[Federal Register: March 18, 2005 (Volume 70, Number 52)]
[Proposed Rules]
[Page 13143-13151]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18mr05-29]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[WT Docket No. 05-62; FCC 05-31]
Amendment of the Commission's Rules to Provide for Flexible Use
of the 896-901 MHz and 935-940 MHz Bands Allotted to the Business and
Industrial Land Transportation Pool, and Oppositions
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission proposes amendments of its
rules to facilitate more flexible use of the 199 channels allocated to
the Business and Industrial Land Transportation (B/ILT) Pools in the
896-901/935-940 MHz (900 MHz) bands, by permitting any use of the B/ILT
channels in the 900 MHz band that is consistent with the band's fixed
and mobile allocations. In addition, the Commission proposes to license
the remaining spectrum using a geographic area licensing scheme, and to
adopt service rules, including licensing, technical and operational
rules for the new geographic licensees. Further, the Commission seeks
comment on competitive bidding rules and procedures to be used in the
event that mutually exclusive applications are filed for the 900 MHz
proposed geographic licenses.
DATES: Comments are due on or before April 18, 2005. Reply comments are
due May 2, 2005.
ADDRESSES: You may submit comments, identified by WT Docket No. 05-62,
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.
Email: To receive filing instructions for e-mail comments,
commenters should send an e-mail to ecfs@fcc.gov, and should include
the following words in the body of the message, ``get form < your e-mail
address>.'' A sample form and directions will be sent in reply. Include
the docket number(s) in the subject line of the message.
Mail: Appropriate addresses for submitting comments and
reply comments may be found in the SUPPLEMENTARY INFORMATION section of
this document.
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.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act information collection
requirements contained herein should be submitted to Judith B. Herman,
Federal Communications Commission, Room 1-C804, 445 12th Street, SW.,
Washington, DC 20554, or via the Internet to Judith-B.Herman@fcc.gov,
and to Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th
Street, NW., Washington, DC 20503, via the Internet to Kristy--L.
LaLonde@omb.eop.gov, or via fax at 202-395-5167.
FOR FURTHER INFORMATION CONTACT: Michael Connelly, Wireless
Telecommunications Bureau, at (202) 418-0620.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Notice and Proposed Rulemaking (NPRM), FCC
05-31, in WT Docket No. 05-62, adopted February 10, 2005, and released
February 16, 2005. The full text of this document is available for
public inspection during regular business hours at the FCC Reference
Information Center, 445 12th St., SW., Room CY-A257, Washington, DC
20554. The complete text may be purchased from the Commission's
duplicating contractor: Best Copy & Printing, Inc., 445 12th Street,
SW., Room CY-B402, Washington, DC, 20554, telephone 800-378-3160,
facsimile 202-488-5563, or via e-mail at http://www.fcc@bcpiweb.com">www.fcc@bcpiweb.com.
Paperwork Reduction Act
This document does not contain proposed information collection
requirements subject to the Paperwork Reduction Act of 1995, Public Law
104-13. In addition, therefore, it does not contain any proposed
information collection burden ``for small business concerns with fewer
than 25 employees,'' pursuant to the Small Business Paperwork Relief
Act of 2002,
[[Page 13144]]
Public Law 107-198, see 44 U.S.C. 3506(c)(4).
Pursuant to Sec. Sec. 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 website 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 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: Contact the FCC to request materials in
accessible formats (braille, large print, electronic files, audio
format, etc.) by e-mail at FCC504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202-418-0531 (voice), 202-418-7365
(TTY).
Synopsis of Notice of Proposed Rulemaking
I. Background
1. In 1986, the Commission established a pool structure for the 900
MHz PLMR spectrum and allocated 2.5 MHz for the Industrial/Land
Transportation Pool (99 channels) and 2.5 MHz for the Business Pool
(100 channels) (collectively, the B/ILT Pools). The B/ILT Pools were
established for use by site-by-site licensees engaged in commercial
activities, the operation of educational, philanthropic, or
ecclesiastical institutions, clergy activities, or the operation of
hospitals, clinics, or medical associations. In addition, eligibility
was also provided for any corporations furnishing nonprofit radio
communication service to its parent corporation or subsidiary.
Currently, applications for use of the B/ILT frequencies are limited to
private, internal use systems.
2. On July 8, 2004, in its 800 MHz Report and Order, 69 FR 67,823,
the Commission adopted significant technical and procedural measures
designed to address the problem of interference to public safety
communications in the 800 MHz band. As part of its reconfiguration plan
at 800 MHz, the Commission consolidated the B/ILT Pools in the 800 MHz
and 900 MHz bands, allowing any eligible B/ILT licensee to be licensed
on the consolidated channels. The Commission also provided for
additional flexibility in the 900 MHz band by allowing 900 MHz PLMR
licensees to initiate CMRS operations on their currently authorized
spectrum or to assign their authorizations to others for CMRS use. The
Commission reasoned that since it permitted CMRS use of PLMR
frequencies in the 800 MHz land mobile band, similar rules should apply
in the 900 MHz land mobile spectrum, in the interest of regulatory
symmetry. The Commission also noted that in order to provide the
``green space'' necessary to effect reconfiguration of the 800 MHz
band, some operations may need to shift from the 800 MHz to 900 MHz
band.
