[Federal Register Volume 60, Number 47 (Friday, March 10, 1995)]
[Proposed Rules]
[Pages 13102-13105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5371]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[ET Docket No. 94-32; FCC No. 95-47]
Allocation of Spectrum Below 5 GHz Transferred From Federal
Government Use
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This Second Notice of Proposed Rule Making, proposes rules to
govern assignment and use of the 50 megahertz of spectrum transferred
from Federal Government use to private use and allocated in the
companion First Report and Order, published elsewhere in this issue.
This action is necessary to comply with provisions of the Omnibus
Budget Reconciliation Act of 1993 (Reconciliation Act), that require
the Commission to allocate, and propose regulations to assign, this
spectrum within 18 months of adoption of the Reconciliation Act. Our
goal in taking this action is to provide for use of spectrum
transferred from Federal Government to private sector use in a way that
will benefit the public by providing for the introduction of new
services and devices and enhance existing services and devices.
DATES: Comments must be filed on or before March 20, 1995, and reply
comments must be filed on or before April 4, 1995.
ADDRESSES: Federal Communications Commission, 1919 M St., NW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT:
Karen Rackley, Wireless Telecommunication Bureau, (202) 418-0620.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Notice of Proposed Rule Making, ET Docket No. 94-32, FCC No. 95-47,
adopted February 7, 1995, and released February 17, 1995 (Notice). The
full text of this Notice is available for inspection during normal
business hours in the Records Room of the Federal Communications
Commission, Room 239, 1919 M St., NW., Washington, DC. The complete
text may be purchased from the Commission's copy contractor, ITS, Inc.,
2100 M St., NW., Suite 140, Washington, DC 20037, telephone (202) 857-
3800.
Summary of Second Notice of Proposed Rule Making
1. By this action, the Commission proposes rules governing the use
of 50 megahertz of spectrum, at 2390-2400 MHz, 2402-2417 MHz, and 4660-
4685 MHz, that has been transferred from Federal Government to private
sector use. In the First Report and Order, the Commission allocated the
2390-2400 MHz band for use by unlicensed Personal Communications
Services (PCS) devices, provided for continued use of the 2402-2417 MHz
band by devices operating in accordance with Part 15 of the
Commission's Rules allocated both of these bands for use by the Amateur
service on a primary basis, and allocated the 4660-4685 MHz band for
use by Fixed and Mobile services.
2390-2400 MHz
2. Because the Commission already has rules in place governing
unlicensed PCS, the Notice does not seek additional comment on services
rules. The Notice, however, seeks comment on whether some allowance
should be made to accommodate operations that combine use of the 2390-
2400 MHz with the adjacent 2400-2483.5 MHz band for use as a single,
large Part 15 band. The Notice proposes to specifically prohibit
aeronautical use of unlicensed PCS devices operating at 2390-2400 MHz
as requested by some commenters, but does not proposed to restrict use
of unlicensed PCS devices in the vicinity of the National Astronomy and
Ionospheric Center. Finally, the Notice requests comment on whether it
is unnecessary to propose any formal standards for sharing between
unlicensed PCS and Amateur service, whether there is a need to restrict
certain uses by either the Amateur [[Page 13103]] service or unlicensed
PCS devices that might be particularly disruptive, or whether the
Commission should seek to implement rules for coordination of Amateur/
PCS use.
2402-2417 MHz
3. Both the Amateur service and Part 15 devices operating at 2402-
2417 MHz continue to be governed in accordance with current applicable
technical and operational rules. However, the Commission seeks comment
on whether any changes should be made to the Commission's rules to
facilitate use of this band by the Amateur service and Part 15 devices.
4660-4685 MHz
A. Service Rules
4. The Notice proposes to create the General Wireless
Communications Service (GWCS), a new service for licensing of the 4660-
4685 MHz band, which would allow a licensee to provide any Fixed or
Mobile service, consistent with the allocation of this band and the
Commission's proposed rules described below. The Notice also seeks
comment on the possibility of better accommodating the needs of users
by prescribing rules that provide for utilization of the 4660-4685 MHz
frequency band only by specific services.
