (1–800–35–

NIOSH, option 5, 9 a.m.–4 p.m. ET); the

electronic bulletin board of the

Government Printing Office, 202/512–

1387; and the NIOSH Home Page on the

World-Wide Web (http://www.cdc.gov/

niosh/homepage.html).

Dated: May 7, 1996.

Nancy C. Hirsch,

Acting Director, Management Analysis and

Services Office, Centers for Disease Control

and Prevention (CDC).

[FR Doc. 96–11859 Filed 5–15–96; 8:45 am]

BILLING CODE 4160–19–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1

[GC Docket No. 96–101, FCC 96–192]

In the Matter of Implementation of

Section 34(a)(1) of the Public Utility

Holding Company Act of 1935, as

Added by the Telecommunications Act

of 1996

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: This notice of proposed

rulemaking (NPRM) seeks comment on

proposed regulations which implement

new section 34(a)(1) of the Public Utility

Holding Company Act of 1935

(PUHCA), as added by section 103 of the

Telecommunications Act of 1996. Under

new section 34, registered public utility
24744 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules

1The Telecommunications Act was enacted on

February 8, 1996.

2See PUHCA section 34(d).

3See PUHCA section 34(c).

holding companies may now enter the

telecommunications industry without

prior Securities and Exchange

Commission (‘‘SEC’’) approval by

acquiring or maintaining an interest in

an ‘‘exempt telecommunications

company’’ (‘‘ETC’’). Moreover, exempt

public utility holding companies, by

owning or acquiring an interest in an

ETC, may now acquire a ‘‘safe harbor’’

from potential SEC regulation under

PUHCA section 3(a). Section 34(a)(1)

requires the Commission to promulgate

rules implementing the procedure of

determining ETC status within one year

of the date of enactment of the

Telecommunications Act of 1996.

DATES: Interested parties may file

comments on or before June 17, 1996

and reply comments on or before July 5,

1996. Written comments by the public

on the proposed and/or modified

information collections are due June 17,

1996. Written comments must be

submitted by the Office of Management

and Budget (OMB) on the proposed and/

or modified information collections on

or before July 15, 1996.

ADDRESSES: Comments and reply

comments should be sent to the office

of the Secretary, Federal

Communications Commission, 1919 M

Street NW., Washington, DC 20554,

with a copy to Lawrence J. Spiwak,

Competition Division, Office of General

Counsel, Federal Communications

Commission, 1919 M Street NW.,

Washington, DC 20554. Parties should

also file one copy of any documents

filed in this docket with the

Commission’s copy contractor,

International Transcription Services,

Inc., 2100 M Street NW., Suite 140,

Washington, DC 20037. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

Center, 1919 M Street NW., Room 239,

Washington, DC 20554.

In addition to filing comments with

the Secretary, a copy of any comments

on the information collections

contained herein should be submitted to

Dorothy Conway, Federal

Communications Commission, Room

234, 1919 M Street NW., Washington,

DC 20554, or via the Internet to

dconway@fcc.gov, and to Timothy Fain,

OMB Desk Officer, 10236 NEOB, 725

17th Street NW., Washington, DC 20503

or via the Internet to fainlt@al.eop.gov.

FOR FURTHER INFORMATION CONTACT:

Lawrence J. Spiwak, Competition

Division, Office of General Counsel.

(202) 418–1870. For additional

information concerning the information

collections contained in this NPRM

contact Dorothy Conway at 202–418–

0217, or via the Internet at

dconway@fcc.gov.

SUPPLEMENTARY INFORMATION: This

NPRM contains proposed or modified

information collections subject to the

Paperwork Reduction Act of 1995

(PRA). It has been submitted to the

Office of Management and Budget

(OMB) for review under the PRA. OMB,

the general public, and other Federal

agencies are invited to comment on the

proposed or modified information

collections contained in this

proceeding.

Paperwork Reduction Act

This NPRM contains either a

proposed or modified information

collection. 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 collections contained in

this NPRM, as required by the

Paperwork Reduction Act of 1995, Pub.

L. No. 104–13. Public and agency

comments are due at the same time as

other comments on this NPRM; OMB

notification of action is due 60 days

from date of publication of this NPRM

in the Federal Register. 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.

OMB Approval Number: None.

Title: In the Matter of Implementation

of Section 34(a)(1) of the Public Utility

Holding Company Act of 1935, as

amended by the Telecommunications

Act of 1996, Notice of Proposed

Rulemaking.

Type of Review: New collection.

Respondents: 15. There are fifteen

registered public utility holding

companies.

Number of Respondents: 15. We

anticipate that each registered public

utility holding company will make at

least one application annually.

