Connect America Fund, 4100-4107 [2013-01048]
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Federal Register / Vol. 78, No. 13 / Friday, January 18, 2013 / Proposed Rules
0910–0120, which is the control number
for the 510(k) premarket notification
process, to OMB control number 0910–
0231, which is the control number for
the PMA process. FDA estimates that it
will receive seven new PMAs as a result
of this order, if finalized. Based on
FDA’s most recent estimates, this will
result in a 2,421 hour burden increase.
FDA also estimates that there will be
seven fewer 510(k) submissions as a
result of this order, if finalized. Based
on FDA’s most recent estimates, this
will result in a 318 hour burden
decrease. Therefore, on net, FDA
expects a burden hour increase of 2,103
due to this proposed regulatory change.
The collections of information in 21
CFR part 812 have been approved under
OMB control number 0910–0078.
Metal Hip Implants: A Technology
Overview,’’ December 2011.
5. A.J. Smith, et al., ‘‘Failure Rates of
Stemmed Metal-on-Metal Hip
Replacements: Analysis of Data From the
National Joint Registry of England and
Wales,’’ Lancet, 2012:S0140–
6736(12)60353–5, March 13, 2012.
X. Proposed Effective Date
FDA is proposing that any final order
based on this proposed order become
effective 90 days after date of
publication of the final order in the
Federal Register.
Authority: 21 U.S.C. 351, 360, 360c, 360e,
360j, 371.
XI. Comments
Interested persons may submit either
written comments regarding this
document to the Division of Dockets
Management (see ADDRESSES) or
electronic comments to https://
www.regulations.gov. It is only
necessary to send one set of comments.
Identify comments with the docket
number found in brackets in the
heading of this document. Received
comments may be seen in the Division
of Dockets Management between 9 a.m.
and 4 p.m., Monday through Friday, and
will be posted to the docket at https://
www.regulations.gov.
emcdonald on DSK67QTVN1PROD with
XII. References
The following references have been
placed on display in the Division of
Dockets Management (see ADDRESSES),
and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday
through Friday.
1. Medicines and Healthcare Products
Regulatory Agency (MHRA), ‘‘Report of
the Expert Advisory Group Looking at
Soft Tissue Reactions Associated With
Metal-on-Metal Hip Replacements,’’
October, 2010.
2. Tower, S. S., ‘‘Arthroprosthetic Cobaltism:
Neurological and Cardiac Manifestations
in Two Patients with Metal-on-Metal
Arthroplasty: A Case Report,’’ Journal of
Bone and Joint Surgery, 92, 2847–2851,
2010.
3. Australian Orthopaedic Association
National Joint Replacement Registry, Hip
and Knee Arthroplasty Annual Report
2010. Adelaide: Australian Orthopaedic
Association, 2010.
4. American Academy of Orthopedic
Surgeons (AAOS), ‘‘Modern Metal-on-
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2. Section 888.3320 is amended by
revising paragraph (c) to read as follows:
WILL BE ADDED 90 DAYS AFTER
DATE OF PUBLICATION OF A
FUTURE FINAL ORDER IN THE
Federal Register], for any hip joint
metal/metal semi-constrained prosthesis
with an uncemented acetabular
component that was in commercial
distribution before May 28, 1976, or that
has, on or before [A DATE WILL BE
ADDED 90 DAYS AFTER DATE OF
PUBLICATION OF A FUTURE FINAL
ORDER IN THE Federal Register], been
found to be substantially equivalent to
any hip joint metal/metal semiconstrained prosthesis with an
uncemented acetabular component that
was in commercial distribution before
May 28, 1976. Any other hip joint
metal/metal semi-constrained prosthesis
with an uncemented acetabular
component shall have an approved
PMA or declared completed PDP in
effect before being placed in commercial
distribution.
§ 888.3320 Hip joint metal/metal semiconstrained, with a cemented acetabular
component, prosthesis.
Dated: January 14, 2013.
Leslie Kux,
Assistant Commissioner for Policy.
*
[FR Doc. 2013–01006 Filed 1–17–13; 8:45 am]
List of Subjects in 21 CFR Part 888
Medical devices.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, it is proposed that
21 CFR part 888 be amended as follows:
PART 888—ORTHOPEDIC DEVICES
1. The authority citation for 21 CFR
part 888 continues to read as follows:
■
■
*
*
*
*
(c) Date PMA or notice of completion
of PDP is required. A PMA or notice of
completion of a PDP is required to be
filed with the Food and Drug
Administration on or before [A DATE
WILL BE ADDED 90 DAYS AFTER
DATE OF PUBLICATION OF A
FUTURE FINAL ORDER IN THE
Federal Register], for any hip joint
metal/metal semi-constrained prosthesis
with a cemented acetabular component
that was in commercial distribution
before May 28, 1976, or that has, on or
before [A DATE WILL BE ADDED 90
DAYS AFTER DATE OF PUBLICATION
OF A FUTURE FINAL ORDER IN THE
Federal Register], been found to be
substantially equivalent to any hip joint
metal/metal semi-constrained prosthesis
with a cemented acetabular component
that was in commercial distribution
before May 28, 1976. Any other hip joint
metal/metal semi-constrained prosthesis
with a cemented acetabular component
shall have an approved PMA or
declared completed PDP in effect before
being placed in commercial
distribution.
■ 3. Section 888.3330 is amended by
revising paragraph (c) to read as follows:
§ 888.3330 Hip joint metal/metal semiconstrained, with an uncemented
acetabular component, prosthesis.
*
*
*
*
*
(c) Date PMA or notice of completion
of PDP is required. A PMA or notice of
completion of a PDP is required to be
filed with the Food and Drug
Administration on or before [A DATE
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BILLING CODE 4160–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 54
[WC Docket No. 10–90; DA 12–2075]
Connect America Fund
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the Federal
Communications Commission seeks
comment on procedures to determine
what areas are eligible for Connect
America Phase II funding and how
carriers may elect to accept or decline
a statewide commitment in Connect
America Phase II.
DATES: Comments are due on or before
February 19, 2013 and reply comments
are due on or before March 4, 2013. If
you anticipate that you will be
submitting comments, but find it
difficult to do so within the period of
time allowed by this notice, you should
advise the contact listed below as soon
as possible.
ADDRESSES: You may submit comments,
identified by WC Docket No. 10–90, by
any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web Site: https://
SUMMARY:
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Federal Register / Vol. 78, No. 13 / Friday, January 18, 2013 / Proposed Rules
fjallfoss.fcc.gov/ecfs2/. Follow the
instructions for submitting comments.
• People with Disabilities: Contact the
FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by email: FCC504@fcc.gov
or phone: (202) 418–0530 or TTY: (202)
418–0432.
For detailed instructions for
submitting comments and additional
information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT:
Ryan Yates, Wireline Competition
Bureau, (202) 418–0886 or TTY: (202)
418–0484.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Federal
Communications Commission’s
(Commission) Public Notice in WC
Docket No. 10–90, and DA 12–2075,
released December 27, 2012. The
complete text of this document is
available for inspection and copying
during normal business hours in the
FCC Reference Information Center,
Portals II, 445 12th Street SW., Room
CY–A257, Washington, DC 20554. The
document may also 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
(800) 378–3160 or (202) 863–2893,
facsimile (202) 863–2898, or via the
Internet at https://www.bcpiweb.com. It
is also available on the Commission’s
web site at https://www.fcc.gov.
Pursuant to §§ 1.415 and 1.419 of the
Commission’s rules, interested parties
may file comments and reply comments
on or before the dates indicated on the
first page of this document. Comments
may be filed using: (1) The
Commission’s Electronic Comment
Filing System (ECFS); (2) the Federal
Government’s eRulemaking Portal; or (3)
by filing paper copies. See Electronic
Filing of Documents in Rulemaking
Proceedings, 63 FR 24121, May 1, 1998.
• Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://www.fcc.gov/
cgb/ecfs/ or the Federal eRulemaking
Portal: https://www.regulations.gov.
Filers should follow the instructions
provided on the Web site for submitting
comments.
Æ For ECFS filers, if multiple docket
or rulemaking numbers appear in the
caption of this proceeding, filers must
transmit one electronic copy of the
comments for each docket or
rulemaking number referenced in the
caption. In completing the transmittal
screen, filers should include their full
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name, U.S. Postal Service mailing
address, and the applicable docket or
rulemaking number. Parties may also
submit an electronic comment by
Internet email. To get filing instructions,
filers should send an email to
ecfs@fcc.gov, and include the following
words in the body of the message, ‘‘get
form.’’ A sample form and directions
will be sent in response.
Æ Paper Filers: Parties who choose to
file by paper must file an original and
four copies of each filing. If more than
one docket or rulemaking number
appears in the caption of this
proceeding, filers must submit two
additional copies for each additional
docket or rulemaking number.
• Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail
(although we continue to experience
delays in receiving U.S. Postal Service
mail). All filings must be addressed to
the Commission’s Secretary, Office of
the Secretary, Federal Communications
Commission.
Æ The Commission’s contractor will
receive hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary at 236
Massachusetts Avenue NE., Suite 110,
Washington, DC 20002. The filing hours
at this location are 8:00 a.m. to 7:00 p.m.
All hand deliveries must be held
together with rubber bands or fasteners.
Any envelopes must be disposed of
before entering the building.
Æ 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.
Æ U.S. Postal Service first-class,
Express, and Priority mail should be
addressed to 445 12th Street SW.,
Washington, DC 20554.
In addition, one copy of each pleading
must be sent to the Commission’s
duplicating contractor, Best Copy and
Printing, Inc, 445 12th Street SW., Room
CY–B402, Washington, DC 20554; Web
site: www.bcpiweb.com; phone: 1–800–
378–3160. Furthermore, two copies of
each pleading must be sent to Charles
Tyler, Telecommunications Access
Policy Division, Wireline Competition
Bureau, 445 12th Street SW., Room 5–
A452, Washington, DC 20554; email:
Charles.Tyler@fcc.gov and one copy to
Ryan Yates, Telecommunications
Access Policy Division, Wireline
Competition Bureau, 445 12th Street
SW., Room 5–B441A, Washington, DC
20554; email: Ryan.Yates@fcc.gov.
Filings and comments are also
available for public inspection and
copying during regular business hours
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at the FCC Reference Information
Center, Portals II, 445 12th Street SW.,
Room CY–A257, Washington, DC 20554.
