Media and Wireless Telecommunications Bureaus Seek Comment on Recommendation of the Advisory Committee on Diversity for Communications in the Digital Age, 81274-81276 [2010-32493]

Download as PDF erowe on DSK5CLS3C1PROD with NOTICES 81274 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Notices Section III, Item 7 (previously Item 6), has been revised to eliminate the requirement that full power AM and FM licensees submit an exhibit to demonstrate compliance with the Commission’s maximum permissible radio frequency (‘‘RF’’) electromagnetic exposure limits, in the event that they are unable or not eligible to use the RF worksheets contained in the instructions of the Form. All applicants continue to be required to certify that their facilities comply with the Commission’s maximum permissible RF limits. The elimination of the exhibit requirement for radio broadcasters, conforms the question so it is now consistent with the requirements for licensees of broadcast television stations, translator (FM and TV stations), and low-power FM stations, who are not required to submit an exhibit. The instructions for Section III, Item 7 and Worksheet #1 Environmental have been revised accordingly. Section V, Item 4 has been revised to clarify that Low Power TV (‘‘LPTV’’) stations still need to file Form 396 with the renewal application, but that they may or may not need to file a public file report and post it to their Web site. The word ‘‘as’’ has been replaced with the word ‘‘if.’’ The old version stated that stations are required to certify that they have created a public file report and posted it to their Web sites ‘‘as’’ required by regulation. The instructions have been revised to explain that for Section V, Item 4, only LPTV stations that are part of a station employment unit with full-power stations, where the unit employs at least five or more full-time employees, needs to file a public file report and post it to the station Web site. Other LPTV stations do not have to create a public file report because they do not have a public file. Additionally, a small number of typographical errors have been corrected throughout the instructions and form. Finally, the burden hours and burden costs published in the Federal Register on October 13, 2010 (75 FR 62816) have been reduced to reflect that only applicants for renewal of commercial broadcast stations are required to complete the new certification in Section II, Item 7 that their advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements contain nondiscrimination clauses. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. 2010–32468 Filed 12–23–10; 8:45 am] BILLING CODE 6712–01–P VerDate Mar<15>2010 15:15 Dec 23, 2010 Jkt 223001 FEDERAL COMMUNICATIONS COMMISSION [GN Docket No. 10–244; DA 10–2259] Media and Wireless Telecommunications Bureaus Seek Comment on Recommendation of the Advisory Committee on Diversity for Communications in the Digital Age Federal Communications Commission. ACTION: Notice. AGENCY: The Media and Wireless Telecommunications Bureaus of the Federal Communications Commission seek comment on a recommendation of the Advisory Committee on Diversity for Communications in the Digital Age that the Commission consider a new preference program in its competitive bidding process to provide bidding credits to individuals and entities who have overcome substantial disadvantage. SUMMARY: Comments are due on or before February 7, 2011; reply comments are due on or before February 25, 2011. ADDRESSES: You may submit comments, identified by GN Docket No. 10–244, by any of the following methods: • Federal Communications Commission’s Web Site: https:// fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting comments. • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. • All hand-delivered or messengerdelivered paper filings for the Commission’s Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW–A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format DATES: PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 documents, sign language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or telephone: 202–418–0530 or TTY: 202–418–0432. FOR FURTHER INFORMATION CONTACT: Media Bureau, Industry Analysis Division: Amy Brett at (202) 418–2330, or Wireless Telecommunications Bureau, Auctions and Spectrum Access Division: Sayuri Rajapakse at (202) 418– 0660. SUPPLEMENTARY INFORMATION: This is a summary of the public notice, released December 2, 2010, in GN Docket No. 10–244, seeking comment on the Advisory Committee’s Recommendation released on October 14, 2010. The Advisory Committee’s Recommendation, which was released as an attachment to the public notice, is available at https://www.fcc.gov/ DiversityFAC/meeting101410.html. The complete texts of the public notice and Recommendation are available for public inspection and copying from 8 a.m. to 4:30 p.m. ET Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street, SW., Room CY–A257, Washington, DC 20554. The public notice may be purchased from the Commission’s duplicating contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street, SW., Room CY–B402, Washington, DC 20554, telephone 