[Federal Register Volume 85, Number 98 (Wednesday, May 20, 2020)]
[Rules and Regulations]
[Pages 30627-30635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08250]


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

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 11

[EB Docket No. 04-296; PS Docket No. 15-94; FRS 16653]


Review of the Emergency Alert System

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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

SUMMARY: In this document, the Federal Communications Commission (FCC 
or Commission) partially grants a petition for partial reconsideration 
of the

[[Page 30628]]

Emergency Alert System (EAS) testing requirements that apply to 
Satellite Digital Audio Radio Service (SDARS) providers filed by XM 
Radio Inc. (XM), as subsequently modified by XM's successor in 
interest, Sirius Satellite Radio Inc. (Sirius XM), and amends the EAS 
testing requirements that apply to SDARS providers.

DATES: This rule is effective June 19, 2020.

FOR FURTHER INFORMATION CONTACT: David Munson, Policy and Licensing 
Division, Public Safety and Homeland Security Bureau, at (202) 418-
2921, or by email at [email protected]. For additional information 
concerning the information collection requirements contained in this 
document, send an email to [email protected] or contact Nicole Ongele, Office 
of Managing Director, Performance Evaluation and Records Management, 
202-418-2991, or by email to [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration (Order) in EB Docket No. 04-296, PS Docket No. 15-
94, FCC 19-57, adopted on June 25, 2019, and released on June 27, 2019. 
The full text of this document is available for inspection and copying 
during normal business hours in the FCC Reference Center (Room CY-
A257), 445 12th Street SW, Washington, DC 20554. The full text may also 
be downloaded at: www.fcc.gov.

Synopsis

    1. In the Order, the Commission partially grants a petition for 
partial reconsideration of the EAS First Report and Order (First Report 
and Order) in EB Docket No. 04-296, 70 FR 71023, 71072 (Nov. 25, 2005), 
filed by XM (the ``XM Petition''), which was subsequently modified by 
supplemental filings made by Sirius XM, and adopts changes to its Part 
11 EAS rules governing test requirements to harmonize the EAS testing 
requirements that apply to SDARS providers with the testing 
requirements applied to Direct Broadcast Satellite (DBS) providers.

I. Background

A. The EAS

    2. The EAS is a national public warning system through which alerts 
concerning impending emergencies are distributed to the public by EAS 
Participants. The primary purpose of the EAS is to provide the 
President with ``the capability to provide immediate communications and 
information to the general public at the national, state and local 
levels during periods of national emergency.'' The EAS also is used by 
state and local governments, as well as the National Weather Service 
(NWS), to distribute alerts.
    3. The EAS uses a broadcast-based, hierarchical alert message 
distribution architecture to deliver alerts to the public. Using this 
system, the originator of an alert message at the local, state or 
national level encodes (or arranges to have encoded) a message in the 
EAS Protocol, a series of numeric codes that provides basic information 
about the alert. When the transmission of an alert encoded in the EAS 
Protocol is received by the EAS equipment of EAS Participants assigned 
to monitor the transmission of the originating broadcaster, the encoded 
EAS header code tones activate the EAS equipment, which then decodes 
the numeric codes in the original alert message, re-encodes that 
information, and broadcasts anew the EAS header code tones, attention 
signal and audio message to the public. This process is repeated as the 
alert is rebroadcast to other downstream monitoring EAS Participants 
until all affected EAS Participants have received the alert and 
delivered it to the public. This process of EAS alert distribution 
among EAS Participants is often referred as the ``daisy chain'' 
distribution architecture.
    4. To ensure that the EAS system and EAS Participants' EAS 
equipment will function properly, and that alerts will be accurately 
and consistently distributed, delivered to the public, the EAS rules 
contain national, monthly and weekly testing requirements that apply to 
different services, including broadcast, cable, DBS and SDARS. The EAS 
weekly test generally involves EAS Participant transmission of EAS 
header and End of Message (EOM) codes generated internally within their 
EAS equipment. For the EAS monthly test, a test alert message, composed 
of EAS header codes, an attention signal, test audio script and the EOM 
code, is transmitted from key sources identified in the State EAS Plan, 
which in turn are monitored by EAS Participants, who retransmit the 
test alert as they would an actual EAS alert. EAS Participants are 
required to determine the cause of any failure to receive the monthly 
test or weekly activation, and make appropriate entries in their 
station logs or facility records.