Copies may also be purchased from the
Commission’s duplicating contractor,
BCPI, 445 12th Street SW., Room CY–
B402, Washington, DC 20554.
Customers may contact BCPI through its
Web site: www.bcpiweb.com, by email at
fcc@bcpiweb.com, by telephone at (202)
488–5300 or (800) 378–3160 (voice),
(202) 488–5562 (tty), or by facsimile at
(202) 488–5563.
To request materials in accessible
formats for people with disabilities
(Braille, large print, electronic files,
audio format), send an email to
fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at (202)
418–0530 (voice) or (202) 418–0432
(TTY). Contact the FCC to request
reasonable accommodations for filing
comments (accessible format
documents, sign language interpreters,
CART, etc.) by email: FCC504@fcc.gov;
phone: (202) 418–0530 or TTY: (202)
418–0432.
I. Introduction
1. The Commission has delegated to
the Wireline Competition Bureau
(Bureau) the task of developing a
forward-looking cost model to
determine support levels to be offered to
price cap carriers in Phase II of the
Connect America Fund. The Bureau
recently announced the availability of
version one of the Connect America
Cost Model, which provides the ability
to calculate costs using a variety of
different inputs and assumptions.
2. The Bureau expects to solicit
additional public comment on the cost
model through its ongoing Virtual
Workshop, which focuses on technical
model design and input issues, and
public notices, which will focus on
other issues relating to implementation
of Phase II, before finalizing the Connect
America Cost Model.
3. In this Public Notice, the Bureau
proposes procedures to provide an
opportunity for parties to challenge
whether census blocks that are
identified as eligible to receive Phase II
support are in fact unserved by an
unsubsidized competitor. We also seek
comment on procedures relating to the
election of price cap carriers to accept
Phase II support in exchange for making
a statewide commitment.
II. Discussion
A. Procedures for Challenging Whether
an Area Is Served by an Unsubsidized
Competitor
4. The Commission directed the
Bureau, after the cost model is adopted,
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to ‘‘publish a list of all eligible census
blocks’’ (specifically, those census
blocks in price cap territories below the
extremely high-cost threshold but above
the funding threshold) and provide an
opportunity for parties to ‘‘challenge the
determination of whether or not areas
are unserved by an unsubsidized
competitor.’’ We propose to utilize the
following procedures to allow interested
parties to make such challenges when
we adopt a final model and seek
comment on these proposed procedures.
5. The Commission concluded that ‘‘it
would be appropriate to exclude any
area served by an unsubsidized
competitor,’’ and it delegated to the
Bureau ‘‘the task of implementing the
specific requirements of this rule.’’
Consistent with the directive in the
USF/ICC Transformation Order, 76 FR
73830, November 29, 2011, we propose
to publish a list of eligible census blocks
classified by the cost model as unserved
by an unsubsidized competitor offering
service that meets the broadband
performance obligations for Phase II. For
purposes of this determination, the
Commission has defined an
unsubsidized competitor as one that is
offering terrestrial fixed broadband with
an advertised speed of 4 Mbps
downstream and 1 Mbps upstream.
Consistent with the approach adopted
by the Commission for Connect America
Phase I, we propose to use 3 Mbps
downstream and 768 kbps upstream as
a proxy for 4 Mbps downstream and 1
Mbps upstream in developing this
initial list because that information is
readily available from other data
sources. Likewise, for administrative
simplicity, we propose that to the extent
a party is challenging the classification
of a particular census block, it may
present evidence demonstrating the
block in question is served by service
providing 3 Mbps downstream and 768
kbps upstream.
6. We expect the final Connect
America Cost Model we adopt will use
the National Broadband Map reflecting
State Broadband Initiative (SBI) data as
of June 2012, potentially supplemented
with other data sources. Once we
publish the relevant list of unserved
census blocks with costs between the
extremely high-cost threshold and the
funding threshold shown in the model,
we propose that interested parties
would then have an opportunity to
challenge that list. Specifically,
challengers would submit revisions and
other potential corrections to the list of
eligible census blocks where coverage
by unsubsidized competitors is either
overstated (i.e., census blocks are listed
as served where they are in fact
unserved) or understated (i.e., census
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blocks are listed as unserved when they
are in fact served). We propose that
parties contending the Bureau’s original
classification as served or unserved is
accurate would have an opportunity to
submit evidence to rebut the challenge.
7. Commenters seeking to challenge
the eligibility of a particular area for
funding would be required to list
specific census blocks that are
inaccurately classified as served or
unserved by an unsubsidized
competitor, along with a brief statement
and supporting evidence demonstrating
that those census blocks are
inaccurately reported. We propose not
to process any challenge that lacks some
evidentiary showing regarding the
census block in question; a challenge
that merely asserts the area is or is not
served would not be sufficient.
Challenges to a census block’s eligibility
may be based on any or all of the
Commission’s broadband performance
metrics—speed, latency, and/or capacity
(i.e., minimum usage allowance).
Challenges may also be based on nonperformance metrics that affect the
availability of broadband in a census
block. For example, if the provider of
broadband in that census block only
offers service to business customers and
not residential customers, the status of
that block as served may be challenged.
8. Consistent with our proposal above,
we propose that to be deemed served, a
census block must have access to
broadband with speeds of at least 3
Mbps downstream and 768 kbps
upstream. Proposed examples of
potential types of probative evidence
regarding the availability of broadband
service meeting the speed requirements
established by the Commission include,
but are not limited to, more recent SBI
data than that used in version of the
model adopted by the Bureau; maps or
printouts of Web sites indicating
coverage for a particular area
accompanied by an officer certification
that such materials reflect current
conditions; printouts of billing
information for customers within the
particular census block, with identifying
customer information appropriately
masked; engineering analyses or drive
tests; explanations of methodologies for
determining coverage; and certifications
by one or more individuals as to the
veracity of the material provided. What
other information regarding the speed of
alleged service offerings would be
readily available to potential challengers
or parties seeking to maintain the
classification of an area as shown on the
National Broadband Map?
9. The Commission specified in the
USF/ICC Transformation Order that
latency should be sufficiently low as to
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enable real-time applications, such as
Voice over Internet Protocol (VoIP).
Proposed examples of potential types of
probative evidence regarding latency
include, but are not limited to,
documentation that a provider is
actually offering voice service to
customers in the relevant area, such as
a printout of a Web site showing voice
service availability at a particular
address in the census block
accompanied by an officer certification,
or a sworn declaration from one or more
customers within the census block that
they subscribe to voice from that
provider. What other information
regarding the latency of alleged service
offerings would be readily available to
potential challengers or parties seeking
to maintain the classification of an area
as shown on the National Broadband
Map?
10. The Commission delegated to the
Wireline Competition Bureau and
Wireless Telecommunications Bureau
the task of adopting capacity or
‘‘minimum usage allowance’’
requirements for recipients of Phase II
support. Proposed examples of potential
types of probative evidence regarding
minimum usage include, but are not
limited to, a printout of a Web site
showing market offerings meeting the
minimum usage requirement
accompanied by an officer certification,
or a sworn declaration from one or more
customers within the census block that
they subscribe to a service offering
meeting the minimum usage allowance
requirement. What other information
regarding the capacity of alleged service
offerings would be readily available to
potential challengers or parties seeking
to maintain the classification of an area
as shown on the National Broadband
Map? Should we require one or more of
these evidentiary showings for a
challenge to be deemed complete as
filed?
11. We propose that all certifications
regarding evidence supporting or
opposing a challenge be signed by an
individual with relevant knowledge
(such as officer of the company making
or opposing the challenge, or a
representative of the state mapping
agency) certifying that the information
presented is accurate to the best of his
or her knowledge.
12. To assist in the development of a
more complete record, we also seek
comment on how to ensure that
potentially interested parties are aware
of the opportunity for public input. For
instance, should a purported
unsubsidized competitor challenging
the classification of a block as unserved
(and therefore eligible for funding) be
required to serve a copy of its challenge
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on the price cap carrier? If a price cap
carrier believes a particular census
block should be on the list of blocks
eligible for funding (because it is not
served), should it be required to serve a
copy of its challenge by overnight
delivery on any entity shown as serving
the block on the National Broadband
Map?
13. We intend to conduct this
challenge process in an expeditious
fashion. We propose that after the
release of the list of census blocks,
parties would have 45 days to file
challenges to the list. Parties wishing to
rebut such challenges would have an
additional 20 days to submit evidence
supporting their contentions. We seek
comment on whether this proposed time
frame adequately serves our goal of
providing a meaningful opportunity for
challenge, while concluding this
challenge process in a reasonable
timeframe. We propose that all evidence
regarding the status of a particular
census block must be filed within this
timeframe; any evidence filed after these
dates will be deemed untimely. Strict
adherence to these deadlines is
necessary to provide an adequate
opportunity for the party that contends
the classification as served or unserved
is accurate to respond to all evidence
submitted by the challenger within the
reply comment timeframe, and in order
for this administrative process to be
completed expeditiously.
14. At the close of the challenge
timeframe, we propose that where the
Bureau finds that it is more likely than
not that a census block is inaccurately
classified as served or unserved, we
would modify the classification of that
census block for purposes of finalizing
the census blocks that will be eligible
for a price cap carrier statewide
commitment under the Connect
America Phase II program. In the event
that both the challenger and the
opponent provide credible evidence
regarding the status of a particular
block, we propose that the default
determination will be however the block
is classified on the National Broadband
Map at the time the challenge is
resolved. We recognize the practical
difficulties that may ensue in situations
where one party says service exists and
the other party says service does not
exist. Because it may be difficult and
expensive for the party contending that
service does not exist to prove a
negative, we propose that the most
expedient solution in such situations is
to rely upon the most current available
map data.
15. We propose that, in making its
determinations, the Bureau would
consider whether the challenger took
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steps to bring the alleged errors in the
National Broadband Map to the
attention of the relevant state mapping
authority and the outcome of any such
efforts. It is possible that the December
2012 SBI data may become available
shortly before or after the forward
looking cost model is adopted, and
therefore challengers may wish to
present evidence of the more recent
classification on the National
Broadband Map in their challenges. If
December 2012 SBI data is available at
the time the Bureau resolves these
challenges, we propose to rely upon the
December 2012 classification.
