[Federal Register: February 7, 2005 (Volume 70, Number 24)]
[Rules and Regulations]
[Page 6365-6373]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07fe05-20]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket No. 02-60; FCC 04-289]
Rural Health Care Support Mechanism
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition for reconsideration.
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SUMMARY: In this document, we modify our rules to improve the
effectiveness of the rural health care universal service support
mechanism. Specifically, in this Report and Order, we change the
Commission's definition of rural for the purposes of the rural health
care support mechanism because the definition currently used by the
Commission is no longer being updated with new Census Bureau data. We
also revise our rules to expand funding for mobile rural health care
services by subsidizing the difference between the rate for satellite
service and the rate for an urban wireline service with a similar
bandwidth. On reconsideration, we permit rural health care providers in
states that are entirely rural, such as American Samoa, to receive
support for advanced telecommunications and information services under
section 254(h)(2)(A).
DATES: Effective April 8, 2005 except for Sec. Sec. 54.609(e) and
54.621(c) which contain information collection requirements that have
not been approved by the Office of Management Budget (OMB). The
Commission will publish a document in the Federal Register announcing
the effective date of those sections.
FOR FURTHER INFORMATION CONTACT: Regina Brown at (202) 418-0792 or Dana
Bradford at (202) 418-1932, Wireline Competition Bureau,
Telecommunications Access Policy Division, TTY (202) 418-0484.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, and Order on Reconsideration, in WC Docket No. 02-60
released on December 17, 2004. The full text of this document is
available for public inspection during regular business hours in the
FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington,
DC 20554. A companion Further Notice of Proposed Rulemaking in WC
Docket No. 02-60 was also released on December 17, 2004.
I. Introduction
1. In this Report and Order and Order on Reconsideration (Second
Report and Order), we modify our rules to improve the effectiveness of
the rural health care universal service support mechanism. The
mechanism provides discounts to rural health care providers to access
modern telecommunications for medical and health maintenance purposes.
Specifically, in this Second Report and
[[Page 6366]]
Order, we change the Commission's definition of rural for the purposes
of the rural health care support mechanism because the definition
currently used by the Commission is no longer being updated with new
Census Bureau data. We also revise our rules to expand funding for
mobile rural health care services by subsidizing the difference between
the rate for satellite service and the rate for an urban wireline
service with a similar bandwidth. Furthermore, we improve our
administrative process by establishing a fixed deadline for
applications for support. On reconsideration, we permit rural health
care providers in states that are entirely rural to receive support for
advanced telecommunications and information services under section
254(h)(2)(A).
II. Report and Order
A. Definition of ``Rural Area''
2. We conclude that the record supports the adoption of a new
definition of ``rural area'' for the rural health care program. We
received several proposals from commenters for a new definition of
rural. Most of those definitions are currently used by other Federal
agencies to determine eligibility for other Federal programs. As we
explain in further detail below, we find that those proposals are
either over-inclusive or under-inclusive for our purpose. That is,
based on an evaluation of the proposals contained in the record, such
definitions would allow more areas to be considered rural than is
appropriate for the rural health care program or would not include
areas that are appropriately rural. The Commission should neither
dilute the fund by using a methodology that is too broad, nor fail to
achieve the goals of the 1996 Act by using a methodology that is not
broad enough. As such, the Commission has built on commenters'
proposals to develop a slightly more layered approach that more
accurately defines the rural areas eligible for support under the rural
health care mechanism.
3. Whether an area is ``rural'' is determined by applying the
following test. If an area is outside of any Core Based Statistical
Area (CBSA), it is rural. Areas within CBSAs can be either rural or
non-rural, depending on the characteristics of the CBSA. Small CBSAs--
those that do not contain an urban area with populations of 25,000 or
more--are rural. Within large CBSAs--those that contain urban areas
with populations of 25,000 or more--census tracts can be either rural
or non-rural depending on the characteristics of the particular census
tract. If a census tract in a large CBSA does not contain any part of a
place or urban area with a population greater than 25,000, then that
tract is rural. Alternatively, if a census tract in a large CBSA
contains all or part of a place or urban area with a population that
exceeds 25,000, then it is not rural.
4. To eliminate any confusion regarding implementation of this
definition, the Commission will identify the areas that are rural and
post the list on the Universal Service Administrative Company (USAC)
Web site, as is done now. The list will include counties that are rural
or partially rural. As now, for those counties that are partially
rural, eligible census tracts will be listed. Applicants can determine
their census tract using the link on the USAC web site or by calling
USAC's helpline for assistance. As such, the process for rural health
care providers to determine their eligibility will be the same with the
new definition as with the definition currently in use. The new
definition will be effective as of Funding Year 2005, which begins July
1, 2005.
5. The new definition of rural area furthers the goals of section
254 for several reasons. Our new definition uses a methodology similar
to our current definition. Just like our prior definition, all counties
that are not located in a CBSA are defined as rural. For those counties
located in a CBSA, as under the current definition, a further analysis
is conducted for certain counties that have both urban and rural areas.
The Goldsmith methodology, however, only called for such further
analysis for counties comprising a larger geographic area, while our
new definition expands the review to include counties of all sizes. As
such, we believe our new definition improves upon the method that we
previously used to determine which areas are rural by more accurately
carving out the rural areas within counties that are located in a CBSA.
