[Federal Register Volume 70, Number 109 (Wednesday, June 8, 2005)]
[Proposed Rules]
[Pages 33426-33429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11172]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 25

[IB Docket No. 00-248; FCC 05-62]


Satellite License Procedures

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this document, the Commission invites comment on an off-
axis equivalent isotropically radiated power (EIRP) method for 
reviewing earth station applications in the fixed satellite service 
(FSS). The intended purpose of this proceeding is to expedite the earth 
station license procedure.

DATES: Comments are due on or before September 6, 2005. Reply comments 
are due on or before October 6, 2005. The Federal Communications 
Commission will announce filing dates for written comments by the 
public on the proposed information collections in a future Federal 
Register document.

ADDRESSES: You may submit comments, identified by IB Docket No. 00-248, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission Web site: http://www.fcc.gov/cgb/ecfs. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accomodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] of phone: (202) 
418-0530 or TTY: (202) 418-0432.
    For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.
    In addition to filing comments as set forth above, a copy of any 
comments on the information collections contained herein should be 
submitted to Judy Boley Herman, Federal Communications Commission, Room 
1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet 
to [email protected].

FOR FURTHER INFORMATION CONTACT: Steven Spaeth, Satellite Division, 
International Bureau, (202) 418-1539, or Mark Young, Satellite 
Division, International Bureau, (202) 418-0762.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Further Notice of Proposed Rulemaking, adopted March 10, 2005 and 
released March 15, 2005. The full text of this Commission decision is 
available for inspection and copying during normal business hours in 
the FCC Public Reference Room, 445 Twelfth Street, SW., Room CY-A257, 
Washington, DC 20554. The complete text of this decision may also be 
purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554. It is also available on the Commission's Web site 
at http://www.fcc.gov.
    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 2421 (May 1, 1998)). 
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 an electronic comment 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 .'' A sample form and directions will be sent in reply.
    Parties who choose to file by paper must file an original and four 
copies of each filing. If more than one docket or rulemaking number 
appear in the caption of this proceeding, commenters must submit two 
additional copies for

[[Page 33427]]

each additional docket or rulemaking number.

Paperwork Reduction Act

    This Third Further Notice contains proposed new and modified 
information collection(s). The Commission, as part of its continuing 
effort to reduce paperwork burdens, will invite the general public and 
the Office of Management and Budget (OMB) to comment on the information 
collection(s) contained in this NPRM in a future Federal Register 
document, as required by the Paperwork Reduction Act of 1995, Public 
Law 104-13.

Summary of Further Notice of Proposed Rulemaking

    Under the Commission's current rules, it limits routine treatment 
of earth station applications to those which meet both power level and 
antenna diameter requirements. In this NPRM, the Commission proposes 
combining its power level requirements and antenna diameter 
requirements into one off-axis EIRP requirement. The Commission 
anticipates that adoption of this proposal would give earth station 
operators more flexibility in their operations, and help expedite its 
review of some non-routine earth station applications.
    The Commission proposes prohibiting analog video services after a 
one-year transition period, unless one of the commenters in this 
proceeding proposes an off-axis EIRP envelope for analog video 
services, and provides a sufficient basis for its proposal.
    The Commission also invites comment on what revisions would be 
necessary to its rules providing protection from interference for earth 
stations, and the information requirements for earth station 
applications, in the event that it adopts an off-axis EIRP requirement 
for FSS earth stations. In addition, the Commission requests comment on 
whether to adopt a procedure for earth station applications that exceed 
any off-axis EIRP envelope it adopts, and if so, what that procedure 
should be.
    When two or more remote earth stations using a contention protocol 
transmit simultaneously using the maximum allowed EIRP density per 
carrier, those transmissions can ``collide.'' The resulting power level 
caused by these collisions at a received satellite exceeds the level 
specified in the Commission's rules during the time period of 
simultaneous transmission, although for no more than tens of 
milliseconds. The Commission found that it needs to revise its rules so 
as not to prohibit the use of contention protocols, and invited comment 
on a contention protocol rule that would increase the allowed power 
level as the probability of collision decreases, and would be 
consistent with its proposed off-axis EIRP requirements.
    Finally, the Commission invited comment on requiring VSAT operators 
planning to put a remote earth station in the Quiet Zone to coordinate 
with the National Radio Astronomy Observatory (NRAO).

