[Federal Register Volume 63, Number 44 (Friday, March 6, 1998)]
[Proposed Rules]
[Pages 11202-11204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5938]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 25 and 100

[FCC 98-26; IB Docket No. 98-21]


Policies and Rules for the Direct Broadcast Satellite Service

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Federal Communications Commission (FCC) proposes to amend 
and relocate the regulations covering the Direct Broadcast Satellite 
(DBS) service. The notice of proposed rulemaking also asks whether the 
FCC should consider adopting new rules addressing horizontal 
concentration in the multi-channel video programming distribution 
(MVPD) market, such as limitations on cable/DBS cross-ownership. The 
actions are necessary to consolidate and harmonize the Commission's 
rules for satellite services and to obtain public comment on policies 
for the DBS service. The effect of relocating the DBS service rules is 
to simplify and harmonize the rules for satellite services in one part 
of the Commission's rules.

DATES: Submit comments on or before April 6, 1998. Submit reply 
comments on or before April 21, 1998. Written comments by the public on 
the proposed information collections are due April 6, 1998. Written 
comments must be submitted by the Office of Management and Budget (OMB) 
on the proposed information collections on or before May 5, 1998.

ADDRESSES: Send written comments and reply comments to Office of the 
Secretary, Federal Communications Commission, 1919 M Street, N.W., Room 
222, Washington, D.C. 20554. For purposes of this proceeding, we hereby 
waive those provisions of our rules that require formal comments to be 
filed on paper, and encourage parties to file comments electronically. 
File electronic comments using the electronic filing interface 
available on the FCC's World Wide Web site at
<http://dettifoss.fcc.gov:8080/cgi-bin/ws.exe/beta/ecfs/upload.hts>. 
Further information on the process of submitting comments 
electronically is available at that location and at <http://
www.fcc.gov/e-file/>. In addition to filing comments with the 
Secretary, a copy of any comments on the information collections 
contained herein should be submitted to Judy Boley, Federal 
Communications Commission, Room 234, 1919 M Street, N.W., Washington, 
DC 20554, or via the Internet to [email protected], and to Timothy Fain, 
OMB Desk Officer, 10236 NEOB, 725 17th Street, N.W., Washington, DC 
20503 or via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT:

Technical Information: Kim Baum, 202-418-0756
Economic Information: Doug Webbink, 202-418-1494
Legal Information: Chris Murphy, 202-418-2373

    For additional information concerning the information collections 
contained in this Notice contact Judy Boley at 202-418-0214, or via the 
Internet at [email protected].

SUPPLEMENTARY INFORMATION:
    1. The Commission is authorized to conduct this rulemaking pursuant 
to its statutory authority contained in the Communications Act of 1934, 
as amended. 47 U.S.C. 154(i), 303(v). The Commission has historically 
regulated direct broadcast satellite (DBS) service, which is 
transmitted using frequency bands that are internationally allocated to 
the broadcast satellite service (BSS), and direct-to-home fixed-
satellite service (DTH-FSS), which is transmitted using fixed-satellite 
service (FSS) frequency bands, separately. The Commission rules for the 
DBS service are codified in 47 CFR part 100, while FSS rules, including 
those applicable to DTH-FSS providers, can be found in part 25. Since 
both DBS and DTH-FSS provide video services directly to the home via 
satellite, the notice of proposed rulemaking (Notice) proposes to 
consolidate, where possible, the DBS service and technical rules with 
the rules for DTH-FSS and other satellite services under part 25 and to 
eliminate in its entirety part 100. The Notice also proposes to move 
certain DBS-specific part 100 rules into part 25 and to eliminate 
several part 100 rules which the Commission believes are no longer 
needed. For instance, the Notice proposes to eliminate the part 100 
rules (Secs. 100.72-.80) which govern DBS auctions and to conduct DBS 
auctions under the general auction rules contained in part 1, subpart 
Q. The Notice also seeks comment on proposals to revise the DBS 
technical rules to conform to the Commission's experience regulating 
the service. The Notice further proposes to amend the Commission's part 
25 rules, where necessary, in order to render them applicable, where 
appropriate, to DBS and DTH-FSS, as well as other satellite services.
    2. In proposing to incorporate certain part 100 rules into part 25, 
the Notice highlights several rules of particular

[[Page 11203]]

importance. The Notice seeks comment on a proposal to move the existing 
DBS foreign ownership rules from part 100 to part 25, and asks whether 
the Commission should modify these rules. The Notice also seeks comment 
on how the Commission can strengthen its rules regarding the provision 
of DBS service to Alaska and Hawaii and whether it should adopt 
geographic service rules for Puerto Rico and other U.S. territories and 
possessions. Because it is the Commission's goal to promote competition 
in the multi-channel video programming distribution (MVPD) market 
generally, the Notice also seeks comment as to whether new rules 
addressing horizontal concentration in the MVPD market, such as 
limitations on cable/DBS cross-ownership, are necessary in order to 
prevent anti-competitive conduct in the MVPD market.

