Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies, 21478-21482 [2024-05940]
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Federal Register / Vol. 89, No. 61 / Thursday, March 28, 2024 / Proposed Rules
‘‘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). The Commission will
publish the required summary of this
Notice of Proposed Rulemaking on
https://www.fcc.gov/proposedrulemakings, pursuant to The Providing
Accountability Through Transparency
Act, see 5 U.S.C. 553(b)(4).
Provisions of the Regulatory
Flexibility Act of 1980 do not apply to
this proceeding.
Members of the public should note
that from the time a Notice of Proposed
Rule Making is issued until the matter
is no longer subject to Commission
consideration or court review, all ex
parte contacts are prohibited in
Commission proceedings, such as this
one, which involve channel allotments.
See 47 CFR 1.1204(b) for rules
governing permissible ex parte contacts.
For information regarding proper
filing procedures for comments, see 47
CFR 1.415 and 1.420.
[U.S. States]
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[FR Doc. 2024–06616 Filed 3–27–24; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 76
[MB Docket No. 98–204; FCC 24–18; FR ID
207778]
Review of the Commission’s
Broadcast and Cable Equal
Employment Opportunity Rules and
Policies
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the Federal
Communications Commission
Radio, Radio broadcasting.
(Commission) refreshes the existing
record regarding the statutorily
Federal Communications Commission.
mandated collection of workforce
Nazifa Sawez,
composition data for multichannel
Assistant Chief, Audio Division, Media
video programming distributors
Bureau.
(MVPDs) on FCC Form 395–A.
Proposed Rules
DATES: Comments due on or before
For the reasons discussed in the
April 29, 2024; reply comments due on
preamble, the Federal Communications
or before May 13, 2024.
Commission proposes to amend 47 CFR ADDRESSES: You may submit comments,
part 73 as follows:
identified by MB Docket No. 98–204, by
any of the following methods:
PART 73—RADIO BROADCAST
• Electronic Filers: Comments may be
SERVICES
filed electronically using the internet by
accessing the ECFS: https://apps.fcc.gov/
■ 1. The authority citation for part 73
ecfs/.
continues to read as follows:
• Paper Filers: Parties who choose to
Authority: 47 U.S.C. 154, 155, 301, 303,
file by paper must file an original and
307, 309, 310, 334, 336, 339.
one copy of each filing.
■ 2. In § 73.202, in paragraph (b), amend
Filings can be sent by commercial
the Table of FM Allotments under
overnight courier, or by first-class or
Illinois by adding in alphabetical an
overnight U.S. Postal Service mail. All
entry for ‘‘Mattoon’’ to read as follows:
filings must be addressed to the
Commission’s Secretary, Office of the
§ 73.202 Table of Allotments.
Secretary, Federal Communications
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Commission.
(b) * * *
• Commercial overnight mail (other
than U.S. Postal Service Express Mail
TABLE 1 TO PARAGRAPH (b)
and Priority Mail) must be sent to 9050
Junction Drive, Annapolis Junction, MD
[U.S. States]
Channel No.
20701.
• U.S. Postal Service first-class,
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Express, and Priority mail must be
addressed to 45 L Street NE,
Illinois
Washington, DC 20554.
• Effective March 19, 2020, and until
further notice, the Commission no
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Mattoon .................................
245B1 longer accepts any hand or messenger
delivered filings. This is a temporary
List of Subjects in 47 CFR Part 73
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SUMMARY:
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measure taken to help protect the health
and safety of individuals, and to
mitigate the transmission of COVID–19.
See FCC Announces Closure of FCC
Headquarters Open Window and
Change in Hand-Delivery Policy, Public
Notice, DA 20–304 (March 19, 2020).
https://www.fcc.gov/document/fcccloses-headquarters-open-window-andchanges-hand-delivery-policy.
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 (mail
to: fcc504@fcc.gov) or call the FCC’s
Consumer and Governmental Affairs
Bureau at (202) 418–0530 (voice), (202)
418–0432 (TTY).
FOR FURTHER INFORMATION CONTACT: For
additional information on this
proceeding, please contact Christopher
Sova of the Media Bureau, Industry
Analysis Division, christopher.sova@
fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Second
Further Notice of Proposed Rulemaking
(Second FNPRM) FCC 24–18, in MB
Docket No. 98–204, adopted on
February 7, 2024, and released on
February 22, 2024. The complete text of
this document is available electronically
via the search function on the FCC’s
website at https://docs.fcc.gov/public/
attachments/FCC-24-18A1.pdf.
Synopsis
1. Having addressed the issues
concerning the reinstatement of the
Form 395–B data collection, we now
seek, by this Second Further Notice of
Proposed Rulemaking (Second FNPRM),
to refresh the existing record regarding
the statutorily mandated collection of
Form 395–A data pursuant to 47 U.S.C.
554(d)(3)(A)–(B). Since 1984 the
Commission has required MVPDs with
six or more full-time employees to file
the FCC Form 395–A. Similar to the
Form 395–B collected from
broadcasters, Form 395–A seeks to
gather workforce composition data from
multichannel video programming
distributors (MVPDs) on an annual
basis. The Commission suspended the
filing of Form 395–A in 2001 in the
wake of the decision by the U.S. Circuit
Court of Appeals for the District of
Columbia Circuit in MD/DC/DE
Broadcasters Associations v. FCC (MD/
DC/DE Broadcasters), which vacated
certain aspects of the Commission’s EEO
requirements for broadcasters. While the
similar requirements for MVPDs have
never been challenged, the Commission
suspended the collection of both Forms
395–A and B, along with various EEO
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requirements, in order to analyze the
impact of the MD/DC/DE Broadcasters
decision. In the Third Report and Order
and Fourth Notice of Proposed
Rulemaking (Third Report and Order
and Fourth NPRM), the Commission
reinstated Forms 395–A and B pending
resolution of questions about
confidential collection and use. As the
Commission had not resolved those
questions until its adoption of the
Fourth Report and Order in MB Docket
No. 98–204 (Fourth R&O), the collection
of the Form 395–A remained suspended
along with the Form 395–B. Despite that
suspension, the Commission continued
to seek OMB approval for the
information collection, and during that
time, OMB approved both Forms 395–
A and B, subject to the Commission’s
resolution of confidentiality issues
regarding the forms’ collection and use.
