Closed Captioning of Video Programming; Telecommunications for the Deaf, Inc. Petition for Rulemaking, 56150-56157 [05-19161]
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Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Proposed Rules
the airplane, and the approval must
specifically refer to this AD.
Parts Installation
(n) As of the effective date of this AD, no
person may install any Maraging or H–11
steel fasteners in the locations specified in
this AD. Where Boeing Alert Service Bulletin
747–55A2050, Revision 1, dated May 1, 2003,
specifies to install H–11 bolts (kept
fasteners), this AD requires installation of
inconel bolts.
Alternative Methods of Compliance (AMOCs)
(o)(1) The Manager, Seattle ACO, FAA, has
the authority to approve AMOCs for this AD,
if requested using the procedures found in 14
CFR 39.19.
(2) Before using any AMOC approved in
accordance with § 39.19 on any airplane to
which the AMOC applies, notify the
appropriate principal inspector in the FAA
Flight Standards Certificate Holding District
Office.
(3) AMOCs, approved previously per AD
2002–06–02, amendment 39–12678; or AD
2003–13–09, amendment 39–13209; are
approved as AMOCs for the corresponding
provisions of this AD, for the repaired area
only.
Issued in Renton, Washington, on
September 16, 2005.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. 05–19142 Filed 9–23–05; 8:45 am]
BILLING CODE 4910–13–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 271
[FRL–7974–2]
North Dakota: Final Authorization of
State Hazardous Waste Management
Program Revision
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: The EPA proposes to grant
Final authorization to the hazardous
waste program changes submitted by
North Dakota. In the ‘‘Rules’’ section of
this Federal Register, we are
authorizing the State’s program changes
as an immediate final rule without a
prior proposed rule because we believe
this action as not controversial. Unless
we get written comments opposing this
authorization during the comment
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not provide further opportunity for
comment. Any parties interested in
commenting on this action must do so
at this time.
DATES: We must receive your comments
by October 26, 2005.
ADDRESSES: Submit your comments by
one of the following methods: 1. Federal
eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions for submitting comments. 2.
E-mail: shurr.kris@epa.gov. 3. Mail: Kris
Shurr, 8P–HW, U.S. EPA, Region 8, 999
18th St, Ste 300, Denver, Colorado
80202–2466, phone number: (303) 312–
6139. 4. Hand Delivery or Courier: to
Kris Shurr, 8P–HW, U.S. EPA, Region 8,
999 18th St, Ste 300, Denver, Colorado
80202–2466, phone number: (303) 312–
6139.
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means EPA will not know your identity
or contact information unless you
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available on the Internet. If you submit
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cannot read your comment due to
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phone number (701) 328–5166 and EPA
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2466, contact: Kris Shurr, phone
number: (303) 312–6139, e-mail:
shurr.kris@epa.gov.
FOR FURTHER INFORMATION CONTACT: Kris
Shurr, EPA Region 8, 999 18th Street,
Suite 300, Denver, Colorado 80202–
2466, phone number: (303) 312–6139, email: shurr.kris@epa.gov.
SUPPLEMENTARY INFORMATION: For
additional information, please see the
immediate final rule published in the
‘‘Rules’’ section of this Federal Register.
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Dated: September 19, 2005.
Robert E. Roberts,
Regional Administrator, Region 8.
[FR Doc. 05–19137 Filed 9–23–05; 8:45 am]
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47 CFR Part 79
[CG Docket No. 05–231; FCC 05–142]
Closed Captioning of Video
Programming; Telecommunications for
the Deaf, Inc. Petition for Rulemaking
Federal Communications
Commission.
AGENCY:
ACTION:
Proposed rule.
SUMMARY: In this document, the
Commission grants a petition for
rulemaking and initiates a proceeding to
examine the Commission’s closed
captioning rules. Specifically, the
Commission seeks comment on the
current status of the Commission’s
closed captioning rules in ensuring that
video programming is accessible to deaf
and hard of hearing Americans and
whether any revisions should be made
to enhance the effectiveness of those
rules; and several compliance and
quality issues relating to closed
captioning that were raised in a Petition
for Rulemaking filed by
Telecommunications for the Deaf, Inc.,
(TDI), the National Association of the
Deaf, Self Help for Hard of Hearing
People, Inc., the Association for Late
Deafened Adults, and the Deaf and Hard
of Hearing Consumer Advocacy
Network.
Comments are due on or before
November 10, 2005. Reply comments
are due on or before November 25, 2005.
Written comments on the Paperwork
Reduction Act (PRA) proposed
information collection requirements
must be submitted by the general
public, Office of Management and
Budget (OMB), and other interested
parties on or before November 25, 2005.
DATES:
You may submit comments,
identified by [docket number and/or
rulemaking number], by any of the
following methods:
ADDRESSES:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web Site: https://
www.fcc.gov/cgb/ecfs/. Follow the
instructions for submitting comments.
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People with Disabilities: Contact the
FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by e-mail: FCC504@fcc.gov
or phone (202) 418–0539 or TTY: (202)
418–0432.
For detailed instructions for
submitting comments and additional
information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of this document. In addition, a
copy of any comments on the
Paperwork Reduction Act (PRA)
information collection requirements
contained herein should be submitted to
Leslie Smith, Federal Communications
Commission, Room 1–A804, 445 12th
Street, SW., Washington, DC 20554, or
via the Internet to Leslie.Smith@fcc.gov,
and to Kristy L. LaLonde, OMB Desk
Officer, Room 10234 NEOB, 725 17th
Street, NW., Washington, DC 20503, via
the Internet to
Kristy_L._LaLonde@omb.eop.gov, or via
fax at (202) 395–5167.
FOR FURTHER INFORMATION CONTACT:
Amelia Brown, Consumer &
Governmental Affairs Bureau, Disability
Rights Office at (202) 418–2799 (voice),
(202) 418–0597 (TTY), or e-mail at
Amelia.Brown@fcc.gov. For additional
information concerning the Paperwork
Reduction Act information collection
requirements contained in the
document, contact Leslie Smith at (202)
418–0217, or via the Internet at
Leslie.Smith@fcc.gov.
SUPPLEMENTARY INFORMATION: The
Notice of Proposed Rulemaking (NPRM),
Closed Captioning of Video
Programming; Telecommunications for
the Deaf, Inc. Petition for Rulemaking,
CG Docket No. 05–231, FCC 05–142,
contains proposed information
collection requirements subject to the
PRA of 1995, Public Law 104–13. It will
be submitted to the Office of
Management and Budget (OMB) for
review under Section 3507 of the PRA.
OMB, the general public, and other
Federal agencies are invited to comment
on the proposed information collection
requirements contained in this
proceeding. This is a summary of the
Commission’s NPRM, FCC 05–142,
adopted July 14, 2005, and released July
21, 2005, in CG Docket No. 05–231.
Pursuant to §§ 1.415 and 1.419 of the
Commission’s rules, 47 CFR 1.415 and
1.419, interested parties may file
comments and reply comments on or
before the dates indicated on the first
page of this document. Comments may
be filed using: (1) The Commission’s
Electronic Comment Filing System
(ECFS), (2) the Federal Government’s
eRulemaking Portal, or (3) by filing
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paper copies. See Electronic Filing of
Documents in Rulemaking Proceedings,
63 FR 24121, May 1, 1998.
• Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://www.fcc.gov/
cgb/ecfs/ or the Federal eRulemaking
Portal: https://www.regulations.gov.
Filers should follow the instructions
provided on the website for submitting
comments.
• For ECFS filers, if multiple docket
or rulemaking numbers appear in the
caption of this proceeding, filers must
transmit one electronic copy of the
comments for each docket or
rulemaking number referenced in the
caption. In completing the transmittal
screen, filers should include their full
name, U.S. Postal Service mailing
address, and the applicable docket or
rulemaking number, which in this
instance is CG Docket No. 05–231.
Parties may also submit an electronic
comment by Internet e-mail. To get
filing instructions, filers should send an
e-mail to ecfs@fcc.gov, and include the
following words in the body of the
message, ‘‘get form .’’ A sample form and
directions will be sent in response.
• Paper Filers: 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
appears in the caption in this
proceeding, filers must submit two
additional copies of 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). All filings must be addressed to
the Commission’s Secretary, Office of
the Secretary, Federal Communications
Commission.
• The Commission’s contractor will
receive hand-delivered or messengerdelivered 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 mail 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,
Express, and Priority mail should be
addressed to 445 12th Street, SW.,
Washington, DC 20554.
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56151
Comments and reply comments must
include a short and concise summary of
the substantive discussion and
questions raised in the NPRM. The
Commission further directs all
interested parties to include the name of
the filing party and the date of the filing
on each page of their comments and
reply comments. The Commission
strongly encourages that parties track
the organization set forth in this NPRM
in order to facilitate the Commission’s
internal review process. Comments and
reply comments must otherwise comply
with § 1.48 of the Commission’s rules
and all other applicable sections of the
Commission’s rules. (See 47 CFR 1.48).
Pursuant to § 1.1200 of the
Commission’s rules, 47 CFR 1.1200, this
matter shall be treated as a ‘‘permit-butdisclose’’ proceeding in which ex parte
communications are subject to
disclosure. Persons making oral ex parte
presentations are reminded that
memoranda summarizing the
presentations must contain summaries
of the substance of the presentation 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. Other requirements pertaining
to oral and written presentations are set
forth in § 1.1206 (b) of the Commission’s
rules.
People with Disabilities: To request
materials in accessible formats for
people with disabilities (Braille, large
print, electronic files, 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).
Initial Paperwork Reduction Act of
1995 Analysis
The NPRM contains proposed
information collection requirements.
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 requirements contained in
this document, as required by the
Paperwork Reduction Act of 1995,
Public Law 104–13. Public and agency
comment are due November 25, 2005.
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
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respondents, including the use of
automated collection techniques or
other forms of information technology.
In addition, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C. 3506
(c)(4), the Commission we seeks specific
comment on how it may ‘‘further reduce
the information collection burden for
small business concerns with fewer than
25 employees.’’
OMB Control Number: 3060–0761.
Title: Section 79.1 Closed Captioning
of Video Programming.
Form No.: N/A.
Type of Review: Revision of a
currently approved collection.
Number of Respondents: 12,500
respondents—(11,500 Video
Programming Providers and 1,000
complainants)
Number of Responses: 50,950
responses.