202–488–5300, fax 202–488–5563, or you may contact BCPI at its Web site: https:// www.BCPIWEB.com. When ordering documents from BCPI, please provide the appropriate FCC document number, for example, DA 10–2259. The public notice is also available on the Internet at the Commission’s Web site or by using the search function for GN Docket No. 10–244 on the ECFS Web page at https://www.fcc.gov/cgb/ecfs/. On October 14, 2010, the Advisory Committee on Diversity for Communications in the Digital Age (‘‘Advisory Committee’’) formally recommended that the Federal Communications Commission (‘‘Commission’’) undertake a notice of proposed rulemaking to consider how the Commission could design, adopt, and implement an additional new preference program in its competitive bidding process. Under the proposed preference, persons or entities who have overcome substantial disadvantage would be eligible for a bidding credit. The Advisory Committee explains that the new preference ‘‘would expand the pool of designated entities to include those qualified applicants who have overcome substantial disadvantage,’’ noting that the proposed program is E:\FR\FM\27DEN1.SGM 27DEN1 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Notices erowe on DSK5CLS3C1PROD with NOTICES analogous in some respects to programs used by educational institutions in their admissions processes. The Advisory Committee’s Recommendation acknowledges that a number of issues concerning the design and implementation of its proposal would need to be refined and resolved by the Commission in a future rulemaking proceeding. The Media and Wireless Telecommunications Bureaus seek information that will assist the Commission in considering whether to launch a proceeding to further examine the components of the recommended preference. The Bureaus seek comment on the proposal and are especially interested in comments on the following questions. Interested parties need not address all the questions presented, but are encouraged to respond to those about which they have particular knowledge or information. I. Authority and Objectives Sections 309(j)(3)(B) and (4)(D) of the Communications Act of 1934, as amended, direct the Commission respectively to seek to disseminate licenses among ‘‘a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women’’ and to ‘‘ensure that small businesses, rural telephone companies, and businesses owned by members of minority groups and women are given the opportunity to participate in the provision of spectrumbased services.’’ The Commission has established a program to promote the involvement of statutorily-identified designated entities in the provision of spectrum-based services. Designated entities are defined in 47 CFR 1.2110(a) as small businesses, businesses owned by members of minority groups and/or women, and rural telephone companies. The Commission’s primary method of promoting the participation of designated entities in competitive bidding for wireless services has been to award bidding credits (percentage discounts on winning bid amounts) to small business applicants. In the context of broadcast services, the Commission adopted a tiered new entrant bidding credit to promote the objectives of section 309(j) and further its longstanding commitment to the diversification of broadcast facility ownership. That bidding credit may be awarded to broadcast auction applicants having no, or very few, other media interests. The Advisory Committee’s Recommendation would establish an additional preference for persons or entities that have overcome substantial disadvantage. VerDate Mar<15>2010 15:15 Dec 23, 2010 Jkt 223001 1. Would the proposed preference comply with the Communications Act and other relevant statutes? Does section 309(j)(4)(D) authorize the Commission to establish the proposed preference for individuals who have overcome substantial disadvantage? If not, are there other statutory provisions that afford sufficient authorization? Would the Commission need additional legal authority to implement this new preference? 2. The Commission has previously found that rural telephone companies and minority- and women-owned businesses that qualify as small businesses are able to take advantage of the provisions we have adopted for small businesses. Similarly, in the broadcast context, the Commission established its new entrant bidding credit, having found that a preference for new entrants would be the most appropriate way to implement the statutory provisions regarding opportunities for small, minority- and women-owned businesses based on then-available information on opportunities for designated entities to participate in the provision of broadcast services. The Bureaus seek information to assess how individuals who have overcome substantial disadvantage have fared under the Commission’s existing auction process and the designated entity benefits. Have persons who have overcome substantial disadvantages had difficulty in obtaining licenses under the existing process and designated entity programs? Do data exist that would demonstrate that individuals who have overcome substantial disadvantage are underrepresented in the Commission’s auctions process? Is there evidence that persons who have overcome substantial disadvantage are more likely than others to utilize Commission licenses in the public interest, or do so to a greater extent? If no such data exist, what information could be developed to assess the need for the proposed bidding preference? 