[Federal Register Volume 63, Number 214 (Thursday, November 5, 1998)] [Proposed Rules] [Pages 59755-59758] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-29572] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Chapter I [IB Docket No. 98-192, FCC 98-280] Direct Access to the INTELSAT System AGENCY: Federal Communications Commission. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Commission is seeking comment on the legal, economic, and policy ramifications of permitting direct access to the INTELSAT system in the United States. Direct access to INTELSAT would enable U.S. carriers and users to obtain space segment capacity directly from INTELSAT rather than through Comsat, the U.S. Signatory to INTELSAT. The Commission tentatively concludes that the Communications Satellite Act of 1962 and the Communications Act give it discretion to permit U.S. carriers and users the option of obtaining contractual, or Level 3, direct access to the INTELSAT system. The Commission does not, however, reach tentative conclusions as to whether and under what circumstances the Commission may permit direct access. On this issue, the Commission is seeking comments on: What are the potential benefits of direct access?; what competitive concerns are raised by direct access?; how would direct access affect U.S. efforts to privatize INTELSAT? DATES: Comments must be submitted on or before December 18, 1998; reply comments must be submitted on or before January 8, 1999. ADDRESSES: Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, D.C. 20554. Also, comments should also be filed with: Kathleen A. Campbell, International Bureau, 2000 M Street, N.W., Suite 800, Washington, D.C. 20554. FOR FURTHER INFORMATION CONTACT: Jim Ball at (202) 418-0427 or Sande Taxali at (202) 418-7586. SUPPLEMENTARY INFORMATION: This is a summary of the commission's Notice of Proposed Rulemaking in IB Docket No. 98-192; FCC 98-280, adopted October 22, 1998 and released October 28, 1998. The complete text of this Notice of Proposed Rulemaking 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, 1231 20th Street, N.W., Washington, DC 20036, phone: (202) 857-3800, fax: (202) 857-3805. To file formally in this proceeding, comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings (63 FR 24121, May 1, 1998). Comments filed through the ECFS can be sent as an electronic file via the Internet to <http://www.fcc.gov/ [[Page 59756]] ecfs.html>. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to [email protected], and should include the following words in the body of the message, ``get form.'' A sample form and directions will be sent in reply. Parties may also choose to file comments by paper. To file by paper, parties must file an original and four copies of each filing. If more than one docket or rulemaking number appear in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, D.C. 20554. Paper filings will be received at a designated counter located at TW-A325 in the 12th street lobby. In addition, comments should be filed with: Kathleen A. Campbell, International Bureau, 2000 M Street, N.W., Suite 800, Washington, D.C. 20554. The Commission expects to complete its relocation to The Portals within the next six months. During the transition period, paper filings also will be accepted at 1919 M Street, NW, Room 222, but only between the hours of 4:00pm to 5:30pm. Summary of Notice of Proposed Rulemaking 1. On April 29, 1998, the Commission granted Comsat's petition for reclassification as a non-dominant carrier in competitive product markets and denied its petition for reclassification in non-competitive product markets.1 For non-competitive markets where Comsat remains dominant the Commission denied Comsat's request for forbearance under Section 10 of the Communications Act. The Commission stated it would consider favorably in its analysis of any forbearance request certain actions that Comsat might undertake to promote competitive market conditions, including, for example, the provision of direct access and a waiver of privileges and immunities. The Commission said that it would expeditiously initiate a proceeding to explore the legal, economic, and policy ramifications of direct access. --------------------------------------------------------------------------- \1\ Comsat Corporation Petition pursuant to Section 10(c) of the Communications Act of 1939, as amended, for forbearance from Dominant Carrier Regulation and for Reclassification as a Non- Dominant Carrier, Comsat Non-Dominant Order, and Notice of Proposed Rulemaking, FCC 98-78, (released April 28, 1998) (Comsat Non- Dominant Order). --------------------------------------------------------------------------- 2. The Commission previously considered direct access to the INTELSAT system in 1984.2 At that time, the Commission concluded that the specific direct access alternatives then under consideration would result in little savings to end users and would not be in the public interest. The Commission did, however, indicate that it would be amenable to reconsider the issue of direct access at a future date. --------------------------------------------------------------------------- \2\ Regulatory Policies Concerning Direct Access to INTELSAT Space Segment for the U.S. International Service Carriers (1984 Direct Access Order) 97 FCC 2d 296 (1984), Western Union International, Inc. v FCC 814 F.2d 1280 (D.C. Cir. 1986). --------------------------------------------------------------------------- 