[Federal Register Volume 89, Number 8 (Thursday, January 11, 2024)]
[Proposed Rules]
[Pages 1859-1874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28763]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WC Docket No. 17-84; FCC 23-109; FR ID 193610]


Accelerating Wireline Broadband Deployment by Removing Barriers 
to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission adopted a Third Further 
Notice of Proposed Rulemaking (FNPRM) that tentatively concludes that 
the Commission should take further action to facilitate the processing 
of pole attachment applications that are submitted in large numbers. It 
also seeks comment on whether the Commission should modify its self-
help rules to enable prospective attachers to access poles more 
quickly. Finally, it seeks comment on the impact of contractor 
availability when attachers seek to use their own contractors when 
conducting self-help or one-touch make-ready for surveys and make-ready 
work.

DATES: Comments are due on or before February 13, 2024, and reply 
comments are due on or before February 28, 2024. Written comments on 
the Paperwork Reduction Act proposed information collection 
requirements must be submitted by the public, Office of Management and 
Budget (OMB), and other interested parties on or before March 11, 2024.

ADDRESSES: Pursuant to sections 1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, 1.419, interested parties may file comments and 
reply comments on or before the dates indicated in this document. 
Comments and reply comments may be filed using the Commission's 
Electronic Comment Filing System (ECFS). See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Interested 
parties may file comments or reply comments, identified by CG Docket 
No. 17-59 and WC Docket No. 17-97 by any of the following methods:
     Electronic Filers: Comments may be filed electronically by 
accessing ECFS at https://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. Paper filings can be sent 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail.
     Effective March 19, 2020, and until further notice, the 
Commission no

[[Page 1860]]

longer accepts any hand or messenger delivered filings.
     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.
    In addition to filing comments with the Secretary, a copy of any 
comments on the Paperwork Reduction Act proposed information collection 
requirements contained herein should be submitted to the Federal 
Communications Commission via email to [email protected] and to Nicole 
Ongele, FCC, via email to [email protected].

FOR FURTHER INFORMATION CONTACT: For further information, please 
contact either Michele Berlove, Assistant Division Chief, Competition 
Policy Division, Wireline Competition Bureau, at 
[email protected] or at (202) 418-1477, or Michael Ray, Attorney 
Advisor, Competition Policy Division, Wireline Competition Bureau, at 
[email protected] or at (202) 418-0357. For additional information 
concerning the Paperwork Reduction Act proposed information collection 
requirements contained in this document, send an email to [email protected] 
or contact Nicole Ongele at (202) 418-2991.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Further Notice of Proposed Rulemaking (FNPRM) in WC Docket No. 17-84, 
FCC 23-109, adopted on December 13, 2023, and released on December 15, 
2023. The full text of this document is available for public inspection 
at the following internet address: https://www.fcc.gov/document/fcc-seeks-make-pole-attachment-process-faster-more-transparent-and-more-cost-effective. The Providing Accountability Through Transparency Act, 
Public Law 118-9, requires each agency, in providing notice of a 
rulemaking, to post online a brief plain-language summary of the 
proposed rule. The required summary of this FNPRM is available at 
https://www.fcc.gov/proposed-rulemakings. To request materials in 
accessible formats for people with disabilities (e.g., Braille, large 
print, electronic files, audio format), send an email to [email protected] 
or call the Consumer & Governmental Affairs Bureau at (202) 418-0530.

Initial Paperwork Reduction Act of 1995 Analysis

    This document may contain proposed information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public to comment on the 
information collection requirements contained in this document, as 
required by the Paperwork Reduction Act of 1995, Public Law 104-13.
    Comments should address: (a) whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology; and (e) 
way to further reduce the information collection burden on small 
business concerns with fewer than 25 employees. In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might 
further reduce the information collection burden for small business 
concerns with fewer than 25 employees.

Comment Period and Filing Procedures

    Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS) or by paper. Commenters should refer to WC 
Docket No. 21-341 when filing in response to this FNPRM.
     Electronic Filers: Comments may be filed electronically by 
accessing ECFS at https://www.fcc.gov/ecfs.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. Paper filings can be sent 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings.
     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.
    People with Disabilities: 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).

Synopsis

I. Introduction

    1. Access to a broadband connection is a necessity of modern life. 
With consumers more dependent than ever on fixed and mobile broadband 
networks for work, healthcare services, education, and social 
activities, the Commission remains committed to ensuring consumers 
across the nation have meaningful access to broadband. With the support 
of the Commission's universal service fund, the Infrastructure 
Investment and Jobs Act, which included the largest ever federal 
investment in broadband, as well as other federal and state broadband 
deployment programs, more funding than ever is available to build the 
necessary infrastructure to bring much-needed broadband services to 
unserved and underserved areas in the United States. Key to these 
broadband projects are the utility poles that support the wires and the 
wireless equipment that carry broadband to American homes and 
businesses.
    2. Over the last several years, the Commission has taken 
significant steps in setting the ``rules for the road'' for the 
discussions between utilities and telecommunications companies about 
the timing and cost of attaching broadband equipment to utility poles, 
with the backstop of a robust complaint process when parties cannot 
agree on the rates, terms, and conditions for pole attachments. (Note 
that section 224(c) of the Communications Act of 1934, as amended (the 
Act), exempts from Commission jurisdiction those pole attachments in 
states that have elected to regulate pole attachments themselves. To 
date, 23 states and the District of Columbia have opted out of 
Commission regulation of pole attachments in their jurisdictions. The 
Commission's pole attachment rules currently only apply to cable 
operators and providers of telecommunications services and therefore do 
not apply to broadband-only internet service providers. We recently 
proposed to reclassify broadband internet access service as a 
telecommunications service,

[[Page 1861]]

which would, if completed, apply section 224 and the Commission's pole 
attachment rules to broadband-only internet service providers.) In this 
item, we take additional steps to speed broadband deployment by making 
the pole attachment process faster, more transparent, and more cost 
effective. Specifically, we adopt rules (1) establishing a new process 
for the Commission's review and assessment of pole attachment disputes 
that impede or delay broadband deployment in order to expedite 
resolution of such disputes, and (2) providing communications providers 
with information about the status of the utility poles they plan to use 
as they map out their broadband builds. Additionally, as a follow-on to 
the pole replacement clarification issued in the 2021 Pole Replacement 
Declaratory Ruling, in the Declaratory Ruling below we provide further 
clarification regarding cost causation when a pole must be replaced for 
any reason other than lacking capacity to support a new attachment. 
Specifically, we clarify that a ``red tagged'' pole is one that the 
utility has identified as needing replacement for any reason other than 
the pole's lack of capacity, and we provide additional examples of when 
a pole replacement is not ``necessitated solely'' as a result of a 
third party's attachment or modification request--i.e., when a pole 
already requires replacement at the time the new attacher makes a 
request. We also clarify the obligation to share easement information 
and the applicable timelines for the processing of attachment requests 
for 3,000 or more poles. Finally, we seek comment in the FNPRM on ways 
to further facilitate the processing of pole attachment applications 
and make-ready to enable faster broadband deployment.

