Review of the Emergency Alert System, 42603-42607 [2018-18151]
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Federal Register / Vol. 83, No. 164 / Thursday, August 23, 2018 / Rules and Regulations
Dated: August 9, 2018.
Katherine B. Fox,
Assistant Administrator for Mitigation,
Federal Insurance and Mitigation
Administration—FEMA Resilience,
Department of Homeland Security, Federal
Emergency Management Agency.
[FR Doc. 2018–18150 Filed 8–22–18; 8:45 am]
BILLING CODE 9110–12–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 11
[EB Docket No. 04–296, PS Docket No. 15–
94; FCC 18–102]
Review of the Emergency Alert System
Federal Communications
Commission.
ACTION: Petition for partial
reconsideration; final decision.
AGENCY:
In this document, the Federal
Communications Commission (FCC or
Commission) partially denies and
partially grants a petition for partial
reconsideration of the Emergency Alert
System (EAS) requirements for certain
Fixed Satellite Service (FSS) satellite
operators jointly filed by PanAmSat
Corporation, SES Americom, Inc., and
Intelsat, Ltd.
DATES: Effective September 24, 2018.
FOR FURTHER INFORMATION CONTACT:
Gregory Cooke, Deputy Chief, Policy
and Licensing Division, Public Safety
and Homeland Security Bureau, at (202)
418–7452, or by email at
Gregory.Cooke@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order on
Reconsideration (Order) in EB Docket
No. 04–296 and PS Docket No. 15–94,
FCC 18–102, adopted on July 23, 2018,
and released on July 24, 2018. The full
text of this document is available for
inspection and copying during normal
business hours in the FCC Reference
Center (Room CY–A257), 445 12th
Street SW, Washington, DC 20554. The
full text may also be downloaded at:
www.fcc.gov.
SUMMARY:
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Synopsis
1. In the Order, the Commission
partially denies and partially grants the
petition for partial reconsideration
(Petition) of the EAS requirements for
FSS satellite operators jointly filed by
PanAmSat Corporation, SES Americom,
Inc., and Intelsat, Ltd. (Petitioners).
Specifically, the Commission denies
Petitioners’ request to shift the EAS
obligations adopted for Ku band FSS
licensees to the video programming
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distributors that lease transponder
capacity from such licensees. The
Commission also denies Petitioners’
alternative request to not apply the FSS
EAS rules to FSS satellite operations
subject to satellite capacity lease
agreements already in place when the
FSS EAS requirements became effective.
The Commission does, however, grant
the Petition to the extent that it adopts
more specific criteria for determining
when EAS obligations are triggered for
FSS licensees whose satellites are used
to provide programming directed
primarily to consumers outside the U.S.,
with only incidental reception by
consumers in the U.S.
I. Background
A. The EAS
2. The EAS is a national public
warning system through which
broadcasters, cable systems, and other
service providers (EAS Participants)
deliver alerts to the public to warn them
of impending emergencies and dangers
to life and property. The primary
purpose of the EAS is to provide the
President with ‘‘the capability to
provide immediate communications and
information to the general public at the
national, state and local levels during
periods of national emergency.’’ The
EAS also is used by state and local
governments, as well as the National
Weather Service, to distribute alerts.
B. The EAS First Report and Order
3. In 2005, in recognition that
consumers were increasingly adopting
digital technologies as replacements for
analog broadcast and cable systems that
were already subject to EAS
requirements, the Commission adopted
the First Report and Order and Further
Notice of Proposed Rulemaking (First
Report and Order) in EB Docket No. 04–
296, 70 FR 71023, 71072 (Nov. 25,
2005), expanding EAS obligations to
digital television and radio, digital
cable, and satellite television and radio
services. The Commission deemed that
‘‘some level of EAS participation must
be established for these new digital
services to ensure that large portions of
the American public are able to receive
national and/or regional public alerts
and warnings.’’
4. With respect to satellite video
services, the Commission, in part
pursuant to its jurisdiction under
section 303(v) of the Communications
Act of 1934, as amended (the ‘‘Act’’), to
regulate direct-to-home (DTH) satellite
services, extended EAS obligations to
DBS services, as defined in section
25.701(a)(1)–(3) of the Commission’s
rules. As used in section 25.701(a), the
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definition of DBS includes entities
licensed to operate FSS satellites in the
Ku band that ‘‘sell or lease capacity to
a video programming distributor that
offers service directly to consumers
providing a sufficient number of
channels so that four percent of the total
applicable programming channels yields
a set aside of at least one channel of
non-commercial programming pursuant
to [section 25.701(e) of the
Commission’s rules]’’ (hereinafter,
‘‘DTH–FSS licensees’’). The
Commission anticipated that this
definition would ‘‘ensure[ ] that the EAS
rules apply to the vast majority of
existing DTH satellite services,
particularly those for which viewers
may have expectations as to available
warnings based on experience with
broadcast television services.’’ With
respect to compliance requirements, the
Commission generally required DBS
entities to participate in national EAS
activations, and meet related
monitoring, testing and equipment
readiness requirements.
5. The Commission, however, allowed
DTH–FSS licensees to delegate their
EAS obligations to the video
programming distributors that lease
capacity on their satellites. Specifically,
the Commission stated that ‘‘compliance
with EAS requirements may be
established based upon a certification
from a [video programming] distributor
that expressly states that the distributor
has complied with the EAS
obligations.’’ The Commission added
that the DTH–FSS licensees ‘‘will not be
required to verify compliance by
distributors unless there is evidence that
the distributor has not met its
obligation.’’ The Commission concluded
that placing ultimate compliance
responsibility on the DTH–FSS
licensees under this scheme was not
unduly burdensome because the
‘‘certification requirements can be
included in satellite carriage and leasing
contracts,’’ and because it was similar to
the certification scheme adopted for FSS
Part 25 licensees to meet their DBS
public interest obligations. The
Commission declined to apply EAS
obligations to Home Satellite Dish
(HSD) service, which also falls under
the Commission’s DTH jurisdiction.
C. The Petition
6. The Petitioners state that they
‘‘support the application of the EAS
requirements to DTH–FSS services,’’ but
seek reconsideration of three aspects of
the Commission’s decision adopting
such requirements. First, the Petition
requests that the Commission modify
the FSS EAS requirements adopted in
the First Report and Order by applying
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them directly to the video programming
distributors that lease transponder
capacity from the DTH–FSS licensees
instead of applying them to the DTH–
FSS licensees themselves. Second, in
the alternative, the Petition requests that
the Commission not apply the FSS EAS
rules to satellite transponder(s) that
were subject to pre-existing satellite
capacity lease agreements already in
place when the FSS EAS requirements
became effective. Third, the Petition
requests that the Commission ‘‘provide
an exemption from the EAS
requirements for DTH–FSS services that
are directed primarily to consumers
outside the United States but also are
made available to consumers in the
United States.’’