Paperwork Reduction Act of 1995

    3. This Notice contains either a proposed or modified information 
collection. 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 the information collections 
contained in this Notice, as required by the Paperwork Reduction Act of 
1995, Public Law 104-13. Public and agency comments are due at the same 
time as other comments on this Notice; OMB notification of action is 
due 60 days from date of publication of this Notice in the Federal 
Register. 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 the 
collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    OMB Approval Number: 3060-0678.
    Title: Commission's Rules and Regulations for Satellite Application 
and Licensing Procedures.
    Form No.: 312.
    Type of Review: revision of existing collection.
    Respondents: Businesses or other for profit, including small 
businesses, governments.
    Number of Respondents: 1,320.
    Estimated Time Per Response: The Commission estimates that all 
respondents will hire an attorney or legal assistant to complete the 
form. The time to retain these services is 2 hours per respondent.
    Total Annual Burden: 2,640 hours.
    Estimated Costs Per Respondent: This includes the charges for 
hiring an attorney, legal assistant, or engineer at $150 an hour to 
complete the submissions. The estimated average time to complete the 
Form 312 is 11 hours per response. The estimated average time to 
complete space station submissions is 20 hours per response. The 
estimated average time for prepare submissions using non-U.S. licensed 
satellites is 22 hours per response. The estimated average time to 
complete the ASIA submission is 24 hours per response. Earth station 
submissions: $2085. ($1650 for Form 312; $375 remainder of application; 
$60 for outside hire). Space station submissions and Non-U.S. licensed 
satellite filings: $4710 ($1650 for Form 312; $3000 for remainder of 
submission; $60 for outside hire). ASIA submissions: $3,660 ($3,600 for 
submission; $60 for outside hire). Fee amounts vary by type of service 
and application. Total fee estimates for industry: $5,997,910.00 Needs 
and Uses: In accordance with the Communications Act, the information 
collected will be used by the Commission in evaluating applications 
requesting authority to operate pursuant to part 25 of the Commission's 
rules. The information will be used to determine the legal, technical, 
and financial ability of the applicants and will assist the Commission 
in determining whether grant of such authorizations are in the public 
interest.

Initial Regulatory Flexbility Analysis

    Pursuant to the Regulatory Flexibility Act of 1990, 5 U.S.C. 601-
612, (RFA) as amended by the Contract with America Advancement Act of 
1996, Public Law 104-121, 110 Stat. 847, the Commission's Initial 
Regulatory Flexibility Analysis with respect to this Notice of Proposed 
Rulemaking is as follows:

Reason for Action

    This Notice of Proposed Rulemaking (Notice) proposes to streamline 
and harmonize the Commission's direct broadcast satellite (DBS) service 
rules. The Notice proposes to incorporate the DBS rules into part 25, 
the satellite communications part of the Commission's rules. The Notice 
does not envision that the relocation of the DBS service rules will 
substantially alter the licensing provisions for the DBS service under 
current part 100. The DBS service was initially developed in 1982 with 
the promulgation of interim rules. Inquiry into the Development of 
Regulatory Policy in Regard to Direct Broadcast Satellites for the 
Period Following the 1983 Regional Administrative Radio Conference 
(Report and Order), 90 FCC2d 676 (1982). Since 1994, DBS licensees have 
begun to provide service into the United States. The Notice explains 
that the interim rules are outmoded with respect to the application and 
licensing procedures and the technical parameters for existing systems. 
Consistent with the FCC's goals of regulating services subject to its 
jurisdiction in a common-sense manner and promoting competition, this 
rulemaking seeks to streamline and simplify the FCC's rules governing 
the DBS service by applying a unified Form 312 for DBS space and earth 
stations. For instance, The NPRM proposes to eliminate the part 100 
rules (sections 100.72-.80) which govern DBS auctions and to regulate 
DBS auctions under the general auction rules contained in part 1, 
subpart Q. In proposing to incorporate certain part 100 rules into part 
25, the Notice highlights two rules of particular importance. The 
Notice seeks comment on a proposal to move the existing DBS foreign 
ownership rules from part 100 to part 25 and whether the FCC should 
modify those rules in the event it affirms the FCC International 
Bureau's decision in the order authorizing MCI to construct, launch, 
and operate a DBS system at the 110 degrees W.L. orbital position and 
whether similar restrictions should apply to DTH-FSS. MCI 
Telecommunications Corporation, Application for Authority to Construct, 
Launch and Operate a Direct Broadcast Satellite System at 110 degrees 
W.L., DA 96-1793 (1996). The Notice also seeks comment on how the FCC 
can strengthen the rules regarding the provision of DBS service to 
Alaska and Hawaii, Puerto Rico, and other U.S. territories and 
possessions. Because it is the FCC's goal to promote competition in the 
MVPD market generally, the Notice also seeks comment as to whether new 
rules addressing horizontal concentration in the MVPD market, such as 
limitations on cable/DBS cross-ownership, are necessary in order to 
prevent anti-competitive conduct in the DBS or MVPD markets.

