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Code · REGISTER · 2008-02-21 · Food and Drug Administration, HHS · Rules and Regulations

Rules and Regulations. Final rule

41,706 words·~190 min read·/register/2008/02/21/08-787

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-13-M DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Altrenogest AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of a supplemental new animal drug application
(NADA)filed by Intervet, Inc. The supplemental NADA provides for revised food safety labeling for altrenogest oral solution used in horses. DATES: This rule is effective February 21, 2008. FOR FURTHER INFORMATION CONTACT: Melanie R. Berson, Center for Veterinary Medicine (HFV-110), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8337, e-mail: *melanie.berson@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Intervet, Inc., P.O. Box 318, 29160 Intervet Lane, Millsboro, DE 19966, filed a supplement to NADA 131-310 for REGU-MATE (altrenogest), an oral solution administered to mares for suppression of estrus. The supplemental application provides for a revised warning statement on product labeling. The supplemental NADA is approved as of January 18, 2008, and 21 CFR 520.48 is amended to reflect the approval. Approval of this supplemental NADA did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required. The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 520 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. 2. In § 520.48, revise the section heading and paragraph (d)(1)(iii) to read as follows: § 520.48 Altrenogest.
(d)* * *
(1)* * *
(iii)*Limitations* . Do not use in horses intended for human consumption. Federal law restricts this drug to use by or on the order of a licensed veterinarian. Dated: February 11, 2008. Bernadette Dunham, Director, Center for Veterinary Medicine. [FR Doc. E8-3265 Filed 2-20-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Ivermectin Liquid AGENCY: Food and Drug Administration, HHS. ACTION: Final rule; technical amendment. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of a supplemental abbreviated new animal drug application (ANADA) filed by IVX Animal Health, Inc. The supplemental ANADA provides revised labeling for ivermectin oral liquid used in horses. DATES: This rule is effective February 21, 2008. FOR FURTHER INFORMATION CONTACT: John K. Harshman, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8197, e-mail: *john.harshman@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: IVX Animal Health, Inc., 3915 South 48th Street Ter., St. Joseph, MO 64503, filed a supplement to ANADA 200-202 for PHOENECTIN (ivermectin) Liquid for Horses. The supplemental application provides for the addition of indications for use and minor revisions to product labeling that conform to the pioneer product labeling. The supplemental ANADA is approved as of January 24, 2008, and 21 CFR 520.1195 is amended to reflect the approval. In addition, the regulation is being amended to add the drug labeler code for another approved generic product (69 FR 24958, May 5, 2004), which was removed in error in the **Federal Register** of September 24, 2004 (69 FR 57173). This action is being taken to improve the accuracy of the regulations. In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 520 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. 2. In § 520.1195, revise paragraphs (b)(1) and (b)(2) to read as follows: § 520.1195 Ivermectin liquid.
(b)* * *
(1)Nos. 050604, 054925, and 059130 for use of product described in paragraph (a)(1) of this section as in paragraphs (e)(1)(i), (e)(1)(ii)(A), and (e)(1)(iii) of this section.
(2)Nos. 058005 and 058829 for use of product described in paragraph (a)(1) of this section as in paragraphs (e)(1)(i), (e)(1)(ii)(B), and (e)(1)(iii) of this section. Dated: February 11, 2008. Bernadette Dunham, Director, Center for Veterinary Medicine. [FR Doc. E8-3266 Filed 2-20-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF DEFENSE Department of the Air Force 32 CFR Part 903 [Docket No. USAF-2007-0001] RIN 0701-AA72 Air Force Academy Preparatory School AGENCY: DoD, USAF. ACTION: Final rule. SUMMARY: This final rule tells how to apply for the Air Force Academy Preparatory School. It also explains the procedures for selection, disenrollment, and assignment. This rule has been updated to identify USAFA's revised mission statement, new selection criteria and updates of associated Air Force Instructions. DATES: *Effective Date:* This rule is effective March 24, 2008. FOR FURTHER INFORMATION CONTACT: Mr. Scotty Ashley at
(703)695-3594, *scotty.Ashley@pentagon.af.mil.* SUPPLEMENTARY INFORMATION: The proposed rule was published in the **Federal Register** on July 12, 2007 (72 FR 10436-10438). No comments were received. Executive Order 12866, “Regulatory Planning and Review'' It has been determined that 32 CFR part 903 is not a significant regulatory action. This rule does not:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of the recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order. Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4) It has been certified the 32 CFR part 903 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Public Law 95-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) It has been certified that 32 CFR part 903 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). Federalism (Executive Order 13132) It has been certified that 32 CFR part 903 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1)The States;
(2)The relationship between the National Government and the States; or
(3)The distribution of power and responsibilities among the various levels of government. List of Subjects in 32 CFR Part 903 Military academy; Military personnel. Therefore, for the reasons set forth in the preamble, 32 CFR part 903 is revised to read as follows: PART 903—AIR FORCE ACADEMY PREPARATORY SCHOOL Sec. 903.1 Mission and responsibilities. 903.2 Eligibility requirements. 903.3 Selection criteria. 903.4 Application process and procedures. 903.5 Reserve enlistment procedures. 903.6 Reassignment of Air Force members to become cadet candidates at the preparatory school. 903.7 Reassignment of cadet candidates who graduate from the Preparatory School with an appointment to U.S. Air Force Academy (USAFA). 903.8 Cadet candidate disenrollment. 903.9 Cadet records and reassignment forms. 903.10 Information collections, records, and forms or information management tools. Authority: 5 U.S.C. 301, 10 U.S.C. 8013, and 10 U.S.C. 9331 unless otherwise noted). Note: This part is derived from AFI 36-2021, September 12, 2006. Part 806 of this chapter states the basic policies and instructions governing the disclosure of records and tells members of the public what they must do to inspect or obtain copies of the material referenced herein. § 903.1 Mission and responsibilities.
(a)Mission. To motivate, prepare, and evaluate selected candidates in an educational, military, moral, and physical environment, to perform successfully and enhance diversity at USAFA.
(b)Responsibilities:
(1)Superintendent, USAFA (HQ USAFA/CC). Ensures adequate oversight of HQ USAFA/PL activities, administration, and resources. Means of oversight include but are not limited to:
(i)United States Air Force Academy Instruction (USAFAI) 36-3502, USAFA Assessment Board.
(ii)The Preparatory School Advisory Committee, as established in USAFAI 36-2013, Superintendent's Preparatory School Advisory Committee of the USAF Academy Preparatory School.
(iii)Annual Assessment, as established in Department of Defense
(DoD)Directive 1322.22, Service Academies.
(iv)Audits, Eagle Looks, and Unit Compliance Inspections.
(v)Special reviews and investigations as directed by HQ USAF.
(vi)USAFA Board of Visitors (BoV).
(2)HQ USAFA/PL Commander:
(i)Ensures the education and training programs satisfy the school's mission.
(ii)Informs HQ USAFA/RR of candidates' names, including essential categories, when each class enters.
(iii)Administers the disenrollment process. Notifies the Headquarters USAFA Superintendent (HQ USAFA/CC), and HQ USAFA/RR of all disenrollments.
(iv)Responsible, along with ARPC, for administering the oath of enlistment on the date of inprocessing. The effective date of enlistment is the date the applicant took the oath.
(3)Air Reserve Personnel Center (ARPC):
(i)Receives DD Form 1966, Record of Military Processing-Armed Forces of the United States, from select candidates upon inprocessing.
(ii)Reviews the DD Form 1966 for completion/acceptance.
(iii)Completes the DD Form 4, Enlistment/Reenlistment Document Armed Forces of the United States, if DD Form 1966 is in order.
(iv)Responsible, along with USAFA/PL, for administering the oath of enlistment on the date of inprocessing. The effective date of enlistment is the date the applicant took the oath.
(v)Publishes reserve orders placing applicant on active duty for the purpose of attending Preparatory school. Preparatory school determines the date of call to active duty (usually date administered the oath). ARPC provides copies of orders to MPF on the date of inprocessing.
(4)10th Mission Support Squadron Military Personnel (10 MSS/DPM):
(i)Ensures Regular and Reserve Air Force personnel reassigned to the HQ USAFA/PL enter with the highest grade they had achieved as of their date of enrollment and retain their date of rank or effective date.
(ii)Maintains records on Cadet Candidates.
(iii)Processes separation orders for non-prior service members who complete the HQ USAFA/PL and accept an appointment to a U.S. Service Academy.
(iv)Prepares discharge orders for non-prior service members who are disenrolled or do not accept appointment to a U.S. Service Academy.
(v)Issues ID cards.
(5)Headquarters USAFA Admissions (HQ USAFA/RR):
(i)Notifies cadet candidates of their acceptance into HQ USAFA/PL. Includes an accept-or-decline form with acceptance letter and asks cadet candidates to return the form as soon as possible.
(ii)Issues “Invitation to Travel” letters to all accepted cadet candidates (including civilians, reservist and members of other services) inviting them to travel to the HQ USAFA/PL, enlist in the Air Force Reserve (if necessary), and attend the HQ USAFA/PL.
(iii)Sends a notice to non-selected service personnel and their servicing Military Personnel Flight (MPF). *Note:* The Air Force does not typically notify civilian applicants of their non-selection.
(iv)Provides 10 MSS/DPMA with the name, grade, social security number, mailing address, and unit of assignment for reassignment of all applicants on Air Force active duty who are accepted into HQ USAFA/PL.
(v)Sends DODMERB a data file listing all applicants that need a medical examination. DODMERB uses the data file to schedule necessary exams.
(6)Unit commanders of all Regular and Reserve Component Air Force personnel applying to the HQ USAFA/PL:
(i)Review each applicant's completed AF Form 1786, Application for Appointment to the United States Air Force Academy Under Quota Allotted to Enlisted Members of the Regular and Reserve Components of the Air Force, and determine if the applicant meets eligibility requirements.
(ii)Forward an endorsement of all applicants who meet eligibility requirements, together with AF Form 1786, through the MPF to: Headquarters USAFA Admission Selections (HQ USAFA/RRS), 2304 Cadet Drive, USAF Academy CO 80840-5025. The endorsement must include a comprehensive statement of the applicant's character, ability, and motivation to become a career officer. Verify statements in applications regarding service component, length of service, and date of birth from official records.
(iii)Notify HQ USAFA/RR immediately on determining that an applicant is no longer recommended for selection to the HQ USAFA/PL.
(7)Unit commanders of Regular or Reserve members of the Army, Navy, or Marine Corps and unit commanders of Army or Air National Guard members:
(i)Accept letters of application to the HQ USAFA/PL from unit personnel.
(ii)Complete an endorsement for all applicants who meet the eligibility requirements. Include in the endorsement a comprehensive statement of the applicant's character, ability, and motivation to become a career officer. Verify statements in applications regarding service component, length of service, and date of birth from official records. Send the endorsement and letter of application to HQ USAFA/RRS, 2304 Cadet Drive, USAF Academy CO 80840-5025.
(iii)Ensure that each applicant receives a release from active duty to attend the HQ USAFA/PL before sending the endorsement. In order to facilitate the accession of a National Guard (Air or Army) member into USAFA or HQ USAFA/PL, a DD Form 368, Request for Conditional Release, or AF Form 1288, Application for Ready Reserve Assignment, should be accomplished and forwarded to the losing Military Personnel Flight
(MPF)service for out-processing. Once the member has enlisted the 10 MSS/DPM will contact the losing MPF. A copy of the DD Form 4 and orders will be provided to the losing ANG MPF by fax. In turn, the losing MPF will project the member's record in MilPDS based on the gaining PAS provided by the 10 MSS/DPM.
(iv)Notify HQ USAFA/RR immediately on determining that an applicant is no longer recommended for selection to the HQ USAFA/PL. § 903.2 Eligibility requirements.
(a)For admission to the HQ USAFA/PL, applicants must be:
(1)At least 17 and no more than 22 years old by 1 July of the year of admission.
(2)A citizen or permanent resident of the United States able to obtain citizenship (or Secretary of Defense waiver allowed by 10 U.S.C. 532(f)) by projected commissioning date.
(3)Unmarried and have no dependents.
(4)Of high moral character. Applicants must have no record of Uniform Code of Military Justice convictions or civil offenses beyond minor violations; no history of drug or alcohol abuse; and no prior behaviors, activities, or associations incompatible with USAF standards.
(5)Medically qualified for appointment to the U.S. Air Force Academy (USAFA).
(6)A member of the armed services or eligible to enlist in the U.S. Air Force Reserve.
(b)Normally, applicants must not have previously attended college on a full-time basis or attended a U.S. Service Academy or a U.S. Service Academy Preparatory School. The Headquarters USAFA Registrar's Office (HQ USAFA/RR) determines an applicant's status in this regard.
(c)Every applicant must be an active candidate in the USAFA admissions program, normally through one of following:
(1)Nominated by a source specified in public law.
(2)Identified by the USAFA as fulfilling institutional needs.
(d)Members of the Air Force Reserve or Air National Guard
(ANG)must agree to active duty service if admitted to the HQ USAFA/PL. Admitted ANG personnel first transfer to the Air Force Reserves before leaving their place of residence and being called to active duty.
(e)Regular and reserve members of the Armed Forces and the National Guard must have completed basic training.
(f)Regular members of the Armed Forces must have at least 1 year retainability when they enter the HQ USAFA/PL. § 903.3 Selection criteria.
(a)Cadet candidates for the HQ USAFA/PL are selected on the basis of demonstrated character, test scores, medical examination, prior academic record, recommendation of the organization commander (if prior service), and other similar reports or records. USAFA is authorized to make selections IAW SECAF guidance including but not limited to selection from among enlisted personnel and recruited athletes. Each applicant must:
(1)Achieve satisfactory scores on the Scholastic Aptitude Test
(SAT)or the American College Testing Program (ACT).
(2)Take and pass a medical evaluation administered through the Department of Defense Medical Evaluation Review Board (DODMERB).
(3)Have an acceptable academic record as determined by HQ USAFA/RR. Each applicant must furnish a certified transcript from each high school or civilian preparatory school attended. Applicants should send transcripts to HQ USAFA/RR, 2304 Cadet Drive, Suite 200, USAF Academy CO 80840-5025.
(4)Take the Candidate Fitness Assessment.
(b)HQ USAFA/RR oversees the holistic review of each viable candidate's record by a panel. This holistic review may include consideration of factors that would enhance diversity at USAFA, such as unique academic abilities, language skills, demonstrated leadership skills, foreign cultural knowledge, athletic prowess, flying aptitude, uncommon life experiences, demonstrated moral or physical courage or other performance-based factors.
(c)HQ USAFA/RR also examines reports and records that indicate an applicant's aptitude, achievement, or ability to graduate from the HQ USAFA/PL in the selection process.
(d)HQ USAFA/RR includes Preparatory School selection guidelines in the “Criteria and Procedures for Air Force Academy Appointment, Class of 20XX” (Contract) and submits for Superintendent approval.
(e)For members of the Armed Forces and the National Guard, HQ USAFA/RR also considers letters of recommendation from applicants' unit commanders. § 903.4 Application process and procedures.
(a)Regular and Reserve members of the Air Force must send their applications to: HQ USAFA/RR, 2304 Cadet Dr, Suite 200, USAF Academy CO 80840-5025, no later than 31 January for admission the following summer. Those otherwise nominated to the Air Force Academy must complete all steps of admissions by 15 April.
(b)Regular and Reserve members of the Air Force must complete AF Form 1786 and submit it to their unit commander.
(c)Regular and Reserve members of the Army, Navy, or Marine Corps, as well as members of the National Guard, must submit a letter of application through their unit commander.
(d)Civil Air Patrol
(CAP)cadets send their applications to HQ USAFA/RR and must apply to CAP National Headquarters by 31 January for nomination.
(e)HQ USAFA/RR automatically considers civilian candidates for admission who have a nomination to the USAFA, but were not selected. § 903.5 Reserve enlistment procedures.
(a)Civilians admitted to the HQ USAFA/PL take the oath of enlistment on the date of their initial in-processing at the HQ USAFA/PL. Their effective date of enlistment is the date they take this oath.
(b)Civilians who enlist for the purpose of attending the HQ USAFA/PL will be awarded the rank of E-1. These cadet candidates are entitled to the monthly student pay at the same rate as USAFA cadets according to United States Code Title 37, Section 203. § 903.6 Reassignment of Air Force Members to Become Cadet Candidates at the Preparatory School. USAFA Preparatory School Enrollment for members selected from operational Air Force: Selected Regular Air Force members at technical training schools remain there in casual status until the earliest reporting date for the HQ USAFA/PL. Students must not leave their training school without coordinating with HQ USAFA/RR. § 903.7 Reassignment of Cadet Candidates who Graduate from the Preparatory School with an Appointment to USAFA. USAFA Cadet Enrollment for Cadet Candidates who graduate from the Prepatory School with an appointment to the USAFA:
(a)The Air Force releases cadet candidates entering the USAFA from active duty and reassigns them to active duty as Air Force Academy cadets, effective on their date of entry into the USAFA in accordance with one of these authorities:
(1)The Department of Air Force letter entitled Members of the Armed Forces Appointed to a Service Academy, 8 July 1957.
(2)Title 10, United States Code, Sections 516 and 523. Air Force Instruction
(AFI)36-3208, Administrative Separation of Airmen.
(b)The Air Force discharges active Reserve cadet candidates who enlisted for the purpose of attending the HQ USAFA/PL in accordance with AFI 36-3208 and reassigns them to active duty as Air Force Academy cadets, effective on their date of entry into the USAFA. § 903.8 Cadet candidate disenrollment.
(a)In accordance with AFI 36-3208, the Commander, HQ USAFA/PL, may disenroll a student who:
(1)Fails to meet and maintain HQ USAFA/PL educational, military, character, or physical fitness standards.
(2)Fails to demonstrate adaptability and suitability for participation in USAFA educational, military, character, or physical training programs.
(3)Displays unsatisfactory conduct.
(4)Fails to meet statutory requirements for admission to the USAFA, for example:
(i)Marriage or acquiring legal dependents.
(ii)Medical disqualification.
(iii)Refusal to serve as a commissioned officer in the U.S. Armed Forces.
(5)Requests disenrollment.
(b)The HQ USAFA/PL commander may also disenroll a student when it is determined that the student's retention is not in the best interest of the Government.
(c)The military personnel flight (10 MSS/DPM) processes Regular Air Force members for reassignment if:
(1)They are disenrolled from the HQ USAFA/PL.
(2)They fail to obtain or accept an appointment to a U.S. Service Academy.
(d)The Air Force reassigns Air Force Reserve cadet candidates who are disenrolled from the HQ USAFA/PL or who fail to obtain or accept an appointment to an U.S. Service Academy in either of two ways under AFI 36-3208:
(1)Discharges them from the United States Air Force without any further military obligation if they were called to active duty solely to attend the HQ USAFA/PL.
(2)Releases them from active duty and reassigns them to the Air Force Reserve Personnel Center if they were released from Reserve units to attend the HQ USAFA/PL.
(e)The National Guard (Army or Air Force) releases cadet candidates from active duty and reassigns them to their State Adjutant General.
(f)The Air Force reassigns Regular and Reserve personnel from other Services back to their unit of origin to complete any prior service obligation if:
(1)They are disenrolled from the HQ USAFA/PL.
(2)They fail to obtain or accept an appointment to the USAFA. § 903.9 Cadet records and reassignment forms.
(a)Headquarters USAFA Cadet Personnel (HQ USAFA/DPY) maintains records of cadet candidates who enter the USAFA until they are commissioned or disenrolled.
(b)10 MSS/DPM will send records of Regular Air Force personnel who enter one of the other Service Academies to HQ Air Force Personnel Center (HQ AFPC) for processing. § 903.10 Information Collections, Records, and Forms or Information Management Tools (IMTS).
(a)Information Collections. No information collections are created by this publication.
(b)Records. Ensure that all records created as a result of processes prescribed in this publication are maintained in accordance with AFMAN 37-123, Management of Records, and disposed of in accordance with the Air Force Records Disposition Schedule
(RDS)located at *https://webrims.amc.af.mil.*
(c)Forms or IMTs (Adopted and Prescribed).
(1)Adopted Forms or IMTs: AF IMT 847, Recommendation for Change of Publication. AF Form 1288, Application for Ready Reserve Assignment, AF Form 1786, Application for Appointment to the USAF Academy Under Quota Allotted to Enlisted Members of the Regular and Reserve Components of the Air Force, DD Form 4, Enlistment/Reenlistment Document-Armed Forces of the United States, DD Form 368, Request for Conditional Release, and DD Form 1966, Record of Military Processing-Armed Forces of the United States.