16. While the Bureau will rely on
updates to the available SBI data, we
propose to focus on evidence regarding
current broadband availability at the
time we resolve the challenge, and not
on announced market expansion plans
that may occur at some future date. We
note that announced deployment plans
may change for business and other
reasons, and if we were to exclude a
census block area based on announced
plans to extend service to that block,
that could provide an opportunity for
potential competitors to engage in
strategic behavior to eliminate support
for a particular census block, without an
assurance that the competitor will
actually serve the block at a future date.
17. We also propose that the Bureau
only include on the preliminary list of
blocks eligible for funding those census
blocks that are completely unserved. We
further propose to treat partially served
census blocks as served and therefore
not eligible for funding in Phase II. We
anticipate that entertaining challenges
with respect to potentially many
thousands of individual census blocks
could be a significant undertaking by
itself, and we are concerned that the
administrative burden of permitting
challenges at the sub-census block level
would outweigh the potential benefits.
We therefore propose to conduct the
challenge process at the census block
level. To the extent commenters believe
that we should entertain sub-census
block challenges, they should describe
with specificity how their proposed
process would work, and in particular
how we would ensure compliance with
build out requirements in partially
served census blocks.
18. We seek comment on all these
proposals and on any alternatives. If
commenters believe different
procedures would better serve the
Commission’s goal of targeting support
to areas without unsubsidized
competitors, they should provide a
detailed description of their preferred
alternative. We welcome suggested
alternatives that minimize the impact of
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these proposals on small businesses, as
well as comments regarding the cost and
benefits of implementing these
proposals.
B. Procedures for Implementing the
Price Cap Carrier Election To Make a
Statewide Commitment
19. We propose that after reviewing
any public comment, the Bureau will
publish a revised list of census blocks
and a revised list of support amounts
associated with each eligible area that
will be offered to price cap carriers. We
seek comment on whether the election
period should be 90 days from the date
of release of the finalized list, which
would be the same as the time period
provided to price cap carriers for
electing to accept incremental support
for Connect America Phase I. In the
alternative, should the time period for
price cap carriers to elect to make a
statewide commitment in Phase II be
longer, such as 120 days, due to the
complexity of the decisions individual
carriers will need to make? We also seek
comment on requiring the submissions
either electing or declining support to
be submitted on a confidential basis
prior to the deadline for election.
Should carriers be allowed or required
to make confidential submissions? In
the event that such submissions were
afforded confidentiality, we propose
that the Bureau would announce all
statewide elections on a single date
shortly after the close of the election
period.
20. We propose that a carrier electing
to accept the statewide commitment
would submit a letter, signed by an
officer of the company, by the deadline
specifying that it agrees to meet the
Commission’s requirements in exchange
for receiving support in amounts set
forth in the final Bureau public notice.
To the extent a letter of credit or other
form of security is required to ensure
compliance with these obligations, we
propose to require its submission within
ten days of exercising the statewide
commitment.
21. We seek comment on what
information carriers should be required
to submit along with their acceptance
notices. Should such carriers be
required to specify the technology or
combination of technologies they intend
to deploy in a particular state, at the
wire center or census block level?
Should carriers also be required to
provide information such as geocoded
latitude and longitude location
information, along with census block
and wire center information, for the
specific locations where they intend to
provide service meeting the 6 Mbps
downstream/1.5 Mbps upstream
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requirement, as determined by the
Bureau? Should carriers be required at
the time of acceptance to submit a
preliminary plan showing the census
blocks and/or wire centers, and
associated number of locations, where
they anticipate meeting the third year 85
percent build-out milestone? What other
information should be required in the
initial acceptance notices in order to
ensure the Commission has the tools it
needs to monitor compliance with
performance obligations? Should the
Commission afford confidential
treatment to any of the information
required to be submitted after the
Bureau announces the acceptance by
carriers of funding on a statewide level?
22. We propose that a carrier
declining to accept a statewide
commitment in a particular state would
file a letter by the deadline specifying
that it is declining funding.
Alternatively, a carrier failing to file a
letter by the deadline could be deemed
as having declined funding.
23. We seek comment on all these
proposals and on any alternatives. To
the extent commenters believe that
other procedures would better serve the
Commission’s goals, they should
provide a detailed description of their
proposal for the statewide commitment
process. We welcome suggested
alternatives that minimize the impact of
these proposals on small businesses, as
well as comments regarding the cost and
benefits of implementing these
proposals.
III. Procedural Matters
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A. Initial Regulatory Flexibility Act
Analysis
24. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), the Commission has prepared
this Initial Regulatory Flexibility
Analysis (IRFA) of the possible
significant economic impact on a
substantial number of small entities by
the policies and rules proposed in this
Public Notice. Written comments are
requested on this IRFA. Comments must
be identified as responses to the IRFA
and must be filed by the deadlines for
comments on the Public Notice. The
Commission will send a copy of the
Public Notice, including this IRFA, to
the Chief Counsel for Advocacy of the
Small Business Administration (SBA).
In addition, the Public Notice and IRFA
(or summaries thereof) will be
published in the Federal Register.
B. Need for, and Objectives of, the
Proposed Rules
25. The Public Notice seeks comment
on issues related to the implementation
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of Phase II of Connect America. As
discussed in the USF/ICC
Transformation Order, the rapid and
efficient deployment of broadband is
crucial for our nation’s growth. The
proposals contained in this public
notice will help to achieve the
Commission’s goal of making broadband
accessible to all Americans.
26. The Bureau is currently in the
process of developing a cost model for
Phase II of Connect America. The
Commission directed the Bureau to
publish a list of census blocks that
would be eligible for support under the
cost model, and to provide an
opportunity for parties to make
challenges to that list. This Public
Notice seeks comment on how to
conduct such a challenge process and
what data should be used in that
process. The Bureau plans to publish a
list of census blocks that are within the
cost model’s funding threshold but are
unserved by broadband with speeds of
3 Mbps downstream and 768 kbps
upstream. Parties could then submit
comments challenging the accuracy of
that list.
27. The Public Notice proposes that
parties could make challenges based on
the fact that a purported unsubsidized
competitor is or is not meeting the
broadband performance requirements
for speed, latency, or capacity. The
Public Notice also suggests various
forms of evidence that could be
submitted to support these contentions.
Assertions that are offered without
supporting evidence would not be
considered. Where the Bureau finds its
more likely than not that a census block
is inaccurately classified as served or
unserved, that census block’s status
would be altered accordingly for the
purposes of Phase II eligibility.
28. Under the system proposed in the
Public Notice, parties challenging the
eligibility of a particular census block
would be required to serve a copy of
their challenge on the entity
purportedly serving that block. That
entity would then have an opportunity
to respond and provide evidence
rebutting that challenge. In the event
that both the challenger and the
respondent provide credible
information supporting their claims, the
census block’s status would be
determined based on its current status
on the most recent version of National
Broadband Map available at the time the
list of eligible areas is finalized.
29. The Public Notice also sets limits
on the types of challenges considered.
First, only wholly unserved census
blocks would be eligible for Phase II
support. Therefore, under the proposed
system, sub-census block challenges
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would not be considered. Second,
challenges and rebuttals must be based
on current broadband availability, not
announced deployment plans.
30. In addition to seeking comment on
issues related to the Phase II challenge
process, the Public Notice also seeks
comment on procedures for
implementing the process of price cap
carriers’ election to receive support in
exchange for a commitment to serve all
eligible areas within a state. Comment is
sought on what time period should be
used in this process. The Public Notice
also seeks comment on what
information a carrier should be required
to submit when accepting a statewide
commitment.
C. Legal Basis
31. The legal basis for any action that
may be taken pursuant to the Public
Notice is contained in sections 1, 4(i),
4(j), 214, and 218, of the
Communications Act of 1934, as
amended, and section 706 of the
Telecommunications Act of 1996.
D. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply
32. The RFA directs agencies to
provide a description of, and where
feasible, an estimate of the number of
small entities that may be affected by
the proposed rules, if adopted. The RFA
generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small-business concern’’
under the Small Business Act. A smallbusiness concern’’ is one which: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the SBA.
33. Small Businesses. Nationwide,
there are a total of approximately 27.5
million small businesses, according to
the SBA.
34. Wired Telecommunications
Carriers. The SBA has developed a
small business size standard for Wired
Telecommunications Carriers, which
consists of all such companies having
1,500 or fewer employees. According to
Census Bureau data for 2007, there were
3,188 firms in this category, total, that
operated for the entire year. Of this
total, 3,144 firms had employment of
999 or fewer employees, and 44 firms
had employment of 1,000 employees or
more. Thus, under this size standard,
the majority of firms can be considered
small.
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35. Local Exchange Carriers (LECs).
Neither the Commission nor the SBA
has developed a size standard for small
businesses specifically applicable to
local exchange services. The closest
applicable size standard under SBA
rules is for Wired Telecommunications
Carriers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees. According to
Commission data, 1,307 carriers
reported that they were incumbent local
exchange service providers. Of these
1,307 carriers, an estimated 1,006 have
1,500 or fewer employees and 301 have
more than 1,500 employees.
Consequently, the Commission
estimates that most providers of local
exchange service are small entities that
may be affected by the rules and
policies proposed in the Public Notice.
36. Incumbent Local Exchange
Carriers (incumbent LECs). Neither the
Commission nor the SBA has developed
a size standard for small businesses
specifically applicable to incumbent
local exchange services. The closest
applicable size standard under SBA
rules is for Wired Telecommunications
Carriers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees. According to
Commission data, 1,307 carriers
reported that they were incumbent local
exchange service providers. Of these
1,307 carriers, an estimated 1,006 have
1,500 or fewer employees and 301 have
more than 1,500 employees.
Consequently, the Commission
estimates that most providers of
incumbent local exchange service are
small businesses that may be affected by
rules adopted pursuant to the Public
Notice.
37. We have included small
incumbent LECs in this present RFA
analysis. As noted above, a ‘‘small
business’’ under the RFA is one that,
inter alia, meets the pertinent small
business size standard (e.g., a telephone
communications business having 1,500
or fewer employees), and ‘‘is not
dominant in its field of operation.’’ The
SBA’s Office of Advocacy contends that,
for RFA purposes, small incumbent
LECs are not dominant in their field of
operation because any such dominance
is not ‘‘national’’ in scope. We have
therefore included small incumbent
LECs in this RFA analysis, although we
emphasize that this RFA action has no
effect on Commission analyses and
determinations in other, non-RFA
contexts.
