Amendment of the Commission's Rules to Accommodate 30 Megahertz Channels in the 6525[dash]6875 MHz Band; and to Provide for Conditional Authorization on Additional Channels in the 21.8[dash]22.0 GHz and 23.0[dash]23.2 GHz Band, 45496-45497 [C1-2010-17205]
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45496
Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations
conventional methods of attachment
that a utility uses in its own operations,
such as boxing and bracketing. Unlike
requiring a pole owner to replace a pole
with a taller pole, these techniques take
advantage of usable physical space on
the existing pole.
15. The Eleventh Circuit
acknowledged in Southern that its
decision was driven by the need to
‘‘construe statutes in such a way to ‘give
effect, if possible, to every clause and
word of a statute.’ ’’ By virtue of that
decision, however, the statutory
language of section 224(f)(2) is given
effect, in that utilities may deny access
for ‘‘insufficient capacity’’ when ‘‘it is
agreed that capacity on a given pole or
other facility is insufficient.’’ Thus, no
particular interpretation of section
224(f)(2) is required in the context of
boxing and bracketing simply to ‘‘give
effect’’ to that statutory language.
16. The Commission finds that its
reading of the ambiguous term
‘‘insufficient capacity’’ is a reasonable
middle ground. Some utilities have
argued that a pole has insufficient
capacity—and thus access may be
denied under section 224(f)(2)—if any
make-ready work is needed. At the other
extreme, the statute might be read to
require a utility to completely replace a
pole—an interpretation that some
commenters oppose. The Commission
sees no reason to adopt either of those
extreme positions. Within those
extremes is a range of practices, such as
line rearrangement, overlashing, boxing,
and bracketing that exploit the capacity
of existing infrastructure in some way.
Although commenters are divided
regarding whether a pole has
insufficient capacity if techniques such
as boxing and bracketing are necessary
to accommodate a new attachment, the
Commission finds more persuasive the
position that a pole does not have
insufficient capacity if a new
attachment can be added to the existing
pole using conventional attachment
techniques. Utilization of existing
infrastructure, rather than replacing it,
is a fundamental principal underlying
the Act. As discussed above, the
Commission finds that the
Commission’s interpretation still
ensures that ‘‘insufficient capacity’’ is
given some meaning, while also, to the
greatest extent possible, helping spur
competition and promoting the
deployment of communications
technologies, consistent with the broad
‘‘pro competitive’’ purposes of the 1996
Act, as well as the more specific
direction of section 706 of the 1996 Act
that the Commission promote the
deployment of advanced services ‘‘by
utilizing, in a manner consistent with
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the public interest, convenience, and
necessity, * * * measures that promote
competition in the local
telecommunications market, or other
regulating methods that remove barriers
to infrastructure investment.’’
Accordingly, the Commission concludes
that, where a pole can accommodate
new attachments through boxing,
bracketing, or similar attachment
techniques, there is not ‘‘insufficient
capacity’’ within the meaning of section
224(f)(2)
Timely Access to Pole Attachments
17. The Commission also holds that
access to poles, including the
preparation of poles for attachment,
commonly termed ‘‘make-ready,’’ must
be timely in order to constitute just and
reasonable access. Section 224 of the
Act requires utilities to provide cable
television systems and any
telecommunications carrier with
nondiscriminatory access to any poles,
ducts, conduits, and rights-of-way
owned or controlled by it, and instructs
the Commission to ensure that the terms
and conditions for pole attachments are
just and reasonable. The Commission
previously has recognized the
importance of timeliness in the context
of specific aspects of the pole
attachment process. The National
Broadband Plan likewise recognized the
importance of timely access to poles.
The Commission thus holds that,
pursuant to section 224 of the Act, the
duty to proceed in a timely manner
applies to the entirety of the pole
attachment process. Make-ready or other
pole access delays not warranted by the
circumstances thus are unjust and
unreasonable under section 224.
18. Section 224 also provides for the
adoption of rules to carry out its
provisions, and the Commission seeks
comment in the Further NPRM
regarding a proposed comprehensive
timeline for each step of the pole access
process. The Commission clarifies,
however, that utilities must perform
make-ready promptly and efficiently,
consistent with evaluation of capacity,
safety, reliability, and generally
applicable engineering practices,
whether or not a specific rule applies to
an aspect of the make-ready process.
