[Federal Register Volume 73, Number 158 (Thursday, August 14, 2008)]
[Proposed Rules]
[Pages 47568-47574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18143]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 10

[PS Docket No. 07-287; FCC 08-164]


Commercial Mobile Alert System

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Federal Communications Commission

[[Page 47569]]

(Commission or FCC) seeks comment on whether it should adopt rules that 
require non-commercial educational (NCE) and public broadcast 
television station licensees and permittees to test the equipment that 
they are required to install pursuant to the rules adopted in the CMAS 
Second Report and Order (FCC 08-164), which the Commission released 
along with this Further Notice of Proposed Rulemaking (FNPRM). The 
Commission also seeks comment on how any such testing rules should be 
implemented.

DATES: Comments are due on or before September 15, 2008, and reply 
comments are due on or before September 29, 2008.

ADDRESSES: The Office of the Secretary, Federal Communications 
Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. 
You may submit comments, identified by PS Docket No. 07-287, 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> 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#d2949191e7e2e692b4b1b1fcb5bda4"><span class="__cf_email__" data-cfemail="185e5b5b2d282c587e7b7b367f776e">[email protected]</span></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.

FOR FURTHER INFORMATION CONTACT: Jeffery Goldthorp, Communications 
Systems Analysis Division, Public Safety and Homeland Security Bureau, 
Federal Communications Commission at (202) 418-1096.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's CMAS 
Further Notice of Proposed Rulemaking in PS Docket No. 07-287, FCC 08-
164, adopted and released on July 8, 2008. The complete text of this 
document is available for inspection and copying during normal business 
hours in the FCC Reference Information Center, Portals II, 445 12th 
Street, SW., Room CY-A257, Washington, DC 20554. This document may also 
be purchased from the Commission's duplicating contractor, Best Copy 
and Printing, Inc., in person at 445 12th Street, SW, Room CY-B402, 
Washington, DC 20554, via telephone at (202) 488-5300, via facsimile at 
(202) 488-5563, or via e-mail at <a href="/cdn-cgi/l/email-protection#4a0c09090a08091a031d0f0864090507"><span class="__cf_email__" data-cfemail="45030606050706150c1200076b060a08">[email protected]</span></a>. Alternative formats 
(computer diskette, large print, audio cassette, and Braille) are 
available to persons with disabilities by sending an e-mail to 
<a href="/cdn-cgi/l/email-protection#55131616606561153336367b323a23"><span class="__cf_email__" data-cfemail="99dfdadaaca9add9fffafab7fef6ef">[email protected]</span></a> or calling the Consumer and Governmental Affairs Bureau 
at (202) 418-0530, TTY (202) 418-0432. This document is also available 
on the Commission's Web site at http://www.fcc.gov.
    Comment and Reply Comment Filing Instructions. Pursuant to sections 
1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, 
interested parties may file comments and reply to comments on or before 
the dates indicated on the first page of this document. All filings 
should refer to PS Docket No. 07-287. 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).
    [dec22] 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.
    [dec221] For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking 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#6401070217240207074a030b12"><span class="__cf_email__" data-cfemail="f792949184b7919494d9909881">[email protected]</span></a>, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
    [dec221] Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    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.
    [dec221] The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours 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.
    [dec221] 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.
    [dec221] U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an e-mail to <a href="/cdn-cgi/l/email-protection#05434646303531456366662b626a73"><span class="__cf_email__" data-cfemail="b3f5f0f0868387f3d5d0d09dd4dcc5">[email protected]</span></a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
    Initial Paperwork Reduction Act of 1995 Analysis. This FNPRM may 
result in a new or modified information collection requirement. If the 
Commission adopts any new or revised information collection requirement 
as a result of this proceeding, the Commission will publish a notice in 
the Federal Register inviting the public to comment on the new or 
revised information collection requirement, as required by the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C. 
3501-3520). 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 will seek specific comment on how it might ``further reduce 
the information collection burden for small business concerns with 
fewer than 25 employees.''
    Comments and reply comments must include a short and concise 
summary of the substantive discussion and questions raised in the 
FNPRM. All interested parties should include the name of the filing 
party and the date of the filing on each page of their comments and 
reply comments. The Commission strongly encourages parties to track the 
organization set forth in this FNPRM in order to facilitate our 
internal review process. Comments and reply comments must otherwise 
comply with section 1.48 and all other applicable sections of the 
Commission's rules.