Objectives

    The objective of this proceeding is to streamline the DBS service 
rules and harmonize the regulation of the DBS service with other 
satellite services, where appropriate. While incorporating the DBS 
rules into part 25, the location of the other satellite communications 
service rules, the Notice seeks comment

[[Page 11204]]

on relocation of the foreign ownership rules of section 100.11; further 
measures the FCC could take to promote service to Alaska and Hawaii and 
other U.S. territories and possessions; comments on proposals to update 
the DBS technical rules; and comment on whether to adopt rules to 
address issues related to concentration in the multi-channel video 
programming distribution market. The Notice proposes that adoption of 
the proposed rules will reduce regulatory burdens and, with minimal 
disruption to existing permittees and licensees, result in the 
continued development of DBS and other satellite services to the 
public.

Legal Basis

    This Notice of Proposed Rulemaking is adopted pursuant to Sections 
1, 4(i), 303(r), 303(v), 307, 309(a), 309(j), 310 of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303(r), 303(v), 307, 
309(a), 309(j), 310, and 5 U.S.C. 553 of the Administrative Procedures 
Act.

Description and Estimate of Small Entities Subject to the Rules

    The Commission has not developed a definition of small entities 
applicable to geostationary or non-geostationary orbit fixed-satellite 
or direct broadcast satellite service applicants or licensees. 
Therefore, the applicable definition of small entity is the definition 
under the Small Business Administration (SBA) rules applicable to 
Communications Services, Not Elsewhere Classified. This definition 
provides that a small entity is one with $11.0 million or less in 
annual receipts. (13 CFR 121.201, Standard Industrial Classification 
(SIC) Code 4899). According to Census Bureau data, there are 848 firms 
that fall under the category of Communications Services, Not Elsewhere 
Classified which could potentially fall into the DBS category. Of 
those, approximately 775 reported annual receipts of $11 million or 
less and qualify as small entities. (U.S. Bureau of Census, U.S. 
Department of Commerce, 1992 Census of Transportation, Communications, 
Utilities, UC92-S-1, Subject Series, Establishment and Firm Size, Table 
2D, Employment Size of Firms: 1992, SIC Code 4899 (issued May 1995)). 
The rules proposed in this Notice apply only to entities providing DBS 
service. Small businesses do not have the financial ability to become 
DBS licensees because of the high implementation costs associated with 
satellite services. Since this is an established service, however, with 
limited spectrum and orbital resources for assignment, we estimate that 
no more than 15 entities will be Commission licensees providing these 
services. Therefore, because of the high implementation costs and the 
limited spectrum resources, we do not believe that small entities will 
be impacted by this rulemaking.

Reporting, Recordkeeping, and Other Compliance Requirements

    The proposed action in this Notice would affect those entities 
applying for DBS construction permits and licenses and those applying 
to participate in auctions of DBS spectrum in the future. In the case 
where there is not any mutual exclusivity, applicants will be required 
to follow the recently streamlined application procedures of part 25 
for space and earth station licenses by submitting the information 
required by Form 312, where applicable. In the case where there is 
mutual exclusivity between applicants for DBS authorizations, the 
competitive bidding rules of part 1 will be used to determine the 
licensee. Applicants will have to comply with the requirement to file a 
short-form (FCC Form 175). Completion of short-form FCC Form 175 to 
participate in an auction is not estimated to be a significant economic 
burden for these entities. The action proposed will also affect auction 
winners in that it will require them to submit a long Form 312 
application for authorization. This process will be required by all DBS 
applicants whether selected through the competitive bidding process or 
not.

Federal Rules That Overlap, Duplicate or Conflict With These Proposed 
Requirements

    None. One of the main objectives of the Notice is to eliminate any 
existing overlap or duplication of rules between the DBS and other 
satellite services.
    Any Significant alternatives minimizing impact on small entities 
and consistent with stated objectives: In developing the proposals 
contained in this Notice, we have attempted to minimize the burdens on 
all entities in order to allow maximum participation in the DBS market 
while achieving our other objectives. The Notice seeks comment on the 
impact of the proposals on small entities and on any possible 
alternatives that could minimize the impact of the rules on small 
entities. In particular, the Notice seeks comment on alternatives to 
the reporting, recordkeeping, and other compliance requirements.

Comments Are Solicited

    Written comments are requested on this Initial Regulatory 
Flexibility Analysis. These comments must be filed in accordance with 
the same filing deadlines set for comments on the other issues in this 
Notice, but they must have a separate and distinct heading designating 
them as responses to the Regulatory Flexibility Analysis. The Office of 
Public Affairs, Reference Operations Division shall send a copy of this 
Notice to the Chief Counsel for Advocacy of the Small Business 
Administration in accordance with section 603(a) of the Regulatory 
Flexibility Act.

List of Subjects

47 CFR Part 25

    Satellites.

47 CFR Part 100

    Satellites.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-5938 Filed 3-5-98; 8:45 am]
BILLING CODE 6712-01-P