[Federal Register Volume 62, Number 64 (Thursday, April 3, 1997)]
[Proposed Rules]
[Pages 16004-16007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8013]



  Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / 
Proposed Rules  

[[Page 16004]]



FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 90

[PR Docket No. 89-552, GN Docket No. 93-252, PP Docket No. 93-253; FCC 
97-57]


Provision for the Use of the 220-222 MHz Band by the Private Land 
Mobile Radio Service; Implementation of Sections 3(n) and 332 of the 
Communications Act Regulatory Treatment of Mobile Services; and 
Implementation of Section 309(j) of the Communications Act--Competitive 
Bidding

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission adopts a Third Report and Order and Fifth 
Notice of Proposed Rulemaking regarding the use of the 220-222 MHz Band 
(220 MHz service) by the Private Land Mobile Radio Service. The Third 
Report and Order portion of this decision is summarized elsewhere in 
this edition of the Federal Register. The Fifth Notice of Proposed 
Rulemaking (Fifth NPRM) seeks comment on various issues related to the 
partitioning of 220 MHz licenses and whether to permit full 
partitioning and disaggregation in the 220 MHz service. This action is 
taken to establish a record from which to consider the specific rules 
that should govern partitioning and the benefits and drawbacks of full 
partitioning and disaggregation, and to reach an ultimate decision.

DATES: Comments are due on or before April 15, 1997, and reply comments 
are due on or before April 30, 1997. Written comments by the public on 
the proposed and/or modified information collections are due June 2, 
1997.

ADDRESSES: Federal Communications Commission, Washington, DC 20554. In 
addition to filing comments with the Secretary, a copy of any comments 
on the information collections contained herein should be submitted to 
Dorothy Conway, Federal Communications Commission, Room 234, 1919 M 
Street, NW, Washington, DC 20554, or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Mary Woytek, (202) 418-1310, or Frank 
Stilwell, (202) 418-0660, Wireless Telecommunications Bureau. For 
additional information concerning the information collections contained 
in this Fifth NPRM, contact Dorothy Conway at (202) 418-0217, or via 
the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Fifth Notice of 
Proposed Rulemaking segment of the Third Report and Order and Fifth 
Notice of Proposed Rulemaking in PR Docket No. 89-552, FCC 97-57, 
adopted February 19, 1997, and released March 12, 1997. The Third 
Report and Order portion of this decision is summarized elsewhere in 
this edition of the Federal Register. The complete text of this 
decision is available for inspection and copying during normal business 
hours in the FCC Reference Center (Room 239), 1919 M Street, NW, 
Washington, DC 20554 and also may be purchased from the Commission's 
copy contractor, International Transcription Service, (202) 857-3800, 
2100 M Street, NW, Suite 140, Washington, DC 20037.

Paperwork Reduction Act

    This Fifth NPRM contains either a proposed or modified information 
collection. The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public to comment on the 
information collections contained in this Fifth NPRM, as required by 
the Paperwork Reduction Act of 1995, Public Law 104-13. Public comments 
are due June 2, 1997. Comments should address: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the Commission, including whether the information 
shall have practical utility; (b) the accuracy of the Commission's 
burden estimates; (c) ways to enhance the quality, utility, and clarity 
of the information collected; and (d) ways to minimize the burden of 
the collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    OMB Approval Number: New Collection (which adds respondents to 
three existing collections 3060-0105, FCC 430; 3060-0319, FCC 490; 
3060-0623, FCC 600).
    Title: Amendment of Part 90 of the Commission's Rules to Provide 
for the Use of the 220-222 MHz Band by the Private Land Mobile Radio 
Service.
    Form No.: FCC Forms 430, 490, and 600.
    Type of Review: New collection.
    Respondents: 220 MHz applicants and potential applicants and 
licensees.
    Number of Respondents; Estimated Time Per Response and Total Annual 
Burden: If the proposed changes in the Fifth NPRM are adopted the 
respondents and burden for the FCC Form's 430, 490 and 600 as follows:
    The FCC 430 has 1,900 respondents, to be increased to 23,050; the 
estimated time for completion is 2 hours per respondent. The total 
annual burden for the FCC 430 would increase to 46,100 hours. The Form 
490 has 5,000 respondents, to be increased to 28,500; the estimated 
time for completion is 3 hours per respondent. The total annual burden 
for the FCC 490 would increase to 85,500. The FCC 600 has 194,769 
respondents, which may be increased by the Third Report and Order to 
197,777, and further increased to 244,777 by the Fifth NPRM. The 
estimated time for completion is 4 hours per respondent. The total 
annual burden is 779,076. This figure will be increased to 791,108 by 
an information collection adopted in the Third Report and Order portion 
of this decision and to 979,108 hours if the changes proposed in the 
Fifth NPRM are adopted.
    Needs and Uses: The information will be used by Commission 
personnel to determine if the licensee is a qualifying entity to obtain 
a partitioned license or disaggregated spectrum. Additionally, the 
information will be used by Commission personnel to determine who is 
using spectrum and thus maintain the integrity of the spectrum.

