[Federal Register Volume 61, Number 232 (Monday, December 2, 1996)]
[Proposed Rules]
[Pages 63774-63778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30661]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[CC Docket 96-237; FCC 96-456]


Implementation of Infrastructure Sharing Provisions in the 
Telecommunications Act of 1996

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: On November 22, 1996, the Commission adopted a Notice of 
Proposed Rulemaking, as part of the Commission's implementation of the 
Telecommunications Act of 1996 (the 1996 Act), to initiate a rulemaking 
proceeding to implement new Section 259 (Infrastructure Sharing) of the 
Communications Act of 1934 (the Act), as amended. Section 259 generally 
requires an incumbent local exchange carrier (incumbent LEC) to make 
available to a defined ``qualifying carrier,'' such ``public switched 
network infrastructure, technology, information, and telecommunications 
facilities and functions'' as the qualifying carrier may request, in 
service areas where the qualifying carrier has requested and obtained 
designation as an eligible carrier under Section 214(e). Section 259(a) 
directs the Commission to prescribe regulations that implement this 
requirement within one year after the date of enactment of the 1996 
Act, i.e., by February 8, 1997.

DATES: Comments are due on or before December 20, 1996. Reply comments 
are due on or before January 3, 1997. Written comments by the public on 
the proposed and/or modified information collections are due on or 
before December 20, 1996. Written comments must be submitted by the 
Office of Management and Budget (OMB) on the proposed and/or modified 
information collections on or before January 31, 1997.

ADDRESSES: Comments and reply comments should be sent to the Office of 
the Secretary, Federal Communications Commission, 1919 M Street, N.W., 
Suite 222, Washington, D.C. 20554, with a copy to Scott Bergmann of the 
Common Carrier Bureau, Federal Communications Commission, 2033 M 
Street, N.W., Suite 500, Washington, D.C. 20554. Parties should also 
file one copy of any documents filed in this docket with the 
Commission's copy contractor, International Transcription Services, 
Inc., 2100 M Street, N.W., Suite 140, Washington, D.C. 20037. In 
addition to

[[Page 63775]]

filing comments with the Secretary, a copy of any comments on the 
information collections contained herein should be submitted to Dorothy 
Conway, Federal Communications Commission, Room 234, 1919 M Street, 
N.W., Washington, D.C. 20554, or via the Internet to [email protected], 
and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 Seventeenth 
Street, N.W., Washington, D.C. 20503 or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Thomas J. Beers, Deputy Chief, 
Industry Analysis Division, Common Carrier Bureau, at (202) 418-0952. 
For additional information concerning the information collections 
proposed in the Notice of Proposed Rulemaking contact Dorothy Conway, 
at (202) 418-0217, or via the Internet to [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking adopted November 22, 1996 and released November 
22, 1996 (FCC 96-456). The full text of this Notice of Proposed 
Rulemaking is available for inspection and copying during normal 
business hours in the FCC Reference Center, Room 239, 1919 M Street, 
Washington, D.C. 20554. This Notice of Proposed Rulemaking contains 
proposed and/or modified information collections subject to the 
Paperwork Reduction Act of 1995 (PRA). It has been submitted to the 
Office of Management and Budget (OMB) for review under the PRA. OMB, 
the general public, and other Federal agencies are invited to comment 
on the proposed and/or modified information collections contained in 
this proceeding. The complete text also may be purchased from the 
Commission's copy contractor, International Transcription Service, Inc. 
(202) 857-3800, 2100 M Street, N.W., Suite 140, Washington, D.C. 20037.

