[Federal Register Volume 62, Number 41 (Monday, March 3, 1997)]
[Rules and Regulations]
[Pages 9636-9673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5128]
[[Page 9635]]
_______________________________________________________________________
Part III
Federal Communications Commission
_______________________________________________________________________
47 CFR Part 1, et al.
The Wireless Communications Service; Final Rule
Federal Register / Vol. 62, No. 41 / Monday, March 3, 1997 / Rules
and Regulations
[[Page 9636]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 2, 27, and 97
[GN Docket No. 96-228; FCC 97-50]
The Wireless Communications Service (``WCS'')
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: On February 19, 1997, the Federal Communications Commission
(``Commission'') adopted a Report and Order establishing rules and
policies for a new Wireless Communications Service (``WCS'') in the
2305-2320 and 2345-2360 MHz bands. This action is being taken pursuant
to the Omnibus Consolidated Appropriations Act, 1997. The effect of
this action is to make thirty megahertz of spectrum available for the
provision of fixed, mobile, and radiolocation services, and satellite
Digital Audio Radio Services.
EFFECTIVE DATE: March 3, 1997.
FOR FURTHER INFORMATION CONTACT: Matthew Moses or Josh Roland, Wireless
Telecommunications Bureau, (202) 418-0660.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order in GN Docket No. 96-228. The complete Report and Order 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 Service, (202) 857-3800, 2100 M Street,
N.W., Washington, D.C. 20037. The complete Report and Order is also
available on the Commission's Internet home page (http://www.fcc.gov).
Summary of the Report and Order
1. In this Report and Order, the Commission fulfills the
Congressional mandate expressed in section 3001 of the Omnibus
Consolidated Appropriations Act for 1997, Public Law 104-208, 110 Stat.
3009 (1996) (``Appropriations Act''), to reallocate and assign the use
of the frequencies at 2305-2320 and 2345-2360 MHz. The Commission
considers the proposals set forth in the Notice of Proposed Rule Making
concerning amendment of the Commission's rules to establish the WCS.
See Amendment of the Commission's Rules To Establish Part 27, the
Wireless Communications Service, GN Docket No. 96-228, Notice of
Proposed Rule Making, FCC 96-441, 61 FR 59048 (November 20, 1996)
(``NPRM'').
A. Licensing Plan for WCS
i. Permitted Services
2. In the NPRM, the Commission concluded that the Appropriations
Act's reallocation directive means that the Commission may allocate the
2305-2320 and 2345-2360 MHz bands to any or all radio services
contained in the International Table of Frequency Allocations
applicable to the United States. The Commission proposed to allocate
this spectrum to the fixed, mobile, and radiolocation services on a
primary basis, which are all the services authorized on a primary basis
for these entire bands in the International Table. The Commission also
proposed to retain the current primary audio broadcasting-satellite
allocation that exists in 45 of the 50 MHz of these bands (2310-2320
and 2345-2360 MHz). The Commission did not propose to change the
Amateur Radio Service secondary allocation of the 2300-2310 MHz band,
nor the authorization for the 2310-2360 MHz band to be used on a
secondary basis by aeronautical telemetry operations.
3. The Commission noted that in its Satellite DARS NPRM it had
requested comment on whether it should delay issuing licenses for DARS
in the 2310-2320 MHz portion of the DARS allocated spectrum due to the
number and type of Canadian fixed service facilities in that band. See
Establishment of Rules and Policies for the Digital Audio Radio
Satellite Service in the 2310-2360 MHz Frequency Band, IB Docket No.
95-91, Notice of Proposed Rule Making, 11 FCC Rcd 1, 60 FR 35166 (July
6, 1996) (``Satellite DARS NPRM''). The Commission also noted that in
February 1996, it had informed DARS applicants that previously unknown
additional Canadian operations existed in the 2310-2360 MHz band that
particularly impacted potential use of the 2345-2360 MHz portion of the
band for DARS. Accordingly, the Commission requested comment on the
feasibility of satellite DARS in parts of the 2305-2320 and 2345-2360
MHz bands.
4. The Commission concludes that under the totality of
circumstances presented, the 2310-2320 and 2345-2360 MHz bands will be
allocated on a primary basis for fixed, mobile, radiolocation, and
broadcasting-satellite (sound) services without further designations.
The 2305-2310 MHz band will be allocated on a primary basis for fixed,
mobile except aeronautical mobile, and radiolocation services. WCS
licensees themselves will determine the specific services they will
provide within their assigned spectrum and geographic areas. The
services that can be provided, however, will be subject to specific
technical rules we adopt infra to prevent interference to other
services. The Commission emphasizes that with the current state of
technology there is a substantial risk that these rules will severely
limit, if not preclude, most mobile and mobile radiolocation uses.
Fixed uses will be less severely affected, but still will require
equipment that will meet technical standards higher than those used for
similar purposes on comparable bands, and therefore may be more costly.
5. The Commission believes that in this instance a flexible use
allocation serves the public interest. Permitting a broad range of
services to be provided on this spectrum will permit the development
and deployment of new telecommunications services and products to
consumers. Moreover, WCS licensees will not be constrained to a single
use of this spectrum and, therefore, may offer a mix of services and
technologies to their customers.
6. The Commission recognizes the concerns raised by commenters
about the general application of flexible allocations, and it is our
intent to address those concerns fully in future proceedings. In this
regard, the Commission emphasizes that its decision in this instance to
adopt a broadly defined service for this spectrum should not be
interpreted as a finding on the merits of flexibility as general
allocation policy or prejudging the merits of flexibility in any other
proceeding before us. Rather, the Commission's decision here is based
on the totality of the circumstances and facts particular to this
proceeding, not the least of which is the short time mandated by
Congress to bring this spectrum to auction. Importantly, in this
particular instance the record does not convincingly demonstrate how
this spectrum should be distributed among particular uses in a manner
that would provide maximum benefit to the public. Specific services
advocated by commenters span a wide range of potential uses, including
interactive, high-speed, broadband data services, such as wireless
Internet access; return links for interactive cable and broadcasting
service; mobile data; satellite DARS; fixed terrestrial use; new and
innovative services; radiolocation; educational applications; and
wireless local loop. While individual commenters advocate specific
allocations for one or more of these uses, the Commission has no clear
basis in the current record to prefer some uses
[[Page 9637]]
over others. Thus, limiting the use as some have suggested would risk
precluding potentially beneficial services.
7. The Commission finds that allocating this spectrum for fixed,
mobile, radiolocation, and audio broadcasting-satellite services is
consistent with the international agreements governing this spectrum,
the Appropriations Act, the Communications Act, and Commission
precedent. The Commission notes that the Appropriations Act
specifically directs the Commission to reallocate the WCS frequencies
to ``wireless services that are consistent with international
agreements concerning spectrum allocations.'' See Appropriations Act,
section 3001(a)(1). Nothing in this provision or its legislative
history restricts the Commission's authority to assign or allocate this
spectrum to more than one permissible use. Additionally, the
Commission's allocation to more than one service is consistent with the
Commission's obligations under the Communications Act. Section 303 of
the Communications Act does not restrict the Commission's discretion to
prescribe the nature of the service to be rendered over radio
frequencies or its authority to allocate frequencies to the various
classes of stations or assign spectrum to stations for more than one
permissible use. With respect to allocation decisions, the courts have
accorded ``substantial deference'' to Commission determinations.
8. Commission precedent also supports the permissibility of
allocating spectrum in a manner that allows for a broad range of uses.
The Commission noted in the NPRM that the Commission took this approach
in establishing GWCS in August of 1995, where it concluded that
authorizing a wide variety of services bounded only by international
allocations comported with its statutory authority and served the
public interest by fostering the provision of a mix of services.
Because GWCS licenses have yet to be auctioned, the evidence regarding
the benefits of having allocated that spectrum to all uses permitted by
the Commission's international obligations is inconclusive.
9. The Commission continues to believe that such broad allocations
are permitted under the Communications Act, and the Commission notes
that it also recently permitted CMRS licensees to provide fixed and
mobile services. See Amendment of the Commission's Rules to Permit
Flexible Service Offerings in the Commercial Mobile Radio Services, WT
Docket No. 96-6, First Report and Order, 11 FCC Rcd 8965, 61 FR 43721
(August 26, 1996). The action the Commission takes here is consistent
with this precedent. The Commission notes also that its service
designation decision is not so broad as to allow use of the WCS
frequencies for any purpose whatsoever. For example, the international
allocation for part of this spectrum is for audio broadcast satellite
services, and therefore satellite services will be limited to this type
of satellite services.
10. The Commission disagrees specifically with those commenters who
assert that allocating these frequencies for fixed, mobile,
radiolocation and audio broadcasting-satellite services is an
impermissible allocation by auction or otherwise inconsistent with
Section 309(j). The allocation decision the Commission makes in this
proceeding is based on the Commission's finding that under the
circumstances presented, including the statutory deadline and the lack
of a record that supports a specific allocation, this allocation to
fixed, mobile, radiolocation, and audio broadcasting-satellite services
comports with the public interest and with the Commission's statutory
authority. Thus, the Commission's decision to allocate this spectrum in
this manner is unrelated to its decision to award WCS licenses through
competitive bidding.
11. In addition, the Commission disagrees with those commenters'
arguments that by adopting its proposal the Commission is impermissibly
delegating its authority to allocate spectrum and set technical rules
to other parties. The allocation the Commission makes here is not
entirely open-ended, and auction winners will be subject to strict
technical rules that are necessary to prevent interference to other
services and which also will likely limit the actual services they may
be able to offer. As discussed infra, these technical rules are
necessary to prevent interference. Therefore, the Commission has not
delegated to private parties its responsibility to allocate spectrum
and adopt appropriate technical standards.
12. The Commission also agrees with commenters such as Lucent,
Motorola, Nortel and CTIA who argue that economies of scale in
equipment supply are important and recognize that our decision to adopt
a flexible allocation may make achieving those economies of scale more
difficult. However, the Commission has taken several steps that it
hopes will assist licensees in achieving economies of scale. For
example, the Commission has established relatively large geographic
service areas and spectrum block sizes. The Commission also is adopting
licensing and auction rules designed to facilitate geographic area and
spectrum aggregations that may foster economies of scale and, in
developing their bidding and aggregation strategies, bidders can
consider the benefits of such economies. The Commission believes that
the allocation and service rules adopted herein comply with all legal
requirements and, considering the totality of the circumstances, serve
the public interest.
13. The Commission does not believe that the public interest will
be served by prohibiting use of this spectrum for CMRS. It has been the
Commission's consistent policy to actively seek to increase competition
in telecommunications markets, and its decision here is consistent with
that policy. Indeed, in the Omnibus Budget Reconciliation Act of 1993,
Public Law 103-66, Congress ordered the transfer of a large amount of
government spectrum to the Commission's jurisdiction for
nongovernmental use. CMRS licensees have no reasonable basis to expect
that the Commission would limit the possibility of further entry by
withholding spectrum or by unnecessarily restricting the permissible
uses of newly allocated spectrum. However, the Commission notes that,
given the out-of-band emission limits it adopt for WCS, technology will
likely severely limit, if not preclude, most mobile services on this
spectrum, at least in the near term.
14. Some commenters express concern with difficulties in
controlling interference. The Commission is responding to this concern
by setting specific limits on field strength at the geographic
boundaries between licensees and on emissions outside the assigned
spectrum blocks. While the Commission recognizes that different system
designs have different sensitivities to interference and cause
different types and degrees of interference, the Commission believes
that these limits provide a reasonable degree of predictability as to
the magnitude of interfering signals one can expect from adjacent areas
and spectrum blocks. However, the Commission recognizes that these out-
of-band and out-of-area power limits do not by themselves ensure
interference-free operation. They control primary factors that
determine the amount of interference a licensee can expect from
neighboring areas and blocks, but there are many other factors that
affect interference that they do not control and that are not under the
receiver owner's direct control. For example, the level of interference
caused to a licensee's receivers from transmitters in an adjacent
spectrum block may also
[[Page 9638]]
depend on the number of such transmitters, their location relative to
the receivers, their antenna directivity and polarization, their duty
cycle, and other factors. Since these factors are not regulated by the
Commission, they create uncertainty about the amount of interference a
licensee may receive. Licensees can reduce this uncertainty by
coordinating with their neighbors, and the Commission encourages them
to do so. They also can reduce the risk of interference by properly
designing and engineering their receiving systems and by using
technologies that reduce their receivers' susceptibility to unwanted
signals. Also, bidders can reduce their exposure to interfering signals
from neighboring spectrum blocks or areas by aggregating adjoining
licenses in the auction or through post-auction transactions. But again
the Commission emphasizes that interference-free operation is not
assured by the Commission's limits. Each WCS licensee must ultimately
assume responsibility for protecting its own receiving system from
interference from transmitters in adjoining blocks and areas that meet
the Commission's limits, and applicants should understand this before
they bid for these licenses.
15. Finally, in the NPRM, the Commission proposed to permit
amateurs to continue to use the 2305-2310 MHz band on a secondary
basis. The Commission also proposed to permit continued flight test and
vehicle launch use of the 2310-2320 and 2345-2360 MHz bands on a
secondary basis. The Commission is adopting these proposals. The effect
of this action is that amateurs and aeronautical telemetry operations
will be able to continue to use these bands so long as these operations
do not interfere with WCS service. In addition, the Commission updates
and clarifies the frequency sharing requirements for amateur use of the
2300-2310 MHz and adjacent bands. The Commission also clarifies that
footnotes US276 and US339 permit the use of various frequencies for
telemetering and associated telecommand operations of launch vehicles
``on a co-equal basis by Government and non-Government stations.'' With
respect to Primosphere's request that all flight test operations be
precluded from the WCS bands, the Commission finds no basis for
precluding such operations on a secondary basis. The Commission makes
clear that if secondary flight test operations cause harmful
interference to WCS operations, they must immediately either correct
the problem or cease operations. If such operations prove to be a
problem, however, the Commission may re-evaluate this issue in the
future.
ii. Spectrum for Each License
16. In the NPRM, the Commission requested comment on the
appropriate amount of spectrum to be provided for each WCS license at
2.3 GHz. The Commission specifically requested comment on whether 5,
10, 15 or 30 MHz is the most suitable amount. The Commission noted that
5 MHz bandwidths would be sufficient for paging, radiolocation,
dispatch, or point-to-point backbone operations. The Commission also
observed that larger bandwidths, such as 10 to 15 MHz, would allow more
direct competition with existing fixed and mobile service providers and
may also better support some multi-channel satellite DARS. The
Commission also asked for comment on whether a single 30 MHz license
would offer the most effective approach for providing new two-way fixed
or point-to-multipoint uses, such as interconnection with the Internet
and other digital network services. Finally, the Commission requested
comment on what size spectrum block could best support, in part or
fully, the provision of fixed local loop services.
17. The Commission also sought comment on whether the WCS spectrum
should be assigned on a paired or unpaired basis. Alternatively, the
Commission requested comment on an approach where spectrum bandwidths
or pairing of the spectrum are determined through the competitive
bidding process. The Commission noted that the 30 MHz of spectrum could
be divided into 5 MHz blocks and the amount of spectrum and the
location of the spectrum (i.e., contiguous or paired) for each WCS
licensee could be determined through the auction process. The
Commission further invited commenting parties to suggest additional
alternatives for both the amount of spectrum and the size of service
areas for WCS licensees. The Commission noted that the Appropriations
Act requires that we conclude initial licensing of this spectrum and
the collection of all bidding proceeds no later than September 30,
1997. The Commission stated its belief that licensing the WCS spectrum
for service to large areas, with relatively few licenses to be awarded,
would speed the WCS licensing process and the collection of bidding
proceeds, consistent with the requirements of the Appropriations Act.
Whatever initial licensing approach is chosen for WCS, the Commission
proposed to permit spectrum and service area aggregation through the
auction process, e.g., the Commission would permit parties to bid for
more than one license in each geographic area and for multiple areas.
18. The Commission observes that the commenting parties generally
support either 5 MHz unpaired channel blocks or 10 MHz paired channel
blocks, with the vast majority finding that at least 10 MHz is needed
to provide certain WCS services in an efficient and competitive manner.
The Commission notes, however, that the potential uses of the WCS
spectrum will be greatly affected by the out-of-band emission limits,
discussed in Section III.D.7 infra, needed to protect satellite DARS
reception in the 2320-2345 MHz band. In particular, these limits will
have the greatest impact on the portion of the WCS spectrum immediately
adjacent to the satellite DARS band, namely, the WCS spectrum at 2315-
2320 MHz and 2345-2350 MHz. In order to account for this effect in
light of the overall record of this proceeding, and to minimize its
impact on WCS operations generally, the Commission finds that WCS
should be licensed initially as two 10 MHz channel blocks (with 5 MHz
of this spectrum from the lower band paired with 5 MHz from the upper
band) plus two 5 MHz blocks (those immediately adjacent to the
satellite DARS spectrum). The Commission believes that this
channelization will permit WCS licensees to offer a wide variety of
services. For example, the record suggests that the 10 MHz channel
blocks represent the minimum amount of spectrum needed to support
certain data and wireless local loop services, including wireless
Internet access. In addition, the Commission believes that providing
for 10 MHz of spectrum on a paired basis would allow for the
introduction of both one-way and two-way services and would facilitate
the implementation of a variety of technologies. In the spectrum
adjacent to the satellite DARS band, however, the Commission believes
that WCS mobile operations may be prohibitively expensive and
technologically infeasible for a substantial period of time. Also, the
narrow (i.e., 30 MHz) transmit and receive separation between the 2315-
2320 MHz and 2345-2350 MHz bands would substantially increase the cost
of equipment employing traditional frequency division duplex technology
if pairing of these blocks were required. By making this spectrum
available initially to WCS licensees as two 5 MHz unpaired channel
blocks, the spectrum may have increased utility for satellite DARS and
a variety of WCS fixed operations, especially those employing time
division duplex technology. Also,
[[Page 9639]]
the Commission will not preclude WCS licensees from pairing this
spectrum on their own initiative, whether through submission of winning
bids for each block at auction or through spectrum aggregation in the
aftermarket. Another advantage of this overall initial licensing
approach is that the offering of only four licenses in each service
area will allow the WCS auction to be completed within the timetable
contemplated by the Appropriations Act. In this respect, the Commission
believes that this licensing plan is superior to other options
suggested by the commenters that would involve greater licensing
complexity and probably greater delay. The initial channel blocks the
Commission has selected are shown in the Table below.
------------------------------------------------------------------------
Channel block Frequency range
------------------------------------------------------------------------
A................................. 2305-2310 and 2350-2355 MHz.
B................................. 2310-2315 and 2355-2360 MHz.
C................................. 2315-2320 MHz.
D................................. 2345-2350 MHz
------------------------------------------------------------------------
19. As discussed, infra, the Commission also is allowing for
spectrum aggregation and disaggregation, without restriction, so that
parties, for example, desiring to employ technology that requires
unpaired spectrum or asymmetrically paired spectrum can either
disaggregate the channels initially offered or purchase additional
needed amounts of spectrum in the after-market. In addition, applicants
may bid on all four channel blocks in a service area and, if
successful, render the type of services addressed by those commenters
supporting the licensing of WCS spectrum in a single 30 MHz block.
Thus, the initial offering of WCS spectrum in 5 MHz or 10 MHz blocks
does not preclude the offering of services which might require a
greater amount of spectrum. Further, the disaggregation flexibility
afforded licensees potentially allows provision of WCS services which
require less spectrum than contained in the initial blocks. In sum,
initially licensing the WCS spectrum according to the channel block
plan identified above and allowing for spectrum aggregation and
disaggregation will permit a wide variety of applicants to provide
services and satisfy the requirements of the Appropriations Act. The
Commission also believes that providing for four blocks, along with our
spectrum disaggregation rules, will promote the objectives of Section
309(j)(4)(C) of the Communications Act by providing for distribution of
licenses and services among geographic areas and providing greater
opportunity for a wide variety of applicants, including small
businesses and other designated entities, than would be possible under
a single 30 MHz block plan.
iii. Licensed Service Areas
20. In deciding on the appropriate service areas size for WCS
licenses, the Commission must balance several factors. The Commission
wishes to encourage the rapid deployment of new telecommunications
technologies and services on WCS spectrum; thus, the Commission must
assess the use or uses to which this spectrum is likely to be put and
determine the geographic scope that would best facilitate rapid
deployment thereof. In addition, the Commission believes that because
this spectrum has not heretofore been used to provide commercial
services and no equipment has yet been developed for use in this band,
consumers would benefit if the WCS band plan enables equipment
manufacturers to realize economies of scale that will translate to
lower equipment costs to service providers. The Commission also
recognizes that the Appropriations Act directed it to ``assign the use
of (WCS) frequencies by competitive bidding pursuant to section
309(j).'' Appropriations Act, section 3001(a)(2). Section 309(j) of the
Communications Act includes as objectives for competitive bidding the
avoidance of excessive concentration of licenses and the dissemination
of licenses among a wide variety of applicants. See 47 U.S.C.
309(j)(3)(B). In addition, the Commission is mindful of our statutory
obligation to conduct the auction for WCS licenses to ensure that all
proceeds are deposited by September 30, 1997, and of our experience in
previous auctions, which has shown that simultaneous, multiple round
auctions for a larger number of licenses are more complex and take
longer to complete than similar auctions involving fewer licenses.
Finally, the Commission notes that aggregation of both spectrum and
service areas through the auction process has proven to be an effective
method of allowing bidders to acquire the right amount of spectrum for
their business needs.
21. Balancing the various factors noted above, the Commission
concludes that WCS will be licensed in two ways. First, with respect to
the C and D blocks, WCS will be licensed on the basis of regional areas
similar to those used in our narrowband PCS rules. In WCS, however, the
Commission will define the regions by aggregating EAs in the
continental United States into 6 larger groupings. The Commission will
refer to these service areas as Regional Economic Area Groupings
(REAGs). In addition, consistent with the Commission's approach in
other services, the Commission will create separate REAGs covering the
five U.S. possessions, as follows: Guam and the Northern Mariana
Islands (REAG # 9), Puerto Rico and the U.S. Virgin Islands (REAG
# 10) and American Samoa (REAG # 11), as well as separate
service areas for Alaska (REAG # 7) and Hawaii (REAG # 8). As
discussed more fully infra, the Commission also will create a service
area in the Gulf of Mexico (REAG # 12). Second, the A and B blocks
will be licensed in smaller areas, by aggregating EAs into 46 areas (to
be called Major Economic Areas, or MEAs) in the continental United
States and an additional 6 areas covering Alaska (MEA # 47);
Hawaii (MEA # 48); Guam and the Northern Mariana Islands (MEA
# 49); Puerto Rico and the U.S. Virgin Islands (MEA # 50);
American Samoa (MEA # 51); and the Gulf of Mexico (MEA # 52).
The Commission believes that this licensing scheme satisfies the
various and often conflicting positions raised by the commenters and
will best accommodate our objectives under 309(j) of the Communications
Act.
22. Specifically, the larger WCS license areas that the Commission
will provide for in the C and D blocks will accommodate those
commenters who argue that large areas will (1) encourage the rapid
development and deployment of innovative service; (2) facilitate
interoperability and the setting of standards; (3) allow for economies
of scale that will encourage the development of low cost equipment; and
(4) facilitate provision of satellite DARS services. Many commenters in
this proceeding point out that WCS spectrum can be used effectively to
provide wireless local loop, broadband data services and DARS services.
At least with respect to these services, there may be significant
economic efficiencies that could be realized--to the ultimate benefit
of consumers--if these services were to be provided with nationwide
scope. Licensing the C and D blocks in WCS on a REAG basis may
facilitate aggregation of service areas and speed implementation of
these new services.
23. In addition, a number of commenters point out that ensuring
technical coordination and minimizing interference across geographic
areas is very difficult when the exact nature of the services to be
provided is unknown and the spectrum may be used to provide a variety
of service offerings. The larger service areas in the C and D
[[Page 9640]]
blocks will speed and simplify the process of interference coordination
along geographic boundaries, as well as minimize transaction costs and
disputes arising from interference, and facilitate implementation of
services that would require roaming capabilities and easy
interoperability. In addition, because equipment currently is not
available for use in this band, the larger service areas in the C and D
blocks also should enable manufacturers to achieve greater economies of
scale in production of equipment, thus reducing its per-unit cost and
allowing more rapid deployment of services to the ultimate benefit of
consumers.
24. While the Commission is mindful of the desire of some parties
to have large licenses, the Commission also agrees with commenters that
contend that smaller businesses will have more difficulty competing in
the WCS auction for licenses in the large regions. In this regard, the
Commission believes that the creation of smaller MEAs in the A and B
blocks (along with the large bidding credits provided for small
businesses, see infra), will provide greater opportunities for smaller
businesses to compete in an auction and participate in the provision of
WCS services. The Commission further notes that, consistent with views
of some commenters, these smaller service areas will: (1) Enable a
larger number of entities to participate in the provision of services
and result in increased competition; (2) encourage a more diverse group
of service providers due to the lower costs of participating in the
auction; and (3) result in broader flexibility in service offerings by
WCS licensees. The Commission also believes that these smaller service
areas will encourage efficiencies by making it easy for a bidder to
acquire licenses for only as much area as required for its prospective
service.
25. The Commission notes that some commenters support even smaller
BTAs and MSAs/RSAs to facilitate participation in the WCS service by
small businesses. The Commission finds that service areas based on such
smaller areas might compromise its ability to complete the WCS auction
within the statutorily mandated time frame. In any event, the
Commission notes that in addition to the large bidding credits offered
to small businesses, our provisions for partitioning and disaggregation
(see infra) should work to provide significant opportunities to smaller
businesses to participate in the provision of WCS services.
26. As noted above, two commenters, SOSCO and PetroCom, advocate
licensing the Gulf of Mexico as a separate service area to help meet
the growing communications needs of petroleum and natural gas providers
in the area. In light of those requests, the Commission designates a
separate REAG and MEA covering the Gulf of Mexico. The Commission
determines that land-based license regions abutting the Gulf of Mexico
will extend to the limit of the territorial waters of the United States
in the Gulf, which is the maritime zone that extends approximately
twelve nautical miles from the U.S. baseline. Beyond that line of
demarcation, the Commission will create the Gulf of Mexico REAG and
MEA, which will extend from that line outward to the broadest
geographic limits consistent with international agreements (see maps at
Appendices C and D of the Report and Order). The limits and
coordination of signal strengths at the boundaries of the service areas
meeting in the Gulf region will be the same as those that will apply
for all service areas.
27. Finally, the Commission notes that several commenters argue
that their suggested WCS licensed service area sizes will increase
auction revenues. The Commission wishes to make clear that, consistent
with section 309(j)(7)(A) of the Communications Act, the Commission has
considered the communications needs of potential service providers and
the American public in developing these service areas. The Commission
has not considered anticipated auction revenue.
