[Federal Register Volume 73, Number 183 (Friday, September 19, 2008)]
[Rules and Regulations]
[Pages 54325-54334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21892]



[[Page 54325]]

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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

47 CFR Part 301

[Docket Number: 080324461-81121-02]
RIN 0660-AA17


Household Eligibility and Application Process of the Coupon 
Program for Individuals Residing in Nursing Homes, Intermediate Care 
Facilities, Assisted Living Facilities and Households that Utilize Post 
Office Boxes

AGENCY: National Telecommunications and Information Administration, 
Commerce.

ACTION: Final rule.

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SUMMARY: In this document, the National Telecommunications and 
Information Administration (NTIA) adopts certain changes affecting 
section 301.3 of its Digital-to-Analog Converter Box Coupon Program 
regulations. See 47 CFR Sec.  301.3. Specifically, NTIA waives the 
``eligible household'' and application requirements in subsection 
301.3(a) and subsection 301.3(e), respectively, for individuals 
residing in nursing homes, intermediate care facilities, and assisted 
living facilities, subject to alternative application requirements 
specified herein. NTIA also amends paragraph 301.3(a)(2) to permit an 
otherwise eligible household that utilizes a post office box for mail 
receipt to apply for and receive coupons.

EFFECTIVE DATE: These regulations become effective October 20, 2008.

ADDRESSES: A complete set of comments filed in response to the Notice 
of Proposed Rulemaking is available for public inspection at the Office 
of the Chief Counsel, National Telecommunications and Information 
Administration, 1401 Constitution Avenue, Room 4713, Washington, DC 
20230. The comments can also be viewed at http://www.ntia.doc.gov and 
at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Milton Brown at (202) 482-1816.

SUPPLEMENTARY INFORMATION:

I. Background

    The Digital Television Transition and Public Safety Act of 2005 
(the Act), among other things, authorized NTIA to create a Digital-to-
Analog Converter Box Coupon Program (Coupon Program) to assist 
consumers to continue receiving broadcast programming over the air 
using analog-only televisions not connected to cable or satellite 
service after the February 17, 2009 deadline for full power stations 
that convert to digital-only transmissions.\1\ Specifically, section 
3005 of the Act directed NTIA to implement and administer a program 
through which eligible U.S. households may obtain via the United States 
Postal Service a maximum of two coupons of $40 each to be applied 
towards the purchase of Coupon-Eligible Converter Boxes (CECB). To 
implement the Coupon Program, NTIA issued final regulations on March 
15, 2007.\2\
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    \1\ Title III of Pub. L. No. 109-171, 120 Stat. 4, 21 (2006).
    \2\ 47 CFR Part 301.
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    Since NTIA began accepting applications for coupons on January 1, 
2008, the Program has received a number of applications submitted by, 
or on behalf of, individuals residing in nursing homes and from 
applicants who utilize post office boxes for mail receipt. Because 
these applicants do not meet the current eligibility criteria under the 
Coupon Program regulations, these applications have been denied. On 
April 24, 2008, NTIA published a Notice of Proposed Rulemaking (NPRM) 
and Request for Comment in the Federal Register that proposed to waive 
the ``eligible household'' and application requirements in subsection 
301.3(e) for individuals residing in nursing homes or other senior care 
facilities, subject to alternative application requirements.\3\ The 
NPRM also proposed to amend paragraph 301(a)(2) to permit an otherwise 
eligible household that utilizes a post office for mail receipt to 
apply for and receive coupons subject to providing satisfactory proof 
of a physical residence.
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    \3\ Notice of Proposed Rulemaking and Request for Comment: The 
Household Eligibility and Application Process of the Coupon Program 
for Individuals Residing in Nursing Homes and Households that 
Utilize Post Office Boxes; Waiver, 73 Fed. Reg. 22120 (April 24, 
2008).
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II. Discussion

A. Nursing Home Residents

    NTIA recognizes that our Nation's seniors, including those residing 
in nursing homes and other senior care facilities, constitute a 
vulnerable community that may rely on free, over-the-air television to 
a greater degree than other members of the public.\4\ Unfortunately, 
the current eligibility requirements of the program do not permit 
seniors living in nursing homes to avail themselves of the Coupon 
Program. In the NPRM, NTIA proposed to waive the current household 
eligibility and application process set forth at 47 CFR Sec.  301.3 and 
to permit these individuals to apply for and receive one coupon under 
certain circumstances. In the NPRM, NTIA also sought public comments on 
the best way to distribute coupons to verifiable residents of nursing 
home facilities so that the Coupon Program could be administered 
effectively within its existing resources. Finally, NTIA sought 
comments on ways that the coupons could be distributed in a manner that 
minimizes waste, fraud and abuse.
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    \4\ See Testimony of John M. R. Kneuer, Assistant Secretary for 
Communications and Information, Before the Committee on Commerce, 
Science and Transportation, United States Senate (Oct. 17, 2007) 
(recognizing seniors as a targeted group that depends on over-the-
air television to a greater extent than the general population), 
available at http://www.ntia.doc.gov/ntiahome/congress/2007/Kneuer_SenateCommerce_101707.htm.
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Identification of Nursing Homes or Other Senior Care Facilities
    The initial challenge presented in the proposed rule is identifying 
and defining what constitutes nursing homes or other senior care 
facilities. As NTIA recognized in the NPRM, the terms ``nursing home'' 
and ``senior care facility'' are generic. There are many facilities 
that care for elderly residents that may be considered nursing homes in 
the general sense. These include assisted living facilities, continuing 
care retirement communities, convalescent rest homes and long-term care 
facilities. In the NPRM, NTIA proposed to use a facility's inclusion in 
the Online Survey, Certification and Reporting (OSCAR) database which 
is maintained by the U.S. Department of Health and Human Services (HHS) 
Center for Medicare and Medicaid Services (CMS) in cooperation with the 
state long-term care surveying agencies, as a basis for identifying 
facilities that would be recognized by the Coupon Program.\5\ Such 
databases determine a nursing facility's eligibility to participate in 
the Medicare program based on a State's certification of compliance and 
a facility's compliance with civil rights requirements.\6\ However, 
recognizing that not all nursing homes in the United States are 
included within the OSCAR database, NTIA sought comments on ways to 
ensure that all appropriate facilities not otherwise in the OSCAR 
database are identified and included in the proposed waiver standards.
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    \5\ OSCAR is a compilation of all the data elements collected by 
surveyors during the inspection survey conducted at nursing 
facilities for the purpose of certification for participation in the 
Medicare and Medicaid programs. The institutional files are 
available at http://www.cms.hhs.gov/HealthPlanRepFileData/05_Inst.asp.
    \6\ See generally, 42 CFR Part 403.
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    The comments submitted in response to the NPRM revealed that there 
is no

