[Federal Register Volume 66, Number 6 (Tuesday, January 9, 2001)]
[Proposed Rules]
[Pages 1622-1628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-579]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 64

[WT Docket No. 99-217; FCC 00-366]


Promotion of Competitive Networks in Local Telecommunications 
Markets

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this document, the Commission seeks comment on the current 
state of the evolving market for the provision of telecommunications 
services in multiple tenant environments (MTEs). The Commission also 
notes that a strong case can be made that it has authority to impose 
obligations on carriers to ensure nondiscriminatory access to MTEs. The 
Commission seeks comment on this legal argument, whether it would be 
prudent to exercise such authority, the potential scope of such 
requirements, and how such requirements could be implemented, if 
adopted. In addition, the Commission seeks further comment on several 
other potential actions that may be necessary in the event that 
competition in the MTE market does not develop sufficiently.

DATES: Comments are due on or before January 22, 2001; Reply comments 
are due on or before February 21, 2001. Comments from the public, OMB, 
and other agencies on the information collections contained in this 
document are due March 12, 2001.

ADDRESSES: Parties who choose to file comments by paper should send 
comments to the Commission's Secretary, Magalie Roman Salas, Office of 
the Secretary, Federal Communications Commission, 445 12th Street, SW.; 
TW-A325; Washington, DC 20554. Comments filed through the Commission's 
Electronic Comment Filing System (ECFS) can be sent as an electronic 
file via the Internet to 
http://www.fcc.gov/e-file/ecfs.html.
    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 1-
C804, 445 12th Street, SW, Washington, DC 20554, or via the Internet to 
[email protected], and to Edward C. Springer, OMB Desk Officer, Room 10236 
NEOB, 725 17th Street, NW., Washington, DC 20503 or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Lauren Van Wazer at (202) 418-0030 or 
Joel Taubenblatt at (202) 418-1513 (Wireless Telecommunications 
Bureau). For additional information concerning the information 
collection(s) contained in this document, contact Judy Boley at 202-
418-0214, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Further Notice of 
Proposed Rulemaking in WT Docket No. 99-217, FCC 00-366, adopted 
October 12, 2000 and released October 25, 2000 (``Further NPRM''). This 
summary also reflects an order extending the pleading cycle for this 
proceeding issued on December 4, 2000 (DA 00-2720), and an erratum 
issued in this proceeding on December 20, 2000. The complete text of 
the document is available for inspection and copying during normal 
business hours in the FCC Reference Center, 445 12th Street, SW., 
Washington, DC and also may be purchased from the commission's copy 
contractor, International Transcription Services, (202) 857-3800, 445 
12th Street, SW., CY-B400, Washington, DC 20554. The document is also 
available via the Internet at http://www.fcc.gov/Bureaus/Wireless/Orders/2000/fcc00366.pdf. 

Paperwork Reduction Act

    This Further NPRM contains a proposed information collection. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public, the Office of Management and 
Budget (OMB), and other federal agencies to comment on the information 
collection(s) contained in this Further NPRM, as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. It will be 
submitted to OMB for review under Section 3507(d) of the PRA. Public, 
OMB, and other agency comments are due March 12, 2001. 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.
    A copy of any comments on the information collections contained 
herein should be submitted to Judy Boley, Federal Communications 
Commission, Room 1-C804, 445 12th Street, SW, Washington, DC 20554, or 
via the Internet to [email protected], and to Edward C. Springer, OMB Desk 
Officer, Room 10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or 
via the Internet to [email protected].
    OMB Control Number: 3060-XXXX.
    Title: Promotion of Competitive Networks in Local 
Telecommunications Markets.
    Form No.: NA.
    Type of Review: New collection.
    Respondents: Business or other for-profit.
    Number of Respondents: 438.
    Estimated Time Per Response: 120 hrs.
    Total Annual Burden: 52,560 hrs.
    Total Annual Costs: $7,358,400.
    Needs and Uses: The information will be used to guide the 
Commission as it continues to evaluate and monitor the need for a 
nondiscriminatory access requirement for MTEs.

Synopsis of Further Notice of Proposed Rulemaking

    1. This Further Notice of Proposed Rulemaking (``Further NPRM'') is 
part of a larger item in which the Commission

[[Page 1623]]

takes several targeted steps toward eliminating the existing 
bottlenecks to facilities-based competition in MTEs. In particular, 
this Further NPRM seeks comment on several potential modifications to 
the Commission's Rules in order to facilitate tenant choice of 
telecommunications providers in MTEs. Subsequent to this Further NPRM, 
the Commission will publish a First Report and Order, Fifth Report and 
Order and Memorandum Opinion and Order, and Fourth Report and Order and 
Memorandum Opinion and Order that adopts rules to facilitate the 
development of competitive telecommunications networks that will 
provide consumers with alternatives to services provided by the 
incumbent wireline local exchange carriers (LECs).

Discussion

    2. This Further NPRM seeks comment on the current state of the 
evolving market for the provision of telecommunications services in 
MTEs. The Further NPRM also notes that a strong case can be made that 
the Commission has authority to impose obligations on carriers to 
ensure nondiscriminatory access to MTEs. The Further NPRM seeks comment 
on this legal argument, whether it would be prudent to exercise such 
authority, the potential scope of such obligations, and how such 
obligations could be implemented.
    3. In addition, the Further NPRM seeks comment on whether the 
Commission's prohibition of exclusive access contracts in commercial 
MTEs should be extended to residential MTEs, whether the Commission 
should prohibit carriers from enforcing exclusive access provisions in 
existing contracts in either commercial or residential MTEs, whether 
the Commission should proscribe carriers from entering into contracts 
that grant them preferences other than exclusive access, such as 
exclusive marketing or landlord bonuses to tenants that use their 
services, in some or all situations, the definition of ``rights-of-
way'' in MTEs to which a utility must allow access under 47 U.S.C. 224, 
and whether it should extend its cable inside wiring rules to 
facilitate the use of home run wiring by telecommunications service 
providers where an incumbent cable provider no longer has a legal right 
to maintain its home run wiring in the building.