7. With respect to their contention
that responsibility for EAS compliance
should be shifted from the DTH–FSS
licensees to their lessee video
programming distributors, Petitioners
argue that, for all other services, the
EAS rules apply to ‘‘the entity that
delivers programming to the consumer
and therefore is in a position to
substitute emergency messages when
the EAS system is activated.’’
Petitioners contend that ‘‘[i]n the case of
broadcast services, for example, the
requirements apply to the stations that
transmit programming to consumers’
radio and television receivers.’’
Petitioners contend that the
Commission did not explain why it
departed from this approach in the
DTH–FSS case. Petitioners argue that
DTH–FSS programming distributors are
best situated to comply with the FSS
EAS requirements because they are the
entities that generate and control the
program content that is delivered via the
satellite. Petitioners also liken their
situation to the HSD providers
exempted from EAS obligations in the
First Report and Order in that, like HSD
providers, DTH–FSS licensees do not
control the programming that is
transmitted over the satellite to HSD
consumers.
8. With respect to the certification
mechanism through which DTH–FSS
licensees delegate responsibility for EAS
obligations to their lessees, Petitioners
argue that attaching EAS compliance
obligations to DTH–FSS programming
distributors through their capacity lease
agreements with DTH–FSS satellite
operators is inefficient, and does not
provide for direct enforcement of
compliance, but instead subjects
resolution of compliance questions to
private contract litigation.
9. Petitioners also request that the
FCC exempt DTH–FSS services offered
primarily outside the U.S., but
incidentally made available to U.S.
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subscribers. Petitioners contend that
such exemption is needed because ‘‘[i]t
is highly improbable that the
distributors of these services would be
willing to preempt normal programming
for announcements from the President
of the United States.’’ Instead, according
to Petitioners, these video programming
distributors would cease marketing their
services in the U.S., thus depriving the
public of ‘‘access to valuable
programming.’’ Petitioners further argue
that applying EAS requirements in this
context amounts to regulating the
content of foreign programming.
Petitioners thus propose that the
Commission exempt DTH services
directed ‘‘primarily in foreign
countries’’ from EAS obligations, and
suggest that the Commission ‘‘employ a
standard of 50% of the area or
population within a footprint for
determining whether the primary
audience for a DTH service is outside
the United States.’’
10. Two parties, EchoStar Satellite
L.L.C. (EchoStar) and DIRECTV Latin
America, LLC (DTVLA) filed
oppositions to the Petition.
II. Discussion
11. The Commission denies the
Petition’s request to apply the FSS EAS
requirements directly to the video
programming distributors that lease
transponder capacity from DTH–FSS
licensees instead of applying them to
the DTH–FSS licensees themselves. As
a practical matter, the Commission’s
ability to enforce the EAS requirements
in this satellite context could be
compromised if ultimate compliance
responsibility were not placed on the
DTH–FSS licensees. As the Commission
observed in the DBS public interest
certification proceeding (which
implemented a certification regime
upon which the DTH–FSS EAS
certification scheme is modeled), the
Commission has greater enforcement
powers under the Act over satellite
licensees than direct-to-home, nonlicensee programmers, and it also has
greater ownership information about
such licensees than it has about these
programmers. With respect to the DBS
public interest certification scheme, the
Commission concluded that ‘‘placing
the ultimate compliance responsibility
on the satellite licensees is not unduly
burdensome.’’ The Commission arrives
at the same conclusion in the context of
DTH–FSS EAS obligations. The
Commission observes that over the past
decade during which the DTH–FSS EAS
rules have been in effect, the
Commission has not been apprised by
DTH–FSS licensees of any significant
problems associated with their
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implementation. That the DTH–FSS
licensees lease the use of their satellites
to video programming distributors and
other entities is a business model choice
of their own making that the EAS
certification regime for DTH–FSS
licensees attempts to accommodate.
12. Petitioners contend that, in all
cases but Petitioners’, the Commission
has applied the requirements associated
with disseminating authorized EAS
alerts ‘‘to the entity that delivers
programming to the consumer,’’ and
that DTH–FSS has been treated
dissimilarly without explanation. The
Commission finds that this comparison
is inaccurate and thus rejects
Petitioners’ request to shift the
compliance burden to program
suppliers. As Petitioners themselves
point out, for broadcast services,
broadcast licensees must disseminate
authorized EAS alerts and follow other
related requirements. Similarly, in the
case of cable services, the cable operator
is responsible for following these EAS
requirements. These EAS obligations, in
either instance, do not attach to the
entity that supplies the programming. In
the case of DTH–FSS satellites, it is the
FSS satellite transponders—not the
program suppliers—that transmit the
programming to consumer receivers,
and are thus similarly situated to the
other types of entities that participate in
the EAS, and consequently, are
appropriately subject to these EAS
requirements.
13. The Commission also denies the
Petition’s alternative request that the
Commission not apply the FSS EAS
rules in instances where satellite
transponders are subject to preexisting
capacity lease agreements that were in
effect before the FSS EAS obligations
became effective. The FSS EAS
obligations were adopted on November
10, 2005, but were not made effective
until May 31, 2007. Petitioners argue
that ‘‘[t]he FSS satellite operators have
no means [ ] of requiring EAS
compliance in connection with capacity
agreements that were entered into prior
to the effective date of the R&O.’’
Petitioners subsequently argued that
‘‘many DTH–FSS capacity agreements
are long-term contracts with terms
extending beyond 2007.’’ Petitioners did
not specify how far beyond 2007 their
capacity agreements entered into prior
to the adoption of the FSS EAS
requirements in 2005 might extend, and
it is unclear whether any such
agreements are still in effect today. That
said, licensees in a regulated industry
remain subject to new rules deemed by
the Commission to be appropriate and
in the public interest. As to the
particular circumstances here, the
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Commission expects that such private
arrangements would have included
accommodations to account for changes
in the regulatory or statutory framework.