38. Competitive Local Exchange
Carriers (competitive LECs), Competitive
Access Providers (CAPs), Shared-Tenant
Service Providers, and Other Local
Service Providers. Neither the
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Commission nor the SBA has developed
a small business size standard
specifically for these service providers.
The appropriate size standard under
SBA rules is for the category Wired
Telecommunications Carriers. Under
that size standard, such a business is
small if it has 1,500 or fewer employees.
According to Commission data, 1,442
carriers reported that they were engaged
in the provision of either competitive
local exchange services or competitive
access provider services. Of these 1,442
carriers, an estimated 1,256 have 1,500
or fewer employees and 186 have more
than 1,500 employees. In addition, 17
carriers have reported that they are
Shared-Tenant Service Providers, and
all 17 are estimated to have 1,500 or
fewer employees. In addition, 72
carriers have reported that they are
Other Local Service Providers. Of the
72, seventy have 1,500 or fewer
employees and two have more than
1,500 employees. Consequently, the
Commission estimates that most
providers of competitive local exchange
service, competitive access providers,
Shared-Tenant Service Providers, and
Other Local Service Providers are small
entities that may be affected by rules
adopted pursuant to the Public Notice.
39. Wireless Telecommunications
Carriers (except Satellite). Since 2007,
the SBA has recognized wireless firms
within this new, broad, economic
census category. Prior to that time, such
firms were within the now-superseded
categories of Paging and Cellular and
Other Wireless Telecommunications.
Under the present and prior categories,
the SBA has deemed a wireless business
to be small if it has 1,500 or fewer
employees. For this category, census
data for 2007 show that there were 1,383
firms that operated for the entire year.
Of this total, 1,368 firms had
employment of 999 or fewer employees
and 15 had employment of 1,000
employees or more. Similarly, according
to Commission data, 413 carriers
reported that they were engaged in the
provision of wireless telephony,
including cellular service, Personal
Communications Service (PCS), and
Specialized Mobile Radio (SMR)
Telephony services. Of these, an
estimated 261 have 1,500 or fewer
employees and 152 have more than
1,500 employees. Consequently, the
Commission estimates that
approximately half or more of these
firms can be considered small. Thus,
using available data, we estimate that
the majority of wireless firms can be
considered small.
40. Broadband Personal
Communications Service. The
broadband personal communications
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4105
service (PCS) spectrum is divided into
six frequency blocks designated A
through F, and the Commission has held
auctions for each block. The
Commission defined ‘‘small entity’’ for
Blocks C and F as an entity that has
average gross revenues of $40 million or
less in the three previous calendar
years. For Block F, an additional
classification for ‘‘very small business’’
was added and is defined as an entity
that, together with its affiliates, has
average gross revenues of not more than
$15 million for the preceding three
calendar years. These standards
defining ‘‘small entity’’ in the context of
broadband PCS auctions have been
approved by the SBA. No small
businesses, within the SBA-approved
small business size standards bid
successfully for licenses in Blocks A
and B. There were 90 winning bidders
that qualified as small entities in the
Block C auctions. A total of 93 small
and very small business bidders won
approximately 40 percent of the 1,479
licenses for Blocks D, E, and F. In 1999,
the Commission re-auctioned 347 C, E,
and F Block licenses. There were 48
small business winning bidders. In
2001, the Commission completed the
auction of 422 C and F Broadband PCS
licenses in Auction 35. Of the 35
winning bidders in this auction, 29
qualified as ‘‘small’’ or ‘‘very small’’
businesses. Subsequent events,
concerning Auction 35, including
judicial and agency determinations,
resulted in a total of 163 C and F Block
licenses being available for grant. In
2005, the Commission completed an
auction of 188 C block licenses and 21
F block licenses in Auction 58. There
were 24 winning bidders for 217
licenses. Of the 24 winning bidders, 16
claimed small business status and won
156 licenses. In 2007, the Commission
completed an auction of 33 licenses in
the A, C, and F Blocks in Auction 71.
Of the 14 winning bidders, six were
designated entities. In 2008, the
Commission completed an auction of 20
Broadband PCS licenses in the C, D, E
and F block licenses in Auction 78.
41. Fixed Microwave Services. Fixed
microwave services include common
carrier, private operational-fixed, and
broadcast auxiliary radio services. At
present, there are approximately 22,015
common carrier fixed licensees and
61,670 private operational-fixed
licensees and broadcast auxiliary radio
licensees in the microwave services.
The Commission has not created a size
standard for a small business
specifically with respect to fixed
microwave services. For purposes of
this analysis, the Commission uses the
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SBA small business size standard for
Wireless Telecommunications Carriers
(except Satellite), which is 1,500 or
fewer employees. The Commission does
not have data specifying the number of
these licensees that have more than
1,500 employees, and thus is unable at
this time to estimate with greater
precision the number of fixed
microwave service licensees that would
qualify as small business concerns
under the SBA’s small business size
standard. Consequently, the
Commission estimates that there are up
to 22,015 common carrier fixed
licensees and up to 61,670 private
operational-fixed licensees and
broadcast auxiliary radio licensees in
the microwave services that may be
small and may be affected by the rules
and policies adopted herein. We note,
however, that the common carrier
microwave fixed licensee category
includes some large entities.
42. Satellite Telecommunications.
Since 2007, the SBA has recognized
satellite firms within this revised
category, with a small business size
standard of $15 million. The most
current Census Bureau data are from the
economic census of 2007, and we will
use those figures to gauge the
prevalence of small businesses in this
category. Those size standards are for
the two census categories of ‘‘Satellite
Telecommunications’’ and ‘‘Other
Telecommunications.’’ Under the
‘‘Satellite Telecommunications’’
category, a business is considered small
if it had $15 million or less in average
annual receipts. Under the ‘‘Other
Telecommunications’’ category, a
business is considered small if it had
$25 million or less in average annual
receipts.
43. The first category of Satellite
Telecommunications ‘‘comprises
establishments primarily engaged in
providing telecommunications services
to other establishments in the
telecommunications and broadcasting
industries by forwarding and receiving
communications signals via a system of
satellites or reselling satellite
telecommunications.’’ For this category,
Census Bureau data for 2007 show that
there were a total of 512 firms that
operated for the entire year. Of this
total, 464 firms had annual receipts of
under $10 million, and 18 firms had
receipts of $10 million to $24,999,999.
Consequently, we estimate that the
majority of Satellite
Telecommunications firms are small
entities that might be affected by rules
adopted pursuant to the Public Notice.
44. The second category of Other
Telecommunications ‘‘primarily
engaged in providing specialized
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telecommunications services, such as
satellite tracking, communications
telemetry, and radar station operation.’’
This industry also includes
establishments ‘‘primarily engaged in
providing satellite terminal stations and
associated facilities connected with one
or more terrestrial systems and capable
of transmitting telecommunications to,
and receiving telecommunications from,
satellite systems; or * * * providing
Internet services or voice over Internet
protocol (VoIP) services via clientsupplied telecommunications
connections.’’ For this category, Census
Bureau data for 2007 show that there
were a total of 2,383 firms that operated
for the entire year. Of this total, 2,346
firms had annual receipts of under $25
million. Consequently, we estimate that
the majority of Other
Telecommunications firms are small
entities that might be affected by our
action.
45. Cable and Other Program
Distribution. Since 2007, these services
have been defined within the broad
economic census category of Wired
Telecommunications Carriers; that
category is defined as follows: ‘‘This
industry comprises establishments
primarily engaged in operating and/or
providing access to transmission
facilities and infrastructure that they
own and/or lease for the transmission of
voice, data, text, sound, and video using
wired telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies.’’ The SBA has developed
a small business size standard for this
category, which is: all such firms having
1,500 or fewer employees. According to
Census Bureau data for 2007, there were
a total of 955 firms in this previous
category that operated for the entire
year. Of this total, 939 firms had
employment of 999 or fewer employees,
and 16 firms had employment of 1,000
employees or more. Thus, under this
size standard, the majority of firms can
be considered small and may be affected
by rules adopted pursuant to the Public
Notice.
46. Cable Companies and Systems.
The Commission has developed its own
small business size standards, for the
purpose of cable rate regulation. Under
the Commission’s rules, a ‘‘small cable
company’’ is one serving 400,000 or
fewer subscribers, nationwide. Industry
data indicate that, of 1,076 cable
operators nationwide, all but eleven are
small under this size standard. In
addition, under the Commission’s rules,
a ‘‘small system’’ is a cable system
serving 15,000 or fewer subscribers.
Industry data indicate that, of 7,208
systems nationwide, 6,139 systems have
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under 10,000 subscribers, and an
additional 379 systems have 10,000–
19,999 subscribers. Thus, under this
second size standard, most cable
systems are small and may be affected
by rules adopted pursuant to the Public
Notice.
47. Cable System Operators. The Act
also contains a size standard for small
cable system operators, which is ‘‘a
cable operator that, directly or through
an affiliate, serves in the aggregate fewer
than 1 percent of all subscribers in the
United States and is not affiliated with
any entity or entities whose gross
annual revenues in the aggregate exceed
$250,000,000.’’ The Commission has
determined that an operator serving
fewer than 677,000 subscribers shall be
deemed a small operator, if its annual
revenues, when combined with the total
annual revenues of all its affiliates, do
not exceed $250 million in the
aggregate. Industry data indicate that, of
1,076 cable operators nationwide, all
but ten are small under this size
standard. We note that the Commission
neither requests nor collects information
on whether cable system operators are
affiliated with entities whose gross
annual revenues exceed $250 million,
and therefore we are unable to estimate
more accurately the number of cable
system operators that would qualify as
small under this size standard.