(2)Prescribed Forms or IMTs: No forms or IMTs are prescribed by this publication. Bao-Anh Trinh, Air Force Federal Register Liaison Officer. [FR Doc. E8-2948 Filed 2-20-08; 8:45 am] BILLING CODE 5001-05-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2005-ME-0008; A-1-FRL-8526-5] Approval and Promulgation of Air Quality Implementation Plans; Maine; Open Burning Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is approving a State Implementation Plan
(SIP)revision submitted by the State of Maine. This revision limits open burning of construction and demolition debris to on-site burning for the disposal of wood wastes and painted and unpainted wood, and adds restrictions to open burning conducted for training, research, and recreational purposes. The revised rule also defines which open-burning recreational activities do not require a permit, such as residential use of outdoor grills and fireplaces, and recreational campfires while the ground is covered in snow. The revised rule eliminates provisions that allowed permits to be issued for open burning of rubbish where no rubbish collection is available or “reasonably located” and where “there is no other suitable method for disposal.” In addition, the revised rule includes a note referencing reasonable precautions required by Maine statute to prevent the introduction of lead into the environment from lead-based paint. This action will have a beneficial effect on air quality in Maine by reducing emissions of particulate matter, air toxics, and other pollutants, especially from the burning of lead-painted wood, plastics, metals, and other non-wood materials. This action is being taken in accordance with the Clean Air Act. DATES: This direct final rule will be effective April 21, 2008, unless EPA receives adverse comments by March 24, 2008. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R01-OAR-2005-ME-0008 by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: arnold.anne@epa.gov* . 3. *Fax:*
(617)918-0047. 4. *Mail:* “Docket Identification Number EPA-R01-OAR-2005-ME-0008,” Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023. 5. *Hand Delivery or Courier.* Deliver your comments to: Anne Arnold, Manager, Air Quality Planning Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R01-OAR-2005-ME-0008. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through *www.regulations.gov* , or e-mail, information that you consider to be CBI or otherwise protected. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. In addition, copies of the state submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Bureau of Air Quality Control, Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017. FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, telephone number
(617)918-1684, fax number
(617)918-0684, e-mail *simcox.alison@epa.gov* . SUPPLEMENTARY INFORMATION: Organization of this document. The following outline is provided to aid in locating information in this preamble. I. Background and Purpose II. Summary of SIP Revision III. Final Action IV. Statutory and Executive Order Reviews I. Background and Purpose On April 27, 2005, the State of Maine submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of amendments to Maine's Chapter 102 Open Burning Rule, which address all concerns that EPA had expressed to the Maine Department of Environmental Protection (ME DEP) about previous amendments and proposed amendments to the rule. Maine's Chapter 102 Open Burning Rule was first adopted in January 1972 to minimize environmental impacts from open burning in Maine. EPA New England approved this rule into the Maine SIP on May 31, 1972 (37 FR 10842). Following adoption by ME DEP of an amended version of the rule in December 2002, EPA was especially concerned about language in the rule that could be interpreted to allow outdoor burning of any type construction and demolition debris, including plastics, rubber, styrofoam, metals, food wastes, or chemicals. In 2003, the state legislature amended 12 MRSA section 9324 to change language in the statute from “out-of-door burning of wood wastes * * * and construction and demolition debris” to “out-of-door burning of wood wastes * * * from construction and demolition debris,” thus addressing EPA's concern about burning of inappropriate, non-wood materials. Subsequently, ME DEP amended Chapter 102 to be consistent with the revised legislation and with other EPA comments, including adding a reference to reasonable precautions required by 38 MRSA section 1296 to prevent the introduction of lead into the environment from lead-based paint. ME DEP adopted these amendments in March 2005, and submitted them to EPA for inclusion in the Maine SIP on April 27, 2005. II. Summary of SIP Revision The revised Chapter 102 prohibits “open burning” in all areas of the State, except for the types of open burning expressly described within the chapter. The revised Chapter 102 uses the terms “outdoor burning” and “out-of-door burning” synonymously with the term “open burning,” which ME DEP defined in Chapter 100. ME DEP confirmed with EPA that the state interprets these terms to be synonymous, and EPA is basing its approval of this regulation on that interpretation. The revised Chapter 102 rule has a number of changes that make it more stringent than the original 1972 rule (37 FR 10842). The most significant of these changes include added restrictions to open burning of construction and demolition debris, and to open burning for training, research, and recreational purposes. Previously, open burning was permitted for “all debris” from demolition of any building and for certain types of land clearing (e.g., building highways, power lines, commercial, and industrial buildings). The revised rule specifies that the only type of construction and demolition debris that can be burned on site is “for the disposal of wood wastes and painted and unpainted wood from construction and demolition debris.” Both previous and current versions of the rule require a permit for the burning of construction and demolition debris. The 1972 rule contains an exemption that allows (with a permit) “open burning for training, research and recreational purposes except that fires for recreational purposes on a person's own property are not required to obtain a permit.” The revised rule adds further restrictions to these activities. Specifically, recreational campfires kindled when the ground is not covered by snow require a permit, as do fires in conjunction with holiday and festive celebrations. Burning for “training” is now more strictly defined as being limited to “bona fide instruction and training of municipal or volunteer firefighters pursuant to Maine Revised Statutes Title 26, section 2102 and industrial fire fighters in methods of fighting fires when conducted under the direct control and supervision of qualified instructors and with a written objective for the training.” In addition, “structures burned for instructional purposes must first be emptied of waste materials that are not part of the training objective.” The revised rule also strengthens the 1972 rule by defining open burning “recreational” activities that do not require a permit; these activities are now limited to:
(1)Residential use of outdoor grills and fireplaces for recreational purposes;
(2)recreational campfires kindled when the ground is covered by snow or on frozen bodies of water; and
(3)the use of outdoor grills and fireplaces for recreational purposes at commercial campgrounds that are located in organized towns and licensed by the Department of Human Services. The rule also eliminates provisions that allowed permits to be issued for open burning of rubbish where no rubbish collection is available or “reasonably located” and where “there is no other suitable method for disposal.” Additionally, in response to EPA comments, ME DEP has added a note to the rule referencing reasonable precautions required by Maine statute 38 MRSA section 1296 to prevent the introduction of lead into the environment from lead-based paint. III. Final Action EPA is approving amendments to the Maine Chapter 102 Open Burning Rule, and incorporating the revised rule into the Maine SIP. EPA has determined that the revised Maine Chapter 102 Open Burning Rule addresses all concerns expressed by EPA, is significantly more stringent and detailed than the existing EPA-approved rule, and will have a beneficial effect on air quality by reducing emissions of particulate matter, air toxics, and other pollutants, especially from the burning of lead-painted wood, plastics, metals, and other non-wood materials. This action is being taken in accordance with the Clean Air Act. EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision. This rule will be effective April 21, 2008, without further notice unless the Agency receives relevant adverse comments by March 24, 2008. If EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 21, 2008, and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ). The Congressional Review Act, 5 U.S.C. 801, *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 21, 2008. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Lead, Particulate matter, Volatile organic compounds. Dated: January 16, 2008. Robert W. Varney, Regional Administrator, EPA New England. Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart U—Maine 2. Section 52.1020 is amended by adding paragraph (c)(61) to read as follows: § 52.1020 Identification of plan.
(c)* * *
(61)Revisions to the State Implementation Plan submitted by the Maine Department of Environmental Protection on April 27, 2005.
(i)Incorporation by reference.
(A)Chapter 102 of Maine Department of Environmental Protection Rules, entitled “Open Burning,” effective in the State of Maine on April 25, 2005.
(B)State of Maine MAPA 1 form which provides certification that the Attorney General approved the rule as to form and legality, dated April 12, 2005. 3. In § 52.1031, Table 52.1031 is amended by adding a new entry to existing state citation “102” to read as follows: § 52.1031 EPA-approved Maine regulations. Table 52.1031.—EPA-Approved Rules and Regulations State citation Title/subject Date adopted by State Date approved by EPA Federal Register citation 52.1020 * * * * * * * 102 Open Burning 3/17/05 2/21/08 [Insert Federal Register page number where the document begins] (c)(61) * * * * * * * Note 1. The regulations are effective statewide unless stated otherwise in comments section. [FR Doc. E8-3246 Filed 2-20-08; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 0 [FCC 08-27] Amendment of Part 0 of the Commission's Rules to Delegate Administration of Part 4 of the Commission's Rule to the Public Safety and Homeland Security Bureau AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In the *Order* , the Federal Communications Commission (Commission) amended the Commission's rules to delegate authority to the Public Safety and Homeland Security Bureau to administer the Commission's rules that pertain to disruptions to communications. This delegation is consistent with the purpose and functions of the Bureau to promote a more efficient, effective and responsive organizational structure and to better promote and address public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues. Establishment of the Public Safety and Homeland Security Bureau, *Order* , 21 FCC Rcd 13655 (2006). DATES: Effective February 21, 2008. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Robert Krinsky, Attorney Advisor, Communications Systems Analysis Division, Public Safety and Homeland Security Bureau, Federal Communications Commission at
(202)418-2909; *Robert.Krinsky@fcc.gov* . SUPPLEMENTARY INFORMATION: This is a summary of the Commission's non-docketed *Order* , FCC 08-27, adopted January 28, 2008 and released on January 30, 2008. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via telephone at
(202)488-5300, via facsimile at
(202)488-5563, or via e-mail at *FCC@BCPIWEB.COM* . Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by sending an e-mail to *FCC504@fcc.gov* or calling the Consumer and Governmental Affairs Bureau at
(202)418-0530, TTY
(202)418-0432. This document is also available on the Commission's Web site at *http://www.fcc.gov* . Synopsis of the Order 1. In the *Order* , the Commission amends its rules to delegate authority to the Public Safety and Homeland Security Bureau (Bureau) to administer part 4 of the Commission's rules, which pertain to disruptions to communications. 2. On March 17, 2006, the Commission established the Bureau in order to promote a more efficient, effective and responsive organizational structure and to better promote and address public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues. Establishment of the Public Safety and Homeland Security Bureau, *Order* , 21 FCC Rcd 13655 (2006). The delegation of authority to the Bureau to administer the part 4 rules is consistent with the purpose and functions of the Bureau. 3. The delegation of this authority to the Bureau comports with § 0.191(g) of the Commission's rules, which provides, in pertinent part, that the Bureau “[c]onducts studies of public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues. Develops and administers recordkeeping and reporting requirements for communications companies pertaining to these issues. Administers any Commission information collection requirements pertaining to public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues.” 47 CFR 0.191(g). The delegation of this authority to the Bureau is also consistent with § 0.392 of the Commission's rules, 47 CFR 0.392, which gives the Bureau delegated authority to perform all functions of the Bureau described in § 0.191 of the Commission's rules. Further, the action we take in this Order is consistent with § 4.11 of the Commission's rules, which states that when outage reports cannot be submitted electronically using the Commission-approved Web-based system, written reports should be filed and all hand-delivered outage reports should be addressed to the Federal Communications Commission, The Office of Secretary, Attention: Chief, Public Safety & Homeland Security Bureau. 47 CFR 4.11. 4. Authority for the adoption of the foregoing revisions is contained in sections 1, 4(i), 4(j), 5(b), 5(c), 201(b) and 303(r) of the Communications Act of 1934, as amended. 47 U.S.C. 151, 154(i), 154(j), 155(b), 155(c), 201(b) and 303(r). 5. The adopted amendments pertain to agency organization, procedure and practice. Consequently, the notice and comment provisions of the Administrative Procedure Act contained in 5 U.S.C. 553(b) are inapplicable. 6. Accordingly, the Commission ordered that part 0 of the Commission Rules, set forth in Title 47 of the Code of Federal Regulations, be amended to delegate authority to the Public Safety and Homeland Security Bureau to administer part 4 of the Commission's rules, which pertain to disruptions to communications. List of Subjects in 47 CFR Part 0 Organizations and functions (Government agencies). Federal Communications Commission. Marlene H. Dortch, Secretary. Rule Changes For the reasons set forth in the preamble, the Federal Communications Commission amends part 0 of Title 47 of the Code of Federal Regulations as follows: PART 0—COMMISSION ORGANIZATION 1. The authority citation for part 0 continues to read as follows: Authority: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225, unless otherwise noted. 2. Section 0.31 is amended by revising paragraph
(i)to read as follows: § 0.31 Functions of the Office.
(i)To administer parts 2, 5, 15, and 18 of this chapter, including licensing, recordkeeping, and rule making. 3. Section 0.191 is amended by revising paragraph
(g)to read as follows: § 0.191 Functions of the Bureau.
(g)Conducts studies of public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues. Develops and administers recordkeeping and reporting requirements for communications companies pertaining to these issues. Administers any Commission information collection requirements pertaining to public safety, homeland security, national security, emergency management and preparedness, disaster management, and related issues, including the communications disruption reporting requirements set forth in part 4 of this chapter and revision of the filing system and template used for the submission of those communications disruption reports. 4. Section 0.241 is amended by revising paragraph (a)(1), removing paragraph (d), and redesignating paragraphs
(e)through
(i)as
(d)through
(h)to read as follows: § 0.241 Authority delegated.
(a)* * *
(1)Notices of proposed rulemaking and of inquiry and final orders in rulemaking proceedings, inquiry proceedings and non-editorial orders making changes. 5. Section 0.392 is amended by adding new paragraph
(i)to read as follows: § 0.392 Authority delegated.
(i)The Chief of the Public Safety and Homeland Security Bureau is delegated authority to administer the communications disruption reporting requirements contained in part 4 of this chapter and to revise the filing system and template used for the submission of such communications disruption reports. [FR Doc. E8-3135 Filed 2-20-08; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 52 [WC Docket No. 04-36, CC Docket Nos. 95-116, 99-200; FCC 07-188] IP-Enabled Services, Telephone Number Portability, Numbering Resource Optimization AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Commission adopted rules extending local number portability obligations and numbering administration support obligations to interconnected VoIP services and responded to the District of Columbia Circuit Court of Appeals stay of the Commission's *Intermodal Number Portability Order* . DATES: Effective March 24, 2008. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Melissa Kirkel, Wireline Competition Bureau,
(202)418-1580. SUPPLEMENTARY INFORMATION: In this Order, the Commission undertakes several steps to help ensure that consumers and competition benefit from local number portability
(LNP)as intended by the Communications Act of 1934, as amended (the Act) and Commission precedent. First, the Commission extends LNP obligations and numbering administration support obligations to encompass interconnected VoIP services. Second, the Commission issues a Final Regulatory Flexibility Analysis
(FRFA)in response to the D.C. Circuit's stay of the Commission's *Intermodal Number Portability Order* . The Commission finds that wireline carriers qualifying as small entities under the Regulatory Flexibility Act
(RFA)should be required to port to wireless carriers where the requesting wireless carrier's “coverage area” overlaps the geographic location in which the customer's wireline number is provisioned, provided that the porting-in carrier maintains the number's original rate center designation following the port. The Commission will send a copy of this Report and Order and Order on Remand in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). Final Paperwork Reduction Act of 1995 Analysis This document does not contain new or modified information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). Synopsis of Report and Order 1. On March 10, 2004, the Commission initiated a proceeding to examine issues relating to Internet Protocol (IP)-enabled services—services and applications making use of IP, including, but not limited to, VoIP services. In the *IP-Enabled Services Notice* (69 FR 16193, Mar. 29, 2004), the Commission sought comment on, among other things, whether to extend the obligation to provide LNP to any class of IP-enabled service provider. The Commission also sought comment on whether the Commission should take any action to facilitate the growth of IP-enabled services, while at the same time maximizing the use and life of the North American Numbering Plan
(NANP)numbering resources. 2. The Commission finds that the customers of interconnected VoIP services should receive the benefits of LNP. Such action is fundamentally important for the protection of consumers and is consistent with the authority granted to the Commission under section 251(e) and sections 1 and 2 of the Act. Moreover, as described below, by requiring interconnected VoIP providers and their numbering partners to ensure that users of interconnected VoIP services have the ability to port their telephone numbers when changing service providers to or from an interconnected VoIP provider, the Commission benefits not only customers but the interconnected VoIP providers themselves. (By “numbering partner,” the Commission means the carrier from which an interconnected VoIP provider obtains numbering resources.) Specifically, the ability of end users to retain their NANP telephone numbers when changing service providers gives customers flexibility in the quality, price, and variety of services they can choose to purchase. Allowing customers to respond to price and service changes without changing their telephone numbers will enhance competition, a fundamental goal of section 251 of the Act, while helping to fulfill the Act's goal of facilitating “a rapid, efficient, Nation-wide, and world-wide wire and radio communication service.” Additionally, the Commisison extends to interconnected VoIP providers the obligation to contribute to shared numbering administration costs. The Commission believes that the steps the Commission takes today to ensure regulatory parity among providers of similar services will minimize marketplace distortions arising from regulatory advantage. A. Scope 3. Consistent with the Commission's previous decisions in the *IP-Enabled Services* proceeding, the Commission limits its decision to interconnected VoIP providers, in part because, unlike certain other IP-enabled services, the Commission continues to believe that interconnected VoIP service “is increasingly used to replace analog voice service,” including, in some cases, local exchange service. Indeed, as interconnected VoIP service improves and proliferates, consumers' expectations for these services trend toward their expectations for other telephone services. Thus, consumers reasonably expect interconnected VoIP services to include regulatory protections such as emergency 911 service and LNP. 4. These characteristics of interconnected VoIP service support a finding that it is appropriate to extend LNP obligations to include such services, in light of the statute and Commission precedent. Congress expressly directed the Commission to prescribe requirements that all local exchange carriers
(LECs)must meet to satisfy their statutory LNP obligations. In doing so, the Commission has required service providers that have not been found to be LECs but that are expected to compete against LECs to comply with the LNP obligations set forth in section 251(b)(2). In extending LNP rules to such providers, the Commission concluded, among other things, that imposing such obligations would “promote competition between providers of local telephone services and thereby promote competition between providers of interstate access services.” Specifically, the Commission found that the availability of LNP would “eliminat[e] one major disincentive to switch carriers,” and thus would facilitate “the successful entrance of new service providers” covered by the LNP rules. Indeed, the Commission determined that LNP not only would facilitate competition between such new service providers and wireline telecommunications carriers, but also would facilitate competition among the new service providers themselves. The Commission anticipated that the enhanced competition resulting from LNP would “stimulate the development of new services and technologies, and create incentives for carriers to lower prices and costs.” The Commission further concluded that implementation of long-term LNP by these providers would help ensure “efficient use and uniform administration” of numbering resources. For these same policy reasons, the Commission extends the LNP obligations to interconnected VoIP providers. 5. To effectuate this policy, the Commission must address both the obligations of interconnected VoIP providers as well as the obligations of telecommunications carriers that serve interconnected VoIP providers as their numbering partners. Thus, the Commission takes this opportunity to reaffirm that only carriers, absent a Commission waiver, may access numbering resources directly from the North American Numbering Plan Administrator (NANPA) or the Pooling Administrator (PA). Section 52.15(g)(2) of the Commission's rules limits access to the NANP numbering resources to those applicants that are:
(1)“authorized to provide service in the area for which the numbering resources are being requested”; and
(2)“[are] or will be capable of providing service within sixty
(60)days of the numbering resources activation date.” It is well established that the Commission's rules allow only carriers direct access to NANP numbering resources to ensure that the numbers are used efficiently and to avoid number exhaust. Thus, many interconnected VoIP providers may not obtain numbering resources directly from the NANPA because they will not have obtained a license or a certificate of public convenience and necessity from the relevant states. Interconnected VoIP providers that have not obtained a license or certificate of public convenience and necessity from the relevant states or otherwise are not eligible to receive numbers directly from the administrators may make numbers available to their customers through commercial arrangements with carriers (i.e., numbering partners). The Commission emphasizes that ensuring compliance with the Commission's numbering rules, including LNP requirements, in such cases remains the responsibility of the carrier that obtains the numbering resource from the numbering administrator as well as the responsibility of the interconnected VoIP provider. Additionally, with this Order, the Commission clarifies that LECs and CMRS providers have an obligation to port numbers to interconnected VoIP providers and their numbering partners subject to a valid port request. B. Authority 6. In this Order, the Commission concludes that the Commission has ample authority to extend LNP obligations and numbering administration support obligations to interconnected VoIP providers. Specifically, the Commission concludes that it has authority to extend LNP obligations and numbering administration support obligations to interconnected VoIP providers and their numbering partners under the Commission's plenary numbering authority pursuant to section 251(e) of the Act. The Commission further finds authority in section 251(b)(2) of the Act for the obligations it extends to numbering partners that serve interconnected VoIP providers. Separately, the Commission analyzes the extension of the Commission's rules to interconnected VoIP providers under the Commission's Title I ancillary jurisdiction. 7. *Plenary Numbering Authority.* Consistent with Commission precedent, the Commission finds that the plenary numbering authority that Congress granted this Commission under section 251(e)(1) provides ample authority to extend the LNP requirements set out in this Order to interconnected VoIP providers and their numbering partners. Specifically, in section 251(e)(1) of the Act, Congress expressly assigned to the Commission exclusive jurisdiction over that portion of the NANP that pertains to the United States. The Commission retained its “authority to set policy with respect to all facets of numbering administration in the United States.” To the extent that an interconnected VoIP provider provides services that offer its customers NANP telephone numbers, both the interconnected VoIP provider and the telecommunications carrier that secures the numbering resource from the numbering administrator subject themselves to the Commission's plenary authority under section 251(e)(1) with respect to those numbers. 8. *Section 251(b)(2) Authority over Telecommunications Carriers.* The Commission finds that section 251(b)(2) provides an additional source of authority to impose LNP obligations on the LEC numbering partners of interconnected VoIP providers. Section 251(b)(2) states that all LECs have a “duty to provide, to the extent technically feasible, number portability in accordance with the requirements prescribed by the Commission.” The Commission has long held that it has “authority to require that number portability be implemented ‘to the extent technically feasible’ and that the Commission's authority under section 251(b)(2) encompasses all forms of number portability.” The Commission's application of this authority is informed by the Act's focus on protecting consumers through number portability. Section 3 of the Act defines “number portability” as “the ability of *users* of telecommunications services to retain, at the same location, existing telecommunications numbers without impairment of quality, reliability, or convenience when switching from one telecommunications carrier to another.” (emphasis added) In this Order, the Commission prescribes requirements that expand number portability to include ports to and from interconnected VoIP providers, and therefore find that section 251(b)(2) grants the Commission authority to impose obligations on the interconnected VoIP providers' LEC numbering partners to effectuate those requirements. By holding the LEC numbering partner responsible for ensuring a porting request is honored to the extent technically feasible, the Commission thus abides by this statutory mandate. The Commission interprets section 251(b)(2) to include a number porting obligation even when the switching of “carriers” occurs at the wholesale rather than retail level. Given Congress's imposition of the number portability obligations on all such carriers and the broad terms of the obligation itself, the Commission believes that its interpretation is a reasonable interpretation of the statute. To find otherwise would permit carriers to avoid numbering obligations simply by creating an interconnected VoIP provider affiliate and assigning the number to such affiliate. Further, to ensure that consumers retain this benefit as technology evolves, the Commission continues to believe that Congress's intent is that number portability be a “dynamic concept” that accommodates such changes. The Commission previously has found that it has the authority to alter the scope of porting obligations due to technological changes in how numbers are ported. Similarly, the Act provides ample authority for the logical extension of porting obligations due to technological changes in how telephone service is provided to end-user customers. The Commission exercises its authority under the Act to ensure that consumers' interests in their existing telephone numbers are adequately protected whether the customer is using a telephone number obtained from a LEC directly or indirectly via an interconnected VoIP provider. In either case, the LEC or LEC numbering partner must comply with the Commission's LNP rules. 