Respondents: Individuals or
households; business and other forprofit entities; and not-for-profit
institutions.
Estimated Time per response: 30
minutes (0.50 hours) to 10 hours.
Frequency of Response: On occasion
reporting requirement; recordkeeping;
third party disclosure.
Total Annual Burden: 202,215 hours.
Total Annual Costs: $500,000.
Privacy Act Impact Assessment: Yes.
Needs and Uses: On July 21, 2005, the
Commission released a Notice of
Proposed Rulemaking (NPRM), CG
Docket No. 05–231, which initiates a
rulemaking to examine the current
status of the Commission’s closed
captioning rules (47 CFR 79.1) with the
goal of ensuring that video programming
is accessible to deaf and hard of hearing
Americans. The NPRM seeks to
determine whether any revisions should
be made to enhance the effectiveness of
those rules. The NPRM seeks comment
on establishing standards for the nontechnical quality of closed captioning,
the potential costs of such standards for
programmers and distributors, the
availability of competent captioners to
meet a non-technical quality standard
mandate, and establishing different nontechnical quality standards for preproduced versus live programming. In
addition, the NPRM seeks comment on
whether additional mechanisms and
procedures, beyond those already in the
Commission’s rules, are necessary to
prevent technical problems from
occurring and to expeditiously remedy
any technical problems that do arise.
The NPRM also seeks comment on video
programming distributors’ responsibility
to monitor and maintain their
equipment and signal transmissions,
and whether specific mechanisms
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should be established for monitoring
and maintenance. Additionally, the
NPRM seeks comment on whether to
revise the current rule to allow for
shorter complaint and response times,
what those time frames should be, and
whether complainants should be
permitted to complain directly to the
Commission without complaining to the
video programming distributor first.
Further, the NPRM seeks comment on
requiring video programming
distributors to file compliance reports as
to the amount of closed captioning they
provide, and any alternative methods
available to verify compliance. The
information collection requirements
include the proposed requirements
contained in the NPRM.
Synopsis
The NPRM grants a Petition for
Rulemaking that was filed by TDI and
several organizations representing deaf
and hard of hearing consumers and
seeks comment on several issues
pertaining to closed captioning. The
Commission first adopted rules for
closed captioning of video programming
in 1997. (See Closed Captioning and
Video Description of Video
Programming, Implementation of
Section 305 of the Telecommunications
Act of 1996, Video Programming
Accessibility, MM Docket No. 95–176,
Report and Order, 13 FCC Rcd 3272
(August 22, 1997), published at 62 FR
48487, September 16, 1997), (Closed
Captioning Report and Order).
The closed captioning rules are found
at 47 CFR 79.1, and apply to any
television broadcast station licensed by
the Commission, any multi-channel
video programming distributor (MVPD),
and any other distributor of video
programming for residential reception
that delivers such programming directly
to the home and is subject to the
jurisdiction of the Commission.
Examples of MVPDs include cable
operators, multi-channel multipoint
distribution services, direct broadcast
satellite services, television receive-only
satellite program distributors, and
satellite master antenna television
system operators. We note that
telephone companies providing video
programming to the home are subject to
§ 79.1 of the Commission’s rules.
Non-technical Quality Standards for
Closed Captioning. Currently there are
no standards for non-technical quality
aspects of closed captioning, such as
accuracy of transcription, spelling,
grammar, punctuation, placement,
identification of nonverbal sounds, popon or roll-up style, verbatim or edited
for reading speed, and type font. The
NPRM seeks comment on certain
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aspects of non-technical quality issues,
including whether the Commission
should establish standards for the nontechnical quality of closed captioning;
are there non-technical quality issues
other than those noted above that the
Commission should consider; are there
reasons not to set standards for nontechnical quality aspects of closed
captioning; what would the costs be to
programmers and distributors of
mandating non-technical quality
standards; and does the captioning pool
consist of an adequate number of
competent captioners to meet a nontechnical quality standard mandate. The
NPRM also seeks comment on whether
any non-technical quality standards
should be different for pre-produced
programs versus live programs. The
NPRM seeks comment on what would
constitute an ‘‘error,’’ whether specific
allowable error rates should be adopted
and, if so, what error rates would be
appropriate.
Technical Quality Standards. In the
Closed Captioning Report and Order,
the Commission adopted a ‘‘pass
through’’ rule to ensure that
programming with closed captions is
delivered in a complete manner with
the belief that the enforcement of this
rule, the captioning requirements, and
§§ 15.119 and 73.682 of the
Commission’s rules would ensure the
technical quality of captioning. Section
15.119 of the Commission’s rules sets
forth the closed caption decoder
requirements for analog television
receivers, and § 73.682 of the
Commission’s rules sets forth television
transmission standards. The ‘‘pass
through’’ rule requires video
programming providers to ‘‘pass
through any captioning they receive that
is included with the video programming
they distribute as long as the captions
do not need to be reformatted.’’ The
NPRM seeks comment on the need for
additional mechanisms and procedures
in addition to the ‘‘pass through’’ rule
to prevent technical problems from
occurring and to expeditiously remedy
any technical problems that do arise.
Are such mechanisms and procedures
warranted? If so, what form should they
take? The NPRM seeks comment on the
kinds of technical problems experienced
by consumers as well as distributors.
Monitoring of Captioning. In the
Closed Captioning Report and Order,
the Commission did not establish
specific rules or steps that video
programming distributors would be
required to follow to ensure the delivery
of captions and to make sure that the
equipment used is working properly.
The NPRM seeks comment on video
programming distributors’ responsibility
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to monitor and maintain their
equipment and signal transmissions.
Should distributors have specific
mechanisms in place for monitoring and
maintenance of captioning? If so, what
should these mechanisms consist of?
What impact would such mechanisms
have on distributors? The NPRM also
seeks comment on alternate ways to
ensure that captioning is delivered
intact to consumers. Lastly, the NPRM
seeks comment on whether distributors
are monitoring their programming and
advertising materials to ensure that a
program advertised to be closed
captioned is indeed closed captioned.
Complaint Procedures. The NPRM
seeks comment on whether the
Commission should revise the current
rule to allow for shorter complaint and
complaint response times. The NPRM
seeks comment on what those time
frames should be, and seeks comment
on whether complainants should be
permitted to complain directly to the
Commission without complaining to the
video programming distributor first. If
the Commission decides to retain the
current complaint process, the NPRM
seeks comment on whether the filing
and response deadlines should be
revised.
Accessibility of Contact Information.
The NPRM seeks comment on whether
video programming distributors should
be required to post complete contact
information on their Web sites, update
this information on a routine basis, and
provide the information to the FCC for
posting on its Web site. The NPRM
seeks comment on the experiences that
deaf and hard of hearing people have
had when contacting video
programming distributors to complain
or ask questions, and seeks comment
from distributors regarding their
experiences in this area.
Standardized Captioning Complaint
Form. The NPRM seeks comment on
whether a standardized captioning
complaint form would be useful.
Fines and Penalties for Failure to
Caption. The Commission’s Forfeiture
Guidelines do not contain any specific
guidelines regarding forfeitures for
violations of the closed captioning rules.
The NPRM seeks comment on whether
the Commission should establish
specific per violation forfeiture amounts
for non-compliance with the captioning
rules, and if so, what those amounts
should be. The NPRM directs
commenters to § 1.80(b) of the
Commission’s rules for guidance on
existing forfeitures for violations of
other Commission rules.
Compliance Reports. In the Closed
Captioning Report and Order, the
Commission did not adopt reporting
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requirements for distributors or require
the filing of periodic reports showing
compliance with the closed captioning
rules. The NPRM seeks comment on
requiring video programming
distributors to file compliance reports as
to the amount of closed captioning they
provide. The NPRM asks if the
Commission should require such reports
to be filed, and if so, how often should
they be filed; how they should be filed;
whether the reports should include
information relating to new non-exempt
programming or only information
pertaining to pre-rule non-exempt and
Spanish-language programming; and
how a reporting requirement would be
implemented. In the event the
Commission were to impose a reporting
requirement for closed captioning, we
seek comment on whether distributors
would be able to rely on certifications
from programmers that the
programming contains closed
captioning. Are there alternative
methods to verify compliance? If a
reporting requirement is not imposed,
the NPRM seeks comment on whether
the Commission’s rules should be
amended to place a greater burden on
video programming distributors to
ensure that the programming they carry
is captioned, regardless of the
assurances they receive from
programmers.
Use of Electronic Newsroom
Technique. The Commission’s rules
prohibit the major national broadcast
networks (i.e., ABC, CBS, Fox and NBC),
affiliates of these networks in the top 25
television markets as defined by
Nielsen’s Designated Market Areas
(DMAs), and national nonbroadcast
networks serving at least 50% of all
homes subscribing to multi-channel
video programming services, from
counting electronic newsroomcaptioned programming towards
compliance with the closed captioning
rules. The NPRM seeks comment on
whether to extend the prohibition of
counting ENT generated captions to
markets beyond the top 25 DMAs. The
NPRM also seeks comment on whether
the rationale that led to the Commission
permitting the use of ENT by some
distributors, due to ENT’s lower cost, is
still relevant. Have captioning costs
decreased such that little hardship
would result if the Commission were to
further limit the circumstances under
which captions created using electronic
newsroom technique would be allowed
to count as captioned programming?
Availability of Captioners. The NPRM
seeks comment on the supply of
captioners available for real-time and
pre-recorded captioning. The NPRM
also seeks comment on the number of
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56153
companies providing closed captioning
services, and on the impact that
imposing a quality standard, if adopted,
will have on the supply of captioners.
Electronic Filing of Exemption
Requests. Currently, § 79.1 of the
Commission’s rules requires that a
petition for a full or partial exemption
from the closed captioning requirements
based on an undue burden must be filed
with the Commission in writing, placed
on public notice, and permit interested
persons to file comments or oppositions
to the petition. Due to the nature of this
process, the petition itself is generally
not available electronically, unless a
disk containing an electronic version of
the petition is submitted. The NPRM
seeks comment on requiring electronic
filing for petitions for exemption from
the Commission’s closed captioning
rules under the undue burden standard
of § 79.1(f) of the Commission’s rules.