II. Discussion
A. Flexible Use, Regulatory Framework, and Assignment of Licenses
3. The Commission proposes service rules for the new 900 MHz
channels that would provide licensees flexible use. The Commission
expects the economic efficiencies of flexibility to foster, not deter,
technology development and investment in communications services and
systems. The Commission seeks comment on its tentative conclusion to
continue to license these bands under the framework of part 90 of our
rules.
B. Band Plan and Size of Geographic Service Areas
4. The Commission tentatively concludes that it should license this
900 MHz spectrum using a geographic area licensing scheme, believing
that geographic area licensing will maximize flexibility, permit new
and innovative technologies to rapidly develop in these bands, and
allow a licensee substantial flexibility to respond to market demand,
resulting in significant improvements in spectrum utilization. Should
the Commission adopt a geographic area approach for licensing the
flexible-use spectrum, it seeks comment on the appropriate size of that
geographic area. In particular, the Commission asks whether it should
adopt Major Economic Areas (MEAs) or Basic Economic Areas (EAs). The
Commission notes that MEAs may have the effect of creating
opportunities for both existing licensees and new entrants to meet
customer demands for wide-area service, increasing spectrum efficiency,
providing better quality service to end users, and allowing service to
reach potential end users that may otherwise be without adequate
communication options, while Basic Economic Areas (EAs) may provide
greater opportunities for small and medium-sized businesses to
successfully compete against larger, well-financed bidders, and that
EAs may facilitate the ability of incumbents and other small and
medium-sized operators of smaller systems to participate in geographic
area licensing.
C. Channel Block Size
5. The Commission seeks comment on its proposal to license the 900
MHz flexible-use channels in nineteen blocks of ten contiguous channels
each, and one block of nine contiguous channels.
[[Page 13145]]
The Commission believes the proposed configuration can provide
operational flexibility and efficiency by allowing providers to use new
technologies and compete effectively with other commercial providers,
and avoids the transaction costs associated with reaggregation of
spectrum, while promoting the flexibility necessary to facilitate
secondary market uses. The Commission also asks whether a more viable
option under an EA-based licensing approach might include nine blocks
of twenty non-contiguous channels each and one block of nineteen non-
contiguous channels, which would allow potential bidders to acquire a
larger number of channels, albeit in smaller geographic areas.
Commenters might also consider the option of dedicating the upper four
channel blocks (i.e., QQ, RR, SS, TT) to traditional B/ILT services.
The Commission also asks commenters to consider whether to permit
potential bidders to bid on licenses comprising multiple band plans
according to the band plan configuration they prefer and use the
bidders' collective valuation of licenses consistent with each band
plan in determining which band plan to implement. The Commission seeks
comment on its proposal to permit licensees to aggregate blocks and to
allow both incumbents and new entrants to bid on the spectrum.
D. Operational Flexibility
6. The Commission seeks comment on its tentative conclusion that
geographic area licensees in the 900 MHz band should be permitted to
construct stations at any authorized site and on any available channel
within their licensing area, and that geographic area licensees may
expand or modify facilities throughout their service areas without
prior Commission approval, so long as the systems continue to be in
compliance with the Commission's technical and operational rules,
protect incumbents, and are consistent with international requirements
and approvals.
E. Treatment of Incumbent Systems
7. The Commission proposes that geographic area licensees afford
the same protection to incumbent B/ILT systems as is provided to
incumbents by existing 900 MHz SMR MTA licensees, and tentatively
concludes that the geographic area licensee's co-channel obligations
cease upon the deletion of a revoked or terminated co-channel station
authorization from the Commission's licensing records. Although the
Commission believes this interference protection proposal will
adequately protect incumbent operations, it asks commenters to consider
whether additional interference protection requirements are needed. The
Commission notes that licensees may be faced with the same interference
problems that necessitated the remedies adopted in the 800 MHz R&O
unless equivalent interference abatement requirements are established
at 900 MHz. Also, the Commission proposes to define the existing
service area of an incumbent B/ILT system by its originally-licensed 40
dB[mu]V/m field strength contour, and to permit incumbent licensees to
add or modify transmit sites in their existing service area, without
prior approval or without post construction notification to the
Commission, so long as their original 40 dB[mu]V/m signal is not
expanded.