[[Page 54326]]

clear definition for what constitutes a nursing home; rather there are 
many types of residential facilities that serve the elderly. Some 
commenters suggested that NTIA expand the proposed waiver to include 
facilities other than nursing homes. For example, the American Health 
Care Association (AHCA) and the National Center for Assisted Living 
(NCAL) recommended that NTIA expand the definition of nursing homes to 
include assisted living and developmental disabilities facilities.\7\ 
On the other hand, the Metropolitan Area Communications Commission 
(MACC) suggested that the definition of nursing home include any 
residential care facility that serves three or more elderly residents 
in a group setting.\8\ Another commenter suggested that the term 
``eligible nursing home'' should include ``any asylum, institute, 
residence, lodging, annex, center, substitute home, house, mission or 
shelter devoted to the care of more than 2 elderly people, for 24 hours 
a day, for profit or non-profit.''\9\
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    \7\ See American Health Care Association and the National Center 
for Assisted Living (AHCA/NCAL) Comments at 2.
    \8\ See Metropolitan Area Communications Commission (MACC) 
Comments at 1.
    \9\ See Puerto Rico Telecommunications Board (Puerto Rico) 
Comments at 4.
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    Numerous commenters sought the expansion of the proposed waiver 
eligibility through the use of the term ``long-term care facility'' as 
opposed to ``nursing home.''\10\ The term ``long-term care facility,'' 
as proposed by these commenters, would expand the eligibility of the 
proposed waiver request beyond nursing homes that care for the elderly. 
For example, some commenters' proposed definition of long-term facility 
could expand eligibility to include group homes, intermediate care 
facilities, schools, hospitals, and other institutional settings.\11\ 
Moreover, commenters such as the National Citizen's Coalition for 
Nursing Home Reform, argue that age should not be an artificial barrier 
that would prevent some vulnerable adults and youths from having access 
to this benefit.\12\ The Adult Home Advocacy Project (AHAP), citing a 
National Nursing Home Survey, stated that approximately 12 percent of 
nursing home residents are under 65 years of age.\13\
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    \10\ See Office of the D.C. Long-Term Care Ombudsman Program 
(D.C. Ombudsman) Comments at 1.
    \11\ See Texas Long-Term Care Ombudsman Program, Texas 
Department of Aging and Disability Services (TX Ombudsman) Comments 
at 1; Ohio State Long-Term Care Ombudsman (OH Ombudsman) Comments at 
1; D.C. Ombudsman Comments at 1; Advocacy Group for Elders Council 
at the Senior Source (Senior Source) Comments at 1.
    \12\ See National Citizen's Coalition for Nursing Home Reform 
(NCCNHR) Comments at 3-4.
    \13\ See Adult Home Advocacy Project of MFY Legal Services 
(AHAP) Comments at 3-4 (citing the National Nursing Home Survey 
2008, Table 1, available at http://www.cdc.gov/nchs/data/nnhsd/
Estimates/Estimates_Demographics_Tables.pdf<greek-i>Table01.
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    Some commenters focused on licensing by a state agency as a 
threshold for defining nursing homes for purposes of this action. For 
example, the University of Texas Houston Health Science Center, Center 
for Aging, stated that NTIA should define nursing home as any licensed 
facility that is in good standing with the state in which it 
operates.\14\ Likewise, the AHAP stated that the waiver should include 
individuals residing in all licensed facilities, including adult homes, 
which are defined under New York state law as ```an adult care facility 
established and operated for the purpose of providing long-term 
residential care, room, board, housekeeping, personal care and 
supervision to five or more adults unrelated to the operator.'''\15\ 
AHCA/NCAL recommended that if NTIA wanted a more comprehensive way of 
identifying and verifying care facilities, it should contact state 
assisted living residential care licensing agencies which are listed on 
NCAL's Assisted Living State Regulatory Review 2008.\16\
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    \14\ See University of Texas Houston Health Science Center, 
Center for Aging (Houston Center for Aging) Comments at 1.
    \15\ See AHAP Comments at 2; see also 18 N.Y. Comp. Codes R. & 
Regs. Sec.  485.2(b).
    \16\ See Comments of AHCA/NCAL at 2; see also www.ncal.org for a 
list of state assisted living/residential care licensing agencies.
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    AHAP further suggested that NTIA refer to the eligibility 
requirements and definitions for the U.S. Department of Housing and 
Urban Development's (HUD) mortgage insurance program for nursing homes, 
intermediate care, board and care homes, and assisted-living facilities 
as provided in 12 U.S.C. Sec.  1715.\17\ HUD's regulations provide 
definitions for nursing homes, intermediate care facilities, board and 
home care facilities, and assisted living facilities. AHAP's 
recommendation was useful to NTIA in defining the eligibility criteria 
for the waiver.
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    \17\ AHAP Comments at 5.
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    NTIA agrees with commenters that the proposed waiver should be 
expanded to include facilities other than nursing homes. As noted in 
the NPRM, there are many facilities that care for elderly residents 
that may be considered ``nursing homes'' in the generic sense. While 
NTIA agrees that the residents of some of these facilities suggested by 
commenters, should be eligible for the waiver, commenters failed to 
define the scope of the facilities. For example, NTIA agrees with AHCA/
NCAL that the waiver should be available to residents of assisted 
living facilities and developmental disabilities facilities who cannot 
currently obtain coupons under the current regulations. AHCA/NCAL, 
however, did not provide a definition of ``assisted living facilities'' 
or ``developmental disabilities facilities.'' Both of those terms could 
encompass many different types of facilities which may not be 
responsive to the purpose of this waiver. A similar problem exists for 
those commenters that suggested that NTIA simply make the waiver 
available to residents of ``long term care facilities.''
    Likewise, MACC's comment that NTIA should recognize any residential 
care facility that serves three or more elderly residents in a group 
setting failed to provide an adequate rationale for adoption for a 
standard to be used by the Program. Finally, NTIA disagrees with the 
comment from the Puerto Rico Telecommunications Board that ``eligible 
nursing home should include 'any asylum, institute, residence, lodging, 
annex, center, substitute home, house, mission or shelter devoted to 
the care of more than 2 elderly people for 24 hours a day, for profit 
or non-profit.'' These terms provide no certainty for the Program to 
determine the scope of eligibility, or the function of these 
facilities.
    Clear guidelines are necessary so that NTIA can effectively respond 
to a request for waiver. NTIA's intent is to ensure that individuals 
seeking a waiver, are indeed permanent residents of appropriate 
facilities. Accordingly, NTIA will make the waiver of eligibility under 
the Coupon Program only available to residents of nursing homes, 
intermediate care facilities, and assisted living facilities 
(collectively referred to hereafter as ``facilities'') as defined 
herein.\18\ Intermediate care and assisted living facilities were added 
to the scope of eligibility because these facilities, as defined 
herein, provide many of these services for the elderly that are 
associated with nursing homes. NTIA also notes that these facilities 
encompass many of the facilities described by the commenters and may