 Synopsis of the Fifth Notice of Proposed Rulemaking

    1. The Commission has concluded in the Third Report and Order that 
it will permit any holder of a Phase II Economic Area (EA), nationwide, 
or Regional 220 MHz license to partition portions of its 
authorization.1 In this Fifth NPRM, the Commission considers the 
issue of full partitioning for Phase I nationwide 220 MHz licensees and 
the establishment of disaggregation rules for the 220 MHz service. As 
we indicated in the recent Partitioning Report and Order (which 
expanded the Commission's rules to permit geographic partitioning and 
disaggregation for all broadband PCS licensees), the Commission 
believes that partitioning and disaggregation are an effective means of 
providing broadband PCS licensees with the flexibility they need to 
tailor their service offerings to meet market demands.2 The 
Partitioning Report and Order further concluded that partitioning and 
disaggregation may be used to overcome entry barriers through the 
creation of smaller licenses that require less capital, thereby 
facilitating greater participation by small businesses, rural telephone 
companies, and minority- and female-owned

[[Page 16005]]

businesses.3 The Commission seeks comment on whether these 
benefits similarly justify the extension of partitioning rules to Phase 
I nationwide licensees and the establishment of disaggregation rules 
for the 220 MHz service.
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    \1\ The Commission refers to such licenses as ``Covered Phase II 
licenses.''
    \2\Report and Order and Further Notice of Proposed Rule Making 
in GN Docket No. 96-113, 62 FR 653 (January 6, 1997).
    \3\ Id.
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    2. The Commission seeks comment as to how various requirements 
imposed on covered Phase II licensees may be modified if such licensees 
partition their authorization. The Commission also invites comment as 
to whether partitioning of 220 MHz Phase I nationwide licenses should 
be permitted in a manner similar to the rules for partitioning that 
have been adopted for broadband PCS licensees. The Commission 
tentatively concludes that it should not adopt partitioning for those 
Phase II licensees that are not covered Phase II licensees and non-
nationwide Phase I licensees because such licenses are awarded on a 
site-specific rather than for a geographic area basis. In addition, the 
Commission seeks comment as to whether all Phase I and Phase II 220 MHz 
licensees should be permitted to disaggregate their licensed spectrum. 
Since the 220 MHz service includes non-commercial uses by Public Safety 
and EMRS entities, the Commission seeks comment as to whether 
additional rules for partitioning and disaggregation should be adopted 
to address the use of the 220 MHz service for possible commercial and 
non-commercial services.
    3. The full text of this Fifth NPRM solicits comment on specific 
aspects of partitioning and disaggregation, which will need to be 
addressed if the Commission decides to adopt partitioning for Phase I 
nationwide licensees and disaggregation for all 220 MHz licensees. For 
example, Phase I nationwide licensees are not currently permitted to 
assign or transfer a license before the licensee has constructed at 
least 40 percent of the proposed system. The Commission therefore seeks 
comment as to whether a Phase I nationwide licensee should be permitted 
to partition or disaggregate prior to constructing at least 40 percent 
of its proposed system. The Commission also seeks comment as to whether 
there are technical or regulatory constraints unique to the 220 MHz 
service that would render partitioning or disaggregation impractical or 
administratively burdensome.
    4. Covered Phase II 220 MHz service areas are based on nationwide, 
Economic Areas or Regional Areas. In addition, there are Phase I 
nationwide licenses in the 220 MHz service. The Commission tentatively 
concludes that a flexible approach to partitioned areas, similar to the 
one adopted for broadband PCS, is appropriate for the 220 MHz service. 
The Commission therefore proposes to permit partitioning of Phase I 
nationwide and covered Phase II 220 MHz licenses based on any license 
area defined by the parties. Comment is invited on this proposal, and 
in particular on whether this proposal is consistent with the 
Commission's licensing of the 220 MHz service, and whether there are 
any technical or other issues unique to the 220 MHz service that might 
impede the adoption of a flexible approach to defining the partitioned 
license area.
    5. The Commission next seeks comment as to whether, if 
disaggregation in the 220 MHz service is permitted, minimum 
disaggregation standards are necessary. The Commission seeks to 
determine whether, given the unique characteristics of the 220 MHz 
service, technological and administrative considerations warrant the 
adoption of such standards. The Commission seeks comment as to whether 
to adopt standards which would be flexible enough to encourage 
disaggregation while providing a standard which is consistent with its 
technical rules and by which it would be able to track disaggregated 
spectrum and review disaggregation proposals in an expeditious fashion.
    6. The Commission further seeks comment regarding whether combined 
partitioning and disaggregation should be permitted for the 220 MHz 
service. The Commission tentatively concludes that it should permit 
such combinations in order to provide parties the flexibility they need 
to respond to market forces and demands for service relevant to their 
particular locations and service offerings.
    7. The Commission seeks comment as to whether it should adopt rules 
for covered Phase II licensees to establish dual construction options 
and attendant requirements for 220 MHz service partitioners and 
partitionees, similar to those adopted for broadband PCS. Under the 
first option, the partitionee certifies that it will satisfy the same 
construction requirements as the original licensee. The partitionee 
then must meet the prescribed service requirements in its partitioned 
area while the partitioner is responsible for meeting those 
requirements in the area it has retained. Under the second option, the 
original licensee certifies that it has already met or will meet its 5-
year construction requirement and that it will meet the 10-year 
requirement for the entire market involved. Because the original 
licensee retains the responsibility for meeting the construction 
requirements for the entire market, the partitionee is permitted to 
comply with a less rigorous construction requirement--the partitionee 
must only meet a substantial service requirement for its partitioned 
license area at the end of the 10-year license term. The Commission 
particularly seeks comment as to the appropriateness of the lesser 
construction requirement for the second option.
    8. The Commission invites comment as to whether to adopt rules for 
covered Phase II licensees similar to the disaggregation rules adopted 
for broadband PCS. Under this certification approach, the 
disaggregating parties would be required to submit a certification, 
signed by both the disaggregator and disaggregatee, stating whether one 
or both of the parties will retain responsibility for meeting the 5- 
and 10-year construction requirements for the 220 MHz market involved. 
If one party takes responsibility for meeting the construction 
requirements, then that party would be subject to license forfeiture 
for failing to meet the construction requirements, but such a failure 
would not affect the status of the other party's license. If both 
parties agree to share the responsibility for meeting the construction 
requirements, then both parties' licenses would be subject to 
forfeiture if either party fails to meet the construction requirements.
    9. The Commission proposes rules for licensees other than covered 
Phase II licensees that differ from the approach taken in the 
Partitioning Report and Order. Phase I non-nationwide licensees and 
Phase II licensees authorized on Public Safety or EMRS channels are not 
authorized to operate within a particular geographic area, but instead 
are authorized to construct a single land mobile base station for base 
and mobile operations. Phase I non-nationwide licensees must construct 
their systems, having all specified base stations constructed with all 
channels, and place their systems in operation within eight months of 
the initial license grant.
    10. The Commission proposes that Phase I non-nationwide licensees 
be permitted to disaggregate their licensed spectrum only after they 
have met the applicable construction deadline. The Commission also 
proposes that Phase II licensees operating on Public Safety or EMRS 
channels should be permitted to disaggregate their licensed spectrum 
only after they have met the applicable construction deadline. Since 
the construction deadline would therefore

