Common carrier services: Satellite communications— Satellite and earth station license procedures; electronic filings requirements,

[Federal Register: September 12, 2003 (Volume 68, Number 177)]

[Proposed Rules]

[Page 53702-53705]

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

[DOCID:fr12se03-21]

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 25

[IB Docket Nos. 02-34 and 00-248, FCC 03-154]

Satellite License Procedures

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: In this document, the Commission invites comment on extending electronic filing requirements to all satellite and earth station- related filings. The Commission also proposes extending a streamlined license modification procedure to Direct Broadcast Satellite (DBS) and Digital Audio Radio Satellite (DARS) licensees. The intended purpose of this proceeding is to expedite the satellite and earth station license procedure, and to streamline the DBS and DARS modification procedure.

DATES: Comments are due on or before October 14, 2003. Reply comments are due on or before November 12, 2003.

ADDRESSES: All filings must be sent to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, The Portals, 445 Twelfth Street, SW., Room TW-A325, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Steven Spaeth, Satellite Division, International Bureau, (202) 418-1539. For additional information concerning the information collection(s) contained in this document, contact Judy Boley Herman at 202-418-0214, or via the Internet at jbHerman@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second Further Notice of Proposed Rulemaking, adopted June 26, 2003 and released July 8, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Public Reference Room, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 Twelfth Street, SW., Room CY-B402, Washington, DC 20554.

Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, (63 FR 2421 (May 1, 1998)). Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In 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 get 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 .'' A sample form and directions will be sent in reply.

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Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appear in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number.

Paperwork Reduction Act

This Second Further NPRM contains proposed new and modified information collections. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection(s) contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this NPRM; OMB notification of action is due October 14, 2003. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

Summary of Further Notice of Proposed Rulemaking

In previous Reports and Orders, the Commission has adopted mandatory electronic filing requirements for all space station applicants other than DBS and DARS applicants. The Commission also requires mandatory electronic filing requirements for routine earth station license applicants, and for earth station assignments and transfer of control applications. Parties filing petitions to deny routine earth station applications, or other pleadings in response to routine earth station applications, are also required to file electronically. In this Second Further Notice of Proposed Rulemaking, the Commission proposes to extend mandatory electronic filing to all other space station and earth station-related filings.

In addition, in the Second Report and Order in IB Docket No. 02-34, the Commission adopted a streamlined procedure for satellite license modifications associated with fleet management, but precluded DBS and DARS licensees from using this streamlined procedure. In this Second Further NPRM, the Commission invites comment on extending the satellite fleet management modification procedure to DBS and DARS licenses.

Initial Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act (RFA),\1\ the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rulemaking. Written public comments are requested on this IRFA.

\1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has been amended by the Contract With America Advancement Act of 1996, Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice of Proposed Rulemaking provided above. The Commission will send a copy of the Notice of Proposed Rulemaking, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603(a). In addition, the Notice of Proposed Rulemaking and IRFA (or summaries thereof) will be published in the Federal Register. See id.

Need for, and Objectives of, the Proposed Rules: In this NPRM, we propose to revise our rules to require electronic filing for those earth station and space station license applications for which the Commission has not adopted an electronic filing requirement, and comments filed in response to those applications. We propose these mandatory electronic filing requirements to increase the number of satellite and earth station license applicants and associated parties may file documents with greater speed and efficiency. The system will also make license information more accessible to the Commission's staff, as well as the satellite industry and the general public. Furthermore, it is expected that the cost of filing applications or obtaining information will be reduced.

Legal Basis: The proposed action is supported by sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), 303(r).

Description and Estimate of the Number of Small Entities to Which the Proposed Rules May 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.\2\ The RFA generally defines the term ``small entity `` as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental jurisdiction.'' \3\ In addition, the term ``small business'' has the same meaning as the term ``small business concern'' under the Small Business Act.\4\ 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 Small Business Administration (SBA).\5\ A small organization is generally ``any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.'' \6\ Nationwide, as of 1992, there were approximately 275,801 small organizations.\7\ ``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.'' \8\ As of 1992, there were approximately 85,006 such jurisdictions in the United States.\9\ This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000.\10\ 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. Below, we further describe and estimate the number of small entity licensees that may be affected by the proposed rules, if adopted.

\2\ 5 U.S.C. 603(b)(3).

\3\ 5 U.S.C. 601(6).

\4\ 5 U.S.C. 601(3) (incorporating by reference the definition of ``small business concern'' in 15 U.S.C. 632). Pursuant to the RFA, the statutory definition of a small business applies ``unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).

\5\ Small Business Act, 15 U.S.C. 632 (1996).

\6\ 5 U.S.C. 601(4).

\7\ 1992 Economic Census, U.S. Bureau of the Census, Table 6 (special tabulation of data under contract to Office of Advocacy of the U.S. Small Business Administration).

\8\ 5 U.S.C. 601(5).

\9\ U.S. Dept. of Commerce, Bureau of the Census, ``1992 Census of Governments.''

\10\ Id.

The rules proposed in this Notice of Proposed Rulemaking, if adopted, would affect satellite operators and earth station operators for whom we have not adopted an electronic filing requirement. These applicants include Direct Broadcast Satellite (DBS), Digital Audio Radio Satellite (DARS) satellite applications, all earth station applicants other than ``routine'' C-band and Ku-

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band earth station applicants, and parties filing pleadings in response to these applications.