II. Background

    3. In 1996, as part of its implementation of the pole attachment 
requirements located in sections 224(h) and 224(i) of the Act, the 
Commission determined that when a modification, such as a pole 
replacement, is undertaken for the benefit of a particular party, then 
under cost causation principles, the benefiting party must assume the 
cost of the modification. (Section 224(h) states that ``[w]henever the 
owner of a pole, duct, conduit, or right-of-way intends to modify or 
alter such pole, duct, conduit, or right-of-way, the owner shall 
provide written notification of such action to any entity that has 
obtained an attachment to such conduit or right-of-way so that such 
entity may have a reasonable opportunity to add to or modify its 
existing attachment. Any entity that adds to or modifies its existing 
attachment after receiving such notification shall bear a proportionate 
share of the costs incurred by the owner in making such pole, duct, 
conduit, or right-of-way accessible.'' Section 224(i) states that 
``[a]n entity that obtains an attachment to a pole, conduit, or right-
of-way shall not be required to bear any of the costs of rearranging or 
replacing its attachment, if such rearrangement or replacement is 
required as a result of an additional attachment or the modification of 
an existing attachment sought by any other entity (including the owner 
of such pole, duct, conduit, or right-of-way).'') The Commission also 
found that when a utility decides to modify a pole for its own benefit, 
and no other attachers derive a benefit from the modification, the 
utility must bear the full cost of the new pole. The Commission further 
adopted a cost sharing principle for when an existing attacher uses a 
modification by another party as an opportunity to add to or modify its 
own attachments and applied this principle to utilities and other 
attachers seeking to use modifications as an opportunity to bring their 
own facilities into compliance with safety or other requirements. In 
the 2018 Wireline Infrastructure Order, the Commission reiterated that 
application of the cost sharing principle.
    4. On July 16, 2020, NCTA--the Internet & Television Association 
(NCTA) filed a Petition asking the Commission to clarify its rules in 
the context of pole replacements. Specifically, NCTA asked the 
Commission to declare that: (1) utilities must share in the cost of 
pole replacements in unserved areas pursuant to section 224 of the Act, 
section 1.1408(b) of the Commission's rules, and Commission precedent; 
(2) pole attachment complaints arising in unserved areas should be 
prioritized through placement on the Accelerated Docket under Sec.  
1.736 of the Commission's rules; and (3) Sec.  1.1407(b) of the 
Commission's rules authorizes the Commission to order a utility to 
complete a pole replacement within a specified time frame or designate 
an authorized contractor to do so. NCTA argued that without Commission 
action, the costs and operational challenges associated with pole 
replacements will inhibit attachers from deploying broadband services 
to Americans in unserved areas.
    5. In the 2021 Pole Replacement Declaratory Ruling, although the 
Wireline Competition Bureau declined to act on NCTA's Petition, finding 
that ``it is more appropriate to address questions concerning the 
allocation of pole replacement costs within the context of a 
rulemaking, which provides the Commission with greater flexibility to 
tailor regulatory solutions,'' it observed that the record developed in 
response to the NCTA Petition revealed inconsistent practices by 
utilities with regard to cost responsibility for pole replacements. 
Accordingly, the Bureau clarified that, pursuant to Sec.  1.1408(b) of 
the Commission's rules and prior precedent, ``utilities may not require 
requesting attachers to pay the entire cost of pole replacements that 
are not solely caused by the new attacher and, thus, may not avoid 
responsibility for pole replacement costs by postponing replacements 
until new attachment requests are submitted.'' The Commission 
subsequently affirmed the Bureau's clarifications.
    6. Last year, the Commission issued a Second Further Notice (87 FR 
25181; Apr. 28, 2022) in this proceeding seeking comment on the 
universe of situations where the requesting attacher should not be 
required to pay for the full cost of a pole replacement and the proper 
allocation of costs among utilities and attachers in those situations. 
(To the extent that this Report and Order does not expressly address a 
topic that was subject to comment in the Second Further Notice, that 
issue remains pending.) Specifically, the Commission sought comment on 
the applicability of cost causation and cost allocation principles in 
the context of pole replacements--e.g., when is a pole replacement not 
caused (necessitated solely) by a new attachment request, and when and 
how parties must share in the costs of a pole replacement. The 
Commission also sought comment on the extent to which utilities 
directly benefit from pole replacements, including a utility's 
responsibility for the costs of pole upgrades and modifications 
unrelated to new attachments and the effect of early pole retirements 
on pole replacement cost causation and cost allocation calculations. 
The Second Further Notice also sought comment on whether the Commission 
should require utilities to share information with potential attachers 
concerning the condition and replacement status of their poles and 
other measures that may help avoid or expedite the resolution of 
disputes between the parties, including whether to expand use of the 
Commission's Accelerated Docket for pole attachment complaints and the 
specific criteria that Commission staff should use in deciding whether 
to place a pole complaint on the Accelerated Docket.

[[Page 1862]]

III. Further Notice of Proposed Rulemaking

    7. We recognize that Congress has undertaken a number of 
initiatives allocating funding to further the deployment of broadband 
to unserved and underserved areas of the United States. In connection 
with this funding, broadband providers will have to deploy extensive 
facilities. This, in turn will require that they file significant 
numbers of applications seeking to attach these facilities to large 
numbers of poles. To that end, we seek comment on ways to further 
facilitate the approval process for pole attachment applications and 
make-ready to enable speedier broadband deployment. In seeking comment 
on these areas, we emphasize that even when there is not a specific 
Commission rule or policy that governs a particular situation, it is 
our expectation that parties negotiate in good faith to resolve issues 
that may arise.
    8. Large Orders. We tentatively conclude that we should adopt a 
defined make-ready timeline for orders that exceed 3,000 poles or 5 
percent of the utility's poles in a state in order to facilitate the 
processing of pole attachment applications that are submitted in large 
numbers. We seek comment on this tentative conclusion. Our current 
make-ready rule requires make-ready in the communications space to be 
completed within 30 days after the utility sends a notification to all 
existing attachers on a pole. (The rule provides 90 days from 
attachments above the communications space.) The 30-day timeframe 
applies for communications space make-ready requests up to the lesser 
of 300 poles or 0.5 percent of the utility's poles in a state. This 
make-ready timeframe is extended 45 extra days for requests up to the 
lesser of 3,000 poles or 5 percent of the utility's poles in a state. 
For requests exceeding 3,000 poles or 5 percent of the utility's poles 
in the state, the Commission's rules require that a utility shall 
negotiate the timing of the make-ready in good faith. (As we clarify in 
the Declaratory Ruling accompanying this FNPRM, the first 3,000 poles 
of these large orders are subject to the timeline set forth in Sec.  
1.1411(g)(3).) We tentatively conclude that utilities should have an 
additional 90 days for make-ready for requests exceeding 3,000 poles or 
5 percent of the utility's poles in a state and seek comment on this 
tentative conclusion.
    9. NCTA asserts that our rules do not at present sufficiently 
address the needs of attachers with these larger requests in the latter 
category. For example, NCTA asserts that its members have faced 
situations where the utilities have imposed limits on (1) the number of 
poles that may be included in any one application, and (2) the number 
of applications an attacher may submit at a time. NCTA states that 
these limitations ``create problematic delays and jeopardize operators' 
ability to meet broadband build-out commitments.'' At the same time, 
USTelecom notes the difficulties presented by these very large orders, 
noting that ``make-ready requests involving more than 3,000 poles 
require flexibility that make-ready timelines cannot provide, given the 
many outside factors that impact the time required for make-ready for 
such large orders, including permitting delays, workforce shortages and 
staffing issues, and the coordination required among all the attachers 
to the poles.'' Given these factors, would 90 additional days over the 
timeline set forth in Sec.  1.411(e) be sufficient for processing these 
larger orders? Would some other amount of time be reasonable in all 
circumstances, or should the Commission create additional make-ready 
timeline tiers in its rules to differentiate between attachment 
applications that could range from requesting access to thousands of 
poles to tens or even hundreds of thousands of poles? If the Commission 
were to adopt additional make-ready timeline tiers, what would be an 
appropriate cut off number of poles for each tier? For instance, should 
the Commission add an additional number of days for application 
processing per 3,000 poles? Does the ability to deviate from the 
timelines specified in Sec.  1.1411 provide utilities with enough 
flexibility such that imposing a 90 additional day limit would be 
reasonable?
    10. We also seek comment on NCTA's proposal that the Commission 
revise its rules to prohibit utilities from limiting ``the size of an 
application or the number of poles included in an application so as to 
avoid the timelines.'' How prevalent are situations of the type 
described by NCTA? Are the reasons underlying utilities' imposition of 
such limitations as laid out by USTelecom valid, and do other reasons 
exist for these limitations? Would prohibiting utilities from imposing 
such limitations in fact speed up the attachment process, or would the 
same delays still exist for other reasons (e.g., lack of qualified 
workers, shortages in materials, etc.) or even, as USTelecom alleges, 
``ultimately slow--rather than--accelerate deployment''? Specifically, 
NCTA proposes adding additional time to the existing timelines for 
these ``larger'' orders, for which our rules require that utilities 
negotiate the timing in good faith. Would NCTA's proposed new timing 
requirements for larger orders facilitate the pole attachment process 
for such orders? Utilities have raised multiple concerns with such 
requirements. For example, they assert that compliance with expanded 
timelines may not be possible ``if many permit applications by multiple 
attachers are submitted at approximately the same time, or if the 
contractor's workload is already heavy.'' They also assert that given 
constraints on workforce availability, utilities would be forced to 
``choose between providing safe, reliable and affordable power to 
electric customers (which is mandated by the states), and performing 
requested pole replacements in an unreasonable and likely unattainable 
amount of time.'' Are these concerns valid? Are there any other reasons 
why NCTA's proposed new timing requirements for larger orders would not 
work? What are the respective costs and benefits of such potential 
requirements? What other steps could we take to facilitate the pole 
attachment process for larger orders?
    11. Self-Help and Use of Contractors. Should the Commission 
consider modifying its self-help rules to enable prospective attachers 
to access poles more quickly? NCTA also asserts that it has faced 
issues with utilities failing to process attachment applications in a 
timely manner. NCTA therefore proposes that utilities notify attachers 
in advance of survey and make-ready deadlines if the utility will be 
unable to complete a portion of the process. For instance, NCTA 
proposes that the utility notify an attacher 15 days after receiving a 
complete application that it cannot conduct the survey within the 
required 45-day period so that the attacher can elect self-help for the 
survey sooner. NCTA also proposes making self-help available for the 
estimate process, which is not contemplated under current Commission 
rules. We seek comment on NCTA's proposal. (We decline NCTA's request 
to adopt rules in the Fourth Report and Order regarding self-help and 
the use of contractors. We find that these issues would be better 
addressed after a more comprehensive record is developed.) How 
prevalent is the issue cited by NCTA? Can utilities feasibly be 
required to inform attachers within 15 business days of receiving a 
completed application that they will be unable to conduct a survey, 
estimate, or make-ready within the required time period? Do sufficient 
contractors exist that meet the minimum qualification

