[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Rules and Regulations]
[Pages 70902-70904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29513]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[CG Docket No. 11-99; DA 11-1833]


Termination of Certain Proceedings as Dormant

AGENCY: Federal Communications Commission.

ACTION: Final rule; termination of proceedings.

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SUMMARY: In this document, the Commission, via the Consumer and 
Governmental Affairs Bureau (CGB), terminates, as dormant, certain 
docketed Commission proceedings. Termination of these inactive 
proceedings furthers the Commission's organizational goals of 
increasing the efficiency of its decision-making, modernizing the 
agency's processes in the digital age, and enhancing the openness and 
transparency of Commission proceedings for practitioners and the 
public.

DATES: Effective November 16, 2011.

ADDRESSES: Federal Communications Commission, 445 12th Street SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Dorothy Stifflemire, Consumer and 
Governmental Affairs Bureau at (202) 418-7349, or email: 
[email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Order, Termination of Certain Proceedings as Dormant, document DA 11-
1833, adopted November 1, 2011 and released on November 1, 2011, in CG 
Docket No. 11-99. On June 3, 2011, the Commission sought comment on 
whether certain listed docketed Commission proceedings should be 
terminated as dormant. See 76 FR 35892, June 20, 2011. The full text of 
document DA 11-1833 and copies of any subsequently filed documents in 
this matter will be available for public inspection and copying during 
regular business hours at the FCC Reference Information Center, Portals 
II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document 
DA 11-1833 and copies of subsequently filed documents in this matter 
may also be purchased from the Commission's duplicating contractor, 
Best Copying and Printing, Inc. (BCPI), at Portals II, 445 12th Street 
SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI at 
its web site, www.bcpiweb.com, or by calling (202) 488-5300. Document 
DA 11-1833 can also be downloaded in Word or Portable Document Format 
(PDF) at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-11-1833A1.doc.
    To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an email to [email protected] or call the Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Final Paperwork Reduction Act of 1995 Analysis

    This document does not contain information collection requirements 
subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In 
addition, therefore, it does not contain any information collection 
burden for small business concerns with fewer than 25 employees, 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4).

Synopsis

    1. On February 4, 2011, the Commission released Amendment of 
Certain of the Commission's Part 1 Rules of Practice and Procedure and 
Part 0 Rules of Commission Organization, Report and Order, FCC 11-16, 
in CG Docket No. 11-44, published at 76 FR 24383, May 2, 2011 
(Procedure Order), which revised portions of its Part 1--Practice and 
Procedures and Part 0--Organizational rules. The amendment of Sec.  
0.141 of the Commission's organizational rules delegated authority to 
the Chief, CGB to conduct periodic review of all open dockets with the 
objective of terminating those that were inactive. The Commission 
stated that termination of such proceedings also will include the 
dismissal as moot of any pending petition, motion, or other request for 
relief in the terminated proceeding that is procedural in nature or 
otherwise does not address the merits of the proceeding. On June 3, 
2011, CGB released Termination of Certain Proceedings as Dormant, 
Public Notice, DA 11-992, CG Docket No. 11-99, published at 76 FR 
35892, June 20, 2011, (Termination Public Notice) which identified 
those dockets that could potentially be terminated and provided 
interested parties the opportunity to file comments on these proposed 
terminations. Based upon CGB's review of the six comments received in 
response to the Termination Public Notice, and for the reasons given 
below, CGB hereby terminates the proceedings that are listed in the 
Attachment to DA 11-1833, which were previously listed in DA 11-992. 
See http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-11-1833A1.doc.
    2. Commenters request that the following seven dockets remain open: 
RM-9246, RM-9682, RM-10995, RM-5528, RM-10412, RM-9395, and RM-10165. 
REC Networks asks that CGB maintain Amendment of the Rules to Establish 
Event Broadcast Stations, Media Bureau Petition for Rulemaking, RM-9246 
(March 19, 1998); Request Amendment of the Commission's Rules to Create 
a New Indoor Sports and Entertainment Radio Service, Media Bureau 
Petition for Rulemaking, RM-9682 (July 8, 1999); and In the Matter of 
the Commission's Rules to Provide for Displacement Relief for FM 
Translator Stations, Media Bureau Petition for Rulemaking, RM-10995 
(June 2, 2004) that relate to LPFM and FM translator services. However, 
on July 12, 2011, the Commission released Creation of a Low Power Radio 
Service; Amendment of Service and Eligibility Rules for FM Broadcast 
Translator Stations, MM Docket No. 99-25, MB Docket No. 07-172, Third 
Further Notice of Proposed Rulemaking in two dockets that relate 
specifically to those services and, given the common subject matter, 
the materials in each of the proceedings that REC Networks seeks to 
keep open may be refiled in those two dockets. For this reason, CGB 
denies REC Networks' request.
    3. Donald J. Schellhardt and Nickolaus E. Leggett request that 
Request to Consider Requirements for Shielding and By Passing Civilian 
Communications Systems from Electromagnetic Pulse (EMP) Effects, Common 
Carrier Bureau Petition for Rulemaking, RM-5528 (October 22, 1991) 
remain open. Mr. Leggett also asks that the Commission keep open 
Amendment of the Commission's Rules Regarding Field Repair Requirements 
for Commercially-built Transmitter and Transceiver Equipment for the 
Amateur Radio Service, Petition for Rulemaking, RM-10412 (April 11, 
2002). However, both of these requests were denied by previous 
Commission actions and should have already been closed; therefore CGB 
rejects the requests to keep them open.
    4. Mr. Leggett also argues that the Commission should not publish 
documents without specific comment dates, rather than stating that