48. Internet Service Providers. Since
2007, these services have been defined
within the broad economic census
category of Wired Telecommunications
Carriers; that category is defined as
follows: ‘‘This industry comprises
establishments primarily engaged in
operating and/or providing access to
transmission facilities and infrastructure
that they own and/or lease for the
transmission of voice, data, text, sound,
and video using wired
telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies.’’ The SBA has developed
a small business size standard for this
category, which is: all such firms having
1,500 or fewer employees. According to
Census Bureau data for 2007, there were
3,188 firms in this category, total, that
operated for the entire year. Of this
total, 3144 firms had employment of 999
or fewer employees, and 44 firms had
employment of 1,000 employees or
more. Thus, under this size standard,
the majority of firms can be considered
small. In addition, according to Census
Bureau data for 2007, there were a total
of 396 firms in the category Internet
Service Providers (broadband) that
operated for the entire year. Of this
total, 394 firms had employment of 999
or fewer employees, and two firms had
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employment of 1,000 employees or
more. Consequently, we estimate that
the majority of these firms are small
entities that may be affected by rules
adopted pursuant to the Public Notice.
49. All Other Information Services.
The Census Bureau defines this industry
as including ‘‘establishments primarily
engaged in providing other information
services (except news syndicates,
libraries, archives, Internet publishing
and broadcasting, and Web search
portals).’’ Our action pertains to
interconnected VoIP services, which
could be provided by entities that
provide other services such as email,
online gaming, web browsing, video
conferencing, instant messaging, and
other, similar IP-enabled services. The
SBA has developed a small business
size standard for this category; that size
standard is $7.0 million or less in
average annual receipts. According to
Census Bureau data for 2007, there were
367 firms in this category that operated
for the entire year. Of these, 334 had
annual receipts of under $5.0 million,
and an additional 11 firms had receipts
of between $5 million and $9,999,999.
Consequently, we estimate that the
majority of these firms are small entities
that may be affected by our action.
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E. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
50. In this Public Notice, the Bureau
seeks public comment on procedures for
implementing Connect America Phase
II. Certain proposals could result in
additional reporting requirements.
51. If the Bureau implements the
Phase II challenge process articulated
above, commenters, including small
entities, wishing to participate would be
required to comply with the listed
reporting and evidentiary standards.
This includes filing a challenge along
with supporting evidence and serving a
copy of the challenge on any challenged
party within a specified timeframe.
Similarly, if the Bureau implements the
proposed statewide commitment
process, any small entity that is either
accepting or declining a statewide
commitment would be subject to
additional reporting requirements.
F. Steps Taken To Minimize the
Significant Economic Impact on Small
Entities, and Significant Alternatives
Considered
52. The RFA requires an agency to
describe any significant, specifically
small business, alternatives that it has
considered in reaching its proposed
approach, which may include the
following four alternatives (among
others): ‘‘(1) the establishment of
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differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance and reporting requirements
under the rules for such small entities;
(3) the use of performance rather than
design standards; and (4) an exemption
from coverage of the rule, or any part
thereof, for such small entities.’’
53. The Public Notice seeks comment
from all interested parties. The
Commission is aware that some of the
proposals under consideration may
impact small entities. Small entities are
encouraged to bring to the
Commission’s attention any specific
concerns they may have with the
proposals outlined in the Public Notice,
and the Commission will consider
alternatives that reduce the burden on
small entities.
54. The Commission expects to
consider the economic impact on small
entities, as identified in comments filed
in response to the Public Notice, in
reaching its final conclusions and taking
action in this proceeding. The reporting
requirements in the Public Notice could
have an impact on both small and large
entities. The Commission believes that
any impact of such requirements is
outweighed by the accompanying public
benefits. Further, these requirements are
necessary to ensure that the statutory
goals of Section 254 of the Act are met
without waste, fraud, or abuse.
55. In the Public Notice, the
Commission seeks comment on several
issues and measures that may apply to
small entities in a unique fashion. Small
entities may be more likely to face
challenges to their service areas, and
thus be required to comply with the
reporting requirements above in order to
have their rebuttals considered. The
Bureau will consider comments from
small entities as to whether a different
standard should apply.
G. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
56. None.
H. Initial Paperwork Reduction Act of
1995 Analysis
57. This document does not contain
proposed information collection
requirements subject to the Paperwork
Reduction Act of 1995, Public Law 104–
13. In addition, therefore, it does not
contain any proposed information
collection burden for small business
concerns with fewer than 25 employees,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4).
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4107
I. Ex Parte Presentations
58. Permit-But-Disclose. The
proceeding this Public Notice initiates
shall be treated as a ‘‘permit-butdisclose’’ proceeding in accordance
with the Commission’s ex parte rules.
Persons making ex parte presentations
must file a copy of any written
presentation or a memorandum
summarizing any oral presentation
within two business days after the
presentation (unless a different deadline
applicable to the Sunshine period
applies). Persons making oral ex parte
presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
them in the memorandum. Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with rule
section 1.1206(b). In proceedings
governed by rule section 1.49(f) or for
which the Commission has made
available a method of electronic filing,
written ex parte presentations and
memoranda summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
electronic comment filing system
available for that proceeding, and must
be filed in their native format (e.g., .doc,
.xml, .ppt, searchable .pdf). Participants
in this proceeding should familiarize
themselves with the Commission’s ex
parte rules.
Federal Communications Commission.
Trent B. Harkrader,
Division Chief, Telecommunications Access
Policy Division, Wireline Competition Bureau.
[FR Doc. 2013–01048 Filed 1–17–13; 8:45 am]
BILLING CODE 6712–01–P
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Agencies
[Federal Register Volume 78, Number 13 (Friday, January 18, 2013)]
[Proposed Rules]
[Pages 4100-4107]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01048]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket No. 10-90; DA 12-2075]
Connect America Fund
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission seeks
comment on procedures to determine what areas are eligible for Connect
America Phase II funding and how carriers may elect to accept or
decline a statewide commitment in Connect America Phase II.
DATES: Comments are due on or before February 19, 2013 and reply
comments are due on or before March 4, 2013. If you anticipate that you
will be submitting comments, but find it difficult to do so within the
period of time allowed by this notice, you should advise the contact
listed below as soon as possible.
ADDRESSES: You may submit comments, identified by WC Docket No. 10-90,
by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: https://
[[Page 4101]]
fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: (202) 418-
0530 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Ryan Yates, Wireline Competition
Bureau, (202) 418-0886 or TTY: (202) 418-0484.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Federal
Communications Commission's (Commission) Public Notice in WC Docket No.
10-90, and DA 12-2075, released December 27, 2012. The complete text of
this document is available for inspection and copying during normal
business hours in the FCC Reference Information Center, Portals II, 445
12th Street SW., Room CY-A257, Washington, DC 20554. The document may
also 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 (800) 378-3160 or (202) 863-2893,
facsimile (202) 863-2898, or via the Internet at https://www.bcpiweb.com. It is also available on the Commission's web site at
https://www.fcc.gov.
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
interested parties may file comments and reply comments on or before
the dates indicated on the first page of this document. Comments may be
filed using: (1) The Commission's Electronic Comment Filing System
(ECFS); (2) the Federal Government's eRulemaking Portal; or (3) by
filing paper copies. See Electronic Filing of Documents in Rulemaking
Proceedings, 63 FR 24121, May 1, 1998.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: https://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: https://www.regulations.gov. Filers
should follow the instructions provided on the Web site for submitting
comments.
[cir] For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Parties may also submit
an electronic comment by Internet email. To get filing instructions,
filers should send an email to ecfs@fcc.gov, and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
[cir] Paper Filers: Parties who choose to file by paper must file
an original and four copies of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by
commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although we continue to experience delays in
receiving U.S. Postal Service mail). All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
[cir] The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes
must be disposed of before entering the building.
[cir] 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.
[cir] U.S. Postal Service first-class, Express, and Priority mail
should be addressed to 445 12th Street SW., Washington, DC 20554.
In addition, one copy of each pleading must be sent to the
Commission's duplicating contractor, Best Copy and Printing, Inc, 445
12th Street SW., Room CY-B402, Washington, DC 20554; Web site:
www.bcpiweb.com; phone: 1-800-378-3160. Furthermore, two copies of each
pleading must be sent to Charles Tyler, Telecommunications Access
Policy Division, Wireline Competition Bureau, 445 12th Street SW., Room
5-A452, Washington, DC 20554; email: Charles.Tyler@fcc.gov and one copy
to Ryan Yates, Telecommunications Access Policy Division, Wireline
Competition Bureau, 445 12th Street SW., Room 5-B441A, Washington, DC
20554; email: Ryan.Yates@fcc.gov.
Filings and comments are also available for public inspection and
copying during regular business hours at the FCC Reference Information
Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC
20554. Copies may also be purchased from the Commission's duplicating
contractor, BCPI, 445 12th Street SW., Room CY-B402, Washington, DC
20554. Customers may contact BCPI through its Web site:
www.bcpiweb.com, by email at fcc@bcpiweb.com, by telephone at (202)
488-5300 or (800) 378-3160 (voice), (202) 488-5562 (tty), or by
facsimile at (202) 488-5563.
To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an email to fcc504@fcc.gov or call the Consumer & Governmental
Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).
Contact the FCC to request reasonable accommodations for filing
comments (accessible format documents, sign language interpreters,
CART, etc.) by email: FCC504@fcc.gov; phone: (202) 418-0530 or TTY:
(202) 418-0432.
I. Introduction
1. The Commission has delegated to the Wireline Competition Bureau
(Bureau) the task of developing a forward-looking cost model to
determine support levels to be offered to price cap carriers in Phase
II of the Connect America Fund. The Bureau recently announced the
availability of version one of the Connect America Cost Model, which
provides the ability to calculate costs using a variety of different
inputs and assumptions.
2. The Bureau expects to solicit additional public comment on the
cost model through its ongoing Virtual Workshop, which focuses on
technical model design and input issues, and public notices, which will
focus on other issues relating to implementation of Phase II, before
finalizing the Connect America Cost Model.
3. In this Public Notice, the Bureau proposes procedures to provide
an opportunity for parties to challenge whether census blocks that are
identified as eligible to receive Phase II support are in fact unserved
by an unsubsidized competitor. We also seek comment on procedures
relating to the election of price cap carriers to accept Phase II
support in exchange for making a statewide commitment.
II. Discussion
A. Procedures for Challenging Whether an Area Is Served by an
Unsubsidized Competitor
4. The Commission directed the Bureau, after the cost model is
adopted,
[[Page 4102]]
to ``publish a list of all eligible census blocks'' (specifically,
those census blocks in price cap territories below the extremely high-
cost threshold but above the funding threshold) and provide an
opportunity for parties to ``challenge the determination of whether or
not areas are unserved by an unsubsidized competitor.'' We propose to
utilize the following procedures to allow interested parties to make
such challenges when we adopt a final model and seek comment on these
proposed procedures.