B. The EAS First Report and Order

    5. In the EAS First Report and Order, the Commission extended EAS 
obligations to various digital services, including SDARS. SDARS, 
commonly known as ``satellite radio,'' is ``[a] radiocommunication 
service in which audio programming is digitally transmitted by one or 
more space stations directly to fixed, mobile, and/or portable 
stations, and which may involve complementary repeating terrestrial 
transmitters, telemetry, tracking and control facilities.'' More 
colloquially, SDARS is primarily a satellite-delivered service in which 
digital radio programming is sent directly from satellites to 
subscriber receivers either at a fixed location or in motion.
    6. With respect to testing requirements, although the Commission 
acknowledged that SDARS did not (and could not) supply local 
programming and EAS alerts, it nonetheless imposed the same testing 
regime as that applied to broadcasters, requiring ``SDARS licensees to 
test their ability to receive and distribute EAS messages in the same 
manner required of other EAS participants in section 11.61 of our rules 
and to keep records of all tests.'' Accordingly, SDARS licensees were 
required to adhere to the general monthly test requirements that apply 
to most other EAS Participant services. With respect to weekly test 
requirements, the Commission required that ``SDARS providers must 
conduct tests of the EAS Header and EOM codes at least once a week at 
random days and times on all channels.'' By contrast, the Commission 
adopted less burdensome testing requirements for DBS providers on 
grounds that performing such tests on all channels simultaneously on an 
inherently nationwide platform could pose technical challenges. More 
specifically, whereas SDARS was required to conduct weekly and monthly 
tests on all channels, the Commission required that DBS providers need 
only log receipt of other EAS Participants' weekly tests, and that 
monthly tests ``be performed on 10% of all channels monthly (excluding 
local-into-local channels for which the monthly transmission tests are 
passed through by the DBS provider), with channels tested varying from 
month to month, so that over the course of a given year, 100% of all 
channels are tested.''

C. The Petition

    7. As originally filed, the XM Petition requested that the 
Commission modify the SDARS EAS test requirements to more accurately 
reflect the national nature of the service. The Petition first 
requested that the EAS testing rules for SDARS be revised to require 
(i) a yearly test that would be transmitted on every channel 
simultaneously, and (ii) weekly and monthly tests that would be 
distributed on XM's Instant Traffic, Weather and Alert channels. XM 
argued that requiring weekly and monthly tests

[[Page 30629]]

on all of its channels ``will mislead subscribers to believe that 
satellite radio operators transmit state and local EAS alerts on all 
channels, when in fact state and local EAS alerts will only be 
transmitted on those XM Instant Traffic, Weather & Alert channels on 
which XM has informed subscribers that it will offer state and local 
EAS messages.''
    8. On July 31, 2014, Sirius XM submitted an ex parte letter in 
which it indicated that ``[t]he passage of time and changed 
circumstances since [XM] initially filed the [XM Petition] has also 
simplified the relief that is needed.'' Specifically, Sirius XM 
requested that the Commission modify the testing rules for SDARS to 
make them comparable to those applied to DBS providers. In justifying 
this request, Sirius XM contended that the requirement to carry weekly 
and monthly EAS tests on all Sirius XM channels ``has imposed an 
excessive, disproportionate, and unnecessary burden on SiriusXM and its 
subscribers.'' To that end, Sirius XM observed that ``[u]nlike other 
multichannel services such as cable television, the satellite radio 
service rarely has natural breaks in programming for inserting a test, 
and never has uniform breaks that apply to all of our approximately 150 
channels.'' Sirius XM also contended that weekly testing of its system 
is ``unnecessary and duplicative,'' arguing, among other things, that 
it is ``largely superseded by FEMA's own testing of [Sirius XM's EAS 
encoder/decoder] which is central to our EAS capabilities,'' and 
achievable through logging requirements, ``as [with] DBS.''
    9. On June 5, 2017, Sirius XM submitted a Motion of Sirius XM Radio 
Inc. for Leave to Supplement Petition for Reconsideration and Request 
for Limited Waiver (the ``Sirius XM Motion'') in which it requested 
leave to supplement the XM Petition with the modified testing relief 
requested in its July 2014 ex parte letter. Sirius XM subsequently 
submitted a Further Supplement of Sirius XM Radio Inc. to Petition for 
Reconsideration and Request for Limited Waiver (the ``Further 
Supplement'') to refine the relief requested in the Sirius XM Motion.
    10. On November 7, 2018, the Public Safety and Homeland Security 
Bureau (Bureau) released a Public Notice seeking comment on Sirius XM's 
July 2014 ex parte letter, Sirius XM Motion, Further Supplement and a 
November 2018 Letter submitted by Sirius XM as a transmittal letter to 
incorporate into the record of this proceeding FEMA correspondence 
identifying its official position regarding which Sirius XM channels it 
will permit to be monitored for federal EAS alerts. One comment was 
filed, and one reply comment was filed (by Sirius XM).