[[Page 70903]]

``comments are due X days after publication in the Federal Register.'' 
The Commission initiated the subject proceeding as a part of its 
commitment to improving docket management procedures. To that end, DA 
11-1833 terminates almost 1,000 pending but inactive proceedings. 
Additionally, going forward, the Commission will monitor and 
expeditiously terminate any proceeding in which an order with no 
further notice of proposed rulemaking has been released and no petition 
for reconsideration of the order has been timely filed. Regarding Mr. 
Leggett's concern that documents are published before the comment dates 
are established in the Federal Register, such dates are readily 
available in EDOCS once the document has been published, and commenters 
may always wait for this publication to submit their filings in the 
record. However, CGB will continue to look for ways to increase 
participation in our proceedings by the public by streamlining the 
comment process and making deadline and other submission information 
more readily available.
    5. Mr. Jonathan Hardis requests that Amendment of the Commission's 
Rules to Permit the Introduction of Digital Audio Broadcasting in the 
AM and FM Broadcast Services, Mass Media Bureau Petition for 
Rulemaking, RM-9395 (November 6, 1998) remain open, even though he 
acknowledges that there has been no activity in the proceeding in over 
11 years and none is expected. Mr. Hardis maintains that the Docket may 
contain material that is related to ongoing MM Docket No. 99-325. See 
Digital Audio Broadcasting Systems and Their Impact on the Terrestrial 
Radio Broadcast Service, FCC 07-33, Second Report and Order, published 
at 73 FR 3652, January 22, 2008. To address this concern, the records 
in terminated proceedings will remain part of the Commission's official 
record, and the various pleadings, orders and other documents in these 
dockets will continue to be accessible to the public, post-termination. 
Since docket RM-9395 has had no activity in over a decade, CGB finds 
that it is dormant and rejects Mr. Hardis's request to keep it open.
    6. ARRL, formerly known as the American Radio Relay League, 
Incorporated, objects to the dismissal of its Petition for Rulemaking, 
Amendment of Part 2 and Part 97 of the Commission's Rules Regarding the 
2300-2305 MHz Band, RM-10165, in which ARRL requested that the Amateur 
Radio Service allocation status in the 2300-2305 MHz band be changed 
from secondary to primary. ARRL originally filed its Petition on May 7, 
2001, and the Commission placed it on Public Notice on July 2, 2001. 
See Consumer Information Bureau Reference Information Center Petitions 
for Rulemaking Filed, Report No. 2491 (July 2, 2001). On October 10, 
2002, the Commission's Office of Engineering and Technology (OET) 
issued Allocation of Electromagnetic Spectrum Pursuant to Title III of 
the Balanced Budget Act of 1997 and Amendment of Part 90 of the Rules 
to Establish a New Subpart Y--Personal Location and Monitoring Service, 
RM-9797; Amendment of Parts 2 and 97 of the Commission's Rules 
Regarding the 2300-2305 MHz Band, RM-10165; Co-Primary Allocation of 
2300-2305 MHz to the Amateur Radio Service and the Miscellaneous 
Wireless Communications Service, RM-10166, Order, DA 02-2587 (OET 
Order) dismissing ARRL's Petition.
    7. ARRL claims that the OET Order did not resolve the issue of the 
allocation status of the Amateur Radio Service in the 2300-2305 MHz 
band, or ARRL's request for a primary allocation in that segment. ARRL 
maintains that the status of the Amateur Radio Service allocation at 
2300-2305 MHz remains relevant because of actions taken by the 
Commission with respect to an adjacent band at 2305-2320 MHz; because 
ARRL has filed a Petition for Reconsideration regarding the actions 
taken in the 2305-2320 MHz band; and due to other unrelated proposals 
for use of the 2300-2305 MHz band.
    8. Regarding the 2305-2320 MHz band, in May 2010, the Commission 
issued an Order that amended certain rules governing the Wireless 
Communications Service (WCS) to enable WCS licensees to provide mobile 
broadband services (WCS Order). In doing so, the Commission 
acknowledged that out-of-band emissions that could result from expanded 
use of WCS mobile devices in the 2305-2320 MHz band have the potential 
to increase interference to amateur radio operations in the 2300-2305 
MHz band. During the course of the WCS proceeding, however, ARRL did 
not file any comments raising the issue of whether the Amateur Radio 
Service allocation status in the 2300-2305 MHz band should be modified. 
Although ARRL filed a Petition for Reconsideration of the WCS Order, it 
did not request a change in the status of the Amateur Radio Service 
allocation at 2300-2305 MHz in that filing. In its Reply Comments to 
the Opposition to its WCS Petition, ARRL specifically stated that it 
was not asking the Commission to revisit any aspect of its past 
decisions regarding that status.
    9. CGB finds that the RM-10165 proceeding concerning ARRL's request 
to change the status of the Amateur Radio Service to primary in the 
2300-2305 MHz band should be terminated, since its request was 
dismissed and ARRL did not file a petition for reconsideration of that 
dismissal.
    10. Finally, Mr. James Whedbee suggests that termination of 
proceedings for dormancy is not just cause for the termination of a 
proceeding on the merits. Accordingly, he maintains that the 
Administrative Procedure Act may be violated by the dismissal of 
dormant dockets that are not otherwise obsolete or subsumed, and 
recommends that CGB leave open those docketed proceedings which are 
``merely dormant for want of sufficiency of notice of their impending 
termination.''
    11. In the Amendment of Certain of the Commission's Part 1 Rules of 
Practice and Procedure and Part 0 Rules of the Commission Organization, 
Notice of Proposed Rulemaking, released on February 22, 2010, published 
at 75 FR 14401, March 25, 2010, the Commission proposed, inter alia, 
that Sec.  0.141 of its rules be amended to delegate authority to the 
Chief, CGB to terminate dormant proceedings, and invited public comment 
on the proposed termination process. After due consideration of the 
comments filed in that proceeding, the change to the rule, which was 
supported in the comments received, was duly adopted in the Procedure 
Order.
    12. Mr. Whedbee had an opportunity but failed to file his objection 
to the proposed amendment to Sec.  0.141 of the Commission rules. 
Because the merits of that final action are outside of the scope of the 
instant proceeding, CGB rejects his argument as an untimely petition 
for reconsideration. CGB notes that the Termination Public Notice 
provided clear notice of the intention to terminate for dormancy all of 
the proceedings that are the subject of DA 11-1833, and gave any 
interested party the opportunity to substantively comment on each such 
possible termination. As noted above, each such argument specific to a 
particular proceeding or proceedings that has been submitted has been 
fully considered herein.