5. The Commission concluded that ``it would be appropriate to
exclude any area served by an unsubsidized competitor,'' and it
delegated to the Bureau ``the task of implementing the specific
requirements of this rule.'' Consistent with the directive in the USF/
ICC Transformation Order, 76 FR 73830, November 29, 2011, we propose to
publish a list of eligible census blocks classified by the cost model
as unserved by an unsubsidized competitor offering service that meets
the broadband performance obligations for Phase II. For purposes of
this determination, the Commission has defined an unsubsidized
competitor as one that is offering terrestrial fixed broadband with an
advertised speed of 4 Mbps downstream and 1 Mbps upstream. Consistent
with the approach adopted by the Commission for Connect America Phase
I, we propose to use 3 Mbps downstream and 768 kbps upstream as a proxy
for 4 Mbps downstream and 1 Mbps upstream in developing this initial
list because that information is readily available from other data
sources. Likewise, for administrative simplicity, we propose that to
the extent a party is challenging the classification of a particular
census block, it may present evidence demonstrating the block in
question is served by service providing 3 Mbps downstream and 768 kbps
upstream.
6. We expect the final Connect America Cost Model we adopt will use
the National Broadband Map reflecting State Broadband Initiative (SBI)
data as of June 2012, potentially supplemented with other data sources.
Once we publish the relevant list of unserved census blocks with costs
between the extremely high-cost threshold and the funding threshold
shown in the model, we propose that interested parties would then have
an opportunity to challenge that list. Specifically, challengers would
submit revisions and other potential corrections to the list of
eligible census blocks where coverage by unsubsidized competitors is
either overstated (i.e., census blocks are listed as served where they
are in fact unserved) or understated (i.e., census blocks are listed as
unserved when they are in fact served). We propose that parties
contending the Bureau's original classification as served or unserved
is accurate would have an opportunity to submit evidence to rebut the
challenge.
7. Commenters seeking to challenge the eligibility of a particular
area for funding would be required to list specific census blocks that
are inaccurately classified as served or unserved by an unsubsidized
competitor, along with a brief statement and supporting evidence
demonstrating that those census blocks are inaccurately reported. We
propose not to process any challenge that lacks some evidentiary
showing regarding the census block in question; a challenge that merely
asserts the area is or is not served would not be sufficient.
Challenges to a census block's eligibility may be based on any or all
of the Commission's broadband performance metrics--speed, latency, and/
or capacity (i.e., minimum usage allowance). Challenges may also be
based on non-performance metrics that affect the availability of
broadband in a census block. For example, if the provider of broadband
in that census block only offers service to business customers and not
residential customers, the status of that block as served may be
challenged.
8. Consistent with our proposal above, we propose that to be deemed
served, a census block must have access to broadband with speeds of at
least 3 Mbps downstream and 768 kbps upstream. Proposed examples of
potential types of probative evidence regarding the availability of
broadband service meeting the speed requirements established by the
Commission include, but are not limited to, more recent SBI data than
that used in version of the model adopted by the Bureau; maps or
printouts of Web sites indicating coverage for a particular area
accompanied by an officer certification that such materials reflect
current conditions; printouts of billing information for customers
within the particular census block, with identifying customer
information appropriately masked; engineering analyses or drive tests;
explanations of methodologies for determining coverage; and
certifications by one or more individuals as to the veracity of the
material provided. What other information regarding the speed of
alleged service offerings would be readily available to potential
challengers or parties seeking to maintain the classification of an
area as shown on the National Broadband Map?
9. The Commission specified in the USF/ICC Transformation Order
that latency should be sufficiently low as to enable real-time
applications, such as Voice over Internet Protocol (VoIP). Proposed
examples of potential types of probative evidence regarding latency
include, but are not limited to, documentation that a provider is
actually offering voice service to customers in the relevant area, such
as a printout of a Web site showing voice service availability at a
particular address in the census block accompanied by an officer
certification, or a sworn declaration from one or more customers within
the census block that they subscribe to voice from that provider. What
other information regarding the latency of alleged service offerings
would be readily available to potential challengers or parties seeking
to maintain the classification of an area as shown on the National
Broadband Map?
10. The Commission delegated to the Wireline Competition Bureau and
Wireless Telecommunications Bureau the task of adopting capacity or
``minimum usage allowance'' requirements for recipients of Phase II
support. Proposed examples of potential types of probative evidence
regarding minimum usage include, but are not limited to, a printout of
a Web site showing market offerings meeting the minimum usage
requirement accompanied by an officer certification, or a sworn
declaration from one or more customers within the census block that
they subscribe to a service offering meeting the minimum usage
allowance requirement. What other information regarding the capacity of
alleged service offerings would be readily available to potential
challengers or parties seeking to maintain the classification of an
area as shown on the National Broadband Map? Should we require one or
more of these evidentiary showings for a challenge to be deemed
complete as filed?
11. We propose that all certifications regarding evidence
supporting or opposing a challenge be signed by an individual with
relevant knowledge (such as officer of the company making or opposing
the challenge, or a representative of the state mapping agency)
certifying that the information presented is accurate to the best of
his or her knowledge.
12. To assist in the development of a more complete record, we also
seek comment on how to ensure that potentially interested parties are
aware of the opportunity for public input. For instance, should a
purported unsubsidized competitor challenging the classification of a
block as unserved (and therefore eligible for funding) be required to
serve a copy of its challenge
[[Page 4103]]
on the price cap carrier? If a price cap carrier believes a particular
census block should be on the list of blocks eligible for funding
(because it is not served), should it be required to serve a copy of
its challenge by overnight delivery on any entity shown as serving the
block on the National Broadband Map?
13. We intend to conduct this challenge process in an expeditious
fashion. We propose that after the release of the list of census
blocks, parties would have 45 days to file challenges to the list.
Parties wishing to rebut such challenges would have an additional 20
days to submit evidence supporting their contentions. We seek comment
on whether this proposed time frame adequately serves our goal of
providing a meaningful opportunity for challenge, while concluding this
challenge process in a reasonable timeframe. We propose that all
evidence regarding the status of a particular census block must be
filed within this timeframe; any evidence filed after these dates will
be deemed untimely. Strict adherence to these deadlines is necessary to
provide an adequate opportunity for the party that contends the
classification as served or unserved is accurate to respond to all
evidence submitted by the challenger within the reply comment
timeframe, and in order for this administrative process to be completed
expeditiously.
14. At the close of the challenge timeframe, we propose that where
the Bureau finds that it is more likely than not that a census block is
inaccurately classified as served or unserved, we would modify the
classification of that census block for purposes of finalizing the
census blocks that will be eligible for a price cap carrier statewide
commitment under the Connect America Phase II program. In the event
that both the challenger and the opponent provide credible evidence
regarding the status of a particular block, we propose that the default
determination will be however the block is classified on the National
Broadband Map at the time the challenge is resolved. We recognize the
practical difficulties that may ensue in situations where one party
says service exists and the other party says service does not exist.
Because it may be difficult and expensive for the party contending that
service does not exist to prove a negative, we propose that the most
expedient solution in such situations is to rely upon the most current
available map data.
15. We propose that, in making its determinations, the Bureau would
consider whether the challenger took steps to bring the alleged errors
in the National Broadband Map to the attention of the relevant state
mapping authority and the outcome of any such efforts. It is possible
that the December 2012 SBI data may become available shortly before or
after the forward looking cost model is adopted, and therefore
challengers may wish to present evidence of the more recent
classification on the National Broadband Map in their challenges. If
December 2012 SBI data is available at the time the Bureau resolves
these challenges, we propose to rely upon the December 2012
classification.
16. While the Bureau will rely on updates to the available SBI
data, we propose to focus on evidence regarding current broadband
availability at the time we resolve the challenge, and not on announced
market expansion plans that may occur at some future date. We note that
announced deployment plans may change for business and other reasons,
and if we were to exclude a census block area based on announced plans
to extend service to that block, that could provide an opportunity for
potential competitors to engage in strategic behavior to eliminate
support for a particular census block, without an assurance that the
competitor will actually serve the block at a future date.
17. We also propose that the Bureau only include on the preliminary
list of blocks eligible for funding those census blocks that are
completely unserved. We further propose to treat partially served
census blocks as served and therefore not eligible for funding in Phase
II. We anticipate that entertaining challenges with respect to
potentially many thousands of individual census blocks could be a
significant undertaking by itself, and we are concerned that the
administrative burden of permitting challenges at the sub-census block
level would outweigh the potential benefits. We therefore propose to
conduct the challenge process at the census block level. To the extent
commenters believe that we should entertain sub-census block
challenges, they should describe with specificity how their proposed
process would work, and in particular how we would ensure compliance
with build out requirements in partially served census blocks.
18. We seek comment on all these proposals and on any alternatives.
If commenters believe different procedures would better serve the
Commission's goal of targeting support to areas without unsubsidized
competitors, they should provide a detailed description of their
preferred alternative. We welcome suggested alternatives that minimize
the impact of these proposals on small businesses, as well as comments
regarding the cost and benefits of implementing these proposals.
B. Procedures for Implementing the Price Cap Carrier Election To Make a
Statewide Commitment
19. We propose that after reviewing any public comment, the Bureau
will publish a revised list of census blocks and a revised list of
support amounts associated with each eligible area that will be offered
to price cap carriers. We seek comment on whether the election period
should be 90 days from the date of release of the finalized list, which
would be the same as the time period provided to price cap carriers for
electing to accept incremental support for Connect America Phase I. In
the alternative, should the time period for price cap carriers to elect
to make a statewide commitment in Phase II be longer, such as 120 days,
due to the complexity of the decisions individual carriers will need to
make? We also seek comment on requiring the submissions either electing
or declining support to be submitted on a confidential basis prior to
the deadline for election. Should carriers be allowed or required to
make confidential submissions? In the event that such submissions were
afforded confidentiality, we propose that the Bureau would announce all
statewide elections on a single date shortly after the close of the
election period.
20. We propose that a carrier electing to accept the statewide
commitment would submit a letter, signed by an officer of the company,
by the deadline specifying that it agrees to meet the Commission's
requirements in exchange for receiving support in amounts set forth in
the final Bureau public notice. To the extent a letter of credit or
other form of security is required to ensure compliance with these
obligations, we propose to require its submission within ten days of
exercising the statewide commitment.