Although the filing of the Form 395–A
has been suspended since 2001, OMB
has most recently approved the
information collection through January
31, 2026.
Discussion
2. We now seek by this Second
FNPRM to refresh the record stemming
from the Third Report and Order and
Fourth NPRM regarding the collection of
MVPD workforce composition data.
Consistent with the analysis provided in
the Fourth R&O for making Form 395–
B data public, we tentatively conclude
that the collection of Form 395–A also
should be reinstated and made available
for public review. We seek comment as
to whether Congress’s directive that
MVPD operators make Form 395–A
available for public inspection at their
own facilities would be consistent with
our amending our rules to require that
MVPD operators instead make Form
395–A publicly available through the
Commission-hosted Online Public
Inspection File (OPIF). While section
634(d)(3)(B) of the Act states that an
MVPD should make Form 395–A
available for public inspection at the
MVPD’s central office and at every
office where five or more full-time
employees are regularly assigned to
work, section 634(d)(4) of the Act
permits the Commission to amend the
requirements associated with Form 395–
A as needed. We tentatively conclude
that requiring the Form 395–A to be
placed in the OPIF would be more
efficient for the public that wishes to
review such reports, as OPIF provides
one online site for such review. We also
tentatively conclude that hosting the
reports in OPIF will reduce the burdens
placed on MVPDs, as this will relieve
the MVPDs of maintaining such reports
at individual central offices, including
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providing sufficient staffing for such
offices. We also tentatively conclude
that our proposal to change the location
of where the Form 395–A data will be
housed from the MVPD’s central office
to the OPIF website is consistent with
the basic intent of section 634(d)(3)(B)
of the Act, which is to ensure that the
public has access to the Form 395–A
data. We seek comment on these
tentative conclusions. Alternatively, if
section 634(d)(3)(B) of the Act were to
be read to compel availability of Form
395–A at MVPD offices, would it be
within our authority and consistent
with sound policy to additionally
require availability through OPIF?
3. In the Order on Reconsideration,
we modified § 73.3612 of our rules to
specifically state that the Form 395–B
data will not be used in assessing any
aspect of an individual broadcast
licensee’s or permittee’s compliance
with both the nondiscrimination and
equal employment opportunity
requirements of § 73.2080. Despite the
slight variation in the underlying
statutory authority for the collection of
the workforce employment data from
MVPDs versus broadcasters, the
Commission traditionally has treated
both data collections in a similar
manner. In this regard, the Commission
has imposed the same restrictions on
the use of workforce composition data
stemming from both Forms 395–A and
B. Consequently, we tentatively
conclude that § 76.1802 of our rules
concerning the MVPD annual
employment report should be modified
so as to align with the modifications
made to § 73.3612 of our rules for
broadcasters in the Order on
Reconsideration. In the Order on
Reconsideration, we incorporated what
appears as a Note to § 73.3612 into the
rule itself to conform to the publishing
conventions of the National Archives
and Records Administration’s Office of
the Federal Register. We seek comment
on our tentative conclusion to do the
same with regard to the language that
currently appears as a Note to § 76.1802,
to read as follows:
Each employment unit with six or
more full-time employees shall file an
annual employment report on the FCC
Form 395–A with the Commission on or
before September 30 of each year. Data
concerning the gender, race and
ethnicity of an employment unit’s
workforce collected in the annual
employment report will be used only for
purposes of analyzing industry trends
and making reports to Congress. Such
data will not be used for the purpose of
assessing any aspect of an individual
employment unit’s compliance with our
nondiscrimination or EEO rules for
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multi-channel video program
distributors.
4. As stated in the Fourth R&O, the
Form 395–B will include a mechanism
to provide further specificity about
broadcaster employees’ gender
identities. We seek comment on
whether we should adopt a similar
mechanism for the Form 395–A.
5. We also seek comment on the
attendant costs and benefits of any
proposals advanced in response to this
item.
6. Digital Equity and Inclusion.
Finally, the Commission, as part of its
continuing effort to advance digital
equity for all under 47 U.S.C. 151,
including people of color, persons with
disabilities, persons who live in rural or
Tribal areas, and others who are or have
been historically underserved,
marginalized, or adversely affected by
persistent poverty or inequality, invites
comment on any equity-related
considerations and benefits (if any) that
may be associated with the proposals
and issues discussed herein.
Specifically, we seek comment on how
our proposals may promote or inhibit
advances in diversity, equity, inclusion,
and accessibility, as well the scope of
the Commission’s relevant legal
authority.
Procedural Matters
7. Ex Parte Rules—Permit-ButDisclose. With respect to the Second
FNPRM, this proceeding shall be treated
as a ‘‘permit-but-disclose’’ proceeding in
accordance with the Commission’s ex
parte rules at 47 CFR 1.1200 et seq.
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
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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
1.1206(b). In proceedings governed by
rule 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.
8. Filing Requirements—Comments
and Replies. Pursuant to §§ 1.415 and
1.419 of the Commission’s rules, 47 CFR
1.145 and 1.419, 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 the Commission’s
Electronic Comment Filing System
(ECFS). See Electronic Filing of
Documents in Rulemaking Proceedings,
(63 FR 24121).
