47568 Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Proposed Rules 

requests shall be addressed to 

FOIA@lsc.gov or, in the case of requests 

for records maintained by the Office of 

Inspector General, FOIA@oig.lsc.gov. 

Any request not marked and addressed 

as specified in this paragraph will be so 

marked by Corporation personnel as 

soon as it is properly identified, and 

will be forwarded immediately to the 

Office of Legal Affairs, or as appropriate, 

the Office of Inspector General. A 

request improperly addressed will only 

be deemed to have been received as in 

accordance with paragraph (i) of this 

section. Upon receipt of an improperly 

addressed request, the General Counsel 

or designee (or Counsel to the Inspector 

General or designee) shall notify the 

requester of the date on which the time 

period began. 

* * * * * 

(i)(1)(i) The General Counsel or 

designee, upon request for any records 

made in accordance with this section, 

except in the case of a request for Office 

of Inspector General records, shall make 

an initial determination of whether to 

comply with or deny such request and 

dispatch such determination to the 

requester within 20 days (excepting 

Saturdays, Sundays and legal public 

holidays) after receipt of such request, 

except for unusual circumstances, in 

which case the time limit may be 

extended for up to 10 working days by 

written notice to the requester setting 

forth the reasons for such extension and 

the date on which a determination is 

expected to be dispatched. 

(ii) In the case of a request for any 

Office of Inspector General records 

made in accordance with this section, 

the Counsel to the Inspector General or 

designee shall make an initial 

determination of whether to comply 

with or deny such request and dispatch 

such determination to the requester 

within 20 days (excepting Saturdays, 

Sundays and legal public holidays) after 

receipt of such request, except for 

unusual circumstances, in which case 

the time limit may be extended for up 

to 10 working days by written notice to 

the requester setting forth the reasons 

for such extension and the date on 

which a determination is expected to be 

dispatched. 

(2)(i) If the General Counsel or 

designee determines that a request or 

portion thereof is for the Office of 

Inspector General records, the General 

Counsel or designee shall promptly refer 

the request or portion thereof to the 

Office of Inspector General and send 

notice of such referral to the requester. 

If the Counsel to the Inspector General 

or designee determines that a request or 

portion thereof is for Corporation 

records not maintained by the Office of 

Inspector General, the Counsel to the 

Inspector General or designee shall 

promptly refer the request or portion 

thereof to the Office of Legal Affairs and 

send notice of such referral to the 

requester. 

(ii) The 20-day period under 

paragraph (i)(1) of this section shall 

commence on the date on which the 

request is first received by the 

appropriate Office (the Office of Legal 

Affairs or the Office of Inspector 

General), but in no event later than 10 

working days after the request has been 

received by either the Office of Legal 

Affairs or the Office of Inspector 

General. The 20-day period shall not be 

tolled by the Office processing the 

request except that the processing Office 

may make one request to the requester 

for information pursuant to paragraph 

(c) of this section and toll the 20-day 

period while it is awaiting such 

information that it has reasonably 

requested from the requester under this 

section; or, if necessary to clarify with 

the requester issues regarding fee 

assessment. In either case, the 

processing Office’s receipt of the 

requester’s response to such a request 

for information or clarification ends the 

tolling period. 

* * * * * 

5. Paragraph (b) of § 1602.9 is revised 

to read as follows: 

§ 1602.9 Exemptions for withholding 

records. 

* * * * * 

(b) In the event that one or more of the 

exemptions in paragraph (a) of this 

section apply, any reasonably segregable 

portion of a record shall be provided to 

the requester after deletion of the 

portions that are exempt. The amount of 

information deleted and the exemption 

under which the deletion is being made 

shall be indicated on the released 

portion of the record, unless doing so 

would harm the interest protected by 

the exemption under which the deletion 

is made. If technically feasible, the 

amount of information deleted and the 

exemption under which the deletion is 

being made shall be indicated at the 

place in the record where the deletion 

occurs. 

