Emergency Alert System, Wireless Emergency Alerts; National Defense Authorization Act for Fiscal Year 2021

CourtFederal Communications Commission
Citation86 FR 46804
Record Number2021-15174
Publication Date20 Aug 2021
Federal Register, Volume 86 Issue 159 (Friday, August 20, 2021)
[Federal Register Volume 86, Number 159 (Friday, August 20, 2021)]
                [Proposed Rules]
                [Pages 46804-46811]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-15174]
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                FEDERAL COMMUNICATIONS COMMISSION
                47 CFR Parts 10 and 11
                [PS Docket Nos. 15-94 and 15-91; FCC 21-77; FR ID 37636]
                Emergency Alert System, Wireless Emergency Alerts; National
                Defense Authorization Act for Fiscal Year 2021
                AGENCY: Federal Communications Commission.
                ACTION: Proposed rule.
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                SUMMARY: In this document, the Federal Communications Commission (the
                FCC or Commission) seeks comment on several recommendations made by the
                Federal Emergency Management Agency (FEMA) to revise the Emergency
                Alert System (EAS) rules to delete outdated references, re-name certain
                EAS terms to enhance public awareness, and update EAS capabilities for
                alerts that are persistent during certain extreme emergencies.
                DATES: Comments are due on or before October 19, 2021, and reply
                comments are due November 18, 2021.
                ADDRESSES: You may submit comments, identified by PS Docket Nos. 15-94
                and 15-91, by any of the following methods:
                 Federal Communications Commission's Website: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
                 Mail: Parties who choose to file by paper must file an
                original and one copy 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 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. Commercial overnight mail
                (other than U.S. Postal Service Express Mail and Priority Mail) must be
                sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal
                Service first-class, Express, and Priority mail must be addressed to 45
                L Street NE, 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: David Munson, Attorney Advisor, Public
                Safety and Homeland Security Bureau at 202-418-2921 or
                [email protected].
                SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
                and Order and Further Notice of Proposed Rulemaking (R&O and FNPRM), in
                PS Docket Nos. 15-94 and 15-91, FCC 21-77, adopted and released on June
                17, 2021. The full text of this document is available at https://www.fcc.gov/document/fcc-further-strengthens-emergency-alerting-0.
                 Pursuant to Sec. Sec. 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 the Commission's Electronic
                Comment Filing System (ECFS). 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://apps.fcc.gov/ecfs/.
                 Paper Filers: Parties who choose to file by paper must
                file an original and one copy of each filing.
                 Filings can be sent 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.
                 Commercial overnight mail (other than U.S. Postal Service
                Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
                Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express,
                and Priority mail must be addressed to 45 L Street NE, Washington, DC
                20554.
                 Effective March 19, 2020, and until further notice, the
                Commission no longer accepts any hand or messenger delivered filings.
                This is a temporary measure taken to help protect the health and safety
                of individuals, and to mitigate the transmission of COVID-19. See FCC
                Announces Closure of FCC Headquarters Open Window and Change in Hand-
                Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
                 People with Disabilities: To request materials in accessible
                formats for people with disabilities (braille, large print, electronic
                files, audio format), send an email to [email protected] or call the
                Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
                418-0432 (TTY).
                 The proceeding the FNPRM initiates shall be treated as a ``permit-
                but-disclose'' proceeding in accordance with the Commission's ex parte
                rules, 47 CFR 1.1200 et seq. 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 (1) list all persons
                attending or otherwise participating in the meeting at which the ex
                parte presentation was made, and (2) 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
                [[Page 46805]]
                must be filed consistent with rule 1.1206(b). In proceedings governed
                by rule 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.
                Synopsis
                 In the Further Notice of Proposed Rulemaking (FNPRM), the
                Commission seeks comment on several recommendations made by FEMA for
                revising the EAS rules to enhance its functionality. Specifically, the
                Commission seeks comment on FEMA's proposed rule changes recommending:
                (i) Deleting the National Information Center (NIC) event code from part
                11 of the Commission's rules; (ii) replacing the EAS originator code
                for the ``Primary Entry Point System,'' from ``PEP,'' to ``NAT,'' which
                would stand for ``National Authority''; (iii) either modifying the
                definition for the Emergency Action Notification (EAN) event code from
                ``Emergency Action Notification (National Only),'' to ``Emergency
                Alert, National,'' or replacing the EAN event code with a new event
                code called ``NEM,'' defined as ``National Emergency Message''; and
                (iv) considering methods to update the EAS to ``support persistent
                display of alert information and/or persistent notification for
                emergencies that require immediate public protective actions to
                mitigate loss of life.''
                Paperwork Reduction Act of 1995 Analysis
                 The FNPRM may contain new or modified information collection(s)
                subject to the Paperwork Reduction Act of 1995 (PRA). If the Commission
                adopts any new or modified information collection requirements, they
                will be submitted to the Office of Management and Budget (OMB) for
                review under section 3507(d) of the PRA. OMB, the general public, and
                other federal agencies will be invited to comment on the new or
                modified information collection requirements contained in this
                proceeding. In addition, pursuant to the Small Business Paperwork
                Relief Act of 2002, the Commission seeks specific comment on how it
                might further reduce the information collection burden for small
                business concerns with fewer than 25 employees.
