Federal Register / Vol. 66, No. 32 / Thursday, February 15, 2001 / Proposed Rules 10413

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 1, 20, and 43

[CC Docket No. 99–301, FCC 01–19]

Local Competition and Broadband

Reporting

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: In this document, the Federal

Communications Commission seeks

comment about whether it should

modify a program to collect basic

information about the status of local

telephone service competition and the

deployment of advanced

telecommunications capability, also

known as broadband.

DATES: Comments are due on or before

March 19, 2001 and reply comments are

due on or before April 2, 2001. Written

comments by the public on the

proposed information collections are

due on or before March 19, 2001.

Written comments must be submitted by

the Office of Management and Budget

(OMB) on the proposed information

collection(s) on or before April 16, 2001.

ADDRESSES: Comments and replies shall

be filed with the Office of the Secretary,

Federal Communications Commission,

445 12th Street, SW., Washington, DC

20554, with a copy to Ms. Suzanne

McCrary of the Common Carrier Bureau,

Federal Communications Commission,

445 12th Street, SW., 6–A220,

Washington, DC 20554. Parties should

also file one copy of any documents

filed in this docket with the

Commission’s copy contractor,

International Transcription Services,

Inc. (ITS), 1231 20th Street, NW.,

Washington, DC 20037. Parties may file

electronically through the Internet at

http://www.fcc.gov/e-file/ecfs.html. In

addition to filing comments and replies

with the Secretary, a copy of any

comments on the information

collections contained herein should be

submitted to Judy Boley, Federal

Communications Commission, Room 1–

C804, 445 12th Street, SW., Washington,

DC 20554, or via the Internet to

jboley@fcc.gov, and to Edward C.

Springer, OMB Desk Officer, 10236

NEOB, 725—17th Street, NW.,

Washington, DC 20503 or via the

Internet to

Edward.Springer@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT: Dr.

Ellen Burton, Industry Analysis

Division, Common Carrier Bureau, at

(202) 418–0958, or Thomas J. Beers,

Deputy Chief of the Industry Analysis

Division, Common Carrier Bureau, at

(202) 418–0952. For additional

information concerning the information

collection(s) contained in this

document, contact Judy Boley at 202–

418–0214, or via the Internet at

jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rulemaking (NPRM) released

January 19, 2001 (FCC 01–19). The full

text of the NPRM is available for

inspection and copying during normal

business hours in the FCC Reference

Center, Room CY–A257, 445 12th Street,

SW., Washington, DC 20554. The

complete text also may be purchased

from the Commission’s copy contractor,

International Transcription Service, Inc.

(202) 857–3800, 1231 20th Street, NW.,

Washington, DC 20037. Additionally,

the complete item is available on the

Commission’s website at http://

www.fcc.gov/Bureaus/Common—

Carrier/Notices/2001/. This NPRM

contains proposed information

collection(s) subject to the Paperwork

Reduction Act of 1995 (PRA). It has

been submitted to the Office of

Management and Budget (OBM) for

review under the PRA. OMB, the

general public, and other Federal

agencies are invited to comment on the

proposed information collections

contained in this proceeding.

Paperwork Reduction Act

This NPRM contains a proposed

information collection. The

Commission, as part of its continuing

effort to reduce paperwork burdens,

invites the general public and the Office

of Management and Budget (OMB) to

comment on the information

collection(s) contained in this NPRM, as

required by the Paperwork Reduction

Act of 1995, Public Law 104–13. Public

and agency comments are due at the

same time as other comments on this

NPRM; OMB notification of action is

due 60 days from date of publication of

this NPRM in the Federal Register.

Comments should address: (a) Whether

the proposed collection of information

is necessary for the proper performance

of the functions of the Commission,

including whether the information shall

have practical utility; (b) the accuracy of

the Commission’s burden estimates; (c)

ways to enhance the quality, utility, and

clarity of the information collected; and

(d) ways to minimize the burden of the

collection of information on the

respondents, including the use of

automated collection techniques or

other forms of information technology.

OMB Control Number: 3060–0816.

Title: ‘‘Local Competition and

Broadband Reporting, CC Docket No.

99–301’’.

Form No.: FCC Form 477.

Type of Review: Revision of Existing

Collection.

Respondents: Business or Not-forprofit institutions, including small

businesses.

Number of Respondents: Up to 490.

Estimated Time Per Response: 65–70

person-hours.

Total Annual Burden: Up to 32,924

person-hours.

Cost to Respondents: $0.

Needs and Uses: The information

collection is a proposed modification of

an already authorized program. As

before, the program will be used by the

Commission to gather information on

the state of the development of local

competition and broadband

deployment. Without such information,

the Commission faces significant

difficulty in assessing the development

of these markets and, therefore, is less

able to fulfill its statutory

responsibilities in accordance with the

Communications Act of 1934, as

amended.

Summary of the Notice of Proposed

Rulemaking

1. In the NPRM summarized here, we

seek comment whether we should make

changes to a previously implemented

FCC program (Form 477) to collect basic

information about the status of local

telephone service competition and the

deployment of advanced

telecommunications capability, also

known as broadband. We seek comment

about certain specific changes to

broadband information submitted

pursuant to Form 477, but propose only

relatively minor changes to the portions

of Form 477 that cover local

competition data or data about mobile

telephone services. We do, however,

generally solicit comment about all

aspects of the data collection program

including those that deal with local

competition and mobile services data.

