[Federal Register: October 26, 2005 (Volume 70, Number 206)]
[Proposed Rules]
[Page 61752-61762]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26oc05-24]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 2
[ET Docket No. 00-258; FCC 05-172]
Advanced Wireless Services
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document seek comment on the specific relocation
procedures applicable to Broadband Radio Service (BRS) operations in
the 2150-2160/62 MHz band, which the Commission recently decided will
be relocated to the newly restructured 2495-2690 MHz band. We also seek
comment on the specific relocation procedures applicable to Fixed
Microwave Service (FS) operations in the 2160-2175 MHz band. We propose
to generally follow our relocation policies delineated in our Emerging
Technologies proceeding and as modified by subsequent decisions.
DATES: Comments must be filed on or before November 25, 2005, and reply
comments must be filed on or before December 12, 2005.
ADDRESSES: You may submit comments, identified by [ET Docket No. 00-
258], by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/.
Follow the instructions for submitting comments.
E-mail: [Optional: Include the E-mail address only if you
plan to accept comments from the general public]. Include the docket
number(s) in the subject line of the message.
Mail: [Optional: Include the mailing address for paper,
disk or CD-ROM submissions needed/requested by your Bureau or Office.
Do not include the Office of the Secretary's mailing address here.]
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Priya Shrinivasan, Office of
Engineering and Technology, (202) 418-7005.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's NPRM
of Proposed Rule Making, ET Docket No. 00-258, FCC 05-172, adopted
September 23, 2005, and released September 29, 2005. The full text of
this document is available on the Commission's Internet site at http://www.fcc.gov.
It is also available for inspection and copying during
regular business hours in the FCC Reference Center (Room CY-A257), 445
12th Street, SW., Washington, DC 20554. The full text of this document
also may be purchased from the Commission's duplication contractor,
Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-
B402, Washington, DC 20554; telephone (202) 488-5300; fax (202) 488-
5563; e-mail FCC@BCPIWEB.COM.
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using: (1) The Commission's Electronic
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking
Portal, or (3) by filing paper copies. See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the Web site for submitting
comments.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. 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,
filers should send an e-mail to ecfs@fcc.gov, and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or
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overnight U.S. Postal Service mail (although we continue to experience
delays in receiving U.S. Postal Service mail). All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
People with Disabilities: To request materials in accessible formats
for people with disabilities (braille, large print, electronic files,
audio format), send an e-mail to fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(tty).
Summary of NPRM of Proposed Rulemaking
1. In the Fifth NPRM of Proposed Rulemaking (Fifth NPRM), the
Commission seeks to establish a new record, specifically with respect
to relocation issues for the 2150-2160 MHz and 2160-2175 MHz bands as
proposed in the NPRM. The Commission notes that it has previously
sought comment on the use of Emerging Technologies policies in this
proceeding (ET Docket No. 00-258) in different contexts and asks that
parties file new comments on the issues in this Fifth NPRM, rather than
incorporate by reference previously filed comments in this proceeding.
2. The Commission continues to believe that its relocation policy,
with minor modifications to accommodate the type of incumbent
operations that are the subject of relocation and to maintain
consistency within the entire band at issue, is the best approach to
meet its goal of providing an opportunity for early entry to the 2150-
2160 MHz and 2160-2175 MHz bands for new Advanced Wireless Service
(AWS) licensees, while minimizing the disruption to incumbent Broadband
Radio Service (BRS) and Fixed Microwave Service (FS) operations during
the transition. The NPRM therefore proposes to generally apply the
Commission's relocation policy, as delineated in its Emerging
Technologies proceeding and subsequent decisions, to the spectrum
designated for AWS in this proceeding.
A. Relocation of BRS in the 2150-2160/62 MHz Band
3. This portion of the NPRM seeks comment on the relocation
procedures new AWS entrants should follow when relocating BRS incumbent
licensees from the 2150-2160/62 MHz band.
4. Background. In the AWS Second R&O in ET Docket No. 00-258, 68 FR
3455, January 24, 2003, the Commission reallocated and designated a 5
megahertz portion of the BRS band at 2150-2155 MHz for AWS use.
Subsequently, in the AWS Third NPRM, also in ET Docket No. 00-258, 68
FR 12015, March 13, 2003, the Commission further explored the
relocation needs for the BRS licensees in the 2150-2160/62 MHz band. On
July 29, 2004, the Commission released the BRS R&O and FNPRM in WT
Docket No. 03-66, 69 FR 72020 and 69 FR 72048, December 10, 2004,
respectively, that initiated a fundamental restructuring of the 2495-
2690 MHz band. This decision, which was intended to provide existing
and new licensees with enhanced flexibility to provide high-value
services, also included provisions by which existing BRS licensees in
the 2150-2160/62 MHz band would be included in the newly established
band plan, allowing these licensees to be integrated with similar
operations. Specifically, the Commission adopted a band plan in which
existing BRS channel 1 (2150-2156 MHz) would transition to the new BRS
channel 1 at 2496-2502 MHz and existing BRS channel 2/2A (2156-2162
MHz) to the new BRS channel 2 at 2618-2624 MHz. The Commission notes
that new entrants for spectrum now occupied by part of BRS channel 1
will be licensed in an upcoming AWS auction of the 2110-2155 MHz band.
With respect to the 2155-2160/62 MHz band, which consists of BRS
channels 2 and 2A and the upper one megahertz of BRS channel 1, the
Commission has not yet established new service rules for this band. In
the accompanying Eighth R&O in ET Docket No. 00-258, the Commission
reallocated and designated the entire 2150-2160 MHz band for AWS use.
5. BRS operations in the 2150-2160/62 MHz band consist of two
channels--channel 1 (2150-2156 MHz) and channel 2A (2156-2160 MHz).
Licensees may also use channel 2 (2156-2162 MHz) on a limited basis in
50 cities. BRS operations in the band are now regulated under part 27
of the Commission's rules. In 1992, when the 2160-2165 MHz band was
reallocated to emerging technologies, the Commission implemented a
policy by which incumbent BRS licensees that were using the 2160-2162
MHz band would continue such use on a primary basis. However, any BRS
station that applied for use of this band after January 16, 1992, would
be granted a license only on a secondary basis to emerging technology
use. In 1996, the Commission auctioned licenses for BRS channels on a
Basic Trading Area (BTA) basis but noted that BRS channel 2 licenses
using the 2160-2162 MHz band were secondary to emerging technology
licenses. BRS operators are providing four categories of service
offerings today: (1) Downstream analog video; (2) downstream digital
video; (3) downstream digital data; and (4) downstream/upstream digital
data. Licensees and lessees have deployed or sought to deploy these
services via three types of system configuration: high-power video
stations, high-power fixed two-way systems, and low-power, cellularized
two-way systems. Traditionally, BRS licensees were authorized to
operate within a 35-mile-radius protected service area (PSA) and
winners of the 1996 MDS auction were authorized to serve Basic Trading
Areas (BTAs) consisting of aggregations of counties. In the proceeding
that restructured the BRS band at 2495-2690 MHz, the Commission adopted
a geographic service area (GSA) licensing scheme for existing BRS
incumbents. Therefore, BRS relocation procedures must take into account
the unique circumstances faced by the various incumbent operations and
the new AWS licensees.
1. Relocation Process
6. Transition Plan. The NPRM proposes to require the AWS entrant to
relocate BRS operations on a link-by-link basis, based on interference
potential as discussed below. The NPRM further proposes to allow the
AWS entrant to determine its own schedule for relocating incumbent BRS
operations so long as it relocates incumbent BRS licensees before
beginning operation in a particular geographic area and subject to any
other build-out requirements that may be imposed by the Commission on
the AWS entrant. The Commission recognizes that this build-out period
may take time because of the large service areas to be built out for
new AWS networks but expects that the AWS licensees and the incumbent
BRS
[[Page 61754]]
licensees will work cooperatively to ensure a smooth transition for
incumbent operations.
