Direct Broadcast Satellite Service

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 100

[IB Docket No. 95-168; PP Docket No. 93-253; FCC 95-443]

Direct Broadcast Satellite Service

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Communications Commission has adopted a Notice of

Proposed Rulemaking that proposes a number of new rules for the Direct

Broadcast Satellite (``DBS'') service, including the use of competitive

bidding to resolve mutually exclusive applications for DBS resources.

The Commission seeks comment on all of its tentative conclusions and

proposed rules.

As part of its decision in Advanced Communications Corporation, FCC

95-428 (released October 18, 1995), the Commission reclaimed for the

public 51 channels of DBS spectrum at two orbital locations (27

channels at 110 deg. W.L. and 24 channels at 148 deg. W.L.) that had

previously been assigned to Advanced Communications Corporation

(``ACC''). The Commission proposes to revise rules and policies in the

DBS service in order to update the current ``interim'' rules and to

reassign, by auction or other means, channels at orbital locations

previously assigned to ACC.

DATES: Comments must be submitted on or before November 20, 1995; reply

comments must be submitted on or before November 30, 1995. Written

comments by the public on the proposed and/or modified information

collections are due November 20, 1995. Written comments must be

submitted by the Office of Management and Budget (``OMB'') on the

proposed and/or modified information collections on or before January

2, 1996.

ADDRESSES: Federal Communications Commission, 1919 M Street NW.,

Washington, D.C. 20554. In addition to filing comments with the

Secretary, a copy of any comments on the information collections

contained herein should be submitted to Dorothy Conway, Federal

Communications Commission, Room 234, 1919 M Street NW., Washington, DC

20554, or via the Internet to [email protected], and to Timothy Fain, OMB

Desk Officer, 10236 NEOB, 725--17th Street NW., Washington, DC 20503 or

via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT:

Bill Wiltshire or Suzanne Hutchings, International Bureau, (202) 418-

0420; or Diane Conley, Wireless Telecommunications Bureau, (202) 418-

0660. For additional information concerning the information

collections, contact Dorothy Conway at (202) 418-0217, or via the

Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice

of Proposed Rulemaking in IB Docket No. 95-168; PP Docket No. 93-253;

FCC 95-443, adopted October 27, 1995 and released October 30, 1995. The

complete text of this Notice of Proposed Rulemaking (Notice) is

available for inspection and copying during normal business hours in

the FCC Reference Center (Room 239), 1919 M Street NW., Washington, DC,

and also may be purchased from the Commission's copy contractor,

International Transcription Service, (202) 857-3800, 2100 M Street NW.,

Suite 140, Washington, DC 20037.

This Notice contains proposed or modified information collections

subject to the Paperwork Reduction Act of 1995 (``PRA''), Pub. L. No.

104-13. It has been submitted to OMB for review under Section 3507(d)

of the PRA. OMB, the general public, and other Federal agencies are

invited to comment on the proposed or modified information collections

contained in this proceeding.

Synopsis of the Notice of Proposed Rule Making

I. Introduction

1. Over six years ago, in Continental Satellite Corporation, 4 FCC

Rcd 6292 (1989), the Commission stated that

[[Page 55823]]

existing DBS permittees would have first right to additional channel

assignments upon surrender or cancellation of a DBS construction

permit. the Notice tentatively concludes that this reassignment policy,

adopted in an era before Congress explicitly authorized the

Commission's use of auctions and well before any DBS system actually

went into operation, no longer serves the public interest, and

therefore should be abandoned.

2. Accordingly, the Notice proposes new rules for reassigning DBS

resources. In the Notice, the Commission tentatively concludes that it

has the statutory authority to auction DBS construction permits if the

Commission receives mutually exclusive applications, and that the

objectives of Section 309(j) of the Communications Act, 47 U.S.C.