II. Discussion

    11. As a threshold matter, the Commission grants Sirius XM's motion 
for leave to modify the XM Petition as described in the Sirius XM 
Motion, Further Supplement and November 2018 Letter. The Commission 
observes that comment was sought on these filings and that no party 
raised objections to the relief requested. The Commission further 
observes that changed circumstances arose during the pendency of the XM 
Petition's review that fundamentally altered the nature of the initial 
relief requested in the XM Petition. In light of these developments, 
the Commission concludes that it is in the public interest to grant the 
Sirius XM Motion and consider the XM Petition as modified by the above-
identified filings to the extent noted herein.
    12. As described below, the Commission agrees with Sirius XM that 
modifying the EAS testing requirements for SDARS to make them 
comparable to those applied to DBS providers is consistent with the 
purpose of the EAS testing rules and in the public interest, and amends 
section 11.61 of the part 11 rules accordingly. Specifically, the 
Commission will require SDARS providers to log receipt of the weekly 
test, and to transmit the monthly test on 10% of all of its channels, 
with channels tested varying from month to month, so that over the 
course of a given year, 100% of all of its channels are tested.
    13. The Commission finds that harmonizing SDARS testing 
requirements with DBS testing requirements is appropriate because these 
services are technologically similar. SDARS is similar to DBS in that 
they are both satellite-delivered services in which digital programming 
is sent directly from satellites to subscriber receivers. By virtue of 
similar network architectures, both services are inherently nationwide 
services. Further, SDARS and DBS are regulated in a similar manner. For 
example, both SDARS and DBS providers are subject to similar public 
interest and other obligations under Part 25 of the Commission's rules.
    14. Notwithstanding this similarity, in the EAS First Report and 
Order, the Commission applied dissimilar testing requirements: It 
imposed on SDARS providers the same general monthly and weekly testing 
requirements that it applied to terrestrial EAS Participant services, 
while applying modified testing requirements to DBS. The Commission 
concluded that requiring DBS providers to conduct weekly and monthly 
tests on all channels simultaneously on an inherently nationwide 
platform could pose technical challenges. Accordingly, it required that 
DBS providers need only log receipt of other EAS Participants' weekly 
tests, and perform monthly tests on 10% of all channels such that over 
the course of a year, all channels are tested.
    15. Meanwhile, the Commission required SDARS to conduct weekly and 
monthly tests on all channels. The Commission agrees with Sirius XM 
that these testing obligations are more onerous than those imposed on 
DBS (and other services subject to EAS requirements). Both services 
provide programming via satellites over multiple channels, which 
requires interrupting whatever programming is on these multiple 
channels to transmit the test. However, whereas DBS is not required to 
transmit weekly tests at all, and can transmit the monthly test over 
10% of its channels per month, SDARS is required to transmit weekly 
tests on all of its channels every week, and monthly tests on all of 
its channels once per month. In SDARS's case, there are no uniform 
breaks across all channels, such as a commercial break, that might 
unobtrusively accommodate a test. Moreover, because SDARS is an audio 
service, the EAS header code tones, scripted audio and attention signal 
(in the case of a monthly test) are the only audio SDARS listeners will 
hear during the test. The Commission concluded in the EAS First Report 
and Order that the testing requirements adopted for DBS were ``no more 
onerous to DBS providers than those required of any other EAS 
participant.'' On their face, the disparity in the testing requirements 
imposed upon DBS as compared to SDARS--two similarly situated 
services--confirm that the same cannot be said with respect to SDARS.
    16. Nor is the purpose of EAS testing undermined by harmonizing the 
SDARS testing requirements with the DBS testing requirements. In the 
EAS First Report and Order, the Commission stated that the ``EAS 
testing regime is designed to test not only the EAS participant's 
ability to receive the message from the source it monitors, but also 
the ability of the participant to disseminate an alert to its entire 
audience.'' This purpose will continue to be fully realized by applying 
the weekly and monthly DBS testing requirements to SDARS providers, 
because the weekly logging requirement

[[Page 30630]]

should identify alerts not received, and the monthly requirements will 
ensure that, on a rolling basis, over a one year period, all Sirius 
XM's channels are able to disseminate the alert to its listeners. 
Moreover, as Sirius XM points out, because Sirius XM serves as a PEP 
source for national EAS alerts, FEMA already tests Sirius XM's EAS 
equipment ``on a regular basis through remote polling . . . without 
even notifying SiriusXM of the testing--unless a problem is 
discovered--and without any disruption to [Sirius XM's] customers.''

III. Procedural Matters

A. Accessible Formats

    17. 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 Sirius XM 
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 
(TTY).

B. Paperwork Reduction Act Analysis

    18. This document contains modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. These modified requirements were submitted to the 
Office of Management and Budget (OMB) for review under Section 3507(d) 
of the PRA. OMB, the general public, and other Federal agencies were 
invited to comment on the new or modified information collection 
requirements contained in this proceeding. OMB approved the modified 
information collection requirements on December 26, 2019, and the 
Commission published a notice in the Federal Register announcing such 
OMB approval on February 6, 2020, published at 85 FR 6951, February 6, 
2020. In addition, the Commission notes that pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), an Initial Regulatory Flexibility Analysis (IRFA) 
was incorporated in the Notice of Proposed Rulemaking (NPRM), adopted 
in August 2004, which sought specific comment on how the Commission 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees.
    19. In this present document, the Commission has assessed the 
effects of the information collection associated with the modified 
reporting requirement set forth in the Order, and finds that because 
this information collection involves a decrease in testing burdens that 
should more than offset the increase in logging burdens, the net burden 
of information collection should be reduced and therefore should not 
pose a substantial burden for businesses with fewer than 25 employees.