7. In some instances relocation of BRS operations on a link-by-link
basis may be infeasible (e.g., where a transmitter serves numerous
receive sites, only some of which may pose an interference issue), and
thus in order to meet the comparable facility requirement for
relocating BRS operations, it may be necessary for the AWS licensee to
relocate more BRS facilities than an interference analysis conducted on
a link-by-link basis might indicate as technically necessary. The
Commission also recognizes that the AWS licensee is likely to deploy
its service in some locations in a manner that does not correspond to
the geography of the BRS service areas. For example, a BRS licensee's
operations may extend beyond the AWS licensee's service area (e.g.,
discrete transmit/receive combinations), and thus in order to meet the
comparable facility requirement for relocating BRS operations, the AWS
licensee may need to relocate BRS operations in the adjacent service
area even though an AWS licensee does not have license coverage in that
area. The NPRM therefore proposes to require that the AWS licensee
relocate all incumbent BRS operations that would be affected by the new
AWS operations, in order to provide BRS operators with comparable
facilities. The Commission seeks comment on these transition plan
proposals.
8. Comparable Facilities. In the AWS Third NPRM, the Commission
proposed that if relocation were deemed necessary, BRS incumbents would
be entitled to comparable facilities. In the Emerging Technologies
proceeding, the Commission allowed new entrants to provide incumbents
with comparable facilities using any acceptable technology. Under this
policy, incumbents must be provided with replacement facilities that
allow them to maintain the same service in terms of: (1) Throughput--
the amount of information transferred within the system in a given
amount of time; (2) reliability--the degree to which information is
transferred accurately and dependably within the system; and (3)
operating costs--the cost to operate and maintain the system. Thus, the
comparable facilities requirement does not guarantee incumbents
superior systems at the expense of new entrants. The Commission
continues to believe that, to minimize disruption to existing services
and to minimize the economic impact on licensees of those services, a
similar approach is warranted for BRS. We note that our relocation
policies do not dictate that systems be relocated to spectrum-based
facilities or even to the same amount of spectrum as they currently
use, only that comparable facilities be provided. Comparable facilities
can be provided by upgrading equipment to digital technology and making
use of efficient modulation and coding techniques that use less
spectrum to provide the same communications capabilities. Given
advances in technology, e.g., changing from analog to digital
modulation and the flexibility provided by our existing relocation
procedures to make incumbents whole, we believe that these differences
should be taken into account when providing comparable facilities. The
NPRM therefore proposes to require that new AWS entrants provide
comparable facilities to incumbents that are relocated, and seeks
comment on this proposal.
9. The Commission further notes that under its relocation policies
only stations with primary status are entitled to relocation. Because
secondary operations, by definition, cannot cause harmful interference
to primary operations nor claim protection from harmful interference
from primary operations at frequencies already assigned or assigned at
a later date, new entrants are not required to relocate secondary
operations. As stated above, BRS stations licensed after 1992 to use
the 2160-2162 MHz band are on a secondary basis. Thus, in some cases, a
portion of BRS channel 2 has secondary status, and this portion would
not be entitled to relocation under existing Emerging Technologies
policies. Stations licensed prior to 1992 for BRS channel 2 (2156-2162
MHz) operate on a primary basis over the entire channel and thus, would
be entitled to relocation. The NPRM proposes to apply the current
relocation policies regarding stations with primary and secondary
status to the BRS and seeks comment on this proposal.
10. The NPRM also seeks comment on how to apply the comparable
facilities requirement to unique situations faced by BRS licensees. For
example, the Commission recognizes that the incumbent BRS licensee may
change the type of services it offers as it transitions to the new BRS
band plan (e.g., from 1-way to 2-way service or from fixed to mobile
service), and seeks comment on how the comparable facilities policy
would be satisfied in such a situation. The NPRM also seeks comment on
how the relocation obligation of comparable facilities should be
applied to post-1992 licensees operating on a combination of BRS
channels 1 and 2/2A (e.g., integrated for downstream 2-way broadband
operations), considering these channels will likely transition to new
channels in the restructured band at different times. For example, the
Commission seeks comment on what the respective relocation obligations
should be for AWS licensees in the five megahertz block of BRS channel
1 (2150-2155 MHz) who will be licensed as part of the upcoming AWS
auction of the 2110-2155 MHz band and AWS licensees in the remaining
one megahertz block (2155-2156 MHz) who will be licensed at a later
date. In addition, we seek comment on whether replacement of customer
premises equipment (CPE) in use at the time of relocation (e.g.,
customer equipment that is used and will continue to be used in the
provision of 2-way broadband operations) should be part of the
comparable facilities requirement.
11. Because the Commission has already identified relocation
spectrum in the 2495-2690 MHz band (2.5 GHz band) for BRS licensees
currently in the 2150-2160/62 MHz band (2.1 GHz band), we also seek
comment on a proposal whereby the Commission would reassign 2.1 GHz BRS
licensees, whose facilities have not been constructed or are not in use
per Sec. 101.75 of the Commission's rules, to their corresponding
frequency assignments in the 2.5 GHz band as part of the overall BRS
transition. Specifically, the NPRM proposes to modify the licenses of
these 2.1 GHz BRS licensees to assign them 2.5 GHz spectrum in the same
geographic areas covered by their licenses upon the effective date of
the Report and Order in this proceeding. Under this proposal, no
subscribers would be harmed by immediately reassigning these licensees
to the 2.5 GHz band, consistent with our policy. Further, these BRS
licensees could become proponents in the transition of the 2.5 GHz band
and avoid delay in initiating new service (they would be limited in
initiating or expanding service in the 2.1 GHz band under other
proposals put forth in this Fifth NPRM), and new AWS entrants in the
2.1 GHz band could focus their efforts on relocating the remaining BRS
operations and their subscribers, facilitating their ability to clear
the band quickly and provide new service. The NPRM proposes to
undertake these license modifications pursuant to our authority under
Section 316 of the Communications Act. Specifically, Section 316(a)(1),
provides that ``[a]ny station license * * * may be modified by the
Commission * * * if in the judgment of the Commission such
[[Page 61755]]
action will promote the public interest, convenience and necessity.''
In addition, under the Commission's proposal, these reassigned BRS
licensees would not be entitled to ``comparable facilities'' under the
relocation policy since no facilities have been constructed or are in
use. Accordingly, the Commission seeks comment on this proposal. We ask
that commenters consider the impact of this proposal on the 2.5 GHz
transition set forth in the BRS R&O and FNPRM, as well as the impact on
the availability of the 2.1 GHz band for new AWS entrants.
12. Leasing. Some BRS licensees of channels 1 and 2 currently lease
their spectrum capacity to other commercial operators, and the
Commission has determined that future leasing of BRS and EBS spectrum
will be allowed under the Secondary Markets policy. Because leasing is
prevalent in the BRS bands, the ``comparable facilities'' policy needs
to address these arrangements. We recognize that leasing arrangements
vary--some BRS licensees may continue to lease their spectrum to third
parties when they relocate to the 2.5 GHz band, but others BRS
licensees may discontinue leasing arrangements prior to relocation. In
all cases, the BRS licensee retains de jure control of the license and
is the party entitled to negotiate for ``comparable facilities'' in the
relocation band. The NPRM proposes to allow incumbent BRS licensees to
rely on the throughput, reliability and operating costs of facilities
operated by a lessee in negotiating ``comparable facilities.'' In cases
where the BRS licensees continue to lease their spectrum to third
parties when they relocate to the 2.5 GHz band, the NPRM proposes that
the licensee may include the lessee in negotiations but that lessees
would not have a separate right of recovery--i.e., the new entrant
would not have to reimburse both the licensee and lessee for
``comparable facilities.'' Further, in cases where the BRS licensee
discontinues leasing arrangements prior to relocation, the NPRM
proposes that the lessee is not entitled to recover lost investments
from the new entrant. We believe that this approach is consistent with
the purpose of the ``comparable facilities'' policy to provide new
facilities in the relocation band so that the public continues to
receive service. The Commission seeks comment on these leasing
proposals.
