[Federal Register Volume 60, Number 138 (Wednesday, July 19, 1995)]
[Proposed Rules]
[Pages 37148-37151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17302]




[[Page 37147]]

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Part II





Federal Communications Commission





_______________________________________________________________________



47 CFR Part 90



Private Land Mobile Radio Services; Proposed and Final Rules

  Federal Register / Vol. 60, No. 138 / Wednesday, July 19, 1995 / 
Proposed Rules   

[[Page 37148]]


FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[PR Docket No. 92-235, FCC 95-255]


Examination of Exclusivity and Frequency Assignment Policies of 
the Private Land Mobile Radio Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Commission has adopted a Further Notice of Proposed Rule 
Making which seeks to introduce market forces into the Private Land 
Mobile Radio (PLMR) bands. This Further Notice of Proposed Rule Making 
proposes three options to introduce market forces into these bands: 
exclusivity, user fees, and competitive bidding. The Commission seeks 
comment on each of these options and believes that the information 
gathered will assist in developing and implementing an overall strategy 
on how to promote greater efficiency in these bands.

DATES: Comments must be filed on or before September 15, 1995, and 
reply comments must be filed on or before October 16, 1995.

ADDRESSES: Federal Communications Commission, 1919 M Street NW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Ira Keltz of the Wireless 
Telecommunications Bureau at (202) 418-0680.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rule Making, PR Docket No. 92-235, FCC 95-
255, adopted June 15, 1995, and released June 23, 1995. The full text 
of this Further Notice of Proposed Rule Making is available for 
inspection and copying during normal business hours in the FCC 
Reference Center (Room 239), 1919 M Street NW., Washington, DC. The 
complete text may be purchased from the Commission's copy contractor, 
International Transcription Services, Inc., 2100 M Street NW., 
Washington, DC 20037, telephone (202) 857-3800.

Summary of Notice of Proposed Rule Making

    1. The Commission initiated the instant proceeding to explore 
methods to promote more efficient and effective use of the PLMR bands 
below 800 MHz. This action stems from the Commission's Notice of 
Proposed Rule Making (56 FR 31097, July 9, 1991) and Notice of Inquiry 
(57 FR 54034, November 16, 1992) in PR Docket 92-235 which sought 
public comment regarding ways to promote more efficient use of the PLMR 
bands below 800 MHz. The Commission does not believe that the current 
shared regulatory environment contains the proper incentives to 
encourage efficient spectrum usage. Introducing market-based incentives 
into these bands will help to encourage more efficient spectrum use 
while allowing users to make the equipment choices which best address 
their needs by attaching an economic cost to inefficient use of the 
spectrum and promoting the use of more efficient technologies. The user 
community will ultimately benefit from more efficient use of spectrum 
through the availability of more channels and better quality service.
    2. The spectrum in the PLMR bands historically has been available 
on a shared use basis. The environment that has emerged is 
characterized by unlimited sharing of the spectrum by over 500,000 
licensees with over 12 million transmitters. Because of the significant 
and varied spectrum use, the PLMR bands have become highly congested 
and there is a substantial risk that service in these bands will 
deteriorate to unacceptable levels. Unfortunately, in this shared use 
environment, PLMR users generally have little incentive to economize on 
spectrum use because users do not pay for their spectrum, cannot 
realize the benefit of more efficient use, and generally share their 
frequency assignments with a number of other users. Shared use of 
spectrum also precludes the use of spectrum efficient technologies, 
such as trunking and time division multiple access (TDMA) because they 
generally require centralized channel control.
    3. This Further Notice of Proposed Rule Making proposes three 
options to introduce market forces into these bands: exclusivity, user 
fees, and competitive bidding. The Commission seeks comment on each of 
these options and believes that the information gathered will assist in 
developing and implementing an overall strategy on how to promote 
greater efficiency in these bands.
    4. First, the Commission proposes the introduction of exclusivity 
on channels in the PLMR bands, and to explicitly permit the leasing of 
excess capacity on these exclusive channels. The Commission believes 
that offering users the option of exclusivity with the right to resell 
excess capacity if they agree to convert to narrowband technology by a 
specified date will promote the use of more efficient technologies. In 
addition, affording users the opportunity to obtain exclusivity will 
enable them to benefit directly from the increased capacity which 
results from their conversion to more efficient technologies, thus 
encouraging more rapid transition to narrowband technology. In this 
regard, users will be more likely to install trunked systems if they 
are certain that additional users, who might interfere with their 
trunked systems, would not be licensed on their channel. The 
Commission's experience with the spectrum above 800 MHz supports this 
theory. The introduction of exclusivity into the 800 MHz bands 
facilitated and encouraged the use of more spectrum efficient 
technologies and equipment. We seek here to provide users of the PLMR 
bands with that same flexibility to use the most advanced and efficient 
technology available.
    5. Regarding the lease of excess capacity, in order to promote more 
flexible use of the spectrum, the Commission proposes to allow 
licensees who choose the exclusivity option to lease excess capacity to 
any party without restriction. The Commission seeks comment on whether 
such leasing arrangements should be limited to PLMR eligibles in order 
to ensure that sufficient spectrum is available to satisfy the needs of 
the PLMR community. Additionally, the Commission seeks comment on 
whether these proposals will affect whether traditional PLMR users, who 
seek to lease excess capacity, are considered commercial mobile radio 
service (CMRS) providers. The Commission tentatively concludes that 
licensees who lease excess capacity will have the aspect of their 
operations regulated as CMRS. The Commission seeks comment on this 
tentative conclusion.
    6. Second, the Commission seeks comment on how a system of user 
fees can be used in these bands to encourage licensees to make the most 
efficient and effective use of the spectrum. Under this approach, users 
would pay a fee based on the estimated value of the spectrum. The 
spectrum fee would be calculated based on the area and population 
covered, and the amount of spectrum used. This type of a user fee 
structure would attach an economic cost to inefficient spectrum use, 
thereby motivating users to increase their efficient use of the 
spectrum. Although the Commission does not currently have statutory 
authority to impose such a fee structure, this option may be the most 
effective way to encourage efficiency in the PLMR bands while 
recognizing the varying needs of the incumbent users. The Commission 
believes that seeking further comment on the imposition of 

