[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Rules and Regulations]
[Pages 13636-13637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6081]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 5

[ET Docket No. 93-266; FCC 95-80]


Pioneer's Preference Rules

agency: Federal Communications Commission.

action: Final rule.

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summary: By this Second Report and Order, the Commission modifies 
certain rules regarding its pioneer's preference program. This action 
is intended to increase the efficiency of the program by making it 
better comport with competitive bidding authority and the Commission's 
experience administering it.

effective date: April 13, 1995.

for further information contact: Rodney Small, Office of Engineering 
and Technology, (202) 776-1622.

supplementary information: This is a summary of the Commission's Second 
Report and Order, adopted February 28, 1995, and released March 1, 
1995. 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, Inc., (202) 857-3800, 2100 M Street, NW., Suite 140, 
Washington, DC 20037.

Summary of Second Report and Order

    1. In the Notice of Proposed Rule Making (Notice) in this 
proceeding, 58 FR 57578 (October 26, 1993), the Commission sought 
comment on whether and how the pioneer's preference rules could be 
amended to take into account competitive bidding and its experience 
administering them, or whether these rules should be repealed. In the 
Notice, the Commission proposed to eliminate the current policies of 
issuing public notices specifying pioneer's preference filing 
deadlines, considering raw experimental license material that relates 
to preference requests, and making initial determinations on preference 
requests. The Commission also proposed to limit acceptance of 
preference requests to services that use new technologies and proposed 
that preference requests be filed prior to a notice of inquiry (NOI) in 
a proceeding that addresses a new service or technology, if such a 
document is issued in advance of a notice of proposed rulemaking 
(NPRM), rather than the current policy of allowing requests to be filed 
after an NOI but prior to an NPRM. In the First Report and Order, 59 FR 
8413 (February 22, 1994), the Commission determined that it would not 
apply amendments to its rules to three proceedings in which tentative 
pioneer's preference decisions had been issued.
    2. In the Second Report and Order, the Commission determined that 
the pioneer's preference program should be retained, but it decided to 
eliminate its current policies of issuing public notices specifying 
filing deadlines, considering raw experimental license material that 
relates to preference requests, and making initial determinations on 
preference requests. These requirements were originally imposed to 
ensure a complete record in all pioneer's preference proceedings, but 
the Commission said that eliminating them would result in a more 
efficient process with no detriment to the public. The Commission also 
adopted its proposal to require that preference requests be filed prior 
to an NOI, if such a document is issued in advance of an NPRM. The 
Commission stated that deferring the filing deadline to the NPRM stage 
in cases in which an NOI has been issued may encourage speculative 
preference requests. Finally, in response to comments to the Notice, 
the Commission required that any preference grant be conditioned on use 
of the technology and system for which the preference was awarded.
    3. The Commission did not adopt its proposal to limit acceptance of 
pioneer's preference requests to services that use new technologies. It 
said that while a pioneer's preference should not be awarded simply for 
transferring technologies from existing services in one band to similar 
services in another band, a significant enhancement of an existing 
service, under some circumstances, could be achieved by combining 
existing technologies in new and innovative ways. The Commission also 
noted that the recently-enacted General Agreement on Tariffs and Trade 
(GATT) legislation provides that preferences be awarded for significant 
contributions to the development of a new service or to the development 
of new technologies that substantially enhance an existing service.
    4. Additionally, the Commission decided that in services in which 
licenses are assigned by competitive bidding, any parties receiving 
pioneer's preferences will be required to pay for their licenses in 
accord with the payment formula specified in the GATT legislation. The 
GATT legislation mandates that recipients of preferences in service in 
which licenses are awarded by competitive bidding and whose requests 
were accepted for filing after September 1, 1994, pay in a lump sum or 
in installment payments over a period of not more than five years 85 
percent of the average price paid for comparable licenses. The 
Commission said that it will also use this formula for any future 
grants of pioneer's preference requests accepted for filing on or 
before September 1, 1994 and--in accord with the GATT legislation--will 
determine comparable licenses on a case-by-case basis.
    5. Accordingly, it is ordered That Parts 1 and 5 of the 
Commission's Rules are amended as specified below, effective 30 days 
after publication in the Federal Register. This action is taken 
pursuant to Sections 4(i), 7(a), 303(c), 303(f), 303(g), 303(r), and 
309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 
Sections 154(i), 157(a), 303(c), 303(f), 303(g), 303(r), and 309(j).

List of Subjects

47 CFR Part 1

    Administrative practice and procedure.

47 CFR Part 5

    Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.

Amendatory Text

    Parts 1 and 5 of chapter I of title 47 of the Code of Federal 
Regulations are amended as follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for part 1 continues to read as follows:

    Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 
U.S.C. 154, 303. Implement 5 U.S.C. 552 and 21 U.S.C. 853a, unless 
otherwise noted.

