[Federal Register Volume 83, Number 229 (Wednesday, November 28, 2018)]
[Rules and Regulations]
[Pages 61134-61136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25913]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[MB Docket No. 17-105; FCC 18-150]


Procedural Revisions to the Filing of Open Video System 
Certification Applications

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission (FCC 
or Commission) modernizes the Open Video System (OVS) filing procedures 
by specifying that OVS applications be required to send certification 
applications, including FCC Form 1275 and all attachments, as well as 
notices of intent, via electronic email (email) delivery to a 
designated Commission email address. The FCC also eliminates certain 
existing requirements associated with the rule. Parties wishing to 
respond to a FCC Form 1275 filing must submit comments or oppositions 
via electronic mail (email).

DATES: Effective date: November 28, 2018.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Sonia Greenaway Mickle, [email protected], of 
the Policy Division, Media Bureau, (202) 418-1419.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order, 
FCC 18-150, adopted and released on October 25, 2018. The full text of 
this document is available for public inspection and copying during 
regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street SW, Room CY-A257, 
Washington, DC 20554. This document will also be available via ECFS at 
http://fjallfoss.fcc.gov/ecfs/. Documents will be available 
electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Copies 
of the materials can be obtained from the FCC's Reference Information 
Center at (202) 418-0270. Alternative formats are available for people 
with disabilities (Braille, large print, electronic files, audio 
format), by sending an email to [email protected] or calling the 
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Synopsis

    1. The Commission in this Order establishes electronic filing 
procedures for parties seeking to operate an Open Video System (OVS) to 
submit a certification application and notice of intent. By replacing 
our current paper filing requirements for OVS applications and notices 
with an electronic filing system, this Order modernizes our 
regulations, reduces burdens for OVS applicants, and increases the 
efficiency of the Commission's processing of applications.
    2. The Telecommunications Act of 1996 added section 653 to the 
Communications Act of 1934, as amended (the Act), establishing OVS as a 
new framework for entry into the multichannel video programming 
distribution marketplace.\1\ Any party

[[Page 61135]]