Estimated Time Per Response: We

estimate that each application will take

16 hours to prepare. However, the

Commission estimates that respondents

will hire attorneys to prepare

information. The time for coordinating

the submission is ten hours per

respondent.

Total Annual Burden: 150 hours.

Estimated costs per respondent: We

estimate that the cost to each

respondent will be approximately

$3,200, assuming 16 hours at $200/hour

for outside counsel.

Needs and Uses: The information will

be used by the Commission to

determine whether persons satisfy the

statutory criteria for ‘‘exempt

telecommunications company’’ status.

Without such information, the

Commission could not determine

whether persons satisfied the requisite

statutory criteria and therefore fulfill its

responsibility under section 34(a)(1) of

PUHCA, as amended.

I. Introduction

1. This notice of proposed rulemaking

(NPRM) seeks comment on proposed

regulations which implement new

section 34(a)(1) of the Public Utility

Holding Company Act of 1935

(PUHCA), 15 U.S.C. 79 et seq., as added

by section 103 of the

Telecommunications Act of 1996, Pub.

L. No. 104–104, 110 Stat. 56 (1996).1

Under new section 34, registered public

utility holding companies may now

enter the telecommunications industry

without prior Securities and Exchange

Commission (‘‘SEC’’) approval by

acquiring or maintaining an interest in

an ‘‘exempt telecommunications

company’’ (‘‘ETC’’).2 Moreover, exempt

public utility holding companies, by

owning or acquiring an interest in an

ETC, may now acquire a ‘‘safe harbor’’

from potential SEC regulation under

PUHCA section 3(a).3 The new law vests

the Commission with jurisdiction to

determine whether a company warrants

ETC status based on specific statutory

criteria.

2. As explained below, we propose to

implement section 34(a)(1) by providing

for a simple procedure for ETC

determination, under which applicants

briefly describe their planned activities

and certify that they satisfy the specific

statutory requirements and any

applicable Commission regulations. The

Commission believes that its

responsibilities under section 34(a)(1)

are limited to whether the applicant

meets the express statutory criteria for

ETC status. Thus, we believe that an

ETC determination should not involve

an inquiry into the public interest

merits of entry by the applicant. Nor

would the public interest or the intent

of Congress be served if this process

became a regulatory barrier to
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules 24745

4The proposed rules would create a new subpart

S, part 1 under title 47, chapter I of the Code of

Federal Regulations.

5See Report of the Committee on Commerce,

Science and Transportation on S. 652, S. Rep. No.

104–23, 104th Cong., 1st Sess. at 8 (1995) (‘‘Senate

Report’’).

6See Arcadia, Ohio v. Ohio Power, 498 U.S. 73,

87, 111 S.Ct. 415, 423 (1990) (Stevens, J.

concurring) (citations omitted).

7See PUHCA sections 3(a), 11(b)(1).

8PUHCA section 2(a)(11)(B) defines ‘‘affiliate’’ as

‘‘any company 5 per centum or more of whose

outstanding voting securities are owned, controlled,

or held with power to vote, directly or indirectly,

by such specified company.’’

9See Communications Act of 1934 section (3)(51),

as added by the Telecommunications Act of 1996,

which provides that the term ‘‘telecommunications

service’’ means the ‘‘offering of telecommunications

for a fee directly to the public, or to such classes

of users as to be effectively available directly to the

public, regardless of the facilities used to transmit

the telecommunications service.’’

10See Communications Act of 1934 section

(3)(41), as added by the Telecommunications Act of

1996, which provides that the term ‘‘information

service’’ means the ‘‘offering of a capability for

generating, acquiring, storing, transforming,

processing, retrieving, utilizing, or making available

information via telecommunications, and includes

electronic publishing, but does not include any use

of any such capability for the management, control,

or operation of a telephone system or the

management of a telecommunications service.’’

11See Senate Report at 7–8.

12 Id.

13 Id.

14 Id.

15See Entergy Technology Company, (FCC 96–

163, released April 12, 1996) (Entergy Technology).

16 See PUHCA section 32, as added by section

711 of the Energy Policy Act of 1992. 15 U.S.C. 79z5a.

significant new entry into the

telecommunications industry.

Accordingly, the proposed rules are

limited to the filing requirements and

procedures for persons seeking exempt

telecommunications company status.4

We believe that this approach is the best

mechanism to expedite Congress’s

policy to allow holding companies to

become vigorous competitors in the

telecommunications industry in order to

promote the public interest.5

3. The Commission invites interested

parties to comment on the matters

raised in the proposed rules.