3. Beginning in 1992, INTELSAT developed procedures for non- Signatory carriers and users to obtain space segment capacity directly from INTELSAT rather than through Signatories. INTELSAT now offers to non-Signatories four types or ``levels'' of direct access. The first two levels involve access to information.3 The third and fourth levels involve access to communication services: (a) Level 3 direct access permits a customer to enter into a contractual agreement with INTELSAT for ordering, receiving and paying for INTELSAT space segment capacity at the same rate that INTELSAT charges its Signatories; and (b) Level 4 direct access permits a customer to make a capital investment in INTELSAT in proportion to its customers' utilization of the INTELSAT system at INTELSAT tariff rates. --------------------------------------------------------------------------- \3\ Level 1 direct access permits a customer to receive operational and technical information and attend global traffic meetings as an operations representative. Level 2 direct access permits a customer to meet with INTELSAT management and staff regarding capacity availability, commercial and INTELSAT tariff matters. --------------------------------------------------------------------------- 4. For both Level 3 and Level 4 direct access, a customer is required to enter into a service agreement with INTELSAT that sets forth the general terms and conditions for INTELSAT supply of its space segment capacity. So long as the service agreement remains in effect, a customer is able to access INTELSAT space segment directly. Level 3 customers would benefit from INTELSAT rates lower than Signatory ``marked up'' rates, and would have no investment obligations in the system. A Signatory permitting Level 3 direct access, however, will earn a return on its investment in space segment capacity used by a Level 3 customer (currently up to 21 percent as established by the INTELSAT Board of Governors).4 A Level 4 customer undertakes all of the financial obligations under the INTELSAT Operating Agreement that are applicable to Signatories and thus is entitled to earn on its investment (but is not entitled to participate in the INTELSAT governance process absent special arrangements with the Party and Signatory of its country). --------------------------------------------------------------------------- \4\ Under the INTELSAT Operating Agreement, the Board of Governors establishes a target rate of compensation (return) on shareholders (Signatories) invested capital. All shareholders are entitled to the target rate of return. See INTELSAT Operating Agreement, Article 8; See also INTELSAT Annual Report, 1996, ``Report of Independent Public Accountants, Arthur Anderson LLP'' at p. 36. --------------------------------------------------------------------------- 5. INTELSAT offers direct access only in countries where it is authorized by the Signatory. Currently 94 countries permit either Level 3 or Level 4 direct access. Seventy-six countries permit contractual Level 3 direct access and 18 countries permit Level 4 direct access to INTELSAT. Comsat has not authorized direct access in the United States. 6. The Commission tentatively concludes that the Commission has authority under the Communications Satellite Act of 1962 to permit Level 3 direct access but not level 4 direct access. The Satellite Act requires Comsat to be the sole U.S. participant in INTELSAT. This requirement is satisfied under Level 3 direct access because Comsat continues to be the only U.S. investor in INTELSAT and the only U.S. representative within the governing bodies of INTELSAT. This requirement is not satisfied under Level 4 direct access which would involve investment in INTELSAT by U.S. direct access customers. Further, nothing in the Satellite Act requires Comsat to be the only provider of INTELSAT services in the U.S. and the Commission tentatively concludes that the Satellite Act gives the Commission discretion to mandate Level 3 direct access. The Commission tentatively concludes that permitting level 3 direct access would not violate the Fifth Amendment to the Constitution. The Commission seeks comment on these tentative conclusions and corresponding analysis. 7. The Commission does not reach tentative conclusions as to whether and under what circumstances it may permit direct access in the United States. The Commission seeks comment on (1) What are the potential benefits of direct [[Page 59757]] access? (2) what competitive concerns are raised by direct access? and (3) how would direct access affect efforts to privatize INTELSAT? 8. On the issue of potential benefits of direct access, the Commission compared the differences between prices Comsat offers to customers and services providers and INTELSAT tariffs, the latter which reflect substantially lower prices in most instances. It noted the potential for greater customer choice and cost savings from direct access. It requests comment on the desirability of allowing direct access to INTELSAT with respect to all product and geographic markets including those markets that are competitive and for which Comsat is non-dominant. The Commission requests comments on whether direct access to all markets would further increase the level of competition to the extent that prices to consumers would be likely to fall, even in competitive markets. The Commission also requests, however, comment on whether Comsat would be able to recover its costs under a Level 3 direct access scheme and asks whether Comsat, as a matter of law and policy, must be allowed to recoup its costs and the Commission requests comment on whether circumstances have changed since the Commission's 1984 Direct Access Order. Further, it asks carriers seeking direct access to comment on how cost savings would be passed on to their customers. 