[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66254-66268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16935]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WC Docket Nos. 19-195, 11-10; FCC 24-72; FR ID 233875]
Establishing the Digital Opportunity Data Collection; Modernizing
the FCC Form 477 Data Program
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) codifies the Broadband Data Collection (BDC)
challenge process deadline as required by the bipartisan Infrastructure
Investment and Jobs Act, delegates authority to the offices and bureaus
to conduct BDC audits, and clarifies that providers must submit
detailed data to seek restoration for those locations or areas on the
National Broadband Map (NBM).
DATES: Effective September 16, 2024.
FOR FURTHER INFORMATION CONTACT: For further information, please
contact, Will Holloway, Broadband Data Task Force, at
[email protected] or (202) 418-2334.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth
Report and Order in WC Docket Nos. 19-195 and 11-10, released on July
12, 2024. The full text of this document is available at the following
internet address: https://www.fcc.gov/document/fcc-takes-steps-update-broadband-data-collection-processes or by using the Commission's EDOCS
web page at www.fcc.gov/edocs.
Paperwork Reduction Act. The Fourth Report and Order rulemaking
required under the Broadband DATA Act is exempt from review by Office
of Management and Budget (OMB) and from the requirements of the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. As a result,
the Fourth Report and Order will not be submitted to OMB for review
under section 3507(d) of the PRA.
Congressional Review Act. The Commission has determined, and the
Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs, that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The
Commission will send a copy of the Fourth Report and Order and
Declaratory Ruling to Congress and the Government Accountability Office
pursuant to 5 U.S.C. 801(a)(1)(A). The Commission will submit the draft
Fourth Report and Order and Declaratory Ruling to the Administrator of
the Office of Information and Regulatory Affairs, Office of Management
and Budget, for concurrence as to whether this rule is ``major'' or
``non-major'' under the Congressional Review Act, 5 U.S.C. 804(2).
Synopsis
A. Codifying the Adjudication Deadlines for Availability Challenges
1. In the Infrastructure Investment and Jobs Act of 2021 (IIJA),
Congress amended the Broadband DATA Act to require the Commission to
resolve any challenges received as part of the BDC ``not later than 90
days after the date on which a final response by a provider to a
challenge to the accuracy of a map . . . is complete.'' Since the
inception of the availability challenge processes, the Commission has
followed this deadline. However, in the Fourth Report and Order we take
steps to codify this deadline and memorialize the Commission's
challenge processes in the BDC rules.
2. The following paragraphs describe how the Commission has
implemented this 90-day deadline for processing fixed and mobile
service challenges, and how we will amend our rules to reflect these
existing practices and the minor modifications to those practices. For
each type of challenge, we indicate the date on which we deem a
provider's response to the challenge to be ``final'' and ``complete''
for purposes of triggering the 90-day deadline required by the IIJA. As
set forth in the proposed rule published elsewhere in this issue of the
Federal Register, we tentatively conclude and seek comment on whether
this deadline should apply to fixed and mobile availability challenges
only, and not to challenges to data in the Fabric.
3. Fixed Service Challenges. For challenges to the accuracy of
fixed broadband availability data and coverage maps, the Commission's
rules currently provide that ``within 60 days of receiving an alert''
to a challenge, ``a provider shall reply in the portal by: (i)
[a]ccepting the allegation(s) raised by the challenger . . . or (ii)
[d]enying the allegation(s) raised by the challenger, in which case the
provider shall provide evidence . . . that the provider serves (or
could and is willing to serve) the challenged location.'' If the
provider accepts the allegations raised by the challenger, the provider
must ``submit a correction for the challenged location in the online
portal within 30 days of its portal reply.'' The rules state that a
provider's failure to respond to the challenge within the applicable
timeframe ``shall result in a finding against the provider.'' ``If the
provider denies the allegation(s) raised by the challenger,'' the rules
state that ``the provider and the challenger shall have 60 days after
the provider submits its reply to attempt to resolve the challenge.''
The rules further provide that if the parties are unable to reach
consensus within 60 days after submission of the provider's reply in
the portal, then the affected provider shall report the status of
efforts to resolve the challenge in the online portal, after which the
Commission will review the evidence and make a determination, either:
(i) in favor of the challenger, in which case the provider shall update
its BDC information within 30 days of the decision; or (ii) in favor of
the provider, in which case the location will no longer be subject to
the ``in dispute/pending resolution'' designation on the coverage maps.
4. To codify the requirements of the IIJA, we amend our rules to
state that in cases where a fixed broadband provider disputes the
allegations raised by the challenger, the response from the provider
will be final and complete when the provider reports on the status of
its efforts to resolve the challenge, at which time, the 90-day
deadline for adjudication of the challenge will begin to run. For
example, if a consumer submits a challenge to a fixed provider's
availability data on February 28 and, after initial review, Commission
staff accepts the challenge and alerts the provider (via the BDC
system) of the challenge on March 1, the service provider would have
until April 30 to either concede or dispute the challenge allegations
(by submitting an ``initial response'' to the challenge in the BDC
system). If the provider disputes the challenge allegation on April 30,
then the parties would have until June 29 to attempt to resolve the
challenge and for the service provider to report on the outcome of
those discussions by submitting a ``final response'' to the challenge
in the BDC system. This status report is the ``final response by [the]
provider.'' Accordingly, if the provider continues to dispute the
challenge in its
[[Page 66255]]
final response (i.e., the challenge has not been resolved by the
parties), the 90-day deadline will commence once the provider submits
its final response. If the provider submits its final response on the
deadline of June 29, Commission staff would thus be required to
adjudicate the challenge no later than September 27.