For example, Dungannon, Virginia, which has a population of 317, is
located in the northeastern corner of Scott County, Virginia. Though
Scott County is part of the Kingsport-Bristol-Bristol, TN-VA
Metropolitan Statistical Area, Dungannon is 28 miles--about an hour
drive--from Kingsport, TN, the nearest large urban area. Under our
previous definition, Dungannon was not rural because it was located in
a small county that was part of an MSA. Under our new definition,
however, we conduct a more granular review of Scott County at the
census tract level. The census tract in which Dungannon is located does
not contain any part of a place or urban area with greater than a
25,000 population. Therefore, Dungannon is rural, and any health care
provider located in Dungannon is eligible for support.
6. We selected 25,000 as the population threshold for the further
analysis. While choosing the threshold is not an exact science, we
believe urban areas above this size possess a critical mass of
population and facilities. Although this standard may mean that some
current eligible providers might no longer qualify, as noted below, we
permit all health care providers that have received a funding
commitment from USAC since 1998 to continue to qualify for funding for
the next three years under the old definition. As we noted above, our
new definition also allows rural health care providers to determine
their eligibility in the same manner as under the old definition.
Furthermore, because the definitions are similar, rural health care
providers will not have to adjust to a new application process. An
approach that simplifies the application process for rural health care
providers will help ensure that applicants will not be deterred from
applying for support due to administrative burdens.
7. To ease the transition to the new definition, we permit all
health care providers that have received a funding commitment from USAC
since 1998 to continue to qualify for support under the universal
service mechanism for health care providers for funding for the next
three years under the old definition. Thereafter, health care providers
must qualify under our new definition to receive funding. We find that
this transition period is necessary to allow rural health care
providers to plan for the elimination of support. In addition, the
transition period will allow the Commission time to review the effect
of this definition.
Support for Satellite Services for Mobile Rural Health Care Providers
8. Pursuant to section 254(h)(1)(A) of the Act, telecommunications
carriers must provide telecommunications services to rural health care
providers at ``rates that are reasonably comparable to rates charged
for similar services in urban areas in that State.'' Under the
Commission's prior policies, the cost of rural satellite service was
compared to the cost of urban satellite service. For satellite
services, however, the price typically does not vary by location.
Therefore rural health care providers did not receive discounts on such
service under the rural health care program. In the 2003 Report and
Order, 68 FR 74492, December 24, 2003, we revised this policy to allow
rural health care providers to receive discounts for satellite service
even where wireline
[[Page 6367]]
services are available, but we capped the discount at the amount
providers would have received if they purchased functionally similar
wireline alternatives.
9. The situation of the mobile rural health care provider, however,
is different. By definition, mobile rural health care providers do not
stay in a fixed location. To receive telecommunications services, they
would either have to install a wireline telecommunications service to
every location they serve or use a satellite or other mobile service
that can function in every location. In some cases, wireline services
are not available because the locations are so remote. Even if a
wireline service is technically available, the number of locations
served results in what otherwise might be a more expensive satellite
service becoming more cost-effective and more efficient. In those
situations, as commenters note, for practical purposes no wireline
service is available, so rural health care providers must use a
satellite or other mobile telecommunications service.
10. Cost benchmark for mobile rural health care provider.
Accordingly, after reviewing the record in this proceeding, we revise
our rules to allow mobile rural health care providers to receive
discounts for satellite services calculated by comparing the rate for
the satellite service to the rate for an urban wireline service with a
similar bandwidth. We will not cap the discount for the satellite
service at an amount of a functionally similar wireline alternative for
mobile rural health care providers. We conclude that this revision
furthers the principle of competitive neutrality and recognizes the
role that telecommunications services play in rural areas without
unduly increasing the size of the fund. Further, consistent with
section 254, it helps to provide an affordable rate for the services
necessary for telemedicine in rural America, strengthens telemedicine
and telehealth networks across the nation, helps improve the quality of
health care services available in rural America, and better enables
rural communities to rapidly diagnose, treat, and contain possible
outbreaks of disease.
11. Criteria for mobile rural health care providers. Our current
rules, combined with the requirement that health care providers remain
responsible for a significant portion of service costs (i.e., the urban
rate), are adequate to ensure that rural health care providers select
the most cost-effective services and will ensure that rural health care
providers make prudent economic decisions. We agree, however, with
commenters that suggest that certain parameters or procedures should be
established for determining what constitutes a ``mobile'' rural health
care provider so that providers cannot obtain satellite services where
such services are not the most cost-effective option.
12. Because we believe some threshold must be established, however,
mobile rural health care providers will be required to submit to USAC
the number of sites the mobile rural health care provider will serve
during the year. Where a mobile rural health care provider serves eight
or more different sites in a year, we will presume that satellite
services are most cost-effective. We conclude that where a mobile rural
health care provider serves less than eight different sites per year,
the mobile health care provider will be required to document and
explain why satellite services are necessary to achieve the health care
delivery goals of the mobile telemedicine project. In instances where a
mobile rural health care provider serves less than eight different
sites per year, USAC will determine on a case-by-case basis whether the
telecommunications service selected by the mobile rural health care
provider is the most cost-effective option for the telemedicine project
in light of the limited number of sites served per year.
13. Additionally, mobile rural health care providers seeking
discounts for satellite services will be required to certify that they
are serving eligible rural areas. Providers must keep annual logs
indicating: (i) The date and locations of each clinic stop; and (ii)
the number of patients served at each such clinic stop. Mobile rural
health care providers must maintain their annual logs for a period of
five years and make such logs available to the Administrator and the
Commission upon request.
