Broadcast Services; Children's Television; Cable Operators; Satellite Service Providers, 63-68 [04-28174]
Download as PDF
<![CDATA[
Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Proposed Rules
Federal Communications
Commission, 445 12th Street, SW.,
Washington, DC 20554. See
supplementary information for further
filing instructions.
FOR FURTHER INFORMATION CONTACT:
Kelli Farmer, Consumer Policy Division,
Consumer & Governmental Affairs
Bureau, (202) 418–2512 (voice),
Kelli.Farmer@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s
document, CG Docket No. 02–278, DA
04–3837, released December 7, 2004. On
July 3, 2003, the Commission released a
Report and Order (2003 TCPA Order), In
the Matter of Rules and Regulations
Implementing the Telephone Consumer
Protection Act of 1991, adopted June 26,
2003, CG Docket No. 02–278, FCC 03–
153; published at 68 FR 44144, July 25,
2003. In the 2003 TCPA Order, the
Commission stated its belief that any
state regulation of interstate
telemarketing calls that differed from
our rules under section 227 almost
certainly would conflict with and
frustrate the federal scheme and would
be preempted. The Commission will
consider any alleged conflicts between
state and federal requirements and the
need for preemption on a case-by-case
basis. Accordingly, any party that
believes a state law is inconsistent with
section 227 or our rules may seek a
Declaratory Ruling from the
Commission. When filing comments,
please reference CG Docket No. 02–278.
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 24121, May 1, 1998. Comments
filed through the ECFS can be sent as an
electronic file via the Internet to
https://www.fcc.gov/e-file/ecfs.html.
Generally, only one copy of an
electronic submission must be filed. In
completing the transmittal screen,
commenters should include their full
name, U.S. 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 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.
Parties who choose to file by paper
must send an original and four (4)
copies of each filing. Filings can be sent
by hand or messenger delivery, by
electronic media, by commercial
overnight courier, or by first-class or
ADDRESSES:
VerDate jul<14>2003
14:41 Dec 30, 2004
Jkt 205001
overnight U.S. Postal Service mail
(although we continue to experience
delays in receiving U.S. Postal Service
mail). The Commission’s contractor,
Natek, Inc., will receive hand-delivered
or messenger-delivered paper filings or
electronic media for the Commission’s
Secretary at 236 Massachusetts Avenue,
NE., Suite 110, Washington, DC 20002.
The filing hours at this location are 8
a.m. to 7 p.m. All hand deliveries must
be held together with rubber bands or
fasteners. Any envelopes must be
disposed of before entering the building.
Commercial and electronic media sent
by overnight mail (other than U.S.
Postal Service Express Mail and Priority
Mail) must be sent to 9300 East
Hampton Drive, Capitol Heights, MD
20743. U.S. Postal Service first-class
mail, Express Mail, and Priority Mail
should be addressed to 445 12th Street,
SW., Washington, DC 20554. All filings
must be addressed to the Commission’s
Secretary, Marlene H. Dortch, Office of
the Secretary, Federal Communications
Commission, 445 12th Street, SW.,
Room TW–B204, Washington, DC
20554.
This proceeding shall be treated as a
‘‘permit but disclose’’ proceeding in
accordance with the Commission’s ex
parte rules, 47 CFR 1.1200. Persons
making oral ex parte presentations are
reminded that memoranda summarizing
the presentations must contain
summaries of the substances of the
presentations and not merely a listing of
the subjects discussed. More than a one
or two sentence description of the views
and arguments presented is generally
required. See 47 CFR 1.1206(b). Other
rules pertaining to oral and written ex
parte presentations in permit-butdisclosed proceedings are set forth in
section 1.1206(b) of the Commission’s
rules, 47 CFR 1.1206(b).
The full text of this document and
copies of any subsequently filed
documents in this matter will be
available for public inspection and
copying during regular business hours
at the FCC Reference Information
Center, Portals II, 445 12th Street, SW.,
Room CY–A257, Washington, DC 20554,
(202) 418–0270. This document may be
purchased from the Commission’s
duplicating contractor, Best Copy and
Printing (BCPI), Inc., Portals II, 445 12th
Street, SW., Room CY–B402,
Washington, DC 20554. Customers may
contact BCPI, Inc. at their Web site:
www.bcpiweb.com or by calling 1–800–
378–3160. To request materials in
accessible formats for people with
disabilities (Braille, large print,
electronic files, audio format) send an email to fcc504@fcc.gov or call the
Consumer & Governmental Affairs
PO 00000
Frm 00013
Fmt 4702
Sfmt 4702
63
Bureau at (202) 418–0530 (voice) or
(202) 418–0432 (TTY). This document
can also be downloaded in Word or
Portable Document Format (PDF) at
https://www.fcc.gov/cgb/policy.
Synopsis
On November 22, 2004, National City
Mortgage Company (NCMC) filed a
Petition for Expedited Declaratory
Ruling asking the Commission to
preempt Florida law prohibiting
prerecorded messages without consent.
According to Petitioner, NCMC has
received a notice from the Florida
Department of Agriculture & Consumer
Services which indicates that a
prerecorded message call initiated by
NCMC violated section 501.059(7)(a) of
the Florida statute. NCMC explains that
the Florida statute prohibits such
prerecorded calls and makes no
exception to this restriction for calls that
are placed to persons with whom the
caller has an established business
relationship. In addition, NCMC
explains that its calls into Florida are
interstate calls. NCMC contends that the
Florida statute is inconsistent with the
Commission’s rules that permit calls
using prerecorded voice messages to any
person with whom the caller has an
established business relationship at the
time the call is made; therefore, NCMC
argues that the Florida statute should be
preempted as applied to interstate calls.
In addition, NCMC indicates that it has
been informed by the Florida
Department of Agriculture & Consumer
Services that the complaint is still
pending and might become the basis for
further enforcement proceedings against
NCMC. NCMC maintains that ‘‘the State
of Florida’s apparent intention to
enforce th[e] prohibition as to interstate
calls subjects NCMC to the ‘multiple,
conflicting regulations’ that the
Commission has declared its intention
to avoid.’’
Federal Communications Commission.
Jay Keithley,
Deputy Bureau Chief, Consumer &
Governmental Affairs Bureau.
[FR Doc. 04–28419 Filed 12–30–04; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 73 and 76
[MM Docket No. 00–167; FCC 04–221]
Broadcast Services; Children’s
Television; Cable Operators; Satellite
Service Providers
Federal Communications
Commission.
AGENCY:
E:\FR\FM\03JAP1.SGM
03JAP1
64
ACTION:
Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Proposed Rules
Notice of proposed rulemaking.