B. Use of Competitive Bidding
28. The Commission will adopt rules providing for the assignment of
these frequencies through the use of competitive bidding pursuant to
section 309(j). As the Commission noted in the NPRM, the Appropriations
Act directs the Commission to assign licenses to use the 2305-2320 and
2345-2360 MHz bands through competitive bidding pursuant to Section
309(j) of the Communications Act. Section 309(j) provides that auctions
may be used to award licenses among mutually exclusive applicants where
the principal use of such spectrum will involve, or is reasonably
likely to involve, a subscription-based service. See 47 U.S.C.
309(j)(1), (2). The Commission continues to believe that it is
reasonable to conclude that the principal use of WCS spectrum will
involve, or is reasonably likely to involve, the transmission or
reception of communications signals to subscribers for compensation.
While the Commission has decided to permit WCS licensees to provide a
range of services, the uses of this spectrum most mentioned by
commenters appear to involve services that would be provided on a
subscription basis. Fixed (and radiolocation) services that could be
provided include services similar to the Multichannel Multipoint
Distribution Service (``MMDS''), the Location and Monitoring Service
(``LMS''), Digital Termination Systems (``DTS''), Digital Electronic
Messaging Service (``DEMS''), wireless local loop, and certain of the
services provided by Local Multipoint Distribution Service (``LMDS'').
Although it may be technologically infeasible to provide mobile
services as a WCS offering in the near future due to the necessity for
strict technical standards (see infra), services that may ultimately be
provided include those similar to PCS, cellular, Specialized Mobile
Radio (``SMR'') and paging. All of these services currently are
provided to subscribers for compensation and the Commission believes
that it is reasonable to expect that WCS offerings will be provided on
a similar basis. In this regard, even if a WCS licensee chooses to
offer a satellite DARS service on that portion of the spectrum
available for such use, the Commission believes it is likely that such
service also will be offered on a subscription basis.
29. The Commission's decision today also advances the objectives
contained in section 309(j) of the Communications Act. Section
309(j)(3)(A) directs the Commission to seek to promote the development
and rapid deployment of new technologies, products, and services for
the benefit of the public, including those residing in rural areas,
without administrative or judicial delays. In this regard, the
Commission believes that its service and licensing rules, in
conjunction with its allocation plan, will allow for and foster the
development of a range of new services and technologies. These policies
also will advance the objective, expressed in section 309(j)(3)(B), of
promoting economic opportunity and competition and ensuring that new
and innovative technologies are readily accessible to the American
people by avoiding excessive concentration of licenses and by
disseminating licenses among a wide variety of applicants, including
small businesses, rural telcos, and businesses owned by members of
minority groups and women.
30. The Appropriations Act states that in making these frequencies
available for competitive bidding, the Commission shall seek to promote
the most efficient use of the spectrum. See Appropriations Act, section
3001(b)(1). As the Commission stated in the NPRM, the Commission
believes that its competitive bidding rules will ensure
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that spectrum is made available to those who value it most highly and
therefore are most likely to put it to its most economically efficient
use. This outcome will be further assured by the Commission's use of a
simultaneous, multiple round auction that will allow applicants to
aggregate spectrum and service areas into parcels of efficient size and
to realize economies of scale and scope without the need for costly and
time consuming post-auction transactions. In addition, as indicated
above, the Commission has decided to permit the WCS licensee to provide
fixed, mobile, radiolocation or satellite DARS services. The Commission
believes there are significant competitive alternatives for each of
these types of services that will ensure that WCS licensees have
incentives to operate in an efficient and effective manner. The
Commission therefore believes that there will be sufficient market
incentives to promote the most efficient use of the 2305-2320 and 2345-
2360 MHz bands, as required by the Appropriations Act and section
309(j)(3)(D) of the Communications Act.
C. Consideration of Public Safety Needs
31. As the Commission discussed in the NPRM, the Appropriations Act
instructs it to take into account the needs of public safety radio
services in making the WCS spectrum available through competitive
bidding. Recognizing that the Appropriations Act marks the first time
that Congress has specifically directed the Commission to consider the
needs of public safety radio services in connection with licensing a
particular spectrum band, the Commission sought comment generally on
how it can best effectuate Congressional intent with regard to public
safety needs as related to this spectrum. In addition, the Commission
noted that in a post-enactment letter, the Chairman and Ranking Member
of the House Committee on Commerce suggest that the Commission,
consistent with its obligation to promote the public interest, pay
particular attention to how the needs of public safety as well as
commercial applicants may best be met in determining how to design this
auction. The Commission referred to the recommendations made by the
Public Safety Wireless Advisory Committee in its final report, and
asked interested parties how our WCS rules should be fashioned so as to
benefit the public safety community consistent with those
recommendations. Finally, the Commission invited commenters to address
a broad array of options, including making an allocation of some
portion of the WCS spectrum for public safety entities, assigning the
WCS spectrum with an obligation to contribute toward needs identified
by the public safety community, and taking steps to encourage the use
of WCS spectrum for services useful to public safety entities.
32. The Appropriations Act requires that the Commission take into
account the needs of public safety radio services. Therefore, the
Commission must consider the communications needs of the public safety
community in assigning WCS frequencies. The record compiled in this
proceeding and in the Commission's public safety proceeding
demonstrates that spectrum currently allocated to public safety
spectrum is inadequate to meet the public safety community's voice and
data needs. In addition, this record suggests that currently allocated
spectrum will not permit deployment by public safety agencies of needed
advanced data and video systems. The Appropriations Act requires,
however, that the use of 30 MHz of spectrum in the 2.3 GHz band be
assigned by competitive bidding pursuant to section 309(j) of the
Communications Act. The Commission therefore concludes that allocating
a portion of the 2.3 GHz spectrum for public safety appears to be
inconsistent with the Appropriations Act because, pursuant to the
Commission's auction authority, the Commission is not permitted to
assign spectrum to public safety applicants by competitive bidding.
33. In any case, even if spectrum were to be allocated for
assignment only to public safety entities, the Commission does not
believe that such an allocation would be the best way to meet those
needs. The Commission notes that the WCS spectrum was not identified in
the PSWAC Final Report as useful in meeting the public safety
community's spectrum requirements. In this regard, the Commission
believes that it is significant that APCO, the only public safety
entity to comment in this proceeding, noted in its recent ex parte
filing that facilitating possible public safety use of a small portion
of the 2.3 GHz band for non-mission critical operations will have
little or no impact on the spectrum needs identified by PSWAC. In
addition, the Commission believes that it is significant that public
safety entities do not currently have operations in any spectrum in or
near the 2.3 GHz band. Thus, it may be more difficult for public safety
entities to avail themselves of equipment economies of scale or to
integrate this spectrum into their current communications systems. In
addition, even if WCS spectrum were of some use to the public safety
community, costly networks would still need to be constructed in order
for useful services to be provided. In this regard, the Commission
finds it significant that, as noted above, several commenters (both
public safety entities and others) questioned whether a specific public
safety allocation at 2.3 GHz would significantly assist public safety
entities given the technical configuration and the financial resources
that a 2.3 GHz system would require.
34. The record in this proceeding also demonstrates that public
safety agencies require additional funding to enable them to migrate to
new spectrum and to upgrade and purchase new equipment. In addition,
the Commission notes that the PSWAC Final Report found, the radio
systems used by the Public Safety community are laboring under
increasing burdens. Equipment is old and funding for new equipment is
often scarce. The PSWAC Final Report also found that funding for
acquisition of new spectrum-efficient technologies and/or relocation to
different frequency bands is likely to be a major impediment to
improving Public Safety wireless systems. The PSWAC Final Report
includes recommendations regarding the future operational requirements
of public safety agencies, methods for achieving greater
interoperability among agencies, the technologies that are and will be
available to meet public safety requirements, and the amount of radio
spectrum that will be necessary to meet these requirements. Many of
these requirements can be met by the Commission's allocation of
additional spectrum to public safety agencies, and the report examined
alternative approaches for obtaining funding to assist public agencies
in an orderly migration to new spectrum allocations and advanced
technologies.
35. The Commission believes that, in order for the future needs of
public safety wireless communications to be satisfied, new sources of
funding will have to be devised. This is true regardless of the amount
of spectrum made available for public safety. In this proceeding, the
Commission has considered whether funds from the WCS auction could
provide a source of funding for public safety agencies. The Commission
notes, however, that section 309(j)(8)(A) requires that ``all proceeds
from the use of a competitive bidding system under this subsection
shall be deposited in the Treasury * * * .'' 47 U.S.C. 309(j)(8)(A).
The only exceptions to this general rule are contained in sections
309(j)(8)(B) (providing for retention of revenues as
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an offsetting collection for developing and implementing the auction
program) and 309(j)(8)(C) (providing for deposit of upfront payments in
an interest-bearing account, with interest transferred to the
Telecommunications Development Fund). Therefore, it appears that
legislative action is required before auction revenues can be used to
provide a source of funding for public safety agencies to acquire new
communications technologies. It is the Commission's belief that public
safety agencies would benefit greatly from such action. The Commission
notes that legislation recently introduced by Senator John McCain would
provide for a portion of the revenues raised from an auction of
spectrum currently used by television broadcast stations operating on
channels 60-69 to be earmarked for ``funding State and local law
enforcement and public safety agencies' mission-related radio
communications capabilities.'' See S. 255, The Law Enforcement and
Public Safety Telecommunications Empowerment Act, as introduced in the
United States Senate on February 4, 1997, section 5(b)(1). The
Commission believes that legislative approaches such as that taken in
the McCain bill would substantially aid public safety agencies in their
communications needs and thereby improve the safety of all Americans.
36. Though the Commission has concluded that designating 2.3 GHz
spectrum for use exclusively by public safety entities is not
advisable, the Commission emphasizes its continuing commitment to
address public safety needs. Specifically, the Commission is
considering the operational, technical and spectrum requirements of the
public safety community in our Public Safety proceeding. See The
Development of Operational, Technical, and Spectrum Requirements for
Meeting Federal, State and Local Public Safety Agency Communication
Requirements Through the Year 2010, WT Docket No. 96-86, Notice of
Proposed Rule Making, 11 FCC Rcd 12460, 61 FR 25185 (May 20, 1996).
That proceeding examines what spectrum bands could be useful for
meeting existing and future communications requirements, including
voice, data (such as transmission of fingerprints, building floor plans
and medical data), and video for surveillance monitoring. The
Commission expects that additional spectrum will be made available for
public safety use as a result of that proceeding, and that its decision
in that proceeding will address the specific communications
requirements and bands identified by PSWAC. In addition, the Commission
notes that several commenters, including APCO and Motorola, reiterated
the public safety community's need for 24 MHz of spectrum at UHF
channels 60-69. The Commission believes that their proposal has merit
and plan to give it serious consideration in our Digital Television
proceeding. See Advanced Television Systems and Their Impact Upon the
Existing Television Broadcast Service, MM Docket No. 87-268, Sixth
Further Notice of Proposed Rule Making, 11 FCC Rcd 10968, 61 FR 43209
(August 21, 1996). The Commission notes that legislation recently
introduced by Senator McCain would direct the Commission to allocate 24
MHz of the channel 60-69 spectrum to public safety use, See S. 255, The
Law Enforcement and Public Safety Telecommunications Empowerment Act,
as introduced in the United States Senate on February 4, 1997, section
4(a), and that the Administration's 1998 budget also supports such a
reallocation. See Testimony of Larry Irving, Assistant Secretary for
Communications and Information, U.S. Department of Commerce, before the
Subcommittee on Telecommunications, Trade and Consumer Protection of
the U.S. House of Representatives Committee on Commerce, February 12,
1997, at 24; see also Statement by Attorney General Janet Reno on
Proposal to Set Aside Communications Frequencies for Public Safety Use,
released February 6, 1997.
37. The Commission declines to adopt special provisions to benefit
petroleum and natural gas providers, railway operators and operators of
water supply systems. Though the Commission recognizes that these
entities perform valuable public service functions, the Commission does
not believe that Congress intended that they be included in the class
of ``public safety radio services'' that the Appropriations Act directs
the Commission to take into account in this proceeding. The
Commission's Rules define that term to include ``Local Government,
Police, Fire, Highway Maintenance and Forestry-Conservation Radio
Services.'' 47 CFR 90.15. The Commission declines to deviate from this
established definition.
D. Service and Technical Rules
i. Eligibility
38. The Commission concludes that, with the exception of the
foreign ownership restrictions set forth in section 310 of the
Communications Act, see 47 U.S.C. 310, there will be no eligibility
restrictions on participation in WCS. As the Commission stated in the
NPRM, opening the WCS market to a wide range of applicants will permit
and encourage entrepreneurial efforts to develop new technologies and
services. The Commission also believes that, given the relatively large
amount of spectrum that is available to provide services similar to
those that can be operated on the WCS spectrum, providing open
eligibility in this instance will not lead to excessive concentration
of market power. The Commission agrees with CPI that Section 27.302
should ensure that WCS licensees are subject to all of the foreign
ownership restrictions set forth in Section 310 of the Communications
Act to the extent the restrictions are applicable to the particular
service in question. Thus, for example, common carrier services would
be subject to the restrictions in section 310(b). See 47 U.S.C. 310.
ii. CMRS Spectrum Cap
39. The decisional factor in whether to apply the CMRS spectrum cap
to any particular service is a balancing of the potential benefits and
costs. The Commission believes that, in these unique circumstances
where the Commission is allocating spectrum and licensing a wholly new
service pursuant to congressional directive, the potential benefits do
not outweigh the potential costs. Thus the Commission will not count
holdings of WCS spectrum at 2.3 GHz against the CMRS spectrum cap.
40. As the Commission noted in the NPRM, the CMRS spectrum cap was
imposed out of concern that ``excessive aggregation [of spectrum] by
any one of several CMRS licensees could reduce competition by
precluding entry by other service providers and might thus confer
excessive market power on incumbents.'' Implementation of sections 3(n)
and 332 of the Communications Act, GN Docket No. 93-252, Third Report
and Order, 9 FCC Rcd 7988, 8101, 59 FR 59945 (November 21, 1994)
(``CMRS Third Report and Order''). The spectrum cap is intended to
promote a vigorous competitive market for the provision of commercial
mobile radio services, and to ensure that each mobile service provider
(i.e., cellular, PCS or SMR licensee) has the opportunity to obtain
sufficient spectrum to compete effectively and that no single provider
is able to preclude the provision of service by effective competitors
or significantly reduce the number of competitors by aggregating
spectrum.
41. As discussed more fully in Section III.D.7, infra, because the
spectrum allocated for satellite DARS is situated between the two WCS
bands, limitations
[[Page 9643]]
on out-of-band emissions by equipment operating on WCS spectrum are
needed to protect against interference with sensitive satellite DARS
reception. The Commission believes that the out-of-band emission limits
we are adopting likely will, at least in the near term, make mobile
operations in the WCS spectrum technologically infeasible. Hence, there
is little likelihood that allowing an incumbent CMRS licensee to
acquire enough WCS spectrum that its total CMRS and WCS spectrum
holdings exceed the 45 MHz cap would have anticompetitive consequences
for mobile services. Application of the CMRS spectrum cap to WCS
spectrum is not necessary to guard against excessive concentration in
the CMRS market or the accumulation of undue market power.
42. Conversely, even if it is technically feasible to use this
spectrum for CMRS-type service, applying the cap and excluding many
existing CMRS providers from acquiring WCS licenses would, the
Commission believes, carry significant potential costs for consumers.
With their existing base station infrastructures, CMRS licensees may be
the most efficient users of WCS spectrum because economies of scope may
be large in the provision of new services combined with the provision
of conventional mobile voice CMRS. For example, it may be that a
current CMRS licensee would be able to use its existing infrastructure
to provide fixed services in the most cost efficient manner. Site
acquisition and zoning approval for new facilities is both a major cost
component and a major delay factor in deploying wireless systems.
Facilities at existing cellular or PCS sites might accommodate
additional equipment for new services or be modified to do so at a
significantly lower cost than deploying a whole new cell infrastructure
for the new service in a crowded environment. There may be other
economies of scope in the provision of different services as well.
Applying the CMRS spectrum cap to the WCS spectrum would interfere with
the realization of these savings by preventing the direct participation
by those entities who own the existing CMRS infrastructure, and
consequently, prevent consumers from benefiting from these savings,
with little off-setting benefit in competition.
43. The Commission recognizes that not applying the cap to WCS
spectrum may result in some CMRS licensees acquiring spectrum and,
provided that the technical obstacles noted infra can be overcome, that
at some point these licensees may use WCS spectrum to compete against
other CMRS licensees that have not acquired WCS spectrum. The
Commission does not believe, however, that such a circumstance
substantially risks impairing competition in the CMRS marketplace. When
30 MHz PCS systems are fully deployed with the minimum number of cells
needed for competitive coverage, they will provide a large increase in
capacity over what is currently available. As for the argument that
regulatory parity compels application of the CMRS spectrum cap to WCS
spectrum, the Commission disagrees. Whether or not the cap is applied,
all CMRS providers stand on equal footing with respect to the
acquisition of WCS licenses, and any entity using WCS spectrum to
provide CMRS services will be regulated in the same manner as all other
CMRS providers.
iii. Disaggregation and Partitioning
44. Consistent with the weight of the comments and with the
Commission's recent decision to adopt the approach proposed in WT
Docket No. 96-148 for broadband PCS, See Geographic Partitioning and
Spectrum Disaggregation by Commercial Mobile Radio Services Licensees;
Implementation of Section 257 of the Communications Act--Elimination of
Market Entry Barriers, WT Docket No. 96-148, Report and Order and
Further Notice of Proposed Rule Making, FCC 96-474, 62 FR 696 (January
6, 1997) (``Partitioning and Disaggregation R&O''), the Commission
adopts its proposals for geographic partitioning and spectrum
disaggregation. We will permit WCS licensees to partition their service
areas into smaller geographic service areas and to disaggregate their
spectrum into smaller blocks. We also conclude that the specific rules
pertaining to partitioning and disaggregation in WT Docket No. 96-148
shall apply to WCS licensees. In addition, for the purposes of
partitioning and disaggregation, we will require that WCS systems be
designed so as not to exceed a signal level of 47 dBuV/m at the
licensee's service area boundary, unless the affected adjacent service
area licensees have agreed to a different signal level.
45. In WT Docket No. 96-148, the Commission decided to permit
geographic partitioning by broadband PCS licensees along any service
area defined by the partitioner and partitionee. See Partitioning and
Disaggregation R&O. In addition, the Commission decided to permit
spectrum disaggregation by broadband PCS licensees without restriction
on the amount of spectrum to be disaggregated. The Commission concluded
that allowing parties to decide without restriction the amount of
spectrum to be disaggregated will encourage more efficient use of the
spectrum and permit the deployment of a broader mix of service
offerings, both of which will lead to a more competitive wireless
marketplace. Id. We believe that this reasoning applies with equal
force to WCS. Therefore, subject to the provisions discussed below with
respect to licensees who take advantage of bidding credits, once an
initial WCS license is granted, licensees will be free to partition
their service areas and disaggregate their spectrum. Finally,
consistent with PCS and other CMRS services, WCS licensees will be
allowed to use management and operational arrangements to permit others
to use portions of their spectrum and geographic service areas. The
Commission wishes to emphasize that the WCS licensee must retain
ultimate control over and responsibility for all operations under such
arrangements.
46. The Commission concludes that any licensee will be permitted to
partition its service area as long as it submits sufficient information
to the Commission to maintain our licensing records. Partitioning
applicants will be required to submit, as separate attachments to the
partial assignment application, a description of the partitioned
service area and a calculation of the population of the partitioned
service area and licensed market. The partitioned service area must be
defined by coordinate points at every 3 degrees along the partitioned
service area agreed to by both parties, unless either (1) an FCC-
recognized service area is utilized (i.e., Major Trading Area, Basic
Trading Area, Metropolitan Service Area, Rural Service or Economic
Area) or (2) county lines are followed. These geographical coordinates
must be specified in degrees, minutes and seconds to the nearest second
of latitude and longitude, and must be based upon the 1927 North
American Datum (NAD27). Applicants also may supply geographical
coordinates based on 1983 North American Datum (NAD83) in addition to
those required based on NAD27. This coordinate data should be supplied
as an attachment to the partial assignment application, and maps need
not be supplied. In cases where an FCC-recognized service area or
county lines are being utilized, applicants need only list the specific
area(s) (through use of FCC designations) or counties that make up the
newly partitioned area.
47. Similarly, where WCS licensees seek to disaggregate their WCS
spectrum, the Commission will not
[[Page 9644]]
require the disaggregating party to retain a minimum amount of
spectrum. The Commission will allow disaggregating parties to negotiate
channelization plans among themselves as part of their disaggregation
agreements, and the Commission will continue to require that such plans
provide the necessary out-of-band emission protections to third party
licensees as required by our rules. The Commission is not adopting a
limit on the maximum amount of spectrum that licensees may
disaggregate. The Commission finds no evidence at this time that a
maximum limitation for disaggregation is necessary. WCS licensees shall
be permitted to disaggregate spectrum without limitation on the overall
size of the disaggregation as long as such disaggregation is otherwise
consistent with our rules.
48. The Commission declines to adopt RTG's proposal to provide
rural telcos with a right of first refusal. Section 254 of the
Telecommunications Act of 1996, Pub. L. 104-104, section 101, 110 Stat.
56 (1996), states that, in seeking to promote its goal of universal
service, the Commission should ensure that consumers from all parts of
the Nation, including rural areas, have access to telecommunications
and information services that is comparable to service in other, more
urban areas and at rates that are comparable to the rates available in
urban areas. Granting rural telcos a right of first refusal would be at
odds with the Commission's goals of ensuring that the largest number of
entities participate in the WCS marketplace and eliminating barriers to
entry for small businesses. As the Commission concluded in WT Docket
No. 96-148, the Commission also believes that a right of first refusal
would be difficult to administer and could discourage partitioning.
Partitioning and Disaggregation R&O. For example, an area proposed for
partitioning to a non-rural telco may intersect with an area for which
a rural telco has a right of first refusal. A further problem would be
uncertainty as to whether the rural telco's right of first refusal
would continue after the auction winner partitioned the license area to
another party. Additionally, a partitioning agreement may be part of a
larger assignment transaction. If a rural telco were able to exercise a
right of first refusal with respect to a partitioned area, it may not
be possible to separate out the partitioning agreement to stand on its
own and the entire assignment transaction could not be consummated.
49. If a WCS licensee that received a bidding credit partitions a
portion of its license to an entity that would not meet the eligibility
standards for a similar bidding credit, the Commission will require
that the licensee reimburse the government for the amount of the
bidding credit calculated on a proportional basis based upon the ratio
of population of the partitioned area to the overall population of the
licensed area. See 47 CFR 1.2110(f) and 24.717(c)(1). If a licensee
that received a bidding credit partitions to an entity that would
qualify for a lesser bidding credit, the Commission will require that
the licensee reimburse the government for the difference between the
amount of the bidding credit obtained by the licensee and the bidding
credit for which the partitionee is eligible, calculated on a
proportional basis based upon the ratio of population of the
partitioned area. See 47 CFR 1.2110(f) and 24.717(c)(2). Similar
provisions shall apply where a WCS licensee that receives a bidding
credit seeks to disaggregate a portion of its spectrum to an entity
that would not have qualified for such a bidding credit. All such
unjust enrichment payments will be calculated based upon the ratio of
the amount of spectrum disaggregated to the amount of spectrum retained
by the original licensee. With respect to disaggregation from one
licensee that qualified for a bidding credit to another licensee that
would also qualify for a bidding credit, the Commission will adopt an
approach similar to that adopted for partitioning.
50. Finally, to allow WCS licensees flexibility to design the types
of agreements they desire, the Commission will follow its decision in
WT Docket No. 96-148 to permit combined partitioning and
disaggregation. For example, a party may obtain a license for a single
county with only 5 MHz of WCS block A spectrum. By allowing such
combined partitioning and disaggregation, we believe that the goals of
providing competitive service offerings, encouraging new market
entrants, and ensuring quality service to the public will be advanced.
The Commission further concludes that in the event that there is a
conflict in the application of the partitioning and disaggregation
rules, the partitioning rules should prevail. For the purpose of
applying the Commission's unjust enrichment provisions relating to
bidding credits, when a combined partitioning and disaggregation is
proposed, the Commission will use a combination of both population of
the partitioned area and amount of spectrum disaggregated to make these
pro rata calculations. For example, if a WCS licensee that availed
itself of a bidding credit and a non-qualifying partitionee/
disaggregatee were to agree on a 20 percent disaggregation of spectrum
over 30 percent of the population of the licensed service area, an
unjust enrichment payment of 6 percent (.20 x .30) of the bidding
credit would be required.
51. The Commission also notes that these geographic partitioning
and spectrum disaggregation rules, while not a substitute for licensing
directly from the Commission, nevertheless will help to eliminate
market entry barriers, consistent with section 257 of the
Communications Act, by providing smaller, less capital-intensive areas
and spectrum blocks which are more accessible by small business
entities. See 47 U.S.C. 257.
iv. License Term
52. The WCS license term will be 10 years, with a renewal
expectancy similar to that afforded PCS and cellular licensees. The
Commission believes that this relatively long license term, combined
with a renewal expectancy, will help to provide a stable regulatory
environment that will be attractive to investors and, thereby,
encourage development of this new frequency band. In the event that a
WCS license is partitioned or disaggregated, any partitionee/
disaggregatee will be authorized to hold its license for the remainder
of the partitioner's/disaggregator's original ten-year license term,
and the partitionee/disaggregatee will be required to submit the
showings required at the five-year mark and with its renewal
application. The Commission believes that this approach, which is
similar to the partitioning provisions we recently adopted for the MDS
and for current broadband PCS licensees is appropriate because a
licensee, through partitioning, should not be able to confer greater
rights than it was awarded under the terms of its license grant.
53. The Commission will require that a WCS licensee's renewal
application include at a minimum the following showing to claim a
renewal expectancy: (1) A description of current service in terms of
geographic coverage and population served or links installed; (2) an
explanation of the licensee's record of expansion, including a
timetable for the construction of new base sites or links to meet
changes in demand for service; (3) a description of the licensee's
investments in its system; and (4) copies of any FCC orders finding the
licensee to have violated the Communications Act or any FCC rule or
policy, and a list of any pending proceedings that relate to any matter
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described by the requirements for the renewal expectancy.
v. Performance Requirements
54. The Commission has concluded that, considering the unique
circumstances in which WCS licenses are being awarded and the strict
technical requirements necessary to prevent interference, it will adopt
very flexible construction (or ``build-out'') requirements for WCS.