9. Finally, on the question of competitive concerns, the Commission asks for comment on whether permitting direct access in the United States would result in a concentration of control of cable and satellite facilities by U.S. carriers, and whether INTELSAT should be allowed to compete in the U.S. market free from FCC jurisdiction over rates and under cover of immunity from suit and process. As to INTELSAT privatization, the Commission requests comment on whether permitting direct access in the U.S. will reinforce U.S. efforts to promote competition and privatize INTELSAT. The Commission noted that, in the Comsat Non-Dominant Order, it determined that Level 3 direct access would neither dilute Comsat's voting power on the INTELSAT Board of Governors nor give direct access customers any right to participate in the INTELSAT governance process. The Commission, therefore, then found no basis to find that direct access would undermine U.S. efforts to privatize INTELSAT in a pro-competitive manner. Administrative Matters 10. 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 the Commission's rules. See generally 47 CFR 1.1202, 1.203 and 1.206(a). The Sunshine Agenda period is the period of time that commences with the release of public notice that a matter has been placed on the Sunshine Agenda and terminates when the Commission (1) releases the text of a decision or order in the matter, (2) issues a public notice stating that the matter has been deleted from the Sunshine Agenda; or (3) issues a public notice stating that the matter has been returned to the staff for further consideration, whichever occurs first 47 CFR 1.202(f). During the Sunshine Agenda period, no presentations, ex parte or otherwise, are permitted unless specifically exempted (47 CFR 1.203. Pursuant to applicable procedures set forth in Secs. 1.415 and 1.419 of the Commission's Rules, interested parties may file comments on or before December 18, 1998 and reply comments on or before January 8, 1999. 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, 445 12th Street, SW., 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 Jim Ball at (202) 418-0427 or Sande Taxali at (202) 418-7586. Initial Regulatory Flexibility Analysis 11. As required by the Regulatory Flexibility Act, (``RFA''), 5 the Commission has prepared an Initial Regulatory Flexibility Analysis (``IRFA'') of the expected significant economic impact on small entities by the rules proposed in this Notice of Proposed Rulemaking (``NPRM''). Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments set forth in paragraph 65 of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. Sec. 603(a). --------------------------------------------------------------------------- \5\ See 5 U.S.C. Sec. 603. The RFA, see 5 U.S.C. Sec. 601 et seq., has been amended by the Contract with America Advancement Act of 1996, Public L. 104-121, 110 Stat. 847 (1996) (``CWAAA''). Title II of the CWAAA is The Small Business Regulatory Enforcement Fairness Act of 1996. --------------------------------------------------------------------------- Need for, and Objectives of, the Proposed Rules 12. The purposes of the NPRM are to initiate a notice and comment proceeding that explores the legal, economic and policy ramifications of permitting direct access to the INTELSAT 6 system in the United States and to propose rules for permitting U.S. carriers and users to obtain non-discriminatory direct access to INTELSAT's satellites. ``Direct access'' is a term used to refer to the means by which users of the INTELSAT satellite system obtain service directly from INTELSAT rather than through INTELSAT's Signatories. --------------------------------------------------------------------------- \6\ INTELSAT is an acronym for the International Telecommunications Satellite Organization. --------------------------------------------------------------------------- 13. The NPRM tentatively concludes that (a) the Commission has authority under applicable statutes to permit U.S. carriers and users to obtain services from INTELSAT directly at the same rates that INTELSAT charges its Signatories; and (b) direct access presents the opportunity to introduce competition in markets where competition does not exist and enhance competition in markets where it does exist. Consistent with these tentative conclusions, the NPRM proposes rules that would permit U.S. carriers and users to obtain direct access to INTELSAT. The NPRM invites interested parties to comment on these tentative conclusions and related proposed rules. If commenters believe that the proposed rules discussed in the NPRM require additional RFA analysis, they should include a discussion of this in their comments. Legal Basis 14. The authority for the NPRM is the Administrative Procedure Act, 5 U.S.C. 553; and sections 4(i) and 201(b) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and 201(b), and sections 201(c)(5) and (c)(11) of the Communications Satellite Act of 1962, 47 U.S.C. 721(c)(5), (c)(11) and 741. 