3. In establishing the existing small business bidding credit program, the Commission found that the preferences would allow designated entities to overcome barriers that have impeded these groups’ participation in the telecommunications arena, including barriers related to access to capital. The Advisory Committee’s Recommendation notes that the proposed preference would provide fair opportunity to those who have overcome substantial disadvantage and that it would result in the introduction of new entrants having diverse viewpoints. How would this proposed preference provide additional opportunities to individuals and entities PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 81275 that differ from those available under our current bidding credit programs? 4. The Advisory Committee’s Recommendation observes that the proposed overcoming disadvantage preference would be subject to a ‘‘rational basis’’ constitutional standard and that any Commission rulemaking ‘‘must support the conclusion that the overcoming disadvantage preference program will serve the public interest and is a rational way to further’’ the program’s public interest objectives. What public or governmental interests would be served by establishing such a bidding preference? Commenters are specifically invited to provide information on what interests would be served under this program that are not being addressed with the Commission’s existing bidding credit programs. 5. Are there additional constitutional issues raised by the Advisory Committee’s Recommendation that the Commission should consider? If so, what are they? How might they be mitigated or eliminated? II. Eligibility for Preference 6. The Advisory Committee’s Recommendation supplies a nonexhaustive list of disadvantages that may have had a substantial negative impact on an individual’s ‘‘entry into or advancement in the professional world or other comparable context’’ that might justify the award of a preference, such as physical disabilities or psychological disorders that have rendered professional or business advancement substantially more difficult. Are there other categories of disadvantages that should qualify an individual for preferences beyond those listed in the Recommendation? Should any of the proposed disadvantages not be included? Should any of the disadvantages take precedence over others? Should there be a point system to weigh the relative merit of different disadvantages? Should the Commission develop and publish an exclusive list of qualifying disadvantages, or should determinations about whether a substantial disadvantage is qualifying be made on a case-by-case basis? 7. The Advisory Committee’s Recommendation suggests that any disadvantage must be ‘‘substantial’’ in order to qualify an applicant for a preference. By what means should the Commission assess and/or quantify what experience would demonstrate ‘‘substantial’’ disadvantage? 8. What degree of success in overcoming a substantial disadvantage would an applicant have to demonstrate in order to evidence its eligibility for such a preference? How should E:\FR\FM\27DEN1.SGM 27DEN1 81276 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Notices erowe on DSK5CLS3C1PROD with NOTICES applicants be required to document their successes in ‘‘substantially’’ or at least ‘‘partially’’ overcoming disadvantages? Should any successes documented be limited to the applicant’s professional achievements, or should success in other contexts be considered by the Commission? 9. At what level of success, if any, should an applicant who has overcome substantial disadvantages become ineligible for the preference (e.g., by what measure of wealth or access to capital)? Should the Commission adopt different levels of preference based on a measure of wealth or access to capital? What criteria should be used to disqualify the applicant from eligibility for a bidding credit? If the Commission adopts an additional preference such as that recommended by the Advisory Committee, how should the Commission implement the statutory requirement to avoid unjust enrichment in the context of its bidding preference program? III. Administration 10. The Advisory Committee’s Recommendation notes that any determination of an individual’s or entity’s eligibility for an overcoming disadvantage preference would require an examination of all relevant evidence and would be based on an individualized evaluation. The individualized reviews that would occur under the proposed program are subjective in a manner that distinguishes them from existing designated entity programs, which are based on objective criteria such as financial data. By what means could applicants demonstrate that they qualify for the preference? For example, should a narrative explanation suffice? If not, what information or documentation would be necessary to substantiate