SUMMARY: The Commission seeks
comment on applying to Direct
Broadcast Satellite (DBS) service
providers its revised interpretation of
the commercial time limits applicable to
children’s programming. Specifically,
the Commission proposes to require that
the display of Internet Web site
addresses during DBS program material
is permitted as within the time limits
only if the Web site meets certain
requirements, including the requirement
that it offer a substantial amount of bona
fide program-related or other
noncommercial content and is not
primarily intended for commercial
purposes. In addition, the Commission
proposes to apply to DBS its revised
definition of ‘‘commercial matter’’ as
including promotions of television
programs or video programming
services other than children’s
educational and informational
programming. The Commission also
seeks comment on how to tailor its rules
to allow innovation in interactivity in
children’s television programming,
while at the same time ensuring that
parents can control what information
their children can access.
DATES: Comments are due by March 1,
2005, and reply comments are due by
April 1, 2005.
ADDRESSES: Federal Communications
Commission, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Kim
Matthews, Media Bureau, (202) 418–
2120.
SUPPLEMENTARY INFORMATION: This is a
summary of the Federal
Communications Commission’s Further
Notice of Proposed Rule Making in MM
Docket No. 00–167, FCC 04–221,
adopted September 9, 2004, and
released November 23, 2004. The
complete text of this document is
available for inspection and copying
during normal business hours in the
FCC Reference Center, 445 12th Street,
SW., Washington, DC 20554. The
complete text may be purchased from
the Commission’s copy contractor,
Qualex International, 445 12th Street,
SW., Room CY–B402, Washington, DC
20554. The full text may also be
downloaded at: https://www.fcc.gov. To
request materials in accessible formats
for people with disabilities (braille,
large print, electronic file, audio
format), send an e-mail to
fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
Paperwork Reduction Act: This
document contains proposed and
VerDate jul<14>2003
14:41 Dec 30, 2004
Jkt 205001
modified information collections subject
to the Paperwork Reduction Act of 1995
(PRA), Public Law 104–13. It 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 modified and proposed information
collection requirements contained in
this proceeding.
Summary of the Further Notice of
Proposed Rule Making
1. In the final rule document in this
proceeding, published elsewhere in the
same issue of this Federal Register, we
resolved a number of issues raised in
the Notice of Proposed Rulemaking (65
FR 66951–01, November 8, 2000)
regarding the obligation of television
broadcasters to protect and serve
children in their audience. In the final
rule document, we concluded that, for
the time being, we will not prohibit the
appearance of direct, interactive, links
to commercial Internet sites in
children’s programming, as this
technology is currently not being used
in children’s programming.
Nonetheless, we are aware that the
inclusion of interactive technology in
television programming is on the
horizon. We encourage broadcasters to
develop interactive services that
enhance the educational value of
children’s programming. With the
benefits of interactivity, however, come
potential risks that children will be
exposed to additional commercial
influences. Accordingly, we seek
comment on how to tailor our rules to
allow innovation in interactivity in
children’s television programming,
while at the same time ensuring that
parents can control what information
their children can access.
2. We tentatively conclude that we
should prohibit interactivity during
children’s programming that connects
viewers to commercial matter unless
parents ‘‘opt in’’ to such services. We
seek comment on how such a rule could
be implemented technologically. We
also seek comment on how we would
implement such a rule in terms of the
statutory limits on commercial time. In
particular, we note that the time spent
accessing the Internet or other
interactive material during a program is
not limited to the time that a link is
displayed on the screen. For the same
reason, we seek comment as to how
such a rule would apply to
commercials, given that interactive
elements can cause a commercial to last
much longer than a 30-second or 15second spot. Finally, we seek comment
PO 00000
Frm 00014
Fmt 4702
Sfmt 4702
on whether to change how we define
commercial matter in this context.
3. We also concluded in the Report
and Order in this proceeding that we
will revise our definition of
‘‘commercial matter’’ to include
promotions of television programs or
video programming services other than
children’s educational and
informational programming. We stated
that we will apply this revised
definition to television licensees and
cable operators. We tentatively conclude
that we should also amend Part 25 of
the Commission’s rules to apply this
revised definition to Direct Broadcast
Satellite (‘‘DBS’’) service providers, and
seek comment on this tentative
conclusion. In addition, in the Report
and Order we interpreted the CTA
commercial time limits to require that,
with respect to programs directed to
children ages 12 and under, the display
of Internet Web site addresses during
program material is permitted as within
the CTA limitations only if the Web site:
(1) Offers a substantial amount of bona
fide program-related or other
noncommercial content; (2) is not
primarily intended for commercial
purposes, including either e-commerce
or advertising; (3) the Web site’s home
page and other menu pages are clearly
labeled to distinguish the
noncommercial from the commercial
sections; and (4) the page of the Web
site to which viewers are directed by the
Web site address is not used for ecommerce, advertising, or other
commercial purposes (e.g., contains no
links labeled ‘‘store’’ and no links to
another page with commercial material).
We propose to apply these restrictions
on the displaying of commercial Web
site information to DBS and require DBS
providers to maintain records sufficient
to verify compliance with the
commercial limits requirements and to
make such records available to the
public. We believe that it is appropriate
to require that children in DBS
households receive the same protection
from excessive commercialism on
television as children in cable or overthe-air television households. We do not
believe that compliance with these rules
will be burdensome as many of the
programming services carried by DBS
providers are the same as are carried by
cable systems around the country,
which must comply with the revised
commercial limits rules adopted in our
decision today.
Administrative Matters
4. This is a permit-but-disclose notice
and comment rulemaking proceeding.
Ex parte presentations are permitted,
except during the Sunshine Agenda
E:\FR\FM\03JAP1.SGM
03JAP1
Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Proposed Rules
period, provided that they are disclosed
as provided in the Commission’s Rules.
See generally 47 CFR 1.1202, 1.1203,
and 1.1206(a).
5. Pursuant to Sections 1.415 and
1.419 of the Commission’s rules, 47 CFR
1.415, 1.419, interested parties may file
comments on or before March 1, 2005,
and reply comments on or before April
1, 2005. 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 24121 (1998). Documents filed
through the ECFS can be sent as an
electronic file via the Internet to
https://www.fcc.gov/e-file/ecfs.html.
Generally, only one copy of an
electronic submission must be filed. If
multiple docket or rulemaking numbers
are referenced in the caption of the
comments, 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, U.S. 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
<your e-mail address>.’’ A sample form
and directions will be sent in reply.
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 the comment, commenters
must submit two additional copies for
each additional docket or rulemaking
number. Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail
(although we continue to experience
delays in receiving U.S. Postal Service
mail). The Commission’s contractor,
Vistronix, Inc., will receive handdelivered or messenger-delivered paper
filings for the Commission’s Secretary at
236 Massachusetts Avenue, NE., Suite
110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7
p.m. All hand deliveries must be held
together with rubber bands or fasteners.
Any envelopes must be disposed of
before entering the building.
