Assessment and Collection of Regulatory Fees for Fiscal Year 2016
Federal Register, Volume 81 Issue 107 (Friday, June 3, 2016)
Federal Register Volume 81, Number 107 (Friday, June 3, 2016)
Proposed Rules
Pages 35680-35698
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2016-13087
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
MD Docket Nos. 16-166; FCC 16-61
Assessment and Collection of Regulatory Fees for Fiscal Year 2016
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this document, the Federal Communications Commission (Commission) will revise its Schedule of Regulatory Fees in order to recover an
Page 35681
amount of $384,012,497 that Congress has required the Commission to collect for fiscal year 2016. Section 9 of the Communications Act of 1934, as amended, provides for the annual assessment and collection of regulatory fees under sections 9(b)(2) and 9(b)(3), respectively, for annual ``Mandatory Adjustments'' and ``Permitted Amendments'' to the Schedule of Regulatory Fees.
DATES: Submit comments on or before June 20, 2016, and reply comments on or before July 5, 2016.
ADDRESSES: You may submit comments, identified by MD Docket No. 16-166, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs. Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
Email: ecfs@fcc.gov. Include MD Docket No. 16-166 in the subject line of the message.
Mail: Commercial overnight mail (other than U.S. Postal Service Express Mail, and Priority Mail, must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-
class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.
For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Roland Helvajian, Office of Managing Director at (202) 418-0444.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 16-61, MD Docket No. 16-166, adopted on May 18, 2016, and released on May 19, 2016. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Room CY-A257, Portals II, Washington, DC 20554, and may also be purchased from the Commission's copy contractor, BCPI, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. via their Web site, http://www.bcpi.com, or call 1-800-378-3160. This document is available in alternative formats (computer diskette, large print, audio record, and braille). Persons with disabilities who need documents in these formats may contact the FCC by email: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.
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Procedural Matters
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Ex Parte Rules Permit-But-Disclose Proceeding
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This Notice of Proposed Rulemaking (FY 2016 NPRM) shall be treated as a ``permit-but-disclose'' proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with section 1.1206(b). In proceedings governed by section 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
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Comment Filing Procedures
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Comments and Replies. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.
Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
ssquf All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
ssquf Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
ssquf U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
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Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., CY-A257, Washington, DC 20554. These documents will also be available free
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online, via ECFS. Documents will be available electronically in ASCII, Word, and/or Adobe Acrobat.
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Accessibility Information. To request information in accessible formats (computer diskettes, large print, audio recording, and Braille), send an email to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format (``PDF'') at: http://www.fcc.gov.
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Initial Regulatory Flexibility Analysis
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An initial regulatory flexibility analysis (IRFA) is contained in this document. Comments to the IRFA must be identified as responses to the IRFA and filed by the deadlines for comments on this NPRM. The Commission will send a copy of this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.
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Initial Paperwork Reduction Act
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This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
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Introduction
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In this Notice of Proposed Rulemaking (NPRM), we seek comment on the Federal Communications Commission's (FCC's or Commission's) proposed regulatory fees for fiscal year (FY) 2016. Specifically, the Commission proposes to collect $384,012,497.00 in regulatory fees as detailed in the proposed fee schedule attached to this NPRM in Table 4. As explained in this NPRM, the proposed fee schedule includes adjustments to the table used to assess regulatory fees on broadcasters.
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Background
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The Commission is required by Congress to assess regulatory fees each year in an amount that can reasonably be expected to equal the amount of its appropriation.\1\ Regulatory fees are mandated by Congress and are collected ``to recover the costs of . . . enforcement activities, policy and rulemaking activities, user information services, and international activities.'' \2\ Regulatory fees are to ``be derived by determining the full-time equivalent number of employees performing'' these activities, ``adjusted to take into account factors that are reasonably related to the benefits provided to the payer of the fee by the Commission's activities . . . .'' \3\ Regulatory fees recover direct costs, such as salary and expenses; indirect costs, such as overhead functions; and support costs, such as rent, utilities, or equipment.\4\ Regulatory fees also cover the costs incurred in regulating entities that are statutorily exempt from paying regulatory fees,\5\ entities whose regulatory fees are waived,\6\ and entities that provide services for which we do not assess regulatory fees.
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\1\ 47 U.S.C. 159(b)(1)(B). The Commission collected $7.67 million above the required regulatory fee target goal in FY 2015, which the Commission deposited into the U.S. Treasury. The cumulative over collection is $98.367 million as of September 30, 2015.
\2\ 47 U.S.C. 159(a).
\3\ 47 U.S.C. 159(b)(1)(A).
\4\ Assessment and Collection of Regulatory Fees for Fiscal Year 2004, Report and Order, 19 FCC Rcd 11662, 11666, para. 11 (2004) (FY 2004 Report and Order).
\5\ For example, governmental and nonprofit entities are exempt from regulatory fees under section 9(h) of the Communications Act of 1934, as amended (Communications Act or Act). 47 U.S.C. 159(h); 47 CFR 1.1162.
\6\ 47 CFR 1.1166.
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Congress sets the amount the Commission must collect each year in the Commission's fiscal year appropriations. Section 9(a)(2) of the Communications Act, as amended (Communications Act or Act) requires the Commission to collect fees sufficient to offset the amount appropriated.\7\ To calculate regulatory fees, the Commission allocates the total collection target across all regulatory fee categories. The allocation of fees to fee categories is based on the Commission's calculation of FTEs \8\ in each regulatory fee category. FTEs are classified as ``direct'' if the employee is in one of the four ``core'' bureaus; otherwise, that employee is considered an ``indirect'' FTE.\9\ The total FTEs for each fee category includes the direct FTEs associated with that category, plus a proportional allocation of indirect FTEs. The Commission then allocates the total amount to be collected among the various regulatory fee categories. Each regulatee within a fee category pays its proportionate share based on an objective measure, e.g., revenues, number of subscribers, or licenses.\10\
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\7\ 47 U.S.C. 159(a)(2).
\8\ One FTE, a ``Full Time Equivalent'' or ``Full Time Employee,'' is a unit of measure equal to the work performed annually by a full time person (working a 40 hour workweek for a full year) assigned to the particular job, and subject to agency personnel staffing limitations established by the U.S. Office of Management and Budget.
\9\ The core bureaus are the Wireline Competition Bureau (165 FTEs), Wireless Telecommunications Bureau (92 FTEs), Media Bureau (151 FTEs), and part of the International Bureau (24 FTEs), totaling 432 direct FTEs. The indirect FTEs are the employees from the following bureaus and offices: Enforcement Bureau, Consumer & Governmental Affairs Bureau, Public Safety and Homeland Security Bureau, part of the International Bureau, Chairman and Commissioners' offices, Office of the Managing Director, Office of General Counsel, Office of the Inspector General, Office of Communications Business Opportunities, Office of Engineering and Technology, Office of Legislative Affairs, Office of Strategic Planning and Policy Analysis, Office of Workplace Diversity, Office of Media Relations, and Office of Administrative Law Judges, totaling 1,046 indirect FTEs. These totals are as of Oct. 1, 2015 and exclude auctions funded FTEs.
\10\ See Procedures for Assessment and Collection of Regulatory Fees, Notice of Proposed Rulemaking, 27 FCC Rcd 8458, 8461-62, paras. 8-11 (2012) (FY 2012 NPRM).