C. Congressional Review Act

    20. The Commission has determined, and the Administrator of the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, concurs that this rule is ``non-major'' under the Congressional 
Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this 
Order on Reconsideration to Congress and the Government Accountability 
Office pursuant to 5 U.S.C. 801(a)(1)(A).

D. Supplemental Final Regulatory Flexibility Analysis

    21. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rulemaking (NPRM), in EB Docket 
No. 04-296, 69 FR 52843 (Aug. 30, 2004). The Commission sought written 
public comment on the proposals in the NPRM, including comments on the 
IRFA. No comments were filed addressing the IRFA. The Commission 
included a Final Regulatory Flexibility Analysis (FRFA) in Appendix D 
of the EAS First Report and Order in this proceeding. This Supplemental 
Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements 
the FRFA to reflect the actions taken in this Order and conforms to the 
RFA.
1. Need for, and Objective of, the Order on Reconsideration
    22. In the EAS First Report and Order, the Commission extended EAS 
obligations to digital television and radio, digital cable, and 
satellite television and radio services. Among other things, the 
Commission extended EAS obligations to SDARS providers. A petition for 
partial reconsideration of the EAS First Report and Order was filed and 
subsequently modified by Sirius XM, the sole provider of SDARS in the 
United States.
    23. The Commission grants on reconsideration, to the extent 
described herein, Sirius XM's petition for partial reconsideration of 
the EAS First Report and Order by revising the EAS testing requirements 
for SDARS providers to make them symmetrical to applied to DBS 
providers.
2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    24. There were no comments filed that specifically addressed the 
proposed rules and policies presented in the IRFA.
3. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration
    25. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA), and to provide a detailed statement of any change made to the 
proposed rules as a result of those comments.
    26. The Chief Counsel did not file any comments in response to the 
proposed rules in this proceeding.
4. Description and Estimate of the Number of Small Entities to Which 
Rules Will Apply
    27. 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. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. 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 SBA.
    28. As noted above, a FRFA was incorporated into the EAS First 
Report and Order. In that analysis, the Commission described in detail 
the small entities that might be significantly affected by the rules 
adopted in the EAS First Report and Order. This Supplemental FRFA 
reflects updated information, where applicable, for the descriptions 
and estimates of the number of small entities in the previous FRFA in 
this proceeding.
    29. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. The Commission's actions, over time, may affect small 
entities that are not easily categorized at present. The Commission 
therefore describes here, at the outset, three broad groups of small 
entities that could be directly affected herein. First, while there are 
industry specific size standards for small businesses that are used in 
the regulatory flexibility analysis, according to data from the SBA's 
Office of Advocacy, in general a small business is an independent 
business having fewer than 500 employees. These types of small 
businesses represent 99.9% of all

[[Page 30631]]