                Initial Regulatory Flexibility Analysis
                 As required by the Regulatory Flexibility Act of 1980, as amended
                (RFA), the Commission has prepared this Initial Regulatory Flexibility
                Analysis (IRFA) of the possible significant economic impact on a
                substantial number of small entities by the policies and rules proposed
                in the FNPRM. Written public comments are requested on this IRFA.
                Comments must be identified as responses to the IRFA and must be filed
                by the deadlines for comments on the Notice. The Commission will send a
                copy of the FNPRM, including this IRFA, to the Chief Counsel for
                Advocacy of the Small Business Administration (SBA). In addition, the
                NPRM and IRFA (or summaries thereof) will be published in the Federal
                Register.
                A. Need for, and Objectives of, the Proposed Rules
                 In the FNPRM, the Commission seeks comment on proposed changes to
                the EAS rules suggested by FEMA. FEMA indicates the changes are needed
                to ensure that the Integrated Public Alert and Warning System (IPAWS)
                Open Platform for Emergency Networks that it manages is able to provide
                maximum effectiveness now and in the future in light of the
                requirements outlined in the William M. (Mac) Thornberry National
                Defense Authorization Act for Fiscal Year 2021 (NDAA21). Specifically,
                the Commission seeks comment on FEMA's proposed rule changes
                recommending: (i) Deleting the National Information Center (NIC) event
                code from part 11 of the Commission's rules; (ii) replacing the EAS
                originator code for the ``Primary Entry Point System,'' from ``PEP,''
                to ``NAT,'' which would stand for ``National Authority''; (iii) either
                modifying the definition for the Emergency Action Notification (EAN)
                event code from ``Emergency Action Notification (National Only),'' to
                ``Emergency Alert, National,'' or replacing the EAN event code with a
                new event code called ``NEM,'' defined as ``National Emergency
                Message''; and (iv) considering methods to update the EAS to ``support
                persistent display of alert information and/or persistent notification
                for emergencies that require immediate public protective actions to
                mitigate loss of life.'' FEMA asserts that the NIC is no longer in use,
                and changing the PEP and EAN codes would prevent public confusion about
                their meaning if included in the visual scroll or audio message
                elements of an actual EAS alert. FEMA states that keeping alert
                information persistent would ensure that the pubic received the alert.
                B. Legal Basis
                 The proposed action is authorized pursuant to sections 1, 2, 4(i),
                4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 713 of
                the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
                154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), and 606, as
                well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN
                Act, 47 U.S.C. 1202(a), (b), (c), (f), 1203, 1204 and 1206, Section 202
                of the Twenty-First Century Communications and Video Accessibility Act
                of 2010, as amended, 47 U.S.C. 613, and the National Defense
                Authorization Act for Fiscal Year 2021, Public Law 116-283, 134 Stat.
                3388, section 9201, 47 U.S.C. 1201, 1206.
                C. Description and Estimate of the Number of Small Entities to Which
                the Proposed Rules Will Apply
                 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. The RFA generally defines
                the term ``small entity'' as having the same meaning as the terms
                ``small business,'' ``small organization,'' and ``small governmental
                jurisdiction.'' In addition, the term ``small business'' has the same
                meaning as the term ``small business concern'' under the Small Business
                Act. A ``small business concern'' is one which: (1) Is independently
                owned and operated; (2) is not dominant in its field of operation; and
                (3) satisfies any additional criteria established by the SBA.
                 Small Businesses, Small Organizations, and Small Governmental
                Jurisdictions. The Commission's action may, over time, affect small
                entities that are not easily categorized at present. The Commission
                therefore describes here, at the outset, three broad groups of small
                entities that could be directly affected herein. First, while there are
                industry specific size standards for small businesses that are used in
                the regulatory flexibility analysis, according to data from the SBA's
                Office of Advocacy, in general a small business is an independent
                business having fewer than 500 employees. These types of small
                businesses represent 99.9% of all businesses in the United States which
                translates to 30.7 million businesses.
                 Next, the type of small entity described as a ``small
                organization'' is generally ``any not-for-profit enterprise which is
                independently owned and operated and is not dominant in its field.''
                Internal Revenue Service (IRS)
                [[Page 46806]]
                uses a revenue benchmark of $50,000 or less to delineate its annual
                electronic filing requirements for small exempt organizations.
                Nationwide, for tax year 2018, there were approximately 571,709 small
                exempt organizations in the U.S. reporting revenues of $50,000 or less
                according to the registration and tax data for exempt organizations
                available from the IRS.