5. The only challenges that require FCC adjudication are those that
the challenged provider does not concede and for which the challenger
and the challenged provider are unable to reach a consensus. We
therefore find that the deadline for FCC action most appropriately
begins once the provider has submitted its final response reporting on
the status of the parties' efforts to resolve a disputed challenge.
Starting the 90-day period when a provider reports on the status of the
parties' efforts to resolve the challenge, and not earlier, is
consistent with the statutory objective that the adjudication period
begin ``after the date on which a final response by a provider to a
challenge to the accuracy of a map . . . is complete.'' We find that
this process will also help the Commission adjudicate challenges
efficiently because Commission staff will be able to begin the process
of review and adjudication as soon as they have information on the
outcome of the dispute resolution process.
6. The process we outline above is largely consistent with current
Commission practice; however, we modify the existing process in two
respects. First, the 90-day deadline for Commission adjudication of a
fixed challenge will begin on the day after the service provider
submits the status report, regardless of whether that report is
provided on or before the 60th day allowed for under the rules. Our
former practice was to begin the 90-day period on the day after the
deadline for submission of the status report, even when the challenged
provider submits the report prior to the deadline. Based on the
Commission's experience adjudicating challenges, this change in our
process is appropriate in order to more expeditiously adjudicate fixed
challenges when a final status report is filed prior to the end of the
full 60-day period. Second, we clarify that when a provider corrects or
updates its final response before the end of the 60-day resolution
period, the adjudication period will restart upon the date of the
recertification of the final response (unless the Commission has
already adjudicated the challenge prior to the reversion of the final
response).
7. Mobile Service Challenges. The Commission's rules provide that,
for areas with a cognizable challenge to the accuracy of mobile
broadband data and coverage maps, ``providers either must submit a
rebuttal to the challenge within a 60-day period of being notified of
the challenge or concede and have the challenged area identified on the
mobile coverage map as an area that lacks sufficient service.'' The
rules also provide that ``[i]f needed to ensure an adequate review,
[Office of Economics and Analytics (OEA)] may also require that the
provider submit other data in addition to the data initially submitted
. . . .'' This supplemental data must be submitted within 60 days of
OEA's request.
8. We amend our mobile service challenge rules to provide that,
when a mobile provider disputes a challenge, the provider's response
will be final and complete on the 60th day after the provider is
notified of the challenge (i.e., the deadline for submitting challenge
rebuttal data). The 90-day adjudication deadline required under the
IIJA will begin to run on the day after the deadline for submitting the
challenge rebuttal data, and this will also apply in cases where a
provider responds to a challenge sooner than 60 days after it is
notified of the challenge. In cases where Commission staff request
supplemental data from a provider after receiving the provider's
initial response, the adjudication period will restart the day after
the deadline by which the supplemental data is due to the Commission
(within 60 days of the request for supplemental data). Initiating the
adjudication period the day after the deadline for submitting the
challenge rebuttal data, or the day after any supplemental data
requested by staff is due, will ensure that the Commission has
sufficient information to adjudicate challenges and will create
administrative efficiencies by synchronizing the timing for resolving
challenges with the monthly notifications we issue to providers
regarding the status of challenged areas. We recognize that we are
adopting different procedures for calculating the adjudication deadline
for mobile availability challenges than for fixed challenges. However,
this difference is justified because the data involved in submitting
fixed and mobile challenges differ considerably, as do the
methodologies for staff review and adjudication of fixed and mobile
challenges. Mobile challenges are created through on-the-ground speed
test data and, in most cases, mobile service providers respond to
challenges using similar on-the-ground speed test data--both of which
are submitted into the BDC system in a structured format. The BDC
system performs analyses of these speed test results based upon
hexagonal areas, and Commission staff use the results of these analyses
to determine whether or not a challenge should be upheld or overturned.
In contrast, fixed availability challenges are based upon a variety of
Challenge Category Codes, with a large degree of variation in the types
of evidence and information submitted both to create a challenge as
well as by fixed providers in seeking to overturn challenges. We note
that, under the process we adopt in the Fourth Report and Order, mobile
challenges will be resolved considerably more quickly in most instances
than the time allowed under the deadline due to the methodology used to
review and process mobile challenge data. Accordingly, we believe that
this different treatment of mobile and fixed challenge review and
adjudication is warranted.
B. Audits
9. Background. The Broadband DATA Act requires the Commission to
verify the accuracy of the data reported by broadband internet access
service providers. The Act also requires that the Commission conduct
regular audits of the information submitted by providers in the BDC.
Under the Commission's rules, the Commission must ``conduct regular
audits of the information submitted by providers in their [BDC]
filings,'' which ``(1) [m]ay be random, as determined by the
Commission; or (2) [c]an be required in cases where there may be
patterns of filing incorrect information, as determined by the
Commission.'' In the Second Report and Order (85 FR 50886, August 18,
2020), the Commission determined that it will audit availability data
and other information submitted by all types of providers of broadband
internet access service (e.g., mobile and terrestrial fixed wireless,
fixed wired, and satellite). The Commission further specified that
audit tools will include field surveys, investigations, and annual
random audits to verify data accuracy, and that audits may additionally
be initiated based on an unusual number of crowdsourced complaints.