9. *Ancillary Jurisdiction over Interconnected VoIP Services.* The Commission further concludes that the Commission has a separate additional source of authority under Title I of the Act to impose LNP obligations and numbering administration support obligations on interconnected VoIP providers. Ancillary jurisdiction may be employed, in the Commission's discretion, when Title I of the Act gives the Commission subject matter jurisdiction over the service to be regulated and the assertion of jurisdiction is “reasonably ancillary to the effective performance of [its] various responsibilities.” Both predicates for ancillary jurisdiction are satisfied here. 10. First, as the Commission concluded in previous orders, interconnected VoIP services fall within the subject matter jurisdiction granted to the Commission in the Act. Section 1 of the Act, moreover, charges the Commission with responsibility for making available “a rapid, efficient, Nation-wide, and world-wide wire and radio communication service.” Thus, section 1, in conjunction with section 251, creates a significant federal interest in the efficient use of numbering resources. Second, the Commission finds that requiring interconnected VoIP providers to comply with LNP rules and cost recovery mechanisms is reasonably ancillary to the effective performance of the Commission's fundamental responsibilities. As noted above, section 251(b)(2) of the Act requires LECs to provide number portability in accordance with the requirements prescribed by the Commission to the extent technically feasible. Further, section 251(e)(2) requires all carriers to bear the costs of numbering administration and number portability on a competitively neutral basis as defined by the Commission, and thereby seeks to prevent those costs from undermining competition. The Commission has interpreted section 251(e)(2) broadly to extend to all carriers that utilize NANP telephone numbers and benefit from number portability. In addition, as discussed above, section 1 of the Act charges the Commission with responsibility for making available “a rapid, efficient, Nation-wide, and world-wide wire and radio communication service.” Because interconnected VoIP service operates through the use of NANP telephone numbers and benefits from NANP administration and because this service is “increasingly used to replace analog voice service”—a trend that the Commission expects to continue—it is important that the Commission take steps to ensure that interconnected VoIP service use of NANP numbers does not disrupt national policies adopted pursuant to section 251. As the Commission previously has stated, the Commission “believe[s] it is important that [the Commission] adopt uniform national rules regarding number portability implementation and deployment to ensure efficient and consistent use of number portability methods and numbering resources on a nationwide basis. Implementation of number portability, and its effect on numbering resources, will have an impact on interstate, as well as local, telecommunications services.” Additionally, the Commission has found that those providers that benefit from number resources should also bear the costs. 11. Extending LNP obligations to interconnected VoIP providers is “reasonably ancillary” to the performance of the Commission's obligations under section 251 and section 1 of the Act. If the Commission failed to do so, American consumers might not benefit from new technologies because they would be unable to transfer their NANP telephone numbers between service providers and thus would be less likely to want to use a new provider. As a result, the purposes and effectiveness of section 251, as well as section 1, would be greatly undermined. The ability of end users to retain their NANP telephone numbers when changing service providers gives customers flexibility in the quality, price, and variety of services they can choose to purchase. Allowing customers to respond to price and service changes without changing their telephone numbers will enhance competition, a fundamental goal of section 251 of the Act, while helping to fulfill the Act's goal of facilitating “a rapid, efficient, Nation-wide, and world-wide wire and radio communication service.” 12. Further, if the Commission failed to exercise its ancillary jurisdiction, interconnected VoIP providers would sustain a competitive advantage against telecommunications carriers through the use and porting of NANP telephone numbers without bearing their share of the costs of LNP and NANP administration, thus defeating the critical requirement under section 251(e) that carriers bear such costs on a competitively neutral basis. Additionally, the Commission extends the LNP obligations to interconnected VoIP providers because doing so will have a positive impact on the efficient use of the Commission's limited numbering resources. The Commission avoids number waste by preventing an interconnected VoIP provider from porting-in a number from a carrier (often through its numbering partner) and then later refusing to port-out at the customer's request by arguing that no such porting obligation exists. Failure to extend LNP obligations to interconnected VoIP providers and their numbering partners would thwart the effective and efficient administration of the Commission's numbering administration responsibilities under section 251 of the Act. Therefore, extending the LNP and numbering administration support obligations to interconnected VoIP providers is “reasonably ancillary to the effective performance of the Commission's * * * responsibilities” under sections 251 and 1 of the Act and “will ‘further the achievement of long-established regulatory goals” ’ to make available an efficient and competitive communication service. 13. The Commission believes that the language in section 251(e)(2), which phrases the obligation to contribute to the costs of numbering administration as applicable to “all telecommunications carriers,” reflects Congress's intent to ensure that no telecommunications carriers were omitted from the contribution obligation, and does not preclude the Commission from exercising its ancillary authority to require other providers of comparable services to make such contributions. Thus, the language does not circumscribe the class of carriers that may be required to support numbering administration. The legislative history of the Telecommunications Act of 1996 (1996 Act) supports this view and indicates that Congress desired that such costs be borne by “all providers.” Because interconnected VoIP services are increasingly being used as a substitute for traditional telephone service, the Commission finds that its exercise of ancillary authority to require contributions from interconnected VoIP providers is consistent with this statutory language and Congressional intent. The statutory construction maxim of expressio unius est exclusio alterius—the mention of one thing implies the exclusion of another—does not require a different result. This maxim is non-binding and “is often misused.” “The maxim's force in particular situations depends entirely on context, whether or not the draftsmen's mention of one thing, like a grant of authority, does really necessarily, or at least reasonably, imply the preclusion of alternatives.” Here, the Commission believes that the relevant language in section 251(e)(2) was designed to ensure that no telecommunications carriers were omitted from the contribution obligation, and not to preclude the Commission from exercising its ancillary authority to require others to make such contributions. Absent any affirmative evidence that Congress intended to limit the Commission's judicially recognized ancillary jurisdiction in this area, the Commission finds that the expressio unius maxim “is simply too thin a reed to support the conclusion that Congress has clearly resolved [the] issue.” 14. The Commission also notes that its actions here are consistent with other provisions of the Act. For example, the Commission is guided by section 706 of the 1996 Act, which, among other things, directs the Commission to encourage the deployment of advanced telecommunications capability to all Americans by using measures that “promote competition in the local telecommunications market.” The extension of the LNP obligations to interconnected VoIP providers may spur consumer demand for their service, in turn driving demand for broadband connections, and consequently encouraging more broadband investment and deployment consistent with the goals of section 706. C. Local Number Portability Obligations 15. As the Commission discusses in detail above, imposing LNP and numbering administration support requirements on interconnected VoIP providers and their numbering partners is consistent with both the language of the Act and the Commission's policies implementing the LNP obligations. To ensure that consumers enjoy the full benefits of LNP and to maintain competitively neutral funding of numbering administration, the Commission imposes specific requirements to effectuate this policy. 16. *Porting Obligations of an Interconnected VoIP Provider and its Numbering Partner.* As discussed above, section 3 of the Act defines local “number portability” as “the ability of *users* of telecommunications services to retain, at the same location, existing telecommunications numbers without impairment of quality, reliability, or convenience when switching from one telecommunications carrier to another.” The Commission finds that the “user” in this context is the end-user customer that subscribes to the interconnected VoIP service and not the interconnected VoIP provider. To find otherwise would contravene the LNP goals of “allowing customers to respond to price and service changes without changing their telephone numbers.” Thus, it is the end-user customer that retains the right to port-in the number to an interconnected VoIP service or to port-out the number from an interconnected VoIP service. 17. As discussed above, both an interconnected VoIP provider and its numbering partner must facilitate a customer's porting request to or from an interconnected VoIP provider. By “facilitate,” the Commission means that the interconnected VoIP provider has an affirmative legal obligation to take all steps necessary to initiate or allow a port-in or port-out itself or through its numbering partner on behalf of the interconnected VoIP customer (i.e., the “user”), subject to a valid port request, without unreasonable delay or unreasonable procedures that have the effect of delaying or denying porting of the number. The Commission recognizes that when an interconnected VoIP provider obtains NANP telephone numbers and LNP capability through a numbering partner, the interconnected VoIP provider does not itself execute the port of the number from a technical perspective. In such situations, the interconnected VoIP provider must take any steps necessary to facilitate its numbering partner's technical execution of the port. 18. The Commission also finds that interconnected VoIP providers and their numbering partners may not enter into agreements that would prohibit or unreasonably delay an interconnected VoIP service end user from porting between interconnected VoIP providers, or to or from a wireline carrier or a covered CMRS provider. Because LNP promotes competition and consumer choice, the Commission finds that any agreement by interconnected VoIP providers or their numbering partners that prohibits or unreasonably delays porting could undermine the benefits of LNP to consumers. Additionally, because the Commission determines that the carrier that obtains the number from the NANPA is also responsible for ensuring compliance with these obligations, such porting-related restrictions would contravene that carrier's section 251(b)(2) obligation. To the extent that carriers with direct access to numbers do not have an LNP obligation, that exemption from LNP only extends to the exempt service and not to that carrier's activities as a numbering partner for an interconnected VoIP provider. If an interconnected VoIP provider or its numbering partner attempts to thwart an end user's valid porting request, that provider or carrier will be subject to Commission enforcement action for a violation of the Act and the Commission's LNP rules. Further, no interconnected VoIP provider may contract with its customer to prevent or hinder the rights of that customer to port its number because doing so would violate the LNP obligations placed on interconnected VoIP providers in this Order. To the extent that interconnected VoIP providers have existing contractual provisions that have the effect of unreasonably delaying or denying porting, such provisions do not supersede or otherwise affect the porting obligations established in this Order. 19. *Scope of Porting Obligations.* The Commission's porting obligations vary depending on whether a service is provided by a wireline carrier or a covered CMRS provider. As described above, interconnected VoIP providers generally obtain NANP telephone numbers through commercial arrangements with one or more traditional telecommunications carriers. As a result, the porting obligations to or from an interconnected VoIP service stem from the status of the interconnected VoIP provider's numbering partner and the status of the provider to or from which the NANP telephone number is ported. For example, subject to a valid port request on behalf of the user, an interconnected VoIP provider that partners with a wireline carrier for numbering resources must, in conjunction with its numbering partner, port-out a NANP telephone number to:
(1)A wireless carrier whose coverage area overlaps with the geographic location of the porting-out numbering partner's rate center;
(2)a wireline carrier with facilities or numbering resources in the same rate center; or
(3)another interconnected VoIP provider whose numbering partner meets the requirements of
(1)or (2). Similarly, subject to a valid port request on behalf of the user, an interconnected VoIP provider that partners with a covered CMRS provider for numbering resources must, in conjunction with its numbering partner, port-out a NANP telephone number to:
(1)Another wireless carrier;
(2)a wireline carrier within the telephone number's originating rate center; or
(3)another interconnected VoIP provider whose numbering partner meets the requirements of
(1)or (2). 20. The Commission notes that because interconnected VoIP providers offer telephone numbers not necessarily based on the geographic location of their customers—many times at their customers' requests—there may be limits to number porting between providers. The Act only provides for service provider portability and does not address service or location portability. *See First Number Portability Order,* 11 FCC Rcd at 8447, para. 181. Thus, for example, if an interconnected VoIP service customer selects a number outside his current rate center, or if the interconnected VoIP service customer selects a number within his geographic rate center and moves out of that rate center, and then requests porting to a wireline carrier in his new rate center, the customer would not be able to port the number. *See* 47 CFR 52.26(a). The Commission expects interconnected VoIP providers to fully inform their customers about these limitations, particularly limitations that result from the portable nature of, and use of non-geographic numbers by, certain interconnected VoIP services. 21. The Commission also clarifies that carriers have an obligation under the Commission's rules to port-out NANP telephone numbers, upon valid request, for a user that is porting that number for use with an interconnected VoIP service. For example, subject to a valid port request on behalf of the user, a wireline carrier must port-out a NANP telephone number to:
(1)An interconnected VoIP provider that partners with a wireless carrier for numbering resources, where the partnering wireless carrier's coverage area overlaps with the geographic location of the porting-out wireline carrier's rate center; or
(2)an interconnected VoIP provider that partners with a wireline carrier for numbering resources, where the partnering wireline carrier has facilities or numbering resources in the same rate center as the porting-out wireline carrier. Similarly, subject to a valid port request on behalf of the user, a wireless carrier must port-out a NANP telephone number to:
(1)An interconnected VoIP provider that partners with a wireless carrier; or
(2)an interconnected VoIP provider that partners with a wireline carrier for numbering resources, where the partnering wireline carrier is within the number's originating rate center. The Commission clarifies that carriers must port-out NANP telephone numbers upon valid requests from an interconnected VoIP provider (or from its associated numbering partner). To the extent that an interconnected VoIP provider is certificated or licensed as a carrier, then the Title II LNP obligations to port-in or port-out to the carrier are already determined by existing law. *See, e.g.* , 47 CFR 52.26(a). 22. The Commission declines to adopt new porting intervals that apply specifically to ports between interconnected VoIP providers and other providers through a numbering partner. The intervals that would be applicable to ports between the numbering partner and the other provider, if the port were not related to an interconnected VoIP service, will apply to the port of the NANP telephone number between the numbering partner and the other provider (or the other provider's numbering partner) when the end user with porting rights is a customer of the interconnected VoIP provider. 23. The Commission takes seriously its responsibilities to safeguard the Commission's scarce numbering resources and to implement LNP obligations for the benefit of consumers. Consumers, carriers, or interconnected VoIP providers may file complaints with the Commission if they experience unreasonable delay or denial of number porting to or from an interconnected VoIP provider in violation of the Commission's LNP rules. The Commission will not hesitate to enforce its LNP rules to ensure that consumers are free to choose among service providers, subject to its LNP rules, without fear of losing their telephone numbers. 24. *Allocation of LNP Costs.* Section 251(e)(2) provides that “[t]he cost of establishing telecommunications numbering administration arrangements and number portability shall be borne by all telecommunications carriers on a competitively neutral basis as determined by the Commission.” Because interconnected VoIP providers benefit from LNP, the Commission finds that they should contribute to meet the shared LNP costs. Further, similar to the Commission's finding in its *Cost Recovery Reconsideration Order,* the Commission also believes that interconnected VoIP providers may find it costly and administratively burdensome to develop region-specific attribution systems for all of their end-user services, and thus the Commission allows these providers to use a proxy based on the percentage of subscribers a provider serves in a particular region for reaching an estimate for allocating their end-user revenues to the appropriate regional LNPA. Providers that submit an attestation certifying that they are unable to divide their traffic and resulting end-user revenue among the seven LNPA regions precisely will be allowed to divide their end-user revenue among these regions based on the percentage of subscribers served in each region. Providers may use their billing databases to identify subscriber location. D. Numbering Administration Cost Requirements 25. Although interconnected VoIP providers do not have any specific numbering administration requirements (e.g., pooling requirements), they do require the use of NANP numbering resources to provide an interconnected VoIP service, and thereby benefit from and impose costs related to numbering administration. Thus, the Commission requires interconnected VoIP providers to contribute to meet the shared numbering administration costs on a competitively neutral basis. E. Implementation 26. The LNP obligations adopted in this Order for interconnected VoIP providers and their numbering partners become effective 30 days after **Federal Register** publication. The reporting requirements for determining interconnected VoIP providers' contribution to the shared costs of numbering administration and LNP require interconnected VoIP providers to file an annual FCC Form 499-A. To ensure that interconnected VoIP providers' contributions for numbering administration and LNP are allocated properly, interconnected VoIP providers should include in their annual FCC Form 499-A filing historical revenue information for the relevant year, including all information necessary to allocate revenues across the seven LNPA regions (e.g., January 2007 through December 2007 revenue information for the April 2008 filing). The Commission will revise FCC Form 499-A at a later date, consistent with the rules and policies outlined in this Order. Interconnected VoIP providers, however, should familiarize themselves with the FCC Form 499-A and the accompanying instructions in preparation for this filing. Based on these filings, the appropriate administrators will calculate the funding base and individual contributions for each support mechanism, and provide an invoice to each interconnected VoIP provider for its contribution to the shared costs of the respective support mechanism. The Commission finds that USAC should be prepared to collect this information with the next annual filing, and that the LNPA and the NANP billing and collection agent should be prepared to include interconnected VoIP provider revenues in their calculations for the 2008 funding year based on the next annual FCC Form 499-A filings. Synopsis of Order on Remand 27. In its 2003 *Intermodal Number Portability Order* (68 FR 68831, Dec. 10, 2003), the Commission clarified that porting from a wireline carrier to a wireless carrier is required where the requesting wireless carrier's coverage area overlaps the geographic location in which the wireline number is provisioned, provided that the porting-in carrier maintains the number's original rate center designation following the port. On March 11, 2005, the United States Court of Appeals for the District of Columbia Circuit remanded the *Intermodal Number Portability Order* to the Commission. The court determined that the *Intermodal Number Portability Order* resulted in a legislative rule, and that the Commission had failed to prepare a FRFA regarding the impact of that rule on small entities, as required by the RFA. The court accordingly directed the Commission to prepare the required FRFA, and stayed future enforcement of the *Intermodal Number Portability Order* “as applied to carriers that qualify as small entities under the RFA” until the agency prepared and published that analysis. On April 22, 2005, the Commission issued a Public Notice seeking comment on an IRFA of the *Intermodal Number Portability Order* (70 FR 41655, July 20, 2005). 28. In accordance with the requirements of the RFA, the Commission has considered the potential economic impact of the intermodal porting rules on small entities and concludes that wireline carriers qualifying as small entities under the RFA will be required to provide wireline-to-wireless intermodal porting where the requesting wireless carrier's “coverage area” overlaps the geographic location in which the customer's wireline number is provisioned, provided that the porting-in carrier maintains the number's original rate center designation following the port. The Commission has prepared a FRFA as directed by the court, which is the second of two FRFAs set forth below. Final Regulatory Flexibility Analysis, WC Docket No. 04-36 (Interconnected VoIP Services) 1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis
(IRFA)was incorporated in the *IP-Enabled Services Notice* in WC Docket No. 04-36 (69 FR 16193, Mar. 29, 2004). The Commission sought written public comment on the proposals in the notice, including comment on the IRFA. The Commission received comments specifically directed toward the IRFA from three commenters in WC Docket No. 04-36. These comments are discussed below. This Final Regulatory Flexibility Analysis
(FRFA)conforms to the RFA. A. Need for, and Objectives of, the Rules 2. This Report and Order extends LNP obligations to interconnected voice over Internet Protocol
(VoIP)providers to ensure that customers of such VoIP providers may port their North American Numbering Plan
(NANP)telephone numbers when changing providers. Consumers will now be able to take advantage of new telephone services without losing their telephone numbers, which should in turn facilitate greater competition among telephony providers by allowing customers to respond to price and service changes. Additionally, this Report and Order extends to interconnected VoIP providers the obligation to contribute to shared numbering administration and number portability costs. The Commission believes these steps it takes to ensure regulatory parity among providers of similar services will minimize marketplace distortions arising from regulatory advantage. B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 3. In this section, the Commission responds to comments filed in response to the IRFA. To the extent the Commission received comments raising general small business concerns during this proceeding, those comments are discussed throughout the Report and Order. 4. The Small Business Administration
(SBA)comments that the Commission's Notice does not contain concrete proposals and is more akin to an advance notice of proposed rulemaking or a notice of inquiry. The Commission disagrees with the SBA and Menard that the Commission should postpone acting in this proceeding—thereby postponing extending the application of the LNP and numbering administration support obligations to interconnected VoIP services—and instead should reevaluate the economic impact and the compliance burdens on small entities and issue a further notice of proposed rulemaking in conjunction with a supplemental IRFA identifying and analyzing the economic impacts on small entities and less burdensome alternatives. The Commission believes these additional steps suggested by SBA and Menard are unnecessary because small entities already have received sufficient notice of the issues addressed in today's Report and Order, and because the Commission has considered the economic impact on small entities and what ways are feasible to minimize the burdens imposed on those entities, and, to the extent feasible, has implemented those less burdensome alternatives. The *IP-Enabled Services Notice* specifically sought comment on whether numbering obligations are appropriate in the context of IP-enabled services and whether action relating to numbering resources is desirable to facilitate the growth of IP-enabled services, while at the same time continuing to maximize the use and life of numbering resources in the North American Numbering Plan. The Commission published a summary of that notice in the **Federal Register** . *See Regulatory Requirements for IP-Enabled Services,* WC Docket No. 04-36, Notice of Proposed Rulemaking, 69 FR 16193 (Mar. 29, 2004). The Commission notes that a number of small entities submitted comments in this proceeding. C. Description and Estimate of the Number of Small Entities to Which Rules Will Apply 5. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the SBA. 6. *Small Businesses.* Nationwide, there are a total of approximately 22.4 million small businesses according to SBA data. 7. *Small Organizations.* Nationwide, there are approximately 1.6 million small organizations. 8. *Small Governmental Jurisdictions.* The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. The Commission estimates that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small. 1. Telecommunications Service Entities a. Wireline Carriers and Service Providers 9. The Commission has included small incumbent local exchange carriers