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The Commission continues to improve the regulatory fee process by ensuring a more equitable distribution of the regulatory fee burden among categories of Commission licensees under the statutory framework in section 9 of the Communications Act. Specifically, in the FY 2013 Report and Order, the Commission adopted updated FTE allocations to more accurately reflect the number of FTEs working on regulation and oversight of the regulatees in the various fee categories; \11\ reallocated some FTEs from the International Bureau as ``indirect;'' \12\ combined the UHF and VHF television stations into one regulatory fee category; \13\ and created a regulatory fee category that included Internet Protocol Television (IPTV).\14\ Subsequently, in the FY 2014 Report and Order and FNPRM, the Commission adopted a new fee subcategory (within the Interstate Telecommunications Service Provider (ITSP) category) for toll free numbers; \15\ increased the de minimis threshold for annual regulatory fee payors; \16\ and eliminated several categories from the regulatory fee schedule.\17\ In the FY 2015 NPRM and
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Report and Order, the Commission added a subcategory for Direct Broadcast Satellite (DBS) providers (in the cable television and IPTV regulatory fee category) based on the finding that Media Bureau FTEs work on issues and proceedings that include DBS as well as other multichannel video programming distributors (MVPDs).\18\ In addition, in the FY 2015 NPRM and Report and Order, we sought comment on revising the regulatory fee schedule for broadcasters.\19\
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\11\ Assessment and Collection of Regulatory Fees for Fiscal Year 2013, Report and Order, 28 FCC Rcd 12351, 12354-58, paras 10-20 (2013) (FY 2013 Report and Order). This was recommended in a report issued by the Government Accountability Office (GAO) in 2012. See GAO ``Federal Communications Commission Regulatory Fee Process Needs to be Updated,'' GAO-12-686 (August 2012) (GAO Report) at 36, (available at http://www.gao.gov/products/GAO-12-686).
\12\ FY 2013 Report and Order, 28 FCC Rcd at 12355-58, paras. 13-20.
\13\ Id., 28 FCC Rcd at 12361-62, paras. 29-31.
\14\ Id., 28 FCC Rcd at 12362-63, paras. 32-33.
\15\ Assessment and Collection of Regulatory Fees for Fiscal Year 2014, Report and Order and Further Notice of Proposed Rulemaking, 29 FCC Rcd 10767, 10777-79, paras. 25-28 (2014) (FY 2014 Report and Order and FNPRM).
\16\ FY 2014 Report and Order and FNPRM, 29 FCC Rcd at 10774-76, paras. 18-21.
\17\ Id., 29 FCC Rcd at 10776-77, paras. 22-24.
\18\ Assessment and Collection of Regulatory Fees for Fiscal Year 2015, Notice of Proposed Rulemaking, Report and Order, and Order, 30 FCC Rcd 5354, 5364-5373, paras. 28-41 (2015) (FY 2015 NPRM and Report and Order). We also eliminated two additional fee categories. See id., 30 FCC Rcd at 5361-62, paras. 19-22.
\19\ Id., 30 FCC Rcd at 5359, para. 13. In the FY 2015 Report and Order and FNPRM, we sought further comment on the broadcast regulatory fees issue and also sought comment on ITTA's proposal to reallocate FTEs in the Wireline Competition Bureau. Assessment and Collection of Regulatory Fees for Fiscal Year 2015, Report and Order and Further Notice of Proposed Rulemaking, 30 FCC Rcd 10268, 10279-
282, paras. 27-34 (2015) (FY 2015 Report and Order and FNPRM).
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Discussion
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Notice of Proposed Rulemaking
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We propose to collect $384,012,497 in regulatory fees for FY 2016, pursuant to section 9 of the Communications Act.\20\ Of this amount, we project approximately $21.4 million (5.56 percent of the total FTE allocation) in fees from the International Bureau regulatees; \21\ $81.9 million (21.3 percent of the total FTE allocation) in fees from the Wireless Telecommunications Bureau regulatees; \22\ $133.97 million (34.95 percent of the total FTE allocation) from the Media Bureau regulatees; \23\ and $146.8 million (38.19 percent of the total FTE allocation) from Wireline Competition Bureau regulatees.\24\
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\20\ 47 U.S.C. 159. The proposed regulatory fee rates for FY 2016 include $339,844,000 for operational expenses and an additional one time amount of $44,168,497 to offset facilities reduction, i.e., reduce our office space footprint and move the FCC office location if necessary. Consolidated Appropriations Act, 2016, Public Law 114-
113, Dec. 18, 2015. Due to the facilities reduction, regulatees' aggregate fees by category increased on average by approximately 11-
13 percent for 2016.
\21\ Includes satellites, earth stations, submarine cable, and bearer circuits.
\22\ Includes Commercial Mobile Radio Service (CMRS), CMRS messaging, Broadband Radio Service/Local Multipoint Distribution Service (BRS/LMDS), and multi-year wireless licensees.
\23\ Includes AM radio, FM radio, television, low power/FM, cable television and IPTV, DBS, and Cable Television Relay Service (CARS) licenses.
\24\ Includes Interstate Telecommunications Service Providers (ITSP) and toll free numbers.
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These regulatory fees are mandated by Congress and are collected ``to recover the costs of . . . enforcement activities, policy and rulemaking activities, user information services, and international activities.'' \25\ We seek comment on the proposed regulatory fee schedule in Table 4.
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\25\ 47 U.S.C. 159(a).
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DBS Regulatory Fees as a Subcategory in the Cable Television and IPTV Category
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This proposed fee schedule includes an updated regulatory fee for DBS, a subcategory in the cable television and IPTV category.\26\ In 2015, the Commission adopted the initial regulatory fee for DBS, as a subcategory in the cable television and IPTV category, of 12 cents per year per subscriber, or one cent per month.\27\ At that time, the Commission stated that it would update the rate for FY 2016, as necessary for ensuring an appropriate level of regulatory parity and considering the resources dedicated to this subcategory.\28\ When the Commission adopted this regulatory fee subcategory for DBS, the Commission observed that numerous regulatory developments had increased the Media Bureau FTE activity involving regulation and oversight of MVPDs, including DBS providers.\29\ For example, DBS providers (and cable television operators) are permitted to file program access complaints \30\ and complaints seeking relief under the retransmission consent good faith rules; \31\ DBS providers are subject to MVPD requirements such as those pertaining to program carriage; \32\ and they are subject to the requirement to negotiate retransmission consent in good faith.\33\ In addition, the Commission, in recent years, adopted numerous requirements that apply to all MVPDs, and thus DBS providers, as part of its implementation of the Commercial Advertisement Loudness Mitigation Act (CALM Act),\34\ the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA),\35\ as well as the Satellite Television Extension and Localism Act (STELA) Reauthorization Act of 2014 (STELAR).\36\
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\26\ DBS also pays a regulatory per operational station in geostationary orbit.
\27\ FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10276-77, paras. 19-20.
\28\ Id., 30 FCC Rcd at 10277, para. 20.
\29\ See FY 2015 NPRM and Report and Order, 30 FCC Rcd at 5367-
68, para. 31.
\30\ 47 U.S.C. 548; 47 CFR 76.1000-1004.
\31\ 47 U.S.C. 325(b)(1), (3)(C)(ii); 47 CFR 76.65(b).
\32\ 47 U.S.C. 536; 47 CFR 76.1300-1302.
\33\ 47 U.S.C. 325(b)(3)(C)(iii); 47 CFR 76.65(a)-(b).
\34\ See Implementation of the Commercial Advertisement, Loudness Mitigation (CALM) Act, Report and Order, 26 FCC Rcd 17222 (2011) (CALM Act Report and Order).
\35\ Public Law 111-260, 124 Stat. 2751 (2010). See also Amendment of Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010) (making corrections to the CVAA); 47 CFR part 79.
