Practice and procedure: Correction,

[Federal Register: August 9, 2000 (Volume 65, Number 154)]

[Proposed Rules]

[Page 48658-48660]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr09au00-26]

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 97-82; FCC 99-384]

Communication Between Applicants in Commission Spectrum Auctions

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; correction.

SUMMARY: The Federal Communications Commission (Commission) published in the Federal Register of February 8, 2000, a document concerning communications between applicants in Commission spectrum auctions. This document contains a correction to that proposed rule by adding the Initial Regulatory Flexibility Analysis (IRFA) that was inadvertently omitted. This document also sets forth the deadlines for submitting comments and reply comments on this IRFA. It does not extend the deadlines previously established for submitting comments and reply comments on the rule amendments proposed.

DATES: Comments in response to the IRFA are due on or before August 30, 2000; reply comments are due on or before September 6, 2000.

ADDRESSES: Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, D.C. 20554. See ``Filing Instructions.''

FOR FURTHER INFORMATION CONTACT: David Hu, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, at (202) 418- 0660.

SUPPLEMENTARY INFORMATION: In the Federal Register of February 8, 2000 (65 FR 6113), the Commission published a summary of its Third Further Notice of Proposed Rulemaking (NPRM) in WT Docket No. 97-82. That document sought comment on proposed amendments that would: (1) Require any auction applicant that makes or receives a prohibited communication regarding bids or bidding strategies to

[[Page 48659]]

report such communication promptly to the Commission, and (2) reflect the clarification that an auction applicant is prohibited from discussing another applicant's bids or bidding strategies even if the first applicant does not discuss its own bids or bidding strategies. In that document the Commission also certified that the proposed amendments would not have a significant impact on small business entities. The IRFA set forth here supersedes that certification. The publication of this IRFA does not, however, extend the deadlines previously established for submitting comments and reply comments on the rule amendments proposed in the NPRM.

In rule FR Doc. 00-2766 published on February 8, 2000, on page 6114, column 3 and after line 7 add the following text.

Initial Regulatory Flexibility Analysis

4. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Third Further Notice of Proposed Rulemaking (NPRM). Written and electronically filed public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filedby August 30, 2000; reply comments must be filedby September 6, 2000. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603(a).

   1. Need for and Objectives of the Proposed Rules

5. This rulemaking proceeding is initiated to obtain comments concerning a proposal to amend 47 CFR 1.2105(c) to require any auction applicant that makes or receives a communication of bids or bidding strategies prohibited by 47 CFR 1.2105(c)(1) to disclose such communication to the Commission. The proposed amendment is intended to deter anticompetitive behavior during Commission spectrum auctions and foster competitive post-auction markets. We also seek comment on amending Sec. 1.2105(c)(1) to reflect our clarification that the rule prohibits an auction applicant from discussing another applicant's bids or bidding strategies, even if it does not discuss or disclose its own bids or bidding strategies. The proposed amendment is intended to facilitate compliance with the rule by ensuring that its text is unambiguous.

   2. Legal Basis

6. Authority for issuance of this NPRM is contained in sections 4(i), 4(j), 303(r), 309(j) and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), 309(j) and 403.

   3. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

7. 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 organization,'' ``small business,'' and ``small governmental jurisdiction.'' 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: (i) is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the Small Business Administration (``SBA''). A small organization is generally ``any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.'' Nationwide, as of 1992, there were approximately 275,801 small organizations. ``Small governmental jurisdiction'' generally means ``governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.'' As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 percent) are small entities. According to SBA reporting data, there were 4.44 million small business firms nationwide in 1992.

8. The proposed amendments to Sec. 1.2105(c) will only apply to applicants in Commission spectrum auctions. The number of entities that may apply to participate in future Commission spectrum auctions is unknown. In the past, the number of small businesses that have participated in auctions has varied.

   4. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

9. As a result of the actions proposed in this rulemaking proceeding, disseminators and recipients of communications prohibited by Sec. 1.2105(c) would be required to report such communications to the Commission. No other new reporting, recordkeeping, or other compliance requirements would be imposed on applicants or licensees as a result of the actions proposed in this rule making proceeding.

   5. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

10. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (iii) the use of performance rather than design standards; and (iv) an exemption from coverage of the rule, or any part thereof, for small entities. In the NPRM, we seek comment on our proposal to require auction applicants that make or receive a communication of bids or bidding strategies prohibited by Sec. 1.2105(c)(1) of the Commission's rules to report promptly such a communication to the Commission. We also propose to amend Sec. 1.2105(c)(1) to reflect our recent clarification of the rule that it prohibits an auction applicant from discussing another applicant's bids or bidding strategies even if the first applicant does not discuss its own bids or bidding strategies. We anticipate no significant impact on affected entities, including small businesses. We have nonetheless prepared this analysis in order to achieve a fuller record for the public. The proposed amendments to Sec. 1.2105(c) will have several public interest benefits. First, we believe that the proposed amendments will enhance the competitiveness of our auction process to the benefit of small auction applicants. Second, under the proposed amendments, general confidence in the integrity of our auctions should increase. Alternatively, public confidence could be undermined if all entities were not subject to the proposed disclosure requirements. Therefore, the public policy benefits of the proposed

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    amendments are great and we anticipate no significant impact on small businesses. We seek comment on these tentative conclusions.

    6. Federal Rules that may Duplicate, Overlap, or Conflict with the Proposed Rules

11. None.

    Filing Instructions

12. Comments on the IRFA may be filedusing the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998). Comments filedthrough ECFS may be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. When completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To receive filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, ``get form your e-mail address>.'' A sample form and directions will be sent in reply.

13. Parties who choose to file by paper must file an original and four copies of each filing. If parties want each Commissioner to receive a personal copy of their comments, an original plus nine copies must be filed. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Room TW-A325, Washington, D.C. 20554. A courtesy copy should be delivered to David Hu, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW, Room 4-B511, Washington, D.C. 20554. Parties should reference WT Docket No. 97-82 in their comments. Parties who choose to file by paper should also submit their comments on diskette. Such a submission should be on a 3.5-inch diskette formatted in an IBM compatible format using Microsoft Word for Windows or compatible software. Diskettes should be submitted to: David Hu, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW, Room 4-B511, Washington, DC 20554. The diskette should be accompanied by a cover letter and should be submitted in ``read only'' mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the docket number in this case--WT Docket No. 97- 82), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase: ``Disk Copy--Not an Original.'' Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters must send diskette copies to the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW, Washington, DC 20036.

    Federal Communications Commission. Magalie Roman Salas, Secretary.

    [FR Doc. 00-20240Filed8-8-00; 8:45 am]

    BILLING CODE 6712-01-P