What impact would such a requirement
have on entities filing such petitions, as
well as on parties, including consumers,
wishing to file comments or oppositions
to the petition? The NPRM seeks
comment on whether electronic filing
should be mandated or merely allowed,
and on whether an electronic filing
requirement would reduce the
perceived delay in processing such
petitions.
Initial Regulatory Flexibility Analysis
As required by the Regulatory
Flexibility Act of 1980, as amended, the
Commission has prepared this Initial
Regulatory Flexibility Analysis (IRFA)
of the possible significant economic
impact on a substantial number of small
entities by the policies and rules
proposed in the NPRM. Written public
comments are requested on this IRFA.
(See 5 U.S.C. 603). The RFA, see 5
U.S.C. 601–612, has been amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA), Public Law Number 104–
121, Title II, 110 Statute 857 (1996).
Comments must be identified as
responses to the IRFA and must be filed
by the deadlines for comments on the
NPRM provided in the item. The
Commission will send a copy of this
entire NPRM, including this IRFA, to
the Chief Counsel for Advocacy of the
Small Business Administration (SBA).
See 5 U.S.C. 603(a)). In addition, the
NPRM and the IRFA (or summaries
thereof) will be published in the Federal
Register. (See 5 U.S.C. 603(a)).
A. Need For, and Objectives of, the
Proposed Rules
We initiate this review relating to
closed captioning in response to several
compliance and quality issues raised in
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a Petition for Rulemaking filed by
Telecommunications for the Deaf, Inc.,
the National Association of the Deaf,
Self Help for Hard of Hearing People,
Inc., the Association for Late Deafened
Adults, and the Deaf and Hard of
Hearing Consumer Advocacy Network.
This rulemaking proceeding will
examine the current status of the
Commission’s closed captioning rules
with the goal of ensuring that video
programming is accessible to deaf and
hard of hearing Americans. This NPRM
also serves as a follow-up to the
Commission’s prior assurances at the
time the closed captioning rules were
adopted that certain captioning
provisions would be reviewed and
evaluated at a future date. As described
more fully below, this NPRM seeks to
determine whether any revisions should
be made to enhance the effectiveness of
those rules. In particular, the NPRM
seeks comment on establishing
standards for the non-technical quality
of closed captioning, the potential costs
of such standards for programmers and
distributors, the availability of
competent captioners to meet a nontechnical quality standard mandate, and
establishing different non-technical
quality standards for pre-produced
versus live programming. In addition,
the NPRM seeks comment on whether
additional mechanisms and procedures,
beyond those already in the
Commission’s rules, are necessary to
prevent technical problems from
occurring and to expeditiously remedy
any technical problems that do arise.
The NPRM also seeks comment on video
programming distributors’ responsibility
to monitor and maintain their
equipment and signal transmissions,
and whether specific mechanisms
should be established for monitoring
and maintenance. Additionally, the
NPRM seeks comment on whether to
revise the current rule to allow for
shorter complaint and response times,
what those time frames should be, and
whether complainants should be
permitted to complain directly to the
Commission without complaining to the
video programming distributor first.
Further, the NPRM seeks comment on
requiring video programming
distributors to file compliance reports as
to the amount of closed captioning they
provide, and any alternative methods
available to verify compliance.
B. Legal Basis
The authority for this NPRM is
contained in sections 4(i), 303(r) and
713 of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i), 303(r) and
713.
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C. Description and Estimate of the
Number of Small Entities Impacted
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 and policies, if adopted. (5 U.S.C.
603(b)(3)). The RFA generally defines
the term ‘‘small entity’’ as having the
same meaning as the terms ‘‘small
business,’’ ‘‘small organization,’’ and
‘‘small governmental jurisdiction.’’ (5
U.S.C. 601(6)). In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act. (5 U.S.C.
601(3) (incorporating by reference the
definition of ‘‘small-business concern’’
in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), 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’’). A ‘‘small
business concern’’ is one which: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the SBA. (15 U.S.C. 632).
Cable and Other Program
Distribution. This category includes
among others, cable systems operators,
closed circuit television services, direct
broadcast satellite services, home
satellite dish services, multipoint
distribution systems, multichannel
multipoint distribution service, satellite
master antenna television systems, and
subscription television services. The
SBA has developed a small business
size standard for this census category,
which includes all such companies
generating $12.5 million or less in
revenue annually. (13 CFR 121.201,
NAICS code 513220; changed to 517510
in October 2002). According to Census
Bureau data for 1997, there were a total
of 1,311 firms in this category that had
operated for the entire year. (U.S.
Census Bureau, 1997 Economic Census,
Subject Series: Information,
‘‘Establishment and Firm Size
(Including Legal Form of
Organization),’’ Table 4, NAICS code
513220 (issued October 2000)). Of this
total, 1,180 firms had annual receipts of
under $10 million and an additional 52
firms had receipts of $10 million or
more but less than $25 million.
Consequently, the Commission
estimates that the majority of providers
in this service category are small
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businesses that may be affected by the
rules and policies involved herein.
Cable and Other Subscription
Programming. Entities in this category
‘‘primarily engag[e] in operating studios
and facilities for the broadcasting of
programs on a subscription or fee basis.
The broadcast programming is typically
narrowcast in nature (e.g., limited
format, such as news, sports, education,
or youth-oriented). These
establishments produce programming in
their own facilities or acquire
programming from external sources.’’
(U.S. Census Bureau, ‘‘2002 NAICS
Definitions: 515210 Cable and Other
Subscription Programming’’ (online,
July 2005, at https://www.census.gov)).
The SBA has developed a small
business size standard for this category;
that size standard is $12.5 million or
less in average annual receipts. (13 CFR
121.201, NAICS code 515210; changed
from 513210 in October 2002).
According to Census Bureau data for
1997, there were 234 firms in this
category that operated for the entire
year. (U.S. Census Bureau, 1997
Economic Census, Subject Series:
Information, ‘‘Establishment and Firm
Size (Including Legal Form of
Organization),’’ Table 4, NAICS code
513210 (issued October 2000)). Of these,
188 had annual receipts of under $10
million, and an additional 16 firms had
receipts of between $10 million and
$24,999,999. Consequently, we estimate
that the majority of these firms are small
entities that may be affected by our
action. In addition, limited preliminary
census data for 2002 indicate that the
total number of Cable and Other
Subscription Programming entities
increased approximately 44.5 percent
from 1997 to 2002. See U.S. Census
Bureau, 2002 Economic Census,
Industry Series: ‘‘Information,’’ Table 2,
Comparative Statistics for the United
States (1997 NAICS Basis): 2002 and
1997, NAICS code 513210 (issued
December 2004). The preliminary data
indicate that the total number of
‘‘establishments’’ increased from 494 to
714. Data related to thenumber of
‘‘firms,’’ which takes into account the
concept of common ownership or
control, and includes employment and
receipts numbers, will be issued in late
2005.
Cable System Operators (Rate
Regulation Standard). The Commission
has developed its own small business
size standard for cable system operators,
for purposes of rate regulation. Under
the Commission’s rules, a ‘‘small cable
company’’ is one serving fewer than
400,000 subscribers nationwide. (47
CFR 76.901(e)). The Commission
developed this definition based on its
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determination that a small cable system
operator is one with annual revenues of
$100 million or less. Implementation of
Sections of the 1992 Cable Act: Rate
Regulation, Sixth Report and Order and
Eleventh Order on Reconsideration, 10
FCC Rcd 7393, published at 60 FR
10534, February 27, 1995. The most
recent estimates indicate that there were
1,439 cable operators who qualified as
small cable system operators at the end
of 1995. (Paul Kagan Associates, Inc.,
Cable TV Investor, February 29, 1996;
based on figures for December 30, 1995).
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, the
Commission estimates that there are
now fewer than 1,439 small entity cable
system operators that may be affected by
the rules and policies involved herein.
Cable System Operators (Telecom Act
Standard). The Communications Act of
1934, as amended, also contains a size
standard for small cable system
operators, which is ‘‘a cable operator
that, directly or through an affiliate,
serves in the aggregate fewer than 1
percent of all subscribers in the United
States and is not affiliated with any
entity or entities whose gross annual
revenues in the aggregate exceed
$250,000,000. (47 U.S.C. 543(m)(2)). The
Commission has determined that there
are 67,700,000 subscribers in the United
States. See FCC Announces New
Subscriber Count for the Definition of
Small Cable Operator, Public Notice, DA
01–158 (released January 24, 2001).
Therefore, an operator serving fewer
than 677,000 subscribers shall be
deemed a small operator, if its annual
revenues, when combined with the total
annual revenues of all its affiliates, do
not exceed $250 million in the
aggregate. (47 CFR 76.901(f)). Based on
available data, the Commission
estimates that the number of cable
operators serving 677,000 subscribers or
fewer, totals 1,450. See FCC Announces
New Subscriber Count for the Definition
of Small Cable Operator, Public Notice,
DA 01–158 (released January 24, 2001).
The Commission neither requests nor
collects information on whether cable
system operators are affiliated with
entities whose gross annual revenues
exceed $250 million, and therefore is
unable, at this time, to estimate more
accurately the number of cable system
operators that would qualify as small
cable operators under the size standard
contained in the Communications Act of
1934. The Commission does receive
such information on a case-by-case basis
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if a cable operator appeals a local
franchise authority’s finding that the
operator does not qualify as a small
cable operator pursuant to § 76.901(f) of
the Commission’s rules. See 47 CFR
909(b).
Cable Television Relay Service. This
service includes transmitters generally
used to relay cable programming within
cable television system distribution
systems. The SBA has defined a small
business size standard for Cable and
other Program Distribution, consisting
of all such companies having annual
receipts of no more than $12.5 million.
(13 CFR 121.201, NAICS code 517510).
According to Census Bureau data for
1997, there were 1,311 firms in the
industry category Cable and Other
Program Distribution, total, that
operated for the entire year. (U.S.
Census Bureau, 1997 Economic Census,
Subject Series: Information,
‘‘Establishment and Firm Size
(Including Legal Form of
Organization)’’, Table 4 (issued October
2000)). Of this total, 1,180 firms had
annual receipts of $10 million or less,
and an additional 52 firms had receipts
of $10 million or more but less than $25
million. (U.S. Census Bureau, 1997
Economic Census, Subject Series:
Information, ‘‘Establishment and Firm
Size (Including Legal Form of
Organization)’’, Table 4 (issued October
2000)). Thus, under this standard, we
estimate that the majority of providers
in this service category are small
businesses that may be affected by the
rules and policies involved herein.