309(j), would be served by doing so. Specifically, the Notice proposes

to auction two DBS construction permits: one for all 28 channels now

available at the 110 deg. orbital location (27 channels from ACC plus 1

channel that was never assigned), and another for all 24 channels now

available at the 148 deg. orbital location. The Commission tentatively

concludes that these two permits should be awarded through a

sequential, oral outcry auction. The Notice seeks comment on both the

proposed use of auctions in the DBS service and the proposed auction

rules.

3. The Notice also proposes new rules for the DBS service. In

particular, the proposed rules would: (1) Establish additional

performance criteria for new permittees; (2) guard against potential

anticompetitive conduct by DBS providers; and (3) ensure timely DBS

service to Alaska and Hawaii. The Notice also requests comment on

existing Commission policy governing the extent to which DBS resources

may be put to alternative uses. These rules are proposed in order to

foster swift utilization of DBS orbital/channel assignments, and to

ensure that the public reaps the full benefit of DBS spectrum

resources. The Notice seeks comment on these proposed service rules as

well.

II. Proposed Service Rules

A. Due Diligence Milestones

4. The Notice tentatively concludes that combining existing due

diligence requirements with additional milestones for construction and

operation of DBS systems by new permittees will prevent unnecessary

delays in the commencement of service. Accordingly, the Notice proposes

rules to add two additional performance criteria for those receiving

DBS construction permits after the effective date of the proposed rule:

(1) Completion of construction of the first satellite in a DBS system

within four years of authorization; and (2) launch and operation of all

satellites in a DBS system within six years of authorization.

B. Use of DBS Capacity

5. The Notice requests comment on the Commission's existing policy

for non-conforming uses of DBS resources. That policy requires each DBS

licensee to begin DBS operations before the end of its first license

term, but allows otherwise unrestricted use during that term. After

expiration of the first term, a DBS operator may continue to provide

non-DBS service only on those transponders on which it also provides

DBS service, and only up to half of the use of each transponder each

day. As an example of the comments sought, the Notice suggests that the

existing restrictions on each DBS transponder could be restated in

terms of capacity rather than time, so as to accomplish the same goals

without unduly restricting decisions as to satellite configuration and

operation, and further invites comment on whether and how to formulate

a rule to better account for the flexibility of digital transmission

and compression.

6. The Notice also refers to the possibility that, as a result of a

separate proceeding, operators using DBS channels and orbital locations

may be permitted to provide both domestic and international service. In

light of that possibility, and the discussion of the permissible non-

standard uses of DBS channels, the Notice requests comment on whether

the U.S. has the authority to auction permits which may include the

provision of international service.

C. Pro-Competitive Rules and Policies Spectrum Aggregation Limitations

7. In order to promote competition and prevent undue concentration

of limited DBS resources, the Notice tentatively concludes that it may

now be prudent and appropriate to adopt rules designed to further those

goals, especially when DBS resources are controlled by the provider of

a competing, non-DBS service. The analysis begins by tentatively

concluding that the market in which multichannel video programming

distributors (``MVPDs'') compete--the market for the delivery of

multichannel video programming--is an appropriate ``product market'' in

which to determine the competitive effect of having DBS resources under

the control of the provider of another type of multichannel video

distribution service. The Notice also tentatively concludes that (1)

DBS service rules should address competitive issues relating to the use

of DBS spectrum to provide the wholesale distribution of DBS services

to cable operators and other MVPDs; (2) the effect of DBS competition

in the broader MVPD market will principally be felt in essentially

local markets; and (3) cross-ownership between DBS operators and other

MVPDs may present opportunities for anticompetitive strategic conduct

that potentially has adverse effects at the firm or national level.

8. Accordingly, the Notice proposes that any DBS licensee or

operator affiliated with another MVPD be permitted to control or use

DBS channel assignments at only one of the four orbital locations

capable of serving the entire contiguous United States (``full-

CONUS''), and seeks comment on whether the proposed spectrum

limitations should be related to the size of the MVPD involved and

whether such limitations should differentiate between cable operators

and other MVPDs. The Notice also proposes that aggregation of DBS

channel assignments by any DBS permittee or licensee be limited to a

total of 32 channels at any combination of full-CONUS orbital

locations, and further seeks comment on whether the Commission should

impose a limitation on an operator owning a significant number of

channels at each of multiple full-CONUS orbital locations--e.g.,

prohibiting a DBS permittee or licensee holding more than 16 channels

at one full-CONUS orbital location from holding channels at any other

full-CONUS location.