Commercial overnight mail (other than
U.S. Postal Service Express Mail and
Priority Mail) must be sent to 9300 East
Hampton Drive, Capitol Heights, MD
20743. U.S. Postal Service first-class
VerDate jul<14>2003
14:41 Dec 30, 2004
Jkt 205001
mail, Express Mail, and Priority Mail
should be addressed to 445 12th Street,
SW., Washington, DC 20554. All filings
must be addressed to the Commission’s
Secretary, Office of the Secretary,
Federal Communications Commission.
6. This Further Notice of Proposed
Rulemaking may contain either
proposed or modified information
collections subject to the Paperwork
Reduction Act of 1995. As part of our
continuing effort to reduce paperwork
burdens, we invite OMB, the general
public, and other Federal agencies to
take this opportunity to comment on the
information collections contained in
this Further Notice, as required by the
Paperwork Reduction Act of 1995.
Public and agency comments are due at
the same time as other comments on the
Further Notice. 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) ways to enhance the
quality, utility, and clarity of the
information collected; and (c) 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. In addition to
filing comments with the Secretary, a
copy of any comments on the
information collections contained
herein should be submitted to Cathy
Williams, Federal Communications
Commission, 445 Twelfth Street, SW.,
Room 1–C823, Washington, DC 20554,
or via the Internet to
Cathy.Williams@fcc.gov and to Kristy L.
LaLonde, OMB Desk Officer, 10234
NEOB, 725 17th Street, NW.,
Washington, DC 20503 or via the
Internet to Kristy L. LaLonde
@omb.eop.gov, or via fax at 202–395–
5167.
7. As required by the Regulatory
Flexibility Act, the Commission has
prepared an Initial Regulatory
Flexibility Analysis (IRFA) of the
possible significant economic impact on
a substantial number of small entities of
the proposals addressed in this Further
Notice of Proposed Rulemaking. Written
public comments are requested on the
IRFA. These comments must be filed in
accordance with the same filing
deadlines for comments on the Further
Notice, and they should have a separate
and distinct heading designating them
as responses to the IRFA.
8. To request materials in accessible
formats for people with disabilities
(braille, large print, electronic file, audio
format), send an e-mail to
fcc504@fcc.gov or call the Consumer &
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
65
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY). This document can also be
downloaded in Word and Portable
Document Format (PDF) at: https://
www.fcc.gov.
9. For additional information on this
proceeding, please contact Kim
Matthews, Policy Division, Media
Bureau at (202) 418–2154.
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 small
entities by the policies and rules
proposed in this Further Notice of
Proposed Rulemaking (‘‘NPRM’’).
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 NPRM. The
Commission will send a copy of the
Notice, including this IRFA, to the Chief
Counsel for Advocacy of the Small
Business Administration. In addition,
the Notice and IRFA (or summaries
thereof) will be published in the Federal
Register.
I. Need for and Objectives of the
Proposed Rules
Our goal in commencing this
proceeding is to seek comment on two
issues: (1) Whether and how we should
limit the use of interactivity for
commercial purposes in children’s
television programming; and (2)
whether we should apply to Direct
Broadcast Satellite service providers the
same revised definition of ‘‘commercial
matter’’ adopted in the Report and
Order.
We seek comment in the Notice on
the tentative conclusion that we should
prohibit interactivity during children’s
programming that connects viewers to
commercial matter unless parents ‘‘opt
in’’ to such services. We seek comment
on how such a rule could be
implemented technologically. We also
seek comment on how we would
implement such a rule in terms of the
statutory limits on commercial time.
We concluded in the Report and
Order that we will revise our definition
of ‘‘commercial matter’’ to include
promotions of television programs or
video programming services other than
children’s educational and
informational programming. We stated
that we will apply this revised
definition to television licensees and
cable operators. We tentatively conclude
in the Notice that we should also amend
E:\FR\FM\03JAP1.SGM
03JAP1
66
Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Proposed Rules
Part 25 of the Commission’s rules to
apply this revised definition to Direct
Broadcast Satellite service providers,
and seek comment on this tentative
conclusion.
In addition, the Report and Order
interprets the CTA commercial time
limits to require that, with respect to
programs directed to children ages 12
and under, the display of Internet Web
site addresses during program material
is permitted as within the CTA
limitations only if the Web site: (1)
Offers a substantial amount of bona fide
program-related or other noncommercial
content; (2) is not primarily intended for
commercial purposes, including either
e-commerce or advertising; (3) the Web
site’s home page and other menu pages
are clearly labeled to distinguish the
noncommercial from the commercial
sections; and (4) the page of the Web
site to which viewers are directed by the
Web site address is not used for ecommerce, advertising, or other
commercial purposes (e.g., contains no
links labeled ‘‘store’’ and no links to
another page with commercial material).
The Report and Order applies this
restriction to broadcasters and cable
operators. We propose in the NPRM to
apply this restriction to DBS. In
addition, we propose to require DBS
providers to maintain records sufficient
to verify compliance with the
commercial limits in children’s
programming and to make such records
available to the public.
II. Legal Basis
The authority for the action proposed
in this rulemaking is contained in
Sections 4(i) & (j), 303, 303a, 303b, 307,
309 and 336 of the Communications Act
of 1934, as amended, 47 U.S.C. 154(i) &
(j), 303, 303a, 303b, 307, 309 and 336.
III. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply
The RFA directs the Commission to
provide a description of and, where
feasible, an estimate of the number of
small entities that will 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 Small Business
Administration (‘‘SBA’’).
VerDate jul<14>2003
14:41 Dec 30, 2004
Jkt 205001
In this context, the application of the
statutory definition to television stations
is of concern. An element of the
definition of ‘‘small business’’ is that the
entity not be dominant in its field of
operation. We are unable at this time to
define or quantify the criteria that
would establish whether a specific
television station is dominant in its field
of operation. Accordingly, the estimates
that follow of small businesses to which
rules may apply do not exclude any
television station from the definition of
a small business on this basis and
therefore might be over-inclusive.
An additional element of the
definition of ‘‘small business’’ is that the
entity must be independently owned
and operated. It is difficult at times to
assess these criteria in the context of
media entities and our estimates of
small businesses might therefore be over
inclusive.
Television Broadcasting. The Small
Business Administration defines a
television broadcasting station that has
no more than $12 million in annual
receipts as a small business. Business
concerns included in this industry are
those ‘‘primarily engaged in
broadcasting images together with
sound.’’ According to Commission staff
review of the BIA Publications, Inc.
Master Access Television Analyzer
Database as of May 16, 2003, about 814
of the 1,220 commercial television
stations in the United States have
revenues of $12 million or less. We
note, however, that, in assessing
whether a business concern qualifies as
small under the above definition,
business (control) affiliations must be
included. Our estimate, therefore, likely
overstates the number of small entities
that might be affected by our action,
because the revenue figure on which it
is based does not include or aggregate
revenues from affiliated companies.