Overall, our re-examination of the

existing data gathering program is

driven by concern that we require

additional data about the deployment

and availability of broadband services to

discrete geographic areas and among

distinct demographic groups in order to

satisfy the statutory mandate of section

706 of the Telecommunications Act of

1996, 47 U.S.C. 706 nt. Nevertheless, we

continue to attempt to balance the

burdens imposed by the Form 477

program on data providers against the

usefulness of the data. Throughout the

NPRM, we explain our reasons for

seeking comment on specific proposals.

10414 Federal Register / Vol. 66, No. 32 / Thursday, February 15, 2001 / Proposed Rules

2. Reporting Thresholds. For purposes

of this data gathering program, we

continue to define ‘‘broadband services’’

to refer to those services that deliver an

information carrying capacity in excess

of 200 kbps in at least one direction;

where the service delivers capacity in

excess of 200 kbps in both directions,

we call it ‘‘full broadband’’ or ‘‘full, twoway broadband.’’

3. Our data collection program

currently requires broadband, local

competition and mobile telephone

service providers to complete only those

portions of Form 477 for which they

meet or exceed defined reporting

thresholds. For broadband reporting,

that means that facilities-based

providers with at least 250 full two-way

or one-way broadband lines—or

wireless channels—in a given state must

report broadband data per applicable

portions of the Form 477; providers who

fall below the threshold may report data

on a voluntary basis. Driven by concern

that the existing broadband threshold

may be too high for us to collect

sufficient information about broadband

deployment, particularly in rural and

other sparsely populated areas, we ask

whether we should keep the existing

broadband threshold, lower that

threshold, raise it, or eliminate it

altogether. We encourage commenters to

explain how any alternative would

balance our competing desires to obtain

comprehensive broadband information

without imposing undue burdens on

entities that serve comparatively few

customers. In particular, we take note of

a Petition for Reconsideration of our

Report and Order adopting the Form

477 program filed by Iowa Telecom. In

its petition, Iowa Telecom asks the

Commission to create an exemption for

‘‘mid-sized LECs * * * ‘‘ which serve

primarily rural communities’’ and

employ statistical sampling to gather

needed information. We specifically ask

commenters to address the Iowa

Telecom petition which we will

consider as part of this proceeding.

(Note: We do not propose to change

existing thresholds for local telephone

service and mobile telephone service

reporting.)

4. Data to be Reported. Currently,

pursuant to Form 477, providers must

report information about subscribership

to their broadband, local telephone, and

mobile telephone services offerings per

two classes of users: (1) Residential and

small business users; and (2) Large

business and institutional users. In the

NPRM we seek comment whether we

should alter Form 477 so that it more

precisely captures distinctions between

broadband deployment to residential

and business users. We ask, accordingly,

whether we should require broadband

providers to report subscribership

information per three user classes: (1)

residential users; (2) small business

users; and (3) large business and

institutional users. We seek comment

about what criteria should be used to

distinguish among these classes of

users, and whether reporting providers

should also distinguish between

subscribers who subscribe to full, twoway broadband service and those who

subscribe to one-way broadband service

offerings. We note our continued belief

that information about broadband

deployment by zip code is the

administratively simplest way to obtain

finer geographic granularity of

subscribership information. We seek

comment whether providers should

report actual subscribership by zip

code—with a separate breakdown for

residential subscribership—rather than

the current requirement that merely lists

zip codes where broadband service is

delivered. We ask whether additional

information, including distinctions

between the types of technology used to

provide broadband services, should be

provided at the zip code level. We seek

comment about alternatives to zip codespecific data; and ask commenters

generally, per the mandate of section

706, whether collecting additional

subscribership information would

necessarily increase our understanding

of whether broadband is being made

available to all Americans.

5. We tentatively conclude that we

should require providers to report data

on the availability of broadband as well

as on actual subscribership. We seek

comment on such measures of

availability as (1) number of homes

passed by broadband-capable

infrastructure; (2) zip codes where

service is currently offered to all or

some percentage of customers within

the zip code; (3) for providers of

telephone or cable video services, the

number of their customers who have

broadband services available to them;

(4) any other measure. We seek

comment on other issues related to

availability and also whether there is

other useful information we should

collect to inform the Commission’s

understanding why broadband

subscribership rates remain low in some

areas where broadband is available. We

ask, in particular, whether there are

alternative sources of availability,

demand, and subscribership

information about low income

consumers, those living in sparsely

populated areas, and others who the

Commission has found may be

particularly vulnerable to not receiving

timely access to broadband services.

6. Our existing broadband data

gathering is limited to broadband lines

connected to the Internet or to another

public network. We seek to clarify the

scope of broadband services subject to

Form 477 by asking whether we also

should collect information about

broadband lines that are not connected

to the Internet, for example, so-called

‘‘private’’ broadband lines that connect

multiple locations of one customer.

Examples could include corporate

intranet configurations or private

networks for educational or health care

institutions. We seek specific comment

about how to define such services in

order to ensure data accuracy and

comparability with other collected

broadband data.

