Modification of the Rules and Procedures Governing the Provision of International Telecommunications Service, 81488-81491 [2010-32490]
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81488
Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations
(Catalog of Federal Domestic Assistance No.
97.022, ‘‘Flood Insurance.’’)
Dated: December 7, 2010.
Sandra K. Knight,
Deputy Federal Insurance and Mitigation
Administrator, Mitigation, Department of
Homeland Security, Federal Emergency
Management Agency.
[FR Doc. 2010–32542 Filed 12–27–10; 8:45 am]
BILLING CODE 9110–12–P
FEDERAL COMMUNICATIONS
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47 CFR Parts 1 and 63
[IB Docket No. 04–47; FCC 10–187]
Modification of the Rules and
Procedures Governing the Provision of
International Telecommunications
Service
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
The Federal Communications
Commission amends its rules to grant in
part the Petition for Reconsideration
filed by the North American Submarine
Cable Association (NASCA) and
otherwise affirm the Commission’s
Report and Order, Amendment of parts
1 and 63 of the Commission’s Rules, IB
Docket No. 04–47, Report and Order,
FCC 07–118, 22 FCC Rcd 11398, 72 FR
54363 (2007) (Report and Order),
establishing that the Coastal Zone
Management Act of 1972 (CZMA)
applies to cable landing licenses granted
by the Commission. NASCA’s Petition
for Reconsideration argues that the
Commission should rescind the rules
adopted in that Report and Order.
Although we decline to rescind the
rules, we amend them to clarify the
applicable licensing requirements and
to ensure that the Commission’s process
for evaluating cable landing licenses
complies with the CZMA review
procedures established by the National
Oceanic and Atmospheric
Administration (NOAA).
DATES: Effective January 27, 2011,
except for the amendment to
§ 1.767(k)(4), which contains
information collection requirements that
have not been approved by the Office of
Management and Budget (OMB). The
Federal Communications Commission
will publish a document in the Federal
Register announcing the effective date
of these rules after it receives OMB
approval for the information collection
requirements.
FOR FURTHER INFORMATION CONTACT:
Kimberly Cook or David Krech, Policy
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SUMMARY:
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Division, International Bureau, FCC,
(202) 418–1460 or via the Internet at
Kimberly.Cook@fcc.gov and
David.Krech@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order on
Reconsideration in IB Docket No. 04–47,
FCC 10–187, adopted October 29, 2010,
and released November 2, 2010. The full
text of the Report and Order is available
for inspection and copying during
normal business hours in the FCC
Reference Center, 445 12th Street, SW.,
Washington, DC 20554. The document
also is available for download over the
Internet at https://hraunfoss.fcc.gov/
edocs_public/attachmatch/FCC-10187A1.pdf. The complete text also may
be purchased from the Commission’s
copy contractor, Best Copy and Printing,
Inc. (BCPI), located in Room CY–B402,
445 12th Street, SW., Washington, DC
20554. Customers may contact BCPI at
its Web site: https://www.bcpiweb.com or
call 1–800–378–3160.
Summary of Order on Reconsideration
1. In the Order on Reconsideration,
the Commission amends parts 1 and 63
of its rules to grant in part the Petition
for Reconsideration filed by the North
American Submarine Cable Association
(NASCA) and otherwise affirms the
Commission’s Report and Order,
Amendment of parts 1 and 63 of the
Commission’s rules, IB Docket No. 04–
47, Report and Order, FCC 07–118, 22
FCC Rcd 11398, 72 FR 54363 (2007)
(Report and Order), establishing that the
Coastal Zone Management Act of 1972
(CZMA) applies to cable landing
licenses granted by the Commission.
NASCA’s Petition for Reconsideration
argues that the Commission should
rescind the rules adopted in that Report
and Order. Although the Commission
declines to rescind the rules, the
Commission amends them to clarify the
applicable licensing requirements and
to ensure that the Commission’s process
for evaluating cable landing licenses
complies with the CZMA review
procedures established by the National
Oceanic and Atmospheric
Administration (NOAA).
2. Applicability of CZMA to FCC
Cable Landing Licenses: The
Commission reaffirms its finding the
Report and Order that the CZMA
applies to cable landing license
applications. In a letter to the
Commission, NOAA, the federal agency
charged with implementation of CZMA,
finds that an FCC license is a federal
license or permit that could be reviewed
by coastal states, pursuant to the CZMA.
In deference to NOAA’s statutory and
regulatory authority and in furtherance
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of the Commission’s cable landing
licensing authority under the Cable
Landing License Act, as delegated to the
Commission by Executive Order 10530,
the FCC must ensure that its cable
landing license rules and application
procedures comport with the
consistency review procedures specified
in the CZMA.
3. The CZMA states that no federal
agency may grant a license to conduct
an activity affecting a coastal area until
a state concurs or is presumed to concur
with the applicant’s certification that a
proposed activity is consistent with the
state’s coastal management plan. See 16
U.S.C. 1456(c)(3)(A). If the state
includes FCC cable landing licensing in
its coastal management plan, FCC
licensing is considered a ‘‘listed
activity.’’ See 15 CFR 930.53. As such,
the state has six months to review and
either concur with or object to the
certification that is required if CZMA
state consistency review is triggered by
the filing of a cable landing license with
the Commission. The state’s
concurrence is conclusively presumed if
it does not act within six months after
receiving the applicant’s certification.