                 Finally, the small entity described as a ``small governmental
                jurisdiction'' is defined generally as ``governments of cities,
                counties, towns, townships, villages, school districts, or special
                districts, with a population of less than fifty thousand.'' U.S. Census
                Bureau data from the 2017 Census of Governments indicate that there
                were 90,056 local governmental jurisdictions consisting of general
                purpose governments and special purpose governments in the United
                States. Of this number there were 36,931 General purpose governments
                (county, municipal and town or township) with populations of less than
                50,000 and 12,040 special purpose governments--independent school
                districts with enrollment of less than 50,000. Accordingly, based on
                the 2017 U.S. Census of Governments data, the Commission estimates that
                at least 48,971 entities fall into the category of ``small governmental
                jurisdictions.''
                 Radio Stations. This Economic Census category comprises
                establishments primarily engaged in broadcasting aural programs by
                radio to the public. Programming may originate in their own studio,
                from an affiliated network, or from external sources.'' The SBA has
                established a small business size standard for this category as firms
                having $41.5 million or less in annual receipts. Economic Census data
                for 2012 show that 2,849 radio station firms operated during that year.
                Of that number, 2,806 firms operated with annual receipts of less than
                $25 million per year, 17 with annual receipts between $25 million and
                $49,999,999 million and 26 with annual receipts of $50 million or more.
                Therefore, based on the SBA's size standard, the majority of such
                entities are small entities.
                 In addition to the U.S. Census Bureau's data, based on Commission
                data the Commission estimates that there are 4,560 licensed AM radio
                stations, 6,704 commercial FM radio stations and 8,339 FM translator
                and booster stations. The Commission has also determined that there are
                4,196 noncommercial educational (NCE) FM radio stations. The Commission
                however does not compile and does not otherwise have access to
                information on the revenue of NCE stations that would permit it to
                determine how many such stations would qualify as small entities under
                the SBA size standard.
                 The Commission also notes that in assessing whether a business
                entity qualifies as small under the above definition, business control
                affiliations must be included. The Commission's estimate therefore
                likely overstates the number of small entities that might be affected
                by its action, because the revenue figure on which it is based does not
                include or aggregate revenues from affiliated companies. In addition,
                to be determined a ``small business,'' an entity may not be dominant in
                its field of operation. The Commission further notes that it is
                difficult at times to assess these criteria in the context of media
                entities, and the estimate of small businesses to which these rules may
                apply does not exclude any radio station from the definition of a small
                business on these bases, thus the Commission's estimate of small
                businesses may therefore be over-inclusive. Also, as noted above, an
                additional element of the definition of ``small business'' is that the
                entity must be independently owned and operated. The Commission notes
                that it is difficult at times to assess these criteria in the context
                of media entities and the estimates of small businesses to which they
                apply may be over-inclusive to this extent.
                 FM Translator Stations and Low-Power FM Stations. FM translators
                and Low Power FM Stations are classified in the category of Radio
                Stations and are assigned the same NAICS Code as licensees of radio
                stations. This U.S. industry, Radio Stations, comprises establishments
                primarily engaged in broadcasting aural programs by radio to the
                public. Programming may originate in their own studio, from an
                affiliated network, or from external sources. The SBA has established a
                small business size standard which consists of all radio stations whose
                annual receipts are $38.5 million dollars or less. U.S. Census Bureau
                data for 2012 indicate that 2,849 radio station firms operated during
                that year. Of that number, 2,806 operated with annual receipts of less
                than $25 million per year, 17 with annual receipts between $25 million
                and $49,999,999 million and 26 with annual receipts of $50 million or
                more. Therefore, based on the SBA's size standard the Commission
                concludes that the majority of FM Translator Stations and Low Power FM
                Stations are small.
                 The Commission notes again, however, that in assessing whether a
                business concern qualifies as ``small'' under the above definition,
                business (control) affiliations must be included. Because the
                Commission does not include or aggregate revenues from affiliated
                companies in determining whether an entity meets the applicable revenue
                threshold, its estimate of the number of small radio broadcast stations
                affected is likely overstated. In addition, as noted above, one element
                of the definition of ``small business'' is that an entity would not be
                dominant in its field of operation. The Commission is unable at this
                time to define or quantify the criteria that would establish whether a
                specific radio broadcast station is dominant in its field of operation.
                Accordingly, the Commission's estimate of small radio stations
                potentially affected by the rule revisions discussed in the FNPRM
                includes those that could be dominant in their field of operation. For
                this reason, such estimate likely is over-inclusive.
                 Television Broadcasting. This Economic Census category ``comprises
                establishments primarily engaged in broadcasting images together with
                sound.'' These establishments operate television broadcast studios and
                facilities for the programming and transmission of programs to the
                public. These establishments also produce or transmit visual
                programming to affiliated broadcast television stations, which in turn
                broadcast the programs to the public on a predetermined schedule.
                Programming may originate in their own studio, from an affiliated
                network, or from external sources. The SBA has created the following
                small business size standard for such businesses: Those having $41.5
                million or less in annual receipts. The 2012 Economic Census reports
                that 751 firms in this category operated in that year. Of that number,
                656 had annual receipts of $25,000,000 or less, and 25 had annual
                receipts between $25,000,000 and $49,999,999. Based on this data, the
                Commission therefore estimates that the majority of commercial
                television broadcasters are small entities under the applicable SBA
                size standard.