Filing Procedures

    4. Pursuant to 47 CFR 1.415 and 1.419, interested parties may file 
comments on or before January 22, 2001, and reply comments on or before 
February 21, 2001. Comments may be filed using the Commission's 
Electronic Comment Filing System (ECFS) or by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24,121 
(1998).
    5. Comments filed through the ECFS can be sent as an electronic 
file via the Internet to http://www.fcc.gov/e-file/ecfs.html. 
Generally, only one copy of an electronic submission must be filed. If 
multiple docket or rulemaking numbers appear in the caption of this 
proceeding, however, commenters must transmit one electronic copy of 
the comments to each docket or rulemaking number referenced in the 
caption. In completing the transmittal screen, commenters should 
include their full name, Postal Service mailing address, and the 
applicable docket or rulemaking number. Parties may also submit 
electronic comments by Internet e-mail. To get filing instructions for 
e-mail comments, commenters should send an e-mail to [email protected], and 
should include the following words in the body of the message, ``get 
form your e-mail address>.'' A sample form and directions will be sent 
in reply.
    6. Parties who choose to file by paper must file an original and 
four copies of each filing. All filings must be sent to the 
Commission's Secretary, Magalie Roman Salas, Office of the Secretary, 
Federal Communications Commission, 445 12th Street, SW., TW-A325, 
Washington, DC 20554.
    7. Regardless of whether parties choose to file electronically or 
by paper, parties should also file one copy of any documents filed in 
this docket with the Commission's copy contractor, International 
Transcription Services, Inc., 445 12th Street, SW., CY-B400, 
Washington, DC 20554. Comments and reply comments will be available for 
public inspection during regular business hours in the FCC Reference 
Center, 445 12th Street, SW., Washington, DC 20554.
    8. Comments and reply comments must include a short and concise 
summary of the substantive arguments raised in the pleading. Comments 
and reply comments must also comply with 47 CFR 1.49, and all other 
applicable sections of the Commission's rules. The Commission also 
directs all interested parties to include the name of the filing party 
and the date of the filing on each page of their comments and reply 
comments. All parties are encouraged to utilize a table of contents, 
regardless of the length of their submission.

Initial Regulatory Flexibility Analysis

    9. As required by the Regulatory Flexibility Act (RFA),\1\ the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in this Competitive 
Networks Further Notice of Proposed Rulemaking (FNPRM), WT Docket No. 
99-217. Written public comments are requested on this IRFA. Comments 
must be identified as responses to the IRFA and must be filed by the 
deadline for comments on the Competitive Networks FNPRM provided above 
in paragraph 179 of the Competitive Networks FNPRM. The Commission will 
send a copy of the Competitive Networks FNPRM, including this IRFA, to 
the Chief Counsel for Advocacy of the Small Business Administration.\2\ 
In addition, the Competitive Networks FNPRM and IRFA (or summaries 
thereof) will be published in the Federal Register.\3\
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the 
CWAAA is the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA).
    \2\ See 5 U.S.C. 603(a).
    \3\ See id.
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A. Need for, and Objectives of, the Rules

    10. In the Competitive Networks FNPRM, the Commission seeks comment 
on a number of proposals to further its ongoing efforts under the 
Telecommunications Act of 1996\4\ to foster competition in local 
communications markets. Specifically, we seek comment on measures to 
ensure that competing telecommunications providers are able to provide 
services to customers in multiple tenant environments (MTEs). MTEs 
include apartment and office buildings, office parks, shopping centers, 
and manufactured housing communities. Each of the proposals in the 
Competitive Networks FNPRM is intended to benefit telecommunications 
carriers, building owners and their tenants by creating a more 
competitive MTE telecommunications service environment. The Competitive 
Networks FNPRM seeks comment on: (1) Whether we should require building 
owners, who allow access to their premises to any telecommunications 
provider, to make comparable access available to all providers on a 
nondiscriminatory basis; (2) whether we should prohibit local exchange 
carriers

[[Page 1624]]

from serving buildings that do not afford nondiscriminatory access to 
all telecommunications service providers; (3) whether we should forbid 
telecommunications service providers, under some or all circumstances, 
from entering into exclusive contracts with residential building 
owners; (4) whether we should prohibit carriers from enforcing 
exclusive access provisions in existing contracts in either commercial 
or residential MTEs; (5) whether we should phase out exclusive access 
provisions by establishing a future termination date for such 
provisions; (6) whether we should phase out exclusive access provisions 
for carriers that qualify as small entities and the timing of any such 
phase out; (7) whether, and to what extent, preferential agreements 
between building owners and LECs should be regulated by the Commission; 
(8) whether the Commission's rules governing access to cable home run 
wiring for multichannel video program distribution should be extended 
to benefit providers of telecommunications services; and (9) the extent 
to which utility rights-of-way within MTEs are subject to access by 
telecommunications carriers (except incumbent LECs) and cable companies 
pursuant to section 224 of the Act.\5\
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    \4\ Telecommunications Act of 1996, Public Law 104-104, 110 
Stat. 56, codified at 47 U.S.C. 151 et seq. (1996 Act). The 1996 Act 
amended the Communications Act of 1934 (the ``Communications Act'' 
or the ``Act'').
    \5\ 47 U.S.C. 224.
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B. Legal Basis