7. We seek comment on relatively

minor revisions to the local competition

and mobile telephone service portions

of the Form 477 by, inter alia, proposing

to reorganize certain sections of the

form and to eliminate data requests that

may have caused confusion.

8. Confidentiality Issues. Currently we

attempt to make publicly available as

much local competition and broadband

data as possible, while affording

providers full opportunity to file data

pursuant to requests for confidential

treatment. Moreover, in the case of

broadband data, we publish in our

reports only data aggregations that do

not identify particular providers

regardless whether they have requested

confidential treatment. We seek

comment whether we should establish a

rebuttable presumption that some or all

Form 477 data do not typically meet our

standards for competitively sensitive

information. We also seek comment on

how other proposals proffered in the

NPRM affect the need for confidential

treatment of data.

9. Frequency of Filing. Our current

Form 477 program requires providers to

file data twice each year. Given dynamic

growth in the broadband market, we

seek comment whether we require more

frequent filings. Alternatively, we ask

whether we should reduce increased

burdens potentially imposed pursuant

to this NPRM by reducing the number

of Form 477 filings to one per year.

10. Analysis of Data. We seek

comment whether the additional data

proposed to be collected make possible

relatively more sophisticated statistical

and other analyses by the Commission.

We also seek comment about associated

issues, including whether the

Commission should—and how the

Commission could—share data with

academics and others, and whether we

should give outside parties the

Federal Register / Vol. 66, No. 32 / Thursday, February 15, 2001 / Proposed Rules 10415

opportunity to review and comment on

preliminary findings and methodologies

before we adopt any final section 706

reports.

Procedural Matters

Initial Regulatory Flexibility Analysis

11. As required by the Regulatory

Flexibility Act (RFA), the Commission

has prepared this present Initial

Regulatory Flexibility Analysis (IRFA)

of the possible significant economic

impact on small entities by the policies

and rules proposed in this Notice.

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 this Notice, which are set

out in paragraph 33 of the Notice. The

Commission will send a copy of this

Notice, including this IRFA, to the Chief

Counsel for Advocacy of the Small

Business Administration (SBA). In

addition, this Notice and IRFA (or

summaries thereof) will be published in

the Federal Register.

I. Need for, and Objectives of, the

Proposed Action

12. The Commission has initiated this

proceeding to seek comment on how it

might refine or improve the data

gathering effort that we authorized on

March 30, 2000 to assess the degree of

deployment of broadband services and

the development of local competition.

In considering revisions to this program,

we seek to develop more fully our

understanding of the deployment and

availability of broadband services and

the development of local competition.

At the same time, we seek to eliminate

any unnecessary or unduly burdensome

aspects of the program and identify

aspects of the program that may need

further clarification. In particular, we

believe that additional data about

deployment of broadband services to

discrete geographic areas and amongst

distinct demographic groups is essential

in order to satisfy more fully our

obligations under section 706 of the

1996 Act.

II. Legal Basis

1. The legal basis for the action as

proposed for this rulemaking is

contained in sections 1–5, 10, 11, 201–

205, 215, 218–220, 251–271, 303(r), 332,

403, 502, and 503 of the

Communications Act of 1934, as

amended, 47 U.S.C. 151–155, 160, 161,

201–205, 215, 218–220, 251–271, 303(r),

332, 403, 502, and 503 and pursuant to

section 706 of the Telecommunications

Act of 1996, 47 U.S.C. 157 nt.

III. Description and Estimate of the

Number of Small Entities to Which the

Proposed Action May Apply

14. The Commission seeks comment

on whether it should revise its rules so

that any entity that provides broadband

services must comply with the reporting

requirement. Out of an abundance of

caution, we set out below a detailed

description of the types of entities that

could possibly be required to comply

with the proposed reporting

requirement and we detail our

understanding of the number of small

entities within each of these categories.

15. 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 proposed rules, if adopted. To

estimate the number of small entities

that may be affected by the proposed

rules, we first consider the statutory

definition of ‘‘small entity’’ under the

RFA. The RFA generally defines ‘‘small

entity’’ as having the same meaning as

the term ‘‘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, unless

the Commission has developed one or

more definitions that are appropriate to

its activities. Under the Small Business

Act, a ‘‘small business concern’’ is one

that: (1) Is independently owned and

operated; (2) is not dominant in its field

of operation; and (3) meets any

additional criteria established by the

SBA. The SBA has defined a small

business for Standard Industrial

Classification (SIC) categories 4812

(Radiotelephone Communications) and

4813 (Telephone Communications,

Except Radiotelephone) to be small

entities when they have no more than

1,500 employees. We first discuss the

number of small telephone companies

falling within these SIC categories, then

attempt to refine further those estimates

to correspond with the categories of

telephone companies that are commonly

used under our rules.

16. The most reliable source of

information regarding the total numbers

of common carrier and related providers

nationwide, as well as the numbers of

commercial wireless entities, appears to

be data the Commission publishes

annually in its Carrier Locator report,

derived from filings made in connection

with the Telecommunications Relay

Service (TRS). According to data in the

most recent report, there are 4,822

interstate service providers. These

providers include, inter alia, local

exchange carriers, wireline carriers and

service providers, interexchange

carriers, competitive access providers,

operator service providers, pay

telephone operators, providers of

telephone toll service, providers of

telephone exchange service, and

resellers.

