[Federal Register Volume 60, Number 173 (Thursday, September 7, 1995)]
[Proposed Rules]
[Pages 46564-46566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22296]



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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90

[PR Docket No. 89-552, GN Docket No. 93-252, PP Docket No. 93-253; FCC 
95-312]


Wireless Services; Private Land Mobile Radio

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission adopts a Second Memorandum Opinion and Order 
and Third Notice of Proposed Rulemaking, which proposes a new framework 
for the operation and licensing of the 220-222 MHz band (220 MHz 
service). (The summary of the Second Memorandum Opinion and Order 
portion of this decision may be found elsewhere in this edition of the 
Federal Register.) This action is taken as part of the Commission's 
continuing implementation of the new regulatory framework for mobile 
radio services enacted by Congress in Section 6002(b) the Omnibus 
Budget Reconciliation Act of 1993. The primary goal of this proceeding 
is to establish a flexible regulatory framework that will allow for 
more efficient licensing of the 220-222 MHz band, eliminate unnecessary 
regulatory burdens on both existing and future licensees, and enhance 
the competitive potential of the 220 MHz service in the mobile services 
marketplace.

DATES: Comments are due on or before September 27, 1995, and reply 
comments are due on or before October 12, 1995.

ADDRESSES: Federal Communications Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:
Martin Liebman, Wireless Telecommunications Bureau (202) 418-1310, or 
Rhonda Lien, Wireless Telecommunications Bureau (202) 418-0620.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Third Notice of 
Proposed Rule Making (Third NPRM) portion of the Commission's Third 
Notice of Proposed Rulemaking and Second Memorandum Opinion and Order 
in PR Docket No. 89-552, GN Docket No. 93-252, PP Docket No. 93-253; 
FCC 95-312, adopted July 28, 1995, and released August 28, 1995. The 
complete text of this decision is available for inspection and copying 
during normal business hours in the FCC Reference Center (Room 239), 
1919 M Street, NW., Washington, DC, and also may be purchased from the 
Commission's copy contractor, International Transcription Service, 
(202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC 20037.

Synopsis of Third Notice of Proposed Rulemaking Portion of Second 
Memorandum Opinion and Order and Third Notice of Proposed 
Rulemaking

    1. The Commission, in this Third NPRM, proposes a new framework for 
the operation and licensing of the 220-222 MHz band (220 MHz 
service).\1\ This action is taken as part of our continuing 
implementation of the new regulatory framework for mobile radio 
services enacted by Congress in Section 6002(b) of the Omnibus Budget 
Reconciliation Act of 1993 (Budget Act), which amended Sections 3(n) 
and 332 of the Communications Act of 1934.\2\ The Commission began the 
implementation of the provisions of the Budget Act with the adoption of 
a Notice of Proposed Rule Making in GN Docket 93-252 (58 FR 53169, 
October 14, 1993. In that proceeding, the Commission adopted rules 
governing the commercial and private mobile radio services, including 
the 220 MHz service, consistent with the policy of regulatory parity as 
reflected in the Congressional revisions to Section 332 of the Act. The 
proceeding the Commission is initiating with this Third NPRM is an 
outgrowth of the CMRS Third Report and Order (59 FR 59945, November 21, 
1994), which deferred a comprehensive examination of the 220 MHz 
service to a separate rulemaking proceeding.

    \1\ The Commission will refer herein to any licenses granted to 
this new framework as Phase II licenses. Licenses granted under the 
current rules are referred to herein as Phase 1 licenses.
    \2\ Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-
66, Title VI Sec. 6002(b)(2)(A), 6002(b)(2)(B), 107 Stat. 312, 392 
(1993).
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    2. The Commission's primary goal in this proceeding is to establish 
a flexible regulatory framework that will allow for more efficient 
licensing of the 220-222 MHz band, eliminate unnecessary regulatory 
burdens on both existing and future licenses, and enhance the 
competitive potential of the 220 MHz service in the mobile services 
marketplace. In addition, the Commission seeks to ensure that licenses 
are granted to those who value the spectrum most highly and will 
maximize its use to provide the best quality and variety of service to 
consumers. The Commission believes its proposals strike a fair balance 
between the interests of current licensees and licensees to be 
authorized under the new rules. The adoption of the rules set forth in 
this Third NPRM will enable the continued development of the 220 MHz 
radio service and the implementation of a variety of new communications 
services to meet the future needs of the American public.