[[Page 1863]]

requirements set forth in our rules such that adoption of NCTA's 
proposal would have the desired effect of speeding broadband 
deployment? What are the respective costs and benefits of adopting 
NCTA's proposal? Are there other ways to assist utilities in processing 
the larger number of applications they will likely receive in the 
coming months and years based on the funding initiatives in place for 
accelerating broadband deployment to unserved and underserved areas?
    12. We also seek comment on the impact of contractor availability 
when attachers seek to use their own contractors when conducting self-
help or one-touch make-ready for surveys and make-ready work. 
Specifically, do we need to amend the Commission's rules to make it 
easier for attachers to use their own contractors to do self-help and 
one-touch make-ready surveys and make-ready work when there are no 
contractors available from a utility list? Utility commenters point out 
the labor constraints in the contractor workforce; given such 
constraints, do our current rules provide adequate relief to attachers 
to timely identify and use qualified contractors to do self-help and 
one-touch make-ready work? If not, what can the Commission do to change 
this dynamic?
    13. Pursuant to our rules, an attacher can do its own work when (1) 
completing surveys and make-ready work when the utility misses the 
deadlines for these activities, or (2) electing to use the one-touch 
make-ready process. (Note that there are no attacher self-help remedies 
for pole replacements.) When conducting self-help or one-touch make-
ready work, the attacher must use a utility-approved contractor. For 
self-help surveys and make-ready work that is complex or is above the 
communications space on a pole, our rules require that a utility make 
available and keep up to date a reasonably sufficient list of 
contractors that it authorizes to perform such work. (The term 
``complex make-ready'' means transfers and work within the 
communications space on a pole that would be reasonably likely to cause 
a service outage(s) or facility damage, including work such as splicing 
of any communication attachment or relocation of existing wireless 
attachments. Any and all wireless activities, including those involving 
mobile, fixed, and point-to-point wireless communications and wireless 
internet service providers, are to be considered complex.) Attachers 
can request to add contactors to the utility's list--provided the 
contractor meets the minimum qualifications in the Commission's rules--
and the utility cannot unreasonably withhold its consent. Further, a 
utility may, but is not required to, keep up-to-date a reasonably 
sufficient list of contractors it authorizes to perform surveys and 
simple make-ready. If a utility provides such a list, then the new 
attacher must choose a contractor from the list to perform the work. 
Again, attachers may request the addition to the list of any contractor 
that meets the minimum qualifications in the Commission's rules, and 
the utility cannot unreasonably withhold its consent. However, if the 
utility does not provide a list of approved contractors for surveys or 
simple make-ready work or no utility-approved contractor is available 
within a reasonable time period, then the new attacher may choose its 
own qualified contractor who meets the Commission's minimum 
requirements. Utilities retain the right to disqualify such contractor, 
but disqualification must be based on reasonable safety or reliability 
concerns related to the contractor's failure to meet any of the 
Commission's minimum qualifications or to meet the utility's publicly 
available and commercially reasonable safety or reliability standards. 
The utility must provide notice of this objection to the attacher and 
must identify at least one available qualified contractor that the 
attacher can use instead to perform simple surveys and make-ready work.
    14. Given that our current rules allow for attachers to choose 
their own contractors for one-touch make-ready and for self-help when 
the utility fails to meet the Commission's deadlines (provided such 
contractors meet the minimum qualifications set forth in our rules), we 
seek comment on whether attachers are availing themselves of this 
option. Have attachers faced any obstacles from utilities when seeking 
to invoke this option? While a utility cannot be blamed for a lack of 
available contractors in an area due to workforce constraints, are 
utilities seeking to use their discretion set forth in the rules to 
disqualify otherwise-qualified contractors whom attachers may seek to 
bring in from outside of an area? We note that, at least for surveys 
and simple make-ready work, our current rules already require the 
utility to designate an available contractor if it properly exercises 
its discretion to disqualify one chosen by an attacher--is this not 
being done? If not, is it due to labor constraints for which the 
utility should not be held responsible? In the instance where no 
qualified contractors are available for a project, how could the 
Commission help to solve that problem?

IV. Initial Regulatory Flexibility Analysis

    15. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities by the policies and rules proposed in this FNPRM. The 
Commission requests written public comments on this IRFA. Comments must 
be identified as responses to the IRFA and must be filed by the 
deadlines for comments provided on the first page of the FNPRM. The 
Commission will send a copy of the FNPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (SBA). 
In addition, the FNPRM and IRFA (or summaries thereof) will be 
published in the Federal Register.

A. Need for, and Objectives of, the Proposed Rules

    16. In order to continue the Commission's work combating illegal 
calls, this FNPRM proposes to impose several obligations on gateway 
providers. Specifically, the FNPRM proposes to require gateway 
providers to authenticate and employ robocall mitigation techniques on 
all SIP calls that they allow into the United States from abroad that 
display a U.S. number in the caller ID field. The FNPRM also proposes 
that gateway providers should engage in robocall mitigation by (1) 
responding to all traceback requests from the Commission, law 
enforcement, and the industry traceback consortium within 24 hours; (2) 
complying with mandatory call blocking requirements; (3) complying with 
enhanced know-your-customer obligations; (4) complying with a general 
duty to mitigate illegal robocalls; and (5) filing a certification in 
the Robocall Mitigation Database. The Commission also proposes one 
blocking requirement for intermediate and terminating providers 
immediately downstream from the gateway provider, which would require 
those providers to block all traffic from a gateway provider that fails 
to block or effectively mitigate illegal traffic when notified of such 
traffic by the Commission.

B. Legal Basis

    17. The FNPRM proposes to find authority largely under those 
provisions through which it has previously adopted rules to stem the 
tide of robocalls in its Call Blocking and Call

[[Page 1864]]

Authentication Orders. Specifically, the FNPRM proposes to find 
authority under sections 201(a) and (b), 202(a), 251(e), the Truth in 
Caller ID Act, the TRACED Act and, where appropriate, ancillary 
authority. The FNPRM also proposes to conclude that, to the extent any 
of the rules we seek to adopt have an effect on foreign service 
providers, that effect is only indirect and therefore consistent with 
the Commission's authority. The FNPRM solicits comment on these 
proposals.

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

    18. 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 proposed rules, if adopted. 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. (Pursuant to 5 U.S.C. 601(3), the statutory definition of a small 
business applies ``unless an agency, after consultation with the Office 
of Advocacy of the Small Business Administration and after opportunity 
for public comment, establishes one or more definitions of such term 
which are appropriate to the activities of the agency and publishes 
such definition(s) in the Federal Register.'') 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.
    19. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. Our actions, over time, may affect small entities that 
are not easily categorized at present. We therefore describe, 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 Small Business 
Administration's (SBA) 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 businesses in the United 
States, which translates to 33.2 million businesses.
    20. 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.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. (The IRS benchmark is similar to the 
population of less than 50,000 benchmark in 5 U.S.C. 601(5) that is 
used to define a small governmental jurisdiction. Therefore, the IRS 
benchmark has been used to estimate the number of small organizations 
in this small entity description. We note that the IRS data does not 
provide information on whether a small exempt organization is 
independently owned and operated or dominant in its field.) Nationwide, 
for tax year 2020, there were approximately 447,689 small exempt 
organizations in the U.S. reporting revenues of $50,000 or less 
according to the registration and tax data for exempt organizations 
available from the IRS. (The IRS Exempt Organization Business Master 
File (E.O. BMF) Extract provides information on all registered tax-
exempt/non-profit organizations. The data utilized for purposes of this 
description was extracted from the IRS E.O. BMF data for businesses for 
the tax year 2020 with revenue less than or equal to $50,000 for Region 
1--Northeast Area (58,577), Region 2--Mid-Atlantic and Great Lakes 
Areas (175,272), and Region 3--Gulf Coast and Pacific Coast Areas 
(213,840) that includes the continental U.S., Alaska, and Hawaii. This 
data does not include information for Puerto Rico.)
    21. 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 2017 Census of Governments indicate there were 
90,075 local governmental jurisdictions consisting of general purpose 
governments and special purpose governments in the United States. (The 
Census of Governments survey is conducted every five (5) years 
compiling data for years ending with ``2'' and ``7''.) (Local 
governmental jurisdictions are made up of general purpose governments 
(county, municipal and town or township) and special purpose 
governments (special districts and independent school districts).) Of 
this number, there were 36,931 general purpose governments (county, 
(there were 2,105 county governments with populations less than 50,000. 
This category does not include subcounty (municipal and township) 
governments) municipal, and town or township (there were 18,729 
municipal and 16,097 town and township governments with populations 
less than 50,000)) with populations of less than 50,000 and 12,040 
special purpose governments--independent school districts (there were 
12,040 independent school districts with enrollment populations less 
than 50,000) with enrollment populations of less than 50,000. (While 
the special purpose governments category also includes local special 
district governments, the 2017 Census of Governments data does not 
provide data aggregated based on population size for the special 
purpose governments category. Therefore, only data from independent 
school districts is included in the special purpose governments 
category.) Accordingly, based on the 2017 U.S. Census of Governments 
data, we estimate that at least 48,971 entities fall into the category 
of ``small governmental jurisdictions.'' (This total is derived from 
the sum of the number of general purpose governments (county, municipal 
and town or township) with populations of less than 50,000 (36,931) and 
the number of special purpose governments--independent school districts 
with enrollment populations of less than 50,000 (12,040), from the 2017 
Census of Governments--Organizations tbls. 5, 6 & 10.)
1. Internet Access Service Providers
    22. Wired Broadband Internet Access Service Providers (Wired ISPs). 
(Formerly included in the scope of the Internet Service Providers 
(Broadband), Wired Telecommunications Carriers and All Other 
Telecommunications small entity industry descriptions.) Providers of 
wired broadband internet access service include various types of 
providers except dial-up internet access providers. Wireline service 
that terminates at an end user location or mobile device and enables 
the end user to receive information from and/or send information to the 
internet at information transfer rates exceeding 200 kilobits per 
second (kbps) in at least one direction is classified as a broadband 
connection under the Commission's rules. Wired broadband internet 
services fall in the Wired Telecommunications Carriers industry. The 
SBA small business size standard for this industry classifies firms 
having 1,500 or fewer employees as small. U.S. Census Bureau data for 
2017 show that there were 3,054 firms that operated in this industry 
for the entire year. Of this number, 2,964 firms operated with fewer 
than 250 employees. (The available U.S. Census Bureau data does not 
provide a more