10. The Commission has implemented its statutory obligations to
verify the accuracy of the data reported in biannual BDC submissions in
a variety of ways. As an initial matter, the Commission developed an
entirely new system for ingesting, validating, and aggregating provider
availability data for publication on the NBM. The new BDC system
requires all data to be submitted in a structured format according to
[[Page 66256]]
rigorous data specifications and imposes comprehensive data-quality
checks at the time data is uploaded and submitted into the BDC. These
checks identify either ``hard'' errors that require a correction by the
filer prior to certifying and submitting the data, or ``soft'' flags
that alert the filer to a potential anomaly or error and requires an
explanation if no change to the data is made. These measures ensure
that service providers file higher-quality data.
11. After the close of each biannual BDC filing window, Commission
staff conduct verifications of the submitted data to test their
accuracy and reliability. These efforts include: review of the ``soft''
system flags, supporting data submitted in conjunction with
availability data, and other filer data to identify potential anomalies
or errors; outreach to filers based upon these reviews requesting their
correction or explanation of the data; and vetting of subsequent
changes to or explanations of the data by providers. Commission staff
have performed several thousand data verifications using this process.
In addition, Commission staff have initiated formal verification
inquiries of the data submitted by certain fixed and mobile broadband
providers. In response to such inquiries, providers have been required
to submit explanation information relevant to the inquiry, such as
network infrastructure data for the targeted verification area.
12. In addition to these verifications, Commission staff have
initiated audits of discrete coverage areas within the service
availability reported by several mobile service providers. OEA and
Wireless Telecommunications Bureau (WTB) staff have conducted these
audits in coordination with the Broadband Data Task Force, Enforcement
Bureau, Office of Engineering and Technology (OET), and Commission
leadership. Commission staff have conducted two variations of mobile
audits to date. The first involve on-the-ground testing of mobile
service performance in resolution 8 hexagonal cells (``hex areas'')
within a single county. Commission staff, in coordination with its
third-party contractors, selected the target county to audit and
conducted on-the-ground testing based upon a variety of factors,
including the number of service providers who claim some amount of
network coverage in the county, the number of accessible hex areas in
the county, the population density of the county, and the marginal
coverage in the area. The second variation of audits involves requests
for infrastructure data from service providers for a handful of
randomly selected counties. These counties were selected using several
of the factors used to identify areas for on-the-ground testing as well
as other factors, such as the geography and topography of the counties.
13. To standardize the types of information the Commission requests
through formal verification inquires and the second variation of mobile
audits, as well as to provide transparency and certainty to service
providers, the Commission has released an updated data specification
for provider infrastructure data submitted in the challenge,
verification, and audit processes. This data specification sets forth
standardized, structured data that all service providers (fixed
wireline, terrestrial fixed wireless, mobile wireless, and satellite)
should be prepared to submit in response to verification inquiries and
audits (as well as in response to challenges in instances where mobile
wireless service providers are able to respond to mobile challenges
with infrastructure data).
14. Discussion. Notwithstanding the clear mandates in the Broadband
DATA Act, the Second Report and Order, and the Commission's rules that
we verify and audit availability data as part of the BDC, we take this
opportunity to clarify the procedural mechanics of our audit rules.
Accordingly, we begin by formally delegating authority to OEA, in
coordination with WTB, the Wireline Competition Bureau (WCB), and the
Space Bureau (SB), to continue to perform audits using the processes
and data specifications currently available. We also reaffirm the
authority of OEA, in coordination with the relevant bureaus and
offices, to continue performing fixed and mobile data verifications
using existing methods or any other methods and data specifications it
may develop in the future for verifying availability data. We direct
OEA, in coordination with WTB, WCB, and SB, to establish methodologies
and procedures for selecting service providers (either fixed or mobile)
and targeted locations or areas subject to random audit, as well as for
determining ``patterns of filing incorrect information'' sufficient to
warrant an audit. In the latter case--as well as in the case of
verification inquiries--the methodology(ies) will continue to be based
on anomalies or inconsistencies in the data a provider submits as part
of its biannual submission and/or information submitted through, or
behavior demonstrated in, the availability challenge processes or
crowdsource submissions.
15. This delegation of authority specifically includes the
authority to identify and select specific providers and geographic
areas or Broadband Serviceable Locations subject to formal verification
or audit. As part of this delegation, OEA is vested with authority to
develop processes or procedures for randomly selecting geographic areas
or locations to audit, as well as for determining ``cases where there
may be patterns of filing incorrect information,'' consistent with our
rules. OEA, in coordination with WTB, WCB, and SB, is best qualified to
make individualized determinations of the areas or locations that
should be audited (subject to the conditions in Sec. 1.7006(a)
outlined above), given its subject-matter expertise in reviewing the
underlying availability data and its understanding of resources (e.g.,
budget, staff time) available to perform audits.
16. We further delegate authority to OEA, in coordination with WTB,
WCB, and SB (as appropriate), to collect all data required to conduct a
thorough and complete audit, including, but not limited to, the
information set forth in the BDC Infrastructure Data Specification, on-
the-ground mobile performance data (in the case of audits of mobile
coverage areas), and any other data OEA determines are necessary to
assess an entity's claims that it makes service available to audited
locations or areas. This authority permits OEA, in coordination with
the relevant bureaus and offices, to use third-party contractors to
gather and analyze the collected data, subject to the requirement that
Commission staff supervise and direct any third-party contractors used
to gather or analyze the data.
C. Ministerial Changes
17. The part 1, subpart V rules in title 47 refer to the ``Digital
Opportunity Data Collection'' or ``DODC.'' This is the name formerly
given to the data collection that the Commission now refers to as the
Broadband Data Collection or BDC. In the Fourth Report and Order, we
make ministerial changes to our rules to replace references to the
``Digital Opportunity Data Collection'' or ``DODC'' with references to
the Broadband Data Collection or BDC, as appropriate. These rule
amendments are exempt from notice-and-comment requirements of the
Administrative Procedure Act (APA) because they are procedural rules
that ``do not themselves alter the rights or interests of parties.''