II. Background

4. PUHCA was designed to prevent

financial abuse among public utility

holding companies and their affiliates.6

PUHCA accomplished this goal by,

among other things, restricting the

activities and investments that holding

companies are permitted to make

outside of their core public utility

businesses. Prior to the

Telecommunications Act of 1996, the

provisions of PUHCA strongly deterred

entry by registered public utility

holding companies into the

telecommunications industry.7

Somewhat anomalously, however,

utilities that are not public utility

holding companies have always been

free to enter the telecommunications

industry without prior SEC approval,

regardless of their size or scope.

5. Section 103 of the

Telecommunications Act of 1996, which

adds new PUHCA section 34(a)(1), ends

this disparate treatment by allowing

previously restricted holding companies

to enter telecommunications industries

without prior SEC permission by

acquiring or maintaining an interest in

an ‘‘exempt telecommunications

company.’’ Under section 34(a)(1), an

ETC is any person determined by the

Commission to be engaged directly or

indirectly, wherever located, through

one or more affiliates (as defined in

section 2(a)(11)(B) of PUHCA 8), and

exclusively in the business of providing:

(A) telecommunications services 9; (B)

information services 10; (C) other

services or products subject to the

jurisdiction of the Commission; or (D)

products or services that are related or

incidental to the provision of a product

or service described in (A), (B), or (C).

6. Section 34(a)(1) provides that an

applicant who has applied in good faith

for a determination of ETC status is

deemed an ETC until the Commission

makes such a determination. Section

34(a)(1) requires the Commission to

render its determination of whether a

person is an ETC within 60 days of the

receipt of an application. Section

34(a)(1) also requires the Commission to

notify the Securities and Exchange

Commission (SEC) whenever it

determines that a person is an ETC.

Finally, Section 34(a)(1) requires the

Commission to promulgate rules

implementing the procedure of

determining ETC status within one year

of the date of enactment of the

Telecommunications Act of 1996.

7. By obtaining ETC status, holding

companies can now be vigorous

competitors in the telecommunications

industry, and, with such competition,

bring more benefits to consumers.11

Indeed, Congress recognized that

utilities in general have experience in

telecommunications operations, as these

companies already operate

telecommunications systems for the

operation and monitoring of electric

generation, transmission and

distribution for reliability purposes.12

Moreover, Congress recognized that

holding companies have sufficient size

and capital to be effective competitors to

incumbent telecommunications

companies.13 Finally, Congress also

found that electric utilities, by entering

into telecommunications, can provide

more efficient and more ecologicallysound energy service in the form of

‘‘peak-shaving’’ and real-time energy

management.14

III. Discussion

A. Commission Responsibilities

8. We have previously held that the

Commission’s responsibilities under

section 34(a)(1) do not appear to extend

beyond a determination of whether an

applicant complies with the relatively

narrow certification criteria enumerated

above.15 This is evident not only from

the unambiguous language of section

34(a)(1), but from other provisions of

section 34, which preserve other

statutory provisions where the merits of

ETC entry can be evaluated. For

example, section 34(n) preserves this

Commission’s and applicable states’

authority to regulate the activities of an

ETC under provisions of the

Communications Act of 1934 and any

applicable state laws. In addition,

section 34(j) retains the jurisdiction of

the Federal Energy Regulatory

Commission (FERC) and state

commissions to determine whether a

public utility company may recover in

its rates the costs of products or services

purchased from or sold to an associate

or affiliate company that is an ETC,

regardless of whether such costs are

incurred through the direct or indirect

purchase or sale of products or services

from the affiliate or associate company.

Finally, section 34(m) provides state

commissions the authority to conduct

independent audits of public utility

holding companies and their affiliates.

We request comment on whether our

existing interpretation of the scope of

our inquiry under section 34(a)(1) is

correct.

B. Filing Requirements

9. We note that PUHCA section

34(a)(1) is similar to the ‘‘exempt

wholesale generator’’ paradigm of

PUHCA section 32 which permits, inter

alia, public utility holding companies to

enter into the independent power

production business.16 FERC, the agency

responsible for implementing PUHCA

section 32, interpreted that statute as

intended to give it only narrowly

circumscribed authority, and therefore

implemented a procedure whereby an

applicant need only briefly describe its

planned activities and certify that it

satisfies the requisite statutory criteria.17
24746 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules

17See Filing and Ministerial Procedures for

Persons Seeking Exempt Wholesale Generator

Status, Order No. 550, 58 FR 8897 (February 18,

1993); order on reh’g, Order No. 550–A, 58 FR

21250 (April 20, 1993); see also 18 CFR 365.1

through 365.7.

18See Section III.C.

19Section 34(a) provides that ‘‘No person shall be

deemed to be an exempt telecommunications

company under this section unless such person has

applied to the [Commission] for a determination

under this paragraph.’’

20For example, six affiliates of a single public

utility holding company recently filed six separate

applications for determination of ETC status.

21See 18 CFR § 365.3.

