Assessment and Collection of Regulatory Fees for Fiscal Year 1997

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[MD Docket No. 96-186; FCC 97-254]

Assessment and Collection of Regulatory Fees for Fiscal Year 1997

AGENCY: Federal Communications Commission.

ACTION: Further notice of proposed rulemaking.

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SUMMARY: On June 26, 1997, the Commission released a Report and Order

that revised its Schedule of Regulatory Fees in order to recover the

amount of regulatory fees that Congress, pursuant to Section 9(a) of

the Communications Act, as amended, has required it to collect for

Fiscal Year (FY) 1997. See 47 U.S.C. 159 (a). The intended effect of

this action is to seek further comments concerning our proposals to

require Commercial Mobile Radio Service (CMRS) licensees to maintain

and make available to the Commission within 30 days, upon request by

the Managing Director, pursuant to delegated authority, documentation

concerning the basis for their fee payment; require that non-profit

entities exempt from the regulatory fee requirement because of

possessing either non-profit status under Sec. 501 of the Internal

Revenue Code, 26 U.S.C. 501, or certification as a non-profit

corporation or other non-profit entity by state or other governmental

authority submit documentation of their non-profit status; and publish

annually in the Federal Register lists of those commercial

communications firms and

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businesses who have paid a regulatory fee for the preceding fiscal year

(except licensees for vanity call signs in the amateur service or any

other licensees that pay their regulatory fee at the same time the

application is paid).

DATES: Written comments are due: August 14, 1997. Comments regarding

Paperwork Burden Impact: September 23, 1997.

ADDRESSES: Federal Communications Commission, Secretary's Office, Room

222, 1919 M Street, N.W., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Regina W. Dorsey, Office of the

Managing Director at (202) 418-1995.

SUPPLEMENTARY INFORMATION: Adopted: July 17, 1997. Released: July

18, 1997.

1. The Commission recently completed a proceeding to revise its

Schedule of Regulatory Fees in order to recover the amount of

regulatory fees, $152,523,000, that Congress has required it to recover

for Fiscal Year (FY) 1997. See Report and Order in the Matter of

Assessment and Collection of Regulatory Fees for Fiscal Year 1997, MD

Docket No. 96-186, FCC 97-215, released June 26, 1997, 62 FR 37408

(July 11, 1997). Since the commencement of our regulatory fee program,

Congress has consistently increased the amount that we are to recover.

For FY 1997, Congress has required that we collect $152,523,000

compared with $60,000,000 that Congress required us to collect for FY

1994, the initial year of the fee program. In order to fairly and

efficiently collect the annual fees necessary to recover these

increasingly large amounts, we believe that certain changes to our

collection processes are warranted. Therefore, by this Further Notice

of Proposed Rulemaking (FNPRM), we are proposing to modify our

collection procedures for regulatory fees in order to help assure

increased accuracy and timeliness of regulatory fee payments.

2. We propose to require Commercial Mobile Radio Service (CMRS)

licensees to maintain and make available to the Commission within 30

days, upon request by the Managing Director, pursuant to delegated

authority, documentation concerning the basis for their fee payments.

Such documentation on the number of pagers, cellular telephones or PCS

units is not available in the Commission's files and is necessary in

order to assure that fee payments are accurately prepared and reliable.

3. Acceptable documentation, which we propose to require that the

filing entity retain for a period of three years, might include records

such as reports to other government agencies, billing records,

certified financial statements, or other records that demonstrate the

accuracy of the fee payment. CMRS licensees probably already prepare

such documentation for use in calculating their fee payments. Thus,

maintaining this information should constitute little, if any, burden.

Our intention is to minimize, to the fullest extent possible, any

burden on fee payers related to our proposed requirement for

documentation of the basis for fee payments. Therefore, interested

parties are specifically requested to comment upon both the nature and

extent of documentation of unit counts that would be most appropriate

for our needs.