And, had such implementation issues
persisted beyond that time frame, the
Commission would have expected to see
other indicia of such difficulties. In any
event, the Commission observes that the
FSS EAS certification regime was
adopted as an optional mechanism
through which DTH–FSS licensees can
delegate the performance of EAS
obligations for which they are
ultimately responsible to their DTH–
FSS video programming distributor
lessees. While the Commission
contemplated this as one option for
meeting these obligations, it did not
suggest that it would be the only one
available. Accordingly, those DTH FSS
licensees that do not consider it feasible
or efficient to delegate performance of
these obligations to their DTH–FSS
video programming distributor lessees
always have the option of relying on
their own devices to meet these
obligations themselves.
14. With respect to Petitioners’
request that they be exempted from EAS
requirements DTH–FSS services that are
directed primarily to consumers outside
the U.S., but incidentally received by
consumers in the U.S., the Commission
agrees with Petitioners that EAS
obligations should not apply in such
cases. The Commission does not believe
it was intended for EAS obligations
adopted in the First Report and Order to
be applied to DTH–FSS-based services
that are directed to consumers outside
the U.S., but which incidentally include
geographic overlap with the U.S. by
virtue of the satellite transponder’s
footprint. In adopting the DBS service
definition in section 25.701(a), the
Commission emphasized that this
definition would capture those services
‘‘for which viewers may have
expectations as to available warnings
based on experience with broadcast
television services.’’ Such expectations
are unlikely to be shared by viewers
outside the U.S. The Commission also
observed that ‘‘extending national level
EAS requirements to DBS providers
serves the public interest by ensuring
that the significant portion of the
American public that are DBS
subscribers have access to this critical
emergency information.’’ To require that
programming intended for consumers
outside of the U.S. comply with the EAS
rules would significantly increase
regulatory burdens on DTH–FSS service
providers without delivering a
measurable benefit to an unintended
U.S. audience that is unlikely to be
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watching the DTH–FSS programming.
Such a result would be inconsistent
with the Commission’s stated rationales
and intent for extending EAS
obligations to DBS services. At the same
time, the Commission is mindful that
U.S. consumers who have a reasonable
basis to expect that EAS alerts will be
offered over such DTS–FSS services
receive alerts consistent with those
expectations.
15. Accordingly, in balancing these
policy objectives, the Commission
grants partial reconsideration of its EAS
rules to Petitioners to ensure that DTH–
FSS licensees deliver EAS alerts to
DTH–FSS service consumers within the
United States that have an expectation
that they will receive EAS alerts, rather
than to U.S.-based consumers who
incidentally receive such DTH–FSS
services. Petitioners have argued that
the DTH–FSS EAS obligations should be
triggered based on the U.S. territory
encompassed within the FSS licensee’s
transponder footprint and propose a
trigger based on whether 50% of the
area or population within the DTH–FSS
transponder footprint is within the
contiguous United States (CONUS). The
Commission agrees that the geographic
area covered by the DTH–FSS
transponder footprint is an appropriate
measure of whether the DTH–FSS is
focused on U.S. consumers, but
disagrees that it should be the sole
measure. Use of geographic area
coverage area alone could exclude
substantial portions of the U.S. from
receiving EAS alerts where consumers
could reasonably expect EAS to be
provided. For example, under
Petitioners’ suggestion, a DTH–FSS
transponder could be centered on a U.S.
city on the border with Mexico and have
DTH–FSS service that is marketed
actively to U.S. consumers in that city,
but would be exempt from the EAS
rules if more than 50% of the
transponder footprint covered Mexico.
The Commission does not find such a
result to be in the public interest.
16. The Commission therefore
establishes multiple criteria by which it
will determine whether the DTH–FSS
programing is directed to a United
States audience for purposes of
determining EAS obligations, or is
merely incidentally received: (1)
Whether the center of the footprint of
the antenna beam associated with the
transponder used to provide the DTH–
FSS service is within the United States;
(2) whether at least 50 percent of the
footprint of the antenna beam associated
with the transponder used to provide
DTH–FSS covers territory within the
United States; or (3) whether the DTH–
FSS service is marketed to U.S.
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consumers, either through advertising
campaigns or promotional materials that
are focused on potential subscribers
located within the United States. If any
of these three factors is present, the
Commission finds that it is likely that
the DTH–FSS service is focused on U.S.
consumers, and therefore is within the
intended scope of the Commission’s
EAS rules.
17. Finally, with respect to the DTH–
FSS EAS obligation triggering criteria
that the video program distributor’s
service include a sufficient number of
channels such that four percent of the
total applicable programming channels
yields a set aside of at least one channel
of non-commercial programming, the
Commission observes that the
Commission previously has clarified
that this four percent set aside threshold
is not triggered until at least 25 channels
of video programming are being offered.
To the extent it was not clear that this
earlier finding also applies in the FSS
EAS context, the Commission
incorporates it here.
III. Procedural Matters
A. Accessible Formats
18. 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), 202–418–0432 (tty).
B. Supplemental Final Regulatory
Flexibility Analysis
19. As required by the Regulatory
Flexibility Act of 1980 (RFA), as
amended, an Initial Regulatory
Flexibility Analysis (IRFA) was
incorporated in the Notice of Proposed
Rulemaking (NPRM) in EB Docket No.
04–296, 69 FR 52843 (Aug. 30, 2004).
The Commission sought written public
comment on the proposals in the NPRM,
including comments on the IRFA. No
comments were filed addressing the
IRFA. The Commission included a Final
Regulatory Flexibility Analysis (FRFA)
in the First Report and Order and
Further Notice of Proposed Rulemaking
(First Report and Order) in EB Docket
No. 04–296, 70 FR 71023, 71072 (Nov.
25, 2005). This Supplemental Final
Regulatory Flexibility Analysis
(Supplemental FRFA) supplements the
FRFA to reflect the actions taken in this
Order and conforms to the RFA.
1. Need for, and Objective of, the Order
20. In the First Report and Order, the
Commission extended Emergency Alert
System (EAS) obligations to digital
television and radio, digital cable, and
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satellite television and radio services.
Among other things, the Commission
extended EAS obligations to Direct
Broadcast Satellite (DBS) services, as
defined in section 25.701(a)(1)–(3) of the
Commission’s rules. As used in section
25.701(a), the definition of DBS
includes entities licensed to operate
Fixed Satellite Service (FSS) satellite in
the Ku band that ‘‘sell or lease capacity
to a video programming distributor that
offers service directly to consumers
providing a sufficient number of
channels so that four percent of the total
applicable programming channels yields
a set aside of at least one channel of
non-commercial programming pursuant
to [section 25.701(e) of the
Commission’s rules]’’ (hereinafter,
‘‘DTH–FSS licensees’’).