seeking to operate an OVS must file an application to be certified as 
an OVS operator on FCC Form 1275 \2\ as well as a ``notice of intent'' 
to establish an OVS.\3\ At present, parties cannot file these documents 
electronically. Instead, they must file paper copies of both documents 
with the Office of the Secretary and the Office of the Chief of the 
Media Bureau \4\ and file the certification application on a computer 
disk. The documents are then delivered to the Media Bureau staff who 
process and review them. After a Form 1275 certification application is 
processed by Media Bureau staff, a public notice is published on the 
Commission's website. Comments or oppositions to certification 
applications must be filed within five calendar days of the date the 
application is received at the Commission.\5\ Pursuant to Section 653, 
the Commission must act to approve or disapprove any OVS certification 
request within ten days of its receipt.\6\ To implement this statutory 
requirement, the Commission's rules provide that ``[i]f the Commission 
does not disapprove the certification application within ten days after 
receipt of an applicant's request, the certification application will 
be deemed approved.'' \7\ Media Bureau staff also provide public notice 
of OVS notices of intent.\8\
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    \1\ Telecommunications Act of 1996, Public Law 104-104, 110 
Stat. 56, approved February 8, 1996. An open video system is similar 
to a cable system in that it is a facilities-based system for the 
delivery of video programming. Unlike cable systems, however, open 
video systems must set aside up to two thirds of their channel 
capacity for the delivery of independent programming of third 
parties. The OVS framework was established to provide competition 
and lower barriers to entry in the provision of video programming to 
consumers. See Implementation of Section 302 of the 
Telecommunications Act of 1996, Open Video Systems, 11 FCC Rcd 
18223, 18227, para. 2-3 (1996) (Second Report and Order). The 
approach developed for the OVS model provides streamlined 
regulations and reduced regulatory burdens. See 47 U.S.C. 573(c).
    \2\ 47 U.S.C. 573(a)(1); 47 CFR 76.1502. The Form 1275 includes 
facts and representations regarding the OVS applicant and system 
information, including the anticipated communities or area to be 
served upon completion of the open video system. See https://transition.fcc.gov/Forms/Form1275/1275.pdf.
    \3\ 47 CFR 76.1503(b)(1). In order to commence the channel 
allocation process, an OVS operator is required to file a notice of 
intent with the Commission. A notice of intent provides details 
regarding the operator's projected channel capacity, service area, 
and other technical information about the operator's system. Second 
Report and Order, 11 FCC Rcd at 18252, para. 45.
    \4\ See Second Report and Order, 11 FCC Rcd at 18247, para. 34 
(1996) (stating that ``hard copies of the [Form 1275] certification 
forms be filed with the Office of the Secretary, Federal 
Communications Commission''); see also id. at Appendix C (``A hard 
copy of FCC Form 1275 and all attachments must be filed with the 
Office of the Secretary, Federal Communications Commission . . . and 
with the Office of the Bureau Chief, Cable Services Bureau''). The 
Cable Services Bureau was superseded by the Media Bureau in 2002. 
See Establishment of the Media Bureau and Other Organizational 
Changes, Order, 17 FCC Rcd 4510 (2002); see also 47 CFR 
76.1503(b)(1) (stating that Notices of Intent must be filed with the 
Secretary of the Federal Communications Commission and directed to 
the Media Bureau). Some of the specific filing requirements do not 
appear in the OVS rules, but in other locations such as in the 
instructions for FCC Form 1275.
    \5\ 47 CFR 76.1502(e)(1).
    \6\ 47 U.S.C. 573(a)(1).
    \7\ 47 CFR 76.1502(f).
    \8\ 47 CFR 76.1503(b)(1).
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    3. Because electronic filing is a more modern and efficient way for 
parties to file and for Commission staff to receive applications, we 
conclude that the OVS paper filing requirements have outlived their 
usefulness. The Commission has moved to electronic filing for other 
applications and filings.\9\ Moreover, the nature of the OVS 
application process necessitates immediate receipt by appropriate 
staff, which can better be assured via electronic means. On several 
recent occasions, tracking down OVS applications mailed to Commission 
headquarters has been time consuming for staff and has caused 
processing delays. In addition, the requirement to file the 
certification application on a computer disk is an unnecessary, 
duplicative, and outdated mode of information delivery. Given the very 
short deadline by which the Commission must act on OVS certification 
applications, processing delays and outdated requirements have proven 
to be problematic for both the staff of the Media Bureau and OVS 
applicants.\10\
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    \9\ See, e.g., Amendment of Certain of the Commission's Part 1 
Rules of Practice and Procedure Relating to the Filing of Formal 
Complaints Under Section 208 of the Communications Act and Pole 
Attachment Complaints Under Section 224 of the Communications Act, 
