[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Proposed Rules]
[Pages 39424-39429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19347]


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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 21

[CC Docket No 92-297, FCC 96-311]


Establishing Rules and Policies for Local Multipoint Distribution 
Service and Fixed Satellite Services

AGENCY: Federal Communications Commission.

ACTION: Fourth Notice of Proposed Rulemaking.

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SUMMARY: In this Fourth Notice of Proposed Rulemaking (FNPRM), the 
Commission proposes to designate, on a primary protected basis, the 
31.0-31.3 GHz (31 GHz) band to LMDS for both hub-to-subscriber and 
subscriber-to-hub transmissions. In addition, the Commission seeks 
comment on eligibility of LECs and cable operators to obtain LMDS 
licenses in the geographic areas they serve. These actions are taken to 
provide maximum flexibility to a full range of LMDS service providers, 
and to provide consumers with more choices in service providers, new 
services, and innovative technologies.

DATES: Comments must be submitted on or before August 12, 1996, and 
reply comments must be submitted on or before August 22, 1996.

ADDRESSES: Federal Communications Commission, Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT: Regarding 31 GHz frequency band 
issues: Bob James, Private Wireless Division, Wireless 
Telecommunications Bureau, (202) 418-0680; regarding eligibility 
issues: Walter Strack, Wireless Telecommunications Bureau, (202) 418-
0600.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Fourth Notice of Proposed Rulemaking in CC Docket 92-297, adopted July 
19, 1996, and released July 22, 1996. The complete text of the Fourth 
Notice of Proposed Rulemaking is available for inspection and copying 
during normal business hours in the FCC Reference Center (Room 239), 
1919 M Street, N.W., Washington D.C., and also may be purchased from 
the Commission's copy contractor, International Transcription Services, 
at (202) 857-3800, 1919 M Street, N.W., Room 246, Washington, D.C. 
20554.