    11. The potential actions on which comment is sought in this 
Competitive Networks FNPRM would be authorized under Sections 1, 2(a), 
4(i), 201(b), 202(a), 205(a), 224(d), 224(e), 303(r), and 411(a) of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 
201(b), 202(a), 205(a), 224(d), 224(e), 303(r), and 411(a), and 
Sections 1.411 and 1.412 of the Commission's Rules, 47 CFR 1.411 and 
1.412.

C. Description and Estimate of the Number of Small Entities To Which 
the Rules Will Apply

    12. The RFA requires that an IRFA be prepared for notice-and-
comment rulemaking proceedings, unless the agency certifies that ``the 
rule will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' \6\ The RFA generally defines 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \7\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\8\ A small business concern is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (SBA).\9\ For many of the entities 
described below, we utilize SBA definitions of small business 
categories, which are based on Standard Industrial Classification 
(``SIC'') codes.
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    \6\ 5 U.S.C. 605(b).
    \7\ 5 U.S.C. 601(6).
    \8\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in Small Business Act, 15 U.S.C. 632). 
Pursuant to 5 U.S.C. 601(3), the statutory definition of a small 
business applies ``unless an agency, after consultation with the 
Office of Advocacy of the Small Business Administration and after 
opportunity for public comment, establishes one or more definitions 
of such term which are appropriate to the activities of the agency 
and publishes such definition(s) in the Federal Register.''
    \9\ Small Business Act, 15 U.S.C. 632.
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    We have included small incumbent LECs in this present IRFA. As 
noted above, a ``small business'' under the RFA is one that, inter 
alia, meets the pertinent small business size standard (e.g., a 
telephone communications business having 1,500 or fewer employees), and 
``is not dominant in its field of operation.'' \10\ The SBA contends 
that, for RFA purposes, small incumbent LECs are not dominant in their 
field of operation because any such dominance is not ``national'' in 
scope.\11\ We have therefore included small incumbent LECs in this 
IRFA, although we emphasize that this RFA action has no effect on FCC 
analyses and determinations in other, non-RFA contexts.
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    \10\ 5 U.S.C. 601(3).
    \11\ SBA Reply Comments at 3-4 (filed Sept. 10, 1999). See also 
Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to 
William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business 
Act contains a definition of ``small business concern,'' which the 
RFA incorporates into its own definition of ``small business.'' See 
15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 601(3) (RFA). SBA 
regulations interpret ``small business concern'' to include the 
concept of dominance on a national basis. 13 CFR 121.102(b). Since 
1996, out of an abundance of caution, the Commission has included 
small incumbent LECs in its regulatory flexibility analyses. See, 
e.g., Implementation of the Local Competition Provisions of the 
Telecommunications Act of 1996, CC Docket, 96-98, First Report and 
Order, 11 FCC Rcd 15499, 16144-45 (1996), 61 FR 45476 (Aug. 29, 
1996).
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    13. This Competitive Networks FNPRM proposes rule changes that, if 
adopted, would impose requirements that would affect on local exchange 
carriers and other utilities, building owners and managers, 
neighborhood associations, small governmental jurisdictions, cable 
operators, and wireless communications providers.
a. Local Exchange Carriers
    14. Many of the potential rule changes on which comment is sought 
in this Competitive Networks FNPRM, if adopted, would affect small 
LECs. Neither the Commission nor the SBA has developed a definition for 
small providers of local exchange services. The closest applicable 
definition under the SBA rules is for telephone communications 
companies other than radiotelephone (wireless) companies.\12\ The SBA 
has defined establishments engaged in providing ``Telephone 
Communications, Except Radiotelephone'' to be small businesses when 
they have no more than 1,500 employees.\13\ According to recent 
Telecommunications Industry Revenue data, 1,348 incumbent carriers 
reported that they were engaged in the provision of local exchange 
services.\14\ We do not have data specifying the number of these 
carriers that are either dominant in their field of operations, are not 
independently owned and operated, or have more than 1,500 employees, 
and thus are unable at this time to estimate with greater precision the 
number of LECs that would qualify as small business concerns under the 
SBA's definition. Consequently, we estimate that fewer than 1,348 
providers of local exchange service are small entities that may be 
affected by the potential actions discussed in this Further Notice of 
Proposed Rulemaking, if adopted.
b. Other Utilities
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    \12\ See 13 CFR 121.201, SIC Code 4813.
    \13\ 13 CFR 121.201. See Executive Office of the President, 
Office of Management and Budget, Standard Industrial Classification 
Manual (1987) (1987 SIC Manual).
    \14\ FCC, Common Carrier Bureau, Industry Analysis Division, 
Trends in Telephone Service, Table 19.3 (March 2000)
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    15. The proposals in the Competitive Networks FNPRM with respect to 
the application of Section 224 of the Act, if adopted, would affect 
utilities other than LECs. Section 224 defines a ``utility'' as ``any 
person who is a local exchange carrier or an electric, gas, water, 
steam, or other public utility, and who owns or controls poles, ducts, 
conduits, or rights-of-way used, in whole or in part, for any wire 
communications. Such term does not include any railroad, any person who 
is cooperatively organized, or any person owned by the Federal 
Government or any state.'' The Commission anticipates that, to the 
extent its legal interpretation of Section 224 affects non-LEC 
utilities, the effect would be concentrated on electric utilities.
(1) Electric Utilities (SIC 4911, 4931 & 4939)
    16. Electric Services (SIC 4911). The SBA has developed a 
definition for