See 16 U.S.C. 1456(c)(3)(A). At this
time, no state has included FCC
licensing in its coastal management
plan. If the state does not include FCC
licensing in its coastal management
plan, such licensing is an ‘‘unlisted
activity.’’ For unlisted activities, NOAA
rules require that the state notify the
relevant federal agencies, applicants,
and the Director of the Office of Ocean
and Coastal Resource Management
(OCRM) (within NOAA) of the state’s
request to review the activity within
thirty days of notice of the license or
permit application, or otherwise be
deemed to have waived the right to
review the unlisted activity. See 15 CFR
930.54.
4. Certification Requirement: The
Order on Reconsideration amends the
certification requirement of § 1.767 to
clarify that the applicant need only
certify that the proposed submarine
cable will not be located in or impact
any state that requires review of FCC
cable landing applications as a listed
activity in its coastal management plan.
5. Constructive Notice to States: The
Order on Reconsideration clarifies that
the thirty-day time period for a state to
request NOAA approval for consistency
review of the application as an unlisted
activity will commence with the
issuance of the Public Notice that the
submarine cable landing license
application has been accepted for filing.
NOAA rules allow for constructive
notice to a state of submission of an
application for licenses for unlisted
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activities. ‘‘Notice to the State agency
may be constructive if notice is
published in an official federal public
notification document or through an
official State clearinghouse. * * *’’ 15
CFR 930.54(a)(2). Issuance of the
accepted-for-filing Public Notice
provides constructive notice to a state of
the submission of submarine cable
landing license application and
commences the thirty-day period
specified in § 930.54(a)(1). This
publication of the Order on
Reconsideration in the Federal Register
provides constructive notice to the
states of this finding and of the utility
of monitoring Public Notices for federal
license activities that may be subject to
consistency review. See 15 CFR
930.54(a)(1), providing that ‘‘[w]ith the
assistance of Federal agencies, State
agencies should monitor unlisted
federal license or permit activities.’’
6. The accepted-for-filing Public
Notice provides a description of the
proposed submarine cable, including
the location of the landing points. The
Public Notice also provides the file
number for the application so that
interested parties can access the
application itself through the FCC Web
site. A cable landing license application
is publicly available before an acceptedfor-filing Public Notice is released. The
application must be filed electronically
via the International Bureau Filing
System (IBFS), 1 CFR 1.767(n); see also
1 CFR 1.10000 et seq., and is available
for viewing though IBFS once it is filed.
IBFS includes a Submarine Cable
Landing Pending Application List as a
pre-defined report, and also allows for
searches for pending applications, as
well as current cable landing licenses.
The Public Notice thus contains
sufficient information about the
proposed activity requiring a cable
landing license to permit potentially
affected states to evaluate whether there
will be an impact that, subject to
NOAA’s agreement, warrants
consistency review.
7. The accepted-for-filing Public
Notices are available on the FCC Web
site and are included in the FCC’s Daily
Digest. The Daily Digest provides a brief
synopsis of Commission documents,
including Public Notices, released each
business day. The Daily Digest is
available on the FCC Web site https://
www.fcc.gov/Daily_Releases/
Daily_Digest, and one can also subscribe
to the Daily Digest and have a copy sent
via e-mail https://www.fcc.gov/
Daily_Releases/Daily_Digest/
subscribe.html.
8. Streamlining Process: Streamlined
processing will be available for all
applications where the states have
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waived, or are deemed to have waived,
any section 1456(c)(3)(A) right to review
the application as an unlisted activity.
Also, all applications for transfer of
control or assignment of a cable landing
station license or modification that do
not affect the construction of a
submarine cable system or cable landing
station are not subject to a consistency
review and are eligible for the
streamlined grant procedures.
9. With the above-discussed
clarification of the rules, the
Commission anticipates that the CZMA
requirements will rarely if ever disrupt
the streamlined processing of cable
landing license applications. Unless a
state were to change its coastal
management program to include FCC
cable landing licenses as a listed
activity, or were to timely request
NOAA approval for consistency review
of a particular cable landing application
as an unlisted federal license activity,
there would be no change to the
Commission’s streamlined process. The
Commission has minimized licensee
burdens associated with compliance
with the CZMA by removing any
ambiguity about the consistency
certification that section 1456(c)(3)(A)
requires to be included in the
application (with a copy to the state) if
this is a listed activity, and clarifying
the requirements with respect to states
that do not list this type of application
in their federally approved state
programs. As long as no state amends its
coastal management program to
designate this type of application as a
listed activity, the Commission must
remove from streamlined processing
only those applications that a state,
within thirty days of constructive notice
of the application, has identified as
involving an unlisted activity that it
believes requires consistency review.
The applicant would be required to
amend its application to submit a
consistency certification (with a copy to
the state) only if OCRM ultimately
approved state consistency review of the
unlisted activity. In that event, a delay
of up to six months from the original
Federal agency notice to the state
agency or three months after the state
receives the applicant’s required
consistency certification, whichever
period terminates last, is unavoidable
under applicable statutory and
regulatory provisions.