SYNOPSIS OF FOURTH NOTICE OF PROPOSED RULEMAKING

    1. In the first Notice of Proposed Rulemaking (NPRM), 58 FR 6400 
(January 28, 1993), the Commission considered three petitions for 
rulemaking proposing a redesignation of the 28 GHz band. That band 
currently is designated for fixed point-to-point and fixed satellite 
service use. It found that redesignation of the point-to-point use of 
the band to point-to-multipoint use could stimulate greater use of a 
band that largely has lain fallow. However, the Commission asked for 
comment from satellite entities regarding the effect of redesignation 
on any proposed fixed satellite use of the band. Non-geostationary 
orbit (NGSO) and Geostationary orbit (GSO) FSS systems were proposed. 
In addition, entities planning mobile satellite services requested 
spectrum for their uplink feeder links.
    2. In the Third Notice of Proposed Rulemaking (Third NPRM), 60 FR 
43740 (August 23, 1995), the Commission proposed a band segmentation 
plan that it tentatively concluded would permit both LMDS and Fixed 
Satellite Service (FSS) systems to operate in the 28 GHz frequency 
band. It also proposed to accommodate feeder links for certain Mobile 
Satellite Service (MSS) systems in this band. The Report and Order 
which is issued in combination with the instant FNPRM makes a final 
decision on segmentation of the 28 GHz band among fixed satellite, 
mobile satellite uplinks, and LMDS. That decision will be published in 
this publication in due course.
    3. The FNRPM requests comment on two matters. First, it proposes to 
designate, on a primary protected basis, the 31.0-31.3 GHz (31 GHz) 
band to LMDS for both hub-to-subscriber and subscriber-to-hub 
transmissions. This action stems from efforts to accommodate a variety 
of LMDS system designs, services and transmission media in the adjacent 
28 GHz band, and is being taken on the Commission's own motion. This 
proposed designation of spectrum for LMDS would provide consumers 
access to more choices in service providers, new services, and 
innovative technologies, while accommodating those LMDS system designs 
requiring a wide separation between the transmit and receive 
frequencies when operated in a two-way mode.
    4. In order to ensure that there is adequate two-way interactive 
capacity for the various proposed LMDS systems, the Commission 
recognizes the need to designate additional spectrum for LMDS. The 
Commission observed that there is significant consumer demand for 
alternate providers of local exchange services, internet access, LANs 
and video teleconferencing, and that the LMDS proponents note that this 
demand can be more immediately satisfied, in an economically and 
technically efficient manner, by LMDS than by many of the alternate 
transmission media, thus making these services more accessible rapidly 
to a wider segment of the population. Accordingly, the Commission 
believes that the proposed designation of 300 MHz of spectrum would 
ensure consumers access to new and competitive services and 
technologies. Further, through written ex parte comments, several LMDS 
proponents highlighted some technical difficulties with using the 31 
GHz band, e.g., need for two antennas to deliver the desired service, 
effects on performance level, and increased system costs. The 
Commission requests that parties address its proposal to make the LMDS 
service a primary protected use in the 31.0-31.3 GHz band, the 
technical issues LMDS operators might encounter in using this band, and 
possible measures that may be used in overcoming such technical issues. 
The Commission also requests comment on how to assign this additional 
spectrum to LMDS entities. Should it be treated as a separate block and 
assigned independently of other LMDS spectrum? Or should it be combined 
with spectrum assigned in the associated Report and Order for LMDS 
operations and assigned as a single block? The Commission proposes to 
assign the 31 GHz spectrum and the 1000 MHz designated in the attached 
Report and Order as a single block.
    5. An additional issue concerns existing licensees operating in the 
31 GHz band, some of which are engaged in traffic signal 
communications, i.e., traffic light monitoring and control. Such 
existing usage appears to be relatively light and geographically 
concentrated. Overlaying LMDS operations in those areas where there are 
such uses raises the potential for interference problems which could 
degrade the utility of such systems and perhaps adversely affect LMDS 
operations. However, the Commission's current rules explicitly provide 
that authorized operations at 31 GHz are not afforded any rights or 
obligations with respect to interference with other licensed 
operations. Thus, any operations that an entity believes are critical 
in nature and should otherwise warrant interference protection should 
be operated in a frequency band where such necessary protection is 
provided for in our rules. One band where these types of operations are 
permitted is the 23 GHz band. However, because systems in the 23 GHz 
band receive interference protection, new systems are subject to the 
prior coordination requirements of Section 101.103(d). The Commission 
asks for comment on what effect these