[[Page 1625]]

small electric utility firms.\15\ The Census Bureau reports that a 
total of 1,379 electric utilities were in operation for at least one 
year at the end of 1992. According to SBA, a small electric utility is 
an entity whose gross revenues do not exceed five million dollars.\16\ 
The Census Bureau reports that 447 of the 1,379 firms listed had total 
revenues below five million dollars in 1992.\17\
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    \15\ 1987 SIC Manual.
    \16\ 16 13 CFR 121.201.
    \17\ U.S. Department of Commerce, Bureau of the Census, 1992 
Economic Census Industry and Enterprise Receipts Size Report, Table 
2D (Bureau of Census data under contract to the Office of Advocacy 
of the SBA) (1992 Economic Census Industry and Enterprise Receipts 
Size Report).
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    17. Electric and Other Services Combined (SIC 4931). The SBA has 
classified this entity as a utility whose business is less than 95% 
electric in combination with some other type of service.\18\ The Census 
Bureau reports that a total of 135 such firms were in operation for at 
least one year at the end of 1992. The SBA's definition of a small 
electric and other services combined utility is a firm whose gross 
revenues do not exceed five million dollars.\19\ The Census Bureau 
reported that 45 of the 135 firms listed had total revenues below five 
million dollars in 1992.\20\
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    \18\ 1987 SIC Manual.
    \19\ 13 CFR 121.201.
    \20\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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    18. Combination Utilities, Not Elsewhere Classified (SIC 4939). The 
SBA defines this type of utility as providing a combination of 
electric, gas, and other services that are not otherwise 
classified.\21\ The Census Bureau reports that a total of 79 such 
utilities were in operation for at least one year at the end of 1992. 
According to SBA's definition, a small combination utility is a firm 
whose gross revenues do not exceed five million dollars.\22\ The Census 
Bureau reported that 63 of the 79 firms listed had total revenues below 
five million dollars in 1992.\23\
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    \21\ 1987 SIC Manual.
    \22\ 13 CFR 121.201.
    \23\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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(2) Gas Production and Distribution (SIC 4922, 4923, 4924, 4925 & 4932)
    19. Natural Gas Transmission (SIC 4922). The SBA's definition of a 
natural gas transmitter is an entity that is engaged in the 
transmission and storage of natural gas.\24\ The Census Bureau reports 
that a total of 144 such firms were in operation for at least one year 
at the end of 1992. According to SBA's definition, a small natural gas 
transmitter is an entity whose gross revenues do not exceed five 
million dollars.\25\ The Census Bureau reported that 70 of the 144 
firms listed had total revenues below five million dollars in 1992.\26\
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    \24\ 1987 SIC Manual.
    \25\ 13 CFR 121.201.
    \26\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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    20. Natural Gas Transmission and Distribution (SIC 4923). The SBA 
has classified this type of entity as a utility that transmits and 
distributes natural gas for sale.\27\ The Census Bureau reports that a 
total of 126 such entities were in operation for at least one year at 
the end of 1992. The SBA's definition of a small natural gas 
transmitter and distributor is a firm whose gross revenues do not 
exceed five million dollars.\28\ The Census Bureau reported that 43 of 
the 126 firms listed had total revenues below five million dollars in 
1992.\29\
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    \27\ 1987 SIC Manual.
    \28\ 13 CFR 121.201.
    \29\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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    21. Natural Gas Distribution (SIC 4924). The SBA defines a natural 
gas distributor as an entity that distributes natural gas for sale.\30\ 
The Census Bureau reports that a total of 478 such firms were in 
operation for at least one year at the end of 1992. According to the 
SBA, a small natural gas distributor is an entity whose gross revenues 
do not exceed five million dollars.\31\ The Census Bureau reported that 
267 of the 478 firms listed had total revenues below five million 
dollars in 1992\32\.
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    \30\ 1987 SIC Manual.
    \31\ 13 CFR 121.201.
    \32\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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    22. Mixed, Manufactured, or Liquefied Petroleum Gas Production and/
or Distribution (SIC 4925). The SBA has classified this type of entity 
as a utility that engages in the manufacturing and/or distribution of 
the sale of gas.\33\ These mixtures may include natural gas. The Census 
Bureau reports that a total of 43 such firms were in operation for at 
least one year at the end of 1992. The SBA's definition of a small 
mixed, manufactured or liquefied petroleum gas producer or distributor 
is a firm whose gross revenues do not exceed five million dollars.\34\ 
The Census Bureau reported that 31 of the 43 firms listed had total 
revenues below five million dollars in 1992.\35\
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    \33\ 1987 SIC Manual.
    \34\ 13 CFR 121.201.
    \35\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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    23. Gas and Other Services Combined (SIC 4932). The SBA has 
classified this entity as a gas company whose business is less than 95% 
gas, in combination with other services.\36\ The Census Bureau reports 
that a total of 43 such firms were in operation for at least one year 
at the end of 1992. According to the SBA, a small gas and other 
services combined utility is a firm whose gross revenues do not exceed 
five million dollars.\37\ The Census Bureau reported that 24 of the 43 
firms listed had total revenues below five million dollars in 1992.\38\
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    \36\ 1987 SIC Manual.
    \37\ 13 CFR 121.201.
    \38\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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(3) Water Supply (SIC 4941)
    24. The SBA defines a water utility as a firm who distributes and 
sells water for domestic, commercial and industrial use.\39\ The Census 
Bureau reports that a total of 3,169 water utilities were in operation 
for at least one year at the end of 1992. According to SBA's 
definition, a small water utility is a firm whose gross revenues do not 
exceed five million dollars.\40\ The Census Bureau reported that 3,065 
of the 3,169 firms listed had total revenues below five million dollars 
in 1992.\41\
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    \39\ 1987 SIC Manual.
    \40\ 13 CFR 121.201.
    \41\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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(4) Sanitary Systems (SIC 4952, 4953 & 4959)
    25. Sewerage Systems (SIC 4952). The SBA defines a sewage firm as a 
utility whose business is the collection and disposal of waste using 
sewage systems.\42\ The Census Bureau reports that a total of 410 such 
firms were in operation for at least one year at the end of 1992. 
According to SBA's definition, a small sewerage system is a firm whose 
gross revenues did not exceed five million dollars.\43\ The Census 
Bureau reported that 369 of the 410 firms listed had total revenues 
below five million dollars in 1992.\44\
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    \42\ 1987 SIC Manual.
    \43\ 13 CFR 121.201.
    \44\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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    26. Refuse Systems (SIC 4953). The SBA defines a firm in the 
business of refuse as an establishment whose business is the collection 
and disposal of refuse ``by processing or destruction or in the 
operation of incinerators, waste treatment plants, landfills, or other 
sites for disposal of such materials.'' \45\ The Census Bureau reports 
that a total of 2,287 such firms were in operation for at least one 
year at the end of 1992. According to SBA's definition, a small refuse 
system is a firm whose gross