Specifically, the Commission will require licensees to provide
``substantial service'' to their service area within 10 years. Although
WCS licensees will have incentives to construct facilities to meet the
service demands in their licensed service area, the Commission believes
that minimum construction requirements can promote efficient use of the
spectrum, encourage the provision of service to rural, remote and
insular areas and prevent the warehousing of spectrum.
55. The build-out requirement that the Commission adopts today is
the most liberal construction requirement adopted by the Commission to
date. The Commission believes that this liberal build-out requirement
is appropriate in the case of WCS for a number of reasons. First, the
Commission is providing WCS licensees with the flexibility to offer a
range of services using the WCS spectrum. Given the broad range of new
and innovative services that the comments lead the Commission to
believe might be provided over WCS spectrum, imposing strict
construction requirements that would apply over the license term would
be neither practical nor desirable as a means of meeting Section
309(j)'s objectives regarding warehousing and rapid deployment. Without
knowing the specific type of service or services to be provided, it
would be difficult to devise specific construction benchmarks. Further,
given the undeveloped nature of equipment for use in this band and the
technical requirements the Commission is adopting to prevent
interference, the Commission is concerned that strict construction
requirements might have the effect of discouraging participation in the
provision of services over the WCS spectrum. It may be that a potential
licensee could efficiently conduct certain operations on WCS spectrum,
but must await further technological developments to do so affordably.
Adopting strict construction requirements here could effectively
preclude efficient uses of the spectrum. Particularly in light of the
technological uncertainties associated with use of WCS spectrum to
provide certain services consistent with the interference levels the
Commission adopts today, the Commission believes that stringent build-
out requirements are not warranted.
56. At the ten year period, the Commission will require all
licensees to submit an acceptable showing to the Commission
demonstrating that they are providing substantial service. Licensees
failing to demonstrate that they are providing substantial service will
be subject to forfeiture of their licenses. The Commission notes that
in the past it has defined substantial service as ``service which is
sound, favorable, and substantially above a level of mediocre service
which just might minimally warrant renewal.'' See, e.g., 47 CFR
22.940(a)(1)(i). For WCS, however, the Commission believes that further
elaboration on this standard in the form of examples of what might
constitute substantial service is useful. Thus, for a WCS licensee that
chooses to offer fixed, point-to-point services, the construction of
four permanent links per one million people in its licensed service
area at the ten-year renewal mark would constitute substantial service.
In the alternative, for a WCS licensee that chooses to offer mobile
services, a demonstration of coverage to 20 percent of the population
of its licensed service area at the ten-year mark would constitute
substantial service. In addition, the Commission may consider such
factors as whether the licensee is offering a specialized or
technologically sophisticated service that does not require a high
level of coverage to be of benefit to customers, and whether the
licensee's operations serve niche markets or focus on serving
populations outside of areas served by other licensees. These safe-
harbor examples are intended to provide WCS licensees a degree of
certainty as to how to comply with the substantial service requirement
by the end of the initial license term. This requirement can be met in
other ways, and the Commission will review licensees' showing on a
case-by-case basis.
57. The Commission believes that these build-out provisions fulfill
its obligations under section 309(j)(4)(B). The Commission also
believes that the auction and service rules which it is adopting for
WCS, together with its overall competition and universal service
policies, constitute effective safeguards and performance requirements
for WCS licensing. Because a license will be assigned in the first
instance through competitive bidding, it will be assigned efficiently
to a firm that has shown by its willingness to pay market value its
willingness to put the license to its best use. The Commission also
believes that service to rural areas will be promoted by its decision
to allow partitioning and disaggregation of WCS spectrum.
58. Finally, the Commission reserves the right to review this
liberal construction requirements in the future if we receive
complaints related to section 309(j)(4)(B), or if the Commission's own
monitoring initiatives or investigations indicate that a reassessment
is warranted. The Commission also reserves the right to impose
additional, more stringent construction requirements on WCS licenses in
the future in the event of actual anticompetitive or rural service
problems and if more stringent construction requirements can
effectively ameliorate those problems.
vi. Regulatory Status
59. The Commission concludes that it will rely on each WCS
applicant to identify in its long-form application the type of WCS
service or services it will provide. Although the Commission will not
presume at the outset that a WCS applicant will provide CMRS service,
the Commission continues to believe, as it stated in the NPRM, that
this approach will allow the Commission to carry out its
responsibilities while imposing the least regulatory burden on the
licensee. The Commission also delegates to the Wireless
Telecommunications Bureau and to the International Bureau authority to
develop forms appropriate to collect this data, and to monitor changes
in licensee status. The predominant uses of WCS spectrum mentioned by
commenters involved personal communications such as broadband voice and
data transmission, including wireless local loop and wireless Internet
access. If WCS spectrum is used for satellite DARS services, those
services will be governed by the satellite DARS regulations currently
under development in IB Docket No. 95-91.
60. The Commission's decision to permit WCS licensees to provide a
variety or combination of services requires that the Commission adopt a
licensing framework that authorizes WCS licensees to provide non-common
carrier services as well as common carrier services. The Commission has
recently increased the flexibility of licensees in other wireless
services to provide both common carrier and non-common carrier
services. In adopting a new application form for MDS, for example, the
Commission provided applicants with the option on the new form to
indicate their choice for common carrier or non-common carrier
regulatory status. Amendment of Parts 21 and 74 of the Commission's
Rules
[[Page 9646]]
with Regard to Filing Procedures in the Multipoint Distribution Service
and in the Instructional Television Fixed Service, MM Docket No. 94-
131, and Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, PP Docket No. 93-253, Report and Order, 10 FCC Rcd
9589, 9619, 60 FR 36524 (July 17, 1995) (``MDS and ITFS Competitive
Bidding Report and Order''). For satellite services, the Commission has
decided to provide all U.S.-licensed fixed satellite service systems
with a choice between offering common carrier and non-common carrier
services and also the opportunity to elect their regulatory
classification in their applications. Amendment to the Commission's
Regulatory Policies Governing Domestic Fixed Satellites and Separate
International Systems, IB Docket No. 95-41, Notice of Proposed Rule
Making, 10 FCC Rcd 7789, 7795-7796, 60 FR 24817 (May 10, 1995); Report
and Order, 11 FCC Rcd 2429, 2436, 61 FR 9946 (March 12, 1996) (``DISCO
I Report and Order''). In another proceeding, the Commission has
adopted streamlined rules in part 25 for satellite services to use a
simplified procedure to change licenses from non-common carrier status
to common carrier status. Streamlining the Commission's Rules and
Regulations for Satellite Application and Licensing Procedures, IB
Docket No. 95-117, Notice of Proposed Rule Making, 10 FCC Rcd 10624, 60
FR 46252 (September 6, 1995); Report and Order, FCC 96-425, 62 FR 5924
(February 10, 1997) (``Satellite Rules Report and Order''). Finally,
when the Commission implemented DBS systems under interim rules it
adopted a policy to permit the dual provision of common and non-common
carrier services which continues under the permanent rules. The
flexible licensing framework the Commission adopts for WCS is
consistent with the treatment accorded these services.
61. The Commission therefore will allow the service offering
selected by a WCS licensee to determine its regulatory status. If a
service offering falls within the statutory definition of common
carrier, see 47 U.S.C. 153, the licensee will be subject to Title II
and the licensing requirements of Title III of the Communications Act
and the Commission's Rules. Otherwise, services provided on a non-
common carriage basis will be subject to Title III and certain other
statutory and regulatory requirements, depending on the specific
characteristics of the service. The Telecommunications Act of 1996
provides that a telecommunications carrier will ``be treated as a
common carrier under this Act only to the extent that it is engaged in
providing telecommunications services.'' 47 U.S.C. 153(44). A
telecommunications service is the ``offering of telecommunications for
a fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the
facilities used.'' 47 U.S.C. 153(46). Telecommunications means ``the
transmission, between or among points specified by the user, of
information of the user's choosing, without change in the form or
content of the information as sent and received.'' 47 U.S.C. 153(43).
The Commission adopted these definitions in new part 51, which provides
the rules governing interconnection of such carriers. Implementation of
the Local Competition Provisions in the Telecommunications Act of
1996--CC Docket No. 96-98, Interconnection between Local Exchange
Carriers and Commercial Mobile Radio Service Providers, CC Docket No.
95-185, First Report and Order, 11 FCC Rcd 15499, 61 FR 45476 (August
29, 1996), adopting new Rule 51.5. The U.S. Court of Appeals for the
Eighth Circuit has stayed the pricing rules in the Order, pending
review on the merits. See Iowa Utilities Board v. FCC, No. 96-3321 (8th
Cir., Oct. 15, 1996). Thus, to the extent a WCS licensee is providing a
service that fits within these definitions, that licensee will be
subject to Title II and governed by the common carrier requirements
pertinent to its services. Those requirements are set out in Part 1 and
other parts of the Commission's Rules. In addition, the regulatory
treatment of WCS licensees who choose to offer fixed or mobile
telecommunications services will be addressed by the Commission in WT
Docket No. 96-6. See Amendment of the Commission's Rules to Permit
Flexible Service Offerings in the Commercial Mobile Radio Services, WT
Docket No. 96-6, First Report and Order, 11 FCC Rcd 8965, 61 FR 43721
(August 26, 1996).
62. Apart from this designation of regulatory status, the
Commission will not require WCS applicants to describe the services
they seek to provide. It is sufficient that an applicant indicate its
choice for regulatory status in a streamlined application process. In
providing guidance on this issue to MDS applicants, for example, the
Commission pointed out that an election to provide service on a common
carrier basis requires that the elements of common carriage be present;
otherwise, the applicant must choose non-common carrier status. Of
course, if an applicant is unsure of the nature of its services and
their classification as common carrier services, it may submit a
petition with its application or at any time request clarification and
include service descriptions for that purpose.
63. The Commission also declines to require an applicant to choose
between either common carrier or non-common carrier status in providing
services in instances where it proposes to provide services that
include elements of both common carrier and non-common carrier
services. Instead, the Commission will permit both common carrier and
non-common carrier services in a single license. An applicant may
request both common carrier and non-common carrier status in the same
application, which will result in the issuance of both authorizations
in a single license. The licensee will be able to provide all WCS
services anywhere within its licensed area at any time. This approach
achieves efficiencies in the licensing and administrative process. The
Commission notes that it has allowed certain mobile services in part 24
and part 90 to be authorized in a single license on both a common
carrier and private carrier basis in order to provide services in both
categories of service. Implementation of Sections 3(n) and 332 of the
Communications Act: Regulatory Treatment of Mobile Services, GN Docket
No. 93-252, Second Report and Order, 9 FCC Rcd 1411, 1459, 59 FR 18493
(April 19, 1994); 47 CFR Sec. 20.9(b).
vii. Out-of-Band Emission Limits
64. In the NPRM, the Commission stated that, because WCS will
operate in the 2305-2320 and 2345-2360 MHz bands, interference
protection is required for the following adjacent operations: (1)
Satellite DARS at 2320-2345 MHz, (2) Government Deep Space Network
receivers at 2290-2300 MHz, and (3) Government and commercial telemetry
above 2360 MHz.
65. In order to provide protection to these adjacent operations,
the Commission proposed that all emissions outside of the WCS bands of
operation be attenuated below the maximum spectral power density (p)
within the band of operation, as follows:
(1) For fixed operations, including radiolocation: By a factor
not less than 43 + 10 log (p) decibels (``dB'') on all frequencies
between 2300 and 2305 MHz and above 2360 MHz; and not less than 70 +
10 log (p) dB on all frequencies below 2300 MHz and between 2320-
2345 MHz band.
(2) For mobile operations, including radiolocation: By a factor
not less than 43 +
[[Page 9647]]
10 log (p) dB on all frequencies between 2300 and 2305 MHz, between
2320 and 2345 MHz, and above 2360 MHz; and not less than 70 + 10 log
(p) dB on all frequencies below 2300 MHz.
(3) For WCS satellite DARS operations: The limits set forth in
Sec. 25.202(f) of the Commission's rules. See 47 CFR 25.202(f).
For fixed and mobile operations, including radiolocation, the
Commission stated that the above requirements are based on peak power
measurements (watts) using a resolution bandwidth of at least 1 MHz. In
addition, to further protect operations in adjacent bands, the
Commission proposed to require that the frequency stability of
transmission within the 2305-2320 and 2345-2360 MHz bands be sufficient
to ensure that the fundamental emissions remain within the authorized
frequency bands.
66. Finally, in order to protect Government Deep Space Network
receivers at 2290-2300 MHz, the Commission proposed to prohibit use of
the 2305-2310 MHz band for airborne or space-to-Earth links. Further,
the Commission proposed that WCS operations within 50 kilometers (31
miles) of 35 deg.20' North Latitude and 116 deg.53' West Longitude
(coordinates of the Deep Space Network receive site) be subject to
coordination. Alternatively, we requested comment on whether it would
be more appropriate to require less out-of-band attenuation in the case
of mobile transmitters (i.e., such transmitters would be subject to
only the 43 + 10 log (p) dB requirement) but require that the
coordination zone be extended to 120 kilometers (75 miles). The
Commission specifically requested that parties address the trade-offs
with regard to lower mobile equipment costs and the additional
coordination constraints imposed by this alternative.
67. Based on the record before it, the Commission finds that the
WCS out-of-band limits proposed in the NPRM would be insufficient to
protect certain sensitive operations on adjacent frequencies. While it
is the Commission desire to provide WCS licensees with the maximum
flexibility to provide a wide range of services, the Commission also
must ensure that WCS operations do not cause harmful interference or
disruption to adjacent satellite DARS reception or the operations of
the Arecibo Observatory. With regard to satellite DARS reception in the
2320-2345 MHz band, the Commission concurs with those commenting
parties that suggest that additional attenuation of WCS out-of-band
emissions is needed to protect such operations. The Commission is
therefore modifying its original proposal and will require that all
emissions from WCS fixed transmitters be attenuated below the
transmitter power (p) by at least 80 + 10 log (p) dB and that all
emissions from WCS mobile transmitters be attenuated at least 110 + 10
log (p) dB within the 2320-2345 MHz band. In complying with these
requirements, WCS equipment that uses circular polarization will be
permitted to assume an allowance of 10 dB where such WCS equipment
operates with opposite sense circular polarization from that used by
DARS operators in the 2320-2345 MHz band.
68. In addition, the Commission clarifies that (p) is the output
power of the transmitter, in watts. The Commission further clarifies
that out-of-band emissions in any 1 MHz bandwidth must be attenuated by
X + 10 log (p) dB below the output power of the transmitter, where X is
the attenuation required for a one watt transmitter. In addition, the
Commission believes that requiring the out-of-band emissions
measurement to be made by setting the measurement instrument resolution
bandwidth to 1 MHz would unfairly penalize WCS equipment due to the
difficulty of eliminating energy outside of the 1 MHz resolution
bandwidth. Therefore, for out-of-band emissions measurements the
Commission believes it is appropriate to permit use of a measurement
instrument resolution bandwidth of less than the reference bandwidth of
1 MHz, provided that the energy is integrated over a 1 MHz bandwidth.
69. The Commission believes that these changes will provide
significantly improved interference protection to DARS from WCS
operations. The Commission is aware that these out-of-band emission
limits may have significant cost or service implications for WCS,
especially for operations on the channels immediately adjacent to the
2320-2345 MHz band. In particular, the Commission understands that
there is a substantial risk that the out-of-band emission limits it is
adopting will, at least in the foreseeable future, make mobile
operations in the WCS spectrum technologically infeasible. Nonetheless,
the Commission finds that this level of attenuation is required in
order to adequately protect satellite DARS reception from WCS
transmissions. The Commission believes that WCS transmitters can meet
these limits through a variety of measures, including the use of linear
amplifiers, filters distributed throughout the transmitter, and
spectrum shaping signal processing. In this regard, the Commission
encourages potential WCS bidders and WCS equipment manufacturers to
consult with one another prior to the commencement of the auction to
determine what services and equipment can be economically provided on
these frequencies. The Commission believes that the limits it is
adopting will allow both WCS and DARS to successfully operate. The
Commission also encourages and will allow WCS and DARS licensees to
coordinate their operations to provide for greater or lesser protection
on a mutually agreed basis. The Commission expects WCS and DARS
licensees to cooperate fully to minimize the possibility of harmful
interference from one service to the other.
70. With regard to satellite DARS operations in WCS spectrum and
the Arecibo Observatory, the Commission finds Cornell's comments
persuasive. Accordingly, satellite DARS operations will be limited to a
maximum power flux density of -197 dBW/m \2\/4 kHz in the 2370-2390 MHz
band at Arecibo, Puerto Rico. The adoption of a power flux density
limit has the advantages of being readily measurable and of not needing
to be adjusted if spectrum outside the 2320-2345 MHz band is employed
for satellite DARS operations. Thus, the Commission does not believe
that Cornell's alternative out-of-band emission limit is necessary.
Instead, since the location of the satellite will be known, it is a
relatively simple matter for a satellite DARS licensee to meet this
requirement.
71. With regard to fixed and mobile operations, the Commission is
adopting Cornell's proposed out-of-band emission limit of 70 + 10 log
(p) dB for all frequencies above 2370 MHz. The Commission also believes
that this out-of-band emission limit will help to protect aeronautical
telemetry and associated telecommand operations in the 2360-2390 MHz
band and the launch vehicle frequencies at 2370.5 and 2382.5 MHz.
72. In order to protect the Deep Space receiver site located on
Fort Irwin at Goldstone, California, the Commission is prohibiting use
of the 2305-2310 MHz band for airborne or space-to-Earth links.
Additionally, in the 2305-2320 MHz band, the Commission is requiring
that all WCS equipment meet an out-of-band emission limit of 70 + 10
log (p) on all frequencies below 2300 MHz. Finally, all WCS operations
within 50 kilometers of 35 deg.20' North Latitude and 116 deg.53' West
Longitude must be coordinated with the National Telecommunications and
Information Administration (``NTIA'').
73. In summary, the revised WCS out-of-band emission limits require
that all emissions outside of WCS Blocks A, B,
[[Page 9648]]
C and D (``the licensed bands of operation'') be attenuated below the
output power (p) of each transmitter, measured in watts, as follows:
(1) For fixed operations, including radiolocation: By a factor
not less than 80 + 10 log (p) dB on all frequencies between 2320 and
2345 MHz.
For mobile operations, including radiolocation: By a factor not
less than 110 + 10 log (p) dB on all frequencies between 2320 and
2345 MHz.
For fixed and mobile operations, including radiolocation: By a
factor not less than 70 + 10 log (p) dB on all frequencies below
2300 MHz and on all frequencies above 2370 MHz; and not less than 43
+ 10 log (p) dB on all frequencies between 2300 and 2320 MHz and on
all frequencies between 2345 and 2370 MHz that are outside the
licensed bands of operation. In addition, WCS operations within 50
kilometers of Goldstone, California must be coordinated with NTIA.
(2) For WCS satellite DARS operations: The limits set forth in
Section 25.202(f) of the Commission's Rules apply, except that
satellite DARS operations are limited to a maximum power flux
density of -197 dB(W/m2/4 kHz) in the 2370-2390 MHz band at
Arecibo, Puerto Rico.
74. In addition, the Commission believes it desirable to permit WCS
and satellite DARS licensees to voluntarily negotiate different limits
if they so choose. For example, a WCS licensee could negotiate an
agreement with a satellite DARS licensee that would permit the former
greater out-of-band emissions in exchange for monetary compensation, or
vice versa. If WCS and satellite DARS licensees negotiate different
limits, then the Commission will require that the parties to the
agreement maintain this information as part of their station files and
disclose it to prospective assignees or transferees.
75. The Commission also agrees with the commenting parties that
some in-band technical limits are needed between adjacent WCS channel
block operations in order to facilitate spectrum sharing. Accordingly,
the Commission is adopting an in-band emission limit that will require
WCS licensees to attenuate their signals by at least 43 + 10 log (p) at
the edge of their block, except between commonly held channel blocks
(which require no attenuation). The Commission notes that an
attenuation of 43 dB is commonly employed in other services and that it
has been found there to adequately prevent adjacent channel
interference. See 47 CFR 22.359(iii), 22.917(e), and 24.238.
Furthermore, the Commission believes that the adoption of a minimum
adjacent block attenuation value of 43 dB--coupled with the median
field strength of 47 dBuV/m at any location on the border of a WCS
service area--is the least intrusive regulation possible that will
minimize harmful interference.
viii. International Coordination
76. In the NPRM the Commission stated that until international
agreements are completed WCS operations will be required to protect
existing non-U.S. operations in the 2305-2320 and 2345-2360 MHz bands
and WCS operations in the border areas would be subject to coordination
with those countries, as appropriate. In addition, the Commission noted
that satellite DARS operations on WCS spectrum would be subject to
international satellite coordination procedures. The Commission stated
that parties should be aware that international coordination could be a
complex and lengthy process and could vary significantly depending upon
the types of WCS services that are to be provided. The Commission
stressed therefore that international coordination requirements should
be taken into account in developing business plans for the provision of
WCS and that international coordination would be particularly important
for parties contemplating the provision of WCS in border areas or the
provision of satellite DARS operations.
77. The Commission reiterates that international coordination will
be required for WCS operations near the United States' borders and,
depending on the service and its interference potential, may also be
required for non-border areas. This coordination requirement
particularly may affect the implementation of satellite DARS operations
in the 25 MHz of WCS spectrum being allocated to DARS on a co-primary
basis with other services. Potential satellite DARS applicants should
consult the February 16, 1996 letter from the FCC Satellite Engineering
Branch to representatives of the current four satellite DARS applicants
and responses thereto that address coordination in these bands for
satellite DARS. These documents are filed in IB Docket No. 95-91, GN
Docket 90-357, RM No. 8610, PP-24, PP-86, and PP-87. Use of the WCS
spectrum for DARS services will be governed by the rules and
regulations that will apply to the exclusive DARS spectrum between
2320-2345 MHz. These rules are expected to be adopted shortly in a
Report and Order to be issued in IB Docket No. 95-91. See Establishment
of Rules and Policies for the Digital Audio Radio Satellite Service in
the 2310-2360 MHz Frequency Band, IB Docket No. 95-91, GEN Docket No.
90-357, Notice of Proposed Rule Making, 11 FCC Rcd 1, 60 FR 35166 (July
6, 1995).
ix. RF Safety
78. With regard to RF safety requirements, the Commission proposed
in the NPRM to treat WCS services and devices, operating within the
2305-2320 MHz and 2345-2360 MHz bands, in a comparable manner to other
services and devices that have similar operating characteristics. The
Commission noted that Secs. 1.1307(b), 2.1091 and 2.1093 of our Rules
list the services and devices for which an environmental evaluation
must routinely be performed. See 47 CFR 1.1301, 1.1307(b), 2.1091, and
2.1093. The RF radiation exposure limits are set forth in 47 CFR
1.1310, 2.1091, and 2.1093, as applicable. Accordingly, the Commission
proposed that an environmental evaluation for RF exposure would be
required for the following WCS operations: (1) Transmitting terrestrial
stations in the satellite DARS service, e.g., ``gap fillers''; (2)
fixed operations, including base stations and radiolocation, that have
an effective radiated power (``ERP'') greater than 2000 watts; and (3)
mobile and portable devices. The Commission invited comment on this
proposal and requested suggestions for alternatives that would ensure
public health with respect to exposure to RF radiation.
79. In the NPRM, the Commission proposed not to limit the output
power of any WCS transmitter, but to require that WCS transmitters
comply with our RF exposure limits. The Commission recognizes
Omnipoint's concerns; however, the Commission notes that it recently
adopted new, more stringent exposure limits in ET Docket No. 93-62
which apply to all frequencies between 300 kHz and 100 GHz. See
Guidelines for Evaluating the Environmental Effects of Radiofrequency
Radiation, ET Docket No. 93-62, Report and Order, 11 FCC Rcd 15123, 61
FR 41006 (August 7, 1996). See also First Memorandum Opinion and Order,
ET Docket No. 93-62, 11 FCC Rcd 17512, 62 FR 3232 (January 22, 1997).
When adopting these new exposure limits, the Commission considered
recommendations from, inter alia, the Environmental Protection Agency,
the Food and Drug Administration, and other federal health and safety
agencies. Although Omnipoint has raised questions about the power
threshold below which WCS facilities would be excluded from routinely
determining compliance with the new exposure limits, the Commission has
not received information in this proceeding indicating that the new
exposure limits would not adequately protect public health at WCS
operating frequencies.
[[Page 9649]]
Because all fixed, mobile, and portable transmitters are required to
comply with our RF safety rules, as more specifically discussed below,
the Commission believes that this decision will satisfactorily protect
public health and should allay Omnipoint's concerns.
80. Specific to this proceeding, the Commission is requiring
applicants desiring to use the following types of transmitters to
perform routine environmental evaluations: (1) Transmitting terrestrial
stations in the satellite DARS service and fixed operations, including
base stations and radiolocation transmitters, when the ERP is greater
than 1000 watts; (2) all portable devices; and (3) mobile devices, if
the EIRP of the station, in its normal configuration, will be 1.5 watts
or greater. The Commission has chosen the 1000 W ERP threshold, instead
of the proposed 2000 watts, because of the flexibility in this service
with respect to use, power, location, and other factors, and we believe
that this power limit is appropriate for most exposure situations. This
approach is consistent with the Commission's existing rules for
transmitters and devices of comparable use and similar operating
frequencies. The Commission will be providing guidance on acceptable
methods of evaluating compliance with the Commission's exposure limits
in OET Bulletin 65.
x. WCS Interference to MDS/ITFS
81. The Multipoint Distribution Service (``MDS'') and the
Instructional Television Fixed Service (``ITFS'') operate in the 2150-
2162 and 2500-2690 MHz bands. See 47 CFR part 21, subpart K and part
74, subpart I. After the comment period for this proceeding had closed,
several parties filed ex parte statements expressing their concern that
WCS transmissions would interfere with MDS/ITFS receiving
installations. Specifically, BellSouth states that the receiver/
downconverter (``downconverter'') located at each MDS/ITFS customer's
home is an inexpensive broadband device that receives all frequencies
between 2.1 GHz and 2.7 GHz. Thus, BellSouth states that a MDS/ITFS
downconverter located sufficiently close to a WCS transmitter would
directly receive WCS signals that would prevent clear reception of MDS/
ITFS signals. Specifically, BellSouth calculates that a WCS transmitter
that radiates more than 80 watts EIRP and that is located within 300
feet (91.44 meters) of a MDS/ITFS downconverter would overload the
downconverter and thus prevent the reception of MDS/ITFS programming
and information services. In order to counteract this problem,
BellSouth requests that the Commission limit WCS radiated power to 20
watts EIRP, unless the WCS licensee obtains an interference consent
agreement from the existing MDS and ITFS licensees. BellSouth states
that its proposed limit on WCS power would limit the maximum input to
MDS/ITFS receivers to 12 decibels below one milliwatt (or -12 dBm),
thus providing protection against receiver overload.