8.The Commission also seeks comment on whether to provide an option
for incumbent licensees to return their licensees through an auction
that includes the new geographic area overlay licenses for white space
as well as any site-based licenses currently held by incumbent
licensees who may be willing to exchange or sell their licenses. In
versions of this general form of auction discussed by the Commission,
existing licensees would not be required to relinquish their rights,
but they would be likely to do so if compensation for their license
exceeded the value to them of continuing with their current use. Such a
mechanism to promote the efficient transition of incumbent users may be
most useful in situations in which the anticipated use of the spectrum
under new service rules is incompatible with the continued existence of
incumbents operating legacy systems in the band. While the Commission
expects that the overlay licenses it makes available in this proceeding
will be useful for providing new services regardless of the existence
of site-based B/ILT users, the availability of incumbent providers'
licenses may encourage a quicker and smoother transition of the 900 MHz
spectrum to uses consistent with the more flexible service rules
proposed here.
F. Emission and Field Strength Limits
9. Regarding emissions, the Commission seeks comment on its
proposal that, on any frequency in a geographic area licensee's
spectrum block that is adjacent to a non-geographic area frequency, the
power of any emission shall be attenuated below the transmitter power
(P) by at least 43 plus 10 log10 (P) decibels or 80
decibels, whichever is the lesser attenuation; the Commission
tentatively concludes that this emission mask would adequately protect
licensees in neighboring spectrum. Regarding field strength limits, the
Commission requests comment on whether 40 dB[mu]V/m is an appropriate
field strength level for a geographic area licensee's operations at its
service area border, and asks commenters to address whether this limit
furthers the Commission's goal of avoiding harmful interference or
whether stricter requirements are necessary.
G. Performance Requirements and Other Operating and Technical Rules
10. The Commission proposes to require new 900 MHz licensees to
submit to the Commission a showing of substantial service (as opposed
to a population benchmark) in their licensed area within either five or
ten years of being licensed, believing that this performance
requirement could provide greater flexibility for parties interested in
entering into spectrum leasing arrangements involving this spectrum, as
well as for providing service to rural or sparsely populated areas. The
Commission also seeks comment on whether it should modify existing
coverage requirements for 900 MHz SMR services to mirror the proposed
substantial service showing for those 900 MHz licensees permitted
flexible spectrum use; whether to retain or eliminate loading
requirements as they apply to existing B/ILT authorizations; and
whether the general provisions of part 90 to the 900 MHz B/ILT ``white
space'' spectrum is appropriate.
H. Competitive Bidding Procedures
11. The Commission proposes to conduct the auction for these 900
MHz channel licenses under the general competitive bidding rules
established in part 1, subpart Q of the Commission's Rules, and
substantially consistent with the bidding procedures that have been
employed in previous Commission auctions, including rules governing
designated entities, application and payment procedures, reporting
requirements, collusion issues, and unjust enrichment. The Commission
also proposes small business bidding credits to further the statutory
goals of ensuring that small businesses, rural telephone companies, and
businesses owned by members of minority groups and women are given the
opportunity to participate in the provision of spectrum-based services.
The Commission seeks comment on its proposal to define a small business
as an entity with average annual gross revenues for the three preceding
years not to exceed $15 million, and to define a very small
[[Page 13146]]
business as an entity with average annual gross revenues for the three
preceding years not to exceed $3 million. The Commission seeks comment
on these proposals.
III. Procedural Matters
A. Initial Regulatory Flexibility Act Analysis
12. As required by the Regulatory Flexibility Act of 1980 (RFA),
the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities of
the policies and rules proposed in the Notice. The analysis is found in
Appendix B of the NPRM. The Commission requests written public comment
on the analysis. Comments must be filed by the same dates as listed in
paragraph 70 of the NPRM, and must have a separate and distinct heading
designating them as responses to the IRFA. The Commission's Consumer
and Governmental Affairs Bureau, Reference Information Center, will
send a copy of the NPRM, including the IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration.
B. Need for, and Objectives of, the Notice of Proposed Rulemaking and
Memorandum Opinion and Order
13. In the NPRM, the Commission proposes amendments to part 90 of
its rules to facilitate more flexible use of the 199 channels allocated
to the Business and Industrial Land Transportation (B/ILT) Pool in the
896-901/935-940 MHz (900 MHz) bands. The Commission proposes to permit
any use of the B/ILT channels in the 900 MHz band that is consistent
with the band's fixed and mobile allocations, and to license the
remaining spectrum or ``white space'' using a geographic area licensing
scheme and propose competitive bidding rules to select from among
mutually exclusive applicants. The Commission also sets forth proposals
for auction procedures for the remaining 900 MHz spectrum in the B/ILT
category channels. The Commission believes these proposed rules will
serve its twin goals of providing service to the public consistently
and expeditiously, and allowing the marketplace to respond to consumer
demands, and notes that allowing for flexible use of this spectrum will
greatly aid in facilitating band reconfiguration occurring at 800 MHz.
The Commission believes that the rules and policies proposed in the
NPRM strike a fair and equitable balance between the interests of
incumbent B/ILT licensees, and those seeking to provide geographic area
service, and further believes that these rules and policies will
promote competition, while providing opportunities for incumbents to
continue to pursue their business plans.
C. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
14. 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 and policies, if adopted. 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
SBA.
