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Proposed Rule2023-28763

Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment

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Published

January 11, 2024

Issuing agencies

Federal Communications Commission

Abstract

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

Full Text

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<title>Federal Register, Volume 89 Issue 8 (Thursday, January 11, 2024)</title>
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[Federal Register Volume 89, Number 8 (Thursday, January 11, 2024)]
[Proposed Rules]
[Pages 1859-1874]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28763]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

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

Accelerating Wireline Broadband Deployment by Removing Barriers
to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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

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

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

[[Page 1860]]

longer accepts any hand or messenger delivered filings.
<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.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act proposed information collection
requirements contained herein should be submitted to the Federal
Communications Commission via email to <a href="/cdn-cgi/l/email-protection#db8b899a9bbdb8b8f5bcb4ad">[email&#160;protected]</a> and to Nicole
Ongele, FCC, via email to <a href="/cdn-cgi/l/email-protection#7d33141e1211185332131a1811183d1b1e1e531a120b">[email&#160;protected]</a>.

FOR FURTHER INFORMATION CONTACT: For further information, please
contact either Michele Berlove, Assistant Division Chief, Competition
Policy Division, Wireline Competition Bureau, at
<a href="/cdn-cgi/l/email-protection#bed3d7ddd6dbd2db90dcdbccd2d1c8dbfed8dddd90d9d1c8">[email&#160;protected]</a> or at (202) 418-1477, or Michael Ray, Attorney
Advisor, Competition Policy Division, Wireline Competition Bureau, at
<a href="/cdn-cgi/l/email-protection#abc6c2c8c3cacec785d9cad2ebcdc8c885ccc4dd">[email&#160;protected]</a> or at (202) 418-0357. For additional information
concerning the Paperwork Reduction Act proposed information collection
requirements contained in this document, send an email to <a href="/cdn-cgi/l/email-protection#1a4a485b5a7c7979347d756c">[email&#160;protected]</a>
or contact Nicole Ongele at (202) 418-2991.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Further Notice of Proposed Rulemaking (FNPRM) in WC Docket No. 17-84,
FCC 23-109, adopted on December 13, 2023, and released on December 15,
2023. The full text of this document is available for public inspection
at the following internet address: <a href="https://www.fcc.gov/document/fcc-seeks-make-pole-attachment-process-faster-more-transparent-and-more-cost-effective">https://www.fcc.gov/document/fcc-seeks-make-pole-attachment-process-faster-more-transparent-and-more-cost-effective</a>. The Providing Accountability Through Transparency Act,
Public Law 118-9, requires each agency, in providing notice of a
rulemaking, to post online a brief plain-language summary of the
proposed rule. The required summary of this FNPRM is available at
<a href="https://www.fcc.gov/proposed-rulemakings">https://www.fcc.gov/proposed-rulemakings</a>. To request materials in
accessible formats for people with disabilities (e.g., Braille, large
print, electronic files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#563035356366621630353578313920">[email&#160;protected]</a>
or call the Consumer & Governmental Affairs Bureau at (202) 418-0530.

Initial Paperwork Reduction Act of 1995 Analysis

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

Comment Period and Filing Procedures

Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS) or by paper. Commenters should refer to WC
Docket No. 21-341 when filing in response to this FNPRM.
<bullet> Electronic Filers: Comments may be filed electronically by
accessing ECFS at <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. Paper filings can be sent
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
<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.
U.S. Postal Service first-class, Express, and Priority Mail must be
addressed to 45 L Street NE, Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#34525757010400745257571a535b42">[email&#160;protected]</a> or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

Synopsis

I. Introduction

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

[[Page 1861]]

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

II. Background

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

[[Page 1862]]

III. Further Notice of Proposed Rulemaking

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

[[Page 1863]]

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

IV. Initial Regulatory Flexibility Analysis

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

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

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

B. Legal Basis

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

[[Page 1864]]