21. In this Order, the Commission
grants, to the extent described herein, a
petition for partial reconsideration of
the First Report and Order jointly filed
in 2005 by PanAmSat Corporation, SES
Americom, Inc., and Intelsat, Ltd.
(collectively, Petitioners). In particular,
the Commission denies all the specific
requests made by Petitioners, and
clarifies the criteria triggering when the
EAS obligations apply to DTH–FSS
licensees.
2. Summary of Significant Issues Raised
by Public Comments in Response to the
IRFA
22. There were no comments filed
that specifically addressed the proposed
rules and policies presented in the
IRFA.
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3. Response to Comments by the Chief
Counsel for Advocacy of the Small
Business Administration
23. Pursuant to the Small Business
Jobs Act of 2010, which amended the
RFA, the Commission is required to
respond to any comments filed by the
Chief Counsel of the Small Business
Administration (SBA), and to provide a
detailed statement of any change made
to the proposed rule(s) as a result of
those comments.
24. The Chief Counsel did not file any
comments in response to the proposed
rule(s) in this proceeding.
4. Description and Estimate of the
Number of Small Entities to Which the
Rules Would Apply
25. 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 herein.
The RFA generally defines the term
‘‘small entity’’ as having the same
meaning as the terms ‘‘small business,’’
‘‘small organization,’’ and ‘‘small
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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.
26. As noted above, a FRFA was
incorporated into the First Report and
Order. In that analysis, the Commission
described in detail the small entities
that might be significantly affected by
the rules adopted in the First Report and
Order. In this Order, the Commission
hereby incorporates by reference the
descriptions and estimates of the
number of small entities from the
previous FRFA in this proceeding.
5. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
27. The data, information and
document collection required by the
First Report and Order as described in
the previous FRFA in this proceeding is
hereby incorporated by reference. The
actions taken in this Order do not
amend or otherwise revise those
requirements, except to refine the
criteria that determine when DTH–FSS
licensees are subject to EAS obligations.
More specifically, the Commission finds
that the criteria triggering DTH–FSS
EAS obligations only applies in
instances where the FSS capacity sold
or leased to the video programming
distributor is effected over a DTH–FSS
transponder for which (1) the center of
the footprint of the antenna beam
associated with the transponder used to
provide the DTH–FSS service is within
the United States, (2) at least 50 percent
of the footprint of the antenna beam
associated with the transponder used to
provide DTH–FSS covers territory
within the United States, or (3) where
the DTH–FSS service is marketed to
U.S. consumers, either through
advertising campaigns or promotional
materials that are focused on potential
subscribers located within the United
States. If any of these three factors is
present, the Commission finds that it is
likely that the DTH–FSS service is
focused on U.S. consumers. This aspect
of the decision is consistent with the
Commission’s intent expressed in the
First Report and Order for extending
EAS alert delivery to American
subscribers of DBS services.
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6. Steps Taken To Minimize the
Significant Economic Impact on Small
Entities, and Significant Alternatives
Considered
28. The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives (among
others): ‘‘(1) the establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) and exemption from
coverage of the rule, or any part thereof,
for small entities.’’
29. The analysis of the Commission’s
efforts to minimize the possible
significant economic impact on small
entities as described in the previous
FRFA in this proceeding is hereby
incorporated by reference.
Report to Congress
30. The Commission will not send a
copy of this Order, including this
Supplemental FRFA, in a report to
Congress pursuant to the Congressional
Review Act. In addition, the
Commission will send a copy of this
Order, including this Supplemental
FRFA, to the Chief Counsel for
Advocacy of the SBA. A copy of this
Order and Supplemental FRFA (or
summaries thereof) will also be
published in the Federal Register.
D. Additional Information
31. People with Disabilities. 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),
202–418–0432 (tty).
32. Additional Information. For
additional information on this
proceeding, contact Gregory Cooke of
the Public Safety and Homeland
Security Bureau, Policy and Licensing
Division, gregory.cooke@fcc.gov, (202)
418–2351.
IV. Ordering Clauses
33. Accordingly, it is ordered that
pursuant to sections 1, 2, 4(i), 4(o), 301,
303(r), 303(v), 307, 309, 335, 403,
624(g),706, and 715 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i),
154(o), 301, 303(r), 303(v), 307, 309,
335, 403, 544(g), 606, and 615, this
Order on Reconsideration is adopted,
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and the petition for partial
reconsideration filed by PanAmSat
Corporation, SES Americom, Inc., and
Intelsat, Ltd. is hereby granted as
described herein, and otherwise denied.
34. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Order on Reconsideration,
including the Supplemental Final
Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small
Business Administration.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the
Secretary.
[FR Doc. 2018–18151 Filed 8–22–18; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
[Docket No. 150121066–5717–02]
RIN 0648–XG366
Atlantic Highly Migratory Species;
Atlantic Bluefin Tuna Fisheries
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; inseason
General category retention limit
adjustment.
AGENCY:
NMFS is adjusting the
Atlantic bluefin tuna (BFT) General
category daily retention limit from three
large medium or giant BFT per vessel
per day/trip to one large medium or
giant BFT per vessel per day/trip for the
remainder of the June through August
2018 subquota period. This action is
based on consideration of the regulatory
determination criteria regarding
inseason adjustments and applies to
Atlantic Tunas General category
(commercial) permitted vessels and
Highly Migratory Species (HMS)
Charter/Headboat category permitted
vessels with a commercial sale
endorsement when fishing
commercially for BFT.
DATES: Effective August 23, 2018,
through August 31, 2018.
FOR FURTHER INFORMATION CONTACT:
Sarah McLaughlin or Dianne Stephan,
978–281–9260.
SUPPLEMENTARY INFORMATION:
Regulations implemented under the
daltland on DSKBBV9HB2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:16 Aug 22, 2018
Jkt 244001
authority of the Atlantic Tunas
Convention Act (ATCA; 16 U.S.C. 971 et
seq.) and the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act; 16 U.S.C. 1801
et seq.) governing the harvest of BFT by
persons and vessels subject to U.S.
jurisdiction are found at 50 CFR part
635. Section 635.27 subdivides the U.S.
BFT quota recommended by the
International Commission for the
Conservation of Atlantic Tunas (ICCAT)
among the various domestic fishing
categories, per the allocations
established in the 2006 Atlantic
Consolidated Highly Migratory Species
Fishery Management Plan (2006
Consolidated HMS FMP) (71 FR 58058,
October 2, 2006) and amendments, and
in accordance with implementing
regulations. NMFS is required under
ATCA and the Magnuson-Stevens Act to
provide U.S. fishing vessels with a
reasonable opportunity to harvest the
ICCAT-recommended quota.