10. Workability of Rules: The
Commission disagrees with NASCA that
the CZMA rules present applicants with
a ‘‘Catch-22’’ in Florida. NASCA argues
that applicants face a ‘‘Catch 22’’ in
Florida because Florida requires
applicants to first obtain and submit a
copy of their cable landing license, and
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thus, according to NASCA, under the
CZMA rules, there is no way to obtain
the federal and state approvals needed
to land an undersea cable in Florida.
The Order on Reconsideration notes that
there is no current requirement that a
cable landing license application must
include a certification regarding the
consistency of proposed activities with
Florida’s coastal management program,
because Florida has not included FCC
cable landing licenses as a listed activity
in its coastal management plan.
Consequently, with the clarification to
our rules discussed above, there is no
‘‘Catch-22’’ situation in Florida, because
the certification requirement only
applies to listed activities and
Applicants only need to comply with
the procedures for unlisted activities
discussed above. The Order on
Reconsideration further notes that any
problem with Florida’s specific
situation that may arise in the future
could be addressed in consultation
among the affected parties, including
the state licensing agency, the FCC, and
the Director of OCRM, as would be
required if Florida were to amend its
coastal management program to
designate this type of application as a
listed activity or to receive approval to
review a particular application as an
unlisted activity. Thus, if Florida
amends its coastal management program
to designate a cable landing license
application as a listed activity, the FCC
will take appropriate steps to address
NASCA’s concerns.
11. The new rules do not change what
applicants for a cable landing license
are required to provide the FCC other
than the certification requirements
necessary to alert the Commission of
any outstanding state consistency
review and to ensure Commission
compliance with the CZMA. The new
requirements relate to assuring
compliance with the CZMA, and, as
discussed above, the Commission defers
to NOAA’s expertise in the applicability
of the consistency review procedures
specified in the CZMA.
12. WTO: The Order on
Reconsideration finds that the CZMA
procedures, as clarified, interject no
ambiguity concerning the time normally
required to reach a decision on a license
application. Rather, as required by WTO
commitments, all license processing
requirements, including any delays
attributable to CZMA, are transparent
and spelled out in the applicable
statutes and rules.
13. Request to Defer Effective Date:
NASCA’s request to defer the effective
date of the rules is moot since the
Commission did not put the new rules
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into effect while NASCA’s Petition for
Reconsideration was pending.
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Paperwork Reduction Act of 1995
Analysis
14. The Report and Order contains
rules with new information collections
subject to the Paperwork Reduction Act
of 1995 (PRA), Public Law 104–13 (44
U.S.C. 3501–3520). Implementation of
these rules will be subject to approval
by OMB as prescribed by the PRA. The
Commission has published a separate
notice in the Federal Register inviting
OMB, the general public, and other
Federal agencies to comment on the
information collection requirements
contained in this document. In addition,
the Commission notes pursuant to the
Small Business Paperwork Relief Act of
2002, Public Law 107–298, see 44 U.S.C.
3506(c)(4), that the Commission
previously sought specific comment on
how the Commission may ‘‘further
reduce the information collection
burden for small business concerns with
fewer than 25 employees.’’
Final Regulatory Flexibility Analysis
15. The Regulatory Flexibility Act of
1980, as amended (RFA) requires that a
Regulatory Flexibility Act analysis be
prepared for notice-and-comment rule
making proceedings, unless the agency
certifies that ‘‘the rule will not, if
promulgated, have a significant
economic impact on a substantial
number of small entities.’’ The RFA
generally defines the term ‘‘small entity’’
as having the same meaning as the terms
‘‘small business,’’ ‘‘small organization,’’
and ‘‘small governmental jurisdiction.’’
In addition, the term ‘‘small business’’
has the same meaning as the term ‘‘small
business concern’’ under the Small
Business Act. A ‘‘small business
concern’’ is one which: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the Small Business
Administration (SBA).
16. This proceeding was initiated as
part of the Commission’s 2002 biennial
regulatory review process. Through this
review, the Commission has sought to:
Improve the processing of authorization
applications and regulation of
international services; and lessen the
regulatory burdens placed on carriers.
17. In the Notice of Proposed
Rulemaking, 69 FR 13276, the
Commission certified that the rules
proposed in this proceeding would not
have a significant economic impact on
a substantial number of small entities.
This Order on Reconsideration will
amend the submarine cable landing
rules to require applicants to include
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information regarding an applicant’s
compliance with the Coastal Zone
Management Act of l972. Although the
majority of submarine cable landing
license applicants are not considered
small entities, the rule changes affecting
these applicants are nominal and will
ensure that our rules are consistent with
the Coastal Zone Management Act of
1972. Therefore, we find that the rules
adopted in this Order on
Reconsideration will not have a
significant economic impact on a
substantial number of small entities.
Ordering Clauses
18. For the reasons discussed above,
it is ordered, pursuant to sections 1, 4(i),
4(j), and 5, of the Communications Act
of 1934, as amended, 47 U.S.C. 151,
154(i), 154(j), 155, sections 34–39 of the
Cable Landing License Act, 47 U.S.C.
34–39, and Sections 1.3 and 1.115 of the
Commission’s rules, 47 CFR 1.3, 1.115,
that the Petition for Reconsideration of
the Commission’s Report and Order
filed by NASCA is granted to the extent
described in this Order and is otherwise
denied.