15. Small Businesses. Nationwide, there are a total of 22.4 million
small businesses, according to SBA data.
16. Small Organizations. Nationwide, there are approximately 1.6
million small organizations.
17. Small Governmental Jurisdictions. The term ``small governmental
jurisdiction'' is defined as ``governments of cities, towns, townships,
villages, school districts, or special districts, with a population of
less than fifty thousand.'' As of 1997, there were approximately 87,453
governmental jurisdictions in the United States. This number includes
39,044 county governments, municipalities, and townships, of which
37,546 (approximately 96.2%) have populations of fewer than 50,000, and
of which 1,498 have populations of 50,000 or more. Thus, we estimate
the number of small governmental jurisdictions overall to be 84,098 or
fewer.
18. The Commission has determined that 1,040, or more, licenses
will be awarded in the 896-901 MHz and 935-940 MHz B/ILT MHz bands; the
Commission does not yet know how many applicants or licensees in these
bands will be small entities. Thus, the Commission assumes, for
purposes of this IRFA, that all prospective licensees are small
entities as that term is defined by the SBA or by our proposed small
business definitions for these bands. The Commission invites comment on
this analysis.
19. Wireless Service Providers. The SBA has developed a small
business size standard for wireless firms within the two broad economic
census categories of ``Paging'' and ``Cellular and Other Wireless
Telecommunications.'' Under both SBA categories, a wireless business is
small if it has 1,500 or fewer employees. For the census category of
Paging, Census Bureau data for 1997 show that there were 1,320 firms in
this category, total, that operated for the entire year. Of this total,
1,303 firms had employment of 999 or fewer employees, and an additional
17 firms had employment of 1,000 employees or more. Thus, under this
category and associated small business size standard, the great
majority of firms can be considered small. For the census category
Cellular and Other Wireless Telecommunications, Census Bureau data for
1997 show that there were 977 firms in this category, total, that
operated for the entire year. Of this total, 965 firms had employment
of 999 or fewer employees, and an additional 12 firms had employment of
1,000 employees or more. Thus, under this second category and size
standard, the great majority of firms can, again, be considered small.
20. Wireless Telephony. Wireless telephony includes cellular,
personal communications services, and specialized mobile radio
telephony carriers. The SBA has developed a small business size
standard for ``Cellular and Other Wireless Telecommunications''
services. Under that SBA small business size standard, a business is
small if it has 1,500 or fewer employees. According to Commission data,
447 carriers reported that they were engaged in the provision of
wireless telephony. We have estimated that 245 of these are small under
the SBA small business size standard.
21. Broadband Personal Communications Service. The broadband
personal communications services (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission has created a small business
size standard for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar years.
For Block F, an additional small business size standard for ``very
small business'' was added and is defined as an entity that, together
with its affiliates, has average gross revenues of not more than $15
million for the preceding three calendar years. These small business
size standards, in the context of broadband PCS auctions, have been
approved by the SBA. No small businesses within the SBA-approved small
business size standards bid successfully for licenses
[[Page 13147]]
in Blocks A and B. There were 90 winning bidders that qualified as
small entities in the Block C auctions. A total of 93 ``small'' and
``very small'' business bidders won approximately 40 percent of the
1,479 licenses for Blocks D, E, and F. On March 23, 1999, the
Commission reauctioned 155 C, D, E, and F Block licenses; there were
113 small business winning bidders.
22. On January 26, 2001, the Commission completed the auction of
422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning
bidders in this auction, 29 qualified as ``small'' or ``very small''
businesses. Subsequent events concerning Auction 35, including judicial
and agency determinations, resulted in a total of 163 C and F Block
licenses being available for grant.
23. Cellular Licensees. The SBA has developed a small business size
standard for wireless firms within the broad economic census category
``Cellular and Other Wireless Telecommunications.'' Under this SBA
category, a wireless business is small if it has 1,500 or fewer
employees. For the census category Cellular and Other Wireless
Telecommunications firms, Census Bureau data for 1997 show that there
were 977 firms in this category, total, that operated for the entire
year. Of this total, 965 firms had employment of 999 or fewer
employees, and an additional 12 firms had employment of 1,000 employees
or more. Thus, under this category and size standard, the great
majority of firms can be considered small. According to Commission
data, 447 carriers reported that they were engaged in the provision of
cellular service, personal communications service, or specialized
mobile radio telephony services, which are placed together in the data.
We have estimated that 245 of these are small, under the SBA small
business size standard.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
24. The NPRM proposes to amend part 90 of the Commission's rules to
facilitate more flexible use of the 199 channels allocated to the
Business and Industrial Land Transportation (B/ILT) Pools in the 896-
901/935-940 MHz (900 MHz) bands, to permit any use of the B/ILT
channels in the 900 MHz band that is consistent with the band's fixed
and mobile allocations. It also proposes to license the unencumbered
spectrum through geographic area licensing. Accordingly, the Commission
proposes service rules, including licensing, technical and operational
rules for the new geographic licensees, and seeks comment on defining
the rights of B/ILT licensees already operating in the 900 MHz band.
