[Federal Register Volume 61, Number 95 (Wednesday, May 15, 1996)]
[Proposed Rules]
[Pages 24469-24473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12269]



=======================================================================
-----------------------------------------------------------------------

[[Page 24470]]

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 15, 22, and 24

[WT Docket No. 95-157; RM-8643; FCC 96-196]


Microwave Relocation Rules; Comment Request for Blocks C Through 
F

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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

SUMMARY: By this Further Notice of Proposed Rule Making, the Commission 
seeks further comment on certain aspects of the microwave relocation 
rules for C, D, E, and F blocks. Specifically, the Commission seeks 
further comment on whether to adjust the negotiation periods by 
shortening the voluntary negotiation period and lengthening the 
mandatory negotiation period for the D, E, and F blocks, and whether 
the negotiation periods for the C block should be subject to the same 
adjustment. The Commission also seeks comment on whether microwave 
incumbents should be permitted to seek reimbursement from PCS licensees 
through participation in the cost-sharing plan. The Commission believes 
that the rules proposed herein, will expedite the clearing of the 2 GHz 
band in an equitable and efficient manner.

DATES: Comments must be filed on or before May 28, 1996 and reply 
comments on or before June 7, 1996.

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

FOR FURTHER INFORMATION CONTACT: Michael Hamra (202) 418-0620, Wireless 
Telecommunications Bureau.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Further Notice of 
Proposed Rule Making, adopted April 24, 1996 and released April 30, 
1996. The complete 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 230, 1919 M Street, N.W., Washington, 
D.C., and also may be purchased from the Commission's copy contractor, 
International Transcription Service, at (202) 857-3800, 2100 M Street, 
N.W., Suite 140, Washington, D.C. 20037.

FURTHER NOTICE OF PROPOSED RULE MAKING

I. Background

    1. In the First Report and Order and Third Notice of Proposed Rule 
Making in ET Docket No. 92-9, 57 FR 49020 (October 29, 1992) the 
Commission reallocated the 1850-1990, 2110-2150, and 2160-2200 MHz 
bands from private and common carrier fixed microwave services to 
emerging technology services. The Commission also established 
procedures for 2 GHz microwave incumbents to be relocated to available 
frequencies in higher bands or to other media, by encouraging 
incumbents to negotiate voluntary relocation agreements with emerging 
technology licensees or manufacturers of unlicensed devices when 
frequencies used by the incumbent are needed to implement the emerging 
technology. The First Report and Order stated that, should negotiations 
fail, the emerging technology licensee could request involuntary 
relocation of the incumbent, provided that the emerging technology 
service provider pays the cost of relocating the incumbent to a 
comparable facility.
    2. In the Commission's Third Report and Order in ET Docket No. 92-
9, 58 FR 46547 (September 2, 1993) as modified on reconsideration by 
the Memorandum Opinion and Order, 59 FR 19642 (April 25, 1994) the 
Commission established additional details of the transition plan to 
enable emerging technology providers to relocate incumbent facilities. 
The relocation process consists of two negotiation periods that must 
expire before an emerging technology licensee may request involuntary 
relocation. The first is a fixed two-year period for voluntary 
negotiations--three years for public safety incumbents, e.g., police, 
fire, and emergency medical--commencing with the Commission's 
acceptance of applications for emerging technology services, during 
which the emerging technology providers and microwave licensees may 
negotiate any mutually acceptable relocation agreement. Negotiations 
are strictly voluntary. If no agreement is reached, the emerging 
technology licensee may initiate a one-year mandatory negotiation 
period--or two-year mandatory period if the incumbent is a public 
safety licensee--during which the parties are required to negotiate in 
good faith.
    3. Should the parties fail to reach an agreement during the 
mandatory negotiation period, the emerging technology provider may 
request involuntary relocation of the existing facility. Involuntary 
relocation requires that the emerging technology provider (1) guarantee 
payment of all costs of relocating the incumbent to a comparable 
facility; (2) complete all activities necessary for placing the new 
facilities into operation, including engineering and frequency 
coordination; and (3) build and test the new microwave (or alternative) 
system. Once comparable facilities are made available to the incumbent 
microwave operator, the Commission will amend the 2 GHz license of the 
incumbent to secondary status. After relocation, the microwave 
incumbent is entitled to a one-year trial period to determine whether 
the facilities are indeed comparable, and if they are not, the emerging 
technology licensee must remedy the defects or pay to relocate the 
incumbent back to its former or an equivalent 2 GHz frequency.
    4. Under these procedures, it is possible for a relocation 
agreement between a PCS licensee and a microwave incumbent to have 
spectrum-clearing benefits for other PCS licensees as well. First, some 
microwave spectrum blocks overlap with one or more PCS blocks, because 
the spectrum in the 1850-1990 MHz band was assigned differently in the 
two services. Second, incumbents' receivers may be susceptible to 
adjacent or co-channel interference from PCS licensees in more than one 
PCS spectrum block. For example, a microwave link located partially in 
Block A, partially in Block D, and adjacent to Block B, may cause 
interference to or receive interference from PCS licensees that are 
licensed in each of those blocks. Third, because most 2 GHz microwave 
licensees operate multi-link systems, PCS licensees may be asked to 
relocate links that do not directly encumber their own spectrum or 
service area in order to obtain the microwave incumbent's voluntary 
consent to relocate. Finally, the Unlicensed PCS Ad Hoc Committee for 2 
GHz Microwave Transition and Management Inc. (``UTAM''), the frequency 
coordinator for the PCS spectrum designated for unlicensed devices, 
expects that some licensed PCS providers will have to relocate links in 
the unlicensed band that are paired with links in licensed PCS 
spectrum. The Commission has designated UTAM to coordinate relocation 
in the 1910-1930 MHz band, which has been reallocated for unlicensed 
PCS devices. Once the 1910-1930 MHz band is clear, or there is little 
risk of interference to the remaining incumbents, and UTAM has 
recovered its relocation costs, UTAM's role will end and it will be 
dissolved.
    5. Because the Commission is licensing PCS providers at different 
times and multiple PCS licensees may benefit from the relocation of a 
microwave system or even a single link, the first PCS licensee in the 
market potentially bears a disproportionate share of relocation costs. 
Subsequent PCS licensees to enter the market may

