[Federal Register Volume 87, Number 185 (Monday, September 26, 2022)]
[Proposed Rules]
[Pages 58297-58300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20711]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[MD Docket 22-301; FCC 22-68; FRS ID 105135]


Review of the Commission's Assessment and Collection of 
Regulatory Fees

AGENCY: Federal Communications Commission.

ACTION: Request for comments.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks further comment on the Commission's methodology for 
allocating indirect full-time equivalents (FTEs), previously raised in 
the Commission's Fiscal Year (FY) 2022 Notice of Proposed Rulemaking 
(FY 2022 NPRM), FCC 22-39, MD Docket Nos. 21-190, 22-223, adopted on 
June 1, 2022 and released on June 2, 2022.

DATES: Comments are due on or before October 26, 2022 and reply 
comments are due on or before November 25, 2022.

ADDRESSES: Interested parties may file comments and reply comments 
identified by MD Docket No. 22-301, by any of the following methods 
below.
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing ECFS: https://www.fcc.gov/ecfs.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings can be sent by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington, DC 20554.
    For detailed instructions for submitting comments, see the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Roland Helvajian, Office of Managing 
Director at (202) 418-0444.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Inquiry (NOI), FCC 22-68, MD Docket No. 22-301, adopted on September 
1, 2022 and released on September 2, 2022. The full text of this 
document is available for inspection and copying during normal business 
hours in the FCC Reference Center, 45 L Street NE, Washington, DC 
20554, and may also be purchased from the Commission's copy contractor, 
BCPI, Inc., 45 L Street NE, Washington, DC 20554. Customers may contact 
BCPI, Inc. via their website, https://www.bcpi.com, or call 1-800-378-
3160. This document is available in alternative formats (computer 
diskette, large print, audio record, and braille). Persons with 
disabilities who need documents in these formats may contact the FCC by 
email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432. 
Effective March 19, 2020, and until further notice, the Commission no 
longer accepts any hand or messenger delivered filings. This is a 
temporary measure taken to help protect the health and safety of 
individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy. During

[[Page 58298]]

the time the Commission's building is closed to the general public and 
until further notice, if more than one docket or rulemaking number 
appears in the caption of a proceeding, paper filers need not submit 
two additional copies for each additional docket or rulemaking number; 
an original and one copy are sufficient.
    Ex Parte Rules. This proceeding shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte 
rules. Persons making ex parte presentations must file a copy of any 
written presentation or a memorandum summarizing any oral presentation 
within two business days after the presentation (unless a different 
deadline applicable to the Sunshine period applies). Persons making 
oral ex parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule Sec.  1.1206(b). In proceedings governed 
by rule Sec.  1.49(f) or for which the Commission has made available a 
method of electronic filing, written ex parte presentations and 
memoranda summarizing oral ex parte presentations, and all attachments 
thereto, must be filed through the electronic comment filing system 
available for that proceeding, and must be filed in their native format 
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this 
proceeding should familiarize themselves with the Commission's ex parte 
rules.