Paperwork Reduction Act

    This Notice of Proposed Rulemaking contains a proposed information 
collection subject to the Paperwork Reduction Act of 1995 (PRA). It has 
been submitted to the Office of Management and Budget (OMB) for review 
under Section 3507(d) of the PRA. OMB, the general public, and other 
Federal agencies are invited to comment on the proposed information 
collections contained in this proceeding.
    The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public and the Office of 
Management and Budget to comment on the information collections in this 
Notice of Proposed Rulemaking. Comments should address: (a) whether the 
proposed collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of collection of information on respondents, 
including the use of automated collection techniques or other forms of 
information technology.
    Written comments by the public on the proposed and/or modified 
information collections are due December 20, 1996, and reply comments 
are due January 3, 1997. Written comments must be submitted by the 
Office of Management and Budget (OMB) on the proposed and/or modified 
information collections on or before 60 days after date of publication 
in the Federal Register. If you anticipate that you will be submitting 
comments, but find it difficult to do so within the period of time 
allowed by this notice, you should advise the contact listed below as 
soon as possible.
    In addition to filing comments with the Secretary, a copy of any 
comments on the information collections contained herein should be 
submitted to Dorothy Conway, Federal Communications Commission, Room 
234, 1919 M Street, N.W., Washington, D.C. 20554, or via the Internet 
to [email protected] and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 
725--17th Street, N.W. Washington, D.C. 20503 or via the Internet to 
[email protected]
    OMB Approval Number: None.
    Title: Policy and Rules Concerning the Implementation of 
Infrastructure Sharing Provisions in the Telecommunications Act of 
1996, CC Docket 96-237.
    Form Number: Not Applicable.
    Type of Review: New Collection.
    Respondents: Business or other for profit, including small 
businesses.
    Burden Estimate:

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         Section/Title          Respondents   Est. time per resp.           Frequency            Annual burden  
----------------------------------------------------------------------------------------------------------------
(1) Section 259(b)(7) Filing             75  1 hour...............  5 per year...............  375 hours.       
 of Tariffs, Contracts or                                                                                       
 Other Arrangements * * *.                                                                                      
(2) Section 259(c) Information           75  2 hours..............  12 per year..............  1800 hours.      
 Concerning Deployment of New                                                                                   
 Services and Equipment * * *.                                                                                  
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    Total Annual Burden: 2175 total hours.
    Estimated Costs Per Respondent: $0.00.
    Needs and Uses: The information collections for which approval is 
sought are contained in new Section 259 (``Infrastructure Sharing'') of 
the Communications Act of 1934 (the Act), as amended. The information 
collections proposed pursuant to Section 259(c) in this Notice of 
Proposed Rulemaking will provide notice to third parties (qualifying 
carriers) of changes in the incumbent local exchange carrier's network 
that might affect the parties' ability to fully benefit from Section 
259 agreements. In addition, the information collected pursuant to 
Section 259(b)(7) will make available for public inspection any 
tariffs, contracts or other arrangements showing the conditions under 
which the incumbent LEC is making available public switched network 
infrastructure and functions pursuant to Section 259. Failing to 
collect the information would violate the language and the intent of 
the 1996 Act to ensure that access to the evolving, advanced 
telecommunications infrastructure would be made broadly available in 
all regions of the nation at just, reasonable and affordable rates.

Summary of the Notice of Proposed Rulemaking

    1. The Commission adopted the Notice of Proposed Rulemaking (NPRM), 
as part of its implementation of the Telecommunications Act of 1996 
(the 1996 Act), to initiate a rulemaking proceeding to implement new 
Section 259 (``Infrastructure Sharing'') of the Communications Act of 
1934 (the Act), as amended. Section 259 generally requires an incumbent 
local exchange carrier (incumbent LEC) to make available to a defined 
``qualifying carrier,'' such ``public switched network infrastructure, 
technology, information, and telecommunications facilities and

[[Page 63776]]