[[Page 24471]]

therefore obtain a windfall. As a result of this potential ``free 
rider'' problem, the first PCS licensee in the market might not 
relocate a link or might delay its deployment of PCS if it believes 
that another PCS licensee will relocate the link first, thus paying for 
some or all of the relocation costs. In addition, unless cost-sharing 
is adopted, PCS licensees might not engage in relocation that is cost-
effective if viewed from an industry-wide perspective. For example, a 
link that encumbers two PCS blocks might not be moved if the cost is 
greater than the benefit to any single licensee, even though the joint 
benefit received by two or more licensees exceeds the cost of 
relocating the link.
    6. In 1994, PCIA proposed a cost-sharing plan to alleviate the free 
rider problem, which the Commission found to be attractive in theory 
but dismissed as underdeveloped. On May 5, 1995, Pacific Bell 
(``PacBell'') filed a Petition for Rulemaking. In its petition, PacBell 
proposed a detailed cost-sharing plan in which PCS licensees on all 
blocks, licensed and unlicensed, would share in the cost of relocating 
microwave stations. On May 16, 1995, the Commission requested comment 
on PacBell's proposal. Most parties that commented on PacBell's 
Petition for Rulemaking supported the cost-sharing concept, although 
the comments reflected some differences regarding the details of the 
proposal. On October 12, 1995, the Commission adopted a Notice of 
Proposed Rule Making, 60 FR 55529 (November 1, 1995) which sought 
comment on a modified version of the plan proposed by PacBell.
    7. The Commission also adopted and released with this Further 
Notice of Proposed Rule Making, the First Report and Order changing and 
clarifying certain aspects of the microwave relocation rules adopted in 
the Commission's Emerging Technologies proceeding, ET Docket No. 92-9.

II. Further Notice of Proposed Rule Making

    8. In this Further Notice of Proposed Rule Making, the Commission 
seeks comment on whether to shorten the voluntary negotiation period 
and lengthen the mandatory negotiation period for the D, E, and F 
blocks. The Commission also seeks comment on whether the negotiation 
periods for the C block should be subject to the same adjustment. 
Finally, the Commission proposes that microwave incumbents be permitted 
to relocate some of their own links and obtain reimbursement rights 
pursuant to the cost-sharing plan adopted in the First Report and 
Order.