B. Use of Spectrum
5. The Notice tentatively concludes that the principal use of this
spectrum under the proposed General Wireless Communications Service
will involve or is reasonably likely to involve the receipt by the
licensee of compensation from subscribers in return for enabling those
subscribers to receive or transmit communications signals, thus
enabling the Commission to propose competitive bidding as the
assignment method for this spectrum. To help the Commission make an
accurate determination regarding the extent to which this spectrum will
be used for subscriber-based services, the Notice requests that
commenters describe their spectrum needs and provide an indication of
the degree of competition expected within a particular geographic
service area, because the likelihood of subscriber use may vary among
geographic areas.
C. Assignment Methods
6. Sections 309(j)(1) and 309(j)(2) of the Communications Act
permit auctions where mutually exclusive applications for initial
licenses or construction permits are accepted for filing by the
Commission and where the principal use of the spectrum will involve or
is reasonably likely to involve the receipt by the licensee of
compensation from subscribers in return for enabling those subscribers
to receive or transmit communications signals. As described in the
preceding section, the Commission believes that the principal use of
this spectrum will meet these requirements. In order to comply with
Section 309(j)(2)(b) of the Communications Act, the Notice also
tentatively concludes that the use of competitive bidding to assign
licenses in the 4660-4685 MHz band bill promote the objectives
described in Sections 1 and 309(j)(3) of the Communications Act. Thus,
the Commission tentatively concludes that competitive bidding should be
used to award licenses in the 4660-4685 MHz band in the new General
Wireless Communications Service if mutually exclusive applications are
filed.
7. Although the Notice proposes the use of a system of competitive
bidding to assign licenses for the General Wireless Communications
Service in the 4660-4685 MHz band, the Commission also seeks comment
regarding whether the Commission should utilize a different assignment
method.
8. One important aspect of any assignment method is determining
whether applications are mutually exclusive. The Notice proposes to use
a 30-day filing window or other application cut-off method to allow for
competing initial applications. The Notice seeks comment on this
proposal, particularly whether some other type of filing group would be
more appropriate for determining whether initial applications are
mutually exclusive.
D. Channelization; Aggregation
9. The Notice proposes that the 4660-4685 MHz band be licensed in
five blocks, each of which would be 5 megahertz wide. Based on
available information about the likely services to be provided in this
band, the Commission tentatively concludes that no licensee would need
more than 15 megahertz in a single market area. Therefore, the Notice
proposes to limit a single entity from obtaining more than three of
these blocks in a single geographic licensing area. The Commission also
proposes that, regardless of the specific service to be provided, this
spectrum will not count against the 45 MHz spectrum cap that applies to
certain commercial mobile radio service (CMRS) licensees.
E. License Area
10. The Notice proposes that all licenses issued in the GWCS be
based on Major Trading Areas (MTA). The Commission does not propose to
restrict the number of MTAs in which a party may obtain a license.
Because an MTA may be too large for some licensees, the Notice proposes
to permit licensees to lease the rights to operate a general wireless
communication system within portions of their authorized geographic
service area or transfer a portion of their license to geographically
partition their service area, allowing another party to be licensed in
the partitioned area.
11. If the Commission determines that a mix of subscriber, non-
subscriber, and private-based services is likely in the 4660-4685 MHz
band, the Commission may issue licenses based on different geographic
regions for different portions of the bands or for different areas of
the Nation. Commenters that seek spectrum for non-subscriber based
services should address the issue of whether the Commission should
allow licensees to sell or lease their excess capacity and specify
under what circumstances such transfer or lease would be allowed.
F. Eligibility
12. If the Commission determines that it is reasonably likely that
the services to be provided will be commercial services, the Notice
proposes no restrictions on eligibility to apply for licenses in this
band other than those foreign ownership restrictions that apply to CMRS
and common carrier fixed system licensees, and the restriction on
foreign governments or their representatives related to the holding of
private service licenses.