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precise estimate of the number of firms that meet the SBA size 
standard.)
    23. Additionally, according to Commission data on internet access 
services as of June 30, 2019, nationwide there were approximately 2,747 
providers of connections over 200 kbps in at least one direction using 
various wireline technologies. (The technologies used by providers 
include aDSL, sDSL, Other Wireline, Cable Modem and FTTP). Other 
wireline includes: all copper-wire based technologies other than xDSL 
(such as Ethernet over copper, T-1/DS-1 and T3/DS-1) as well as power 
line technologies which are included in this category to maintain the 
confidentiality of the providers.) The Commission does not collect data 
on the number of employees for providers of these services, therefore, 
at this time we are not able to estimate the number of providers that 
would qualify as small under the SBA's small business size standard. 
However, in light of the general data on fixed technology service 
providers in the Commission's 2022 Communications Marketplace Report, 
we believe that the majority of wireline internet access service 
providers can be considered small entities.
    24. Internet Service Providers (Non-Broadband). Internet access 
service providers using client-supplied telecommunications connections 
(e.g., dial-up ISPs) as well as VoIP service providers using client-
supplied telecommunications connections fall in the industry 
classification of All Other Telecommunications. The SBA small business 
size standard for this industry classifies firms with annual receipts 
of $35 million or less as small. For this industry, U.S. Census Bureau 
data for 2017 show that there were 1,079 firms in this industry that 
operated for the entire year. Of those firms, 1,039 had revenue of less 
than $25 million. (The available U.S. Census Bureau data does not 
provide a more precise estimate of the number of firms that meet the 
SBA size standard. We also note that according to the U.S. Census 
Bureau glossary, the terms receipts and revenues are used 
interchangeably.) Consequently, under the SBA size standard a majority 
of firms in this industry can be considered small.
2. Wireline Providers
    25. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as 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 communications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies. Establishments in this industry use the wired 
telecommunications network facilities that they operate to provide a 
variety of services, such as wired telephony services, including VoIP 
services, wired (cable) audio and video programming distribution, and 
wired broadband internet services. By exception, establishments 
providing satellite television distribution services using facilities 
and infrastructure that they operate are included in this industry. 
Wired Telecommunications Carriers are also referred to as wireline 
carriers or fixed local service providers. (Fixed Local Service 
Providers include the following types of providers: Incumbent Local 
Exchange Carriers (ILECs), Competitive Access Providers (CAPs) and 
Competitive Local Exchange Carriers (CLECs), Cable/Coax CLECs, 
Interconnected VOIP Providers, Non-Interconnected VOIP Providers, 
Shared-Tenant Service Providers, Audio Bridge Service Providers, and 
Other Local Service Providers. Local Resellers fall into another U.S. 
Census Bureau industry group and therefore data for these providers is 
not included in this industry.)
    26. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms that operated in this industry for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. (The 
available U.S. Census Bureau data does not provide a more precise 
estimate of the number of firms that meet the SBA size standard.) 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 4,590 providers 
that reported they were engaged in the provision of fixed local 
services. Of these providers, the Commission estimates that 4,146 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    27. Local Exchange Carriers (LECs). Neither the Commission nor the 
SBA has developed a size standard for small businesses specifically 
applicable to local exchange services. Providers of these services 
include both incumbent and competitive local exchange service 
providers. Wired Telecommunications Carriers is the closest industry 
with an SBA small business size standard. Wired Telecommunications 
Carriers are also referred to as wireline carriers or fixed local 
service providers. (Fixed Local Exchange Service Providers include the 
following types of providers: Incumbent Local Exchange Carriers 
(ILECs), Competitive Access Providers (CAPs) and Competitive Local 
Exchange Carriers (CLECs), Cable/Coax CLECs, Interconnected VOIP 
Providers, Non-Interconnected VOIP Providers, Shared Tenant Service 
Providers, Audio Bridge Service Providers, Local Resellers, and Other 
Local Service Providers.) The SBA small business size standard for 
Wired Telecommunications Carriers classifies firms having 1,500 or 
fewer employees as small. U.S. Census Bureau data for 2017 show that 
there were 3,054 firms that operated in this industry for the entire 
year. Of this number, 2,964 firms operated with fewer than 250 
employees. (The available U.S. Census Bureau data does not provide a 
more precise estimate of the number of firms that meet the SBA size 
standard.) Additionally, based on Commission data in the 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 4,590 
providers that reported they were fixed local exchange service 
providers. Of these providers, the Commission estimates that 4,146 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    28. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the 
Commission nor the SBA have developed a small business size standard 
specifically for incumbent local exchange carriers. Wired 
Telecommunications Carriers is the closest industry with an SBA small 
business size standard. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms in this industry that operated for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. (The 
available U.S. Census Bureau data does not provide a more precise 
estimate of the number of firms that meet the SBA size standard.) 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 1,212 providers 
that reported they were incumbent local exchange service providers. Of 
these providers, the Commission estimates that 916 providers have 1,500 
or fewer employees. Consequently, using the

[[Page 1866]]

SBA's small business size standard, the Commission estimates that the 
majority of incumbent local exchange carriers can be considered small 
entities.
    29. Competitive Local Exchange Carriers (LECs). Neither the 
Commission nor the SBA has developed a size standard for small 
businesses specifically applicable to local exchange services. 
Providers of these services include several types of competitive local 
exchange service providers. (Competitive Local Exchange Service 
Providers include the following types of providers: Competitive Access 
Providers (CAPs) and Competitive Local Exchange Carriers (CLECs), 
Cable/Coax CLECs, Interconnected VOIP Providers, Non-Interconnected 
VOIP Providers, Shared Tenant Service Providers, Audio Bridge Service 
Providers, Local Resellers, and Other Local Service Providers.) Wired 
Telecommunications Carriers is the closest industry with an SBA small 
business size standard. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms that operated in this industry for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. (The 
available U.S. Census Bureau data does not provide a more precise 
estimate of the number of firms that meet the SBA size standard.) 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 3,378 providers 
that reported they were competitive local exchange service providers. 
Of these providers, the Commission estimates that 3,230 providers have 
1,500 or fewer employees. Consequently, using the SBA's small business 
size standard, most of these providers can be considered small 
entities.
    30. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA has developed a small business size standard specifically for 
Interexchange Carriers. Wired Telecommunications Carriers is the 
closest industry with an SBA small business size standard. The SBA 
small business size standard for Wired Telecommunications Carriers 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms that operated in 
this industry for the entire year. Of this number, 2,964 firms operated 
with fewer than 250 employees. (The available U.S. Census Bureau data 
does not provide a more precise estimate of the number of firms that 
meet the SBA size standard.) Additionally, based on Commission data in 
the 2022 Universal Service Monitoring Report, as of December 31, 2021, 
there were 127 providers that reported they were engaged in the 
provision of interexchange services. Of these providers, the Commission 
estimates that 109 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, the 
Commission estimates that the majority of providers in this industry 
can be considered small entities.
    31. Operator Service Providers (OSPs). Neither the Commission nor 
the SBA has developed a small business size standard specifically for 
operator service providers. The closest applicable industry with an SBA 
small business size standard is Wired Telecommunications Carriers. The 
SBA small business size standard classifies a business as small if it 
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 3,054 firms in this industry that operated for the 
entire year. Of this number, 2,964 firms operated with fewer than 250 
employees. (The available U.S. Census Bureau data does not provide a 
more precise estimate of the number of firms that meet the SBA size 
standard.) Additionally, based on Commission data in the 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 20 
providers that reported they were engaged in the provision of operator 
services. Of these providers, the Commission estimates that all 20 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, all of these providers can be considered 
small entities.
    32. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a definition for small businesses specifically applicable to 
Other Toll Carriers. This category includes toll carriers that do not 
fall within the categories of interexchange carriers, operator service 
providers, prepaid calling card providers, satellite service carriers, 
or toll resellers. Wired Telecommunications Carriers is the closest 
industry with an SBA small business size standard. The SBA small 
business size standard for Wired Telecommunications Carriers classifies 
firms having 1,500 or fewer employees as small. U.S. Census Bureau data 
for 2017 show that there were 3,054 firms in this industry that 
operated for the entire year. Of this number, 2,964 firms operated with 
fewer than 250 employees. (The available U.S. Census Bureau data does 
not provide a more precise estimate of the number of firms that meet 
the SBA size standard.) Additionally, based on Commission data in the 
2022 Universal Service Monitoring Report, as of December 31, 2021, 
there were 90 providers that reported they were engaged in the 
provision of other toll services. Of these providers, the Commission 
estimates that 87 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
3. Wireless Providers--Fixed and Mobile
    33. The broadband internet access service provider category covered 
by these new rules may cover multiple wireless firms and categories of 
regulated wireless services. (This includes, among others, the 
approximately 800 members of WISPA, including those entities who 
provide fixed wireless broadband service using unlicensed spectrum. We 
also consider the impact to these entities for the purposes of this 
FRFA, by including them under the ``Wireless Providers--Fixed and 
Mobile'' category.) Thus, to the extent the wireless services listed 
below are used by wireless firms for broadband internet access service, 
the actions may have an impact on those small businesses as set forth 
above and further below. In addition, for those services subject to 
auctions, we note that, as a general matter, the number of winning 
bidders that claim to qualify as small businesses at the close of an 
auction does not necessarily represent the number of small businesses 
currently in service. Also, the Commission does not generally track 
subsequent business size unless, in the context of assignments and 
transfers or reportable eligibility events, unjust enrichment issues 
are implicated.
    34. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
SBA size standard for this industry classifies a business as small if 
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 2,893 firms in this industry that operated for the 
entire year. Of that number, 2,837 firms employed fewer than 250 
employees. (The available U.S. Census Bureau data does not provide a 
more precise estimate of the number of firms that meet the SBA size 
standard.)