A. Voluntary and Mandatory Negotiation Periods for C, D, E, and F 
Blocks

    9. The Commission agrees with commenters, however, that changing 
the negotiation timetable for PCS blocks other than the A and B blocks 
may not raise the same concerns. In the case of the D, E, and F blocks, 
bidding has not commenced and there are no ongoing negotiations between 
PCS licensees and incumbents. Therefore, the Commission believes it is 
appropriate to consider whether the relocation process in these blocks 
would benefit from adjusting the negotiation periods. Specifically, the 
Commission seeks comment on whether to adjust the negotiation periods 
for the D, E, and F blocks by shortening the voluntary negotiation 
period by one year and lengthening the mandatory period by one year. 
Under this approach, non-public safety incumbents would have a one-year 
negotiation period instead of the two-year negotiation period provided 
under current rules, and the mandatory negotiation period would be 
lengthened from one to two years. Similarly, public safety incumbents 
would have a two-year voluntary negotiation period instead of a three-
years period, and a three-year mandatory negotiation period instead of 
a two-year period.
    10. This approach could potentially accelerate the development of 
PCS in the D, E, and F blocks by speeding up the negotiation process 
and creating additional incentives for incumbents to enter into early 
agreements. At the same time, while incumbents would be required to 
commence mandatory negotiations sooner than under the existing rules, 
they would have the same total amount of time for negotiations provided 
under the existing rules before they become subject to involuntary 
relocation. The Commission seeks comment on whether this adjustment 
would effectively balance the interests of PCS licensees in bringing 
service to the public quickly and the interest of microwave incumbents 
in making a smooth transition to relocated facilities.
    11. Finally, the Commission seeks comment on whether to make the 
same changes discussed above to the voluntary and mandatory negotiation 
periods applicable to C block. The Commission notes that C block is in 
a different posture from the D, E, and F blocks because the C block 
auction is ongoing and possibly near conclusion, and bidding has been 
based on the current rules. At the same time, the voluntary negotiation 
period for C block has not yet commenced, so unlike A and B blocks, 
there are no ongoing negotiations currently taking place in reliance on 
the current rules. The Commission seeks comment on whether shortening 
the voluntary period and lengthening the mandatory negotiation period 
for C block would facilitate the development of PCS in this band and 
what effect it would have on negotiations between C block licensees and 
microwave incumbents.

B. Microwave Incumbent Participation in Cost-Sharing Plan

    12. The Commission tentatively concludes that microwave incumbents 
that relocate themselves should be allowed to obtain reimbursement 
rights and collect reimbursement under the cost-sharing plan from 
later-entrant PCS licensees that would have interfered with the 
relocated link. The Commission agrees with incumbents that allowing 
incumbent participation might facilitate system-wide relocations and 
could potentially expedite the deployment of PCS. The Commission is 
concerned, however, about what the incentive would be for an incumbent 
to minimize costs, if the incumbent knows in advance that it may be 
able to recover some of its expenses from PCS licensees. The Commission 
seeks comment, therefore, on how subsequent PCS licensees could be 
protected from being required to pay a larger amount to an incumbent 
that relocates itself than to another PCS licensee who has an incentive 
to minimize expenses. In addition, the Commission also questions 
whether a large number of incumbents would avail themselves of such an 
option, given that the Commission's rules require PCS licensees to pay 
for the entire cost of providing incumbents with comparable facilities. 
Assuming the Commission allows incumbent participation, the Commission 
seeks comment on whether, for purposes of the cost-sharing formula, the 
Commission should treat incumbents as if they were the initial PCS 
relocator.

III. Conclusion

    13. The Commission believes that the rules proposed in this Further 
Notice of Proposed Rule Making will promote the public policy goals set 
forth by Congress. The Commission believes that the proposals for 
negotiation and reimbursement will facilitate the rapid relocation of 
microwave facilities operating in the 2 GHz band, and will allow PCS 
licensees to offer service to the public in an expeditious manner.

[[Page 24472]]