[[Page 54327]]

include residents who vary in age and needs.
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    \18\ As recommended by AHAP, NTIA referred to the eligibility 
requirements and definitions for the U.S. Department of Housing and 
Urban Development's (HUD) mortgage insurance program for nursing 
homes, intermediate care, board and care homes, and assisted-living 
facilities as provided in 12 U.S.C. Sec.  1715 to craft its 
definitions for eligibility for the waiver.
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    Accordingly, NTIA will make the waiver of eligibility available to 
residents of nursing homes which are defined as ``a public facility, 
proprietary facility or facility of a private nonprofit corporation or 
association, licensed by the State for the accommodation of 
convalescents or other persons who are not acutely ill and not in need 
of hospital care but who require skilled nursing care and related 
medical services, in which such nursing care and medical services are 
prescribed by, or are performed under the general direction of, persons 
licensed to provide such care or services in accordance with the laws 
of the State where the facility is located.'' The waiver will also be 
available to residents of intermediate care facilities defined as ``a 
proprietary facility or facility of a private nonprofit corporation or 
association licensed by the State for the accommodation of persons who, 
because of incapacitating infirmities, require minimum but continuous 
care but are not in need of continuous medical or nursing services.'' 
Finally, NTIA will make the waiver available to residents of an 
assisted living facility defined as ``a public facility, proprietary 
facility, or facility of a private nonprofit corporation that: is 
licensed by the State and makes available to residents supportive 
services to assist the residents in carrying out activities of daily 
living, such as bathing, dressing, eating, getting in and out of bed or 
chairs, walking, going outdoors, using the toilet, laundry, home 
management, preparing meals, shopping for personal items, obtaining and 
taking medication, managing money, using the telephone, or performing 
light or heavy housework, and which may make available to residents 
home health care services, such as nursing and therapy; and provides 
separate dwelling units for residents, each of which may contain a full 
kitchen and bathroom, and which includes common rooms and other 
facilities appropriate for the provision of supportive services to the 
residents of the facility.''
    Each facility described above must be licensed by a State. We agree 
with those commenters that focused on licensing by a state agency as a 
threshold for defining eligibility for the purpose of this waiver. 
Licensure of the facilities requires that they meet standards in 
service and care, that they are legitimate and verifiable operations, 
and are held to a higher standard as a long-term care facility. 
Licensure also ensures that facilities have passed state scrutiny, 
reducing the risk of fraud in applications for coupons. Moreover, 
licensing enables NTIA to verify that a facility is in fact one that 
caters to individuals that the program is attempting to reach.
Administration of Coupon Program for Residents
    Another challenge recognized in the NPRM is the application process 
for coupons by facility home residents. NTIA recognized that residents 
may need assistance in the application process to receive coupons. 
Therefore, NTIA proposed to allow residents to apply for a coupon, or 
an administrator of a nursing home facility or other persons designated 
to act on behalf of a nursing home resident.
    To mitigate risks associated with the lack of readily available 
information to authenticate requests from or on behalf of nursing home 
residents, NTIA proposed an exception to our existing coupon 
eligibility and application requirements that would enable residents of 
eligible nursing homes, as defined herein, to apply for and receive 
coupons subject to certain additional information requirements not 
otherwise applicable to eligible households. Specifically, NTIA 
proposed to permit coupon applications to be submitted by, or on behalf 
of, a resident of an eligible nursing home using one of three methods, 
provided that only one application may be submitted for any individual.
Individual
    NTIA proposed to permit an individual residing in an eligible 
nursing home (nursing home resident) to apply for one (1) coupon on his 
or her own behalf. In such circumstances, NTIA proposed that the coupon 
applicant be required to include: (i) his or her name, date of birth, 
and Social Security Number (SSN); (ii) the name and address of the 
eligible nursing home; and (iii) a certification from the nursing home 
resident as to whether he or she receives television exclusively over 
the air or through cable, satellite or other pay television service. In 
the NPRM, NTIA noted that in accordance with the Privacy Act of 1974, 
disclosure of an individual's SSN for purposes of this waiver process 
would be voluntary; however, additional information to verify the 
resident's identity will be solicited if the individual chooses not to 
disclose the SSN.\19\ NTIA noted, however, that such additional process 
may delay the resident's receipt of a coupon.
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    \19\ The Privacy Act of 1974 provides that it ``shall be 
unlawful for any Federal, State or local government agency to deny 
to any individual any right, benefit, or privilege provided by law 
because of such individual's refusal to disclose his social security 
number.'' 5 U.S.C. Sec.  552a.
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    A majority of commenters opposed the collection of a nursing home 
resident's SSN and date of birth.\20\ These commenters argued that the 
collection of this information violates a nursing home resident's 
privacy and could lead to identity theft or fraud. Other commenters 
argued that this requirement should not be imposed on nursing home 
residents if it is not imposed on other coupon program applicants.\21\ 
AHCA/NCAL argued that because the potential for fraud in this program 
is very low, NTIA should take the applicant's word on the application 
form, just as the agency takes the information of persons living in 
individual homes at face value.\22\ One commenter agreed that NTIA 
should be allowed to collect SSNs and birthdates of nursing home 
residents, as well as the people applying on their behalf, but proper 
precautions should be in place to protect against identity theft.\23\
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    \20\ See Tiffany Smith Comments at 1; D.C. Ombudsman Comments at 
2; MACC Comments at 2; AHCA/NCAL Comments at 3; National Association 
of Telecommunications Officers and Advisors (NATOA) Comments at 4; 
State of New York Consumer Protection Board (NY CPB) Comments at 2; 
AARP Comments at 5; Senior Source Comments at 1; City of Seattle 
Comments at 2; NCCNHR Comments at 2.
    \21\ See NATOA Comments at 4; City of Seattle Comments at 2.
    \22\ See AHCA/NCAL Comments at 2.
    \23\ See Houston Center for Aging Comments at 1.
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    However, after careful consideration has been given to all of the 
arguments raised in the comments, NTIA has decided not to require 
facility residents to provide SSNs as part of the application process. 
NTIA's concern, when it initially proposed to require SSNs, was to 
reduce opportunities for fraud, waste and abuse in the program. NTIA 
believes that there are legitimate concerns regarding privacy and 
identity theft, which outweigh the potential for fraud in the program, 
and thus has determined that it is not necessary to collect this 
information. Likewise, NTIA will not require facility residents to 
provide their date of birth as part of the application process. All 
other provisions published in the proposed rule are adopted without 
change.
Person Designated to Act on a Resident's Behalf
    As stated above, NTIA recognizes that nursing home residents may 
need assistance in the application process to receive coupons. 
Therefore, NTIA proposed to permit a person designated to act on behalf 
of a nursing home resident (the designee) to request one (1)

[[Page 54328]]

