Proposed Rule2022-20711
Review of the Commission's Assessment and Collection of Regulatory Fees
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Published
September 26, 2022
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) seeks further comment on the Commission's methodology for allocating indirect full-time equivalents (FTEs), previously raised in the Commission's Fiscal Year (FY) 2022 Notice of Proposed Rulemaking (FY 2022 NPRM), FCC 22-39, MD Docket Nos. 21-190, 22-223, adopted on June 1, 2022 and released on June 2, 2022.
Full Text
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<title>Federal Register, Volume 87 Issue 185 (Monday, September 26, 2022)</title>
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[Federal Register Volume 87, Number 185 (Monday, September 26, 2022)]
[Proposed Rules]
[Pages 58297-58300]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20711]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[MD Docket 22-301; FCC 22-68; FRS ID 105135]
Review of the Commission's Assessment and Collection of
Regulatory Fees
AGENCY: Federal Communications Commission.
ACTION: Request for comments.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) seeks further comment on the Commission's methodology for
allocating indirect full-time equivalents (FTEs), previously raised in
the Commission's Fiscal Year (FY) 2022 Notice of Proposed Rulemaking
(FY 2022 NPRM), FCC 22-39, MD Docket Nos. 21-190, 22-223, adopted on
June 1, 2022 and released on June 2, 2022.
DATES: Comments are due on or before October 26, 2022 and reply
comments are due on or before November 25, 2022.
ADDRESSES: Interested parties may file comments and reply comments
identified by MD Docket No. 22-301, by any of the following methods
below.
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing ECFS: <a href="https://www.fcc.gov/ecfs">https://www.fcc.gov/ecfs</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
<bullet> Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
For detailed instructions for submitting comments, see the
SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Roland Helvajian, Office of Managing
Director at (202) 418-0444.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Inquiry (NOI), FCC 22-68, MD Docket No. 22-301, adopted on September
1, 2022 and released on September 2, 2022. The full text of this
document is available for inspection and copying during normal business
hours in the FCC Reference Center, 45 L Street NE, Washington, DC
20554, and may also be purchased from the Commission's copy contractor,
BCPI, Inc., 45 L Street NE, Washington, DC 20554. Customers may contact
BCPI, Inc. via their website, <a href="https://www.bcpi.com">https://www.bcpi.com</a>, or call 1-800-378-
3160. This document is available in alternative formats (computer
diskette, large print, audio record, and braille). Persons with
disabilities who need documents in these formats may contact the FCC by
email: <a href="/cdn-cgi/l/email-protection#8bcdc8c8bebbbfcbede8e8a5ece4fd"><span class="__cf_email__" data-cfemail="5f191c1c6a6f6b1f393c3c71383029">[email protected]</span></a> or phone: 202-418-0530 or TTY: 202-418-0432.
Effective March 19, 2020, and until further notice, the Commission no
longer accepts any hand or messenger delivered filings. This is a
temporary measure taken to help protect the health and safety of
individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). <a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>. During
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the time the Commission's building is closed to the general public and
until further notice, if more than one docket or rulemaking number
appears in the caption of a proceeding, paper filers need not submit
two additional copies for each additional docket or rulemaking number;
an original and one copy are sufficient.
Ex Parte Rules. This proceeding shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda or other filings in the
proceeding, the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule Sec. 1.1206(b). In proceedings governed
by rule Sec. 1.49(f) or for which the Commission has made available a
method of electronic filing, written ex parte presentations and
memoranda summarizing oral ex parte presentations, and all attachments
thereto, must be filed through the electronic comment filing system
available for that proceeding, and must be filed in their native format
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this
proceeding should familiarize themselves with the Commission's ex parte
rules.
I. Synopsis
1. In this document, the Commission seeks further comment on its
methodology for allocating indirect FTEs, as raised in the FY 2022 NPRM
(87 FR 38588, June 28, 2022). While we found above that the record
supported a limited correction to the method used for calculating the
fees associated with certain indirect FTEs in the Universal Service
Fund context, we seek to more broadly explore these issues outside of
the short timeframe necessitated by the annual regulatory fee
proceeding. The responses we receive will help us determine if there
are lines of inquiry worth exploring in order to further revise our
methodology. Finally, we hope that the comments and replies will allow
interested parties to gain a better understanding of the regulatory fee
process and the issues of importance to the various groups affected by
our regulatory fee policies.
2. Historically, the Commission assesses the allocation of FTEs by
first determining the number of non-auctions direct FTEs in each ``core
bureau'' (i.e., the Wireless Telecommunications Bureau, the Media
Bureau, the Wireline Competition Bureau, and the International Bureau)
and then attributing all other non-auctions Commission FTEs as
indirect. The direct FTEs within each core bureau are then attributed
to regulatory fee categories based on the nature of the FTE work. We
expect that the work of the non-auctions direct FTEs in the four core
bureaus will remain focused on the industry segment regulated by each
of those bureaus. For this reason, the Commission starts with direct
FTE counts in the core bureaus and then potentially adjusts fees to
reflect other factors related to the payor's benefits.