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requirements will have on 31 GHz systems moving to the 23 GHz band. In 
addition, the Commission notes that mobile operations are permitted in 
the 31 GHz band but are not permitted in the 23 GHz band. There appear 
to be no existing mobile operations in the 31 GHz band; nevertheless, 
the Commission asks for comment on what effect, if any, this will have 
in moving current fixed operations to the 23 GHz band. Given that 
incumbents are only authorized to operate on a non-interference basis, 
should they be entitled to any recovery for reasonable relocation 
costs? If so, should any of the 28 GHz band applicants be required to 
contribute to the recovery of such reasonable costs?
    6. The Commission's proposal to make LMDS a protected service in 
this band presupposes that incumbent licensees continue to operate on a 
unprotected basis, in this instance, ``secondary'' to LMDS. In the 
event one of the unprotected operations interferes with, or receives 
interference from, an LMDS system, the unprotected licensees must take 
steps to remedy the problem, or accept the resulting interference if it 
is operating the affected receiver or transmitter. Although the 
incumbent licensees have assumed all the risks of receiving 
interference, given the nature of some of these operations, the 
Commission seeks comment on whether there are any methods by which 
incumbent 31 GHz operations could be accommodated without delaying, 
causing interference to, or limiting the usefulness of LMDS services in 
this band. In light of the proposed ``secondary'' nature of the non-
LMDS fixed services in this band, the Commission also seeks comment on 
whether it should accept any new applications, modifications, or 
renewal applications in the 31 GHz band.
    7. Consistent with its intent to allow the rapid deployment of 
LMDS, the Commission encourages cooperation among the LMDS providers 
and existing licensees in exploring any methods which would allow the 
services to coexist, but that would not impose any economic or 
technical burdens on the LMDS providers. For example, would the LMDS 
licensees have sufficient capacity to accommodate the existing 
licensees as customers of their services? Or are there existing 
mechanisms that will permit all of these services to share the entire 
band without imposing any economic burdens on LMDS? Or are there other 
options the Commission should consider? In commenting on this request, 
the Commission asks that any recommendation advocating sharing include 
the supporting technical analysis.
    8. Second, the FNPRM seeks comment on eligibility of LECs and cable 
operators to obtain LMDS licenses in the geographic areas they serve. 
Throughout this proceeding commenters have had opportunities to address 
whether open eligibility for LMDS licenses would be likely to impede or 
hasten competition. The current record of this proceeding, however, was 
developed prior to enactment of the Telecommunications Act of 1996 
(1996 Act). One of the key objectives of the 1996 Act is to expedite 
the introduction of competition to incumbent LECs and cable companies. 
In carrying out this statutory mandate, the Commission considers it 
important to obtain specific comment on how our policies towards LMDS 
eligibility would best promote the competitive objectives of the 1996 
Act.
    9. The proposed rules contemplate only a single LMDS licensee in 
each service area. Accordingly, in the same market, there will be no 
competition among multiple LMDS licensees, although some competition 
may develop among providers of similar services via alternative 
transmission technologies. It therefore is appropriate to consider 
measures to ensure that the unprecedented amount of spectrum assigned 
to each LMDS license will be used to enhance the competitive provision 
of services in these highly concentrated markets. The Commission seeks 
comment on whether it should temporarily restrict eligibility for 
incumbent LECs and cable companies that seek to obtain LMDS licenses in 
their geographic service areas.
    10. In the NPRM that initiated this proceeding, the Commission 
proposed to license two equal competitors in every LMDS service area 
and not to restrict the ability of specific types of telecommunications 
providers to obtain LMDS licenses. In the Third NPRM, the Commission 
proposed only a single LMDS license for each service area and sought 
additional comment on the eligibility issue regarding Commercial Mobile 
Radio Service (CMRS) providers, MMDS licensees, LEC and cable 
participation in LMDS.
    11. In determining whether it would be in the public interest to 
restrict LEC or cable eligibility to obtain a LMDS license within their 
respective service areas, the Commission considers whether LMDS will 
provide a unique and important new source of competition to incumbent 
cable and telephone companies. The record of this proceeding strongly 
supports the conclusion that LMDS is a potentially important source of 
competition to both LECs and cable operators. 28 GHz LMDS licenses will 
permit use of up to 1.3 GHz of spectrum by a single provider, and 
equipment is relatively close to marketability. While it is not 
possible to identify all potential uses of LMDS, licensees could use 
this unparalleled amount of spectrum to construct sophisticated 
networks that will incorporate aspects of many current 
telecommunications offerings. It also appears that LMDS is uniquely 
positioned to provide competitive telecommunications services and video 
program delivery because of its large potential for two-way broadband 
capabilities. In considering eligibility for LECs and cable operators 
within their geographic service areas one must weigh the potential for 
competition presented by open entry against the possibility that this 
spectrum may be used to forestall rather than promote competition. Open 
eligibility may delay or eliminate an opportunity to increase the 
number of competitors in the local exchange telephony and multichannel 
video programming markets. On the other hand, a bar on eligibility 
could prevent LECs and cable operators from using LMDS to compete 
against each other more effectively and rapidly or to provide new 
services not now offered by any firm. It also is possible that by 
restricting eligibility we prevent some potential providers from 
realizing efficiencies of scale and scope that could be realized if, 
for example, a LEC could use LMDS to expand the area it serves and to 
expand the range of services it offers. As a deregulatory principle, 
this Commission does not seek to interfere in or distort decisions 
based on sound business judgment by imposing unnecessary regulation. 
The Commission seeks comment on these issues.
    12. The Commission asks parties to comment with specificity on 
projected uses of LMDS spectrum, including the degree to which LMDS is 
uniquely suited to entry into the local exchange and multichannel video 
programming markets. Do LMDS licenses represent a unique and necessary 
resource for de-concentrating the market power of incumbent LECs and 
cable operators? If an LMDS license is such a resource, can it have a 
deconcentrating effect if it is held by an incumbent LEC or cable 
operator, given the range of services that can be provided using LMDS? 
For example, would a LEC's use of an LMDS license to provide video 
services reduce the market power of the incumbent cable operator? Are 
there other realistic means of entry into these markets? In addressing 
this point, the Commission