Regulatory Flexibility Act

    13. The Commission's action does not require notice and comment and 
therefore is not subject to the Regulatory Flexibility Act of 1980, as 
amended. See 5 U.S.C. 601(2), 603(a). The Commission nonetheless notes 
that it anticipates that the rules adopted will not have a significant 
economic impact on a substantial number of small entities. As described 
above, the Commission

[[Page 70904]]

primarily changes its own internal procedures and organizations and 
does not impose substantive new responsibilities on regulated entities. 
There is no reason to believe termination of certain dormant 
proceedings would impose significant costs on parties to Commission 
proceedings. To the contrary, the Commission takes the actions herein 
with the expectation that overall they will make dealings with the 
Commission quicker, easier and less costly for entities of all size.

Congresssional Review Act

    The Commission will not send a copy of document DA 11-1833 pursuant 
to the Congressional Review Act, see 5 U.S.C. 801 (a)(1)(A) because the 
Commission is not adopting, amending, revising, or deleting any rules.

Ordering Clauses

    Pursuant to sections 1, 4(i), and 4(j), of the Communications Act 
of 1934, as amended, 47 U.S.C. 154(i), and (j) and Sec.  0.141 of the 
Commission rules, the proceedings listed in the Attachment to DA 11-
1833, which can be downloaded in Word or Portable Document Format (PDF) 
at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-11-1833A1.doc, are terminated.

Federal Communications Commission.
Joel Gurin,
Chief, Consumer and Governmental Affairs Bureau.
[FR Doc. 2011-29513 Filed 11-15-11; 8:45 am]
BILLING CODE 6712-01-P