The Commission also seeks comment on competitive bidding rules and
procedures to be used in the event that mutually exclusive applications
are filed for the 900 MHz proposed geographic licenses.
25. In paragraphs 12-14 of the NPRM, the Commission proposes
service rules for the new 900 MHz channels that would provide licensees
with the flexibility to employ this spectrum for any use permitted by
the United States Table of Frequency Allocations contained in part 2 of
our rules (i.e., fixed or mobile services), believing that such
flexibility fully meets criteria set forth in section 303(y) of the
Communications Act of 1934, as amended. The NPRM tentatively concludes
that such use would be consistent with applicable international
agreements, and that the public interest benefits of flexibility are
numerous, and notes that the Commission has identified the
establishment of maximum feasible flexibility in both spectrum
designations and allocations and service rules as a critical means of
ensuring that spectrum is put to its most beneficial use.
The Commission believes that the economic efficiencies of
flexibility foster, rather than deter, technology development and
investment in communications services and systems.
26. In paragraphs 17-19 of the NPRM, the Commission seeks comment
on its proposal to license this 900 MHz spectrum using geographic area
licensing, believing that such a licensing scheme is well-suited for
the types of fixed and mobile services that will likely develop in this
overlay band. The Commission invites commenters to explain any
opposition and the costs and benefits associated with any preferable
licensing proposal. In paragraphs 21-25, the Commission seeks comment
on its proposal to adopt Major Economic Areas (``MEAs''), or, in the
alternative, Economic Areas (``EAs'') as the appropriate geographic
size. On the one hand, allowing the new 900 MHz licensees the use of
frequencies for systems providing coverage across wide areas will
increase spectrum efficiency, provide better quality service to end
users, and allow service to reach potential end users that may
otherwise be without adequate communication options, and that the MEA-
based licensees will be in a better position to address the needs of
system users, customers, or lessees that have wide-area requirements;
on the other hand, EAs, which are more than three times the number of
delineated economic areas than MEAs, may facilitate the ability of
incumbents and other small and medium-sized operators of smaller
systems to participate in geographic area licensing. Adopting an EA-
based licensing scheme may permit small bidders and rural companies
wishing smaller license areas to obtain them directly at auction rather
than facing the uncertainty and transaction costs of working out post-
auction partitioning agreements.
27. In paragraphs 26-30 of the NPRM, the Commission proposes to
license the 900 MHz flexible-use channels in nineteen blocks of ten
contiguous channels each, and one block of nine contiguous channels,
with each ten-channel block separately licensed. Under the Commission's
proposal, applicants would be permitted to aggregate blocks if they
wish, without eligibility restriction for any channel block. The
Commission seeks comment on whether the proposed 900 MHz channel block
plan strikes a balance in affording small, medium and large operators
the opportunity to obtain sufficient spectrum to establish viable and
competitive wide-area systems, and whether the plan offers a middle
ground between larger channel blocks that may block entry to new,
smaller operators, and smaller block sizes that may hinder wide-area
operations.
28. In paragraphs 45-51 of the NPRM, the Commission proposes that
the new 900 MHz licensees submit to the Commission a showing of
substantial service in their licensed area within five or ten years of
being licensed. In making this proposal, the Commission notes that a
population-based benchmark may be a considerable obstacle for the
provision of services in rural or sparsely populated areas, and that
population-based coverage requirements may be difficult to achieve due
to existing band encumbrances. The Commission also believes that the
ten-year substantial service requirement provides greater flexibility
for parties interested in entering into spectrum leasing arrangements
involving this spectrum.
29. In paragraphs 58-63 of the NPRM, the Commission proposes small
business bidding credits to further the goals of ensuring that small
businesses, rural telephone companies, and businesses owned by members
of minority groups and women are given the opportunity to participate
in the provision of spectrum-based services, and promoting economic
opportunity and competition by avoiding excessive concentration of
licenses and by disseminating licenses among a wide variety of
applicants, including small businesses, rural telephone companies,
[[Page 13148]]
and businesses owned by members of minority groups and women. To that
end, the Commission proposes a 10 percent bidding credit for small
business and a 15 percent bidding credit for very small businesses.
30. The Commission requests comment on how these proposed rules may
be modified to reduce the burden on small entities and still meet the
objectives of the proceeding.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
31. 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.
32. The NPRM proposes to establish small business bidding credits
to further the goals of ensuring that small businesses, rural telephone
companies, and businesses owned by members of minority groups and women
are given the opportunity to participate in the provision of spectrum-
based services, with a 10 percent bidding credit for small business and
a 15 percent bidding credit for very small businesses. In addition, the
NPRM solicits comment on a number of proposals and alternatives
regarding the service rules for the 900 MHz band, and seeks to adopt
rules that will reduce regulatory burdens, promote innovate services
and encourage flexible use of this spectrum. The Commission believes
the proposed rules will open up economic opportunities to a variety of
spectrum users, which could include small businesses. Because the
Commission seeks to minimize, to the extent possible, the economic
impact on small businesses, the NPRM sets forth various proposals and
alternatives for parties to consider.