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act (RFA),\1\ the 
Commission has prepared this Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities by 
the policies and rules proposed in this Third Further Notice. We 
request written public comments on this IRFA. Commenters must identify 
their comments as responses to the IRFA and must file the comments by 
the deadlines for comments on the Third Further Notice provided above. 
The Commission will send a copy of the Third Further Notice, including 
this IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration.\2\ In addition, the Third Further Notice 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, 
Pub. Law 104-121, Title II, 110 Stat. 847 (1996) (CWAAA).
    \2\ See 5 U.S.C. 603(a).
    \3\ See 5 U.S.C. 603(a).
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A. Need for, and Objectives of, the Proposed Rules

    The Telecommunications Act of 1996 requires the Commission in every 
even-numbered year beginning in 1998 to review all regulations that 
apply to the operations or activities of any provider of 
telecommunications service and to determine whether any such regulation 
is no longer necessary in the public interest due to meaningful 
economic competition.
    Our objective is to repeal or modify any rules in part 25 that are 
no longer necessary in the public interest, as required by section 11 
of the Communications Act of 1934, as amended. Specifically, this Third 
Further Notice proposes adoption of an off-axis EIRP envelope for earth 
stations in the Fixed Satellite Service (FSS). Adoption of this 
proposal would allow earth station operators more flexibility in their 
choice of power level and antenna size. In addition, the Third Further 
Notice invites comment on revising the rules governing very small 
aperture terminal (VSAT) networks, to allow VSAT operators to use 
contention protocols, which are not allowed under the current VSAT 
rules. However, the Third Further Notice also invites comment on 
creating certain operating parameters for VSAT networks that use 
contention protocols, so that they do not cause harmful interference to 
adjacent satellites.

B. Legal Basis

    The proposed action is supported by section 11 of the 
Communications Act of 1934, as amended, 47 U.S.C. 161.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules May Apply

    The RFA directs agencies to provide a description of, and, where 
feasible, an estimate of, the number of small entities that may be 
affected by the rules adopted herein.\4\ The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \5\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\6\ 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).\7\
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    \4\ 5 U.S.C. 604(a)(3).
    \5\ 5 U.S.C. 601(6).
    \6\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to the 
RFA, 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.'' 5 U.S.C. 601(3).
    \7\ Small Business Act, 15 U.S.C. 632 (1996).
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    1. Cable Services. The SBA has developed a small business size 
standard for Cable and Other Program Distribution, which consists of 
all such firms having $12.5 million or less in annual receipts.\8\ 
According to Census Bureau data for 1997, in this category there was a 
total of 1,311 firms that operated for the entire year.\9\ Of this 
total, 1,180 firms had annual receipts of under $10 million, and an 
additional fifty-two firms had receipts of $10 million to 
$24,999,999.\10\ Thus, under

[[Page 33428]]