(LECs)in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees) and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent LECs in this RFA analysis, although the Commission emphasizes that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. 10. *Incumbent LECs.* Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent LECs. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the Commission's action. 11. *Competitive LECs, Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.”* Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 859 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive LEC services. Of these 859 carriers, an estimated 741 have 1,500 or fewer employees and 118 have more than 1,500 employees. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1,500 or fewer employees. In addition, 44 carriers have reported that they are “Other Local Service Providers.” Of the 44, an estimated 43 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities. 12. *Local Resellers.* The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 184 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 181 have 1,500 or fewer employees and three have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers are small entities that may be affected by the Commission's action. 13. *Toll Resellers.* The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 881 carriers have reported that they are engaged in the provision of toll resale services. Of these, an estimated 853 have 1,500 or fewer employees and 28 have more than 1,500 employees. Consequently, the Commission estimates that the majority of toll resellers are small entities that may be affected by the Commission's action. 14. *Payphone Service Providers (PSPs).* Neither the Commission nor the SBA has developed a small business size standard specifically for payphone services providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 657 carriers have reported that they are engaged in the provision of payphone services. Of these, an estimated 653 have 1,500 or fewer employees and four have more than 1,500 employees. Consequently, the Commission estimates that the majority of payphone service providers are small entities that may be affected by the Commission's action. 15. *Interexchange Carriers (IXCs).* Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 330 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 309 have 1,500 or fewer employees and 21 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by the Commission's action. 16. *Operator Service Providers (OSPs).* Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 23 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 22 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by the Commission's action. 17. *Prepaid Calling Card Providers.* Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 104 carriers have reported that they are engaged in the provision of prepaid calling cards. Of these, 102 are estimated to have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that all or the majority of prepaid calling card providers are small entities that may be affected by the Commission's action. *18. 800 and 800-Like Service Subscribers.* These toll-free services fall within the broad economic census category of Telecommunications Resellers. This category “comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. Census Bureau data for 2002 show that there were 1,646 firms in this category that operated for the entire year. Of this total, 1,642 firms had employment of 999 or fewer employees, and four firms had employment of 1,000 employees or more. Thus, the majority of these firms can be considered small. Additionally, it may be helpful to know the total numbers of telephone numbers assigned in these services. Commission data show that, as of June 2006, the total number of 800 numbers assigned was 7,647,941, the total number of 888 numbers assigned was 5,318,667, the total number of 877 numbers assigned was 4,431,162, and the total number of 866 numbers assigned was 6,008,976. b. International Service Providers 19. The Commission has not developed a small business size standard specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $13.5 million or less in average annual receipts. 20. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point 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.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are small entities that might be affected by the Commission's action. 21. The second category of Other Telecommunications “comprises establishments primarily engaged in
(1)providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or
(2)providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. Consequently, the Commission estimates that the majority of Other Telecommunications firms are small entities that might be affected by the Commission's action. c. Wireless Telecommunications Service Providers 22. Below, for those services subject to auctions, 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. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. *23. Wireless Service Providers.* The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. 24. *Cellular Licensees.* The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this category and size standard, the majority of firms can be considered small. Also, according to Commission data, 437 carriers reported that they were engaged in the provision of cellular service, Personal Communications Service (PCS), or Specialized Mobile Radio
(SMR)Telephony services, which are placed together in the data. The Commission has estimated that 260 of these are small under the SBA small business size standard. 25. *Paging.* The SBA has developed a small business size standard for the broad economic census category of “Paging.” Under this category, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. In addition, according to Commission data, 365 carriers have reported that they are engaged in the provision of “Paging and Messaging Service.” Of this total, the Commission estimates that 360 have 1,500 or fewer employees, and five have more than 1,500 employees. Thus, in this category the majority of firms can be considered small. 26. The Commission also notes that, in the *Paging Second Report and Order* (62 FR 11616, Mar. 12, 1997), the Commission adopted a size standard for “small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. In this context, a small business is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. The SBA has approved this definition. An auction of Metropolitan Economic Area
(MEA)licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 2,499 licenses auctioned, 985 were sold. Fifty-seven companies claiming small business status won 440 licenses. An auction of MEA and Economic Area
(EA)licenses commenced on October 30, 2001, and closed on December 5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold. One hundred thirty-two companies claiming small business status purchased 3,724 licenses. A third auction, consisting of 8,874 licenses in each of 175 EAs and 1,328 licenses in all but three of the 51 MEAs commenced on May 13, 2003, and closed on May 28, 2003. Seventy-seven bidders claiming small or very small business status won 2,093 licenses. The Commission also notes that, currently, there are approximately 74,000 Common Carrier Paging licenses. 27. *Wireless Communications Services.* This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services
(WCS)auction. A “small business” is an entity with average gross revenues of $40 million or less for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million or less for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity. 28. *Wireless Telephony.* Wireless telephony includes cellular, personal communications services (PCS), and specialized mobile radio
(SMR)telephony carriers. As noted earlier, the SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 432 carriers reported that they were engaged in the provision of wireless telephony. The Commission has estimated that 221 of these are small under the SBA small business size standard. 29. *Broadband Personal Communications Service.* The broadband Personal Communications Service
(PCS)spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses, within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. 30. *Narrowband Personal Communications Services.* The Commission held an auction for Narrowband PCS licenses that commenced on July 25, 1994, and closed on July 29, 1994. A second auction commenced on October 26, 1994 and closed on November 8, 1994. For purposes of the first two Narrowband PCS auctions, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission awarded a total of 41 licenses, 11 of which were obtained by four small businesses. To ensure meaningful participation by small business entities in future auctions, the Commission adopted a two-tiered small business size standard in the *Narrowband PCS Second Report and Order* (65 FR 35875, Jun. 6, 2000). A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. A third auction commenced on October 3, 2001 and closed on October 16, 2001. Here, five bidders won 317 (Metropolitan Trading Areas and nationwide) licenses. Three of these claimed status as a small or very small entity and won 311 licenses. 31. *220 MHz Radio Service—Phase I Licensees.* The 220 MHz service has both Phase I and Phase II licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a small business size standard for small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, the Commission applies the small business size standard under the SBA rules applicable to “Cellular and Other Wireless Telecommunications” companies. This category provides that a small business is a wireless company employing no more than 1,500 persons. For the census category Cellular and Other Wireless Telecommunications, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. Assuming this general ratio continues in the context of Phase I 220 MHz licensees, the Commission estimates that nearly all such licensees are small businesses under the SBA's small business size standard. In addition, limited preliminary census data for 2002 indicate that the total number of cellular and other wireless telecommunications carriers increased approximately 321 percent from 1997 to 2002. 32. *220 MHz Radio Service—Phase II Licensees.* The 220 MHz service has both Phase I and Phase II licenses. The Phase II 220 MHz service is a new service and is subject to spectrum auctions. In the *220 MHz Third Report and Order* (62 FR 16004, Apr. 3, 1997), the Commission adopted a small business size standard for “small” and “very small” businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. This small business size standard indicates that a “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. A “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that do not exceed $3 million for the preceding three years. The SBA has approved these small business size standards. Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. In the first auction, 908 licenses were auctioned in three different-sized geographic areas: three nationwide licenses, 30 Regional Economic Area Group
(EAG)Licenses, and 875 Economic Area
(EA)Licenses. Of the 908 licenses auctioned, 693 were sold. Thirty-nine small businesses won licenses in the first 220 MHz auction. The second auction included 225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies claiming small business status won 158 licenses. 33. *800 MHz and 900 MHz Specialized Mobile Radio Licenses.* The Commission awards “small entity” and “very small entity” bidding credits in auctions for Specialized Mobile Radio
(SMR)geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years, or that had revenues of no more than $3 million in each of the previous calendar years, respectively. These bidding credits apply to SMR providers in the 800 MHz and 900 MHz bands that either hold geographic area licenses or have obtained extended implementation authorizations. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. The Commission assumes, for purposes here, that all of the remaining existing extended implementation authorizations are held by small entities, as that term is defined by the SBA. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz SMR bands. There were 60 winning bidders that qualified as small or very small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won in the 900 MHz auction, bidders qualifying as small or very small entities won 263 licenses. In the 800 MHz auction, 38 of the 524 licenses won were won by small and very small entities. 34. *700 MHz Guard Band Licensees.* In the 700 MHz Guard Band Order, the Commission adopted a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. An auction of 52 Major Economic Area
(MEA)licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001 and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses. 35. *Rural Radiotelephone Service.* The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). The Commission uses the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein. 36. *Air-Ground Radiotelephone Service.* The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service. The Commission will use SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e., an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and the Commission estimates that almost all of them qualify as small under the SBA small business size standard. 37. *Aviation and Marine Radio Services.* Small businesses in the aviation and marine radio services use a very high frequency
(VHF)marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. Most applicants for recreational licenses are individuals. Approximately 581,000 ship station licensees and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage requirements of any statute or treaty. For purposes of the Commission's evaluations in this analysis, the Commission estimates that there are up to approximately 712,000 licensees that are small businesses (or individuals) under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, had average gross revenues for the preceding three years not to exceed $15 million dollars. In addition, a “very small” business is one that, together with controlling interests and affiliates, had average gross revenues for the preceding three years not to exceed $3 million dollars. There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards. 38. *Offshore Radiotelephone Service.* This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. There are presently approximately 55 licensees in this service. The Commission is unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. 39. *39 GHz Service.* The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years. An additional size standard for “very small business” is: an entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards. The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses. Consequently, the Commission estimates that 18 or fewer 39 GHz licensees are small entities that may be affected by the rules and polices adopted herein. 40. *Wireless Cable Systems.* Wireless cable systems use 2 GHz band frequencies of the Broadband Radio Service (“BRS”), formerly Multipoint Distribution Service (“MDS”), and the Educational Broadband Service (“EBS”), formerly Instructional Television Fixed Service (“ITFS”), to transmit video programming and provide broadband services to residential subscribers. These services were originally designed for the delivery of multichannel video programming, similar to that of traditional cable systems, but over the past several years licensees have focused their operations instead on providing two-way high-speed Internet access services. The Commission estimates that the number of wireless cable subscribers is approximately 100,000, as of March 2005. Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. As described below, the SBA small business size standard for the broad census category of Cable and Other Program Distribution, which consists of such entities generating $13.5 million or less in annual receipts, appears applicable to MDS, ITFS and LMDS. Other standards also apply, as described. 41. The Commission has defined small MDS (now BRS) and LMDS entities in the context of Commission license auctions. In the 1996 MDS auction, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition of a small entity in the context of MDS auctions has been approved by the SBA. In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. At this time, the Commission estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities. MDS licensees and wireless cable operators that did not receive their licenses as a result of the MDS auction fall under the SBA small business size standard for Cable and Other Program Distribution. Information available to the Commission indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $13.5 million annually. Therefore, the Commission estimates that there are approximately 850 small entity MDS (or BRS) providers, as defined by the SBA and the Commission's auction rules. 42. Educational institutions are included in this analysis as small entities; however, the Commission has not created a specific small business size standard for ITFS (now EBS). The Commission estimates that there are currently 2,032 ITFS (or EBS) licensees, and all but 100 of the licenses are held by educational institutions. Thus, the Commission estimates that at least 1,932 ITFS licensees are small entities. 43. In the 1998 and 1999 LMDS auctions, the Commission defined a small business as an entity that has annual average gross revenues of less than $40 million in the previous three calendar years. Moreover, the Commission added an additional classification for a “very small business,” which was defined as an entity that had annual average gross revenues of less than $15 million in the previous three calendar years. These definitions of “small business” and “very small business” in the context of the LMDS auctions have been approved by the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of the 104 auction winners, 93 claimed status as small or very small businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based on this information, the Commission believes that the number of small LMDS licenses will include the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers as defined by the SBA and the Commission's auction rules. 44. *Local Multipoint Distribution Service.* Local Multipoint Distribution Service
(LMDS)is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. The auction of the 1,030 LMDS licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licensees as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards in the context of LMDS auctions. There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 40 winning bidders. Based on this information, the Commission concludes that the number of small LMDS licenses consists of the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers. 45. *218-219 MHz Service.* The first auction of 218-219 MHz spectrum resulted in 170 entities winning licenses for 594 Metropolitan Statistical Area
(MSA)licenses. Of the 594 licenses, 557 were won by entities qualifying as a small business. For that auction, the small business size standard was an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year for the previous two years. In the *218-219 MHz Report and Order and Memorandum Opinion and Order* (64 FR 59656, Nov. 3, 2999), the Commission established a small business size standard for a “small business” as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and their affiliates, has average annual gross revenues not to exceed $15 million for the preceding three years. A “very small business” is defined as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and its affiliates, has average annual gross revenues not to exceed $3 million for the preceding three years. The Commission cannot estimate, however, the number of licenses that will be won by entities qualifying as small or very small businesses under the Commission's rules in future auctions of 218-219 MHz spectrum. 46. *24 GHz—Incumbent Licensees.* This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of “Cellular and Other Wireless Telecommunications” companies. This category provides that such a company is small if it employs no more than 1,500 persons. According to Census Bureau data for 1997, there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this size standard, the great majority of firms can be considered small. These broader census data notwithstanding, the Commission believes that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent and TRW, Inc. It is the Commission's understanding that Teligent and its related companies have less than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity. 47. *24 GHz—Future Licensees.* With respect to new applicants in the 24 GHz band, the small business size standard for “small business” is an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not in excess of $15 million. “Very small business” in the 24 GHz band is an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years. The SBA has approved these small business size standards. These size standards will apply to the future auction, if held. 2. Cable and OVS Operators 48. *Cable Television Distribution Services.* Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: All such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small. 49. *Cable Companies and Systems.* The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small. 50. *Cable System Operators.* The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 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.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. The Commission notes that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore the Commission is unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 51. *Open Video Systems (OVS).* In 1996, Congress established the open video system
(OVS)framework, one of four statutorily recognized options for the provision of video programming services by local exchange carriers (LECs). The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard of Cable and Other Program Distribution Services, which consists of such entities having $13.5 million or less in annual receipts. The Commission has certified 25 OVS operators, with some now providing service. Broadband service providers
(BSPs)are currently the only significant holders of OVS certifications or local OVS franchises. As of June, 2005, BSPs served approximately 1.4 million subscribers, representing 1.5 percent of all MVPD households. Affiliates of Residential Communications Network, Inc. (RCN), which serves about 371,000 subscribers as of June, 2005, is currently the largest BSP and 14th largest MVPD. RCN received approval to operate OVS systems in New York City, Boston, Washington, DC and other areas. The Commission does not have financial information regarding the entities authorized to provide OVS, some of which may not yet be operational. The Commission thus believes that at least some of the OVS operators may qualify as small entities. 3. Internet Service Providers 52. *Internet Service Providers.* The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs “provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity.” Under the SBA size standard, such a business is small if it has average annual receipts of $23 million or less. According to Census Bureau data for 2002, there were 2,529 firms in this category that operated for the entire year. Of these, 2,437 firms had annual receipts of under $10 million, and an additional 47 firms had receipts of between $10 million and $24, 999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by the Commission's action. 4. Other Internet-Related Entities 53. *Web Search Portals.* The Commission's action pertains to VoIP services, which could be provided by entities that provide other services such as email, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The Commission has not adopted a size standard for entities that create or provide these types of services or applications. However, the Census Bureau has identified firms that “operate web sites that use a search engine to generate and maintain extensive databases of Internet addresses and content in an easily searchable format. Web search portals often provide additional Internet services, such as e-mail, connections to other web sites, auctions, news, and other limited content, and serve as a home base for Internet users.” The SBA has developed a small business size standard for this category; that size standard is $6.5 million or less in average annual receipts. According to Census Bureau data for 2002, there were 342 firms in this category that operated for the entire year. Of these, 303 had annual receipts of under $5 million, and an additional 15 firms had receipts of between $5 million and $9,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by the Commission's action. 54. *Data Processing, Hosting, and Related Services.* Entities in this category “primarily * * * provid[e] infrastructure for hosting or data processing services.” The SBA has developed a small business size standard for this category; that size standard is $23 million or less in average annual receipts. According to Census Bureau data for 2002, there were 6,877 firms in this category that operated for the entire year. Of these, 6,418 had annual receipts of under $10 million, and an additional 251 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by the Commission's action. 55. *All Other Information Services.* “This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives).” The Commission's action pertains to VoIP services, which could be provided by entities that provide other services such as email, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The SBA has developed a small business size standard for this category; that size standard is $6.5 million or less in average annual receipts. According to Census Bureau data for 2002, there were 155 firms in this category that operated for the entire year. Of these, 138 had annual receipts of under $5 million, and an additional four firms had receipts of between $5 million and $9,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by the Commission's action. 56. *Internet Publishing and Broadcasting.* “This industry comprises establishments engaged in publishing and/or broadcasting content on the Internet exclusively. These establishments do not provide traditional (non-Internet) versions of the content that they publish or broadcast.” The SBA has developed a small business size standard for this census category; that size standard is 500 or fewer employees. According to Census Bureau data for 2002, there were 1,362 firms in this category that operated for the entire year. Of these, 1,351 had employment of 499 or fewer employees, and six firms had employment of between 500 and 999. Consequently, the Commission estimates that the majority of these firms small entities that may be affected by the Commission's action. 57. *Software Publishers.* These companies may design, develop or publish software and may provide other support services to software purchasers, such as providing documentation or assisting in installation. The companies may also design software to meet the needs of specific users. The SBA has developed a small business size standard of $23 million or less in average annual receipts for all of the following pertinent categories: Software Publishers, Custom Computer Programming Services, and Other Computer Related Services. For Software Publishers, Census Bureau data for 2002 indicate that there were 6,155 firms in the category that operated for the entire year. Of these, 7,633 had annual receipts of under $10 million, and an additional 403 firms had receipts of between $10 million and $24, 999,999. For providers of Custom Computer Programming Services, the Census Bureau data indicate that there were 32,269 firms that operated for the entire year. Of these, 31,416 had annual receipts of under $10 million, and an additional 565 firms had receipts of between $10 million and $24,999,999. For providers of Other Computer Related Services, the Census Bureau data indicate that there were 6,357 firms that operated for the entire year. Of these, 6,187 had annual receipts of under $10 million, and an additional 101 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of the firms in each of these three categories are small entities that may be affected by the Commission's action. 5. Equipment Manufacturers 58. SBA small business size standards are given in terms of “firms.” Census Bureau data concerning computer manufacturers, on the other hand, are given in terms of “establishments.” The Commission notes that the number of “establishments” is a less helpful indicator of small business prevalence in this context than would be the number of “firms” or “companies,” because the latter take into account the concept of common ownership or control. Any single physical location for an entity is an establishment, even though that location may be owned by a different establishment. Thus, the census numbers provided below may reflect inflated numbers of businesses in the given category, including the numbers of small businesses. 59. *Electronic Computer Manufacturing.