\36\ The STELA Reauthorization Act of 2014 (STELAR), Public Law 113-200, 128 Stat. 2059 (2014). STELAR was enacted on December 4, 2014 (H.R. 5728, 113th Cong.). Commission work on implementation of the Act was immediate. See, e.g., Implementation of Sections 101, 103 and 105 of the STELA Reauthorization Act of 2014, Order, 30 FCC Rcd 2380 (2015) (implementing certain STELAR provisions under the ``good cause'' exception to the Administrative Procedure Act); Amendment to the Commission's Rules Concerning Market Modification, Implementation of Section 102 of the STELA Reauthorization Act of 2014, Report and Order, 30 FCC Rcd 10406 (2015) (adopting satellite television market modification rules to enable satellite carriers, cable operators, and commercial television stations to better serve the interests of their local communities); Implementation of Section 103 of the STELA Reauthorization Act of 2014, Notice of Proposed Rulemaking, 30 FCC Rcd 10327 (2015) (seeking comment on potential updates to the ``totality of the circumstances'' test for good faith negotiation of retransmission consent); Final Report of the DSTAC, available at https://transition.fcc.gov/dstac/dstac-report-final-08282015.pdf; ``Media Bureau Seeks Comment on DSTAC Report,'' Public Notice, DA 15-982, 2015 WL 5164960 (MB 2015); ``Media Bureau Seeks Comment for Report Required by the STELA Reauthorization Act of 2014,'' Public Notice, 30 FCC Rcd 1904 (2015) (seeking information for a report to Congress on designated market areas and considerations for fostering increased localism).
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FY 2015 was the first time the Commission assessed a regulatory fee for DBS based on Media Bureau FTEs. At that time, the Commission concluded an initial rate of 12 cents per subscriber per year was a sensible fee supported by data and analysis for FY 2015.\37\ In adopting the regulatory fee for DBS as a subcategory of cable television and IPTV category, the Commission explained that ``although DBS is not identical to cable television and IPTV, the services all receive oversight and regulation as a result of the work of Media Bureau FTEs on MVPD issues. The burden imposed on the Commission is therefore similar.'' \38\ At the same time, the Commission also explained that it would examine the appropriate allocation between and among MVPD regulatees in the coming years as the Commission implemented the new DBS fee.\39\ Such examination is
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consistent with a report issued by the Government Accountability Office (GAO) in 2012, which observed it is important for the Commission to ``regularly update analyses to ensure that fees are set based on relevant information.'' \40\
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\37\ See FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10276-77, para. 20. The agency is not required to calculate its costs with ``scientific precision.'' Central & Southern Motor Freight Tariff Ass'n v. United States, 777 F.2d 722, 736 (D.C. Cir. 1985). Reasonable approximations will suffice. Id.; Mississippi Power & Light, 601 F.2d 223, 232 (5th Cir. 1979); National Cable Television Ass'n v. FCC, 554 F.2d 1094, 1105 (D.C. Cir. 1976).
\38\ FY 2015 NPRM and Report and Order, 30 FCC Rcd at 5369, para. 33.
\39\ FY 2015 NPRM and Report and Order, 30 FCC Rcd at 5367-68, para. 34, n.129 (The Commission explained that ``even when an industry has oversight generally by one organizational unit within the Commission, we are sensitive to the fact that balance between members of the same industry may require adjustments to FTE allocations.'').
\40\ GAO Report at 12.
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In addition to the activities described in our FY 2015 regulatory fee proceeding, DBS, along with other MVPDs, continues to receive oversight and regulation as a result of the work of Media Bureau FTEs. For example, the Commission recently adopted a Report and Order requiring cable operators, DBS providers, and certain other licensees to post their public file documents to the FCC-hosted online database.\41\ In addition, the Commission is currently reviewing a proposal by Chairman Wheeler to unlock the set-top box of cable and DBS operators.\42\ Thus, for reasons similar to those discussed in the FY 2015 NPRM and Report and Order,\43\ and based on the Commission's analysis of the resources dedicated to this subcategory, including the resources dedicated to the pending portfolio of MVPD proceedings, the Commission proposes to revise the DBS fee rate. Specifically, in this FY 2016 regulatory fee proceeding, the Commission seeks comment on a higher regulatory fee rate of 27 cents per subscriber per year for FY 2016, as set forth in the proposed fee schedule. This fee includes a 24 cent per subscriber baseline with a proportional adjustment of three cents per subscriber associated with the Commission's facilities reduction costs.
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\41\ Expansion of Online Public File Obligations to Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees, Memorandum, Opinion and Order, FCC 16-4, 2016 WL 380814 (released January 29, 2016).
\42\ ``Expanding Consumer Choice in the Video Marketplace'' (January 28, 2016), available at https://www.fcc.gov/news-events/blog/2016/01/28/expanding-consumer-choice-video-marketplace.
\43\ FY 2015 NPRM and Report and Order, 30 FCC Rcd at 5367-5373, paras. 31-41.
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Broadcaster Regulatory Fees
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The Commission assesses regulatory fees on radio broadcasters based on type and class of service and on the population served. Upon occasion, the Commission makes adjustments to the methodology for assessing regulatory fees on radio broadcasters. For example, concerning population served, the Commission adopted a methodology that relied on the radio station's calculated field strength signal contour overlaid upon U.S. Census data to obtain an estimate of the population coverage for each station.\44\ Subsequently, licensees complained to the Commission that the contours exaggerated actual market areas and populations served. The Commission addressed these concerns through revising the methodology for calculating the fees.\45\ Similarly, in 2003, due to a trend toward more powerful stations and general increases in the overall population, an increasing number of stations were grouped in the one million-plus population category of the grid and the Commission expanded the AM and FM radio station grid to include wider population thresholds and extended the population category to an amount ``greater than three million.'' \46\
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\44\ Assessment and Collection of Regulatory Fees for Fiscal Year 1997, Report and Order, 12 FCC Rcd 17161, 17179-17184, paras. 47-56 (1997).
\45\ Assessment and Collection of Regulatory Fees for Fiscal Year 1998, Report and Order, 13 FCC Rcd 19820, 19830-33, paras. 31-
41 (1998).
\46\ Assessment and Collection of Regulatory Fees for Fiscal Year 2003, Report and Order, 18 FCC Rcd 15985, 15986-87, paras. 4-5 (2003).
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In the FY 2015 Report and Order and FNPRM, the Commission proposed to include a higher population row in the table for AM and FM broadcasters, i.e., to divide broadcasters that serve 3,000,001-
6,000,000 from those that have a higher population coverage.\47\ Similarly in the FY 2015 Report and Order and FNPRM, the Commission also proposed to standardize the incremental increase in fees as the population served increases \48\ and to more consistently assess fees based on the type and class of service.\49\ No comments were received by the Commission concerning this proposal. The Commission now tentatively concludes adopting these proposals will make the regulatory fees for AM and FM radio more rational and address, in part, the problem of a large number of stations in the highest grid.\50\ The Commission seeks comment on the following proposed table of regulatory fees for AM and FM radio broadcasters, which includes fees based on the adoption of both options.
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\47\ FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10280, para. 28.
\48\ Id. Specifically, we sought comment on standardizing the incremental increase in fees as radio broadcasters increase the population they serve, such as by requiring that fee adjustments between tiers monotonically increase as the population served increases. Id.
\49\ Id. We sought comment on assessing fees based on the relative type and class of service, such as by assessing FM class B, C, C0, C1, & C2 stations at twice the rate of AM class C stations, and FM class A, B1, & C3 stations assessed at 75 percent more than AM class C stations. For AM stations, we sought comment on assessing AM class A stations at 60 percent more, AM class B stations at 15 percent more, and AM class D stations at 10 percent more than AM class C stations. Id.
\50\ FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10279-
280, paras. 27-28.
Table 1
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FY 2016 Radio station regulatory fees (proposed)
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FM Classes B,
Population served AM Class A AM Class B AM Class C AM Class D FM Classes A, C, C0, C1 &
B1 & C3 C2
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6,000,000.............................................. 13,750 9,950 8,625 9,500 15,000 17,175
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Concerning television broadcasters, in the FY 2015 Report and Order and FNPRM, the Commission proposed to readjust the table to restore the traditional determination that Top 10 stations should pay about twice what
Page 35685
stations in markets 26-50 pay.\51\ The Commission did not receive comments on this proposal. At this time, the Commission tentatively concludes that this proposal will make the regulatory fees for television broadcasters more rational. Accordingly, the Commission seeks comment on the regulatory fees for television broadcasters as set forth in Table 4.
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\51\ FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10280-81, para. 29.