17. We have included small

incumbent local exchange carriers

(LECs) in this present RFA analysis. As

noted above, a ‘‘small business’’ under

the RFA is one that, inter alia, meets the

pertinent small business size standard

(e.g., a telephone communications

business having 1,500 or fewer

employees), and ‘‘is not dominant in its

field of operation.’’ The SBA’s Office of

Advocacy contends that, for RFA

purposes, small incumbent LECs are not

dominant in their field of operation

because any such dominance is not

‘‘national’’ in scope. We have therefore

included small incumbent LECs in this

RFA analysis, although we emphasize

that this RFA action has no effect on

FCC analyses and determinations in

other, non-RFA contexts.

18. Total Number of Telephone

Companies Affected. The United States

Bureau of the Census (the Census

Bureau) reports that, at the end of 1992,

there were 3,497 firms engaged in

providing telephone services, as defined

therein, for at least one year. This

number contains a variety of different

categories of carriers, including local

exchange carriers, interexchange

carriers, competitive access providers,

cellular carriers, mobile service carriers,

operator service providers, pay

telephone operators, PCS providers,

covered SMR providers, and resellers. It

seems certain that some of those 3,497

telephone service firms may not qualify

as small entities or small incumbent

LECs because they are not

‘‘independently owned and operated.’’

For example, a PCS provider that is

affiliated with an interexchange carrier

having more than 1,500 employees

would not meet the definition of a small

business. It seems reasonable to

conclude, therefore, that fewer than

3,497 telephone service firms are small

entity telephone service firms or small

incumbent LECs that may be affected by

the decisions and rules proposed in the

Notice.

19. Wireline Carriers and Service

Providers. The SBA has developed a

definition of small entities for telephone

communications companies other than

radiotelephone companies. The Census

Bureau reports that, there were 2,321

such telephone companies in operation

for at least one year at the end of 1992.

According to SBA’s definition, a small

business telephone company other than

a radiotelephone company is one

10416 Federal Register / Vol. 66, No. 32 / Thursday, February 15, 2001 / Proposed Rules

employing no more than 1,500 persons.

All but 26 of the 2,321 nonradiotelephone companies listed by the

Census Bureau were reported to have

fewer than 1,000 employees. Thus, even

if all 26 of those companies had more

than 1,500 employees, there would still

be 2,295 non-radiotelephone companies

that might qualify as small entities or

small incumbent LECs. Although it

seems certain that some of these carriers

are not independently owned and

operated, we are unable at this time to

estimate with greater precision the

number of wireline carriers and service

providers that would qualify as small

business concerns under SBA’s

definition. Consequently, we estimate

that there are fewer than 2,295 small

entity telephone communications

companies other than radiotelephone

companies that are small entities or

small incumbent LECs and that may be

affected by the rules proposed in the

Notice.

20. Local Exchange Carriers,

Competitive Access Providers,

Interexchange Carriers, Operator

Service Providers, and Resellers. Neither

the Commission nor the SBA has

developed a definition of small LECs,

competitive access providers (CAPs),

interexchange carriers (IXCs), operator

service providers (OSPs), or resellers.

The closest applicable definition for

these carrier-types under SBA rules is

for telephone communications

companies other than radiotelephone

(wireless) companies. The most reliable

source of information regarding the

number of these carriers nationwide of

which we are aware appears to be the

data that we collect annually in

connection with the

Telecommunications Relay Service.

According to our most recent data, there

are 1,395 LECs, 349 CAPs, 204 IXCs, 21

OSPs, and 541 resellers. Although it

seems certain that some of these carriers

are not independently owned and

operated, or have more than 1,500

employees, we are unable at this time to

estimate with greater precision the

number of these carriers that would

qualify as small business concerns

under SBA’s definition. Consequently,

we estimate that there are fewer than

1,395 small entity LECs or small

incumbent LECs, 348 CAPs, 204 IXCs,

21 OSPs, and 541 resellers that may be

affected by the decisions and rules

proposed in the Notice.

21. Wireless (Radiotelephone)

Carriers. SBA has developed a

definition of small entities for wireless

(radiotelephone) companies. The

Census Bureau reports that there were

1,176 such companies in operation for

at least one year at the end of 1992.

According to SBA’s definition, a small

business radiotelephone company is one

employing no more than 1,500 persons.

The Census Bureau also reported that

1,164 of those radiotelephone

companies had fewer than 1,000

employees. Thus, even if all of the

remaining 12 companies had more than

1,500 employees, there would still be

1,164 radiotelephone companies that

might qualify as small entities if they

are independently owned are operated.

Although it seems certain that some of

these carriers are not independently

owned or operated, we are unable at this

time to estimate with greater precision

the number of radiotelephone carriers

and service providers that would qualify

as small business concerns under SBA’s

definition. Consequently, we estimate

that there are fewer than 1,164 small

entity radiotelephone companies that

may be affected by the decisions and

rules proposed in the Notice.