Direct Broadcast Satellite (DBS)
Service. DBS service is a nationally
distributed subscription service that
delivers video and audio programming
via satellite to a small parabolic ‘‘dish’’
antenna at the subscriber’s location.
Because DBS provides subscription
services, DBS falls within the SBArecognized definition of Cable and
Other Program Distribution. (13 CFR
121.201, NAICS code 517510). This
definition provides that a small entity is
one with $12.5 million or less in annual
receipts. (13 CFR 121.201, NAICS code
517510). Currently, only four operators
hold licenses to provide DBS service,
which requires a great investment of
capital for operation. All four currently
offer subscription services. Two of these
four DBS operators, DirecTV, and
EchoStar Communications Corporation
(EchoStar), report annual revenues that
are in excess of the threshold for a small
business. DirecTV is the largest DBS
operator and the second largest MVPD,
serving an estimated 13.04 million
subscribers nationwide. See Annual
Assessment of Status of Competition in
the Market for the Delivery of Video
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56155
Programming, Eleventh Annual Report,
FCC 05–13, paragraph 55 (released
February 4, 2005) (2005 Cable
Competition Report). EchoStar, which
provides service under the brand name
Dish Network, is the second largest DBS
operator and the fourth largest MVPD,
serving an estimated 10.12 million
subscribers nationwide. A third
operator, Rainbow DBS, is a subsidiary
of Cablevision’s Rainbow Network,
which also reports annual revenues in
excess of $12.5 million, and thus does
not qualify as a small business.
(Rainbow DBS, which provides service
under the brand name VOOM, reported
an estimated 25,000 subscribers).
The fourth DBS operator, Dominion
Video Satellite, Inc. (Dominion), offers
religious (Christian) programming and
does not report its annual receipts.
(Dominion, which provides service
under the brand name Sky Angel, does
not publicly disclose its subscribership
numbers on an annualized basis). The
Commission does not know of any
source that provides this information
and, thus, we the Commission has no
way of confirming whether Dominion
qualifies as a small business. Because
DBS service requires significant capital,
we believe it is unlikely that a small
entity as defined by the SBA would
have the financial wherewithal to
become a DBS licensee. Nevertheless,
given the absence of specific data on
this point, we acknowledge the
possibility 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.
Local Multipoint Distribution Service.
Local Multipoint Distribution Service
(LMDS) is a fixed broadband point-tomultipoint microwave service that
provides for two-way video
telecommunications. (See Rulemaking
to Amend parts 1, 2, 21, and 25 of the
Commission’s rules to Redesignate the
27.5–29.5 GHz Frequency Band,
Reallocate the 29.5–30.5 Frequency
Band, to Establish Rules and Policies for
Local Multipoint Distribution Service
and for Fixed Satellite Services, Second
Report and Order, Order on
Reconsideration, and Fifth Notice of
Proposed Rule Making, FCC 97–82, 12
FCC Rcd 12545, 12689 through 12690,
paragraph 348 (1997), published at 62
FR 23148, April 29, 1997). The auction
of the 986 Local Multipoint Distribution
Service (LMDS) licenses began on
February 18, 1998 and closed on March
25, 1998. The Commission established a
small business size standard for LMDS
licenses as an entity that has average
gross revenues of less than $40 million
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in the three previous calendar years. An
additional small business size standard
for ‘‘very small business’’ was added as
an entity that, together with its affiliates,
has average gross revenues of not more
than $15 million for the preceding three
calendar years.
The SBA has approved these small
business size standards in the context of
LMDS auctions. (See Letter to Dan
Phythyon, Chief, Wireless
Telecommunications Bureau, FCC, from
Aida Alvarez, Administrator, SBA
(January 6, 1998)). There were 93
winning bidders that qualified as small
entities in the LMDS auctions. A total of
93 small and very small business
bidders won approximately 277 A Block
licenses and 387 B Block licenses. On
March 27, 1999, the Commission reauctioned 161 licenses; there were 32
small and very small businesses
winning that won 119 licenses.
Multipoint Distribution Service,
Multichannel Multipoint Distribution
Service, and Instructional Television
Fixed Service. Multichannel Multipoint
Distribution Service (MMDS) systems,
often referred to as ‘‘wireless cable,’’
transmit video programming to
subscribers using the microwave
frequencies of the Multipoint
Distribution Service (MDS) and
Instructional Television Fixed Service
(ITFS). (Amendment of parts 21 and 74
of the Commission’s rules with Regard
to Filing Procedures in the Multipoint
Distribution Service and in the
Instructional Television Fixed Service
and Implementation of Section 309(j) of
the Communications Act—Competitive
Bidding, Report and Order, FCC 95–230,
10 FCC Rcd 9589 and 9593, paragraph
7 (1995), published at 60 FR 36524, July
17, 1995 (MDS Auction R&O)). In
connection with the 1996 MDS auction,
the Commission defined ‘‘small
business’’ as an entity that, together
with its affiliates, has average gross
annual revenues that are not more than
$40 million for the preceding three
calendar years. (47 CFR 21.961(b)(1)).
The SBA has approved of this standard.
(See Letter to Margaret Wiener, Chief,
Auctions and Industry Analysis
Division, Wireless Telecommunications
Bureau, FCC, from Gary Jackson,
Assistant Administrator for Size
Standards, Small Business
Administration, dated March 20, 2003
(noting approval of $40 million size
standard for MDS auction)). The MDS
auction resulted in 67 successful
bidders obtaining licensing
opportunities for 493 Basic Trading
Areas (BTAs). (Basic Trading Areas
(BTAs) were designed by Rand McNally
and are the geographic areas by which
MDS was auctioned and authorized. See
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MDS Auction R&O, 10 FCC Rcd 9608,
paragraph 34). Of the 67 auction
winners, 61 claimed status as a small
business. At this time, the Commission
estimates that of the 61 small business
MDS auction winners, 48 remain small
business licensees. In addition to the 48
small businesses that hold BTA
authorizations, there are approximately
392 incumbent MDS licensees that have
gross revenues that are not more than
$40 million and are thus considered
small entities. (47 U.S.C. 309(j)).
Hundreds of stations were licensed to
incumbent MDS licensees prior to
implementation of section 309(j) of the
Communications Act of 1934, 47 U.S.C.
309(j). For these pre-auction licenses,
the applicable standard is SBA’s small
business size standard for ‘‘other
telecommunications’’ (annual receipts
of $12.5 million or less). See 13 CFR
121.201, NAICS code 517910).
Concerning ITFS, the Commission
notes that educational institutions are
included in this analysis as small
entities.
The term ‘‘small entity’’ under
SBREFA applies to small organizations
(nonprofits) and to small governmental
jurisdictions (cities, counties, towns,
townships, villages, school districts, and
special districts with populations of less
than 50,000). 5 U.S.C. 601(4)–(6). The
Commission does not collect annual
revenue data on ITFS licensees. There
are currently 2,032 ITFS licensees, and
all but 100 of these licenses are held by
educational institutions. Thus, the
Commission tentatively concludes that
at least 1,932 ITFS licensees are small
businesses.
Open Video Services. Open Video
Service (OVS) systems provide
subscription services. (See 47 U.S.C.
573). The SBA has created a small
business size standard for Cable and
Other Program Distribution. (13 CFR
121.201, NAICS code 513220 (changed
to 517510 in October 2002)). This
standard provides that a small entity is
one with $12.5 million or less in annual
receipts. The Commission has certified
approximately 100 OVS operators to
serve 75 areas, and some of these are
currently providing service. (See https://
www.fcc.gov/csb/ovs/csovscer.html
(current as of June 2004)). Affiliates of
Residential Communications Network,
Inc. (RCN) received approval to operate
OVS systems in New York City, Boston,
Washington, DC, and other areas. RCN
has sufficient revenues to assure that
they do not qualify as a small business
entity. Little financial information is
available for the other entities that are
authorized to provide OVS and are not
yet operational. Given that some entities
authorized to provide OVS service have
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not yet begun to generate revenues, the
Commission concludes that those OVS
operators remaining might qualify as
small businesses that may be affected by
the rules and policies proposed herein.
Television Broadcasting. The SBA
defines a television broadcasting station
as a small business if such station has
no more than $12 million in annual
receipts. (See 13 CFR 121.201, NAICS
Code 515120 (adopted October 2002)).
Business concerns included in this
industry are those ‘‘primarily engaged in
broadcasting images together with
sound.’’ (NAICS Code 515120). This
category description continues, ‘‘These
establishments operate television
broadcasting studios and facilities for
the programming and transmission of
programs to the public. These
establishments also produce or transmit
visual programming to affiliated
broadcast television stations, which in
turn broadcast the programs to the
public on a predetermined schedule.
Programming may originate in their own
studios, from an affiliated network, or
from external sources.’’ Separate census
categories pertain to businesses
primarily engaged in producing
programming. (See Motion Picture and
Video Production, NAICS code 512110;
Motion Picture and Video Distribution,
NAICS Code 512120; Teleproduction
and Other Post-Production Services,
NAICS Code 512191; and Other Motion
Picture and Video Industries, NAICS
Code 512199). According to
Commission staff review of the BIA
Publications, Inc. Master Access
Television Analyzer Database as of June
26, 2004, about 860 of the 1,270
commercial television stations in the
United States have revenues of $12
million or less. The Commission notes,
however, that, in assessing whether a
business concern qualifies as small
under the above definition, business
(control) affiliations must be included.
‘‘[Business concerns] are affiliates of
each other when one concern controls
or has the power to control the other or
a third party or parties controls or has
power to control both.’’ 13 CFR
121.103(a)(1). The Commission’s
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. There are also
2,127 low power television stations
(LPTV). (FCC News Release, ‘‘Broadcast
Station Totals as of September 30,
2002’’). Given the nature of this service,
we will presume that all LPTV licensees
qualify as small entities under the SBA
definition.
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In addition, an element of the
definition of ‘‘small business’’ is that the
entity not be dominant in its field of
operation. The Commission is unable at
this time to define or quantify the
criteria that would establish whether a
specific television station is dominant
in its field of operation. Accordingly,
the estimate of small businesses to
which rules may apply does not exclude
any television station from the
definition of a small business on this
basis and is therefore 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.
The Commission notes 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.