Table 2
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FY 2016 Television station regulatory fees (proposed)
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FY 2016
Digital TV (47 CFR part 73) VHF and UHF FY 2015 Proposed
commercial Fee rates fee rates
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Markets 1-10.................................... $46,825 $60,775
Markets 11-25................................... 43,200 45,750
Markets 26-50................................... 27,625 30,575
Markets 51-100.................................. 16,275 15,225
Remaining Markets............................... 4,850 5,000
Construction Permits............................ 4,850 5,000
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The Commission also recognizes that the incentive auction scheduled for 2016 is a substantial event for the television broadcast industry. As a result, in the FY 2015 Report and Order and FNPRM, the Commission sought comment on whether, when, and how the Commission should adjust its methodology for assessing regulatory fees on television stations to respond to such potential changed circumstances consistent with the provisions of section 9 of the Communications Act.\52\ While the Commission received comments on the issue,\53\ it is too early to revise our regulatory fee apportionment because of the uncertainty in events that have yet to happen. The Commission intends to consider any changed circumstances due to the incentive auction as part of the FY 2017 regulatory fee proceeding.
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\52\ FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10281, para. 30.
\53\ NAB Comments at 2-7.
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International Services: Terrestrial and Satellite Services
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Facilities-based common carriers must pay regulatory fees for terrestrial and satellite International Bearer Circuits (IBCs) active (used or leased) as of December 31 of the prior year in any terrestrial or satellite transmission facility for the provision of service to an end user or resale carrier.\54\ In the FY 2015 Report and Order and FNPRM, the Commission asked facilities-based common carriers to review their reporting processes to ensure that they accurately calculate and report IBCs.\55\ The Commission reminded facilities-based common carriers that they must include all common carrier circuits used by themselves or their affiliates when calculating the number of active circuits. The Commission also indicated that we will review the processes for reporting IBCs in the near future to ensure that all carriers are reporting IBCs in the same manner, consistent with our rules. In this regard, the Commission seeks comment on how we can ensure that all providers are calculating and reporting IBCs in the same manner. What criteria do providers use to distinguish common carrier terrestrial circuits from non-common carrier terrestrial circuits for regulatory fee purposes?
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\54\ See para. 22 infra.
\55\ FY 2015 Report and Order and FNPRM, 30 FCC Rcd 10268, 10283-85, para. 40 and n.128.
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As the Commission has stated in the past, non-common carrier terrestrial circuits play an important role in the provision of international services through microwave and fiber links across the U.S.-Canada and U.S.-Mexico borders, and the Commission regularly engages with counterparts in Canada and Mexico on a wide range of issues related to cross-border communications.\56\ In 2009, the Commission explored whether carriers should be assessed regulatory fees for their terrestrial non-common carrier circuits, but declined to do so at that time because of the ``complexity of the legal, policy and equity issues involved.'' \57\ Since that time, the telecommunications industry and Commission's rules have evolved, and the Commission now seeks comment on whether it would be more equitable to no longer distinguish common carrier terrestrial circuits from non-common carrier terrestrial circuits for regulatory fee purposes. If the Commission requires carriers providing international service over terrestrial circuits to pay IBC regulatory fees for their non-common carrier circuits, what is the least burdensome methodology for calculating fees? For example, should the Commission require carriers to report the total amount of international revenue rather than the number of circuits? How do carriers identify their international revenues? How can the Commission ensure carriers are accurately reporting both common carrier and non-common carrier terrestrial circuits? Finally, how can the Commission improve the requirements and regulatory treatment of terrestrial and satellite services for purposes of regulatory fees?
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\56\ Assessment and Collection of Regulatory Fees for Fiscal Year 2009, Notice of Proposed Rulemaking and Order, 24 FCC Rcd 5966, 5971, para. 14 (2009).
\57\ Assessment and Collection of Regulatory Fees for Fiscal Year 2009, Report and Order, 24 FCC Rcd 10301, 10306-307, paras. 16-
17 (2009). On March 17, 2009, the Commission adopted in the Submarine Cable Order a new submarine cable bearer circuit methodology that allocates IBC costs among service providers in an equitable and competitively neutral manner, without distinguishing between common carriers and non-common carriers, by assessing a flat per cable landing license fee for all submarine cable systems. Assessment and Collection of Regulatory Fees for Fiscal Year 2008, Second Report and Order, 24 FCC Rcd 4208, 4214-16, paras. 13-17 (2009) (Submarine Cable Order).
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Other Regulatory Fee Reform
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ITTA Proposal
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In the FY 2015 Report and Order and FNPRM, the Commission sought comment on ITTA's proposals to combine wireless voice and wireline services into the ITSP category \58\ or, alternatively, to re-
assign certain Wireline Competition Bureau FTEs to other fee categories, for regulatory fee purposes. The Commission also sought comment on adopting a new regulatory fee category for CMRS, as a subcategory of the ITSP regulatory fee category.\59\ The Commission has had an opportunity to further review ITTA's proposals and, as we explain below, we tentatively conclude that combining the wireline and wireless categories, reassigning Wireline Competition Bureau FTEs to the Wireless Telecommunications Bureau, and/or adopting a new subcategory for CMRS in the ITSP regulatory fee category are not consistent with Commission orders implementing section 9 of the Communications Act.
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\58\ ITTA Comments at 4-9. See FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10281-82, paras. 31-34. ITTA had proposed this previously. See, e.g., Assessment and Collection of Regulatory Fees for Fiscal Year 2014, Notice of Proposed Rulemaking, 29 FCC Rcd 6417, 6430-31, paras. 36-39 (2014) (FY 2014 NPRM); Assessment and Collection of Regulatory Fees for Fiscal Year 2013, Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, 28 FCC Rcd 7790, 7796, para. 12 (2013) (FY 2013 NPRM); Assessment and Collection of Regulatory Fees for Fiscal Year 2008, Report and Order and Further Notice of Proposed Rulemaking, 24 FCC Rcd 6388, 6404-05, paras. 40-41 (2008) (FY 2008 FNPRM).
\59\ FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10282, para. 34. ITTA and ACA argue that such change is supported by the fact that many proceedings in the Wireline Competition Bureau proceedings, and elsewhere, such as those involving universal service, intercarrier compensation, pole attachments, rural call completion, number portability, 911 access, and special access, affect wireless service providers. ITTA Comments at 9-10; ACA Comments at 4-7. CTIA opposes this proposal as arbitrary and capricious as well as in violation of section 9 of the Act. CTIA Comments at 2.
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The Commission has stated that ``given the significant implications of reassignment of FTEs in our fee
Page 35686
calculation, we make changes to FTE classifications only after performing considerable analysis and finding the clearest case for reassignment.'' \60\ In this instance, ITTA contends that the Wireline Competition Bureau FTEs working on universal service issues and other proceedings benefit categories of service providers other than ITSPs, particularly CMRS providers, and therefore should be considered in calculating the CMRS regulatory fee.\61\ Based on our own detailed analysis, as well as the fact that the Wireless Telecommunications Bureau assigns its own FTEs to coordinate with the Wireline Competition Bureau on relevant wireless issues, we tentatively conclude that a clear case for reassignment of Wireline Competition Bureau FTEs to the Wireless Telecommunications Bureau is not demonstrated in this instance. Our analysis of the Wireline Competition Bureau FTE work on wireline issues that also affect the CMRS industry does not support adopting a new subcategory for CMRS in the ITSP regulatory fee category--and thus assessing regulatory fees on CMRS based on both Wireless Telecommunications Bureau FTEs and Wireline Competition Bureau FTEs, as ITTA proposes.\62\ Further, ITTA's proposal to combine these regulatory fee categories does not appear to address the substantial differences between the services in terms of regulatory oversight by the two bureaus. Thus, at this juncture, the Commission does not find that the ``clearest case of reassignment'' exists based on the considerable analysis we have conducted.