[[Page 1867]]

Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 594 providers 
that reported they were engaged in the provision of wireless services. 
Of these providers, the Commission estimates that 511 providers have 
1,500 or fewer employees. Consequently, using the SBA's small business 
size standard, most of these providers can be considered small 
entities.
    35. Wireless Communications Services. Wireless Communications 
Services (WCS) can be used for a variety of fixed, mobile, 
radiolocation, and digital audio broadcasting satellite services. 
Wireless spectrum is made available and licensed for the provision of 
wireless communications services in several frequency bands subject to 
Part 27 of the Commission's rules. Wireless Telecommunications Carriers 
(except Satellite) is the closest industry with an SBA small business 
size standard applicable to these services. The SBA small business size 
standard for this industry classifies a business as small if it has 
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 
there were 2,893 firms that operated in this industry for the entire 
year. Of this number, 2,837 firms employed fewer than 250 employees. 
(The available U.S. Census Bureau data does not provide a more precise 
estimate of the number of firms that meet the SBA size standard.) Thus 
under the SBA size standard, the Commission estimates that a majority 
of licensees in this industry can be considered small.
    36. The Commission's small business size standards with respect to 
WCS involve eligibility for bidding credits and installment payments in 
the auction of licenses for the various frequency bands included in 
WCS. When bidding credits are adopted for the auction of licenses in 
WCS frequency bands, such credits may be available to several types of 
small businesses based average gross revenues (small, very small and 
entrepreneur) pursuant to the competitive bidding rules adopted in 
conjunction with the requirements for the auction and/or as identified 
in the designated entities section in Part 27 of the Commission's rules 
for the specific WCS frequency bands. (The ``Designated entities'' 
sections in subparts D-Q each contain the small business size standards 
adopted for the auction of the frequency band covered by that subpart.)
    37. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    38. 1670-1675 MHz Services. These wireless communications services 
can be used for fixed and mobile uses, except aeronautical mobile. 
Wireless Telecommunications Carriers (except Satellite) is the closest 
industry with an SBA small business size standard applicable to these 
services. The SBA size standard for this industry classifies a business 
as small if it has 1,500 or fewer employees. U.S. Census Bureau data 
for 2017 show that there were 2,893 firms that operated in this 
industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. (The available U.S. Census Bureau data does 
not provide a more precise estimate of the number of firms that meet 
the SBA size standard.) Thus under the SBA size standard, the 
Commission estimates that a majority of licensees in this industry can 
be considered small.
    39. According to Commission data as of November 2021, there were 
three active licenses in this service. (Based on an FCC Universal 
Licensing System search on November 8, 2021, search parameters: Service 
Group = All, ``Match only the following radio service(s)'', Radio 
Service = BC; Authorization Type = All; Status = Active. We note that 
the number of active licenses does not equate to the number of 
licensees. A licensee can have one or more licenses.) The Commission's 
small business size standards with respect to 1670-1675 MHz Services 
involve eligibility for bidding credits and installment payments in the 
auction of licenses for these services. For licenses in the 1670-1675 
MHz service band, a ``small business'' is defined as an entity that, 
together with its affiliates and controlling interests, has average 
gross revenues not exceeding $40 million for the preceding three years, 
and a ``very small business'' is defined as an entity that, together 
with its affiliates and controlling interests, has had average annual 
gross revenues not exceeding $15 million for the preceding three years. 
The 1670-1675 MHz service band auction's winning bidder did not claim 
small business status.
    40. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    41. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services, and specialized mobile radio 
telephony carriers. The closest applicable industry with an SBA small 
business size standard is Wireless Telecommunications Carriers (except 
Satellite). The size standard for this industry under SBA rules is that 
a business is small if it has 1,500 or fewer employees. For this 
industry, U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated for the entire year. Of this number, 2,837 firms 
employed fewer than 250 employees. (The available U.S. Census Bureau 
data does not provide a more precise estimate of the number of firms 
that meet the SBA size standard.) Additionally, based on Commission 
data in the 2022 Universal Service Monitoring Report, as of December 
31, 2021, there were 331 providers that reported they were engaged in 
the provision of cellular, personal communications services, and 
specialized mobile radio services. Of these providers, the Commission 
estimates that 255 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
    42. Broadband Personal Communications Service. The broadband 
personal communications services (PCS) spectrum encompasses services in 
the 1850-1910 and 1930-1990 MHz bands. The closest industry with a SBA 
small business size standard applicable to these services is Wireless 
Telecommunications Carriers (except Satellite). The SBA small business 
size standard for this industry classifies a business as small if it 
has 1,500 or fewer employees. U.S. Census Bureau data for

[[Page 1868]]