21. We seek comment on what information carriers should be required
to submit along with their acceptance notices. Should such carriers be
required to specify the technology or combination of technologies they
intend to deploy in a particular state, at the wire center or census
block level? Should carriers also be required to provide information
such as geocoded latitude and longitude location information, along
with census block and wire center information, for the specific
locations where they intend to provide service meeting the 6 Mbps
downstream/1.5 Mbps upstream
[[Page 4104]]
requirement, as determined by the Bureau? Should carriers be required
at the time of acceptance to submit a preliminary plan showing the
census blocks and/or wire centers, and associated number of locations,
where they anticipate meeting the third year 85 percent build-out
milestone? What other information should be required in the initial
acceptance notices in order to ensure the Commission has the tools it
needs to monitor compliance with performance obligations? Should the
Commission afford confidential treatment to any of the information
required to be submitted after the Bureau announces the acceptance by
carriers of funding on a statewide level?
22. We propose that a carrier declining to accept a statewide
commitment in a particular state would file a letter by the deadline
specifying that it is declining funding. Alternatively, a carrier
failing to file a letter by the deadline could be deemed as having
declined funding.
23. We seek comment on all these proposals and on any alternatives.
To the extent commenters believe that other procedures would better
serve the Commission's goals, they should provide a detailed
description of their proposal for the statewide commitment process. We
welcome suggested alternatives that minimize the impact of these
proposals on small businesses, as well as comments regarding the cost
and benefits of implementing these proposals.
III. Procedural Matters
A. Initial Regulatory Flexibility Act Analysis
24. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this Public Notice. Written comments are requested on this
IRFA. Comments must be identified as responses to the IRFA and must be
filed by the deadlines for comments on the Public Notice. The
Commission will send a copy of the Public Notice, including this IRFA,
to the Chief Counsel for Advocacy of the Small Business Administration
(SBA). In addition, the Public Notice and IRFA (or summaries thereof)
will be published in the Federal Register.
B. Need for, and Objectives of, the Proposed Rules
25. The Public Notice seeks comment on issues related to the
implementation of Phase II of Connect America. As discussed in the USF/
ICC Transformation Order, the rapid and efficient deployment of
broadband is crucial for our nation's growth. The proposals contained
in this public notice will help to achieve the Commission's goal of
making broadband accessible to all Americans.
26. The Bureau is currently in the process of developing a cost
model for Phase II of Connect America. The Commission directed the
Bureau to publish a list of census blocks that would be eligible for
support under the cost model, and to provide an opportunity for parties
to make challenges to that list. This Public Notice seeks comment on
how to conduct such a challenge process and what data should be used in
that process. The Bureau plans to publish a list of census blocks that
are within the cost model's funding threshold but are unserved by
broadband with speeds of 3 Mbps downstream and 768 kbps upstream.
Parties could then submit comments challenging the accuracy of that
list.
27. The Public Notice proposes that parties could make challenges
based on the fact that a purported unsubsidized competitor is or is not
meeting the broadband performance requirements for speed, latency, or
capacity. The Public Notice also suggests various forms of evidence
that could be submitted to support these contentions. Assertions that
are offered without supporting evidence would not be considered. Where
the Bureau finds its more likely than not that a census block is
inaccurately classified as served or unserved, that census block's
status would be altered accordingly for the purposes of Phase II
eligibility.
28. Under the system proposed in the Public Notice, parties
challenging the eligibility of a particular census block would be
required to serve a copy of their challenge on the entity purportedly
serving that block. That entity would then have an opportunity to
respond and provide evidence rebutting that challenge. In the event
that both the challenger and the respondent provide credible
information supporting their claims, the census block's status would be
determined based on its current status on the most recent version of
National Broadband Map available at the time the list of eligible areas
is finalized.
29. The Public Notice also sets limits on the types of challenges
considered. First, only wholly unserved census blocks would be eligible
for Phase II support. Therefore, under the proposed system, sub-census
block challenges would not be considered. Second, challenges and
rebuttals must be based on current broadband availability, not
announced deployment plans.
30. In addition to seeking comment on issues related to the Phase
II challenge process, the Public Notice also seeks comment on
procedures for implementing the process of price cap carriers' election
to receive support in exchange for a commitment to serve all eligible
areas within a state. Comment is sought on what time period should be
used in this process. The Public Notice also seeks comment on what
information a carrier should be required to submit when accepting a
statewide commitment.
C. Legal Basis
31. The legal basis for any action that may be taken pursuant to
the Public Notice is contained in sections 1, 4(i), 4(j), 214, and 218,
of the Communications Act of 1934, as amended, and section 706 of the
Telecommunications Act of 1996.
D. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
32. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small-business concern'' under the Small Business
Act. A small-business concern'' is one which: (1) Is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
33. Small Businesses. Nationwide, there are a total of
approximately 27.5 million small businesses, according to the SBA.
34. Wired Telecommunications Carriers. The SBA has developed a
small business size standard for Wired Telecommunications Carriers,
which consists of all such companies having 1,500 or fewer employees.
According to Census Bureau data for 2007, there were 3,188 firms in
this category, total, that operated for the entire year. Of this total,
3,144 firms had employment of 999 or fewer employees, and 44 firms had
employment of 1,000 employees or more. Thus, under this size standard,
the majority of firms can be considered small.
[[Page 4105]]
35. Local Exchange Carriers (LECs). Neither the Commission nor the
SBA has developed a size standard for small businesses specifically
applicable to local exchange services. The closest applicable size
standard under SBA rules is for Wired Telecommunications Carriers.
Under that size standard, such a business is small if it has 1,500 or
fewer employees. According to Commission data, 1,307 carriers reported
that they were incumbent local exchange service providers. Of these
1,307 carriers, an estimated 1,006 have 1,500 or fewer employees and
301 have more than 1,500 employees. Consequently, the Commission
estimates that most providers of local exchange service are small
entities that may be affected by the rules and policies proposed in the
Public Notice.
36. Incumbent Local Exchange Carriers (incumbent LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to incumbent local exchange
services. The closest applicable size standard under SBA rules is for
Wired Telecommunications Carriers. Under that size standard, such a
business is small if it has 1,500 or fewer employees. According to
Commission data, 1,307 carriers reported that they were incumbent local
exchange service providers. Of these 1,307 carriers, an estimated 1,006
have 1,500 or fewer employees and 301 have more than 1,500 employees.
Consequently, the Commission estimates that most providers of incumbent
local exchange service are small businesses that may be affected by
rules adopted pursuant to the Public Notice.
37. We have included small incumbent LECs in this present RFA
analysis. As noted above, a ``small business'' under the RFA is one
that, inter alia, meets the pertinent small business size standard
(e.g., a telephone communications business having 1,500 or fewer
employees), and ``is not dominant in its field of operation.'' The
SBA's Office of Advocacy contends that, for RFA purposes, small
incumbent LECs are not dominant in their field of operation because any
such dominance is not ``national'' in scope. We have therefore included
small incumbent LECs in this RFA analysis, although we emphasize that
this RFA action has no effect on Commission analyses and determinations
in other, non-RFA contexts.
38. Competitive Local Exchange Carriers (competitive LECs),
Competitive Access Providers (CAPs), Shared-Tenant Service Providers,
and Other Local Service Providers. Neither the Commission nor the SBA
has developed a small business size standard specifically for these
service providers. The appropriate size standard under SBA rules is for
the category Wired Telecommunications Carriers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
According to Commission data, 1,442 carriers reported that they were
engaged in the provision of either competitive local exchange services
or competitive access provider services. Of these 1,442 carriers, an
estimated 1,256 have 1,500 or fewer employees and 186 have more than
1,500 employees. In addition, 17 carriers have reported that they are
Shared-Tenant Service Providers, and all 17 are estimated to have 1,500
or fewer employees. In addition, 72 carriers have reported that they
are Other Local Service Providers. Of the 72, seventy have 1,500 or
fewer employees and two have more than 1,500 employees. Consequently,
the Commission estimates that most providers of competitive local
exchange service, competitive access providers, Shared-Tenant Service
Providers, and Other Local Service Providers are small entities that
may be affected by rules adopted pursuant to the Public Notice.
39. Wireless Telecommunications Carriers (except Satellite). Since
2007, the SBA has recognized wireless firms within this new, broad,
economic census category. Prior to that time, such firms were within
the now-superseded categories of Paging and Cellular and Other Wireless
Telecommunications. Under the present and prior categories, the SBA has
deemed a wireless business to be small if it has 1,500 or fewer
employees. For this category, census data for 2007 show that there were
1,383 firms that operated for the entire year. Of this total, 1,368
firms had employment of 999 or fewer employees and 15 had employment of
1,000 employees or more. Similarly, according to Commission data, 413
carriers reported that they were engaged in the provision of wireless
telephony, including cellular service, Personal Communications Service
(PCS), and Specialized Mobile Radio (SMR) Telephony services. Of these,
an estimated 261 have 1,500 or fewer employees and 152 have more than
1,500 employees. Consequently, the Commission estimates that
approximately half or more of these firms can be considered small.
Thus, using available data, we estimate that the majority of wireless
firms can be considered small.
40. Broadband Personal Communications Service. The broadband
personal communications service (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission defined ``small entity'' for
Blocks C and F as an entity that has average gross revenues of $40
million or less in the three previous calendar years. For Block F, an
additional classification for ``very small business'' was added and is
defined as an entity that, together with its affiliates, has average
gross revenues of not more than $15 million for the preceding three
calendar years. These standards defining ``small entity'' in the
context of broadband PCS auctions have been approved by the SBA. No
small businesses, within the SBA-approved small business size standards
bid successfully for licenses in Blocks A and B. There were 90 winning
bidders that qualified as small entities in the Block C auctions. A
total of 93 small and very small business bidders won approximately 40
percent of the 1,479 licenses for Blocks D, E, and F. In 1999, the
Commission re-auctioned 347 C, E, and F Block licenses. There were 48
small business winning bidders. In 2001, the Commission completed the
auction of 422 C and F Broadband PCS licenses in Auction 35. Of the 35
winning bidders in this auction, 29 qualified as ``small'' or ``very
small'' businesses. Subsequent events, concerning Auction 35, including
judicial and agency determinations, resulted in a total of 163 C and F
Block licenses being available for grant. In 2005, the Commission
completed an auction of 188 C block licenses and 21 F block licenses in
Auction 58. There were 24 winning bidders for 217 licenses. Of the 24
winning bidders, 16 claimed small business status and won 156 licenses.