33. The NPRM invites comment on various alternative licensing and
service rules and on a number of issues relating to how the Commission
should craft service rules for this spectrum that could have an impact
on small entities. The NPRM proposes a geographic area approach to
service areas, as opposed to a station-defined licensing approach, and
seeks comment on the appropriate size of service areas. Specifically,
the NPRM asks for comment on whether smaller geographic areas would
better serve the needs of small entities.
34. The regulatory burdens proposed in the NPRM appear necessary in
order to ensure that the public receives the benefits of innovative new
services, or enhanced existing services, in a prompt and efficient
manner. The Commission will continue to examine alternatives in the
future with the objectives of eliminating unnecessary regulations and
minimizing any significant economic impact on small entities. The
Commission invites comment on any additional significant alternatives
parties believe should be considered and on how the approach outlined
in the NPRM will impact small entities, including small businesses and
small government entities.
IV. Ordering Clauses
35. Pursuant to the authority of sections 1, 2, 4(i), 7, 10, 201,
214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201,
214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, this Notice
of Proposed Rulemaking is adopted.
List of Subjects of 47 CFR part 90
Communications common carriers.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 90 as follows:
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
1. The authority citation of part 90 continues to read as follows:
Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161,
303(g), 303(r), 332(c)(7).
2. Amend Sec. 90.7 by adding the definitions ``Major Economic Area
(MEA)'' and ``MEA-based license or MEA license'' in alphabetical order
to read as follows:
Sec. 90.7 Definitions.
* * * * *
Major Economic Area (MEA). An aggregation of Basic Economic Areas
(BEAs) into 52 regions, including the Gulf of Mexico.
* * * * *
MEA-based license or MEA license. A license authorizing the right
to use a specified block of SMR spectrum with one of the 52 Major
Economic Areas (``MEAs'').
* * * * *
Sec. 90.210 [Amended]
3. Amend Sec. 90.210 as follows:
(a) In the entry for 5850-5925 of the table ``APPLICABLE EMISSIONS
MASKS'' redesignate footnote 4 as footnote 5; and
(b) In the same table amend the entry for 896-901/935-940 Frequency
band MHz by adding a new footnote 4.
Sec. 90.210 Emission masks.
* * * * *
Applicable Emission Masks
------------------------------------------------------------------------
Mask for equipment Mask for equipment
Frequency band (MHz) with audio low pass without audio low
filter pass filter
------------------------------------------------------------------------
* * * * * * *
896-901/935-940 \4\......... I J
* * * * * * *
------------------------------------------------------------------------
\4\ Equipment used in this band licensed to MTA, EA or MEA or non
geographic based systems shall comply with the emission mask
provisions of Sec. 90.669 of this chapter.
[[Page 13149]]
* * * * *
4. Amend Sec. 90.617 by revising the section heading, revising
paragraph (c) preceding Table 3, by removing the undesignated paragraph
also preceding Table 3 (Table 3 remains unchanged), by revising
paragraph (f) preceding Table 6 (Table 6 remains unchanged), and by
adding Table 7 and a Note to Table 7 to paragraph (f) to read as
follows:
Sec. 90.617 Frequencies in the 809.750-824/854.750-869 MHz, and 896-
901/935-940 MHz bands available for trunked, conventional, or cellular
system use in non-border areas.
* * * * *
(c) The channels listed in Table 3 are available to applicants
eligible in the Industrial/Business Pool of subpart C of this part but
exclude Special Mobilized Radio Systems as defined in Sec. 90.603(c).
These frequencies are available in non-border areas. Specialized Mobile
Radio (SMR) systems may be authorized on these frequencies after
[Effective date of Report and Order]. For multi-channel systems,
channels may be grouped vertically or horizontally as they appear in
the following table.
* * * * *
(f) The channels listed in Table 6 are available for operations
only to eligibles in the SMR category--which consists of Specialized
Mobile Radio (SMR) stations and eligible end users. These frequencies
are available in non-border areas.
* * * * *
Note to Table 7: The channels listed in Table 7 are available to
Business/Industrial/Land Transportation of SMR eligibles for EA-
based or MEA-based licensing.
Table 7.--896-901/935-940 MHz Band Channels (199 Channels) Available After [Effective Date of Report and Order]
for Business/Industrial/Land Transportation or SMR Eligibles for EA-Based or MEA-Based Licensing
----------------------------------------------------------------------------------------------------------------
Block Channel Nos.