13. Licensee Eligibility. Consistent with the Commission's findings
in earlier proceedings, the Commission proposes to apply the relocation
policies discussed in this NPRM to BRS incumbent primary licensees who
seek comparable facilities at the time of relocation. Any incumbent
licensee, whose license is to be renewed before relocation, would have
the right to relocation only if its license is renewed. The Commission
further proposes that an assignment or transfer of control would not
disqualify a BRS incumbent in the 2150-2160 MHz band from relocation
eligibility so long as the facility is not rendered, as a result, more
expensive to relocate. In addition, the Commission proposes that if a
grandfathered BRS license (i.e., authorized facilities operating with a
35-mile-radius PSA) is cancelled or forfeited, and the right to operate
in that area has not automatically reverted to the BRS licensee that
holds the corresponding BTA license, no new licenses would be issued
for BTA service in the 2150-2160/62 MHz band. The Commission seeks
comment on these eligibility proposals.
14. Future Licensing in the 2150-2160 MHz Band. In the Emerging
Technologies proceeding, the Commission recognized two divergent
objectives when considering the types of modifications and expansions
existing licensees could make without affecting their status with
respect to emerging technology licensees--on one hand, existing
licensees must be allowed a certain amount of flexibility to operate
without devaluing the usefulness of their facilities; on the other
hand, the new entrants must be provided with a stable environment in
which to plan and implement new services. The Commission decided that
the best way to balance these divergent objectives was to establish
procedures whereby existing licensees who chose to modify or expand
their facilities after a particular date set by the Commission, would
do so on a secondary basis to emerging technology licensees. Consistent
with this current relocation policy and in order to provide some
certainty to new AWS licensees on the scope of their relocation
obligation, the NPRM proposes that major modifications to authorized
facilities, as discussed in the next paragraph, made by BRS licensees
after the effective date of a Report and Order in this proceeding will
not be eligible for relocation. The NPRM further proposes that major
modifications and extensions to existing BRS systems will be authorized
on a secondary basis to emerging technology systems in the 2150-2160
MHz band after the effective date of the Report and Order in this
proceeding. Moreover, all major modifications will render the modified
BRS licensee secondary to emerging technology operations, unless the
incumbent affirmatively justifies primary status and establishes that
the modification would not add to the relocation costs of the emerging
technology licensees. In addition, the NPRM proposes that BRS
facilities newly authorized in the 2150-2160 MHz band after the
effective date of a Report and Order in this proceeding would not be
eligible for relocation. The Commission seeks comment on these
proposals.
15. For purposes of relocation, the NPRM proposes to adopt criteria
that would be the basis for determining what qualifies as a major
modification for BRS licensees. Adopting major modification criteria
for the purposes of relocation is necessary because BRS licensees are
now licensed on a geographic area basis, and thus are allowed to place
transmitters anywhere within their defined service area without prior
authorization so long as the licensee's operations comply with the
applicable service rules, do not affect radio-frequency zones, or
require environmental review or international coordination.
Specifically, the NPRM proposes to adopt criteria that, for example,
would classify the additions of new transmit sites or base stations and
changes to existing facilities that would increase the size or coverage
of the service area or interference potential as types of modifications
that are major, and thus not eligible for relocation. Traditionally,
these limits have been expressed by identifying the distance by which
existing transmit sites can be relocated, limiting increases in
emissions, and various other means. Accordingly, the Commission seeks
comment on what the criteria should be for major modifications and, in
particular, the criteria in the former major modification rule for BRS
licensees, codified at 47 CFR 21.23; the former rule for EBS licensees
codified at 47 CFR 74.911(a)(2); or the current rule for wireless
telecommunications services in Sec. 1.929(d).
2. Negotiation Periods/Relocation Schedule
16. The NPRM generally proposes to require that negotiations for
relocation of BRS operations be conducted in accordance with the
Commission's Emerging Technologies policies, except that we propose to
forego a voluntary negotiation period and instead require only a
mandatory negotiation period that must expire before an emerging
technology licensee could proceed to request involuntary relocation.
The BRS transition plan for the new band at 2495-2690 MHz has five
stages: (1) The initiation of the transition process--
[[Page 61756]]
when a proponent files an initiation plan for a geographic area with
the Commission; (2) the transition planning period--where parties can
file counterproposals and any disputes would go to arbitration; (3) the
reimbursement of costs; (4) the termination of incumbent operations;
and (5) the filing of post-transition notification of completion with
the Commission. The approximate time needed for the BRS re-banding
process at 2495-2690 MHz includes 3-3\1/2\ years for the initiation and
planning stages and 1\1/2\ years for the actual relocation, for a total
of approximately five years. Thus, the Commission recognizes that the
new band where the BRS incumbents are to be relocated is undergoing its
own transition process that may not be completed until at least 2008.
In light of these considerations, the NPRM proposes to forego a
voluntary negotiation period and institute ``rolling'' mandatory
negotiation periods (i.e., separate, individually triggered negotiation
periods for each BRS licensee) of three years followed by the
involuntary relocation of BRS incumbents. The NPRM proposes that the
mandatory negotiation period would be triggered for each BRS licensee
when an AWS licensee informs the BRS licensee in writing of its desire
to negotiate. Relocation of BRS operations by AWS licensees is more
likely to take place in a relatively piecemeal fashion and over an
extended period of time. Consequently, it is possible that a uniform
mandatory negotiation period applicable to all BRS licensees would
expire by the time that many BRS licensees were approached for
relocation by an AWS entrant. The Commission seeks comment on this
proposal.
17. Under Emerging Technologies policies, the mandatory negotiation
period is intended as a period of negotiation between the parties on
relocation terms resulting in a contractual relocation agreement. The
mandatory negotiation period ensures that an incumbent licensee will
not be faced with a sudden or unexpected demand for involuntary
relocation if an emerging technology provider initiates its relocation
request, and provides adequate time to prepare for relocation. During
mandatory negotiations, the parties are afforded flexibility in the
process except that an incumbent licensee may not refuse to negotiate
and all parties are required to negotiate in good faith. If no
agreement is reached during negotiations, an AWS licensee may proceed
to involuntary relocation of the incumbent. In such a case, the new AWS
licensee must guarantee payment of all relocation expenses, and must
construct, test, and deliver to the incumbent comparable replacement
facilities consistent with Emerging Technologies procedures. The
Commission notes that under Emerging Technologies principles, an AWS
licensee would not be required to pay incumbents for internal resources
devoted to the relocation process or for fees that cannot be
legitimately tied to the provision of comparable facilities, because
such expenses are difficult to determine and verify. The NPRM proposes
to apply these negotiation/relocation principles to BRS licensees, and
seeks comment on doing so. The NPRM also seeks comment on whether to
apply a ``right of return'' policy to AWS/BRS relocation negotiations
similar to rule 47 CFR 101.75(d) (i.e., if after a 12 month trial
period, the new facilities prove not to be comparable to the old
facilities, the BRS licensee could return to the old frequency band or
otherwise be relocated or reimbursed). The Commission asks parties to
take into account the time periods for the transition occurring in the
restructured 2495-2690 MHz band when providing comments on this issue.