businesses in the United States which translates to 28.8 million 
businesses.
    30. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
Nationwide, as of August 2016, there were approximately 356,494 small 
organizations based on registration and tax data filed by nonprofits 
with the Internal Revenue Service (IRS).
    31. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2012 Census of Governments indicate that there 
were 90,056 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number there were 37, 132 General purpose governments 
(county, municipal and town or township) with populations of less than 
50,000 and 12,184 Special purpose governments (independent school 
districts and special districts) with populations of less than 50,000. 
The 2012 U.S. Census Bureau data for most types of governments in the 
local government category show that the majority of these governments 
have populations of less than 50,000. Based on this data the Commission 
estimates that at least 49,316 local government jurisdictions fall in 
the category of ``small governmental jurisdictions.''
    32. Television Broadcasting. This Economic Census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound.'' These establishments operate television 
broadcast studios and facilities for the programming and transmission 
of programs to the public. These establishments also produce or 
transmit visual programming to affiliated broadcast television 
stations, which in turn broadcast the programs to the public on a 
predetermined schedule. Programming may originate in their own studio, 
from an affiliated network, or from external sources. The SBA has 
created the following small business size standard for such businesses: 
Those having $38.5 million or less in annual receipts. The 2012 
Economic Census reports that 751 firms in this category operated in 
that year. Of that number, 656 had annual receipts of $25,000,000 or 
less, 25 had annual receipts between $25,000,000 and $49,999,999 and 70 
had annual receipts of $50,000,000 or more. Based on this data the 
Commission therefore estimates that the majority of commercial 
television broadcasters are small entities under the applicable SBA 
size standard.
    33. The Commission has estimated the number of licensed commercial 
television stations to be 1,377. Of this total, 1,258 stations (or 
about 91%) had revenues of $38.5 million or less, according to 
Commission staff review of the BIA Kelsey Inc. Media Access Pro 
Television Database (BIA) on November 16, 2017, and therefore these 
licensees qualify as small entities under the SBA definition. In 
addition, the Commission has estimated the number of licensed 
noncommercial educational television stations to be 384. 
Notwithstanding, the Commission does not compile and otherwise does not 
have access to information on the revenue of NCE stations that would 
permit it to determine how many such stations would qualify as small 
entities. There are also 2,300 low power television stations, including 
Class A stations (LPTV) and 3,681 TV translator stations. Given the 
nature of these services, the Commission will presume that all of these 
entities qualify as small entities under the above SBA small business 
size standard.
    34. The Commission notes, however, that in assessing whether a 
business concern qualifies as ``small'' under the above definition, 
business (control) affiliations must be included. The Commission's 
estimate, therefore likely overstates the number of small entities that 
might be affected by the Commission's action, because the revenue 
figure on which it is based does not include or aggregate revenues from 
affiliated companies. In addition, another element of the definition of 
``small business'' requires that an entity not be dominant in its field 
of operation. The Commission is unable at this time to define or 
quantify the criteria that would establish whether a specific 
television broadcast station is dominant in its field of operation. 
Accordingly, the estimate of small businesses to which rules may apply 
does not exclude any television station from the definition of a small 
business on this basis and is therefore possibly over-inclusive. Also, 
as noted above, an additional element of the definition of ``small 
business'' is that the entity must be independently owned and operated. 
The Commission notes that it is difficult at times to assess these 
criteria in the context of media entities and its estimates of small 
businesses to which they apply may be over-inclusive to this extent.
    35. Radio Stations. This Economic Census category ``comprises 
establishments primarily engaged in broadcasting aural programs by 
radio to the public. Programming may originate in their own studio, 
from an affiliated network, or from external sources.'' The SBA has 
established a small business size standard for this category as firms 
having $38.5 million or less in annual receipts. Economic Census data 
for 2012 show that 2,849 radio station firms operated during that year. 
Of that number, 2,806 firms operated with annual receipts of less than 
$25 million per year, 17 with annual receipts between $25 million and 
$49,999,999 million and 26 with annual receipts of $50 million or more. 
Therefore, based on the SBA's size standard the majority of such 
entities are small entities.
    36. According to Commission staff review of the BIA/Kelsey, LLC's 
Media Access Pro Radio Database as of January 2018, about 11,261 (or 
about 99.9%) of 11,383 commercial radio stations had revenues of $38.5 
million or less and thus qualify as small entities under the SBA 
definition. The Commission has estimated the number of licensed 
commercial AM radio stations to be 4,633 stations and the number of 
commercial FM radio stations to be 6,738, for a total number of 11,371. 
The Commission notes that it has also estimated the number of licensed 
noncommercial (NCE) FM radio stations to be 4,128. Nevertheless, the 
Commission does not compile and otherwise does not have access to 
information on the revenue of NCE stations that would permit it to 
determine how many such stations would qualify as small entities.
    37. The Commission also notes that in assessing whether a business 
entity qualifies as small under the above definition, business control 
affiliations must be included. The Commission's estimate therefore 
likely overstates the number of small entities that might be affected 
by its action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. In addition, 
to be determined a ``small business,'' an entity may not be dominant in 
its field of operation. The Commission further notes, that it is 
difficult at times to assess these criteria in the context of media 
entities, and the estimate of small businesses to which these rules may 
apply does not exclude any radio station from the definition of a small 
business on these basis, thus the Commission's estimate of small 
businesses may therefore be over-inclusive. Also, as noted above, an 
additional element of the definition of ``small business'' is that the 
entity must be independently owned and operated. The Commission notes

[[Page 30632]]