9. The Notice proposes that any permittee or licensee that acquires

control over channels in excess of the proposed spectrum limitations be

given ninety days from the date of Commission approval of such

acquisition in which to either surrender to the Commission its excess

channels, or file with the Commission a transfer or assignment

application in order to divest sufficient channels to bring the

applicant into compliance with all applicable spectrum limitations.

10. For purposes of implementing the proposed spectrum aggregation

limitations, the Notice proposes to consider four orbital locations--

61.5 deg. W.L., 101 deg. W.L., 110 deg. W.L., and 119 deg. W.L.--to be

capable of full-CONUS service. The Notice tentatively concludes that

applying the spectrum cap to these four orbital locations will ensure

that there is sufficient channel capacity for a minimum of four full-

CONUS DBS providers. It also

[[Page 55824]]

concludes that channels at the other four DBS orbital locations, which

are not capable of full-CONUS service, probably cannot match the

economies of scale in domestic service achieved by full-CONUS

operators, and thus should be exempt from the proposed spectrum

limitations.

11. In order to maintain the integrity of the channel aggregation

limitations, the Notice tentatively concludes that it is necessary to

count against the spectrum limitations all channels held by DBS

operators that share some level of common ownership or control. Because

of concerns that entities could engage in anticompetitive conduct not

only through control of DBS channels, but also through use of such

channels, the Notice concludes that it is appropriate to apply spectrum

limits not only to DBS permittees and licensees, but also to DBS

operators, defined as any person or group of persons who provide

services using DBS channels and directly or through one or more

affiliates own an attributable interest in such satellite system; or

who otherwise control or are responsible for, through any arrangement,

the management and operation of such a satellite system. For purposes

of implementing the spectrum aggregation limitations, the Notice

proposes to attribute both controlling interests and any interest of

five percent or more in a DBS permittee, licensee, or operator. The

Notice proposes to rely on existing case law for making control

determinations where such issues arise. Specifically, the Notice

proposes to adopt rules that attribute to the holder any interest of

five percent or more, whether voting or nonvoting, and all partnership

interests, whether general or limited. In addition, the Notice proposes

to adopt attribution rules that (1) attribute any interest of ten

percent or more held by an institutional investor or investment

company, rather than a five percent interest; (2) employ a multiplier

for determining attribution of interests held through intervening

entities; (3) provide for attribution of interests held in trust; (4)

attribute the positional interests of officers and directors; (5)

attribute limited partner interests based not only upon equity but also

upon percentages of distributions of profits and losses; and (6)

provide for attribution based upon certain management agreements and

joint marketing agreements. For purposes of the spectrum limitations,

the Notice also proposes to identify any individual or entity as an

affiliate of a licensee, permittee, or operator, or of a person holding

an attributable interest in a licensee, permittee, or operator, if such

individual or entity: (i) Directly or indirectly controls or has the

power to control the licensee, permittee, or operator; (ii) is directly

or indirectly controlled by the licensee, permittee, or operator; or

(iii) is directly or indirectly controlled by a third party or parties

that also has the power to control the licensee, permittee, or

operator. The Notice also seeks comment on whether the definition of an

affiliate should also include individuals or entities that have an

identity of interest with the licensee, permittee, or operator.