4. In addition, we are proposing to require that non-profit

entities exempt from the regulatory fee requirement submit

documentation of their non-profit status. Section 1.1161(c) of the

Commission's rules exempts from annual regulatory fees entities

possessing either non-profit status under Sec. 501 of the Internal

Revenue Code, 26 U.S.C. 501, or certification as a nonprofit

corporation or other nonprofit entity by state or other governmental

authority. For fiscal years 1994 through 1996, we required as part of

our fee payment verification process that non-profit entities provide,

upon request, copies of their IRS determination letters or other

documentation of nonprofit status. This procedure has become unduly

burdensome as we seek to implement more efficient methods to improve

our collections systems.

5. Therefore, we are proposing to revise our procedures to require

that all exempt non-profit entities submit to us their current IRS

determination letters or other current documentation of non-profit

status. Non-profit entities need file this supporting documentation

only once. Of course, exempt entities would also be obligated to inform

us of any change in their exempt status. The time for filing

documentation of exempt status would be announced, pursuant to

authority delegated to the Managing Director, by a public notice

published in the Federal Register following completion of this

proceeding.

6. We are also requesting comment on a proposal to publish annually

in the Federal Register lists of those commercial communication firms

and businesses that have paid a regulatory fee for the preceding fiscal

year. (We would not, however, publish information concerning regulatory

fee payments by licensees for vanity call signs in the amateur radio

service or by any other licensee that pays its regulatory fee at the

same time the application fee is paid.) The information published would

include the amount of the fee paid and the volume or units upon which

the fee payments were based. This will enable fee payers to verify that

their payments have been properly recorded and to bring errors to our

attention, thereby reducing the burden on our fee payment verification

process. We intend to publish the first such list once fee payments for

FY 1997 are made and prior to our establishment of fees for FY 1998. In

connection with publication of the lists, interested parties should be

aware that, consistent with our existing rules, certain types of

proprietary information may be entitled to confidential treatment. Fee

payers who believe that they qualify should request confidentiality

when filing the relevant information. See 47 CFR 0.459; see also

Assessment and Collection of Regulatory Fees for the 1994 Fiscal Year,

Memorandum Opinion and Order on Reconsideration, MD Docket No. 94-19,

FCC 95-257, released June 22, 1995, 60 FR 34902 (July 5, 1995). All

such confidentiality requests must, of course, be fully supported and

meet all applicable legal standards. See 47 CFR 0.459(b),(c), and

0.457(2)(i).

7. Finally, we note that we could have adopted some of the above

proposals without notice and comment because they constitute procedural

changes to our regulatory fee payment collection and verification

processes and procedures. See 5 U.S.C. 553(b)(3)(a). Nevertheless, we

are requesting public comment, including comment on alternative

processes and procedures, to help assure that our actions are the most

effective available without imposing any undue burden on those subject

to the payment of a regulatory fee. 1

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\1\ As a separate matter, we are revising FCC Forms 159 and

159-C to provide a certification statement to be signed by an

individual owner or officer of the firm subject to the fee payment

stating that the fee payment filed is accurate and complete and

supported by the firm's internal accounting records.

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Procedural Matters

A. Ex Parte Rules

8. 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 pursuant to the

Commission's rules. See 47 CFR 1.1203 and 1.1206.

B. Initial Regulatory Flexibility Analysis

9. As required by the Regulatory Flexibility Act (Pub. L. 96-354,

94 Stat. 1165, 5 U.S.C. 601 et seq. (1981) (RFA),

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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 the Attachment.

Written public comments are requested with respect to the IRFA. These

comments must be filed in accordance with the same filing deadlines for

comments on the rest of the FNPRM, but they must have a separate and

distinct heading, designating the comments as responses to the IRFA.

The Commission shall send a copy of this FNPRM, including the IRFA, to

the Chief Counsel for Advocacy of the Small Business Administration in

accordance with the RFA, 5 U.S.C. Sec. 603(a).