9. Regulatory Flexibility Act. The
Regulatory Flexibility Act of 1980, as
amended (RFA) requires that an agency
prepare a regulatory flexibility analysis
for notice and comment rulemakings,
unless the agency certifies that ‘‘the rule
will not, if promulgated, have a
significant economic impact on a
substantial number of small entities.’’
Accordingly, we have prepared an
Initial Regulatory Flexibility Analysis
(IRFA) concerning the potential impact
of rule and policy change proposals on
small entities in the Second Further
Notice of Proposed Rulemaking.
10. Initial Paperwork Reduction Act
Analysis for Second Further Notice of
Proposed Rulemaking in MB Docket No.
98–204. This Second FNPRM may
contain proposed new or modified
information collection requirements.
The Commission, as part of its
continuing effort to reduce paperwork
burdens, invites the general public and
the Office of Management and Budget
(OMB) to comment on these information
collection requirements, as required by
the Paperwork Reduction Act of 1995,
Public Law 104–13. In addition,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4),
we seek specific comment on how we
might further reduce the information
collection burden for small business
concerns with fewer than 25 employees.
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11. Providing Accountability Through
Transparency Act. The Providing
Accountability Through Transparency
Act of 2023 requires each agency, in
providing notice of a rulemaking, to
post online a brief plain-language
summary of the proposed rule.
Accordingly, the Commission will
publish the required summary of this
Second Further Notice of Proposed
Rulemaking on https://www.fcc.gov/
proposed-rulemakings.
Initial Regulatory Flexibility Act
Analysis
12. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), the Commission has prepared
this Initial Regulatory Flexibility
Analysis (IRFA) concerning the possible
significant economic impact on small
entities of the policies and rules
proposed in this Second Further Notice
of Proposed Rulemaking (Second
FNPRM). The Commission requests
written public comments on this IRFA.
Comments must be identified as
responses to the IRFA and must be filed
by the deadlines for comments specified
in the Second FNPRM. The Commission
will send a copy of the Second FNPRM,
including this IRFA, to the Chief
Counsel for Advocacy of the Small
Business Administration (SBA). In
addition, the Second FNPRM and IRFA
(or summaries thereof) will be
published in the Federal Register.
A. Need for, and Objectives of, the
Proposed Rules
13. The Second FNPRM seeks to
refresh the record regarding the
Commission’s annual collection of
broadcaster multichannel video
programming distributor (MVPD)
composition data by race and gender on
FCC Form 395–A. In 2001, the
Commission suspended the filing of
Form 395–A after a federal court
decision vacated certain aspects of the
Commission’s equal employment
opportunity (EEO) requirements for
broadcasters. Although the similar
requirements for MVPDs have never
been challenged, the Commission
suspended the collection of both the
broadcasters’ Form 395–B and the
MVPDs’ Form 395–A, along with
various EEO requirements, in order to
analyze the impact of the federal court
decision. In 2004, the Commission
reinstated Forms 395–A and B pending
resolution of questions about
confidential collection and use of the
forms’ data. Today, having resolved the
issues related to the confidentiality of
the Form 395–B data in the Fourth
Report and Order, the Commission now
seeks public comment on the legal
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issues pertaining to availability and
confidentiality of Form 395–A data.
14. Consistent with the decision in
the Fourth Report and Order to make
Form 395–B data public, the
Commission tentatively concludes in
the Second FNPRM that the collection
of Form 395–A should also be reinstated
in the same manner as it was previously
with regard to public availability. The
Communications Act requires an MVPD
to make its Form 395–A available for
public inspection at the MVPD’s central
office and at every office where five or
more full-time employees are regularly
assigned to work. The Commission has
traditionally treated Form 395–A and B
data in the same manner with regard to
confidentiality. Consequently, the
Second FNPRM seeks comment on
whether instead of (or in addition to)
maintaining the Form 395–A at a
MVPD’s central office, the form should
now be maintained on the
Commission’s website similar to the
requirement now established in the
Fourth Report and Order for
broadcasters’ Form 395–B. Other than a
proposal to include a mechanism in the
Form 395–A that would enable MVPDs
to account for those employees who
identify as gender non-binary, the
proposed reinstatement of this
collection does not change the form’s
reporting requirements. We predict that
inclusion of this mechanism, which
would allow for accurate data gathering,
would incur only a minimal economic
impact on a substantial number of small
entities.
B. Legal Basis
15. The proposed action is authorized
under sections 1, 2(a), 4(i), 4(j), 4(k),
303, 403, and 634(d) of the
Communications Act of 1934, as
amended 47 U.S.C. 151, 152(a), 154(i),
154(k), 303, 403, and 554(d).
C. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply
16. 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 revisions, 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 (SBA). A
small business concern is one which: (1)
is independently owned and operated;
(2) is not dominant in its field of
operations; and (3) satisfies any
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additional criteria established by the
SBA. Below, we provide a description of
such small entities, as well as an
estimate of the number of such small
entities, where feasible.
17. Cable Companies and Systems
(Rate Regulation). The Commission has
developed its own small business size
standard 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. Based on industry data,
there are about 420 cable companies in
the U.S. Of these, only seven have more
than 400,000 subscribers. In addition,
under the Commission’s rules, a ‘‘small
system’’ is a cable system serving 15,000
or fewer subscribers. Based on industry
data, there are about 4,139 cable systems
(headends) in the U.S. Of these, about
639 have more than 15,000 subscribers.
Accordingly, the Commission estimates
that the majority of cable companies and
cable systems are small.