functions'' as the qualifying carrier may request, in service areas 
where the qualifying carrier has requested and obtained designation as 
an eligible carrier under Section 214(e). Section 259(a) directs the 
Commission to prescribe regulations that implement this requirement 
within one year after the date of enactment of the 1996 Act, i.e., by 
February 8, 1997.
    2. The NPRM poses questions relating to the scope of required 
infrastructure sharing (Section 259(a)), and to the specific directives 
Congress has imposed on the Commission regarding the terms and 
conditions of implementing regulations (Section 259(b)), network 
service and equipment information sharing (Section 259(c)), and the 
definition of qualifying carriers (Section 259(d)). For example, the 
NPRM asks whether Section 259 was intended by Congress to provide 
opportunities for small carriers that lack an extensive infrastructure 
in order to promote the pro-competitive and universal service goals of 
the 1996 Act. The NPRM tentatively concludes that Section 259 is 
complementary to other Commission pro-competitive undertakings 
implementing Sections 251, 252 and 254 of the Act, and that 
implementing regulations for Section 259 should, accordingly, reflect 
and not contradict Commission decisions in the CC Docket 96-45 
Universal Service proceeding.
    3. Section 259(a) directs the Commission, within one year after the 
date of enactment of the 1996 Act, to prescribe regulations that 
require incumbent LECs to make certain ``public switched network 
infrastructure, technology, information, and telecommunications 
facilities and functions'' available to any qualifying carrier in the 
service area in which the qualifying carrier has requested and obtained 
designation as an eligible carrier under Section 214(e). Section 259(b) 
directs the Commission to refrain from requiring actions by incumbent 
LECs that are economically unreasonable or contrary to the public 
interest. The Commission may permit, but shall not require, joint 
ownership or operation of public switched network infrastructure and 
services, and must ensure that incumbent LECs are not treated as common 
carriers by virtue of exercising their Section 259 obligations. Section 
259(b) further directs the Commission to establish guidelines 
implementing infrastructure sharing pursuant to just and reasonable 
terms and conditions that permit the qualifying carrier to ``fully 
benefit'' from the economies of scale and scope of the incumbent LEC. 
The Commission must establish conditions to promote cooperation between 
incumbent LECs and qualifying carriers. The Commission may not require 
incumbent LECs to make available ``services or access'' that would be 
provided to consumers by the qualifying carrier in the incumbent LEC's 
``telephone exchange area.'' The Commission must also require the 
incumbent LEC to file with the Commission or state ``any tariffs, 
contracts, or other arrangements that show rates, terms, and 
conditions'' under which the incumbent LEC is making available ``public 
switched network infrastructure and functions'' pursuant to Section 
259.
    4. Section 259(c) requires incumbent local exchange carriers that 
have entered into infrastructure sharing agreements to ``provide to 
each party to such agreement timely information on the planned 
deployment of telecommunications services and equipment, including any 
software or upgrades of software integral to the use or operation of 
such telecommunications equipment.'' Section 259(d) defines a 
``qualifying carrier'' as a telecommunications carrier that:

    (1) lacks economies of scale or scope, as determined in 
accordance with regulations prescribed by the Commission pursuant to 
this section; and (2) offers telephone exchange service, exchange 
access, and any other service that is included in universal service, 
to all consumers without preference throughout the service area for 
which such carrier has been designated as an eligible 
telecommunications carrier under Section 214(e).

47 U.S.C. 259(d)(1), (d)(2). Section 214(e) provides that a common 
carrier designated as an eligible telecommunications carrier shall be 
eligible to receive universal service support and shall, throughout the 
service area for which designation is received, offer services that are 
supported by federal universal service support mechanisms promulgated 
under Section 254(c), either by using its own facilities or a 
combination of its own facilities and resale of another carrier's 
services. Section 214(e) also states how eligible telecommunications 
carriers shall be designated.
    5. The NPRM contains a detailed set of questions to allow 
commenters to assist the Commission in interpreting these provisions. 
In some instances, the draft NPRM sets out tentative conclusions. For 
example, the NPRM tentatively concludes that it would be inappropriate 
to construe that part of the definition of qualifying carrier set out 
in Section 259(d)(2) because that determination depends upon the 
definition of universal service that will be decided by the Commission 
in the universal service proceeding (i.e., after the Federal-State 
Joint Board proffers its recommendations in early November 1996). In 
other instances, however, no tentative conclusions are proffered. For 
example, in construing Section 259(b)(4) the Commission must determine 
how to ensure that qualifying carriers benefit from economies of scale 
and scope enjoyed by incumbent LECs. To achieve this, the NPRM asks 
whether Section 259 conveys to the Commission the power to establish 
pricing rules or guidelines for infrastructure, technology, 
information, and telecommunications facilities and functions.