3. We initially seek comment on whether we should expand the
definition of ``core bureau'' to include other bureaus and offices
within the Commission. Commenters should discuss the additional offices
or bureaus we should consider ``core'' for regulatory fee purposes and
why. We encourage commenters to review both the function and
delegations of each office when considering this question. Is the work
of the office or bureau focused on a specific industry segment
regulated by that office or bureau? If so, what is the industry
segment? Is the office or bureau responsible for regulating other work
not related to a specific industry segment? Commenters should address
whether expanding the Commission's definition of ``core bureau'' is
feasible, administrable, sustainable, and consistent with section 9 of
the Communications Act of 1934 (Act).
4. Unlike the work of direct FTEs, the work of FTEs designated as
indirect benefits the Commission and the industry as a whole and is not
specifically focused on the regulatees and licensees of a core bureau.
Thus, indirect FTEs generally work on a wide variety of issues which
may include services that are not specifically correlated with one core
bureau, let alone one specific category of regulatees. Further, much of
the work that could be assigned to a single category of regulatees is
likely to be interspersed with the work that indirect FTEs perform on
behalf of many entities that do not pay regulatory fees, e.g.,
governmental entities, non-profit organizations, and regulatees that
have an exemption. In addition to the fact that indirect FTEs work on
matters that are not specific to any regulatory fee category, many
Commission attorneys, engineers, analysts, and other staff work on a
variety of issues even during a single fiscal year. Due to the variety
of issues handled by many indirect FTEs, analyzing the work of such
indirect FTEs for regulatory fee purposes and basing regulatory fees on
specific assignments during any snapshot or incremental period of time,
such as a year or two, would result in significant unplanned shifts in
regulatory fees as assignments change.
5. In calculating regulatory fees, the Commission allocates
indirect FTEs proportionally based on the allocation percentage of
direct FTEs of each core bureau. In essence, if a core bureau's
contribution to the regulatory fee burden is calculated to be 40%, then
it is also responsible for 40% of the indirect costs. Commenters argue
that this results in regulatory fee payors paying being unfairly
burdened by costs of FTEs that do not directly provide oversight and
regulation to such fee payors. We seek comment on whether the
Commission should change its current methodology for calculating
regulatory fees to minimize burdens on certain regulatory fee payors,
while still collecting the entire appropriation, as required by section
9 of the Act. To the extent that commenters support amending the
methodology, the proposals made must allow for the full collection of
our annual appropriation. In other words, a proposed system that only
provides that regulatees pay fees for the direct time of staff in the
core bureaus would be per se contrary to our statutory mandate.
Comments filed in the Notice of Inquiry docket proposing such
amendments should provide full scale examples of the potential changes
to the current methodology and explain how those changes would be
consistent with section 9 of the Act.
6. As discussed above, we find that broadcasters should not be
required to pay for a portion of the 38 indirect FTEs working on
Universal Service Fund issues that are in the Wireline Competition
Bureau but are designated as indirect FTEs. Although we affirmed
[[Page 58299]]
the Commission's previous finding in 2017 that these 38 FTEs were
properly allocated as indirect FTEs for regulatory fee purposes, are
there indirect FTEs that commenters believe should be considered direct
FTEs for regulatory fee purposes? For example, in FY 2019, the
Commission reassigned staff from other bureaus and offices to the
Office of Economics and Analytics, effective December 11, 2018. This
resulted in the reassignment of 95 FTEs (of which 64 were not auctions-
funded) as indirect FTEs. The Commission also reassigned Equal
Employment Opportunity enforcement staff from the Media Bureau to the
Enforcement Bureau, effective March 15, 2019, resulting in a reduction
of seven direct FTEs in the Media Bureau. These reassignments resulted
in a reduction in direct FTEs in the Wireline Competition Bureau (from
123 FTEs to 100.8 FTEs), Wireless Telecommunications Bureau (from 89
FTEs to 80.5 FTEs), and Media Bureau (from 131 FTEs to 115.1 FTEs). In
2013, the Commission allocated all International Bureau FTEs except for
28 as indirect. Should we reconsider these assignments and now consider
these FTEs direct FTEs in a core bureau instead of indirect? Commenters
should discuss whether this allocation is still reasonable. Should we
re-evaluate the number of direct and indirect FTEs in the International
Bureau? For each category of FTE a commenter proposes to be reassigned,
the commenter should explain how such reassignment is appropriate under
both the Communications Act and also the body of precedent relating to
federal agency fee setting. If these reassignments are still
appropriate, should we consider other corrections to our fee
calculation methodology, as we did in the Universal Service Fund
context?
