[Federal Register Volume 59, Number 33 (Thursday, February 17, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3772]


[[Page Unknown]]

[Federal Register: February 17, 1994]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 21

[CC Docket No. 92-297]

 

Domestic Public Fixed Radio Services; Local Multipoint 
Distribution Service

AGENCY: Federal Communications Commission.

ACTION: Request for comments.

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SUMMARY: The Commission requests comments on whether it should 
establish a Federal Advisory Committee to negotiate proposed technical 
rules governing the provision of terrestrial and satellite services in 
the 27.5-29.5 GHz frequency band.

DATES: Comments may be filed on or before March 21, 1994.

ADDRESSES: Comments should be sent to the Office of the Secretary, CC 
Docket 92-297, Federal Communications Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:
Susan Magnotti, Domestic Radio Branch, Common Carrier Bureau, (202) 
634-1773.

SUPPLEMENTARY INFORMATION: The Commission hereby seeks comment on 
establishing an Advisory Committee to negotiate regulations defining 
the technical rules appropriate to sharing the 27.5--29.5 GHz band by 
the proposed Local Multipoint Distribution Service and by satellite 
services. The negotiations are to assist the Commission in developing 
regulations that will facilitate the shared use of this spectrum by 
both satellite uplink and terrestrial point-to-multipoint service 
providers. Any negotiating committee would be created under the Federal 
Advisory Committee Act (FACA), 5 U.S.C. App. 2, and the Negotiated 
Rulemaking Act of 1990 (NRA), Public Law 101-648, November 28, 1990, 
and would consist of representatives of the interests that will be 
significantly affected by the outcome of these rules.
    The Commission has proposed to redesignate the use of the 27.5-29.5 
GHz band from point-to-point terrestrial service to point-to-multipoint 
service. Rulemaking to Amend Part 1 and Part 21 of the Commission's 
Rules to Redesignate the 27.5-29.5 GHz Frequency Band and to Establish 
Rules and Policies for Local Multipoint Distribution Service, Notice of 
Proposed Rulemaking, 8 FCC Rcd 557 (1993) (CC Docket 92-297). The band 
is also allocated on a coprimary basis to fixed satellite services. One 
licensee, CellularVision of New York (CVNY, formerly Hye Crest 
Management, Inc.), holds a regular license to provide terrestrial 
point-to-multipoint service in this band to the New York City Primary 
Metropolitan Statistical Area. Other entities hold experimental 
licenses to test similar services in other areas. As discussed in the 
Second Notice of Proposed Rulemaking, CC Docket No. 92-297, FCC 94-12, 
released concurrently with this notice, some of the spectrum in the 28 
GHz band may be needed for satellite earth stations that will 
interconnect with mobile satellite systems. Moreover, the experimental 
Advanced Communications Technology Satellite (ACTS) launched by NASA in 
1993 is using a portion of the band (29.0-29.5 GHz) for research 
purposes. The satellite has a four-year life expectancy. Hughes Space 
and Communications Company has filed an application to provide service 
in this band.

I. Regulatory Negotiation

    Regulatory negotiation is a technique through which the Commission 
hopes to develop better regulations that may be implemented in a less 
adversarial setting. Negotiations are conducted through an Advisory 
Committee chartered under FACA. The goal of the Committee is to reach 
consensus on the language or substance of appropriate rules. If a 
consensus is reached, it is used as the basis of the Commission's 
proposal. All procedural requirements of the Administrative Procedure 
Act (APA) and other applicable statutes continue to apply.
    When making a determination regarding the suitability of a 
proceeding for the negotiated rulemaking process, the Commission must 
consider whether:
    (a) There is a need for the rules to be developed;
    (b) There are a limited number of identifiable interests that will 
be significantly affected by the rules;
    (c) There is a reasonable likelihood that a committee can be 
convened with a balanced representation of persons who: (1) Can 
adequately represent the identifiable interests and (2) are willing to 
negotiate in good faith to reach a consensus on the proposed rules;
    (d) There is a reasonable likelihood that a committee will reach a 
consensus on the proposed rules within a fixed period of time;
    (e) The negotiated rulemaking procedure will not unreasonably delay 
the notice of proposed rulemaking and the issuance of final rules;
    (f) The agency has adequate resources and is willing to commit such 
resources, including technical assistance, to the committee, and
    (g) The agency will, to the maximum extent possible consistent with 
the legal obligations of the agency, use the consensus of the committee 
with respect to the proposed rules as the basis for the rules proposed 
by the agency for notice and comment. Negotiated Rulemaking Act Sec. 3, 
5 U.S.C. 583(a).