22See CSW Communications, Inc., (FCC 96–152,

released April 4, 1996); Entergy Technology, supra

n. 15; Entergy Technology Holding Company, (FCC

96–162, released April 12, 1996).

We believe that similar filing

requirements should be required under

section 34(a)(1).

10. Accordingly, for the company or

companies which are eligible companies

owned and/or operated by the

applicant, the proposed rules would

first require the applicant to provide a

brief description of the planned

activities of the company or companies

which are eligible companies owned

and/or operated by the applicant.

Second, the proposed rules would

require a person seeking ETC status

(applicant) to file a sworn statement, by

a representative legally authorized to

bind the applicant, attesting to any facts

or representations presented to

demonstrate eligibility for ETC status,

including a representation that the

applicant is engaged directly, or

indirectly, wherever located, through

one or more affiliates (as defined in

section 2(a)(11)(B) of the Public Utility

Holding Company Act of 1935), and

exclusively in the business of providing:

(A) telecommunications services; (B)

information services; (C) other services

or products subject to the jurisdiction of

the Commission; or (D) products or

services that are related or incidental to

the provision of a product or service

described in (A), (B), or (C). Finally, the

proposed rules would require an

applicant to provide a sworn statement,

by a representative legally authorized to

bind the applicant, certifying that the

applicant satisfies Part 1, Subpart P, of

the Commission’s regulations, 47 CFR

1.2001 through 1.2003r, regarding the

Anti-Drug Abuse Act of 1988, 21 U.S.C.

862. The application would then be

placed on public notice for comment on

the adequacy or accuracy of the

representations contained therein.18 The

Commission would review the

application and any comments to

determine whether the application

meets the statutory requirements for

ETC status. This analysis would be the

extent of the Commission’s inquiry. To

the extent parties believe that our

inquiry should either be more expansive

or narrow, we invite them to comment

on this issue.

11. We also seek comment on whether

we should adopt rules governing

applications seeking ETC status filed by

different entities that are affiliates of a

common holding company parent.

While the Act apparently contemplates

that every entity seeking ETC status

must apply to the Commission,19 we see

no reason why this should require

separate entities affiliated with the same

holding company parent to seek ETC

status through separate applications and

proceedings. Such a process seems

administratively wasteful and

duplicative.20 Accordingly we propose

to allow multiple entities seeking ETC

status, which are affiliated with the

same public utility holding company

parent, to seek a determination for all

such entities through a single

consolidated application. In such a case,

the application should contain for each

affiliate sufficient information as

required by our rules to make a separate

ETC determination for that affiliate. We

seek comment on this proposal.

12. The proposed rules also require

applicants to serve a copy of the ETC

application on the SEC and affected

State commissions. An affected State

commission is defined as the State

commission of each state in which the

ETC will be located or doing business.

Although service of applications on the

SEC and State commissions is not

required by law, section 34 of PUHCA

specifically contemplates a role for the

SEC and State commissions insofar as

certain eligible companies are

concerned. It also contemplates that the

SEC be aware of ETC determinations.

The Commission sees no reason not to

inform these agencies of pending ETC

applications at an early stage,

particularly since the copying and

mailing costs associated with serving

filings on the SEC and affected State

commissions will be minimal. We note

that FERC took a similar approach in its

analogous rules.21 We invite parties to

comment on this proposal.

C. Notice and Comment

13. As of April 25, 1995, the

Commission has received 11

applications for ETC status, three of

which have been granted.22 While staff

placed these applications on public

notice for comment, there is no

requirement in the Telecommunications

Act that the Commission do so. On the

other hand, neither is there any

prohibition on the Commission’s

discretion to do so. The proposed rules

would provide for public notice and

comment on ETC applications, but

would limit consideration of any

submissions that might be made in

response to such public notices to the

narrow purpose of determining the

adequacy or accuracy of the certification

made to satisfy the statutory criteria.

Given the limited focus of the

Commission’s inquiry under section

34(a)(1), we do not believe that it would

be appropriate to allow persons to raise

issues that fall outside the purview of

the statutorily fixed determination, and

that go to the public interest merits of

an applicant’s proposed entry.

Accordingly, the proposed rules specify

that parties may file comments on a

proposed application, but that any

comments must be limited to the

adequacy and accuracy of the

representations contained therein.

Comments on the adequacy of the

representations may include whether

the application is within the scope of

the ETC criteria, e.g., the extent to

which applicant’s services constitute

telecommunications, information or

related services. Applicants would then

have the opportunity to respond to any

comments filed. The Commission

requests comments on the tentative

conclusion to allow comments, but to

limit such comments to the accuracy

and adequacy of the representations

contained in the applications. We also

request comments on the length of the

time period which should be set for

such comments.