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\60\ FY 2013 Report and Order, 28 FCC Rcd at 12357, para. 19. The Commission observed that the International Bureau was a ``singular case'' because the work of those FTEs ``primarily benefits licensees regulated by other bureaus.'' Id., 28 FCC Rcd at 12355, para. 14.
\61\ ITTA Comments at 10.
\62\ See Letter from Micah M. Caldwell, ITTA, to Marlene H. Dortch, Secretary, FCC (January 22, 2016).
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The Commission nevertheless seeks comment on whether it would be appropriate to allocate some proportion of the direct FTEs that devote time to universal service and/or numbering issues as additional indirect FTEs.\63\ Based on staff estimates looking back over a 6 to 12 month period, of the 165 FTEs in the Wireline Competition Bureau, approximately seven FTEs work on numbering issues and 52 FTEs work on universal service issues (approximately 16 on the high-cost program, 13 on the schools and libraries program, nine on the Lifeline program for low income consumers (lifeline), seven on the rural healthcare program, and seven on universal service contributions).\64\ Of the 92 FTEs in the Wireless Telecommunications Bureau, staff estimate that the equivalent of approximately five FTEs work roughly full time on universal service issues (primarily the high-cost program). If we were to reallocate, for regulatory fee purposes, some proportion of the direct FTEs, what should that proportion be? Any proposals should demonstrate policy or legal arguments supporting reallocating some proportion of numbering and/or USF FTEs as indirect. In doing so, the Commission would invite comment on whether some or all of the FTEs that work on universal service contributions, the schools and libraries program, or the rural healthcare program, should be reallocated as indirect FTEs. Should the Commission reallocate some proportion of the FTEs from each bureau that work on the high-cost program, given the participation of non-wireline and wireless regulatees in the Connect America Fund proceedings? What proportion, if any, of the FTEs that work on numbering issues and the lifeline program should the Commission reallocate given that a significant number of regulatees benefiting from those programs are not wireline regulatees? Is there some proportion of these FTEs whose ``activities benefit the Commission as a whole and are not specifically focused on core bureau regulatees''? \65\ Commenters' proposals for FTE reallocation should be consistent with the section 9 requirement that regulatory fees are to ``be derived by determining the full-time equivalent number of employees performing'' Commission activities, ``adjusted to take into account factors that are reasonably related to the benefits provided to the payer of the fee by the Commission's activities . . . .'' \66\
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\63\ Currently, indirect FTEs in various bureaus and offices work on universal service issues.
\64\ These estimates can vary as discussed above and do not represent an entire fiscal year.
\65\ FY 2013 NPRM, 28 FCC Rcd at 7803, para. 28.
\66\ 47 U.S.C. 159(b)(1)(A). (Emphasis added).
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The Commission notes that incorrect allocation of FTEs to a particular core bureau may disproportionately impact regulatees given that indirect FTEs are allocated proportionally based on the direct FTE percentage attributable to a particular core bureau. The Commission also notes that any change in the allocation of FTEs necessarily affects the fees paid by payors in all other fee categories. We seek comment on whether this proposal is consistent with section 9 of the Act \67\ and with the Commission's allocation policies with respect to direct and indirect FTEs.\68\ Commenters should also address the Commission's goal of ensuring that regulatory fees are administrable and sustainable.\69\
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\67\ Section 9 of the Communications Act requires regulatory fees collected ``to recover the costs of . . . enforcement activities, policy and rulemaking activities, user information services, and international activities.'' 47 U.S.C. 159(a). The regulatory fees are to ``be derived by determining the full-time equivalent number of employees performing'' these activities, ``adjusted to take into account factors that are reasonably related to the benefits provided to the payer of the fee by the Commission's activities . . . .'' 47 U.S.C. 159(b)(1)(A).
\68\ FY 2013 Report and Order, 28 FCC Rcd at 12354-55, paras. 10-12 (adopting use of current FTE data for purposes of regulatory fee calculations as opposed to 1998 FTE data previously used); id. at 12357-58, paras. 19-20 (``It would be inconsistent with section 9 to delay reallocating the International Bureau FTEs, where the reallocation is clearly warranted, while we engage in painstaking examinations of less clear and more factually complex situations in other bureaus. . . . At the same time, however, we recognize that a reexamination of how FTEs are allocated throughout the Commission is an indispensable part of comprehensively revising the Commission's regulatory fee program.''); FY 2013 NPRM, 28 FCC Rcd at 7793-95, 7796-99, 7803, paras. 7-10, 15-19, 29 (generally explaining prior FTE allocation methodology and proposing methodology changes).
\69\ FY 2013 Report and Order, 28 FCC Rcd at 12354, para 9.
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Earth Stations
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In the FY 2014 NPRM, the Commission sought comment on increasing the earth station regulatory fee allocation in order to reflect more appropriately the number of FTEs devoted to the regulation and oversight of the earth station portion of the satellite industry.\70\ In the FY 2014 regulatory fee proceeding, the Commission increased the regulatory fees paid by earth station licensees by approximately 7.5 percent based on our analysis and review of the record.\71\ In the FY 2015 NPRM and Report and Order, the Commission sought comment on whether to raise the earth station regulatory fees again.\72\ We concluded, however, that the issue required further analysis, in part because the then-pending part 25 proceeding streamlining the satellite licensing rules might affect the distribution of FTE work.\73\ An Order was adopted in that proceeding in December 2015, and accordingly it is timely to again seek comment on whether to increase the regulatory fees paid by earth station licensees.\74\ In this context, we seek comment on EchoStar's proposal to
Page 35687
adopt different regulatory fees for different types of earth station licenses.\75\
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\70\ FY 2014 NPRM, 29 FCC Rcd at 6428, para. 29.
\71\ See FY 2014 Report and Order, 29 FCC Rcd at 10772-73, para. 12.
\72\ FY 2015 NPRM and Report and Order, 30 FCC Rcd at 5360, para. 14.
\73\ FY 2015 NPRM and Report and Order, 30 FCC Rcd at 5360, para. 14.
\74\ See Comprehensive Review of Licensing and Operating Rules for Satellite Services, Second Report and Order, 30 FCC Rcd 14713 (2015).
\75\ See EchoStar July 20, 2015 ex parte, filed in MD Docket No. 15-121.
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Procedural Matters
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Payment of Regulatory Fees
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Payments by Check Will Not Be Accepted for Payment of Annual Regulatory Fees
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Pursuant to an Office of Management and Budget (OMB) directive,\76\ the Commission is moving towards a paperless environment, extending to disbursement and collection of select federal government payments and receipts.\77\ Last year the Commission stopped accepting checks (including cashier's checks and money orders) and the accompanying hardcopy forms (e.g., Forms 159, 159-B, 159-E, 159-W) for the payment of regulatory fees.\78\ This new paperless procedure requires that all payments be made by online Automated Clearing House (ACH) payment, online credit card, or wire transfer. Any other form of payment (e.g., checks, cashier's checks, or money orders) will be rejected. For payments by wire, a Form 159-E should still be transmitted via fax so that the Commission can associate the wire payment with the correct regulatory fee information. This change affects all payments of regulatory fees.\79\
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\76\ Office of Management and Budget (OMB) Memorandum M-10-06, Open Government Directive, December 8, 2009; see also http://www.whitehouse.gov/the-press-office/2011/06/13/executive-order-13576-delivering-efficient-effective-and-accountable-gov.
\77\ See U.S. Department of the Treasury, Open Government Plan 2.1, September 2012.
\78\ FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10282-83, para. 35. See 47 CFR 1.1158.
\79\ Payors should note that this change will mean that to the extent certain entities have to date paid both regulatory fees and application fees at the same time via paper check, they will no longer be able to do so as the regulatory fees payment via paper check will no longer be accepted.
