[Federal Register Volume 59, Number 243 (Tuesday, December 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30753]


[[Page Unknown]]

[Federal Register: December 20, 1994]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 94

[ET Docket No. 92-9; FCC 94-303]

 

Redevelopment of Spectrum To Encourage Innovation in the Use of 
New Telecommunications Technologies

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: By this Second Memorandum Opinion and Order (Second MO&O) the 
Commission refines and clarifies the rules and policies adopted to make 
spectrum available for emerging telecommunications technologies. The 
Second MO&O adopts rules to complete a regulatory framework for 
relocating fixed microwave operations where necessary to implement 
services using emerging technologies in the 2 GHz bands. This action is 
necessary to provide 2 GHz spectrum for future wireless communications 
services while preventing disruption to incumbent 2 GHz fixed microwave 
licensees. This action facilitates future authorizations of a broad 
range of new wireless communications services that employ emerging 
technologies.

EFFECTIVE DATE: January 19, 1995.

FOR FURTHER INFORMATION CONTACT: Fred Lee Thomas, Office of Engineering 
and Technology, (202) 653-6204.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Memorandum Opinion and Order (Second MO&O) adopted November 28, 1994, 
and released December 2, 1994. A summary of the Memorandum Opinion and 
Order (MO&O) that is reconsidered in the Second MO&O may be found at 59 
FR 19642 (April 25, 1994). This action will not add to or decrease the 
public reporting burden. The full text of this Commission decision is 
available for inspection and copying during regular business hours in 
the FCC Reference Center (Room 239), 1919 M Street, NW., Washington, 
DC. The complete text of this decision also may be purchased from the 
Commission's duplication contractor, International Transcription 
Service, (202) 857-3800, 2100 M Street, NW., Washington, DC 20037.

Summary of the Second Memorandum Opinion and Order

    1. The Second MO&O responded to a Petition for Reconsideration 
filed jointly by the Public Safety Microwave Committee (PSMC), the 
Association of Public-Safety Communications Officials-International, 
Inc. (APCO), the County of Los Angeles (LA County), and the Forestry-
Conservation Communication Association (FCCA) (collectively 
``Petitioners''). Petitioners requested that the Commission not subject 
incumbent public safety facilities to mandatory relocation.
    2. The Second MO&O effected changes to the rules to further the 
Commission's goals of providing for the fair and equitable sharing of 2 
GHz spectrum by new services and the existing fixed microwave services 
that currently use these frequencies, and for the relocation of 
existing 2 GHz facilities to other spectrum where necessary. The rules 
provide licensees of services using emerging technologies with access 
to 2 GHz frequencies in a reasonable timeframe, while at the same time 
preventing disruption to existing 2 GHz operations and minimizing the 
economic impact on the existing licensees.
    3. Specifically, the Commission amended the negotiation procedures 
for mandatory relocation of existing microwave facilities to provide 
for use of independent estimates of the cost to replace an existing 
facility in resolving disputes between licensees of existing facilities 
and new service providers. The Commission also modified the relocation 
plan to extend the mandatory negotiation period for public safety 
entities to two years. The relocation plan for public safety facilities 
will now provide a three-year period for voluntary negotiations 
followed by a two-year period for mandatory negotiations.
    4. In the First Report and Order in this proceeding 57 FR 49020, 
October 29, 1992, the Commission exempted licensees of incumbent public 
safety facilities from involuntary relocation. In the Third Report and 
Order, 58 FR 46547, September 1993, it clarified the definition of 
public safety. The Commission's purpose in each decision was to ensure 
that essential safety of life and property communications are not 
disrupted or otherwise disadvantaged.
    5. In the MO&O the Commission concluded on its own motion that it 
would be in the public interest to subject all incumbent facilities, 
including public safety, to mandatory relocation if an emerging 
technology provider requires the spectrum. Of particular concern was 
providing adequate spectrum for operation of new licensed personal 
communications services (PCS) services, and operation of unlicensed PCS 
devices, in major urban areas where there are a large number of 
incumbent public safety fixed microwave facilities. It has been 
recognized by incumbent fixed microwave users and PCS interests alike 
that it will not be possible for PCS and fixed microwave to operate in 
the same geographic area on the same frequency without interfering with 
each other. Upon review of the record, the Commission concluded that 
PCS service may be precluded or severely limited in some areas unless 
public safety licensees relocate when necessary. Allowing all public 
safety facilities to remain in the band indefinitely would defeat the 
Commission's primary goal of providing usable spectrum for the 
implementation of emerging technologies.
    6. In the Second MO&O the Commission stated that it continues to 
believe that it is in the public interest to subject all incumbent 2 
GHz fixed microwave facilities, including public safety licensees, to 
mandatory relocation if an emerging technology provider requires the 
spectrum they are using. The Commission concluded that its decision is 
supported by the record in this proceeding. Further, the Commission 
stated that this decision, along with the associated transition adopted 
in previous decisions, as modified in the MO&O, provides a fair balance 
between the interests of the incumbent fixed microwave service and 
those services that will use new emerging technologies, such as PCS. 
Specifically, the transition policy for mandatory relocation of 
incumbent public safety operations required to relocate, summarized 
below, will not disadvantage public safety incumbents.