In addition, an element of the
definition of ‘‘small business’’ is that the
entity not be dominant in its field of
operation. We are unable at this time to
define or quantify the criteria that
would establish whether a specific
television station is dominant in its field
of operation. Accordingly, the estimate
of small businesses to which rules may
apply do not exclude any television
station from the definition of a small
business on this basis and are therefore
over-inclusive to that extent. Also as
noted, an additional element of the
definition of ‘‘small business’’ is that the
entity must be independently owned
and operated. We note that it is difficult
at times to assess these criteria in the
context of media entities and our
estimates of small businesses to which
PO 00000
Frm 00016
Fmt 4702
Sfmt 4702
they apply may be over-inclusive to this
extent.
There are also 380 non-commercial
TV stations in the BIA database. Since
these stations do not receive advertising
revenue, there are no revenue estimates
for these stations. We believe that
virtually all of these stations would be
considered ‘‘small businesses’’ given
that they are generally owned by noncommercial entities including local
schools and governments and, for the
most part, rely on public donations and
funding.
Cable and Other Program
Distribution. The SBA has developed a
small business size standard for cable
and other program distribution services,
which includes all such companies
generating $12.5 million or less in
revenue annually. This category
includes, among others, cable operators,
direct broadcast satellite (‘‘DBS’’)
services, home satellite dish (‘‘HSD’’)
services, multipoint distribution
services (‘‘MDS’’), multichannel
multipoint distribution service
(‘‘MMDS’’), Instructional Television
Fixed Service (‘‘ITFS’’), local multipoint
distribution service (‘‘LMDS’’), satellite
master antenna television (‘‘SMATV’’)
systems, and open video systems
(‘‘OVS’’). According to Census Bureau
data, there are 1,311 total cable and
other pay television service firms that
operate throughout the year of which
1,180 have less than $10 million in
revenue. We address below each service
individually to provide a more precise
estimate of small entities.
Cable Operators. The SBA has
developed a small business size
standard for cable and other program
distribution services, which includes all
such companies generating $12.5
million or less in revenue annually. The
Commission has developed, with SBA’s
approval, our own definition of a small
cable system operator for the purposes
of rate regulation. Under the
Commission’s rules, a ‘‘small cable
company’’ is one serving fewer than
400,000 subscribers nationwide. We last
estimated that there were 1,439 cable
operators that qualified as small cable
companies. Since then, some of those
companies may have grown to serve
over 400,000 subscribers, and others
may have been involved in transactions
that caused them to be combined with
other cable operators. Consequently, we
estimate that there are fewer than 1,439
small entity cable system operators that
may be affected by the decisions and
rules in this Report and Order.
The Communications Act, as
amended, also contains a size standard
for a small cable system operator, which
is ‘‘a cable operator that, directly or
E:\FR\FM\03JAP1.SGM
03JAP1
Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Proposed Rules
through an affiliate, serves in the
aggregate fewer than 1% 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.’’ The
Commission has determined that there
are 68,500,000 subscribers in the United
States. Therefore, an operator serving
fewer than 685,000 subscribers shall be
deemed a small operator if its annual
revenues, when combined with the total
annual revenues of all of its affiliates, do
not exceed $250 million in the
aggregate. Based on available data, we
find that the number of cable operators
serving 685,000 subscribers or less totals
approximately 1,450. Although it seems
certain that some of these cable system
operators are affiliated with entities
whose gross annual revenues exceed
$250,000,000, we are unable at this time
to estimate with greater precision the
number of cable system operators that
would qualify as small cable operators
under the definition in the
Communications Act.
Direct Broadcast Satellite (‘‘DBS’’)
Service. Because DBS provides
subscription services, DBS falls within
the SBA-recognized definition of Cable
and Other Program Distribution
services. This definition provides that a
small entity is one with $12.5 million or
less in annual receipts. There are four
licensees of DBS services under Part 100
of the Commission’s Rules. Three of
those licensees are currently
operational. Two of the licensees that
are operational have annual revenues
that may be in excess of the threshold
for a small business. The Commission,
however, does not collect annual
revenue data for DBS and, therefore, is
unable to ascertain the number of small
DBS licensees that could be impacted by
these proposed rules. DBS service
requires a great investment of capital for
operation, and we acknowledge, despite
the absence of specific data on this
point, that there are entrants in this field
that may not yet have generated $12.5
million in annual receipts, and therefore
may be categorized as a small business,
if independently owned and operated.
Therefore, we will assume all four
licensees are small, for the purpose of
this analysis.
Electronics Equipment Manufacturers.
Rules adopted in this proceeding could
apply to manufacturers of DTV
receiving equipment and other types of
consumer electronics equipment. The
SBA has developed definitions of small
entity for manufacturers of audio and
video equipment as well as radio and
television broadcasting and wireless
communications equipment. These
categories both include all such
VerDate jul<14>2003
14:41 Dec 30, 2004
Jkt 205001
companies employing 750 or fewer
employees. The Commission has not
developed a definition of small entities
applicable to manufacturers of
electronic equipment used by
consumers, as compared to industrial
use by television licensees and related
businesses. Therefore, we will utilize
the SBA definitions applicable to
manufacturers of audio and visual
equipment and radio and television
broadcasting and wireless
communications equipment, since these
are the two closest NAICS Codes
applicable to the consumer electronics
equipment manufacturing industry.
However, these NAICS categories are
broad and specific figures are not
available as to how many of these
establishments manufacture consumer
equipment. According to the SBA’s
regulations, an audio and visual
equipment manufacturer must have 750
or fewer employees in order to qualify
as a small business concern. Census
Bureau data indicates that there are 554
U.S. establishments that manufacture
audio and visual equipment, and that
542 of these establishments have fewer
than 500 employees and would be
classified as small entities. The
remaining 12 establishments have 500
or more employees; however, we are
unable to determine how many of those
have fewer than 750 employees and
therefore, also qualify as small entities
under the SBA definition. Under the
SBA’s regulations, a radio and television
broadcasting and wireless
communications equipment
manufacturer must also have 750 or
fewer employees in order to qualify as
a small business concern. Census
Bureau data indicates that there 1,215
U.S. establishments that manufacture
radio and television broadcasting and
wireless communications equipment,
and that 1,150 of these establishments
have fewer than 500 employees and
would be classified as small entities.
The remaining 65 establishments have
500 or more employees; however, we
are unable to determine how many of
those have fewer than 750 employees
and therefore, also qualify as small
entities under the SBA definition. We
therefore conclude that there are no
more than 542 small manufacturers of
audio and visual electronics equipment
and no more than 1,150 small
manufacturers of radio and television
broadcasting and wireless
communications equipment for
consumer/household use.