18. Cable System Operators (Telecom
Act Standard). The Communications
Act of 1934, as amended, contains a size
standard for a ‘‘small cable operator,’’
which is ‘‘a cable operator that, directly
or through an affiliate, serves in the
aggregate fewer than one 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.’’ For
purposes of the Telecom Act Standard,
the Commission determined that a cable
system operator that serves fewer than
498,000 subscribers, either directly or
through affiliates, will meet the
definition of a small cable operator.
Based on industry data, only six cable
system operators have more than
498,000 subscribers. Accordingly, the
Commission estimates that the majority
of cable system operators are small
under this size standard. We note
however, that the Commission neither
requests nor collects information on
whether cable system operators are
affiliated with entities whose gross
annual revenues exceed $250 million.
Therefore, we are unable at this time to
estimate with greater precision the
number of cable system operators that
would qualify as small cable operators
under the definition in the
Communications Act.
19. Open Video Systems. The open
video system (OVS) framework was
established in 1996 and is one of four
statutorily recognized options for the
provision of video programming
services by local exchange carriers. The
OVS framework provides opportunities
for the distribution of video
programming other than through cable
systems. OVS operators provide
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subscription services and therefore fall
within the SBA small business size
standard for the cable services industry,
which is ‘‘Wired Telecommunications
Carriers.’’ The SBA small business size
standard for this industry classifies
firms having 1,500 or fewer employees
as small. U.S. Census Bureau data for
2017 show that there were 3,054 firms
in this industry that operated for the
entire year. Of this total, 2,964 firms
operated with fewer than 250
employees. Thus, under the SBA size
standard the majority of firms in this
industry can be considered small.
Additionally, we note that the
Commission has certified some OVS
operators who are now providing
service and broadband service providers
(BSPs) are currently the only significant
holders of OVS certifications or local
OVS franchises. The Commission does
not have financial or employment
information for the entities authorized
to provide OVS however, the
Commission believes some of the OVS
operators may qualify as small entities.
20. Satellite Master Antenna
Television (SMATV) Systems, also
known as Private Cable Operators
(PCOs). SMATV systems or PCOs are
video distribution facilities that use
closed transmission paths without using
any public right-of-way. They acquire
video programming and distribute it via
terrestrial wiring in urban and suburban
multiple dwelling units such as
apartments and condominiums, and
commercial multiple tenant units such
as hotels and office buildings. SMATV
systems or PCOs are included in the
Wired Telecommunications Carriers’
industry which includes wireline
telecommunications businesses. The
SBA small business size standard for
Wired Telecommunications Carriers
classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau
data for 2017 show that there were 3,054
firms in this industry that operated for
the entire year. Of this total, 2,964 firms
operated with fewer than 250
employees. Thus under the SBA size
standard, the majority of firms in this
industry can be considered small.
21. Direct Broadcast Satellite (DBS)
Service. DBS service is a nationally
distributed subscription service that
delivers video and audio programming
via satellite to a small parabolic ‘‘dish’’
antenna at the subscriber’s location.
DBS is included in the Wired
Telecommunications Carriers industry
which 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
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wired telecommunications networks.
Transmission facilities may be based on
a single technology or combination of
technologies. Establishments in this
industry use the wired
telecommunications network facilities
that they operate to provide a variety of
services, such as wired telephony
services, including VoIP services, wired
(cable) audio and video programming
distribution; and wired broadband
internet services. By exception,
establishments providing satellite
television distribution services using
facilities and infrastructure that they
operate are included in this industry.
22. The SBA small business size
standard for Wired Telecommunications
Carriers classifies firms having 1,500 or
fewer employees as small. U.S. Census
Bureau data for 2017 show that 3,054
firms operated in this industry for the
entire year. Of this number, 2,964 firms
operated with fewer than 250
employees. Based on this data, the
majority of firms in this industry can be
considered small under the SBA small
business size standard. According to
Commission data however, only two
entities provide DBS service—DIRECTV
(owned by AT&T) and DISH Network,
which require a great deal of capital for
operation. DIRECTV and DISH Network
both exceed the SBA size standard for
classification as a small business.
Therefore, we must conclude based on
internally developed Commission data,
in general DBS service is provided only
by large firms.
D. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
23. In this section, we identify the
reporting, recordkeeping, and other
compliance requirements contained in
the Second FNPRM and consider
whether small entities are affected
disproportionately by any such
requirements. To a large degree, the
Second FNPRM only seeks to reinstitute
the previous reporting, recordkeeping,
or compliance requirements for
collection of MVPD workforce
composition data on Form 395–A, as
this collection was previously
suspended in 2001. The Second
FNPRM, does, however, seek comment
on whether to replace the existing
requirement that a MVPD maintain a
copy of the Form 395–A at its central
office with a requirement that a MVPD
instead upload a copy of its Form 395–
A to the Commission’s website.
Alternatively, if the statute were read to
compel availability of Form 395–A at
MVPD offices, the Second FNPRM seeks
comment on whether it is within our
authority and consistent with sound
E:\FR\FM\28MRP1.SGM
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21482
Federal Register / Vol. 89, No. 61 / Thursday, March 28, 2024 / Proposed Rules
policy to additionally require
availability through the OPIF. So as to
harmonize the MVPD requirements with
those imposed on broadcasters, the
Second FNPRM also seeks comment on
whether to modify the Commission’s
rules so as to include a statement that
the Commission will not use the Form
395–A data when assessing compliance
with both the nondiscrimination and
EEO requirements of its rules. Currently,
the prohibition contained in the
Commission’s rules only references a
restriction on the use of the Form 395–
A data for assessing compliance with
the EEO rules. Because the only
proposed modification in the Second
FNPRM with regard to reporting or
recordkeeping obligations is merely a
change in the location of where the
Form 395–A will be housed (i.e., on the
Commission’s website rather than (or in
addition to) the MVPDs’ central office),
we do not anticipate a significant
change in the compliance burden for
small entities. Additionally, MVPD
employment units with less than six
full-time employees are exempt from
filing the statistical data requested on
the form. Hence, the Commission
concludes that small entities will not be
disproportionately affected by the
Second FNPRM.
ddrumheller on DSK120RN23PROD with PROPOSALS1
E. Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
24. 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,
VerDate Sep<11>2014
17:37 Mar 27, 2024
Jkt 262001
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) an exemption from
coverage of the rule, or any part thereof,
for small entities.