C. Paperwork Reduction Act Compliance

Initial Paperwork Reduction Act of 1995 Analysis

10. This FNPRM contains either a proposed or modified information

collection. As part of its continuing effort to reduce paperwork

burdens, we invite the general public to take this opportunity to

comment on the information collections contained in this FNPRM, as

required by the Paperwork Reduction Act of 1995, Pub. L. 104-13. Public

and agency comments are due at the same time as other comments on this

FNPRM. 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.

11. Written comments by the public on the proposed and/or modified

information collections are due September 23, 1997. Written comments

must be submitted to the Office of Management and Budget (OMB) on the

proposed and/or modified information collections on or before 60 days

after date of publication in the Federal Register. In addition to

filing comments with the Secretary, a copy of any comments on the

information collections contained herein should be submitted to Judy

Boley, Federal Communications Commission, Room 234, 1919 M Street,

N.W., Washington, DC 20554, or via the Internet to [email protected] and

to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725--17th Street, N.W.,

Washington, DC 20503 or via the Internet to [email protected].

12. For additional information concerning the information

collections contained in this FNPRM contact Judy Boley at 202-418-0214,

or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION:

OMB Approval Number: None.

Title: Assessment and Collection of Regulatory Fees for Fiscal Year

1997.

Form No.: None.

Type of Review: New Collection.

Respondents: Business or other for profit; individuals or

households; not for profit institutions.

Number of Respondents: To be determined.

Estimated Time Per Response: To be determined.

Total Annual Burden: To be determined.

Needs and Uses: The Commission will require CMRS licensees to

maintain, and make available upon request, documentation concerning the

basis for their fee payments. Non-profit entities, exempt from

regulatory fee requirements, will be required to submit, on a one-time

basis, copies of their IRS determination letters or other documentation

of non-profit status. This information is needed to ensure that the

Commission is collecting the appropriate regulatory fees, as directed

by Congress.

D. Authority and Further Information

13. Accordingly, it is ordered that, pursuant to authority in

Secs. 4(i) and (j), 9, and 303(r) of the Communications Act of 1934, as

amended, 47 U.S.C. Sec. 154(i) and (j), 159, and 303(r) and procedures

set forth in Secs. 1.415(b) and 1.419 of the Commission's Rules, 47 CFR

1.415(6), 1.419, interested parties may file comments on or before

August 14, 1997. All relevant comments will be considered by the

Commission before final action is taken in this proceeding. To file

formally in this proceeding, participants must file an original and

four copies of all comments and supporting materials. If participants

want each Commissioner to receive a personal copy of their comments, an

original and nine copies must be filed. Comments should be sent to the

Office of Secretary, Federal Communications Commission, Washington,

D.C. 20554. Interested parties who do not wish to formally participate

in this proceeding, may file informal comments at the same address.

Comments will be available for public inspection during regular

business hours, in the FCC Reference Room, Room 239, 1919 M St., N.W.

20554.

14. It is further Ordered that a copy of this further notice of

proposed rulemaking, including the IRFA herein, will be sent to the

Chief Counsel for Advocacy of the Small Business Administration, in

accordance with the Regulatory Flexibility Act, 5 U.S.C. 603(a).

15. Further information about this proceeding may be obtained by

contacting Martha Contee at (202) 418-0260.

Initial Regulatory Flexibility Analysis

16. Pursuant to the Regulatory Flexibility Act (RFA), the

Commission has prepared the following Initial Regulatory Flexibility

Analysis (IRFA) of the expected significant economic impact on small

entities of the policies and rules in this Further Notice of Proposed

Rulemaking (FNPRM). 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 FNPRM, and should have a

separate and distinct heading designating them as responses to the

IRFA. The Commission shall send a copy of this FNPRM, including the

IRFA, to the Chief Counsel for Advocacy of the Small Business

Administration in accordance with the RFA, 5 U.S.C. 603(a).