G. Competitive Bidding Issues
13. The Notice proposed that, to the extent that the Commission
determines that it is reasonably likely that some or all of the 4660-
4685 MHz band will be used for services that meet the criteria for
issuing licenses pursuant to auctions, the Commission will use auctions
to issue licenses. The Commission believes that simultaneous multiple
round bidding should be the preferred method for licensing of the
proposed 5 MHz-wide MTA spectrum blocks. The Notice tentatively
concludes that simultaneous multiple round bidding is most likely to
award MTA licenses to bidders who value them the most highly and who
are most likely to deploy new technologies and services rapidly. The
Notice asks commenters to address this tentative conclusion and whether
any other competitive bidding designs might be more appropriate for the
licensing of this spectrum.
14. In addition, the Notice also seeks comments on which blocks
should be auctioned together, the intervals between rounds in each
auction, and the sequencing of each auction. The
[[Page 13104]] Commission's tentative view is that all 255 licenses (51
MTA licenses on each of 5 spectrum blocks) should be auctioned
simultaneously because of the relatively high value and significant
interdependence of the licenses.
15. The Commission also seeks comment on bidding procedures to be
used in the 4660-4685 MHz auctions, including bid increments, duration
of bidding rounds, stopping rules, and activity rules. The Notice
generally proposes to follow the procedural, payment, and penalty rules
established in Subpart Q of Part I of the Commission's Rules, but seeks
comment on whether any service-specific modifications of these rules
are needed based on the particular characteristics of the 4660-4685 MHz
band licenses.
16. In keeping with the general parameters set forth in the
Competitive Bidding docket, PP Docket No. 93-253, the Notice proposes
specific measures and eligibility criteria for small businesses, rural
telephone companies, and minority- and women-owned businesses
(collectively, ``designated entities'') in the 4660-4685 MHz band
designed to ensure that such entities are given the opportunity to
participate both in the competitive bidding process and in the
provision of service in the 4660-4685 MHz band.
H. Technical Rules
17. The fact that the Commission is proposing a new radio service
for this band that can be used to provide any mobile or fixed
communications service, regardless of whether that service is
subscriber based or not, argues for general minimal technical
restrictions. Specifically, the Notice proposes to limit the field
strength at licensees' service area boundaries to 55 dBu unless
licensees operating in adjacent areas agree to higher field strengths
along their mutual border. The Notice does not propose to establish
adjacent-channel interference limits at the frequency boundaries
between licensees in this band, but the Commission would encourage
licensees to resolve adjacent channel interference problems. The
Commission, however, proposes to require licensees to attenuate the
power below the transmitter power (P) by at least 43 plus
101og10(P) or 80 decibels, whichever is less, for any emission at
the edges of the 4660-4685 MHz band. The Notice also requests comment
on whether a maximum transmitter power or maximum effective radiated
power is necessary or whether licensees should be permitted to use any
power that they believe is appropriate, provided that they do not
exceed the maximum permissible field strength at the border of their
licensed area. Commenters should also specifically address the need for
out of band emission at the edges of the entire 4660-4685 MHz.
I. License Term
18. For services in the 4660-4685 MHz band, the Notice proposes to
establish a term of 10 years for licenses in this band, with a renewal
expectancy based on that of PCS and cellular telephone licensees. The
Commission notes, however, the commenters have proposed using this band
for auxiliary broadcast service and the statute requires that the term
of any license for the operation of any auxiliary broadcast station or
equipment must be concurrent with the term of the license for such
primary television station. Therefore, commenters should address
whether the Commission should allow differing license terms in this
band.
J. Construction Requirements
19. The Notice proposes to require build-out rules modeled on those
adopted for broadband PCS. Specifically, the Commission proposes that
within five years, licensees in this band offer service to one-third of
the population in the area in which they are licensed. Further,
licensee would have to serve two-thirds of the population in the area
in which they are licensed within ten years of being licensed. Failure
by any licensee to meet these construction requirements will result in
forfeiture of the license and the licensee will be ineligible to regain
it.
K. Regulatory Status
20. The Communications Act and Commission regulation often apply
differing requirements based on the type of service and the regulatory
status of licensees. In addition recent changes to the Communications
Act have created different standards for Fixed and Mobile services for
determining the regulatory status of a licensee.