19. It is further ordered that, pursuant
to sections 1, 4(i), 4(j), and 5 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j),
155, and sections 34–39 of the Cable
Landing License Act, 47 U.S.C. 34–39,
Part 1 of the Commission’s rules is
amended as set forth in the Appendix.
20. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this report and order, including the
Final Regulatory Flexibility Act
Certification, to the Chief Counsel for
Advocacy of the Small Business
Administration in accordance with
section 603(a) of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq.
21. It is further ordered that the
Regulatory Flexibility Certification, as
required by section 604 of the
Regulatory Flexibility Act and as set
forth above is adopted.
List of Subjects in 47 CFR Parts 1 and
63
Cable, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 1 as
follows:
■
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PART 1—PRACTICE AND
PROCEDURE
1. The authority citation for part 1
continues to read as follows:
■
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C.
151, 154(j), 160, 201, 225, and 303(r).
2. Section 1.767 is amended by
revising the note to paragraph (a)(10)
and paragraph (k)(4) to read as follows.
■
§ 1.767
*
Cable landing licenses.
*
*
*
*
Note to paragraph (a)(10) —Applicants for
cable landing licenses may be subject to the
consistency certification requirements of the
Coastal Zone Management Act (CZMA), 16
U.S.C. 1456, if they propose to conduct
activities, in or outside of a coastal zone of
a state with a federally-approved
management plan, affecting any land or water
use or natural resource of that state’s coastal
zone. Before filing their applications for a
license to construct and operate a submarine
cable system or to modify the construction of
a previously approved submarine cable
system, applicants must determine whether
they are required to certify that their
proposed activities will comply with the
enforceable policies of a coastal state’s
approved management program. In order to
make this determination, applicants should
consult National Oceanic Atmospheric
Administration (NOAA) regulations, 15 CFR
part 930, Subpart D, and review the approved
management programs of coastal states in the
vicinity of the proposed landing station to
verify that this type of application is not a
listed federal license activity requiring
review. After the application is filed,
applicants should follow the procedures
specified in 15 CFR 930.54 to determine
whether any potentially affected state has
sought or received NOAA approval to review
the application as an unlisted activity. If it
is determined that any certification is
required, applicants shall consult the affected
coastal state(s) (or designated state
agency(ies)) in determining the contents of
any required consistency certification(s).
Applicants may also consult the Office of
Ocean and Coastal Management (OCRM)
within NOAA for guidance. The cable
landing license application filed with the
Commission shall include any consistency
certification required by section 1456(c)(3)(A)
for any affected coastal state(s) that lists this
type of application in its NOAA-approved
coastal management program and shall be
updated pursuant to § 1.65 of the
Commission’s rules, 47 CFR 1.65, to include
any subsequently required consistency
certification with respect to any state that has
received NOAA approval to review the
application as an unlisted federal license
activity. Upon documentation from the
applicant—or notification from each coastal
state entitled to review the license
application for consistency with a federally
approved coastal management program—that
the state has either concurred, or by its
inaction, is conclusively presumed to have
concurred with the applicant’s consistency
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certification, the Commission may take
action on the application.
*
*
*
*
*
(k) * * *
(4) Certifying that for applications for
a license to construct and operate a
submarine cable system or to modify the
construction of a previously approved
submarine cable system the applicant is
not required to submit a consistency
certification to any state pursuant to
section 1456(c)(3)(A) of the Coastal
Zone Management Act (CZMA), 16
U.S.C. 1456.
Note to paragraph (k)(4) —Streamlining of
cable landing license applications will be
limited to those applications where all
potentially affected states, having
constructive notice that the application was
filed with the Commission, have waived, or
are deemed to have waived, any section
1456(c)(3)(A) right to review the application
within the thirty-day period prescribed by 15
CFR 930.54.
[FR Doc. 2010–32490 Filed 12–27–10; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
Summary of Report and Order
47 CFR Part 73
[ET Docket No. 06–94; FCC 10–195]
Digital Television Signals Pursuant to
the Satellite Home Viewer Extension
and Reauthorization Act of 2004
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document the
Commission amends its rules to include
measurement procedures for
determining the strength of a digital
broadcast television (DTV) signal at any
specific location. These procedures will
be used for determining whether
households are eligible to receive
distant DTV network signals
retransmitted by satellite carriers,
pursuant to the provisions of the
Satellite Television Extension and
Localism Act of 2010 (STELA).
DATES: Effective January 27, 2011,
except for amendment to § 73.686(e),
which contains information collection
requirements that are not effective until
approved by the Office of Management
and Budget. The Commission will
publish a document in the Federal
Register announcing the effective date
for that amendment.
FOR FURTHER INFORMATION CONTACT: Ira
Keltz, Office of Engineering and
Technology, (202) 418–0616, e-mail:
Ira.Keltz@fcc.gov, TTY (202) 418–2989.
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SUMMARY:
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Federal Communications
Commission, 445 12th Street, SW.,
Washington, DC 20554.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Report
and Order, ET Docket No. 06–94, FCC
10–195, adopted November 22, 2010
and released November 23, 2010. The
full text of this document is available for
inspection and copying during normal
business hours in the FCC Reference
Center (Room CY–A257), 445 12th
Street, SW., Washington, DC 20554. The
complete text of this document also may
be purchased from the Commission’s
copy contractor, Best Copy and Printing,
Inc., 445 12th Street, SW., Room, CY–
B402, Washington, DC 20554. The full
text may also be downloaded at:
www.fcc.gov.