82. The Wireless Cable Association asserts that there currently are
one million analog MDS/ITFS installations and that interference from
WCS operations could cost $125,000,000 or more to cure. The National
ITFS Association notes that the Commission has a long standing policy
of protecting existing operations from interference caused by newly
authorized services and requests that the Commission address this issue
in a manner that would allow existing ITFS licensees to use the
frequencies licensed to them as intended by the Commission.
83. At this time the Commission will not impose any technical
restrictions on WCS licensees aimed at protecting the MDS/ITFS
services. The Commission understands the concerns expressed by the MDS/
ITFS licensees, and appreciates the value of the educational,
entertainment and other programming provided by these services,
including competition in the MVPD market. As it has repeatedly stated,
it is the Commission's desire that these services continue to flourish.
However, based on the record before us, the Commission is not persuaded
that the operation of WCS facilities would irreparably harm the MDS and
ITFS services. Without a clear sense of what particular services WCS
licensees will provide, and how soon these will be operational, the
interference impact of WCS operations on MDS/ITFS is unclear. Therefore
the Commission believes it would be premature at this time to consider
specific interference protection for MDS/ITFS. The Commission also
observes that the record on this issue is incomplete in that concerns
of the MDS/ITFS community were first raised in late filed ex parte
comments and thus no potential WCS applicants have had an opportunity
to respond to those comments. The Commission also notes that
traditional, analog MDS/ITFS downconverters have employed an
inexpensive design that has minimal frequency selectivity. Thus, even
though MDS/ITFS is licensed in the 2150-2162 MHz and 2500-2690 MHz
bands only, their downconverters receive all signals throughout the
entire 2.1-2.7 GHz band. The Commission is aware that the MDS/ITFS
industry is converting to newer, more robustly designed downconverters
that have vastly improved frequency selectivity and would not receive
WCS signals. Also, the digital downconverters to which the MDS/ITFS
industry is expected to convert over the next several years are
expected to be better designed and not subject to overloading from WCS
signals. The Commission applauds these developments and does not wish
to impede them. The public is served through the efficient use of
available spectrum which, in turn, is facilitated by the use of
receiving technology designed to provide protection from other spectrum
users in the market. Thus, to the extent that the Commission may in the
future, based on actual WCS operations, find it necessary to adopt an
interference rule for WCS, it would protect only those MDS/ITFS
downconverters installed within a year from the adoption date of this
Report and Order. After that time, the Commission would expect that
only more spectrally efficient downconverters would be installed by
MDS/ITFS licensees. In sum, the Commission concludes that it would be
improvident to adopt a requirement for WCS licensees to protect MDS/
ITFS operations unless and until it has a more precise understanding
about the nature and extent of problems that may actually arise.
xi. Field Strength Between Service Areas
84. In order for licensees to share spectrum along a common border,
each licensee must decrease its signal level at the border so that,
while it can provide acceptable communications within its licensed
service area, its signal level across the border is sufficiently
reduced to avoid causing interference to the neighboring system. In
broadband PCS, the Commission adopted a predicted or measured median
field strength of 47 dBV/m at any location on the border of
the PCS service area unless the parties agree to a higher field
strength. In drafting the proposed rules in the NPRM, we had to assume
one of the service area options that were proposed in text. We assumed
a nationwide license and thus did not specifically address the issue of
median field strength between initial service areas. Nevertheless, we
did specifically propose requiring a maximum median field strength of
47 dBV/m between those service areas which would be formed
through geographic partitioning. The Commission shall adopt this same
47 dBV/m maximum median field strength requirement between all
service
[[Page 9650]]
areas, unless the parties agree to a different field strength.
xii. Additional Technical Issues
85. In addition, Sun Microsystems requests that a minimum data rate
of 5 bits per hertz be required for the WCS bands. Sun Microsystems
argues that setting the minimum data rate at this high level would
stimulate new technologies. Sun Microsystems proposes that analog
transmission on the WCS spectrum be prohibited. Sun Microsystems states
that each service offering should be tiered in order to allow the
largest possible number of people to afford its benefits. Sun
Microsystems requests that high gain directional antenna systems (with
beamwidths no greater than 2 deg. to 3 deg.) be required for high power
use and that any omnidirectional antenna be required to use low power
and 18 to 25 dB gain antennas. Finally, Sun Microsystems suggests that
orthogonal coding and modulation schemes be permitted in order to allow
more than one licensee to use the same spectrum simultaneously. No
party commented on Sun Microsystems' proposals.
86. The Commission believes that the licensees will have a strong
incentive to put the spectrum to its best use. There is nothing in the
record of this proceeding that suggests that prohibiting certain
technologies or requiring specific technologies is appropriate for the
WCS. Accordingly, the Commission declines to adopt the technical
regulations proposed by Sun Microsystems.
E. Auction Procedures
87. In the NPRM, the Commission proposed an auction design and pre-
auction procedures for the WCS service in accordance with the
Appropriations Act and the expedited schedule which it imposes.
Specifically, the Commission proposed to award the WCS licenses through
competitive bidding and by means of a simultaneous multiple round
electronic auction. The Commission based this proposal on the need to
auction the WCS licenses quickly and to promote the efficient use of
the spectrum. As the Commission noted, the Appropriations Act requires
it to commence the WCS auction no later than April 15, 1997 and to
conduct the auction in a manner that ensures that all proceeds are
deposited into the United States Treasury no later than September 30,
1997.
i. Competitive Bidding Design
88. In the NPRM, the Commission proposed to auction licenses to
offer WCS service in conformity with the general competitive bidding
rules in part 1, subpart Q of the Commission's Rules and substantially
consistent with the auctions that have been employed in other wireless
services. 47 CFR part 1, subpart Q. In addition, the Commission
proposed certain modifications, addressed infra, to help speed the
auction process given the deadlines imposed by the Appropriations Act.
89. The Commission adopts its proposal to employ a single
simultaneous multiple round auction design for the WCS auction similar
to that used in the PCS auctions. As the Commission explained in the
NPRM, multiple round bidding will provide more information to bidders
about the values of the licenses during the auction than single round
bidding. With better information, bidders will have less incentive to
shade their bids downward in order to avoid the ``winner's curse'',
that is the tendency for the winner to be the bidder who most
overestimates the value of the item being auctioned. The Commission
also believes that multiple round bidding is likely to be fairer than
single round bidding as every bidder will have the opportunity to win a
license if it is willing to pay the most for it. Finally, as the
Commission stated in the NPRM, a single simultaneous auction will
facilitate any aggregation strategies that bidders may have and will
provide the most information to bidders about license values at a time
that they can best put that information to use.
90. In addition, the Commission adopts its proposal to require
bidding for WCS licenses by electronic means only. As the Commission
indicated in the NPRM, this decision is based on the belief that while
oral outcry auctions can be simple and rapid, it is not possible to
auction multiple licenses simultaneously in an oral auction. The
Commission also notes that because of the potentially large value of
the WCS licenses, an electronic multiple round auction will be
preferable because it will permit bidders time between rounds to confer
with principals and reassess their valuation models and bidding
strategies. The Commission also adopts its proposal to require that
bidders submit their bids electronically, rather than by telephone.
Given the time constraints imposed by the Appropriations Act, as well
as the recent improvements in our electronic bidding software, the
Commission believes that telephonic bidding should be permitted only
under exceptional circumstances, to be determined by the Wireless
Telecommunications Bureau. Finally, the Commission delegates to the
Wireless Telecommunications Bureau the discretion to determine whether
bidding for the WCS auction will be remote or on-site.
ii. Bidding Procedures
91. In the NPRM, the Commission tentatively concluded that the WCS
auction should follow the general competitive bidding procedures of
part 1, subpart Q of the Commission's rules. See 47 CFR part 1, subpart
Q. In addition, the Commission proposed to adopt specific provisions
regarding certain bidding-related issues. Finally, the Commission asked
interested parties to suggest the appropriate level of a minimum
opening bid for the WCS license or licenses.
92. The Commission adopts the bidding procedures proposed in the
NPRM. The WCS auction will be conducted using the general bidding
procedures set forth in part 1, subpart Q of the Commission's rules,
with some minor modifications designed to speed the auction in order to
comply with the time constraints imposed by the Appropriations Act.
Specifically, the Commission delegates to the Wireless
Telecommunications Bureau the discretion to establish a minimum opening
bid for the WCS licenses and to announce the minimum opening bid by
public notice. As the Commission stated in the NPRM, a minimum opening
bid will cause bidders to start bidding at a substantial fraction of
the final price of the license or licenses, thus ensuring that the
auction proceeds quickly and increasing the likelihood that the public
receives fair market value for the license or licenses. In keeping with
its obligation under the Appropriations Act to ensure that the auction
proceed rapidly, the Commission also delegates to the Wireless
Telecommunications Bureau the discretion to establish, raise and lower
minimum bid increments in the course of the auction. See 47 CFR
1.2104(d). Finally, the Commission concludes that where a tie bid
occurs, the high bidder will be determined by the order in which the
bids were received by the Commission.
iii. Procedural and Payment Issues
93. In the NPRM, the Commission tentatively concluded that, with
certain proposed modifications, subpart Q of part 1 of the Commission's
rules establishing procedural and payment rules for FCC auctions
generally should apply to the WCS auction. Only one commenter addressed
these issues. DigiVox contends that to effectively compete in the
auctions, many parties (especially small businesses) will need 90 days
from the release of the final rules before FCC Forms 175 are due in
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order to finalize their business plans. DigiVox proposes a schedule
that includes commencing the auction on May 2, 1997. As the Commission
recognized in the NPRM, the Appropriations Act requires that the
Commission ``shall commence the competitive bidding'' for WCS licenses
no later than April 15, 1997. Although DigiVox urges an interpretation
of this requirement that would allow applicants to submit their short-
form applications on that date, the Commission concludes that the
statute clearly requires that ``bidding'' commence on April 15, 1997.
The Commission therefore will commence the WCS auction on April 15,
1997, and the auction will be conducted in substantial conformity with
subpart Q of part 1 of the Commission's Rules. The Commission also
adopts general rules regarding application and licensing procedures.
See subpart E of new part 27.
94. Pre-Auction Application Procedures. In the NPRM, the Commission
proposed that WCS applicants be required to file a short-form
application (FCC Form 175) prior to the auction. See 47 CFR 1.2105(a).
In addition, the Commission tentatively concluded that the Commission
should require electronic filing of all applications for this auction.
The Commission received no comments addressing this issue, and will
implement this proposal. Each bidder in the WCS auction must submit a
short-form application (FCC Form 175) by means of electronic filing. As
the Commission stated in the NPRM, the Commission believes that
electronic filing of applications will serve the best interests of
auction participants as well as ensure that the WCS auction will be
completed within the time frame mandated under the Appropriations Act.
The Commission has developed user-friendly electronic filing software
and Internet World Wide Web forms to give applicants the ability to
easily and inexpensively file and review applications. In addition, the
Commission believes that in light of the legislative deadline of April
15, 1997 for commencement of this auction, requiring electronic filing
will be helpful to applicants as well as the Commission. By shortening
the time required for the Commission to process applications before the
auction, electronic filing will increase the lead time available to
applicants to finalize their business plans and arrange necessary
financing before the short-form filing deadline.
95. The Commission also proposed in the NPRM that an applicant's
electronic submission of FCC Form 175 include a certification that the
applicant is not in default on any Commission licenses and that it is
not delinquent on any extension of credit from any federal agency. No
commenters addressed this issue. The Commission therefore adopts this
certification requirement for the WCS auction. As the Commission stated
in the NPRM, a certification regarding defaulted licenses and
delinquent payments to federal agencies will enable us to better
evaluate the financial qualifications of potential bidders, because it
will allow us to determine whether any bidder may later be subject to a
monetary judgment or collection procedures that may impair its
financial ability to provide service. In the Second Report and Order,
we decided that we should require sufficient information on the short-
form application to make a determination that ``the application is not
in violation of Commission Rules and that applications not meeting
those requirements may be dismissed prior to the competitive bidding.''
Implementation of Section 309(i) of the Communications Act--Competitive
Bidding, PP Docket No. 93-253, Second Report and Order, 59 FR 22980
(May 4, 1994) (``Second Report and Order''). Part of this documentation
necessarily includes certification that the bidder has the legal,
technical, financial, and other qualifications to bid in the auction.
96. Upfront Payment Amount. The Commission's Part 1 Rules require
the submission of an upfront payment as a prerequisite to participation
in spectrum auctions. See 47 CFR 1.2106. In the NPRM, the Commission
proposed to set the amount of the WCS upfront payment based on the
general formula the Commission adopted in the Second Report and Order
of $.02 per megahertz per population. In addition to seeking comment on
this proposal, the Commission asked commenters to suggest alternative
methods of establishing an upfront payment, and in particular, how the
Commission may estimate the value of the spectrum to be auctioned. The
Commission received no comments or alternative suggestions on this
issue, and will therefore adopt the proposed upfront payment for the
WCS auction. Given that a range of services may be provided on WCS
spectrum, it is difficult to estimate the value of this spectrum. The
Commission believes, however, that a $.02 per megahertz per population
upfront payment will serve the twin purposes of upfront payments--to
deter insincere bidding and to provide the Commission with a source of
funds to satisfy any bid withdrawal or default payments--without being
so high as to discourage participation in the WCS auction.
97. Procedure For Upfront Payment. The Commission also proposed to
require bidders to deposit their upfront payments in the Commission's
lock-box bank by wire transfer only by a date to be announced by public
notice. No commenters addressed this issue. The Commission therefore
adopts the requirement that bidders in the WCS auction deposit their
upfront payment by wire transfer only. Although in the past the
Commission has permitted payment by cashier's check, the Commission
believes that requiring payment by wire transfer will benefit bidders
by streamlining and expediting the administration of the auction. As
the Commission noted in the NPRM, the Commission's experience has shown
that verification of payments remitted by cashier's check is time-
consuming and cumbersome, and requires the allotment of extra
processing time prior to the start of the auction. Permitting payment
by cashier's check would require that upfront payments be made at an
earlier point, which would decrease applicants' lead time to pursue
business plans and arrange necessary financing before the start of the
auction. In addition, given the large number of financial institutions
offering wire transfer services, a requirement that bidders remit their
upfront payments by wire transfer will result in minimal, if any, extra
cost to auction applicants. Such a cost is far outweighed by the
benefit of speeding the auction process through quicker verification of
payments.
98. Down Payment and Full Payment. In the NPRM, the Commission
tentatively concluded that to help ensure that auction winners are able
to pay the full amount of their bids, every winning bidder in the WCS
auction would be required to tender a down payment sufficient to bring
its total amount on deposit with the Commission up to 20 percent of its
winning bid. See 47 CFR 1.2107(b). No commenters addressed this issue.
The Commission therefore concludes that a down payment equal to 20
percent of each high bidder's total winning bids will be due within 10
business days after the issuance of a public notice announcing the
winning bidder for each WCS license.
99. The Commission also proposed that a winning bidder that makes
its down payment in a timely manner be required to file an FCC Form 600
long-form application and follow the long-form application procedures
in Sec. 1.2107. See 47 CFR 1.2107. The Commission proposed that after
reviewing the
[[Page 9652]]
winning bidder's long-form application, and after verifying receipt of
the winning bidder's 20 percent down payment, the Commission would
announce the application's acceptance for filing, thus triggering the
filing window for petitions to deny. The Commission also noted that
given the abbreviated auction schedule contemplated by the
Appropriations Act, a condensed schedule for the filing of petitions to
deny would apply for the WCS auction. No commenters addressed this
issue. The Commission therefore adopts these proposals governing long-
form application procedures. Winning bidders that have made the
necessary down payment will be required to file a modified FCC Form 600
that has been updated to provide for the Commission's decision to
permit flexibility in terms of permissible uses. Finally, the
Appropriations Act provides that no application for a WCS authorization
may be granted earlier than seven (7) days following public notice of
the acceptance for filing of such an application, and that parties will
have no less than five (5) days following such public notice to file a
petition to deny. See Appropriations Act, section 3001(c). The
Commission will therefore afford parties five (5) days to file a
response to any petition to deny. If, pursuant to Section 309(d) of the
Communications Act, the Commission dismisses or denies any and all
petitions to deny, the Commission will announce by public notice that
it is prepared to award a license and the winning bidder will then have
ten (10) business days to submit the balance of its winning bid. If the
bidder does so, the license will be granted. If the bidder fails to
submit the required down payment or the balance of the winning bid or
the license is otherwise denied, the Commission will assess a default
payment as discussed infra.
100. Amendments and Modifications of Applications. In the NPRM, the
Commission stated that to encourage maximum bidder participation,
applicants should be permitted to amend or modify their short-form
applications as provided in Sec. 1.2105. 47 CFR 1.2105. The Commission
also noted that in the broadband PCS context, the Commission modified
its rules to permit ownership changes that result when consortium
investors drop out of bidding consortia, even if control of the
consortium changes due to this restructuring. No commenters addressed
this issue. The Commission therefore adopts the same exception to its
rules prohibiting major amendments in the WCS auction.
101. Bid Withdrawal, Default and Disqualification. In the NPRM, the
Commission tentatively concluded that the withdrawal, default, and
disqualification rules for the WCS auction would be based upon the
procedures established in the Commission's general competitive bidding
rules. With regard to bids which are submitted in error, the Commission
proposed to apply the guidelines which it recently fashioned to provide
for relief from the bid withdrawal payment requirements under certain
circumstances. See Atlanta Trunking Associates, Inc. and MAP Wireless
L.L.C. Requests to Waive Bid Withdrawal Payment Provisions, Order 11
FCC Rcd 17189, 61 FR 25807 (May 23, 1996), recon. pending. See also
Georgia Independent PCS Corporation Request to Waive Bid Withdrawal
Payment Provision, Order, 11 FCC Rcd 13728, 61 FR 25810 (May 23, 1996),
app. rev. pending. No commenters addressed this issue. We therefore
adopt these provisions governing bid withdrawal, default and
disqualification for the WCS auction.
iv. Anti-Collusion Rules
102. In the NPRM, the Commission tentatively concluded that the
anti-collusion rules which the Commission adopted in the Second Report
and Order, and which are codified at 47 CFR 1.2105, should apply to the
WCS auction. The Commission received no comments addressing the issue
of collusion. The Commission has therefore determined that these rules
prohibiting collusive conduct will apply to the WCS auction.
v. Treatment of Designated Entities
103. Race- and gender-based classifications must meet exacting
standards of judicial review. In Adarand Constructors v. Pena, 115
S.Ct. 2097 (1995) (``Adarand'') the Supreme Court held that all racial
classifications, whether imposed at the federal, state or local
government level, must be analyzed by a reviewing court under a strict
scrutiny standard of review. This standard requires such
classifications to be narrowly tailored to further a compelling
governmental interest. Adarand, 115 S. Ct. at 2113. In United States v.
Virginia, 116 S.Ct. 2264 (June 26, 1996) (``VMI'') the Supreme Court
reviewed a state program containing gender classification and held it
was unconstitutional under an intermediate scrutiny standard of review.
This standard requires that ``[p]arties who seek to defend gender-based
government action must demonstrate an `exceedingly persuasive
justification' for that action.'' VMI, 116 S. Ct. at 2274 (citing
J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 136-37 and n. 6 (1994)
and Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).
Under this test, the government must show ``at least that the
(challenged) classification serves `important governmental objectives
and that the discriminatory means employed' are `substantially related
to the achievement of those objectives.' '' Id. at 2275 (quoting
Mississippi Univ. for Women v. Hogan, 458 U.S. at 724 (quoting Wengler
v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980))). While the
Supreme Court has not directly addressed constitutional challenges to
federal gender-based programs since Adarand and VMI, the Commission's
review of the relevant broad language in VMI indicates that the Court
does not differentiate between federal and state official actions in
its equal protection analysis. Similarly, the Adarand decision
definitively eliminated any distinction between federal and state race-
based programs in setting its strict scrutiny standard of judicial
review. Adarand, 115 S. Ct. at 2113. Therefore, the Commission
concludes that any gender-based preference maintained in the WCS
auction rules would need to meet the VMI intermediate scrutiny standard
of review.
104. The Commission believes that the record in this proceeding is
insufficient to support race- and gender-based provisions that would
survive judicial scrutiny. Moreover, adopting race- and gender-based
provisions unsupported by a substantial record would disserve the
public interest because it might result in litigation that could
further delay the conduct of the auction and the award of WCS licenses,
and postpone the introduction of new competition to the marketplace.
The Commission therefore concludes that it should not adopt special
auction provisions that are race- and gender-based.
105. While the Commission declines to establish race- and gender-
based provisions for the WCS auction rules, the Commission will adopt
provisions for small businesses, as suggested by several commenters.
The Commission notes that nothing in the Adarand or VMI decisions calls
the Commission's small business provisions into question. Moreover, by
retaining small business preferences, the Commission believes that it
fulfill its mandate under section 309(j) to provide increased
opportunities for minority- and women-owned businesses, 47 U.S.C.
309(j)(3),
[[Page 9653]]
because many minority- and women-owned entities are small businesses
who therefore will qualify for the same special provisions that would
have applied to them under the previous rules.
106. The Commission also has initiated a comprehensive rule making
proceeding to gather evidence regarding market barriers to entry faced
by small businesses as well as minority- and women-owned firms. See
Section 257 Proceeding to Identify and Eliminate Market Entry Barriers
for Small Businesses, GN Docket No. 96-113, Notice of Inquiry, 11 FCC
Rcd 6280, 61 FR 33066 (June 26, 1996). If a sufficient record is
adduced that will support race- and gender-based provisions that will
satisfy judicial scrutiny, the Commission will consider race- and
gender-based provisions for future auctions. Toward this end, the
Commission will continue to request bidder information on the WCS
short-form filings as to minority- or women-owned status. In its
analysis of the applicant pool and the auction results, the Commission
will monitor whether it has accomplished substantial participation by
minorities and women through the broad provisions available to small
businesses. This will also assist the Commission in preparing its
report to Congress on the success of designated entities in auctions.
See 47 U.S.C. 309(j)(12)(D).
i. Special Provisions for Designated Entities
A. Bidding Credits
107. The Commission will adopt bidding credits for small businesses
and will adopt a tiered bidding credit approach, as supported by
several commenters. The Commission agrees with commenters that the
availability of bidding credits is consistent with the Commission's
obligations under section 309(j) to promote economic opportunity for a
wide variety of applicants, including small businesses and businesses
owned by minorities and women. The Commission believes that a tiered
approach, which enhances the discounting effect of bidding credits
because not all entities receive the same benefit, will encourage
smaller businesses to participate in the provision of WCS services. As
for the level of the credits, the Commission believes that bidding
credits of 25 percent for small businesses and 35 percent for very
small businesses are appropriate. These levels reflect the thresholds
used in the broadband PCS auctions with a reasonable adjustment for the
unavailability of installment payment plans for WCS licensees. It is
difficult to accurately calculate the net present value of an
installment program (which would depend on several variables including
future commercial interest rates), and the Commission therefore is
adjusting the broadband PCS bidding credit levels upward by ten
percentage points. The Commission believes that this tiered bidding
credit approach and 10 percent adjustment are reasonable and consistent
with the comments. These credits are narrowly tailored to the varying
abilities of businesses to access capital and also take into account
that different small businesses will pursue different strategies.
B. Definition of Small Business
108. Consistent with the suggestions of many of the commenters, the
Commission will generally employ the small business definitions and
standards used in broadband PCS, which the Commission believes have the
advantages of ready availability and familiarity to many small
businesses that might be interested in this spectrum. The Commission
will therefore define a ``small business'' as an entity with average
gross revenues not exceeding $40 million for each of the preceding
three years, and a ``very small business'' as an entity with average
gross revenues not exceeding $15 million in each of the preceding three
years. The Commission declines to adopt the higher revenue standard
suggested by Vanguard because it does not believe that Congress, in
enacting section 309(j), intended for firms with $500 million in
revenue to be regarded as ``small''. Furthermore, adopting Vanguard's
suggested standard would create severe disparities between ``small
businesses'' in terms of capitalization and access to financing.
109. In determining whether an entity qualifies as a small business
at either threshold, the Commission will consider the gross revenues of
the applicant, its affiliates, and certain investors in the applicant.
Specifically, the Commission will attribute the gross revenues of all
controlling principals in the applicant as well as the gross revenues
of affiliates of the applicant. Consistent with broadband PCS rules,
the Commission will apply two notable exceptions to these attribution
rules. First, the Commission determines that personal net worth is not
included in the determination of eligibility for bidding as a small
business. Second, the Commission agrees with CIRI that entities owned
by Alaska Native Corporations and Indian Tribes are exempt from
affiliation for purposes of determining eligibility of applicants for
bidding credits, because of the general lack of availability of
revenues from such entities for purposes of participation in WCS. This
exception is consistent with treatment afforded such entities by the
Small Business Administration's 8(a) program, See 13 CFR
124.112(c)(2)(iii), and as the Commission previously has determined, it
does not believe such a provision to be affected by Adarand.
110. The Commission declines, however, to employ the specific
control group equity requirements that the Commission adopted for
broadband PCS, because the time frame for the conduct of the WCS
auction is likely to be too short to allow for the creation of the type
of complex financial relationships as arose in the broadband PCS
context. Instead, the Commission will simply define the term
``control'' to include both de jure and de facto control of the
applicant. However, the Commission will still require that, in order
for an applicant to qualify as a small business, qualifying small
business principals must maintain ``control'' of the applicant. The
Commission also notes that while it is not imposing specific equity
requirements on the small business principals, the absence of
significant equity could raise questions about whether the applicant
qualifies as a bona fide small business.
C. Unjust Enrichment
111. The Commission agrees with CIRI on the employment of an unjust
enrichment restriction on the transfer of licenses acquired by small
businesses, similar to that set forth in 47 CFR 24.839(d), which the
Commission believes is necessary to ensure that meaningful small
business participation is not thwarted by transfers of licenses to non-
designated entities. To permit otherwise would severely impede the
meaningful participation of designated entities because bidders could
participate as small businesses with the intention not of providing
service but only of profiting from the difference in the discounted
auction price and the worth of the license on the resale market. To
prevent unjust enrichment by small businesses transferring licenses
acquired through the use of bidding credits, the Commission imposes a
payment requirement on transfers of such licenses to entities that are
not owned by small businesses. The Commission believes it is
appropriate to conform our unjust enrichment rules for WCS to the
broadband PCS unjust enrichment rules as they relate to bidding
credits. These rules provide
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that, during the initial license term, licensees utilizing bidding
credits and seeking to assign or transfer control of a license to an
entity that does not meet the eligibility criteria for bidding credits
will be required to reimburse the government for the amount of the
bidding credit before the transfer will be permitted. 47 CFR
24.716(d)(1). Additionally, the rules which the Commission now adopts
provide that if, within the original term, a licensee applies to assign
or transfer control of a license to an entity that is eligible for a
lower bidding credit, the difference between the bidding credit
obtained by the assigning party and the bidding credit for which the
acquiring party would qualify must be paid to the United States
Treasury as a condition of approval of the assignment or transfer. 47
CFR 24.716(d)(2). See also 47 CFR 1.2111. These provisions also will
apply to WCS licensees who partition or disaggregate their licenses.