21. The Commission has decided to propose a new GWCS for the 4660-
4685 band that would allow licensees to provide a variety or
combination of Fixed and Mobile services. Under this service, both
Fixed and Mobile applications would be permitted and an individual
licensee could provide a number of Fixed and Mobile services. The
commission notes that, under the proposed approach, it may be difficult
to determine the regulatory status of each licensee. The Notice
proposes to rely on applicants to specifically identify the type of
service or services they intend to provide, and that they include
sufficient detail to enable the Commission to determine if the service
will be Fixed or Mobile, and whether it will be offered as a commercial
mobile radio service, a private mobile radio service, a common carrier
Fixed service, or a private Fixed service. The Notice requests comment
on the most efficient manner in which to administer the requirements of
the Communications Act and the Commission's rules, and grant licensees
as much operational flexibility as possible.
22. The Notice requests comment on whether the Commission should
develop a new application long form for this GWCS or require an
applicant to be responsible for filing the appropriate license
application based upon the nature of the service designated by the
applicant. Based on the showing made in the application form and actual
service provided, the licensee would be subject to those rules and
statutory requirements that apply to such service.
L. Licensing Issues
23. The Notice requests comment on whether the Commission is
required or should find it is in the public interest to adopt
additional licensing rules in order to comply with the statutory
requirement that the Commission adopt assignment rules before August
10, 1995. For example, because some licensees may provide common
carrier service, the Notice seeks comment on whether the Commission
should adopt public notice and petition to deny procedures for some or
all applicants in the 4660-4685 MHz band. The Notice requests comment
on whether any existing application or regulatory fees would apply if
the Commission develops a new service. In addition, the Notice requests
comment on specific rules the Commission should adopt in order to
implement Section 310(d) of the Communications Act for purposes of
licensing services in the 4660-4685 MHz frequency
Initial Regulatory Flexibility Analysis
1. Reason for Action: The proposals for technical rules, service
rules, and licensing mechanisms proposed in the Notice are for use of
spectrum that has been transferred from Federal Government to private
sector use. The Commission adopted allocations for this spectrum on
February 7, 1995. Accordingly, these proposals are necessary to provide
a structure for non-Government entities to use the spectrum.
2. Objectives: The Commission seeks to provide service rules,
technical rules, and to issue licenses, for use of this spectrum in a
manner that provides the greatest potential benefit to the public
[[Page 13105]] by providing for the introduction of new services and
the enhancement of existing services. These new and enhanced services
will create new jobs, foster economic growth, and improve access to
communications by industry and the American public.
3. Legal Basis: The legal basis for these rule changes is found in
Section 4(i), 303(g), 303(r), 309(j), 322(a), and 403 of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(g),
303(r), 309(j) (332)(a), and 403 and Section 115(a) of the National
Telecommunications and Information Administration Organization Act, 47
U.S.C. 925(a).
4. Reporting, Recordkeeping, and Other Compliance Requirements: The
proposals under consideration in this Notice of Proposed Rulemaking may
impose certain reporting and recordkeeping requirements on licensees
and others utilizing this spectrum.
5. Federal Rules Which Overlap, Duplicate or Conflict With these
Rules: None.
6. Description, Potential Impact, and Number of Small Entities
Involved: Many small entities could be positively affected by this
proposal because the proposal will provide for the introduction of new,
competitive communications and will foster new technologies resulting
in new jobs, economic growth, and improved access to communications by
industry, including small entities. The full extent of the impact on
small entities cannot be predicted until various issues raised in the
proceeding have been resolved. After evaluating the comments filed in
response to the Notice, the Commission will examine further the impact
of all final rules in this proceeding on small entities and set forth
its findings in the final Regulatory Flexibility Analysis.
7. Any Significant Alternatives Minimizing the Impact on Small
Entities Consistent with the Stated Objectives: This Second Notice of
Proposed Rule Making solicits comments on a variety of alternatives,
including as to how our licensing mechanism, service rules, and
technical rules can be structured to serve a variety of needs.
8. IRFA Comments: The Commission requests written public comment on
the foregoing Initial Regulatory Flexibility Analysis. Comments must
have a separate and distinct heading designating them as responses to
the IRFA and must be filed by the deadlines specified in the summary
above.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 95-5371 Filed 3-9-95; 8:45 am]
BILLING CODE 6712-01-M