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asks parties to discuss other realistic means of entry in terms of (1) 
the availability of similar spectrum-based services; (2) technological 
factors; (3) economic cost; and (4) timing.
    13. The Commission also asks for comment on whether there are any 
inherent cost advantages possessed by incumbent LECs or cable operators 
in holding LMDS licenses to provide service within their geographic 
service areas. Are there any economies of scope, or other efficiencies, 
such as efficiencies in billing and marketing of the services? Are any 
of these efficiencies unique to LMDS or could a LEC or cable operator 
realize them using above 40 GHz band, MMDS, OVS or other wireless or 
wireline facilities? Are there cost advantages in use of LMDS spectrum 
outside the markets served by incumbents? Can these cost advantages be 
quantified?
    14. Are there any other advantages that incumbent LECs and cable 
operators have in providing LMDS service? For example, does their size, 
experience in that telecommunications market or financial status make 
incumbent LECs, or more specifically the RBOCs, uniquely positioned to 
be strong LMDS providers? If so, will limiting incumbent LEC and cable 
operators from bidding on LMDS licenses only in their current service 
areas discourage investment in LMDS or the development of LMDS 
technology? Excluding incumbent LECs and cable operators, are there a 
sufficient number of other providers with the necessary resources and 
expertise to construct and operate LMDS systems? Will incumbent 
eligibility restrictions have any negative effects on competition in 
the multichannel video programming and local exchange markets--for 
example by making it more difficult for incumbent LECs to compete with 
cable operators for the provision of video services?
    15. The Commission also asks for comment on whether an incumbent 
LEC or cable operator offering LMDS services within its respective 
geographic service area would be likely to offer it at a higher price 
than new entrants. Would this depend on whether the LMDS service 
offered by the incumbents is substitutable for the services they 
currently offer? Commenters are also asked to address whether it would 
be more cost-effective for incumbents to acquire LMDS spectrum to 
supplement their own existing services rather than to face immediate 
competition by allowing LMDS spectrum to be acquired by a potential 
competitor.
    16. Finally, the Commission seeks comment on how the auction 
process can be expected to influence the concerns prompting our 
consideration of incumbent eligibility. Will an auction ensure the 
highest and best use of the spectrum--even if an incumbent wins the 
license? Or, is there an economic incentive for an incumbent to bid 
successfully at auction and to warehouse the spectrum? Or divert it to 
less competitive uses? Does this economic incentive exist when the 
spectrum can be used for services other than those provided by the 
incumbent? In any case, would payment of a winning auction bid and the 
cost of compliance with the build-out rules proposed in the Second 
Further Notice of Proposed Rulemaking, 59 FR 7964 (February 17, 1994), 
prove a sufficient check against such warehousing?
    17. If the Commission determines that the benefits of open entry 
are outweighed by our desire to encourage alternative sources of 
competition, should it adopt any restrictions, and if so, how should 
they be structured? One option is to prohibit incumbent LECs and cable 
companies from bidding on or acquiring licenses, each within its 
geographic service area. Alternatively, the Commission could limit 
incumbent LECs and cable companies' use of the LMDS spectrum. For 
example, LEC participation in LMDS could be limited to the provision of 
no more than a certain percentage of non-video programming, and cable 
participation in LMDS could be limited to the provision of no more than 
a certain percentage of video services. The advantage to this approach 
is that it is narrower than a complete eligibility restriction, and it 
would allow incumbent providers to use the spectrum to provide 
competing services, as well as supplemental incumbent services. The 
disadvantage to this approach is that it may impair the deployment of 
LMDS as a market-driven flexible broadband service and is inconsistent 
with the Commission's flexible spectrum policy. The Commission seeks 
comment on these and any other alternatives.
    18. In order to adopt any restrictions on incumbent cable and LEC 
participation, the Commission needs to define ``incumbent'' since LATA 
lines and cable franchise areas are not coincident with BTA boundaries. 
One possibility would be to use the cellular/PCS cross-ownership rule, 
which implicates similar competitive concerns. Consistent with this 
rule, an incumbent LEC or cable operator would be considered ``in-
region'' if 20 percent or more of the population of a BTA is within a 
LEC's telephone service area or a cable company's franchised service 
area. The Commission asks for comment on this option and on any 
alternative. It also seeks comment on whether the same definition 
should be applied to both types of incumbents.
    19. The Commission also seeks comment on what should constitute an 
attributable interest in an incumbent LEC or cable operator. In the 
past, the Commission has used several different formulations of 
attribution in different contexts. For these purposes, the Commission 
proposes to consider a 10 percent or more interest, when factored 
through a multiplier, to be attributable. It also proposes to consider 
a 10 percent or more interest in an affiliate of an incumbent, when 
factored through a multiplier, to be considered attributable. This 
attribution level tracks Section 652 of the 1996 Act, 47 U.S.C. 
Sec. 572, and it has the same goals as does the Commission in this 
proceeding.
    20. In addition, if the eligibility of incumbent LECs and cable 
operators is limited, the Commission seeks comment on how these 
restrictions should be addressed in the context of the proposal in the 
Third NPRM to allow partitioning and disaggregation. It requests 
comment on whether competitive harm would result from a LMDS licensee 
disaggregating its license and assigning any excess spectrum to an 
incumbent LEC or cable operator within their geographic service areas. 
Similarly, comment is requested on whether any competitive harm would 
result from a LMDS licensee partitioning some of its service area to an 
incumbent LEC or MSO within their geographic service area.
    21. Finally, if the Commission were to propose any restrictions, to 
believes that such restrictions should continue only until there is 
increased competition in the video and telephony markets. In the cable 
context, Section 623(l) of the Communications Act sets forth a four 
pronged test for determining when a cable operator faces effective 
competition. The Commission seeks comment on whether this effective 
competition test is a reliable indicator of appropriate levels of 
multichannel video programming competition for these purposes. The 
Commission focuses especially on Section 623 L(1), which can be 
relatively easy to satisfy in rural areas. For LECs, there is no 
standard test for effective competition in the local exchange market. 
The ``Competitive Checklist,'' set forth in Section 271(c)(2)(B) of the 
1996 Act, is one part of the mechanism used to determine when the 
Regional Bell Operating Companies (RBOCs) may enter the in-region long 
distance market. Comment is requested on whether the Competitive 
Checklist or all the prerequisites for BOC in-region entry