[[Page 47570]]

Synopsis of the Further Notice of Proposed Rulemaking

    1. In the CMAS Second Report and Order, released concurrently with 
this Further Notice of Proposed Rulemaking, the Commission took two 
further steps towards the establishment of a functioning CMAS. First, 
it adopted rules that require NCE and public broadcast television 
station licensees and permittees ``to install necessary equipment and 
technologies on, or as part of, any broadcast television digital signal 
transmitter to enable the distribution of geographically targeted 
alerts by commercial mobile service providers that have elected to 
transmit emergency alerts * * *'' Second, the Commission implemented 
section 602(f) of the WARN Act which requires the Commission to adopt 
rules requiring ``technical testing for commercial mobile service 
providers that elect to transmit emergency alerts and for the devices 
and equipment used by such providers for transmitting such alerts.'' In 
this FNPRM, the Commission seeks comment on whether it should adopt 
rules that require NCE and public broadcast television station 
licensees and permittees to test the equipment that the Commission has 
required that they install in the CMAS Second Report and Order.
    2. Initially, the Commission seeks comment on its authority to 
require testing of this equipment by NCE and public broadcast 
television station licensees and permittees. Does the Commission's 
authority to require the testing of NCE and public broadcast television 
station equipment derive directly from section 602(c) and/or 602(f) of 
the WARN Act? Does it arise from some other legal authority?
    3. In its recommendations, the CMSAAC noted that an important part 
of a successful CMAS will be the ability to effectively test and 
troubleshoot the various CMAS components and interfaces. In this 
regard, the CMSAAC recommended that the Alert Gateway support several 
types of testing, including functional testing for the C interface. 
Accordingly, as indicated above, the Commission requires Participating 
CMS providers to test CMAS alert delivery across the ``C'' interface. 
The rules the Commission adopted in the CMAS Second Report and Order 
require licensees and permittees of NCE and public broadcast television 
stations to install necessary equipment and technologies at, or as part 
of, their digital television transmitters that will provide them with 
the capability to receive CMAS alerts sent from the Alert Gateway over 
a secure, alternate interface and to transmit the alerts to the CMS 
Provider Gateways of participating CMS providers. NCE and public 
broadcast television station licensees and permittees will, in essence, 
provide a redundant path by which participating CMS providers will be 
able to receive geo-targeted alerts. In light of this, should they be 
required to participate in CMAS testing? If so, how should this be 
implemented? Should the Commission implement similar requirements as 
those it has adopted for participating CMS providers in the Second 
Report and Order? Should a different testing regime be implemented 
given the unique characteristics of NCE/public broadcast television 
stations and digital television technology? The Commission seeks 
comment on all of these issues.