18. Sunset Date. The NPRM proposes to apply the sunset rule of 47
CFR 101.79 to BRS relocation negotiations. This rule provides that new
licensees are not required to pay relocation expenses after ten years
following the start of the negotiation period for relocation.
Consistent with the Commission's proposal to establish rolling
mandatory negotiation periods, the NPRM proposes that the ten year
sunset date commence from the date the first AWS license is issued in
the 2150-2160 MHz band. However, because we anticipate that portions of
the spectrum in the 2150-2160 MHz band will be made available for AWS
auction at different times, the first AWS license could be issued in
one portion of the band earlier than the first AWS license is issued in
another portion of the band. We therefore seek comment on whether we
should establish different sunset dates that are based on when the
first AWS license is issued for each portion of the spectrum. In this
case, the commencement dates and subsequent sunset dates are likely to
be different for BRS channels 1 and 2/2A. Alternately, should we
establish a single sunset date for the entire band? If so, we seek
comment as to whether that sunset date should be ten years from the
date the first AWS license is issued in whatever portion of the 2150-
2160 MHz band is the last to be licensed. Further, we seek comment on
when the ten year sunset date should commence if we do not adopt our
proposal for rolling mandatory negotiation periods. Finally, commenters
should consider that the sunset date proposal we ultimately adopt would
apply apart from the restructuring of the 2495-2690 MHz band.
19. Good Faith Requirement. Finally, the Commission expects the
parties involved in the replacement or retuning of BRS equipment to
negotiate in good faith, that is, each party would be required to
provide information to the other that is reasonably necessary to
facilitate the relocation process. The NPRM therefore proposes to apply
the good faith guidelines of 47 CFR 101.73 to BRS negotiations, and
seeks comment on this proposal.
3. Interference Issues/Technical Standards
20. The Commission currently provides for the protection of fixed
microwave services operating in the 1.9 GHz and 2.1 GHz bands through
the provisions of 24.237 of our rules. Under 24.237, PCS licensees
operating in the 1850-1990 MHz band and AWS licensees operating in the
2110-2155 MHz band must, prior to commencing operations, perform
certain engineering analyses to ensure that their proposed operations
do not cause interference to incumbent fixed microwave services. Part
of that analyses calls for the use of TIA Telecommunications Systems
Bulletin (TSB) 10-F, or its successor standard, to determine when
proposed PCS or AWS operations might cause interference to existing
fixed microwave stations.
21. The Commission seeks to develop rules that will enable AWS
licensees to determine when their proposed operations would cause
interference to incumbent BRS systems operating in the 2150-2160 MHz
band, such that the relocation of those systems would be necessary
before AWS operations could begin. The NPRM therefore seeks comment on
whether a rule comparable to Sec. 24.237 should be developed for this
purpose. If so, we seek comment as to what procedures and mechanisms
should be contained in such a rule (e.g., a ``distance'' table, such as
Table 2 in Sec. 24.237, which identifies the distance from an AWS
station within which a BRS station must be protected; the use of TIA
TSB 10-F, or some comparable document, to determine when interference
is expected to occur to BRS stations, etc.). Commenters favoring this
approach should provide information that would lead to the development
of
[[Page 61757]]
a distance table applicable to BRS operations; and commenters should
also indicate whether and how TIA TSB 10-F could be used to determine
the potential for interference to BRS systems. Commenters not favoring
the use of a Sec. 24.237 type rule should indicate what procedures the
Commission should adopt to enable AWS licensees to determine when their
operations will cause interference to incumbent BRS systems.
B. Relocation of FS in the 2160-2175 MHz Band
22. In the Emerging Technologies proceeding, the Commission
established procedures for the relocation of incumbent operations by
new technology licensees in several frequency bands, including the
paired bands at 2110-2150 MHz and 2160-2200 MHz. Later, in the
Microwave Cost Sharing proceeding, the Commission further addressed
incumbent relocations by new technology licensees. Together, these
proceedings provided for, among other matters, relocation procedures
that included both voluntary and mandatory negotiations, as well as
relocation sunset periods, as delineated in 47 CFR part 101.
23. In 2000, in the MSS Second R&O in ET Docket No. 95-18, the
Commission adopted ``modified'' Emerging Technologies relocation
procedures for FS incumbents in the 2165-2200 MHz band that would be
relocated by new MSS licensees in that band. Under these ``modified''
procedures, the Commission eliminated the voluntary negotiation period
for relocation of FS incumbents by MSS in the 2165-2200 MHz band and
provided instead a single mandatory negotiation period applying to all
FS incumbents. This single mandatory negotiation period would be
triggered when the first MSS licensee informs, in writing, the first FS
incumbent of its desire to negotiate. Furthermore, consistent with its
findings in the earlier Microwave Cost Sharing proceeding, the
Commission established that the FS relocation rules would sunset ten
years after the negotiations begin for the first FS licensee.
24. In the AWS Second R&O in ET Docket No. 00-258, the Commission
addressed the relocation procedures that would apply to the relocation
of incumbent FS licensees by new AWS entrants in the paired 2110-2150
MHz band. The Commission concluded that ``the modified [MSS] relocation
procedures [for the 2165-2200 MHz band] * * * represent[ed] the best
course.'' The Commission reasoned, ``[a] unified approach to our rules
and procedures serves the public interest, and can promote the rapid
development of AWS, which many commenters support.''
25. In the AWS Third R&O, also in ET Docket No. 00-258, the
Commission reallocated the 1990-2000/2020-2025 MHz and 2165-2180 MHz
bands for Fixed and Mobile services to support AWS. Subsequently in the
AWS Sixth R&O in ET Docket No. 00-258, the Commission concluded that,
given its earlier decision in the AWS Second R&O to apply the
``modified'' relocation procedures to AWS relocation of FS in the 2110-
2150 MHz band, it would be appropriate to apply the same procedures to
the relocation of FS by AWS licensees in the 2175-2180 MHz paired band.
26. In proposing relocation procedures for incumbent FS operations
in the 2160-2175 MHz band, the Commission continues to believe that it
is desirable to harmonize the FS relocation procedures among the
various AWS designated bands to the greatest extent feasible. As the
Commission observed in the AWS Sixth R&O, 69 FR 62615, October 27,
2004, relocation procedures that are consistent can be expected to
foster a more efficient rollout of AWS and minimize confusion among the
parties, and thereby serve the public interest.
27. Under the existing ``modified'' Emerging Technologies
relocation procedures described, there is a single mandatory
negotiation period that commences when the first new technology entrant
informs the first FS licensee, in writing, of its desire to negotiate.
A ten-year sunset period is triggered when the mandatory negotiation
period begins. The NPRM seeks comment on whether the Commission should
apply these same procedures to FS relocation by AWS in the 2160-2175
MHz band. As noted, this would be consistent with the procedures
adopted in the AWS Second R&O, 68 FR 3455, January 24, 2003, and AWS
Sixth R&O, 69 FR 62615, October 27, 2004, for the paired bands 2110-
2150 MHz and 2175-2180 MHz, respectively.
28. The NPRM also proposes to clarify that under the single
mandatory negotiation periods approach the ten-year sunset would
supersede, and thereby terminate, any remaining mandatory negotiation
period that had not yet run its course. The NPRM proposes that this
ten-year sunset period for the 2160-2175 MHz band should commence with
the date the first AWS license is issued in that band. We seek comment
on this proposal, particularly whether this trigger event represents
the most appropriate date for starting the ten-year sunset period.
Because we have not yet determined how we will make this spectrum
available for assignment, it is possible that different portions of the
band may be licensed at different times. We therefore seek comment as
to whether we should establish different sunset periods for FS
incumbents in different frequency blocks within the band, based on the
date the first AWS license is issued for each subset of the band. We
recognize that, in this case, the commencement date and subsequent
sunset date may not be uniform across the whole band. We also seek
comment on whether we should instead set a uniform sunset date for the
entire band and, if so, what trigger date we would use to determine
that sunset date.