112. If a licensee that utilizes bidding credits seeks to make any
change in ownership structure that would render the licensee ineligible
for bidding credits, or eligible only for a lower bidding credit, the
licensee must first seek Commission approval and reimburse the
government for the amount of the bidding credit, or the difference
between its original bidding credit and the bidding credit for which it
is eligible after the ownership change, plus interest based on the rate
for ten year U.S. Treasury obligations applicable on the date the
license is granted. Additionally, if an investor subsequently purchases
an interest in the business and, as a result, the gross revenues of the
business exceed the applicable financial caps, this unjust enrichment
provision will apply.
113. The amount of this payment will be reduced over time as
follows: (1) A transfer in the first five years of the license term
will result in a forfeiture of 100 percent of the value of the bidding
credit (or, in the case of very small businesses transferring to small
businesses, 100 percent of the difference between the bidding credit
received by the former and the bidding credit for which the latter is
eligible); (2) in year six of the license term the payment will be 80
percent; (3) in year seven the payment will be 60 percent; in year
eight the payment will be 40 percent; and in year nine the payment will
be 20 percent, after which there will be no required payment. These
assessments will have to be paid to the U.S. Treasury as a condition of
approval of the assignment, transfer, or ownership change.
D. Other Matters
114. Based upon the record in this proceeding, the Commission has
determined that special provisions for rural telcos are not warranted.
However, rural telcos can take advantage of the geographic partitioning
and spectrum disaggregation provisions which the Commission adopts, and
those rural telcos that qualify as small or very small businesses may
take advantage of the Commission's tiered bidding credits. In addition,
the Commission declines to afford an additional bidding credit, as
suggested by DigiVox, to small businesses bidding in areas in which
they hold no CMRS licenses. The Commission believes that such
preferences might discourage small businesses from acquiring WCS
spectrum as supplemental for CMRS services already offered in that
geographic license area, which would run counter to our goal of
flexible use. The Commission also declines to adopt any limit on the
total number of WCS licenses for which an entity may take advantage of
small business bidding credits. The Commission does not regard such
limitation as necessary and generally believes that, absent a strong
justification to do otherwise, the auction process should be permitted
to work without constraint to allow all bidders to express their
valuations of the licenses up for bid. Finally, the Commission also
declines to set aside a block of licenses for auction only to
designated entities because the Commission does not believe such set-
asides to be necessary to ensure opportunities for participation by
designated entities in light of the substantial bidding credits, as
well as the partitioning and disaggregation rules the Commission is
adopting.
115. The Commission also notes that its decision both to license
WCS in two 10 MHz blocks and two 5 MHz blocks, and to designate MEA and
REAG service areas should increase the opportunities for participation
in WCS by small businesses and other designated entities. These
decisions will help to ensure that the cost of obtaining WCS spectrum
remains within reach of a larger number of prospective applicants than
would be the case were we to offer only one or two licenses in each
area. In addition, by offering licenses for smaller blocks of spectrum,
the Commission will enable WCS applicants to acquire only the amount of
spectrum necessary to implement their particular service plans. Such
efficiencies directly benefit small businesses who may not be able to
afford to acquire larger blocks of spectrum. For example, permitting
bidders to acquire smaller blocks of spectrum will enable small
businesses that have identified niche markets to focus their bidding
and avoid paying for more spectrum than they actually need.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Parts 1, 2, 27, and 97 of title 47 of the Code of Federal
Regulations are amended as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise
noted.
2. Section 1.1307 is amended by revising paragraphs (b)(1) and the
first sentence of paragraph (b)(2) and Table 1 in paragraph (b)(1) is
amended by adding the entry for the Wireless Communications Service to
read as follows:
Sec. 1.1307 Actions that may have a significant environmental effect,
for which Environmental Assessments (EAs) must be prepared.
* * * * *
(b) * * *
(1) The exposure limits in Sec. 1.1310 are generally applicable to
all facilities, operations and transmitters regulated by the
Commission. However, a determination of compliance with the exposure
limits in Sec. 1.1310 (routine environmental evaluation), and
preparation of an EA if the limits are exceeded, is necessary only for
facilities, operations and transmitters that fall into the categories
listed in Table 1, or those specified in paragraph (b)(2) of this
section. All other facilities, operations and transmitters are
categorically excluded from making such studies or preparing an EA,
except as indicated in paragraphs (c) and (d) of this section. For
purposes of Table 1, ``rooftop'' means the roof or otherwise outside,
topmost level or levels of a building structure that is occupied as a
workplace or residence and where either workers or the general public
may have access. The term ``power'' in column 2 of Table 1 refers to
total operating power of the transmitting operation in question in
terms of effective radiated power (ERP), equivalent isotropically
radiated power (EIRP), or peak envelope power (PEP), as defined in
Sec. 2.1 of this chapter. For the case of the Cellular Radiotelephone
Service, subpart H of part 22 of this
[[Page 9655]]
chapter; the Personal Communications Service, part 24 of this chapter;
the Wireless Communications Service, part 27 of this chapter; and
covered Specialized Mobile Radio Service operations, part 90 of this
chapter; the phrase ``total power of all channels'' in column 2 of
Table 1 means the sum of the ERP or EIRP of all co-located
simultaneously operating transmitters of the facility. When applying
the criteria of Table 1, radiation in all directions should be
considered. For the case of transmitting facilities using sectorized
transmitting antennas, applicants and licensees should apply the
criteria to all transmitting channels in a given sector, noting that
for a highly directional antenna there is relatively little
contribution to ERP or EIRP summation for other directions.
Table 1.--Transmitters, Facilities and Operations Subject to Routine
Environmental Evaluation
------------------------------------------------------------------------
Service (Title 47 CFR rule part) Evaluation required if:
------------------------------------------------------------------------
* * * * * ......................... * * * * *
Wireless Communications Service (Part 27). Total power of all channels
> 1000 W ERP (1640 W EIRP)
* * * * * ......................... * * * * *
------------------------------------------------------------------------
(2) Mobile and portable transmitting devices that operate in the
Cellular Radiotelephone Service, the Personal Communications Services,
the Satellite Communications Services, the Wireless Communications
Service, the Maritime Services (ship earth stations only), and covered
Specialized Mobile Radio Service providers authorized under subpart H
of part 22, part 24, part 25, part 27, part 80, and part 90 of this
chapter are subject to routine environmental evaluation for RF exposure
prior to equipment authorization or use, as specified in Secs. 2.1091
and 2.1093 of this chapter. * * *
* * * * *
PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL
RULES AND REGULATIONS
1. The authority citation for part 2 continues to read as follows:
Authority: Secs. 4, 302, 303, and 307 of the Communications Act
of 1934, as amended, 47 U.S.C. 154, 302, 303 and 307, unless
otherwise noted.
2. Section 2.106, the Table of Frequency Allocations, is amended as
follows:
a. Remove the existing entries for 2300-2450 MHz.
b. Add entries in numerical order for 2300-2450 MHz.
c. In the International Footnotes under heading I., add footnotes
S5.150, S5.282 , S5.393, S5.394, S5.395, and S5.396 in numerical order.
d. In the International Footnotes under heading II., remove
footnotes 750B, 751, 751A, and 751B.
e. Remove United States footnote US253.
f. Add United States footnotes US338 and US339 in numerical order.
g. Revise United States footnotes US276 and US328.
h. Revise Government footnote G2.
i. Add Government footnotes G120, G123 and G124 in numerical order.
The revisions and additions read as follows:
Sec. 2.106 Table of Frequency Allocations.
* * * * *
International table United States table FCC use designators
----------------------------------------------------------------------------------------------------------------
Government Non-
Region 2-- Region 3-- --------------- Government
Region 1-- allocation MHz allocation MHz --------------- Rule Special-use
allocation MHz Allocation Allocation part(s) frequencies
MHz MHz
(1) (2) (3) (4) (5) (6) (7)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
2300-2305 2300-2305 2300-2305 2300-2305 2300-2305 ........... ..............
FIXED FIXED FIXED ............. Amateur Amateur ..............
(97)
MOBILE MOBILE MOBILE ............. ............. ........... ..............
Amateur RADIOLOCATION RADIOLOCATION ............. ............. ........... ..............
Radiolocation Amateur Amateur ............. ............. ........... ..............
S5.394 ................ G123
----------------------------------------------------------------------------------------------------------------
2305-2310 2305-2310 2305-2310 2305-2310 2305-2310 ........... ..............
FIXED FIXED FIXED ............. FIXED WIRELESS ..............
COMMUNICAT
IONS (27)
MOBILE MOBILE MOBILE ............. MOBILE except ........... ..............
aeronautical
mobile
Amateur RADIOLOCATION RADIOLOCATION ............. RADIOLOCATION Amateur ..............
(97)
Radiolocation Amateur Amateur ............. Amateur ........... ..............
S5.394 ................ US338 G123 US338
----------------------------------------------------------------------------------------------------------------
2310-2320 2310-2320 2310-2320 2310-2320 2310-2320 ........... ..............
FIXED FIXED FIXED FIXED BROADCASTING- WIRELESS Digital Audio
-SATELLITE COMMUNICAT Radio
US327 IONS (27) Services
MOBILE MOBILE MOBILE Mobile US339 MOBILE US339 ........... ..............
Amateur RADIOLOCATION RADIOLOCATION Radiolocation RADIOLOCATION ........... ..............
G2
Radiolocation Amateur Amateur ............. ............. ........... ..............
................ ................ ............. ............. ........... ..............
[[Page 9656]]
S5.395 S5.393 S5.394 S5.393 S5.396 S5.396 US327 S5.396 US338
S5.396 US338 G120
----------------------------------------------------------------------------------------------------------------
2320-2345 2320-2345 2320-2345 2320-2345 2320-2345 ........... ..............
BROADCASTING
-SATELLITE
US327
FIXED FIXED FIXED Fixed ............. ........... Digital Audio
Radio
Services
MOBILE MOBILE MOBILE Mobile US 276 Mobile US 276 ........... ..............
US328
Amateur RADIOLOCATION RADIOLOCATION Radiolocation ............. ........... ..............
G2
Radiolocation Amateur Amateur ............. ............. ........... ..............
S5.395 S5.393 S5.394 S5.393 S5.396 S5.396 US327 S5.396
S5.396 US328 G120
----------------------------------------------------------------------------------------------------------------
2345-2360 2345-2360 2345-2360 2345-2360 2345-2360 ........... Digital Audio
BROADCASTING Radio
-SATELLITE Services
US327
FIXED FIXED FIXED Fixed FIXED WIRELESS ..............
COMMUNICAT
IONS (27)
MOBILE MOBILE MOBILE Mobile US339 MOBILE US339 ........... ..............
Amateur RADIOLOCATION RADIOLOCATION Radiolocation RADIOLOCATION ........... ..............
G2
Radiolocation Amateur Amateur ............. ............. ........... ..............
................ ................ ............. ............. ........... ..............
S5.395 S5.393 S5.394 S5.393 S5.396 S5.396 US327 S5.396
S5.396 G120
----------------------------------------------------------------------------------------------------------------
2360-2390 2360-2390 2360-2390 2360-2390 2360-2390 ........... ..............
FIXED FIXED FIXED MOBILE US276 MOBILE US276 ........... ..............
MOBILE MOBILE MOBILE RADIOLOCATION ............. ........... ..............
G2
Amateur RADIOLOCATION RADIOLOCATION Fixed ............. ........... ..............
Radiolocation Amateur Amateur ............. ............. ........... ..............
S5.394 ................ G120
----------------------------------------------------------------------------------------------------------------
2390-2400 2390-2400 2390-2400 2390-2400 2390-2400 ........... ..............
FIXED FIXED FIXED ............. AMATEUR AMATEUR ..............
(97)
MOBILE MOBILE MOBILE ............. ............. Radio ..............
Frequency
Devices
(15)
Amateur RADIOLOCATION RADIOLOCATION ............. ............. ........... ..............
Radiolocation Amateur Amateur ............. ............. ........... ..............
S5.394 ................ G122
----------------------------------------------------------------------------------------------------------------
2400-2402 2400-2402 2400-2402 2400-2402 2400-2402 ........... ..............
FIXED FIXED FIXED ............. Amateur Amateur ..............
(97)
MOBILE MOBILE MOBILE ............. ............. ........... ..............
Amateur RADIOLOCATION RADIOLOCATION ............. ............. ........... ..............
Radiolocation Amateur Amateur ............. ............. ........... ..............
S5.150 S5.282 S5.150 S5.282 S5.150 S5.282 S5.150 G123 S5.150 S5.282
S5.394
----------------------------------------------------------------------------------------------------------------
2402-2417 2402-2417 2402-2417 2402-2417 2402-2417 ........... ..............
FIXED FIXED FIXED ............. AMATEUR AMATEUR ..............
(97)
MOBILE MOBILE MOBILE ............. ............. Radio ..............
Frequency
Devices
(15)
Amateur RADIOLOCATION RADIOLOCATION ............. ............. ........... ..............
Radiolocation Amateur Amateur ............. ............. ........... ..............
S5.150 S5.282 S5.150 S5.282 S5.150 S5.282 S5.150 G122 S5.150 S5.282
S5.394
----------------------------------------------------------------------------------------------------------------
2417-2450 2417-2450 2417-2450 2417-2450 2417-2450 ........... ..............
FIXED FIXED FIXED Radiolocation Amateur Amateur ..............
G2 (97)
MOBILE MOBILE MOBILE ............. ............. ........... ..............
Amateur RADIOLOCATION RADIOLOCATION ............. ............. ........... ..............
Radiolocation Amateur Amateur ............. ............. ........... ..............
[[Page 9657]]
S5.150 S5.282 S5.150 S5.282 S5.150 S5.282 S5.150 S5.282 S5.150 S5.282
S5.394 G124
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
International Footnotes
* * * * *
I. New ``S'' Numbering Scheme.
* * * * *
S5.150 The following bands:
13533-13567 kHz (centre frequency 13560 kHz),
26957-27283 kHz (centre frequency 27120 kHz),
40.66-40.70 MHz (centre frequency 40.68 MHz),
902-928 MHz in Region 2 (centre frequency 915 MHz),
2400-2500 MHz (centre frequency 2450 MHz),
5725-5875 MHz (centre frequency 5800 MHz), and
24-24.25 GHz (centre frequency 24.125 GHz)
are also designated for industrial, scientific and medical (ISM)
applications. Radiocommunication services operating within these bands
must accept harmful interference which may be caused by these
applications. ISM equipment operating in these bands is subject to the
provisions of No. 1815/S15.13.
S5.282 In the bands 435-438 MHz, 1260-1270 MHz, 2400-2450 MHz,
3400-3410 MHz (in Regions 2 and 3 only) and 5650-5670 MHz, the amateur-
satellite service may operate subject to not causing harmful
interference to other services operating in accordance with the Table
(see No. S5.43). Administrations authorizing such use shall ensure that
any harmful interference caused by emissions from a station in the
amateur-satellite service is immediately eliminated in accordance with
the provisions of No. 2741/S25.11. The use of the bands 1260-1270 MHz
and 5650-5670 MHz by the amateur-satellite service is limited to the
Earth-to-space direction.
* * * * *
S5.393 Additional allocation: in the United States and India, the
band 2310-2360 MHz is also allocated to the broadcasting-satellite
service (sound) and complementary terrestrial sound broadcasting
service on a primary basis. Such use is limited to digital audio
broadcasting and is subject to the provisions of Resolution 528 (WARC-
92).
S5.394 In the United States, the use of the band 2300-2390 MHz by
the aeronautical mobile service for telemetry has priority over other
uses by the mobile services. In Canada, the use of the band 2300-2483.5
MHz by the aeronautical mobile service for telemetry has priority over
other uses by the mobile services.
S5.395 In France, the use of the band 2310-2360 MHz by the
aeronautical mobile service for telemetry has priority over other uses
by the mobile service.
S5.396 Space stations of the broadcasting-satellite service in the
band 2310-2360 MHz operating in accordance with No. S5.393 that may
affect the services to which this band is allocated in other countries
shall be coordinated and notified in accordance with Resolution 33.
Complementary terrestrial broadcasting stations shall be subject to
bilateral coordination with neighboring countries prior to their
bringing into use.
* * * * *
United States (US) Footnotes
* * * * *
US276 Except as otherwise provided for herein, use of the bands
2320-2345 and 2360-2390 MHz by the mobile service is limited to
aeronautical telemetering and associated telecommand operations for
flight testing of manned or unmanned aircraft, missiles or major
components thereof. The following four frequencies are shared on a co-
equal basis by Government and non-Government stations for telemetering
and associated telecommand operations of expendable and reusable launch
vehicles whether or not such operations involve flight testing: 2332.5,
2364.5, 2370.5, and 2382.5 MHz. All other mobile telemetering uses
shall be secondary to the above uses.
* * * * *
US328 In the band 2320-2345 MHz, the mobile and radiolocation
services are allocated on a primary basis until a broadcasting-
satellite (sound) service has been brought into use in such a manner as
to affect or be affected by the mobile and radiolocation services in
those service areas. The broadcasting-satellite (sound) service during
implementation should also take cognizance of the expendable and
reusable launch vehicle frequency 2332.5 MHz, to minimize the impact on
this mobile service use to the extent possible.
* * * * *
US338 In the 2305-2310 MHz band, space-to-Earth operations are
prohibited. Additionally, in the 2305-2320 MHz band, all Wireless
Communications Service (WCS) operations within 50 kilometers of 35 deg.
20'' North Latitude and 116 deg. 53'' West Longitude shall be
coordinated through the Frequency Assignment Subcommittee of the
Interdepartment Radio Advisory Committee in order to minimize harmful
interference to NASA's Goldstone Deep Space facility.
US339 The bands 2310-2320 and 2345-2360 MHz are also available for
aeronautical telemetering and associated telecommand operations for
flight testing of manned or unmanned aircraft, missiles or major
components thereof on a secondary basis to the Wireless Communications
Service. The following two frequencies are shared on a co-equal basis
by Government and non-Government stations for telemetering and
associated telecommand operations of expendable and re-usable launch
vehicles whether or not such operations involve flight testing: 2312.5
and 2352.5 MHz. Other mobile telemetering uses may be provided on a
non-interference basis to the above uses. The broadcasting-satellite
(sound) service during implementation should also take cognizance of
the expendable and reusable launch vehicle frequencies 2312.5 and
2352.5 MHz, to minimize the impact on this mobile service use to the
extent possible.
* * * * *
Government Footnotes
* * * * *
[[Page 9658]]
G2 In the bands 216-225, 420-450 (except as provided by US217),
890-902, 928-942, 1300-1400, 2310-2390, 2417-2450, 2700-2900, 5650-
5925, and 9000-9200 MHz, the Government radiolocation is limited to the
military services.
* * * * *
G120 Development of airborne primary radars in the band 2310-2390
MHz with peak transmitter power in excess of 250 watts for use in the
United States is not permitted.
* * * * *
G123 The bands 2300-2310 and 2400-2402 MHz were identified for
reallocation, effective August 10, 1995, for exclusive non-Government
use under Title VI of the Omnibus Budget Reconciliation Act of 1993.
Effective August 10, 1995, any Government operations in these bands are
on a non-interference basis to authorized non-Government operations and
shall not hinder the implementation of any non-Government operations.
G124 The band 2417-2450 MHz was identified for reallocation,
effective August 10, 1995, for mixed Government and non-Government use
under Title VI of the Omnibus Budget Reconciliation Act of 1993.
3. Section 2.1091 is amended by revising the first sentence in
paragraph (c) to read as follows:
Sec. 2.1091 Radiofrequency radiation exposure evaluation: mobile and
unlicensed devices.
* * * * *
(c) Mobile devices that operate in the Cellular Radiotelephone
Service, the Personal Communications Services, the Satellite
Communications Services, the Wireless Communications Service, the
Maritime Services and the Specialized Mobile Radio Service authorized
under subpart H of part 22 of this chapter, part 24 of this chapter,
part 25 of this chapter, part 27 of this chapter, part 80 of this
chapter (ship earth station devices only) and part 90 of this chapter
(``covered'' SMR devices only, as defined in the note to Table 1 of
Sec. 1.1307(b)(1) of this chapter), are subject to routine
environmental evaluation for RF exposure prior to equipment
authorization or use if their effective radiated power (ERP) is 1.5
watts or more. * * *
* * * * *
4. Section 2.1093 is amended by revising the first sentence of
paragraph (c) to read as follows:
Sec. 2.1093 Radiofrequency radiation exposure evaluation: portable
devices.
* * * * *
(c) Portable devices that operate in the Cellular Radiotelephone
Service, the Personal Communications Services, the Satellite
Communications Services, the Wireless Communications Service, the
Maritime Services and the Specialized Mobile Radio Service authorized
under subpart H of part 22 of this chapter, part 24 of this chapter,
part 25 of this chapter, part 27 of this chapter, part 80 of this
chapter (ship earth station devices only), part 90 of this chapter
(``covered'' SMR devices only, as defined in the note to Table 1 of
section 1.1307(b)(1) of this chapter), and portable unlicensed personal
communication service and millimeter wave devices authorized under
Sec. 15.253, Sec. 15.255 or subpart D of part 15 of this chapter are
subject to routine environmental evaluation for RF exposure prior to
equipment authorization or use. * * *
* * * * *
5. A new part 27 is added to read as follows:
PART 27--WIRELESS COMMUNICATIONS SERVICE
Subpart A--General Information
Sec.
27.1 Basis and purpose.
27.2 Permissible communications.
27.3 Other applicable rule parts.
27.4 Terms and definitions.
27.5 Frequencies.
27.6 Service areas.
Subpart B--Applications and Licenses
27.11 Initial authorization.
27.12 Eligibility.
27.13 License period.
27.14 Construction requirements; Criteria for comparative renewal
proceedings.
27.15 Geographic partitioning and spectrum disaggregation.
Subpart C--Technical Standards
27.51 Equipment authorization.
27.52 RF safety.
27.53 Emission limits.
27.54 Frequency stability.
27.55 Field strength limits.
27.56 Antenna structures; air navigation safety.
27.57 International coordination.
27.59 Environmental requirements.
27.61 Quiet zones.
27.63 Disturbance of AM broadcast station antenna patterns.
27.64 Protection from interference.
Subpart D--Competitive Bidding Procedures for WCS
27.201 WCS subject to competitive bidding.
27.202 Competitive bidding mechanisms.
27.203 Withdrawal, default and disqualification payments.
27.204 Bidding application and certification procedures;
prohibition of collusion.
27.205 Submission of upfront payments.
27.206 Submission of down payment and filing of long-form
applications.
27.207 Procedures for filing petitions to deny against WCS long-
form applications.
27.208 License grant, denial, default, and disqualification.
27.209 Designated entities; bidding credits; unjust enrichment.
27.210 Definitions.
Subpart E--Application, Licensing, and Processing Rules for WCS
27.301 Authorization required.
27.302 Eligibility.
27.303 Formal and informal applications.
27.304 Filing of WCS applications, fees, and numbers of copies.
27.305 [Reserved].
27.306 Miscellaneous forms.
27.307 General application requirements.
27.308 Technical content of applications.
27.310 Waiver of rules.
27.311 Defective applications.
27.312 Inconsistent or conflicting applications.
27.313 Amendment of applications for Wireless Communications
Service (other than applications filed on FCC Form 175).
27.314 Application for temporary authorizations.
27.315 Receipt of application; applications in the Wireless
Communications Service filed on FCC Form 175 and other applications
in the WCS Service.
27.316 Public notice period.
27.317 Dismissal and return of applications.
27.319 Ownership changes and agreements to amend or to dismiss
applications or pleadings.
27.320 Opposition to applications.
27.321 Mutually exclusive applications.
27.322 Consideration of applications.
27.323 [Reserved].
27.324 Transfer of control or assignment of station authorization.
27.325 Termination of authorization.
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309 and 332,
unless otherwise noted.
Subpart A--General Information
Sec. 27.1 Basis and purpose.
This section contains the statutory basis for this part of the
rules and provides the purpose for which this part is issued.
(a) Basis. The rules for the Wireless Communications Service (WCS)
in this part are promulgated under the provisions of the Communications
Act of 1934, as amended, that vest authority in the Federal
Communications Commission to regulate radio transmission and to issue
licenses for radio stations.
(b) Purpose. This part states the conditions under which the 2305-
2320 MHz and 2345-2360 MHz bands are made available and licensed for
the provision of WCS.
[[Page 9659]]
(c) Scope. The rules in this part apply only to stations authorized
under this part.
Sec. 27.2 Permissible communications.
Subject to the rules contained herein, fixed, mobile and
radiolocation services may be provided using the 2305-2320 and 2345-
2360 MHz bands. In addition, satellite digital audio radio service
(DARS) may be provided using the 2310-2320 and 2345-2360 MHz bands.
Satellite DARS service shall be provided in manner consistent with part
25 of this chapter.
Sec. 27.3 Other applicable rule parts.
Other FCC rule parts applicable to the Wireless Communications
Service include the following:
(a) Part 0. This part describes the Commission's organization and
delegations of authority. Part 0 of this chapter also lists available
Commission publications, standards and procedures for access to
Commission records, and location of Commission Field Offices.
(b) Part 1. This part includes rules of practice and procedure for
license applications, adjudicatory proceedings, procedures for
reconsideration and review of the Commission's actions; provisions
concerning violation notices and forfeiture proceedings; competitive
bidding procedures; and the environmental requirements that, if
applicable, must be complied with prior to the initiation of
construction.
(c) Part 2. This part contains the Table of Frequency Allocations
and special requirements in international regulations, recommendations,
agreements, and treaties. This part also contains standards and
procedures concerning the marketing and importation of radio frequency
devices, and for obtaining equipment authorization.
(d) Part 5. This part contains rules prescribing the manner in
which parts of the radio frequency spectrum may be made available for
experimentation.
(e) Part 17. This part contains requirements for construction,
marking and lighting of antenna towers.
(f) Part 25. This part contains the requirements for satellite
communications, including satellite DARS.
(g) Part 51. This part contains general duties of
telecommunications carriers to provide for interconnection with other
telecommunications carriers.
(h) Part 68. This part contains technical standards for connection
of terminal equipment to the telephone network.
Sec. 27.4 Terms and definitions.