* This category “comprises establishments primarily engaged in manufacturing and/or assembling electronic computers, such as mainframes, personal computers, workstations, laptops, and computer servers.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data, there were 485 establishments in this category that operated with payroll during 2002. Of these, 476 had employment of under 1,000, and an additional four establishments had employment of 1,000 to 2,499. Consequently, the Commission estimates that the majority of these establishments are small entities. 60. *Computer Storage Device Manufacturing.* These establishments manufacture “computer storage devices that allow the storage and retrieval of data from a phase change, magnetic, optical, or magnetic/optical media.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data, there were 170 establishments in this category that operated with payroll during 2002. Of these, 164 had employment of under 500, and five establishments had employment of 500 to 999. Consequently, the Commission estimates that the majority of these establishments are small entities 61. *Computer Terminal Manufacturing.* “Computer terminals are input/output devices that connect with a central computer for processing.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data, there were 71 establishments in this category that operated with payroll during 2002, and all of the establishments had employment of under 1,000. Consequently, the Commission estimates that all of these establishments are small entities. 62. *Other Computer Peripheral Equipment Manufacturing.* Examples of peripheral equipment in this category include keyboards, mouse devices, monitors, and scanners. The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data, there were 860 establishments in this category that operated with payroll during 2002. Of these, 851 had employment of under 1,000, and an additional five establishments had employment of 1,000 to 2,499. Consequently, the Commission estimates that the majority of these establishments are small entities. 63. *Audio and Video Equipment Manufacturing.* These establishments manufacture “electronic audio and video equipment for home entertainment, motor vehicle, public address and musical instrument amplifications.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 750 or fewer employees. According to Census Bureau data, there were 571 establishments in this category that operated with payroll during 2002. Of these, 560 had employment of under 500, and ten establishments had employment of 500 to 999. Consequently, the Commission estimates that the majority of these establishments are small entities. 64. *Electron Tube Manufacturing.* These establishments are “primarily engaged in manufacturing electron tubes and parts (except glass blanks).” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 750 or fewer employees. According to Census Bureau data, there were 102 establishments in this category that operated with payroll during 2002. Of these, 97 had employment of under 500, and one establishment had employment of 500 to 999. Consequently, the Commission estimates that the majority of these establishments are small entities. 65. *Bare Printed Circuit Board Manufacturing.* These establishments are “primarily engaged in manufacturing bare (i.e., rigid or flexible) printed circuit boards without mounted electronic components.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data, there were 936 establishments in this category that operated with payroll during 2002. Of these, 922 had employment of under 500, and 12 establishments had employment of 500 to 999. Consequently, the Commission estimates that the majority of these establishments are small entities. 66. *Semiconductor and Related Device Manufacturing.* Examples of manufactured devices in this category include “integrated circuits, memory chips, microprocessors, diodes, transistors, solar cells and other optoelectronic devices.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data, there were 1,032 establishments in this category that operated with payroll during 2002. Of these, 950 had employment of under 500, and 42 establishments had employment of 500 to 999. Consequently, the Commission estimates that the majority of these establishments are small entities. 67. *Electronic Capacitor Manufacturing.* These establishments manufacture “electronic fixed and variable capacitors and condensers.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data, there were 104 establishments in this category that operated with payroll during 2002. Of these, 101 had employment of under 500, and two establishments had employment of 500 to 999. Consequently, the Commission estimates that the majority of these establishments are small entities. 68. *Electronic Resistor Manufacturing.* These establishments manufacture “electronic resistors, such as fixed and variable resistors, resistor networks, thermistors, and varistors.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data, there were 79 establishments in this category that operated with payroll during 2002. All of these establishments had employment of under 500. Consequently, the Commission estimates that all of these establishments are small entities. 69. *Electronic Coil, Transformer, and Other Inductor Manufacturing.* These establishments manufacture “electronic inductors, such as coils and transformers.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data, there were 365 establishments in this category that operated with payroll during 2002. All of these establishments had employment of under 500. Consequently, the Commission estimates that all of these establishments are small entities. 70. *Electronic Connector Manufacturing.* These establishments manufacture “electronic connectors, such as coaxial, cylindrical, rack and panel, pin and sleeve, printed circuit and fiber optic.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data, there were 321 establishments in this category that operated with payroll during 2002. Of these, 315 had employment of under 500, and three establishments had employment of 500 to 999. Consequently, the Commission estimates that the majority of these establishments are small entities. 71. *Printed Circuit Assembly (Electronic Assembly) Manufacturing.* These are establishments “primarily engaged in loading components onto printed circuit boards or who manufacture and ship loaded printed circuit boards.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data, there were 868 establishments in this category that operated with payroll during 2002. Of these, 839 had employment of under 500, and 18 establishments had employment of 500 to 999. Consequently, the Commission estimates that the majority of these establishments are small entities. 72. *Other Electronic Component Manufacturing.* The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data, there were 1,627 establishments in this category that operated with payroll during 2002. Of these, 1,616 had employment of under 500, and eight establishments had employment of 500 to 999. Consequently, the Commission estimates that the majority of these establishments are small entities. 73. *Fiber Optic Cable Manufacturing.* These establishments manufacture “insulated fiber-optic cable from purchased fiber-optic strand.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data, there were 96 establishments in this category that operated with payroll during 2002. Of these, 95 had employment of under 1,000, and one establishment had employment of 1,000 to 2,499. Consequently, the Commission estimates that the majority or all of these establishments are small entities. 74. *Other Communication and Energy Wire Manufacturing.* These establishments manufacture “insulated wire and cable of nonferrous metals from purchased wire.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data, there were 356 establishments in this category that operated with payroll during 2002. Of these, 353 had employment of under 1,000, and three establishments had employment of 1,000 to 2,499. Consequently, the Commission estimates that the majority or all of these establishments are small entities. D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 75. In this Report and Order, the Commission is requiring telecommunications carriers and providers of interconnected VoIP service to collect certain information and take other actions to comply with LNP and other numbering administration obligations. Specifically, the Commission is requiring both traditional telecommunications carriers as well as interconnected VoIP providers and their numbering partners to facilitate a customer's porting request to or from an interconnected VoIP provider. This means, for example, that interconnected VoIP providers have an affirmative legal obligation to take all steps necessary to initiate or allow a port-in or port-out itself or through its numbering partner on behalf of the interconnected VoIP customer, subject to a valid port request, without unreasonable delay or unreasonable procedures that have the effect of delaying or denying porting of the number. The Commission also prohibits interconnected VoIP providers and their numbering partners from entering into agreements that would prohibit or unreasonably delay an interconnected VoIP service end user from porting between interconnected VoIP providers, or to or from a wireline carrier or a covered CMRS provider. Further, the Commission expects interconnected VoIP providers to fully inform their customers about limitations on porting between providers, particularly limitations that result from the portable nature of, and use of non-geographic numbers by, certain interconnected VoIP services. 76. The Commission is also requiring interconnected VoIP providers to contribute to meet shared numbering administration and LNP costs. The reporting requirements for determining interconnected VoIP providers' contribution to the shared cost of numbering administration and LNP require interconnected VoIP providers to file an annual FCC Form 499-A. The Commission requires interconnected VoIP providers to include in their annual FCC Form 499-A filing historical revenue information for the relevant year, including all information necessary to allocate revenues across the seven LNPA regions. To alleviate the burdens of attributing costs among the seven LNPA regions, the Commission allows these providers to use a proxy based on the percentage of subscribers a provider serves in a particular region for reaching an estimate for allocating their end-user revenues to the appropriate regional LNPA. E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 77. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives:
(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;
(3)the use of performance, rather than design, standards; and
(4)an exemption from coverage of the rule, or any part thereof, for small entities. 78. *The IP-Enabled Services Notice* sought comment on whether numbering obligations should be extended to IP-enabled services, and invited comment on the effect various proposals would have on small entities, as well as the effect alternative rules would have on these entities. However, the Commission must assess the interests of small businesses in light of the overriding public interest in ensuring that all consumers benefit from local number portability. In the Report and Order, the Commission found that allowing customers of interconnected VoIP services to receive the benefits of LNP is fundamentally important for the protection of consumers and benefits not only customers, but the interconnected VoIP providers themselves. Specifically, the Commission found that the ability of end users to retain their NANP telephone numbers when changing service providers gives customers flexibility in the quality, price, and variety of services they can choose to purchase. Allowing customers to respond to price and service changes without changing their telephone numbers will enhance competition, a fundamental goal of section 251 of the Act. In addition, the Commission found that failure to extend LNP obligations to interconnected VoIP providers and their numbering partners would thwart the effective and efficient administration of the Commission's number administration responsibilities under section 251 of the Act. 79. The Commission concluded that because interconnected VoIP providers, including small businesses, benefit from LNP, all interconnected VoIP providers, including small businesses, should contribute to meet shared LNP costs. However, to alleviate costs involved in the attribution systems for all of their end-user services, when filing FCC Form 499-A, the Commission allowed interconnected VoIP providers, including small businesses, to use a proxy based on the percentage of subscribers a provider serves in a particular region for allocating their end-user revenues to the appropriate regional LNPA. 80. Report to Congress: The Commission will send a copy of the Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. A copy of the Order and FRFA (or summaries thereof) will also be published in the **Federal Register** . Final Regulatory Flexibility Analysis, CC Docket No. 95-116 (Intermodal Local Number Portability) 1. As required by the Regulatory Flexibility Act, as amended (RFA), an Initial Regulatory Flexibility Analysis
(IRFA)was published for the *Intermodal Number Portability Order* (70 FR 41655, July 20, 2005). The Commission sought written public comment on the IRFA. The Commission received comments specifically directed toward the IRFA, which are discussed below. This Final Regulatory Flexibility Analysis
(FRFA)conforms to the RFA. A. Need for, and Objectives of, the Rules 2. Section 251(b) of the Communications Act requires local exchange carriers to provide number portability, to the extent technically feasible, in accordance with the requirements prescribed by the Commission. In the *Intermodal Number Portability Order* (68 FR 68831, Dec. 10, 2003), the Commission found that porting from a wireline carrier to a wireless carrier is required where the requesting wireless carrier's coverage area overlaps the geographic location in which the customer's wireline number is provisioned, provided that the porting-in carrier maintains the number's original rate center designation following the port. The United States Court of Appeals for the District of Columbia remanded the *Intermodal Number Portability Order* to the Commission to prepare the required FRFA on the impact of the order on carriers that qualify as small entities under the RFA. After considering information received from commenters in response to the IRFA, the Commission concludes that wireline carriers qualifying as small entities under the RFA will be required to provide wireline-to-wireless intermodal porting where the requesting wireless carrier's coverage area overlaps the geographic location in which the customer's wireline number is provisioned, provided that the porting-in carrier maintains the number's original rate center designation following the port. B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 3. In this section, the Commission responds to comments filed in response to the IRFA. To the extent the Commission received comments raising general small business concerns during this proceeding, those comments are discussed throughout the *Intermodal Number Portability Order* . 4. As an initial matter, the Commission rejects arguments that carriers that qualify as “small entities” should not have to comply with the intermodal porting requirements until the Commission addresses issues pertaining to rating and routing that are pending in the intercarrier compensation proceeding. The issues that have been raised in this proceeding with respect to transporting calls to ported numbers are also before the Commission in the context of all numbers (without distinguishing between ported or non-ported numbers) in the intercarrier compensation proceeding. Further, as the Commission found in the *Intermodal Number Portability Order* , the issue of transport costs associated with calls to ported numbers is outside the scope of this proceeding and not relevant to the application of the LNP obligations under the Act. 5. The Commission also rejects recommendations that the Commission create a partial or blanket exemption for small carriers from the wireline-to-wireless intermodal porting requirements based on the high costs of implementation. The Commission finds that small carriers have not demonstrated such significant costs associated with implementation of LNP to warrant an exemption. Several small carriers claim that they may face a variety of costs associated with wireline-to-wireless intermodal porting, which would be excessive in light of their small customer bases. However, other commenters point out that the cost information these carriers present shows a large range of cost estimates, and in fact, even when the estimates are taken at face value, they indicate that the cost of wireline-to-wireless intermodal LNP does not impose a significant economic burden on small entities. In addition, the Commission is not persuaded based on this record that the costs of implementing LNP are as large as the commenters suggest, given the scant support they provide for their estimates and their failure to demonstrate that all the estimated costs are of the sort that the Commission would allow to be attributed to the LNP end-user charge. For example, some commenters cite their estimated costs associated with transporting calls to ported numbers. However, as discussed above, the Commission previously declined to consider these as LNP-related costs, rather than costs of interconnection more generally, and the commenters here do not demonstrate that the Commission should reverse that conclusion. 6. Further, in response to small carrier concerns about LNP implementation costs, the Commission notes that wireline carriers generally only are required to provide LNP upon receipt of a specific request for the provision of LNP by another carrier. Thus, many of the small carriers may not be required to implement LNP immediately because there is no request to do so. Indeed, as the Commission found in the *First Number Portability Order on Reconsideration* (62 FR 18280, Apr. 15, 1997), these rights effectively constitute steps that minimize the economic impact of LNP on small entities. Further, carriers have the ability to petition the Commission for a waiver of their obligation to port numbers to wireless carriers if they can provide substantial, credible evidence that there are special circumstances that warrant a departure from existing rules. In addition, under section 251(f)(2), a LEC with fewer than two percent of the nation's subscriber lines installed in the aggregate nationwide may petition the appropriate state commission for suspension or modification of the requirements of section 251(b). The Commission finds these existing safeguards further address commenters' concerns regarding the costs on small entities to implement LNP. C. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply 7. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted. 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 section 3 of the Small Business Act. Under the Small Business Act, a “small business concern” is one that:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the Small Business Administration (SBA). 8. *Wired Telecommunications Carriers* . The SBA has developed a small business size standard for wireline firms within the broad economic census category, “Wired Telecommunications Carriers.” Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. Census Bureau data for 2002 show that there were 2,432 firms in this category that operated for the entire year. Of this total, 2,395 firms had employment of 999 or fewer employees, and 37 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. 9. *Incumbent Local Exchange Carriers* . The Commission has included small incumbent local exchange carriers
(LECs)in this RFA analysis. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category of Wired Telecommunications Carriers. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent LECs in this RFA analysis, although the Commission emphasizes that this RFA action has no effect on the Commission's analyses and determinations in other, non-RFA contexts. According to Commission data, 1,307 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,307 carriers, an estimated 1,019 have 1,500 or fewer employees and 288 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small entities. 10. *Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.”* Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 859 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive LEC services. Of these 859 carriers, an estimated 741 have 1,500 or fewer employees and 118 have more than 1,500 employees. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1,500 or fewer employees. In addition, 44 carriers have reported that they are “Other Local Service Providers.” Of the 44, an estimated 43 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 11. There are no significant reporting, recordkeeping or other compliance requirements imposed on small entities by the *Intermodal Number Portability Order* . E. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 12. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives (among others):
(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;
(3)the use of performance, rather than design, standards; and
(4)an exemption from coverage of the rule, or any part thereof, for small entities. 13. The Commission invited comment on the intermodal porting rules with respect to their application to small entities in light of the RFA requirements. In accordance with the requirements of the RFA, the Commission has considered the potential economic impact of the intermodal porting rules on small entities and conclude that wireline carriers qualifying as small entities under the RFA will be required to provide wireline-to-wireless intermodal porting where the requesting wireless carrier's coverage area overlaps the geographic location in which the customer's wireline number is provisioned, provided that the porting-in carrier maintains the number's original rate center designation following the port. The Commission finds that this approach best balances the impact of the costs that may be associated with the wireline-to-wireless intermodal porting rules for small carriers and the public interest benefits of those requirements. 14. Specifically, in the *Intermodal Number Portability Order* , the Commission considered limiting the scope of intermodal porting based on the small carrier concern that requiring porting to a wireless carrier that does not have a physical point of interconnection or numbering resources in the rate center associated with the ported number would give wireless carriers an unfair competitive advantage. The Commission found, however, that these considerations did not justify denying wireline consumers the benefit of being able to port their numbers to wireless carriers. In addition, the order noted that each type of service offers its own advantages and disadvantage and that consumers would consider these attributes in determining whether or not to port their numbers. The order also considered the concern expressed by small carriers that requiring porting beyond wireline rate center boundaries would lead to increased transport costs. The Commission concluded that such concerns were outside the scope of the number portability proceeding and noted that the rating and routing issues raised by the rural wireline carriers were also implicated in the context of non-ported numbers and were before the Commission in other proceedings. 15. Further, if there is a particular case where a carrier faces extraordinary costs, other regulatory avenues for relief are available. Specifically, a carrier may petition the Commission for additional time or waiver of the intermodal porting requirements if it can provide substantial, credible evidence that there are special circumstances that warrant departure from existing rules. In addition, under section 251(f)(2), a LEC with fewer than two percent of the nation's subscriber lines installed in the aggregate nationwide may petition the appropriate state commission for suspension or modification of the requirements of section 251(b). Although some commenters have complained about the time and expense associated with the section 251(f)(2) mechanism, several others have indicated that the 251(f)(2) mechanism has been an effective method of addressing the potential burdens on small carriers. Further, in response to small carriers' concerns about LNP implementation costs, the Commission notes that wireline carriers generally only are required to provide LNP upon receipt of a specific request for the provision of LNP by another carrier. Thus, many of the small carriers may not be required to implement LNP immediately because there is no request to do so. Indeed, as the Commission found in the *First Number Portability Order on Reconsideration* , these rights effectively constitute steps that minimize the economic impact of LNP on small entities. The Commission finds these existing safeguards further address commenters' concerns regarding the costs on small entities to implement LNP. 16. While the Commission recognizes that wireline carriers will still incur implementation and recurrent costs, the Commission concludes that the benefits to the public of requiring wireline-to-wireless intermodal LNP outweigh the economic burden imposed on these carriers. Creating a partial or blanket exemption from the wireline-to-wireless intermodal porting requirements for small entities would harm consumers in small and rural areas across the country by preventing them from being able to port on a permanent basis. It might also discourage further growth of competition between wireless and wireline carriers in smaller markets across the country. The Commission continues to believe that the intermodal LNP requirements are important for promoting competition between the wireless and wireline industries and generating innovative service offerings and lower prices for consumers. Wireless number porting activity since the advent of porting has been significant and evidence shows that the implementation of LNP has, in fact, yielded important benefits for consumers, such as improved customer retention efforts by carriers. By reinstating, immediately, the wireline-to-wireless intermodal porting requirement, this approach ensures that more consumers in small and rural communities will be able to port and experience the competitive benefits of LNP. F. Report to Congress 17. The Commission will send a copy of this FRFA in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. A copy of the FRFA (or a summary thereof) will also be published in the **Federal Register** . Final Paperwork Reduction Act of 1995 Analysis This document does not contain new or modified information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). Congressional Review Act The Commission will send a copy of this Report and Order on Remand in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). Ordering Clauses 29. Accordingly, *it is ordered* that pursuant to sections 1, 4(i), 4(j), 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j), 251, 303(r), the Report and Order in WC Docket No. 04-36 and CC Docket Nos. 95-116 and 99-200 *is adopted* , and that Part 52 of the Commission's Rules, 47 CFR parts 52, is amended as set forth in Appendix B. The Report and Order shall become effective 30 days after publication in the **Federal Register** . 30. *It is further ordered* that pursuant to section 1, 4(i), 4(j), 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j), 251, 303(r), the Order on Remand in CC Docket No. 95-116 is adopted. The Order on Remand shall become effective 30 days after publication in the **Federal Register** . 31. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, Declaratory Ruling, Order on Remand, and Notice of Proposed Rulemaking, including the two Final Regulatory Flexibility Analyses and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 52 Communications common carriers, telecommunications, telephone. Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends Part 52 of Title 47 of the Code of Federal Regulations as follows: PART 52—NUMBERING 1. The authority citation for part 52 is revised to read as follows: Authority: Secs. 1, 2, 4, 5, 48 Stat. 1066, as amended; 47 U.S.C. 151, 152, 154 and 155 unless otherwise noted. Interpret or apply secs. 3, 4, 201-05, 207-09, 218, 225-27, 251-52, 271 and 332, 48 Stat. 1070, as amended, 1077; 47 U.S.C. 153, 154, 201-05, 207-09, 218, 225-27, 251-52, 271 and 332 unless otherwise noted. 2. Section 52.12(a)(1)(i) introductory text is revised to read as follows: § 52.12 North American Numbering Plan Administrator and B&C Agent. (a)(1) * * *
(i)The NANPA and B&C Agent may not be an affiliate of any telecommunications service provider(s) as defined in the Telecommunications Act of 1996, or an affiliate of any interconnected VoIP provider as that term is defined in § 52.21(h). “Affiliate” is a person who controls, is controlled by, or is under the direct or indirect common control with another person. A person shall be deemed to control another if such person possesses, directly or indirectly— 3. Section 52.16 is amended by adding paragraph
(g)to read as follows: § 52.16 Billing and Collection Agent.