Order, 79 FR 73844, Dec. 12, 2014, 29 FCC Rcd 14078 (2014).
    \10\ In at least one recent case, an OVS application was 
received by Media Bureau staff weeks after it was received at the 
Commission. The Media Bureau failed to have an opportunity to place 
the application on Public Notice or to review and assess the 
application within the ten-day timeframe specified by the 
Communications Act and the Commission's rules, and the application 
was deemed approved by operation of law. After reviewing the OVS 
certification application, it was deemed deficient, requiring the 
Media Bureau to adopt a sua sponte Order on Reconsideration revoking 
the OVS certification. See Digital Broadcasting Certification to 
Operate an Open Video System, 32 FCC Rcd 3149 (MB 2017).
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    4. Therefore, we modify the procedural rules for the filing of OVS 
certification applications and notices of intent to make the process 
less burdensome for applicants and to ensure that these documents are 
timely received by Commission staff.\11\ We conclude that the most 
efficient process is for OVS applicants to send certification 
applications, including FCC Form 1275 and all attachments, as well as 
notices of intent, via electronic mail (email) delivery to a designated 
Commission email address.\12\ Specifically, under the rule we adopt 
here, when filing a certification application or notice of intent, 
applicants will be required to send all documents to the following 
email address: [email protected]. Comments or oppositions also will be 
required to be sent via email to this same designated email 
address.\13\ The rule changes in this Order do not affect the 
requirement that the certification application must be served on all 
local communities in which the applicant intends to operate.\14\ We 
note that the rule changes adopted herein involve a non-substantive 
change to an approved information collection for which we must obtain 
Office of Management and Budget (OMB) approval under the Paperwork 
Reduction Act (PRA) before the rule changes can take effect. To 
expedite the ability of parties and staff to utilize these new 
procedures, we make these rule revisions effective upon publication of 
the Order in the Federal Register. The requirement that publication of 
a ``substantive'' rule be made at least 30 days before its effective 
date does not apply to the procedural rules adopted in this Order.\15\
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    \11\ The rule revisions adopted in this Order and set forth in 
the Final Rules section are procedural in nature. Because they 
modify existing agency procedural rules, notice and comment 
procedures are not required under the Administrative Procedure Act. 
See 5 U.S.C. 553(b) (stating that notice and comment requirements do 
not apply to rules of agency procedure); Amendment of Certain of the 
Commission's Part 1 Rules of Practice and Procedure and Part 0 Rules 
of Commission Organization, Notice of Proposed Rulemaking, 75 FR 
14401, March 25, 2010, 25 FCC Rcd 2430, 2430, para. 1 n.1; 2434, 
para. 11 n.15; 2436, para. 16 n.23 (2010); Amendment of Certain of 
the Commission's Part 1 Rules of Practice and Procedure and Part 0 
Rules of Commission Organization, Report and Order, 76 FR 24383, May 
2, 2011, 26 FCC Rcd 1594, 1598, para. 10 n.23; 1600, para. 15 n.44 
(2011) (notice and comment is not required for procedural changes).
    \12\ Because the certification application will be 
electronically delivered to a designated OVS email box, a specific 
cover sheet identifying the filing as an ``OVS Certification 
Application'' and ``Attention: Media Bureau'' is no longer 
necessary. Therefore, we are eliminating the requirement that a 
cover sheet be filed with a certification application, comments, or 
oppositions. See 47 CFR 76.1502(d)(2), (e)(2). We also are 
eliminating the cover sheet requirements for notices of intent. See 
47 CFR 76.1503(b)(1). In addition, computer disks are no longer 
required to be filed.
    \13\ See the Final Rules section. As under the current rule, 
comments or oppositions to a certification must be served on the 
party that filed the certification. 47 CFR 76.1502(e)(1).
    \14\ See 47 CFR 76.1502(d)(1); see also 47 CFR 76.1502(f) 
(requiring that, if an application is disapproved, a refiled 
application must be served on any objecting party or parties and on 
all local communities in which the applicant intends to operate); 47 
CFR 76.1503(b)(1)(viii) (requiring that a notice of intent be served 
on all local franchising authorities).
    \15\ See 5 U.S.C. 553(d)(3) (stating that publication of a 
``substantive'' rule shall be made not less than 30 days before its 
effective date, except . . . as otherwise provided by the agency for 
good cause found and published with the rule). We anticipate that 
these new procedures will significantly decrease the likelihood that 
a certification application will fail to reach Media Bureau staff 
prior to the time that it is deemed approved. We likewise expect 
that, since the new procedures will decrease filing burdens on 
applicants and other filers, no filing party or opponent of an OVS 
application is likely to be prejudiced by the rules taking effect 
upon publication of the Order in the Federal Register.