D. Implementation

14. The proposed rules specify that

the Commission must act within 60

days of receipt of an application.

Applications that do not meet the

requirements of the proposed rule set

forth in proposed 1.4002 will be

rejected. Under the proposed rules, if

the Commission does not act within 60

days, the application is deemed to have

been granted.

15. Proposed § 1.4005 requires the

Secretary of the Commission to notify

the SEC whenever an application for

ETC status is granted, as explicitly

required by section 34(a)(1) of PUHCA.

E. Change in Circumstances

16. An ETC determination is based on

the facts that are presented to the

Commission. Any material variation

from those facts may render an ETC

determination invalid. Accordingly,

proposed section 1.4006 requires ETCs,

within 30 days of any material change

in facts that may affect an ETC’s

eligibility for ETC status under section

34(a)(1) of the Public Utility Holding

Company Act of 1935, to either: (a)
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules 24747

23Pub. L. No. 96–354, 94 Stat. 1164, 5 U.S.C. 601

et seq. (1981).

24See generally 47 CFR 1.1202, 1.1203, and

1.1206(a).

25See 47 CFR 1.415 and 1.419.

apply to the Commission for a new

determination of ETC status; (b) file a

written explanation with the

Commission of why the material change

in facts does not affect the ETC’s status;

or (c) notify the Commission that it no

longer seeks to maintain ETC status. To

the extent persons other than the ETC

applicant inform the Commission of a

material change of circumstances, the

ETC will be given the opportunity to

respond and the Commission will take

further action as appropriate. The

Commission requests comments on this

proposed rule.

IV. Procedural Matters

A. Regulatory Flexibility Act

17. As required by Section 603 of the

Regulatory Flexibility Act, the

Commission has prepared an Initial

Regulatory Flexibility Analysis (IRFA)

of the expected impact on small entities

of the proposals suggested in the

document. The IRFA is set forth below.

Written public comments are requested

on the IRFA. These comments must be

filed in accordance with the same filing

deadlines as comments on the rest of the

NPRM, but they must have a separate

and distinct heading designating them

as responses to the Initial Regulatory

Flexibility Analysis. The Secretary shall

send a copy of the NPRM, including the

IRFA, to the Chief Counsel for Advocacy

of the Small Business Administration in

accordance with section 603(a) of the

Regulatory Flexibility Act.23

B. Ex Parte Rules—Non-Restricted

Proceeding

18. This is a non-restricted notice and

comment rulemaking proceeding. Ex

parte presentations are permitted except

during the Sunshine Agenda period,

provided they are disclosed as provided

in the Commission’s rules.24

C. Comment Dates

19. Pursuant to applicable procedures

set forth in §§ 1.415 and 1.419 of the

Commission’s rules, interested parties

may file comments on or before June 17,

1996, and reply comments on or before

July 5, 1996.25 To file formally in this

proceeding, parties must file an original

and four copies of all comments, reply

comments, and supporting comments. If

parties want each Commissioner to

receive a personal copy of their

comments, parties must file an original

plus nine copies. Parties should send

comments and reply comments to Office

of the Secretary, Federal

Communications Commission, 1919 M

Street NW. Washington, D.C., 20554.

Comments and reply comments will be

available for public inspection during

regular business hours in the Reference

Center of the Federal Communications

Commission, Room 239, 1919 M Street

NW., Washington, D.C. 20554.

D. Paperwork Reduction Act

20. This NPRM contains either a

proposed or modified information

collection. 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 collections contained in

this NPRM, as required by the

Paperwork Reduction Act of 1995, Pub.

L. No. 104–13. Public and agency

comments are due at the same time as

other comments on this NPRM; OMB

comments are due 60 days from date of

publication of this NPRM in the Federal

Register. 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.

21. Written comments by the public

on the proposed and/or modified

information collection are due on or

before June 17, 1996 and reply

comments on or before July 5, 1996.

Written comments must be submitted by

the Office of Management and Budget

(OMB) on the proposed and/or modified

information collections on or before 60

days after date of publication in the

Federal Register. In addition to filing

comments with the Secretary, a copy of

any comments on the information

collection contained herein should be

submitted to Dorothy Conway, Federal

Communications Commission, Room

234, 1919 M Street NW., Washington,

DC 20554, or via the Internet to

dconway@fcc.gov and to Timothy Fain,

OMB Desk Officer, 10236 NEOB, 725 -

17th Street NW., Washington, DC 20503

or via the Internet to fainlt@al.eop.gov.