29. The Commission also seeks comment on an alternative approach.
Relocation of FS operations by AWS licensees is more likely to take
place in a relatively piecemeal fashion and over an extended period of
time. Consequently, it is possible that a single mandatory negotiation
period afforded under the existing relocation procedures would expire
before the time that many FS licensees were approached for relocation
by an AWS entrant. Therefore, we also seek comment on whether each FS
incumbent in the 2160-2175 MHz band should be afforded a separate,
individually triggered, negotiation period--as contrasted with the
across-the-board uniform period for all incumbents under the existing
relocation rules. Under this alternative proposal, a mandatory
negotiation period would be triggered by an event specific to each FS
licensee, which we propose would be when an AWS licensee informs the FS
licensee in writing of its desire to negotiate. This would result in a
series of independent, or ``rolling,'' negotiation periods, each having
its own time frame. One potential benefit of the rolling negotiation
period approach is that it could afford a greater opportunity for FS
incumbents and AWS licensees to engage in relocation negotiations and
could foster a more equitable and expeditious transition to AWS in the
band. On the other hand, this approach could result in more complex
negotiation timetables. We seek comment on this alternative proposal.
30. Other Bands. If we were to adopt the alternative rolling
negotiation period approach described for the 2160-2175 MHz band, the
Commission seeks comment on whether the same approach should be adopted
for corresponding paired segments of the 2110-2150 MHz band. In a
similar fashion, if we were to adopt the rolling negotiation approach
[[Page 61758]]
for these two bands, we seek comment on whether the relocation
procedures adopted for the 2175-2180 MHz band in the AWS Sixth R&O
should also be changed to afford rolling FS negotiation periods,
resulting in a unified rolling negotiation period approach across these
bands. We also seek comment on whether the modified sunset rules
discussed above should apply in these other bands as well. Finally, we
seek comment on whether the relocation/sunset procedures described here
would harmonize well with the procedures for other Emerging
Technologies bands that have been addressed elsewhere in this and other
proceedings.
31. Incumbent Part 22 Services. The Commission also seeks comment
on whether and how to harmonize the Emerging Technologies relocation
rules for part 22 point-to-point microwave links and part 101 fixed
services. When the Emerging Technologies relocation rules were first
adopted, fixed microwave services in the spectrum were regulated under
parts 21, 22, and 94, dealing with Common Carrier fixed point-to-point,
fixed services supporting Paging and Radiotelephone, and Private
Operational point-to-point, respectively. To address relocation of all
of these fixed services, the Commission established separate but
identical relocation rules in each Part. In 1996, the Commission merged
the rules regulating Common Carrier and Private Operational services in
part 101 but left fixed services supporting Paging and Radiotelephone,
along with the rules for relocating these links, in part 22.
32. Although initially identical, the Emerging Technologies
relocation rules in part 22 and in part 101 subsequently diverged. When
the Commission determined that FS incumbents in the 2.1 GHz band would
be subject to modified relocation procedures, these modifications were
reflected in the part 101 relocation rules but inadvertently not
included in the part 22 rules, although part 22 point-to-point services
also operated in the 2.1 GHz spectrum. Thus, at that point, AWS
entrants in the 2.1 GHz band would be required to follow the original
Emerging Technologies rules to relocate part 22 links, but would use
the modified rules to relocate part 101 links.
33. The rules applicable to part 22 and part 101 links further
diverged recently, when the Commission determined that it would not
renew the part 22 point-to-point licenses in the 2110-2130 and 2160-
2180 MHz bands, but instead allow all current part 22 fixed service
licenses in these bands to expire at the end of their current term.
Commission records indicate that there are 53 active part 22 fixed
licenses in these two bands, and that all will have expired by January
3, 2010. Thus, all part 22 fixed services will cease operations in the
2.1 GHz band by 2010. In contrast, part 101 FS licensees in the
Emerging Technologies spectrum are not currently prohibited from
renewing their licenses.
34. The NPRM does not propose to permit renewal of part 22 fixed
service licenses in the 2.1 GHz band. The NPRM does seek comment,
however, on whether the relocation rules that apply to AWS relocation
of part 101 fixed services should otherwise apply to AWS relocation of
part 22 services as well.
C. Cost Sharing
35. The Commission's Emerging Technologies relocation policies
require new licensees who benefit from the clearing of the spectrum of
incumbent operations by an earlier entrant to reimburse that entrant
for reasonable costs incurred in clearing the spectrum. The Commission
has found that adopting cost sharing rules in these circumstances
serves the public interest because it (1) distributes relocation costs
more equitably among the beneficiaries of the relocation; (2)
encourages the simultaneous relocation of multi-link communications
systems; and (3) accelerates the relocation process, promoting more
rapid deployment of new services. In this section, we discuss cost
sharing among new licensees when they relocate incumbent FS operations
in the 2110-2150 and 2160-2200 MHz bands and when they relocate BRS
operations in the 2150-2160/62 MHz band.
36. Relocation of Incumbent FS Licensees. The part 101 relocation
rules address, inter alia, the cost sharing obligation imposed on new
licensees when they relocate FS incumbents in the 2110-2150 MHz and
2160-2200 MHz bands, which currently are used by FS licensees mostly as
paired links in the lower and upper bands. Section 101.82 provides that
when a new licensee in either of these bands relocates an incumbent
paired FS link with one path in one band and the paired path in the
other band, the new licensee is entitled to reimbursement of fifty
percent of its relocation costs from any subsequently entering new
licensee which would have been required to relocate the same FS link,
subject to a monetary ``cap.'' We also note that this rule applies to
both new AWS licensees in the 2110-2150 MHz and 2160-2180 MHz bands as
well as to MSS licensees in the 2180-2200 MHz band, which are discussed
separately below.
37. In the AWS-2 Service Rules NPRM, the Commission recognized that
a single FS path in these bands could cross multiple AWS license areas,
and thus multiple AWS licensees could benefit by the relocation of a
single FS link. The Commission thus sought comment on whether it should
adopt formal procedures for apportioning relocation costs among
multiple AWS licensees in the 2110-2150 MHz and 2175-2180 MHz bands,
and in particular, whether it should apply the cost sharing rules in
part 24 that were used by new PCS licensees when they relocated
incumbent FS links in the 1850-1990 MHz band. In this NPRM, the
Commission seeks comment on whether we should adopt formal procedures
for apportioning relocation costs among multiple AWS licensees in the
2160-2175 MHz band and in particular, whether we should apply the cost
sharing rules in part 24. We also seek comment on whether AWS licensees
in the 2160-2175 MHz band should be subject to the same cost sharing
regime that we adopt for relocation of FS incumbents in the 2110-2150
MHz and 2175-2180 MHz bands.
38. Under the part 24 cost sharing plan, new licensees that incur
costs relocating an FS link are eligible to receive reimbursement from
subsequent new entrants that also benefited from that relocation.
Reimbursement claims are submitted to one of the private non-profit
clearinghouses designated by the Wireless Telecommunications Bureau to
administer the plan. All new entrants are required to file a prior
coordination NPRM with these clearinghouses before beginning
operations. Upon receiving such a NPRM, a clearinghouse with a
reimbursement claim on file identifies whether the new entrant has
benefited from the relevant relocation using a Proximity Threshold
Test. This test limits the beneficiaries to those entrants turning on a
base station that both operates in the same spectrum that the incumbent
link did prior to relocation and is within a specified geographic
distance of the link. Having identified a new entrant as a beneficiary,
the clearinghouse then determines the amount of the beneficiary's
repayment obligation using a rule-specified cost sharing formula. This
amount is subject to a cap of $250,000 per relocated link, plus
$150,000 if a new or modified tower is required. Once the beneficiary
is notified of the amount, it is then responsible for paying
reimbursement within 30 days, with an equal share of the total going to
each entrant that has previously contributed to the relocation.