D. Description of Projected Reporting,
Recordkeeping and Other Compliance
Requirements
The proposed rules may impose
additional reporting or recordkeeping
requirements on a number of different
entities. For example, the NPRM
discusses whether video programming
distributors should be required to
submit reports to the Commission
certifying that they are complying with
monitoring and maintenance of
equipment and signal transmissions. In
addition the NPRM asks whether video
programming distributors should be
required to file compliance reports as to
the amount of closed captioning they
provide. These proposals may impose
additional reporting or recordkeeping
requirements on entities. The
Commission seeks comment on the
possible burden these requirements
would place on small entities. Also, the
Commission seeks comment on whether
a special approach toward any possible
compliance burdens on small entities
might be appropriate.
E. 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,
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standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities. (5 U.S.C. 603(b)). The
Commission seeks comment on whether
it should indeed be the responsibility of
the video programming distributor to
monitor and maintain equipment and
signal transmissions and asks if specific
mechanisms should be in place and
what would be the impact of such
mechanisms on distributors. The NPRM
notes that, alternatively, the National
Cable and Telecommunications
Association (NCTA) points out that a
distributor’s responsibilities should not
be unduly burdensome and invites
comment on this matter. The NPRM also
proposes providing a standardized
captioning complaint form for
consumers, which may be a useful tool
to those filing complaints. In addition,
the NPRM discusses allowing
consumers to complain to video
programming distributors via e-mail,
phone or fax, which is aimed at
providing easier options for consumers
who have concerns regarding captioning
problems and seek more immediate
redress. The NPRM also points out that
effective January 1, 2006, all nonexempt
new English language programming
must be captioned. Video programming
distributors and providers will have to
caption their programming. Generally,
100% compliance is required; however,
particular entities, and under certain
circumstances small entities, may be
exempt from the captioning
requirements if they qualify for an
exemption pursuant to § 79.1(d) of the
Commission rules, which provides for
exempt programs and providers meeting
the particular qualifications cited in the
rule, and/or if captioning presents an
undue burden pursuant to § 79.1(f) of
the Commission’s rule, which allows
parties to file a petition with the
Commission requesting an exemption
from captioning upon a sufficient
showing that captioning would pose
significant difficulty or expense.
F. Federal Rules Which Duplicate,
Overlap, or Conflict With, the
Commission’s Proposals
None.
Ordering Clauses
Pursuant to sections 4(i), 303(r) and
713 of the Communications Act of 1934,
as amended, 47 U.S.C. 154(i), 303(r) and
713, this Notice of Proposed
Rulemaking is hereby adopted.
The Commission’s Consumer &
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Notice of Proposed Rulemaking,
including the Initial Regulatory
Flexibility Analysis, to the Chief
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56157
Counsel for Advocacy of the Small
Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05–19161 Filed 9–23–05; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 050915240–5240–01; I.D.
090905A]
RIN 0648–AS66
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Gulf of
Mexico Essential Fish Habitat
Amendment
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
SUMMARY: NMFS issues this proposed
rule to implement Generic Amendment
3 to the Fishery Management Plans
(FMPs) of the Gulf of Mexico (EFH
Amendment 3) prepared by the Gulf of
Mexico Fishery Management Council
(Council). EFH Amendment 3 would
amend each of the seven Council FMPs
-shrimp, red drum, reef fish, coastal
migratory pelagic resources, coral and
coral reefs, stone crab, and spiny
lobster- to describe and identify
essential fish habitat (EFH); minimize to
the extent practicable the adverse effects
of fishing on EFH; and encourage
conservation and management of EFH.
This proposed rule would establish
additional habitat areas of particular
concern (HAPCs), restrict fishing
activities within HAPCs to protect EFH,
and require a weak link in bottom trawl
gear to protect EFH. The intended effect
of this proposed rule is to facilitate longterm protection of EFH and, thus, better
conserve and manage fishery resources
in the Gulf of Mexico.
DATES: Written comments on the
proposed rule must be received no later
than 5 p.m., eastern time, on November
10, 2005.
ADDRESSES: You may submit comments
on the proposed rule by any of the
following methods:
• E-mail: 0648–
AS66.Proposed@noaa.gov. Include in
the subject line the following document
identifier: 0648–AS66.
E:\FR\FM\26SEP1.SGM
26SEP1
Agencies
[Federal Register Volume 70, Number 185 (Monday, September 26, 2005)]
[Proposed Rules]
[Pages 56150-56157]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19161]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 79
[CG Docket No. 05-231; FCC 05-142]
Closed Captioning of Video Programming; Telecommunications for
the Deaf, Inc. Petition for Rulemaking
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission grants a petition for
rulemaking and initiates a proceeding to examine the Commission's
closed captioning rules. Specifically, the Commission seeks comment on
the current status of the Commission's closed captioning rules in
ensuring that video programming is accessible to deaf and hard of
hearing Americans and whether any revisions should be made to enhance
the effectiveness of those rules; and several compliance and quality
issues relating to closed captioning that were raised in a Petition for
Rulemaking filed by Telecommunications for the Deaf, Inc., (TDI), the
National Association of the Deaf, Self Help for Hard of Hearing People,
Inc., the Association for Late Deafened Adults, and the Deaf and Hard
of Hearing Consumer Advocacy Network.
DATES: Comments are due on or before November 10, 2005. Reply comments
are due on or before November 25, 2005. Written comments on the
Paperwork Reduction Act (PRA) proposed information collection
requirements must be submitted by the general public, Office of
Management and Budget (OMB), and other interested parties on or before
November 25, 2005.
ADDRESSES: You may submit comments, identified by [docket number and/or
rulemaking number], by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: https://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
[[Page 56151]]
People with Disabilities: Contact the FCC to request reasonable
accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone (202) 418-
0539 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document. In addition, a copy of any
comments on the Paperwork Reduction Act (PRA) information collection
requirements contained herein should be submitted to Leslie Smith,
Federal Communications Commission, Room 1-A804, 445 12th Street, SW.,
Washington, DC 20554, or via the Internet to Leslie.Smith@fcc.gov, and
to Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th
Street, NW., Washington, DC 20503, via the Internet to Kristy--L.--
LaLonde@omb.eop.gov, or via fax at (202) 395-5167.
FOR FURTHER INFORMATION CONTACT: Amelia Brown, Consumer & Governmental
Affairs Bureau, Disability Rights Office at (202) 418-2799 (voice),
(202) 418-0597 (TTY), or e-mail at Amelia.Brown@fcc.gov. For additional
information concerning the Paperwork Reduction Act information
collection requirements contained in the document, contact Leslie Smith
at (202) 418-0217, or via the Internet at Leslie.Smith@fcc.gov.
SUPPLEMENTARY INFORMATION: The Notice of Proposed Rulemaking (NPRM),
Closed Captioning of Video Programming; Telecommunications for the
Deaf, Inc. Petition for Rulemaking, CG Docket No. 05-231, FCC 05-142,
contains proposed information collection requirements subject to the
PRA of 1995, Public Law 104-13. It will be submitted to the Office of
Management and Budget (OMB) for review under Section 3507 of the PRA.
OMB, the general public, and other Federal agencies are invited to
comment on the proposed information collection requirements contained
in this proceeding. This is a summary of the Commission's NPRM, FCC 05-
142, adopted July 14, 2005, and released July 21, 2005, in CG Docket
No. 05-231.
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415 and 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using: (1) The Commission's Electronic
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking
Portal, or (3) by filing paper copies. See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: https://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: https://www.regulations.gov. Filers
should follow the instructions provided on the website for submitting
comments.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number, which in this instance
is CG Docket No. 05-231. Parties may also submit an electronic comment
by Internet e-mail. To get filing instructions, filers should send an
e-mail to ecfs@fcc.gov, and include the following words in the body of
the message, ``get form .'' A sample form and
directions will be sent in response.
Paper Filers: 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 appears in the caption in this proceeding,
filers must submit two additional copies of 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). All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
The Commission's contractor 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 mail 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, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
Comments and reply comments must include a short and concise
summary of the substantive discussion and questions raised in the NPRM.
The Commission further directs all interested parties to include the
name of the filing party and the date of the filing on each page of
their comments and reply comments. The Commission strongly encourages
that parties track the organization set forth in this NPRM in order to
facilitate the Commission's internal review process. Comments and reply
comments must otherwise comply with Sec. 1.48 of the Commission's
rules and all other applicable sections of the Commission's rules. (See
47 CFR 1.48).
Pursuant to Sec. 1.1200 of the Commission's rules, 47 CFR 1.1200,
this matter shall be treated as a ``permit-but-disclose'' proceeding in
which ex parte communications are subject to disclosure. Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentations must contain summaries of the substance of the
presentation 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. Other requirements pertaining to oral
and written presentations are set forth in Sec. 1.1206 (b) of the
Commission's rules.
People with Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, 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).
Initial Paperwork Reduction Act of 1995 Analysis
The NPRM contains proposed information collection requirements. 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 requirements
contained in this document, as required by the Paperwork Reduction Act
of 1995, Public Law 104-13. Public and agency comment are due November
25, 2005. 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
[[Page 56152]]
respondents, including the use of automated collection techniques or
other forms of information technology. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506 (c)(4), the Commission we seeks specific comment on how it
may ``further reduce the information collection burden for small
business concerns with fewer than 25 employees.''
OMB Control Number: 3060-0761.
Title: Section 79.1 Closed Captioning of Video Programming.
Form No.: N/A.
Type of Review: Revision of a currently approved collection.
Number of Respondents: 12,500 respondents--(11,500 Video
Programming Providers and 1,000 complainants)
Number of Responses: 50,950 responses.
Respondents: Individuals or households; business and other for-
profit entities; and not-for-profit institutions.
Estimated Time per response: 30 minutes (0.50 hours) to 10 hours.
Frequency of Response: On occasion reporting requirement;
recordkeeping; third party disclosure.
Total Annual Burden: 202,215 hours.
Total Annual Costs: $500,000.
Privacy Act Impact Assessment: Yes.