Computer Manufacturers. The
Commission has not developed a
definition of small entities applicable to
computer manufacturers. Therefore, we
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
67
will utilize the SBA definition of
electronic computers manufacturing.
According to SBA regulations, a
computer manufacturer must have 1,000
or fewer employees in order to qualify
as a small entity. Census Bureau data
indicates that there are 563 firms that
manufacture electronic computers and
of those, 544 have fewer than 1,000
employees and qualify as small entities.
The remaining 19 firms have 1,000 or
more employees. We conclude that
there are approximately 544 small
computer manufacturers.
IV. Description of Projected Reporting,
Recordkeeping and Other Compliance
Requirements
At this time, we do not expect that the
proposed rules would impose
significant additional reporting or
recordkeeping requirements. While the
requirements proposed in the Notice
would have an impact on Direct
Broadcast Satellite providers and others,
we do not expect the impact to be
significant in terms of time or expense
to comply. At this time, we expect the
requirements to be the same for large
and small entities. We seek comment on
whether others perceive a need for less
extensive recordkeeping or compliance
requirements for small entities.
V. Steps Taken to Minimize Significant
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.
The proposals in the NPRM would
apply equally to large and small entities.
We welcome comment on modifications
of the proposals if such modifications
might assist small entities and
especially if such are based on evidence
of potential differential impact.
VI. Federal Rules Which Duplicate,
Overlap, or Conflict With the
Commission’s Proposals
None.
E:\FR\FM\03JAP1.SGM
03JAP1
68
Federal Register / Vol. 70, No. 1 / Monday, January 3, 2005 / Proposed Rules
List of Subjects
47 CFR Part 73
Television.
47 CFR Part 76
Cable television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04–28174 Filed 12–30–04; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[I.D. 122304D]
RIN 0648–AN25
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States; Monkfish
Fishery; Amendment 2 to the Monkfish
Fishery Management Plan
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of availability of a fishery
management plan amendment; request
for comments.
AGENCY:
SUMMARY: NMFS announces that the
New England Fishery Management
Council (NEFMC) and the Mid-Atlantic
Fishery Management Council (MAFMC)
have submitted Amendment 2 to the
Monkfish Fishery Management Plan
(FMP) (Amendment 2) incorporating the
draft Final Supplemental Environmental
Impact Statement (FSEIS), Regulatory
Impact Review (RIR), and the Initial
Regulatory Flexibility Analysis (IRFA),
for Secretarial review and is requesting
comments from the public. Amendment
2 was developed to address essential
fish habitat (EFH) and bycatch issues,
and to revise the FMP to address several
issues raised during the public scoping
process. The intent of this action is to
provide efficient management of the
monkfish fishery and to meet
conservation objectives.
DATES: Comments must be received on
or before March 3, 2005.
ADDRESSES: Written comments on the
proposed interim rule may be submitted
by any of the following methods:
• E-mail: E-mail comments may be
submitted to https://
monkamend2@noaa.gov. Include in the
VerDate jul<14>2003
14:41 Dec 30, 2004
Jkt 205001
subject line the following: ‘‘Comments
on the Monkfish Amendment 2.’’
• Federal e-Rulemaking Portal:
https://www.regulations.gov.
• Mail: Comments submitted by mail
should be sent to Patricia A. Kurkul,
Regional Administrator, Northeast
Region, NMFS, One Blackburn Drive,
Gloucester, MA 01930–2298. Mark the
outside of the envelope ‘‘Comments on
the Monkfish Amendment 2.’’
• Facsimile (fax): Comments
submitted by fax should be faxed to
(978) 281–9135.
Copies of Amendment 2, the FSEIS,
RIR, and IRFA are available from Paul
J. Howard, Executive Director, New
England Fishery Management Council,
50 Water Street, Newburyport, MA
01950. These documents are also
available online at https://
www.nefmc.org.
FOR FURTHER INFORMATION CONTACT:
Allison R. Ferreira, Fishery Policy
Analyst, (978) 281–9103; fax (978) 281–
9135; e-mail: allison.ferreira@noaa.gov.
SUPPLEMENTARY INFORMATION: A notice
of availability for the Draft
Supplemental Environmental Impact
Statement (DSEIS) for Amendment 2
was published in the Federal Register
on April 30, 2004 (69 FR 23571), with
public comment accepted through July
28, 2004. After considering all
comments on the DSEIS, the NEFMC
and MAFMC adopted the final measures
to be included in Amendment 2 at their
respective September 14–16, 2004, and
October 4–6, 2004, meetings, and voted
to submit the Amendment 2 document,
including the FSEIS, to NMFS.
The NEFMC and MAFMC developed
Amendment 2 to address a number of
issues that arose out of the
implementation of the original FMP, as
well as issues that were identified
during public scoping. Issues arising
from the original FMP include: (1) The
displacement of vessels from their
established monkfish fisheries due to
restrictive trip limits; (2) unattainable
permit qualification criteria for vessels
in the southern end of the range of the
fishery; (3) discards (bycatch) of
monkfish due to regulations (i.e.,
minimum size restrictions and
incidental catch limits); and (4)
deficiencies in meeting MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act) requirements pertaining to
protection of EFH in accordance with
the Joint Stipulation and Order resulting
from the legal challenge American
Oceans Campaign, et al. v. Daley. Issues
arising from public scoping include: (1)
Deficiencies in meeting MagnusonStevens Act requirements, including
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
preventing overfishing and rebuilding
overfished stocks; (2) a need to improve
monkfish data collection and research;
(3) the need to establish a North Atlantic
Fisheries Organization (NAFO)
exemption program for monkfish;
multiple vessel baseline specifications
for limited access monkfish vessels; (4)
a need to update environmental
documents describing the impact of the
FMP; and, (5) a need to reduce FMP
complexity where possible.
Amendment 2 evaluates and includes
the following measures to minimize the
adverse effects of fishing on EFH: A
maximum disc diameter of 6 inches
(15.2 cm) for trawl gear vessels fishing
in the Southern Fishery Management
Area (SFMA); and closure of two deepsea canyon areas to all gears when
fishing under the monkfish day-at-sea
(DAS) program. Amendment 2 also
proposes the following management
measures: (1) A new limited access
permit for qualified vessels fishing
south of 38o 20’ N. lat.; (2) an offshore
trawl fishery in the SFMA;
establishment of a research DAS setaside program; (3) an exemption
program for vessels fishing outside of
the Exclusive Economic Zone; (4)
adjustments to the incidental monkfish
catch limits; a decrease in the minimum
monkfish size in the SFMA; (5) removal
of the 20–day block requirement;
revisions to the monkfish baseline
provisions; and (6) additions to the
frameworable measures.