(g)For the purposes of this rule, the term “carrier(s)” shall include interconnected VoIP providers as that term is defined in § 52.21(h). 4. Section 52.17 is amended by adding paragraph
(c)to read as follows: § 52.17 Costs of number administration.
(c)For the purposes of this section, the term “telecommunications carrier” or “carrier” shall include interconnected VoIP providers as that term is defined in § 52.21(h). 5. Section 52.21 is amended by redesignating paragraphs
(h)through
(r)as paragraphs
(i)through (s), and by adding new paragraph
(h)to read as follows: § 52.21 Definitions.
(h)The term “interconnected VoIP provider” is an entity that provides interconnected VoIP service as that term is defined in 47 CFR 9.3. 6. Section 52.23 is amended by adding paragraph
(h)to read as follows: § 52.23 Deployment of long-term database methods for number portability by LECs. (h)(1) Porting from a wireline carrier to a wireless carrier is required where the requesting wireless carrier's “coverage area,” as defined in paragraph (h)(2) of this section, overlaps the geographic location in which the customer's wireline number is provisioned, provided that the porting-in carrier maintains the number's original rate center designation following the port.
(2)The wireless “coverage area” is defined as the area in which wireless service can be received from the wireless carrier. 7. Section 52.32 is amended by adding paragraph
(e)to read as follows: § 52.32 Allocation of the shared costs of long-term number portability.
(e)For the purposes of this section, the term “telecommunications carrier” shall include interconnected VoIP providers as that term is defined in § 52.21(h); and “telecommunications service” shall include “interconnected VoIP service” as that term is defined in 47 CFR 9.3. 8. Section 52.33(b) is revised to read as follows: § 52.33 Recovery of carrier-specific costs directly related to providing long-term number portability.
(b)All interconnected VoIP providers and telecommunications carriers other than incumbent local exchange carriers may recover their number portability costs in any manner consistent with applicable state and federal laws and regulations. 9. Section 52.34 is added to read as follows: § 52.34 Obligations regarding local number porting to and from interconnected VoIP providers.
(a)An interconnected VoIP provider must facilitate an end-user customer's valid number portability request, as it is defined in this subpart, either to or from a telecommunications carrier or another interconnected VoIP provider. “Facilitate” is defined as the interconnected VoIP providers' affirmative legal obligation to take all steps necessary to initiate or allow a port-in or port-out itself or through the telecommunications carriers, if any, that it relies on to obtain numbering resources, subject to a valid port request, without unreasonable delay or unreasonable procedures that have the effect of delaying or denying porting of the NANP-based telephone number.
(b)An interconnected VoIP provider may not enter into any agreement that would prohibit an end-user customer from porting between interconnected VoIP providers, or to or from a telecommunications carrier. [FR Doc. E8-3130 Filed 2-20-08; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket Nos. 06-121; 02-277; 01-235; 01-317; 00-244; 04-228; 99-360; FCC 07-216] 2006 Quadrennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996 AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document adopts rule changes that presumptively permit newspaper/broadcast cross ownership only in the largest markets and only where there exists competition and numerous voices. The revised rule balances the need to support the availability and sustainability of local news while not significantly increasing local concentration or harming diversity. The Commission generally retains the other broadcast ownership rules currently in effect. DATES: Effective March 24, 2008 except for 73.3555(d) which contains information collection requirements that have not been approved by OMB. The FCC will publish a document announcing the effective date of that section. FOR FURTHER INFORMATION CONTACT: Royce Sherlock,
(202)418-2330; Mania Baghdadi,
(202)418-2330. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's *Report and Order and Order on Reconsideration* in MB Docket Nos. 06-121; 02-277; 01-235; 01-317; 00-244; 04-228; 99-360, FCC 07-216, adopted December 18, 2007, and released February 4, 2008. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( *http://www.fcc.gov/cgb/ecfs* ). The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording and Braille), send an e-mail to *fcc504@fcc.gov* or call the FCC's Consumer and Governmental Affairs Bureau at
(202)418-0530 (voice)(202) 418-0432 (TTY). Summary of the Report and Order 1. This *Order* was adopted to address the issues raised by the opinion of the United States Court of Appeals for the Third Circuit in *Prometheus Radio Project* v. *FCC,* and pursuant to Section 202(h) of the Telecommunications Act of 1996 (“1996 Act”), which requires the Commission to review its ownership rules (except the national television ownership limit) every four years and “determine whether any of such rules are necessary in the public interest as the result of competition.” 2. The *Report and Order* eliminates the 32-year old prohibition on newspaper-broadcast cross-ownership. The *Report and Order* revises the Commission's rules to presumptively permit cross ownership only in the largest markets and only where there exists competition and numerous voices. Under the new approach, the Commission presumes a proposed newspaper-broadcast transaction is not inconsistent with the public interest if it meets the following test:
(1)The market at issue is one of the 20 largest Nielsen Designated Market Areas (“DMAs”);
(2)the transaction involves the combination of only one major daily newspaper and only one television or radio station;
(3)if the transaction involves a television station, at least eight independently owned and operating major media voices (defined to include major newspapers and full-power TV stations) would remain in the DMA following the transaction; and
(4)if the transaction involves a television station, that station is not among the top four ranked stations in the DMA. 3. All other proposed newspaper-broadcast transactions generally would continue to be presumed not to be in the public interest. The *Report and Order* identifies two limited circumstances in which this negative presumption would be reversed: • First, the negative presumption will be reversed if the newspaper-broadcast combination involves a “failing” or “failed” newspaper or station. The *Report and Order* adapts the Commission's longstanding approach concerning failed or failing station waivers of the local television ownership limit to newspaper-broadcast combinations, using the same criteria to define whether an outlet is “failing” or has “failed” in the newspaper-broadcast context. To be deemed “failed,” the newspaper or broadcast station would have to have ceased publication or gone dark at least four months before the filing of an application, or be in bankruptcy proceedings. To be treated as “failing,” the applicant must show that
(a)the broadcast station has had an all-day audience share of 4 percent or lower,
(b)the newspaper or broadcast station has had a negative cash flow for the previous three years, and
(c)the combination will produce public interest benefits. In addition, the applicant must show that the in-market buyer is the only reasonably available candidate willing and able to acquire and operate the newspaper or station. • Second, the negative presumption against a newspaper-broadcast combination will be reversed when a proposed transaction results in a new source of local news in a market—to be specific, when a combination would initiate at least seven hours of new local news programming per week on a broadcast station that previously has not aired local newscasts. 4. Under the new rule, parties seeking to overcome a negative presumption will face high hurdles. In particular, applicants attempting to overcome a negative presumption about a major newspaper-television combination will need to demonstrate by clear and convincing evidence that post-merger, the merged entity will increase the diversity of independent news outlets (e.g., separate editorial and news coverage decisions) and increase competition among independent news sources in the relevant market. The Commission will use the following factors to inform its evaluation:
(1)Whether the combined entity will significantly increase the amount of local news in the market;
(2)whether the newspaper and the broadcast outlets each will continue to employ its own staff and each will exercise its own independent news judgment;
(3)the level of concentration in the DMA; and
(4)the financial condition of the newspaper or broadcast station, and if the newspaper or broadcast station is in financial distress, the proposed owner's commitment to invest significantly in newsroom operations. 5. This approach will permit the Commission to balance the needs of the public for media and viewpoint diversity with its concerns about the financial health and viability of traditional media outlets and to do so in the context of each particular transaction. 6. In reaching these decisions, the item reaffirms the Commission's previous decision to eliminate the blanket ban on newspaper-broadcast cross-ownership and replace it with a presumption that waivers of the ban are in the public interest in certain limited circumstances. The *Report and Order* observes that the *Prometheus* court agreed that the ban is not necessary to promote competition, diversity, or localism. It concludes that the record contains ample evidence that marketplace conditions have indeed changed since 1975, when the ban was established, and thus justifies a recalibration at this time. In particular, it cites evidence that the largest markets contain a robust number of diverse media sources and the diversity of viewpoints would not be jeopardized by certain newspaper-broadcast combinations, and that newspaper-broadcast combinations can create synergies that result in more news coverage for consumers. Because the modified rule generally presumes that waivers are in the public interest only for combinations of a single broadcast outlet and a daily newspaper in the largest markets, the item reasons that the modified rule will ensure that such synergies can be captured without impairing diversity. 7. The item explains that newspaper-broadcast cross-ownership in the 20 largest DMAs in the country generally raises fewer diversity concerns because such media markets are more vibrant and have more media outlets. The Commission found notable differences between the top 20 markets and all other DMAs, both in terms of voices and in terms of television households. 8. The item defines major media voices as full-power commercial and noncommercial television stations and major newspapers. It acknowledges that other types of outlets contribute to diversity, but concludes that other voices are not major sources of local news or information and, therefore, should not be included as major media voices in determining whether eight independently owned voices will remain if a combination is allowed. It explains that the Commission selected the number eight for the major media voice count because it is comfortable that at least eight major media voices in the top-20 markets—along with the other unquantified media outlets that are present in those markets—will assure that these markets continue to enjoy an adequate diversity of local news and information sources. The item further explains that the top-four prohibition is included because the Commission considers daily newspapers and the top-four stations to be the most influential providers of local news in markets. Thus, such combinations are likely to cause a greater harm to diversity in a market. 9. With regard to non-top 20 markets, the item establishes a general presumption that it is inconsistent with the public interest for an entity to own, operate or control a combination in such markets in order to protect competition and media diversity, as these markets cannot match the robustness in media and outlet diversity found in the top 20 markets. Nevertheless, the item recognizes the need to consider factors particular to each market and proposed transaction. Thus, applicants in markets below DMA 20 may overcome the presumption that a merger would not be in the public interest by showing countervailing benefits of the proposed transaction. While the Commission expects such cases to be rare, it acknowledges that a particular market may have unique attributes or that the proposed transaction may present unique advantages. The item explains that the two situations in which the negative presumption may be reversed—when a newspaper or station has failed or is failing and when a proposed combination results in a new source of a significant amount of local news in a market—are grounded in the Commission's longstanding application of a failed/failing station model in evaluating local TV waiver criteria for over 25 years, as well as its recognition of the unique and particular importance of local news and public affairs programming. 10. The Order does not require divestiture of the combinations grandfathered in the Commission's 1975 decision implementing a ban on common ownership of a daily newspaper and a full-power broadcast station; rather these combinations remain grandfathered. Similarly, all permanent waivers from the prior rule that previously have been granted will continue in effect under the new rule. 11. The Order grants five permanent waivers of the rule for the following: Gannett's combination in Phoenix; Media General's combinations in Myrtle Beach-Florence, South Carolina; Columbus, Georgia; Panama City, Florida, and the Tri-Cities, Tennessee/Virginia DMA. 12. Where a pending waiver request involves an existing combination consisting of more than one newspaper and/or more than one broadcast station or an entity has been granted a waiver to hold such a combination pending the completion of this rulemaking, we will afford the licensee 90 days after the effective date of this order to either amend its waiver/renewal request or file a request for permanent waiver. Such requests will be examined on a case-by-case basis. Pending waiver requests and renewal applications will be held in abeyance until the Commission receives an appropriate amendment. Current temporary waivers that have been granted pending the completion of the rulemaking proceeding will be temporarily extended pending our action on requests for permanent waivers. In order to ensure adequate public notice of pending waiver requests, the Order indicates that the Commission will flag applications for proposed newspaper/broadcast combinations in its public notices as seeking waiver of the newspaper/broadcast cross-ownership rule pursuant to Section 73.3555(d) of the Commission's rules. 13. With respect to the remaining broadcast ownership rules under review, including the local television ownership rule, the radio-tv cross-ownership rule, the local radio ownership rule, and the dual network rule, the Commission determined that any further relaxation of ownership rules in the radio or television broadcast markets should not be allowed and retains the media ownership rules that are currently in effect. Thus, it retains the changes to the local radio ownership rule adopted in the 2002 Biennial Review Order, including use of Arbitron markets to define the relevant radio market and including noncommercial stations in determining the size of the radio market. The Order also reaffirms the decision in the 2002 Biennial Review Order to attribute certain same-market radio Joint Sales Agreements. These rules reaffirm the Commission's core competition and diversity goals, while harmonizing these goals with marketplace realities. Finally, the Order concludes that the Commission is foreclosed from addressing the issue of the UHF discount in this proceeding by the 2004 Consolidated Appropriations Act. Accordingly, these rules remain necessary in the public interest as the result of competition. 14. The *Report and Order* also reinstates the failed station solicitation rule, which required an applicant for a waiver of the local TV ownership rule to provide notice of the sale of a failed, failing or unbuilt station to potential out-of-market buyers before it could sell that station to an in-market buyer. The Order states that it is necessary to ensure that out-of-market buyers, including qualified minority broadcasters, have notice of, and an opportunity to bid for, a station before it is combined with an in-market station. A waiver of the rule should only be permitted when no out-of-market buyer is willing to purchase the station at a reasonable price. Report and Order Final Paperwork Reduction Act of 1995 Analysis 15. This *Report and Order* contains both new and modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget
(OMB)for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4), we have considered how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” We find that the modified requirements must apply fully to small entities (as well as to others) to protect consumers and further other goals, as described in the *Order* . 16. In this present document, we have assessed the effects of the Commission's broadcast ownership rules, as amended, and find that the effect on businesses with fewer than 25 employees will be minimal. Final Regulatory Flexibility Analysis 17. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis
(IRFA)was incorporated in the Notice of Proposed Rulemaking ( *NPRM* ) in MB Docket No. 02-277. The Commission sought written public comment on the proposals in the *NPRM* including comment on the IRFA (FCC 02-249, 67 FR 65751, October 28, 2002). The Commission also prepared a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the possible significant economic impact on small entities of the proposals in the *Further Notice of Proposed Rulemaking (FNPRM)* (FCC 06-93, 71 FR 45511, August 9, 2006; 71 FR 54253, September 14, 2006). The Commission sought written public comment on the *FNPRM,* including comment on the Supplemental IRFA. This present Final Regulatory Flexibility Analysis
(FRFA)conforms to the RFA. A. Need for, and Objectives of, the Report and Order and Order on Reconsideration (Order) 18. The *Order* concludes the Commission's 2006 Quadrennial Review of the broadcast ownership rules. This review encompasses the newspaper/broadcast cross-ownership rule, the radio-television cross-ownership rule, the local television multiple ownership rule, the local radio ownership rule, and the dual network rule. The rules are reviewed under Section 202(h) of the Telecommunications Act of 1996 (“1996 Act”), which requires the Commission to review its ownership rules (except the national television ownership limit) every four years and “determine whether any of such rules are necessary in the public interest as the result of competition.” Under Section 202(h), the Commission “shall repeal or modify any regulation it determines to be no longer in the public interest.” The Commission modifies the newspaper/broadcast cross-ownership rule and retains the other broadcast ownership rules currently in effect. 19. The Commission's approach in this *Order* is a cautious approach that balances the concerns of many commenters that it not permit excessive consolidation, with concerns of other commenters that it afford some relief to assure continued diversity and investment in local news programming by a modest loosening of the 32 year-old prohibition on newspaper/broadcast cross-ownership. The Commission believes that the decisions it adopts in the *Order* serve our public interest goals, appropriately take account of the current media marketplace, and comply with our statutory responsibilities. B. Legal Basis 20. This *Order* is adopted pursuant to Sections 1, 2(a), 4(i), 303, 307, 309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, and 310, and Section 202(h) of the Telecommunications Act of 1996. C. Summary of Significant Issues Raised by Public Comments in Response to the IRFA and the Supplemental IRFA 21. The Commission received no comments in direct response to the IRFA and the Supplemental IRFA. However, the Commission received comments that discuss issues of interest to small entities. These comments are discussed in the section of this FRFA discussing the steps taken to minimize significant impact on small entities, and the significant alternatives considered. D. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply 22. 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 defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental entity” under Section 3 of the Small Business Act. In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the SBA. 23. *Television Broadcasting.* In this context, the application of the statutory definition to television stations is of concern. The Small Business Administration defines a television broadcasting station that has no more than $13 million in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of the BIA Financial Network, Inc. Media Access Pro Television Database as of December 7, 2007, about 825 (66 percent) of the 1,250 commercial television stations in the United States have revenues of $13 million or less. However, in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the ownership rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 24. An element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time and in this context to define or quantify the criteria that would establish whether a specific television station is dominant in its market of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any television stations from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. It is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 25. *Radio Broadcasting.* The Small Business Administration defines a radio broadcasting entity that has $6.5 million or less in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” According to Commission staff review of the BIA Financial Network, Inc. Media Access Radio Analyzer Database as of December 7, 2007, about 10,500 (95 percent) of 11,050 commercial radio stations in the United States have revenues of $6.5 million or less. We note, however, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the ownership rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 26. In this context, the application of the statutory definition to radio stations is of concern. An element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time and in this context to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any radio station from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 27. *Daily Newspapers.* The SBA has developed a small business size standard for the census category of Newspaper Publishers; that size standard is 500 or fewer employees. Census Bureau data for 2002 show that there were 5,159 firms in this category that operated for the entire year. Of this total, 5,065 firms had employment of 499 or fewer employees, and an additional 42 firms had employment of 500 to 999 employees. Therefore, we estimate that the majority of Newspaper Publishers are small entities that might be affected by our action. E. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 28. Broadcasters whose newspaper/broadcast combination is approved under the presumption that a proposed newspaper broadcast combination is consistent with the public interest when it initiates the programming of local newscasts of at least seven hours per week on a broadcast outlet that otherwise was not offering local newscasts prior to the combined operations must report to the Commission annually regarding how they have followed through on their commitment to initiate at least seven hours a week of local news. The *Order* modestly revises the newspaper/broadcast cross-ownership rule and otherwise retains the broadcast ownership rules currently in effect. With the exception of the foregoing reporting requirement, the *Order* imposes no increased reporting, recordkeeping or other compliance requirements. F. Steps Taken to Minimize Significant Impact on Small Entities and Significant Alternatives Considered 29. The RFA requires an agency to describe any significant 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 or reporting requirements under the rule for 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 small entities. 30. The *Order* modestly revises the newspaper/broadcast cross-ownership rule. Under the new rule, the Commission presumes a proposed newspaper/broadcast transaction is not inconsistent with the public interest if it meets the following test:
(1)The market at issue is one of the 20 largest Nielsen Designated Market Areas (“DMAs”);
(2)the transaction involves the combination of only one major daily newspaper and only one television or radio station;
(3)if the transaction involves a television station, at least eight independently owned and operating major media voices (defined to include major newspapers and full-power TV stations) would remain in the DMA following the transaction; and
(4)if the transaction involves a television station, that station is not among the top four ranked stations in the DMA. All other proposed newspaper/broadcast transactions would continue to be presumed not in the public interest. 31. Under the new rule, the negative presumption will be reversed in two circumstances. First, the newspaper or broadcast station would have to be considered “failed” or “failing.” To be deemed “failed,” the newspaper or broadcast station would have to have ceased publication or gone dark at least four months before the filing of an application, or be in bankruptcy proceedings. To be treated as “failing,” the applicant must show that
(a)the broadcast station has had an all-day audience share of 4 percent or lower,
(b)the newspaper or broadcast station has had a negative cash flow for the previous three years,
(c)the combination will produce public interest benefits, and
(d)the in-market buyer is the only reasonably available candidate willing and able to acquire and operate the newspaper or station. Second, the negative presumption will be reversed when the combination is with a broadcast station that was not offering local newscasts prior to the combination, and the station will initiate at least seven hours per week of local news programming after the combination. Under the new rule, the Commission would consider a negative presumption as establishing a high hurdle as it reviews the transactions on a case-by-case basis. In particular, applicants attempting to overcome a negative presumption about a newspaper television combination will need to demonstrate by clear and convincing evidence that post-merger the merged entity will increase the diversity of independent news outlets ( *e.g.* , separate editorial and news coverage decisions) and increase competition among independent news sources in the relevant market. The Commission will use the following factors to inform its evaluation:
(1)The extent to which cross-ownership will serve to increase the amount of local news disseminated through the affected media outlets in the combination;
(2)whether each affected media outlet in the combination will exercise its own independent news judgment;
(3)the level of concentration in the Nielsen DMA; and
(4)the financial condition of the newspaper or broadcast station, and if the newspaper or broadcast station is in financial distress, the owner's commitment to invest significantly in newsroom operations. This approach will permit the Commission to balance the needs of the public for media and viewpoint diversity with its concerns about the financial health of traditional media outlets in the context of each particular transaction. 32. The Commission considered other alternatives, but the *Order* retains the other media ownership rules currently in effect. The Commission believes that the decisions it adopts in the *Order* serve our public interest goals, appropriately take account of the current media marketplace, and comply with our statutory responsibilities. It retains the radio/television cross-ownership rule currently in effect to provide protection for diversity goals in local markets and thereby serve the public interest. 33. The *Order* finds that restrictions on common ownership of television stations in local markets continue to be necessary in the public interest to protect competition for viewers and in local television advertising markets. The Commission concludes that, in order to preserve adequate levels of competition within local television markets, the local TV ownership rule as it is currently in effect should be retained. Accordingly, an entity may own two television stations in the same DMA if:
(1)The Grade B contours of the stations do not overlap; or
(2)at least one of the stations in the combination is not ranked among the top four stations in terms of audience share, and at least eight independently owned and operating commercial or non-commercial full-power broadcast television stations would remain in the DMA after the combination. To determine the number of voices remaining after the merger, the Commission counts those broadcast television stations whose Grade B signal contours overlap with the Grade B signal contour of at least one of the stations that would be commonly owned. With respect to the waiver standard for the local TV ownership rule, we will reinstate our requirement that a waiver applicant demonstrate that there is no buyer outside the market willing to purchase the station at a reasonable price. Reinstating this requirement will promote the market entry of small businesses, including minority- and women-owned businesses, because it will increase the likelihood that they will learn of purchasing opportunities. 34. The Commission does not revise its decision that DMAs are the more precise geographic markets. Nonetheless, in the instant *Order* , unlike in the *2002 Biennial Review Order,* we are not relaxing the local television ownership rule, and, accordingly, to avoid disruption to settled expectations, we retain the Grade B overlap provision. Furthermore, we believe that maintaining the Grade B provision will promote television service in rural areas by continuing to enable station owners to build or purchase an additional station in a remote corner of the DMA, beyond the reach of their Grade B signal, without regard to the top four/eight voices restriction. 35. The *Order* concludes that the current local radio ownership rule remains “necessary in the public interest” to protect competition in local radio markets. As directed by the *Prometheus* court, the Commission also provides a reasoned justification for our decision to retain the existing numerical limits on local radio ownership and the AM subcaps. In addition, we deny or dismiss a number of pending petitions for reconsideration of the Commission's action concerning the local radio ownership rule in the *2002 Biennial Review Order.* Accordingly, an entity may own, operate, or control
(1)up to eight commercial radio stations, not more than five of which are in the same service ( *i.e.* , AM or FM), in a radio market with 45 or more full-power, commercial and noncommercial radio stations;
(2)up to seven commercial radio stations, not more than four of which are in the same service, in a radio market with between 30 and 44 (inclusive) full-power, commercial and noncommercial radio stations;
(3)up to six commercial radio stations, not more than four of which are in the same service, in a radio market with between 15 and 29 (inclusive) full-power, commercial and noncommercial radio stations; and
(4)up to five commercial radio stations, not more than three of which are in the same service, in a radio market with 14 or fewer full-power, commercial and noncommercial radio stations, except that an entity may not own, operate, or control more than 50 percent of the stations in such a market. Retaining the AM subcap serves the public interest because the relative affordability of radio compared to other mass media makes it a likely avenue for new entry into the media business, particularly by small businesses. 36. For the same reasons recited by the Commission in 2002, we continue to believe that the dual network rule is necessary in the public interest to promote competition and localism. Accordingly, the *Order* retains the dual network rule in its current form. No petitions were filed asking the Commission to reconsider its decision to retain the rule, and no challenges were filed in *Prometheus.* The Commission sought comment in the *FNPRM* on whether the dual network rule remains necessary in the public interest to promote the Commission's policy goals. Almost all of the few parties commenting on the rule in this proceeding support retaining the rule in its current form. Other parties argue that relaxing or eliminating the rule would increase concentration to the detriment of competition, diversity, and localism. No specific changes to the dual network rule were proposed, and only two parties—Fox and CBS—oppose retaining the rule in any form. Neither of these parties has provided evidence convincing us that a departure from our 2002 decision to retain the rule in its current form is warranted. 37. The *Order* finds that the Commission is foreclosed from addressing the issue of the UHF discount in this proceeding by the 2004 Consolidated Appropriations Act. Although the Appropriations Act did not specifically mention the UHF discount, the *Prometheus* court observed that the statutory 39 percent national cap would be altered if the UHF discount were modified. The court observed that the Appropriations Act amended Section 202(h) to exclude “any rules relating to” the 39 percent national cap, and determined that the UHF discount was a rule “relating to” the national TV cap. The Third Circuit concluded that Congress “apparently intended to insulate the UHF discount from periodic review,” but left open the possibility that the Commission may consider the discount in a rulemaking “outside the context of Section 202(h).” Accordingly, the *Order* concludes that the UHF discount is insulated from review under Section 202(h). 38. The *Order* notes that in the pending proceeding entitled *Public Interest Obligations of TV Broadcast Licensees* commenters ask the Commission to impose additional “public interest” obligations on television broadcasters. The *Order* explains that some of the issues raised in that proceeding have already been resolved by the Commission. With respect to other ideas raised in this proceeding such as whether the agency should establish more specific minimum public interest requirements for licensees and how broadcasters could improve political candidates' access to television, the Commission declines to take any further action at this time. Nevertheless, to the extent that circumstances change, the Commission agrees to revisit this decision and initiate proceedings as appropriate. Congressional Review Act 39. The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). Ordering Clauses 40. Accordingly, *It is ordered,* that pursuant to the authority contained in sections 1, 2(a), 4(i,), 303, 307, 309 and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309 and 310, and Section 202(h) of the Telecommunications Act of 1996, this *Report and Order and Order on Reconsideration* and the rule modifications attached hereto as Appendix A are adopted, effective thirty
(30)days after publication of the text or summary thereof in the **Federal Register** , except for those rules and requirements involving Paperwork Reduction Act burdens, which shall become effective immediately upon announcement in the **Federal Register** of OMB approval. It is our intention in adopting these rule changes that, if any of the rules that we retain, modify or adopt today, or the application thereof to any person or circumstance, are held to be unlawful, the remaining portions of the rules not deemed unlawful, and the application of such rules to other persons or circumstances, shall remain in effect to the fullest extent permitted by law. Thus, for example, if one of the ownership rules is held to be unlawful, the other ownership rules shall remain in effect to the fullest extent permitted by law, each being severable from the others. 41. *It is further ordered,* that the Petition for Reconsideration filed by Office of Communication of the United Church of Christ, Inc., Black Citizens for a Fair Media, Philadelphia Lesbian and Gay Task Force, and Women's Institute for Freedom of the Press; and the Petition for Reconsideration filed by Minority Media and Telecommunications Council, Counsel for Diversity and Competition Supporters filed in MB Docket No. 02-277 are granted to the extent set forth in this *Order,* and otherwise are denied. The Petitions for Reconsideration filed in MB Docket No. 02-277 by National Association of Black Owned Broadcasters, Inc. and The Rainbow/PUSH Coalition, Inc.; WTCM Radio, Inc.; WJZD, Inc.; Cumulus Media, Inc.; Galaxy Communications, L.P.; Mt. Wilson FM Broadcasters; Entercom Communications Corp.; Great Scott Broadcasting; Treasure and Space Coast Radio; Saga Communications, Inc.; Future of Music Coalition; National Organization for Women; Mid-West Family Broadcasting; Monterey Licenses, LLC; LIN Television Corporation and Raycom Media Inc.; Duff, Ackerman & Goodrich, LLC; Center for the Creative Community and Association of Independent Video and Filmmakers; Robert W. McChesney and Josh Silver of Free Press; Nexstar Broadcasting Group, LLC; Saga Communications, Inc.; Consumers Federation of America and Consumers Union; Capitol Broadcasting Company, Inc.; Bennco, Inc.; The Amherst Alliance and the Virginia Center for the Public Press are dismissed or denied as discussed in this *Order.* 42. *It is further ordered,* that as enumerated in paragraph 76 of the *Report and Order and Order on Reconsideration,* the grandfathering or waivers granted in the 1975 newspaper/broadcast cross-ownership decision, *Amendment of Sections 73.34, 73.240, and 73.636 of the Commission's Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations,* Docket No. 18110, 50 FCC 2d 1046
(1975)are continued, and all permanent waivers for the prior newspaper-broadcast cross ownership rule that have previously been granted are continued. 43. *It is further ordered,* that as enumerated in paragraph 77 of the *Report and Order and Order on Reconsideration,* waivers are granted to Gannett Co. Inc.'s combination in Phoenix (The Arizona Republic and KPNX-TV), Media General Inc.'s combination in Myrtle Beach-Florence, South Carolina (WBTW(TV) and the Morning News), Media General, Inc.'s combination in Columbus, Georgia (WRBL(TV) and the Opelika-Auburn News), Media General, Inc.'s combination in Panama City, Florida (WMBB(TV) and the Jackson County Floridan), and Media General's combination in the Tri-Cities, Tennessee/Virginia DMA (WJHL-TV and the Bristol (Virginia Tennessee) Herald Courier). 44. *It is further ordered,* that as enumerated in paragraph 78 of the *Report and Order and Order on Reconsideration,* licensees with a pending waiver request that involves an existing station combination consisting of more than one newspaper and/or more than one broadcast station will have 90 days after the effective date of the *Report and Order and Order on Reconsideration* to either amend their renewal or waiver requests or file a request for a permanent waiver. 45. *It is further ordered,* that as enumerated in paragraph 78 of the *Report and Order and Order on Reconsideration,* entities that have been granted a temporary waiver of the newspaper/broadcast cross-ownership rule pending the completion of this rulemaking will have 90 days after the effective date of the Report and Order to either amend their renewal or waiver requests or file a request for a permanent waiver. 46. *It is further ordered,* that the proceedings in MB Docket No. 06-121, MB Docket No. 02-277, MM Docket No. 01-235, MM Docket No. 01-317, MM Docket No. 00-244, and MM Docket No. 99-360 are terminated. 47. *It is further ordered,* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this *Report and Order and Order on Reconsideration,* including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 73 Radio, Television. Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 reads as follows: Authority: 47 U.S.C. 154, 303, 334, 336, and 339. 2. Section 73.3555 is revised to read as follows: § 73.3555 Multiple ownership. (a)(1) *Local radio ownership rule.* A person or single entity (or entities under common control) may have a cognizable interest in licenses for AM or FM radio broadcast stations in accordance with the following limits:
(i)In a radio market with 45 or more full-power, commercial and noncommercial radio stations, not more than 8 commercial radio stations in total and not more than 5 commercial stations in the same service (AM or FM);
(ii)In a radio market with between 30 and 44 (inclusive) full-power, commercial and noncommercial radio stations, not more than 7 commercial radio stations in total and not more than 4 commercial stations in the same service (AM or FM);
(iii)In a radio market with between 15 and 29 (inclusive) full-power, commercial and noncommercial radio stations, not more than 6 commercial radio stations in total and not more than 4 commercial stations in the same service (AM or FM); and
(iv)In a radio market with 14 or fewer full-power, commercial and noncommercial radio stations, not more than 5 commercial radio stations in total and not more than 3 commercial stations in the same service (AM or FM); provided, however, that no person or single entity (or entities under common control) may have a cognizable interest in more than 50% of the full-power, commercial and noncommercial radio stations in such market unless the combination of stations comprises not more than one AM and one FM station.
(2)Overlap between two stations in different services is permissible if neither of those two stations overlaps a third station in the same service.
(b)*Local television multiple ownership rule.* An entity may directly or indirectly own, operate, or control two television stations licensed in the same Designated Market Area
(DMA)(as determined by Nielsen Media Research or any successor entity) only under one or more of the following conditions:
(1)The Grade B contours of the stations (as determined by § 73.684) do not overlap; or
(i)At the time the application to acquire or construct the station(s) is filed, at least one of the stations is not ranked among the top four stations in the DMA, based on the most recent all-day (9 a.m.-midnight) audience share, as measured by Nielsen Media Research or by any comparable professional, accepted audience ratings service; and
(ii)At least 8 independently owned and operating, full-power commercial and noncommercial TV stations would remain post-merger in the DMA in which the communities of license of the TV stations in question are located. Count only those stations the Grade B signal contours of which overlap with the Grade B signal contour of at least one of the stations in the proposed combination. In areas where there is no Nielsen DMA, count the TV stations present in an area that would be the functional equivalent of a TV market. Count only those TV stations the Grade B signal contours of which overlap with the Grade B signal contour of at least one of the stations in the proposed combination.
(2)[Reserved]
(c)*Radio-television cross-ownership rule.*
(1)*This rule is triggered when:*
(i)The predicted or measured 1 mV/m contour of an existing or proposed FM station (computed in accordance with § 73.313) encompasses the entire community of license of an existing or proposed commonly owned TV broadcast station(s), or the Grade A contour(s) of the TV broadcast station(s) (computed in accordance with § 73.684) encompasses the entire community of license of the FM station; or
(ii)The predicted or measured 2 mV/m groundwave contour of an existing or proposed AM station (computed in accordance with § 73.183 or § 73.386), encompasses the entire community of license of an existing or proposed commonly owned TV broadcast station(s), or the Grade A contour(s) of the TV broadcast station(s) (computed in accordance with § 73.684) encompass(es) the entire community of license of the AM station.
(2)An entity may directly or indirectly own, operate, or control up to two commercial TV stations (if permitted by paragraph
(b)of this section, the local television multiple ownership rule) and 1 commercial radio station situated as described in paragraph (c)(1) of this section. An entity may not exceed these numbers, except as follows:
(i)If at least 20 independently owned media voices would remain in the market post-merger, an entity can directly or indirectly own, operate, or control up to:
(A)Two commercial TV and six commercial radio stations (to the extent permitted by paragraph
(a)of this section, the local radio multiple ownership rule); or
(B)One commercial TV and seven commercial radio stations (to the extent that an entity would be permitted to own two commercial TV and six commercial radio stations under paragraph (c)(2)(i)(A) of this section, and to the extent permitted by paragraph
(a)of this section, the local radio multiple ownership rule).
(ii)If at least 10 independently owned media voices would remain in the market post-merger, an entity can directly or indirectly own, operate, or control up to two commercial TV and four commercial radio stations (to the extent permitted by paragraph
(a)of this section, the local radio multiple ownership rule).
(3)To determine how many media voices would remain in the market, count the following:
(i)TV stations: independently owned and operating full-power broadcast TV stations within the DMA of the TV station's (or stations') community (or communities) of license that have Grade B signal contours that overlap with the Grade B signal contour(s) of the TV station(s) at issue;
(ii)*Radio stations:* (A)(1) Independently owned operating primary broadcast radio stations that are in the radio metro market (as defined by Arbitron or another nationally recognized audience rating service) of: ( *i* ) The TV station's (or stations') community (or communities) of license; or ( *ii* ) The radio station's (or stations') community (or communities) of license; and ( *2* ) Independently owned out-of-market broadcast radio stations with a minimum share as reported by Arbitron or another nationally recognized audience rating service.
(B)When a proposed combination involves stations in different radio markets, the voice requirement must be met in each market; the radio stations of different radio metro markets may not be counted together.
(C)In areas where there is no radio metro market, count the radio stations present in an area that would be the functional equivalent of a radio market.
(iii)Newspapers: Newspapers that are published at least four days a week within the TV station's DMA in the dominant language of the market and that have a circulation exceeding 5% of the households in the DMA; and
(iv)One cable system: if cable television is generally available to households in the DMA. Cable television counts as only one voice in the DMA, regardless of how many individual cable systems operate in the DMA.
(d)*Daily newspaper cross-ownership rule.*
(1)No license for an AM, FM or TV broadcast station shall be granted to any party (including all parties under common control) if such party directly or indirectly owns, operates or controls a daily newspaper and the grant of such license will result in:
(i)The predicted or measured 2 mV/m contour of an AM station, computed in accordance with § 73.183 or § 73.186, encompassing the entire community in which such newspaper is published; or
(ii)The predicted 1 mV/m contour for an FM station, computed in accordance with § 73.313, encompassing the entire community in which such newspaper is published; or
(iii)The Grade A contour of a TV station, computed in accordance with § 73.684, encompassing the entire community in which such newspaper is published.
(2)Paragraph (d)(1) of this section shall not apply in cases where the Commission makes a finding pursuant to Section 310(d) of the Communications Act that the public interest, convenience, and necessity would be served by permitting an entity that owns, operates or controls a daily newspaper to own, operate or control an AM, FM, or TV broadcast station whose relevant contour encompasses the entire community in which such newspaper is published as set forth in paragraph (d)(1) of this section.
(3)In making a finding under paragraph (d)(2) of this section, there shall be a presumption that it is not inconsistent with the public interest, convenience, and necessity for an entity to own, operate or control a daily newspaper in a top 20 Nielsen DMA and one commercial AM, FM or TV broadcast station whose relevant contour encompasses the entire community in which such newspaper is published as set forth in paragraph (d)(1) of this section, provided that, with respect to a combination including a commercial TV station,
(i)The station is not ranked among the top four TV stations in the DMA, based on the most recent all-day (9 a.m.-midnight) audience share, as measured by Nielsen Media Research or by any comparable professional, accepted audience ratings service; and
(ii)At least 8 independently owned and operating major media voices would remain in the DMA in which the community of license of the TV station in question is located (for purposes of this provision major media voices include full-power TV broadcast stations and major newspapers).
(4)In making a finding under paragraph (d)(2) of this section, there shall be a presumption that it is inconsistent with the public interest, convenience, and necessity for an entity to own, operate or control a daily newspaper and an AM, FM or TV broadcast station whose relevant contour encompasses the entire community in which such newspaper is published as set forth in paragraph (d)(1) of this section in a DMA other than the top 20 Nielsen DMAs or in any circumstance not covered under paragraph (d)(3) of this section.
(5)In making a finding under paragraph (d)(2) of this section, the Commission shall consider:
(i)Whether the combined entity will significantly increase the amount of local news in the market;
(ii)Whether the newspaper and the broadcast outlets each will continue to employ its own staff and each will exercise its own independent news judgment;
(iii)The level of concentration in the Nielsen Designated Market Area (DMA); and
(iv)The financial condition of the newspaper or broadcast station, and if the newspaper or broadcast station is in financial distress, the proposed owner's commitment to invest significantly in newsroom operations.
(6)In order to overcome the negative presumption set forth in paragraph (d)(4) of this section with respect to the combination of a major newspaper and a television station, the applicant must show by clear and convincing evidence that the co-owned major newspaper and station will increase the diversity of independent news outlets and increase competition among independent news sources in the market, and the factors set forth above in paragraph (d)(5) of this section will inform this decision.
(7)The negative presumption set forth in paragraph (d)(4) of this section shall be reversed under the following two circumstances:
(i)The newspaper or broadcast station is failed or failing; or
(ii)The combination is with a broadcast station that was not offering local newscasts prior to the combination, and the station will initiate at least seven hours per week of local news programming after the combination.
(e)*National television multiple ownership rule.*
(1)No license for a commercial television broadcast station shall be granted, transferred or assigned to any party (including all parties under common control) if the grant, transfer or assignment of such license would result in such party or any of its stockholders, partners, members, officers or directors having a cognizable interest in television stations which have an aggregate national audience reach exceeding thirty-nine
(39)percent.
(2)*For purposes of this paragraph* (e):
(i)National audience reach means the total number of television households in the Nielsen Designated Market Areas
(DMAs)in which the relevant stations are located divided by the total national television households as measured by DMA data at the time of a grant, transfer, or assignment of a license. For purposes of making this calculation, UHF television stations shall be attributed with 50 percent of the television households in their DMA market.
(ii)No market shall be counted more than once in making this calculation.
(3)Divestiture. A person or entity that exceeds the thirty-nine
(39)percent national audience reach limitation for television stations in paragraph (e)(1) of this section through grant, transfer, or assignment of an additional license for a commercial television broadcast station shall have not more than 2 years after exceeding such limitation to come into compliance with such limitation. This divestiture requirement shall not apply to persons or entities that exceed the 39 percent national audience reach limitation through population growth.