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).
ADDRESSES:
1. In accordance with the provisions
of the STELA, the Commission amends
its rules to include measurement
procedures for determining the strength
of a digital broadcast television (DTV)
signal at any specific location. These
procedures will be used for determining
whether households are eligible to
receive distant DTV network signals
retransmitted by satellite carriers,
pursuant to the provisions of the
Satellite Television Extension and
Localism Act of 2010 (STELA). The
Report and Order implements DTV
signal measurement procedures
proposed in the Commission’s Notice of
Proposed Rulemaking (SHVERA NPRM),
75 FR 46885, August 4, 2010, and
Further Notice of Proposed Rulemaking
(STELA FNRPM) in this proceeding with
minor modifications. The rules adopted
herein were developed based on our
recommendations in the SHVERA
Report and comments received in
response to the SHVERA NPRM and the
STELA FNPRM. They largely rely on
existing proven methods the
Commission has already established for
measuring analog television signal
strength at any individual location, as
set forth in § 73.686(d) of the existing
rules, but include modifications as
necessary to accommodate the inherent
differences between analog and digital
TV signals. The new digital signal
measurement procedures include
provisions for the location of the
measurement antenna, antenna height,
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81491
signal measurement method, antenna
orientation and polarization, and data
recording.
2. On December 2004, Congress
enacted the Satellite Home Viewer
Extension and Reauthorization Act of
2004 (SHVERA), which amended the
Copyright Act and the Communications
Act to further aid the competitiveness of
satellite carriers and expand program
offerings for satellite TV subscribers
while protecting localism. The SHVERA
included new provisions for distant
digital signal reception and amended
section 339 of the Communications Act
and section 119 of the Copyright Act to
provide three methods by which a
subscriber can establish eligibility to
receive such signals. First, a subscriber
would be eligible to receive the distant
digital signal of a particular network if
his or her household was predicted by
the Satellite Home Viewer Act (SHVA)
ILLR model to be unserved by the overthe-air analog signal of any affiliate of
that network (not necessarily the local
affiliate). Second, a subscriber whose
household was predicted to be served
by a local station’s analog signal could
request an on-site signal strength test to
determine if his or her household is
unable to receive that station’s digital
signal. Third, a satellite subscriber
could receive distant digital signals if
the television network station granted a
waiver to allow satellite retransmission
of the relevant network from a distant
station.
3. Section 204 of the SHVERA also
directed the Commission to conduct an
inquiry regarding whether the
Commission’s digital TV signal strength
standards and signal measurement
procedures for determining if a
household is ‘‘unserved’’ by local signals
should be revised. Section 204 of
SHVERA further directed the
Commission to provide Congress with a
Report on its findings and
recommendations for any revisions that
might be necessary for implementing
DTV measurement standards and
procedures. Pursuant to this
requirement, the Commission issued a
Notice of Inquiry and, on December 8,
2005, issued the SHVERA Report to
Congress that, in relevant part, stated
that the Commission generally believes
that the digital television measurement
procedures should be similar to the
Commission’s current procedures for
measuring the field strength of analog
television stations in § 73.686(d) of the
rules, but with certain modifications to
address the differences between analog
and digital TV signals. The Commission
also stated that no changes are needed
to the digital television field strength
standards and/or planning factors for
E:\FR\FM\28DER1.SGM
28DER1
Agencies
[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81488-81491]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32490]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 63
[IB Docket No. 04-47; FCC 10-187]
Modification of the Rules and Procedures Governing the Provision
of International Telecommunications Service
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Communications Commission amends its rules to
grant in part the Petition for Reconsideration filed by the North
American Submarine Cable Association (NASCA) and otherwise affirm the
Commission's Report and Order, Amendment of parts 1 and 63 of the
Commission's Rules, IB Docket No. 04-47, Report and Order, FCC 07-118,
22 FCC Rcd 11398, 72 FR 54363 (2007) (Report and Order), establishing
that the Coastal Zone Management Act of 1972 (CZMA) applies to cable
landing licenses granted by the Commission. NASCA's Petition for
Reconsideration argues that the Commission should rescind the rules
adopted in that Report and Order. Although we decline to rescind the
rules, we amend them to clarify the applicable licensing requirements
and to ensure that the Commission's process for evaluating cable
landing licenses complies with the CZMA review procedures established
by the National Oceanic and Atmospheric Administration (NOAA).
DATES: Effective January 27, 2011, except for the amendment to Sec.
1.767(k)(4), which contains information collection requirements that
have not been approved by the Office of Management and Budget (OMB).
The Federal Communications Commission will publish a document in the
Federal Register announcing the effective date of these rules after it
receives OMB approval for the information collection requirements.
FOR FURTHER INFORMATION CONTACT: Kimberly Cook or David Krech, Policy
Division, International Bureau, FCC, (202) 418-1460 or via the Internet
at Kimberly.Cook@fcc.gov and David.Krech@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration in IB Docket No. 04-47, FCC 10-187, adopted October
29, 2010, and released November 2, 2010. The full text of the Report
and Order is available for inspection and copying during normal
business hours in the FCC Reference Center, 445 12th Street, SW.,
Washington, DC 20554. The document also is available for download over
the Internet at https://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-187A1.pdf. The complete text also may be purchased from the
Commission's copy contractor, Best Copy and Printing, Inc. (BCPI),
located in Room CY-B402, 445 12th Street, SW., Washington, DC 20554.