Notice and comment for these rule changes are also unnecessary because
the edits are non-substantive and have no impact on regulated parties
or the public.
[[Page 66257]]
I. Declaratory Ruling
A. Restoration of Locations and Areas Removed Through Availability
Challenges, Audits and Verifications
18. We next issue a declaratory ruling clarifying that providers
must submit more detailed data in subsequent BDC filings when claiming
availability for locations or areas that were previously removed
through the challenge, verification or audit processes. In doing so, we
specify the types of existing data specifications for demonstrating
availability at previously removed locations or areas for certain types
of challenges. The Broadband DATA Act required that the Commission
adopt rules for ``the biannual collection and dissemination of granular
data . . . relating to the availability and quality of service with
respect to terrestrial fixed, fixed wireless, satellite, and mobile
broadband internet access service,'' and ``processes through which the
Commission can verify the accuracy of data'' submitted by broadband
service providers. The Broadband DATA Act recognizes that, due to
ongoing changes in the availability of internet services across the
United States and its Territories, the Broadband Data Collection is an
iterative process and that the NBM must be updated regularly with
refreshed data to reflect the on-the-ground reality of mass-market
broadband availability. Providers must therefore report availability
data as of June 30 and December 31 of each year, which may include
expanded coverage since the provider's last filing (due, for example,
to build-out of additional infrastructure since the previous
submission) and, in some cases, reduced coverage (due, for example, to
the retirement of discontinued technologies or infrastructure, or to
network capacity constraints preventing the connection of new
customers).
19. We clarify that in cases where a provider's claimed
availability at a location (in the case of a fixed provider) or in an
area (in the case of a mobile provider) is removed from the NBM as the
result of a lost or conceded challenge, a verification inquiry, or an
audit (together, a ``Removed Location or Area''), our rules require the
provider to submit updated availability data in a subsequent BDC filing
if it can demonstrate that it can make service available to the Removed
Location or Area. We interpret the Commission's rules, as well as our
statutory obligation to verify the accuracy of the data displayed on
the NBM, to require a restoration process for Removed Locations or
Areas in order to ensure that the data on the NBM remain accurate and
to improve the usefulness of the coverage maps. In so doing, we
delegate authority to OEA, in coordination with WCB, WTB, OET, and SB,
to develop detailed data specifications setting out the categories of
information a provider must submit when seeking to restore a previously
Removed Location or Area through a subsequent BDC filing.
20. If a provider's reported availability at a location or in an
area is removed from the NBM as the result of a verification, audit, or
challenge, a Removed Location or Area is created in the BDC system. The
ways in which these Removed Locations or Areas are generated is
described below.
21. Verifications and Audits. As discussed above, the Commission
has robustly implemented its statutory obligations to verify the
accuracy and reliability of broadband availability data that providers
submit to the Commission and to audit provider-reported availability
data. If, in response to a Commission-initiated verification or audit,
a provider is unable to submit sufficient information supporting its
reported coverage at a location or area, the verification or audit may
lead to a Removed Location or Area, which would include all or part of
the area subject to the verification or audit.
22. Service Availability Challenges. The Broadband DATA Act
directed the Commission to ``establish a user-friendly challenge
process through which consumers, State, local, and Tribal governmental
entities, and other entities or individuals may submit coverage data to
the Commission to challenge the accuracy of'' the information on the
NBM. In the Third Report and Order (86 FR 18124, April 7, 2021), the
Commission adopted rules establishing the fixed availability challenge
process, including the procedures the Commission uses to resolve fixed
availability challenges. Similarly, the Commission adopted rules for
challenges to mobile wireless coverage data based upon lack of service
or poor service quality, such as slow delivered speeds.
23. A service availability challenge may result in a Removed
Location or Area for several reasons. First, a provider may
affirmatively concede a challenge. Second, a provider's failure to
respond to a challenge within the applicable timeframes results in a
finding against the provider, thereby leading to an automatic
concession. An automatic concession may be (i) intentional, because the
provider agrees with the challenger and chooses to allow the challenge
to automatically result in a finding against that provider or (ii)
unintentional, due to a missed deadline, a misunderstanding of the BDC
processes, or some other act or omission. Finally, a fixed or mobile
availability challenge could be adjudicated by the FCC in the
challenger's favor. When a provider concedes or loses a challenge, it
must update its availability data to align with the lost or conceded
challenge and certify the updated data; the location or area lost or
conceded as a result of the challenge process thereby constitutes a
Removed Location or Area.
24. Since the launch of the NBM on November 18, 2022, the
verification, audit, and challenge processes have been active and have
led to meaningful updates to the map. In just the first year following
the map's launch, approximately 3.7 million fixed availability
challenges were accepted and submitted to providers for response,
resulting in more than 2.5 million updates to the fixed availability
data on the NBM. In approximately the same timeframe, 35 cognizable
mobile challenges resulted in 18 corrections to mobile wireless
coverage data on the NBM. To date, FCC staff have initiated thousands
of fixed data verification inquiries, as well as audits, which have
resulted in updates to hundreds of provider submissions. These
processes are open and ongoing, and new verification efforts, audits,
and challenges are regularly initiated and resolved. Meanwhile,
significant Federal investments in broadband infrastructure have been
either awarded or deployed since the launch of the NBM, which will
produce meaningful expansions of broadband availability across the
United States and Territories.