14. In order to receive the discount, mobile rural health care
providers will be required to provide to USAC documentation of the
price for bandwidth equivalent wireline services in the urban area in
the state to be covered by the project. Where a telemedicine project
serves locations in different states, the provider must provide the
price for bandwidth equivalent wireline services in the urban area,
proportional to the locations served in each state. The method of cost
allocation chosen by an applicant should be based on objective
criteria, and reasonably reflect the eligible usage of the mobile
health clinic. Where mobile rural health care provider is also serving
patients in urban areas, prorated discounts will be provided
commensurate only with the time the mobile rural health care provider
is serving patients in rural areas. We also direct USAC to evaluate the
allocation methods selected by program participants in the course of
its audit activities to ensure program integrity and to ensure that
providers are complying with the program's certification requirements.
Additionally, pursuant to section 54.619(a) of the commission's rules,
providers providing mobile health services must maintain records for
their purchases of supported services for at least five years
sufficient to document their compliance with all Commission
requirements.
Deadline Established for Filing FCC Form 466
15. In the 2002 NPRM, 67 FR 34653, May 15, 2002 and 2003 Report and
Order, 68 FR 74492, December 24, 2003, we sought comment on ways to
streamline the application process. We establish June 30 as the final
deadline for filing FCC Forms 466 and 466-A for health care providers
seeking discounts for a specific funding year under the rural health
care universal service support mechanism. We conclude that providing an
established deadline will provide specificity and finality to rural
health care providers and will not require them to continue to check
for Commission public notices. This deadline is also consistent with
USAC's Rural Health Care Division (RHCD)'s efforts to provide specific
guidance to health care providers when submitting applications for
universal service support. Applicants have more than a year to submit
the necessary documentation for their application for support. In
addition, a deadline of June 30 for filing FCC Forms 466 and 466-A
coincides with the end of the funding year. Under section 54.623 of our
rules, USAC can still set the dates for the filing window for purposes
of the annual cap.
III. Order on Reconsideration
16. We grant, to the extent indicated herein, ASTCA's Petition for
Reconsideration of the 2003 Report and Order, 68 FR 74492, December 24,
2003. In light of the compelling and unique combination of
circumstances facing ``entirely rural'' states, we believe that it is
appropriate to establish a support mechanism under section 254(h)(2)(A)
that will provide funding for the provision of advanced
telecommunications and information services. We therefore amend our
rules to provide support to health care providers in states that are
``entirely rural'' equal to 50 percent of the monthly cost of advanced
telecommunications and information
[[Page 6368]]
services reasonably related to the health care needs of the facility.
17. We find that the Commission has authority to amend its rules
for these specific circumstances under section 254(h)(2)(A). Section
254(h)(2)(A) directs the Commission to establish competitively neutral
rules to enhance access to advanced telecommunications and information
services for health care providers. Section 254(h)(2)(A) gives the
Commission broad authority to fulfill this statutory mandate. Unlike
Congress' directive to the Commission in section 254(h)(1)(A), however,
the Commission's authority under section 254(h)(2)(A) is discretionary,
not mandatory. We find that there is a special need for the Commission
to use its discretion to establish rules that will enhance access to
advanced telecommunications and information services for health care
providers in entirely rural states.
18. This support is necessary to address the unique circumstances
faced by health care providers and telecommunications carriers serving
American Samoa and other similarly situated geographic areas.
Geographic isolation and the lack of adequate local resources in
``entirely rural'' states can be mitigated by the availability and use
of modern technology. Facilitating access to advanced
telecommunications and information services would improve health care
in geographically remote areas.
19. Section 254(h)(2)(A) directs the Commission to enhance access
to advanced telecommunications and information services to the extent
technically feasible and economically reasonable. We find that
providing universal service support to these specific health care
providers is technically feasible and economically reasonable. There is
no dispute that access to advanced telecommunications and information
services is technically feasible in these areas. In fact, such services
are currently being provided. We believe our actions to enhance access
are also economically reasonable. We do not believe this discount will
significantly increase distributions from the underutilized rural
health care fund because the number of eligible entities is so small.
The funding amount also is unlikely to significantly increase in the
future because the current list of eligible entirely rural areas is not
likely to change.
20. Furthermore, we do not think that section 254(h)(1)(A)
prohibits us from establishing this support. In the 2003 Report and
Order, 68 FR 74492, December 24, 2003 the Commission determined that
section 254(h)(2)(A) was linked to section 254(h)(1)(A), such that
funding for advanced telecommunications services must also be based on
the urban-rural rate comparison for telecommunications services found
in section 254(h)(1)(A). Upon further review, however, we conclude that
the two statutory provisions are not inextricably linked. The
methodology we use to calculate support under section 254(h)(2)(A),
therefore, does not have to be based on the urban-rural comparison.
21. Section 254(h)(2)(A), however, does not establish a methodology
for calculating universal service support. The Commission provides a
flat discount for Internet access for all eligible rural health care
providers pursuant to section 254(h)(2)(A). We find that it is
reasonable to use a similar methodology for support for entirely rural
areas because we are relying on the same statutory provision.
Therefore, we establish a 50 percent discount off the commercial rate
for the purchase of advanced telecommunications and information
services for states that are ``entirely rural.'' We emphasize that the
entire state must meet the definition of rural, as described above, to
be eligible to receive the 50 percent discount. Consistent with the
Commission's principles of competitive neutrality, eligible health care
providers may receive increased discounts for any advanced
telecommunications and information service, regardless of the platform.
IV. Procedural Matters
A. Regulatory Flexibility Analysis
22. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the 2003 Further Notice of Proposed Rulemaking, 68 FR
74538, December 24, 2003. The Commission sought public comments on the
proposals in the Further Notice of Proposed Rulemaking, including
comment on the IRFA. This present Final Regulatory Flexibility Analysis
(FRFA) conforms to the RFA.