The current baseline U.S. quota is
1,058.9 mt (not including the 25 mt
ICCAT allocated to the United States to
account for bycatch of BFT in pelagic
longline fisheries in the Northeast
Distant Gear Restricted Area). See
§ 635.27(a). The current baseline
General category quota is 466.7 mt. Each
of the five General category time periods
(‘‘January,’’ June through August,
September, October through November,
and December) is allocated a portion of
the annual General category quota.
Although it is called the ‘‘January’’
subquota, the regulations allow the
General category fishery under this
quota to continue until the subquota is
reached or March 31, whichever comes
first. The current baseline subquotas for
each time period are as follows: 24.7 mt
(5.3 percent) for January; 233.3 mt (50
percent) for June through August; 123.7
mt (26.5 percent) for September; 60.7 mt
(13 percent) for October through
November; and 24.3 mt (5.2 percent) for
December. Any unused General category
quota rolls forward within the fishing
year, which coincides with the calendar
year, from one time period to the next,
and is available for use in subsequent
time periods. This action would adjust
the daily retention limit for the
remainder of the second time period in
2018, which ends August 31, 2018.
Although NMFS has published a
proposed rule (83 FR 31517, July 6,
2018) to increase the baseline U.S.
bluefin tuna quota from 1,058.79 mt to
1,247.86 mt and subquotas for 2018
(including an expected increase in
General category quota from 466.7 mt to
555.7 mt, consistent with the annual
bluefin tuna quota calculation process
established in § 635.27(a)), NMFS does
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
42607
not anticipate that the final rule will be
effective until September 2018.
Adjustment of General Category Daily
Retention Limit
The default General category retention
limit is one large medium or giant BFT
(measuring 73 inches (185 cm) curved
fork length (CFL) or greater) per vessel
per day/trip (§ 635.23(a)(2)).
Under § 635.23(a)(4), NMFS may
increase or decrease the daily retention
limit of large medium and giant BFT
over a range of zero to a maximum of
five per vessel based on consideration of
the relevant criteria provided under
§ 635.27(a)(8). On May 11, 2018, NMFS
adjusted the daily retention limit for the
beginning of the June through August
2018 subquota period from the default
level of one large medium or giant BFT
to three large medium or giant BFT (83
FR 21936). NMFS has considered the
relevant regulatory determination
criteria and their applicability to the
General category BFT retention limit for
the remainder of the June through
August 2018 subquota time period.
These considerations include, but are
not limited to, the following:
Regarding the usefulness of
information obtained from catches in
the particular category for biological
sampling and monitoring of the status of
the stock (§ 635.27(a)(8)(i)), biological
samples collected from BFT landed by
General category fishermen and
provided by BFT dealers continue to
provide NMFS with valuable data for
ongoing scientific studies of BFT age
and growth, migration, and reproductive
status. Prolonged opportunities to land
BFT over the longest time-period
allowable would support the collection
of a broad range of data for these studies
and for stock monitoring purposes.
NMFS also considered the catches of
the General category quota to date
(including landings and catch rates
during the last several years) and the
likelihood of closure of that segment of
the fishery if no adjustment is made
(§ 635.27(a)(8)(ii) and (ix)). Commercialsize BFT are currently readily available
to vessels fishing under the General
category quota. As of August 17, 2018,
the General category has landed
approximately 271.9 mt, which is 58
and 57 percent of the annual base and
adjusted 2018 General category quotas,
respectively. Landings since June 1,
2018, are 212.6 mt, representing 91
percent of the General category
subquota for the June 1 through August
31 period. If current catch rates
continue with the three-fish daily limit,
the available subquota for June 1
through August 31 period could be
reached or exceeded, and NMFS would
E:\FR\FM\23AUR1.SGM
23AUR1
]]>Agencies
[Federal Register Volume 83, Number 164 (Thursday, August 23, 2018)]
[Rules and Regulations]
[Pages 42603-42607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18151]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 11
[EB Docket No. 04-296, PS Docket No. 15-94; FCC 18-102]
Review of the Emergency Alert System
AGENCY: Federal Communications Commission.
ACTION: Petition for partial reconsideration; final decision.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission (FCC
or Commission) partially denies and partially grants a petition for
partial reconsideration of the Emergency Alert System (EAS)
requirements for certain Fixed Satellite Service (FSS) satellite
operators jointly filed by PanAmSat Corporation, SES Americom, Inc.,
and Intelsat, Ltd.
DATES: Effective September 24, 2018.
FOR FURTHER INFORMATION CONTACT: Gregory Cooke, Deputy Chief, Policy
and Licensing Division, Public Safety and Homeland Security Bureau, at
(202) 418-7452, or by email at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration (Order) in EB Docket No. 04-296 and PS Docket No.
15-94, FCC 18-102, adopted on July 23, 2018, and released on July 24,
2018. The full text of this document is available for inspection and
copying during normal business hours in the FCC Reference Center (Room
CY-A257), 445 12th Street SW, Washington, DC 20554. The full text may
also be downloaded at: www.fcc.gov.
Synopsis
1. In the Order, the Commission partially denies and partially
grants the petition for partial reconsideration (Petition) of the EAS
requirements for FSS satellite operators jointly filed by PanAmSat
Corporation, SES Americom, Inc., and Intelsat, Ltd. (Petitioners).
Specifically, the Commission denies Petitioners' request to shift the
EAS obligations adopted for Ku band FSS licensees to the video
programming distributors that lease transponder capacity from such
licensees. The Commission also denies Petitioners' alternative request
to not apply the FSS EAS rules to FSS satellite operations subject to
satellite capacity lease agreements already in place when the FSS EAS
requirements became effective. The Commission does, however, grant the
Petition to the extent that it adopts more specific criteria for
determining when EAS obligations are triggered for FSS licensees whose
satellites are used to provide programming directed primarily to
consumers outside the U.S., with only incidental reception by consumers
in the U.S.
I. Background
A. The EAS
2. The EAS is a national public warning system through which
broadcasters, cable systems, and other service providers (EAS
Participants) deliver alerts to the public to warn them of impending
emergencies and dangers to life and property. The primary purpose of
the EAS is to provide the President with ``the capability to provide
immediate communications and information to the general public at the
national, state and local levels during periods of national
emergency.'' The EAS also is used by state and local governments, as
well as the National Weather Service, to distribute alerts.