25. The Second FNPRM seeks to
refresh the record regarding the
Commission’s annual collection of
MVPD workforce composition data by
race and gender on Form 395–A. It
would lead to a resumption of this data
collection and would propose only to
modify one of the locations where the
Form 395–A should be retained, by
seeking comment on whether an MVPD
should retain a copy on the
Commission’s website in lieu of (or in
addition to) at the MVPDs’ central
office. To the extent MVPDs were
maintaining hard copies of the Form
395–A at their central offices, we
anticipate that storing an electronic
copy on the Commission’s website will
minimize the economic burdens on
MVPDs. Where maintenance of a hard
copy necessitates the use of MVPD staff
time to monitor public access to the
Form 395–A, retention of an electronic
copy on the Commission’s website
presents itself as a simple and
straightforward process, requiring only a
minimal degree of navigating the
Commission’s database system to
upload the information. Further, as
detailed in the Second FNPRM, the
collection of MVPD workforce
composition data and providing the data
for public inspection are required by
section 634(d) of the Act.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Second
FNPRM
26. None.
PO 00000
Frm 00042
List of Subjects in 47 CFR Part 76
Radio; Reporting and recordkeeping
requirements; Television.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
part 76 as follows:
PART 76—MULTICHANNEL VIDEO
AND CABLE TELEVISION SERVICE
1. The authority citation for part 76
continues to read as follows:
■
Authority: 47 U.S.C. 151, 152, 153, 154,
301, 302, 302a, 303, 303a, 307, 308, 309, 312,
315, 317, 325, 338, 339, 340, 341, 503, 521,
522, 531, 532, 534, 535, 536, 537, 543, 544,
544a, 545, 548, 549, 552, 554, 556, 558, 560,
561, 571, 572, 573.
■
2. Revise § 76.1802 to read as follows:
§ 76.1802
Annual employment report.
Each employment unit with six or
more full-time employees shall file an
annual employment report on the FCC
Form 395–A with the Commission on or
before September 30 of each year. Data
concerning the gender, race and
ethnicity of an employment unit’s
workforce collected in the annual
employment report will be used only for
purposes of analyzing industry trends
and making reports to Congress. Such
data will not be used for the purpose of
assessing any aspect of an individual
employment unit’s compliance with our
nondiscrimination or EEO rules for
multi-channel video program
distributors.
[FR Doc. 2024–05940 Filed 3–27–24; 8:45 am]
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Agencies
[Federal Register Volume 89, Number 61 (Thursday, March 28, 2024)]
[Proposed Rules]
[Pages 21478-21482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05940]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[MB Docket No. 98-204; FCC 24-18; FR ID 207778]
Review of the Commission's Broadcast and Cable Equal Employment
Opportunity Rules and Policies
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) refreshes the existing record regarding the statutorily
mandated collection of workforce composition data for multichannel
video programming distributors (MVPDs) on FCC Form 395-A.
DATES: Comments due on or before April 29, 2024; reply comments due on
or before May 13, 2024.
ADDRESSES: You may submit comments, identified by MB Docket No. 98-204,
by any of the following methods:
Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
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] (mail to:
[email protected]) or call the FCC's Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, please contact Christopher Sova of the Media Bureau,
Industry Analysis Division, [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Further Notice of Proposed Rulemaking (Second FNPRM) FCC 24-18, in MB
Docket No. 98-204, adopted on February 7, 2024, and released on
February 22, 2024. The complete text of this document is available
electronically via the search function on the FCC's website at https://docs.fcc.gov/public/attachments/FCC-24-18A1.pdf.
Synopsis
1. Having addressed the issues concerning the reinstatement of the
Form 395-B data collection, we now seek, by this Second Further Notice
of Proposed Rulemaking (Second FNPRM), to refresh the existing record
regarding the statutorily mandated collection of Form 395-A data
pursuant to 47 U.S.C. 554(d)(3)(A)-(B). Since 1984 the Commission has
required MVPDs with six or more full-time employees to file the FCC
Form 395-A. Similar to the Form 395-B collected from broadcasters, Form
395-A seeks to gather workforce composition data from multichannel
video programming distributors (MVPDs) on an annual basis. The
Commission suspended the filing of Form 395-A in 2001 in the wake of
the decision by the U.S. Circuit Court of Appeals for the District of
Columbia Circuit in MD/DC/DE Broadcasters Associations v. FCC (MD/DC/DE
Broadcasters), which vacated certain aspects of the Commission's EEO
requirements for broadcasters. While the similar requirements for MVPDs
have never been challenged, the Commission suspended the collection of
both Forms 395-A and B, along with various EEO
[[Page 21479]]
requirements, in order to analyze the impact of the MD/DC/DE
Broadcasters decision. In the Third Report and Order and Fourth Notice
of Proposed Rulemaking (Third Report and Order and Fourth NPRM), the
Commission reinstated Forms 395-A and B pending resolution of questions
about confidential collection and use. As the Commission had not
resolved those questions until its adoption of the Fourth Report and
Order in MB Docket No. 98-204 (Fourth R&O), the collection of the Form
395-A remained suspended along with the Form 395-B. Despite that
suspension, the Commission continued to seek OMB approval for the
information collection, and during that time, OMB approved both Forms
395-A and B, subject to the Commission's resolution of confidentiality
issues regarding the forms' collection and use. Although the filing of
the Form 395-A has been suspended since 2001, OMB has most recently
approved the information collection through January 31, 2026.