                 The Commission has estimated the number of licensed commercial
                television stations to be 1,368. According to Commission staff review
                of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on
                November 16, 2017, 1,258 stations (or about 91 percent) had revenues of
                $38.5 million or less, and therefore these licensees qualified as small
                entities under the SBA definition. In addition, the Commission has
                estimated the number of licensed noncommercial educational television
                stations to be 390. Notwithstanding, the Commission does not compile
                and otherwise does not have access to information on the
                [[Page 46807]]
                revenue of NCE stations that would permit it to determine how many such
                stations would qualify as small entities. There are also 2,246 low
                power television stations, including Class A stations (LPTV), and 3,543
                TV translator stations. Given the nature of these services, the
                Commission will presume that all of these entities qualify as small
                entities under the above SBA small business size standard.
                 The Commission notes, however, that in assessing whether a business
                concern qualifies as ``small'' under the above definition, business
                (control) affiliations must be included. The Commission's estimate,
                therefore, likely overstates the number of small entities that might be
                affected by its action, because the revenue figure on which it is based
                does not include or aggregate revenues from affiliated companies. In
                addition, another element of the definition of ``small business''
                requires that an entity not be dominant in its field of operation. The
                Commission is unable at this time to define or quantify the criteria
                that would establish whether a specific television broadcast station is
                dominant in its field of operation. Accordingly, the estimate of small
                businesses to which rules may apply does not exclude any television
                station from the definition of a small business on this basis and is
                therefore possibly over-inclusive. Also, as noted above, an additional
                element of the definition of ``small business'' is that the entity must
                be independently owned and operated. The Commission notes that it is
                difficult at times to assess these criteria in the context of media
                entities and its estimates of small businesses to which they apply may
                be over-inclusive to this extent.
                 Cable and Other Subscription Programming. The U.S. Census Bureau
                defines this industry as establishments primarily engaged in operating
                studios and facilities for the broadcasting of programs on a
                subscription or fee basis. The broadcast programming is typically
                narrowcast in nature (e.g., limited format, such as news, sports,
                education, or youth-oriented). These establishments produce programming
                in their own facilities or acquire programming from external sources.
                The programming material is usually delivered to a third party, such as
                cable systems or direct-to-home satellite systems, for transmission to
                viewers. The SBA size standard for this industry establishes as small,
                any company in this category which receives annual receipts of $41.5
                million or less. According to 2012 U.S. Census Bureau data, 367 firms
                operated for the entire year. Of that number, 319 operated with annual
                receipts of less than $25 million a year and 48 firms operated with
                annual receipts of $25 million or more. Based on this data, the
                Commission estimates that the majority of firms operating in this
                industry are small.
                 Cable System Operators (Rate Regulation Standard). 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.
                Industry data indicate that there are 4,600 active cable systems in the
                United States. Of this total, all but five cable operators nationwide
                are small under the 400,000-subscriber size standard. In addition,
                under the Commission's rate regulation rules, a ``small system'' is a
                cable system serving 15,000 or fewer subscribers. Commission records
                show 4,600 cable systems nationwide. Of this total, 3,900 cable systems
                have fewer than 15,000 subscribers, and 700 systems have 15,000 or more
                subscribers, based on the same records. Thus, under this standard as
                well, the Commission estimates that most cable systems are small
                entities.
                 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 one 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.'' As of 2019, there were approximately 48,646,056 basic
                cable video subscribers in the United States. 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. Based
                on available data, the Commission finds that all but nine incumbent
                cable operators are small entities under this size standard. The
                Commission notes that it neither requests nor collects information on
                whether cable system operators are affiliated with entities whose gross
                annual revenues exceed $250 million. Although it seems certain that
                some of these cable system operators are affiliated with entities whose
                gross annual revenues exceed $250 million, the Commission is 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.
                 Satellite Telecommunications. This category comprises firms
                ``primarily engaged in providing telecommunications services to other
                establishments in the telecommunications and broadcasting industries by
                forwarding and receiving communications signals via a system of
                satellites or reselling satellite telecommunications.'' Satellite
                telecommunications service providers include satellite and earth
                station operators. The category has a small business size standard of
                $35 million or less in average annual receipts, under SBA rules. For
                this category, U.S. Census Bureau data for 2012 show that there was a
                total of 333 firms that operated for the entire year. Of this total,
                299 firms had annual receipts of less than $25 million. Consequently,
                the Commission estimates that the majority of satellite
                telecommunications providers are small entities.
                 All Other Telecommunications. The ``All Other Telecommunications''
                category 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. The
                SBA has developed a small business size standard for ``All Other
                Telecommunications,'' which consists of all such firms with gross
                annual receipts of $32.5 million or less. For this category, U.S.
                Census data for 2012 show that there were 1,442 firms that operated for
                the entire year. Of these firms, a total of 1,400 had gross annual
                receipts of less than $25 million. Thus, the Commission estimates that
                the majority of ``All Other Telecommunications'' firms potentially
                affected by its action can be considered small.