Initial Regulatory Flexibility Analysis

    4. As required by the Regulatory Flexibility Act of 1980, 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 FNPRM. Written public comments are 
requested on this IRFA. Comments must be identified as responses to the 
IRFA and must be filed by the deadlines for comments on the FNPRM 
provided in Section IV of the item. The Commission will send a copy of 
the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA). In addition, the FNPRM and 
IRFA (or summaries thereof) will be published in the Federal Register.
    5. Need for, and Objectives of, the Proposed Rules. With the FNPRM, 
the Federal Communications Commission (Commission) seeks comment 
whether it should require non-commercial educational (NCE) and public 
broadcast television station licensees and permittees to test the 
``necessary equipment and technologies [that they have installed] on, 
or as part of, any broadcast television digital signal transmitter to 
enable the distribution of geographically targeted alerts by commercial 
mobile service providers that have elected to transmit emergency 
alerts.'' The Commission seeks comment on this issue in order to 
satisfy the statutory requirement imposed by the WARN Act that the 
Commission implement an effective Commercial Mobile Alert System 
(CMAS).
    6. Section 602(c) of the WARN Act requires the Commission to adopt 
rules under which licensees and permittees of noncommercial educational 
(NCE) broadcast stations or public broadcast stations install necessary 
equipment and technologies on, or as part of, any broadcast television 
digital signal transmitter to enable the distribution of geographically 
targeted alerts by CMS providers that have elected to participate in 
the CMAS. Further, section 602(f) of the WARN Act requires the 
Commission to adopt rules for technical testing requirements for CMS 
providers that elect to transmit emergency alerts and for the devices 
and equipment used by such providers for transmitting such alerts. In 
this FNPRM the Commission seeks comment on questions concerning the 
testing obligations of NCE and public broadcast television station 
licensees and permittees that have installed the equipment required by 
section 602(c) of the WARN Act.
    7. Legal Basis. Authority for the actions proposed in the FNPRM may 
be found in sections 1, 4(i) and (o), 201, 303(r), 403, and 706 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (o), 
201, 303(r), 403, and 606, as well as sections 602(a), (b), (c), (f), 
603, 604 and 606 of the WARN Act.

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rules Will Apply

    8. The RFA directs agencies to provide a description of, and, where 
feasible, an estimate of, the number of small entities that may be 
affected by the rules adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (SBA).
    9. Small Businesses. Nationwide, there are a total of approximately 
22.4 million small businesses, according to SBA data.
    10. Small Organizations. A ``small organization'' is generally 
``any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.'' Nationwide, as of 2002, 
there were approximately 1.6 million small organizations.
    11. Small Governmental Jurisdictions. The term ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, towns,

[[Page 47571]]

townships, villages, school districts, or special districts, with a 
population of less than fifty thousand.'' Census Bureau data for 2002 
indicate that there were 87,525 local governmental jurisdictions in the 
United States. The Commission estimates that, of this total, 84,377 
entities were ``small governmental jurisdictions.'' Thus, the 
Commission estimates that most governmental jurisdictions are small.
    12. Wireless Telecommunications Carriers (except Satellite). Since 
2007, the SBA has recognized wireless firms within this new, broad, 
economic census category. Prior to that time, the SBA had developed a 
small business size standard for wireless firms within the now-
superseded census categories of ``Paging'' and ``Cellular and Other 
Wireless Telecommunications.'' Under the present and prior categories, 
the SBA has deemed a wireless business to be small if it has 1,500 or 
fewer employees. Because Census Bureau data are not yet available for 
the new category, the Commission will estimate small business 
prevalence using the prior categories and associated data. For the 
first category of Paging, data for 2002 show that there were 807 firms 
that operated for the entire year. Of this total, 804 firms had 
employment of 999 or fewer employees, and three firms had employment of 
1,000 employees or more. For the second category of Cellular and Other 
Wireless Telecommunications, data for 2002 show that there were 1,397 
firms that operated for the entire year. Of this total, 1,378 firms had 
employment of 999 or fewer employees, and 19 firms had employment of 
1,000 employees or more. Thus, using the prior categories and the 
available data, the Commission estimates that the majority of wireless 
firms can be considered small.
    13. Cellular Radiotelephone Service. As noted, the SBA has 
developed a small business size standard for small businesses in the 
category ``Wireless Telecommunications Carriers (except satellite).'' 
Under that SBA category, a business is small if it has 1,500 or fewer 
employees. Since 2007, the SBA has recognized wireless firms within 
this new, broad, economic census category. Prior to that time, the SBA 
had developed a small business size standard for wireless firms within 
the now-superseded census categories of ``Paging'' and ``Cellular and 
Other Wireless Telecommunications.'' Under the present and prior 
categories, the SBA has deemed a wireless business to be small if it 
has 1,500 or fewer employees. Because Census Bureau data are not yet 
available for the new category, the Commission will estimate small 
business prevalence using the prior categories and associated data.
    14. For the first category of Paging, data for 2002 show that there 
were 807 firms that operated for the entire year. Of this total, 804 
firms had employment of 999 or fewer employees, and three firms had 
employment of 1,000 employees or more. For the second category of 
Cellular and Other Wireless Telecommunications, data for 2002 show that 
there were 1,397 firms that operated for the entire year. Of this 
total, 1,378 firms had employment of 999 or fewer employees, and 19 
firms had employment of 1,000 employees or more. Thus, using the prior 
categories and the available data, the Commission estimates that the 
majority of wireless firms can be considered small.
    15. Auctions. In addition, the Commission notes that, as a general 
matter, the number of winning bidders that qualify as small businesses 
at the close of an auction does not necessarily represent the number of 
small businesses currently in service. Also, the Commission does not 
generally track subsequent business size unless, in the context of 
assignments or transfers, unjust enrichment issues are implicated.
    16. 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. 
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. These small business 
size standards, in the context of broadband PCS auctions, have been 
approved by the SBA. No small businesses within the SBA-approved small 
business size standards bid successfully for licenses in Blocks A and 
B. There were 90 winning bidders that 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. On March 23, 1999, the Commission reauctioned 155 
C, D, E, and F Block licenses; there were 113 small business winning 
bidders. On January 26, 2001, the Commission completed the auction of 
422 C and F PCS licenses in Auction 35. 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.
    17. 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. Through these auctions, 
the Commission awarded a total of forty-one licenses, 11 of which were 
obtained by four small businesses. 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. 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. 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. The SBA has approved these small business 
size standards. A third auction commenced on October 3, 2001 and closed 
on October 16, 2001. Here, five bidders won 317 (MTA and nationwide) 
licenses. Three of these claimed status as a small or very small entity 
and won 311 licenses.
    18. 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 
for each of the three preceding years, and a ``very small business'' as 
an entity with average gross revenues of $15 million for each of the 
three preceding years. The SBA has approved these definitions. 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.