a claim? Should an applicant be permitted to certify its eligibility for this preference under penalty of perjury in its short-form application when it seeks to participate in an auction, similar to the way in which applicants may certify eligibility for new entrant and small business bidding credits? If so, what guidance can the Commission provide to potential applicants so that they can make a good faith certification of eligibility? The Recommendation suggests that an overcoming disadvantage preference might be applied differently for different services (e.g., a preference might apply only for more valuable licenses in a broadcast auction). Would the Commission have to tailor the preference for specific services in a rulemaking, similar to its existing practice of establishing the VerDate Mar<15>2010 15:15 Dec 23, 2010 Jkt 223001 small business definitions on a serviceby-service basis? The Advisory Committee recognized the importance of reducing subjectivity and achieving consistency among individualized determinations. What standards could the Commission implement to achieve those goals? 11. The Advisory Committee’s Recommendation suggests that a determination as to whether applicants have overcome disadvantages could be made within the existing short-form auction application review process. What would be the administrative burden for the Commission to conduct individualized review for such a preference within the relatively short time frames allotted under the existing auctions short-form application process? If the Commission were to allocate additional time in the pre-auction process for such reviews, would the possible burdens on auction applicants be outweighed by the public interest benefits of the proposed preference? 12. As an alternative, the Recommendation suggests that applicants could pre-qualify for preferences and thus avoid subsequent petitions to deny their licenses targeted at their qualification for the preference. Are there Administrative Procedure Act or other concerns for not allowing parties to file petitions challenging a proposed qualification? Is there a reason to treat this qualification differently than other qualifications that are subject to the petition to deny process? Does this raise issues with regard to the requirements of the Communications Act? If an applicant is found to be qualified prior to an auction but experiences a change of status during bidding, or after submitting a winning bid, should the individual remain eligible for the preference? Should a pre-qualification review strictly be limited to the overcoming of substantial disadvantage, or should it be a broader review of an applicant’s license qualifications, provided that the preauction process is extended? 13. The Advisory Committee’s Recommendation suggests three options for the management of qualification review: (1) Establishing a ‘‘special cadre’’ of Commission officials to evaluate applicant qualifications; (2) designing a modified Administrative Law Judge procedure for this purpose; (3) assigning the function to the Commission’s Bureau responsible for oversight of the service in question. What are the relative advantages and disadvantages of each option? What aspects of the current process for review of auction applicant eligibility suggest that these additional PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 options are necessary for the proposed preference program? 14. The Advisory Committee’s Recommendation asks whether a corporation should be able to receive the proposed preference based on the qualifications of its principal. What role should the principal play in a corporation or other business entity to confer eligibility for the preference on the entity? For instance, should the principal be required to have majority equity ownership and a management role? This matter shall be treated as a ‘‘permit-but-disclose’’ proceeding in accordance with the Commission’s ex parte rules 47 CFR 1.1200, 1.1206. 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 twosentence description of the views and arguments presented generally is required. See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-butdisclose proceedings are set forth in 47 CFR 1.1206(b). Gary D. Michaels, Deputy Chief, Auctions and Spectrum Access Division, WTB, Federal Communications Commission. [FR Doc. 2010–32493 Filed 12–23–10; 8:45 am] BILLING CODE 6712–01–P FEDERAL HOUSING FINANCE AGENCY [No. 2010–N–17] Office of Inspector General; Delegation of Authorities Office of Inspector General, Federal Housing Finance Agency. ACTION: Notice of delegation of authorities. AGENCY: This notice delegates two authorities of the Inspector General, Office of Inspector General for the Federal Housing Finance Agency (FHFA–OIG), to the FHFA–OIG Principal Deputy Inspector General, the FHFA–OIG Deputy Inspector General for Audit, the FHFA–OIG Deputy Inspector General for Investigations & Evaluations, and the FHFA–OIG Chief Counsel. These authorities are: (1) The authority to issue subpoenas; and (2) the authority to request information under 5 U.S.C. 552a(b)(7). DATES: Effective Date: December 27, 2010. SUMMARY: E:\FR\FM\27DEN1.SGM 27DEN1

