Emergency Alert System, Wireless Emergency Alerts; National Defense Authorization Act for Fiscal Year 2021
| Published date | 20 August 2021 |
| Citation | 86 FR 46804 |
| Record Number | 2021-15174 |
| Section | Proposed rules |
| Court | Federal Communications Commission |
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Alert System (EAS) rules to delete outdated references, re-name certain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