Conduct Rules To Protect Competition

12. In addition to the structural solutions designed to promote

competition by preventing the potential for undue concentration of DBS

and MVPD resources, the Notice also proposes conduct limitations on the

use of DBS channels and orbital locations to encourage, to the maximum

extent possible, rivalry among MVPDs. Specifically, the Notice further

proposes to (1) extend the conditions placed on Tempo Satellite, an

existing DBS permittee that is wholly owned by a cable operator, to all

MVPD providers that own DBS resources, such that they cannot offer DBS

service primarily as an ancillary service to their own programming

distribution services, or provide DBS service to subscribers of their

non-DBS systems under different terms than are being offered to non-

subscribers; and (2) prevent a DBS operator from selling, leasing, or

otherwise providing transponder capacity to any entity that enters into

an agreement with an MVPD granting that MVPD the exclusive right to

distribute DBS services within, or adjacent to, its service area. The

Notice also requests comment on whether existing program access and

program carriage rules adequately address vertical integration concerns

arising from common ownership among DBS operators, other MVPDs, and

program vendors, especially in connection with ``headend in the sky''

wholesale distribution from DBS satellites.

Other Concerns

13. The Notice observes that in the Advanced Communications

Corporation proceeding, commenters raised a number of other concerns

about potential strategic conduct that could arise from cable-

affiliated ownership of full-CONUS DBS spectrum. Those commenters

argued that cable-affiliated ownership of full-CONUS DBS spectrum

should be prohibited, or in the alternative, that several remedial

conditions should be imposed. The Notice seeks comment on the extent to

which those and related concerns are implicated by the proposed auction

of DBS construction permits, and if so, whether additional DBS service

rules might be appropriate to address those concerns.

East/West Paired Assignments

14. The Notice tentatively concludes that progress in the DBS

service since Continental was issued has rendered unnecessary the

policy, developed in that decision, of assigning DBS channels only in

east/west pairs, with eastern half-CONUS service permitted only from

the four eastern orbital locations and western half-CONUS service

permitted only from the four western orbital locations.

D. Service to Alaska and Hawaii

15. The Notice proposes: (1) To require that all new permittees

must provide service to Alaska and Hawaii if such service is

technically feasible from their orbital locations; and (2) to condition

the retention of channels assigned to current permittees at western

orbital locations on provision of such service, from either or both of

their assigned orbital locations.

E. License Term

16. The Notice proposes to increase the term of a non-broadcast DBS

license from 5 years to 10 years, the maximum allowed under the

Communications Act, which better reflects the useful life of a DBS

satellite and is consistent with the current proposal for extending the

term of satellite licenses in other services.

III. Proposed Auctioning of DBS Permits

A. Authority To Conduct Auctions

17. The Notice tentatively concludes that the Commission has

authority under Section 309(j) to use competitive bidding to award

construction permits for the DBS spectrum reclaimed from ACC as well as

other available DBS spectrum. The Notice tentatively concludes that

construction permits available for reclaimed DBS spectrum are

``initial'' within the meaning of Section 309(j). The Notice also

tentatively concludes that it is likely that mutual exclusivity will

exist among applications for the DBS channels reclaimed from ACC as

well as other DBS channels that may become available in the future. The

Notice further tentatively concludes that there are no means of

avoiding mutual exclusivity in the DBS service that are consistent with

the objectives of Section 309(j). The Notice proposes to consider

mutual exclusivity to occur only when the number of DBS channels sought

at a given orbital location exceeds the

[[Page 55825]]

number available there, and it asks for possible alternative criteria

for identifying mutually exclusive applications. The Notice also

tentatively concludes that the ``principal use'' requirement of Section

309(j) is satisfied because DBS is likely to be primarily a

subscription-based service, and that using competitive bidding to award

DBS authorizations would promote the objectives of Section 309(j).

B. Competitive Bidding Design

18. The Notice explains that the Commission has previously

concluded that the objectives of Section 309(j) will generally best be

achieved by auctions designed to award authorizations to the parties

that value them most highly. Such parties are most likely to deploy new

technologies and services rapidly, and to promote the development of

competition for the provision of those and other services.