Assigned frequency. The center of the frequency band assigned to a
station.
Authorized bandwidth. The maximum width of the band of frequencies
permitted to be used by a station. This is normally considered to be
the necessary or occupied bandwidth, whichever is greater.
Average terrain. The average elevation of terrain between 3 and 16
kilometers from the antenna site.
Effective Radiated Power (ERP) (in a given direction). The product
of the power supplied to the antenna and its gain relative to a half-
wave dipole in a given direction.
Equivalent Isotropically Radiated Power (EIRP). The product of the
power supplied to the antenna and the antenna gain in a given direction
relative to an isotropic antenna.
Fixed service. A radio communication service between specified
fixed points.
Fixed station. A station in the fixed service.
Land mobile service. A mobile service between base stations and
land mobile stations, or between land mobile stations.
Land mobile station. A mobile station in the land mobile service
capable of surface movement within the geographic limits of a country
or continent.
Land station. A station in the mobile service not intended to be
used while in motion.
Mobile service. A radio communication service between mobile and
land stations, or between mobile stations.
Mobile station. A station in the mobile service intended to be used
while in motion or during halts at unspecified points.
National Geodetic Reference System (NGRS). The name given to all
geodetic control data contained in the National Geodetic Survey (NGS)
data base. (Source: National Geodetic Survey, U.S. Department of
Commerce)
Radiodetermination. The determination of the position, velocity
and/or other characteristics of an object, or the obtaining of
information relating to these parameters, by means of the propagation
properties of radio waves.
Radiolocation. Radiodetermination used for purposes other than
those of radionavigation.
Radionavigation. Radiodetermination used for the purpose of
navigation, including obstruction warning.
Satellite Digital Audio Radio Service (satellite DARS). A
radiocommunication service in which compact disc quality programming is
digitally transmitted by one or more space stations.
Wireless communications service. A radiocommunication service that
encompasses fixed, mobile, satellite DARS, and radiolocation services.
Sec. 27.5 Frequencies.
The following frequencies are available for WCS.
(a) Two paired channel blocks are available for assignment on a
Major Economic Area basis as follows:
Block A: 2305-2310 and 2350-2355 MHz; and
Block B: 2310-2315 and 2355-2360 MHz.
(b) Two unpaired channel blocks are available for assignment on a
Regional Economic Area Grouping basis as follows:
Block C: 2315-2320 MHz; and
Block D: 2345-2350 MHz.
Sec. 27.6 Service areas.
WCS service areas are Major Economic Areas (MEAs) and Regional
Economic Area Groupings (REAGs) as defined below. Both MEAs and REAGs
are based on the U.S. Department of Commerce's 172 Economic Areas
(EAs). See 60 FR 13114 (March 10, 1995). In addition, the Commission
shall separately license Guam and the Northern Mariana Islands, Puerto
Rico and the United States Virgin Islands, American Samoa, and the Gulf
of Mexico, which have been assigned Commission-created EA numbers 173-
176, respectively. Maps of the EAs, MEAs, and REAGs and the Federal
Register Notice that established the 172 EAs are available for public
inspection and copying at the Commercial Wireless Division Public
Reference Room, room 5608, 2025 M Street, NW, Washington, DC.
(a) The 52 MEAs are composed of one or more EAs and the 12 REAGs
are composed of one or more MEAs, as defined in the table below:
------------------------------------------------------------------------
REAGs MEAs EAs
------------------------------------------------------------------------
1 (Northeast)............... 1 (Boston).......... 1-3.
2 (New York City)... 4-7, 10.
3 (Buffalo)......... 8.
4 (Philadelphia).... 11-12.
[[Page 9660]]
2 (Southeast)............... 5 (Washington)...... 13-14.
6 (Richmond)........ 15-17, 20.
7 (Charlotte- 18-19, 21-26, 41-42,
Greensboro- 46.
Greenville-Raleigh).
8 (Atlanta)......... 27-28, 37-40, 43.
9 (Jacksonville).... 29, 35.
10 (Tampa-St. 30, 33-34.
Petersburg-Orlando).
11 (Miami).......... 31-32.
3 (Great Lakes)............. 12 (Pittsburgh)..... 9, 52-53.
13 (Cincinnati- 48-50.
Dayton).
14 (Columbus)....... 51.
15 (Cleveland)...... 54-55.
16 (Detroit)........ 56-58, 61-62.
17 (Milwaukee)...... 59-60, 63, 104-105,
108.
18 (Chicago)........ 64-66, 68, 97, 101.
19 (Indianapolis)... 67.
20 (Minneapolis-St. 106-107, 109-114,
Paul). 116.
21 (Des Moines-Quad 100, 102-103, 117.
Cities).
4 (Mississippi Valley)...... 22 (Knoxville)...... 44-45.
23 (Louisville- 47, 69-70, 72.
Lexington-
Evansville).
24 (Birmingham)..... 36, 74, 78-79.
25 (Nashville)...... 71.
26 (Memphis-Jackson) 73, 75-77.
27 (New Orleans- 80-85.
Baton Rouge).
28 (Little Rock).... 90-92, 95.
29 (Kansas City).... 93, 99, 123.
30 (St. Louis)...... 94, 96, 98.
5 (Central)................. 31 (Houston)........ 86-87, 131.
32 (Dallas-Fort 88-89, 127-130, 135,
Worth). 137-138.
33 (Denver)......... 115, 140-143.
34 (Omaha).......... 118-121.
35 (Wichita)........ 122.
36 (Tulsa).......... 124.
37 (Oklahoma City).. 125-126.
38 (San Antonio).... 132-134.
39 (El Paso- 136, 139, 155-157.
Albuquerque).
40 (Phoenix)........ 154, 158-159.
6 (West).................... 41 (Spokane- 144-147, 168.
Billings).
42 (Salt Lake City). 148-150, 152.
43 (San Francisco- 151, 162-165.
Oakland-San Jose).
44 (Los Angeles-San 153, 160-161.
Diego).
45 (Portland)....... 166-167.
46 (Seattle)........ 169-170.
7 (Alaska).................. 47 (Alaska)......... 171.
8 (Hawaii).................. 48 (Hawaii)......... 172.
9 (Guam and the Northern 49 (Guam and the 173.
Mariana Islands). Northern Mariana
Islands).
10 (Puerto Rico and U.S. 50 (Puerto Rico and 174.
Virgin Islands). U.S. Virgin
Islands).
11 (American Samoa)......... 51 (American Samoa). 175.
12 (Gulf of Mexico)......... 52 (Gulf of Mexico). 176.
------------------------------------------------------------------------
(b) The Gulf of Mexico EA extends from 12 nautical miles off the
U.S. Gulf coast outward into the Gulf.
Subpart B--Applications and Licenses
Sec. 27.11 Initial authorization.
(a) An applicant must file an application for an initial WCS
authorization in each market and channel block desired. Applicants are
permitted to list all markets and channel blocks in a single
application where all requisite exhibits and justifications are
identical.
(b) The initial WCS authorizations shall be granted for 10
megahertz of spectrum in accordance with Sec. 27.5. Authorizations for
Blocks A and B will be based on Major Economic Areas (MEAs), as shown
in Sec. 27.6. Authorizations for Blocks C and D will be based on
Regional Economic Area Groupings (REAGs), as shown in Sec. 27.6.
Applications for individual sites are not required and will not be
accepted, except where required for environmental assessments, in
accordance with Sec. 27.63.
Sec. 27.12 Eligibility.
Any entity, other than those precluded by section 310 of the
Communications Act of 1934, as amended, 47 U.S.C. section 310, is
eligible to hold a license under this part.
Sec. 27.13 License period.
Initial WCS authorizations will have a term not to exceed ten years
from the date of original issuance or renewal.
Sec. 27.14 Construction requirements; Criteria for comparative renewal
proceedings.
(a) WCS licensees must make a showing of ``substantial service'' in
their license area within ten years of being licensed. ``Substantial''
service is defined as service which is sound, favorable, and
substantially above a level of mediocre service which just might
minimally warrant renewal. Failure by any licensee to meet this
requirement will result in forfeiture of the license and the licensee
will be ineligible to regain it.
(b) A renewal applicant involved in a comparative renewal
proceeding shall receive a preference, commonly referred to as a
renewal expectancy, which is the most important comparative factor to
be considered in the proceeding, if its past
[[Page 9661]]
record for the relevant license period demonstrates that:
(1) The renewal applicant has provided ``substantial'' service
during its past license term; and
(2) The renewal applicant has substantially complied with
applicable FCC rules, policies and the Communications Act of 1934, as
amended.
(c) In order to establish its right to a renewal expectancy, a WCS
renewal applicant involved in a comparative renewal proceeding must
submit a showing explaining why it should receive a renewal expectancy.
At a minimum, this showing must include:
(1) A description of its current service in terms of geographic
coverage and population served;
(2) An explanation of its record of expansion, including a
timetable of new construction to meet changes in demand for service;
(3) A description of its investments in its WCS system; and
(4) Copies of all FCC orders finding the licensee to have violated
the Communications Act or any FCC rule or policy; and a list of any
pending proceedings that relate to any matter described in this
paragraph.
(d) In making its showing of entitlement to a renewal expectancy, a
renewal applicant may claim credit for any system modification
applications that were pending on the date it filed its renewal
application. Such credit will not be allowed if the modification
application is dismissed or denied.
Sec. 27.15 Geographic partitioning and spectrum disaggregation.
(a) Eligibility. (1) Parties seeking approval for partitioning and
disaggregation shall request from the Commission an authorization for
partial assignment of a license pursuant to section 27.324.
(2) WCS licensees may apply to partition their licensed geographic
service area or disaggregate their licensed spectrum at any time
following the grant of their licenses.
(b) Technical Standards--(1) Partitioning. In the case of
partitioning, requests for authorization for partial assignment of a
license must include, as attachments, a description of the partitioned
service area and a calculation of the population of the partitioned
service area and the licensed geographic service area. The partitioned
service area shall be defined by coordinate points at every 3 degrees
along the partitioned service area unless an FCC recognized service
area is utilized (i.e., Major Trading Area, Basic Trading Area,
Metropolitan Service Area, Rural Service Area, Economic Area, or Major
Economic Area) or county lines are followed. The geographic coordinates
must be specified in degrees, minutes, and seconds to the nearest
second of latitude and longitude and must be based upon the 1927 North
American Datum (NAD27). Applicants may supply geographical coordinates
based on 1983 North American Datum (NAD83) in addition to those
required (NAD27). In the case where an FCC recognized service area or
county lines are utilized, applicants need only list the specific
area(s) (through use of FCC designations or county names) that
constitute the partitioned area.
(2) Disaggregation. Spectrum may be disaggregated in any amount.
(3) Combined partitioning and disaggregation. The Commission will
consider requests for partial assignment of licenses that propose
combinations of partitioning and disaggregation.
(4) Signal levels. For purposes of partitioning and disaggregation,
WCS systems must be designed so as not to exceed a signal level of 47
dByV/m at the licensee's service area boundary, unless the affected
adjacent service area licensees have agreed to a different signal
level. See section 27.55.
(c) Unjust Enrichment.--(1) Bidding credits. Licensees that
received a bidding credit and partition their licenses or disaggregate
their spectrum to entities not meeting the eligibility standards for
such a bidding credit, will be subject to the provisions concerning
unjust enrichment as set forth in section 27.209(c).
(2) Apportioning unjust enrichment payments. Unjust enrichment
payments for partitioned license areas shall be calculated based upon
the ratio of the population of the partitioned license area to the
overall population of the license area and by utilizing the most recent
census data. Unjust enrichment payments for disaggregated spectrum
shall be calculated based upon the ratio of the amount of spectrum
disaggregated to the amount of spectrum held by the licensee.
(d) License term. The license term for a partitioned license area
and for disaggregated spectrum shall be the remainder of the original
licensee's license term as provided for in Sec. 27.13.
Subpart C--Technical Standards
Sec. 27.51 Equipment authorization.
(a) Each transmitter utilized for operation under this part and
each transmitter marketed, as set forth in Sec. 2.803 of this chapter,
must be of a type that has been authorized by the Commission under its
type acceptance procedure.
(b) The Commission periodically publishes a list of type accepted
equipment, entitled ``Radio Equipment List, Equipment Accepted for
Licensing.'' Copies of this list are available for public reference at
the Commission's offices in Washington, DC, at each of its field
offices, and may be ordered from its copy contractor.
(c) Any manufacturer of radio transmitting equipment to be used in
these services may request equipment authorization following the
procedures set forth in subpart J of part 2 of this chapter. Equipment
authorization for an individual transmitter may be requested by an
applicant for a station authorization by following the procedures set
forth in part 2 of this chapter. Such equipment if approved or accepted
will not normally be included in the Commission's Radio Equipment List
but will be individually enumerated on the station authorization.
Sec. 27.52 RF safety.
Licensees and manufacturers are subject to the radio frequency
radiation exposure requirements specified in sections 1.1307(b),
2.1091, and 2.1093 of this chapter, as appropriate. Applications for
equipment authorization of mobile or portable devices operating under
this section must contain a statement confirming compliance with these
requirements for both fundamental emissions and unwanted emissions.
Technical information showing the basis for this statement must be
submitted to the Commission upon request.
Sec. 27.53 Emission limits.
(a) The power of any emission outside the licensee's bands of
operation shall be attenuated below the transmitter power (p) within
the licensed bands of operation by the following amounts:
(1) For fixed operations, including radiolocation: By a factor not
less than 80 + 10 log (p) dB on all frequencies between 2320 and 2345
MHz.
(2) For mobile operations, including radiolocation: By a factor not
less than 110 + 10 log (p) dB on all frequencies between 2320 and 2345
MHz.
(3) For fixed and mobile operations, including radiolocation: By a
factor not less than 70 + 10 log (p) dB on all frequencies below 2300
MHz and on all frequencies above 2370 MHz; and not less than 43 + 10
log (p) dB on all frequencies between 2300 and 2320 MHz and on all
frequencies between 2345 and 2370 MHz that are outside the licensed
bands of operation.
[[Page 9662]]
(4) For the purposes of this section, radiolocation shall be
classified as either a fixed or mobile service, depending upon the
application.
(5) Compliance with these provisions is based on the use of
measurement instrumentation employing a resolution bandwidth of 1 MHz
or less, but at least one percent of the emission bandwidth of the
fundamental emission of the transmitter, provided the measured energy
is integrated over a 1 MHz bandwidth.
(6) In complying with the requirements in Secs. 27.53(a)(1) and
27.53(a)(2), WCS equipment that uses opposite sense circular
polarization from that used by satellite DARS systems in the 2320-2345
MHz band shall be permitted an allowance of 10 dB.
(7) When measuring the emission limits, the nominal carrier
frequency shall be adjusted as close to the edges, both upper and
lower, of the licensee's bands of operation as the design permits.
(8) The measurements of emission power can be expressed in peak or
average values, provided they are expressed in the same parameters as
the transmitter power.
(9) The above out-of-band emissions limits may be modified by the
private contractual agreement of the affected licensees, who shall
maintain a copy of the agreement in their station files and disclose it
to prospective assignees or transferees or, upon request, to the
Commission.
(b) For WCS satellite DARS operations: The limits set forth in
section 25.202(f) of this chapter apply, except that satellite DARS
operations are limited to a maximum power flux density of -197 dBW/m2/4
kHz in the 2370-2390 MHz band at Arecibo, Puerto Rico.
(c) When an emission outside of the authorized bandwidth causes
harmful interference, the Commission may, at its discretion, require
greater attenuation than specified in this section.
Sec. 27.54 Frequency stability.
The frequency stability shall be sufficient to ensure that the
fundamental emissions stay within the authorized bands of operation.
Sec. 27.55 Field strength limits.
The predicted or measured median field strength at any location on
the border of a WCS service area shall not exceed 47 dBV/m
unless the parties agree to a different field strength. This value
applies to both the initially offered MEA and REAG service areas and to
partitioned service areas.
Sec. 27.56 Antenna structures; air navigation safety.
A licensee that owns its antenna structure(s) must not allow such
antenna structure(s) to become a hazard to air navigation. In general,
antenna structure owners are responsible for registering antenna
structures with the FCC if required by part 17 of this chapter, and for
installing and maintaining any required marking and lighting. However,
in the event of default of this responsibility by an antenna structure
owner, the FCC permittee or licensee authorized to use an affected
antenna structure will be held responsible by the FCC for ensuring that
the antenna structure continues to meet the requirements of part 17 of
this chapter. See Sec. 17.6 of this chapter.
(a) Marking and lighting. Antenna structures must be marked,
lighted and maintained in accordance with part 17 of this chapter and
all applicable rules and requirements of the Federal Aviation
Administration. For any construction or alteration that would exceed
the requirements of section 17.7 of this chapter, licensees must notify
the appropriate Regional Office of the Federal Aviation Administration
(FAA Form 7460-1) and file a request for antenna height clearance and
obstruction marking and lighting specifications (FCC Form 854) with the
FCC, WTB, 1270 Fairfield Road, Gettysburg, PA 17325.
(b) Maintenance contracts. Antenna structure owners (or licensees
and permittees, in the event of default by an antenna structure owner)
may enter into contracts with other entities to monitor and carry out
necessary maintenance of antenna structures. Antenna structure owners
(or licensees and permittees, in the event of default by an antenna
structure owner) that make such contractual arrangements continue to be
responsible for the maintenance of antenna structures in regard to air
navigation safety.
Sec. 27.57 International coordination.
WCS operations in the border areas shall be subject to coordination
with those countries and provide protection to non-U.S. operations in
the 2305-2320 and 2345-2360 MHz bands as appropriate. In addition,
satellite DARS operations in WCS spectrum shall be subject to
international satellite coordination procedures.
Sec. 27.59 Environmental requirements.
WCS operations that may have a significant environmental impact as
defined by Secs. 1.1301 through 1.1319 of this chapter, must file an
FCC Form 600 and supply specific technical information about their
proposed site prior to construction of such site as well as an
environmental assessment (EA) in accordance with Secs. 1.1301 through
1.1319 of this chapter. Such application will be placed on public
notice in accordance with Sec. 27.316 and may not be constructed or
operated prior to a finding of no significant impact (FONSI) being
issued and placed on public notice by the FCC.
Sec. 27.61 Quiet zones.
Quiet zones are those areas where it is necessary to restrict
radiation so as to minimize possible impact on the operations of radio
astronomy or other facilities that are highly sensitive to
interference. The areas involved and procedures required are as
follows:
(a) NRAO, NRRO. The requirements of this paragraph are intended to
minimize possible interference at the National Radio Astronomy
Observatory site located at Green Bank, Pocahontas County, West
Virginia, and at the Naval Radio Research Observatory site at Sugar
Grove, Pendleton County, West Virginia. WCS licensees planning to
construct and operate a new or modified WCS station at a permanent
fixed location within the area bounded by N.39 deg.15' on the north,
W.78 deg.30' on the east, N.37 deg.30' on the south, and W.80 deg.30'
on the west must notify the Director, National Radio Astronomy
Observatory, Post Office Box No. 2, Green Bank, WV 24944, in writing,
of the technical details of the proposed operation. The notification
must include the geographical coordinates of the antenna location, the
antenna height, antenna directivity (if any), the channel, the emission
type and power.
(b) Table Mountain. The requirements of this paragraph are intended
to minimize possible interference at the Table Mountain Radio Receiving
Zone of the Research Laboratories of the U.S. Department of Commerce
located in Boulder County, Colorado.
(1) WCS licensees planning to construct and operate a new or
modified WCS station at a permanent fixed location in the vicinity of
Boulder County, Colorado are advised to give consideration, prior to
filing applications, to the need to protect the Table Mountain Radio
Receiving Zone from interference. To prevent degradation of the present
ambient radio signal level at the site, the U.S. Department of Commerce
seeks to ensure that the field strengths of any radiated signals
(excluding reflected signals) received on this 1800 acre site (in the
vicinity of coordinates 40 deg.07'50'' North Latitude, 105 deg.14'40''
West
[[Page 9663]]
Longitude) resulting from new assignments (other than mobile stations)
or from the modification or relocation of existing facilities do not
exceed the values given in Table C-3.
Table C-3--Field Strength Limits for Table Mountain
------------------------------------------------------------------------
Frequency range Field strength Power flux density
------------------------------------------------------------------------
890 to 3000 MHz................. 1 mV/m............ -85.8 dBW/m \2\
------------------------------------------------------------------------
Note: Equivalent values of power flux density are calculated assuming
free space characteristic impedance of 376.7 (120). (120).
(2) Advance consultation is recommended, particularly for WCS
licensees that have no reliable data to indicate whether the field
strength or power flux density figures in the above table would be
exceeded by their proposed radio facilities. In general, coordination
is recommended for:
(i) Stations located within 2.4 kilometers (1.5 miles);
(ii) Stations located within 4.8 kilometers (3 miles) transmitting
with 50 watts or more effective radiated power (ERP) in the primary
plane of polarization in the azimuthal direction of the Table Mountain
Radio Receiving Zone;
(iii) Stations located within 16 kilometers (10 miles) transmitting
with 1 kW or more ERP in the primary plane of polarization in the
azimuthal direction of Table Mountain Radio Receiving Zone;
(iv) Stations located within 80 kilometers (50 miles) transmitting
with 25 kW or more ERP in the primary plane of polarization in the
azimuthal direction of Table Mountain Receiving Zone.
(3) WCS licensees are urged to communicate with the Radio Frequency
Management Coordinator, U.S. Department of Commerce, Research Support
Services NOAAR/E5X2, Boulder Laboratories, Boulder, CO 80303; telephone
(303) 497-6548, in advance of construction and operation of such
facilities.
(c) Federal Communications Commission protected field offices. The
requirements of this paragraph are intended to minimize possible
interference to FCC monitoring activities.
(1) WCS licensees planning to construct and operate a new or
modified WCS station at a permanent fixed location in the vicinity of
an FCC protected field office are advised to give consideration to the
need to avoid interfering with the monitoring activities of that
office. FCC protected field offices are listed in Sec. 0.121 of this
chapter.
(2) Applications for stations (except mobile stations) that could
produce on any channel a direct wave fundamental field strength of
greater than 10 mV/m (-65.8 dBW/m \2\ power flux density assuming a
free space characteristic impedance of 120) in the
authorized bandwidth at the protected field office must be examined by
WCS licensees to determine the potential for interference with
monitoring activities.
(3) In the event that the calculated field strength exceeds 10 mV/m
at the protected field office site, or if there is any question whether
field strength levels might exceed that level, advance consultation
with the FCC to discuss possible measures to avoid interference to
monitoring activities should be considered. WCS licensees may
communicate with: Chief, Compliance and Information Bureau, Federal
Communications Commission, Washington, DC 20554.
(4) Advance consultation is recommended for WCS licensees that have
no reliable data to indicate whether the field strength or power flux
density figure indicated would be exceeded by their proposed radio
facilities. In general, coordination is recommended for:
(i) Stations located within 2.4 kilometers (1.5 miles);
(ii) Stations located within 4.8 kilometers (3 miles) with 50 watts
or more average effective radiated power (ERP) in the primary plane of
polarization in the azimuthal direction of the protected field offices.
(iii) Stations located within 16 kilometers (10 miles) with 1 kW or
more average ERP in the primary plane of polarization in the azimuthal
direction of the protected field office;
(iv) Stations located within 80 kilometers (50 miles) with 25 kW or
more average ERP in the primary plane of polarization in the azimuthal
direction of the protected field office;
(5) Advance coordination for stations transmitting on channels
above 1000 MHz is recommended only if the proposed station is in the
vicinity of a protected field office designated as a satellite
monitoring facility in Sec. 0.121 of this chapter.
(6) The FCC will not screen applications to determine whether
advance consultation has taken place. However, such consultation may
serve to avoid the need for later modification of the authorizations of
stations that interfere with monitoring activities at protected field
offices.
Sec. 27.63 Disturbance of AM broadcast station antenna patterns.
WCS licensees that construct or modify towers in the immediate
vicinity of AM broadcast stations are responsible for measures
necessary to correct disturbance of the AM station antenna pattern
which causes operation outside of the radiation parameters specified by
the FCC for the AM station, if the disturbance occurred as a result of
such construction or modification.
(a) Non-directional AM stations. If tower construction or
modification is planned within 1 kilometer (0.6 mile) of a non-
directional AM broadcast station tower, the WCS licensee must notify
the licensee of the AM broadcast station in advance of the planned
construction or modification. Measurements must be made to determine
whether the construction or modification would affect the AM station
antenna pattern. The WCS licensee is responsible for the installation
and continued maintenance of any detuning apparatus necessary to
restore proper non-directional performance of the AM station tower.
(b) Directional AM stations. If tower construction or modification
is planned within 3 kilometers (1.9 miles) of a directional AM
broadcast station array, the WCS licensee must notify the licensee of
the AM broadcast station in advance of the planned construction or
modification. Measurements must be made to determine whether the
construction or modification would affect the AM station antenna
pattern. The WCS licensee is responsible for the installation and
continued maintenance of any detuning apparatus necessary to restore
proper performance of the AM station array.
Sec. 27.64 Protection from interference.
Wireless Communications Service (WCS) stations operating in full
accordance with applicable FCC rules and the terms and conditions of
their authorizations are normally considered to be non-interfering. If
the FCC determines, however, that interference which significantly
interrupts or degrades a radio service is being caused, it may, after
notice and an opportunity for a hearing, require modifications to any
WCS station as necessary to eliminate such interference.
(a) Failure to operate as authorized. Any licensee causing
interference to the service of other stations by failing to operate its
station in full accordance with its authorization and applicable FCC
rules shall discontinue all transmissions, except those necessary for
the immediate safety of life or property, until it can bring its
station
[[Page 9664]]
into full compliance with the authorization and rules.
(b) Intermodulation interference. Licensees should attempt to
resolve such interference by technical means.
(c) Situations in which no protection is afforded. Except as
provided elsewhere in this part, no protection from interference is
afforded in the following situations:
(1) Interference to base receivers from base or fixed transmitters.
Licensees should attempt to resolve such interference by technical
means or operating arrangements.
(2) Interference to mobile receivers from mobile transmitters. No
protection is provided against mobile-to-mobile interference.
(3) Interference to base receivers from mobile transmitters. No
protection is provided against mobile-to-base interference.
(4) Interference to fixed stations. Licensees should attempt to
resolve such interference by technical means or operating arrangements.
(5) Anomalous or infrequent propagation modes. No protection is
provided against interference caused by tropospheric and ionospheric
propagation of signals.
Subpart D--Competitive Bidding Procedures for WCS
Sec. 27.201 WCS subject to competitive bidding.
Mutually exclusive initial applications to provide WCS service are
subject to competitive bidding procedures. The procedures set forth in
part 1, subpart Q of this chapter will apply unless otherwise specified
in this part.