B. Need for, and Objectives of, the Second Report and Order
23. The Commission is required by section 254 of the Act to
promulgate rules to implement the universal service provisions of
section 254. On May 8, 1997, the Commission adopted rules that reformed
its system of universal service support mechanisms so that universal
service is preserved and advanced as markets move toward competition.
Among other programs, the Commission adopted a program to provide
discounted telecommunications services to public or non-profit health
care providers that serve persons in rural areas. Over the last few
years, important changes in the rural health community, such as
technological advances and the increasing variety of needs of the rural
health care community, have prompted us to review the rural health care
universal service support mechanism. In this Second Report and Order,
we adopt several modifications to the Commission's rules to improve the
effectiveness of the rural health care universal service support
mechanism and increase utilization of this mechanism by rural health
care providers.
24. Specifically, in this Second Report and Order, we change the
Commission's definition of rural for the purposes of the rural health
care support mechanism because the definition currently used by the
Commission is no longer being updated with new Census Bureau data by
the Office of Rural Health Care Policy, the agency that developed the
definition. Specifically, the new definition improves upon the previous
method of determining which areas are rural by more accurately
identifying the rural areas within counties. We also revise our rules
to allow mobile rural health care providers to receive discounts for
satellite services calculated by comparing the rate for the satellite
service to the rate for an urban wireline service with a similar
bandwidth. Mobile rural health care providers travel to remote areas of
the country to deliver health care services to underserved populations
for particular health conditions that may go unnoticed or untreated due
to the lack of health care facilities in such areas. Thus, this
approach will provide the support necessary to make mobile telemedicine
economical for rural health care providers to provide health care to
rural and remote areas, and to make telecommunications rates for public
and non-profit rural health care providers comparable to those paid in
urban areas. Furthermore, to provide specificity and finality to rural
health care providers, we improve our administrative process by
establishing a fixed deadline for applications for support.
25. On reconsideration, we permit rural health care providers in
states that are entirely rural, such as American Samoa, to receive
support for advanced telecommunications and information services under
section 254(h)(2)(A). Under the Commission's current policy, health
care providers in these areas do not receive universal service funding
for the provision of telecommunications services because no urban-rural
rate
[[Page 6369]]
difference exists within the state or territory upon which to base the
discount calculation. Telemedicine and other forms of treatment
supported by advanced telecommunications services and information
services eliminate the need for referrals to other locations by
allowing local physicians to consult much more easily and frequently
with physicians at fully equipped health care facilities. We expect
this rule change will strengthen the ability of health care providers
in states and territories that are entirely rural to provide critical
health care services and improve health care for rural residents.
26. We believe that such actions will improve significantly the
ability of rural health care providers to respond to the medical needs
of their communities, provide needed aid to strengthen telemedicine and
telehealth networks across the nation, help improve the quality of
health care services available in rural America, and better enable
rural communities to rapidly diagnose, treat, and contain possible
outbreaks of disease. In addition, these changes will equalize access
to quality health care between rural and urban areas and will support
telemedicine networks if needed for a national emergency. Enhancing
access to an integrated nationwide telecommunications network for rural
health care providers will further the Commission's core responsibility
to make available a rapid nationwide network for the purpose of the
national defense, particularly with the increased awareness of the
possibility of terrorist attacks. Finally, these changes will further
the Commission's efforts to improve its oversight of the operation of
the program to ensure that the statutory goals of section 254 of the
Telecommunications Act of 1996 are met without waste, fraud, or abuse.
C. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
27. No petitions for reconsideration or comments were filed
directly in response to the IRFA or on issues affecting small
businesses.
D. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
28. 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. 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 Small Business
Administration (SBA).
a. Rural Health Care Providers
29. Section 254(h)(5)(B) of the Act defines the term ``health care
provider'' and sets forth seven categories of health care providers
eligible to receive universal service support. Although the SBA has not
developed a specific size category for small, rural health care
providers, recent data indicate that there are a total of 8,297 health
care providers, consisting of: (1) 625 ``post-secondary educational
institutions offering health care instruction, teaching hospitals, and
medical schools;'' (2) 866 ``community health centers or health centers
providing health care to migrants;'' (3) 1633 ``local health
departments or agencies;'' (4) 950 ``community mental health centers;''
(5) 1951 ``not-for-profit hospitals;'' and (6) 2,272 ``rural health
clinics.'' We have no additional data specifying the numbers of these
health care providers that are small entities nor do we know how many
are located in areas we have defined as rural. In addition, non-profit
entities that act as ``health care providers'' on a part-time basis are
eligible to receive prorated support and we have no ability to quantify
how many potential eligible applicants fall into this category.
However, we have no data specifying the number of potential new
applicants. Consequently, using the data we do have, we estimate that
there are 8,297 or fewer small health care providers potentially
affected by the actions proposed in this Notice.
30. As noted earlier, non-profit businesses and small governmental
units are considered ``small entities'' within the RFA. In addition, we
note that census categories and associated generic SBA small business
size categories provide the following descriptions of small entities.
The broad category of Ambulatory Health Care Services consists of
further categories and the following SBA small business size standards.