E. Legal Authority

22. Authority for issuance of this

NPRM is contained in section 34(a)(1) of

the Public Utility Holding Company Act

of 1935 (PUHCA), as amended by

section 103 of the Telecommunications

Act of 1996, Pub. L. No. 104–104, 110

Stat. 56 (1996), and sections 4(i), 4(j)

and 303(r) of the Communications Act

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

§§ 154(i), 154(j), and 303(r).

F. Further Information

23. For further information

concerning this proceeding, contact

Lawrence J. Spiwak, Competition

Division, Office of General Counsel at

(202) 418–1870.

Initial Regulatory Flexibility Analysis

As required by Section 603 of the

Regulatory Flexibility Act, the

Commission has prepared an Initial

Regulatory Flexibility Analysis (IRFA)

of the expected impact on small entities

of the policies and rules proposed in

this Notice of Proposed Rule Making

(NPRM). Written public comments are

requested on the IRFA.

Reason for Action: This rulemaking

proceeding was initiated to secure

comment on proposals for establishing

filing requirements and procedures for

implementing section 34(a)(1) of the

Public Utility Holding Company Act of

1935 (PUHCA), as amended by section

103 of the Telecommunications Act of

1996, Pub. L. No. 104–104, 110 Stat. 56

(1996), and sections 4(i), 4(j) and 303(r)

of the Communications Act of 1934, as

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

303(r).

Objectives: The proposed rules, if

adopted, would provide filing

requirements and procedures to

expedite public utility holding company

entry into the telecommunications

industry. To achieve this goal, the

proposed regulations require persons

seeking a determination of ETC status to

file in good faith for a determination by

the Commission. Applicants would be

required to file with the Commission a

brief description of their planned

activities, and a sworn statement

attesting to any facts presented to

demonstrate eligibility for ETC status

and attesting to any representation

otherwise offered to demonstrate

eligibility for ETC status. Applicants

would also be required to submit sworn

statements certifying that they complied

with part 1, subpart P, of the

Commission’s regulations, 47 CFR

1.2001 through 1.2003, regarding

implementation of the Anti-Drug Abuse

Act of 1988, 21 U.S.C. 862. Finally,

applicants would be required to serve

copies of their application with the SEC

and affected state commissions.

Legal Basis: The proposed action is

authorized by section 34(a)(1) of the

Public Utility Holding Company Act of

1935 (PUHCA), as amended by section
24748 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules

103 of the Telecommunications Act of

1996, Pub. L. No. 104–104, 110 Stat. 56

(1996), and sections 4(i), 4(j) and 303(r)

of the Communications Act of 1934, as

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

303(r).

Reporting, Recordkeeping, and Other

Compliance Requirements: Under the

proposal contained in the NPRM, within

thirty days of any change in material

fact that may affect ETC status, persons

who received ETC status have an

affirmative duty to either: (a) apply to

the Commission for a new

determination of ETC status; (b) file a

written explanation with the

Commission of why the material change

in facts does not affect the ETC’s status;

or (c) notify the Commission that it no

longer seeks to maintain ETC status.

Federal Rules Which Overlap,

Duplicate or Conflict With These Rules:

None.

Description, Potential Impact, and

Number of Small Entities Involved: The

proposed rules are designed to provide

an expedited procedural process as

contemplated in the Section 34(a)(1) of

PUHCA. The proposed rules should

therefore increase the flexibility of small

businesses with minimal administrative

burden. After evaluating comments filed

in response to the NPRM, the

Commission will examine further the

impact of all rule changes on small

entities and set forth its findings in the

Final Regulatory Flexibility Analysis.

Significant Alternatives Minimizing

the Impact on Small Entities Consistent

with the Stated Objectives: This NPRM

solicits comment on a variety of

alternatives. Any additional significant

alternatives presented in the comments

will also be considered.

IRFA Comments: We request written

public comment on the foregoing Initial

Regulatory Flexibility Analysis.

Comments must have a separate and

distinct heading designating them as

responses to the IRFA and must be filed

by the comment deadlines set forth in

this NPRM.

List of Subjects in 47 CFR Part 1

Administrative practice and

procedure, Telecommunications.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Part 1 of title 47 of the Code of

Federal Regulations is proposed to be

amended as follows:

PART 1—PRACTICE AND

PROCEDURE

The authority citation for part 1

continues to read as follows:

Authority: 47 U.S.C. 151, 154, 303, and

309(j) unless otherwise noted.

2. A new subpart S is added to part

1 to read as follows:

Subpart S—Exempt Telecomunications

Companies

Sec.

1.4000 Purpose.

1.4001 Definitions.

1.4002 Contents of application and

procedure for filing.

1.4003 Effect of filing.

1.4004 Commission action.

1.4005 Notification of Commission action to

the Securities and Exchange

Commission.

1.4006 Procedure for notifying Commission

of material change in facts.