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[[Page 61136]]

    5. Paperwork Reduction Act. This document contains a non-
substantive and non-material modification of information collection 
requirements that were previously reviewed and approved by OMB pursuant 
to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13.\16\ 
Filing burdens are reduced with the use of email filings to the 
Commission.
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    \16\ See OMB, Notice of Office of Management and Budget Action, 
ICR Reference No. 201604-3060-006, OMB Control No. 3060-0700 (May 
23, 2016), https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201604-3060-006# (select the ``Retrieve Notice of 
Action (NOA)'' hyperlink); 5 CFR 1320.5(g) (stating that an agency 
may not make ``a substantive or material modification to a 
collection of information'' after such collection of information has 
been approved by OMB, unless the modification has been submitted to 
OMB for review and approval under 5 U.S.C. part 1320).
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    6. Congressional Review Act. The Commission will send a copy of 
this Order to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
    7. Accordingly, it is ordered that part 76 of the Commission's 
rules is amended, as set forth in the Final Rules section, pursuant to 
the authority contained in sections 4(i), 303(r), and 653 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 
573.
    8. It is further ordered that this Order and the rule changes 
adopted herein shall be effective upon publication in the Federal 
Register.

List of Subjects in 47 CFR Part 76

    Administrative practice and procedure, Cable television, Reporting 
and recordkeeping requirements.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 76 as follows:

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
1. The authority citation for part 76 continues to read as follows:

    Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.


0
2. Amend Sec.  76.1502 by revising paragraphs (d), (e)(2), and (f) to 
read as follows:


Sec.  76.1502  Certification.

* * * * *
    (d)(1) All open video system certification applications, including 
FCC Form 1275 and all attachments, must be filed via electronic mail 
(email) at the following address: [email protected]. The subject line shall 
read ``Open Video System Certification Application.'' Open video system 
certification applications will not be considered properly filed unless 
filed as described in this paragraph (d).
    (2) On or before the date an FCC Form 1275 is filed with the 
Commission, the applicant must serve a copy of its filing on all local 
communities identified pursuant to paragraph (c)(6) of this section and 
must include a statement informing the local communities of the 
Commission's requirements in paragraph (e) of this section for filing 
oppositions and comments. Service by mail is complete upon mailing, but 
if mailed, the served documents must be postmarked at least 3 days 
prior to the filing of the FCC Form 1275 with the Commission.
    (e) * * *
    (2) Parties wishing to respond to a FCC Form 1275 filing must 
submit comments or oppositions via electronic mail (email) at the 
following address: [email protected]. The subject line shall read ``Open 
Video System Certification Application Comments.'' Comments and 
oppositions will not be considered properly filed unless filed as 
described in this paragraph (e).
    (f) If the Commission does not disapprove the certification 
application within ten days after receipt of an applicant's request, 
the certification application will be deemed approved. If disapproved, 
the applicant may file a revised certification or refile its original 
submission with a statement addressing the issues in dispute in 
accordance with the procedures described in paragraph (d) of this 
section. Such refilings must be served on any objecting party or 
parties and on all local communities in which the applicant intends to 
operate pursuant to instructions in paragraph (d)(2) of this section. 
The Commission will consider any revised or refiled FCC Form 1275 to be 
a new proceeding and any party who filed comments regarding the 
original FCC Form 1275 will have to refile their original comments if 
they think such comments should be considered in the subsequent 
proceeding.

0
3. Amend Sec.  76.1503 by revising paragraph (b)(1) introductory text 
to read as follows:


Sec.  76.1503  Carriage of video programming providers on open video 
systems.

* * * * *
    (b) * * *
    (1) Notification. An open video system operator shall file a 
``Notice of Intent'' to establish an open video system, which the 
Commission will release in a Public Notice. The Notice of Intent must 
be filed via electronic mail (email) at the following address: 
[email protected]. The subject line shall read ``Open Video System Notice of 
Intent.'' An Open Video system notice of intent will not be considered 
properly filed unless filed as described in this paragraph (b). This 
Notice of Intent shall include the following information:
* * * * *
[FR Doc. 2018-25913 Filed 11-27-18; 8:45 am]
BILLING CODE 6712-01-P