7. As indicated in the FY 2022 NPRM, early in each fiscal year, the
Commission receives FTE data from its Human Resources Office, and
identifies FTE data at the core bureau level (i.e., direct FTEs), which
are then used to determine the FTE allocations for the four core
bureaus. These FTE data are then filtered down to the various fee
categories within each core bureau based on the fee category
percentages for each bureau. We encourage commenters in looking at the
question to consider how indirect FTE time devoted to work on one or
more regulated services could be considered direct FTE time. How should
time be calculated for purposes of regulatory fees if FTE time is
devoted to issues involving different regulated services at the same
time (e.g., voice services)?
8. Commenters should also consider that indirect FTEs may be
difficult to disaggregate in a manner that is easy to administer and
transparent with respect to how it applies to certain regulated
services. For example, a complex enforcement investigation involving a
space station operator could result in many Enforcement Bureau indirect
FTEs working on space station issues on a temporary basis instead of on
other issues. Would allocating those indirect FTEs as direct FTEs for
the International Bureau unfairly increase the regulatory fees for all
space station licensees or all International Bureau regulatees for that
fiscal year? Is there a way to disaggregate the time indirect FTEs may
spend on issues associated with core bureaus in a way that would not
result in significant regulatory fee increases from year to year?
Taking into consideration practical limits on what the Commission may
accomplish using existing systems and also limited staff time, how
frequently should FTE time be analyzed for reassessments of the work
done by indirect FTEs?
9. Other indirect FTEs may not be able to disaggregate the issues
that they handle or may work on matters that do not correlate with any
particular regulated service. Commenters who advocate analyzing the
indirect FTE time to determine if their time can be allocated to
specific regulated services should explain how to address indirect FTE
time that cannot be specifically disaggregated into work performed for
certain regulated services. SIA observes that the current indirect FTE
allocation method is appropriate for certain non-core bureaus and
offices, such as the Office of the General Counsel. Are there other
bureaus and offices that commenters consider to be more appropriately
designated as indirect? State Broadcasters Associations suggest that
the Commission adopt a third classification of intersectional FTEs to
avoid unfair burdens on broadcasters. SIA suggests an alternative
allocation mechanism for indirect FTEs in cases where the work is not
always proportional. Commenters should also specifically address these
alternatives to the Commission's current methodology. Commenters should
explain how we could implement these alternative suggestions,
consistent with section 9 of the Act. Moreover, commenters should
consider if such changes might result in a more complicated fee system
that nevertheless results in the setting similar fee amounts but
requires more time and Commission resources to manage.
10. One commenter, the State Broadcasters Associations, suggest
that the Commission adopt a third classification of intersectional
FTEs. SIA suggests an alternative allocation mechanism for indirect
FTEs in cases where the work is not always proportional. Commenters
should also specifically address these alternatives to the Commission's
current regulatory fee methodology. Commenters should explain how we
could implement these alternative suggestions, consistent with section
9 of the Act. Moreover, commenters should consider if such changes
might result in a more complicated fee system that nevertheless results
in the setting similar fee amounts but requires more time and
Commission resources to manage.
11. Commenters advocating allocating indirect FTEs as direct for
regulatory fee purposes should explain how we should assess FTE time in
order to make the reallocation. Commenters are encouraged to consider
practical aspects of FTE time. For example, how should FTEs devoted to
administrative matters, such as releasing and posting Commission and
Bureau level items, be categorized? Should such FTE time be considered
indirect, or should each released item be analyzed to determine to
which core bureau it is associated? How should FTE time devoted to
matters encompassing voice issues (i.e., wireless and wireline,
including VoIP) be characterized? Is there a fair way to allocate such
FTE time among or between bureaus or should that FTE time be considered
indirect? We note that our regulatory fee methodology must be
consistent with the requirements of section 9 of the Act that ``fees
reflect the full-time equivalent number of employees within the bureaus
and offices of the Commission.'' Commenters should recognize that
cherry picking certain groups of FTEs from indirect bureaus and offices
and reassigning them as direct FTEs for regulatory fee purposes could
result in a less equitable methodology overall and achieve a result
inconsistent with their intention of reducing their regulatory fees.
Finally, commenters should recognize that any new methodology they
propose must be consistent with section 9 of the Act, fair,
administrable, and sustainable.
II. Ordering Clause
12. Accordingly, it is ordered that, pursuant to the authority
found in sections 4(i) and (j), 9, 9A, and 303(r) of the Communications
Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, 159A, and
303(r), the Notice of Inquiry is hereby adopted.
[[Page 58300]]
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
[FR Doc. 2022-20711 Filed 9-23-22; 8:45 am]
BILLING CODE 6712-01-P
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