----------------------------------------------------------------------------------------------------------------
AA............................. 11-12-13-14-15-16-17-18-19-20
BB............................. 31-32-33-34-35-36-37-38-39-40
CC............................. 51-52-53-54-55-56-57-58-59-60
DD............................. 71-72-73-74-75-76-77-78-79-80
EE............................. 91-92-93-94-95-96-97-98-99-100
FF............................. 111-112-113-114-115-116-117-118-119-120
GG............................. 131-132-133-134-135-136-137-138-139-140
HH............................. 151-152-153-154-155-156-157-158-159-160
II............................. 171-172-173-174-175-176-177-178-179-180
JJ............................. 191-192-193-194-195-196-197-198-199-200
KK............................. 211-212-213-214-215-216-217-218-219-220
LL............................. 231-232-233-234-235-236-237-238-239-240
MM............................. 251-252-253-254-255-256-257-258-259-260
NN............................. 271-272-273-274-275-276-277-278-279-280
OO............................. 291-292-293-294-295-296-297-298-299-300
PP............................. 311-312-313-314-315-316-317-318-319-320
QQ............................. 331-332-333-334-335-336-337-338-339-340
RR............................. 351-352-353-354-355-356-357-358-359-360
SS............................. 371-372-373-374-375-376-377-378-379-380
TT............................. 391-392-393-394-395-396-397-398-399
----------------------------------------------------------------------------------------------------------------
* * * * *
5. Amend Sec. 90.619 by revising paragraph (b)(1) and removing the
undesignated text following paragraph (b)(1) (Table 1 remains
unchanged); revise paragraph (b)(2) and redesignate Table 2 in
paragraph (b)(2) as Table 2A, and by adding Table 2B, and a Note to
Table 2B in paragraph (b)(2) to read as follows:
Sec. 90.619 Frequencies available for use in the U.S./Mexico and
U.S./Canada border areas.
* * * * *
(b) * * *
(1) The channels listed in Table 1 are available to applicants
eligible in the Industrial/Business Pool of subpart C of this part but
exclude Special Mobilized Radio Systems as defined in Sec. 90.603(c).
These frequencies are available within the Mexico border region.
Specialized Mobile Radio (SMR) systems may be authorized on these
frequencies after [Effective date of Report and Order]. For multi-
channel systems, channels may be grouped vertically or horizontally as
they appear in the following table. Channels numbered above 200 may be
used only subject to the power flux density limits stated in paragraph
(a)(2) of this section.
* * * * *
(2) The channels listed in Table 2A below are available for
operations only to eligibles in the SMR category--which consists of
Specialized Mobile Radio (SMR) stations and eligible end users. These
frequencies are available in the Mexico border region.
* * * * *
Note to Table 2B: The channels listed in Table 2B are available
to Business/Industrial/Land Transportation or SMR eligibles for EA
or MEA based licensing in the Mexico border region after [Effective
date of Report and Order].
Table 2B.--896-901/935-940 MHz Band Channels (199 Channels) Available After [Effective Date of Report and Order]
for Business/Industrial/Land Transportation or SMR Eligibles for EA-Based or MEA-Based Licensing in United
States-Mexico Border Area
----------------------------------------------------------------------------------------------------------------
Block Channel Nos.
----------------------------------------------------------------------------------------------------------------
AA............................. 11-12-13-14-15-16-17-18-19-20
[[Page 13150]]
BB............................. 31-32-33-34-35-36-37-38-39-40
CC............................. 51-52-53-54-55-56-57-58-59-60
DD............................. 71-72-73-74-75-76-77-78-79-80
EE............................. 91-92-93-94-95-96-97-98-99-100
FF............................. 111-112-113-114-115-116-117-118-119-120
GG............................. 131-132-133-134-135-136-137-138-139-140
HH............................. 151-152-153-154-155-156-157-158-159-160
II............................. 171-172-173-174-175-176-177-178-179-180
JJ............................. 191-192-193-194-195-196-197-198-199-200
KK............................. 211-212-213-214-215-216-217-218-219-220
LL............................. 231-232-233-234-235-236-237-238-239-240
MM............................. 251-252-253-254-255-256-257-258-259-260
NN............................. 271-272-273-274-275-276-277-278-279-280
OO............................. 291-292-293-294-295-296-297-298-299-300
PP............................. 311-312-313-314-315-316-317-318-319-320
QQ............................. 331-332-333-334-335-336-337-338-339-340
RR............................. 351-352-353-354-355-356-357-358-359-360
SS............................. 371-372-373-374-375-376-377-378-379-380
TT............................. 391-392-393-394-395-396-397-398-399
----------------------------------------------------------------------------------------------------------------
Channels numbered above 200 may only be used subject to the power flux density limits at or beyond the Mexico
border as stated in paragraph (4) of this section.
* * * * *
6. Amend Sec. 90.621 by revising paragraph (b) introductory text
to read as follows:
Sec. 90.621 Selection and assignment of frequencies.