[[Page 61759]]
FS incumbents that self-relocate are also permitted to obtain
reimbursement from benefiting AWS entrants under the plan, subject to
the same cap described above. Any disputes over cost sharing
obligations under the rules are addressed in the first instance by a
clearinghouse, and if still unresolved, by alternatives such as binding
arbitration. All of these payment obligations are imposed as a default,
and new licensees are permitted to enter into private cost sharing
arrangements with each other that supercede the cost sharing plan as it
applies to reimbursement between those licensees.
39. The Commission believes that adopting the part 24 cost sharing
plan for new AWS licensees that relocate FS incumbents would have many
benefits. First, the part 24 plan was devised to accommodate new
cellular type systems licensed by geographic areas and incumbent FS
point-to-point operations, which are essentially the same circumstances
at issue here, and the part 24 plan has a proven record of success. In
2000, the Commission reviewed the operation of the part 24 cost sharing
rules and concluded that ``[t]hey generally have served to promote an
efficient and equitable relocation process * * *.'' In addition, since
the plan went into operation in 1996, the Commission has resolved
numerous questions regarding the details of the plan's operation and
application. We therefore expect that there will be less need for
clarification if we adopt this regime for AWS. For these reasons, we
anticipate that adopting these rules will expedite the relocation of FS
incumbents and the introduction of new services. The NPRM therefore
proposes to adopt a cost sharing plan for relocation of FS incumbents
in the 2160-2175 MHz band based on the part 24 plan and seek comment on
this proposal.
40. While the part 24 rules could be applied to the relocation of
FS incumbents in the 2160-2175 MHz band without substantial changes,
the Commission seeks comment on whether some modifications are
nevertheless appropriate. For example, PCIA has suggested in response
to the AWS-2 Service Rules NPRM that, in establishing a cost sharing
plan for AWS relocation of FS, we should modify the part 24 plan by (1)
establishing a rule requiring licensing data to be filed by all
entities; (2) mandating that parties are required to act in good faith
in connection with their responsibilities under the cost sharing plan;
(3) providing that reasonable interest charges can be applied to cost
sharing obligations; (4) creating an explicit mechanism for expedited
appeal to the Commission from a disputed clearinghouse determination;
and (5) giving weight to the determinations of the clearinghouse in
such an appeal. We seek comment on these suggested changes to the part
24 plan.
41. The part 24 plan delegates authority to the Wireless
Telecommunications Bureau to assign the administration of the cost
sharing rules to one or more private non-profit clearinghouses.
Management of the part 24 cost sharing rules by third-party
clearinghouses has been highly successful, and two entities have
already expressed interest in accepting this responsibility for AWS
relocation of FS in the 2110-2150 MHz and 2175-2180 MHz bands. We seek
comment on the rules that should govern such a clearinghouse and the
procedures and quality criteria we should use to select a clearinghouse
administrator.
42. As noted, MSS is allocated to the 2180-2200 MHz band. FS links
in this band are paired with FS links in the 2130-2150 MHz band which
is designated for AWS. Cost sharing between MSS and AWS licensees in
these paired bands is governed by Sec. 101.82, which provides that
when a new licensee in either of these bands relocates an incumbent
paired FS link with one path in one band and the paired path in the
other band, the new licensee is entitled to reimbursement of fifty
percent of its relocation costs (i.e., the total cost of relocating
both paths) from any subsequently entering new licensee which would
have been required to relocate the same FS link, subject to a monetary
``cap.'' The Commission adopted relocation rules for MSS that recognize
the unique characteristics of a satellite service. For example, unlike
a new terrestrial entrant such as AWS that can clear the band on a
link-by-link basis, MSS must clear all incumbent FS operations in the
2180-2200 MHz band within the satellite service area if interference
will occur. Thus, the relocation obligations and cost sharing among MSS
new entrants in the 2180-2200 MHz is relatively straightforward and can
function without a clearinghouse or formal cost sharing procedures.
Section 101.82 establishes a sharing obligation between MSS and AWS
that is reasonable and relatively easy to implement, and because it
does not depreciate cost sharing obligations, it provides MSS licensees
with additional assurance of cost recovery. In addition to this
consideration, we also do not wish to change the relocation and cost
sharing rules applicable to MSS, because MSS licensees are currently in
the midst of the implementation and relocation process. Subsequently,
the AWS-2 Service Rules NPRM has sought comment on how the AWS sharing
obligation (i.e., fifty percent for relocating the link) should be
apportioned among multiple AWS licensees. In this NPRM, the Commission
seeks comment on whether MSS entrants entitled to reimbursement under
Sec. 101.82 should submit their reimbursement claims to an AWS
clearinghouse, including any procedures we may adopt for filing such
claims. The Commission believes that this approach would relieve MSS
licensees of the burden of identifying the AWS licensees who would be
obligated to pay relocation costs. We seek comment on this proposal.
43. Relocation of Incumbent BRS Licensees. The NPRM proposes to
require AWS entrants to relocate BRS operations in the 2150-2160/62 MHz
band on a link-by-link basis, based on interference potential. We also
note certain instances where it may be necessary for the AWS licensee
to relocate more BRS facilities than an interference analysis conducted
on a link-by-link basis might indicate as technically necessary, in
order to provide relocating incumbents with comparable facilities--
e.g., where an AWS licensee may be required to relocate BRS operations
outside its own service area or where BRS incumbents operate on
combinations of BRS channels 1 and 2/2A. Thus, a subsequent AWS
licensee who operates co-channel in an adjacent geographic area or who
operates on a different frequency than the relocator would benefit from
the relocation of certain BRS operations. The relocation of a single
BRS link could also have more than one AWS beneficiary if the BRS link
uses spectrum that overlaps more than one AWS license block.
Consequently, the Commission seeks comment on whether we should
establish cost sharing obligations for AWS licensees who benefit from
an earlier AWS licensee's relocation of BRS incumbents in the 2150-
2160/62 MHz band. For example, we seek comment on whether cost sharing
obligations should be imposed on new licensees that receive
interference but do not cause it, as is done with the PCS rules, or
only on those licensees that cause interference, as is the case for
both the current Emerging Technologies and MSS rules in part 101.
44. The Commission also seeks comment on what, if any, specific
cost sharing obligations are necessary or appropriate, including how
costs should be apportioned among AWS licensees.
[[Page 61760]]
Although we noted that the part 24 plan could be applied to FS
relocation without substantial changes, we believe that this is not the
case for BRS operations which are significantly different than point-
to-point FS operations. BRS operations are primarily point-to-
multipoint, based either on a contour around a fixed transmitter with
protected receive sites within the contour or on a wide geographic area
with multiple base and receive sites located anywhere within the
licensed area. We thus seek comment on what criteria could be used to
identify whether a subsequent AWS licensee has an obligation to share
the cost of relocating a BRS incumbent and how the reimbursement
obligation should be apportioned among AWS licensees. Commenters should
consider, for example, whether we should require each AWS licensee to
bear this financial responsibility in proportion to the amount of
spectrum in the 2150-2160/62 MHz band for which it is licensed, or in
proportion to the amount of geographic area cleared within its licensed
market, or some other metric, such as MHz/pops. We also seek comment on
whether we should apply a ``cap'' or some other limit on the amount a
relocator is entitled to receive as reimbursement in order to protect
later entrants who did not participate in negotiations; we also seek
comment on what the amount of the ``cap'' should be. Moreover, we seek
comment on whether formal cost sharing procedures, such as those in the
part 24 plan, are necessary or appropriate to implement any cost
sharing obligations we may ultimately adopt, and if so, what procedures
we should adopt. Finally, we seek comment on whether we should
designate a clearinghouse party to administer any cost sharing rules we
may adopt, the rules that should govern a clearinghouse and the
procedure and quality criteria we should use to select a clearinghouse
administrator.