The categories of small business providers with annual receipts of $6
million or less consists of: Offices of Dentists; Offices of
Chiropractors; Offices of Optometrists; Offices of Mental Health
Practitioners (except Physicians); Offices of Physical, Occupational
and Speech Therapists and Audiologists; Offices of Podiatrists; Offices
of All Other Miscellaneous Health Practitioners; and Ambulance
Services. The category of small business Ambulatory Health Care
Services providers with $8.5 million or less in annual receipts
consists of: Offices of Physicians; Family Planning Centers; Outpatient
Mental Health and Substance Abuse Centers; Health Maintenance
Organization Medical Centers; Freestanding Ambulatory Surgical and
Emergency Centers; All Other Outpatient Care Centers, Blood and Organ
Banks; and All Other Miscellaneous Ambulatory Health Care Services. The
category of Ambulatory Health Care Services providers with $11.5
million or less in annual receipts consists of: Medical Laboratories;
Diagnostic Imaging Centers; and Home Health Care Services. The category
of Ambulatory Health Care Services providers with $29 million or less
in annual receipts consists of Kidney Dialysis Centers. For all of
these Ambulatory Health Care Service Providers, census data indicate
that there is a combined total of 345,476 firms that operated in 1997.
Of these, 339,911 had receipts for that year of less than $5 million.
In addition, an additional 3,414 firms had annual receipts of $5
million to $9.99 million; and additional 1,475 firms had receipts of
$10 million to $24.99 million; and an additional 401 had receipts of
$25 million to $49.99 million. We therefore estimate that virtually all
Ambulatory Health Care Services providers are small, given SBA's size
categories. We note, however, that our rules affect non-profit and
public healthcare providers, and many of the providers noted above
would not be considered ``public'' or ``non-profit.'' In addition, we
have no data specifying the numbers of these health care providers that
are rural and meet other criteria of the Act.
31. The broad category of Hospitals consists of the following
categories and the following small business providers with annual
receipts of $29 million or less: General Medical and Surgical
Hospitals, Psychiatric and Substance Abuse Hospitals; and Specialty
(Except Psychiatric and Substance Abuse) Hospitals. For all of these
health care providers, census data indicate that there is a combined
total of 330 firms that operated in 1997, of which 237 or fewer had
revenues of less than $25 million. An additional 45 firms had annual
receipts of $25 million to $49.99 million. We therefore estimate that
most Hospitals are small, given SBA's size categories. In addition, we
have no data specifying the numbers of these health care providers that
are rural and meet other criteria of the Act.
[[Page 6370]]
32. The broad category of Social Assistance consists of the
category of Emergency and Other Relief Services and small business size
standard of annual receipts of $6 million or less. For all of these
health care providers, census data indicates that there are a combined
total of 37,778 firms that operated in 1997. Of these, 37,649 or fewer
firms had annual receipts of below $5 million. An additional 73 firms
had annual receipts of $5 million to $9.99 million. We therefore
estimate that virtually all Social Assistance providers are small,
given SBA's size categories. In addition, we have no data specifying
the numbers of these health care providers that are rural and meet
other criteria of the Act.
b. Providers of Telecommunications and Other Services
33. We have included small incumbent local exchange carriers in
this present RFA analysis. As noted above, a ``small business'' under
the RFA is one that, inter alia, meets the pertinent small business
size standard (e.g., a telephone communications business having 1,500
or fewer employees), and ``is not dominant in its field of operation.''
The SBA's Office of Advocacy contends that, for RFA purposes, small
incumbent local exchange carriers are not dominant in their field of
operation because any such dominance is not ``national'' in scope. We
have therefore included small incumbent local exchange carriers in this
RFA analysis, although we emphasize that this RFA action has no effect
on Commission analyses and determinations in other, non-RFA contexts.
34. Total Number of Telephone Companies Affected. The Wireline
Competition Bureau reports that, as of October 22, 2003, there were
4,748 firms engaged in providing telephone services, as defined
therein. This number contains a variety of different categories of
carriers, including local exchange carriers, interexchange carriers,
competitive access providers, cellular carriers, mobile service
carriers, operator service providers, pay telephone operators, PCS
providers, covered SMR providers, and resellers. It seems certain that
some of those 4,748 telephone service firms may not qualify as small
entities because they are not ``independently owned and operated.'' For
example, a PCS provider that is affiliated with an interexchange
carrier having more than 1,500 employees would not meet the definition
of a small business. It seems reasonable to conclude, therefore, that
4,748 or fewer telephone service firms are small entity telephone
service firms that may be affected by the decisions and rules adopted
in this Report and Order.
35. Local Exchange Carriers, Interexchange Carriers, Competitive
Access Providers, Operator Service Providers, Payphone Providers, and
Resellers. Neither the Commission nor SBA has developed a definition
particular to small local exchange carriers (LECs), interexchange
carriers (IXCs), competitive access providers (CAPs), operator service
providers (OSPs), payphone providers or resellers. The closest
applicable definition for these carrier-types under SBA rules is for
Wired Telecommunications Carriers having less than 1,500 employees. The
most reliable source of information regarding the number of these
carriers nationwide of which we are aware appears to be the data that
we collect annually on the Form 499-A. According to our most recent
data, there are 1,335 incumbent LECs, 349 CAPs, 204 IXCs, 21 OSPs, 758
payphone providers and 454 resellers. Although it seems certain that
some of these carriers are not independently owned and operated, or
have more than 1,500 employees, we are unable at this time to estimate
with greater precision the number of these carriers that would qualify
as small business concerns under SBA's definition. Consequently, we
estimate that there are fewer than 1,335 incumbent LECs, 349 CAPs, 204
IXCs, 21 OSPs, 758 payphone providers, and 541 resellers that may be
affected by the decisions and rules adopted in this Report and Order.
36. Internet Service Providers. The SBA has developed a small
business size standard for ``On-Line Information Services,'' NAICS code
518111. This category comprises establishments ``primarily engaged in
providing direct access through telecommunications networks to
computer-held information compiled or published by others.'' Under this
small business size standard, a small business is one having annual
receipts of $21 million or less. Based on firm size data provided by
the Bureau of the Census, 3,123 firms are small under SBA's $21 million
size standard for this category code. Although some of these Internet
Service Providers (ISPs) might not be independently owned and operated,
we are unable at this time to estimate with greater precision the
number of ISPs that would qualify as small business concerns under
SBA's small business size standard. Consequently, we estimate that
there are 3,123 or fewer small entity ISPs that may be affected.