Customers may contact BCPI at its Web site: https://www.bcpiweb.com or
call 1-800-378-3160.
Summary of Order on Reconsideration
1. In the Order on Reconsideration, the Commission amends parts 1
and 63 of its rules to grant in part the Petition for Reconsideration
filed by the North American Submarine Cable Association (NASCA) and
otherwise affirms the Commission's Report and Order, Amendment of parts
1 and 63 of the Commission's rules, IB Docket No. 04-47, Report and
Order, FCC 07-118, 22 FCC Rcd 11398, 72 FR 54363 (2007) (Report and
Order), establishing that the Coastal Zone Management Act of 1972
(CZMA) applies to cable landing licenses granted by the Commission.
NASCA's Petition for Reconsideration argues that the Commission should
rescind the rules adopted in that Report and Order. Although the
Commission declines to rescind the rules, the Commission amends them to
clarify the applicable licensing requirements and to ensure that the
Commission's process for evaluating cable landing licenses complies
with the CZMA review procedures established by the National Oceanic and
Atmospheric Administration (NOAA).
2. Applicability of CZMA to FCC Cable Landing Licenses: The
Commission reaffirms its finding the Report and Order that the CZMA
applies to cable landing license applications. In a letter to the
Commission, NOAA, the federal agency charged with implementation of
CZMA, finds that an FCC license is a federal license or permit that
could be reviewed by coastal states, pursuant to the CZMA. In deference
to NOAA's statutory and regulatory authority and in furtherance of the
Commission's cable landing licensing authority under the Cable Landing
License Act, as delegated to the Commission by Executive Order 10530,
the FCC must ensure that its cable landing license rules and
application procedures comport with the consistency review procedures
specified in the CZMA.
3. The CZMA states that no federal agency may grant a license to
conduct an activity affecting a coastal area until a state concurs or
is presumed to concur with the applicant's certification that a
proposed activity is consistent with the state's coastal management
plan. See 16 U.S.C. 1456(c)(3)(A). If the state includes FCC cable
landing licensing in its coastal management plan, FCC licensing is
considered a ``listed activity.'' See 15 CFR 930.53. As such, the state
has six months to review and either concur with or object to the
certification that is required if CZMA state consistency review is
triggered by the filing of a cable landing license with the Commission.
The state's concurrence is conclusively presumed if it does not act
within six months after receiving the applicant's certification. See 16
U.S.C. 1456(c)(3)(A). At this time, no state has included FCC licensing
in its coastal management plan. If the state does not include FCC
licensing in its coastal management plan, such licensing is an
``unlisted activity.'' For unlisted activities, NOAA rules require that
the state notify the relevant federal agencies, applicants, and the
Director of the Office of Ocean and Coastal Resource Management (OCRM)
(within NOAA) of the state's request to review the activity within
thirty days of notice of the license or permit application, or
otherwise be deemed to have waived the right to review the unlisted
activity. See 15 CFR 930.54.
4. Certification Requirement: The Order on Reconsideration amends
the certification requirement of Sec. 1.767 to clarify that the
applicant need only certify that the proposed submarine cable will not
be located in or impact any state that requires review of FCC cable
landing applications as a listed activity in its coastal management
plan.
5. Constructive Notice to States: The Order on Reconsideration
clarifies that the thirty-day time period for a state to request NOAA
approval for consistency review of the application as an unlisted
activity will commence with the issuance of the Public Notice that the
submarine cable landing license application has been accepted for
filing. NOAA rules allow for constructive notice to a state of
submission of an application for licenses for unlisted
[[Page 81489]]
activities. ``Notice to the State agency may be constructive if notice
is published in an official federal public notification document or
through an official State clearinghouse. * * *'' 15 CFR 930.54(a)(2).
Issuance of the accepted-for-filing Public Notice provides constructive
notice to a state of the submission of submarine cable landing license
application and commences the thirty-day period specified in Sec.
930.54(a)(1). This publication of the Order on Reconsideration in the
Federal Register provides constructive notice to the states of this
finding and of the utility of monitoring Public Notices for federal
license activities that may be subject to consistency review. See 15
CFR 930.54(a)(1), providing that ``[w]ith the assistance of Federal
agencies, State agencies should monitor unlisted federal license or
permit activities.''
6. The accepted-for-filing Public Notice provides a description of
the proposed submarine cable, including the location of the landing
points. The Public Notice also provides the file number for the
application so that interested parties can access the application
itself through the FCC Web site. A cable landing license application is
publicly available before an accepted-for-filing Public Notice is
released. The application must be filed electronically via the
International Bureau Filing System (IBFS), 1 CFR 1.767(n); see also 1
CFR 1.10000 et seq., and is available for viewing though IBFS once it
is filed. IBFS includes a Submarine Cable Landing Pending Application
List as a pre-defined report, and also allows for searches for pending
applications, as well as current cable landing licenses. The Public
Notice thus contains sufficient information about the proposed activity
requiring a cable landing license to permit potentially affected states
to evaluate whether there will be an impact that, subject to NOAA's
agreement, warrants consistency review.