B. The EAS First Report and Order
3. In 2005, in recognition that consumers were increasingly
adopting digital technologies as replacements for analog broadcast and
cable systems that were already subject to EAS requirements, the
Commission adopted the First Report and Order and Further Notice of
Proposed Rulemaking (First Report and Order) in EB Docket No. 04-296,
70 FR 71023, 71072 (Nov. 25, 2005), expanding EAS obligations to
digital television and radio, digital cable, and satellite television
and radio services. The Commission deemed that ``some level of EAS
participation must be established for these new digital services to
ensure that large portions of the American public are able to receive
national and/or regional public alerts and warnings.''
4. With respect to satellite video services, the Commission, in
part pursuant to its jurisdiction under section 303(v) of the
Communications Act of 1934, as amended (the ``Act''), to regulate
direct-to-home (DTH) satellite services, extended EAS obligations to
DBS services, as defined in section 25.701(a)(1)-(3) of the
Commission's rules. As used in section 25.701(a), the definition of DBS
includes entities licensed to operate FSS satellites in the Ku band
that ``sell or lease capacity to a video programming distributor that
offers service directly to consumers providing a sufficient number of
channels so that four percent of the total applicable programming
channels yields a set aside of at least one channel of non-commercial
programming pursuant to [section 25.701(e) of the Commission's rules]''
(hereinafter, ``DTH-FSS licensees''). The Commission anticipated that
this definition would ``ensure[ ] that the EAS rules apply to the vast
majority of existing DTH satellite services, particularly those for
which viewers may have expectations as to available warnings based on
experience with broadcast television services.'' With respect to
compliance requirements, the Commission generally required DBS entities
to participate in national EAS activations, and meet related
monitoring, testing and equipment readiness requirements.
5. The Commission, however, allowed DTH-FSS licensees to delegate
their EAS obligations to the video programming distributors that lease
capacity on their satellites. Specifically, the Commission stated that
``compliance with EAS requirements may be established based upon a
certification from a [video programming] distributor that expressly
states that the distributor has complied with the EAS obligations.''
The Commission added that the DTH-FSS licensees ``will not be required
to verify compliance by distributors unless there is evidence that the
distributor has not met its obligation.'' The Commission concluded that
placing ultimate compliance responsibility on the DTH-FSS licensees
under this scheme was not unduly burdensome because the ``certification
requirements can be included in satellite carriage and leasing
contracts,'' and because it was similar to the certification scheme
adopted for FSS Part 25 licensees to meet their DBS public interest
obligations. The Commission declined to apply EAS obligations to Home
Satellite Dish (HSD) service, which also falls under the Commission's
DTH jurisdiction.
C. The Petition
6. The Petitioners state that they ``support the application of the
EAS requirements to DTH-FSS services,'' but seek reconsideration of
three aspects of the Commission's decision adopting such requirements.
First, the Petition requests that the Commission modify the FSS EAS
requirements adopted in the First Report and Order by applying
[[Page 42604]]
them directly to the video programming distributors that lease
transponder capacity from the DTH-FSS licensees instead of applying
them to the DTH-FSS licensees themselves. Second, in the alternative,
the Petition requests that the Commission not apply the FSS EAS rules
to satellite transponder(s) that were subject to pre-existing satellite
capacity lease agreements already in place when the FSS EAS
requirements became effective. Third, the Petition requests that the
Commission ``provide an exemption from the EAS requirements for DTH-FSS
services that are directed primarily to consumers outside the United
States but also are made available to consumers in the United States.''
7. With respect to their contention that responsibility for EAS
compliance should be shifted from the DTH-FSS licensees to their lessee
video programming distributors, Petitioners argue that, for all other
services, the EAS rules apply to ``the entity that delivers programming
to the consumer and therefore is in a position to substitute emergency
messages when the EAS system is activated.'' Petitioners contend that
``[i]n the case of broadcast services, for example, the requirements
apply to the stations that transmit programming to consumers' radio and
television receivers.'' Petitioners contend that the Commission did not
explain why it departed from this approach in the DTH-FSS case.
Petitioners argue that DTH-FSS programming distributors are best
situated to comply with the FSS EAS requirements because they are the
entities that generate and control the program content that is
delivered via the satellite. Petitioners also liken their situation to
the HSD providers exempted from EAS obligations in the First Report and
Order in that, like HSD providers, DTH-FSS licensees do not control the
programming that is transmitted over the satellite to HSD consumers.
8. With respect to the certification mechanism through which DTH-
FSS licensees delegate responsibility for EAS obligations to their
lessees, Petitioners argue that attaching EAS compliance obligations to
DTH-FSS programming distributors through their capacity lease
agreements with DTH-FSS satellite operators is inefficient, and does
not provide for direct enforcement of compliance, but instead subjects
resolution of compliance questions to private contract litigation.
9. Petitioners also request that the FCC exempt DTH-FSS services
offered primarily outside the U.S., but incidentally made available to
U.S. subscribers. Petitioners contend that such exemption is needed
because ``[i]t is highly improbable that the distributors of these
services would be willing to preempt normal programming for
announcements from the President of the United States.'' Instead,
according to Petitioners, these video programming distributors would
cease marketing their services in the U.S., thus depriving the public
of ``access to valuable programming.'' Petitioners further argue that
applying EAS requirements in this context amounts to regulating the
content of foreign programming. Petitioners thus propose that the
Commission exempt DTH services directed ``primarily in foreign
countries'' from EAS obligations, and suggest that the Commission
``employ a standard of 50% of the area or population within a footprint
for determining whether the primary audience for a DTH service is
outside the United States.''
10. Two parties, EchoStar Satellite L.L.C. (EchoStar) and DIRECTV
Latin America, LLC (DTVLA) filed oppositions to the Petition.