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Revised Credit Card Transaction Levels
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Since June 1, 2015, in accordance with U.S. Treasury Announcement No. A-2014-04 (July 2014), the amount that can be charged on a credit card for transactions with federal agencies has been reduced to $24,999.99.\80\ Transactions greater than $24,999.99 will be rejected. This limit applies to single payments or bundled payments of more than one bill. Multiple transactions to a single agency in one day may be aggregated and treated as a single transaction subject to the $24,999.99 limit. Customers who wish to pay an amount greater than $24,999.99 should consider available electronic alternatives such as Visa or MasterCard debit cards, ACH debits from a bank account, and wire transfers. Each of these payment options is available after filing regulatory fee information in Fee Filer. Further details will be provided regarding payment methods and procedures at the time of FY 2016 regulatory fee collection in Fact Sheets, available at https://www.fcc.gov/regfees.
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\80\ Customers who owe an amount on a bill, debt, or other obligation due to the federal government are prohibited from splitting the total amount due into multiple payments. Splitting an amount owed into several payment transactions violates the credit card network and Fiscal Service rules. An amount owed that exceeds the Fiscal Service maximum dollar amount, $24,999.99, may not be split into two or more payment transactions in the same day by using one or multiple cards. Also, an amount owed that exceeds the Fiscal Service maximum dollar amount may not be split into two or more transactions over multiple days by using one or more cards.
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De Minimis Regulatory Fees
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Regulatees whose total FY 2016 annual regulatory fee liability, including all categories of fees for which payment is due, is $500 or less are exempt from payment of FY 2016 regulatory fees. The de minimis threshold applies only to filers of annual regulatory fees (not regulatory fees paid through multi-year filings), and it is not a permanent exemption. Each regulatee will need to reevaluate their total fee liability each fiscal year to determine whether they meet the de minimis exemption.
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Standard Fee Calculations and Payment Dates
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The Commission will accept fee payments made in advance of the window for the payment of regulatory fees. The responsibility for payment of fees by service category is as follows:
Media Services: Regulatory fees must be paid for initial construction permits that were granted on or before October 1, 2015 for AM/FM radio stations, VHF/UHF full service television stations, and satellite television stations. Regulatory fees must be paid for all broadcast facility licenses granted on or before October 1, 2015. For providers of Direct Broadcast Satellite (DBS) service, regulatory fees should be paid based on a subscriber count on or about December 31, 2015. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date.
Wireline (Common Carrier) Services: Regulatory fees must be paid for authorizations that were granted on or before October 1, 2015. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date. Audio bridging service providers are included in this category.\81\ For Responsible Organizations (RespOrgs) that manage Toll Free Numbers (TFN), regulatory fees should be paid on all working, assigned, and reserved toll free numbers as well as toll free numbers in any other status as defined in section 52.103 of the Commission's rules.\82\ The unit count should be based on toll free numbers managed by RespOrgs on or about December 31, 2015.
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\81\ Audio bridging services are toll teleconferencing services.
\82\ 47 CFR 52.103.
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Wireless Services: CMRS cellular, mobile, and messaging services (fees based on number of subscribers or telephone number count): Regulatory fees must be paid for authorizations that were granted on or before October 1, 2015. The number of subscribers, units, or telephone numbers on December 31, 2015 will be used as the basis from which to calculate the fee payment. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date.
Wireless Services, Multi-year fees: The first eight regulatory fee categories in our Schedule of Regulatory Fees pay ``small multi-year wireless regulatory fees.'' Entities pay these regulatory fees in advance for the entire amount period covered by the five-year or ten-year terms of their initial licenses, and pay regulatory fees again only when the license is renewed or a new license is obtained. We include these fee categories in our rulemaking (see Table 3) to publicize our estimates of the number of ``small multi-year wireless'' licenses that will be renewed or newly obtained in FY 2016.
Multichannel Video Programming Distributor Services (cable television operators and CARS licensees): Regulatory fees must be paid for the number of basic cable television subscribers as of December 31, 2015.\83\
Page 35688
Regulatory fees also must be paid for CARS licenses that were granted on or before October 1, 2015. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date.
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\83\ Cable television system operators should compute their number of basic subscribers as follows: Number of single family dwellings + number of individual households in multiple dwelling unit (apartments, condominiums, mobile home parks, etc.) paying at the basic subscriber rate + bulk rate customers + courtesy and free service. Note: Bulk-Rate Customers = Total annual bulk-rate charge divided by basic annual subscription rate for individual households. Operators may base their count on ``a typical day in the last full week'' of December 2015, rather than on a count as of December 31, 2015.
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International Services: Regulatory fees must be paid for (1) earth stations and (2) geostationary orbit space stations and non-
geostationary orbit satellite systems that were licensed and operational on or before October 1, 2015. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date.
International Services: (Submarine Cable Systems): Regulatory fees for submarine cable systems are to be paid on a per cable landing license basis based on circuit capacity as of December 31, 2015. In instances where a license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the license as of the fee due date. For regulatory fee purposes, the allocation in FY 2016 will remain at 87.6 percent for submarine cable and 12.4 percent for satellite/terrestrial facilities.
International Services: (Terrestrial and Satellite Services): Regulatory fees for Terrestrial and Satellite International Bearer Circuits (IBCs) are to be paid by facilities-based common carriers that have active (used or leased) international bearer circuits as of December 31, 2015 in any terrestrial or satellite transmission facility for the provision of service to an end user or resale carrier. When calculating the number of such active circuits, the facilities-based common carriers must include circuits used by themselves or their affiliates. In addition, non-common carrier satellite operators must pay a fee for each circuit they and their affiliates hold and each circuit sold or leased to any customer, other than an international common carrier authorized by the Commission to provide U.S. international common carrier services. For these purposes, ``active circuits'' include backup and redundant circuits as of December 31, 2015. Whether circuits are used specifically for voice or data is not relevant for purposes of determining that they are active circuits.\84\ In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date. For regulatory fee purposes, the allocation in FY 2016 will remain at 87.6 percent for submarine cable and 12.4 percent for satellite/terrestrial facilities.\85\
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\84\ We encourage terrestrial and satellite service providers to seek guidance from the International Bureau's Telecommunications and Analysis Division to verify their particular IBC reporting processes to ensure that their calculation methods comply with our rules.
\85\ We remind facilities-based common carriers to review their reporting processes to ensure that they accurately calculate and report IBCs.
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Commercial Mobile Radio Service (CMRS) Cellular and Mobile Services Assessments
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The Commission will compile data from the Numbering Resource Utilization Forecast (NRUF) report that is based on ``assigned'' telephone number (subscriber) counts that have been adjusted for porting to net Type 0 ports (``in'' and ``out'').\86\ This information of telephone numbers (subscriber count) will be posted on the Commission's electronic filing and payment system (Fee Filer) along with the carrier's Operating Company Numbers (OCNs).
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\86\ See Assessment and Collection of Regulatory Fees for Fiscal Year 2005, Report and Order and Order on Reconsideration, 20 FCC Rcd 12259, 12264, paras. 38-44 (2005).
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A carrier wishing to revise its telephone number (subscriber) count can do so by accessing Fee Filer and follow the prompts to revise their telephone number counts. Any revisions to the telephone number counts should be accompanied by an explanation or supporting documentation.\87\ The Commission will then review the revised count and supporting documentation and either approve or disapprove the submission in Fee Filer. If the submission is disapproved, the Commission will contact the provider to afford the provider an opportunity to discuss its revised subscriber count and/or provide additional supporting documentation. If we receive no response from the provider, or we do not reverse our initial disapproval of the provider's revised count submission, the fee payment must be based on the number of subscribers listed initially in Fee Filer. Once the timeframe for revision has passed, the telephone number counts are final and are the basis upon which CMRS regulatory fees are to be paid. Providers can view their final telephone counts online in Fee Filer. A final CMRS assessment letter will not be mailed out.
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\87\ In the supporting documentation, the provider will need to state a reason for the change, such as a purchase or sale of a subsidiary, the date of the transaction, and any other pertinent information that will help to justify a reason for the change.