Procedural Matters
Paperwork Reduction Act
19. This document does not contain
new information collection
requirements subject to the Paperwork
Reduction Act of 1995, Public Law 104–
13. In addition, therefore, it does not
contain any proposed information
collection burden for small business
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concerns with fewer than 25 employees,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4).
Ex Parte Procedures
20. This proceeding shall be treated as
a ‘‘permit-but-disclose’’ proceeding in
accordance with the Commission’s ex
parte rules. Persons making oral ex
parte presentations are reminded that
memoranda summarizing the
presentations must contain summaries
of the substance of the presentations
and not merely a listing of the subjects
discussed. More than a one or two
sentence description of the views and
arguments presented is generally
required. Other requirements pertaining
to oral and written presentations are set
forth in § 1.1206(b) of the Commission’s
rules.
Ordering Clauses
21. Accordingly, it is ordered that
pursuant to sections 1, 4(i), 4(j), 224,
251(b)(4), and 303 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i)–(j), 224,
251(b)(4), 303, this Order in WC Docket
No. 07–245 is adopted.
22. It is further ordered that, pursuant
to §§ 1.4(b)(1) and 1.103(a) of the
Commission’s rules, 47 CFR 1.4(b)(1),
1.103(a), this Order shall be effective
September 2, 2010.
Federal Communications Commission.
Bulah P. Wheeler,
Deputy Manager.
[FR Doc. 2010–18904 Filed 8–2–10; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 101
[WT Docket No. 09–114; RM–11417; FCC
10–109]
Amendment of the Commission’s
Rules to Accommodate 30 Megahertz
Channels in the 6525-6875 MHz Band;
and to Provide for Conditional
Authorization on Additional Channels
in the 21.8-22.0 GHz and 23.0-23.2 GHz
Band
Correction
In rule document 2010–17205
beginning on page 41767 in the issue of
Monday, July 19, 2010, make the
following corrections:
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Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations
§101.147
[Corrected]
On page 41771, in §101.147, in the
third column, the tables are corrected to
read as set forth below:
*
*
*
*
*
(s) * * *
Receive
(transmit)
(MHz)
Transmit (receive) (MHz)
(3) 10 MHz bandwidth channels:
*
*
*
22025 2 ..................................
*
*
23225 2
*
*
*
22075 2 ..................................
*
*
23275 2
*
*
*
*
*
*
*
*
*
*
Receive
(transmit)
(MHz)
Transmit (receive) (MHz)
(7) 50 MHz bandwidth channels:
*
*
*
22025 2 ..................................
22075 2 ..................................
*
*
*
*
*
23225 2
23275 2
*
*
2 These frequencies may be assigned to low
power systems, as defined in paragraph (8) of
this section.
*
*
*
*
*
[FR Doc. C1–2010–17205 Filed 8–2–10; 8:45 am]
BILLING CODE 1505–01–D
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R9-IA-2008-0118]
[MO 92210-0-0010-B6]
RIN 1018–AW40
Endangered and Threatened Wildlife
and Plants; Determination of
Threatened Status for Five Penguin
Species
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), determine
threatened status for five penguins: The
yellow-eyed penguin (Megadyptes
antipodes), white-flippered penguin
(Eudyptula minor albosignata),
Fiordland crested penguin (Eudyptes
pachyrhynchus), Humboldt penguin
erowe on DSK5CLS3C1PROD with RULES
SUMMARY:
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(Spheniscus humboldti), and erectcrested penguin (Eudyptes sclateri)
under the Endangered Species Act of
1973, as amended (Act).
This rule becomes effective
September 2, 2010.
DATES:
This final rule is available
on the Internet at https://
www.regulations.gov. Comments and
materials received, as well as supporting
documentation used in the preparation
of this rule, will be available for public
inspection, by appointment, during
normal business hours at the U.S. Fish
and Wildlife Service, 4401 N. Fairfax
Drive, Suite 420, Arlington, VA 22203.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Janine Van Norman, Chief, Branch of
Foreign Species, Endangered Species
Program, U.S. Fish and Wildlife Service,
4401 North Fairfax Drive, Room 420,
Arlington, VA 22203; telephone 703358-2171; facsimile 703-358-1735. If you
use a telecommunications device for the
deaf (TDD), call the Federal Information
Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
On December 18, 2008, we published
a proposed rule (73 FR 77303) to list the
yellow-eyed penguin (Megadyptes
antipodes), white-flippered penguin
(Eudyptula minor albosignata),
Fiordland crested penguin (Eudyptes
pachyrhynchus), Humboldt penguin
(Spheniscus humboldti), and erectcrested penguin (Eudyptes sclateri)
under the Endangered Species Act of
1973, as amended (Act; 16 U.S.C. 1531
et seq.). That document also served as
the 12–month finding on a petition to
list these species, which are 5 of 12
penguin species included in the
petition. We opened the public
comment period on the proposed rule
for 60 days, ending February 17, 2009,
to allow all interested parties an
opportunity to comment on the
proposed rule. On March 9, 2010, the
Center for Biological Diversity (CBD)
filed a complaint (CV-10-992, N.D. Cal)
for failure to issue a final listing
determination within 12 months of the
proposal to list the species. In a courtapproved settlement agreement, the
Service agreed to submit a final rule to
the Federal Register by July 30, 2010.