Public comments are being solicited
on Amendment 2 and its incorporated
documents through the end of the
comment period stated in this notice of
availability. A proposed rule that would
implement Amendment 2 may be
published in the Federal Register for
public comment, following NMFS’s
evaluation of the proposed rule under
the procedures of the Magnuson-Stevens
Act. Public comments on the proposed
rule must be received by the end of the
comment period provided in this notice
of availability of Amendment 2 to be
considered in the approval/disapproval
decision on the amendment. All
comments received by March 3, 2005,
whether specifically directed to
Amendment 2 or the proposed rule, will
be considered in the approval/
disapproval decision on Amendment 2.
Comments received after that date will
not be considered in the decision to
approve or disapprove Amendment 2.
Therefore, to be considered, comments
must be received by close of business on
the last date of the comment period,
March 3, 2005; that does not mean
postmarked or otherwise transmitted by
that date.
E:\FR\FM\03JAP1.SGM
03JAP1
]]>Agencies
[Federal Register Volume 70, Number 1 (Monday, January 3, 2005)]
[Proposed Rules]
[Pages 63-68]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-28174]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 76
[MM Docket No. 00-167; FCC 04-221]
Broadcast Services; Children's Television; Cable Operators;
Satellite Service Providers
AGENCY: Federal Communications Commission.
[[Page 64]]
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Commission seeks comment on applying to Direct Broadcast
Satellite (DBS) service providers its revised interpretation of the
commercial time limits applicable to children's programming.
Specifically, the Commission proposes to require that the display of
Internet Web site addresses during DBS program material is permitted as
within the time limits only if the Web site meets certain requirements,
including the requirement that it offer a substantial amount of bona
fide program-related or other noncommercial content and is not
primarily intended for commercial purposes. In addition, the Commission
proposes to apply to DBS its revised definition of ``commercial
matter'' as including promotions of television programs or video
programming services other than children's educational and
informational programming. The Commission also seeks comment on how to
tailor its rules to allow innovation in interactivity in children's
television programming, while at the same time ensuring that parents
can control what information their children can access.
DATES: Comments are due by March 1, 2005, and reply comments are due by
April 1, 2005.
ADDRESSES: Federal Communications Commission, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Kim Matthews, Media Bureau, (202) 418-
2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Further Notice of Proposed Rule Making in
MM Docket No. 00-167, FCC 04-221, adopted September 9, 2004, and
released November 23, 2004. The complete text of this document is
available for inspection and copying during normal business hours in
the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554.
The complete text may be purchased from the Commission's copy
contractor, Qualex International, 445 12th Street, SW., Room CY-B402,
Washington, DC 20554. The full text may also be downloaded at: https://
www.fcc.gov. To request materials in accessible formats for people with
disabilities (braille, large print, electronic file, audio format),
send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Paperwork Reduction Act: This document contains proposed and
modified information collections subject to the Paperwork Reduction Act
of 1995 (PRA), Public Law 104-13. It 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 modified and proposed information collection
requirements contained in this proceeding.
Summary of the Further Notice of Proposed Rule Making
1. In the final rule document in this proceeding, published
elsewhere in the same issue of this Federal Register, we resolved a
number of issues raised in the Notice of Proposed Rulemaking (65 FR
66951-01, November 8, 2000) regarding the obligation of television
broadcasters to protect and serve children in their audience. In the
final rule document, we concluded that, for the time being, we will not
prohibit the appearance of direct, interactive, links to commercial
Internet sites in children's programming, as this technology is
currently not being used in children's programming. Nonetheless, we are
aware that the inclusion of interactive technology in television
programming is on the horizon. We encourage broadcasters to develop
interactive services that enhance the educational value of children's
programming. With the benefits of interactivity, however, come
potential risks that children will be exposed to additional commercial
influences. Accordingly, we seek comment on how to tailor our rules to
allow innovation in interactivity in children's television programming,
while at the same time ensuring that parents can control what
information their children can access.
2. We tentatively conclude that we should prohibit interactivity
during children's programming that connects viewers to commercial
matter unless parents ``opt in'' to such services. We seek comment on
how such a rule could be implemented technologically. We also seek
comment on how we would implement such a rule in terms of the statutory
limits on commercial time. In particular, we note that the time spent
accessing the Internet or other interactive material during a program
is not limited to the time that a link is displayed on the screen. For
the same reason, we seek comment as to how such a rule would apply to
commercials, given that interactive elements can cause a commercial to
last much longer than a 30-second or 15-second spot. Finally, we seek
comment on whether to change how we define commercial matter in this
context.
3. We also concluded in the Report and Order in this proceeding
that we will revise our definition of ``commercial matter'' to include
promotions of television programs or video programming services other
than children's educational and informational programming. We stated
that we will apply this revised definition to television licensees and
cable operators. We tentatively conclude that we should also amend Part
25 of the Commission's rules to apply this revised definition to Direct
Broadcast Satellite (``DBS'') service providers, and seek comment on
this tentative conclusion. In addition, in the Report and Order we
interpreted the CTA commercial time limits to require that, with
respect to programs directed to children ages 12 and under, the display
of Internet Web site addresses during program material is permitted as
within the CTA limitations only if the Web site: (1) Offers a
substantial amount of bona fide program-related or other noncommercial
content; (2) is not primarily intended for commercial purposes,
including either e-commerce or advertising; (3) the Web site's home
page and other menu pages are clearly labeled to distinguish the
noncommercial from the commercial sections; and (4) the page of the Web
site to which viewers are directed by the Web site address is not used
for e-commerce, advertising, or other commercial purposes (e.g.,
contains no links labeled ``store'' and no links to another page with
commercial material). We propose to apply these restrictions on the
displaying of commercial Web site information to DBS and require DBS
providers to maintain records sufficient to verify compliance with the
commercial limits requirements and to make such records available to
the public. We believe that it is appropriate to require that children
in DBS households receive the same protection from excessive
commercialism on television as children in cable or over-the-air
television households. We do not believe that compliance with these
rules will be burdensome as many of the programming services carried by
DBS providers are the same as are carried by cable systems around the
country, which must comply with the revised commercial limits rules
adopted in our decision today.
Administrative Matters
4. This is a permit-but-disclose notice and comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda
[[Page 65]]
period, provided that they are disclosed as provided in the
Commission's Rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
5. Pursuant to Sections 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments on or before
March 1, 2005, and reply comments on or before April 1, 2005. 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 24121 (1998). Documents filed through the
ECFS can be sent as an electronic file via the Internet to https://
www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic
submission must be filed. If multiple docket or rulemaking numbers are
referenced in the caption of the comments, 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, U.S.