Sec. 27.202 Competitive bidding mechanisms.
In addition to the provisions of Sec. 1.2104(a) through (f), (h)
and (i) of this chapter, the following provision will apply to WCS:
Where a tie bid occurs, the high bidder will be determined by the order
in which the bids were received by the Commission.
Sec. 27.203 Withdrawal, default and disqualification payments.
When the Commission conducts a simultaneous multiple round auction
pursuant to Sec. 27.202, the Commission will impose payments on bidders
who withdraw high bids during the course of an auction, or who default
on payments due after an auction closes or who are disqualified. When
the amount of such a payment cannot be determined, a deposit of up to
20 percent of the amount bid on the license will be required.
(a) Bid withdrawal prior to close of auction. A bidder who
withdraws a high bid during the course of an auction will be subject to
a payment equal to the difference between the amount bid and the amount
of the winning bid the next time the license is offered by the
Commission. No withdrawal payment would be assessed if the subsequent
winning bid exceeds the withdrawn bid. This payment amount will be
deducted from any upfront payments or down payments that the
withdrawing bidder has deposited with the Commission.
(b) Default or disqualification after close of auction. If a high
bidder defaults or is disqualified after the close of such an auction,
the defaulting bidder will be subject to the payment in paragraph (a)
of this section plus an additional payment equal to 3 percent of the
subsequent winning bid. If the subsequent winning bid exceeds the
defaulting bidder's bid amount, the 3 percent payment will be
calculated based on the defaulting bidder's bid amount. These amounts
will be deducted from any upfront payments or down payments that the
defaulting or disqualified bidder has deposited with the Commission.
Sec. 27.204 Bidding application and certification procedures;
prohibition of collusion.
(a) Submission of Short-Form Application (FCC Form 175). In order
to be eligible to bid, an applicant must timely submit, by means of
electronic filing, a short-form application (FCC Form 175). Unless
otherwise provided by public notice, the Form 175 need not be
accompanied by an upfront payment (see Sec. 27.205).
(1) All Form 175s will be due on the date specified by public
notice.
(2) The Form 175 must contain the following information:
(i) Identification of each license on which the applicant wishes to
bid;
(ii) The applicant's name, if the applicant is an individual. If
the applicant is a corporation, then the short-form application will
require the name and address of the corporate office and the name and
title of an officer or director. If the applicant is a partnership,
then the application will require the names, citizenship and addresses
of all partners, and, if a partner is not a natural person, then the
name and title of a responsible person should be included as well. If
the applicant is a trust, then the name and address of the trustee will
be required. If the applicant is none of the above, then it must
identify and describe itself and its principals or other responsible
persons;
(iii) The identity of the person(s) authorized to make or withdraw
a bid;
(iv) If the applicant applies as a designated entity pursuant to
section 27.210(b), a statement to that effect and a declaration, under
penalty of perjury, that the applicant is qualified as a designated
entity under Sec. 27.210(b).
(v) Certification that the applicant is legally, technically,
financially and otherwise qualified pursuant to section 308(b) of the
Communications Act of 1934, as amended. The Commission will accept
applications certifying that a request for waiver or other relief from
the requirements of section 310 is pending;
(vi) Certification that the applicant is in compliance with the
foreign ownership provisions of section 310 of the Communications Act
of 1934, as amended;
(vii) Certification that the applicant is and will, during the
pendency of its application(s), remain in compliance with any service-
specific qualifications applicable to the licenses on which the
applicant intends to bid including, but not limited to, financial
qualifications. The Commission may require certification in certain
services that the applicant will, following grant of a license, come
into compliance with certain service-specific rules, including, but not
limited to, ownership eligibility limitations;
(viii) An exhibit, certified as truthful under penalty of perjury,
identifying all parties with whom the applicant has entered into
partnerships, joint ventures, consortia or other agreements,
arrangements or understandings of any kind relating to the licenses
being auctioned, including any such agreements relating to the post-
auction market structure;
(ix) Certification under penalty of perjury that it has not entered
and will not enter into any explicit or implicit agreements,
arrangements or understandings of any kind with any parties other than
those identified pursuant to paragraph (a)(2)(viii) of this section
regarding the amount of their bids, bidding strategies or the
particular licenses on which they will or will not bid; and
(x) Certification under penalty of perjury that it is not in
default on any Commission licenses and that it is not delinquent on any
extension of credit from any federal agency.
Note to paragraph (a): The Commission may also request
applicants to submit additional information for informational
purposes to aid in its preparation of required reports to Congress.
(b) Modification and Amendment of Application. Applicants will be
[[Page 9665]]
permitted to amend their Form 175 applications to make minor amendments
to correct minor errors or defects such as typographical errors.
Applicants will also be permitted to amend FCC Form 175 to make changes
to the information required by Sec. 27.204(a) (such as ownership
changes or changes in the identification of parties to bidding
consortia), provided such changes do not result in a change in control
of the applicant and do not involve another applicant (or parties in
interest to an applicant) who has applied for licenses in any of the
same geographic license areas as the applicant. Amendments which change
control of the applicant will be considered major amendments. An FCC
Form 175 which is amended by a major amendment will be considered to be
newly filed and cannot be resubmitted after applicable filing
deadlines. See also Sec. 1.2105 of this chapter.
(c) Prohibition of collusion. (1) Except as provided in paragraphs
(c)(2), (c)(3) and (c)(4) of this section, after the filing of short-
form applications, all applicants are prohibited from cooperating,
collaborating, discussing or disclosing in any manner the substance of
their bids or bidding strategies, or discussing or negotiating
settlement agreements, with other applicants until after the high
bidder makes the required down payment, unless such applicants are
members of a bidding consortium or other joint bidding arrangement
identified on the bidder's short-form application pursuant to
Sec. 27.204(a)(2)(viii).
(2) Applicants may modify their short-form applications to reflect
formation of consortia or changes in ownership at any time before or
during an auction, provided such changes do not result in a change in
control of the applicant, and provided that the parties forming
consortia or entering into ownership agreements have not applied for
licenses in any of the same geographic license areas. Such changes will
not be considered major modifications of the application.
(3) After the filing of short-form applications, applicants may
make agreements to bid jointly for licenses, provided the parties to
the agreement have not applied for licenses in any of the same
geographic license areas.
(4) After the filing of short-form applications, a holder of a non-
controlling attributable interest in an entity submitting a short-form
application may acquire an ownership interest in, form a consortium
with, or enter into a joint bidding arrangement with, other applicants
for licenses in the same geographic license area, provided that:
(i) The attributable interest holder certifies to the Commission
that it has not communicated and will not communicate with any party
concerning the bids or bidding strategies of more than one of the
applicants in which it holds an attributable interest, or with which it
has a consortium or joint bidding arrangement, and which have applied
for licenses in the same geographic license area(s); and
(ii) The arrangements do not result in any change in control of an
applicant.
(5) Applicants must modify their short-form applications to reflect
any changes in ownership or in the membership of consortia or joint
bidding arrangements.
(6) For purposes of this paragraph:
(i) The term ``applicant'' shall include the entity submitting a
short-form application to participate in an auction (FCC Form 175), as
well as all holders of partnership and other ownership interests and
any stock interest amounting to 5 percent or more of the entity, or
outstanding stock, or outstanding voting stock of the entity submitting
a short-form application, and all officers and directors of that
entity; and
(ii) The term ``bids or bidding strategies'' shall include capital
calls or requests for additional funds in support of bids or bidding
strategies.
Sec. 27.205 Submission of upfront payments.
(a) Each eligible bidder for WCS licenses subject to auction shall
pay an upfront payment pursuant to this chapter and procedures
specified by public notice. No interest will be paid on upfront
payments.
(b) Upfront payments must be made by wire transfer.
(c) If the applicant does not submit at least the minimum upfront
payment, it will be ineligible to bid, its application will be
dismissed and any upfront payment it has made will be returned.
(d) The upfront payment(s) of a bidder will be credited toward any
down payment required for licenses on which the bidder is the high
bidder. Where the upfront payment amount exceeds the required deposit
of a winning bidder, the Commission will refund the excess amount after
determining that no bid withdrawal payments are owed by that bidder.
(e) In accordance with the provisions of paragraph (d) of this
section, in the event a payment is assessed pursuant to Sec. 27.203 for
bid withdrawal or default, upfront payments or down payments on deposit
with the Commission will be used to satisfy the bid withdrawal or
default payment before being applied toward any additional payment
obligations that the high bidder may have.
Sec. 27.206 Submission of down payment and filing of long-form
applications.
(a) After bidding has ended, the Commission will identify and
notify the high bidder and declare the bidding closed.
(b) Within ten (10) business days after being notified that it is a
high bidder on a particular license(s), a high bidder must submit to
the Commission's lockbox bank such additional funds (the ``down
payment'') as are necessary to bring its total deposits (not including
upfront payments applied to satisfy bid withdrawal or default payments)
up to twenty (20) percent of its high bid(s). This down payment must be
made by wire transfer or cashier's check drawn in U.S. dollars from a
financial institution whose deposits are insured by the Federal Deposit
Insurance Corporation and must be made payable to the Federal
Communications Commission. Down payments will be held by the Commission
until the high bidder has been awarded the license and has paid the
remaining balance due on the license, in which case it will not be
returned, or until the winning bidder is found unqualified to be a
licensee or has defaulted, in which case it will be returned, less
applicable payments. No interest will be paid on any down payment.
(c) A high bidder that meets its down payment obligations in a
timely manner must, within ten (10) business days after being notified
that it is a high bidder, submit an additional application (the ``long-
form application'') pursuant to the rules governing the service in
which the applicant is the high bidder. Notwithstanding any other
provision in title 47 of the Code of Federal Regulations to the
contrary, high bidders need not submit an additional application filing
fee with their long-form applications. Notwithstanding any other
provision in Title 47 of the Code of Federal Regulations to the
contrary, the high bidder's long-form application must be mailed or
otherwise delivered to: Office of the Secretary, Federal Communications
Commission, Attention: Auction Application Processing Section, 1919 M
Street, NW, Room 222, Washington, DC 20554. An applicant that fails to
submit the required long-form application as required under this
section, and fails to establish good cause for any late-filed
submission, shall be deemed to have defaulted and will be subject to
the payments set forth in section 27.203.
[[Page 9666]]
(d) As an exhibit to its long-form application, the applicant must
provide a detailed explanation of the terms and conditions and parties
involved in any bidding consortia, joint venture, partnership or other
agreement or arrangement it had entered into relating to the
competitive bidding process prior to the time bidding was completed.
Such agreements must have been entered into prior to the filing of
short-form applications pursuant to Sec. 27.204.
Sec. 27.207 Procedures for filing petitions to deny against WCS long-
form applications.
(a) Within five (5) days after the Commission gives public notice
that a long-form application has been accepted for filing, petitions to
deny that application may be filed. Any such petitions must contain
allegations of fact supported by affidavit of a person or persons with
personal knowledge thereof, and be served by hand upon the applicant or
its representative.
(b) An applicant may file an opposition to any petition to deny
within five (5) days after the deadline for filing petitions to deny.
Allegations of fact or denials thereof must be supported by affidavit
of a person or persons with personal knowledge thereof, and such
opposition must be served by hand upon the petitioner.
(c) If the Commission determines that:
(1) An applicant is qualified and there is no substantial and
material issue of fact concerning that determination, it will grant the
application;
(2) An applicant is not qualified and that there is no substantial
issue of fact concerning that determination, the Commission need not
hold a evidentiary hearing and will deny the application; and
(3) Substantial and material issues of fact require a hearing, it
will conduct a hearing. The Commission may permit all or part of the
evidence to be submitted in written form and may permit employees other
than administrative law judges to preside at the taking of written
evidence. Such hearing will be conducted on an expedited basis.
Sec. 27.208 License grant, denial, default, and disqualification.
(a) Unless otherwise specified in these rules, auction winners are
required to pay the balance of their winning bids in a lump sum within
ten (10) business days following award of the license. Grant of the
license will be conditioned on full and timely payment of the winning
bid.
(b) If a winning bidder withdraws its bid after the Commission has
declared competitive bidding closed or fails to remit the required down
payment within ten (10) business days after the Commission has declared
competitive bidding closed, the bidder will be deemed to have
defaulted, its application will be dismissed, and it will be liable for
the default penalty specified in Sec. 27.203. In such event, the
Commission may either re-auction the license to existing or new
applicants or offer it to the other highest bidders (in descending
order) at their final bids. The down payment obligations set forth in
Sec. 27.206(b) will apply.
(c) A winning bidder who is found unqualified to be a licensee,
fails to remit the balance of its winning bid in a timely manner, or
defaults or is disqualified for any reason after having made the
required down payment, will be deemed to have defaulted and will be
liable for the payment set forth in Sec. 27.203. In such event, the
Commission will conduct another auction for the license, affording new
parties an opportunity to file applications for the license.
(d) Bidders who are found to have violated the antitrust laws or
the Commission's rules in connection with their participation in the
competitive bidding process may be subject, in addition to any other
applicable sanctions, to forfeiture of their upfront payment, down
payment or full bid amount, and may be prohibited from participating in
future auctions.
Sec. 27.209 Designated entities; bidding credits; unjust enrichment.
(a) Designated entities entitled to preferences in the WCS auction
are small businesses and very small businesses as defined in
Sec. 27.110(b). Designated entities will be eligible for bidding
credits, as defined in paragraphs (b) and (c) of this section.
(b) A winning bidder that qualifies as a small business may use a
bidding credit of 25 percent to lower the cost of its winning bid.
(c) A winning bidder that qualifies as a very small business may
use a bidding credit of 35 percent to lower the cost of its winning
bid.
(d) Unjust Enrichment:
(1) If a small business or very small business (as defined in
Sec. 27.210(b)) that utilizes a bidding credit under this section seeks
to transfer control or assign an authorization to an entity that is not
a small business or a very small business, or seeks to make any other
change in ownership that would result in the licensee losing
eligibility as a small business or very small business, the small
business or very small business must seek Commission approval and
reimburse the U.S. Government for the amount of the bidding credit,
plus interest based on the rate for ten year U.S. Treasury obligations
applicable on the date the license is granted, as a condition of
approval of the assignment or transfer of control.
(2) If a very small business (as defined in Sec. 27.210(b)) that
utilizes a bidding credit under this section seeks to transfer control
or assign an authorization to a small business meeting the eligibility
standards for a lower bidding credit, or seeks to make any other change
in ownership that would result in the licensee qualifying for a lower
bidding credit under this section, the licensee must seek Commission
approval and reimburse the U.S. Government for the difference between
the amount of the bidding credit obtained by the licensee and the
bidding credit for which the assignee, transferee, or licensee is
eligible under this section, plus interest based on the rate for ten
year U.S. Treasury obligations applicable on the date the license is
granted, as a condition of the approval of such assignment, transfer,
or other ownership change.
(3) The amount of payments made pursuant to paragraphs (d)(1) and
(d)(2) of this section will be reduced over time as follows: A transfer
in the first five years of the license term will result in a forfeiture
of 100 percent of the value of the bidding credit (or the difference
between the bidding credit obtained by the original licensee and the
bidding credit for which the post-transfer licensee is eligible); in
year 6 of the license term the payment will be 80 percent; in year 7
the payment will be 60 percent; in year 8 the payment will be 40
percent; and in year 9 the payment will be 20 percent. For a transfer
occurring in year 10 and thereafter, there will be no assessment.
Sec. 27.210 Definitions.
(a) Scope. The definitions in this section apply to Sec. 27.209,
unless otherwise specified in those sections.
(b) Small Business; Very Small Business; Consortia.
(1) A small business is an entity that, together with its
affiliates and controlling principals, has average annual gross
revenues that are not more than $40 million for the preceding three
years.
(2) A very small business is an entity that, together with its
affiliates and controlling principals, has average annual gross
revenues that are not more than $15 million for the preceding three
years.
(3) For purposes of determining whether an entity meets the $40
million
[[Page 9667]]
average annual gross revenues size standard set forth in paragraph
(b)(1) of this section or the $15 million average annual gross revenues
size standard set forth in paragraph (b)(2) of this section, the gross
revenues of the applicant and its affiliates shall be considered on a
cumulative basis and aggregated subject to the following exceptions:
(i) For purposes of paragraphs (b)(1) and (b)(2) of this section,
the personal net worth of an applicant and its affiliates is not
included in the applicant's gross revenues; and
(ii) For purposes of paragraphs (b)(1) and (b)(2) of this section,
Indian tribes or Alaska Regional or Village Corporations organized
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et
seq.), or entities owned and controlled by such tribes or corporations,
are not considered affiliates of an applicant (or licensee) that is
owned and controlled by such tribes, corporations or entities, and that
otherwise complies with the requirements of paragraphs (b)(1) and
(b)(2) of this section, except that gross revenues derived from gaming
activities conducted by affiliated entities pursuant to the Indian
Gaming Regulatory Act (25 U.S.C. 2701 et seq.) will be counted in
determining such applicant's (or licensee's) compliance with the
financial requirements of paragraphs (b)(1) and (b)(2) of this section,
unless such applicant establishes that it will not receive a
substantial unfair competitive advantage because significant legal
constraints restrict the applicant's ability to access such gross
revenues.
(4) A consortium of small businesses (or a consortium of very small
businesses) is a conglomerate organization formed as a joint venture
between or among mutually independent business firms, each of which
individually satisfies the definition in paragraph (b)(1) of this
section or each of which satisfies the definition in paragraph (b)(2)
of this section. Where an applicant (or licensee) is a consortium of
small businesses, the gross revenues of each small business shall not
be aggregated.
(c) Gross Revenues. Gross revenues shall mean all income received
by an entity, whether earned or passive, before any deductions are made
for costs of doing business (e.g., cost of goods sold), as evidenced by
audited financial statements for the relevant number of most recently
completed calendar years, or, if audited financial statements were not
prepared on a calendar-year basis, for the most recently completed
fiscal years preceding the filing of the applicant's short-form
application (Form 175). If an entity was not in existence for all or
part of the relevant period, gross revenues shall be evidenced by the
audited financial statements of the entity's predecessor-in-interest
or, if there is no identifiable predecessor-in-interest, unaudited
financial statements certified by the applicant as accurate. When an
applicant does not otherwise use audited financial statements, its
gross revenues may be certified by its chief financial officer or its
equivalent.
(d) Affiliate.--(1) Basis for affiliation. An individual or entity
is an affiliate of an applicant if such individual or entity:
(i) Directly or indirectly controls or has the power to control the
applicant;
(ii) Is directly or indirectly controlled by the applicant;
(iii) Is directly or indirectly controlled by a third party or
parties who also control or have the power to control the applicant; or
(iv) Has an ``identity of interest'' with the applicant.
(2) Nature of control in determining affiliation. (i) Every
business concern is considered to have one or more parties who directly
or indirectly control or have the power to control it. Control may be
affirmative or negative and it is immaterial whether it is exercised so
long as the power to control exists.
Example for paragraph (d)(2)(i). An applicant owning 50 percent
of the voting stock of another concern would have negative power to
control such concern since such party can block any action of the
other stockholders. Also, the bylaws of a corporation may permit a
stockholder with less than 50 percent of the voting stock to block
any actions taken by the other stockholders in the other entity.
Affiliation exists when the applicant has the power to control a
concern while at the same time another person, or persons, are in
control of the concern at the will of the party or parties with the
power of control.
(ii) Control can arise through stock ownership; occupancy of
director, officer, or key employee positions; contractual or other
business relations; or combinations of these and other factors. A key
employee is an employee who, because of his/her position in the
concern, has a critical influence in or substantive control over the
operations or management of the concern.
(iii) Control can arise through management positions if the voting
stock is so widely distributed that no effective control can be
established.
Example for paragraph (d)(2)(iii). In a corporation where the
officers and directors own various size blocks of stock totaling 40
percent of the corporation's voting stock, but no officer or
director has a block sufficient to give him/her control or the power
to control and the remaining 60 percent is widely distributed with
no individual stockholder having a stock interest greater than 10
percent, management has the power to control. If persons with such
management control of the other entity are controlling principals of
the applicant, the other entity will be deemed an affiliate of the
applicant.
(3) Identity of interest between and among persons. Affiliation can
arise between or among two or more persons with an identity of
interest, such as members of the same family or persons with common
investments. In determining if the applicant controls or is controlled
by a concern, persons with an identity of interest will be treated as
though they were one person.
(i) Spousal affiliation. Both spouses are deemed to own or control
or have the power to control interests owned or controlled by either of
them, unless they are subject to a legal separation recognized by a
court of competent jurisdiction in the United States.
(ii) Kinship affiliation. Immediate family members will be presumed
to own or control or have the power to control interests owned or
controlled by other immediate family members. In this context
``immediate family member'' means father, mother, husband, wife, son,
daughter, brother, sister, father- or mother-in-law, son- or daughter-
in-law, brother- or sister-in-law, step-father or -mother, step-brother
or -sister, step-son or -daughter, half-brother or -sister. This
presumption may be rebutted by showing that:
(A) The family members are estranged;
(B) The family ties are remote;
(C) The family members are not closely involved with each other in
business matters.
Example for paragraph (d)(3)(ii). A owns a controlling interest
in Corporation X. A's sister-in-law, B, has a controlling interest
in a WCS geographic area license application. Because A and B have a
presumptive kinship affiliation, A's interest in Corporation X is
attributable to B, and thus to the applicant, unless B rebuts the
presumption with the necessary showing.
(4) Affiliation through stock ownership. (i) An applicant is
presumed to control or have the power to control a concern if he/she
owns or controls or has the power to control 50 percent or more of its
voting stock.
(ii) An applicant is presumed to control or have the power to
control a concern even though he/she owns, controls, or has the power
to control less than 50 percent of the concern's voting stock, if the
block of stock he/she owns, controls, or has the power to control is
large as compared with any other outstanding block of stock.
(iii) If two or more persons each owns, controls or has the power
to control less
[[Page 9668]]
than 50 percent of the voting stock of a concern, such minority
holdings are equal or approximately equal in size, and the aggregate of
these minority holdings is large as compared with any other stock
holding, the presumption arises that each one of these persons
individually controls or has the power to control the concern; however,
such presumption may be rebutted by a showing that such control or
power to control, in fact, does not exist.
(5) Affiliation arising under stock options, convertible
debentures, and agreements to merge. Stock options, convertible
debentures, and agreements to merge (including agreements in principle)
are generally considered to have a present effect on the power to
control the concern. Therefore, in making a size determination, such
options, debentures, and agreements will generally be treated as though
the rights held thereunder had been exercised. However, neither an
affiliate nor an applicant can use such options and debentures to
appear to terminate its control over another concern before it actually
does so.
Example 1 for paragraph (d)(5). If company B holds an option to
purchase a controlling interest in company A, who holds a
controlling interest in a WCS geographic area license application,
the situation is treated as though company B had exercised its
rights and had become owner of a controlling interest in company A.
The gross revenues of company B must be taken into account in
determining the size of the applicant.
Example 2 for paragraph (d)(5). If a large company, BigCo, holds
70% (70 of 100 outstanding shares) of the voting stock of company A,
who holds a controlling interest in a WCS geographic area license
application, and gives a third party, SmallCo, an option to purchase
50 of the 70 shares owned by BigCo, BigCo will be deemed to be an
affiliate of company A, and thus the applicant, until SmallCo
actually exercises its options to purchase such shares. In order to
prevent BigCo from circumventing the intent of the rule, which
requires such options to be considered on a fully diluted basis, the
option is not considered to have present effect in this case.
Example 3 for paragraph (d)(5). If company A has entered into an
agreement to merge with company B in the future, the situation is
treated as though the merger has taken place.
(6) Affiliation under voting trusts. (i) Stock interests held in
trust shall be deemed controlled by any person who holds or shares the
power to vote such stock, to any person who has the sole power to sell
such stock, and to any person who has the right to revoke the trust at
will or to replace the trustee at will.
(ii) If a trustee has a familial, personal or extra-trust business
relationship to the grantor or the beneficiary, the stock interests
held in trust will be deemed controlled by the grantor or beneficiary,
as appropriate.
(iii) If the primary purpose of a voting trust, or similar
agreement, is to separate voting power from beneficial ownership of
voting stock for the purpose of shifting control of or the power to
control a concern in order that such concern or another concern may
meet the Commission's size standards, such voting trust shall not be
considered valid for this purpose regardless of whether it is or is not
recognized within the appropriate jurisdiction.
(7) Affiliation through common management. Affiliation generally
arises where officers, directors, or key employees serve as the
majority or otherwise as the controlling element of the board of
directors and/or the management of another entity.
(8) Affiliation through common facilities. Affiliation generally
arises where one concern shares office space and/or employees and/or
other facilities with another concern, particularly where such concerns
are in the same or related industry or field of operations, or where
such concerns were formerly affiliated, and through these sharing
arrangements one concern has control, or potential control, of the
other concern.
(9) Affiliation through contractual relationships. Affiliation
generally arises where one concern is dependent upon another concern
for contracts and business to such a degree that one concern has
control, or potential control, of the other concern.
(10) Affiliation under joint venture arrangements. (i) A joint
venture for size determination purposes is an association of concerns
and/or individuals, with interests in any degree or proportion, formed
by contract, express or implied, to engage in and carry out a single,
specific business venture for joint profit for which purpose they
combine their efforts, property, money, skill and knowledge, but not on
a continuing or permanent basis for conducting business generally. The
determination whether an entity is a joint venture is based upon the
facts of the business operation, regardless of how the business
operation may be designated by the parties involved. An agreement to
share profits/losses proportionate to each party's contribution to the
business operation is a significant factor in determining whether the
business operation is a joint venture.
(ii) The parties to a joint venture are considered to be affiliated
with each other.
Subpart E--Application, Licensing, and Processing Rules for WCS
Sec. 27.301 Authorization required.
No person shall use or operate any device for the transmission of
energy or communications by radio in the services authorized by this
part except as provided in this part.
Sec. 27.302 Eligibility.
(a) General. Authorizations will be granted upon proper application
if:
(1) The applicant is qualified under the applicable laws and the
regulations, policies and decisions issued under those laws, including
Sec. 27.12;
(2) There are frequencies available to provide satisfactory
service; and
(3) The public interest, convenience or necessity would be served
by a grant.
(b) Alien Ownership. A WCS authorization may not be granted to or
held by an entity not meeting the requirements of section 310 of the
Communications Act of 1934, as amended, 47 U.S.C. section 310 insofar
as applicable to the particular service in question.
Sec. 27.303 Formal and informal applications.
(a) Except for an authorization under any of the conditions stated
in section 308(a) of the Communications Act of 1934 (47 U.S.C. 308(a)),
the Commission may grant only upon written application received by it,
the following authorization: station licenses; modifications of
licenses; renewals of licenses; transfers and assignments of station
licenses, or any right thereunder.