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serves as a reliable indicator of appropriate levels of local exchange 
competition for determining when LECs should be allowed to hold LMDS 
licenses. In addition, since the ``Competitive Checklist'' does not 
apply to LECs which are not RBOCs, comment is requested on how it could 
be used with other LECs. The Commission also seeks comment on 
alternative sunset provision. For example, it could limit eligibility 
for such entities to a fixed period of time (such as, 3 or 5 years) 
with automatic sunset and optional renewal of these restrictions. 
Commenters are requested to provide information on the following 
questions: what alternative criteria should the Commission use to 
sunset these restrictions? Should the Commission consider the number of 
facilities-based competitors? Are there local competitors throughout 
the service area? If the Commission does not use the ``Competitive 
Checklist'', does the list suggest factors that the Commission should 
incorporate into any sunset criteria we may adopt?
    22. Because it plans to begin the LMDS licensing process this year, 
the Commission realizes that the imposition of any eligibility 
restrictions now, even if they sunset at some future point, may 
effectively preclude incumbent LECs and cable operators from 
participation in that initial licensing process. However, incumbents 
could offer LMDS services at a future date by acquiring all or part of 
the LMDS spectrum in a BTA in a post-auction transaction, if we adopt 
our competitive bidding rules proposed in the Third NPRM. The 
Commission requests comment on these issues.