Agencies

[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Notices]
[Pages 81274-81276]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32493]


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FEDERAL COMMUNICATIONS COMMISSION

 [GN Docket No. 10-244; DA 10-2259]


Media and Wireless Telecommunications Bureaus Seek Comment on 
Recommendation of the Advisory Committee on Diversity for 
Communications in the Digital Age

AGENCY: Federal Communications Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Media and Wireless Telecommunications Bureaus of the 
Federal Communications Commission seek comment on a recommendation of 
the Advisory Committee on Diversity for Communications in the Digital 
Age that the Commission consider a new preference program in its 
competitive bidding process to provide bidding credits to individuals 
and entities who have overcome substantial disadvantage.

DATES: Comments are due on or before February 7, 2011; reply comments 
are due on or before February 25, 2011.

ADDRESSES: You may submit comments, identified by GN Docket No. 10-244, 
by any of the following methods:
     Federal Communications Commission's Web Site: https://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. Filings can be sent by 
hand or messenger delivery, by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
     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 telephone: 202-
418-0530 or TTY: 202-418-0432.

FOR FURTHER INFORMATION CONTACT: Media Bureau, Industry Analysis 
Division: Amy Brett at (202) 418-2330, or Wireless Telecommunications 
Bureau, Auctions and Spectrum Access Division: Sayuri Rajapakse at 
(202) 418-0660.

SUPPLEMENTARY INFORMATION: This is a summary of the public notice, 
released December 2, 2010, in GN Docket No. 10-244, seeking comment on 
the Advisory Committee's Recommendation released on October 14, 2010. 
The Advisory Committee's Recommendation, which was released as an 
attachment to the public notice, is available at https://www.fcc.gov/DiversityFAC/meeting101410.html. The complete texts of the public 
notice and Recommendation are available for public inspection and 
copying from 8 a.m. to 4:30 p.m. ET Monday through Thursday or from 8 
a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information 
Center, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The 
public notice may be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street, SW., 
Room CY-B402, Washington, DC 20554, telephone 202-488-5300, fax 202-
488-5563, or you may contact BCPI at its Web site: https://www.BCPIWEB.com. When ordering documents from BCPI, please provide the 
appropriate FCC document number, for example, DA 10-2259. The public 
notice is also available on the Internet at the Commission's Web site 
or by using the search function for GN Docket No. 10-244 on the ECFS 
Web page at https://www.fcc.gov/cgb/ecfs/.
    On October 14, 2010, the Advisory Committee on Diversity for 
Communications in the Digital Age (``Advisory Committee'') formally 
recommended that the Federal Communications Commission (``Commission'') 
undertake a notice of proposed rulemaking to consider how the 
Commission could design, adopt, and implement an additional new 
preference program in its competitive bidding process. Under the 
proposed preference, persons or entities who have overcome substantial 
disadvantage would be eligible for a bidding credit. The Advisory 
Committee explains that the new preference ``would expand the pool of 
designated entities to include those qualified applicants who have 
overcome substantial disadvantage,'' noting that the proposed program 
is

[[Page 81275]]

analogous in some respects to programs used by educational institutions 
in their admissions processes.
    The Advisory Committee's Recommendation acknowledges that a number 
of issues concerning the design and implementation of its proposal 
would need to be refined and resolved by the Commission in a future 
rulemaking proceeding. The Media and Wireless Telecommunications 
Bureaus seek information that will assist the Commission in considering 
whether to launch a proceeding to further examine the components of the 
recommended preference. The Bureaus seek comment on the proposal and 
are especially interested in comments on the following questions. 
Interested parties need not address all the questions presented, but 
are encouraged to respond to those about which they have particular 
knowledge or information.