Discussion
2. We now seek by this Second FNPRM to refresh the record stemming
from the Third Report and Order and Fourth NPRM regarding the
collection of MVPD workforce composition data. Consistent with the
analysis provided in the Fourth R&O for making Form 395-B data public,
we tentatively conclude that the collection of Form 395-A also should
be reinstated and made available for public review. We seek comment as
to whether Congress's directive that MVPD operators make Form 395-A
available for public inspection at their own facilities would be
consistent with our amending our rules to require that MVPD operators
instead make Form 395-A publicly available through the Commission-
hosted Online Public Inspection File (OPIF). While section 634(d)(3)(B)
of the Act states that an MVPD should make Form 395-A available for
public inspection at the MVPD's central office and at every office
where five or more full-time employees are regularly assigned to work,
section 634(d)(4) of the Act permits the Commission to amend the
requirements associated with Form 395-A as needed. We tentatively
conclude that requiring the Form 395-A to be placed in the OPIF would
be more efficient for the public that wishes to review such reports, as
OPIF provides one online site for such review. We also tentatively
conclude that hosting the reports in OPIF will reduce the burdens
placed on MVPDs, as this will relieve the MVPDs of maintaining such
reports at individual central offices, including providing sufficient
staffing for such offices. We also tentatively conclude that our
proposal to change the location of where the Form 395-A data will be
housed from the MVPD's central office to the OPIF website is consistent
with the basic intent of section 634(d)(3)(B) of the Act, which is to
ensure that the public has access to the Form 395-A data. We seek
comment on these tentative conclusions. Alternatively, if section
634(d)(3)(B) of the Act were to be read to compel availability of Form
395-A at MVPD offices, would it be within our authority and consistent
with sound policy to additionally require availability through OPIF?
3. In the Order on Reconsideration, we modified Sec. 73.3612 of
our rules to specifically state that the Form 395-B data will not be
used in assessing any aspect of an individual broadcast licensee's or
permittee's compliance with both the nondiscrimination and equal
employment opportunity requirements of Sec. 73.2080. Despite the
slight variation in the underlying statutory authority for the
collection of the workforce employment data from MVPDs versus
broadcasters, the Commission traditionally has treated both data
collections in a similar manner. In this regard, the Commission has
imposed the same restrictions on the use of workforce composition data
stemming from both Forms 395-A and B. Consequently, we tentatively
conclude that Sec. 76.1802 of our rules concerning the MVPD annual
employment report should be modified so as to align with the
modifications made to Sec. 73.3612 of our rules for broadcasters in
the Order on Reconsideration. In the Order on Reconsideration, we
incorporated what appears as a Note to Sec. 73.3612 into the rule
itself to conform to the publishing conventions of the National
Archives and Records Administration's Office of the Federal Register.
We seek comment on our tentative conclusion to do the same with regard
to the language that currently appears as a Note to Sec. 76.1802, to
read as follows:
Each employment unit with six or more full-time employees shall
file an annual employment report on the FCC Form 395-A with the
Commission on or before September 30 of each year. Data concerning the
gender, race and ethnicity of an employment unit's workforce collected
in the annual employment report will be used only for purposes of
analyzing industry trends and making reports to Congress. Such data
will not be used for the purpose of assessing any aspect of an
individual employment unit's compliance with our nondiscrimination or
EEO rules for multi-channel video program distributors.
4. As stated in the Fourth R&O, the Form 395-B will include a
mechanism to provide further specificity about broadcaster employees'
gender identities. We seek comment on whether we should adopt a similar
mechanism for the Form 395-A.
5. We also seek comment on the attendant costs and benefits of any
proposals advanced in response to this item.
6. Digital Equity and Inclusion. Finally, the Commission, as part
of its continuing effort to advance digital equity for all under 47
U.S.C. 151, including people of color, persons with disabilities,
persons who live in rural or Tribal areas, and others who are or have
been historically underserved, marginalized, or adversely affected by
persistent poverty or inequality, invites comment on any equity-related
considerations and benefits (if any) that may be associated with the
proposals and issues discussed herein. Specifically, we seek comment on
how our proposals may promote or inhibit advances in diversity, equity,
inclusion, and accessibility, as well the scope of the Commission's
relevant legal authority.
Procedural Matters
7. Ex Parte Rules--Permit-But-Disclose. With respect to the Second
FNPRM, this proceeding shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules at 47 CFR
1.1200 et seq. 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
[[Page 21480]]
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 1.1206(b). In
proceedings governed by rule 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.
8. Filing Requirements--Comments and Replies. Pursuant to
Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47 CFR 1.145 and
1.419, 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 the Commission's Electronic Comment Filing System
(ECFS). See Electronic Filing of Documents in Rulemaking Proceedings,
(63 FR 24121).
9. Regulatory Flexibility Act. The Regulatory Flexibility Act of
1980, as amended (RFA) requires that an agency prepare a regulatory
flexibility analysis for notice and comment rulemakings, unless the
agency certifies that ``the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' Accordingly, we have prepared an Initial Regulatory
Flexibility Analysis (IRFA) concerning the potential impact of rule and
policy change proposals on small entities in the Second Further Notice
of Proposed Rulemaking.