Initial Regulatory Flexibility Analysis
45. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA),\1\ the Commission has prepared this present Initial
Regulatory Flexibility Analysis (IRFA) of the possible significant
economic impact on a substantial number of small entities by the
policies and rules proposed in this Fifth NPRM of Proposed Rule Making
(Fifth NPRM). Written public comments are requested on this IRFA.
Comments must be identified as responses to the IRFA and must be filed
by the deadlines for comments on the Fifth NPRM. The Commission will
send a copy of this Fifth NPRM, including this IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration (SBA).\2\ In
addition, the Fifth NPRM and IRFA (or summaries thereof) will be
published in the Federal Register.\3\
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\1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
\2\ See 5 U.S.C. 603(a).
\3\ Id.
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A. Need for, and Objectives of, the Proposed Rules
46. The Fifth NPRM proposes relocation procedures to govern the
relocation of: (1) Broadband Radio Service (BRS) \4\ licensees in the
2150-2160/62 MHz band; and (2) Fixed Microwave Service (FS) licensees
in the 2160-2175 MHz band. The proposed relocation procedures generally
follow the Commission's relocation policies delineated in the Emerging
Technologies proceeding, and as modified by subsequent decisions.\5\
These relocation policies are designed to allow early entry for new
technology providers by allowing providers of new services to negotiate
financial arrangements for reaccommodation of incumbent licensees, and
have been tailored to set forth specific relocation schemes appropriate
for a variety of different new entrants, including Personal
Communications Service (PCS) licensees, Mobile Satellite Service (MSS)
licensees, 18 GHz Fixed Satellite Service (FSS) licensees, and Nextel.
While these new entrants occupy different frequency bands, each entrant
has had to relocate incumbent operations. The relocation procedures we
propose in the Fifth NPRM are designed to ensure an orderly and
expeditious transition of, with minimal disruption to, incumbent BRS
and FS operations from the 2150-2160/62 MHz and 2160-2175 MHz bands,
respectively, in order to allow early entry for new AWS licensees into
these bands.
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\4\ The Multipoint Distribution Service (MDS) was renamed the
Broadband Radio Service (BRS). See Amendment of parts 1, 21, 73, 74
and 101 of the Commission's Rules to Facilitate the Provision of
Fixed and Mobile Broadband Access, Educational and Other Advanced
Services in the 2150-2162 MHz Band, WT Docket No. 03-66, Report and
Order and Further NPRM of Proposed Rulemaking, 19 FCC Rcd 14165
(2004), 69 FR 72020 and 69 FR 72048, December 10, 2004.
\5\ See Redevelopment of Spectrum to Encourage Innovation in the
Use of New Telecommunications Technologies, ET Docket No. 92-9,
First Report and Order and Third NPRM of Proposed Rule Making, 7 FCC
Rcd 6886 (1992); Second Report and Order, 8 FCC Rcd 6495 (1993);
Third Report and Order and Memorandum Opinion and Order, 8 FCC Rcd
6589 (1993); Memorandum Opinion and Order, 9 FCC Rcd 1943 (1994);
Second Memorandum Opinion and Order, 9 FCC Rcd 7797 (1994); aff'd
Association of Public Safety Communications Officials-International,
Inc. v. FCC, 76 F.3d 395 (D.C. Cir. 1996) (collectively, ``Emerging
Technologies proceeding''). See also Teledesic, LLC v. FCC, 275 F.3d
75 (D.C. Cir. 2001) (affirming modified relocation scheme for new
satellite entrants to the 17.7-19.7 GHz band). See also Amendment to
the Commission's Rules Regarding a Plan for Sharing the Costs of
Microwave Relocation, WT Docket No. 95-157, First Report and Order
and Further NPRM of Proposed Rule Making, 11 FCC Rcd 8825 (1996);
Second Report and Order, 12 FCC Rcd 2705 (1997) (collectively,
Microwave Cost Sharing proceeding).
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47. The Fifth NPRM seeks comment on what specific relocation
procedures are best suited for the incumbent BRS operators in the 2150-
2160/62 MHz band. For example, we propose a mandatory negotiation
period that must expire before an emerging technology licensee could
proceed to request involuntary relocation and, due to the nature of
BRS, ask whether we should establish separate, individually triggered
negotiation periods for each BRS licensee. We also seek to develop
rules that will enable AWS licensees to determine when their proposed
operations would cause interference to incumbent BRS systems operating
in the 2150-2160 MHz band, such that the relocation of those systems
would be necessary before AWS operations could begin. We identified a
number of options for setting forth these technical requirements,
including implementation of a ``distance'' table that identifies the
distance from an AWS station within which a BRS station must be
protected, and the use of the TIA TSB 10-F standard to determine when
interference is expected to occur to BRS stations. The Fifth NPRM
similarly seeks comment on specific relocation procedures for incumbent
FS operations in the 2160-2175 MHz band, including options for
modifying sunset periods to accommodate new AWS entrants in the band.
The Fifth NPRM recognizes that we have traditionally provided for cost
sharing among multiple new entrants that benefit from the relocation of
incumbent licensees, and seeks comment on what cost sharing
responsibilities should be implemented between the first AWS entrant
and other subsequent AWS entrants in the 2150-2160/62 MHz and the 2160-
2175 MHz bands. We note that in the Emerging Technologies and Microwave
Cost Sharing proceedings, the Commission established procedures for
relocating incumbent operations by new technology licensees in the
2160-2200 MHz band whereby the new licensees that relocate a paired
microwave link with one path in the 2110-2150 MHz portion of the band
and the other paired path in the 2160-2200 MHz portion of
[[Page 61761]]
the band are entitled to reimbursement for a portion of their
relocation expenses. Because these procedures encompass the 2160-2175
MHz band discussed in the Fifth NPRM, we seek comment on the
appropriate application of cost sharing requirements. One option is to
establish new cost sharing procedures for the band that are based on
our existing part 24 cost sharing rules that were used for PCS
relocation, while at the same time retaining and integrating the
existing cost sharing requirement in part 101.
48. After evaluating comments filed in response to the Fifth NPRM,
the Commission will examine further the impact of all rule changes on
small entities and set forth its findings in the Final Regulatory
Flexibility Analysis.
B. Legal Basis
49. The proposed action is authorized under sections 1, 4(i), 7(a),
301, 303(f), 303(g), 303(r), 307, 316, and 332 of the Communications
Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157(a), 301, 303(f),
303(g), 303(r), 307, 316, and 332.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
50. 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 proposed rules, if adopted.\6\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \7\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\8\ A small business concern is one which:
(1) Is independently owned and operated; (2) is not dominant in its
field of operation; and (3) satisfies any additional criteria
established by the SBA.\9\
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\6\ 5 U.S.C. 603(b)(3).
\7\ 5 U.S.C. 601(6).
\8\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in 15 U.S.C. 632). Pursuant to the
RFA, the statutory definition of a small business applies ``unless
an agency, after consultation with the Office of Advocacy of the
Small Business Administration and after opportunity for public
comment, establishes one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\9\ Small Business Act, 15 U.S.C. 632 (1996).