coupon for that resident. In that case, NTIA proposed that the designee 
be required to provide all of the information required of the nursing 
home resident. In addition, NTIA propose that the designee supply: (i) 
his own name, address, SSN, and date of birth; and (ii) evidence that 
he is empowered to act on behalf of the resident (e.g., power of 
attorney or birth certificate indicating familial relationship).
    Commenters opposed the proposed requirement that third parties 
acting on a nursing home resident's behalf should provide SSNs and date 
of birth. For example, the Advocacy Group for Elders Council at the 
Senior Source argued that legally authorized representatives should not 
have to provide more information than their name and address to request 
coupons on behalf of a nursing home resident.\24\ Some commenters 
argued that such a requirement was not only onerous, but may well 
convince a third party to withdraw the offer of assistance.\25\ Other 
commenters complained that proof of power of attorney or proof of a 
familial relationship is also too burdensome.\26\ Still others 
recommended that a box on the application indicating the relationship 
of the filer to the applicant would be sufficient.\27\
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    \24\ See Senior Source Comments at 1.
    \25\ See D.C. Ombudsman Comments at 2; NATOA Comments at 5 
(requirements for third-parties filing on behalf of residents could 
have chilling effect on the willingness of parties to assist 
residents in submitting applications).
    \26\ See AHCA/NCAL Comments at 3; Comments of AARP at 6.
    \27\ See Texas Ombudsman Comments at 2 (The application should 
include an additional line stating: ``I am completing this 
application for a resident in a long-term care facility.'')
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    NTIA recognizes that residents of these facilities will need 
assistance from family and friends and, therefore, it will not 
implement a procedure that may deter that assistance. Requiring family 
members and friends to provide personal information may have the 
unintended consequence of deterring them from assisting residents in 
filling out an application and procuring a converter box. NTIA will 
permit family members and friends of the residents of the eligible 
facilities to apply on behalf of those residents, but it will not 
collect any personal information about the family member or friend. The 
family member or friend will only have to provide information as it 
relates to the resident. In other words, the family member or friend 
would provide the same information on an application that the resident 
would provide. All other requirements published in the proposed rule 
are adopted without change.
Administrator of a Nursing Home or Other Senior Care Facility
    NTIA also proposed in the NPRM that an administrator of an eligible 
nursing home may request one (1) coupon on behalf of a nursing home 
resident of the facility. As with the designee, the administrator would 
be required to provide for each resident for whom the request is being 
made all of the information specified in Option 1 above. In addition, 
NTIA proposed that the administrator be required to provide: (i) the 
name and address of the residents' eligible nursing home; (ii) the 
administrator's own name, SSN, and date of birth; and (iii) a copy of 
each facility's operating license indicating the administrator's 
authorization to administer the eligible nursing home.
    Many commenters disagreed with the proposed requirements on 
administrators of nursing homes that would submit applications on 
behalf of nursing home residents. With respect to a copy of a 
facility's operating license, commenters argue that such a requirement 
would be onerous, and takes time away from providing care to nursing 
home residents.\28\ Other commenters opposed NTIA's proposal to request 
the administrator's SSN.\29\ The Office of the D.C. Long-Term Care 
Ombudsman Program, Legal Counsel to the Elderly, however, argued that 
requiring an administrator to produce an operating license would be 
sufficient, but requiring the submission of a SSN in addition to the 
license would be overly burdensome.\30\
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    \28\ See AHCA/NCAL Comments at 3; ACTS Retirement-Life 
Communities (ACTS) Comments at 1; Wesley Manor Inc. Comments at 1.
    \29\ See Stephen Eggles Comments at 1.
    \30\ See D.C. Ombudsman Comments at 2.
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    Some commenters suggested that NTIA permit administrators or local 
coalition of senior care provider agencies to submit batch applications 
to NTIA for coupons on behalf of seniors that the coalition represents 
and that the coupons should be returned to the administrator or 
coalition rather than the individual seniors.\31\ Another commenter 
suggested that if a facility administrator is given the right to 
request coupons on behalf of residents, others should be able to submit 
applications as well including social workers, long-term ombudsmen, and 
other medical staff who work at the facility.\32\
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    \31\ See Bridget Samuel Comments at 2; City of Seattle Comments 
at 2.
    \32\ See Houston Center for Aging Comments at 1.
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    Based on the comments submitted, NTIA decided that it will permit 
administrators of long-term care facilities to apply on behalf of its 
residents, but it will not collect any personal information about the 
administrator. NTIA agrees with the commenters that there are 
legitimate concerns regarding privacy, identity theft and application 
burdens, which outweigh the potential for fraud in the program. The 
administrator will only have to provide information as it relates to 
the long-term care resident. In other words, the administrator would 
provide the same information on an application that the resident would 
provide. Moreover, NTIA will not require the administrator to provide a 
copy of the facility's operating license indicating the administrator's 
authorization to administer the facility as part of the application 
process. All other requirements published in the proposed rule are 
adopted without change.
Applicability of Other Provisions of the Coupon Program Rule
    Consistent with section 301.4(d) of the Coupon Program rules, NTIA 
proposed to send coupons to nursing home residents via U.S. Postal 
Service to the address of the eligible nursing home specified in the 
application. In the case of a request from an administrator on behalf 
of a nursing home resident, NTIA proposed to mail the coupon directly 
to the requesting administrator at the address provided for the 
facility in the application. Because of NTIA's decision not to collect 
any personal information from an administrator, family member or friend 
that assists a resident in applying for a coupon, NTIA will mail the 
coupon directly to the nursing home resident at the address provided on 
the application. In any case, NTIA will only mail one (1) coupon in 
response to a successful waiver application.
    NTIA also proposed that a coupon issued pursuant to this waiver 
process may only be used to purchase a CECB to be connected to a 
television set individually-owned by the nursing home resident on whose 
behalf the application was made. Moreover, CECBs purchased with coupons 
issued under this process may not be connected to television sets owned 
by the nursing home or senior care facility. One commenter recommended 
that the coupon program permit reimbursement for common area 
televisions because in many cases, these televisions are the only sets 
available to residents of very limited means.\33\ NTIA was not 
persuaded by this comment. Televisions in common areas are more than 
likely owned by the facility, not the resident.

[[Page 54329]]

 There is nothing in the record that indicates that businesses owning 
these facilities are vulnerable and in need of the assistance provided 
by the waiver. Therefore, coupons issued pursuant to this waiver may 
only be used to purchase converter boxes to be connected to a 
television set individually owned by a resident. Coupons are not to be 
used to purchase converter boxes for television sets owned by nursing 
homes, intermediate care facilities or assisted living facilities.
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    \33\ See City of Seattle Comments at 2.
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    Finally, the NPRM made it clear that the Coupon Program would not 
reimburse individuals, family members, nursing home administrators or 
others who may be designated to act on behalf of residents for any 
costs these individuals may incur in obtaining coupons or providing 
other assistance related to obtaining and installing converter boxes. 
There were no comments submitted in response to that proposal. 
Therefore, NTIA will not, as part of this waiver, reimburse 
individuals, family members, nursing home administrators or others who 
may be designated to act on behalf of residents for costs incurred in 
obtaining coupons or providing other assistance related to applying for 
a coupon, or obtaining and installing a converter box.
    Notwithstanding the proposals adopted as part of this waiver 
process, all other provisions of the Coupon Program regulations apply 
to nursing home residents.
Waste, Fraud and Abuse
    NTIA is aware that residents of nursing homes, intermediate care 
and assisted living facilities constitute a vulnerable community in the 
United States.\34\ In adopting this waiver, NTIA recognizes that it 
must be aware of the opportunities for fraud that this waiver may 
present. Vigilant methods to prevent and detect fraudulent coupon 
requests are a critical part of the coupon application process. Under 
the current application process, each household application for coupons 
is verified against certified U.S. Postal Service software to assure 
that the household is an authentic address, which is compared against a 
database of names and addresses of households who have already received 
coupons to prevent duplication.
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    \34\ The websites of the Office of the Inspector General of the 
U.S. Department of Health and Human Services contains many fraud 
alerts and advisory opinions detailing unfair practices targeted at 
residents of nursing homes and other long-term care facilities. See 
http://www.oig.hhs.gov/fraud.html.
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    In the NPRM, NTIA recognized the administrative challenges of 
providing coupons to residents of nursing homes. Accordingly, we 
requested information on ways that the agency could confirm that an 
individual making a coupon request actually resides in a nursing home. 
There were no comments submitted and NTIA is not aware of any databases 
of names that can be used to verify that an applicant is in fact a 
resident of a nursing home. Thus, there is no readily available method 
to verify whether the applications submitted under this waiver are 
indeed those of nursing home residents. For these reasons, NTIA will be 
vigilant of applicants filed under this waiver and will deny those 
applications that do not fall within the limitations of this waiver or 
appear to be fraudulent. NTIA will also immediately report all 
suspicious behavior to the appropriate authorities.