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

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

18. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. (Pursuant to 5 U.S.C. 601(3), the statutory definition of a small
business applies ``unless an agency, after consultation with the Office
of Advocacy of the Small Business Administration and after opportunity
for public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.'') A ``small business
concern'' is one which: (1) is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.
19. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe, at the
outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the Small Business
Administration's (SBA) Office of Advocacy, in general a small business
is an independent business having fewer than 500 employees. These types
of small businesses represent 99.9% of all businesses in the United
States, which translates to 33.2 million businesses.
20. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. (The IRS benchmark is similar to the
population of less than 50,000 benchmark in 5 U.S.C. 601(5) that is
used to define a small governmental jurisdiction. Therefore, the IRS
benchmark has been used to estimate the number of small organizations
in this small entity description. We note that the IRS data does not
provide information on whether a small exempt organization is
independently owned and operated or dominant in its field.) Nationwide,
for tax year 2020, there were approximately 447,689 small exempt
organizations in the U.S. reporting revenues of $50,000 or less
according to the registration and tax data for exempt organizations
available from the IRS. (The IRS Exempt Organization Business Master
File (E.O. BMF) Extract provides information on all registered tax-
exempt/non-profit organizations. The data utilized for purposes of this
description was extracted from the IRS E.O. BMF data for businesses for
the tax year 2020 with revenue less than or equal to $50,000 for Region
1--Northeast Area (58,577), Region 2--Mid-Atlantic and Great Lakes
Areas (175,272), and Region 3--Gulf Coast and Pacific Coast Areas
(213,840) that includes the continental U.S., Alaska, and Hawaii. This
data does not include information for Puerto Rico.)
21. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2017 Census of Governments indicate there were
90,075 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. (The
Census of Governments survey is conducted every five (5) years
compiling data for years ending with ``2'' and ``7''.) (Local
governmental jurisdictions are made up of general purpose governments
(county, municipal and town or township) and special purpose
governments (special districts and independent school districts).) Of
this number, there were 36,931 general purpose governments (county,
(there were 2,105 county governments with populations less than 50,000.
This category does not include subcounty (municipal and township)
governments) municipal, and town or township (there were 18,729
municipal and 16,097 town and township governments with populations
less than 50,000)) with populations of less than 50,000 and 12,040
special purpose governments--independent school districts (there were
12,040 independent school districts with enrollment populations less
than 50,000) with enrollment populations of less than 50,000. (While
the special purpose governments category also includes local special
district governments, the 2017 Census of Governments data does not
provide data aggregated based on population size for the special
purpose governments category. Therefore, only data from independent
school districts is included in the special purpose governments
category.) Accordingly, based on the 2017 U.S. Census of Governments
data, we estimate that at least 48,971 entities fall into the category
of ``small governmental jurisdictions.'' (This total is derived from
the sum of the number of general purpose governments (county, municipal
and town or township) with populations of less than 50,000 (36,931) and
the number of special purpose governments--independent school districts
with enrollment populations of less than 50,000 (12,040), from the 2017
Census of Governments--Organizations tbls. 5, 6 & 10.)
1. Internet Access Service Providers
22. Wired Broadband Internet Access Service Providers (Wired ISPs).
(Formerly included in the scope of the Internet Service Providers
(Broadband), Wired Telecommunications Carriers and All Other
Telecommunications small entity industry descriptions.) Providers of
wired broadband internet access service include various types of
providers except dial-up internet access providers. Wireline service
that terminates at an end user location or mobile device and enables
the end user to receive information from and/or send information to the
internet at information transfer rates exceeding 200 kilobits per
second (kbps) in at least one direction is classified as a broadband
connection under the Commission's rules. Wired broadband internet
services fall in the Wired Telecommunications Carriers industry. The
SBA small business size standard for this industry classifies firms
having 1,500 or fewer employees as small. U.S. Census Bureau data for
2017 show that there were 3,054 firms that operated in this industry
for the entire year. Of this number, 2,964 firms operated with fewer
than 250 employees. (The available U.S. Census Bureau data does not
provide a more