Proposals Contained in the Third NPRM

    3. The Third NPRM invites comment on a number of issues relevant to 
operation and licensing of the 220 MHz service. In the category of 
nationwide licensing, the Commission seeks comment on whether to 
resolve pending mutually exclusive, non-commercial, nationwide 
applications by lottery, comparative hearing, or to return the 
applications and adopt a new licensing scheme for the 30 channels 
associated with the applications. If the Commission returns the 
applications, it makes the following proposals for Phase II nationwide 
licensing of these channels: (1) To license the 30 channels 

[[Page 46565]]
on a nationwide basis to all applicants--i.e., applicants that intend 
to use the channels to offer commercial services as well as applicants 
that intend to use the channels for their private internal use; and (2) 
To assign these channels, in the form of three 10-channel 
authorizations, through competitive bidding pursuant to our tentative 
conclusion that the principal use of the spectrum will be for the 
provision of for-profit, subscriber-based services.
    4. Also, the Third NPRM makes the following proposals for Phase II, 
non-nationwide licensing of the 220 MHz band. It first proposes to 
assign 60 channels in the 172 geographic areas defined as Economic 
Areas by the Bureau of Economic Analysis, Department of Commerce (``EA 
licenses'') and 65 channels in the geographic areas defined by five 
``220 MHz Regions'' (``Regional licenses'') in the following manner:

        Non-Nationwide 220 MHz, Proposed Channel Allocation Plan        
                           EA Block                             Channels
Channels 61-70...............................................         10
Channels 71-80...............................................         10
Channels 91-100..............................................         10
Channels 101-110.............................................         10
Channels 121-125.............................................          5
Channels 126-130.............................................          5
Channels 131-135.............................................          5
Channels 136-140.............................................          5
    Total....................................................         60
                        Regional Block                                  
Channels 171-180.............................................         10
Channels 186-200.............................................         15
Channels 1-10................................................         10
Channels 11-20...............................................         10
Channels 31-50...............................................         20
    Total....................................................         65
                                                                        

    5. The Third NPRM also proposes: (1) To allow all applicants to 
apply for these channels--i.e., applicants that intend to use the 
channels for private, internal use as well as applicants that intend to 
use the channels to offer commercial services; (2) To assign these 
channels through competitive bidding based on our tentative conclusion 
that the principal use of the spectrum will be for the provision of 
for-profit, subscriber-based services; (3) To permit EA and Regional 
licensees to operate stations anywhere within their geographic borders, 
provided that their transmissions do not exceed a predicted field 
strength of 38 dBuV/m at their border and they protect Phase I 
licensees in accordance with existing co-channel separation criteria; 
(4) To provide a 10-year license term for EA and Regional licensees and 
require EA and Regional licensees to meet five and ten-year 
construction benchmarks; (5) To eliminate existing channel use 
restrictions, i.e., the ``data-only'' and ``non-trunked'' channel 
designations; (6) To continue to assign, on a single-station basis, 10 
channels exclusively to applicants eligible in the Public Safety Radio 
Service (the ``Public Safety Pool'') and five channels exclusively to 
applicants eligible in the Emergency Medical Radio Service (the ``EMRS 
Pool''); and (7) To continue to assign channels in the Public Safety 
and EMRS Pools on a first-come, first-served basis and resolve mutually 
exclusive applications by random selection procedures.
    6. The Third NPRM next considers technical and operational matters 
and proposes modifications to the Commission's existing rules with 
regard to fixed operations, paging operations, and the use of 5 kHz-
wide channels. Specifically, the Commission proposes to allow fixed and 
paging operations for all 220 MHz licensees without the requirement 
that such use be on an ancillary basis to land mobile operations, and 
to allow licensees, under certain conditions, to aggregate any and all 
of their authorized channels to operate on channels wider than 5 kHz.
    7. The Third NPRM also proposes to adopt definitions for initial 
applications, amended applications, and applications to modify 
authorizations in the following manner: (1) To define initial 
applications for 220 MHz licenses as applications for the nationwide, 
EA, and Regional licenses to be assigned in Phase II; (2) To adopt the 
same procedures for amending applications and modifying authorizations 
for Phase II 220 MHz licenses that are established for other Part 90 
CMRS services; (3) To require non-grandfathered CMRS 220 MHz licensees 
to obtain STAs under the same restrictions applicable to other non-
grandfathered Part 90 CMRS licensees; and (4) To extend to all 220 MHz 
licensees the Part 22 renewal standards adopted in the CMRS Third 
Report and Order for part 90 CMRS services.
    8. The Third NPRM also addresses a Petition for Rulemaking filed by 
Fairfield Industries, Inc. (Fairfield), and adopts proposals similar to 
those requested by Fairfield for secondary, fixed operation in the 220-
222 MHz band.
    9. Finally, the Third NPRM proposes competitive bidding procedures 
to resolve mutually exclusive initial applications filed in Phase II.