                 Broadband Radio Service and Educational Broadband Service.
                Broadband Radio Service systems, previously referred to as Multipoint
                Distribution Service (MDS) and Multichannel Multipoint Distribution
                Service (MMDS) systems, and ``wireless cable,'' transmit video
                programming to subscribers and provide two-way high speed data
                operations using the
                [[Page 46808]]
                microwave frequencies of the Broadband Radio Service (BRS) and
                Educational Broadband Service (EBS) (previously referred to as the
                Instructional Television Fixed Service (ITFS)).
                 BRS--In connection with the 1996 BRS auction, the Commission
                established a small business size standard as an entity that had annual
                average gross revenues of no more than $40 million in the previous
                three calendar years. The BRS auctions resulted in 67 successful
                bidders obtaining licensing opportunities for 493 Basic Trading Areas
                (BTAs). Of the 67 auction winners, 61 met the definition of a small
                business. BRS also includes licensees of stations authorized prior to
                the auction. At this time, the Commission estimates that of the 61
                small business BRS auction winners, 48 remain small business licensees.
                In addition to the 48 small businesses that hold BTA authorizations,
                there are approximately 86 incumbent BRS licensees that are considered
                small entities (18 incumbent BRS licensees do not meet the small
                business size standard). After adding the number of small business
                auction licensees to the number of incumbent licensees not already
                counted, there are currently approximately 133 BRS licensees that are
                defined as small businesses under either the SBA or the Commission's
                rules.
                 In 2009, the Commission conducted Auction 86, the sale of 78
                licenses in the BRS areas. The Commission offered three levels of
                bidding credits: (i) A bidder with attributed average annual gross
                revenues that exceed $15 million and do not exceed $40 million for the
                preceding three years (small business) received a 15 percent discount
                on its winning bid; (ii) a bidder with attributed average annual gross
                revenues that exceed $3 million and do not exceed $15 million for the
                preceding three years (very small business) received a 25 percent
                discount on its winning bid; and (iii) a bidder with attributed average
                annual gross revenues that do not exceed $3 million for the preceding
                three years (entrepreneur) received a 35 percent discount on its
                winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses.
                Of the ten winning bidders, two bidders that claimed small business
                status won 4 licenses; one bidder that claimed very small business
                status won three licenses; and two bidders that claimed entrepreneur
                status won six licenses.
                 EBS--Educational Broadband Service has been included within the
                broad economic census category and SBA size standard for Wired
                Telecommunications Carriers since 2007. Wired Telecommunications
                Carriers are comprised of 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 a combination of
                technologies.'' The SBA's small business size standard for this
                category is all such firms having 1,500 or fewer employees. U.S. Census
                Bureau data for 2012 show that there were 3,117 firms that operated
                that year. Of this total, 3,083 operated with fewer than 1,000
                employees. Thus, under this size standard, the majority of firms in
                this industry can be considered small. In addition to Census data, the
                Commission's Universal Licensing System indicates that as of October
                2014, there are 2,206 active EBS licenses. The Commission estimates
                that of these 2,206 licenses, the majority are held by non-profit
                educational institutions and school districts, which are by statute
                defined as small businesses.
                 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 included in the category of
                ``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. The SBA size standard considers a wireline business is
                small if it has fewer than 1,500 employees. U.S. Census Bureau data for
                2012 indicates that 3,117 wireline companies were operational during
                that year. Of that number, 3,083 operated with fewer than 1,000
                employees. Based on that data, the Commission concludes that the
                majority of wireline firms are small under the applicable SBA standard.
                Currently, however, only two entities provide DBS service, which
                requires a great deal of capital for operation: DIRECTV (owned by AT&T)
                and DISH Network. DIRECTV and DISH Network each report annual revenues
                that are in excess of the threshold for a small business. Accordingly,
                the Commission must conclude that internally developed FCC data are
                persuasive that, in general, DBS service is provided only by large
                firms.
                 Wireless Telecommunications Carriers (except Satellite). This
                industry comprises establishments engaged in operating and maintaining
                switching and transmission facilities to provide communications via the
                airwaves. Establishments in this industry have spectrum licenses and
                provide services using that spectrum, such as cellular services, paging
                services, wireless internet access, and wireless video services. The
                appropriate size standard under SBA rules is that such a business is
                small if it has 1,500 or fewer employees. For this industry, U.S.
                Census Bureau data for 2012 show that there were 967 firms that
                operated for the entire year. Of this total, 955 firms had employment
                of 999 or fewer employees, and 12 firms had employment of 1,000
                employees or more. Thus, under this category and the associated size
                standard, the Commission estimates that the majority of wireless
                telecommunications carriers (except satellite) are small entities.