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

[[Page 1866]]

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

[[Page 1867]]

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

[[Page 1868]]

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

[[Page 1869]]

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

[[Page 1870]]

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

[[Page 1871]]

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

[[Page 1872]]

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

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

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

[[Page 1873]]

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

74. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.''
75. The FNPRM seeks comment on whether the Commission should revise
its rules to further facilitate the approval process for pole
attachment applications and make-ready to enable quicker broadband
deployment, including a tentative conclusion that utilities should have
an additional 90 days for make-ready for requests exceeding 3,000 poles
or 5 percent of the utility's poles in a state. The Commission's
objective in requesting this information is to determine whether it can
and should establish clear standards for when and how attachers and
utilities must share the costs of a pole replacement precipitated by a
new attachment request. Among the alternatives considered in the FNPRM
is whether the Commission should allow additional time for the existing
larger order timelines where our current rules require that utilities
negotiate timing in good faith. We seek comment on whether requiring
that the utility notify an attacher 15 days after receiving a complete
application that it cannot conduct the survey within the required 45-
day period would allow the attacher to elect self-help for the survey
sooner. In the alternative, we inquire whether such expansion of time
is reasonable for utilities if numerous permits are submitted around
the same time or contractor workload is heavy. We also consider whether
attachers are choosing to find their own contractors for one-touch
make-ready and for self-help when utilities fail to meet the
Commission's deadlines. Similarly, we request information on whether or
not utilities designate an available contractor if it properly
exercises its discretion to disqualify one chosen by an attacher. We
also seek comment on how the Commission can help resolve situations
where labor shortages may hinder utilities from meeting deadlines to
respond to attachers. The Commission also seeks comment on and will
consider the relative costs and benefits of any such revisions to its
rules. Information submitted in response to these requests for comment
will enable the Commission to evaluate the impact that revising its
pole attachment rules would have on smaller entities.

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

76. None.

V. Procedural Matters

77. Initial Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act, the Commission has prepared an Initial
Regulatory Flexibility Analysis (IRFA) of the possible significant
economic impact on small entities of the policies and rules addressed
in this FNPRM. Written public comments are requested on the IRFA.
Comments must be filed by the deadlines for comments on the FNPRM
indicated on the first page of this document and must have a separate
and distinct heading designating them as responses to the IRFA. The
Commission's Consumer and Governmental Affairs Bureau, Reference
Information Center, will send a copy of this FNPRM, including the IRFA,
to the Chief Counsel for Advocacy of the SBA.
78. Paperwork Reduction Act. The FNPRM contains proposed new
information collection requirements. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the general
public and OMB to comment on the information collection requirements
contained in this document, as required by the Paperwork Reduction Act
of 1995, Public Law 104-13. In addition, pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), we seek specific comment on how we might further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
79. Ex Parte Presentations--Permit-But-Disclose. The proceeding
this FNPRM initiates shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules. Persons
making ex parte presentations must file a copy of any written
presentation or a memorandum summarizing any oral presentation within
two business days after the presentation (unless a different deadline
applicable to the Sunshine period applies). Persons making oral ex
parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda or other filings in the
proceeding, the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Sec. 1.1206(b) of the Commission's rules. In
proceedings governed by Sec. 1.49(f) of the Commission's rules or for
which the Commission has made available a method of electronic filing,
written ex parte presentations and memoranda summarizing oral ex parte
presentations, and all attachments thereto, must be filed through the
electronic comment filing system available for that proceeding, and
must be filed in their native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Participants in this proceeding should familiarize
themselves with the Commission's ex parte rules.

VI. Ordering Clauses

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

List of Subjects in 47 CFR Part 1

Administrative practice and procedure.

[[Page 1874]]

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

Proposed Rules

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

PART 1--PRACTICE AND PROCEDURE

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

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

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

Sec. 1.1411 Timeline for access to utility poles.

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

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