19. The Notice proposes that available channel assignments be

auctioned sequentially in two blocks: one block of 28 channels at

110 deg., including the 27 channels reclaimed from ACC and one channel

that has never been assigned; and one block of 24 channels at 148 deg.,

which were reclaimed from ACC. The Notice tentatively decides not to

divide the available blocks into smaller parcels because it appears

from the configuration of current DBS systems that channels are most

effectively utilized when they are available in a substantial quantity

at a given orbital location. The Notice also tentatively concludes that

there would be little to gain by conducting simultaneous auctions of

the DBS channels reclaimed from ACC because the channels at 110 deg.

and those at 148 deg. are not likely to be close substitutes in the

near term and there is no evidence of synergies between the channels at

the two orbital locations. If sequential auctioning is used, the Notice

proposes to auction the channels at 110 deg. first because all of the

information available indicates that the channels at 110 deg. have the

highest value of those currently available. The Notice asks whether the

channels at 110 deg. and at 148 deg. should be offered in a different

configuration, and whether there are foreseeable circumstances in which

simultaneous auctions of DBS permits would be more appropriate than

sequential auctions. The Notice also seeks comment on any general

principles that may be used to determine the sequence of future DBS

auctions that may be held if construction permits are auctioned

sequentially.

20. The Notice tentatively concludes that multiple round bidding

would be the best method of auctioning the channels reclaimed from ACC,

because the value of the construction permits is likely to be very high

and at the same time may be somewhat uncertain. Single round sealed

bidding would be a simple method of awarding DBS construction permits,

but bidders would have to guess about the value that other bidders

place on the permits and there is a substantial risk that the party

that values a permit most highly may not submit the winning bid. The

Notice requests comment on the advantages and disadvantages of both

single round, sealed bidding and multiple round bidding as a method of

auctioning DBS permits in the future.

21. The Notice also tentatively concludes that oral outcry would be

the best method of submitting bids in the case of DBS, and that this

method should be used for the channels reclaimed from ACC. An oral

outcry auction has the advantage of being simple and rapid, and it

avoids the additional complications associated with electronic filing.

The Notice seeks comment on whether an oral outcry auction could pose

problems for bidders that need time between bidding rounds to arrange

for additional financing if bidding goes higher than anticipated. The

Notice also seeks comments on whether a combined sealed bid-oral outcry

auction may be appropriate for the channels available at 110 deg. and

148 deg. to help reduce the risk of collusion while retaining the

benefits of a multiple round auction.

C. Bidding Procedures

22. In the event multiple round auctions are used, imposing a

minimum bid increment would speed the progress of the auction and help

to ensure that the auction concludes within a reasonable period. If

oral outcry is used, the Notice tentatively concludes that the

auctioneer should have discretion to establish bid increments--and

raise or lower them in the course of an auction--consistent with

directions provided by the Commission. The Notice also asks for

suggestions as to how bid increments should be determined if bids are

submitted electronically. The Notice also proposes to establish a

minimum opening bid for the 28 channels available at 110 deg., both to

help ensure that the auction proceeds quickly and to increase the

likelihood that the public receives fair market value for the spectrum.

The Notice asks interested parties to suggest the appropriate level of

a minimum opening bid for the channels at 110 deg., and it seeks

comment on whether and how a minimum bid should be established for the

channels at 148 deg. and other channels that may become available in

the future.

D. Procedural and Payment Issues

23. The Notice proposes to apply its general procedural and payment

rules for auctions to the DBS service, along with certain modifications

discussed below. In keeping with previous practice, the Notice also

proposes that the Commission retain discretion to implement or modify

certain procedures that would be announced by Public Notice prior to

particular auctions, including rules governing the timing of

application and payment requirements and any activity and stopping

rules that may be appropriate.

24. Under the procedures proposed in the Notice, applicants for DBS

auctions would file a short-term application, FCC Form 175, with the

Commission prior to the auction in which they wish to participate. The

Notice also tentatively concludes that it would be appropriate to allow

only for manual filing of these forms for the proposed auction of

spectrum available at 110 deg. and 148 deg., because a small number of

participants is anticipated.