Comment Dates

    23. Pursuant to applicable procedures set forth in Sections 1.415 
and 1.419 of the Commission's rules, 47 CFR Secs. 1.415 and 1.419, 
interested parties may file comments on or before August 12, 1996, and 
reply comments on or before August 22, 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 eight 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 FCC Reference Center of 
the Federal Communications Commission, Room 239, 1919 M Street, N.W., 
Washington, D.C. 20554.

Initial Regulatory Flexibility Analysis

    24. As required by Section 603 of the Regulatory Flexibility Act, 
the Commission has prepared an Initial Flexibility Analysis (IRFA) of 
the expected significant economic impact on small entities by the 
policies and rules proposed in this Fourth Notice of Proposed 
Rulemaking. Written public comments are requested on the IRFA. Comments 
must be identified as responses to the IRFA and must be filed by the 
deadlines for comments on the FNPRM provided in section (VI)(C).

I. Reason for Action

    25. This Fourth Notice of Proposed Rulemaking (FNPRM) requests 
comment on two issues: (1) whether the Commission should designate, on 
a primary protected basis, the 31.0-31.3 GHz (31 GHz) band to Local 
Multipoint Distribution Service (LMDS); and (2) whether the Commission 
should restrict eligibility of local exchange carriers (LEC) and cable 
operators to hold LMDS licenses in the geographic areas they serve.
    26. With regard to the first issue, the Commission determines that 
a further NPRM is necessary to accommodate a variety of LMDS system 
designs, services, and transmission media in the adjacent 28 GHz band. 
The additional spectrum would facilitate interactive systems, thus 
providing new and innovative communications services for residential 
and business users, including small businesses. Moreover, the 
additional spectrum potentially could benefit small businesses unable 
to participate in competitive bidding for licenses because additional 
spectrum not needed by a LMDS licensee could potentially be leased to 
smaller businesses. The 31 GHz band currently is licensed only on a 
secondary basis, and has few incumbents. Nevertheless, the Commission 
requests comment on whether there are any methods of accommodating 
these services.
    27. With regard to the second issue, the current record of this 
proceeding was developed prior to the enactment of the 
Telecommunications Act of 1996. One of the key objectives of the Act is 
to expedite the introduction of competition to incumbent LECs and cable 
companies. In carrying out this mandate, the Commission believes it 
important to obtain specific comment on how its policies towards LMDS 
eligibility would best promote the competitive objectives of the Act. 
In addition, the comments received after the close of the record in 
this proceeding, including comments from small entities such as WebCel, 
convince us that further comment is warranted.

II. Objectives

    28. The objective of this NPRM is to request public comment on the 
proposals made herein for the efficient licensing of LMDS services, for 
the development and implementation of a new technology to provide 
innovative telecommunications services to the public.

III. Legal Basis for Proposed Rules

    29. The authority for this action is the Administrative Procedure 
Act, 5 U.S.C. 553; and sections 4(i), 4(j), 301, 303(r) of the 
Communications Act of 1934 as amended, 47 U.S.C. 145, 301, and 303(r).