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. 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 the
comment, commenters must submit two additional copies for each
additional docket or rulemaking number. Filings can be sent by hand or
messenger delivery, by commercial overnight courier, or by first-class
or overnight U.S. Postal Service mail (although we continue to
experience delays in receiving U.S. Postal Service mail). The
Commission's contractor, Vistronix, Inc., will receive hand-delivered
or messenger-delivered paper filings for the Commission's Secretary at
236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The
filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes
must be disposed of before entering the building. Commercial overnight
mail (other than U.S. Postal Service Express Mail and Priority Mail)
must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class mail, Express Mail, and Priority Mail
should be addressed to 445 12th Street, SW., Washington, DC 20554. All
filings must be addressed to the Commission's Secretary, Office of the
Secretary, Federal Communications Commission.
6. This Further Notice of Proposed Rulemaking may contain either
proposed or modified information collections subject to the Paperwork
Reduction Act of 1995. As part of our continuing effort to reduce
paperwork burdens, we invite OMB, the general public, and other Federal
agencies to take this opportunity to comment on the information
collections contained in this Further Notice, as required by the
Paperwork Reduction Act of 1995. Public and agency comments are due at
the same time as other comments on the Further Notice. 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) ways to enhance the quality, utility, and clarity of the
information collected; and (c) 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. In addition to filing comments with the Secretary, a copy
of any comments on the information collections contained herein should
be submitted to Cathy Williams, Federal Communications Commission, 445
Twelfth Street, SW., Room 1-C823, Washington, DC 20554, or via the
Internet to Cathy.Williams@fcc.gov and to Kristy L. LaLonde, OMB Desk
Officer, 10234 NEOB, 725 17th Street, NW., Washington, DC 20503 or via
the Internet to Kristy L. LaLonde @omb.eop.gov, or via fax at 202-395-
5167.
7. As required by the Regulatory Flexibility Act, the Commission
has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the
possible significant economic impact on a substantial number of small
entities of the proposals addressed in this Further Notice of Proposed
Rulemaking. Written public comments are requested on the IRFA. These
comments must be filed in accordance with the same filing deadlines for
comments on the Further Notice, and they should have a separate and
distinct heading designating them as responses to the IRFA.
8. To request materials in accessible formats for people with
disabilities (braille, large print, electronic file, audio format),
send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This
document can also be downloaded in Word and Portable Document Format
(PDF) at: https://www.fcc.gov.
9. For additional information on this proceeding, please contact
Kim Matthews, Policy Division, Media Bureau at (202) 418-2154.
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 small entities by the policies and rules proposed in this
Further Notice of Proposed Rulemaking (``NPRM''). 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 NPRM. The Commission will send a copy of the Notice, including
this IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration. In addition, the Notice and IRFA (or summaries thereof)
will be published in the Federal Register.
I. Need for and Objectives of the Proposed Rules
Our goal in commencing this proceeding is to seek comment on two
issues: (1) Whether and how we should limit the use of interactivity
for commercial purposes in children's television programming; and (2)
whether we should apply to Direct Broadcast Satellite service providers
the same revised definition of ``commercial matter'' adopted in the
Report and Order.
We seek comment in the Notice on the tentative conclusion that we
should prohibit interactivity during children's programming that
connects viewers to commercial matter unless parents ``opt in'' to such
services. We seek comment on how such a rule could be implemented
technologically. We also seek comment on how we would implement such a
rule in terms of the statutory limits on commercial time.
We concluded in the Report and Order that we will revise our
definition of ``commercial matter'' to include promotions of television
programs or video programming services other than children's
educational and informational programming. We stated that we will apply
this revised definition to television licensees and cable operators. We
tentatively conclude in the Notice that we should also amend
[[Page 66]]
Part 25 of the Commission's rules to apply this revised definition to
Direct Broadcast Satellite service providers, and seek comment on this
tentative conclusion.
In addition, the Report and Order interprets the CTA commercial
time limits to require that, with respect to programs directed to
children ages 12 and under, the display of Internet Web site addresses
during program material is permitted as within the CTA limitations only
if the Web site: (1) Offers a substantial amount of bona fide program-
related or other noncommercial content; (2) is not primarily intended
for commercial purposes, including either e-commerce or advertising;
(3) the Web site's home page and other menu pages are clearly labeled
to distinguish the noncommercial from the commercial sections; and (4)
the page of the Web site to which viewers are directed by the Web site
address is not used for e-commerce, advertising, or other commercial
purposes (e.g., contains no links labeled ``store'' and no links to
another page with commercial material). The Report and Order applies
this restriction to broadcasters and cable operators. We propose in the
NPRM to apply this restriction to DBS. In addition, we propose to
require DBS providers to maintain records sufficient to verify
compliance with the commercial limits in children's programming and to
make such records available to the public.
II. Legal Basis
The authority for the action proposed in this rulemaking is
contained in Sections 4(i) & (j), 303, 303a, 303b, 307, 309 and 336 of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i) & (j),
303, 303a, 303b, 307, 309 and 336.
III. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
The RFA directs the Commission to provide a description of and,
where feasible, an estimate of the number of small entities that will
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
Small Business Administration (``SBA'').
In this context, the application of the statutory definition to
television stations is of concern. An element of the definition of
``small business'' is that the entity not be dominant in its field of
operation. We are unable at this time to define or quantify the
criteria that would establish whether a specific television station is
dominant in its field of operation. Accordingly, the estimates that
follow of small businesses to which rules may apply do not exclude any
television station from the definition of a small business on this
basis and therefore might be over-inclusive.
An additional element of the definition of ``small business'' is
that the entity must be independently owned and operated. It is
difficult at times to assess these criteria in the context of media
entities and our estimates of small businesses might therefore be over
inclusive.
Television Broadcasting. The Small Business Administration defines
a television broadcasting station that has no more than $12 million in
annual receipts as a small business. Business concerns included in this
industry are those ``primarily engaged in broadcasting images together
with sound.'' According to Commission staff review of the BIA
Publications, Inc. Master Access Television Analyzer Database as of May
16, 2003, about 814 of the 1,220 commercial television stations in the
United States have revenues of $12 million or less. We note, however,
that, in assessing whether a business concern qualifies as small under
the above definition, business (control) affiliations must be included.
Our estimate, therefore, likely overstates the number of small entities
that might be affected by our action, because the revenue figure on
which it is based does not include or aggregate revenues from
affiliated companies.
In addition, an element of the definition of ``small business'' is
that the entity not be dominant in its field of operation. We are
unable at this time to define or quantify the criteria that would
establish whether a specific television station is dominant in its
field of operation. Accordingly, the estimate of small businesses to
which rules may apply do not exclude any television station from the
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also as noted, an additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. We note that it is difficult at times
to assess these criteria in the context of media entities and our
estimates of small businesses to which they apply may be over-inclusive
to this extent.
There are also 380 non-commercial TV stations in the BIA database.
Since these stations do not receive advertising revenue, there are no
revenue estimates for these stations. We believe that virtually all of
these stations would be considered ``small businesses'' given that they
are generally owned by non-commercial entities including local schools
and governments and, for the most part, rely on public donations and
funding.