Needs and Uses: On July 21, 2005, the Commission released a Notice
of Proposed Rulemaking (NPRM), CG Docket No. 05-231, which initiates a
rulemaking to examine the current status of the Commission's closed
captioning rules (47 CFR 79.1) with the goal of ensuring that video
programming is accessible to deaf and hard of hearing Americans. The
NPRM seeks to determine whether any revisions should be made to enhance
the effectiveness of those rules. The NPRM seeks comment on
establishing standards for the non-technical quality of closed
captioning, the potential costs of such standards for programmers and
distributors, the availability of competent captioners to meet a non-
technical quality standard mandate, and establishing different non-
technical quality standards for pre-produced versus live programming.
In addition, the NPRM seeks comment on whether additional mechanisms
and procedures, beyond those already in the Commission's rules, are
necessary to prevent technical problems from occurring and to
expeditiously remedy any technical problems that do arise. The NPRM
also seeks comment on video programming distributors' responsibility to
monitor and maintain their equipment and signal transmissions, and
whether specific mechanisms should be established for monitoring and
maintenance. Additionally, the NPRM seeks comment on whether to revise
the current rule to allow for shorter complaint and response times,
what those time frames should be, and whether complainants should be
permitted to complain directly to the Commission without complaining to
the video programming distributor first. Further, the NPRM seeks
comment on requiring video programming distributors to file compliance
reports as to the amount of closed captioning they provide, and any
alternative methods available to verify compliance. The information
collection requirements include the proposed requirements contained in
the NPRM.
Synopsis
The NPRM grants a Petition for Rulemaking that was filed by TDI and
several organizations representing deaf and hard of hearing consumers
and seeks comment on several issues pertaining to closed captioning.
The Commission first adopted rules for closed captioning of video
programming in 1997. (See Closed Captioning and Video Description of
Video Programming, Implementation of Section 305 of the
Telecommunications Act of 1996, Video Programming Accessibility, MM
Docket No. 95-176, Report and Order, 13 FCC Rcd 3272 (August 22, 1997),
published at 62 FR 48487, September 16, 1997), (Closed Captioning
Report and Order).
The closed captioning rules are found at 47 CFR 79.1, and apply to
any television broadcast station licensed by the Commission, any multi-
channel video programming distributor (MVPD), and any other distributor
of video programming for residential reception that delivers such
programming directly to the home and is subject to the jurisdiction of
the Commission. Examples of MVPDs include cable operators, multi-
channel multipoint distribution services, direct broadcast satellite
services, television receive-only satellite program distributors, and
satellite master antenna television system operators. We note that
telephone companies providing video programming to the home are subject
to Sec. 79.1 of the Commission's rules.
Non-technical Quality Standards for Closed Captioning. Currently
there are no standards for non-technical quality aspects of closed
captioning, such as accuracy of transcription, spelling, grammar,
punctuation, placement, identification of nonverbal sounds, pop-on or
roll-up style, verbatim or edited for reading speed, and type font. The
NPRM seeks comment on certain aspects of non-technical quality issues,
including whether the Commission should establish standards for the
non-technical quality of closed captioning; are there non-technical
quality issues other than those noted above that the Commission should
consider; are there reasons not to set standards for non-technical
quality aspects of closed captioning; what would the costs be to
programmers and distributors of mandating non-technical quality
standards; and does the captioning pool consist of an adequate number
of competent captioners to meet a non-technical quality standard
mandate. The NPRM also seeks comment on whether any non-technical
quality standards should be different for pre-produced programs versus
live programs. The NPRM seeks comment on what would constitute an
``error,'' whether specific allowable error rates should be adopted
and, if so, what error rates would be appropriate.
Technical Quality Standards. In the Closed Captioning Report and
Order, the Commission adopted a ``pass through'' rule to ensure that
programming with closed captions is delivered in a complete manner with
the belief that the enforcement of this rule, the captioning
requirements, and Sec. Sec. 15.119 and 73.682 of the Commission's
rules would ensure the technical quality of captioning. Section 15.119
of the Commission's rules sets forth the closed caption decoder
requirements for analog television receivers, and Sec. 73.682 of the
Commission's rules sets forth television transmission standards. The
``pass through'' rule requires video programming providers to ``pass
through any captioning they receive that is included with the video
programming they distribute as long as the captions do not need to be
reformatted.'' The NPRM seeks comment on the need for additional
mechanisms and procedures in addition to the ``pass through'' rule to
prevent technical problems from occurring and to expeditiously remedy
any technical problems that do arise. Are such mechanisms and
procedures warranted? If so, what form should they take? The NPRM seeks
comment on the kinds of technical problems experienced by consumers as
well as distributors.
Monitoring of Captioning. In the Closed Captioning Report and
Order, the Commission did not establish specific rules or steps that
video programming distributors would be required to follow to ensure
the delivery of captions and to make sure that the equipment used is
working properly. The NPRM seeks comment on video programming
distributors' responsibility
[[Page 56153]]
to monitor and maintain their equipment and signal transmissions.
Should distributors have specific mechanisms in place for monitoring
and maintenance of captioning? If so, what should these mechanisms
consist of? What impact would such mechanisms have on distributors? The
NPRM also seeks comment on alternate ways to ensure that captioning is
delivered intact to consumers. Lastly, the NPRM seeks comment on
whether distributors are monitoring their programming and advertising
materials to ensure that a program advertised to be closed captioned is
indeed closed captioned.
Complaint Procedures. The NPRM seeks comment on whether the
Commission should revise the current rule to allow for shorter
complaint and complaint response times. The NPRM seeks comment on what
those time frames should be, and seeks comment on whether complainants
should be permitted to complain directly to the Commission without
complaining to the video programming distributor first. If the
Commission decides to retain the current complaint process, the NPRM
seeks comment on whether the filing and response deadlines should be
revised.
Accessibility of Contact Information. The NPRM seeks comment on
whether video programming distributors should be required to post
complete contact information on their Web sites, update this
information on a routine basis, and provide the information to the FCC
for posting on its Web site. The NPRM seeks comment on the experiences
that deaf and hard of hearing people have had when contacting video
programming distributors to complain or ask questions, and seeks
comment from distributors regarding their experiences in this area.
Standardized Captioning Complaint Form. The NPRM seeks comment on
whether a standardized captioning complaint form would be useful.
Fines and Penalties for Failure to Caption. The Commission's
Forfeiture Guidelines do not contain any specific guidelines regarding
forfeitures for violations of the closed captioning rules. The NPRM
seeks comment on whether the Commission should establish specific per
violation forfeiture amounts for non-compliance with the captioning
rules, and if so, what those amounts should be. The NPRM directs
commenters to Sec. 1.80(b) of the Commission's rules for guidance on
existing forfeitures for violations of other Commission rules.
Compliance Reports. In the Closed Captioning Report and Order, the
Commission did not adopt reporting requirements for distributors or
require the filing of periodic reports showing compliance with the
closed captioning rules. The NPRM seeks comment on requiring video
programming distributors to file compliance reports as to the amount of
closed captioning they provide. The NPRM asks if the Commission should
require such reports to be filed, and if so, how often should they be
filed; how they should be filed; whether the reports should include
information relating to new non-exempt programming or only information
pertaining to pre-rule non-exempt and Spanish-language programming; and
how a reporting requirement would be implemented. In the event the
Commission were to impose a reporting requirement for closed
captioning, we seek comment on whether distributors would be able to
rely on certifications from programmers that the programming contains
closed captioning. Are there alternative methods to verify compliance?
If a reporting requirement is not imposed, the NPRM seeks comment on
whether the Commission's rules should be amended to place a greater
burden on video programming distributors to ensure that the programming
they carry is captioned, regardless of the assurances they receive from
programmers.
Use of Electronic Newsroom Technique. The Commission's rules
prohibit the major national broadcast networks (i.e., ABC, CBS, Fox and
NBC), affiliates of these networks in the top 25 television markets as
defined by Nielsen's Designated Market Areas (DMAs), and national
nonbroadcast networks serving at least 50% of all homes subscribing to
multi-channel video programming services, from counting electronic
newsroom-captioned programming towards compliance with the closed
captioning rules. The NPRM seeks comment on whether to extend the
prohibition of counting ENT generated captions to markets beyond the
top 25 DMAs. The NPRM also seeks comment on whether the rationale that
led to the Commission permitting the use of ENT by some distributors,
due to ENT's lower cost, is still relevant. Have captioning costs
decreased such that little hardship would result if the Commission were
to further limit the circumstances under which captions created using
electronic newsroom technique would be allowed to count as captioned
programming?
Availability of Captioners. The NPRM seeks comment on the supply of
captioners available for real-time and pre-recorded captioning. The
NPRM also seeks comment on the number of companies providing closed
captioning services, and on the impact that imposing a quality
standard, if adopted, will have on the supply of captioners.
Electronic Filing of Exemption Requests. Currently, Sec. 79.1 of
the Commission's rules requires that a petition for a full or partial
exemption from the closed captioning requirements based on an undue
burden must be filed with the Commission in writing, placed on public
notice, and permit interested persons to file comments or oppositions
to the petition. Due to the nature of this process, the petition itself
is generally not available electronically, unless a disk containing an
electronic version of the petition is submitted. The NPRM seeks comment
on requiring electronic filing for petitions for exemption from the
Commission's closed captioning rules under the undue burden standard of
Sec. 79.1(f) of the Commission's rules. What impact would such a
requirement have on entities filing such petitions, as well as on
parties, including consumers, wishing to file comments or oppositions
to the petition? The NPRM seeks comment on whether electronic filing
should be mandated or merely allowed, and on whether an electronic
filing requirement would reduce the perceived delay in processing such
petitions.
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended,
the Commission has prepared this Initial Regulatory Flexibility
Analysis (IRFA) of the possible significant economic impact on a
substantial number of small entities by the policies and rules proposed
in the NPRM. Written public comments are requested on this IRFA. (See 5
U.S.C. 603). The RFA, see 5 U.S.C. 601-612, has been amended by the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
Public Law Number 104-121, Title II, 110 Statute 857 (1996). Comments
must be identified as responses to the IRFA and must be filed by the
deadlines for comments on the NPRM provided in the item. The Commission
will send a copy of this entire NPRM, including this IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration (SBA). See 5
U.S.C. 603(a)). In addition, the NPRM and the IRFA (or summaries
thereof) will be published in the Federal Register. (See 5 U.S.C.
603(a)).