2017 show that there were 2,893 firms that operated in this industry 
for the entire year. Of this number, 2,837 firms employed fewer than 
250 employees. (The available U.S. Census Bureau data does not provide 
a more precise estimate of the number of firms that meet the SBA size 
standard.) Thus under the SBA size standard, the Commission estimates 
that a majority of licensees in this industry can be considered small.
    43. Based on Commission data as of November 2021, there were 
approximately 5,060 active licenses in the Broadband PCS service. 
(Based on a FCC Universal Licensing System search on November 16, 2021, 
search parameters: Service Group = All, ``Match only the following 
radio service(s)'', Radio Service = CW; Authorization Type = All; 
Status = Active. We note that the number of active licenses does not 
equate to the number of licensees. A licensee can have one or more 
licenses.) The Commission's small business size standards with respect 
to Broadband PCS involve eligibility for bidding credits and 
installment payments in the auction of licenses for these services. In 
auctions for these licenses, the Commission defined ``small business'' 
as an entity that, together with its affiliates and controlling 
interests, has average gross revenues not exceeding $40 million for the 
preceding three years, and a ``very small business'' as an entity that, 
together with its affiliates and controlling interests, has had average 
annual gross revenues not exceeding $15 million for the preceding three 
years. Winning bidders claiming small business credits won Broadband 
PCS licenses in C, D, E, and F Blocks.
    44. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these, at this time we are not able to estimate the 
number of licensees with active licenses that would qualify as small 
under the SBA's small business size standard.
    45. Specialized Mobile Radio Licenses. Special Mobile Radio (SMR) 
licenses allow licensees to provide land mobile communications services 
(other than radiolocation services) in the 800 MHz and 900 MHz spectrum 
bands on a commercial basis including but not limited to services used 
for voice and data communications, paging, and facsimile services, to 
individuals, Federal Government entities, and other entities licensed 
under Part 90 of the Commission's rules. Wireless Telecommunications 
Carriers (except Satellite) is the closest industry with a SBA small 
business size standard applicable to these services. The SBA size 
standard for this industry classifies a business as small if it has 
1,500 or fewer employees. For this industry, U.S. Census Bureau data 
for 2017 show that there were 2,893 firms in this industry that 
operated for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. (The available U.S. Census Bureau data does 
not provide a more precise estimate of the number of firms that meet 
the SBA size standard.) Additionally, based on Commission data in the 
2022 Universal Service Monitoring Report, as of December 31, 2021, 
there were 95 providers that reported they were of SMR (dispatch) 
providers. Of this number, the Commission estimates that all 95 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, these 119 SMR licensees can be considered 
small entities. (We note that there were also SMR providers reporting 
in the ``Cellular/PCS/SMR'' classification, therefore there are maybe 
additional SMR providers that have not been accounted for in the SMR 
(dispatch) classification.)
    46. Based on Commission data as of December 2021, there were 3,924 
active SMR licenses. (Based on a FCC Universal Licensing System search 
on December 15, 2021, search parameters: Service Group = All, ``Match 
radio services within this group'', Radio Service = SMR; Authorization 
Type = All; Status = Active. We note that the number of active licenses 
does not equate to the number of licensees. A licensee can have one or 
more licenses.) However, since the Commission does not collect data on 
the number of employees for licensees providing SMR services, at this 
time we are not able to estimate the number of licensees with active 
licenses that would qualify as small under the SBA's small business 
size standard. Nevertheless, for purposes of this analysis the 
Commission estimates that the majority of SMR licensees can be 
considered small entities using the SBA's small business size standard.
    47. Lower 700 MHz Band Licenses. The lower 700 MHz band encompasses 
spectrum in the 698-746 MHz frequency bands. Permissible operations in 
these bands include flexible fixed, mobile, and broadcast uses, 
including mobile and other digital new broadcast operation; fixed and 
mobile wireless commercial services (including FDD- and TDD-based 
services); as well as fixed and mobile wireless uses for private, 
internal radio needs, two-way interactive, cellular, and mobile 
television broadcasting services. Wireless Telecommunications Carriers 
(except Satellite) is the closest industry with a SBA small business 
size standard applicable to licenses providing services in these bands. 
The SBA small business size standard for this industry classifies a 
business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show that there were 2,893 firms that operated in 
this industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. (The available U.S. Census Bureau data does 
not provide a more precise estimate of the number of firms that meet 
the SBA size standard.) Thus under the SBA size standard, the 
Commission estimates that a majority of licensees in this industry can 
be considered small.
    48. According to Commission data as of December 2021, there were 
approximately 2,824 active Lower 700 MHz Band licenses. (Based on a FCC 
Universal Licensing System search on December 14, 2021, search 
parameters: Service Group = All, ``Match only the following radio 
service(s)'', Radio Service = WY, WZ; Authorization Type = All; Status 
= Active. We note that the number of active licenses does not equate to 
the number of licensees. A licensee can have one or more licenses.) The 
Commission's small business size standards with respect to Lower 700 
MHz Band licensees involve eligibility for bidding credits and 
installment payments in the auction of licenses. For auctions of Lower 
700 MHz Band licenses the Commission adopted criteria for three groups 
of small businesses. A very small business was defined as an entity 
that, together with its affiliates and controlling interests, has 
average annual gross revenues not exceeding $15 million for the 
preceding three years, a small business was defined as an entity that, 
together with its affiliates and controlling interests, has average 
gross revenues not exceeding $40 million for the preceding three years, 
and an entrepreneur was defined as an entity that, together with its 
affiliates and controlling interests, has average gross revenues not 
exceeding $3 million for the preceding

[[Page 1869]]

three years. In auctions for Lower 700 MHz Band licenses seventy-two 
winning bidders claiming a small business classification won 329 
licenses, twenty-six winning bidders claiming a small business 
classification won 214 licenses, and three winning bidders claiming a 
small business classification won all five auctioned licenses.
    49. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    50. Upper 700 MHz Band Licenses. The upper 700 MHz band encompasses 
spectrum in the 746-806 MHz bands. Upper 700 MHz D Block licenses are 
nationwide licenses associated with the 758-763 MHz and 788-793 MHz 
bands. Permissible operations in these bands include flexible fixed, 
mobile, and broadcast uses, including mobile and other digital new 
broadcast operation; fixed and mobile wireless commercial services 
(including FDD- and TDD-based services); as well as fixed and mobile 
wireless uses for private, internal radio needs, two-way interactive, 
cellular, and mobile television broadcasting services. (We note that in 
Auction 73, Upper 700 MHz Band C and D Blocks as well as Lower 700 MHz 
Band A, B, and E Blocks were auctioned.) Wireless Telecommunications 
Carriers (except Satellite) is the closest industry with a SBA small 
business size standard applicable to licenses providing services in 
these bands. The SBA small business size standard for this industry 
classifies a business as small if it has 1,500 or fewer employees. U.S. 
Census Bureau data for 2017 show that there were 2,893 firms that 
operated in this industry for the entire year. Of that number, 2,837 
firms employed fewer than 250 employees. (The available U.S. Census 
Bureau data does not provide a more precise estimate of the number of 
firms that meet the SBA size standard.) Thus, under the SBA size 
standard, the Commission estimates that a majority of licensees in this 
industry can be considered small.
    51. According to Commission data as of December 2021, there were 
approximately 152 active Upper 700 MHz Band licenses. (Based on a FCC 
Universal Licensing System search on December 14, 2021, search 
parameters: Service Group = All, ``Match only the following radio 
service(s)'', Radio Service = WP, WU; Authorization Type = All; Status 
= Active. We note that the number of active licenses does not equate to 
the number of licensees. A licensee can have one or more licenses.) The 
Commission's small business size standards with respect to Upper 700 
MHz Band licensees involve eligibility for bidding credits and 
installment payments in the auction of licenses. For the auction of 
these licenses, the Commission defined a ``small business'' as an 
entity that, together with its affiliates and controlling principals, 
has average gross revenues not exceeding $40 million for the preceding 
three years, and a ``very small business'' an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues that are not more than $15 million for the preceding three 
years. Pursuant to these definitions, three winning bidders claiming 
very small business status won five of the twelve available licenses.
    52. Air-Ground Radiotelephone Service. Air-Ground Radiotelephone 
Service is a wireless service in which licensees are authorized to 
offer and provide radio telecommunications service for hire to 
subscribers in aircraft. A licensee may provide any type of air-ground 
service (i.e., voice telephony, broadband internet, data, etc.) to 
aircraft of any type, and serve any or all aviation markets 
(commercial, government, and general). A licensee must provide service 
to aircraft and may not provide ancillary land mobile or fixed services 
in the 800 MHz air-ground spectrum.
    53. The closest industry with an SBA small business size standard 
applicable to these services is Wireless Telecommunications Carriers 
(except Satellite). The SBA small business size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. (The available 
U.S. Census Bureau data does not provide a more precise estimate of the 
number of firms that meet the SBA size standard.) Thus under the SBA 
size standard, the Commission estimates that a majority of licensees in 
this industry can be considered small.
    54. Based on Commission data as of December 2021, there were 
approximately four licensees with 110 active licenses in the Air-Ground 
Radiotelephone Service. (Based on a FCC Universal Licensing System 
search on December 20, 2021, search parameters: Service Group = All, 
``Match only the following radio service(s)'', Radio Service = CG, CJ; 
Authorization Type = All; Status = Active. We note that the number of 
active licenses does not equate to the number of licensees. A licensee 
can have one or more licenses.) The Commission's small business size 
standards with respect to Air-Ground Radiotelephone Service involve 
eligibility for bidding credits and installment payments in the auction 
of licenses. For purposes of auctions, the Commission defined ``small 
business'' as an entity that, together with its affiliates and 
controlling interests, has average gross revenues not exceeding $40 
million for the preceding three years, and a ``very small business'' as 
an entity that, together with its affiliates and controlling interests, 
has had average annual gross revenues not exceeding $15 million for the 
preceding three years. In the auction of Air-Ground Radiotelephone 
Service licenses in the 800 MHz band, neither of the two winning 
bidders claimed small business status.
    55. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, the Commission 
does not collect data on the number of employees for licensees 
providing these services therefore, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    56. 3650-3700 MHz Band. Wireless broadband service licensing in the 
3650-3700 MHz band provides for nationwide, non-exclusive licensing of 
terrestrial operations, utilizing contention-based technologies, in the 
3650 MHz band (i.e., 3650-3700 MHz). Licensees are permitted to provide 
services on a non-common carrier and/or on a common carrier basis. 
Wireless broadband services in the 3650-3700

[[Page 1870]]