I. Synopsis

    1. In this document, the Commission seeks further comment on its 
methodology for allocating indirect FTEs, as raised in the FY 2022 NPRM 
(87 FR 38588, June 28, 2022). While we found above that the record 
supported a limited correction to the method used for calculating the 
fees associated with certain indirect FTEs in the Universal Service 
Fund context, we seek to more broadly explore these issues outside of 
the short timeframe necessitated by the annual regulatory fee 
proceeding. The responses we receive will help us determine if there 
are lines of inquiry worth exploring in order to further revise our 
methodology. Finally, we hope that the comments and replies will allow 
interested parties to gain a better understanding of the regulatory fee 
process and the issues of importance to the various groups affected by 
our regulatory fee policies.
    2. Historically, the Commission assesses the allocation of FTEs by 
first determining the number of non-auctions direct FTEs in each ``core 
bureau'' (i.e., the Wireless Telecommunications Bureau, the Media 
Bureau, the Wireline Competition Bureau, and the International Bureau) 
and then attributing all other non-auctions Commission FTEs as 
indirect. The direct FTEs within each core bureau are then attributed 
to regulatory fee categories based on the nature of the FTE work. We 
expect that the work of the non-auctions direct FTEs in the four core 
bureaus will remain focused on the industry segment regulated by each 
of those bureaus. For this reason, the Commission starts with direct 
FTE counts in the core bureaus and then potentially adjusts fees to 
reflect other factors related to the payor's benefits.
    3. We initially seek comment on whether we should expand the 
definition of ``core bureau'' to include other bureaus and offices 
within the Commission. Commenters should discuss the additional offices 
or bureaus we should consider ``core'' for regulatory fee purposes and 
why. We encourage commenters to review both the function and 
delegations of each office when considering this question. Is the work 
of the office or bureau focused on a specific industry segment 
regulated by that office or bureau? If so, what is the industry 
segment? Is the office or bureau responsible for regulating other work 
not related to a specific industry segment? Commenters should address 
whether expanding the Commission's definition of ``core bureau'' is 
feasible, administrable, sustainable, and consistent with section 9 of 
the Communications Act of 1934 (Act).
    4. Unlike the work of direct FTEs, the work of FTEs designated as 
indirect benefits the Commission and the industry as a whole and is not 
specifically focused on the regulatees and licensees of a core bureau. 
Thus, indirect FTEs generally work on a wide variety of issues which 
may include services that are not specifically correlated with one core 
bureau, let alone one specific category of regulatees. Further, much of 
the work that could be assigned to a single category of regulatees is 
likely to be interspersed with the work that indirect FTEs perform on 
behalf of many entities that do not pay regulatory fees, e.g., 
governmental entities, non-profit organizations, and regulatees that 
have an exemption. In addition to the fact that indirect FTEs work on 
matters that are not specific to any regulatory fee category, many 
Commission attorneys, engineers, analysts, and other staff work on a 
variety of issues even during a single fiscal year. Due to the variety 
of issues handled by many indirect FTEs, analyzing the work of such 
indirect FTEs for regulatory fee purposes and basing regulatory fees on 
specific assignments during any snapshot or incremental period of time, 
such as a year or two, would result in significant unplanned shifts in 
regulatory fees as assignments change.
    5. In calculating regulatory fees, the Commission allocates 
indirect FTEs proportionally based on the allocation percentage of 
direct FTEs of each core bureau. In essence, if a core bureau's 
contribution to the regulatory fee burden is calculated to be 40%, then 
it is also responsible for 40% of the indirect costs. Commenters argue 
that this results in regulatory fee payors paying being unfairly 
burdened by costs of FTEs that do not directly provide oversight and 
regulation to such fee payors. We seek comment on whether the 
Commission should change its current methodology for calculating 
regulatory fees to minimize burdens on certain regulatory fee payors, 
while still collecting the entire appropriation, as required by section 
9 of the Act. To the extent that commenters support amending the 
methodology, the proposals made must allow for the full collection of 
our annual appropriation. In other words, a proposed system that only 
provides that regulatees pay fees for the direct time of staff in the 
core bureaus would be per se contrary to our statutory mandate. 
Comments filed in the Notice of Inquiry docket proposing such 
amendments should provide full scale examples of the potential changes 
to the current methodology and explain how those changes would be 
consistent with section 9 of the Act.
    6. As discussed above, we find that broadcasters should not be 
required to pay for a portion of the 38 indirect FTEs working on 
Universal Service Fund issues that are in the Wireline Competition 
Bureau but are designated as indirect FTEs. Although we affirmed