III. Applicants Utilizing Post Office Boxes for Mail Receipt

    In this Final Rule, NTIA also revisits the Coupon Program 
regulations regarding the use of post office boxes for the receipt of 
coupons. The current Coupon Program regulations required applicants to 
provide a United States Postal Service mailing address in all but a few 
instances, such as applicants residing on Indian reservations, Alaskan 
Native Villages, and other rural areas to which the U.S. Postal Service 
does not deliver to residential addresses. NTIA has learned from 
consumer complaints that many applicants have sound reasons for 
utilizing a post office box for mail receipt. For example, a number of 
consumers appealing denials expressed concerns about the risk of 
identity theft as a result of stolen mail received via home delivery as 
the reason that they receive mail at a post office box. As a 
consequence, NTIA believes it was appropriate to revisit the 
regulations concerning the treatment of applications using post office 
boxes.
    In the NPRM, NTIA proposed to amend subsection 301.3(a) of its 
regulations to permit a household utilizing a post office box for mail 
receipt to become eligible to apply for and receive coupons if it can 
provide proof of physical residence. NTIA believes that requiring proof 
of physical residence will balance the need for preventive controls to 
protect the Coupon Program from waste, fraud, and abuse with the goal 
of the Program to provide assistance to those consumers that will need 
a converter box to continue receiving broadcast programming over the 
air using analog-only televisions.
    Specifically, NTIA proposed that an applicant that utilizes a post 
office box for mail receipt must provide one or more of the following 
documents to satisfy the requirement for proof of physical residence: a 
valid driver's license containing the applicant's physical address; a 
utility bill (water, gas, electric, oil, cable, or landline telephone 
(i.e., not wireless or pager)) bearing the applicant's name and 
physical address and issued within the sixty (60) days immediately 
preceding the date the coupon application is submitted; a government-
issued property tax bill for the applicant's residence; an unexpired 
homeowner's or renter's insurance policy for the applicant's residence; 
an unexpired residential lease or rental agreement with the applicant's 
name and physical address. NTIA proposed to only use this information 
for identification, verification and tracking purposes for the Coupon 
Program. This information would be collected and maintained in a manner 
meeting the appropriate level of security required for personally 
identifiable information. Similar information is routinely collected by 
governmental agencies to verify residency.\35\
---------------------------------------------------------------------------

    \35\ See e.g., Cal. Welfare and Institutions Code Sec.  14007.1 
(Deering 2007); D.C. Code Ann. Sec.  39-309 (LexisNexis 2008); Ky. 
Rev. Stat. Ann. Sec.  186.010 (LexisNexis 2008); N.C. Gen. Stat. 
Sec.  20-7 (2007).
---------------------------------------------------------------------------

    NTIA requested comments on other methods by which it could verify 
the physical address of an applicant who utilizes a post office box for 
mail receipt. NTIA also sought information about and estimates of the 
number of consumers with post office boxes that would apply for coupons 
if the proposed rule is implemented. The majority of commenters 
supported NTIA's proposal to permit a household utilizing a post office 
box for mail receipt to become eligible to apply for and receive 
coupons. Commenters cited privacy concerns, security reasons and 
potential identity theft as reasons for choosing to receive mail via 
post office boxes.\36\
---------------------------------------------------------------------------

    \36\ See Foster B. Lewis Comments at 1; Anonymous Comment from 
Orlando, Florida at 1.
---------------------------------------------------------------------------

    NATOA argued that because NTIA has already adopted regulations that 
permit post office box use by those who live on Indian reservations, 
Alaskan Native Villages, and other rural areas, similar regulations 
should be adopted for others who use post office boxes. Thus, NATOA 
concludes that the proposed proof of residence requirement is an 
unnecessary hurdle to consumers who opt to make use of post office 
delivery. Another commenter suggested a cross-reference of applications 
to find matching or substantially similar physical address and post 
office boxes.

[[Page 54330]]

    Upon careful consideration of the arguments raised in the comments, 
NTIA has decided to modify some of the requirements for Coupon Program 
applicants that utilize post office boxes for mail delivery. NTIA 
agrees with NATOA that because regulations are already in place for 
some groups that receive mail via post office boxes, similar 
regulations should also be adopted for others who use post office 
boxes. Applicants using post office boxes instead of home delivery will 
not be required to provide documentation to show proof of a physical 
residence. However, such applicants will be required to provide an 
actual physical address location along with their post office box 
number as part of the application process to allow NTIA to verify the 
legitimacy of the address.
Waste, Fraud and Abuse
    NTIA remains concerned about waste, fraud, and abuse in the Coupon 
Program. As noted in the proposed rule, the Government Accountability 
Office (GAO) has specifically cited the misuse of post office boxes by 
applicants for benefits and recommended that preventive controls in a 
benefits program should, at a minimum, require that application data be 
validated against other government or third-party sources to determine 
whether an applicant has provided accurate information on their 
identity and place of residence.\38\ Specifically, GAO recommended that 
applicants should be required to provide their physical address.\39\ 
Consistent with GAO's recommendation, the Coupon Program's regulations 
retain the requirement that applicants be required to provide their 
physical residence in addition to their post office box number. 
Moreover, as recommended by GAO, the address of each applicant will be 
checked by NTIA's contractor against a third-party database to assist 
in validating eligibility.
---------------------------------------------------------------------------

    \38\ Hurricane Katrina and Rita Disaster Relief: Improper 
Fraudulent Individual Assistance Payments Estimated to be Between 
$600 Million and $1.4 Billion, Testimony, GAO-06-844T (GAO 2006 
Testimony) (June 14, 2006).
    \39\ Id.
---------------------------------------------------------------------------

Procedural Matters

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the Paperwork 
Reduction Act unless that collection displays a currently valid OMB 
Control Number. This document contains collection of information 
requirements subject to the Paperwork Reduction Act (PRA). The 
collection of information referenced in the preamble has been submitted 
to the Office of Management and Budget and the approval will be 
published in a separate Federal Register notice.
    In the NPRM, NTIA invited comment on providing additional 
information to identify residents in nursing homes. NTIA requested 
approval on three collection requirements including: (1) modified 
applications for individuals residing in nursing homes; (2) 
certifications from persons designated to act on behalf of the nursing 
home resident; and (3) certifications from the administrator of a 
nursing home or other senior care facility. In addition, NTIA invited 
comments on providing additional information to identify individuals 
utilizing post office boxes. NTIA requested approval on the collection 
requirement for individuals to product verification of the physical 
address.
    Specifically, comments were invited on (a) whether the collection 
of information is necessary for the proper performance of the functions 
for the agency, including whether the information will have practical 
utility; (b) the accuracy of the agency's estimate of burden including 
the validity of the methodology and assumptions used; (c) ways to 
enhance quality, utility, and clarity of the information collected; and 
(d) ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques of other forms of information technology.
    NTIA received a total of thirty-nine comments and one late response 
to the NPRM. NTIA received a total of 24 comments (favorable and 
unfavorable) regarding information collection and recordkeeping 
requirements.