Previous Federal Action
For a detailed history of previous
Federal actions involving these five
penguin species, please see the Service’s
proposed listing rule, which published
in the Federal Register on December 18,
2008 (73 FR 77303).
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45497
Summary of Comments and
Recommendations
In the proposed rule published on
December 18, 2008 (73 FR 77303), we
requested that all interested parties
submit information that might
contribute to development of a final
rule. We also contacted appropriate
scientific experts and organizations and
invited them to comment on the
proposed listings. We received 13
comments: 4 from members of the
public, and 9 from peer reviewers.
We reviewed all comments received
from the public and peer reviewers for
substantive issues and new information
regarding the proposed listing of these
five species, and we have addressed
those comments below. Overall, the
commenters and peer reviewers
supported the proposed listings. One
comment from the public included
substantive information; other
comments simply supported the
proposed listing without providing
scientific or commercial data.
Peer Review
In accordance with our policy
published on July 1, 1994 (59 FR
34270), we requested expert opinions
from 14 knowledgeable peer reviewers
with scientific expertise that included
familiarity with the species, the
geographic region in which the species
occur, and conservation biology
principles. We received responses from
nine of the peer reviewers. They
generally agreed that the description of
the biology and habitat for each species
was accurate and based on the best
available information. They provided
some new or additional information on
the biology and habitat of some of these
penguin species and their threats, and
we incorporated that information into
the rulemaking as appropriate. In some
cases, it has been indicated in the
citations by ‘‘personal communication,’’
which could indicate either an email or
telephone conversation, while in other
cases the research citation is provided.
Peer Reviewer Comments
(1) Comment: Several peer reviewers
provided new data and information
regarding the biology, ecology, life
history, population estimates, and threat
factors affecting these penguin species,
and requested that we incorporate the
new data and information into this final
rule and consider it in making our
listing determination. With respect to
potential threats, one peer reviewer
raised the issue of flipper banding of the
yellow-eyed penguin. Several peer
reviewers provided clarifying
information on predation with respect
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]]>Agencies
[Federal Register Volume 75, Number 148 (Tuesday, August 3, 2010)]
[Rules and Regulations]
[Pages 45496-45497]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: C1-2010-17205]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 101
[WT Docket No. 09-114; RM-11417; FCC 10-109]
Amendment of the Commission's Rules to Accommodate 30 Megahertz
Channels in the 6525[dash]6875 MHz Band; and to Provide for Conditional
Authorization on Additional Channels in the 21.8[dash]22.0 GHz and
23.0[dash]23.2 GHz Band
Correction
In rule document 2010-17205 beginning on page 41767 in the issue of
Monday, July 19, 2010, make the following corrections:
[[Page 45497]]
Sec. 101.147 [Corrected]
On page 41771, in Sec. 101.147, in the third column, the tables are
corrected to read as set forth below:
* * * * *
(s) * * *
------------------------------------------------------------------------
Receive
Transmit (receive) (MHz) (transmit)
(MHz)
------------------------------------------------------------------------
(3) 10 MHz bandwidth channels:
* * * * *
22025 \2\............................................... 23225 \2\
* * * * *
22075 \2\............................................... 23275 \2\
* * * * *
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Receive
Transmit (receive) (MHz) (transmit)
(MHz)
------------------------------------------------------------------------
(7) 50 MHz bandwidth channels:
* * * * *
22025 \2\............................................... 23225 \2\
22075 \2\............................................... 23275 \2\
* * * * *
------------------------------------------------------------------------
\2\ These frequencies may be assigned to low power systems, as defined
in paragraph (8) of this section.
* * * * *
[FR Doc. C1-2010-17205 Filed 8-2-10; 8:45 am]
BILLING CODE 1505-01-D