37. Satellite Service Carriers. The SBA has developed a definition
for small businesses within the category of Satellite
Telecommunications. According to SBA regulations, a small business
under the category of Satellite communications is one having annual
receipts of $12.5 million or less. According to SBA's most recent data,
there are a total of 371 firms with annual receipts of $9,999,999 or
less, and an additional 69 firms with annual receipts of $10,000,000 or
more. Thus, the number of Satellite Telecommunications firms that are
small under the SBA's $12 million size standard is between 371 and 440.
Further, some of these Satellite Service Carriers might not be
independently owned and operated. Consequently, we estimate that there
are fewer than 440 small entity ISPs that may be affected by the
decisions and rules of the present action.
38. Wireless Service Providers. The SBA has developed a definition
for small businesses within the two separate categories of Cellular and
Other Wireless Telecommunications. Under that SBA definition, such a
business is small if it has 1,500 or fewer employees. According to the
Commission's most recent Telephone Trends Report data, 1,495 companies
reported that they were engaged in the provision of wireless service.
Of these 1,495 companies, 989 reported that they have 1,500 or fewer
employees and 506 reported that, alone or in combination with
affiliates, they have more than 1,500 employees. We do not have data
specifying the number of these carriers that are not independently
owned and operated, and thus are unable at this time to estimate with
greater precision the number of wireless service providers that would
qualify as small business concerns under the SBA's definition.
Consequently, we estimate that there are 989 or fewer small wireless
service providers that may be affected by the rules.
39. Vendors of Infrastructure Development or ``Network Buildout.''
The Commission has not developed a small business size standard
specifically directed toward manufacturers of network facilities. The
closest applicable definition of a small entity are the size standards
under the SBA rules applicable to manufacturers of ``Radio and
Television Broadcasting and Communications Equipment'' (RTB) and
``Other Communications Equipment.'' According to the SBA's regulations,
manufacturers of RTB or other communications equipment must have 750 or
fewer employees in order to qualify as a small business. The most
recent available Census Bureau data indicates that there are 1,187
establishments with fewer than 1,000
[[Page 6371]]
employees in the United States that manufacture radio and television
broadcasting and communications equipment, and 271 companies with less
than 1,000 employees that manufacture other communications equipment.
Some of these manufacturers might not be independently owned and
operated. Consequently, we estimate that the majority of the 1,458
internal connections manufacturers are small.
40. Cable and Other Program Distribution. The SBA has developed a
small business size standard which includes all such companies
generating $12.5 million or less in revenue annually. This standard
covers Cable and Other Program Distribution. Only businesses in Cable
and Other Program Distribution category can be affected by the rules
and policies adopted herein. This category includes cable systems
operators, closed circuit television services, direct broadcast
satellite services, multipoint distribution systems, satellite master
antenna systems, and subscription television services. According to
Census Bureau data for 1997, there were a total of 1,311 firms in this
category, total, that had operated for the entire year. Of this total,
1,180 firms had annual receipts of under $10 million and an additional
52 firms had receipts of $10 million or more but less than $25 million.
Consequently, the Commission estimates that the majority of providers
in this service category are small businesses that may be affected by
the rules and policies adopted herein.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
41. This Second Report and Order adopts several modifications to
the Commission's rules to improve the effectiveness of the rural health
care universal service support mechanism and increase utilization of
this mechanism by rural health care providers. First, as articulated
above, in this Second Report and Order, we change the Commission's
definition of rural for the purposes of the rural health care support
mechanism. The new definition will not impact reporting or
recordkeeping requirements. It does, however, change the overall pool
of eligible applicants. Second, this Second Report and Order expands
funding for mobile rural health care services by subsidizing the
difference between the actual rate of satellite service for mobile
rural health care providers and the rate for an urban wireline service
with a similar bandwidth. Because mobile rural health care providers
will now be eligible for support, we adopt rules requiring such
providers to submit an estimated number of sites the mobile health care
provider will serve during the year. Additionally, mobile rural health
care providers seeking discounts for satellite services will be
required to certify that they are serving eligible rural areas.
Providers must keep annual logs indicating: (i) The date and locations
of each clinic stop; and (ii) the number of patients served at each
such clinic stop. Mobile rural health care providers must maintain
their annual logs for a period of five years and make such logs
available to the Administrator and the Commission upon request.
Further, in order to receive the discount, mobile rural health care
providers will be required to provide to USAC documentation of the
price for bandwidth equivalent wireline services in the urban area in
the state to be covered by the project.
42. These reporting and recordkeeping requirements will minimally
impact both small and large entities. However, even though the minimal
impact may be more financially burdensome for smaller entities, the
minimal impact of such requirements is outweighed by the benefit of
providing support necessary to make mobile telemedicine economical for
rural health care providers to provide health care to rural and remote
areas, and to make telecommunications rates for public and non-profit
rural health care providers comparable to those paid in urban areas.
Further, these requirements are necessary to ensure that the statutory
goals of section 254 of the Telecommunications Act of 1996 are met
without waste, fraud, or abuse.
F. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
43. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach
impacting small business, which may include the following four
alternatives (among others): (1) The establishment of differing
compliance and reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or part thereof, for small entities.