Initial Regulatory Flexibility Act Analysis

    6. As required by Section 603 of the Regulatory Flexibility Act 
(RFA), 5 U.S.C. 603, the Commission has prepared the following Initial 
Regulatory Flexibility Analysis (IRFA) of the expected significant 
economic impact on small entities of the policies and rules proposed in 
the Notice of Proposed Rulemaking, Implementation of Infrastructure 
Sharing Provisions in the Telecommunications Act of 1996 (NPRM or 
Infrastructure Sharing NPRM). Written public comments are requested on 
this IRFA. These comments must be filed in accordance with the same 
filing deadlines set for comments on the other issues in the NPRM but 
they must have a separate and distinct heading designating them as 
responses to this IRFA. The Secretary shall send a copy of this 
Infrastructure Sharing NPRM including the IRFA, set out below, to the 
Chief Counsel for Advocacy of the Small Business Administration in 
accordance with Section 603(a) of the Regulatory Flexibility Act.
    7. Need for and Objectives of the Proposed Rules: The Commission is 
issuing this NPRM to implement the infrastructure sharing provisions in 
Section 259 of the 1934 Act, as added by the Telecommunications Act of 
1996. Section 259 directs the Commission, within one year after the 
date of enactment of the 1996 Act, to prescribe regulations that 
require incumbent LECs to make certain ``public switched network 
infrastructure, technology, information, and telecommunications 
facilities and functions'' available to any qualifying carrier in the 
service area in which the qualifying carrier has requested and obtained 
designation as an eligible carrier under Section 214(e).
    8. Legal Basis for the Proposed Rules: The legal basis for action 
as proposed in

[[Page 63777]]