25. The Notice proposes that entities that would exceed proposed

spectrum caps as a result of successful bidding in the proposed

auctions should be given 90 days following the date of grant of a

construction permit won through an auction to either surrender to the

Commission their excess channels or file an application that would

result in divestiture of the excess channels.

26. The Notice proposes to require an upfront payment in all DBS

auctions to help ensure that only serious, qualified bidders

participate. The Notices seeks comment on how the size of an upfront

payment should be determined and asks whether it would be appropriate

to establish an upfront payment of five percent of the spectrum's

estimated value. The Notice further asks how the value of spectrum

should be estimated. The Notice also asks whether a single upfront

payment should qualify parties to bid on both the 110 deg. and 148 deg.

channel blocks, and, if not, what the appropriate amount of an upfront

payment would be for each of the two channel blocks. The Notice further

asks if only the winner of the first permit should be required to

submit an additional upfront payment if it wishes to bid on the second

permit. With respect to the collection of upfront payments, the Notice

proposes that prospective bidders deposit their payments in the

Commission's lock-box bank by a date certain that would allow the

Commission sufficient time to verify the availability of the funds

before the

[[Page 55826]]

auction. The Notice tentatively concludes that such a procedure would

minimize the risk of defaults that could force the reauctioning of

spectrum and asks for comment on alternative collection methods.

27. The Notice also proposes that every DBS auction winner should

be required to submit to the Commission an amount sufficient to bring

its total deposit up to 20 percent of its winning bid within 10

business days of the announcement of winning bidders. By the same

deadline, winning bidders would be required to file information in

conformance with Part 100 of the Commission's Rules and a signed

statement describing their efforts to date and future plans to come

into compliance with the proposed spectrum caps. In addition, the

Notice proposes that winning bidders be required to submit the balance

of their winning bid within five business days of an announcement that

the Commission had dismissed or denied any and all petitions to deny.

Under this proposal, if a winning bidder failed to submit the balance

of the winning bid or the permit was otherwise denied, a default

payment would be assessed.

28. If oral outcry auctions are used, the Notice proposes to rely

on default payments to deter insincere bidding and provide an incentive

for bidders wishing to withdraw their bids to do so before bidding

ceases. Under this proposal, a default payment would be assessed if a

winning bidder fails to pay the full amount of its 20 percent down

payment or the balance of its winning bid in a timely manner, or is

disqualified after the close of an auction. The Notice proposes that

the amount of such a default payment should be equal to the difference

between the defaulting auction winner's ``winning'' bid and the amount

of the winning bid the next time the license is offered for auction by

the Commission, if the latter bid is lower. In addition, the defaulting

auction winner would be required to submit a payment of three percent

of the subsequent winning bid or three percent of its own ``winning''

bid, whichever is less.

29. If single round, sealed bid auctions for DBS used, the item

proposes to require no payments for withdrawing a bid (1) before the

bids are opened, or (2) after bids are opened but before the high

bidder has been notified. However, a payment equal to the difference

between the high bid and the next highest bid would be required of any

party that defaults after being notified that it has submitted the high

bid in a sealed bid DBS auction.

E. Regulatory Safeguards

30. The Notice proposes that any entity that acquires a DBS

authorization through competitive bidding, and seeks to transfer that

authorization within six years of the initial license grant, would be

required to file, together with its application for FCC consent, the

associated contracts for sale, option agreements, management

agreements, or other documents disclosing the total consideration

received in return for the transfer of its authorization.

31. The Notice tentatively concludes that the performance

requirements proposed as part of the DBS service rules are sufficient

to achieve the statutory goals of ensuring prompt delivery of service

to rural areas, preventing the stockpiling of spectrum, and promoting

investment in and rapid deployment of new services, and that it is

unnecessary to adopt any further performance rules in connection with

the proposed auction procedures.