15. Description and Estimate of the Number of Small Entities to Which Proposed Rule Will Apply Under the Small Business Act, a ``small business concern'' is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; (3) meets any additional criteria [[Page 59758]] established by the Small Business Administration.7 --------------------------------------------------------------------------- \7\ See 15 U.S.C. 632. --------------------------------------------------------------------------- 16. The Commission has not developed a definition of small entities applicable to satellite service licensees. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (``SBA'') rules applicable to Communications Services ``Not Elsewhere Classified.'' This definition provides that a small entity is one with $11 million or less in annual receipts.8 --------------------------------------------------------------------------- \8\ 13 CFR 121.201, Standard Industrial Classification (SIC) Code 4899. --------------------------------------------------------------------------- 17. If the Commission adopts the proposed rules permitting U.S. carriers and users to obtain direct access to INTELSAT, the Commission would require Comsat Corporation (``Comsat'') to take appropriate actions within INTELSAT to give effect to these rules. Comsat's 1996 revenues were in excess of $11 million. Thus, Comsat does not qualify as a small entity under the SBA's definition. U.S. carriers and users that may benefit from the Commission's adoption of the proposed rules, may include small entities that offer communications services. According to the SBA, the Census Bureau estimates that there are approximately 848 entities providing communications services, not elsewhere classified. Of those, approximately 775 reported annual receipts of less than $9.999 million or less and would qualify as small entities subject to the proposed rules.9 More precise data is not available. --------------------------------------------------------------------------- \9\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992 Census of Transportation, Communications, and Utilities, UC92-S-1, Subject Series, Establishment and Firm Size, Table D, Employment Size of Firms: 1992, SIC Code 4899 (May 1995). --------------------------------------------------------------------------- Description of Projected Reporting, Recordkeeping or Other Compliance Requirements 18. The proposals in the NPRM are not expected to result in any additional reporting, recordkeeping and other compliance. Steps Taken To Minimize Significant Economic Burden on Small Entities, and Significant Alternatives Considered 19. The NPRM considers two alternatives for U.S. carriers and users to obtain direct access to INTELSAT: Level 3 direct access and Level 4 direct access. Level 3 direct access permits a customer to enter into a contractual agreement with INTELSAT for ordering, receiving and paying for INTELSAT space segment capacity at the same rate that INTELSAT charges its Signatories. Level 4 direct access permits a customer to make a capital investment in INTELSAT in proportion to its customers' utilization of the INTELSAT system at INTELSAT tariff rates. The NPRM proposes rules that would permit U.S. carriers and users to obtain Level 3 direct access to INTELSAT. The NPRM does not propose a rule permitting Level 4 direct access to INTELSAT because the NPRM tentatively concludes that such a rule would contravene the requirement under the Communications Satellite Act of 1962 that Comsat be the sole U.S. participant in INTELSAT. The proposed rules would permit small entities to obtain Level 3 direct access to INTELSAT, however, as a Level 3 direct access customer of INTELSAT, such small entities would not be required to undertake any of the financial obligations or be entitled to participate in the INTELSAT governance process as are Signatories. We believe that the proposed rules will permit authorized carriers and users, including small entities, to benefit from direct access through greater choice and lower rates in connection with use of the INTELSAT system and we seek comment on these and other benefits that may result from direct access. We recognize that other issues not raised in the NPRM may be significant to carriers and users, including small entities, and we also request comment on issues relating to direct access that are not raised in the NPRM. We do not expect the proposed rules to cause any economic burden to small entities, and seek comment on any issues pertinent to this. Federal Rules That Overlap, Duplicate, or Conflict With These Proposed Rules 20. None. Ordering Clauses 21. Accordingly, it is ordered that pursuant to the authority contained in sections 4(i), 4(j) 201, 214, 301 et seq., and 403, and sections 201(c)(5) and (c)(11) and 401 of the Communications Satellite Act of 1962, 47 U.S.C. 721(c)(5) and (c)(11) and 741 of the applicable procedures set forth in sections 1.415 and 1.3-419 of the Commission's rules, 47 CFR 1.415 and 1.419 that this Notice of Proposed Rulemaking is hereby adopted. 22. It is further ordered that interested parties may comment until December 18, 1998 and file reply comments until January 8, 1999. 23. It is further ordered that the Commission's Office of Public Affairs Reference Operations Division shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Magalie Roman Salas, Secretary. [FR Doc. 98-29572 Filed 11-4-98; 8:45 am] BILLING CODE 6712-01-P