--All relocation costs will be paid entirely by the emerging technology 
licensee. These costs include all engineering, equipment, and site 
costs and FCC fees, as well as any reasonable additional costs.
--Relocation facilities must be fully comparable to those being 
replaced.
--All activities necessary for placing the new facilities into 
operation including engineering and frequency coordination must be 
completed before relocation, including engineering and frequency 
coordination.
--The new communications system must be fully built and tested before 
the relocation itself commences.
--Should the new facilities in practice prove not to be equivalent in 
every respect, within one year the public safety operation may relocate 
back to its original facilities and stay there until complete 
equivalency (or better) is attained.

    7. When disputes do arise in relocation negotiations, the 
Commission stated that they can be resolved best through individual 
mediation and arbitration efforts rather than adjudication by the 
Commission. Thus, the Commission emphasized its intent to use 
alternative dispute resolution (``ADR'') techniques to expedite and 
improve the relocation process whenever feasible. Resolution of such 
disputes entirely by the Commission's adjudication processes would be 
time consuming and costly to all parties. Therefore, the Commission 
continued to encourage parties unable to voluntarily conclude 
relocation agreements to employ ADR techniques during both the 
voluntary and mandatory negotiation periods.
    8. Nevertheless, the Commission stated that it is cognizant of 
Petitioners' concern that public safety entities with limited resources 
not be placed in situations in which they would have to accept less 
favorable terms if disputes arise in the negotiation and relocation 
process. In considering this issue, in addition to or as a supplement 
to ADR, the Commission stated that it believes an effective way to 
expedite the negotiation process and minimize the burden on all parties 
in these situations is to encourage parties to utilize independent, 
impartial estimates of the costs to relocate the existing operation to 
a comparable facility. In order to be fair to all parties, the 
independent estimates would need to include both the specifications for 
a comparable new facility and the costs associated with providing that 
facility to the incumbent licensee. The Commission stated that it 
believes that in most cases the availability of the option of choosing 
to resolve disputes through the use of independent estimates will 
provide an incentive for both sides in a negotiation to work quickly 
towards a mutually agreeable solution. In cases in which such estimates 
are obtained, they will provide a benchmark for an agreement that could 
avoid the need for the parties bringing the dispute to the Commission. 
However, where such disputes come before the Commission, it will expect 
the incumbent to have obtained bona fide independent estimates of its 
relocation costs and to present those estimates to the Commission for 
consideration.
    9. Accordingly, the Commission modified its mandatory relocation 
procedures to provide for consideration of independent estimates by 
third parties not associated or otherwise affiliated with either the 
incumbent licensee or the new service provider. Under this new 
provision, the Commission will consider the independent estimates of 
the cost of replacement facilities obtained by incumbent licensees in 
deciding any relocation disputes that are brought before it. The 
Commission stated that it believes that the responsibility for 
obtaining independent estimates should rest with the incumbent 
licensee, as the licensee will be in the best position to describe to 
parties preparing estimates the operating requirements for the new 
facility. Incumbent licensees are encouraged to present two separately 
prepared estimates obtained from qualified professional third parties.
    10. The Commission stated that independent estimates presented in 
disputes brought to it for resolution must include a specification for 
the comparable facility and a statement of costs of providing that 
facility to the incumbent licensee. The specification should describe 
the design and technical parameters of the new facility, the equipment 
to be used in its construction, a statement attesting to the 
comparability of the proposed new facility to the facility it would 
replace, and a testing and transition plan. The cost statement should 
include individual estimates for the design of the new facility, 
equipment, and testing, as well as the transition. Where the two 
estimates are substantially different, the Commission expects the 
participating parties to choose the most reliable and reasonable 
estimate, average the two estimates, or obtain a third estimate by a 
mutually agreeable party. If a dispute is brought to the Commission, it 
will consider the two estimates as evidence of the relocation cost but 
retain discretion to make its own determination based upon the facts 
presented to the Commission. In deciding such cases, the Commission 
stated that it intends to be guided by the principle of ensuring that 
the incumbent is provided a comparable facility at the minimum cost to 
the new service provider.
    11. The Commission stated that it encouraged public safety 
licensees to obtain two independent estimates of the cost to relocate 
with comparable facilities early in the relocation process. The 
Commission believes that such estimates will be very helpful in the 
negotiation process, including those cases that employ ADR techniques. 
Moreover, having such estimates at its disposal, should Commission 
intervention become necessary, will expedite a relocation process that 
is fair to all parties.
    12. The Commission also shared Petitioners' concern that public 
safety systems, especially those in rural areas, must have adequate 
time to negotiate relocation agreements. Previously, the Commission 
recognized that the demand for the new technology spectrum will vary 
from market to market and from one area to another and that in some 
areas, incumbent 2 GHz facilities may not need to relocate as quickly 
as in areas where spectrum is needed more quickly for emerging 
technologies. In the MO&O, the Commission adopted a bifurcated four-
year voluntary/one-year mandatory negotiation period to accommodate 
these variations in demand. However, the Commission agreed with 
Petitioners that public safety licensees may need more than one year to 
negotiate agreements where the negotiations do not start until sometime 
after the voluntary period has expired. Accordingly, the Commission 
modified the relocation plan to extend the mandatory negotiation period 
for public safety entities to two years. However, the Commission 
concluded that it would not serve the public interest in implementing 
broadband PCS to extend to six years the current five year period of 
protection for public safety facilities. As stated previously in this 
proceeding, the Commission's primary goal is to provide usable spectrum 
for the implementation of emerging technologies in an expeditious 
manner. Therefore, the Commission maintained the current five year 
period for public safety facilities by shortening the four-year 
voluntary period to three-years. The relocation plan for public safety 
facilities will thus provide a three-year period for voluntary 
negotiations followed by a two-year period for mandatory negotiations. 
This will provide public safety entities, especially those with 
facilities in rural areas, ample time to negotiate and conclude 
agreements.
    13. Ordering Clauses. Accordingly, it is ordered, That the petition 
for reconsideration filed jointly by the Public Safety Microwave 
Committee, the Association of Public-Safety Communications Officials-
International, Inc., the County of Los Angeles, and the Forestry-
Conservation Communication Association IS GRANTED to the extent 
described above and is denied in all other respects. Further, it is 
ordered, That Part 94 of the Commission's Rules and Regulations is 
amended as specified in the Appendix, effective 30 days after 
publication in the Federal Register. This action is taken pursuant to 
Sections 4(i), 7(a), 303(c), 303(g), and 303(r), of the Communications 
Act of 1934, as amended, 47 U.S.C. Sections 154(i), 157(a), 303(c), 
303(g), and 303(r).