[[Page 37149]]
user fees at this time will enable the Commission to consider how such 
fees can best be implemented in the PLMR bands, so that if fee 
authority is granted, the Commission will be able to act quickly to 
implement such authority.
    7. Third, the Commission seeks comment on introducing competitive 
bidding into the PLMR bands as an alternative to user fees. 
Specifically, the Commission seeks comment on a proposal to create 
geographic overlay licenses and use competitive bidding as the 
assignment mechanism for these overlay licenses. Competitive bidding of 
overlay licenses could promote efficiency by allowing the marketplace 
to determine the value of spectrum and by awarding licenses to those 
who value them most highly, thus ensuring that spectrum will be put to 
its highest value use. As with exclusivity, competitive bidding of 
overlay licenses attaches a cost to inefficient spectrum use. The 
Commission's current auction authority does not permit the use of 
competitive bidding to assign private licenses because these licenses 
are not mutually exclusive and the principal use of the spectrum does 
not involve the provision of service to subscribers for a fee. However, 
expanded auction authority which could include private wireless users 
is proposed by the Administration and the U.S. Senate. Accordingly, the 
Commission believes that it is appropriate at this time to seek comment 
on how auctions could best be implemented for PLMR licenses, if such 
authority is granted.
    8. Additionally, the Commission tentatively concludes that public 
safety users should be exempt from market-based incentives. Public 
safety users are charged with the protection of life and property, and 
the Commission is committed to ensuring that such users have access to 
spectrum to perform their critical function. We seek comment on 
exempting public safety users from spectrum fees and competitive 
bidding, or developing a reduced fee structure and a protected auction 
environment for these users.
    9. The proposed rules are set forth at the end of this document.
    10. FURTHER INITIAL REGULATORY FLEXIBILITY ANALYSIS

Reason for Action

    This rule making proceeding was initiated to secure comment on 
proposals for establishing shared exclusive assignments arrangements in 
the PLMR bands which will grant licensees flexibility to voluntarily 
adopt new technology and thereby achieve more efficient use of 
spectrum. We also propose to permit licensees who convert to narrowband 
technology to sell or lease excess capacity to PMRS eligibles as a 
means of enhancing the competitive potential of the PLMR services in 
the marketplace. The proposals advanced in the Further Notice of 
Proposed Rule Making are also designed to respond to the increasing 
need for spectrum and considerable changes in the mobile communications 
landscape.