II. Discussion
11. The Commission denies the Petition's request to apply the FSS
EAS requirements directly to the video programming distributors that
lease transponder capacity from DTH-FSS licensees instead of applying
them to the DTH-FSS licensees themselves. As a practical matter, the
Commission's ability to enforce the EAS requirements in this satellite
context could be compromised if ultimate compliance responsibility were
not placed on the DTH-FSS licensees. As the Commission observed in the
DBS public interest certification proceeding (which implemented a
certification regime upon which the DTH-FSS EAS certification scheme is
modeled), the Commission has greater enforcement powers under the Act
over satellite licensees than direct-to-home, non-licensee programmers,
and it also has greater ownership information about such licensees than
it has about these programmers. With respect to the DBS public interest
certification scheme, the Commission concluded that ``placing the
ultimate compliance responsibility on the satellite licensees is not
unduly burdensome.'' The Commission arrives at the same conclusion in
the context of DTH-FSS EAS obligations. The Commission observes that
over the past decade during which the DTH-FSS EAS rules have been in
effect, the Commission has not been apprised by DTH-FSS licensees of
any significant problems associated with their implementation. That the
DTH-FSS licensees lease the use of their satellites to video
programming distributors and other entities is a business model choice
of their own making that the EAS certification regime for DTH-FSS
licensees attempts to accommodate.
12. Petitioners contend that, in all cases but Petitioners', the
Commission has applied the requirements associated with disseminating
authorized EAS alerts ``to the entity that delivers programming to the
consumer,'' and that DTH-FSS has been treated dissimilarly without
explanation. The Commission finds that this comparison is inaccurate
and thus rejects Petitioners' request to shift the compliance burden to
program suppliers. As Petitioners themselves point out, for broadcast
services, broadcast licensees must disseminate authorized EAS alerts
and follow other related requirements. Similarly, in the case of cable
services, the cable operator is responsible for following these EAS
requirements. These EAS obligations, in either instance, do not attach
to the entity that supplies the programming. In the case of DTH-FSS
satellites, it is the FSS satellite transponders--not the program
suppliers--that transmit the programming to consumer receivers, and are
thus similarly situated to the other types of entities that participate
in the EAS, and consequently, are appropriately subject to these EAS
requirements.
13. The Commission also denies the Petition's alternative request
that the Commission not apply the FSS EAS rules in instances where
satellite transponders are subject to preexisting capacity lease
agreements that were in effect before the FSS EAS obligations became
effective. The FSS EAS obligations were adopted on November 10, 2005,
but were not made effective until May 31, 2007. Petitioners argue that
``[t]he FSS satellite operators have no means [ ] of requiring EAS
compliance in connection with capacity agreements that were entered
into prior to the effective date of the R&O.'' Petitioners subsequently
argued that ``many DTH-FSS capacity agreements are long-term contracts
with terms extending beyond 2007.'' Petitioners did not specify how far
beyond 2007 their capacity agreements entered into prior to the
adoption of the FSS EAS requirements in 2005 might extend, and it is
unclear whether any such agreements are still in effect today. That
said, licensees in a regulated industry remain subject to new rules
deemed by the Commission to be appropriate and in the public interest.
As to the particular circumstances here, the
[[Page 42605]]
Commission expects that such private arrangements would have included
accommodations to account for changes in the regulatory or statutory
framework. And, had such implementation issues persisted beyond that
time frame, the Commission would have expected to see other indicia of
such difficulties. In any event, the Commission observes that the FSS
EAS certification regime was adopted as an optional mechanism through
which DTH-FSS licensees can delegate the performance of EAS obligations
for which they are ultimately responsible to their DTH-FSS video
programming distributor lessees. While the Commission contemplated this
as one option for meeting these obligations, it did not suggest that it
would be the only one available. Accordingly, those DTH FSS licensees
that do not consider it feasible or efficient to delegate performance
of these obligations to their DTH-FSS video programming distributor
lessees always have the option of relying on their own devices to meet
these obligations themselves.
14. With respect to Petitioners' request that they be exempted from
EAS requirements DTH-FSS services that are directed primarily to
consumers outside the U.S., but incidentally received by consumers in
the U.S., the Commission agrees with Petitioners that EAS obligations
should not apply in such cases. The Commission does not believe it was
intended for EAS obligations adopted in the First Report and Order to
be applied to DTH-FSS-based services that are directed to consumers
outside the U.S., but which incidentally include geographic overlap
with the U.S. by virtue of the satellite transponder's footprint. In
adopting the DBS service definition in section 25.701(a), the
Commission emphasized that this definition would capture those services
``for which viewers may have expectations as to available warnings
based on experience with broadcast television services.'' Such
expectations are unlikely to be shared by viewers outside the U.S. The
Commission also observed that ``extending national level EAS
requirements to DBS providers serves the public interest by ensuring
that the significant portion of the American public that are DBS
subscribers have access to this critical emergency information.'' To
require that programming intended for consumers outside of the U.S.
comply with the EAS rules would significantly increase regulatory
burdens on DTH-FSS service providers without delivering a measurable
benefit to an unintended U.S. audience that is unlikely to be watching
the DTH-FSS programming. Such a result would be inconsistent with the
Commission's stated rationales and intent for extending EAS obligations
to DBS services. At the same time, the Commission is mindful that U.S.
consumers who have a reasonable basis to expect that EAS alerts will be
offered over such DTS-FSS services receive alerts consistent with those
expectations.
15. Accordingly, in balancing these policy objectives, the
Commission grants partial reconsideration of its EAS rules to
Petitioners to ensure that DTH-FSS licensees deliver EAS alerts to DTH-
FSS service consumers within the United States that have an expectation
that they will receive EAS alerts, rather than to U.S.-based consumers
who incidentally receive such DTH-FSS services. Petitioners have argued
that the DTH-FSS EAS obligations should be triggered based on the U.S.
territory encompassed within the FSS licensee's transponder footprint
and propose a trigger based on whether 50% of the area or population
within the DTH-FSS transponder footprint is within the contiguous
United States (CONUS). The Commission agrees that the geographic area
covered by the DTH-FSS transponder footprint is an appropriate measure
of whether the DTH-FSS is focused on U.S. consumers, but disagrees that
it should be the sole measure. Use of geographic area coverage area
alone could exclude substantial portions of the U.S. from receiving EAS
alerts where consumers could reasonably expect EAS to be provided. For
example, under Petitioners' suggestion, a DTH-FSS transponder could be
centered on a U.S. city on the border with Mexico and have DTH-FSS
service that is marketed actively to U.S. consumers in that city, but
would be exempt from the EAS rules if more than 50% of the transponder
footprint covered Mexico. The Commission does not find such a result to
be in the public interest.