Administrative Matters

    10. Pursuant to applicable procedures set forth in Sections 1.415 
and 1.419 of the Commission's Rules, 47 CFR 1.415 and 1.419, interested 
parties may file comments on or before September 27, 1995, and reply 
comments on or before October 12, 1995. To file formally in this 
proceeding, you must file an original plus four copies of all comments, 
reply comments, and supporting comments. If you want each Commissioner 
to receive a personal copy of your comments, you must file an original 
plus nine copies. You should send comments and reply comments to Office 
of the Secretary, Federal Communications Commission, Washington, DC 
20554. Comments and reply comments will be available for public 
inspection during regular business hours in the FCC Reference Center 
(Room 239), 1919 M Street, NW., Washington, DC 20554.
    11. This is a non-restricted notice and comment rulemaking 
proceeding. Ex parte presentations are permitted, except during the 
Sunshine Agenda period, provided they are disclosed as provided in the 
Commission Rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).

Initial Regulatory Flexibility Act Statement

I. Reason for Action

    The action is taken to propose a new framework for the licensing 
and operation of the 220 MHz service, and as part of the Commission's 
continuing implementation of Congress revisions to Sections 3(n) and 
332 of the Communications Act in the Omnibus Budget Reconciliation Act 
of 1993.

II. Objectives of this Action

    The Commission's primary goal is to establish a flexible regulatory 
scheme that will allow for more efficient licensing, eliminate 
unnecessary regulatory burdens on both existing and future licensees, 
and enhance the competitive potential 220 MHz services in the mobile 
marketplace.

III. Legal Basis

    The proposed action is authorized under Sections 4(i), 303(r), 
309(j) and 332 of the Communications Act of 1934, as amended.

IV. Description, Potential Impact and Number of Small Entities 
Affected

    There are approximately 3,800 non-nationwide licensees in the 220 
MHz band. The potential impact of the proposals contained in this 
Notice on small business is hard to predict without the benefit of 
comment, and the actual impact will depend on the final action taken. 
The intention of this action is to provide licensees with more 
flexibility, with a minimum increased 

[[Page 46566]]
burden. Thus, the Commission, in drafting these proposals tried to 
balance the needs of all licensees and potential licensees. For 
example, to afford licensees increased flexibility to meet consumer 
demand and to increase their ability to compete with other CMRS 
licensees, the Commission has proposed that 220 MHz licensees be 
permitted to operate paging and fixed systems on a primary basis and to 
aggregate their 5 kHz channels to operate on channels of wider 
bandwidth.

V. Reporting, Recordkeeping and Other Compliance Requirements

    The Commission is proposing to generally decrease the burden on 
licensees. For example, rather than being required to obtain separate 
authorization for each of their base stations, non-nationwide, Phase II 
licensees will be permitted to operate over Commission-defined 
geographic areas (EAs and 220 MHz Regions) and will be allowed to 
construct and operate base stations anywhere within their authorized 
area as long as signals from those stations do not exceed a prescribed 
level. On the other hand, Phase II licensees who desire to operate less 
than 120 kilometers from Phase I co-channel stations will be required 
to submit a technical analysis demonstrating at least 10 dB protection 
to the 38 dbuV/m contour of such licensees, and all Phase II licensees 
will be required to submit maps and other supporting documents to 
demonstrate compliance with interim and final construction benchmarks.

VI. Federal Rules which Overlap, Duplicate, or Conflict with these 
Proposals

    None.

VII. Significant Alternatives

    The Commission believes that the proposals contained in this 
decision represent the best balance of providing licensees with the 
most flexibility and the least regulatory burden possible, while 
ensuring that license are granted to those who value the spectrum most 
high and will maximize its use to provide the best quality and variety 
of service to consumers.
    12. As required by Section 603 of the Regulatory Flexibility Act, 
the Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the expected impact on small entities of the proposals 
suggested in this document. Written public comments are requested on 
the IRFA. These comments must be filed in accordance with the same 
filing deadlines as comments on the rest of this Further Notice, but 
they must have a separate and distinct heading designating them as 
responses to the Initial Regulatory Flexibility Analysis. The Secretary 
shall send a copy of this Further Notice of Proposed Rule Making, 
including the Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration in accordance 
with paragraph 603(a) of the Regulatory Flexibility Act. Pub. L. No. 
96-354, 94 Stat. 1164, 5 U.S.C. Section 601 et seq. (1981).
    13. Authority for issuance of this Second Memorandum Opinion and 
Order and Third Notice of Proposed Rulemaking is contained in Sections 
4(i), 303(r), 309(j), and 332 of the Communications Act of 1934, as 
amended; 47 U.S.C. 154(i), 303(r), 309(j), and 332.

Ordering Clause

    14. Accordingly, IT IS ORDERED that the Petition for Rulemaking in 
RM-8506 filed by Fairfield Industries, Inc. IS GRANTED to the extent 
indicated herein.

List of Subjects in 47 CFR Part 90

    Business and industry, Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 95-22296 Filed 9-6-95; 8:45 am]
BILLING CODE 6712-01-M