that it is difficult at times to assess these criteria in the context 
of media entities and the estimates of small businesses to which they 
apply may be over-inclusive to this extent.
    38. Cable Companies and Systems (Rate Regulation). The Commission 
has developed its own small business size standards for the purpose of 
cable rate regulation. Under the Commission's rules, a ``small cable 
company'' is one serving 400,000 or fewer subscribers nationwide. 
Industry data indicate that there are currently 4,600 active cable 
systems in the United States. Of this total, all but nine cable 
operators nationwide are small under the 400,000-subscriber size 
standard. In addition, under the Commission's rate regulation rules, a 
``small system'' is a cable system serving 15,000 or fewer subscribers. 
Current Commission records show 4,600 cable systems nationwide. Of this 
total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 
systems have 15,000 or more subscribers, based on the same records. 
Thus, under this standard as well, the Commission estimates that most 
cable systems are small entities.
    39. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended also contains a size standard 
for small cable system operators, 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.'' There are approximately 52,403,705 
cable video subscribers in the United States today. Accordingly, an 
operator serving fewer than 524,037 subscribers shall be deemed a small 
operator if its annual revenues, when combined with the total annual 
revenues of all its affiliates, do not exceed $250 million in the 
aggregate. Based on available data, the Commission finds that all but 
nine incumbent cable operators are small entities under this size 
standard. The Commission notes that it neither requests nor collects 
information on whether cable system operators are affiliated with 
entities whose gross annual revenues exceed $250 million. Although it 
seems certain that some of these cable system operators are affiliated 
with entities whose gross annual revenues exceed $250 million, the 
Commission is 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.
    40. Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service systems, previously referred to as Multipoint 
Distribution Service (MDS) and Multichannel Multipoint Distribution 
Service (MMDS) systems, and ``wireless cable,'' transmit video 
programming to subscribers and provide two-way high-speed data 
operations using the microwave frequencies of the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) (previously 
referred to as the Instructional Television Fixed Service (ITFS)).
    41. BRS--In connection with the 1996 BRS auction, the Commission 
established a small business size standard as an entity that had annual 
average gross revenues of no more than $40 million in the previous 
three calendar years. The BRS auctions resulted in 67 successful 
bidders obtaining licensing opportunities for 493 Basic Trading Areas 
(BTAs). Of the 67 auction winners, 61 met the definition of a small 
business. BRS also includes licensees of stations authorized prior to 
the auction. At this time, the Commission estimates that of the 61 
small business BRS auction winners, 48 remain small business licensees. 
In addition to the 48 small businesses that hold BTA authorizations, 
there are approximately 86 incumbent BRS licensees that are considered 
small entities (18 incumbent BRS licensees do not meet the small 
business size standard). After adding the number of small business 
auction licensees to the number of incumbent licensees not already 
counted, there are currently approximately 133 BRS licensees that are 
defined as small businesses under either the SBA or the Commission's 
rules.
    42. In 2009, the Commission conducted Auction 86, the sale of 78 
licenses in the BRS areas. The Commission offered three levels of 
bidding credits: (i) A bidder with attributed average annual gross 
revenues that exceed $15 million and do not exceed $40 million for the 
preceding three years (small business) received a 15% discount on its 
winning bid; (ii) a bidder with attributed average annual gross 
revenues that exceed $3 million and do not exceed $15 million for the 
preceding three years (very small business) received a 25% discount on 
its winning bid; and (iii) a bidder with attributed average annual 
gross revenues that do not exceed $3 million for the preceding three 
years (entrepreneur) received a 35% discount on its winning bid. 
Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten 
winning bidders, two bidders that claimed small business status won 4 
licenses; one bidder that claimed very small business status won three 
licenses; and two bidders that claimed entrepreneur status won six 
licenses.
    43. EBS--Educational Broadband Service has been included within the 
broad economic census category and SBA size standard for Wired 
Telecommunications Carriers since 2007. Wired Telecommunications 
Carriers are comprised of establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA's small business size standard for this 
category is all such firms having 1,500 or fewer employees. U.S. Census 
Bureau data for 2012 show that there were 3,117 firms that operated 
that year. Of this total, 3,083 operated with fewer than 1,000 
employees. Thus, under this size standard, the majority of firms in 
this industry can be considered small. In addition to Census data, the 
Commission's Universal Licensing System indicates that as of October 
2014, there are 2,206 active EBS licenses. The Commission estimates 
that of these 2,206 licenses, the majority are held by non-profit 
educational institutions and school districts, which are by statute 
defined as small businesses.
    44. Wireless Carriers and Service Providers. Neither the SBA nor 
the Commission has developed a size standard specifically applicable to 
Wireless Carriers and Service Providers. The closest applicable SBA 
category and size standard is for Wireless Telecommunications Carriers 
(except Satellite), which is an entity employing no more than 1,500 
persons. For this industry, U.S. Census Bureau data for 2012 show that 
there were 967 firms that operated for the entire year. Of this total, 
955 firms had employment of 999 or fewer employees and 12 had 
employment of 1000 employees or more. Thus, under this category and the 
associated size standard, the Commission estimates that the majority of 
Wireless Carriers and Service Providers are small entities.
    45. According to internally developed Commission data for all 
classes of Wireless Service Providers, there are 970 carriers that 
reported they were engaged in the provision of wireless services. Of 
this total, an estimated 815 have 1,500 or fewer employees, and 155

[[Page 30633]]