In 2007, the Commission completed an auction of 33 licenses in the A,
C, and F Blocks in Auction 71. Of the 14 winning bidders, six were
designated entities. In 2008, the Commission completed an auction of 20
Broadband PCS licenses in the C, D, E and F block licenses in Auction
78.
41. Fixed Microwave Services. Fixed microwave services include
common carrier, private operational-fixed, and broadcast auxiliary
radio services. At present, there are approximately 22,015 common
carrier fixed licensees and 61,670 private operational-fixed licensees
and broadcast auxiliary radio licensees in the microwave services. The
Commission has not created a size standard for a small business
specifically with respect to fixed microwave services. For purposes of
this analysis, the Commission uses the
[[Page 4106]]
SBA small business size standard for Wireless Telecommunications
Carriers (except Satellite), which is 1,500 or fewer employees. The
Commission does not have data specifying the number of these licensees
that have more than 1,500 employees, and thus is unable at this time to
estimate with greater precision the number of fixed microwave service
licensees that would qualify as small business concerns under the SBA's
small business size standard. Consequently, the Commission estimates
that there are up to 22,015 common carrier fixed licensees and up to
61,670 private operational-fixed licensees and broadcast auxiliary
radio licensees in the microwave services that may be small and may be
affected by the rules and policies adopted herein. We note, however,
that the common carrier microwave fixed licensee category includes some
large entities.
42. Satellite Telecommunications. Since 2007, the SBA has
recognized satellite firms within this revised category, with a small
business size standard of $15 million. The most current Census Bureau
data are from the economic census of 2007, and we will use those
figures to gauge the prevalence of small businesses in this category.
Those size standards are for the two census categories of ``Satellite
Telecommunications'' and ``Other Telecommunications.'' Under the
``Satellite Telecommunications'' category, a business is considered
small if it had $15 million or less in average annual receipts. Under
the ``Other Telecommunications'' category, a business is considered
small if it had $25 million or less in average annual receipts.
43. The first category of Satellite Telecommunications ``comprises
establishments primarily engaged in providing telecommunications
services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications
signals via a system of satellites or reselling satellite
telecommunications.'' For this category, Census Bureau data for 2007
show that there were a total of 512 firms that operated for the entire
year. Of this total, 464 firms had annual receipts of under $10
million, and 18 firms had receipts of $10 million to $24,999,999.
Consequently, we estimate that the majority of Satellite
Telecommunications firms are small entities that might be affected by
rules adopted pursuant to the Public Notice.
44. The second category of Other Telecommunications ``primarily
engaged in providing specialized telecommunications services, such as
satellite tracking, communications telemetry, and radar station
operation.'' This industry also includes establishments ``primarily
engaged in providing satellite terminal stations and associated
facilities connected with one or more terrestrial systems and capable
of transmitting telecommunications to, and receiving telecommunications
from, satellite systems; or * * * providing Internet services or voice
over Internet protocol (VoIP) services via client-supplied
telecommunications connections.'' For this category, Census Bureau data
for 2007 show that there were a total of 2,383 firms that operated for
the entire year. Of this total, 2,346 firms had annual receipts of
under $25 million. Consequently, we estimate that the majority of Other
Telecommunications firms are small entities that might be affected by
our action.
45. Cable and Other Program Distribution. Since 2007, these
services have been defined within the broad economic census category of
Wired Telecommunications Carriers; that category is defined as follows:
``This industry comprises establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies.'' The SBA has developed a small business size standard
for this category, which is: all such firms having 1,500 or fewer
employees. According to Census Bureau data for 2007, there were a total
of 955 firms in this previous category that operated for the entire
year. Of this total, 939 firms had employment of 999 or fewer
employees, and 16 firms had employment of 1,000 employees or more.
Thus, under this size standard, the majority of firms can be considered
small and may be affected by rules adopted pursuant to the Public
Notice.
46. Cable Companies and Systems. The Commission has developed its
own small business size standards, for the purpose of cable rate
regulation. Under the Commission's rules, a ``small cable company'' is
one serving 400,000 or fewer subscribers, nationwide. Industry data
indicate that, of 1,076 cable operators nationwide, all but eleven are
small under this size standard. In addition, under the Commission's
rules, a ``small system'' is a cable system serving 15,000 or fewer
subscribers. Industry data indicate that, of 7,208 systems nationwide,
6,139 systems have under 10,000 subscribers, and an additional 379
systems have 10,000-19,999 subscribers. Thus, under this second size
standard, most cable systems are small and may be affected by rules
adopted pursuant to the Public Notice.
47. Cable System Operators. The Act also contains a size standard
for small cable system operators, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than 1
percent of all subscribers in the United States and is not affiliated
with any entity or entities whose gross annual revenues in the
aggregate exceed $250,000,000.'' The Commission has determined that an
operator serving fewer than 677,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed $250 million in the
aggregate. Industry data indicate that, of 1,076 cable operators
nationwide, all but ten are small under this size standard. We note
that the Commission neither requests nor collects information on
whether cable system operators are affiliated with entities whose gross
annual revenues exceed $250 million, and therefore we are unable to
estimate more accurately the number of cable system operators that
would qualify as small under this size standard.
48. Internet Service Providers. Since 2007, these services have
been defined within the broad economic census category of Wired
Telecommunications Carriers; that category is defined as follows:
``This industry comprises establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies.'' The SBA has developed a small business size standard
for this category, which is: all such firms having 1,500 or fewer
employees. According to Census Bureau data for 2007, there were 3,188
firms in this category, total, that operated for the entire year. Of
this total, 3144 firms had employment of 999 or fewer employees, and 44
firms had employment of 1,000 employees or more. Thus, under this size
standard, the majority of firms can be considered small. In addition,
according to Census Bureau data for 2007, there were a total of 396
firms in the category Internet Service Providers (broadband) that
operated for the entire year. Of this total, 394 firms had employment
of 999 or fewer employees, and two firms had
[[Page 4107]]
employment of 1,000 employees or more. Consequently, we estimate that
the majority of these firms are small entities that may be affected by
rules adopted pursuant to the Public Notice.
49. All Other Information Services. The Census Bureau defines this
industry as including ``establishments primarily engaged in providing
other information services (except news syndicates, libraries,
archives, Internet publishing and broadcasting, and Web search
portals).'' Our action pertains to interconnected VoIP services, which
could be provided by entities that provide other services such as
email, online gaming, web browsing, video conferencing, instant
messaging, and other, similar IP-enabled services. The SBA has
developed a small business size standard for this category; that size
standard is $7.0 million or less in average annual receipts. According
to Census Bureau data for 2007, there were 367 firms in this category
that operated for the entire year. Of these, 334 had annual receipts of
under $5.0 million, and an additional 11 firms had receipts of between
$5 million and $9,999,999. Consequently, we estimate that the majority
of these firms are small entities that may be affected by our action.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
50. In this Public Notice, the Bureau seeks public comment on
procedures for implementing Connect America Phase II. Certain proposals
could result in additional reporting requirements.
51. If the Bureau implements the Phase II challenge process
articulated above, commenters, including small entities, wishing to
participate would be required to comply with the listed reporting and
evidentiary standards. This includes filing a challenge along with
supporting evidence and serving a copy of the challenge on any
challenged party within a specified timeframe. Similarly, if the Bureau
implements the proposed statewide commitment process, any small entity
that is either accepting or declining a statewide commitment would be
subject to additional reporting requirements.
F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
52. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rules for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.''
53. The Public Notice seeks comment from all interested parties.
The Commission is aware that some of the proposals under consideration
may impact small entities. Small entities are encouraged to bring to
the Commission's attention any specific concerns they may have with the
proposals outlined in the Public Notice, and the Commission will
consider alternatives that reduce the burden on small entities.
54. The Commission expects to consider the economic impact on small
entities, as identified in comments filed in response to the Public
Notice, in reaching its final conclusions and taking action in this
proceeding. The reporting requirements in the Public Notice could have
an impact on both small and large entities. The Commission believes
that any impact of such requirements is outweighed by the accompanying
public benefits. Further, these requirements are necessary to ensure
that the statutory goals of Section 254 of the Act are met without
waste, fraud, or abuse.
55. In the Public Notice, the Commission seeks comment on several
issues and measures that may apply to small entities in a unique
fashion. Small entities may be more likely to face challenges to their
service areas, and thus be required to comply with the reporting
requirements above in order to have their rebuttals considered. The
Bureau will consider comments from small entities as to whether a
different standard should apply.
G. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
56. None.
H. Initial Paperwork Reduction Act of 1995 Analysis
57. This document does not contain proposed information collection
requirements subject to the Paperwork Reduction Act of 1995, Public Law
104-13. In addition, therefore, it does not contain any proposed
information collection burden for small business concerns with fewer
than 25 employees, pursuant to the Small Business Paperwork Relief Act
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
I. Ex Parte Presentations
58. Permit-But-Disclose. The proceeding this Public Notice
initiates shall be treated as a ``permit-but-disclose'' proceeding in
accordance with the Commission's ex parte rules. Persons making ex
parte presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days
after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations
are reminded that memoranda summarizing the presentation must (1) list
all persons attending or otherwise participating in the meeting at
which the ex parte presentation was made, and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda or other filings in the proceeding, the presenter may provide
citations to such data or arguments in his or her prior comments,
memoranda, or other filings (specifying the relevant page and/or
paragraph numbers where such data or arguments can be found) in lieu of
summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with rule section
1.1206(b). In proceedings governed by rule section 1.49(f) or for which
the Commission has made available a method of electronic filing,
written ex parte presentations and memoranda summarizing oral ex parte
presentations, and all attachments thereto, must be filed through the
electronic comment filing system available for that proceeding, and
must be filed in their native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Participants in this proceeding should familiarize
themselves with the Commission's ex parte rules.
Federal Communications Commission.
Trent B. Harkrader,
Division Chief, Telecommunications Access Policy Division, Wireline
Competition Bureau.
[FR Doc. 2013-01048 Filed 1-17-13; 8:45 am]
BILLING CODE 6712-01-P