25. Given the various ways in which broadband service availability
can both expand and contract, it is entirely possible, and in fact,
very likely, that a provider who previously reported mass-market
broadband internet service available at a Removed Location or Area may
subsequently make such service available to the Removed Location or
Area. It is critical that the BDC be able to capture these types of
developments in broadband availability over time.
B. Legal Authority for Implementing Location Restoration
26. Pursuant to the Act, the BDC captures changes in broadband
availability data over time to ensure that the NBM remains accurate.
Each BDC filing is a snapshot of broadband availability on a particular
date, and each verification, audit, and/or challenge is applicable to
availability information at that particular time. However, Removed
Locations or Areas
[[Page 66258]]
``persist'' from one BDC filing to the next, in order to promote active
participation in the challenge, verification, and audit processes by
service providers and to alleviate the need for challengers and the
Commission to repeatedly correct previously adjudicated locations or
areas. Therefore, it is essential that providers submit updated data
into the BDC for Removed Locations and Areas, and that the BDC provide
an efficient, standardized way for the NBM to reflect where a provider
reports in a subsequent filing that it can make service available at a
previously Removed Location or Area. Without such a requirement or
pathway to restore Removed Locations or Areas, the NBM would become
outdated, and therefore less accurate--contrary to both Congress's and
the Commission's intent.
27. Accordingly, we clarify that the requirement that BDC ``filings
shall be made each year on or before March 1 (reporting data as of
December 31 of the prior year) and September 1 (reporting data as of
June 30 of the current year)'' includes an obligation that providers
submit data on service availability to Removed Locations or Areas.
Because the BDC rules require providers to report their broadband
availability data accurately for each filing round and certify that
those filings are accurate, it would be a violation of the Commission's
rules for a provider to not report coverage at a Removed Location or
Area where it now makes service available.
28. Requiring updates based upon changed circumstances is
consistent with our statutory obligation to ``establish . . . processes
through which the Commission can verify the accuracy of the data
submitted'' by service providers in the BDC. This includes a process
for verifying data submitted through the challenge process ``in order
to ensure the reliability of that data.'' The Broadband DATA Act cannot
hold its intended purpose if a service provider is not required to and
does not have a pathway for reporting service availability to a
location that, though previously unserved, is now capable of receiving
the reported service. Clarifying this requirement, and establishing a
pathway for restoring a previously Removed Location or Area improves
the usefulness of the coverage maps by ensuring that the data on the
NBM are timely and accurate. As noted by CTIA--The Wireless
Association, where a provider has completed new deployments, service
upgrades, or otherwise added more capacity to its network, the BDC must
allow that provider to include those locations in a subsequent filing;
without such a mechanism to restore these locations, the NBM would be
underinclusive and could cause confusion for consumers.
29. Moreover, clarifying this requirement and establishing a
pathway for reporting Removed Locations or Areas is consistent with
prior Commission direction in the context of mobile wireless coverage
data submissions. The Commission previously contemplated that changed
circumstances could lead to improved coverage at an area previously
lost by a mobile wireless provider in the mobile challenge process. In
the Third Report and Order, the Commission stated that if a mobile
provider ``that has failed to rebut a challenge subsequently takes
remedial action to improve coverage at the location of the challenge,
the provider must notify the Commission of the actions it has taken to
improve its coverage and provide either on-the-ground test data or
infrastructure data to verify its improved coverage.'' While the
Commission did not include similar language regarding fixed challenges,
the rationale applies equally to both types of broadband services: if a
provider lost or conceded a challenge but the provider is now able to
produce additional evidence supporting its claim that it can make
broadband service available at the previously Removed Location or Area,
the BDC must implement a pathway to restoration.
30. We make clear that the obligation to submit updated data in
subsequent filings extends to locations and areas that were removed
because the provider previously failed to participate in the challenge
processes or provided insufficient evidence in response to the
challenge. For example, where a provider automatically conceded a
challenge due to a misunderstanding of our rules or the BDC system, it
is possible that the provider actually made service available at the
resulting Removed Location or Area at the time the challenge was
submitted. Similarly, because FCC adjudications are limited to the
evidence submitted by the challenger and the provider, a challenge
could be upheld due to insufficient evidence submitted by the provider
in response to the challenge, even if the provider actually makes
service available at the Removed Locations or Areas. In all of these
instances, in order for the NBM to accurately reflect, on an ongoing
basis, the broadband services that are available at each location or
area, we must require providers to submit updated data and establish a
pathway for restoring a Removed Location or Area.
C. Data Requirements for Restoration
31. In order to preserve the integrity of the challenge processes,
including our obligation under the Broadband DATA Act to ``mitigate the
time and expense incurred by, and the administrative burdens placed on,
entities and individuals'' in our challenge processes, providers must
submit data to support a request in a subsequent availability filing to
include a Removed Location or Area. Further, a data requirement
mitigates the administrative burdens on the Commission to conduct
verifications and audits of data submitted by providers at Removed
Locations or Areas in subsequent filings.
32. Specifically, a provider must submit detailed information
demonstrating that it can now make service available at the Removed
Location or Area. The data elements included in the Data Specifications
for Provider Infrastructure Data in the Challenge, Verification, and
Audit Processes are indicative of the kind of information that we
expect to be persuasive in the restoration of locations or areas
removed from the NBM as a result of the challenge process, verification
inquiries or audits, where infrastructure data would be relevant.