1. DBS operators: Because DBS provides subscription services, DBS falls within the SBA-recognized definitions of ``Cable Networks'' and ``Cable and Other Program Distribution.'' \11\ These definitions provide that small entities are ones with $11.0 million or less in annual receipts.\12\ Small businesses, i.e. ones with less than $11.0 million in annual receipts, do not have the financial ability to become DBS licensees because of the high implementation costs associated with satellite services. Because this is an established service, with limited spectrum and orbital resources for assignment, we estimate that no more than 15 entities will be Commission licensees providing these services. In addition, because of the high implementation costs and the limited spectrum resources we believe that none of the 15 licensees will be small entities. We expect that no small entities will be impacted by this rulemaking. Therefore, we certify that the proposed requirements of the Notice of Proposed Rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities.

   \11\ 13 CFR 121.201, North American Industry Classification Systems (NAICS) codes 513210 and 513220.

   \12\ 13 CFR 121.201, NAICS codes 513210 and 513220.

2. DARS operators: The Commission has not developed a definition of small entities applicable to geostationary or non-geostationary orbit broadcast satellite operators. Therefore, the applicable definition of small entity is the definition under Small Business Administration (SBA) rules applicable to the Communications Services, Not Elsewhere classified. This definition provides that a small entity is one with $11.0 million or less in annual receipts.\13\ There are only two SDARS providers authorized to provide service in the DARS spectrum band, XM Radio, Inc., and Sirius Satellite Radio, Inc. While neither has implemented nationwide service, both entities have financing of over $100 million. In addition, the DARS licensees have significant partnership interests with large corporations: General Motors in XM Radio, Inc., and DiamlerChrysler in Sirius Satellite Radio. Because of the above and the high implementation and operating costs for SDARS systems, we do not believe either DARS licensee qualifies as a small entity.

   \13\ 13 CFR 121.201, NAICS Code 4899.

3. Fixed Satellite Transmit/Receive Earth Stations. As of the adoption date of this NPRM, there are about 10480 authorized operational fixed satellite transmit/receive earth stations. Of these, approximately 6875 are routine earth stations in the conventional C- band, and about 3469 are routine earth stations in the conventional Ku- band. Thus, only about 136 fixed satellite service earth stations, or between 1 and 2 percent, are ``non-routine'' earth stations. Accordingly, we estimate that between 1 and 2 percent of future earth station license applicants will be ``non-routine'' applicants potentially affected by the rules proposed in the NPRM. We do not request or collect annual revenue information, and thus are unable to estimate the number of these earth stations that would constitute a small business under the SBA definition.

4. Mobile Satellite Earth Stations. As of the adoption date of this NPRM, we have issued about 32 licenses for mobile satellite service earth stations currently in operation. We do not request or collect annual revenue information, and thus are unable to estimate the number of these earth stations that would constitute a small business under the SBA definition.

5. Auxiliary, Special Broadcast and other program distribution services. This service involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit back to the station). The Commission has not developed a definition of small entities applicable to broadcast auxiliary licensees. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to radio broadcasting stations (NAICS 513112) and television broadcasting stations (NAICS 513120). These definitions provide that a small entity is one with either $6.0 million or less in annual receipts for a radio broadcasting station or $12.0 million in annual receipts for a TV station. See 13 CFR 121.201. As of September 1999, there were 3,237 FM translators and boosters, 4913 TV translators.\14\ The FCC does not collect financial information on any broadcast facility and the Department of Commerce does not collect financial information on these auxiliary broadcast facilities. We believe, however, that most, if not all, of these auxiliary facilities could be classified as small businesses by themselves. We also recognize that most translators and boosters are owned by a parent station which, in some cases, would be covered by the revenue definition of small business entity discussed above. These stations would likely have annual revenues that exceed the SBA maximum to be designated as a small business (as noted, either $6.0 million for a radio station or $12.0 million for a TV station). Furthermore, they do not meet the Small Business Act's definition of a ``small business concern'' because they are not independently owned and operated.

   \14\ FCC News Release, Broadcast Station Totals as of September 30, 1999, No. 71831 (Jan. 21, 1999).

   Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements: None of the proposed rules in this notice are expected to increase the reporting, record keeping and other compliance requirements of any party.

   Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered: 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 (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603(c).

   We have attempted not to foreclose any option.

   Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rules: None.

   Ordering Clauses

   Pursuant to sections 4(i), 7(a), 303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 157(a), 303(c), 303(f), 303(g), 303(r), that this Second Further Notice of Proposed Rulemaking in IB Docket No. 02-34 and Second Further Notice of Proposed Rulemaking in IB Docket No. 00-248 is hereby adopted.

   The Consumer Information Bureau, Reference Information Center, shall send a copy of this Second Further Notice of Proposed Rulemaking in IB Docket No. 02-34 and Second Further Notice of Proposed Rulemaking in IB Docket No. 00-248, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

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   Federal Communications Commission. Marlene H. Dortch, Secretary.

   [FR Doc. 03-23315 Filed 9-11-03; 8:45 am]

   BILLING CODE 6712-01-U