II. Subject and Scope of Rule for Negotiated Rulemaking

    The Commission is proposing that the technical regulations to 
govern the provision of Local Multipoint Distribution Service and fixed 
satellite use of the 28 GHz band be developed through negotiation. We 
believe that the selection criteria listed above are met. Technical 
rules are necessary to establish under what circumstances, if any, 
sharing between satellite and terrestrial uses is feasible. The parties 
whose interests are affected are identifiable from comments filed in 
this proceeding. These interests can be adequately represented on a 
committee, and we believe that representatives will act in good faith 
to reach a consensus on technical rules within a set time frame. We 
believe that the negotiated rulemaking process will better use public 
and private resources than would our requiring more iterations of 
written comments will an adequate record is developed. We have adequate 
resources to commit to this endeavor and would use the consensus report 
of the committee to develop proposed technical rules.
    The Commission has identified the following primary issue that 
should be addressed in the negotiations and resolved in the proposed 
rules developed by the Committee:


    What technical rules should be adopted for the Local Multipoint 
Distribution Service and/or the fixed satellite service so as to 
maximize the sharing of the spectrum among these services?


If the Negotiated Rulemaking Committee is able to accommodate all 
proposed uses of the band, we ask that it proposes specific rules to 
effectuate a sharing plan. We ask that it provide an analysis of how 
benefits of its proposed solution outweigh other options for 
accommodating these services. Specifically, we ask that it explain:

--The proper definition of the product market and geographic market for 
the services proposed;
--The degree of competition anticipated within the relevant market 
(including the extent to which the proposed services are expected to 
compete with existing services);
--The degree to which new services and technological innovations will 
be stimulated by the proposed allocation;
--The amount and nature of investment in the national 
telecommunications infrastructure expected as a result of the use of 
the band for the particular service(s);
--The kind and number of jobs that would be created as a result of the 
licensing of particular services;
--Any other available data concerning the economic growth expected to 
result from the allocation for the particular service(s).

Other issues may be included by the parties. All recommendations or 
proposed rules must comply with International Telecommunication Union 
treaty obligations.

III. Potential Interests and Participants

    The Commission has identified the following interests as those most 
likely to be significantly affected by the proposed rules:
    (a) Developers, manufacturers, and licensees of Local Multipoint 
Distribution Service;
    (b) Pending mobile-satellite applicants in the 1610-1625.5/2483.5-
2500 MHz band filing by the June 2, 1991 cutoff date for these 
applications;
    (c) Fixed-satellite service applicants and service providers.
    The following have tentatively been identified as potentially 
affected interests should the Commission proceed with a negotiated 
rulemaking: Suite 12 Group, Bell Atlantic Companies, Video/Phone 
Systems, Inc., Endgate Company, Gigahertz Equipment Company, David 
Sarnoff Research Center, The University of Texas System, NASA, Ellipsat 
Corporation, Motorola Satellite Communications, Inc., Constellation 
Communications, Inc., Loral/Qualcomm Satellite Service, Inc., TRW, 
Inc., American Mobile Satellite Corporation, Hughes Space and 
Communications Company, a representative of public television and 
educational parties commenting in CC Docket 92-297, Comsearch, Inc., 
and the Domestic Facilities Division, Common Carrier Bureau, Federal 
Communications Commission.

IV. Formation of the Negotiating Committee

A. Procedure for Establishing an Advisory Committee

    Under FACA, an Advisory Committee may be established only after 
consultation with the General Services Administration (GSA) and the 
filing of a charter with Congress. The Commission will prepare a 
charter and initiate the requisite consultation process prior to 
formation of the Committee and the commencement of negotiations.

B. Participants

    The number of participants in the group is estimated to be about 20 
and should not exceed 25. A number larger than this could make it 
difficult to conduct efficient negotiations. Each interest will have 
the opportunity to be adequately represented, although this does not 
necessarily mean that each potentially affected entity will have its 
own representative. Further, we must be satisfied that the group, as a 
whole, reflects a proper balance and mix of interests. In this respect, 
we are especially interested in receiving nominations to participate 
from public interest advocacy groups, users groups, and educators and 
academics.
    Entities that will be significantly affected by the proposed rules 
and which believe that their interests will not be adequately 
represented by any entity specified in paragraph 8 above, may apply 
for, or nominate another entity for, membership on the Committee. Each 
application for nomination must include:
    (a) The name of the applicant or nominee and a description of the 
interests the entity will represent,
    (b) Evidence that the applicant or nominee is authorized to 
represent parties related to the interests the entity proposes to 
represent,
    (c) A written commitment that the applicant or nominee shall 
actively participate in good faith in the development of the rules 
under consideration,
    (d) The reasons that the entities specified in paragraph 8 do not 
adequately represent the interests of the entity submitting the 
application or nomination.
    If, in response to this Notice, any additional entities request 
membership or representation in the negotiating group, the Commission 
will determine whether that entity should be added to the group. The 
Commission will make that decision based on whether the entity would be 
substantially affected by the rule and whether that entity is already 
adequately represented in the negotiating group.