A. Need For, and Objectives of, the Proposed Rules
We initiate this review relating to closed captioning in response
to several compliance and quality issues raised in
[[Page 56154]]
a Petition for Rulemaking filed by Telecommunications for the Deaf,
Inc., the National Association of the Deaf, Self Help for Hard of
Hearing People, Inc., the Association for Late Deafened Adults, and the
Deaf and Hard of Hearing Consumer Advocacy Network. This rulemaking
proceeding will examine the current status of the Commission's closed
captioning rules with the goal of ensuring that video programming is
accessible to deaf and hard of hearing Americans. This NPRM also serves
as a follow-up to the Commission's prior assurances at the time the
closed captioning rules were adopted that certain captioning provisions
would be reviewed and evaluated at a future date. As described more
fully below, this NPRM seeks to determine whether any revisions should
be made to enhance the effectiveness of those rules. In particular, the
NPRM seeks comment on establishing standards for the non-technical
quality of closed captioning, the potential costs of such standards for
programmers and distributors, the availability of competent captioners
to meet a non-technical quality standard mandate, and establishing
different non-technical quality standards for pre-produced versus live
programming. In addition, the NPRM seeks comment on whether additional
mechanisms and procedures, beyond those already in the Commission's
rules, are necessary to prevent technical problems from occurring and
to expeditiously remedy any technical problems that do arise. The NPRM
also seeks comment on video programming distributors' responsibility to
monitor and maintain their equipment and signal transmissions, and
whether specific mechanisms should be established for monitoring and
maintenance. Additionally, the NPRM seeks comment on whether to revise
the current rule to allow for shorter complaint and response times,
what those time frames should be, and whether complainants should be
permitted to complain directly to the Commission without complaining to
the video programming distributor first. Further, the NPRM seeks
comment on requiring video programming distributors to file compliance
reports as to the amount of closed captioning they provide, and any
alternative methods available to verify compliance.
B. Legal Basis
The authority for this NPRM is contained in sections 4(i), 303(r)
and 713 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 303(r) and 713.
C. Description and Estimate of the Number of Small Entities Impacted
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 and policies, if adopted. (5 U.S.C.
603(b)(3)). The RFA generally defines the term ``small entity'' as
having the same meaning as the terms ``small business,'' ``small
organization,'' and ``small governmental jurisdiction.'' (5 U.S.C.
601(6)). In addition, the term ``small business'' has the same meaning
as the term ``small business concern'' under the Small Business Act. (5
U.S.C. 601(3) (incorporating by reference the definition of ``small-
business concern'' in the Small Business Act, 15 U.S.C. 632). Pursuant
to 5 U.S.C. 601(3), 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''). A ``small business concern''
is one which: (1) Is independently owned and operated; (2) is not
dominant in its field of operation; and (3) satisfies any additional
criteria established by the SBA. (15 U.S.C. 632).
Cable and Other Program Distribution. This category includes among
others, cable systems operators, closed circuit television services,
direct broadcast satellite services, home satellite dish services,
multipoint distribution systems, multichannel multipoint distribution
service, satellite master antenna television systems, and subscription
television services. The SBA has developed a small business size
standard for this census category, which includes all such companies
generating $12.5 million or less in revenue annually. (13 CFR 121.201,
NAICS code 513220; changed to 517510 in October 2002). According to
Census Bureau data for 1997, there were a total of 1,311 firms in this
category that had operated for the entire year. (U.S. Census Bureau,
1997 Economic Census, Subject Series: Information, ``Establishment and
Firm Size (Including Legal Form of Organization),'' Table 4, NAICS code
513220 (issued October 2000)). Of this total, 1,180 firms had annual
receipts of under $10 million and an additional 52 firms had receipts
of $10 million or more but less than $25 million. Consequently, the
Commission estimates that the majority of providers in this service
category are small businesses that may be affected by the rules and
policies involved herein.
Cable and Other Subscription Programming. Entities in this category
``primarily engag[e] in operating studios and facilities for the
broadcasting of programs on a subscription or fee basis. The broadcast
programming is typically narrowcast in nature (e.g., limited format,
such as news, sports, education, or youth-oriented). These
establishments produce programming in their own facilities or acquire
programming from external sources.'' (U.S. Census Bureau, ``2002 NAICS
Definitions: 515210 Cable and Other Subscription Programming'' (online,
July 2005, at https://www.census.gov)). The SBA has developed a small
business size standard for this category; that size standard is $12.5
million or less in average annual receipts. (13 CFR 121.201, NAICS code
515210; changed from 513210 in October 2002). According to Census
Bureau data for 1997, there were 234 firms in this category that
operated for the entire year. (U.S. Census Bureau, 1997 Economic
Census, Subject Series: Information, ``Establishment and Firm Size
(Including Legal Form of Organization),'' Table 4, NAICS code 513210
(issued October 2000)). Of these, 188 had annual receipts of under $10
million, and an additional 16 firms had receipts of between $10 million
and $24,999,999. Consequently, we estimate that the majority of these
firms are small entities that may be affected by our action. In
addition, limited preliminary census data for 2002 indicate that the
total number of Cable and Other Subscription Programming entities
increased approximately 44.5 percent from 1997 to 2002. See U.S. Census
Bureau, 2002 Economic Census, Industry Series: ``Information,'' Table
2, Comparative Statistics for the United States (1997 NAICS Basis):
2002 and 1997, NAICS code 513210 (issued December 2004). The
preliminary data indicate that the total number of ``establishments''
increased from 494 to 714. Data related to thenumber of ``firms,''
which takes into account the concept of common ownership or control,
and includes employment and receipts numbers, will be issued in late
2005.
Cable System Operators (Rate Regulation Standard). The Commission
has developed its own small business size standard for cable system
operators, for purposes of rate regulation. Under the Commission's
rules, a ``small cable company'' is one serving fewer than 400,000
subscribers nationwide. (47 CFR 76.901(e)). The Commission developed
this definition based on its
[[Page 56155]]
determination that a small cable system operator is one with annual
revenues of $100 million or less. Implementation of Sections of the
1992 Cable Act: Rate Regulation, Sixth Report and Order and Eleventh
Order on Reconsideration, 10 FCC Rcd 7393, published at 60 FR 10534,
February 27, 1995. The most recent estimates indicate that there were
1,439 cable operators who qualified as small cable system operators at
the end of 1995. (Paul Kagan Associates, Inc., Cable TV Investor,
February 29, 1996; based on figures for December 30, 1995). 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,
the Commission estimates that there are now fewer than 1,439 small
entity cable system operators that may be affected by the rules and
policies involved herein.
Cable System Operators (Telecom Act Standard). The Communications
Act of 1934, as amended, also contains a size standard for small cable
system operators, which is ``a cable operator that, directly or through
an affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000. (47 U.S.C. 543(m)(2)). The Commission has determined that
there are 67,700,000 subscribers in the United States. See FCC
Announces New Subscriber Count for the Definition of Small Cable
Operator, Public Notice, DA 01-158 (released January 24, 2001).
Therefore, an operator serving fewer than 677,000 subscribers shall be
deemed a small operator, if its annual revenues, when combined with the
total annual revenues of all its affiliates, do not exceed $250 million
in the aggregate. (47 CFR 76.901(f)). Based on available data, the
Commission estimates that the number of cable operators serving 677,000
subscribers or fewer, totals 1,450. See FCC Announces New Subscriber
Count for the Definition of Small Cable Operator, Public Notice, DA 01-
158 (released January 24, 2001). The Commission neither requests nor
collects information on whether cable system operators are affiliated
with entities whose gross annual revenues exceed $250 million, and
therefore is unable, at this time, to estimate more accurately the
number of cable system operators that would qualify as small cable
operators under the size standard contained in the Communications Act
of 1934. The Commission does receive such information on a case-by-case
basis if a cable operator appeals a local franchise authority's finding
that the operator does not qualify as a small cable operator pursuant
to Sec. 76.901(f) of the Commission's rules. See 47 CFR 909(b).
Cable Television Relay Service. This service includes transmitters
generally used to relay cable programming within cable television
system distribution systems. The SBA has defined a small business size
standard for Cable and other Program Distribution, consisting of all
such companies having annual receipts of no more than $12.5 million.
(13 CFR 121.201, NAICS code 517510). According to Census Bureau data
for 1997, there were 1,311 firms in the industry category Cable and
Other Program Distribution, total, that operated for the entire year.
(U.S. Census Bureau, 1997 Economic Census, Subject Series: Information,
``Establishment and Firm Size (Including Legal Form of Organization)'',
Table 4 (issued October 2000)). Of this total, 1,180 firms had annual
receipts of $10 million or less, and an additional 52 firms had
receipts of $10 million or more but less than $25 million. (U.S. Census
Bureau, 1997 Economic Census, Subject Series: Information,
``Establishment and Firm Size (Including Legal Form of Organization)'',
Table 4 (issued October 2000)). Thus, under this standard, we estimate
that the majority of providers in this service category are small
businesses that may be affected by the rules and policies involved
herein.
Direct Broadcast Satellite (DBS) Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. Because DBS provides subscription
services, DBS falls within the SBA-recognized definition of Cable and
Other Program Distribution. (13 CFR 121.201, NAICS code 517510). This
definition provides that a small entity is one with $12.5 million or
less in annual receipts. (13 CFR 121.201, NAICS code 517510).
Currently, only four operators hold licenses to provide DBS service,
which requires a great investment of capital for operation. All four
currently offer subscription services. Two of these four DBS operators,
DirecTV, and EchoStar Communications Corporation (EchoStar), report
annual revenues that are in excess of the threshold for a small
business. DirecTV is the largest DBS operator and the second largest
MVPD, serving an estimated 13.04 million subscribers nationwide. See
Annual Assessment of Status of Competition in the Market for the
Delivery of Video Programming, Eleventh Annual Report, FCC 05-13,
paragraph 55 (released February 4, 2005) (2005 Cable Competition
Report). EchoStar, which provides service under the brand name Dish
Network, is the second largest DBS operator and the fourth largest
MVPD, serving an estimated 10.12 million subscribers nationwide. A
third operator, Rainbow DBS, is a subsidiary of Cablevision's Rainbow
Network, which also reports annual revenues in excess of $12.5 million,
and thus does not qualify as a small business. (Rainbow DBS, which
provides service under the brand name VOOM, reported an estimated
25,000 subscribers).