* * * * * 

6. Paragraph (b) of § 1602.10 is revised 

to read as follows: 

§ 1602.10 Officials authorized to grant or 

deny requests for records. 

* * * * * 

(b) The General Counsel or designee 

and the Counsel to the Inspector 

General or designee are authorized to 

grant or deny requests under this part. 

In the absence of a Counsel to the 

Inspector General, the Inspector General 

shall name a designee who will be 

authorized to grant or deny requests 

under this part and who will perform all 

other functions of the Counsel to the 

Inspector General under this part. The 

General Counsel or designee shall 

consult with the Office of the Counsel 

to the Inspector General or designee 

prior to granting or denying any request 

for records or portions of records which 

originated with the Office of Inspector 

General, or which contain information 

which originated Office of Inspector 

General, but which are maintained by 

other components of the Corporation. 

The Counsel to the Inspector General or 

designee shall consult with the Office of 

the General Counsel prior to granting or 

denying any request for records or 

portions of records which originated 

with any component of the Corporation 

other than the Office of Inspector 

General, or which contain information 

which originated with a component of 

the Corporation other than the Office of 

Inspector General, but which are 

maintained by the Office of Inspector 

General. 

7. Section 1602.13 is amended by 

designating paragraph (b) as (b)(1) and 

adding a paragraph (b)(2) to read as 

follows: 

§ 1602.13 Fees. 

* * * * * 

(b) * * * 

(2) If no unusual circumstances, as set 

forth in § 1602.8 apply, if LSC has failed 

to comply with the time limits set forth 

in that section, otherwise applicable 

search fees will not be charged to a 

requester. In the case of a requester who 

is a representative of the news media, 

otherwise applicable duplication fees 

will not be charged. 

* * * * * 

Victor M. Fortuno, 

Vice President & General Counsel. 

[FR Doc. E8–18450 Filed 8–13–08; 8:45 am] 

BILLING CODE 7050–01–P 

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 


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Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Proposed Rules 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: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov/. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web Site: http:// 

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

instructions for submitting comments. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202–

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

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 email at FCC@BCPIWEB.COM. 

Alternative formats (computer diskette, 

large print, audio cassette, and Braille) 

are available to persons with disabilities 

by sending an e-mail to FCC504@fcc.gov 

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). 

✖ 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. 

› 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 email to ecfs@fcc.gov, and include the 

following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

› Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. 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. 

› The Commission’s contractor will 

receive hand-delivered or messengerdelivered 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. 

› Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

› U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

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 FCC504@fcc.gov 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. 


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47570 Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Proposed Rules 

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-forprofit 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, 


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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. 


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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 nonGuard Band spectrum in the 700 MHz 

Band that is designated for commercial 

use: 698–757, 758–763, 776–787, and 

788–793 MHz Bands. With one 

exception, the Commission adopted 

criteria for defining two groups of small 

businesses for purposes of determining 

their eligibility for bidding credits at 

auction. These two categories are: (1) 

‘‘Small business,’’ which is defined as 

an entity 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. Seventytwo 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 highspeed 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 


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Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Proposed Rules 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. Fiftyseven 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 


rfrederick on PROD1PC67 with PROPOSALS
47574 Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / Proposed Rules 

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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 22 

[FWS–R9–MB–2008–0057; 91200–1231–

9BPP–L3] 

RIN 1018–AV81 

Eagle Permits; Take Necessary To 

Protect Interests in a Particular 

Locality 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; notice of 

availability of draft environmental 

assessment. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (we or us), announce 

the availability of a draft environmental 

assessment (DEA) evaluating options for 

managing take of bald eagles and golden 

eagles under the Bald and Golden Eagle 

Protection Act (Eagle Act). The DEA 

examines the effects of the action we 

proposed in a June 5, 2007 proposed 

rulemaking to establish two new 

permits under the Eagle Act (72 FR 


rfrederick on PROD1PC67 with PROPOSALS