22. Cellular, PCS, SMR and Other

Mobile Service Providers. In an effort to

further refine our calculation of the

number of radiotelephone companies

that may be affected by the rules

adopted herein, we consider the data

that we collect annually in connection

with the TRS for the subcategories

Wireless Telephony (which includes

Cellular, PCS, and SMR) and Other

Mobile Service Providers. We will

utilize the closest applicable definition

under SBA rules—which, for both

categories, is for telephone companies

other than radiotelephone (wireless)

companies, however, to the extent that

the Commission has adopted definitions

for small entities providing PCS and

SMR services, we discuss those

definitions below. According to our

most recent TRS data, 806 companies

reported that they are engaged in the

provision of Wireless Telephony

services and 44 companies reported that

they are engaged in the provision of

Other Mobile Services. Although it

seems certain that some of these carriers

are not independently owned and

operated, or have more than 1,500

employees, we are unable at this time to

estimate with greater precision the

number of Wireless Telephony

Providers and Other Mobile Service

Providers, except as described below,

that would qualify as small business

concerns under SBA’s definition.

Consequently, we estimate that there are

fewer than 806 small entity Wireless

Telephony Providers and fewer than 44

small entity Other Mobile Service

Providers that might be affected by the

decisions and rules proposed in the

Notice.

23. Broadband PCS Licensees. The

broadband PCS spectrum is divided into

six frequency blocks designated A

through F, and the Commission has held

auctions for each block. The

Commission defined ‘‘small entity’’ 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

classification 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 regulations

defining ‘‘small entity’’ in the context of

broadband PCS auctions have been

approved by SBA. No small businesses

within the SBA-approved definition bid

successfully for licenses in Blocks A

and B. There were 90 winning bidders

that qualified as small entities in the

Block C auctions. A total of 93 small

and very small business bidders won

approximately 40% of the 1,479 licenses

for Blocks D, E, and F. Based on this

information, we estimate that the

number of small broadband PCS

licenses will include the 90 winning C

Block bidders and the 93 qualifying

bidders in the D, E, and F blocks, for a

total of 183 small PCS providers as

defined by SBA and the Commissioner’s

auction rules.

24. SMR Licensees. Pursuant to 47

CFR 90.814(b)(1), the Commission has

defined ‘‘small entity’’ in auctions for

geographic area 800 MHz and 900 MHz

SMR licenses as a firm that had average

annual gross revenues of less than $15

million in the three previous calendar

years. The definition of a ‘‘small entity’’

in the context of 800 and 900 MHz SMR

has been approved by the SBA. The

proposed rules may apply to SMR

providers in the 800 MHz and 900 MHz

bands that either hold geographic area

licenses or have obtained extended

implementation authorizations. We do

not know how many firms provide 800

MHz or 900 MHz geographic area SMR

service pursuant to extended

implementation authorizations, nor how

many of these providers have annual

revenues of less than $15 million.

Consequently, we estimate, for purposes

of this IRFA, that all of the extended

implementation authorizations may be

held by small entities, some of which

may be affected by the rules proposed

in the Notice.

25. The Commission recently held

auctions for geographic area licenses in

the 900 MHz SMR band. There were 60

winning bidders who qualified as small

entities in the 900 MHz auction. Based

on this information, we estimate that the

number of geographic area SMR

licensees that may be affected by the

decisions and rules proposed in the

Federal Register / Vol. 66, No. 32 / Thursday, February 15, 2001 / Proposed Rules 10417

Notice includes these 60 small entities.

No auctions have been held for 800

MHz geographic area SMR licenses.

Therefore, no small entities currently

hold these licenses. A total of 525

licenses will be awarded for the upper

200 channels in the 800 MHz

geographic area SMR auction. The

Commission, however, has not yet

determined how many licenses will be

awarded for the lower 230 channels in

the 800 MHz geographic area SMR

auction. There is no basis, moreover, on

which to estimate how many small

entities will win these licenses. Given

that nearly all radiotelephone

companies have fewer than 1,000

employees and that no reliable estimate

of the number of prospective 800 MHz

licensees can be made, we estimate, for

purposes of this IRFA, that all of the

licenses may be awarded to small

entities, some of which may be affected

by the decisions and rules proposed in

the Notice.

26. 220 MHz Radio Service—Phase I

Licensees. The 220 MHz service has

both Phase I and Phase II licenses. There

are approximately 1,515 such nonnationwide licensees and four

nationwide licensees currently

authorized to operate in the 220 MHz

band. The Commission has not

developed a definition of small entities

specifically applicable to such

incumbent 220 MHz Phase I licensees.

To estimate the number of such

licensees that are small businesses, we

apply the definition under the SBA

rules applicable to Radiotelephone

Communications companies. According

to the Bureau of the Census, only 12

radiotelephone firms out of a total of

1,178 such firms which operated during

1992 had 1,000 or more employees.

Therefore, if this general ratio continues

in the context of Phase I 220 MHz

licensees, we estimate that nearly all

such licensees are small businesses

under the SBA’s definition, some of

which may be affected by the decisions

and rules proposed in the Notice.