                 AWS Services (1710-1755 MHz and 2110-2155 MHz bands (AWS-1); 1915-
                1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands (AWS-2);
                2155-2175 MHz band (AWS-3)). For the AWS-1 bands, the Commission has
                defined a ``small business'' as an entity with average annual gross
                revenues for the preceding three years not exceeding $40 million, and a
                ``very small business'' as an entity with average annual gross revenues
                for the preceding three years not exceeding $15 million. For AWS-2 and
                AWS-3, although the Commission does not know for certain which entities
                are likely to apply for these frequencies, it notes that the AWS-1
                bands are comparable to those used for cellular service and personal
                communications service. The Commission has not yet adopted size
                standards for the AWS-2 or AWS-3 bands but proposes to treat both AWS-2
                and AWS-3 similarly to broadband PCS service and AWS-1 service due to
                the comparable capital requirements
                [[Page 46809]]
                and other factors, such as issues involved in relocating incumbents and
                developing markets, technologies, and services.
                 Narrowband Personal Communications Services. Two auctions of
                narrowband personal communications services (PCS) licenses have been
                conducted. To ensure meaningful participation of small business
                entities in future auctions, the Commission has adopted a two-tiered
                small business size standard in the Narrowband PCS Second Report and
                Order. Through these auctions, the Commission has awarded a total of 41
                licenses, out of which 11 were obtained by small businesses. A ``small
                business'' is an entity that, together with affiliates and controlling
                interests, has average gross revenues for the three preceding years of
                not more than $40 million. A ``very small business'' is an entity that,
                together with affiliates and controlling interests, has average gross
                revenues for the three preceding years of not more than $15 million.
                The SBA has approved these small business size standards.
                 Broadband Personal Communications Service. The broadband personal
                communications service (PCS) spectrum is divided into six frequency
                blocks designated A through F, and the Commission has held auctions for
                each block. The Commission initially defined a ``small business'' for
                C- and F-Block licenses as an entity that has average gross revenues of
                $40 million or less in the three previous calendar years. For F-Block
                licenses, an additional small business size standard for ``very small
                business'' was added and is defined as an entity that, together with
                its affiliates, has average gross revenues of not more than $15 million
                for the preceding three calendar years. These standards defining
                ``small entity'', in the context of broadband PCS auctions, have been
                approved by the SBA. No small businesses within the SBA-approved small
                business size standards bid successfully for licenses in Blocks A and
                B. There were 90 winning bidders that claimed small business status in
                the first two C-Block auctions. A total of 93 bidders that claimed
                small business status won approximately 40 percent of the 1,479
                licenses in the first auction for the D-, E-, and F-Blocks. On April
                15, 1999, the Commission completed the reauction of 347 C-, D-, E-, and
                F-Block licenses in Auction No. 22. Of the 57 winning bidders in that
                auction, 48 claimed small business status and won 277 licenses.
                 On January 26, 2001, the Commission completed the auction of 422 C-
                and F-Block Broadband PCS licenses in Auction No. 35. Of the 35 winning
                bidders in that auction, 29 claimed small business status. Subsequent
                events concerning Auction No. 35, including judicial and agency
                determinations, resulted in a total of 163 C- and F-Block licenses
                being available for grant. On February 15, 2005, the Commission
                completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction
                No. 58. Of the 24 winning bidders in that auction, 16 claimed small
                business status and won 156 licenses. On May 21, 2007, the Commission
                completed an auction of 33 licenses in the A-, C-, and F-Blocks in
                Auction No. 71. Of the 12 winning bidders in that auction, five claimed
                small business status and won 18 licenses. On August 20, 2008, the
                Commission completed the auction of 20 C-, D-, E-, and F-Block
                Broadband PCS licenses in Auction No. 78. Of the eight winning bidders
                for Broadband PCS licenses in that auction, six claimed small business
                status and won 14 licenses.
                 Wireless Communications Services. This service can be used for
                fixed, mobile, radiolocation, 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 SBA has approved
                these small business size standards. In the Commission's auction for
                geographic area licenses in the WCS there were seven winning bidders
                that qualified as ``very small business'' entities, and one that
                qualified as a ``small business'' entity.
                 Radio and Television Broadcasting and Wireless Communications
                Equipment Manufacturing. This industry comprises establishments
                primarily engaged in manufacturing radio and television broadcast and
                wireless communications equipment. Examples of products made by these
                establishments are: Transmitting and receiving antennas, cable
                television equipment, GPS equipment, pagers, cellular phones, mobile
                communications equipment, and radio and television studio and
                broadcasting equipment. The SBA has established a small business size
                standard for this industry of 1,250 employees or less. U.S. Census
                Bureau data for 2012 shows that 841 establishments operated in this
                industry in that year. Of that number, 828 establishments operated with
                fewer than 1,000 employees, 7 establishments operated with between
                1,000 and 2,499 employees, and 6 establishments operated with 2,500 or
                more employees. Based on this data, the Commission concludes that a
                majority of manufacturers in this industry are small.