Nursing Homes

    On the first PRA issue, whether the collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility, NTIA 
received thirteen (13) comments relating to the collection of personal 
information such as SSNs and birth dates. Most commenters who addressed 
this issue disagreed with the NTIA proposal to collect SSNs with the 
exception of the National Association of Broadcasters. Commenters 
argued that collecting the SSN was excessive,\40\ a violation of 
privacy,\41\ unnecessarily complicated and intrusive,\42\ and 
unfair.\43\ Several commenters argued that requiring the SSN for 
nursing home residents was discriminatory because other applicants were 
not required to provide such information.\44\ Commenters also argued 
that collecting SSNs and date of birth information would expose a 
``vulnerable community'' to identity theft.\45\ One commenter stated 
that while collecting SSNs and date of birth information would be 
beneficial to prevent fraud some applicants may be reluctant to apply 
out of fear of identity theft.\46\ Other commenters argued that 
collecting SSNs and date of birth information would have a chilling 
effect on willingness to apply on behalf of themselves or others.\47\ 
Another commenter disagreed with the statement that SSNs are unique 
identifiers and suggested that NTIA at the very least consider using a 
portion of the SSN.\48\
---------------------------------------------------------------------------

    \40\ Stephen Eggles Comments at 1.
    \41\ Tiffany Smith Comments at 1.
    \42\ MACC Comments at 2.
    \43\ AARP Comments at 5.
    \44\ Senior Source Comments at 1; The City of Seattle Comments 
at 2; NATOA Comments at 4; AARP Comments at 5; AHCA/NCAL Comments at 
3.
    \45\ NATOA Comments at 4; AARP Comments at 5; AHCA/NCAL Comments 
at 3.
    \46\ Houston Center for Aging Comments at 1.
    \47\ NCCNHR Comments at 2; NY CPB Comments at 2.
    \48\ NY CPB Comments of at 2.
---------------------------------------------------------------------------

    NAB acknowledges that NTIA was taking measures to protect against 
the potential increased risk of waste, fraud or abuse.\49\ One 
commenter argued that the need of senior citizens to continue their 
valued television service was heavily outweighed by the potential 
increase of risk.\50\ One commenter argued that the rule exceeded 
congressional intent by requiring excessive personal information that 
would serve as a barrier to applying.\51\
---------------------------------------------------------------------------

    \49\ National Association of Broadcasters (NAB) Comments at 11.
    \50\ Id.
    \51\ AARP Comments at 6.
---------------------------------------------------------------------------

    One commenter suggested allowing third parties, such as senior 
service providers, to complete applications for seniors and/or nursing 
facilities. The commenter suggested that these providers visit 
facilities to determine which seniors need converters; file a batch 
application for each facility that would include the names of the 
seniors requiring coupons; receive coupons sent to the providers; and 
purchase and install the converter boxes.\52\
---------------------------------------------------------------------------

    \52\ Bridget Samuel Comments at 1.
---------------------------------------------------------------------------

    On the issue of collecting licensing information from each nursing 
home facility, one commenter argued that

[[Page 54331]]

providing licensing information with each application was erroneous and 
unnecessary while another argued the requirement was overreaching.\53\ 
NTIA did not receive any comments on the second PRA issue, i.e., the 
accuracy of the agency's estimate of burden including the validity of 
the methodology and assumptions used.
---------------------------------------------------------------------------

    \53\ ACTS Comments at 1; AHCA/NCAL at 3.
---------------------------------------------------------------------------

    NTIA received seven comments on ways to enhance quality, utility, 
and clarity of the information collected. One commenter agreed that 
NTIA should conduct audits to minimize fraud and abuse. Another 
commenter was concerned whether audits would account for converter 
boxes that were no longer at the facility due to residents moving or 
passing away.\54\ Other commenters argued that NTIA should modify the 
application to include: a question regarding the type of living 
arrangements in which the individual resides; a signature line for the 
nursing home administrator; and a line to fill in the name of the 
facility.\55\ One commenter argued that NTIA could verify information 
regarding eligible facilities by utilizing the OSCAR database, state 
licensing and certification agencies, accrediting organizations, and 
trade associations.\56\
---------------------------------------------------------------------------

    \54\ The Good Samaritan Comments at 1.
    \55\ AHCA/NCAL at 2; Texas Ombudsman Comments at 2; Ohio 
Ombudsman Comments at 2.
    \56\ NCCNHR Comments at 2.
---------------------------------------------------------------------------

    On the fourth PRA issue, ways to minimize the burden of the 
collection of information on those who are to respond, including 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques of other forms of information 
technology, NTIA received twenty-one comments. Commenters agreed with 
NTIA that the application should be modified. However, several 
commenters argued that requiring the SSN and date of birth from the 
applicant or the person acting on behalf of the resident were 
unnecessarily complicated,\57\ burdensome,\58\ time-consuming,\59\ and 
``places a substantially higher burden of proof for identifying and 
confirming the eligibility of long-term care residents and those 
individuals applying on behalf of seniors than for the general 
populations.''\60\
---------------------------------------------------------------------------

    \57\ MACC Comments at 2.
    \58\ AHCA/NCAL Comments at 3.
    \59\ AARP Comments at 6.
    \60\ NCCNHR Comments at 2.
---------------------------------------------------------------------------

    Some commenters argued that NTIA should submit applications to 
nursing home administrators who would verify residency and coupon 
eligibility.\61\ Two commenters argued that NTIA should allow third 
parties to submit electronic batch applications on behalf of nursing 
home residents.\62\ On the other hand, some commenters argued that 
requiring administrators to collect and verify the eligibility of 
applicants was excessive\63\ and would unduly burden 
administrators.\64\
---------------------------------------------------------------------------

    \61\ Tiffany Smith Comments at 1; Buttonwood Hospital of 
Burlington County (Buttonwood) Comments at 1; Kathleen Cianci 
Comments at 1.
    \62\ Bridget Samuels Comments at 1-2.; The City of Seattle 
Comments at 2.
    \63\ Stephen Eggles Comments at 1.
    \64\ NCCNHR Comments at 2; ACTS Comments at 1.
---------------------------------------------------------------------------

    Several commenters argued that NTIA should utilize online databases 
and other resources to verify the applicant's eligibility.\65\ One 
commenter argued that the onus is on NTIA to verify eligibility and 
should not be the obligation of the applicant to prove his or her 
qualifications.\66\
---------------------------------------------------------------------------

    \65\ Texas Ombudsman Comments at 1; Ohio Ombudsman Comments at 
1; AHCA Comments at 2-3; NCCNHR Comments at 2; AHAP at 6.
    \66\ AARP Comments at 6.
---------------------------------------------------------------------------

Post Office Boxes

    On the first PRA question, whether the collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility, 
commenters were divided on this issue. Some commenters agreed with 
NTIA's proposed rule requiring proof of the physical address.\67\ One 
commenter argued that the proposed rule is unfair and discouraging.\68\
---------------------------------------------------------------------------

    \67\ NY Consumer Protection Board Comments at 3; National 
Association of Broadcasters Comments at 2-3; Puerto Rico 
Telecommunications Regulatory Board Comments at 4.
    \68\ Andrew Juchonowski Comments at 1; NATOA Comments at 5-6.
---------------------------------------------------------------------------