1.4007 Comments.

Subparts—Exempt

Telecommunications Companies

§ 1.4000 Purpose.

The purpose of part 1, subpart S, is to

implement section 34(a) of the Public

Utility Holding Company Act of 1935,

15 U.S.C. 79 through 79z–56 as added

by section 103 of the

Telecommunications Act of 1996,

Public Law No. 104–104, 110 Stat. 56.

§ 1.4001 Definitions.

(a) For the purpose of this part, the

terms telecommunications services and

information services shall have the same

meanings as provided in the

Communications Act of 1934, as

amended;

(b) Commission shall be defined as

the Federal Communications

Commission; and

(c) ETC shall be defined as an exempt

telecommunications company.

§ 1.4002 Contents of application and

procedure for filing.

A person seeking status as an exempt

telecommunications company

(applicant) must file with the

Commission with respect to the

company or companies which are

eligible companies owned and/or

operated by the applicant, and serve on

the Securities and Exchange

Commission and any affected State

commission, the following:

(a) A brief description of the planned

activities of the company or companies

which are or will be eligible companies

owned and/or operated by the

applicant;

(b) A sworn statement, by a

representative legally authorized to bind

the applicant, attesting to any facts or

representations presented to

demonstrate eligibility for ETC status,

including a representation that the

applicant is engaged directly, or

indirectly, wherever located, through

one or more affiliates (as defined in

section 2(a)(11)(B) of the Public Utility

Holding Company Act of 1935), and

exclusively in the business of providing:

(1) Telecommunications services;

(2) Information services;

(3) Other services or products subject

to the jurisdiction of the Commission; or

(4) Products or services that are

related or incidental to the provision of

a product or service described in

paragraphs (b)(1), (2), or (3) of this

section; and

(c) A sworn statement, by a

representative legally authorized to bind

the applicant, certifying that the

applicant satisfies part 1, subpart P, of

the Commission’s regulations, 47 CFR

1.2001 through 1.2003, regarding

implementation of the Anti-Drug Abuse

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

§ 1.4003 Effect of filing.

A person applying in good faith for a

Commission determination of exempt

telecommunications company status

will be deemed to be an exempt

telecommunications company from the

date of receipt of the application until

the date of Commission action pursuant

to § 1.4004.

§ 1.4004 Commission action.

If the Commission has not issued an

order granting or denying an application

within 60 days of receipt of the

application, the application will be

deemed to have been granted as a matter

of law.

§ 1.4005 Notification of Commission action

to the Securities and Exchange

Commission.

The Secretary of the Commission will

notify the Securities and Exchange

Commission whenever a person is

determined to be an exempt

telecommunications company.

§ 1.4006 Procedure for notifying

commission of material change in facts.

If there is any material change in facts

that may affect an ETC’s eligibility for

ETC status under section 34(a)(1) of the

Public Utility Holding Company Act of

1935, the ETC must, within 30 days of

the change in fact, either:

(a) Apply to the Commission for a

new determination of ETC status;

(b) File a written explanation with the

Commission of why the material change

in facts does not affect the ETC’s status;

or
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Proposed Rules 24749

(c) Notify the Commission that it no

longer seeks to maintain ETC status.

§ 1.4007 Comments.

(a) Any person wishing to be heard

concerning an application for ETC

status may file comments with the

Commission within fifteen (15) days

from the release date of a public notice

regarding the application, or such other

period of time set by the Commission.

Any comments must be limited to the

adequacy or accuracy of the application.

(b) Any person who files comments

with the Commission must also serve

copies of all comments on the applicant.

(c) An applicant has seven (7) days to

reply to any comments filed regarding

the adequacy and accuracy of its

application, or such other period of time

as set by the Commission. Such reply

shall be served on the commenters.

[FR Doc. 96–11964 Filed 5–15–96; 8:45 am]

BILLING CODE 6712–01–P

47 CFR Part 15

[ET Docket No. 96–102; FCC 96–193]

Unlicensed NII/SUPERNet Operations

in the 5 GHz Frequency Range

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: By this Notice of Proposed

Rule Making (‘‘NPRM’’), the

Commission proposes to make available

350 megahertz of spectrum at 5.15—5.35

GHz and 5.725—5.875 GHz for use by a

new category of unlicensed equipment,

called NII/SUPERNet devices. These

devices would provide short-range, high

speed wireless digital communications

on an unlicensed basis. The

Commission anticipates that these NII/

SUPERNet devices will support the

creation of new wireless local area

networks (‘‘LANs’’) and will facilitate

wireless access to the National

Information Infrastructure (‘‘NII’’). This

action is in response to petitions for rule

making filed by the Wireless

Information Networks Forum

(WINForum) and Apple Computer, Inc.