                D. Description of Projected Reporting, Recordkeeping, and Other
                Compliance Requirements for Small Entities
                 FEMA's recommendations proposing changes for which comment is
                sought in the Notice, if adopted, would impose additional reporting,
                recordkeeping or other compliance obligations on certain small, as well
                as other, entities required to distribute EAS alerts to the public
                (i.e., ``EAS Participants''), and that manufacture EAS equipment. At
                this time the Commission is not currently in a position to determine
                whether, if adopted, the FEMA's proposed changes will require small
                entities to hire attorneys, engineers, consultants, or other
                professionals to comply and cannot quantify the cost of compliance with
                the potential rule changes and compliance obligations raised for
                comment in the FNPRM. In the Commission's request for comments on
                FEMA's proposals, it has requested information on the cost of
                implementing the proposed changes as well as potential alternatives to
                the proposed recommendations, particularly less costly alternatives
                that should be considered.
                 As proposed by FEMA, its recommendation to replace the EAS
                originator code for the ``Primary Entry Point System,'' from ``PEP,''
                to ``NAT,'' which would stand for ``National Authority,'' and to modify
                the definition for the EAN event code from ``Emergency Action
                Notification (National Only),'' to ``Emergency Alert National,'' or
                replace the EAN event code with a new event code called ``NEM,''
                defined as ``National Emergency Message,'' would require EAS equipment
                manufacturers to develop software updates to implement the new codes in
                deployed EAS equipment and EAS equipment in production. EAS
                Participants would also be required to acquire and install a software
                update to change the codes in their EAS devices. Some EAS device models
                currently in deployment might not be capable of being updated to
                reflect the new codes, and those devices will have to be replaced.
                Updating or replacing deployed devices to reflect these proposed FEMA
                code changes would be at the expense of EAS Participants.
                 FEMA has also recommended that the Commission consider methods to
                [[Page 46810]]
                update the EAS to ``support persistent display of alert information
                and/or persistent notification for emergencies that require immediate
                public protective actions to mitigate loss of life.'' Updating the EAS
                to support persistent alerts would likely require extensive
                modifications to the EAS. To comply with such a requirement if adopted,
                EAS equipment manufacturers would likely be required to develop
                software and/or firmware changes to implement such functionality in
                deployed EAS equipment and EAS equipment in production. Similar to
                FEMA's code change proposal recommendations, such changes would require
                EAS Participants to acquire and install the software/firmware update to
                enable the functionality in their EAS devices, and devices currently
                deployed with EAS capabilities that are not be capable of being updated
                to reflect such functionality will have to be replaced. It is also
                possible that such functionality will require modifications to non-EAS
                equipment that receive and process the EAS device alert content output
                and convert it into a visual scroll. EAS Participants would also bear
                the expenses to update or replace deployed devices to enable this
                proposed EAS functionality.
                 To help the Commission more fully evaluate the cost of compliance
                if it were to adopt FEMA's proposals, in the FNPRM, the Commission
                requests comments on the cost implications to implement the proposed
                recommendations and asks whether there are more efficient and less
                burdensome alternatives that might achieve the same results. the
                Commission expects the information it receives in comments, including
                cost and benefit analyses, to help it identify and evaluate relevant
                matters for small entities, including compliance costs and other
                burdens that may result if the proposed recommendations in the FNPRM
                were adopted.
                E. Steps Taken To Minimize the Significant Economic Impact on Small
                Entities, and Significant Alternatives Considered
                 The RFA requires an agency to describe any significant,
                specifically small business alternatives that it has considered in
                reaching its proposed 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 such small entities; (3) the
                use of performance, rather than design, standards; and (4) and
                exemption from coverage of the rule, or any part thereof, for such
                small entities.''
                 In the FNPRM, the Commission took the steps and raised for
                consideration the alternatives discussed herein which could minimize
                any significant economic impact on small entities of FEMA's recommended
                EAS proposed rules changes. Regarding FEMA's recommended event code
                rule changes, the Commission asks for comments on whether the proposed
                FEMA changes should be adopted. Where FEMA has presented two options in
                a recommendation, the Commission asks whether the proposed options are
                appropriate, and if so, what is the preferred approach. The Commission
                also inquires about the implications for EAS and other equipment, for
                other EAS and related Commission rules, and for technical and operation
                plans and protocols relating to EAS alerts. Further, the Commission
                inquires whether the proposed FEMA recommendations can be implemented
                for all EAS device models and at what costs, and whether the benefit of
                implementing the proposed changes exceed whatever costs might be
                incurred to implement them.
                 The FEMA recommendation to change the EAS originator code for
                ``Primary Entry Point System,'' from ``PEP,'' to ``NAT'' and to either
                modify the definition for the EAN event code from ``Emergency Action
                Notification (National Only),'' to ``Emergency Alert, National,'' or
                replace the EAN event code with a new event code called ``NEM'' would
                require EAS equipment manufacturers to develop software updates to
                implement the new code in deployed EAS equipment and EAS equipment in
                production. Such action also would require EAS Participants to acquire
                and install a software update to change the code in their EAS device.