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the Commission's previous finding in 2017 that these 38 FTEs were 
properly allocated as indirect FTEs for regulatory fee purposes, are 
there indirect FTEs that commenters believe should be considered direct 
FTEs for regulatory fee purposes? For example, in FY 2019, the 
Commission reassigned staff from other bureaus and offices to the 
Office of Economics and Analytics, effective December 11, 2018. This 
resulted in the reassignment of 95 FTEs (of which 64 were not auctions-
funded) as indirect FTEs. The Commission also reassigned Equal 
Employment Opportunity enforcement staff from the Media Bureau to the 
Enforcement Bureau, effective March 15, 2019, resulting in a reduction 
of seven direct FTEs in the Media Bureau. These reassignments resulted 
in a reduction in direct FTEs in the Wireline Competition Bureau (from 
123 FTEs to 100.8 FTEs), Wireless Telecommunications Bureau (from 89 
FTEs to 80.5 FTEs), and Media Bureau (from 131 FTEs to 115.1 FTEs). In 
2013, the Commission allocated all International Bureau FTEs except for 
28 as indirect. Should we reconsider these assignments and now consider 
these FTEs direct FTEs in a core bureau instead of indirect? Commenters 
should discuss whether this allocation is still reasonable. Should we 
re-evaluate the number of direct and indirect FTEs in the International 
Bureau? For each category of FTE a commenter proposes to be reassigned, 
the commenter should explain how such reassignment is appropriate under 
both the Communications Act and also the body of precedent relating to 
federal agency fee setting. If these reassignments are still 
appropriate, should we consider other corrections to our fee 
calculation methodology, as we did in the Universal Service Fund 
context?
    7. As indicated in the FY 2022 NPRM, early in each fiscal year, the 
Commission receives FTE data from its Human Resources Office, and 
identifies FTE data at the core bureau level (i.e., direct FTEs), which 
are then used to determine the FTE allocations for the four core 
bureaus. These FTE data are then filtered down to the various fee 
categories within each core bureau based on the fee category 
percentages for each bureau. We encourage commenters in looking at the 
question to consider how indirect FTE time devoted to work on one or 
more regulated services could be considered direct FTE time. How should 
time be calculated for purposes of regulatory fees if FTE time is 
devoted to issues involving different regulated services at the same 
time (e.g., voice services)?
    8. Commenters should also consider that indirect FTEs may be 
difficult to disaggregate in a manner that is easy to administer and 
transparent with respect to how it applies to certain regulated 
services. For example, a complex enforcement investigation involving a 
space station operator could result in many Enforcement Bureau indirect 
FTEs working on space station issues on a temporary basis instead of on 
other issues. Would allocating those indirect FTEs as direct FTEs for 
the International Bureau unfairly increase the regulatory fees for all 
space station licensees or all International Bureau regulatees for that 
fiscal year? Is there a way to disaggregate the time indirect FTEs may 
spend on issues associated with core bureaus in a way that would not 
result in significant regulatory fee increases from year to year? 
Taking into consideration practical limits on what the Commission may 
accomplish using existing systems and also limited staff time, how 
frequently should FTE time be analyzed for reassessments of the work 
done by indirect FTEs?
    9. Other indirect FTEs may not be able to disaggregate the issues 
that they handle or may work on matters that do not correlate with any 
particular regulated service. Commenters who advocate analyzing the 
indirect FTE time to determine if their time can be allocated to 
specific regulated services should explain how to address indirect FTE 
time that cannot be specifically disaggregated into work performed for 
certain regulated services. SIA observes that the current indirect FTE 
allocation method is appropriate for certain non-core bureaus and 
offices, such as the Office of the General Counsel. Are there other 
bureaus and offices that commenters consider to be more appropriately 
designated as indirect? State Broadcasters Associations suggest that 
the Commission adopt a third classification of intersectional FTEs to 
avoid unfair burdens on broadcasters. SIA suggests an alternative 
allocation mechanism for indirect FTEs in cases where the work is not 
always proportional. Commenters should also specifically address these 
alternatives to the Commission's current methodology. Commenters should 
explain how we could implement these alternative suggestions, 
consistent with section 9 of the Act. Moreover, commenters should 
consider if such changes might result in a more complicated fee system 
that nevertheless results in the setting similar fee amounts but 
requires more time and Commission resources to manage.
    10. One commenter, the State Broadcasters Associations, suggest 
that the Commission adopt a third classification of intersectional 
FTEs. SIA suggests an alternative allocation mechanism for indirect 
FTEs in cases where the work is not always proportional. Commenters 
should also specifically address these alternatives to the Commission's 
current regulatory fee methodology. Commenters should explain how we 
could implement these alternative suggestions, consistent with section 
9 of the Act. Moreover, commenters should consider if such changes 
might result in a more complicated fee system that nevertheless results 
in the setting similar fee amounts but requires more time and 
Commission resources to manage.
    11. Commenters advocating allocating indirect FTEs as direct for 
regulatory fee purposes should explain how we should assess FTE time in 
order to make the reallocation. Commenters are encouraged to consider 
practical aspects of FTE time. For example, how should FTEs devoted to 
administrative matters, such as releasing and posting Commission and 
Bureau level items, be categorized? Should such FTE time be considered 
indirect, or should each released item be analyzed to determine to 
which core bureau it is associated? How should FTE time devoted to 
matters encompassing voice issues (i.e., wireless and wireline, 
including VoIP) be characterized? Is there a fair way to allocate such 
FTE time among or between bureaus or should that FTE time be considered 
indirect? We note that our regulatory fee methodology must be 
consistent with the requirements of section 9 of the Act that ``fees 
reflect the full-time equivalent number of employees within the bureaus 
and offices of the Commission.'' Commenters should recognize that 
cherry picking certain groups of FTEs from indirect bureaus and offices 
and reassigning them as direct FTEs for regulatory fee purposes could 
result in a less equitable methodology overall and achieve a result 
inconsistent with their intention of reducing their regulatory fees. 
Finally, commenters should recognize that any new methodology they 
propose must be consistent with section 9 of the Act, fair, 
administrable, and sustainable.

II. Ordering Clause

    12. Accordingly, it is ordered that, pursuant to the authority 
found in sections 4(i) and (j), 9, 9A, and 303(r) of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, 159A, and 
303(r), the Notice of Inquiry is hereby adopted.


[[Page 58300]]


Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
[FR Doc. 2022-20711 Filed 9-23-22; 8:45 am]
BILLING CODE 6712-01-P