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Because some carriers do not file the NRUF report, they may not see their telephone number counts in Fee Filer. In these instances, the carriers should compute their fee payment using the standard methodology that is currently in place for CMRS Wireless services (i.e., compute their telephone number counts as of December 31, 2015), and submit their fee payment accordingly. Whether a carrier reviews its telephone number counts in Fee Filer or not, the Commission reserves the right to audit the number of telephone numbers for which regulatory fees are paid. In the event that the Commission determines that the number of telephone numbers that are paid is inaccurate, the Commission will bill the carrier for the difference between what was paid and what should have been paid.
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Additional Tables
Table 3--Calculation of FY 2016 Revenue Requirements and Pro-Rata Fees
Regulatory fees for the first seven categories below are collected by the Commission in advance to cover the term of the license and are submitted at
the time the application is filed
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FY 2015 Prorated FY
Fee category FY 2016 payment Years revenue 2016 revenue Computed FY Rounded FY Expected FY
units estimate requirement 2016 reg. fee 2016 reg. fee 2016 revenue
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PLMRS (Exclusive Use)...................... 2,500 10 546,000 625,938 25 25 625,000
PLMRS (Shared use) Includes Rural Radio 31,100 10 3,100,000 3,114,665 10 10 3,110,000
Service (47 CFR part 22)..................
Microwave.................................. 12,500 10 2,520,000 3,129,688 25 25 3,125,000
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Marine (Ship).............................. 6,900 10 945,000 1,036,553 15 15 1,035,000
Aviation (Aircraft)........................ 4,700 10 420,000 470,705 10 10 470,000
Marine (Coast)............................. 480 10 171,500 192,288 40 40 192,000
Aviation (Ground).......................... 1,100 10 180,000 220,330 20 20 220,000
AM Class A\4\.............................. 66 1 281,125 314,451 4,764 4,775 315,150
AM Class B\4\.............................. 1,535 1 3,499,125 3,893,459 2,536 2,525 3,875,875
AM Class C\4\.............................. 889 1 1,244,600 1,409,299 1,585 1,575 1,400,175
AM Class D\4\.............................. 1,492 1 4,103,000 4,607,579 3,088 3,100 4,625,200
FM Classes A, B1 & C3 \4\.................. 3,122 1 8,613,000 9,652,908 3,092 3,100 9,678,200
FM Classes B, C, C0, C1 & C2 \4\........... 3,139 1 10,607,625 11,826,839 3,768 3,775 11,849,725
AM Construction Permits \1\................ 15 1 17,110 10,366 691 690 10,350
FM Construction Permits\1\................. 179 1 136,500 215,122 1,202 1,200 214,800
Satellite TV............................... 128 1 200,025 224,336 1,753 1,750 224,000
Digital TV Markets 1-10.................... 139 1 6,274,550 8,446,540 60,766 60,775 8,447,725
Digital TV Markets 11-25................... 139 1 5,918,400 6,358,412 45,744 45,750 6,359,250
Digital TV Markets 26-50................... 181 1 5,000,125 5,532,175 30,565 30,575 5534,075
Digital TV Markets 51-100.................. 283 1 4,605,825 4,311,203 15,234 15,225 4,308,675
Digital TV Remaining Markets............... 365 1 1,838,150 1,827,738 5,008 5,000 1,825,000
Digital TV Construction Permits\1\......... 3 1 9,700 15,023 5,000 5,000 15,000
LPTV/Translators/Boosters/Class A TV....... 3,924 1 1,601,600 1,788,098 456 455 1,785,420
CARS Stations.............................. 285 1 198,000 221,206 776 775 220,875
Cable TV Systems, including IPTV........... 64,100,000 1 61,920,000 64,196,150 1.0015 1.00 64,100,000
Direct Broadcast Satellite (DBS)........... 34,000,000 1 4,080,000 9,193,770 .2704 .27 9,180,000
Interstate Telecommunication Service $38,400,000,000 1 128,428,000 141,908,544 0.0036955 0.00370 142,080,000
Providers.................................
Toll Free Numbers.......................... 36,500,000 1 4,380,000 4,752,018 0.1302 0.13 4,745,000
CMRS Mobile Services (Cellular/Public 360,000,000 1 60,180,000 72,108,276 0.2003 0.20 72,000,000
Mobile)...................................
CMRS Messag. Services...................... 2,300,000 1 208,000 184,000 0.0800 0.080 184,000
BRS \2\.................................... 890 1 565,150 645,250 725 725 645,250
LMDS....................................... 395 1 238,125 286,375 725 725 286,375
Per 64 kbps Int'l Bearer Circuits 22,500,000 1 657,000 770,617 .0342 .03 675,000
Terrestrial (Common) & Satellite (Common &
Non-Common)...............................
Submarine Cable Providers (see chart in 39.19 1 4,652,576 5,444,038 138,914 138,925 5,444,471
Appendix B) \3\...........................
Earth Stations............................. 3,400 1 1,023,000 1,174,760 346 345 1,173,000
Space Stations (Geostationary)............. 95 1 11,438,400 13,174,858 138,683 138,675 13,174,125
Space Stations (Non-Geostationary)......... 6 1 792,750 913,068 152,178 152,175 913,050
****** Total Estimated Revenue to be .................. ....... 340,593,961 384,196,740 .............. .............. 384,066,766
Collected.............................
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****** Total Revenue Requirement....... .................. ....... 339,844,000 384,012,497 .............. .............. 384,012,497
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Difference......................... .................. ....... 749,961 184,243 .............. .............. 54,269
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Notes on Table 3.
\1\ The AM and FM Construction Permit revenues and the Digital (VHF/UHF) Construction Permit revenues were adjusted, respectively, to set the regulatory
fee to an amount no higher than the lowest licensed fee for that class of service. Reductions in the Digital (VHF/UHF) Construction Permit revenues
were also offset by increases in the revenue totals for various Digital television stations by market size, respectively.
\2\ MDS/MMDS category was renamed Broadband Radio Service (BRS). See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules to Facilitate
the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, Report & Order
and Further Notice of Proposed Rulemaking, 19 FCC Rcd 14165, 14169, para. 6 (2004).
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\3\ The chart at the end of Table 4 lists the submarine cable bearer circuit regulatory fees (common and non-common carrier basis) that resulted from
the adoption of Assessment and Collection of Regulatory Fees for Fiscal Year 2008, Report and Order and Further Notice of Proposed Rulemaking, 24 FCC
Rcd 6388 (2008) and Assessment and Collection of Regulatory Fees for Fiscal Year 2008, Second Report and Order, 24 FCC Rcd 4208 (2009).
\4\ The fee amounts listed in the column entitled ``Rounded New FY 2016 Regulatory Fee'' constitute a weighted average media regulatory fee by class of
service. The actual FY 2016 regulatory fees for AM/FM radio station are listed on a grid located at the end of Table 4.
Table 4--Proposed Regulatory Fees FY 2016 Schedule of Regulatory Fees
Regulatory fees for the first eight categories below are collected by
the Commission in advance to cover the term of the license and are
submitted at the time the application is filed
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Annual regulatory
Fee category fee (U.S. $'s)
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PLMRS (per license) (Exclusive Use) (47 CFR part 90). 25
Microwave (per license) (47 CFR part 101)............ 25
Marine (Ship) (per station) (47 CFR part 80)......... 15
Marine (Coast) (per license) (47 CFR part 80)........ 40
Rural Radio (47 CFR part 22) (previously listed under 10
the Land Mobile category)...........................
PLMRS (Shared Use) (per license) (47 CFR part 90).... 10
Aviation (Aircraft) (per station) (47 CFR part 87)... 10
Aviation (Ground) (per license) (47 CFR part 87)..... 20
CMRS Mobile/Cellular Services (per unit) (47 CFR .20
parts 20, 22, 24, 27, 80 and 90)....................
CMRS Messaging Services (per unit) (47 CFR parts 20, .08
22, 24 and 90)......................................
Broadband Radio Service (formerly MMDS/MDS) (per 725
license) (47 CFR part 27) Local Multipoint 725
Distribution Service (per call sign) (47 CFR, part
101)................................................