I. Authority and Objectives

    Sections 309(j)(3)(B) and (4)(D) of the Communications Act of 1934, 
as amended, direct the Commission respectively to seek to disseminate 
licenses among ``a wide variety of applicants, including small 
businesses, rural telephone companies, and businesses owned by members 
of minority groups and women'' and to ``ensure that small businesses, 
rural telephone companies, and businesses owned by members of minority 
groups and women are given the opportunity to participate in the 
provision of spectrum-based services.'' The Commission has established 
a program to promote the involvement of statutorily-identified 
designated entities in the provision of spectrum-based services. 
Designated entities are defined in 47 CFR 1.2110(a) as small 
businesses, businesses owned by members of minority groups and/or 
women, and rural telephone companies. The Commission's primary method 
of promoting the participation of designated entities in competitive 
bidding for wireless services has been to award bidding credits 
(percentage discounts on winning bid amounts) to small business 
applicants. In the context of broadcast services, the Commission 
adopted a tiered new entrant bidding credit to promote the objectives 
of section 309(j) and further its long-standing commitment to the 
diversification of broadcast facility ownership. That bidding credit 
may be awarded to broadcast auction applicants having no, or very few, 
other media interests. The Advisory Committee's Recommendation would 
establish an additional preference for persons or entities that have 
overcome substantial disadvantage.
    1. Would the proposed preference comply with the Communications Act 
and other relevant statutes? Does section 309(j)(4)(D) authorize the 
Commission to establish the proposed preference for individuals who 
have overcome substantial disadvantage? If not, are there other 
statutory provisions that afford sufficient authorization? Would the 
Commission need additional legal authority to implement this new 
preference?
    2. The Commission has previously found that rural telephone 
companies and minority- and women-owned businesses that qualify as 
small businesses are able to take advantage of the provisions we have 
adopted for small businesses. Similarly, in the broadcast context, the 
Commission established its new entrant bidding credit, having found 
that a preference for new entrants would be the most appropriate way to 
implement the statutory provisions regarding opportunities for small, 
minority- and women-owned businesses based on then-available 
information on opportunities for designated entities to participate in 
the provision of broadcast services. The Bureaus seek information to 
assess how individuals who have overcome substantial disadvantage have 
fared under the Commission's existing auction process and the 
designated entity benefits. Have persons who have overcome substantial 
disadvantages had difficulty in obtaining licenses under the existing 
process and designated entity programs? Do data exist that would 
demonstrate that individuals who have overcome substantial disadvantage 
are underrepresented in the Commission's auctions process? Is there 
evidence that persons who have overcome substantial disadvantage are 
more likely than others to utilize Commission licenses in the public 
interest, or do so to a greater extent? If no such data exist, what 
information could be developed to assess the need for the proposed 
bidding preference?
    3. In establishing the existing small business bidding credit 
program, the Commission found that the preferences would allow 
designated entities to overcome barriers that have impeded these 
groups' participation in the telecommunications arena, including 
barriers related to access to capital. The Advisory Committee's 
Recommendation notes that the proposed preference would provide fair 
opportunity to those who have overcome substantial disadvantage and 
that it would result in the introduction of new entrants having diverse 
viewpoints. How would this proposed preference provide additional 
opportunities to individuals and entities that differ from those 
available under our current bidding credit programs?
    4. The Advisory Committee's Recommendation observes that the 
proposed overcoming disadvantage preference would be subject to a 
``rational basis'' constitutional standard and that any Commission 
rulemaking ``must support the conclusion that the overcoming 
disadvantage preference program will serve the public interest and is a 
rational way to further'' the program's public interest objectives. 
What public or governmental interests would be served by establishing 
such a bidding preference? Commenters are specifically invited to 
provide information on what interests would be served under this 
program that are not being addressed with the Commission's existing 
bidding credit programs.
    5. Are there additional constitutional issues raised by the 
Advisory Committee's Recommendation that the Commission should 
consider? If so, what are they? How might they be mitigated or 
eliminated?

II. Eligibility for Preference

    6. The Advisory Committee's Recommendation supplies a non-
exhaustive list of disadvantages that may have had a substantial 
negative impact on an individual's ``entry into or advancement in the 
professional world or other comparable context'' that might justify the 
award of a preference, such as physical disabilities or psychological 
disorders that have rendered professional or business advancement 
substantially more difficult. Are there other categories of 
disadvantages that should qualify an individual for preferences beyond 
those listed in the Recommendation? Should any of the proposed 
disadvantages not be included? Should any of the disadvantages take 
precedence over others? Should there be a point system to weigh the 
relative merit of different disadvantages? Should the Commission 
develop and publish an exclusive list of qualifying disadvantages, or 
should determinations about whether a substantial disadvantage is 
qualifying be made on a case-by-case basis?
    7. The Advisory Committee's Recommendation suggests that any 
disadvantage must be ``substantial'' in order to qualify an applicant 
for a preference. By what means should the Commission assess and/or 
quantify what experience would demonstrate ``substantial'' 
disadvantage?
    8. What degree of success in overcoming a substantial disadvantage 
would an applicant have to demonstrate in order to evidence its 
eligibility for such a preference? How should

[[Page 81276]]

applicants be required to document their successes in ``substantially'' 
or at least ``partially'' overcoming disadvantages? Should any 
successes documented be limited to the applicant's professional 
achievements, or should success in other contexts be considered by the 
Commission?
    9. At what level of success, if any, should an applicant who has 
overcome substantial disadvantages become ineligible for the preference 
(e.g., by what measure of wealth or access to capital)? Should the 
Commission adopt different levels of preference based on a measure of 
wealth or access to capital? What criteria should be used to disqualify 
the applicant from eligibility for a bidding credit? If the Commission 
adopts an additional preference such as that recommended by the 
Advisory Committee, how should the Commission implement the statutory 
requirement to avoid unjust enrichment in the context of its bidding 
preference program?