Providers are already familiar with these existing data specifications,
and for the most part already retain this information. Specifically,
fixed provider infrastructure data would be relevant for consumer and
bulk fixed availability challenges lost under Challenge Category Codes
4, 5, 6, 8, or 9, and bulk fixed availability challenges lost under
Challenge Category Codes 1 or 2. Additionally, mobile provider
infrastructure data would be informative when providers seek to restore
coverage areas lost in the mobile challenge process as well as removed
in response to verification inquiries or audits. While these existing
data specifications are persuasive for restoration of locations and
areas previously removed based on the above-referenced challenge codes,
these data are not relevant to all challenge codes. Further, these data
specifications do not include speed test data for mobile service. We,
therefore, seek comment, in the proposed rule published elsewhere in
this issue of the Federal Register, on what information commenters
believe would be persuasive in the restoration of fixed availability
data removed from the NBM under the remaining Challenge Category Codes,
as well as the potential use of on-the-ground speed test data for
restoration of mobile coverage areas.
[[Page 66259]]
33. We additionally clarify that the data requirements for
restoring a provider's availability to a previously Removed Location or
Area are distinct from the rules and standards governing availability
challenges. A provider's restored availability information can be
subsequently challenged in accordance with rule Sec. 1.7006(d) (for
fixed availability data) and (e) and (f) (for mobile availability
data).
34. We direct OEA, in consultation with WCB, WTB, OET, and SB, to
develop and publish data specifications detailing the information a
provider must submit when seeking to restore a previously Removed
Location or Area through a subsequent BDC filing--starting with the
infrastructure data included in the Data Specifications for Provider
Infrastructure Data in the Challenge, Verification, and Audit
Processes. We also direct OEA, in consultation with the other named
bureaus and offices, to make the necessary system changes to implement
the clarifications in the Declaratory Ruling. After the data
specifications are published, a provider may upload the specific
information necessary to restore a Removed Location or Area in the BDC
system. Where Commission staff deems that information sufficient to
demonstrate availability, the location or area will be restored on the
National Broadband Map.
II. Final Regulatory Flexibility Analysis
35. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Establishing the Digital Opportunity Data
Collection; Modernizing the FCC Form 477 Data Program, Digital
Opportunity Data Collection Third Further Notice of Proposed Rulemaking
(Third FNPRM) released in July 2020 (85 FR 50911, August 18, 2020). The
Federal Communications Commission (Commission) sought written public
comment on the proposals in the Third FNPRM, including comments on the
IRFA. No comments were filed addressing the IRFA. This Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Final Rules
36. In the Fourth Report and Order, the Commission takes steps to
adopt certain requirements mandated by the Broadband DATA Act, as well
as adopting improvements to the data collection. Specifically, the
Fourth Report and Order modifies the Broadband Data Collection (BDC)
rules to codify expedited challenge adjudication deadlines as required
by the Infrastructure Investment and Jobs Act (IIJA), such as a 90-day
deadline for fixed services challenges, as well as provide a specific
delegation of authority to the Office of Economics and Analytics (OEA),
in coordination with certain other bureaus and offices, to conduct
audits of broadband data submitted by providers (as required under the
Broadband DATA Act). Through the adoption of these rules, the
Commission is implementing targeted changes that further address its
long-standing objective of working towards closing the digital divide
by improving the processes for filers, some of whom consist of small
entities.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
37. There were no comments filed that specifically addressed the
rules and policies proposed in the IRFA.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
38. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments. The Chief Counsel did not
file comments in response to the proposed rules in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
39. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small-business concern'' under the Small Business
Act.'' A ``small-business concern'' is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
40. 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 SBA's 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.
41. 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. Nationwide, for tax year 2022, there were
approximately 530,109 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.
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 2022 Census of Governments indicate there were
90,837 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. Of
this number, there were 36,845 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 11,879 special purpose governments (independent school districts)
with enrollment populations of less than 50,000. Accordingly, based on
the 2022 U.S. Census of Governments data, we estimate that at least
48,724 entities fall into the category of ``small governmental
jurisdictions.''
42. Broadband internet Access Service Providers. The broadband
internet access service provider industry has changed since the
definition was introduced in 2007. The data cited below may therefore
include entities that no longer provide broadband internet access
service and may exclude entities that now provide such service. To
ensure that this FRFA describes the universe of small entities that our
action might affect, we discuss in turn several different types of
entities that might be providing broadband internet access
[[Page 66260]]
service. We note that, although we have no specific information on the
number of small entities that provide broadband internet access service
over unlicensed spectrum, we included these entities in our Initial
Regulatory Flexibility Analysis.
43. Wired Broadband internet Access Service Providers (Wired ISPs).
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.
44. 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 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.
45. Internet Service Providers (Non-Broadband). Internet access
service providers using client-supplied telecommunications connections
(e.g., dial-up ISPs) as well as Voice over internet Protocol (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. Consequently, under
the SBA size standard a majority of firms in this industry can be
considered small.
46. Wireline Providers.
47. 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.
48. 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.
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.
49. 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. 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.
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.
50. 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.
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 SBA's small business size
standard, the Commission estimates that the majority of incumbent local
exchange carriers can be considered small entities.
51. Competitive Local Exchange Carriers (CLECs). 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. 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
[[Page 66261]]
employees. 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.
52. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA have 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. 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.
53. 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. 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.
54. 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. 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.
55. Wireless Providers--Fixed and Mobile.
56. The broadband internet access service provider category covered
by these new rules may cover multiple wireless firms and categories of
regulated wireless services. 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.
57. 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. 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.
58. 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.
Thus, under the SBA size standard, the Commission estimates that a
majority of licensees in this industry can be considered small.
59. 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.