    NTIA did not receive comments on the accuracy of the agency's 
estimate of burden including the validity of the methodology and 
assumptions used. On the third PRA question, ways to enhance quality, 
utility, and clarity of the information collected, one commenter argued 
that NTIA should cross-reference the post office box number with one 
physical address to prevent duplication.\69\
---------------------------------------------------------------------------

    \69\ Andrew Juchonowski Comments at 1.
---------------------------------------------------------------------------

    On the fourth PRA question, ways to minimize the burden of the 
collection of information on those who are to respond, including 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques or other forms of information 
technology, some commenters endorsed NTIA's proposed rule and agreed 
that the requirement is not burdensome or erroneous.\70\
---------------------------------------------------------------------------

    \70\ NY CPB Comments at 3; NAB Comments at 2-3; Puerto Rico 
Comments at 4.
---------------------------------------------------------------------------

    The comments to the NPRM and the analysis of the NPRM have resulted 
in changes or modifications from the proposed rule to the final rule. 
Accordingly, NTIA has modified certain aspects of the information 
collection and recordkeeping requirements. These modifications are 
discussed below:
    1.) Title: Waiver Application for the Digital-to-Analog Converter 
Box Coupon
    Type of Request: New Collection
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 20 minutes per respondent.
    Respondents: Individuals residing in nursing homes, intermediate 
care facilities, and assisted living facilities or other individuals 
submitting this information on behalf of those residents
    Estimated Number of Respondents: 420,000
    Estimated Number of Responses per Respondent: 1
    Estimated Total Annual Burden on Respondents: 20 minutes
    In the NPRM, NTIA proposed to request residents of nursing homes to 
submit his or her name, date of birth, and SSN, the name of the nursing 
home and a certification from the resident as to whether he or she 
receives television exclusively over the air or through cable, 
satellite or other pay television service. The NPRM also proposed that 
persons designated to act on nursing home resident's behalf be required 
to provide all of the information required with respect to the 
resident, as well as his or her own name, address, SSN, date of birth, 
and evidence that he or she is empowered to act on behalf of the 
resident (e.g. power of attorney or birth certificate indicating 
familial relationship). Finally, the NPRM proposed that Administrators 
of nursing facilities be required to provide all of the information 
required with respect to the resident as well as the administrator's 
own name, SSN, date of birth and a copy of each facility's operating 
license indicating the administrator's authorization to administer the 
nursing facility.
    As discussed in the preamble, the overwhelming number of commenters 
opposed the collection of a nursing home resident's SSN and date of 
birth. Likewise, commenters opposed the collection of personal 
information from persons designated to act on behalf of the residents 
and nursing home administrators. As a result of the comments, NTIA will 
only seek

[[Page 54332]]

information from the resident. The only information that will be 
required is the name, address of the facility, and a certification as 
to whether he or she receives television exclusively over the air or 
through cable, satellite or other pay television service.
    2.) Title: Applications for Households that Utilize Post Office 
Boxes for Mail Receipt
    Type of Request: New Collection
    In the NPRM, NTIA proposed to permit a household utilizing a post 
office box for mail receipt to become eligible to apply for and receive 
coupons if it could provide proof of physical residence. Specifically, 
NTIA proposed that an applicant that utilizes a post office box for 
mail receipt provide a copy of one or more of such documents as a valid 
driver's license containing the applicant's physical address; a utility 
bill (water, gas, electric, oil, cable, or landline telephone (i.e., 
not wireless or pager)) bearing the applicant's name and physical 
address and issued within the sixty (60) days immediately preceding the 
date the coupon application is submitted or a government-issued 
property tax bill for the applicant's residence. As a result of 
comments received in the proceeding, NTIA decided not to impose this 
requirement on households that utilize Post Office boxes for mail 
receipt, but to permit these households to provide the same information 
that similarly situated applicants currently use.

Executive Order 12866

    This rule has been determined to be significant for purposes of 
Executive Order 12866; and therefore, has been reviewed by the Office 
of Management and Budget (OMB). In accordance with Executive Order 
12866, an Economic Analysis was completed, outlining the costs and 
benefits of implementing this program. The complete analysis is 
available from NTIA upon request.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. NTIA has determined that the rule meets the applicable 
standards provided in section 3 of the Executive Order, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Congressional Review Act

    This rule has been determined to be not major under the 
Congressional Review Act, 5 U.S.C. Sec.  Sec.  801 et seq.

Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act, an Initial 
Regulatory Flexibility Analysis (IRFA) was prepared and published in 
the NPRM. A copy of the IRFA was provided to the Chief Counsel for 
Advocacy of the Small Business Administration. Although NTIA 
specifically sought comment on the costs to small entities of complying 
with the Final Rule, no comments provided specific cost information. 
NTIA has carefully considered whether to certify that the Final Rule 
will not have a significant impact on a substantial number of small 
entities. NTIA continues to believe the Final Rule's impact will not be 
substantial in the case of small entities. However, NTIA cannot 
quantify the impact the Final Rule will have on such entities. 
Therefore, in the interest of thoroughness, NTIA has prepared the 
following Final Regulatory Flexibility Analysis (RFA) with this Final 
Rule in Accordance with the Regulatory Flexibility Act.\71\
---------------------------------------------------------------------------

    \71\ 5 U.S.C. Sec.  604.
---------------------------------------------------------------------------

    1. Succinct Statement of the Need for, and Objectives of the Rule:
    NTIA is issuing this Final Rule so that residents of nursing home 
facilities may apply for and receive a $40 coupon towards the purchase 
of a digital-to-analog converter box. Under current NTIA regulations, 
only U.S. households are eligible to receive coupons. Therefore, 
current regulations do not extend eligibility to residents of nursing 
home facilities. This rule allows seniors that reside in nursing home 
facilities and rely on free, over-the-air television, to apply for and 
receive coupons to purchase digital-to-analog converter boxes. The rule 
also permits an otherwise eligible household that utilizes a post 
office box for mail receipt to apply for and receive coupons.
    2. Summary of the Significant Issues Raised by the Public Comments 
in Response to the IRFA: Summary of the Assessment of the Agency of 
Such Issues; and Statement of Changes Made in the Rule as a Result of 
Such Comments:
    There were no comments raised in response to the IRFA.
    3. Description and Estimate of the Number of Small Entities to 
Which the Rule will Apply Or an Explanation of Why no Such Estimate is 
Available:
    The RFA requires agencies to provide a description and an estimate 
of the number of small entities to which the rule will apply or an 
explanation of why no such estimate is available.\72\ Under the RFA, 
the term ``small entity'' has the same meaning as the terms ``small 
business,'' ``small organization'' and ``small governmental 
jurisdiction.''\73\ To the extent that this rule affects small 
businesses, it would affect nursing home facilities that are deemed to 
be small businesses. According to the Small Business Administration 
(SBA), Nursing Care Facilities and Continuing Care Retirement 
Communities must have receipts of $12.5 million or less in order to 
qualify as a small business concern.\74\ SBA provided, however, that 
Homes for the Elderly and Other Residential Care Facilities must have 
receipts of $6.5 million or less to qualify as a small business 
concern.\75\ NTIA does not have data on the number of these facilities 
that would qualify as a small business concern. NTIA also does not have 
data on the number of residents of these small businesses that would 
take advantage of the Coupon Program.
---------------------------------------------------------------------------