AM Radio Construction Permits........................ 690
FM Radio Construction Permits........................ 1,200
Digital TV (47 CFR part 73) VHF and UHF Commercial
Markets 1-10..................................... 60,775
Markets 11-25.................................... 45,750
Markets 26-50.................................... 30,575
Markets 51-100................................... 15,225
Remaining Markets................................ 5,000
Construction Permits............................. 5,000
Satellite Television Stations (All Markets).......... 1,750
Low Power TV, Class A TV, TV/FM Translators & 455
Boosters (47 CFR part 74)...........................
CARS (47 CFR part 78)................................ 775
Cable Television Systems (per subscriber) (47 CFR 1.00
part 76), Including IPTV............................
Direct Broadcast Service (DBS) (per subscriber) (as .27
defined by section 602(13) of the Act)..............
Interstate Telecommunication Service Providers (per .00370
revenue dollar).....................................
Toll Free (per toll free subscriber) (47 CFR section .13
52.101 (f) of the rules)............................
Earth Stations (47 CFR part 25)...................... 345
Space Stations (per operational station in 138,675
geostationary orbit) (47 CFR part 25) also includes
DBS Service (per operational station) (47 CFR part
100)................................................
Space Stations (per operational system in non- 152,175
geostationary orbit) (47 CFR part 25)...............
International Bearer Circuits--Terrestrial/Satellites .03
(per 64KB circuit)..................................
Submarine Cable Landing Licenses Fee (per cable See Table Below
system).............................................
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FY 2016 Schedule of Regulatory Fees
Table 4 continued
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FY 2016 RADIO STATION REGULATORY FEES
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FM Classes A, FM Classes B,
Population Served AM Class A AM Class B AM Class C AM Class D B1 & C3 C, C0, C1 & C2
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6,000,000.............................................. 13,750 9,950 8,625 9,500 15,000 17,175
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FY 2016 SCHEDULE OF REGULATORY FEES
International Bearer Circuits--Submarine Cable (Table 4 continued)
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Submarine Cable Systems (capacity as of December 31,
2015) Fee amount
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3,000,000.............................................. 9,300 7,800 5,700 6,750 10,500 12,025
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International Bearer Circuits--Submarine Cable (Table 7 Continued)
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Submarine cable systems (capacity as of December 31,
2014) Fee amount
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http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ5&prodType=Table.
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Cable Companies and Systems. The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a ``small cable company'' is one serving 400,000 or fewer subscribers nationwide.\163\ Industry data indicate that there are currently 4,600 active cable systems in the United States.\164\ Of this total, all but ten cable operators nationwide are small under the 400,000-subscriber size standard.\165\ In addition, under the Commission's rate regulation rules, a ``small system'' is a cable system serving 15,000 or fewer subscribers.\166\ Current Commission records show 4,600 cable systems nationwide.\167\ Of this total, 3,900 cable systems have less than 15,000 subscribers, and 700 systems have 15,000 or more subscribers, based on the same records.\168\ Thus, under this standard as well, the Commission estimates that most cable systems are small entities.
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\163\ 47 CFR 76.901(e).
\164\ August 15, 2015 Report from the Media Bureau based on data contained in the Commission's Cable Operations And Licensing System (COALS). See www/fcc.gov/coals.
\165\ See SNL KAGAN at www.snl.com/interactiveX/top cableMSOs aspx?period2015Q1&sortcol=subscribersbasic&sortorder=desc.
\166\ 47 CFR 76.901(c).
\167\ See footnote 2, supra.
\168\ August 5, 2015 report from the Media Bureau based on its research in COALS. See www.fcc.gov/coals.
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Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, 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 are approximately 52,403,705 cable video subscribers in the United States today.\169\ Accordingly, an operator serving fewer than 524,037 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate.\170\ Based on available data, we find that all but nine incumbent cable operators are small entities under this size standard.\171\ We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million.\172\ Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we 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.
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\169\ See SNL KAGAN at www.snl.com/interactivex/MultichannelIndustryBenchmarks.aspx.
\170\ 47 CFR 76.901(f) and notes ff. 1, 2, and 3.
\171\ See SNL KAGAN at www.snl.com/Interactivex/TopCableMSOs.aspx.
\172\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to section 76.901(f) of the Commission's rules. See 47 CFR 76.901(f).
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Direct Broadcast Satellite (DBS) Service. DBS Service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic dish antenna at the subscriber's location. DBS is now included in SBA's economic census category ``Wired Telecommunications Carriers.'' The Wired Telecommunications Carriers industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VOIP services, wired (cable) audio and video programming distribution; and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.\173\ The SBA determines that a wireline business is small if it has fewer than 1500 employees.\174\ Census data for 2007 indicate that 3,188 wireline companies were operational during that year. Of that number, 3,144 operated with fewer than 1,000 employees.\175\ Based on that data, we conclude that the majority of wireline firms are small under the applicable standard. However, currently only two entities provide DBS service, which requires a great deal of capital for operation: DIRECTV (now owned by AT&T) and DISH Network.\176\ DIRECTV and DISH Network each report annual revenues that are in excess of the threshold for a small business. Accordingly, we must conclude that internally developed FCC data are persuasive that in general DBS service is provided only by large firms.
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\173\ http://www.census.gov/cgi-bin/sssd/naics/naicsrch.
\174\ NAICs CODE 517110; 13.CFR 121.201.
\175\ http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ5&prodType=table.
\176\ See 15th Annual Video Competition Report, 28 FCC Rcd at 1057, Section 27. As of June 2012, DIRECTV is the largest DBS operator and the second largest MVPD in the United States, serving 19.9 million subscribers. DISH Network is the second largest DBS operator and the third largest MVPD operator, serving 14 million subscribers. Id. at 10507, 10546, section 27, 110-11.
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All Other Telecommunications. ``All Other Telecommunications'' is defined as follows: This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.\177\ The SBA has developed a small business size standard for ``All Other Telecommunications,'' which consists of all such firms with gross
Page 35698
annual receipts of $32.5 million or less.\178\ For this category, census data for 2007 show that there were 2,383 firms that operated for the entire year. Of these firms, a total of 2,346 had gross annual receipts of less than $25 million.\179\ Thus, a majority of ``All Other Telecommunications'' firms potentially affected by the proposals in the NPRM can be considered small.
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\177\ http://www.census.gov/cgi-bin/ssssd/naics/naicsrch.
\178\ 13 CFR 121.201; NAICs Code 517919.
\179\ http://factfinder.census.gov/faces/tableservices.jasf/pages/productview.xhtml?pid+ECN_2007_US.51SSSZ4&prodType=table.
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Description of Projected Reporting, Recordkeeping and Other Compliance Requirements
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This NPRM does not propose any changes to the Commission's current information collection, reporting, recordkeeping, or compliance requirements.
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Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered
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The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance 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.\180\
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\180\ 5 U.S.C. 603(c)(1)-(c)(4).
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This NPRM seeks comment on the Commission's regulatory fee collection for Fiscal Year 2016, as required by Congress each year. Specifically, we ask for comments each year in the Regulatory Flexibility Analysis on how to minimize adverse economic impact, imposed by our proposed rules, on small entities. The regulatory fees proposed in this NPRM do not include any new fee categories. However, the proposal in FY 2016 to revise the broadcasters' fee grid to include a threshold ``greater than 6,000,000'', and a change in the television fee amounts so that large markets pay a higher proportional fee than small and medium-sized markets, will provide some relief to small broadcast and television entities. The increase in the de minimis amount to $500 implemented in FY 2015 has already provided financial relief to smaller entities.
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Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules
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None.
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Ordering Clauses
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Accordingly, it is ordered that, pursuant to sections 4(i) and (j), 9, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, and 303(r), this Notice of Proposed Rulemaking is hereby adopted.
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It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the U.S. Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
FR Doc. 2016-13087 Filed 6-2-16; 8:45 am
BILLING CODE 6712-01-P
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