60. In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the
[[Page 66262]]
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. 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. Thus, under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
62. According to Commission data as of November 2021, there were
three active licenses in this service. 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.
63. 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.
64. 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. 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.
65. 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 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. Thus, under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
66. Based on Commission data as of November 2021, there were
approximately 5,060 active licenses in the Broadband PCS service. 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.
67. 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.
68. 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 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. 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. 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,
[[Page 66263]]
these 119 SMR licensees can be considered small entities.
69. Based on Commission data as of December 2021, there were 3,924
active SMR 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.
70. 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 frequency division
duplex (FDD)- and time division duplex (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 an 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. Thus, under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
71. According to Commission data as of December 2021, there were
approximately 2,824 active Lower 700 MHz Band 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 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.
72. 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.
73. 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. Wireless
Telecommunications Carriers (except Satellite) is the closest industry
with an 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. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
74. According to Commission data as of December 2021, there were
approximately 152 active Upper 700 MHz Band 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.
75. 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.
76. 700 MHz Guard Band Licensees. The 700 MHz Guard Band
encompasses spectrum in 746-747/776-777 MHz and 762-764/792-794 MHz
frequency bands. Wireless Telecommunications Carriers (except
Satellite) is the closest industry with an 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. Thus, under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
77. According to Commission data as of December 2021, there were
approximately 224 active 700 MHz Guard Band licenses. The Commission's
small business size standards with respect to 700 MHz Guard Band
[[Page 66264]]
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, five winning bidders claiming one of the small business
status classifications won 26 licenses, and one winning bidder claiming
small business won two licenses. None of the winning bidders claiming a
small business status classification in these 700 MHz Guard Band
license auctions had an active license as of December 2021.
78. 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.
79. 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.
80. 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. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
81. Based on Commission data as of December 2021, there were
approximately four licensees with 110 active licenses in the Air-Ground
Radiotelephone Service. 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.
82. 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.
83. Advanced Wireless Services (AWS)--(1710-1755 MHz and 2110-2155
MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and
2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3); 2000-2020 MHz
and 2180-2200 MHz (AWS-4)). Spectrum is made available and licensed in
these bands for the provision of various wireless communications
services. 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. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
84. According to Commission data as of December 2021, there were
approximately 4,472 active AWS licenses. The Commission's small
business size standards with respect to AWS involve eligibility for
bidding credits and installment payments in the auction of licenses for
these services. For the auction of AWS licenses, the Commission defined
a ``small business'' as an entity with average annual gross revenues
for the preceding three years not exceeding $40 million, and a ``very
small business'' as an entity with average annual gross revenues for
the preceding three years not exceeding $15 million. Pursuant to these
definitions, 57 winning bidders claiming status as small or very small
businesses won 215 of 1,087 licenses. In the most recent auction of AWS
licenses 15 of 37 bidders qualifying for status as small or very small
businesses won licenses.
85. 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.
86. 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 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
[[Page 66265]]
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. Thus, under the SBA size standard, the Commission
estimates that a majority of licensees in this industry can be
considered small.
87. 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. 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.
88. Fixed Microwave Services. Fixed microwave services include
common carrier, private-operational fixed, and broadcast auxiliary
radio services. 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 an 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. Thus, under the
SBA size standard, the Commission estimates that a majority of fixed
microwave service licensees can be considered small.
89. 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.
90. 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.
91. 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)).
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.
92. In light of the use of wireless frequencies by BRS and EBS
services, 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. Thus, under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
93. According to Commission data as December 2021, there were
approximately 5,869 active BRS and EBS 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 licenses as of December 2021.
94. 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
[[Page 66266]]
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.
95. Satellite Service Providers.
96. 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 $38.5 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. 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.
97. 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 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. Based on this data, the
Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.
98. Cable Service Providers.
99. 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.
100. 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. 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. Based on this data, the Commission
estimates that a majority of firms in this industry are small.
101. 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.
102. 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. 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. 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.
103. All Other Telecommunications.
104. 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.
105. 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,
[[Page 66267]]
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. Based on this data and the
associated SBA size standards, the majority of firms in this industry
can be considered small entities.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
106. We expect that some of the rules adopted in the Fourth Report
and Order will impose new or additional reporting, recordkeeping, and/
or other compliance obligations on small entities. The Fourth Report
and Order modifies the BDC rules to codify the expedited availability
challenge adjudication deadlines to implement the IIJA mandate.
Commission staff already functionally implemented this deadline for the
availability challenge process as required by the IIJA. In an effort to
comply with the Broadband DATA Act, we now memorialize in our rules the
procedures that Commission staff have followed since the start of the
challenge process. The Fourth Report and Order also delegates authority
to OEA to collect any and all data required to conduct a thorough and
complete audit process. Finally, we formally amend the name given to
the data collection from the ``Digital Opportunity Data Collection'' to
the ``Broadband Data Collection.'' As to the cost of compliance, at
present, the record contains insufficient information to either
quantify compliance costs for small entities as a result of the adopted
rules, or determine whether there will be a need for small entities to
hire attorneys, engineers, consultants, or other professionals.
107. The Commission believes that any additional burdens imposed by
our audit of provider data are outweighed by the significant benefit to
be gained from more precise broadband deployment data. As discussed
above, although the Commission cannot quantify the cost of compliance
with the requirements in the Fourth Report and Order, we believe the
modifications to the BDC rules are necessary to comply with the
Broadband DATA Act and complete accurate broadband coverage maps.