44. In this Second Report and Order, we amend our rules to improve
the program, increase participation by rural health care providers, and
ensure that the benefits of the program continue to be distributed in a
fair and equitable manner. The actions taken in this Second Report and
Order help improve health care services available in rural America, and
better enable rural communities to rapidly diagnose, treat, and contain
possible outbreaks of disease. Thus, rural health care providers stand
to benefit directly from the modifications to our rules and policies.
45. We have taken the following steps to minimize the impact on
small entities. First, to ease the transition to the new definition, we
permit all health care providers that have received a funding
commitment from USAC since 1998 to continue to qualify for funding for
the next three years under the old definition. Thereafter, health care
providers must qualify under our new definition to receive funding. We
find that this transition period is necessary to allow rural health
care providers to plan for the elimination of support. The alternative
of not providing for a transition period was considered but rejected
because we believe a transition period is necessary to allow rural
health care providers to plan for the elimination of support, thus
minimizing any adverse or unfair impact on smaller entities. In
addition, this transition period will allow us time to review the
effect of this definition on smaller entities. Second, our new
definition allows rural health care providers to determine their
eligibility in the same manner as under the old definition. Because the
old and new definitions are similar, rural health care providers will
not have to adjust to a new application process. The alternative of not
allowing rural health care providers to determine their eligibility in
the same manner was also considered but rejected because we wanted to
minimize confusion on the part of applicants. An approach that
simplifies the application process for rural health care providers will
help ensure that applicants, including small entities, will not be
deterred from applying for support due to administrative burdens.
Lastly, for mobile rural health care services, we have established a
presumption that will minimize administrative burdens for all
applicants, including smaller entities. Mobile rural health care
providers will be required to submit to USAC an estimated number of
sites the mobile rural health care provider will serve during the year.
Where a mobile rural health care provider serves eight or more sites in
a year, we will presume
[[Page 6372]]
that satellite services are most cost-effective and we will not require
a further showing from such providers.
G. Report to Congress
46. The Commission will send a copy of this Report and Order and
Order on Reconsideration including this FRFA, in a report to be sent to
Congress pursuant to the Congressional Review Act. In addition, the
Commission will send a copy of the Report and Order and Order on
Reconsideration including this FRFA, to the Chief Counsel for Advocacy
of the Small Business Administration. A copy of this Report and Order
and Order on Reconsideration and FRFA (or summaries thereof) will also
be published in the Federal Register.
H. Paperwork Reduction Act Analysis
47. This document contains modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. It will be submitted to the Office of Management and
Budget (OMB) for review under section 3507(d) of the PRA. OMB, the
general public, and other Federal agencies are invited to comment on
the modified information collection requirements contained in this
proceeding. In addition, we note that pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4), we previously sought specific comment on how the Commission
might ``further reduce the information collection burden for small
business concerns with fewer than 25 employees.''
48. In this present document, we have assessed the effects of the
measures adopted to protect against waste, fraud and abuse in the
administration of the rural health care universal service support
mechanism. We find that the modified information and record retention
requirements for mobile rural health care providers and the modified
certification requirements for health care providers in states that are
entirely rural will not be unduly burdensome on small businesses.
49. The full text of this document is available for public
inspection and copying during regular business hours at the FCC
Reference Information Center, Portals II, 445 12th Street, SW., Room
CY-A257, Washington, DC 20554. This document may also be purchased from
the Commission's duplicating contractor, Best Copy and Printing,
Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
telephone (202) 488-5300, facsimile (202) 488-5563, or via e-mail
qualexint@aol.com.
I. Further Information
50. Alternative formats (computer diskette, large print, audio
recording, and Braille) are available to persons with disabilities by
contacting Brian Millin at (202) 418-7426 voice, (202) 418-7365 TTY, or
bmillin@fcc.gov. This Order can also be downloaded in Microsoft Word
and ASCII formats at http://www.fcc.gov/ccb/universalservice/highcost.
51. For further information, contact Regina Brown at (202) 418-0792
or Dana Bradford at (202) 418-1932, in the Telecommunications Access
Policy Division, Wireline Competition Bureau.
V. Ordering Clauses
52. Pursuant to the authority contained in sections 1, 4(i), 4(j),
201-205, 214, 254, and 403 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j), 201-205, 214, 254, and 403,
this Report and Order and Order on Reconsideration, is adopted.
53. Pursuant to the authority contained in section 405, of the
Communications Act of 1934, as amended, 47 U.S.C. 405, and Sec. Sec.
0.291 and 1.429 of the Commission's rules, 47 CFR 0.291 and 1.429,
American Samoa Telecommunications Authority's Petition for
Reconsideration is granted to the extent indicated herein.
54. It is further ordered that part 54 of the Commission's rules,
47 CFR part 54, except Sec. Sec. 54.609 and 54.619 which will become
effective upon Office of Management and Budget approval, is amended as
set forth in Appendix A attached hereto, effective thirty (30) days
after the publication of this Report and Order and Order on
Reconsideration in the Federal Register.
55. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order and Order on Reconsideration including
the Final Regulatory Flexibility Analysis to the Chief Counsel for
Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 54
Health Facilities, Libraries, Reporting and recordkeeping
requirements, Schools, Telecommunications, Telephone.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 54 as follows:
PART 54--UNIVERSAL SERVICE
0
1. The authority citation for part 54 continues to read as follows:
Authority: 47 U.S.C. 1, 4(i), 201, 205, 214, and 254 unless
otherwise noted.
0
2. Amend Sec. 54.5 by revising the definition of ``Rural area'' to
read as follows:
Sec. 54.5 Terms and definitions.