MHz band fall in the Wireless Telecommunications Carriers (except 
Satellite) industry with an SBA small business size standard that 
classifies a business as small if it has 1,500 or fewer employees. U.S. 
Census Bureau data for 2017 show that there were 2,893 firms that 
operated in this industry for the entire year. Of this number, 2,837 
firms employed fewer than 250 employees. (The available U.S. Census 
Bureau data does not provide a more precise estimate of the number of 
firms that meet the SBA size standard.) Thus under the SBA size 
standard, the Commission estimates that a majority of licensees in this 
industry can be considered small.
    57. The Commission has not developed a small business size standard 
applicable to 3650-3700 MHz band licensees. Based on the licenses that 
have been granted, however, we estimate that the majority of licensees 
in this service are small internet Access Service Providers (ISPs). As 
of November 2021, Commission data shows that there were 902 active 
licenses in the 3650-3700 MHz band. (Based on an FCC Universal 
Licensing System search on November 19, 2021, search parameters: 
Service Group = All, ``Match only the following radio service(s)'', 
Radio Service = NN; Authorization Type =All; Status = Active. We note 
that the number of active licenses does not equate to the number of 
licensees. A licensee can have one or more licenses.) However, since 
the Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    58. Fixed Microwave Services. Fixed microwave services include 
common carrier, private-operational fixed, and broadcast auxiliary 
radio services. (Auxiliary Microwave Service is governed by part 74 of 
Title 47 of the Commission's Rules. Available to licensees of broadcast 
stations and to broadcast and cable network entities, broadcast 
auxiliary microwave stations are used for relaying broadcast television 
signals from the studio to the transmitter, or between two points such 
as a main studio and an auxiliary studio. The service also includes 
mobile TV pickups, which relay signals from a remote location back to 
the studio.) They also include the Upper Microwave Flexible Use Service 
(UMFUS), Millimeter Wave Service (70/80/90 GHz), Local Multipoint 
Distribution Service (LMDS), the Digital Electronic Message Service 
(DEMS), 24 GHz Service, Multiple Address Systems (MAS), and 
Multichannel Video Distribution and Data Service (MVDDS), where in some 
bands licensees can choose between common carrier and non-common 
carrier status. Wireless Telecommunications Carriers (except Satellite) 
is the closest industry with a SBA small business size standard 
applicable to these services. The SBA small size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. (The available 
U.S. Census Bureau data does not provide a more precise estimate of the 
number of firms that meet the SBA size standard.) Thus under the SBA 
size standard, the Commission estimates that a majority of fixed 
microwave service licensees can be considered small.
    59. The Commission's small business size standards with respect to 
fixed microwave services involve eligibility for bidding credits and 
installment payments in the auction of licenses for the various 
frequency bands included in fixed microwave services. When bidding 
credits are adopted for the auction of licenses in fixed microwave 
services frequency bands, such credits may be available to several 
types of small businesses based average gross revenues (small, very 
small and entrepreneur) pursuant to the competitive bidding rules 
adopted in conjunction with the requirements for the auction and/or as 
identified in part 101 of the Commission's rules for the specific fixed 
microwave services frequency bands.
    60. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    61. 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)). (The 
use of the term ``wireless cable'' does not imply that it constitutes 
cable television for statutory or regulatory purposes.) Wireless cable 
operators that use spectrum in the BRS often supplemented with leased 
channels from the EBS, provide a competitive alternative to wired cable 
and other multichannel video programming distributors. Wireless cable 
programming to subscribers resembles cable television, but instead of 
coaxial cable, wireless cable uses microwave channels. (Generally, a 
wireless cable system may be described as a microwave station 
transmitting on a combination of BRS and EBS channels to numerous 
receivers with antennas, such as single-family residences, apartment 
complexes, hotels, educational institutions, business entities and 
governmental offices. The range of the transmission depends upon the 
transmitter power, the type of receiving antenna and the existence of a 
line-of-sight path between the transmitter or signal booster and the 
receiving antenna.)
    62. In light of the use of wireless frequencies by BRS and EBS 
services, the closest industry with a SBA small business size standard 
applicable to these services is Wireless Telecommunications Carriers 
(except Satellite). The SBA small business size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. (The available 
U.S. Census Bureau data does not provide a more precise estimate of the 
number of firms that meet the SBA size standard.) Thus under the SBA 
size standard, the Commission estimates that a majority of licensees in 
this industry can be considered small.
    63. According to Commission data as December 2021, there were 
approximately 5,869 active BRS and EBS licenses. (Based on an FCC 
Universal Licensing System search on December 10, 2021, search 
parameters: Service Group = All, ``Match only the following radio 
service(s)'', Radio

[[Page 1871]]

Service = BR, ED; Authorization Type = All; Status = Active. We note 
that the number of active licenses does not equate to the number of 
licensees. A licensee can have one or more licenses.) The Commission's 
small business size standards with respect to BRS involves eligibility 
for bidding credits and installment payments in the auction of licenses 
for these services. For the auction of BRS licenses, the Commission 
adopted criteria for three groups of small businesses. A very small 
business is an entity that, together with its affiliates and 
controlling interests, has average annual gross revenues exceed $3 
million and did not exceed $15 million for the preceding three years, a 
small business is an entity that, together with its affiliates and 
controlling interests, has average gross revenues exceed $15 million 
and did not exceed $40 million for the preceding three years, and an 
entrepreneur is an entity that, together with its affiliates and 
controlling interests, has average gross revenues not exceeding $3 
million for the preceding three years. Of the ten winning bidders for 
BRS licenses, two bidders claiming the small business status won 4 
licenses, one bidder claiming the very small business status won three 
licenses and two bidders claiming entrepreneur status won six licenses. 
One of the winning bidders claiming a small business status 
classification in the BRS license auction has an active license as of 
December 2021. (We note that the number of active licenses does not 
equate to the number of licensees. A licensee can have one or more 
licenses.) We note that the number of active licenses does not equate 
to the number of licensees. A licensee can have one or more licenses.
    64. The Commission's small business size standards for EBS define a 
small business as an entity that, together with its affiliates, its 
controlling interests and the affiliates of its controlling interests, 
has average gross revenues that are not more than $55 million for the 
preceding five (5) years, and a very small business is an entity that, 
together with its affiliates, its controlling interests and the 
affiliates of its controlling interests, has average gross revenues 
that are not more than $20 million for the preceding five (5) years. In 
frequency bands where licenses were subject to auction, the Commission 
notes that as a general matter, the number of winning bidders that 
qualify as small businesses at the close of an auction does not 
necessarily represent the number of small businesses currently in 
service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
4. Satellite Service Providers
    65. Satellite Telecommunications. This industry 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 SBA small business size standard for this 
industry classifies a business with $35 million or less in annual 
receipts as small. U.S. Census Bureau data for 2017 show that 275 firms 
in this industry operated for the entire year. Of this number, 242 
firms had revenue of less than $25 million. (The available U.S. Census 
Bureau data does not provide a more precise estimate of the number of 
firms that meet the SBA size standard. We also note that according to 
the U.S. Census Bureau glossary, the terms receipts and revenues are 
used interchangeably.) Additionally, based on Commission data in the 
2022 Universal Service Monitoring Report, as of December 31, 2021, 
there were 65 providers that reported they were engaged in the 
provision of satellite telecommunications services. Of these providers, 
the Commission estimates that approximately 42 providers have 1,500 or 
fewer employees. Consequently, using the SBA's small business size 
standard, a little more than half of these providers can be considered 
small entities.
    66. All Other Telecommunications. This industry 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. Providers of 
internet services (e.g. dial-up ISPs) or voice over internet protocol 
(VoIP) services, via client-supplied telecommunications connections are 
also included in this industry. The SBA small business size standard 
for this industry classifies firms with annual receipts of $35 million 
or less as small. U.S. Census Bureau data for 2017 show that there were 
1,079 firms in this industry that operated for the entire year. Of 
those firms, 1,039 had revenue of less than $25 million. (The available 
U.S. Census Bureau data does not provide a more precise estimate of the 
number of firms that meet the SBA size standard. We also note that 
according to the U.S. Census Bureau glossary, the terms receipts and 
revenues are used interchangeably.) Based on this data, the Commission 
estimates that the majority of ``All Other Telecommunications'' firms 
can be considered small.
5. Cable Service Providers
    67. Because section 706 of the Act requires us to monitor the 
deployment of broadband using any technology, we anticipate that some 
broadband service providers may not provide telephone service. 
Accordingly, we describe below other types of firms that may provide 
broadband services, including cable companies, MDS providers, and 
utilities, among others.
    68. Cable and Other Subscription Programming. The U.S. Census 
Bureau defines this industry as establishments primarily engaged in 
operating studios and facilities for the broadcasting of programs on a 
subscription or fee basis. The broadcast programming is typically 
narrowcast in nature (e.g., limited format, such as news, sports, 
education, or youth-oriented). These establishments produce programming 
in their own facilities or acquire programming from external sources. 
The programming material is usually delivered to a third party, such as 
cable systems or direct-to-home satellite systems, for transmission to 
viewers. The SBA small business size standard for this industry 
classifies firms with annual receipts less than $41.5 million as small. 
Based on U.S. Census Bureau data for 2017, 378 firms operated in this 
industry during that year. (The U.S. Census Bureau withheld publication 
of the number of firms that operated for the entire year to avoid 
disclosing data for individual companies (see Cell Notes for this 
category).) Of that number, 149 firms operated with revenue of less 
than $25 million a year and 44 firms operated with revenue of $25 
million or more. (The available U.S. Census Bureau data does not 
provide a more precise estimate of the number of firms that meet the 
SBA size standard. We note