have more than 1,500 employees. Thus, using available data, the 
Commission estimates that the majority of Wireless Carriers and Service 
Providers can be considered small.
    46. Broadband Personal Communications Service. The broadband 
personal communications services (PCS) spectrum is divided into six 
frequency blocks designated A through F, and the Commission has held 
auctions for each block. The Commission initially defined a ``small 
business'' for C- and F-Block licenses as an entity that has average 
gross revenues of $40 million or less in the three previous calendar 
years. For F-Block licenses, an additional small business size standard 
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. These small 
business size standards, in the context of broadband PCS auctions, have 
been approved by the SBA. No small businesses within the SBA-approved 
small business size standards bid successfully for licenses in Blocks A 
and B. There were 90 winning bidders that claimed small business status 
in the first two C-Block auctions. A total of 93 bidders that claimed 
small business status won approximately 40% of the 1,479 licenses in 
the first auction for the D, E, and F Blocks. On April 15, 1999, the 
Commission completed the reauction of 347 C-, D-, E-, and F-Block 
licenses in Auction No. 22. Of the 57 winning bidders in that auction, 
48 claimed small business status and won 277 licenses.
    47. On January 26, 2001, the Commission completed the auction of 
422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 
winning bidders in that auction, 29 claimed small business status. 
Subsequent events concerning Auction 35, including judicial and agency 
determinations, resulted in a total of 163 C and F Block licenses being 
available for grant. On February 15, 2005, the Commission completed an 
auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of 
the 24 winning bidders in that auction, 16 claimed small business 
status and won 156 licenses. On May 21, 2007, the Commission completed 
an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. 
Of the 12 winning bidders in that auction, five claimed small business 
status and won 18 licenses. On August 20, 2008, the Commission 
completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS 
licenses in Auction No. 78. Of the eight winning bidders for Broadband 
PCS licenses in that auction, six claimed small business status and won 
14 licenses.
    48. Incumbent Local Exchange Carriers (LECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The closest 
applicable NAICS Code category is Wired Telecommunications Carriers. 
Under the applicable SBA size standard, such a business is small if it 
has 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicate 
that 3,117 firms operated the entire year. Of this total, 3,083 
operated with fewer than 1,000 employees. Consequently, the Commission 
estimates that most providers of incumbent local exchange service are 
small businesses that may be affected by the Commission's actions. 
According to Commission data, one thousand three hundred and seven 
(1,307) Incumbent Local Exchange Carriers reported that they were 
incumbent local exchange service providers. Of this total, an estimated 
1,006 have 1,500 or fewer employees. Thus using the SBA's size standard 
the majority of incumbent LECs can be considered small entities.
    49. Competitive Local Exchange Carriers (Competitive LECs). 
Competitive Access Providers (CAPs), Shared-Tenant Service Providers, 
and Other Local Service Providers. Neither the Commission nor the SBA 
has developed a small business size standard specifically for these 
service providers. The appropriate NAICS Code category is Wired 
Telecommunications Carriers and under that size standard, such a 
business is small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2012 indicate that 3,117 firms operated during that 
year. Of that number, 3,083 operated with fewer than 1,000 employees. 
Based on these data, the Commission concludes that the majority of 
Competitive LECS, CAPs, Shared-Tenant Service Providers, and Other 
Local Service Providers, are small entities. According to Commission 
data, 1,442 carriers reported that they were engaged in the provision 
of either competitive local exchange services or competitive access 
provider services. Of these 1,442 carriers, an estimated 1,256 have 
1,500 or fewer employees. In addition, 17 carriers have reported that 
they are Shared-Tenant Service Providers, and all 17 are estimated to 
have 1,500 or fewer employees. Also, 72 carriers have reported that 
they are Other Local Service Providers. Of this total, 70 have 1,500 or 
fewer employees. Consequently, based on internally researched FCC data, 
the Commission estimates that most providers of competitive local 
exchange service, competitive access providers, Shared-Tenant Service 
Providers, and Other Local Service Providers are small entities.
    50. Satellite Telecommunications. This category comprises firms 
``primarily engaged in providing 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.'' Satellite 
telecommunications service providers include satellite and earth 
station operators. The category has a small business size standard of 
$32.5 million or less in average annual receipts, under SBA rules. For 
this category, U.S. Census Bureau data for 2012 show that there were a 
total of 333 firms that operated for the entire year. Of this total, 
299 firms had annual receipts of less than $25 million. Consequently, 
the Commission estimates that the majority of satellite 
telecommunications providers are small entities.
    51. All Other Telecommunications. The ``All Other 
Telecommunications'' category is comprised of establishments primarily 
engaged in providing specialized telecommunications services, such as 
satellite tracking, communications telemetry, and radar station 
operation. This industry also includes establishments primarily engaged 
in providing satellite terminal stations and associated facilities 
connected with one or more terrestrial systems and capable of 
transmitting telecommunications to, and receiving telecommunications 
from, satellite systems. Establishments providing internet services or 
voice over internet protocol (VoIP) services via client-supplied 
telecommunications connections are also included in this industry. The 
SBA has developed a small business size standard for All Other 
Telecommunications, which consists of all such firms with annual 
receipts of $32.5 million or less. For this category, U.S. Census 
Bureau data for 2012 shows that there were 1,442 firms that operated 
for the entire year. Of those firms, a total of 1,400 had annual 
receipts less than $25 million and 42 firms had annual receipts of $25 
million to $49,999,999. Thus, the Commission estimates that the 
majority of ``All Other Telecommunications'' firms potentially affected 
by the Commission's action can be considered small.