17. Need for and Objectives of the Proposed Rules. We are proposing

to modify our collection procedures for regulatory fees in order to

help assure increased accuracy and timeliness of regulatory fee

payments. We seek comment on these proposals.

18. Legal Basis. The proposed action is authorized under Sec. 4(i)

and(j), 9, and 303(r) of the Communications Act of 1934, as amended, 47

U.S.C. 154(i) and (j), 159, and 303(r).

19. Description and Estimate of the Number of Small Entities To

Which the Proposed Rules Will Apply. Under the RFA, small entities may

include small organizations, small businesses, and small governmental

jurisdictions. 5 U.S.C. 601(6). The RFA, 5 U.S.C. 601(3), generally

defines the term ``small business'' as having the same meaning as the

term ``small business concern'' under the Small Business Act, 15 U.S.C.

632. A small business concern is one that: (1) Is independently owned

and operated; (2) is not dominant in its field of operation; and (3)

meets any additional criteria established by the Small Business

Administration (SBA).

20. The proposals in this FNPRM would potentially affect a very

broad array of small entities, including small entities described as

cable services or

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systems, common carrier services and related entities, international

services, mass media services, and wireless and commercial mobile

services. In the companion rulemaking document to this FNPRM--the

Report and Order in this present docket, very recently released--we

have extensively described the small entities that might be affected by

this action, and have also described the numbers of such entities. (See

``Final Regulatory Flexibility Analysis,'' Attachment A of Report and

Order, MD Docket No. 96-186, FCC 97-215, released June 26, 1997, 62 FR

37408 (July 11, 1997).) We hereby incorporate into this IRFA, by

reference, those descriptive sections from the Report and Order.

21. Description of Projected Reporting, Recordkeeping, and Other

Compliance Requirements. With certain exceptions, the Commission's

Schedule of Regulatory Fees applies to all Commission licensees and

regulatees. In the companion Report and Order to this FNPRM and in the

Commission's Rules, we have described the methodology used by affected

entities to determine required fee amounts, the procedures for

calculating and filing fee payments, the skills necessary to file, and

the results of not filing in accordance with the rules. (See Report and

Order, Attachment H and Secs. 1.1157 through 1.1167 of the Commission's

Rules, 47 CFR 1.1157 through 1.1167.) We hereby incorporate into this

IRFA, by reference, those descriptions. In addition, we note that the

present proposals, if adopted, would require Commercial Mobile Radio

Service (CMRS) licensees to maintain and make available to the FCC

within 30 days of request, documentation concerning the basis for their

fee payments and that these documents be retained by the payer for

three years; would require that non-profit entities exempt from the

regulatory fee requirement submit documentation of their non-profit

status; and would direct the Commission to publish annually, in the

Federal Register, a list of those firms and individuals who paid a fee

for the preceding fiscal year and who engaged in the provision of

communications for commercial purposes, along with the amount of the

fee paid, and the volume or units upon which the fee payments were

based. We seek comment on these proposals.

22. Steps taken to minimize any significant economic impact on

small entities, and significant alternatives considered and rejected.

As described in the paragraph immediately above, the Commission is

proposing certain modifications to the collection procedures for

regulatory fees in order to help assure increased accuracy and

timeliness of regulatory fee payments. Each of the above-described

proposals that require compliance would entail some level of economic

impact, and this impact would fall on some small entities. We believe,

however, that these proposals, if adopted, would help ensure the

integrity of the regulatory fees program. We seek comment on any

possible alternatives that might lessen the economic impact on small

entities while still furthering the goals of this proceeding.

23. Federal rules that may duplicate, overlap, or conflict with the

proposed rules. We are aware of no rules that may duplicate, overlap,

or conflict with the proposed rules. We seek comment on this

conclusion.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97-19657 Filed 7-24-97; 8:45 am]

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