27. 220 MHz Radio Service—Phase II

Licensees. The Phase II 220 MHz service

is a new service, and is subject to

spectrum auctions. In the 220 MHz

Third Report and Order we adopted

criteria for defining small businesses

and very small businesses for purposes

of determining their eligibility for

special provisions such as bidding

credits and installment payments. We

have defined a small business as 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

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 definitions. An auction of Phase II

licenses commenced on September 15,

1998, and closed on October 22, 1998.

Nine hundred and eight (908) licenses

were auctioned in 3 different-sized

geographic areas: three nationwide

licenses, 30 Regional Economic Area

Group (Regional) Licenses, and 875

Economic Area (EA) Licenses. Of the

908 licenses auctioned, 693 were sold.

Companies claiming small business

status won: one of the Nationwide

licenses, 67% of the Regional licenses,

and 54% of the EA licenses. As of

October 7, 1999, the Commission had

granted 681 of the Phase II 220 MHz

licenses won at a first auction and an

additional 221 Phase II licenses won at

a second auction.

28. Narrowband PCS. The

Commission has auctioned nationwide

and regional licenses for narrowband

PCS. There are 11 nationwide and 30

regional licensees for narrowband PCS.

The Commission does not have

sufficient information to determine

whether any of these licensees are small

businesses within the SBA-approved

definition for radiotelephone

companies. At present, there have been

no auctions held for the major trading

area (MTA) and basic trading area (BTA)

narrowband PCS licenses. The

Commission anticipates a total of 561

MTA licenses and 2,958 BTA licenses

will be awarded by auction. Such

auctions have not yet been scheduled,

however. Given that nearly all

radiotelephone companies have no more

than 1,500 employees and that no

reliable estimate of the number of

prospective MTA and BTA narrowband

licensees can be made, we assume, for

purposes of this IRFA, that all of the

licenses will be awarded to small

entities, as that term is defined by the

SBA.

29. Rural Radiotelephone Service. The

Commission has not adopted a

definition of small entity specific to the

Rural Radiotelephone Service. A

significant subset of the Rural

Radiotelephone Service is the Basic

Exchange Telephone Radio Systems

(BETRS). We will use the SBA’s

definition applicable to radiotelephone

companies, i.e., an entity employing no

more than 1,500 persons. There are

approximately 1,000 licensees in the

Rural Radiotelephone Service, and we

estimate that almost all of them qualify

as small entities under the SBA’s

definition.

30. Air-Ground Radiotelephone

Service. The Commission has not

adopted a definition of small entity

specific to the Air-Ground

Radiotelephone Service. Accordingly,

we will use the SBA’s definition

applicable to radiotelephone companies,

i.e., an entity employing no more than

1,500 persons. There are approximately

100 licensees in the Air-Ground

Radiotelephone Service, and we

estimate that almost all of them qualify

as small entities under the SBA

definition.

31. Private Land Mobile Radio

(PLMR). PLMR systems serve an

essential role in a range of industrial,

business, land transportation, and

public safety activities. These radios are

used by companies of all sizes operating

in all U.S. business categories. The

Commission has not developed a

definition of small entity specifically

applicable to PLMR licensees due to the

vast array of PLMR users. For the

purpose of determining whether a

licensee is a small business as defined

by the SBA, each licensee would need

to be evaluated within its own business

area. The Commission is unable at this

time to estimate the number, if any, of

small businesses that could be impacted

by the proposed rules. However, the

Commission’s 1994 Annual Report on

PLMRs indicates that at the end of fiscal

year 1994 there were 1,087,267

licensees operating 12,481,989

transmitters in the PLMR bands below

512 MHz. Because any entity engaged in

a commercial activity is eligible to hold

a PLMR license, the proposed rules in

this context could potentially impact

every small business in the United

States. We note, however, that because

the vast majority of these licensees are

end-users, not providers of telephony or

broadband services, they would not be

directly affected by the rules proposed

in this Notice.

32. Fixed Microwave Services.

Microwave services include common

carrier, private-operational fixed, and

broadcast auxiliary radio services. At

present, there are approximately 22,015

common carrier fixed licensees in the

microwave services. The Commission

has not yet defined a small business

with respect to microwave services. For

purposes of this IRFA, we will utilize

the SBA’s definition applicable to

radiotelephone companies—i.e., an

entity with no more than 1,500 persons.

We estimate, for this purpose, that all of

the Fixed Microwave licensees

(excluding broadcast auxiliary

licensees) would qualify as small

entities under the SBA definition for

radiotelephone companies.

33. Offshore Radiotelephone Service.

This service operates on several UHF

TV broadcast channels that are not used

10418 Federal Register / Vol. 66, No. 32 / Thursday, February 15, 2001 / Proposed Rules

for TV broadcasting in the coastal area

of the states bordering the Gulf of

Mexico. At present, there are

approximately 55 licensees in this

service. We are unable at this time to

estimate the number of licensees that

would qualify as small entities under

the SBA’s definition for radiotelephone

communications.

34. Wireless Communications

Services. This service can be used for

fixed, mobile, radio-location and digital

audio broadcasting satellite uses. 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 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. We

conclude that the number of geographic

area WCS licensees that may be affected

by the decisions and rules proposed in

the Notice includes these eight entities.