[[Page 1626]]

revenues do not exceed six million dollars.\46\ The Census Bureau 
reported that 1,908 of the 2,287 firms listed had total revenues below 
six million dollars in 1992.\47\
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    \45\ 1987 SIC Manual.
    \46\ 13 CFR 121.201.
    \47\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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    27. Sanitary Services, Not Elsewhere Classified (SIC 4959). The SBA 
defines these firms as engaged in sanitary services.\48\ The Census 
Bureau reports that a total of 1,214 such firms were in operation for 
at least one year at the end of 1992. According to SBA's definition, a 
small sanitary service firm's gross revenues do not exceed five million 
dollars.\49\ The Census Bureau reported that 1,173 of the 1,214 firms 
listed had total revenues below five million dollars in 1992.\50\
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    \48\ 1987 SIC Manual.
    \49\ 13 CFR 121.201.
    \50\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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(5) Steam and Air Conditioning Supply (SIC 4961)
    28. The SBA defines a steam and air conditioning supply utility as 
a firm who produces and/or sells steam and heated or cooled air.\51\ 
The Census Bureau reports that a total of 55 such firms were in 
operation for at least one year at the end of 1992. According to SBA's 
definition, a steam and air conditioning supply utility is a firm whose 
gross revenues do not exceed nine million dollars.\52\ The Census 
Bureau reported that 30 of the 55 firms listed had total revenues below 
nine million dollars in 1992.\53\
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    \51\ 1987 SIC Manual.
    \52\ 13 CFR 121.201.
    \53\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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(6) Irrigation Systems (SIC 4971)
    29. The SBA defines irrigation systems as firms who operate water 
supply systems for the purpose of irrigation.\54\ The Census Bureau 
reports that a total of 297 firms were in operation for at least one 
year at the end of 1992. According to SBA's definition, a small 
irrigation service is a firm whose gross revenues do not exceed five 
million dollars.\55\ The Census Bureau reported that 286 of the 297 
firms listed had total revenues below five million dollars in 1992.\56\
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    \54\ 1987 SIC Manual.
    \55\ 13 CFR 121.201.
    \56\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D.
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c. Building Owners and Managers
    30. Our proposals in the this Further Notice of Proposed Rulemaking 
regarding the scope of in-building rights-of way under section 224 of 
the Act, termination or phasing out of exclusive contracts between 
commercial MTEs and telecommunications carriers, and nondiscriminatory 
access to MTEs, if adopted, would affect multiple dwelling unit 
operators and real estate agents and managers.
(1) Multiple Dwelling Unit Operators (SIC 6512, SIC 6513, SIC 6514)
    31. The SBA has developed definitions of small entities for 
operators of nonresidential buildings, apartment buildings, and 
dwellings other than apartment buildings, which include all such 
companies generating $5 million or less in revenue annually.\57\ 
According to the Census Bureau, there were 26,960 operators of 
nonresidential buildings generating less than $5 million in revenue 
that were in operation for at least one year at the end of 1992.\58\ 
Also according to the Census Bureau, there were 39,903 operators of 
apartment dwellings generating less than $5 million in revenue that 
were in operation for at least one year at the end of 1992.\59\ The 
Census Bureau provides no separate data regarding operators of 
dwellings other than apartment buildings, and we are unable at this 
time to estimate the number of such operators that would qualify as 
small entities.
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    \57\ 13 CFR 121.601 (SIC 6512, SIC 6513, SIC 6514).
    \58\ 1992 Economic Census of Financial, Insurance and Real 
Estate Industries, Establishment and Firm Size Report, Table 4, SIC 
6512 (U.S. Bureau of the Census data under contract to the Office of 
Advocacy of the U.S. Small Business Administration) (1992 Economic 
Census of Financial, Insurance and Real Estate Industries, 
Establishment and Firm Size Report).
    \59\ 1992 Economic Census of Financial, Insurance and Real 
Estate Industries, Establishment and Firm Size Report, Table 4, SIC 
6513.
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(2) Real Estate Agents and Managers (SIC 6531)
    32. The SBA defines real estate agents and managers as 
establishments primarily engaged in renting, buying, selling, managing, 
and appraising real estate for others.\60\ According to SBA's 
definition, a small real estate agent or manager is a firm whose 
revenues do not exceed 1.5 million dollars.\61\
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    \60\ 1987 SIC Manual.
    \61\ 13 CFR 121.201.
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d. Neighborhood Associations
    33. Section 601(4) of the Regulatory Flexibility Act, 5 U.S.C. 
601(4), defines ``small organization'' as ``any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.'' This definition includes homeowner and 
condominium associations that operate as not-for-profit organizations. 
We note that these groups would be indirectly affected by our 
proposals. The Community Associations Institute estimates that there 
are 205,000 such associations.\62\
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    \62\ CAI Response to Competitive Networks NPRM IRFA at 5 (filed 
Aug. 27, 1999).
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e. Municipalities
    34. Our proposals in the this Competitive Networks FNPRM regarding 
the scope of in-building rights-of way under Section 224 of the Act, 
termination or phasing out of exclusive contracts between commercial 
MTEs and telecommunications carriers, and nondiscriminatory access to 
MTEs would, if adopted, affect municipalities. The term ``small 
governmental jurisdiction'' is defined as ``governments of * * * 
districts, with a population of less than 50,000.''\63\ As of 1992, 
there were approximately 85,006 governmental entities in the United 
States.\64\ This number includes such entities as states, counties, 
cities, utility districts and school districts. Of the 85,006 
governmental entities, 38,978 are counties, cities and towns. The 
remainder are primarily utility districts, school districts, and 
states. Of the 38,978 counties, cities and towns, 37,566, or 96%, have 
populations of fewer than 50,000.\65\ The Census Bureau estimates that 
this ratio is approximately accurate for all governmental entities. 
Thus, of the 85,006 governmental entities, we estimate that 81,606 
(96%) are small entities.
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    \63\ 5 U.S.C. 601(5).
    \64\ U.S. Department of Commerce, Bureau of the Census, ``1992 
Census of Governments.''
    \65\ Id.
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f. Cable Services or Systems
    35. Our proposals in the this Competitive Networks FNPRM regarding 
the scope of in-building rights-of way under Section 224 of the Act, 
nondiscriminatory access to MTEs, and extension of the cable home run 
wiring rule to telecommunications carriers, would, if adopted, affect 
owners and operators of cable systems. The SBA has developed a 
definition of small entities for cable and other pay television 
services, which includes all such companies generating $11 million or 
less in revenue annually.\66\ This definition includes cable systems 
operators, closed circuit television services, direct broadcast 
satellite services, multipoint distribution systems, satellite master 
antenna systems and subscription television services. According to the 
Census Bureau data from 1992, there were 1,788