                The Commission believes a software update imposes minimal costs for
                small and other entities, and the costs of such an action can be done
                in the normal course of business. The Commission is aware that some EAS
                device models in deployment might not be capable of being updated to
                reflect the new codes, and those devices would have to be replaced. As
                a possible alternative to a code change for EAN, the Commission asks,
                for example, whether retaining the EAN and revising its definition
                would be less costly than replacing it with a new code such as ``NEM'',
                or whether the revision of the EAN definition produce similar costs as
                a new code due to necessary technical and operational plan changes. The
                Commission also believes that should EAS event code changes be adopted,
                it may be possible to coordinate the implementation timeframe to allow
                a sufficient period of time for EAS Participants to complete the
                required installation in the normal course of the device's regularly
                scheduled maintenance and which would help minimize the cost of the
                software update.
                 The FEMA recommendation for the Commission to examine methods to
                update the EAS to ``support persistent display of alert information
                and/or persistent notification for emergencies that require immediate
                public protective actions to mitigate loss of life'' does not propose
                any particular methods or define the types of emergency events that
                would qualify and, therefore, the potential costs and burdens cannot be
                quantified. It is likely, however, that any action required to
                effectuate this recommendation would require extensive modifications to
                the EAS. Therefore, as an initial matter, the Commission seeks to
                identify what EAS event types would or would not qualify and what
                updates would be required to the EAS to accommodate the ``persistent
                display of alert information and/or persistent notification'' that FEMA
                requests. Further, within its recommendation FEMA proposes that alert
                originators can cancel an alert, however, there is no mechanism in the
                EAS to cancel a legacy EAS alert, and the Commission therefore seeks
                comment on whether a proposed rule to effectuate alert cancellation
                would necessarily require changing the EAS protocol or some other facet
                of the EAS architecture which could increase the costs for small and
                other impacted entities. The Commission expects that implementing
                FEMA's persistent alert changes would require significant modifications
                to EAS devices, downstream processing equipment, cable equipment
                standards, and other equipment operated in the EAS ecosystem, and asks
                for information on the technical feasibility of FEMA's request. In
                addition, the Commission seeks information on the costs that would be
                incurred and by whom, in implementing the proposed changes, on what, if
                any, ancillary costs would be associated with modifying downstream
                equipment, and whether the costs of implementing FEMA's proposal be
                would be outweighed by any benefit of keeping the alert available to
                the public.
                 In the alternative, the Commission asks commenters to consider
                whether there are less obtrusive means to achieve FEMA's proposal, such
                as
                [[Page 46811]]
                relying on alert originators to repeat (re-originate) alerts they deem
                significant enough to warrant such treatment. Significantly, the
                Commission raises as alternatives for comment whether FEMA's proposal
                on keeping the alert information or notification persistent is more
                appropriately configured in a next generation EAS, and whether FEMA's
                recommendation is more appropriately addressed in the Notice of Inquiry
                in this proceeding (seeking comment on internet related updates and
                improvements to the EAS).
                 Throughout the FNPRM, the Commission has raised and requested
                comment on various issues relating to the technical feasibility, costs,
                benefits and the potential impact of implementing FEMA's proposed EAS
                rule changes. This information will assist with the Commission's
                evaluation of the economic impact on small entities, and to determine
                if the proposed FEMA rule changes are adopted, how to minimize any
                significant economic for small entities and will help identify
                potential alternatives not already considered. The Commission expects
                to more fully consider the economic impact and alternatives for small
                entities following the review of comments and reply comments filed in
                response to the FNPRM. Moreover, the Commission's evaluation of the
                comments will shape the final alternatives it considers, the final
                conclusions it reaches, and the actions it ultimately takes in this
                proceeding to minimize any significant economic impact that may occur
                on small entities, if any of the proposed FEMA recommendations are
                adopted.
                F. Federal Rules That May Duplicate, Overlap, or Conflict With the
                Proposed Rules
                 None.
                Ordering Clauses
                 Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 4(o),
                301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 713 of the
                Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
                154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), and 606, as
                well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN
                Act, 47 U.S.C. 1202(a), (b), (c), (f), 1203, 1204 and 1206, Section 202
                of the Twenty-First Century Communications and Video Accessibility Act
                of 2010, as amended, 47 U.S.C. 613, and the National Defense
                Authorization Act for Fiscal Year 2021, Public Law 116-283, 134 Stat.
                3388, section 9201, 47 U.S.C. 1201, 1206, that this Report and Order
                and Further Notice of Proposed Rulemaking in PS Docket Nos. 15-94 and
                15-91 is hereby adopted.
                 It is further ordered that the Commission's Consumer and
                Governmental Affairs Bureau, Reference Information Center, shall send a
                copy of this Further Notice of Proposed Rulemaking, including the
                Initial Regulatory Flexibility Analysis, to the Chief Counsel for
                Advocacy of the Small Business Administration.
                Federal Communications Commission.
                Marlene Dortch,
                Secretary.
                [FR Doc. 2021-15174 Filed 8-19-21; 8:45 am]
                BILLING CODE 6712-01-P
                

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