7. The accepted-for-filing Public Notices are available on the FCC
Web site and are included in the FCC's Daily Digest. The Daily Digest
provides a brief synopsis of Commission documents, including Public
Notices, released each business day. The Daily Digest is available on
the FCC Web site https://www.fcc.gov/Daily_Releases/Daily_Digest, and
one can also subscribe to the Daily Digest and have a copy sent via e-
mail https://www.fcc.gov/Daily_Releases/Daily_Digest/subscribe.html.
8. Streamlining Process: Streamlined processing will be available
for all applications where the states have waived, or are deemed to
have waived, any section 1456(c)(3)(A) right to review the application
as an unlisted activity. Also, all applications for transfer of control
or assignment of a cable landing station license or modification that
do not affect the construction of a submarine cable system or cable
landing station are not subject to a consistency review and are
eligible for the streamlined grant procedures.
9. With the above-discussed clarification of the rules, the
Commission anticipates that the CZMA requirements will rarely if ever
disrupt the streamlined processing of cable landing license
applications. Unless a state were to change its coastal management
program to include FCC cable landing licenses as a listed activity, or
were to timely request NOAA approval for consistency review of a
particular cable landing application as an unlisted federal license
activity, there would be no change to the Commission's streamlined
process. The Commission has minimized licensee burdens associated with
compliance with the CZMA by removing any ambiguity about the
consistency certification that section 1456(c)(3)(A) requires to be
included in the application (with a copy to the state) if this is a
listed activity, and clarifying the requirements with respect to states
that do not list this type of application in their federally approved
state programs. As long as no state amends its coastal management
program to designate this type of application as a listed activity, the
Commission must remove from streamlined processing only those
applications that a state, within thirty days of constructive notice of
the application, has identified as involving an unlisted activity that
it believes requires consistency review. The applicant would be
required to amend its application to submit a consistency certification
(with a copy to the state) only if OCRM ultimately approved state
consistency review of the unlisted activity. In that event, a delay of
up to six months from the original Federal agency notice to the state
agency or three months after the state receives the applicant's
required consistency certification, whichever period terminates last,
is unavoidable under applicable statutory and regulatory provisions.
10. Workability of Rules: The Commission disagrees with NASCA that
the CZMA rules present applicants with a ``Catch-22'' in Florida. NASCA
argues that applicants face a ``Catch 22'' in Florida because Florida
requires applicants to first obtain and submit a copy of their cable
landing license, and thus, according to NASCA, under the CZMA rules,
there is no way to obtain the federal and state approvals needed to
land an undersea cable in Florida. The Order on Reconsideration notes
that there is no current requirement that a cable landing license
application must include a certification regarding the consistency of
proposed activities with Florida's coastal management program, because
Florida has not included FCC cable landing licenses as a listed
activity in its coastal management plan. Consequently, with the
clarification to our rules discussed above, there is no ``Catch-22''
situation in Florida, because the certification requirement only
applies to listed activities and Applicants only need to comply with
the procedures for unlisted activities discussed above. The Order on
Reconsideration further notes that any problem with Florida's specific
situation that may arise in the future could be addressed in
consultation among the affected parties, including the state licensing
agency, the FCC, and the Director of OCRM, as would be required if
Florida were to amend its coastal management program to designate this
type of application as a listed activity or to receive approval to
review a particular application as an unlisted activity. Thus, if
Florida amends its coastal management program to designate a cable
landing license application as a listed activity, the FCC will take
appropriate steps to address NASCA's concerns.
11. The new rules do not change what applicants for a cable landing
license are required to provide the FCC other than the certification
requirements necessary to alert the Commission of any outstanding state
consistency review and to ensure Commission compliance with the CZMA.
The new requirements relate to assuring compliance with the CZMA, and,
as discussed above, the Commission defers to NOAA's expertise in the
applicability of the consistency review procedures specified in the
CZMA.
12. WTO: The Order on Reconsideration finds that the CZMA
procedures, as clarified, interject no ambiguity concerning the time
normally required to reach a decision on a license application. Rather,
as required by WTO commitments, all license processing requirements,
including any delays attributable to CZMA, are transparent and spelled
out in the applicable statutes and rules.
13. Request to Defer Effective Date: NASCA's request to defer the
effective date of the rules is moot since the Commission did not put
the new rules
[[Page 81490]]
into effect while NASCA's Petition for Reconsideration was pending.
Paperwork Reduction Act of 1995 Analysis
14. The Report and Order contains rules with new information
collections subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13 (44 U.S.C. 3501-3520). Implementation of these rules
will be subject to approval by OMB as prescribed by the PRA. The
Commission has published a separate notice in the Federal Register
inviting OMB, the general public, and other Federal agencies to comment
on the information collection requirements contained in this document.
In addition, the Commission notes pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-298, see 44 U.S.C.
3506(c)(4), that the Commission previously sought specific comment on
how the Commission may ``further reduce the information collection
burden for small business concerns with fewer than 25 employees.''