10. Initial Paperwork Reduction Act Analysis for Second Further
Notice of Proposed Rulemaking in MB Docket No. 98-204. This Second
FNPRM may contain proposed new or modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on these information collection
requirements, as required by the Paperwork Reduction Act of 1995,
Public Law 104-13. In addition, pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), we seek specific comment on how we might further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
11. Providing Accountability Through Transparency Act. The
Providing Accountability Through Transparency Act of 2023 requires each
agency, in providing notice of a rulemaking, to post online a brief
plain-language summary of the proposed rule. Accordingly, the
Commission will publish the required summary of this Second Further
Notice of Proposed Rulemaking on https://www.fcc.gov/proposed-rulemakings.
Initial Regulatory Flexibility Act Analysis
12. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) concerning the possible significant
economic impact on small entities of the policies and rules proposed in
this Second Further Notice of Proposed Rulemaking (Second FNPRM). The
Commission requests written public comments on this IRFA. Comments must
be identified as responses to the IRFA and must be filed by the
deadlines for comments specified in the Second FNPRM. The Commission
will send a copy of the Second FNPRM, including this IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration (SBA). In
addition, the Second FNPRM and IRFA (or summaries thereof) will be
published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
13. The Second FNPRM seeks to refresh the record regarding the
Commission's annual collection of broadcaster multichannel video
programming distributor (MVPD) composition data by race and gender on
FCC Form 395-A. In 2001, the Commission suspended the filing of Form
395-A after a federal court decision vacated certain aspects of the
Commission's equal employment opportunity (EEO) requirements for
broadcasters. Although the similar requirements for MVPDs have never
been challenged, the Commission suspended the collection of both the
broadcasters' Form 395-B and the MVPDs' Form 395-A, along with various
EEO requirements, in order to analyze the impact of the federal court
decision. In 2004, the Commission reinstated Forms 395-A and B pending
resolution of questions about confidential collection and use of the
forms' data. Today, having resolved the issues related to the
confidentiality of the Form 395-B data in the Fourth Report and Order,
the Commission now seeks public comment on the legal issues pertaining
to availability and confidentiality of Form 395-A data.
14. Consistent with the decision in the Fourth Report and Order to
make Form 395-B data public, the Commission tentatively concludes in
the Second FNPRM that the collection of Form 395-A should also be
reinstated in the same manner as it was previously with regard to
public availability. The Communications Act requires an MVPD to make
its Form 395-A available for public inspection at the MVPD's central
office and at every office where five or more full-time employees are
regularly assigned to work. The Commission has traditionally treated
Form 395-A and B data in the same manner with regard to
confidentiality. Consequently, the Second FNPRM seeks comment on
whether instead of (or in addition to) maintaining the Form 395-A at a
MVPD's central office, the form should now be maintained on the
Commission's website similar to the requirement now established in the
Fourth Report and Order for broadcasters' Form 395-B. Other than a
proposal to include a mechanism in the Form 395-A that would enable
MVPDs to account for those employees who identify as gender non-binary,
the proposed reinstatement of this collection does not change the
form's reporting requirements. We predict that inclusion of this
mechanism, which would allow for accurate data gathering, would incur
only a minimal economic impact on a substantial number of small
entities.
B. Legal Basis
15. The proposed action is authorized under sections 1, 2(a), 4(i),
4(j), 4(k), 303, 403, and 634(d) of the Communications Act of 1934, as
amended 47 U.S.C. 151, 152(a), 154(i), 154(k), 303, 403, and 554(d).
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
16. 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 revisions, 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 (SBA). A small business concern is one which: (1) is
independently owned and operated; (2) is not dominant in its field of
operations; and (3) satisfies any
[[Page 21481]]
additional criteria established by the SBA. Below, we provide a
description of such small entities, as well as an estimate of the
number of such small entities, where feasible.
17. Cable Companies and Systems (Rate Regulation). The Commission
has developed its own small business size standard 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. Based
on industry data, there are about 420 cable companies in the U.S. Of
these, only seven have more than 400,000 subscribers. In addition,
under the Commission's rules, a ``small system'' is a cable system
serving 15,000 or fewer subscribers. Based on industry data, there are
about 4,139 cable systems (headends) in the U.S. Of these, about 639
have more than 15,000 subscribers. Accordingly, the Commission
estimates that the majority of cable companies and cable systems are
small.
18. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for a
``small cable operator,'' which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than one 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.'' For purposes of the Telecom Act Standard, the
Commission determined that a cable system operator that serves fewer
than 498,000 subscribers, either directly or through affiliates, will
meet the definition of a small cable operator. Based on industry data,
only six cable system operators have more than 498,000 subscribers.
Accordingly, the Commission estimates that the majority of cable system
operators are small under this size standard. We note however, that the
Commission neither requests nor collects information on whether cable
system operators are affiliated with entities whose gross annual
revenues exceed $250 million. Therefore, we are unable at this time to
estimate with greater precision the number of cable system operators
that would qualify as small cable operators under the definition in the
Communications Act.
19. Open Video Systems. The open video system (OVS) framework was
established in 1996 and is one of four statutorily recognized options
for the provision of video programming services by local exchange
carriers. The OVS framework provides opportunities for the distribution
of video programming other than through cable systems. OVS operators
provide subscription services and therefore fall within the SBA small
business size standard for the cable services industry, which is
``Wired Telecommunications Carriers.'' The SBA small business size
standard for this industry classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms in this industry that operated for the entire year. Of
this total, 2,964 firms operated with fewer than 250 employees. Thus,
under the SBA size standard the majority of firms in this industry can
be considered small. Additionally, we note that the Commission has
certified some OVS operators who are now providing service and
broadband service providers (BSPs) are currently the only significant
holders of OVS certifications or local OVS franchises. The Commission
does not have financial or employment information for the entities
authorized to provide OVS however, the Commission believes some of the
OVS operators may qualify as small entities.