32. Consistent with the Commission's general practice, the Notice

proposes that bidders be required to identify on their short-form

applications any parties with whom they have entered into any

consortium arrangements, joint ventures, partnerships or other

agreements or understandings which relate in any way to the competitive

bidding process. Bidders also would be required to certify on their

short-form applications that they have not entered into any explicit or

implicit agreements, arrangements or understandings of any kind with

any parties, other than those identified, regarding the amount of their

bid, bidding strategies or the particular properties on which they will

or will not bid.

33. The Notice further proposes to require winning bidders to

submit a detailed explanation of the terms and conditions and parties

involved in any bidding consortia, joint venture, partnership or other

agreement or arrangement they have entered into relating to the

competitive bidding process prior to the close of bidding. After short-

form applications are filed, and prior to the time the winning bidder

has submitted its lump-sum payment of the balance of its bid, all

applicants would be prohibited from cooperating, collaborating,

discussing or disclosing in any manner the substance of their bids of

bidding strategies with other applicants for licenses serving the same

or overlapping geographical areas, unless such bidders were members of

a bidding consortium or other joint bidding arrangement identified on

the bidder's short-form application. Applicants would nonetheless be

allowed to (1) modify their short-form applications to reflect

formation of consortia or changes in ownership at any time before or

during an auction, provided that such changes would not result in a

change in control of the applicant, and provided that the parties

forming consortia or entering into ownership agreements have not

applied for licenses for channels that may be used to cover the same or

overlapping geographical areas; and (2) make agreements to bid jointly

for licenses after the filing of short-form applications, provided that

the parties to the agreement have not applied for licenses that may be

used to serve the same or overlapping geographical areas. Under the

proposal, the holder of a non-controlling attributable interest in an

entity submitting a short-form application would be allowed to acquire

an ownership interest in, form a consortium with, or enter into a joint

bidding arrangement with other applicants for licenses that may be used

to serve the same or overlapping geographical areas after the filing of

short-form applications, provided that (1) the attributable interest

holder certifies to the Commission that it has not communicated and

will not communicate with any party concerning the bids or bidding

strategies of more than one of the applicants in which it holds an

attributable interest, or with which it has a consortium or joint

bidding arrangement, and which have applied for licenses that may be

used to serve the same or overlapping geographical areas, and (2) the

arrangements do not result in any change in control of an applicant.

F. Designated Entities

34. Because of the extremely high implementation costs associated

with satellite-based services, the Notice tentatively concludes that no

special provisions should be made for designated entities for the

channels currently available at 110 deg. and 148 deg.. The Notice seeks

comment on whether special provisions should be made for designated

entities in future DBS auctions, and requests comment on whether future

auctions of smaller blocks of DBS spectrum or technological advances in

the delivery of DBS service might reduce capital requirement barriers

for designated entities.

Paperwork Reduction Act

This Notice contains modified information collections. The

Commission, as part of its continuing effort to reduce paperwork

burdens, invites the general public and the Office of Management and

Budget (``OMB'') to

[[Page 55827]]

comment on the information collections contained in this Notice, as

required by the Paperwork Reduction Act of 1995, Pub. L. No. 104-13.

Public and agency comments are due at the same time as other comments

on this Notice; OMB comments are due 60 days from date of publication

of this Notice in the Federal Register. Comments should address: (a)

Whether the proposed collection of information is necessary for the

proper performance of the functions of the Commission, including

whether the information shall have practical utility; (b) the accuracy

of the Commission's burden estimates; (c) ways to enhance the quality,

utility, and clarity of the information collected; and (d) ways to

minimize the burden of the collection of information on the

respondents, including the use of automated collection techniques or

other forms of information technology.

47 CFR Part 100

OMB Approval Number: None.

Title: Direct Broadcast Satellite Service.

Form No.: None.

Type of Review: Approval of existing collection.

Respondents: Businesses or other for profit.

Number of Respondents: 8.

Estimated Time Per Response: 400 hours.

Total Annual Burden: 3200 hours.

Needs and Uses: In accordance with the Communications Act, the

information collected will be used by the Commission in granting DBS

authorizations, and in determining the technical, legal, and financial

qualifications of a satellite applicant, permittee or licensee.