[[Page 1627]]

total cable and other pay television services and 1,423 had less than 
$11 million in revenue.\67\
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    \66\ 13 CFR 121.201, SIC code 4841.
    \67\ 1992 Economic Census Industry and Enterprise Receipts Size 
Report, Table 2D, SIC code 4841 (U.S. Bureau of the Census data 
under contract to the Office of Advocacy of the U.S. Small Business 
Administration).
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    36. The Commission has developed its own definition of a small 
cable system operator for purposes of rate regulation. Under the 
Commission's rules, a ``small cable company'' is one serving fewer than 
400,000 subscribers nationwide.\68\ Based on our most recent 
information, we estimate that there were 1,439 cable operators that 
qualified as small cable system operators at the end of 1995.\69\ Since 
then, some of those companies may have grown to serve over 400,000 
subscribers, and others may have been involved in transactions that 
caused them to be combined with other cable operators. Consequently, we 
estimate that there are fewer than 1,439 small entity cable system 
operators.
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    \68\ 47 CFR 76.901(e). The Commission developed this definition 
based on its determination that a small cable system operator is one 
with annual revenues of $100 million or less. Implementation of 
Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and 
Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393 (1995), 
60 FR 10534 (Feb. 27, 1995).
    \69\ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 
1996 (based on figures for Dec. 30, 1995).
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    37. The Communications Act also contains a definition of a small 
cable system operator, which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than 1 percent of 
all subscribers in the United States and is not affiliated with any 
entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.''\70\ The Commission has determined that there are 
66,690,000 subscribers in the United States. Therefore, we found that 
an operator serving fewer than 666,900 subscribers shall be deemed a 
small operator, if its annual revenues, when combined with the total 
annual revenues of all of its affiliates, do not exceed $250 million in 
the aggregate.\71\ Based on available data, we find that the number of 
cable operators serving 666,900 subscribers or less totals 1,450.\72\ 
We do not request nor do we collect information concerning whether 
cable system operators are affiliated with entities whose gross annual 
revenues exceed $250,000,000,\73\ and thus 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.
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    \70\ 47 U.S.C. 543(m)(2).
    \71\ 47 CFR 76.1403(b).
    \72\ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 
1996 (based on figures for Dec. 30, 1995).
    \73\ We do receive such information on a case-by-case basis only 
if a cable operator appeals a local franchise authority's finding 
that the operator does not qualify as a small cable operator 
pursuant to Section 76.1403(b) of the Commission's rules. See 47 CFR 
76.1403(d).
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g. Multipoint Distribution Service (MDS)
    38. This service involves a variety of transmitters, which are used 
to relay programming to the home or office, similar to that provided by 
cable television systems.\74\ In connection with the 1996 MDS auction, 
the Commission defined small businesses as entities that had annual 
average gross revenues for the three preceding years not in excess of 
$40 million.\75\ This definition of a small entity in the context of 
MDS auctions has been approved by the SBA.\76\ These stations were 
licensed prior to implementation of Section 309(j) of the 
Communications Act of 1934, as amended.\77\ Licenses for new MDS 
facilities are now awarded to auction winners in Basic Trading Areas 
(BTAs) and BTA-like areas.\78\ The MDS auctions resulted in 67 
successful bidders obtaining licensing opportunities for 493 BTAs. Of 
the 67 auction winners, 61 meet the definition of a small business. 
There are 2,050 MDS stations currently licensed. Thus, we conclude that 