Objectives

    The Commission proposes changes to its rules for the PLMR services 
for use of spectrum in a manner that yields the greatest potential 
benefit to the public. Specifically, the exclusivity proposal will 
promote more efficient use of spectrum by encouraging licensees 
participating in exclusive sharing agreements to convert to innovative 
narrowband technology in an expeditious manner. Further, the proposal 
relating to the sale or lease of excess capacity will provide for the 
enhancement of the PLMR services by allowing marketplace mechanisms to 
intervene to give insight into the value of the PLMR bands to private 
eligibles. These new proposals will result in improving the quality of 
service, increasing the level of technology, and fostering economic 
growth in the private land mobile environment.

Legal Basis

    The legal basis for these rule changes if found in Section 4(i), 
303(g), 303(r), 332(a), 332(c), and 332(d) of the Communications Act of 
1934, as amended, 47 U.S.C. Secs. 303(g), 303(r), 332(a), 332(c), and 
332(d), as amended.

Reporting, Recordkeeping, and Other Compliance Requirements

    Under the proposal for shared exclusivity agreements in the Further 
Notice of Proposed Rule Making, existing licensees will be required to 
report information regarding its plans for implementation of narrowband 
systems within 5 year guidelines after entering the exclusivity 
arrangement. These reports will serve as a benchmark for the Commission 
to measure the progress of licensees in fulfilling their plans to 
determine whether a specific exclusivity agreement should be rescinded.
Federal Rules Which Overlap, Duplicate or Conflict With These Rules

    None.

Description, Potential Impact, and Number of Small Entities Involved

    The Further Notice of Proposed Rule Making potentially affects 
numerous small entities, as the private land mobile services is 
comprised of millions of small business entities operating in urban and 
rural areas across the United States. The shared exclusivity and the 
sale or lease of excess capacity proposals are options available for 
small business licensees, as well as all other entities utilizing the 
private land mobile service. Many small entities could be positively 
affected by the proposals because they provide for new exclusive 
communications assignments that will foster new technologies and 
promote the competitive potential of the PLMR spectrum. 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 Further 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.

Any Significant Alternatives Minimizing the Impact on Small Entities 
Consistent With the Stated Objectives

    This Further Notice of Proposed Rule Making solicits comments on a 
variety of alternatives. Any additional significant alternatives 
presented in the comments will also be considered.

List of Subjects in 47 CFR Part 90

    Communications equipment, Radio.

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

    Part 90 of Chapter I of Title 47 of the Code of Federal Regulations 
is proposed to be amended as follows:

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

    1. The authority citation for Part 90 continues to read as follows:

    Authority: Sections 4, 302, 303, and 332, 48 Stat. 1066, 1082, 
as amended; 47 U.S.C. 154, 302, 303, and 332, unless otherwise 
noted.

    2. Section 90.175 is amended by revising paragraph (a) to read as 
follows:


Sec. 90.175  Frequency coordination requirements.

* * * * *
    (a) For frequencies between 25 and 470 MHz: A statement from the 
applicable frequency coordinator recommending the most appropriate 
frequency. The coordinator's recommendation may include comments on 
technical factors such as power, antenna height and gain, terrain and 
other factors which may serve to 

[[Page 37150]]
minimize potential interference. Tables 1 and 2 in Sec. 90.193 must be 
used by coordinators to determine co-channel station distance 
separations between stations participating in a negotiated exclusivity 
agreement and those stations that are not participating in a negotiated 
exclusivity agreement. Frequencies in the 450-470 MHz band, when used 
for secondary fixed operations, shall be assigned and coordinated 
pursuant to Sec. 90.261.
* * * * *
    3. Section 90.189 is added to read as follows:


Sec. 90.189  Shared Exclusivity--150-170, 421-430, and 450-470 MHz 
Bands.

    To promote spectrally efficient technologies (e.g. trunking, TDMA, 
etc.) and to increase quality of service for licensees, assignments may 
be limited on certain frequencies in a specific geographic area as set 
out in Secs. 90.190-90.193.
    4. Section 90.190 is added to read as follows:


Sec. 90.190  User agreements.