Final Regulatory Flexibility Analysis
15. The Regulatory Flexibility Act of 1980, as amended (RFA)
requires that a Regulatory Flexibility Act analysis be prepared for
notice-and-comment rule making proceedings, unless the agency certifies
that ``the rule will not, if promulgated, have a significant economic
impact on a substantial number of small entities.'' The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small business concern'' under the
Small Business Act. A ``small business concern'' is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
Small Business Administration (SBA).
16. This proceeding was initiated as part of the Commission's 2002
biennial regulatory review process. Through this review, the Commission
has sought to: Improve the processing of authorization applications and
regulation of international services; and lessen the regulatory burdens
placed on carriers.
17. In the Notice of Proposed Rulemaking, 69 FR 13276, the
Commission certified that the rules proposed in this proceeding would
not have a significant economic impact on a substantial number of small
entities. This Order on Reconsideration will amend the submarine cable
landing rules to require applicants to include information regarding an
applicant's compliance with the Coastal Zone Management Act of l972.
Although the majority of submarine cable landing license applicants are
not considered small entities, the rule changes affecting these
applicants are nominal and will ensure that our rules are consistent
with the Coastal Zone Management Act of 1972. Therefore, we find that
the rules adopted in this Order on Reconsideration will not have a
significant economic impact on a substantial number of small entities.
Ordering Clauses
18. For the reasons discussed above, it is ordered, pursuant to
sections 1, 4(i), 4(j), and 5, of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j), 155, sections 34-39 of the
Cable Landing License Act, 47 U.S.C. 34-39, and Sections 1.3 and 1.115
of the Commission's rules, 47 CFR 1.3, 1.115, that the Petition for
Reconsideration of the Commission's Report and Order filed by NASCA is
granted to the extent described in this Order and is otherwise denied.
19. It is further ordered that, pursuant to sections 1, 4(i), 4(j),
and 5 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
154(i), 154(j), 155, and sections 34-39 of the Cable Landing License
Act, 47 U.S.C. 34-39, Part 1 of the Commission's rules is amended as
set forth in the Appendix.
20. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this report and order, including the Final Regulatory
Flexibility Act Certification, to the Chief Counsel for Advocacy of the
Small Business Administration in accordance with section 603(a) of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
21. It is further ordered that the Regulatory Flexibility
Certification, as required by section 604 of the Regulatory Flexibility
Act and as set forth above is adopted.
List of Subjects in 47 CFR Parts 1 and 63
Cable, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 1 as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 continues to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(j), 160,
201, 225, and 303(r).
0
2. Section 1.767 is amended by revising the note to paragraph (a)(10)
and paragraph (k)(4) to read as follows.
Sec. 1.767 Cable landing licenses.
* * * * *
Note to paragraph (a)(10) --Applicants for cable landing
licenses may be subject to the consistency certification
requirements of the Coastal Zone Management Act (CZMA), 16 U.S.C.
1456, if they propose to conduct activities, in or outside of a
coastal zone of a state with a federally-approved management plan,
affecting any land or water use or natural resource of that state's
coastal zone. Before filing their applications for a license to
construct and operate a submarine cable system or to modify the
construction of a previously approved submarine cable system,
applicants must determine whether they are required to certify that
their proposed activities will comply with the enforceable policies
of a coastal state's approved management program. In order to make
this determination, applicants should consult National Oceanic
Atmospheric Administration (NOAA) regulations, 15 CFR part 930,
Subpart D, and review the approved management programs of coastal
states in the vicinity of the proposed landing station to verify
that this type of application is not a listed federal license
activity requiring review. After the application is filed,
applicants should follow the procedures specified in 15 CFR 930.54
to determine whether any potentially affected state has sought or
received NOAA approval to review the application as an unlisted
activity. If it is determined that any certification is required,
applicants shall consult the affected coastal state(s) (or
designated state agency(ies)) in determining the contents of any
required consistency certification(s). Applicants may also consult
the Office of Ocean and Coastal Management (OCRM) within NOAA for
guidance. The cable landing license application filed with the
Commission shall include any consistency certification required by
section 1456(c)(3)(A) for any affected coastal state(s) that lists
this type of application in its NOAA-approved coastal management
program and shall be updated pursuant to Sec. 1.65 of the
Commission's rules, 47 CFR 1.65, to include any subsequently
required consistency certification with respect to any state that
has received NOAA approval to review the application as an unlisted
federal license activity. Upon documentation from the applicant--or
notification from each coastal state entitled to review the license
application for consistency with a federally approved coastal
management program--that the state has either concurred, or by its
inaction, is conclusively presumed to have concurred with the
applicant's consistency
[[Page 81491]]
certification, the Commission may take action on the application.
* * * * *
(k) * * *
(4) Certifying that for applications for a license to construct and
operate a submarine cable system or to modify the construction of a
previously approved submarine cable system the applicant is not
required to submit a consistency certification to any state pursuant to
section 1456(c)(3)(A) of the Coastal Zone Management Act (CZMA), 16
U.S.C. 1456.
Note to paragraph (k)(4) --Streamlining of cable landing license
applications will be limited to those applications where all
potentially affected states, having constructive notice that the
application was filed with the Commission, have waived, or are
deemed to have waived, any section 1456(c)(3)(A) right to review the
application within the thirty-day period prescribed by 15 CFR
930.54.
[FR Doc. 2010-32490 Filed 12-27-10; 8:45 am]
BILLING CODE 6712-01-P