the NPRM is Sections 1-5, 201-205, 218, and 259 of the Communications 
Act of 1934 as amended, 47 U.S.C. 151-155, 201-205, 218, and 259.
    9. Description and Estimate of the Number of Small Entities to 
Which the Proposed Rules Will Apply: For the purposes of this analysis, 
we examined the relevant definition of ``small entity'' or ``small 
business'' and applied this definition to identify those entities that 
may be affected by the rules proposed in this NPRM. The RFA defines a 
``small business'' to be the same as a ``small business concern'' under 
the Small Business Act, 15 U.S.C. Sec. 632, unless the Commission has 
developed one or more definitions that are appropriate to its 
activities. Under the Small Business Act, a ``small business concern'' 
is one that: (1) is independently owned and operated; (2) is not 
dominant in its field of operation; and (3) meets any additional 
criteria established by the Small Business Administration (SBA). 
Moreover, the SBA has defined a small business for Standard Industrial 
Classification (SIC) categories 4812 (Radiotelephone Communications) 
and 4813 (Telephone Communications, Except Radiotelephone) to be small 
entities when they have fewer than 1,500 employees.
    10. Section 259 of the 1934 Act, as added by the 1996 Act, 
establishes a variety of infrastructure sharing obligations. Many of 
the obligations proposed in the Infrastructure Sharing NPRM would apply 
solely to providing incumbent LECs. Also potentially affected by these 
proposed rules are the class of carriers designated as ``qualifying 
carriers'' under Section 259. Qualifying carriers will likely include 
small local exchange carriers and many of these carriers are likely to 
be small business concerns for the purposes of RFA analysis.
    11. Consistent with our prior practice, we shall continue to 
exclude small incumbent LECs from the definition of ``small entity'' 
and ``small business concerns'' for the purpose of this IRFA. We 
believe that incumbent LECs do not qualify as small businesses because 
they are dominant in their field of operation. However, out of an 
abundance of caution and prudence, in this IRFA we shall include a 
discussion of the number of small incumbent LECs affected by these 
proposed rules to remove any possible issue of RFA compliance. 
Therefore, we shall use the distinct term ``small incumbent LECs'' to 
refer to any incumbent LECs that conceivably might be defined by the 
SBA at a subsequent date as ``small business concerns'' despite our 
conclusions that they are dominant in their fields of operation. We 
seek comment on the conclusions above.
    12. We are first required to estimate the number of small incumbent 
LECs that may be affected by the proposed decisions and rules. Although 
neither the Commission nor the SBA has developed a definition of small 
providers of local exchange services, we have two methodologies 
available to us for making these estimates. The closest applicable 
definition under SBA rules is for telephone communications companies 
other than radiotelephone (wireless) companies (SIC 4813) (Telephone 
Communications, Except Radiotelephone). The Census Bureau reports that 
there were 2,321 such telephone companies in operation for at least one 
year at the end of 1992. According to the SBA's definition, a non-
radiotelephone company qualifies as a ``small entity'' when it employs 
fewer than 1,500 persons. Of the 2,321 non-radiotelephone companies 
listed by the Census Bureau, 2,295 companies (or, all but 26) were 
reported to have fewer than 1,000 employees. Thus, at least 2,295 non-
radiotelephone companies might qualify as small incumbent LECs or small 
entities based on these employment statistics. However, because it 
seems certain that some of these carriers are not independently owned 
and operated, this figure necessarily overstates the actual number of 
non-radiotelephone companies that would qualify as ``small business 
concerns'' under the SBA's definition. Consequently, we estimate using 
this methodology that there are fewer than 2,295 small entity telephone 
communications companies (other than radiotelephone companies) that may 
be affected by the proposed decisions and rules and we seek comment on 
this conclusion.
    13. Our alternative method for estimation utilizes the data that we 
collect annually in connection with the Telecommunications Relay 
Service (TRS). This data provides us with the most reliable source of 
information of which we are aware regarding the number of LECs 
nationwide. According to our most recent data, 1,347 companies reported 
that they were engaged in the provision of local exchange services. 
Although it seems certain that some of these carriers are not 
independently owned and operated (prong 1 of the SBA definition of 
small business concerns as set out supra), or have more than 1,500 
employees (prong 3), we are unable at this time to estimate with 
greater precision the number of incumbent LECs that would qualify as 
small business concerns under SBA's definition. Consequently, we 
estimate that there are fewer than 1,347 small LECs (including small 
incumbent LECs) that may be affected by the actions proposed in this 
NPRM.
    14. The proposals in this NPRM apply not only to the providing 
incumbent LECs that are required to enter into infrastructure sharing 
agreements pursuant to Section 259, but also to qualifying carriers. 
Qualifying carriers are telecommunications carriers that meet the two 
requirements set out in Section 259(d). Because Section 259(d)(1) 
limits qualifying carriers to those carriers that ``lack economies of 
scale or scope,'' it is likely that there will be small business 
concerns affected by the rules proposed in this NPRM. We note, however, 
that the definition of ``qualifying carriers'' is dependent on the 
Commission's decisions in the universal service proceeding. Until the 
Commission issues an order pursuant to the Universal Service NPRM that 
addresses Section 214(e) eligibility issues, it is not feasible to 
define the number of ``qualifying carriers'' that may be ``small 
business concerns.''
    15. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements: As discussed in Part III. A. of the NPRM, 
incumbent LECs may be required to make available to defined qualifying 
carriers ``such public switched network infrastructure, technology, 
information, and telecommunications facilities and functions as may be 
requested by such qualifying carrier[s].'' We believe that compliance 
with such requests may require the use of legal, engineering, 
technical, operational, and administrative skills. In addition, 
incumbent LECs are required to file with the Commission or state for 
public inspection any tariffs, contracts or other arrangements showing 
the conditions under which an incumbent LEC is making available public 
switched infrastructure and functions. Should a small incumbent LEC be 
subject to this requirement, we anticipate that it will require use of 
legal and administrative skills. The statute also requires incumbent 
LECs to provide ``timely information on the planned deployment of 
telecommunications services and equipment'' to any parties to 
infrastructure sharing agreements. Should a small incumbent LEC be 
subject to this requirement, we anticipate that it will require use of 
engineering, technical, operational, and administrative skills. We seek 
comment on the impact of these proposals on small entities. We seek 
comment on whether the entities subject to Section 259 will otherwise 
have the personnel or other resources to meet Section 259