Existing information collection requirements are set forth in Part 100

of the Commission's Rules and in Commission orders. See e.g., Inquiry

Into the Development of Regulatory Policy in Regard to Direct Broadcast

Satellites for the Period Following the 1983 Regional Administrative

Radio Conference. 90 FCC 2d 676 (1982), recon. denied, 53 RR 2d 1637

(1983); CBS, Inc., 98 FCC 2d 1056 (1983); Tempo Enterprises, Inc., 1

FCC Rcd 20, 21 (1986), United States Satellite Broadcasting Co., 3 FCC

Rcd 6858, 6861-62 (1988).

Under the existing information collection requirements in the

Commission's Rules, an entity awarded a DBS Authorization would be

required to submit the information required pursuant to 47 CFR 100.13,

100.19, 100.21, 100.51. The Commission proposed to require that DBS

auction winners submit: (1) Ownership information to determine

compliance with Parts 1 and 100 of the Commission's Rules; (2) a

statement describing their efforts to comply with the proposed spectrum

aggregation limitations; (3) an explanation of the terms and conditions

and parties involved in any bidding consortia, joint venture,

partnership, or other agreement or arrangement they enter into relating

to the competitive bidding process prior to the close of bidding; and

(4) any agreements or contracts pertaining to the transfer of the DBS

authorization acquired through auction during the six years following

grant of the authorization.

Ordering Clauses

Accordingly, It is Ordered that, pursuant to Sections 1, 4(i),

4(j), 7, and 309(j) of the Communications Act of 1934, as amended, 47

U.S.C. 151, 154(i), 154(j), 157, and 309(j), Notice is Hereby Given of

the proposed amendments to Part 100 of the Commission's Rules, 47 CFR

Part 100, in accordance with the proposals in this Notice of Proposed

Rulemaking, and that Comment is Sought regarding such proposals.

It is Further Ordered that the Secretary shall send a copy of this

Notice of Proposed Rulemaking, including the Initial Regulatory

Flexibility Analysis, to the Chief Counsel for Advocacy of the Small

Business Administration in accordance with paragraph 603(a) of the

Regulatory Flexibility Act, 5 U.S.C. Sec. 601 et seq.

Administrative Matters

This is a non-restricted notice and comment rulemaking proceeding.

Ex parte presentations are permitted, except during the Sunshine Agenda

period, provided they are disclosed as provided in Commission rules.

See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).

Pursuant to applicable procedures set forth in Sections 1.415 and

1.419 of the Commission's Rules, 47 CFR 1.415 and 1.419, interested

parties may file comments on or before November 20, 1995 and reply

comments on or before November 30, 1995. To file formally in this

proceeding, you must file an original and five copies of all comments,

reply comments, and supporting comments. If you want each Commissioner

to receive a personal copy of your comments send additional copies to

Office of the Secretary, Federal Communications Commission, Washington,

DC 20554. Comments and reply comments will be available for public

inspection during regular business hours in the Federal Communications

Commission, Reference Center, Room 239, 1919 M Street, NW. Washington,

DC 20554. For further information concerning this rulemaking contact

Paula Ford at (202)739-0733.

Initial Regulatory Flexibility Act Statement

As required by Section 603 of the Regulatory Flexibility Act, the

Commission has prepared an Initial Regulatory Flexibility Analysis

(``IRFA'') of the expected impact on small entities of the proposals

suggested in this document. The IRFA is set forth in Appendix A of the

Notice and is not published in the Federal Register. Written public

comments are requested on the IRFA. These comments must be filed in

accordance with the same filing deadlines as comments on the rest of

the Notice, but they must have a separate and distinct heading

designating them as responses to the Initial Regulatory Flexibility

Analysis.

List of Subjects in 47 CFR Part 100

Radio, Satellites.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 95-27346 Filed 11-2-95; 8:45 am]

BILLING CODE 6712-01-M