[[Page 47572]]

    19. 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. 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. 
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. SBA approval of these definitions is not required. 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. 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. 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). 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. 
Accordingly, at this time there are 54 licenses in the 700 MHz Guard 
Bands.
    20. 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 that has attributed average 
annual gross revenues that do not exceed $15 million during 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 $40 million for the preceding three years. 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. The SBA has approved these small size standards.
    21. 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. 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. 
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.
    22. The remaining 62 megahertz of commercial spectrum is currently 
scheduled for auction on January 24, 2008. As explained above, bidding 
credits for all of these licenses will be available to ``small 
businesses'' and ``very small businesses.''
    23. Advanced Wireless Services. In the AWS-1 Report and Order, the 
Commission adopted rules that affect applicants who wish to provide 
service in the 1710-1755 MHz and 2110-2155 MHz bands. The Commission 
did not know precisely the type of service that a licensee in these 
bands might seek to provide. Nonetheless, the Commission anticipated 
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 
Report and Order adopts the same small business size definition that 
the Commission adopted for the broadband PCS service and that the SBA 
approved. In particular, the AWS-1 Report and Order defines 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 AWS-1 Report and 
Order also provides small businesses with a bidding credit of 15 
percent and very small businesses with a bidding credit of 25 percent.
    24. Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service (``BRS''), formerly known as Multipoint 
Distribution Service (``MDS''), and Educational Broadband Service 
(``EBS''), formerly known as Instructional Television Fixed Service 
(``ITFS''), use frequencies at 2150-2162 and 2500-2690 MHz to transmit 
video programming and provide broadband services to residential 
subscribers. 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. The 
Commission estimates that the number of wireless cable subscribers is 
approximately 100,000 as of March 2005. As described below, 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. Other standards also apply, as described.
    25. The Commission has defined small MDS (now BRS) entities in the 
context of Commission license auctions. In the 1996 MDS auction, 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. This definition of a small entity in the context of MDS 
auctions has been approved by the SBA. 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 approximately 392 incumbent MDS licensees that have gross 
revenues that are not more than $40 million and are