there are 1,634 MDS providers that are small businesses as deemed by 
the SBA and the Commission's auction rules.
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    \74\ For purposes of this item, MDS includes both the single 
channel Multipoint Distribution Service (MDS) and the Multichannel 
Multipoint Distribution Service (MMDS).
    \75\ 47 CFR 1.2110 (a)(1).
    \76\ Amendment of Parts 21 and 74 of the Commission's Rules with 
Regard to Filing Procedures in the Multipoint Distribution Service 
and in the Instructional Television Fixed Service and Implementation 
of Section 309(j) of the Communications Act--Competitive Bidding, 10 
FCC Rcd 9589 (1995), 60 FR 36524 (Jul. 17, 1995).
    \77\ 47 U.S.C. 309(j).
    \78\ Id. A Basic Trading Area (BTA) is the geographic area by 
which the Multipoint Distribution Service is licensed. See Rand 
McNally 1992 Commercial Atlas and Marketing Guide, 123rd Edition, 
pp. 36-39.
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h. Wireless Services
    39. Many of the proposals in this Competitive Networks FNPRM, if 
enacted, could affect providers of wireless services regulated by the 
Commission.
    40. Broadband Personal Communications Service (PCS). The broadband 
PCS spectrum is divided into six frequency blocks designated A through 
F, and the Commission has held auctions for each block. The Commission 
defined ``small entity'' for Blocks C and F as an entity that has 
average gross revenues of $40 million or less in the three previous 
calendar years.\79\ For Block F, an additional classification for 
``very small business'' was added and is defined as an entity that, 
together with its affiliates, has average gross revenues of not more 
than $15 million for the preceding three calendar years.\80\ These 
regulations defining ``small entity'' in the context of broadband PCS 
auctions have been approved by the SBA.\81\ No small businesses within 
the SBA-approved definition bid successfully for licenses in Blocks A 
and B. There were 90 winning bidders that qualified as small entities 
in the Block C auctions. A total of 93 small and very small business 
bidders won approximately 40 percent of the 1,479 licenses for Blocks 
D, E, and F.\82\ Based on this information, we conclude that the number 
of small broadband PCS licensees will include the 90 winning C Block 
bidders and the 93 qualifying bidders in the D, E, and F blocks, for a 
total of 183 small entity PCS providers as defined by the SBA and the 
Commission's auction rules.
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    \79\ See Amendment of Parts 20 and 24 of the Commission's 
Rules--Broadband PCS Competitive Bidding and the Commercial Mobile 
Radio Service Spectrum Cap, WT Docket No. 96-59; Amendment of the 
Commission's Cellular/PCS Cross-Ownership Rule, GN Docket 90-314, 
Report and Order, 11 FCC Rcd 7824, 7850-52, paragraphs 57-60 (1996) 
(Cross Ownership Report & Order); see also 47 CFR 24.720(b).
    \80\ Cross Ownership Report & Order, 11 FCC Rcd at 7852, 
paragraph 60.
    \81\ See, e.g., Implementation of Section 309(j) of the 
Communications Act--Competitive Bidding, PP Docket No. 93-253, Fifth 
Report and Order, 9 FCC Rcd 5532, 5581-84, paragraphs 114-20 (1994).
    \82\ FCC News, Broadband PCS, D, E and F Block Auction Closes, 
No. 71744 (released Jan. 14, 1997).
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    41. Cellular Licensees. Neither the Commission nor the SBA has 
developed a definition of small entities applicable to cellular 
licensees. Therefore, the applicable definition of a small entity is 
the definition under the SBA rules applicable to radiotelephone 
(wireless) companies. This provides that a small entity is a 
radiotelephone company employing no more than 1,500 persons.\83\ 
According to the Bureau of the Census, only twelve radiotelephone firms 
from a total of 1,178 such firms that operated during 1992 had 1,000 or 
more employees.\84\ Therefore, even if all twelve of these firms were 
cellular telephone companies, nearly all cellular carriers were small 
businesses under the SBA's definition. In addition, we note that there 
are 1,758 cellular licenses; however, a cellular licensee may own 
several licenses. In addition, according