this size standard, the majority of firms can be considered small.
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    \8\ 13 CFR 121.201, NAICS code 517510.
    \9\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 4, NAICS code 513220 (issued October 2000).
    \10\ Id.
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    The Commission has developed its own small business size standard 
for a small cable operator for the purposes of rate regulation. Under 
the Commission's rules, a ``small cable company'' is one serving fewer 
than 400,000 subscribers nationwide.\11\ Based on our most recent 
information, we estimate that there were 1,439 cable operators that 
qualified as small cable companies at the end of 1995.\12\ 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 cable companies that may 
be affected by the proposed rules.
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    \11\ 47 CFR 76.901(e). The Commission developed this definition 
based on its determinations that a small cable company is one with 
annual revenues of $100 million or less. See Implementation of 
Sections of the Cable Television Consumer Protection and Competition 
Act of 1992: Rate Regulation, MM Docket Nos. 92-266 and 93-215, 
Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC 
Rcd 7393, 7408-7409 ]] 28-30 (1995).
    \12\ Paul Kagan Assocs., Inc., Cable TV Investor, Feb. 29, 1996 
(based on figures for Dec. 30, 1995).
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    The Communications Act of 1934, as amended, also contains a size 
standard for a ``small cable operator,'' which is ``a cable operator 
that, directly or through an affiliate, serves in the aggregate fewer 
than one percent of all subscribers in the United States and is not 
affiliated with any entity or entities whose gross annual revenues in 
the aggregate exceed $250,000,000.''\13\ The Commission has determined 
that there are 67,700,000 subscribers in the United States.\14\ 
Therefore, an operator serving fewer than 677,000 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.\15\ Based on available data, we estimate that 
the number of cable operators serving 677,000 subscribers or less 
totals approximately 1,450.\16\ We do not request or collect 
information on whether cable operators are affiliated with entities 
whose gross annual revenues exceed $250,000,000,\17\ and therefore are 
unable to estimate accurately the number of cable system operators that 
would qualify as small cable operators under the definition in the 
Communications Act.
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    \13\ 47 U.S.C. 543(m)(2).
    \14\ See FCC Announces New Subscriber Count for the Definition 
of Small Cable Operator, Public Notice, 16 FCC Rcd 2225 (2001).
    \15\ 47 CFR 76.1403(b).
    \16\ See FCC Announces New Subscriber Count for the Definition 
of Small Cable Operator, Public Notice, 16 FCC Rcd 2225 (2001).
    \17\ 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 76.901(f) of the Commission's rules. See 47 CFR 
76.990(b).
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    2. Satellite Telecommunications. The rules proposed in this Third 
Further Notice would affect providers of satellite telecommunications 
services, if adopted. Satellite telecommunications service providers 
include satellite operators and earth station operators. The Commission 
has not developed a definition of small entities applicable to 
satellite operators. Therefore, the applicable definition of small 
entity is generally the definition under the SBA rules applicable to 
Satellite Telecommunications.\18\ This definition provides that a small 
entity is expressed as one with $12.5 million or less in annual 
receipts.\19\ 1997 Census Bureau data indicate that, for 1997, 273 
satellite communication firms had annual receipts of under $10 million. 
In addition, 24 firms had receipts for that year of $10 million to 
$24,999,990.\20\
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    \18\ ``This industry comprises establishments primarily engaged 
in providing point-to-point telecommunications services to other 
establishments in the telecommunications and broadcasting industries 
by forwarding and receiving communications signals via a system of 
satellites or reselling satellite telecommunications.'' Small 
Business Administration, NAICS code 517310.
    \19\ 13 CFR 120.121, NAICS code 517310.
    \20\ U.S. Census Bureau, 1997 Economic Census, Subject Service: 
Information, ``Establishment and Firm Size,'' Table 4, NAICS 513340 
(Issued Oct. 2000).
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    3. Auxiliary, Special Broadcast and other program distribution 
services. This service involves a variety of transmitters, generally 
used to relay broadcast programming to the public (through translator 
and booster stations) or within the program distribution chain (from a 
remote news gathering unit back to the station). The Commission has not 
developed a definition of small entities applicable to broadcast 
auxiliary licensees. Therefore, the applicable definition of small 
entity is the definition under the Small Business Administration (SBA) 
rules applicable to radio broadcasting stations,\21\ and television 
broadcasting stations.\22\ These definitions provide that a small 
entity is one with either $6.0 million or less in annual receipts for a 
radio broadcasting station or $12.0 million in annual receipts for a TV 
station.\23\ There are currently 3,237 FM translators and boosters, 
4913 TV translators.\24\ The FCC does not collect financial information 
on any broadcast facility and the Department of Commerce does not 
collect financial information on these auxiliary broadcast facilities. 
We believe, however, that most, if not all, of these auxiliary 
facilities could be classified as small businesses by themselves. We 
also recognize that most translators and boosters are owned by a parent 
station which, in some cases, would be covered by the revenue 
definition of small business entity discussed above. These stations 
would likely have annual revenues that exceed the SBA maximum to be 
designated as a small business (as noted, either $6.0 million for a 
radio station or $12.0 million for a TV station). Furthermore, they do 
not meet the Small Business Act's definition of a ``small business 
concern'' because they are not independently owned and operated.
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    \21\ 13 CFR 121.201, NAICS code 515112.
    \22\ 13 CFR 121.201, NAICS code 515120.
    \23\ 13 CFR 121.201.
    \24\ FCC News Release, Broadcast Station Totals as of September 
30, 1999, No. 71831 (Jan. 21, 1999).
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    4. Microwave Services. Microwave services include common 
carrier,\25\ private-operational fixed,\26\ and broadcast auxiliary 
radio services.\27\ 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 FRFA, we will use the SBA's 
definition applicable to cellular and other wireless communications 
companies--i.e., an entity with no more than 1,500 persons.\28\ We 
estimate that all of the Fixed Microwave licensees (excluding broadcast 
auxiliary licensees) would qualify as small entities under the SBA 
definition for radiotelephone (wireless) companies.
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    \25\ See 47 CFR part 101 et seq. (formerly, part 21 of the 
Commission's Rules).
    \26\ 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.
    \27\ Auxiliary Microwave Service is governed by part 74 of Title 
47 of the Commission's Rules. See 47 CFR part 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.
    \28\ See 13 CFR 121.201, NAICS code 517212.

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[[Page 33429]]

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    None of the proposed rules in this notice are intended to increase 
the reporting, recordkeeping and other compliance requirements of any 
telecommunications carrier. Adoption of an off-axis EIRP approach for 
the regulation of FSS earth stations would require changes to the 
application form for earth station licenses, those changes are not 
intended to be more or less burdensome than the current application 
requirements. Furthermore, those changes, if adopted, would not affect 
small business earth station operators any differently than other earth 
station operators.

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

    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: (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.
    In the Third Further Notice, the Commission considers a proposal 
from the Further Notice regarding VSAT networks using contention 
protocols, and also considers several proposals from commenters. The 
Commission rejects all those proposals as too restrictive for all earth 
station operators, including small business operators, and seeks 
comment on a new proposal which it believes to be less restrictive.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    None.

Ordering Clauses

    Accordingly, It is ordered, pursuant to sections 4(i), 7(a), 11, 
303(c), 303(f), 303(g), and 303(r) of the Communications Act of 1934, 
as amended, 47 U.S.C. 154(i), 157(a), 161, 303(c), 303(f), 303(g), 
303(r), that this Third Further Notice of Proposed Rulemaking is hereby 
adopted.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking, including the Initial 
Regulatory Flexibility Analysis, to the Chief, Counsel for Advocacy of 
the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-11172 Filed 6-7-05; 8:45 am]
BILLING CODE 6712-01-P