    2. Section 1.402 of this chapter is amended by revising paragraphs 
(c), (d), (e), and (g), redesignating paragraph (f) as new paragraph 
(h), and adding new paragraph (f) to read as follows:


Sec. 1.402  Pioneer's preference.

* * * * *
    (c) Pioneer's preference requests relating to a specific new 
spectrum-based service or technology will not be 
[[Page 13637]] accepted after the Commission's Sunshine Notice is 
issued announcing initiation, by either a notice of inquiry or notice 
of proposed rule making that will be considered by the Commission at a 
public meeting, of a proceeding pertaining to that service or 
technology. Alternatively, if the Commission initiates a new proceeding 
pertaining to a specific new spectrum-based service or technology by 
notation, pioneer's preference requests will not be accepted after such 
notice is submitted to the Commission for vote.
    (d) Pioneer's preference requests complying with the requirements 
and procedures in paragraphs (a) through (c) of this section will be 
accepted for filing and listed by file number in a notice of proposed 
rule making addressing the new service or technology proposed in the 
request, if such a notice of proposed rule making is adopted. A final 
determination on a request for pioneer's preference and its scope will 
normally be made in a report and order adopting new rules for the 
service or technology proposed in the request, if such rules are 
adopted. If awarded, the pioneer's preference will provide that the 
preference applicant's application for a construction permit or license 
will not be subject to mutually exclusive applications. If granted, the 
construction permit or license will be subject to the conditions in 
paragraphs (f) and (g) of this section.
    (e) Any interested person may file a statement in support of or in 
opposition to a request for pioneer's preference listed in a notice of 
proposed rule making, and a reply to such statements, subject to filing 
deadlines that shall be published in the notice of proposed rule 
making. Statements on the merits of pioneer's preference requests must 
be filed separate from, and not part of, any comments on the rules 
proposed in the notice of proposed rule making. Statements on pioneer's 
preference requests will not be accepted prior to issuance of the 
notice of proposed rule making.
    (f) As a condition of its license grant, a pioneer's preference 
grantee will be required to construct a system that substantially uses 
the design and technologies upon which its pioneer's preference award 
is based within a reasonable time, as determined by the Commission, 
after receiving its license. Failure to comply with this provision will 
result in revocation of the pioneer grantee's license, and transfer of 
the license will be prohibited until this requirement is met.
    (g) In services in which licenses are assigned by competitive 
bidding, any parties receiving pioneer's preferences will be required 
to pay for their licenses in accord with the payment formula specified 
in the General Agreement on Tariffs and Trade legislation, Public Law 
103-465. This formula requires that pioneers pay in a lump sum or in 
installment payments over a period of not more than five years 85 
percent of the average price paid for comparable licenses. Comparable 
licenses will be determined by the Commission on a case-by-case basis.
* * * * *
    3. Section 1.403 is revised to read as follows:


Sec. 1.403  Notice and availability.

    All petitions for rule making (other than petitions to amend the 
FM, Television, and Air-Ground Tables of Assignments) meeting the 
requirements of Sec. 1.401 will be given a file number and, promptly 
thereafter, a ``Public Notice'' will be issued (by means of a 
Commission release entitled ``Petitions for Rule Making Filed'') as to 
the petition, file number, nature of the proposal, and date of filing. 
Petitions for rule making are available at the Commission's Dockets 
Reference Center (1919 M Street NW., Room 239, Washington, DC).

PART 5--EXPERIMENTAL RADIO SERVICES (OTHER THAN BROADCAST)

    1. The authority citation for part 5 continues to read as follows:

    Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 
U.S.C. 154, 303. Interpret or apply sec. 301, 48 Stat. 1081, as 
amended; 47 U.S.C. 301.

    2. Section 5.207 is revised to read as follows:


Sec. 5.207  Experiments performed in conjunction with pioneer's 
preference applications.

    An applicant for a pioneer's preference pursuant to Sec. 1.402 of 
this chapter may file an experimental license application for a limited 
geographical area, generally including no more than one Metropolitan 
Statistical Area. In order to be eligible for a preference at the time 
of a report and order in a proceeding addressing a new service or 
technology, the experimental applicant must demonstrate the technical 
feasibility of its proposal by summarizing its experimental results in 
its preference application, unless it instead submits an acceptable 
showing of technical feasibility. If a pioneer's preference applicant 
wishes the Commission to consider in conjunction with the application 
experimental material filed subsequent to the application, the 
applicant must summarize this material and submit the summary to the 
Commission prior to the Sunshine Notice announcing that a report and 
order pertaining to the new service or technology will be considered by 
the Commission at a public meeting, or--if a report and order is 
considered by notation--prior to submission of the report and order to 
the Commission for vote. All experimental material must be summarized 
and its relevance to the pioneer's preference application explained in 
order for it to be considered by the Commission.

[FR Doc. 95-6081 Filed 3-13-95; 8:45 am]
BILLING CODE 6712-01-M