(f)The ownership limits of this section are not applicable to noncommercial educational FM and noncommercial educational TV stations. However, the attribution standards set forth in the Notes to this section will be used to determine attribution for noncommercial educational FM and TV applicants, such as in evaluating mutually exclusive applications pursuant to subpart K of part 73. Note 1 to § 73.3555: The words “cognizable interest” as used herein include any interest, direct or indirect, that allows a person or entity to own, operate or control, or that otherwise provides an attributable interest in, a broadcast station. Note 2 to § 73.3555: In applying the provisions of this section, ownership and other interests in broadcast licensees, cable television systems and daily newspapers will be attributed to their holders and deemed cognizable pursuant to the following criteria: a. Except as otherwise provided herein, partnership and direct ownership interests and any voting stock interest amounting to 5% or more of the outstanding voting stock of a corporate broadcast licensee, cable television system or daily newspaper will be cognizable; b. Investment companies, as defined in 15 U.S.C. 80a-3, insurance companies and banks holding stock through their trust departments in trust accounts will be considered to have a cognizable interest only if they hold 20% or more of the outstanding voting stock of a corporate broadcast licensee, cable television system or daily newspaper, or if any of the officers or directors of the broadcast licensee, cable television system or daily newspaper are representatives of the investment company, insurance company or bank concerned. Holdings by a bank or insurance company will be aggregated if the bank or insurance company has any right to determine how the stock will be voted. Holdings by investment companies will be aggregated if under common management. c. Attribution of ownership interests in a broadcast licensee, cable television system or daily newspaper that are held indirectly by any party through one or more intervening corporations will be determined by successive multiplication of the ownership percentages for each link in the vertical ownership chain and application of the relevant attribution benchmark to the resulting product, except that wherever the ownership percentage for any link in the chain exceeds 50%, it shall not be included for purposes of this multiplication. For purposes of paragraph i. of this note, attribution of ownership interests in a broadcast licensee, cable television system or daily newspaper that are held indirectly by any party through one or more intervening organizations will be determined by successive multiplication of the ownership percentages for each link in the vertical ownership chain and application of the relevant attribution benchmark to the resulting product, and the ownership percentage for any link in the chain that exceeds 50% shall be included for purposes of this multiplication. [For example, except for purposes of paragraph
(i)of this note, if A owns 10% of company X, which owns 60% of company Y, which owns 25% of “Licensee,” then X's interest in “Licensee” would be 25% (the same as Y's interest because X's interest in Y exceeds 50%), and A's interest in “Licensee” would be 2.5% (0.1 × 0.25). Under the 5% attribution benchmark, X's interest in “Licensee” would be cognizable, while A's interest would not be cognizable. For purposes of paragraph i. of this note, X's interest in “Licensee” would be 15% (0.6 × 0.25) and A's interest in “Licensee” would be 1.5% (0.1 × 0.6 × 0.25). Neither interest would be attributed under paragraph i. of this note.] d. Voting stock interests held in trust shall be attributed to any person who holds or shares the power to vote such stock, to any person who has the sole power to sell such stock, and to any person who has the right to revoke the trust at will or to replace the trustee at will. If the trustee has a familial, personal or extra-trust business relationship to the grantor or the beneficiary, the grantor or beneficiary, as appropriate, will be attributed with the stock interests held in trust. An otherwise qualified trust will be ineffective to insulate the grantor or beneficiary from attribution with the trust's assets unless all voting stock interests held by the grantor or beneficiary in the relevant broadcast licensee, cable television system or daily newspaper are subject to said trust. e. Subject to paragraph i. of this note, holders of non-voting stock shall not be attributed an interest in the issuing entity. Subject to paragraph i. of this note, holders of debt and instruments such as warrants, convertible debentures, options or other non-voting interests with rights of conversion to voting interests shall not be attributed unless and until conversion is effected. f. 1. A limited partnership interest shall be attributed to a limited partner unless that partner is not materially involved, directly or indirectly, in the management or operation of the media-related activities of the partnership and the licensee or system so certifies. An interest in a Limited Liability Company (“LLC”) or Registered Limited Liability Partnership (“RLLP”) shall be attributed to the interest holder unless that interest holder is not materially involved, directly or indirectly, in the management or operation of the media-related activities of the partnership and the licensee or system so certifies. 2. For a licensee or system that is a limited partnership to make the certification set forth in paragraph f. 1. of this note, it must verify that the partnership agreement or certificate of limited partnership, with respect to the particular limited partner exempt from attribution, establishes that the exempt limited partner has no material involvement, directly or indirectly, in the management or operation of the media activities of the partnership. For a licensee or system that is an LLC or RLLP to make the certification set forth in paragraph f. 1. of this note, it must verify that the organizational document, with respect to the particular interest holder exempt from attribution, establishes that the exempt interest holder has no material involvement, directly or indirectly, in the management or operation of the media activities of the LLC or RLLP. The criteria which would assume adequate insulation for purposes of this certification are described in the Memorandum Opinion and Order in MM Docket No. 83-46, FCC 85-252 (released June 24, 1985), as modified on reconsideration in the Memorandum Opinion and Order in MM Docket No. 83-46, FCC 86-410 (released November 28, 1986). Irrespective of the terms of the certificate of limited partnership or partnership agreement, or other organizational document in the case of an LLC or RLLP, however, no such certification shall be made if the individual or entity making the certification has actual knowledge of any material involvement of the limited partners, or other interest holders in the case of an LLC or RLLP, in the management or operation of the media-related businesses of the partnership or LLC or RLLP. 3. In the case of an LLC or RLLP, the licensee or system seeking insulation shall certify, in addition, that the relevant state statute authorizing LLCs permits an LLC member to insulate itself as required by our criteria. g. Officers and directors of a broadcast licensee, cable television system or daily newspaper are considered to have a cognizable interest in the entity with which they are so associated. If any such entity engages in businesses in addition to its primary business of broadcasting, cable television service or newspaper publication, it may request the Commission to waive attribution for any officer or director whose duties and responsibilities are wholly unrelated to its primary business. The officers and directors of a parent company of a broadcast licensee, cable television system or daily newspaper, with an attributable interest in any such subsidiary entity, shall be deemed to have a cognizable interest in the subsidiary unless the duties and responsibilities of the officer or director involved are wholly unrelated to the broadcast licensee, cable television system or daily newspaper subsidiary, and a statement properly documenting this fact is submitted to the Commission. [This statement may be included on the appropriate Ownership Report.] The officers and directors of a sister corporation of a broadcast licensee, cable television system or daily newspaper shall not be attributed with ownership of these entities by virtue of such status. h. Discrete ownership interests will be aggregated in determining whether or not an interest is cognizable under this section. An individual or entity will be deemed to have a cognizable investment if: 1. The sum of the interests held by or through “passive investors” is equal to or exceeds 20 percent; or 2. The sum of the interests other than those held by or through “passive investors” is equal to or exceeds 5 percent; or 3. The sum of the interests computed under paragraph h. 1. of this note plus the sum of the interests computed under paragraph h. 2. of this note is equal to or exceeds 20 percent. i. Notwithstanding paragraphs e. and f. of this note, the holder of an equity or debt interest or interests in a broadcast licensee, cable television system, daily newspaper, or other media outlet subject to the broadcast multiple ownership or cross-ownership rules (“interest holder”) shall have that interest attributed if: 1. The equity (including all stockholdings, whether voting or nonvoting, common or preferred) and debt interest or interests, in the aggregate, exceed 33 percent of the total asset value, defined as the aggregate of all equity plus all debt, of that media outlet; and 2. i. The interest holder also holds an interest in a broadcast licensee, cable television system, newspaper, or other media outlet operating in the same market that is subject to the broadcast multiple ownership or cross-ownership rules and is attributable under paragraphs of this note other than this paragraph (i); or ii. The interest holder supplies over fifteen percent of the total weekly broadcast programming hours of the station in which the interest is held. For purposes of applying this paragraph, the term, “market,” will be defined as it is defined under the specific multiple or cross-ownership rule that is being applied, except that for television stations, the term “market,” will be defined by reference to the definition contained in the local television multiple ownership rule contained in paragraph
(b)of this section. j. “Time brokerage” (also known as “local marketing”) is the sale by a licensee of discrete blocks of time to a “broker” that supplies the programming to fill that time and sells the commercial spot announcements in it. 1. Where two radio stations are both located in the same market, as defined for purposes of the local radio ownership rule contained in paragraph
(a)of this section, and a party (including all parties under common control) with a cognizable interest in one such station brokers more than 15 percent of the broadcast time per week of the other such station, that party shall be treated as if it has an interest in the brokered station subject to the limitations set forth in paragraphs (a), (c), and
(d)of this section. This limitation shall apply regardless of the source of the brokered programming supplied by the party to the brokered station. 2. Where two television stations are both located in the same market, as defined in the local television ownership rule contained in paragraph
(b)of this section, and a party (including all parties under common control) with a cognizable interest in one such station brokers more than 15 percent of the broadcast time per week of the other such station, that party shall be treated as if it has an interest in the brokered station subject to the limitations set forth in paragraphs (b), (c),
(d)and
(e)of this section. This limitation shall apply regardless of the source of the brokered programming supplied by the party to the brokered station. 3. Every time brokerage agreement of the type described in this Note shall be undertaken only pursuant to a signed written agreement that shall contain a certification by the licensee or permittee of the brokered station verifying that it maintains ultimate control over the station's facilities including, specifically, control over station finances, personnel and programming, and by the brokering station that the agreement complies with the provisions of paragraphs (b), (c), and
(d)of this section if the brokering station is a television station or with paragraphs (a), (c), and
(d)of this section if the brokering station is a radio station. k. “Joint Sales Agreement” is an agreement with a licensee of a “brokered station” that authorizes a “broker” to sell advertising time for the “brokered station.” 1. Where two radio stations are both located in the same market, as defined for purposes of the local radio ownership rule contained in paragraph
(a)of this section, and a party (including all parties under common control) with a cognizable interest in one such station sells more than 15 percent of the advertising time per week of the other such station, that party shall be treated as if it has an interest in the brokered station subject to the limitations set forth in paragraphs (a), (c), and
(d)of this section. 2. Every joint sales agreement of the type described in this Note shall be undertaken only pursuant to a signed written agreement that shall contain a certification by the licensee or permittee of the brokered station verifying that it maintains ultimate control over the station's facilities, including, specifically, control over station finances, personnel and programming, and by the brokering station that the agreement complies with the limitations set forth in paragraphs (a), (c), and
(d)of this section. Note 3 to § 73.3555: In cases where record and beneficial ownership of voting stock is not identical ( *e.g.* , bank nominees holding stock as record owners for the benefit of mutual funds, brokerage houses holding stock in street names for the benefit of customers, investment advisors holding stock in their own names for the benefit of clients, and insurance companies holding stock), the party having the right to determine how the stock will be voted will be considered to own it for purposes of these rules. Note 4 to § 73.3555: Paragraphs
(a)through
(d)of this section will not be applied so as to require divestiture, by any licensee, of existing facilities, and will not apply to applications for assignment of license or transfer of control filed in accordance with § 73.3540(f) or § 73.3541(b), or to applications for assignment of license or transfer of control to heirs or legatees by will or intestacy, if no new or increased concentration of ownership would be created among commonly owned, operated or controlled media properties. Paragraphs
(a)through
(d)of this section will apply to all applications for new stations, to all other applications for assignment or transfer, to all applications for major changes to existing stations, and to applications for minor changes to existing stations that implement an approved change in an FM radio station's community of license or create new or increased concentration of ownership among commonly owned, operated or controlled media properties. Commonly owned, operated or controlled media properties that do not comply with paragraphs
(a)through
(d)of this section may not be assigned or transferred to a single person, group or entity, except as provided in this Note or in the Report and Order in Docket No. 02-277, released July 2, 2003 (FCC 02-127). Note 5 to § 73.3555: Paragraphs
(b)through
(e)of this section will not be applied to cases involving television stations that are “satellite” operations. Such cases will be considered in accordance with the analysis set forth in the Report and Order in MM Docket No. 87-8, FCC 91-182 (released July 8, 1991), in order to determine whether common ownership, operation, or control of the stations in question would be in the public interest. An authorized and operating “satellite” television station, the Grade B contour of which overlaps that of a commonly owned, operated, or controlled “non-satellite” parent television broadcast station, or the Grade A contour of which completely encompasses the community of publication of a commonly owned, operated, or controlled daily newspaper, or the community of license of a commonly owned, operated, or controlled AM or FM broadcast station, or the community of license of which is completely encompassed by the 2 mV/m contour of such AM broadcast station or the 1 mV/m contour of such FM broadcast station, may subsequently become a “non-satellite” station under the circumstances described in the aforementioned Report and Order in MM Docket No. 87-8. However, such commonly owned, operated, or controlled “non-satellite” television stations and AM or FM stations with the aforementioned community encompassment, may not be transferred or assigned to a single person, group, or entity except as provided in Note 4 of this section. Nor shall any application for assignment or transfer concerning such “non-satellite” stations be granted if the assignment or transfer would be to the same person, group or entity to which the commonly owned, operated, or controlled newspaper is proposed to be transferred, except as provided in Note 4 of this section. Note 6 to § 73.3555: For purposes of this section a daily newspaper is one which is published four or more days per week, which is in the dominant language in the market, and which is circulated generally in the community of publication. A college newspaper is not considered as being circulated generally. Note 7 to § 73.3555: The Commission will entertain applications to waive the restrictions in paragraph
(b)and
(c)of this section (the local television ownership rule and the radio/television cross-ownership rule) on a case-by-case basis. In each case, we will require a showing that the in-market buyer is the only entity ready, willing, and able to operate the station, that sale to an out-of-market applicant would result in an artificially depressed price, and that the waiver applicant does not already directly or indirectly own, operate, or control interest in two television stations within the relevant DMA. One way to satisfy these criteria would be to provide an affidavit from an independent broker affirming that active and serious efforts have been made to sell the permit, and that no reasonable offer from an entity outside the market has been received. We will entertain waiver requests as follows: 1. If one of the broadcast stations involved is a “failed” station that has not been in operation due to financial distress for at least four consecutive months immediately prior to the application, or is a debtor in an involuntary bankruptcy or insolvency proceeding at the time of the application. 2. For paragraph
(b)of this section only, if one of the television stations involved is a “failing” station that has an all-day audience share of no more than four per cent; the station has had negative cash flow for three consecutive years immediately prior to the application; and consolidation of the two stations would result in tangible and verifiable public interest benefits that outweigh any harm to competition and diversity. 3. For paragraph
(b)of this section only, if the combination will result in the construction of an unbuilt station. The permittee of the unbuilt station must demonstrate that it has made reasonable efforts to construct but has been unable to do so. Note 8 to § 73.3555: Paragraph (a)(1) of this section will not apply to an application for an AM station license in the 535-1605 kHz band where grant of such application will result in the overlap of 5 mV/m groundwave contours of the proposed station and that of another AM station in the 535-1605 kHz band that is commonly owned, operated or controlled if the applicant shows that a significant reduction in interference to adjacent or co-channel stations would accompany such common ownership. Such AM overlap cases will be considered on a case-by-case basis to determine whether common ownership, operation or control of the stations in question would be in the public interest. Applicants in such cases must submit a contingent application of the major or minor facilities change needed to achieve the interference reduction along with the application which seeks to create the 5 mV/m overlap situation. Note 9 to § 73.3555: Paragraph (a)(1) of this section will not apply to an application for an AM station license in the 1605-1705 kHz band where grant of such application will result in the overlap of the 5 mV/m groundwave contours of the proposed station and that of another AM station in the 535-1605 kHz band that is commonly owned, operated or controlled. Paragraphs (d)(1)(i) and (d)(1)(ii) of this section will not apply to an application for an AM station license in the 1605-1705 kHz band by an entity that owns, operates, controls or has a cognizable interest in AM radio stations in the 535-1605 kHz band. Note 10 to § 73.3555: Authority for joint ownership granted pursuant to Note 9 will expire at 3 a.m. local time on the fifth anniversary for the date of issuance of a construction permit for an AM radio station in the 1605-1705 kHz band. [FR Doc. E8-3133 Filed 2-20-08; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 08-273; MB Docket No. 07-164; RM-11386] Radio Broadcasting Services; Peach Springs, AZ AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division, at the request of Smoke and Mirrors, LLC, allots Channel 268C3 at Peach Springs, Arizona, in lieu of vacant Channel 285C3. Channel 268C3 can be allotted at Peach Springs, Arizona, in compliance with the Commission's minimum distance separation requirements with a site restriction of 15.3 km (9.5 miles) west of Peach Springs at the following reference coordinates: 35-29-35 North Latitude and 113-35-17 West Longitude. DATES: Effective March 17, 2008. ADDRESSES: Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Deborah Dupont, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order,* MB Docket No. 07-164, adopted January 30, 2008, and released February 1, 2008. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
(800)378-3160, or via the company's Web site, *http://www.bcpiweb.com.* The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR part 73 Radio, Radio broadcasting. As stated in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Arizona, is amended by removing Channel 285C3 and adding Channel 268C3 at Peach Springs. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E8-3262 Filed 2-20-08; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 08-272; MB Docket No. 05-150; RM-11214] Radio Broadcasting Services; Norfolk and Windsor, VA AGENCY: Federal Communications Commission. ACTION: Final rule, grant. SUMMARY: This document grants a Petition for Reconsideration filed by CC Licenses, LLC, directed to the *Report and Order* in this proceeding. In doing so, it reallots Channel 299A from Windsor to Norfolk, Virginia, and modifies the Station WJCD license to specify Norfolk as the community of license. To replace the loss of a sole local service at Windsor, it also reallots Channel 287B from Norfolk to Windsor and modifies the Station WKUS license to specify Windsor as the community of license. The reference coordinates for the Channel 299A allotment at Norfolk, Virginia, are 36-55-26 and 76-15-05. The reference coordinates for the Channel 287B allotment at Windsor, Virginia, are 36-48-47 and 76-35-57. With this action, the proceeding is terminated. FOR FURTHER INFORMATION CONTACT: Robert Hayne, Media Bureau
(202)418-2177. SUPPLEMENTARY INFORMATION: This is a synopsis of the *Memorandum Opinion and Order* in MB Docket No. 05-150, adopted January 31, 2008, and released February 1, 2008. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *www.BCPIWEB.com.* On March 14, 2008, the Media Bureau's Consolidated Database System will reflect as the reserved assignment for Station WJCD, Channel 299A at Norfolk, Virginia in lieu of Windsor, Virginia, and the reserved assignment for Station WKUS, Channel 287B at Windsor, Virginia in lieu of Norfolk, Virginia. The Commission will not send a copy of this *Memorandum Opinion and Order* pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of particular applicability. List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E8-3263 Filed 2-20-08; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket Nos. 070213032-7032-01 and 070213033-7033-01] RIN 0648-XF29 Fisheries of the Exclusive Economic Zone Off Alaska; Sablefish Managed Under the Individual Fishing Quota Program AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; opening. SUMMARY: NMFS is opening directed fishing for sablefish with fixed gear managed under the Individual Fishing Quota
(IFQ)Program. The season will open 1200 hrs, Alaska local time (A.l.t.), March 8, 2008, and will close 1200 hrs, A.l.t., November 15, 2008. This period is the same as the 2008 IFQ and Community Development Quota season for Pacific halibut adopted by the International Pacific Halibut Commission (IPHC). The IFQ halibut season is specified by a separate publication in the **Federal Register** of annual management measures. DATES: Effective 1200 hrs, A.l.t., March 8, 2008, until 1200 hrs, A.l.t., November 15, 2008. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: Beginning in 1995, fishing for Pacific halibut ( *Hippoglossus stenolepis* ) and sablefish ( *Anoplopoma fimbria* ) with fixed gear in the IFQ regulatory areas defined in § 679.2 has been managed under the IFQ Program. The IFQ Program is a regulatory regime designed to promote the conservation and management of these fisheries and to further the objectives of the Magnuson-Stevens Fishery Conservation and Management Act and the Northern Pacific Halibut Act. Persons holding quota share receive an annual allocation of IFQ. Persons receiving an annual allocation of IFQ are authorized to harvest IFQ species within specified limitations. Further information on the implementation of the IFQ Program, and the rationale supporting it, are contained in the preamble to the final rule implementing the IFQ Program published in the **Federal Register** , November 9, 1993 (58 FR 59375) and subsequent amendments. This announcement is consistent with § 679.23(g)(1), which requires that the directed fishing season for sablefish managed under the IFQ Program be specified by the Administrator, Alaska Region, and announced by publication in the **Federal Register** . This method of season announcement was selected to facilitate coordination between the sablefish season, chosen by the Administrator, Alaska Region, and the halibut season, chosen by the IPHC. The directed fishing season for sablefish with fixed gear managed under the IFQ Program will open 1200 hrs, A.l.t., March 8, 2008, and will close 1200 hrs, A.l.t., November 15, 2008. This period runs concurrently with the IFQ season for Pacific halibut announced by the IPHC. The IFQ halibut season will be specified by a separate publication in the **Federal Register** of annual management measures pursuant to 50 CFR 300.62. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of the sablefish fishery thereby increasing bycatch and regulatory discards between the sablefish fishery and the halibut fishery, and preventing the accomplishment of the management objective for simultaneous opening of these two fisheries. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 13, 2008. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.23 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: February 14, 2008. Emily H. Menashes Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08-787 Filed 2-15-08; 2:38 pm]
Connectionstraces to 29
Traces to 29 documents
22 references not yet in our index
  • 21 CFR 520
  • 5 USC 801-808
  • 21 CFR 20
  • 32 CFR 903
  • Pub. L. 104-4
  • Pub. L. 96-354
  • Pub. L. 95-511
  • 10 USC 9331
  • 40 CFR 52
  • 47 CFR 0
  • 47 CFR 0.191(g)
  • 47 CFR 0.392
  • 47 CFR 4.11
  • 48 Stat. 1068
  • 47 CFR 52
  • Pub. L. 104-13
  • Pub. L. 107-198
  • 47 CFR 52.26(a)
  • 47 CFR 9.3
  • 47 CFR 73
  • 50 CFR 679
  • 50 CFR 300.62
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cites case law
Rules and Regulations
Final rule
C.F.R.§ 520.48
C.F.R.§ 25.33
U.S.C.§ 804
U.S.C.§ 360b
C.F.R.§ 520.1195
C.F.R.§ 514.11
Fed. Reg.Notices
U.S.C.§ 601
Fed. Reg.Proposed Rules
Cite21 CFR 520
Cite5 USC 801-808
Cite21 CFR 20
Cites 51 · showing 12Cited by 0 across 0 sources
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