C. Agenda

    If the Commission decides to establish a negotiating committee and 
its charter is approved, it is anticipated that the Committee's first 
meeting will take place in March or April, 1994, at the Commission's 
offices, Washington, DC, at a building, room, date, and time that will 
be announced. At this initial meeting, the committee will complete 
action on all procedural matters and establish a target date for 
submission of its recommendations. We expect that the target date would 
be no later than July, 1994. We anticipate a publication of a Further 
Notice of Proposed Rulemaking not later than October, 1994.

V. Negotiation Procedures

    The following procedures and guidelines will apply to the 
Committee, if formed. These procedures may be modified, however, after 
reviewing the comments received in response to this Notice or during 
the negotiation process.

A. Facilitator

    The Commission will nominate a person to serve as a neutral 
facilitator for the negotiations of the Committee, subject to the 
approval of the Committee by consensus. The facilitator will not be 
involved in the substantive development of the regulations. The 
facilitator's roles are to: (1) Chair negotiating sessions, (2) help 
the negotiation process run smoothly, (3) help participants define and 
reach a consensus, and (4) manage record-keeping and minute-keeping.

B. Good Faith Negotiations

    Since participants must be willing to negotiate in good faith, each 
organization--including the Commission--must designate a qualified 
individual to represent its interests. Thomas S. Tycz, Deputy Chief, 
Domestic Facilities Division, Common Carrier Bureau, will be the 
Commission's representative.

C. Meetings and Compensation

    Meetings will be held in the Washington, DC area at the convenience 
of the Committee. The Commission, if requested, will provide the 
facilities needed to conduct the meetings, and will provide the 
facilities needed to conduct the meetings, and will provide any 
necessary technical support. Private sector members of the Committee 
will serve without government compensation or reimbursement of 
expenses. Private sector members will not be special government 
employees for any purposes whatsoever.

D. Committee Procedures

    Under the general guidance and direction of the facilitator, and 
subject to any applicable legal requirements, the members will 
establish the procedures for committee meetings that they consider most 
appropriate.

E. Consensus

    The goal of the Committee is consensus. The Negotiated Rulemaking 
Act defines consensus as unanimous concurrence among the represented 
interests, although the Act permits the Committee to agree to another 
specified definition. In the event the Committee is unable to reach a 
consensus, the Committee may include in a report any other information, 
recommendations, or materials that the Committee considers appropriate, 
and any Committee member may include as an addendum to the report 
additional information, recommendations, or materials. Parties to the 
negotiation may withdraw at any time. If this happens, the remaining 
Committee members and the Commission will evaluate whether the 
Committee should continue.

F. Record of Meetings

    Pursuant to FACA, the Committee will keep a record of all committee 
meetings. This record will be placed in the public docket for this 
rulemaking (CC Docket 92-297). The Commission will announce committee 
meetings in the Federal Register. These meetings will be open to the 
public.

VI. Conclusion

    The Commission requests public comment on whether: (1) It should 
establish a Federal Advisory Committee, (2) it has properly identified 
the interests that are significantly affected by the key issues listed 
above, (3) the suggested committee membership reflects a balanced 
representation of these interests, and (4) regulatory negotiation is 
appropriate for this rulemaking.
    Pursuant to the applicable procedures set forth in section 4(c) of 
the Negotiated Rulemaking Act of 1990, 5 U.S.C. 584(c), interested 
parties may file comments and applications for Committee membership on 
or before March 18, 1994. Comments and/or applications should be sent 
to the Office of the Secretary, CC Docket No. 92-297, Federal 
Communications Commission, Washington, DC 20554. Comments and 
applications will be available for public inspection during regular 
business hours in the Dockets Public Reference Room of the Federal 
Communications Commission, 1919 M Street, NW., Washington, DC 20554.

    For further information pertaining to the establishment of the 
negotiation committee and associated matters, contact Susan 
Magnotti, Domestic Radio Branch, 2025 M Street, NW., Washington, DC 
20554, (202) 634-1773.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 94-3772 Filed 2-16-94; 8:45 am]
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