The fourth DBS operator, Dominion Video Satellite, Inc. (Dominion),
offers religious (Christian) programming and does not report its annual
receipts. (Dominion, which provides service under the brand name Sky
Angel, does not publicly disclose its subscribership numbers on an
annualized basis). The Commission does not know of any source that
provides this information and, thus, we the Commission has no way of
confirming whether Dominion qualifies as a small business. Because DBS
service requires significant capital, we believe it is unlikely that a
small entity as defined by the SBA would have the financial wherewithal
to become a DBS licensee. Nevertheless, given the absence of specific
data on this point, we acknowledge the possibility 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.
Local Multipoint Distribution Service. Local Multipoint
Distribution Service (LMDS) is a fixed broadband point-to-multipoint
microwave service that provides for two-way video telecommunications.
(See Rulemaking to Amend parts 1, 2, 21, and 25 of the Commission's
rules to Redesignate the 27.5-29.5 GHz Frequency Band, Reallocate the
29.5-30.5 Frequency Band, to Establish Rules and Policies for Local
Multipoint Distribution Service and for Fixed Satellite Services,
Second Report and Order, Order on Reconsideration, and Fifth Notice of
Proposed Rule Making, FCC 97-82, 12 FCC Rcd 12545, 12689 through 12690,
paragraph 348 (1997), published at 62 FR 23148, April 29, 1997). The
auction of the 986 Local Multipoint Distribution Service (LMDS)
licenses began on February 18, 1998 and closed on March 25, 1998. The
Commission established a small business size standard for LMDS licenses
as an entity that has average gross revenues of less than $40 million
[[Page 56156]]
in the three previous calendar years. An additional small business size
standard for ``very small business'' was added as an entity that,
together with its affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years.
The SBA has approved these small business size standards in the
context of LMDS auctions. (See Letter to Dan Phythyon, Chief, Wireless
Telecommunications Bureau, FCC, from Aida Alvarez, Administrator, SBA
(January 6, 1998)). There were 93 winning bidders that qualified as
small entities in the LMDS auctions. A total of 93 small and very small
business bidders won approximately 277 A Block licenses and 387 B Block
licenses. On March 27, 1999, the Commission re-auctioned 161 licenses;
there were 32 small and very small businesses winning that won 119
licenses.
Multipoint Distribution Service, Multichannel Multipoint
Distribution Service, and Instructional Television Fixed Service.
Multichannel Multipoint Distribution Service (MMDS) systems, often
referred to as ``wireless cable,'' transmit video programming to
subscribers using the microwave frequencies of the Multipoint
Distribution Service (MDS) and Instructional Television Fixed Service
(ITFS). (Amendment of parts 21 and 74 of the Commission's rules with
Regard to Filing Procedures in the Multipoint Distribution Service and
in the Instructional Television Fixed Service and Implementation of
Section 309(j) of the Communications Act--Competitive Bidding, Report
and Order, FCC 95-230, 10 FCC Rcd 9589 and 9593, paragraph 7 (1995),
published at 60 FR 36524, July 17, 1995 (MDS Auction R&O)). In
connection with the 1996 MDS auction, the Commission defined ``small
business'' as an entity that, together with its affiliates, has average
gross annual revenues that are not more than $40 million for the
preceding three calendar years. (47 CFR 21.961(b)(1)). The SBA has
approved of this standard. (See Letter to Margaret Wiener, Chief,
Auctions and Industry Analysis Division, Wireless Telecommunications
Bureau, FCC, from Gary Jackson, Assistant Administrator for Size
Standards, Small Business Administration, dated March 20, 2003 (noting
approval of $40 million size standard for MDS auction)). The MDS
auction resulted in 67 successful bidders obtaining licensing
opportunities for 493 Basic Trading Areas (BTAs). (Basic Trading Areas
(BTAs) were designed by Rand McNally and are the geographic areas by
which MDS was auctioned and authorized. See MDS Auction R&O, 10 FCC Rcd
9608, paragraph 34). Of the 67 auction winners, 61 claimed status as a
small business. At this time, the Commission estimates that of the 61
small business MDS auction winners, 48 remain small business licensees.
In addition to the 48 small businesses that hold BTA authorizations,
there are approximately 392 incumbent MDS licensees that have gross
revenues that are not more than $40 million and are thus considered
small entities. (47 U.S.C. 309(j)). Hundreds of stations were licensed
to incumbent MDS licensees prior to implementation of section 309(j) of
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-auction
licenses, the applicable standard is SBA's small business size standard
for ``other telecommunications'' (annual receipts of $12.5 million or
less). See 13 CFR 121.201, NAICS code 517910).
Concerning ITFS, the Commission notes that educational institutions
are included in this analysis as small entities.
The term ``small entity'' under SBREFA applies to small
organizations (nonprofits) and to small governmental jurisdictions
(cities, counties, towns, townships, villages, school districts, and
special districts with populations of less than 50,000). 5 U.S.C.
601(4)-(6). The Commission does not collect annual revenue data on ITFS
licensees. There are currently 2,032 ITFS licensees, and all but 100 of
these licenses are held by educational institutions. Thus, the
Commission tentatively concludes that at least 1,932 ITFS licensees are
small businesses.
Open Video Services. Open Video Service (OVS) systems provide
subscription services. (See 47 U.S.C. 573). The SBA has created a small
business size standard for Cable and Other Program Distribution. (13
CFR 121.201, NAICS code 513220 (changed to 517510 in October 2002)).
This standard provides that a small entity is one with $12.5 million or
less in annual receipts. The Commission has certified approximately 100
OVS operators to serve 75 areas, and some of these are currently
providing service. (See https://www.fcc.gov/csb/ovs/csovscer.html
(current as of June 2004)). Affiliates of Residential Communications
Network, Inc. (RCN) received approval to operate OVS systems in New
York City, Boston, Washington, DC, and other areas. RCN has sufficient
revenues to assure that they do not qualify as a small business entity.
Little financial information is available for the other entities that
are authorized to provide OVS and are not yet operational. Given that
some entities authorized to provide OVS service have not yet begun to
generate revenues, the Commission concludes that those OVS operators
remaining might qualify as small businesses that may be affected by the
rules and policies proposed herein.
Television Broadcasting. The SBA defines a television broadcasting
station as a small business if such station has no more than $12
million in annual receipts. (See 13 CFR 121.201, NAICS Code 515120
(adopted October 2002)). Business concerns included in this industry
are those ``primarily engaged in broadcasting images together with
sound.'' (NAICS Code 515120). This category description continues,
``These establishments operate television broadcasting studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in turn
broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studios, from an affiliated
network, or from external sources.'' Separate census categories pertain
to businesses primarily engaged in producing programming. (See Motion
Picture and Video Production, NAICS code 512110; Motion Picture and
Video Distribution, NAICS Code 512120; Teleproduction and Other Post-
Production Services, NAICS Code 512191; and Other Motion Picture and
Video Industries, NAICS Code 512199). According to Commission staff
review of the BIA Publications, Inc. Master Access Television Analyzer
Database as of June 26, 2004, about 860 of the 1,270 commercial
television stations in the United States have revenues of $12 million
or less. The Commission notes, however, that, in assessing whether a
business concern qualifies as small under the above definition,
business (control) affiliations must be included. ``[Business concerns]
are affiliates of each other when one concern controls or has the power
to control the other or a third party or parties controls or has power
to control both.'' 13 CFR 121.103(a)(1). The Commission's 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. There
are also 2,127 low power television stations (LPTV). (FCC News Release,
``Broadcast Station Totals as of September 30, 2002''). Given the
nature of this service, we will presume that all LPTV licensees qualify
as small entities under the SBA definition.
[[Page 56157]]
In addition, an element of the definition of ``small business'' is
that the entity not be dominant in its field of operation. The
Commission is unable at this time to define or quantify the criteria
that would establish whether a specific television station is dominant
in its field of operation. Accordingly, the estimate of small
businesses to which rules may apply does not exclude any television
station from the definition of a small business on this basis and is
therefore 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. The Commission notes 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.
D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
The proposed rules may impose additional reporting or recordkeeping
requirements on a number of different entities. For example, the NPRM
discusses whether video programming distributors should be required to
submit reports to the Commission certifying that they are complying
with monitoring and maintenance of equipment and signal transmissions.
In addition the NPRM asks whether video programming distributors should
be required to file compliance reports as to the amount of closed
captioning they provide. These proposals may impose additional
reporting or recordkeeping requirements on entities. The Commission
seeks comment on the possible burden these requirements would place on
small entities. Also, the Commission seeks comment on whether a special
approach toward any possible compliance burdens on small entities might
be appropriate.
E. 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. (5 U.S.C. 603(b)). The Commission seeks comment on whether it
should indeed be the responsibility of the video programming
distributor to monitor and maintain equipment and signal transmissions
and asks if specific mechanisms should be in place and what would be
the impact of such mechanisms on distributors. The NPRM notes that,
alternatively, the National Cable and Telecommunications Association
(NCTA) points out that a distributor's responsibilities should not be
unduly burdensome and invites comment on this matter. The NPRM also
proposes providing a standardized captioning complaint form for
consumers, which may be a useful tool to those filing complaints. In
addition, the NPRM discusses allowing consumers to complain to video
programming distributors via e-mail, phone or fax, which is aimed at
providing easier options for consumers who have concerns regarding
captioning problems and seek more immediate redress. The NPRM also
points out that effective January 1, 2006, all nonexempt new English
language programming must be captioned. Video programming distributors
and providers will have to caption their programming. Generally, 100%
compliance is required; however, particular entities, and under certain
circumstances small entities, may be exempt from the captioning
requirements if they qualify for an exemption pursuant to Sec. 79.1(d)
of the Commission rules, which provides for exempt programs and
providers meeting the particular qualifications cited in the rule, and/
or if captioning presents an undue burden pursuant to Sec. 79.1(f) of
the Commission's rule, which allows parties to file a petition with the
Commission requesting an exemption from captioning upon a sufficient
showing that captioning would pose significant difficulty or expense.
F. Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Proposals
None.
Ordering Clauses
Pursuant to sections 4(i), 303(r) and 713 of the Communications Act
of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 713, this Notice of
Proposed Rulemaking is hereby adopted.
The Commission's Consumer & Governmental Affairs Bureau, Reference
Information Center, shall send a copy of this Notice of Proposed
Rulemaking, including the Initial Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-19161 Filed 9-23-05; 8:45 am]
BILLING CODE 6712-01-P