35. Satellite Services. The

Commission has not developed a

definition of small entities applicable to

satellite service licensees. Therefore, the

applicable definition of small entity is

generally the definition under the SBA

rules applicable to Communications

Services, Not Elsewhere Classified

(NEC). This definition provides that a

small entity is expressed as one with

$11.0 million or less in annual receipts.

According to the Census Bureau, there

were a total of 848 communications

services providers, NEC, in operation in

1992, and a total of 775 had annual

receipts of less than $9.999 million. The

Census report does not provide more

precise data.

36. In addition to the estimates

provided above, we consider certain

additional entities that may be affected

by the data collection from broadband

service providers. Because section 706

requires us to monitor the deployment

of broadband regardless of technology or

transmission media employed, we

anticipate that some broadband service

providers will not provide telephone

service. Accordingly, we describe below

other types of firms that may provide

broadband services, including cable

companies, MDS providers, and

utilities, among others.

37. Cable services or systems. The

SBA has developed a definition of small

entities for cable and other pay

television services, which includes all

such companies generating $11 million

or less in revenue annually. This

definition includes cable systems

operators, closed circuit television

services, direct broadcast satellite

services, multipoint distribution

systems, satellite master antenna

systems and subscription television

services. According to the Census

Bureau data from 1992, there were 1,788

total cable and other pay television

services and 1,423 had less than $11

million in revenue.

38. The Commission has developed

its own definition of a small cable

system operator for the purposes of rate

regulation. Under the Commission’s

rules, a ‘‘small cable company’’ is one

serving fewer than 400,000 subscribers

nationwide. Based on our most recent

information, we estimate that there were

1,439 cable operators that qualified as

small cable system operators at the end

of 1995. Since then, some of those

companies may have grown to serve

over 400,000 subscribers, and others

may have been involved in transactions

that caused them to be combined with

other cable operators. Consequently, we

estimate that there are fewer than 1,439

small entity cable system operators.

39. The Communications Act also

contains a definition of a small cable

system operator, which is ‘‘a cable

operator that, directly or through an

affiliate, serves in the aggregate fewer

than 1 percent of all subscribers in the

United States and is not affiliated with

any entity or entities whose gross

annual revenues in the aggregate exceed

$250,000,000.’’ The Commission has

determined that there are 66,690,000

subscribers in the United States.

Therefore, we found that an operator

serving fewer than 666,900 subscribers

shall be deemed a small operator, if its

annual revenues, when combined with

the total annual revenues of all of its

affiliates, do not exceed $250 million in

the aggregate. Based on available data,

we find that the number of cable

operators serving 666,900 subscribers or

less totals 1,450. We do not request nor

do we collect information concerning

whether cable system operators are

affiliated with entities whose gross

annual revenues exceed $250,000,000,

and thus are unable at this time to

estimate with greater precision the

number of cable system operators that

would qualify as small cable operators

under the definition in the

Communications Act.

40. Multipoint Distribution Systems

(MDS). This service has historically

provided primarily point-to-multipoint

one-way video services to subscribers.

The Commission recently amended its

rules to allow MDS licensees to provide

a wide range of high-speed, two-way

services to a variety of users.

41. In connection with the 1996 MDS

auction, the Commission defined small

businesses as entities that had annual

average gross revenues for the three

preceding years not in excess of $40

million. The Commission established

this small business definition in the

context of this particular service and

with the approval of the SBA. The MDS

auction resulted in 67 successful

bidders obtaining licensing

opportunities for 493 Basic Trading

Areas. Of the 67 auction winners, 61

met the definition of a small business.

At this time, we estimate that of the 61

small business MDS auction winners, 48

remain small business licensees.

42. In addition to the 48 small

businesses that hold BTA

authorizations, there are approximately

392 incumbent MDS licensees that are

considered small entities. After adding

the number of small business auction

licensees to the number of incumbent

licensees not already counted, we find

that there are currently approximately

440 MDS licensees that are defined as

small businesses under either the SBA

or the Commission’s rules. Some of

those 440 small business licensees may

be affected by the proposals in this

Notice.

43. Electric Services (SIC 4911). The

SBA has developed a definition for

small electric utility firms. The Census

Bureau reports that a total of 1379

electric utilities were in operation for at

least one year at the end of 1992.

According to SBA, a small electric

utility is an entity whose gross revenues

did not exceed five million dollars in

1992. The Census Bureau reports that

447 of the 1379 firms listed had total

revenues below five million dollars.

44. Electric and Other Services

Combined (SIC 4931). The SBA has

classified this entity as a utility whose

business is less than 95% electric in

combination with some other type of

service. The Census Bureau reports that

a total of 135 such firms were in

operation for at least one year at the end

of 1992. The SBA’s definition of a small

electric and other services combined

utility is a firm whose gross revenues

did not exceed five million dollars in

1992. The Census Bureau reported that

45 of the 135 firms listed had total

revenues below five million dollars.

45. Combination Utilities, Not

Elsewhere Classified (SIC 4939). The

SBA defines this utility as providing a

combination of electric, gas, and other

services which are not otherwise

classified. The Census Bureau reports

that a total of 79 such utilities were in

operation for at least one year at the end

Federal Register / Vol. 66, No. 32 / Thursday, February 15, 2001 / Proposed Rules 10419

of 1992. According to SBA’s definition,

a small combination utility is a firm

whose gross revenues did not exceed

five million dollars in 1992. The Census

Bureau reported that 63 of the 79 firms

listed had total revenues below five

million dollars.