    \72\ 5 U.S.C. Sec.  604(a)(3).
    \73\ 5 U.S.C. Sec.  601.
    \74\ 13 CFR Sec.  121.201.
    \75\ 13 CFR Sec.  121.201.
---------------------------------------------------------------------------

    D. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements
    There are no projected reporting, recordkeeping or other compliance 
requirements associated with this rule.
    E. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    The rule has no significant economic impact on small entities. 
Participation in the program is voluntary, thus any economic impact 
would not be caused by the rule as small entities are not required to 
participate in the program. NTIA notes that many nursing home 
facilities, small or otherwise, may not participate in the program 
because residents may already receive television service through one of 
the multichannel video programming distributors, such as cable or 
satellite service. To the extent that small entities participate in the 
program, the impacts are estimated to be small. Long term care 
facilities are only impacted by this program to the extent that an 
administrator may choose to apply for a coupon on behalf of a resident. 
NTIA estimates that it would take approximately 20 minutes to submit 
this application on the resident's behalf. There is no indication that 
this time commitment would result in significant economic impact to a 
nursing home facility.
    In any case, as a result of the comments received in this 
proceeding and the decisions made based on those comments, the actual 
burden on nursing home facilities has actually been reduced. In the 
NPRM, NTIA proposed to require administrators of nursing home 
facilities to provide the administrator's own name, SSN, and

[[Page 54333]]

date of birth. Under the proposed rule, the administrator would also 
have to provide a copy of the facility's operating license indicating 
the administrator's authorization to administer the nursing home. As a 
result of the comments submitted in this proceeding, NTIA is only 
requesting that an administrator submitting an application on behalf of 
the resident to submit the same information that the resident would 
submit. In other words, the administrator would only have to submit the 
information that pertains to the resident requesting a coupon. This 
action has resulted in a reduced burden in terms of time and money for 
those administrators of facilities that happen to be small entities.

Executive Order 12372

    No intergovernmental consultation with State and local officials is 
required because this rule is not subject to the provisions of 
Executive Order 12372, Intergovernmental Consultation.

Unfunded Mandates

    This rule contains no federal mandates under the regulatory 
provision of Title II of the Unfunded Mandates Reform Act of 1995 for 
State, local and tribal governments or the private sector. Thus, this 
rule is not subject to the requirements of sections 202 and 205 of the 
Unfunded Mandates Reform Act of 1995.

National Environmental Policy Act

    It has been determined that this rule does not constitute a major 
federal action significantly affecting the quality of the human 
environment, and in accordance with the National Environmental Policy 
Act of 1969 (42 U.S.C. Sec.  Sec.  4321 et seq.) (NEPA), an 
Environmental Impact Statement is not required.

Government Paperwork Elimination Act

    NTIA is committed to compliance with the Government Paperwork 
Elimination Act, which requires Government agencies to provide to the 
public the option of submitting information or transacting business 
electronically to the maximum extent possible.

Executive Order 12630

    This rule does not contain policies that have takings implications.

Executive Order 13132

    This rule does not contain policies having federalism implications 
requiring preparation of Federalism Impact Statement.

Regulatory Text

List of Subjects in 47 CFR Part 301

0
For the reasons set forth in the preamble, NTIA amends title 47, Part 
301 as follows:

PART 301--DIGITAL-TO-ANALOG CONVERTER BOX COUPON PROGRAM

0
1. The authority citation continues to read as follows:

    Authority: Title III of the Deficit Reduction Act of 2005, Pub. 
L. 109-171, 120 Stat. 4, 21 (Feb. 8, 2005).
0
2. Paragraph 301.2 is amended by adding new definitions in alphabetical 
order to read as follows:


Sec.  301.2  Definitions.

* * * * *
    Assisted living facility means a public facility, proprietary 
facility, or facility of a private nonprofit corporation that: is 
licensed by the State and makes available to residents supportive 
services to assist the residents in carrying out activities of daily 
living, such as bathing, dressing, eating, getting in and out of bed or 
chairs, walking, going outdoors, using the toilet, laundry, home 
management, preparing meals, shopping for personal items, obtaining and 
taking medication, managing money, using the telephone, or performing 
light or heavy housework, and which may make available to residents 
home health care services, such as nursing and therapy; and provides 
separate dwelling units for residents, each of which may contain a full 
kitchen and bathroom, and which includes common rooms and other 
facilities appropriate for the provision of supportive services to the 
residents of the facility.
* * * * *
    Intermediate care facility means a proprietary facility or facility 
of a private nonprofit corporation or association licensed by the State 
for the accommodation of persons who, because of incapacitating 
infirmities, require minimum but continuous care but are not in need of 
continuous medical or nursing services.
    Nursing Home means a public facility, proprietary facility or 
facility of a private nonprofit corporation or association, licensed by 
the State for the accommodation of convalescents or other persons who 
are not acutely ill and not in need of hospital care but who require 
skilled nursing care and related medical services, in which such 
nursing care and medical services are prescribed by, or are performed 
under the general direction of, persons licensed to provide such care 
or services in accordance with the laws of the State where the facility 
is located.
    Nursing Home Resident means an individual who lives on a permanent 
basis at a Nursing Home, Intermediate Care Facility, or Assisted Living 
Facility. A Nursing Home Resident does not have a permanent address 
that is separate from the Nursing Home, Intermediate Care Facility, or 
the Assisted Living Facility.
* * * * *
0
3. Section 301.3 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  301.3  Household eligibility and application process.

    (a)* * *
    (2) A Post Office Box will not be considered a valid mailing 
address unless the applicant supplies information to identify the 
physical location of the household, as required.
* * * * *
0
4. Section 301.7 is added to read as follows:


Sec.  301.7  Waiver of Household Eligibility

    (a) A resident of a Nursing Home, Intermediate Care Facility or 
Assisted Living Facility may apply for a limited waiver of the 
household eligibility requirement for the Coupon Program and be 
eligible for one coupon. Anyone may apply for a coupon on behalf of the 
Resident including the Resident, a family member, an employee of the 
Nursing Home, Intermediate Care Facility or Assisted Living Facility.
    (b) The application must be in the name of the Nursing Home 
Resident and must include the resident's name, the name of the facility 
and the street address. The Nursing Home Resident must also certify 
that their television set is over-the-air-reliant or whether they 
subscribe to satellite, cable or other pay television service.
    (c) Applications will be accepted by mail only on pre-printed form. 
In the alternative, a letter will be accepted as an application if all 
of the required information for the waiver is contained therein.
    (d) A Nursing Home Resident seeking a waiver is entitled to only 
one coupon.
    (e) Coupons for approved applications will be mailed individually 
to each Nursing Home Resident, addressed and mailed ``in care of'' to 
the Nursing Home Resident at the address of the Nursing Home, 
Intermediate Care Facility, or Assisted Living Facility.


[[Page 54334]]


    Dated: September 15, 2008.
Meredith Attwell Baker,
Acting Assistant Secretary for Communications and Information.
[FR Doc. E8-21892 Filed 9-18-08; 8:45 am]
BILLING CODE 3510-60-S