20. Satellite Master Antenna Television (SMATV) Systems, also known
as Private Cable Operators (PCOs). SMATV systems or PCOs are video
distribution facilities that use closed transmission paths without
using any public right-of-way. They acquire video programming and
distribute it via terrestrial wiring in urban and suburban multiple
dwelling units such as apartments and condominiums, and commercial
multiple tenant units such as hotels and office buildings. SMATV
systems or PCOs are included in the Wired Telecommunications Carriers'
industry which includes wireline telecommunications businesses. The SBA
small business size standard for Wired Telecommunications Carriers
classifies firms having 1,500 or fewer employees as small. U.S. Census
Bureau data for 2017 show that there were 3,054 firms in this industry
that operated for the entire year. Of this total, 2,964 firms operated
with fewer than 250 employees. Thus under the SBA size standard, the
majority of firms in this industry can be considered small.
21. Direct Broadcast Satellite (DBS) Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. DBS is included in the Wired
Telecommunications Carriers industry which 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 combination of technologies. Establishments in
this industry use the wired telecommunications network facilities that
they operate to provide a variety of services, such as wired telephony
services, including VoIP services, wired (cable) audio and video
programming distribution; and wired broadband internet services. By
exception, establishments providing satellite television distribution
services using facilities and infrastructure that they operate are
included in this industry.
22. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that 3,054
firms operated in this industry for the entire year. Of this number,
2,964 firms operated with fewer than 250 employees. Based on this data,
the majority of firms in this industry can be considered small under
the SBA small business size standard. According to Commission data
however, only two entities provide DBS service--DIRECTV (owned by AT&T)
and DISH Network, which require a great deal of capital for operation.
DIRECTV and DISH Network both exceed the SBA size standard for
classification as a small business. Therefore, we must conclude based
on internally developed Commission data, in general DBS service is
provided only by large firms.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
23. In this section, we identify the reporting, recordkeeping, and
other compliance requirements contained in the Second FNPRM and
consider whether small entities are affected disproportionately by any
such requirements. To a large degree, the Second FNPRM only seeks to
reinstitute the previous reporting, recordkeeping, or compliance
requirements for collection of MVPD workforce composition data on Form
395-A, as this collection was previously suspended in 2001. The Second
FNPRM, does, however, seek comment on whether to replace the existing
requirement that a MVPD maintain a copy of the Form 395-A at its
central office with a requirement that a MVPD instead upload a copy of
its Form 395-A to the Commission's website. Alternatively, if the
statute were read to compel availability of Form 395-A at MVPD offices,
the Second FNPRM seeks comment on whether it is within our authority
and consistent with sound
[[Page 21482]]
policy to additionally require availability through the OPIF. So as to
harmonize the MVPD requirements with those imposed on broadcasters, the
Second FNPRM also seeks comment on whether to modify the Commission's
rules so as to include a statement that the Commission will not use the
Form 395-A data when assessing compliance with both the
nondiscrimination and EEO requirements of its rules. Currently, the
prohibition contained in the Commission's rules only references a
restriction on the use of the Form 395-A data for assessing compliance
with the EEO rules. Because the only proposed modification in the
Second FNPRM with regard to reporting or recordkeeping obligations is
merely a change in the location of where the Form 395-A will be housed
(i.e., on the Commission's website rather than (or in addition to) the
MVPDs' central office), we do not anticipate a significant change in
the compliance burden for small entities. Additionally, MVPD employment
units with less than six full-time employees are exempt from filing the
statistical data requested on the form. Hence, the Commission concludes
that small entities will not be disproportionately affected by the
Second FNPRM.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
24. 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) an
exemption from coverage of the rule, or any part thereof, for small
entities.
25. The Second FNPRM seeks to refresh the record regarding the
Commission's annual collection of MVPD workforce composition data by
race and gender on Form 395-A. It would lead to a resumption of this
data collection and would propose only to modify one of the locations
where the Form 395-A should be retained, by seeking comment on whether
an MVPD should retain a copy on the Commission's website in lieu of (or
in addition to) at the MVPDs' central office. To the extent MVPDs were
maintaining hard copies of the Form 395-A at their central offices, we
anticipate that storing an electronic copy on the Commission's website
will minimize the economic burdens on MVPDs. Where maintenance of a
hard copy necessitates the use of MVPD staff time to monitor public
access to the Form 395-A, retention of an electronic copy on the
Commission's website presents itself as a simple and straightforward
process, requiring only a minimal degree of navigating the Commission's
database system to upload the information. Further, as detailed in the
Second FNPRM, the collection of MVPD workforce composition data and
providing the data for public inspection are required by section 634(d)
of the Act.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Second FNPRM
26. None.
List of Subjects in 47 CFR Part 76
Radio; Reporting and recordkeeping requirements; Television.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 76 as follows:
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
1. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503,
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548,
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
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2. Revise Sec. 76.1802 to read as follows:
Sec. 76.1802 Annual employment report.
Each employment unit with six or more full-time employees shall
file an annual employment report on the FCC Form 395-A with the
Commission on or before September 30 of each year. Data concerning the
gender, race and ethnicity of an employment unit's workforce collected
in the annual employment report will be used only for purposes of
analyzing industry trends and making reports to Congress. Such data
will not be used for the purpose of assessing any aspect of an
individual employment unit's compliance with our nondiscrimination or
EEO rules for multi-channel video program distributors.
[FR Doc. 2024-05940 Filed 3-27-24; 8:45 am]
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