List of Subjects in 47 CFR Part 94

    Radio.

Amendatory Text

    Title 47 of the Code of Federal Regulations, Part 94, is amended as 
follows:

PART 94--PRIVATE OPERATIONAL-FIXED MICROWAVE SERVICE

    1. The authority citation in Part 94 continues to read:

    Authority: Secs. 4, 303, 48 Stat., as amended, 1066, 1082; 47 
U.S.C. 154, 303, unless otherwise noted.

    2. Sections 94.59(b) and 94.59(f) are revised to read as follows:


Sec. 94.59  Transition of the 1.85-1.99, 2.13-2.15, and 2.18-2.20 GHz 
bands from Private Operational-Fixed Microwave Service to emerging 
technologies.

* * * * *
    (b) Private Operational-Fixed Microwave Service licensees, with the 
exception of public safety facilities defined in paragraph (f) of this 
section, in bands allocated for licensed emerging technology services 
will maintain primary status in these bands until two years after the 
Commission commences acceptance of applications for an emerging 
technology service (two-year voluntary negotiation period), and until 
one year after an emerging technology service licensee initiates 
negotiations for relocation of the fixed microwave licensee's 
operations (one-year mandatory negotiation period) or, in bands 
allocated for unlicensed emerging technology services, until one year 
after an emerging technology unlicensed equipment supplier or 
representative initiates negotiations for relocation of the fixed 
microwave licensee's operations (one-year mandatory negotiation 
period). When it is necessary for an emerging technology provider or 
representative of unlicensed device manufacturers to negotiate with a 
fixed microwave licensee with operations in spectrum adjacent to that 
of the emerging technology provider, the transition schedule of the 
entity requesting the move will apply. Public safety facilities defined 
in paragraph (f) of this section will maintain primary status in these 
bands until three years after the Commission commences acceptance of 
applications for an emerging technology service (three-year voluntary 
negotiation period), and until two years after an emerging technology 
service licensee or an emerging technology unlicensed equipment 
supplier or representative initiates negotiations for relocation of the 
fixed microwave licensee's operations (two-year mandatory negotiation 
period).
* * * * *
    (f) Public safety facilitates subject to the three-year voluntary 
and two-year mandatory negotiation periods, are those in which the 
majority of communications carried are used for police, fire, or 
emergency medical services operations involving safety of life and 
property. The facilities within this exception are those Part 94 
facilities currently licensed on a primary basis pursuant to the 
eligibility requirements of Section 90.19, Police Radio Service; 
Section 90.21, Fire Radio Service; Section 90.27, Emergency Medical 
Radio Service; and Subpart C of Part 90, Special Emergency Radio 
Services. Licensees of other Part 94 facilities licensed on a primary 
basis under the eligibility requirements of Part 90, Subparts B and C, 
are permitted to request similar treatment upon demonstrating that the 
majority of the communications carried on those facilities are used for 
operations involving safety of life and property.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 94-30753 Filed 12-19-94; 8:45 am]
BILLING CODE 6712-01-M