    Co-channel licensees, operating in the same geographical area can, 
by mutual agreement, develop sharing arrangements on their currently 
licensed frequency or frequencies that would facilitate their use of 
advanced technology. The following guidelines will apply to the 
development of these sharing agreements:
    (a) This agreement must be unanimous among all licensees on a given 
frequency or frequencies within the composite service area, 
irrespective of the radio service to which each user belongs. Any 
license application forwarded from a frequency coordinator to the 
Commission, prior to the date that the coordinator is notified, in 
writing, of a licensee action to negotiate an agreement will be 
considered, for the purposes of the agreement, an existing licensee and 
must be included in the agreement.
    (b) All agreements must be finalized by August 31, 2000. Each 
participant of the plan must agree to utilize equipment designed to 
operate single mode with a maximum channel bandwidth of 6.25 kHz or 
equipment designed to operate single mode with a channel bandwidth of 
12.5 kHz provided that it meets the efficiency standard of one 
communication channel per 6.25 kHz within 5 years after an agreement is 
finalized.
    (c) A 90 day temporary freeze on the assignment of new licensees on 
a given frequency or frequencies will be made when a licensee, who 
desires to negotiate with other co-channel users to enter a sharing 
agreement, notifies all frequency coordinators who have cognizance of 
that frequency. This notification must be in writing and include:
    (1) The frequency or frequencies under consideration; and
    (2) A description of all co-channel licensees who must be a party 
to the agreement. This description will include: a list of all affected 
co-channel licensees, their base station locations (latitude and 
longitude), their current service areas, and their exclusivity service 
area. The exclusivity service area for each licensee will be defined as 
a point radius centered on their base station. The maximum radius 
defining the size of the exclusivity service area will consistant with 
the specifications of Sec. 90.205.
    (d) During the temporary freeze on new licenses in the exclusivity 
service area, no new licenses will be granted without the consent of 
all existing users within this area. Co-channel licenses will be 
granted outside of the exclusivity service area at minimum distances as 
determined by the tables of Sec. 90.193. Existing licensees who are 
located outside of the composite service area and closer than the 
minimum distance to this area as specified by the tables of Sec. 90.193 
may continue to operate on a co-primary basis with all licensees inside 
the composite service area.
    (e) If at the completion of the 90 day period, a unanimous 
agreement is not reached among all licensees, the freeze on new 
authorizations on the frequency or frequencies within this area will be 
lifted. No licensee who is located within the exclusivity service area 
may file a new notification to temporarily freeze this frequency or 
frequencies in this area for a minimum of one calendar year from the 
date the temporary freeze expires. All parties are still free to 
negotiate an agreement, but must include any new licensees who are 
located within the composite service area.
    (f) If prior to or at the completion of the 90 day period, a 
unanimous agreement is reached among all licensees, the freeze on new 
authorizations on this frequency or frequencies in this composite 
service area will be made permanent. No new licenses will be granted on 
this frequency or frequencies in the exclusivity service area without 
the consent of participants in the agreement, but systems subject to 
the agreement can be modified, expanded, or renewed. Existing licensees 
who are located outside of the exclusivity service area and closer than 
the minimum distance to this area as specified by the tables of 
Sec. 90.193 may continue to operate on a co-primary basis with all 
licensees inside the exclusivity service area.
    (1) The final agreement will be filed with all cognizant frequency 
coordinators. This agreement will include:
    (i) The frequency or frequencies which are covered under the 
agreement;
    (ii) Signatures of all parties to the agreement;
    (iii) A description of all co-channel licensees who must be a party 
to the agreement. This description will include: a list of all affected 
co-channel licensees, their base station locations (latitude and 
longitude), their current service areas, and their exclusivity service 
area; and
    (iv) A plan for complying with the requirement to employ narrowband 
technology within five (5) years from the agreement date.
    (2) The coordinator must make this agreement available to the 
public upon request.
    (3) New co-channel licenses will not be granted closer to the 
composite service area than the minimum distances determined by the 
tables in Sec. 90.193.
    (4) If a licensee expands a system after an agreement is negotiated 
and filed with the cognizant frequency coordinators, then any portion 
of the expanded service area which falls outside of the composite 
service area of the agreement, will not be afforded the protection of 
the tables in Sec. 90.193 from co-channel licensees, unless a new 
agreement which includes the expanded area is negotiated.
    5. Section 90.191 is added to read as follows:


Sec. 90.191  Sell or lease of excess capacity.

    Licensees who participate in a sharing plan and have fully 
converted their systems to narrowband or equivelent operation may lease 
excess capacity of their systems.
    6. Section 90.193 is added to read as follows:


Sec. 90.193  Shared exclusivity separation distances.