III. Administration

    10. The Advisory Committee's Recommendation notes that any 
determination of an individual's or entity's eligibility for an 
overcoming disadvantage preference would require an examination of all 
relevant evidence and would be based on an individualized evaluation. 
The individualized reviews that would occur under the proposed program 
are subjective in a manner that distinguishes them from existing 
designated entity programs, which are based on objective criteria such 
as financial data. By what means could applicants demonstrate that they 
qualify for the preference? For example, should a narrative explanation 
suffice? If not, what information or documentation would be necessary 
to substantiate a claim? Should an applicant be permitted to certify 
its eligibility for this preference under penalty of perjury in its 
short-form application when it seeks to participate in an auction, 
similar to the way in which applicants may certify eligibility for new 
entrant and small business bidding credits? If so, what guidance can 
the Commission provide to potential applicants so that they can make a 
good faith certification of eligibility? The Recommendation suggests 
that an overcoming disadvantage preference might be applied differently 
for different services (e.g., a preference might apply only for more 
valuable licenses in a broadcast auction). Would the Commission have to 
tailor the preference for specific services in a rulemaking, similar to 
its existing practice of establishing the small business definitions on 
a service-by-service basis? The Advisory Committee recognized the 
importance of reducing subjectivity and achieving consistency among 
individualized determinations. What standards could the Commission 
implement to achieve those goals?
    11. The Advisory Committee's Recommendation suggests that a 
determination as to whether applicants have overcome disadvantages 
could be made within the existing short-form auction application review 
process. What would be the administrative burden for the Commission to 
conduct individualized review for such a preference within the 
relatively short time frames allotted under the existing auctions 
short-form application process? If the Commission were to allocate 
additional time in the pre-auction process for such reviews, would the 
possible burdens on auction applicants be outweighed by the public 
interest benefits of the proposed preference?
    12. As an alternative, the Recommendation suggests that applicants 
could pre-qualify for preferences and thus avoid subsequent petitions 
to deny their licenses targeted at their qualification for the 
preference. Are there Administrative Procedure Act or other concerns 
for not allowing parties to file petitions challenging a proposed 
qualification? Is there a reason to treat this qualification 
differently than other qualifications that are subject to the petition 
to deny process? Does this raise issues with regard to the requirements 
of the Communications Act? If an applicant is found to be qualified 
prior to an auction but experiences a change of status during bidding, 
or after submitting a winning bid, should the individual remain 
eligible for the preference? Should a pre-qualification review strictly 
be limited to the overcoming of substantial disadvantage, or should it 
be a broader review of an applicant's license qualifications, provided 
that the pre-auction process is extended?
    13. The Advisory Committee's Recommendation suggests three options 
for the management of qualification review: (1) Establishing a 
``special cadre'' of Commission officials to evaluate applicant 
qualifications; (2) designing a modified Administrative Law Judge 
procedure for this purpose; (3) assigning the function to the 
Commission's Bureau responsible for oversight of the service in 
question. What are the relative advantages and disadvantages of each 
option? What aspects of the current process for review of auction 
applicant eligibility suggest that these additional options are 
necessary for the proposed preference program?
    14. The Advisory Committee's Recommendation asks whether a 
corporation should be able to receive the proposed preference based on 
the qualifications of its principal. What role should the principal 
play in a corporation or other business entity to confer eligibility 
for the preference on the entity? For instance, should the principal be 
required to have majority equity ownership and a management role?
    This matter shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules 47 CFR 
1.1200, 1.1206. 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 generally is required. See 47 CFR 
1.1206(b). Other rules pertaining to oral and written ex parte 
presentations in permit-but-disclose proceedings are set forth in 47 
CFR 1.1206(b).

Gary D. Michaels,
Deputy Chief, Auctions and Spectrum Access Division, WTB, Federal 
Communications Commission.
[FR Doc. 2010-32493 Filed 12-23-10; 8:45 am]
BILLING CODE 6712-01-P
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