* * * * *
Rural area. For purposes of the schools and libraries universal
support mechanism, a ``rural area'' is a nonmetropolitan county or
county equivalent, as defined in the Office of Management and Budget's
(OMB) Revised Standards for Defining Metropolitan Areas in the 1990s
and identifiable from the most recent Metropolitan Statistical Area
(MSA) list released by OMB, or any contiguous non-urban Census Tract or
Block Numbered Area within an MSA-listed metropolitan county identified
in the most recent Goldsmith Modification published by the Office of
Rural Health Policy of the U.S. Department of Health and Human
Services. For purposes of the rural health care universal service
support mechanism, a ``rural area'' is an area that is entirely outside
of a Core Based Statistical Area; is within a Core Based Statistical
Area that does not have any Urban Area with a population of 25,000 or
greater; or is in a Core Based Statistical Area that contains an Urban
Area with a population of 25,000 or greater, but is within a specific
census tract that itself does not contain any part of a Place or Urban
Area with a population of greater than 25,000. ``Core Based Statistical
Area'' and ``Urban Area'' are as defined by the Census Bureau and
``Place'' is as identified by the Census Bureau.
* * * * *
0
3. Amend Sec. 54.601 by adding paragraphs (a)(3)(i), (a)(3)(ii), and
(c)(3) to read as follows:
Sec. 54.601 Eligibility.
(a) * * *
(3) * * *
(i) Any health care provider that was located in a rural area under
the definition used by the Commission prior to July 1, 2005, and that
had received a funding commitment from USAC since 1998, shall continue
to qualify for support under the universal service mechanism for health
care providers for a period of three years, beginning July 1, 2005.
[[Page 6373]]
(ii) [Reserved]
* * * * *
(c) * * *
(3) Advanced telecommunications and information services as
provided under Sec. 54.621.
* * * * *
0
4. Amend Sec. 54.609 by adding paragraph (e) to read as follows:
Sec. 54.609 Calculating support.
* * * * *
(e) Mobile rural health care providers. (1) Calculation of support.
Mobile rural health care providers may receive discounts for satellite
services calculated by comparing the rate for the satellite service to
the rate for an urban wireline service with a similar bandwidth.
Discounts for satellite services shall not be capped at an amount of a
functionally similar wireline alternative. Where the mobile rural
health care provider provides service in more than one state, the
calculation shall be based on the urban areas in each state,
proportional to the number of locations served in each state.
(2) Documentation of support. (i) Mobile rural health care
providers shall provide to the Administrator documentation of the price
of bandwidth equivalent wireline services in the urban area in the
state or states where the service is provided. Mobile rural health care
providers shall provide to the Administrator the number of sites the
mobile health care provider will serve during the funding year.
(ii) Where a mobile rural health care provider serves less than
eight different sites per year, the mobile rural health care provider
shall provide to the Administrator documentation of the price of
bandwidth equivalent wireline services. In such case, the Administrator
shall determine on a case-by-case basis whether the telecommunications
service selected by the mobile rural health care provider is the most
cost-effective option. Where a mobile rural health care provider seeks
a more expensive satellite-based service when a less expensive wireline
alternative is most cost-effective, the mobile rural health care
provider shall be responsible for the additional cost.
0
5. Amend Sec. 54.615 by revising paragraph (c)(2) to read as follows:
Sec. 54.615 Obtaining services.
* * * * *
(c) * * *
(2) The requester is physically located in a rural area, unless the
health care provider is requesting services provided under Sec.
54.621; or, if the requester is a mobile rural health care provider
requesting services under Sec. 54.609(e), that the requester has
certified that it is serving eligible rural areas.
* * * * *
0
6. Amend Sec. 54.619 by revising paragraph (a) to read as follows:
Sec. 54.619 Audits and recordkeeping.
(a) Health care providers. (1) Health care providers shall maintain
for their purchases of services supported under this subpart
documentation for five years from the end of the funding year
sufficient to establish compliance with all rules in this subpart.
Documentation must include, among other things, records of allocations
for consortia and entities that engage in eligible and ineligible
activities, if applicable. Mobile rural health care providers shall
maintain annual logs indicating: The date and locations of each clinic
stop; and the number of patients served at each such clinic stop.
(2) Mobile rural health care providers shall maintain its annual
logs for a period of five years. Mobile rural health care providers
shall make its logs available to the Administrator and the Commission
upon request.
* * * * *
0
7. Amend Sec. 54.621 by adding paragraph (c) to read as follows:
Sec. 54.621 Access to advanced telecommunications and information
services.
* * * * *
(c) Health care providers located in States that are entirely rural
shall be eligible to receive universal service support equal to 50
percent of the monthly cost of advanced telecommunications and
information services reasonably related to the health care needs of the
facility.
0
8. Amend Sec. 54.623 by revising paragraphs (a), (b), (c)(2), and
(c)(3) to read as follows:
Sec. 54.623 Cap.
(a) Amount of the annual cap. The annual cap on federal universal
service support for health care providers shall be $400 million per
funding year, with the following exceptions.
(b) Funding year. A funding year for purposes of the health care
providers cap shall be the period July 1 through June 30.
(c) * * *
(2) For each funding year, which will begin on July 1, the
Administrator shall implement a filing period that treats all health
care providers filing within that period as if they were simultaneously
received. The filing period shall begin on the date that the
Administrator begins to receive applications for support, and shall
conclude on a date to be determined by the Administrator.
(3) The Administrator may implement such additional filing periods
as it deems necessary. The deadline for all required forms to be filed
with the Administrator is June 30 for the funding year that begins on
the previous July 1.
* * * * *
[FR Doc. 05-2269 Filed 2-4-05; 8:45 am]
BILLING CODE 6712-01-U