IV. Description and Estimate of Small Entities Subject to the Rules

    30. The regulations on which the Commission seeks comment, if 
adopted, would apply to any small entity seeking a LMDS license. In 
addition, the regulations would impact small entities who are incumbent 
licensees in the 31.0-31.3 GHz frequency band.
    31. The SBA definitions of small entity for LMDS are the 
definitions applicable to radiotelephone companies and to pay 
television services. The definition of radiotelephone companies 
provides that a small entity is a radiotelephone company employing 
fewer than 1,500 persons. The definition of a small pay television 
service is one which has annual receipts of less than $11 million. In 
the Final Regulatory Flexibility Analysis for the Report and Order, 
supra, we were unable to make a meaningful estimate based on the 1992 
Census Bureau data.
    32. Likewise, we believe that the entities who are incumbent 
licensees in the 31.0-31.3 GHz frequency band may also be comprised of 
a majority of small entities. Such licensees are public safety 
entities, the majority of whom are municipalities or other local 
governmental entities. The SBA data base does not include governmental 
entities. We are required to estimate the number of such entities with 
populations of less than 50,000 that would be affected by our new 
rules. There are 85,006 governmental entities in the nation. This 
number includes such entities as states, counties, cities, utility 
districts and school districts. There are no figures available on what 
portion of this number has populations of fewer than 50,000. However, 
this number includes 38,978 counties, cities and towns, and of those, 
37,566, or 96 percent, have populations of fewer than 50,000. The 
Census Bureau estimates

[[Page 39429]]

that this ratio is approximately accurate for all governmental 
entities. There are twenty-seven (27) incumbent licensees in the 31.0-
31.3 GHz band. Accordingly, we estimate that 96 percent, or 25 to 26 of 
these licensees, are small entities.
    33. We request comment on the description and the number of small 
entities that are significantly impacted by this proposed rule.

V. Reporting, Recordkeeping, and Other Compliance Requirements

    34. The proposals under consideration in this FNPRM would not 
involve any reporting or recordkeeping requirements.
    35. Incumbent licensees in the 31.0-31.3 GHz band would have new 
compliance requirements vis-a-vis LMDS licensees. Our rules provide 
that licensees therein operate on a non-interference basis, meaning 
that they have no rights to protection from interference, nor any 
obligations to not interfere with other similar incumbent operations. 
The Fourth NPRM proposes that LMDS be designated as a primary protected 
use of the band, ensuring that LMDS licensees would have interference 
protection from other authorized users of the band.

VI. Significant Alternatives Considered and Rejected

    36. The Commission considered and rejected the alternative of 
placing all LMDS spectrum in the 28 GHz band, rather than placing a 
portion of the available spectrum in the 31 GHz band. The Commission 
concluded that LMDS requires additional spectrum to successfully deploy 
the variety of services proposed. It also concluded that these proposed 
services could be successfully implemented with non-contiguous bands of 
spectrum, whereas the satellite services could not. To the extent LMDS 
entities are small businesses, as discussed in the Final Regulatory 
Flexibility Analysis, infra, such entities are affected by this 
decision. However, some small entities commenting on the final band 
plan concurred with this approach (e.g., CellularVision, RioVision).
    37. In addition, the Commission considered and rejected the 
alternative of proceeding with open eligibility in licensing, for the 
reasons stated herein. This action is responsive to the many small 
entities commenting in this proceeding who requested that restrictions 
be placed upon, or considered for, local exchange carriers and major 
cable companies, e.g., WebCel.

VII. Federal Rules That Overlap, Duplicate, or Conflict With These 
Proposed Rules

    38. None.

Ordering Clause

    39. Authority for issuance of this Fourth Notice of Proposed 
Rulemaking is contained in Sections 4(i), 303(r) and 309(j) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 
309(j).

List of Subjects in 47 CFR Part 21

    Communications Common Carriers, Federal Communications Commission, 
Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-19347 Filed 7-26-96; 8:45 am]
BILLING CODE 6712-01-P