16. The Commission therefore establishes multiple criteria by which
it will determine whether the DTH-FSS programing is directed to a
United States audience for purposes of determining EAS obligations, or
is merely incidentally received: (1) Whether the center of the
footprint of the antenna beam associated with the transponder used to
provide the DTH-FSS service is within the United States; (2) whether at
least 50 percent of the footprint of the antenna beam associated with
the transponder used to provide DTH-FSS covers territory within the
United States; or (3) whether the DTH-FSS service is marketed to U.S.
consumers, either through advertising campaigns or promotional
materials that are focused on potential subscribers located within the
United States. If any of these three factors is present, the Commission
finds that it is likely that the DTH-FSS service is focused on U.S.
consumers, and therefore is within the intended scope of the
Commission's EAS rules.
17. Finally, with respect to the DTH-FSS EAS obligation triggering
criteria that the video program distributor's service include a
sufficient number of channels such that four percent of the total
applicable programming channels yields a set aside of at least one
channel of non-commercial programming, the Commission observes that the
Commission previously has clarified that this four percent set aside
threshold is not triggered until at least 25 channels of video
programming are being offered. To the extent it was not clear that this
earlier finding also applies in the FSS EAS context, the Commission
incorporates it here.
III. Procedural Matters
A. Accessible Formats
18. To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format),
send an email to [email protected] or call the Consumer & Governmental
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
B. Supplemental Final Regulatory Flexibility Analysis
19. As required by the Regulatory Flexibility Act of 1980 (RFA), as
amended, an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Notice of Proposed Rulemaking (NPRM) in EB Docket
No. 04-296, 69 FR 52843 (Aug. 30, 2004). The Commission sought written
public comment on the proposals in the NPRM, including comments on the
IRFA. No comments were filed addressing the IRFA. The Commission
included a Final Regulatory Flexibility Analysis (FRFA) in the First
Report and Order and Further Notice of Proposed Rulemaking (First
Report and Order) in EB Docket No. 04-296, 70 FR 71023, 71072 (Nov. 25,
2005). This Supplemental Final Regulatory Flexibility Analysis
(Supplemental FRFA) supplements the FRFA to reflect the actions taken
in this Order and conforms to the RFA.
1. Need for, and Objective of, the Order
20. In the First Report and Order, the Commission extended
Emergency Alert System (EAS) obligations to digital television and
radio, digital cable, and
[[Page 42606]]
satellite television and radio services. Among other things, the
Commission extended EAS obligations to Direct Broadcast Satellite (DBS)
services, as defined in section 25.701(a)(1)-(3) of the Commission's
rules. As used in section 25.701(a), the definition of DBS includes
entities licensed to operate Fixed Satellite Service (FSS) satellite in
the Ku band that ``sell or lease capacity to a video programming
distributor that offers service directly to consumers providing a
sufficient number of channels so that four percent of the total
applicable programming channels yields a set aside of at least one
channel of non-commercial programming pursuant to [section 25.701(e) of
the Commission's rules]'' (hereinafter, ``DTH-FSS licensees'').
21. In this Order, the Commission grants, to the extent described
herein, a petition for partial reconsideration of the First Report and
Order jointly filed in 2005 by PanAmSat Corporation, SES Americom,
Inc., and Intelsat, Ltd. (collectively, Petitioners). In particular,
the Commission denies all the specific requests made by Petitioners,
and clarifies the criteria triggering when the EAS obligations apply to
DTH-FSS licensees.
2. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
22. There were no comments filed that specifically addressed the
proposed rules and policies presented in the IRFA.
3. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
23. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel of the Small Business Administration (SBA), and to
provide a detailed statement of any change made to the proposed rule(s)
as a result of those comments.
24. The Chief Counsel did not file any comments in response to the
proposed rule(s) in this proceeding.
4. Description and Estimate of the Number of Small Entities to Which
the Rules Would Apply
25. 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 herein. 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.
26. As noted above, a FRFA was incorporated into the First Report
and Order. In that analysis, the Commission described in detail the
small entities that might be significantly affected by the rules
adopted in the First Report and Order. In this Order, the Commission
hereby incorporates by reference the descriptions and estimates of the
number of small entities from the previous FRFA in this proceeding.
5. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
27. The data, information and document collection required by the
First Report and Order as described in the previous FRFA in this
proceeding is hereby incorporated by reference. The actions taken in
this Order do not amend or otherwise revise those requirements, except
to refine the criteria that determine when DTH-FSS licensees are
subject to EAS obligations. More specifically, the Commission finds
that the criteria triggering DTH-FSS EAS obligations only applies in
instances where the FSS capacity sold or leased to the video
programming distributor is effected over a DTH-FSS transponder for
which (1) the center of the footprint of the antenna beam associated
with the transponder used to provide the DTH-FSS service is within the
United States, (2) at least 50 percent of the footprint of the antenna
beam associated with the transponder used to provide DTH-FSS covers
territory within the United States, or (3) where the DTH-FSS service is
marketed to U.S. consumers, either through advertising campaigns or
promotional materials that are focused on potential subscribers located
within the United States. If any of these three factors is present, the
Commission finds that it is likely that the DTH-FSS service is focused
on U.S. consumers. This aspect of the decision is consistent with the
Commission's intent expressed in the First Report and Order for
extending EAS alert delivery to American subscribers of DBS services.
6. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
28. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): ``(1)
the establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) and
exemption from coverage of the rule, or any part thereof, for small
entities.''
29. The analysis of the Commission's efforts to minimize the
possible significant economic impact on small entities as described in
the previous FRFA in this proceeding is hereby incorporated by
reference.
Report to Congress
30. The Commission will not send a copy of this Order, including
this Supplemental FRFA, in a report to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of this Order, including this Supplemental FRFA, to the Chief Counsel
for Advocacy of the SBA. A copy of this Order and Supplemental FRFA (or
summaries thereof) will also be published in the Federal Register.
D. Additional Information
31. People with Disabilities. To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
32. Additional Information. For additional information on this
proceeding, contact Gregory Cooke of the Public Safety and Homeland
Security Bureau, Policy and Licensing Division, [email protected],
(202) 418-2351.
IV. Ordering Clauses
33. Accordingly, it is ordered that pursuant to sections 1, 2,
4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g),706, and
715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152,
154(i), 154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606,
and 615, this Order on Reconsideration is adopted,
[[Page 42607]]
and the petition for partial reconsideration filed by PanAmSat
Corporation, SES Americom, Inc., and Intelsat, Ltd. is hereby granted
as described herein, and otherwise denied.
34. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Order on Reconsideration, including the Supplemental Final
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
[FR Doc. 2018-18151 Filed 8-22-18; 8:45 am]
BILLING CODE 6712-01-P