IV. Description of Proposed Reporting,

Recordkeeping, and Other Compliance

Requirements

46. The Notice sets out in detail, and

seeks comment on, various proposals to

modify the Commission’s existing Local

Competition and Broadband reporting

program. Pursuant to the current

reporting program, certain providers of

broadband services and of local

telephone services must complete FCC

Form 477, which collects data on their

deployment of those services. Since the

adoption of the reporting program,

providers have reported data twice and

the Commission has issued its Second

Report on Advanced

Telecommunications Capability based

in significant part on the data collected

through this program. Thus, the Notice

seeks comment, in light of these

experiences, on ways that the

Commission might improve this data

gathering effort. The Notice asks

whether certain measures to gain

additional data might assist the

Commission in its efforts to understand

the degree and status of deployment of

broadband services, without imposing

an undue burden on reporting

providers. For example, the Notice seeks

comment on possible revisions to FCC

Form 477 that might more precisely

capture distinctions between the

deployment of broadband services to

residential and business users.

Similarly, the Notice seeks comment on

whether we should revise the form so

that providers report the actual

subscribership by zip code, in lieu of

the current requirement that providers

report a list of zip codes where

broadband service is being delivered.

Further, the Notice asks whether it is

possible to eliminate any unnecessary or

unduly burdensome aspects of the

reporting program. In addition to

seeking comment on the types of data to

be reported, the Notice seeks comment

on whether to adjust the current

reporting thresholds, whether the

Commission should alter its

confidentiality procedures for data

collected, whether it would be

appropriate to alter the frequency of

filing, and whether there are additional

steps that the Commission might take to

promote additional analyses of the data.

The Notice asks commenters to

document, insofar as possible, the

burdens that are imposed by our current

requirements and the additional

burdens that would be imposed by more

detailed reporting requirements.

I. Steps Taken To Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

47. The RFA requires an agency to

describe any significant alternatives that

it has considered in reaching its

proposed approach, which may include

the following four alternatives: (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 or

reporting requirements under the rule

for 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 small entities.

48. As mentioned previously, the

Notice seeks comment, in light of our

experiences since the adoption of the

reporting program, on ways that we

might improve this data gathering effort.

The Notice asks whether there is

additional data that would enhance the

Commission’s ability to understand the

status and degree of broadband and

local telephone service deployment. At

the same time, the Notice asks whether

it is possible to eliminate any

unnecessary or unduly burdensome

aspects of the reporting program. This

proposal would reduce burdens on all

respondents, including any small

entities that must report under the

program. Among the alternatives

considered in the Notice that might

affect small entities is a proposal by

Iowa Telecom seeking to create an

exemption for ‘‘mid-size LECs * * *

which serve primarily rural

communities.’’ Small entities are

specifically encouraged to comment on

such an exemption. The Notice seeks

comment on whether the burdens

imposed on smaller providers by our

reporting requirements outweigh the

benefits of these requirements. At the

same time, the Commission also asks

whether access to more complete

information about broadband

subscribership in rural areas—areas that

are often served by smaller telephone

and cable companies—might enable us

to better fulfill the congressional

directive to assess the state of

deployment of broadband services to all

Americans. The Notice expressly states

the Commission’s desire and intention

to work closely with service providers,

including small entities, to minimize

burdens wherever possible, particularly

for smaller providers that may have

limited resources.

VI. Federal Rules That May Duplicate,

Overlap, or Conflict With the Proposed

Rules

49. None.

VII. Federal Rules That May Duplicate,

Overlap, or Conflict With the Proposed

Rule

50. None.

Ordering Clauses

51. Pursuant to sections 1–5, 10, 11,

201–205, 215, 218–220, 251–271, 303(r),

332, 403, 502, and 503 of the

Communications Act of 1934, as

amended, 47 U.S.C. 151–155, 160, 161,

201–205, 215, 218–220, 251–271, 303(r),

332, 403, 502, and 503, and pursuant to

section 706 of the Telecommunications

Act of 1996, 47 U.S.C. 157 nt, this

[notice], with all attachments, is hereby

[adopted].

52. The Commission’s Consumer

Information Bureau, Reference

Information Center, shall send a copy of

this Second Notice of Proposed

Rulemaking, including the Initial

Regulatory Flexibility Analysis, to the

Chief Counsel for Advocacy of the Small

Business Administration in accordance

with paragraph 603(a) of the Regulatory

Flexibility Act, 5 U.S.C. 601 et seq.

(1981).

List of Subjects

47 CFR Parts 1 and 43

Communications common carriers,

Reporting and recordkeeping

requirements, Telecommunications,

Telephone.

47 CFR Part 20

Communications common carriers.

Federal Communications Commission.

Shirley Suggs,

Chief, Publications Branch.

[FR Doc. 01–3787 Filed 2–14–01; 8:45 am]

BILLING CODE 6712–01–U

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AH83

Endangered and Threatened Wildlife

and Plants; Proposed Designation of

Critical Habitat for Chorizanthe robusta

var. robusta (Robust Spineflower)

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.