F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
108. The RFA requires an agency to provide, ``a description of the
steps the agency has taken to minimize the significant economic impact
on small entities . . . including a statement of the factual, policy,
and legal reasons for selecting the alternative adopted in the final
rule and why each one of the other significant alternatives to the rule
considered by the agency which affect the impact on small entities was
rejected.''
109. The Commission's actions in the Fourth Report and Order are
primarily in response to the legislative enactment of the Broadband
DATA Act to develop better quality, more useful, and more granular
broadband deployment data, as well as our mandate to codify expedited
challenge adjudication deadlines as required by the IIJA. In
considering the comments in the record, we were mindful of the time,
money, and resources that some small entities incur to complete these
requirements.
110. For example, in implementing the IIJA's requirements, we
considered alternatives for how the Commission could address situations
where a challenger and a challenged provider cannot reach a consensus
as Sec. 1.7006(d)(6) requires. In the Fourth Report and Order, we set
forth that the shot-clock for Commission action should begin once the
provider has reported on the status of the parties' efforts to resolve
the challenge. Taking this step allows small and other entities to have
sufficient time to resolve challenges on their own, where possible,
before Commission staff become involved while helping the Commission
adjudicate challenges more efficiently.
G. Report to Congress
111. The Commission will send a copy of the Fourth Report and
Order, including the FRFA, in a report to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Fourth Report and Order, including the FRFA, to the Chief
Counsel for Advocacy of the SBA. A copy of the Fourth Report and Order
and FRFA (or summaries thereof) will also be published in the Federal
Register.
III. Ordering Clauses
112. Accordingly, it is ordered, pursuant to sections 1 through 4,
7, 201, 254, 301, 303, 309, 319, 332, 403, and 641 through 646 of the
Communications Act of 1934, as amended, 47 U.S.C. 151 through 154, 157,
201, 254, 301, 303, 309, 319, 332, 403, 641 through 646, the Fourth
Report and Order and Declaratory Ruling is adopted.
113. It is further ordered that part 1 of the Commission's rules is
amended as set forth in Appendix A of the Fourth Report and Order.
114. It is further ordered that the Fourth Report and Order shall
be effective 30 days after publication in the Federal Register.
115. It is further ordered that the Declaratory Ruling shall be
effective upon adoption by the Commission.
116. It is further ordered that the Office of the Managing
Director, Performance Program Management, shall send a copy of the
Fourth Report and Order and Declaratory Ruling in a report to be sent
to Congress and the Government Accountability Office pursuant to the
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
117. It is further ordered that the Office of the Secretary shall
send a copy of the Fourth Report and Order, including the Final
Regulatory Flexibility Analysis and the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Broadband, Reporting and
recordkeeping requirements, Telecommunications.
Federal Communications Commission
Marlene Dortch,
Secretary.
FEDERAL COMMUNICATIONS COMMISSION
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 1 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 note; 47
U.S.C. 1754, unless otherwise noted.
0
2. Amend Sec. 1.7006 by:
0
a. Revising paragraph (a) and paragraph (d)(6) introductory text;
0
b. Redesignating paragraphs (e)(5) through (7) as paragraphs (e)(6)
through (8);
0
c. Adding a new paragraph (e)(5);
0
d. Redesignating paragraphs (f)(6) and (7) as paragraphs (f)(7) and
(8); and
0
e. Adding a new paragraph (f)(6).
The revisions and additions read as follows:
Sec. 1.7006 Data verification.
(a) Audits. The Office of Economics and Analytics, in coordination
with the Wireless Telecommunications Bureau, Wireline Competition
Bureau, and
[[Page 66268]]
Space Bureau, shall conduct regular audits of the information submitted
by providers in their Broadband Data Collection filings. The audits:
(1) May be random, as determined by the Office of Economics and
Analytics; or
(2) Can be required in cases where there may be patterns of filing
incorrect information, as determined by the Office of Economics and
Analytics.
* * * * *
(d) * * *
(6) If the parties are unable to reach consensus within 60 days
after submission of the provider's reply in the portal, then the
affected provider shall report the status of efforts to resolve the
challenge in the online portal. After the affected provider reports on
the status of these efforts (including any amended report submitted
prior to the 60-day deadline), the Commission shall have 90 days to
review the evidence and make a determination, either:
* * * * *
(e) * * *
(5) Commission staff will resolve the challenge within 90 days
following the 60th day after which the provider is notified of the
challenge (i.e., the deadline for submitting challenge rebuttal data),
except that, should the Office of Economics and Analytics (OEA) request
supplemental information from a provider after receiving the provider's
initial challenge response, the Commission will resolve the challenge
within 90 days following the 60th day after which staff request such
supplemental data (i.e., 90 days after the deadline for when the
supplemental data is due to OEA).
* * * * *
(f) * * *
(6) Commission staff will resolve the challenge within 90 days
following the 60th day after which the provider is notified of the
challenge (i.e., the deadline for submitting challenge rebuttal data),
except that, should the OEA request supplemental information from a
provider after receiving the provider's initial challenge response, the
Commission will resolve the challenge within 90 days following the 60th
day after which staff request such supplemental data (i.e., 90 days
after the deadline for when the supplemental data is due to OEA).
* * * * *
Sec. Sec. 1.7004 through 1.7010 [Amended]
0
3. In addition to the amendments set forth above, in 47 CFR part 1,
remove the text ``Digital Opportunity Data Collection'' wherever it
appears and add in its place the text ``Broadband Data Collection'' in
Sec. Sec. 1.7004 through 1.70010.
[FR Doc. 2024-16935 Filed 8-14-24; 8:45 am]
BILLING CODE 6712-01-P