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51. Broadband Radio Service. The Broadband Radio Service (BRS)
consists of Multichannel Multipoint Distribution Service (MMDS)
systems, which were originally licensed to transmit video programming
to subscribers using the microwave frequencies of Multipoint
Distribution Service (MDS) and Instructional Television Fixed Service
(ITFS).\10\ In connection with the 1996 MDS auction, the Commission
defined ``small business'' as an entity that, together with its
affiliates, has average gross annual revenues that are not more than
$40 million for the preceding three calendar years. The SBA has
approved of this standard.\11\ The MDS auction resulted in 67
successful bidders obtaining licensing opportunities for 493 Basic
Trading Areas (BTAs).\12\ Of the 67 auction winners, 61 claimed status
as a small business. At this time, we estimate that of the 61 small
business MDS auction winners, 48 remain small business licensees. In
addition to the 48 small businesses that hold BTA authorizations, there
are approximately 392 incumbent MDS licensees that have gross revenues
that are not more than $40 million and are thus considered small
entities.\13\
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\10\ Amendment of Parts 21 and 74 of the Commission's Rules with
Regard to Filing Procedures in the Multipoint Distribution Service
and in the Instructional Television Fixed Service and Implementation
of Section 309(j) of the Communications Act--Competitive Bidding,
Report and Order, 10 FCC Rcd 9589, 9593, paragraph 7 (1995) (``MDS
Auction R&O'').
\11\ See Letter to Margaret Wiener, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, FCC, from
Gary Jackson, Assistant Administrator for Size Standards, Small
Business Administration (dated Mar. 20, 2003) (noting approval of
$40 million size standard for MDS auction).
\12\ Basic Trading Areas (BTAs) were designed by Rand McNally
and are the geographic areas by which MDS was auctioned and
authorized. See MDS Auction R&O, 10 FCC Rcd at 9608, paragraph 34.
\13\ 47 U.S.C. 309(j). Hundreds of stations were licensed to
incumbent MDS licensees prior to implementation of section 309(j) of
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-
auction licenses, the applicable standard is SBA's small business
size standard for ``other telecommunications'' (annual receipts of
$12.5 million or less). See 13 CFR 121.201, NAICS code 517910.
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52. In addition, the SBA has developed a small business size
standard for Cable and Other Program Distribution,\14\ which includes
all such companies generating $12.5 million or less in annual
receipts.\15\ According to Census Bureau data for 1997, there were a
total of 1,311 firms in this category that had operated for the entire
year.\16\ 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.\17\ Consequently, we estimate that the
majority of providers in this service category are small businesses
that may be affected by the proposed rules and policies. Because the
Commission's proposals only affect BRS operations in the 2155-2160/62
MHz band, the actual number of BRS providers who will be affected by
the proposed relocation procedures will only represent a small fraction
of these small businesses.
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\14\ 13 CFR 121.201, NAICS code 517510.
\15\ Id.
\16\ U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Establishment and Firm Size (Including Legal Form of
Organization),'' Table 4 (issued October 2000).
\17\ Id.
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53. Fixed Microwave Services. Microwave services include common
carrier,\18\ private-operational fixed,\19\ and broadcast auxiliary
radio services.\20\ At present, there are approximately 36,708 common
carrier fixed licensees and 59,291 private operational-fixed licensees
and broadcast auxiliary radio licensees in the microwave services. The
Commission has not yet defined a small business with respect to
microwave services. For purposes of the FRFA, we will use the SBA's
definition applicable to Cellular and other Wireless Telecommunications
companies--i.e., an entity with no more than 1,500 persons.\21\
According to Census Bureau data for 1997, there were 977 firms in this
category, total, that operated for the entire year.\22\ Of this total,
965 firms had employment of 999 or fewer employees, and an additional
twelve firms had employment of 1,000 employees or more.\23\ Thus, under
this size standard, majority of firms can be considered small. We note
that the number of firms does not necessarily track the number of
licensees. We
[[Page 61762]]
estimate that all of the Fixed Microwave licensees (excluding broadcast
auxiliary licensees) would qualify as small entities under the SBA
definition.
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\18\ 47 CFR part 101 et seq. (formerly, part 21 of the
Commission's Rules) for common carrier fixed microwave services
(except MDS).
\19\ Persons eligible under Parts 80 and 90 of the Commission's
rules can use Private-Operational Fixed Microwave services. See 47
CFR parts 80 and 90. Stations in this service are called
operational-fixed to distinguish them from common carrier and public
fixed stations. Only the licensee may use the operational-fixed
station, and only for communications related to the licensee's
commercial, industrial, or safety operations.
\20\ Auxiliary Microwave Service is governed by Part 74 of Title
47 of the Commission's Rules. See 47 CFR Part 74 et seq. Available
to licensees of broadcast stations and to broadcast and cable
network entities, broadcast auxiliary microwave stations are used
for relaying broadcast television signals from the studio to the
transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes mobile TV pickups, which
relay signals from a remote location back to the studio.
\21\ 13 CFR 121.201, NAICS code 517212.
\22\ U.S. Census Bureau, 1997 Economic Census, Subject Series:
Information, ``Employment Size of Firms Subject to Federal Income
Tax: 1997,'' Table 5 (issued Oct. 2000).
\23\ Id. The census data do not provide a more precise estimate
of the number of firms that have employment of 1,500 or fewer
employees; the largest category provided is ``Firms with 1,000
employees or more.''
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D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
54. The Fifth NPRM seeks comment on proposals for relocation
procedures applicable to BRS licensees in the 2150-2160/62 MHz band FS
licensees in the 2160-2175 MHz band, but does not propose service
rules. Thus, the item contains no new reporting, recordkeeping, or
other compliance requirements.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
55. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or 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 any part thereof, for small
entities.\24\
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\24\ See 5 U.S.C. 603(c).
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56. The proposals contained in the Fifth NPRM are designed to
provide spectrum to support the introduction of new advanced mobile and
fixed terrestrial wireless services. This action is critical to the
continuation of technological advancement, furthers the goals of the
Telecommunications Act of 1996, and serves the public interest. We are
likewise committed to ensuring that the disruption to incumbent
operations and the economic impact of this proceeding on incumbent
licensees is minimal. As discussed in Section A, supra, we have
proposed to establish rules based on our existing Emerging Technologies
relocation procedures to govern the entry of new licensees into the
2150-2160/62 MHz and 2160-2175 MHz bands. An alternative option would
be to offer no relocation process, and instead require incumbent
licensees to cease use of the band by a date certain and prohibit new
licensees from entering the band until that date. We believe that an
Emerging Technologies-based relocation procedure is preferable, as it
draws on established and well known principles (such as time-based
negotiation periods and the requirement of negotiating in good faith),
benefits small BRS and FS licensees because the proposals would require
new AWS licensees to pay for the costs to relocate their incumbent
operations to comparable facilities, and--for small AWS licensees--
offers a process by which new services can be brought to the market
expeditiously. Moreover, we believe that the provision of additional
spectrum that can be used to support AWS will directly benefit small
business entities by providing new opportunities for the provision of
innovative new fixed and mobile wireless services.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
57. None.
Ordering Clauses
58. Pursuant to Sections 1, 4(i), 7(a), 301, 303(f), 303(g),
303(r), 307, 316, and 332 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r),
307, 316, and 332, this Fifth NPRM of proposed rule making is adopted.
59. Notice is hereby given of the proposed regulatory changes
described in this Fifth NPRM of proposed rule making, and that comment
is sought on these proposals.
60. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of this Eighth Report
and Order and Fifth NPRM of proposed rule making, including the Final
Regulatory Flexibility Analysis and the Initial Regulatory Flexibility
Analysis to the Chief Counsel for Advocacy of the Small Business
Administration.
Federal Communications Commission.
Marlene H. Dortch.
Secretary.
[FR Doc. 05-21407 Filed 10-25-05; 8:45 am]
BILLING CODE 6712-01-P