DATES: Comments must be filed on or

before July 15, 1996 and reply

comments must be filed on or before

August 14, 1996.

ADDRESSES: Comments and reply

comments should be sent to Office of

the Secretary, Federal Communications

Commission, Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT: Tom

Derenge, Office of Engineering and

Technology (OET), (202) 418–2451, or

Fred Thomas, OET, (202) 418–2449.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rule Making, ET Docket No.

96–102, FCC 96–193, adopted April 25,

1996 and released May 6, 1996. The full

text of this Commission decision is

available for inspection and copying

during normal business hours in the

FCC Reference Center (Room 239), 1919

M Street, NW, Washington, D.C. The

complete text of this decision may also

be purchased from the Commission’s

copy contractor, International

Transcription Service, Inc., (202) 857–

3800, 1919 M Street, N.W., Room 246,

or 2100 M Street, N.W., Suite 140,

Washington, D.C. 20037. Additionally,

an electronic version of the text may be

obtained from the World Wide Web at

the URL:’’http://www.fcc.gov/Bureaus/

EngineerinlTechnology/Notices/’’.

Summary of the Notice of Proposed

Rule Making

1. The Commission proposes to

amend Part 15 of its rules and to make

available 350 megahertz of spectrum at

5.15—5.35 GHz and 5.725—5.875 GHz

for use by a new category of unlicensed

equipment, called NII/SUPERNet

devices. This amount of spectrum

should be sufficient to provide for a

number of high-speed, wide-bandwidth,

unlicensed operations in each

geographical area to meet growing

demand for data LANs. These devices

may offer new opportunities for

providing advanced

telecommunications services to

educational institutions, health care

providers, libraries, businesses, and

other users. These devices may thereby

significantly assist in meeting the

universal service goals and encouraging

the provision of advanced

telecommunications capabilities to all

Americans as set forth in the

Telecommunications Act of 1996. This

action should also foster the

development of a broad range of new

devices and services that will stimulate

economic development and the growth

of new industries. The Commission

feels that additional studies of spectrum

sharing between the proposed

unlicensed operations and existing and

other proposed operations in the 5 GHz

range would be useful and requests that

interested parties address this matter in

their comments.

2. In order to permit maximum

technical flexibility in the design and

operation of NII/SUPERNet devices, the

Commission proposes that such devices

be subject to the minimum technical

standards necessary to prevent

interference to other services and to

ensure that the spectrum is used

efficiently. Specifically, the NPRM

proposes to limit the peak equivalent

isotropically radiated power (EIRP) for

NII/SUPERNet devices to ¥10 dBW (0.1

watt), which would provide for typical

communications distances of 50 to 100

meters. The Commission, however, does

not propose at this time to accommodate

the higher power, longer range

(approximately 10–15 kilometer)

communications links sought by the

petitioners due to concerns that such

higher power operations would pose

unacceptable interference risks to other

services, such as the fixed satellite

service in the 5.10–5.25 GHz band, and

would greatly limit the number of

unlicensed operations within a local

area. Nonetheless, comment is solicited

on whether to permit such higher power

operation at up to 1 watt of transmitter

output power within the 5.725–5.875

GHz band; whether to limit the

maximum antenna gain; and whether

higher power operations would be better

accommodated on a licensed basis in

this band or in other bands presently (or

soon to be) available for licensed use

(e.g., 2 GHz, 28 GHz, 38 GHz, or above

40 GHz ranges).

3. Furthermore, the NPRM proposes

that all emissions occurring from NII/

SUPERNet devices outside of the 5.15–

5.35 GHz and 5.725–5.875 GHz bands be

attenuated by at least 50 dB or to the

radiated emission limits set forth in 47

CFR § 15.209, whichever is the lesser

attenuation. In addition, the NPRM

proposes that any emissions occurring

in the restricted bands (see 47 CFR

§ 15.205) comply with the radiated

emission limits set forth in 47 CFR

§ 15.209. The Commission believes that

these out-of-band emission limits will

provide sufficient protection against

harmful interference to adjacent band

and harmonically related radio

operations. Additionally, the NPRM

proposes to amend Section 15.205 to

delete the listing of 5.15–5.25 GHz as a

restricted band. Further, to ensure that

the emissions from digital circuitry

employed with the NII/SUPERNet

equipment do not cause harmful

interference to lower frequency radio

operations, the NPRM proposes to

require that any such emissions below

1000 MHz comply with the general field

strength limits set forth in Section

15.209.

4. The NPRM does not at this time

propose a channeling plan, in order to

provide flexibility for equipment

designers to develop devices and

systems that will meet a wide variety of

user needs. However, comment is

solicited on whether a channel

bandwidth (e.g., 25 MHz) should be

established to ensure that the spectrum

will be used efficiently and will be