[[Page 1628]]

to the most recent Trends in Telephone Service data, 808 carriers 
reported that they were engaged in the provision of either cellular 
service, Personal Communications Service (PCS), or Specialized Mobile 
Radio Telephone (SMR) service, which are placed together in the 
data.\85\ We do not have data specifying the number of these carriers 
that are not independently owned and operated or have more than 1,500 
employees, and thus are unable at this time to estimate with greater 
precision the number of cellular service carriers that would qualify as 
small business concerns under the SBA's definition. Consequently, we 
estimate that there are 808 or fewer small cellular service carriers 
that may be affected by any regulations adopted pursuant to this 
proceeding.
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    \83\ 13 CFR 121.201, SIC code 4812.
    \84\ 1992 Census, Series UC92-S-1, at Table 5, SIC code 4812.
    \85\ FCC, Common Carrier Bureau, Industry Analysis Division, 
Trends in Telephone Service, Table 19.3 (March 2000).
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    42. Fixed Microwave Services. Microwave services include common 
carrier,\86\ private-operational fixed,\87\ and broadcast auxiliary 
radio services.\88\ At present, there are approximately 22,015 common 
carrier fixed licensees and 61,670 private operational-fixed licensees 
and broadcast auxiliary radio licensees in the microwave services. The 
Commission has not yet defined a small business with respect to 
microwave services. For purposes of this IRFA, we will utilize the 
SBA's definition applicable to radiotelephone companies--i.e., an 
entity with no more than 1,500 persons.\89\ We estimate, for this 
purpose, that all of the Fixed Microwave licensees (excluding broadcast 
auxiliary licensees) would qualify as small entities under the SBA 
definition for radiotelephone companies.
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    \86\ 47 CFR 101 et seq. (formerly, part 21 of the Commission's 
Rules).
    \87\ Persons eligible under parts 80 and 90 of the Commission's 
rules can use Private Operational-Fixed Microwave services. See 47 
CFR parts 80 and 90. Stations in this service are called 
operational-fixed to distinguish them from common carrier and public 
fixed stations. Only the licensee may use the operational-fixed 
station, and only for communications related to the licensee's 
commercial, industrial, or safety operations.
    \88\ Auxiliary Microwave Service is governed by part 74 of Title 
47 of the Commission's Rules. See 47 CFR 74 et seq. Available to 
licensees of broadcast stations and to broadcast and cable network 
entities, broadcast auxiliary microwave stations are used for 
relaying broadcast television signals from the studio to the 
transmitter, or between two points such as a main studio and an 
auxiliary studio. The service also includes mobile TV pickups, which 
relay signals from a remote location back to the studio.
    \89\ 13 CFR 121.201, SIC 4812.
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    43. Rural Radiotelephone Service. The Commission has not adopted a 
definition of small entity specific to the Rural Radiotelephone 
Service.\90\ A significant subset of the Rural Radiotelephone Service 
is the Basic Exchange Telephone Radio Systems (BETRS).\91\91 We will 
use the SBA's definition applicable to radiotelephone companies, i.e., 
an entity employing no more than 1,500 persons.\92\ There are 
approximately 1,000 licensees in the Rural Radiotelephone Service, and 
we estimate that almost all of them qualify as small entities under the 
SBA's definition.
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    \90\ The service is defined in Section 22.99 of the Commission's 
Rules, 47 CFR 22.99.
    \91\ BETRS is defined in Sections 22.757 and 22.759 of the 
Commission's Rules, 47 CFR 22.757 and 22.759.
    \92\ 13 CFR 121.201, SIC code 4812.
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D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    44. The Competitive Networks FNPRM Rulemaking proposes no 
additional reporting, recordkeeping or other compliance measures. We 
note supra, however, that the Competitive Networks FNPRM seeks comment 
on termination or phase out of exclusivity and preferential provisions 
in contracts between telecommunications providers and MTEs.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered.

    45. 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.\93\
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    \93\ 5 U.S.C. 603(c).
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    46. In this Competitive Networks FNPRM, we seek comment on 
proposals that are intended to promote competition in local 
communications markets by ensuring that competing telecommunications 
providers are able to serve customers in MTEs. Specifically, we seek 
comment on the following proposals: (1) Whether we should require 
building owners, who allow access to their premises to any 
telecommunications provider, to make comparable access available to all 
providers on a nondiscriminatory basis; (2) whether we should prohibit 
local exchange carriers from serving buildings that do not afford 
nondiscriminatory access to all telecommunications service providers; 
(3) whether we should forbid telecommunications service providers, 
under some or all circumstances, from entering into exclusive contracts 
with residential building owners; (4) whether we should prohibit 
carriers from enforcing exclusive access provisions in existing 
contracts in either commercial or residential MTEs; (5) whether we 
should phase out exclusive access provisions by establishing a future 
termination date for such provisions; (6) whether we should phase out 
exclusive access provisions for carriers that qualify as small entities 
and the timing of any such phase out; (7) whether, and to what extent, 
preferential agreements between building owners and LECs should be 
regulated by the Commission; (8) whether the Commission's rules 
governing access to cable home run wiring for multichannel video 
program distribution should be extended to benefit providers of 
telecommunications services; and (9) the extent to which utility 
rights-of-way within MTEs are subject to access by telecommunications 
carriers (except incumbent LECs) and cable companies pursuant to 
Section 224 of the Act.\94\ We anticipate that the proposals, if 
enacted in whole or in part, would benefit consumers, 
telecommunications carriers and building owners, including small 
entities.
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    \94\ 47 U.S.C. 224.
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F. Federal Rules that May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    47. None.

Federal Communications Commission.
Shirley S. Suggs,
Chief, Publications Group.
[FR Doc. 01-579 Filed 1-8-01; 8:45 am]
BILLING CODE 6712-01-U