[[Page 1872]]

that the U.S. Census Bureau withheld publication of the number of firms 
that operated with sales/value of shipments/revenue in all categories 
of revenue less than $500,000 to avoid disclosing data for individual 
companies (see Cell Notes for the sales/value of shipments/revenue in 
these categories). Therefore, the number of firms with revenue that 
meet the SBA size standard would be higher than noted herein. We also 
note that according to the U.S. Census Bureau glossary, the terms 
receipts and revenues are used interchangeably.) Based on this data, 
the Commission estimates that a majority of firms in this industry are 
small.
    69. Cable Companies and Systems (Rate Regulation). The Commission 
has developed its own small business size standard 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. Based 
on industry data, there are about 420 cable companies in the U.S. Of 
these, only seven have more than 400,000 subscribers. In addition, 
under the Commission's rules, a ``small system'' is a cable system 
serving 15,000 or fewer subscribers. Based on industry data, there are 
about 4,139 cable systems (headends) in the U.S. Of these, about 639 
have more than 15,000 subscribers. Accordingly, the Commission 
estimates that the majority of cable companies and cable systems are 
small.
    70. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, contains a size standard for a 
``small cable operator,'' which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than one percent of 
all subscribers in the United States and is not affiliated with any 
entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' For purposes of the Telecom Act Standard, the 
Commission determined that a cable system operator that serves fewer 
than 498,000 subscribers, either directly or through affiliates, will 
meet the definition of a small cable operator. (In the 2023 Subscriber 
Threshold Public Notice, the Commission determined that there were 
approximately 49.8 million cable subscribers in the United States at 
that time using the most reliable source publicly available. This 
threshold will remain in effect until the Commission issues a 
superseding Public Notice.) Based on industry data, only six cable 
system operators have more than 498,000 subscribers. Accordingly, the 
Commission estimates that the majority of cable system operators are 
small under this size standard. We note however, that the Commission 
neither requests nor collects information on whether cable system 
operators are affiliated with entities whose gross annual revenues 
exceed $250 million. (The Commission does receive such information on a 
case-by-case basis if a cable operator appeals a local franchise 
authority's finding that the operator does not qualify as a small cable 
operator pursuant to Sec.  76.901(e) of the Commission's rules.) 
Therefore, we are 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.
6. All Other Telecommunications
    71. Electric Power Generators, Transmitters, and Distributors. The 
U.S. Census Bureau defines the utilities sector industry as comprised 
of ``establishments, primarily engaged in generating, transmitting, 
and/or distributing electric power. Establishments in this industry 
group may perform one or more of the following activities: (1) operate 
generation facilities that produce electric energy; (2) operate 
transmission systems that convey the electricity from the generation 
facility to the distribution system; and (3) operate distribution 
systems that convey electric power received from the generation 
facility or the transmission system to the final consumer.'' This 
industry group is categorized based on fuel source and includes 
Hydroelectric Power Generation, Fossil Fuel Electric Power Generation, 
Nuclear Electric Power Generation, Solar Electric Power Generation, 
Wind Electric Power Generation, Geothermal Electric Power Generation, 
Biomass Electric Power Generation, Other Electric Power Generation, 
Electric Bulk Power Transmission and Control and Electric Power 
Distribution.
    72. The SBA has established a small business size standard for each 
of these groups based on the number of employees which ranges from 
having fewer than 250 employees to having fewer than 1,000 employees. 
U.S. Census Bureau data for 2017 indicate that for the Electric Power 
Generation, Transmission and Distribution industry there were 1,693 
firms that operated in this industry for the entire year. Of this 
number, 1,552 firms had less than 250 employees. (The available U.S. 
Census Bureau data does not provide a more precise estimate of the 
number of firms that meet the SBA size standard.) Based on this data 
and the associated SBA size standards, the majority of firms in this 
industry can be considered small entities.

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

    73. In the FNPRM, we seek comment on ways to further facilitate the 
approval process for pole attachment applications and make-ready to 
enable quicker broadband deployment. Some of these proposals may impose 
new or additional reporting or recordkeeping and/or other compliance 
obligations on small entities. Specifically, we seek comment on a 
proposal that utilities should have an additional 90 days for make-
ready for requests exceeding 3,000 poles or 5 percent of the utility's 
poles in a state. We also seek comment on whether NCTA's proposal to 
add additional time to the existing application timelines for larger 
orders and prohibit utilities from limiting the size of an application 
or the number of poles included in an application, to avoid these 
timelines, will facilitate the pole attachment process for such orders. 
Additionally, we seek comment on whether the Commission should create 
additional make-ready timeline tiers in its rules to differentiate 
between attachment applications that could range from requesting access 
to thousands of poles to tens or even hundreds of thousands of poles. 
We also consider whether to require that a utility notify an attacher 
15 days after receiving a complete application that it cannot conduct 
the survey within the required 45-day period, making self-help 
available for the estimate process, which is not contemplated under 
current Commission rules. We also seek comment on whether attachers 
face any obstacles from utilities when seeking to invoke self-help 
options, which allows attachers to choose their own contractors for 
one-touch make-ready and for self-help when the utility fails to meet 
the Commission's deadlines. This information will help to inform 
whether potential rule changes are necessary. At this time, the 
Commission cannot quantify the cost of compliance for small entities 
with the approaches discussed in the FNPRM, or whether any compliance 
requirements will require small entities to hire professionals; 
however, the Commission requests information on the costs and benefits 
of the approaches discussed, such as the availability of qualified 
contractors and other workforce constraints that may impact the speed 
and cost of deployment for utilities and attachers.

[[Page 1873]]

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

    74. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed 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 and 
reporting requirements under the rule for such small entities; (3) the 
use of performance rather than design standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.''
    75. The FNPRM seeks comment on whether the Commission should revise 
its rules to further facilitate the approval process for pole 
attachment applications and make-ready to enable quicker broadband 
deployment, including a tentative conclusion that utilities should have 
an additional 90 days for make-ready for requests exceeding 3,000 poles 
or 5 percent of the utility's poles in a state. The Commission's 
objective in requesting this information is to determine whether it can 
and should establish clear standards for when and how attachers and 
utilities must share the costs of a pole replacement precipitated by a 
new attachment request. Among the alternatives considered in the FNPRM 
is whether the Commission should allow additional time for the existing 
larger order timelines where our current rules require that utilities 
negotiate timing in good faith. We seek comment on whether requiring 
that the utility notify an attacher 15 days after receiving a complete 
application that it cannot conduct the survey within the required 45-
day period would allow the attacher to elect self-help for the survey 
sooner. In the alternative, we inquire whether such expansion of time 
is reasonable for utilities if numerous permits are submitted around 
the same time or contractor workload is heavy. We also consider whether 
attachers are choosing to find their own contractors for one-touch 
make-ready and for self-help when utilities fail to meet the 
Commission's deadlines. Similarly, we request information on whether or 
not utilities designate an available contractor if it properly 
exercises its discretion to disqualify one chosen by an attacher. We 
also seek comment on how the Commission can help resolve situations 
where labor shortages may hinder utilities from meeting deadlines to 
respond to attachers. The Commission also seeks comment on and will 
consider the relative costs and benefits of any such revisions to its 
rules. Information submitted in response to these requests for comment 
will enable the Commission to evaluate the impact that revising its 
pole attachment rules would have on smaller entities.

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

    76. None.

V. Procedural Matters

    77. Initial Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act, the Commission has prepared an Initial 
Regulatory Flexibility Analysis (IRFA) of the possible significant 
economic impact on small entities of the policies and rules addressed 
in this FNPRM. Written public comments are requested on the IRFA. 
Comments must be filed by the deadlines for comments on the FNPRM 
indicated on the first page of this document and must have a separate 
and distinct heading designating them as responses to the IRFA. The 
Commission's Consumer and Governmental Affairs Bureau, Reference 
Information Center, will send a copy of this FNPRM, including the IRFA, 
to the Chief Counsel for Advocacy of the SBA.
    78. Paperwork Reduction Act. The FNPRM contains proposed new 
information collection requirements. The Commission, as part of its 
continuing effort to reduce paperwork burdens, invites the general 
public and OMB to comment on the information collection requirements 
contained in this document, as required by the Paperwork Reduction Act 
of 1995, Public Law 104-13. In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), we seek specific comment on how we might further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.
    79. Ex Parte Presentations--Permit-But-Disclose. The proceeding 
this FNPRM initiates 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 Sec.  1.1206(b) of the Commission's rules. In 
proceedings governed by Sec.  1.49(f) of the Commission's rules 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.

VI. Ordering Clauses

    80. Accordingly, it is ordered, pursuant to sections 4(i), 4(j), 
201, 202, 217, 227, 227b, 251(e), 303(r), and 403 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 201, 202, 217, 227, 
227b, 251(e), 303(r), 403, that this Third Further Notice of Proposed 
Rulemaking is adopted.
    81. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference information Center, shall send a 
copy of this Third Further Notice of Proposed Rulemaking, including the 
Initial Regulatory Flexibility Analysis (IRFA), to the Chief Counsel 
for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure.


[[Page 1874]]


Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.

Proposed Rules

    The Federal Communications Commission proposes to amend part 1 of 
Title 47 of the Code of Federal Regulations as follows:

PART 1--PRACTICE AND PROCEDURE

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

    Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461.

0
2. Amend Sec.  1.1411 by revising paragraph (g)(4) to read as follows:


Sec.  1.1411  Timeline for access to utility poles.

* * * * *
    (g) * * *
    (4) A utility may add 90 days to the make-ready periods described 
in paragraph (e) of this section to all requests for attachment larger 
than the lesser of 3000 poles or 5 percent of the utility's poles in a 
state.
* * * * *
[FR Doc. 2023-28763 Filed 1-10-24; 8:45 am]
BILLING CODE 6712-01-P