* * * * *
(b) Stations authorized on frequencies listed in this subpart,
except for those stations authorized pursuant to paragraph (g) of this
section and geographic-area-based systems, will be assigned frequencies
solely on the basis of fixed distance separation criteria. The
separation between co-channel systems will be a minimum of 113 km (70
mi) with one exception. For incumbent licensees in Channel Blocks G
through V, that have received the consent of all affected parties or a
certified frequency coordinator to utilize an 18 dB[mu]V/m signal
strength interference contour (see Sec. 90.693), the separation
between co-channel systems will be a minimum of 173 km (107 mi). The
following exceptions to these separations shall apply:
* * * * *
7. Amend Sec. 90.669 by revising paragraph (a) to read as follows.
The note following paragraph (a) remains unchanged.
Sec. 90.669 Emission limits.
(a) Out-of-band emission requirements shall apply only to the
``outer'' channels included in an MTA, EA, or MEA licensee and to
spectrum adjacent to interior channels used by incumbent licensees. On
any frequency in a MTA, EA, or MEA geographic-area-based licensee's
spectrum block that is adjacent to another licensee's frequency, the
power of any emission shall be attenuated below the transmitter power
(P) by at least 43 plus 10 log10(P) decibels or 80 decibels,
whichever is the lesser attenuation.
* * * * *
8. Revise Sec. 90.671 to read as follows:
Sec. 90.671 Field strength limits.
The predicted or measured field strength at any location on the
border of the service area for 896-901/935-940 MHz geographic-area-
based licensees shall not exceed 40 dB[mu]V/m unless all co-channel
bordering geographic-area-based licensees agree to a higher field
strength. Geographic-area-based licensees are also required to
coordinate their frequency usage with co-channel adjacent geographic-
area-based licensees and all other affected parties. To the extent that
a single entity obtains licenses for adjacent MTAs, EAs or MEAs on the
same channel block, it will not be required to coordinate its
operations in this manner. In the event that this standard conflicts
with the geographic-area-based licensee's obligation to provide co-
channel protection to incumbent licensees under Sec. 90.621(b), the
requirements of Sec. 90.621(b) shall prevail.
9. Amend subpart S by adding the undesignated center heading and
Sec. Sec. 90.678, 90.679, and 90.680 to read as follows:
Policies Governing Licensing and Use of EA-Based or MEA-Based Business/
Industrial/Land Transportation or SMR Systems in the 896-901/935-940
MHz Band
Sec. 90.678 EA-Based or MEA-Based Business/Industrial/Land
Transportation or SMR service areas.
EA or MEA licenses for spectrum blocks AA, BB, through TT, in the
896-940 MHz band listed in table 7 of Sec. 90.617(f) are available in
175 Economic Areas (EAs) or 52 Major Economic Areas (MEAs) as defined
in Sec. 90.7. Within these EAs or MEAs, licenses will be authorized in
ten channel blocks as specified in table 7 of Sec. 90.617(f) through
the competitive bidding procedures described in subpart U of this part.
Sec. 90.679 EA or MEA-based Business/Industrial/Land Transportation
or SMR system operations.
(a) EA or MEA-based licensees authorized in the 896-901/935-940 MHz
band pursuant to Sec. 90.678 may construct and operate base stations
using any frequency identified in their spectrum block anywhere within
their authorized licensed area, provided that:
(1) The EA or MEA licensee complies with any rules and
international agreements that restrict use of frequencies identified in
their spectrum block, including the provisions of Sec. 90.619 relating
to U.S./Canadian and U.S./Mexican border areas.
(2) The EA or MEA licensee limits its field strength at any
location on the border of the service area in accordance
[[Page 13151]]
with Sec. 90.671 and masks its emissions in accordance with Sec.
90.669.
(b) In the event that the authorization for a previously authorized
co-channel station within the geographic-area-based licensee's
authorized spectrum block is terminated or revoked, the licensee's co-
channel obligations to such station will cease upon deletion of the
facility from the Commission's licensing record. The EA or MEA licensee
then will be able to construct and operate base stations using such
frequency.
Sec. 90.680 Authorization, construction and implementation of EA or
MEA-based licenses and Grandfathering provisions for incumbent
licensees.
(a) Geographic-area-based licenses in the 896-901/935-940 MHz band
will be issued for a term not to exceed ten years.
(b) Each geographic-area-based licensee in the 896-901/935-940 MHz
band must demonstrate, through a showing to the Commission ten years
from the date of license grant, that it is providing substantial
service within its service area.
(c) Geographic-area-based licensees who fail to make a convincing
showing of substantial service by the end of the tenth year after grant
of authorization will forfeit the portion of the geographic-area-based
license that exceeds licensed facilities constructed and operating on
the date of the license grant.
(d) Grandfathering provisions for incumbent licensees. An incumbent
licensee's service area shall be defined by its originally-licensed 40
dB[mu]V/m field strength contour. Incumbent licensees are permitted to
add new or modify transmit sites in this existing service area so long
as the original 40 dB[mu]V/m field strength contour is not expanded.
[FR Doc. 05-5406 Filed 3-17-05; 8:45 am]
BILLING CODE 6712-01-P