[[Page 47573]]

thus considered small entities. MDS licensees and wireless cable 
operators that did not receive their licenses as a result of the MDS 
auction fall under the SBA small business size standard for Cable and 
Other Program Distribution. 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 small entity 
MDS (or BRS) providers, as defined by the SBA and the Commission's 
auction rules.
    26. 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). The Commission estimates 
that there are currently 2,032 EBS licensees, and all but 100 of the 
licenses are held by educational institutions. Thus, the Commission 
estimates that at least 1,932 EBS licensees are small entities.
    27. Common Carrier Paging. As noted, the SBA has developed a small 
business size standard for wireless firms within the broad economic 
census category of ``Wireless Telecommunications Carriers (except 
Satellite).'' Under this category, the SBA deems a business to be small 
if it has 1,500 or fewer employees. Since 2007, the SBA has recognized 
wireless firms within this new, broad, economic census category. Prior 
to that time, the SBA had developed a small business size standard for 
wireless firms within the now-superseded census categories of 
``Paging'' and ``Cellular and Other Wireless Telecommunications.'' 
Under the present and prior categories, the SBA has deemed a wireless 
business to be small if it has 1,500 or fewer employees. Because Census 
Bureau data are not yet available for the new category, the Commission 
will estimate small business prevalence using the prior categories and 
associated data. For the first category of Paging, data for 2002 show 
that there were 807 firms that operated for the entire year. Of this 
total, 804 firms had employment of 999 or fewer employees, and three 
firms had employment of 1,000 employees or more. For the second 
category of Cellular and Other Wireless Telecommunications, data for 
2002 show that there were 1,397 firms that operated for the entire 
year. Of this total, 1,378 firms had employment of 999 or fewer 
employees, and 19 firms had employment of 1,000 employees or more. 
Thus, using the prior categories and the available data, the Commission 
estimates that the majority of wireless firms can be considered small. 
Thus, under this category, the majority of firms can be considered 
small.
    28. 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. 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. The SBA has approved 
these small business size standards. An auction of Metropolitan 
Economic Area licenses commenced on February 24, 2000, and closed on 
March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-
seven companies claiming small business status won. Also, according to 
Commission data, 365 carriers reported that they were engaged in the 
provision of paging and messaging services. Of those, the Commission 
estimates that 360 are small, under the SBA-approved small business 
size standard.
    29. Wireless Communications Service. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses. The Commission established small business size standards for the 
wireless communications services (WCS) auction. A ``small business'' is 
an entity with average gross revenues of $40 million for each of the 
three preceding years, and a ``very small business'' is an entity with 
average gross revenues of $15 million for each of the three preceding 
years. The SBA has approved these small business size standards. The 
Commission auctioned geographic area licenses in the WCS service. In 
the auction, there were seven winning bidders that qualified as ``very 
small business'' entities, and one that qualified as a ``small 
business'' entity.
    30. Wireless Communications Equipment Manufacturers. While these 
entities are merely indirectly affected by the Commission's action, the 
Commission is describing them to achieve a fuller record. The Census 
Bureau defines this category as follows: ``This industry comprises 
establishments primarily engaged in manufacturing radio and television 
broadcast and wireless communications equipment. Examples of products 
made by these establishments are: transmitting and receiving antennas, 
cable television equipment, GPS equipment, pagers, cellular phones, 
mobile communications equipment, and radio and television studio and 
broadcasting equipment.'' The SBA has developed a small business size 
standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: all such firms having 
750 or fewer employees. According to Census Bureau data for 2002, there 
were a total of 1,041 establishments in this category that operated for 
the entire year. Of this total, 1,010 had employment of under 500, and 
an additional 13 had employment of 500 to 999. Thus, under this size 
standard, the majority of firms can be considered small.
    31. Software Publishers. While these entities are merely indirectly 
affected by the Commission's action, the Commission is describing them 
to achieve a fuller record. These companies may design, develop or 
publish software and may provide other support services to software 
purchasers, such as providing documentation or assisting in 
installation. The companies may also design software to meet the needs 
of specific users. The SBA has developed a small business size standard 
of $23 million or less in average annual receipts for the category of 
Software Publishers. For Software Publishers, Census Bureau data for 
2002 indicate that there were 6,155 firms in the category that operated 
for the entire year. Of these, 7,633 had annual receipts of under $10 
million, and an additional 403 firms had receipts of between $10 
million and $24,999,999. For providers of Custom Computer Programming 
Services, the Census Bureau data indicate that there were 32,269 firms 
that operated for the entire year. Of these, 31,416 had annual receipts 
of under $10 million, and an additional 565 firms had receipts of 
between $10 million and $24,999,999. Consequently, the Commission 
estimates that the majority of the firms in this category are small 
entities that may be affected by the Commission's action.
    32. NCE and Public Broadcast Stations. The Census Bureau defines 
this category as follows: ``This industry comprises establishments 
primarily engaged in broadcasting images together with sound. These 
establishments operate television broadcasting studios and facilities 
for the programming and transmission of programs to the public.'' The 
SBA has created a small business size standard for Television 
Broadcasting entities, which is: such firms having $13 million or less 
in annual receipts. According to Commission staff review of the BIA