IV. Procedural Matters

A. Initial Regulatory Flexibility Act

    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 policies and 
rules proposed in this Further NPRM (Further Notice). Written public 
comments are requested on the IRFA.
    Reason for Action: This rulemaking proceeding was initiated to 
secure comment on whether the negotiation period for the D, E, and F 
block PCS licensees should be adjusted by shortening the voluntary 
period by one year (i.e., to one year for non-public safety incumbents 
and two years for public safety incumbents) and lengthening the 
mandatory negotiation period for these blocks by a corresponding year 
(i.e., to two years for non-public safety incumbents and three years 
for public safety incumbents); whether the negotiation periods for the 
C block should be subject to the same readjustments as the negotiation 
periods for the D, E, and F blocks; and whether microwave incumbents 
should be permitted to seek reimbursement from PCS licensees through 
the cost-sharing plan. This proposal would facilitate negotiations 
between the parties and promote the efficient relocation of microwave 
licensees by encouraging microwave incumbents to relocate their own 
microwave systems, thus bringing PCS services to the public in an 
speedy manner.
    Objectives: Our objective is to facilitate negotiations between PCS 
licensees and microwave incumbents. This proposal would also enable 
microwave incumbents who pay to relocate their own links to collect 
reimbursement from PCS licensees that benefit from the relocation. 
Cost-sharing is necessary to enhance the speed of relocation and 
provide an incentive to incumbents to move their own links. This action 
would result in faster deployment of PCS and delivery of service to the 
public.
    Legal Basis: The proposed action is authorized under the 
Communications Act, Sections 4(i), 7, 303(c), 303(f), 303(g), 303(r), 
and 332, 47 U.S.C. 154(i), 303(c), 303(f), 303(g), 303(r), 332, as 
amended.
    Reporting, Record keeping, and Other Compliance Requirements: Under 
the proposal contained in the Further NPRM, microwave incumbents who 
relocate their own links would be required to document the relocation 
costs paid and report them to a central clearinghouse. Later PCS market 
entrants would then be required to file a Prior Coordination 
Notification with the clearinghouse and, if necessary, reimburse the 
incumbent for relocation expenses.
    Federal Rules Which Overlap, Duplicate or Conflict With These 
Rules: None.
    Description, Potential Impact, and Number of Small Entities 
Involved: This proposal would benefit small PCS licensees by 
facilitating negotiations with microwave incumbents and allowing them 
to bring their services to market sooner. This proposal would also 
benefit small microwave incumbents by enabling them to relocate their 
entire system at once and collect reimbursement from PCS licensees who 
benefit from the resulting clearance of the spectrum. Such incumbents 
would therefore benefit from the reduced time and administrative 
inconvenience involved with relocating links at different times. The 2 
GHz fixed microwave bands support a number of industries that provide 
vital services to the public. We are committed to ensuring that the 
incumbents' services are not disrupted and that the economic impact of 
this proceeding on the incumbents is minimal. We must further take into 
consideration that not all of the incumbent licensees are large 
businesses, particularly in the bands above 2 GHz, and that many of the 
licensees are local government entities that are not funded through 
rate regulation. We believe that this proceeding would further our 
policy of encouraging rapid deployment of PCS and system-wide 
relocations of microwave incumbents. After evaluating comments filed in 
response to the Further NPRM, the Commission will examine further the 
impact of all rule changes on small entities and set forth its findings 
in the Final Regulatory Flexibility Analysis.
    Significant Alternatives Minimizing the Impact on Small Entities 
Consistent with the Stated Objectives: We have reduced burdens wherever 
possible. The regulatory burdens we have retained are necessary in 
order to ensure that the public receives the benefits of innovative new 
services in a prompt and efficient manner. We will continue to examine 
alternatives in the future with the objectives of eliminating 
unnecessary regulations and minimizing any significant economic impact 
on small entities.
    IRFA Comments: We request 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 comment deadlines set forth in this Further NPRM.

B. Ex Parte Rules--Non-Restricted Proceeding

    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 Commission rules.

C. Comment Period

    Pursuant to applicable procedures set forth in Sections 1.415 and 
1.419 of the Commission's rules, interested parties may file comments 
on or before May 28, 1996, and reply comments on or before June 7, 
1996. To file formally in this proceeding, you must file an original 
and 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, D.C. 20554. Comments and reply 
comments will be available for public inspection during regular 
business hours in the Reference Center of the Federal Communications 
Commission, Room 239, 1919 M Street, N.W., Washington, D.C. 20554. A 
copy of all comments should also be filed with the Commission's copy 
contractor, ITS, Inc., 2100 M Street, N.W., Suite 140, (202) 857-3800.

D. Authority

    Authority for issuance of this Further Notice of Proposed Rule 
Making is contained in the Communications Act, Sections 4(i), 7, 
303(c), 303(f), 303(g), 303(r), and 332, 47 U.S.C. 154(i), 157, 303(c), 
303(f), 303(g), 303(r), 332, as amended.

E. Ordering Clauses

    It is ordered that the Initial Regulatory Flexibility Analysis, as 
required by Section 604 of the Regulatory Flexibility Act, and as set 
forth in Section VII(A) is Adopted.
    It is further ordered that the Secretary shall send a copy of this 
Further Notice of Proposed Rule Making to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 22

    Radio.

47 CFR Part 24

    Personal communications services.

[[Page 24473]]

47 CFR Part 101

    Fixed microwave services.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-12269 Filed 5-14-96; 8:45 am]
BILLING CODE 6712-01-P