[[Page 63778]]

requirements as a result of their efforts to comply with other 
provisions of the 1996 Act, i.e., Section 251.
    16. Significant Alternatives to Proposed Rules Which Minimize 
Significant Economic Impact on Small Entities and Accomplish Stated 
Objectives: We anticipate that the impact of this proceeding should be 
beneficial to small businesses since they may be able to share 
infrastructure with larger incumbent LECs, in certain circumstances, 
enabling small carriers to provide telecommunication services or 
information services that they otherwise might not be able to provide 
without building or buying their own facilities. The Infrastructure 
Sharing NPRM contains a detailed set of questions to allow commenters 
to assist the Commission in interpreting Section 259, including the 
following significant provisions of Section 259 that may impact small 
entities.
    17. Section 259(a) requires the Commission to adopt regulations to 
ensure that incumbent LECs make available, to defined qualifying 
carriers, ``public switched network infrastructure, technology, 
information, and telecommunications facilities and functions.'' 
Qualifying carriers are defined in Section 259(d) as carriers that lack 
economies of scale or scope and that request and obtain designation to 
receive universal service support pursuant to Section 214(e). As a 
result of this limitation on the carriers that qualify for Section 259 
sharing arrangements, we ask whether, in fact, the purpose of Section 
259 is to benefit small carriers. In addition, we ask whether there is 
a relationship between carrier size, however defined, and a 
determination that the carrier either has or lacks economies of scale 
or scope. Additionally, we ask whether certain incumbent LECs could 
lack economies of scale or scope, and, thus, meet the Section 259(d)(1) 
definition of qualifying carrier and, nevertheless, also be required to 
provide ``public switched network infrastructure, technology, 
information, and telecommunications facilities and functions'' to other 
qualifying carriers.
    18. In addition, the statute directs the Commission to refrain from 
requiring actions by incumbent LECs that are economically unreasonable 
or contrary to the public interest. The Commission may permit, but may 
not require, joint ownership of infrastructure, and must provide that 
incumbent LECs are not treated as common carriers by virtue of their 
Section 259 obligations. In this NPRM, we seek comment on how to 
implement the above provisions. Section 259(b)(4) further directs the 
Commission to establish guidelines implementing infrastructure sharing 
on just and reasonable terms where qualifying carriers ``fully 
benefit'' from the economies of scale and scope enjoyed by incumbents, 
and to act so as to promote cooperation between LECs. In construing 
Section 259(b)(4), we ask whether Section 259 conveys to the Commission 
the power to establish pricing rules or guidelines for public switched 
network infrastructure, technology, information, and telecommunications 
facilities and functions. We also ask questions about how such pricing 
authority could be implemented.
    19. Section 259(c) requires local exchange carriers that have 
entered into infrastructure sharing agreements to provide ``timely 
information on the planned deployment of telecommunications services 
and equipment . . . .'' In the NPRM, we seek comment on how the 
Commission both can implement Section 259(c) and promote the goal 
shared by Congress and the Commission of reducing duplicative 
administrative requirements.
    20. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules: The NPRM tentatively concludes that the implementation 
of Section 259 should be complementary to the implementation of other 
sections of the 1996 Act and asks questions designed to explore that 
complementary relationship. The NPRM, for example, addresses the 
relationship between the infrastructure sharing requirements in Section 
259 and the competitive access requirements in Sections 251 and 252.

Ordering Clauses

    Accordingly, It is ordered that pursuant to Sections 1-5, 201-205, 
218 and 259 of the Communications Act of 1934 as amended, 47 U.S.C. 
Secs. 151-155, 201-205, 218 and 259, a Notice of Proposed Rulemaking is 
hereby adopted.
    It is further ordered that the Secretary shall send a copy of this 
Notice of Proposed Rulemaking, including the regulatory flexibility 
certification, to the Chief Counsel for Advocacy of the Small Business 
Administration in accordance with paragraph 603(a) of the Regulatory 
Flexibility Act, 5 U.S.C. Secs. 601 et seq. (1981).

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-30661 Filed 11-29-96; 8:45 am]
BILLING CODE 6712-01-P