[[Page 47574]]

Publications, Inc., Master Access Television Analyzer Database as of 
May 16, 2003, about 814 of the 1,220 commercial television stations in 
the United States had revenues of $12 (twelve) million or less. The 
Commission notes, however, that in assessing whether a business concern 
qualifies as small under the above definition, business (control) 
affiliations must be included. The Commission's estimate, therefore, 
likely overstates the number of small entities that might be affected 
by the Commission's action, because the revenue figure on which it is 
based does not include or aggregate revenues from affiliated companies.
    33. 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 estimate 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 its estimates of small businesses to which they apply may 
be over-inclusive to this extent. There are also 2,117 low power 
television stations (LPTV). Given the nature of this service, the 
Commission will presume that all LPTV licensees qualify as small 
entities under the above SBA small business size standard.
    34. The Commission has, under SBA regulations, estimated the number 
of licensed NCE television stations to be 380. The Commission notes, 
however, that, in assessing whether a business concern qualifies as 
small under the above definition, business (control) affiliations must 
be included. The Commission's estimate, therefore, likely overstates 
the number of small entities that might be affected by the Commission's 
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.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    35. There are potential reporting or recordkeeping requirements 
proposed in this FNPRM. For example, any testing regime will entail 
some form of record keeping. The FNPRM also seeks comment on potential 
testing procedures for the CMAS that could affect CMS providers as well 
as Wireless Communications Equipment Manufacturers. The proposals set 
forth in the FNPRM are intended to advance the Commission's public 
safety mission and establish an effective CMAS in a manner that imposes 
minimal regulatory burdens on affected entities.

Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    36. The RFA requires an agency to describe any significant 
alternatives that it has considered in developing its approach, which 
may include the following four alternatives (among others): ``(1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
such small entities.''
    37. As noted in paragraph 1 above, this FNPRM seeks comment on the 
narrow question of whether the Commission should require NCE and public 
broadcasting television licensees and permittees to test any equipment 
that they are required to install pursuant to section 602(c) of the 
WARN Act. In commenting on this question, commenters are invited to 
propose steps that the Commission may take to minimize any significant 
economic impact on small entities. When considering proposals made by 
other parties, commenters are invited to propose significant 
alternatives that serve the goals of these proposals.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    38. None.

Ex Parte Rules

    39. These matters 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 is generally required. Other requirements 
pertaining to oral and written presentations are set forth in section 
1.1206(b) of the Commission's rules.

Ordering Clauses

    40. It is ordered, that pursuant to sections 1, 4(i) and (o), 201, 
303(r), 403, and 706 of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and 606, as well as by 
sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act, this 
Further Notice of Proposed Rulemaking is hereby adopted.
    41. It is further ordered that the Commission's Consumer and 
Government Affairs Bureau, Reference Information Center, shall send a 
copy of this Further Notice of Proposed Rulemaking, including the 
Initial Regulatory Flexibility Analysis, to the Chief Council for 
Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-18143 Filed 8-13-08; 8:45 am]
BILLING CODE 6712-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>