    The minimum distance between an existing base station that is 
included in a negotiated exclusivity agreement and a proposed co-
channel station not included in the agreement will be determined from 
tables 1 and 2.

                                                                        

[[Page 37151]]
      Table 1.--150-174 MHz--Minimum Distance (km) Between Existing Base Stations and Proposed Stations \1\     
----------------------------------------------------------------------------------------------------------------
                                                   Existing station service area radius (km) \2\                
   Proposed service area (km)    -------------------------------------------------------------------------------
                                     3       8      13      16      24      32      40    48 \3\  64 \3\  80 \3\
----------------------------------------------------------------------------------------------------------------
3...............................      16      27      45      60      84      90     100     111     138     162
8...............................      27      32      50      64      88      95     105     118     143     164
13..............................      45      50      55      69      93     100     110     122     148     169
16..............................      60      64      69      70      97     103     113     130     151     172
24..............................      84      88      93      97     105     111     121     134     160     180
32..............................      90      95     100     103     111     119     129     142     167     188
40..............................     100     105     110     113     121     129     140     150     176     196
48 \3\..........................     111     118     122     126     134     142     150     158     184     204
64 \3\..........................     138     143     148     151     160     167     176     184     194     220
80 \3\..........................     162     164     169     172     180     188     196     204     220    237 
----------------------------------------------------------------------------------------------------------------
\1\ Distances are based upon 37 dBu desired and 19 dBu undesired signal strengths and are derived from FCC      
  Report R-6602, Figs. 19 and 20 (See Sec.  73.699 of this chapter, Figs. 10 and 10a)                           
\2\ For those stations licensed before August 1, 1996, whose authorizations do not include a service area radius
  or area of operation, the service areas will be determined from table 1 using the station's authorized        
  transmitter power increased by 3 dB or its actual ERP when given, and the antenna height above sea level in   
  lieu of HAAT, or the HAAT if given.                                                                           
\3\ Permitted only for base stations located 200 km (125 mi) or more from the center of markets 1-60 as listed  
  in Sec.  90.741. Applicants for such systems must demonstrate that the signal strength at the edge of their   
  service area does not exceed 37 dBu.                                                                          



    Table 2.--421-430, 450-470 MHz--Minimum Distance Between Existing Base Stations and Proposed Stations \1\   
----------------------------------------------------------------------------------------------------------------
                                                   Existing station service area radius (km) \2\                
   Proposed service area (km)    -------------------------------------------------------------------------------
                                     3       8      13      16      24      32      240     248     264     >64 
------------------------------------------------------------------------------------\3\-----\3\-----\3\-----\3\-
3...............................      16      27      43      55      68      80      97     111     155     180
8...............................      27      32      48      60      72      85     101     118     159     185
13..............................      43      48      53      64      77      90     106     122     164     190
16..............................      55      60      64      68      80      93     109     126     167     194
24..............................      68      72      77      80      89     101     118     134     175     201
32..............................      80      85      90      93     101     109     126     142     184     209
40 \3\..........................      97     101     106     109     118     126     134     150     192     217
48 \3\..........................     111     118     122     126     134     142     150     158     200     225
64 \3\..........................     155     159     164     167     175     184     192     200     216     242
>64 \3\.........................     180     185     190     193     201     209     217     225     241    253 
----------------------------------------------------------------------------------------------------------------
\1\ Distances are based upon 37 dBu desired and 19 dBu undesired signal strengths and are derived from FCC      
  Report R-6602, Figs. 19 and 20 (See Sec.  73.699 of this chapter, Figs. 10 and 10a).                          
\2\ For those stations licensed before August 1, 1996, whose authorizations do not include a service area radius
  or area of operation, the service areas will be determined from table 1 using the station's authorized        
  transmitter power increased by 3 dB or its actual ERP when given, and the antenna height above sea level in   
  lieu of HAAT, or the HAAT if given.                                                                           
\3\ Permitted only for base stations located 200 km (125 mi) or more from the center of markets 1-60 as listed  
  in Sec.  90.741. Applicants for such systems must demonstrate that the signal strength at the edge of their   
  service area does not exceed 37 dBu.                                                                          

[FR Doc. 95-17302 Filed 7-18-95; 8:45 am]
BILLING CODE 6712-01-P