[[Page 30634]]

5. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    52. The reporting, recordkeeping, and other compliance requirements 
resulting from the EAS First Report and Order as described in the 
previous FRFA in this proceeding are hereby incorporated by reference. 
The actions the Commission takes in the Order modify the SDARS testing 
requirements to make them symmetrical to the DBS testing requirements, 
and do not otherwise amend or revise the requirements adopted in the 
EAS First Report and Order. More specifically, SDARS providers will be 
required to log receipt of the weekly test (which represents a new 
reporting requirement for SDARS providers), and to transmit the monthly 
test on 10% of all of its channels, with channels tested varying from 
month to month, so that over the course of a given year, 100% of all of 
their channels are tested.
6. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    53. The RFA requires an agency to describe any significant 
alternatives that it has considered in developing its 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) and 
exemption from coverage of the rule, or any part thereof, for small 
entities.''
    54. In granting partial reconsideration of the EAS First Report and 
Order, the Commission opted to modify the current SDARS testing 
requirements and make them symmetrical to the DBS testing requirements 
based on its finding that SDARS and DBS services are similarly 
situated. Notwithstanding their similarity and the similar challenges 
the two services faced in conducting weekly and monthly tests on all 
channels simultaneously, in the EAS First Report and Order, the 
Commission applied the same general monthly and weekly testing 
requirements to SDARS providers that it applied to terrestrial EAS 
Participant services, while applying modified testing requirements to 
DBS providers. The Commission's action to harmonize the SDARS testing 
requirements with the DBS testing requirements on reconsideration 
should significantly reduce the economic impact for SDARS providers 
associated with compliance with the general monthly and weekly testing 
requirements adopted in the EAS First Report and Order. The modified 
weekly test requirement for SDARS of substituting logging of receipt of 
a weekly test for conducting the weekly test, represents a reduced 
burden, as EAS equipment automatically records when weekly tests are 
received. Further, not having to transmit the EAS header codes and EOM 
on all channels randomly once per week relieves the SDARS provider from 
having to coordinate and administer such testing.
7. Report to Congress
    55. The Commission will send a copy of the Order, including this 
Supplemental FRFA, in a report to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Order, including this Supplemental FRFA, to the Chief Counsel 
for Advocacy of the SBA. A copy of the Order and Supplemental FRFA (or 
summaries thereof) will also be published in the Federal Register.

E. People With Disabilities

    56. 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 & Governmental 
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

IV. Ordering Clauses

    57. Accordingly, it is ordered that pursuant to sections 1, 2, 
4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 405, and 706 of 
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) 
and (o), 301, 303(r), 303(v), 307, 309, 335, 403, 405, and 606, and 
section 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for 
Partial Reconsideration and Clarification of Sirius XM Radio Inc., as 
modified by the Motion of Sirius XM Radio Inc. for Leave to Supplement 
Petition for Reconsideration and Request for Limited Waiver are granted 
to the extent set forth herein;
    58. It is further ordered that pursuant to section 1.429(d) of the 
Commission's rules, 47 CFR 1.429(d), Sirius XM Radio Inc.'s request for 
leave to supplement its pending petition for reconsideration set forth 
in the Motion of Sirius XM Radio Inc. for Leave to Supplement Petition 
for Reconsideration and Request for Limited Waiver is granted to the 
extent set forth herein;
    59. It is further ordered that pursuant to section 1.429(d) of the 
Commission's rules, 47 CFR 1.429(d), the Further Supplement of Sirius 
XM Radio Inc. to Petition for Reconsideration and Request for Limited 
Waiver is dismissed to the extent set forth herein;
    60. It is further ordered that Part 11 of the Commission's rules, 
47 CFR part 11, is amended as set forth herein, and such rule 
amendments shall be effective thirty (30) days after publication of the 
rule amendments in the Federal Register, except to the extent they 
contain information collections subject to PRA review. Rule amendments 
that contain information collections subject to PRA review shall become 
effective upon the effective date announced when the Commission 
publishes a notice in the Federal Register announcing such OMB approval 
and the effective date.
    61. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects in 47 CFR Part 11

    Radio, Television.

Federal Communications Commission.
Cecilia Sigmund,
Federal Register Liaison Officer.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 11 as follows:

PART 11--EMERGENCY ALERT SYSTEM (EAS)

0
1. The authority citation for part 11 continues to read as follows:

    Authority:  47 U.S.C. 151, 154(i) and (o), 303(r), 544(g) and 
606.


0
2. Amend Sec.  11.61 by:
0
a. Adding paragraph (a)(1)(iii);
0
b. Removing paragraph (a)(2)(i)(D); and
0
c. Revising paragraph (a)(2)(ii).
    The addition and revision read as follows:


Sec.  11.61   Tests of EAS procedures.

    (a) * * *
    (1) * * *
    (iii) SDARS providers must comply with this section by monitoring a 
state or local primary source to participate in testing. Tests should 
be performed on 10% of all channels monthly, with channels tested 
varying from month to

[[Page 30635]]

month, so that over the course of a given year, 100% of all channels 
are tested.
    (2) * * *
    (ii) DBS providers, SDARS providers, analog and digital class D 
non-commercial educational FM stations, analog and digital LPFM 
stations, and analog and digital LPTV stations are not required to 
transmit this test but must log receipt, as specified in Sec.  11.35(a) 
and 11.54(a)(3).
* * * * *
[FR Doc. 2020-08250 Filed 5-19-20; 8:45 am]
 BILLING CODE 6712-01-P