(b) Except as may be otherwise permitted by this part, a separate
written application shall be filed for each instrument of authorization
requested. Applications may be:
(1) ``Formal applications'' where the Commission has prescribed in
this part a standard form; or
(2) ``Informal applications'' (normally in letter form) where the
Commission has not prescribed a standard form.
(c) An informal application will be accepted for filing only if:
(1) A standard form is not prescribed or clearly applicable to the
authorization requested;
(2) It is a document submitted, in duplicate, with a caption which
indicates clearly the nature of the request, radio service involved,
location of the station, and the application file number (if known);
and
(3) It contains all the technical details and informational
showings required by the rules and states clearly and completely the
facts involved and authorization desired.
[[Page 9669]]
Sec. 27.304 Filing of WCS applications, fees, and numbers of copies.
(a) As prescribed by Sec. 27.307, standard formal application forms
applicable to the WCS may be obtained from either:
(1) Federal Communications Commission, Washington, DC 20554; or
(2) By calling the Commission's Forms Distribution Center, (202)
418-3676.
(b) Applications for the initial provision of WCS service must be
filed on FCC Form 175 in accordance with the rules in Sec. 27.204 and
part 1, subpart Q of this chapter. In the event of mutual exclusivity
between applicants filing FCC Form 175, only auction winners will be
eligible to file subsequent long form applications on FCC Form 600 for
initial WCS licenses. Mutually exclusive applications filed on Form 175
are subject to competitive bidding under those rules.
(c) All applications for WCS radio station authorizations (other
than applications for initial provision of WCS service filed on FCC
Form 175) shall be submitted for filing to: Federal Communications
Commission, Wireless Telecommunications Bureau, 1270 Fairfield Road,
Gettysburg, PA 17325, Attention: WCS Processing Section.
(d) All correspondence or amendments concerning a submitted
application shall clearly identify the name of the applicant, FCC
Account Number or Commission file number (if known) or station call
sign of the application involved, and may be sent directly to the
Wireless Telecommunications Bureau, 1270 Fairfield Road, Gettysburg, PA
17325, Attention: WCS Processing Section.
(e) Except as otherwise specified, all applications, amendments,
correspondence, pleadings and forms (with the exception of FCC Form
175, which is to be filed electronically pursuant to Sec. 27.204) shall
be submitted on one original paper copy and with a 3.5-inch floppy disk
containing all attachments, and any other supporting documentation in
separate ASCII text (.TXT) file formats. Those filing any amendments,
correspondence, pleadings, and forms must simultaneously submit the
original hard copy which must be stamped ``original''. In addition to
the original hard copy, those filing pleadings, including pleadings
under Sec. 1.2108 of this chapter shall also submit 2 paper copies as
provided in Sec. 1.51 of this chapter. Applicants who file
electronically will not be required to follow these procedures, but
instead are required to follow all instructions for electronic filing
detailed by the FCC in any subsequent public notices.
(f) Subsequent application by auction winners or non-mutually
exclusive applicants for WCS radio station(s) under this part 27. FCC
Form 600 shall be submitted by each auction winner for each WCS license
applied for on FCC Form 175. In the event that mutual exclusivity does
not exist between applicants filing FCC Form 175, the Commission will
so inform the applicant and the applicant will also file FCC Form 600.
Blanket licenses are granted for each market frequency block.
Applications for individual sites are not needed and will not be
accepted. See Sec. 27.11.
Sec. 27.305 [Reserved].
Sec. 27.306 Miscellaneous forms.
(a) Renewal of station licenses. Except for renewal of special
temporary authorizations, FCC Form 405 (``Application for Renewal of
Station License'') must be filed in duplicate by the licensee between
thirty (30) and sixty (60) days prior to the expiration date of the
license sought to be renewed.
(b) Assignment of authorization or transfer of control. Assignments
of authorization or transfers of control applications are to be filed
on the FCC Form 490, ``Application for Assignment of Authorization or
Consent to Transfer of Control of License''.
Sec. 27.307 General application requirements.
(a) Each application (including applications filed on Forms 175 and
600) for a radio station authorization or for consent to assignment or
transfer of control in the WCS shall disclose fully the real party or
parties in interest and must include the following information:
(1) A list of its subsidiaries, if any. Subsidiary means any
business five per cent or more whose stock, warrants, options or debt
securities are owned by the applicant or an officer, director,
stockholder or key management personnel of the applicant. This list
must include a description of each subsidiary's principal business and
a description of each subsidiary's relationship to the applicant;
(2) A list of its affiliates, if any. Affiliate is defined in
Sec. 27.210(d);
(3) A list of the names, addresses, citizenship and principal
business of any person holding five percent or more of each class of
stock, warrants, options or debt securities together with the amount
and percentage held, and the name, address, citizenship and principal
place of business of any person on whose account, if other than the
holder, such interest is held. If any of these persons are related by
blood or marriage, include such relationship in the statement;
(4) In the case of partnerships, the name and address of each
partner, each partner's citizenship and the share or interest
participation in the partnership. This information must be provided for
all partners, regardless of their respective ownership interests in the
partnership. This information must be included an exhibit to the
application; and
(b) Each application for a radio station authorization in the WCS
must:
(1) Submit the information required by the Commission's rules,
requests, and application forms;
(2) Be maintained by the applicant substantially accurate and
complete in all significant respects in accordance with the provisions
of Sec. 1.65 of this chapter; and
(3) Show compliance with and make all special showings that may be
applicable.
(c) Where documents, exhibits, or other lengthy showings already on
file with the Commission contain information which is required by an
application form, the application may specifically refer to such
information, if:
(1) The information previously filed is over one A4 (21 cm x 29.7
cm) or 8.5 x 11 inch (21.6 cm x 27.9 cm) page in length, and all
information referenced therein is current and accurate in all
significant respects under Sec. 1.65 of this chapter; and
(2) The reference states specifically where the previously filed
information can actually be found, including mention of:
(i) The station call sign or application file number whenever the
reference is to station files or previously filed applications; and
(ii) The title of the proceeding, the docket number, and any legal
citations, whenever the reference is to a docketed proceeding. However,
questions on an application form which call for specific technical
data, or which can be answered by a ``yes'' or ``no'' or other short
answer shall be answered as appropriate and shall not be cross-
referenced to a previous filing.
(d) In addition to the general application requirements of subpart
F of this part and Sec. 27.204, applicants shall submit any additional
documents, exhibits, or signed written statements of fact:
(1) As may be required by these rules; and
(2) As the Commission, at any time after the filing of an
application and during the term of any authorization, may require from
any applicant,
[[Page 9670]]
permittee, or licensee to enable it to determine whether a radio
authorization should be granted, denied, or revoked.
(e) Except when the Commission has declared explicitly to the
contrary, an informational requirement does not in itself imply the
processing treatment of decisional weight to be accorded the response.
Sec. 27.308 Technical content of applications.
All applications required by this part shall contain all technical
information required by the application forms or associated public
notice(s). Applications other than initial applications for a WCS
license must also comply with all technical requirements of the rules
governing the WCS (see subparts C and D of this part as appropriate).
Sec. 27.310 Waiver of rules.
(a) Request for waivers. (1) Waivers of these rules may be granted
upon application or by the Commission on its own motion. Requests for
waivers shall contain a statement of reasons sufficient to justify a
waiver. Waivers will not be granted except upon an affirmative showing:
(i) That the underlying purpose of the rule will not be served, or
would be frustrated, by its application in a particular case, and that
grant of the waiver is otherwise in the public interest; or
(ii) That the unique facts and circumstances of a particular case
render application of the rule inequitable, unduly burdensome or
otherwise contrary to the public interest. Applicants must also show
the lack of a reasonable alternative.
(2) If the information necessary to support a waiver request is
already on file, the applicant may cross-reference to the specific
filing where it may be found.
(b) Denial of waiver, alternate showing required. If a waiver is
not granted, the application will be dismissed as defective unless the
applicant has also provided an alternative proposal which complies with
the Commission's rules (including any required showings).
Sec. 27.311 Defective applications.
(a) Unless the Commission shall otherwise permit, an application
will be unacceptable for filing and will be returned to the applicant
with a brief statement as to the omissions or discrepancies if:
(1) The application is defective with respect to completeness of
answers to questions, informational showings, execution, or other
matters of a formal character; or
(2) The application does not comply with the Commission's rules,
regulations, specific requirements for additional information or other
requirements. See also Sec. 27.204.
(b) Some examples of common deficiencies which result in defective
applications under paragraph (a) of this section are:
(1) The application is not filled out completely and signed; or
(2) The application (other than an application filed on FCC Form
175) does not include an environmental assessment as required for an
action that may have a significant impact upon the environment, as
defined in Sec. 1.1307 of this chapter.
(3) The application is filed prior to the public notice issued
under Sec. 27.316 announcing the application filing date for the
relevant auction or after the cutoff date prescribed in that public
notice;
(c) If an applicant is requested by the Commission to file any
documents or any supplementary or explanatory information not
specifically required in the prescribed application form, a failure to
comply with such request within a specified time period will be deemed
to render the application defective and will subject it to dismissal.
Sec. 27.312 Inconsistent or conflicting applications.
While an application is pending and undecided under this part 27,
no subsequent inconsistent or conflicting application may be filed by
the same applicant, his successor or assignee, or on behalf or for the
benefit of the same applicant, his successor or assignee.
Sec. 27.313 Amendment of applications for Wireless Communications
Service (other than applications filed on FCC Form 175).
This section applies to all applications for Wireless
Communications Service other than applications filed on FCC Form 175.
(a) Amendments as of right. A pending application may be amended as
a matter of right if the application has not been designated for
hearing.
(1) Amendments shall comply with Sec. 27.319, as applicable; and
(2) Amendments which resolve interference conflicts or amendments
under Sec. 27.319 may be filed at any time.
(b) The Commission or the presiding officer may grant requests to
amend an application designated for hearing only if a written petition
demonstrating good cause is submitted and properly served upon the
parties of record.
(c) Major amendments, minor amendments. The Commission will
classify all amendments as minor, unless there is a substantial change
in ownership or control. Such an amendment shall be deemed to be a
major amendment subject to Sec. 27.316.
(d) If a petition to deny (or other formal objection) has been
filed, any amendment, requests for waiver, (or other written
communications) shall be served on the petitioner by hand, unless
waiver of this requirement is granted pursuant to paragraph (e) of this
section. See also Sec. 1.2108 of this chapter.
(e) The Commission may waive the service requirements of paragraph
(d) of this section and prescribe such alternative procedures as may be
appropriate under the circumstances to protect petitioners' interests
and to avoid undue delay in a proceeding, if an applicant submits a
request for waiver which demonstrates that the service requirement is
unreasonably burdensome.
(f) Any amendment to an application shall be signed and shall be
submitted in the same manner, and with the same number of copies, as
was the original application. Amendments may be made in letter form if
they comply in all other respects with the requirements of this
chapter.
(g) An application will be considered to be a newly filed
application if it is amended by a major amendment (as defined in this
section), except in the following circumstances:
(1) The amendment reflects only a change in ownership or control
found by the Commission to be in the public interest; or
(2) The amendment corrects typographical transcription, or similar
clerical errors which are clearly demonstrated to be mistakes by
reference to other parts of the application, and whose discovery does
not create new or increased frequency conflicts.
Sec. 27.314 Application for temporary authorizations.
In circumstances requiring immediate or temporary use of
facilities, request may be made for special temporary authority (STA)
to operate new or modified equipment. Such requests may be submitted as
informal applications (see Sec. 22.105 of this chapter) and must
contain complete details about the proposed operation and the
circumstances that fully justify and necessitate the grant of STA. Such
requests should be filed in time to be received by the FCC at least 10
days prior to the date of proposed operation or, where an extension is
sought, 10 days prior to the expiration date of the existing STA.
Requests received less
[[Page 9671]]
than 10 days prior to the desired date of operation may be given
expedited consideration only if compelling reasons are given, in
writing, for the delay in submitting the request. Otherwise, such late-
filed requests are considered in turn, but action might not be taken
prior to the desired date of operation. Requests for STAs must be
accompanied by the proper filing fee.
(a) Grant without Public Notice. STAs may be granted without being
listed in a Public Notice, or prior to 30 days after such listing, if:
(1) The STA is to be valid for 30 days or less and the applicant
does not plan to file an application for regular authorization of the
subject operation;
(2) The STA is to be valid for 60 days or less, pending the filing
of an application for regular authorization of the subject operation;
(3) The STA is to allow interim operation to facilitate completion
of authorized construction or to provide substantially the same service
as previously authorized; or
(4) The STA is made upon a finding that there are extraordinary
circumstances requiring operation in the public interest and that delay
in the institution of such service would seriously prejudice the public
interest.
(b) Limit on STA term. The FCC may grant STAs valid for a period
not to exceed 180 days under the provisions of section 309(f) of the
Communications Act of 1934, as amended, (47 U.S.C. section 309(f)) if
extraordinary circumstances so require, and pending the filing of an
application for regular operation. The FCC may grant extensions of STAs
for a period of 180 days, but the applicant must show that
extraordinary circumstances warrant such an extension.
Sec. 27.315 Receipt of application; applications in the Wireless
Communications Service filed on FCC Form 175 and other applications in
the WCS Service.
(a) All applications for WCS filed pursuant to Sec. 27.304 are
given a file number. The assignment of a file number to an application
is merely for administrative convenience and does not indicate the
acceptance of the application for filing and processing. Such
assignment of a file number will not preclude the subsequent return or
dismissal of the application if it is found to be defective or not in
accordance with the Commission's rules.
(b) Acceptance of an application for filing merely means that it
has been the subject of a preliminary review as to completeness. Such
acceptance will not preclude the subsequent return or dismissal of the
application if it is found to be defective or not in accordance with
the Commission's rules.
Sec. 27.316 Public notice period.
(a) At regular intervals, the Commission may issue a public notice
listing:
(1) The acceptance for filing of all applications and major
amendments thereto;
(2) Significant Commission actions concerning applications listed
as acceptable for filing;
(3) Information which the Commission in its discretion believes of
public significance. Such notices are solely for the purpose of
informing the public and do not create any rights in an applicant or
any other person; or
(4) Special environmental considerations as required by part 1 of
this chapter.
(b) The Commission will not grant any application until expiration
of a period of seven (7) days following the issuance date of a public
notice listing the application, or any major amendments thereto, as
acceptable for filing. Provided, that the Commission will not grant an
application filed on Form 600 filed either by a winning bidder or by an
applicant whose Form 175 application is not mutually exclusive with
other applicants, until the expiration of a period of forty (40) days
following the issuance of a public notice listing the application, or
any major amendments thereto, as acceptable for filing. See also
Sec. 27.207.
(c) As an exception to paragraphs (a)(1), (a)(2) and (b) of this
section, the public notice provisions are not applicable to
applications:
(1) For authorization of a minor technical change in the facilities
of an authorized station where such a change would not be classified as
a major amendment (as defined by Sec. 27.313) were such a change to be
submitted as an amendment to a pending application;
(2) For issuance of a license subsequent to a radio station
authorization or, pending application for a grant of such license, any
special or temporary authorization to permit interim operation to
facilitate completion of authorized construction or to provide
substantially the same service as would be authorized by such license;
(3) For temporary authorization pursuant to Sec. 27.314;
(4) For an authorization under any of the proviso clauses of
section 308(a) of the Communications Act of 1934 (47 U.S.C. section
308(a));
(5) For consent to an involuntary assignment or transfer of control
of a radio authorization; or
(6) For consent to a voluntary assignment or transfer of control of
a radio authorization, where the assignment or transfer does not
involve a substantial change in ownership or control.
Sec. 27.317 Dismissal and return of applications.
(a) Any application may be dismissed without prejudice as a matter
of right if the applicant requests its dismissal prior to designation
for hearing or, in the case of applications filed on Forms 175 and 175-
S, prior to auction. An applicant's request for the return of his
application after it has been accepted for filing will be considered to
be a request for dismissal without prejudice. Applicants requesting
dismissal of their applications are also subject to Sec. 27.203.
(b) A request to dismiss an application without prejudice will be
considered after designation for hearing only if:
(1) A written petition is submitted to the Commission and is
properly served upon all parties of record; and
(2) The petition complies with the provisions of this section and
demonstrates good cause.
(c) The Commission will dismiss an application for failure to
prosecute or for failure to respond substantially within a specified
time period to official correspondence or requests for additional
information. Dismissal shall be without prejudice if made prior to
designation for hearing or prior to auction, but dismissal may be made
with prejudice for unsatisfactory compliance or after designation for
hearing or after the applicant is notified that it is the winning
bidder under the auction process.
Sec. 27.319 Ownership changes and agreements to amend or to dismiss
applications or pleadings.
(a) Applicability. Subject to the provisions of Sec. 27.204
(Bidding Application and Certification Procedures; Prohibition of
Collusion), this section applies to applicants and all other parties
interested in pending applications who wish to resolve contested
matters among themselves with a formal or an informal agreement or
understanding. This section applies only when the agreement or
understanding will result in:
(1) A major change in the ownership of an applicant to which
Secs. 27.313(c) and 27.313(g) apply or which would cause the applicant
to lose its status as a designated entity under Sec. 27.210(b), or
[[Page 9672]]
(2) The individual or mutual withdrawal, amendment or dismissal of
any pending application, amendment, petition or other pleading.
(b) The provisions of Sec. 27.207 will apply in the event of the
filing of petitions to deny or other pleadings or informal objections
filed against WCS applications. The provisions of Sec. 27.317 will
apply in the event of dismissal of WCS applications.
Sec. 27.320 Opposition to applications.
(a) Petitions to deny (including petitions for other forms of
relief) and responsive pleadings for Commission consideration must
comply with Sec. 27.207 and must:
(1) Identify the application or applications (including applicant's
name, station location, Commission file numbers and radio service
involved) with which it is concerned;
(2) Be filed in accordance with the pleading limitations, filing
periods, and other applicable provisions of Secs. 1.41 through 1.52 of
this chapter except where otherwise provided in Sec. 27.207;
(3) Contain specific allegations of fact which, except for facts of
which official notice may be taken, shall be supported by affidavit of
a person or persons with personal knowledge thereof, and which shall be
sufficient to demonstrate that the petitioner (or respondent) is a
party in interest and that a grant of, or other Commission action
regarding, the application would be prima facie inconsistent with the
public interest;
(4) Be filed within five (5) days after the date of public notice
announcing the acceptance for filing of any such application or major
amendment thereto (unless the Commission otherwise extends the filing
deadline); and
(5) Contain a certificate of service showing that it has been hand
delivered to the applicant no later than the date of filing thereof
with the Commission.
(b) A petition to deny a major amendment to a previously filed
application may only raise matters directly related to the amendment
which could not have been raised in connection with the underlying,
previously filed application. This does not apply to petitioners who
gain standing because of the major amendment.
(c) Parties who file frivolous petitions to deny may be subject to
sanctions including monetary forfeitures, license revocation, if they
are FCC licensees, and may be prohibited from participating in future
auctions.
Sec. 27.321 Mutually exclusive applications.
(a) Two or more pending applications are mutually exclusive if the
grant of one application would effectively preclude the grant of one or
more of the others under the Commission's rules governing the Wireless
Communications Services involved. The Commission uses the general
procedures in this section for processing mutually exclusive
applications in the Wireless Communications Services.
(b) An application will be entitled to comparative consideration
with one or more conflicting applications only if the Commission
determines that such comparative consideration will serve the public
interest.
Sec. 27.322 Consideration of applications.
(a) Applications for an instrument of authorization will be granted
if, upon examination of the application and upon consideration of such
other matters as it may officially notice, the Commission finds that
the grant will serve the public interest, convenience, and necessity.
See also Sec. 1.2108 of this chapter.
(b) The grant shall be without a formal hearing if, upon
consideration of the application, any pleadings or objections filed, or
other matters which may be officially noticed, the Commission finds
that:
(1) The application is acceptable for filing, and is in accordance
with the Commission's rules, regulations, and other requirements;
(2) The application is not subject to a post-auction hearing or to
comparative consideration pursuant to Sec. 27.322 with another
application(s);
(3) The applicant certifies that the operation of the proposed
facility would not cause harmful electromagnetic interference to
another authorized station;
(4) There are no substantial and material questions of fact
presented; and
(5) The applicant is qualified under current FCC regulations and
policies.
(c) If the Commission should grant without a formal hearing an
application for an instrument of authorization which is subject to a
petition to deny filed in accordance with Sec. 27.319, the Commission
will deny the petition by the issuance of a concise statement for the
reason(s) for the denial and dispose of all substantial issues raised
by the petition.
(d) Whenever the Commission, without a formal hearing, grants any
application in part, or subject to any terms or conditions other than
those normally applied to applications of the same type, it shall
inform the applicant of the reasons therefor, and the grant shall be
considered final unless the Commission should revise its action (either
by granting the application as originally requested, or by designating
the application for a formal evidentiary hearing) in response to a
petition for reconsideration which:
(1) Is filed by the applicant within thirty (30) days from the date
of the letter or order giving the reasons for the partial or
conditioned grant;
(2) Rejects the grant as made and explains the reasons why the
application should be granted as originally requested; and,
(3) Returns the instrument of authorization.
(e) The Commission will designate an application for a formal
hearing, specifying with particularity the matters and things in issue,
if, upon consideration of the application, any pleadings or objections
filed, or other matters which may be officially noticed, the Commission
determines that:
(1) A substantial and material question of fact is presented (see
also section 1.2108 of this chapter);
(2) The Commission is unable for any reason to make the findings
specified in paragraph (a) of this section and the application is
acceptable for filing, complete, and in accordance with the
Commission's rules, regulations, and other requirements; or
(3) The application is entitled to concurrent consideration (under
section 27.321) with another application (or applications).
(f) The Commission may grant, deny or take other action with
respect to an application designated for a formal hearing pursuant to
paragraph (e) of this section or part 1 of this chapter.
(g) Reconsideration or review of any final action taken by the
Commission will be in accordance with part 1, subpart A of this
chapter.
Sec. 27.323 [Reserved]
Sec. 27.324 Transfer of control or assignment of station
authorization.
(a) Authorizations shall be transferred or assigned to another
party, voluntarily (for example, by contract) or involuntarily (for
example, by death, bankruptcy, or legal disability), directly or
indirectly or by transfer of control of any corporation holding such
authorization, only upon application and approval by the Commission. A
transfer of control or assignment of station authorization in the
Wireless Communications Service is also subject to section 27.209.
(1) A change from less than 50% ownership to 50% or more ownership
shall always be considered a transfer of control.
(2) In other situations a controlling interest shall be determined
on a case-
[[Page 9673]]
by-case basis considering the distribution of ownership, and the
relationships of the owners, including family relationships.
(b) Form required:
(1) Assignment.
(i) FCC Form 490 shall be filed to assign a license or permit.
(ii) In the case of involuntary assignment, FCC Form 490 shall be
filed within 30 days of the event causing the assignment.
(2) Transfer of control.
(i) FCC Form 490 shall be submitted in order to transfer control of
a corporation holding a license or permit.
(ii) In the case of involuntary transfer of control, FCC Form 490
shall be filed within 30 days of the event causing the transfer.
(3) Notification of completion. The Commission shall be notified by
letter of the date of completion of the assignment or transfer of
control.
(4) If the transfer of control of a license is approved, the new
licensee is held to the original renewal requirement of Sec. 27.14.
(c) In acting upon applications for transfer of control or
assignment, the Commission will not consider whether the public
interest, convenience, and necessity might be served by the transfer or
assignment of the authorization to a person other than the proposed
transferee or assignee.
(d) Applicants seeking to transfer their licenses within three
years after the initial license grant date are required to file,
together with their transfer application, the associated contracts for
sale, option agreements, management agreements, and all other documents
disclosing the total consideration to be received in return for the
transfer of the license.
(e) Partial assignment of authorization. If the authorization for
some, but not all, of the facilities of a Wireless Communications
Service station is assigned to another party, voluntarily or
involuntarily, such action is a partial assignment of authorization.
(f) To request FCC approval of a partial assignment of
authorization, the following must be filed in addition to the forms
required by paragraph (b) of this section:
(g) The assignee must apply for authority (FCC Form 600) to operate
a new station including the facilities for which authorization is
assigned, or to modify the assignee's existing station to include the
facilities for which authorization was assigned.
Sec. 27.325 Termination of authorization.
(a) All authorizations shall terminate on the date specified on the
authorization, unless a timely application for renewal has been filed.
(b) If no application for renewal has been made before the
authorization's expiration date, a late application for renewal will
only be considered if it is filed within 30 days of the expiration date
and shows that the failure to file a timely application was due to
causes beyond the applicant's control. Service to subscribers need not
be suspended while a late filed renewal application is pending, but
such service shall be without prejudice to Commission action on the
renewal application and any related sanctions. See also Sec. 27.14
(Criteria for Comparative Renewal Proceedings).
(c) Special Temporary Authority. A special temporary authorization
shall automatically terminate upon failure to comply with the
conditions in the authorization.
PART 97--AMATEUR RADIO SERVICE
1. The authority citation for part 97 continues to read as follows:
Authority: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303.
Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47
U.S.C. 151-155, 301-609, unless otherwise noted.
2. Section 97.303(j) is revised to read as follows:
Sec. 97.303 Frequency sharing requirements.
* * * * *
(j) In the 13 cm band:
(1) The amateur service is allocated on a secondary basis in all
ITU Regions. In ITU Region 1, no amateur station shall cause harmful
interference to, and shall be not protected from interference due to
the operation of, stations authorized by other nations in the fixed and
mobile services. In ITU Regions 2 and 3, no amateur station shall cause
harmful interference to, and shall not be protected from interference
due to the operation of, stations authorized by other nations in the
fixed, mobile and radiolocation services.
(2) In the United States:
(i) The 2300-2305 MHz segment is allocated to the amateur service
on a secondary basis. (Currently the 2300-2305 MHz segment is not
allocated to any service on a primary basis.);
(ii) The 2305-2310 MHz segment is allocated to the amateur service
on a secondary basis to the fixed, mobile, and radiolocation services;
(iii) The 2390-2400 MHz segment is allocated to the amateur service
on a primary basis; and
(iv) The 2400-2402 MHz segment is allocated to the amateur service
on a secondary basis. (Currently the 2400-2402 MHz segment is not
allocated to any service on a primary basis.) The 2402-2417 MHz segment
is allocated to the amateur service on a primary basis. The 2417-2450
MHz segment is allocated to the amateur service on a co-secondary basis
with the Government radiolocation service. Amateur stations operating
within the 2400-2450 MHz segment must accept harmful interference that
may be caused by the proper operation of industrial, scientific, and
medical devices operating within the band.
[FR Doc. 97-5128 Filed 2-28-97; 8:45 am]
BILLING CODE 6712-01-P