Cable and Other Program Distribution. The SBA has developed a small
business size standard for cable and other program distribution
services, which includes all such companies generating $12.5 million or
less in revenue annually. This category includes, among others, cable
operators, direct broadcast satellite (``DBS'') services, home
satellite dish (``HSD'') services, multipoint distribution services
(``MDS''), multichannel multipoint distribution service (``MMDS''),
Instructional Television Fixed Service (``ITFS''), local multipoint
distribution service (``LMDS''), satellite master antenna television
(``SMATV'') systems, and open video systems (``OVS''). According to
Census Bureau data, there are 1,311 total cable and other pay
television service firms that operate throughout the year of which
1,180 have less than $10 million in revenue. We address below each
service individually to provide a more precise estimate of small
entities.
Cable Operators. The SBA has developed a small business size
standard for cable and other program distribution services, which
includes all such companies generating $12.5 million or less in revenue
annually. The Commission has developed, with SBA's approval, our own
definition of a small cable system operator for the purposes of rate
regulation. Under the Commission's rules, a ``small cable company'' is
one serving fewer than 400,000 subscribers nationwide. We last
estimated that there were 1,439 cable operators that qualified as small
cable companies. Since then, some of those companies may have grown to
serve over 400,000 subscribers, and others may have been involved in
transactions that caused them to be combined with other cable
operators. Consequently, we estimate that there are fewer than 1,439
small entity cable system operators that may be affected by the
decisions and rules in this Report and Order.
The Communications Act, as amended, also contains a size standard
for a small cable system operator, which is ``a cable operator that,
directly or
[[Page 67]]
through an affiliate, serves in the aggregate fewer than 1% 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.'' The Commission has determined that there are 68,500,000
subscribers in the United States. Therefore, an operator serving fewer
than 685,000 subscribers shall be deemed a small operator if its annual
revenues, when combined with the total annual revenues of all of its
affiliates, do not exceed $250 million in the aggregate. Based on
available data, we find that the number of cable operators serving
685,000 subscribers or less totals approximately 1,450. Although it
seems certain that some of these cable system operators are affiliated
with entities whose gross annual revenues exceed $250,000,000, we are
unable at this time to estimate with greater precision the number of
cable system operators that would qualify as small cable operators
under the definition in the Communications Act.
Direct Broadcast Satellite (``DBS'') Service. Because DBS provides
subscription services, DBS falls within the SBA-recognized definition
of Cable and Other Program Distribution services. This definition
provides that a small entity is one with $12.5 million or less in
annual receipts. There are four licensees of DBS services under Part
100 of the Commission's Rules. Three of those licensees are currently
operational. Two of the licensees that are operational have annual
revenues that may be in excess of the threshold for a small business.
The Commission, however, does not collect annual revenue data for DBS
and, therefore, is unable to ascertain the number of small DBS
licensees that could be impacted by these proposed rules. DBS service
requires a great investment of capital for operation, and we
acknowledge, despite the absence of specific data on this point, that
there are entrants in this field that may not yet have generated $12.5
million in annual receipts, and therefore may be categorized as a small
business, if independently owned and operated. Therefore, we will
assume all four licensees are small, for the purpose of this analysis.
Electronics Equipment Manufacturers. Rules adopted in this
proceeding could apply to manufacturers of DTV receiving equipment and
other types of consumer electronics equipment. The SBA has developed
definitions of small entity for manufacturers of audio and video
equipment as well as radio and television broadcasting and wireless
communications equipment. These categories both include all such
companies employing 750 or fewer employees. The Commission has not
developed a definition of small entities applicable to manufacturers of
electronic equipment used by consumers, as compared to industrial use
by television licensees and related businesses. Therefore, we will
utilize the SBA definitions applicable to manufacturers of audio and
visual equipment and radio and television broadcasting and wireless
communications equipment, since these are the two closest NAICS Codes
applicable to the consumer electronics equipment manufacturing
industry. However, these NAICS categories are broad and specific
figures are not available as to how many of these establishments
manufacture consumer equipment. According to the SBA's regulations, an
audio and visual equipment manufacturer must have 750 or fewer
employees in order to qualify as a small business concern. Census
Bureau data indicates that there are 554 U.S. establishments that
manufacture audio and visual equipment, and that 542 of these
establishments have fewer than 500 employees and would be classified as
small entities. The remaining 12 establishments have 500 or more
employees; however, we are unable to determine how many of those have
fewer than 750 employees and therefore, also qualify as small entities
under the SBA definition. Under the SBA's regulations, a radio and
television broadcasting and wireless communications equipment
manufacturer must also have 750 or fewer employees in order to qualify
as a small business concern. Census Bureau data indicates that there
1,215 U.S. establishments that manufacture radio and television
broadcasting and wireless communications equipment, and that 1,150 of
these establishments have fewer than 500 employees and would be
classified as small entities. The remaining 65 establishments have 500
or more employees; however, we are unable to determine how many of
those have fewer than 750 employees and therefore, also qualify as
small entities under the SBA definition. We therefore conclude that
there are no more than 542 small manufacturers of audio and visual
electronics equipment and no more than 1,150 small manufacturers of
radio and television broadcasting and wireless communications equipment
for consumer/household use.
Computer Manufacturers. The Commission has not developed a
definition of small entities applicable to computer manufacturers.
Therefore, we will utilize the SBA definition of electronic computers
manufacturing. According to SBA regulations, a computer manufacturer
must have 1,000 or fewer employees in order to qualify as a small
entity. Census Bureau data indicates that there are 563 firms that
manufacture electronic computers and of those, 544 have fewer than
1,000 employees and qualify as small entities. The remaining 19 firms
have 1,000 or more employees. We conclude that there are approximately
544 small computer manufacturers.
IV. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
At this time, we do not expect that the proposed rules would impose
significant additional reporting or recordkeeping requirements. While
the requirements proposed in the Notice would have an impact on Direct
Broadcast Satellite providers and others, we do not expect the impact
to be significant in terms of time or expense to comply. At this time,
we expect the requirements to be the same for large and small entities.
We seek comment on whether others perceive a need for less extensive
recordkeeping or compliance requirements for small entities.
V. Steps Taken to Minimize Significant 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.
The proposals in the NPRM would apply equally to large and small
entities. We welcome comment on modifications of the proposals if such
modifications might assist small entities and especially if such are
based on evidence of potential differential impact.
VI. Federal Rules Which Duplicate, Overlap, or Conflict With the
Commission's Proposals
None.
[[Page 68]]
List of Subjects
47 CFR Part 73
Television.
47 CFR Part 76
Cable television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-28174 Filed 12-30-04; 8:45 am]
BILLING CODE 6712-01-P