[[Page 16006]]

be met before any disaggregation is allowed, no construction 
requirement would be imposed on a disaggregatee. Comment is solicited 
on these proposals.
    11. The Commission next tentatively concludes that a disaggregatee 
obtaining spectrum from a Phase I nationwide licensee should be 
required to meet the same two-, four-, six-, and 10-year construction 
requirements as the original licensee. The disaggregatee would be 
required to meet the same two-, four-, six-, and 10-year requirements 
as the original licensee for the spectrum it obtains. The Commission 
seeks comment on this tentative conclusion.
    12. Because the construction requirements for Phase I nationwide 
licensees differ so markedly from those pertaining to Phase II 
nationwide licensees or licensees in other services such as broadband 
PCS or GWCS, it does not appear, as a practical matter, to be possible 
to have similar construction options for Phase I nationwide 
partitionees. Given the difficulties created by these construction 
requirements, the Commission seeks comment on whether partitioning of 
Phase I nationwide licenses should be permitted. If such partitioning 
is allowed, the Commission seeks comment on what construction 
requirements could be imposed on the original licensee and any 
partitionees. In light of the unique construction requirements imposed 
on Phase I nationwide licensees, the Commission also seeks comment on 
what type of construction requirements should be imposed on Phase I 
licensees and their partitionees and disaggregatees if a Phase I 
nationwide license is both partitioned and disaggregated.
    13. Regarding the license term, the Commission seeks comment as to 
whether its 220 MHz rules should provide that parties obtaining 
partitioned 220 MHz licenses or disaggregated spectrum hold their 
license for the remainder of the original licensee's five- or 10-year 
license term. In addition, the Commission seeks comment as to whether 
220 MHz partitionees and disaggregatees should be afforded the same 
renewal expectancy as other 220 MHz licensees. The Commission 
tentatively concludes that limiting the license term of the partitionee 
or disaggregatee is necessary to ensure that there is maximum incentive 
for parties to pursue available spectrum as quickly as practicable.
    14. The Commission's competitive bidding rules for the covered 
Phase II 220 MHz service include provisions for installment payments 
and bidding credits for small businesses and very small businesses. The 
Commission has also adopted rules to prevent unjust enrichment by such 
entities that seek to transfer licenses obtained through use of one of 
these special benefits. The Commission tentatively concludes that the 
Phase II 220 MHz service partitionees and disaggregatees that would 
qualify as small businesses or very small businesses should be 
permitted to pay their pro rata share of the remaining government 
obligation through installment payments. The Commission seeks comment 
on this tentative conclusion. The Commission also invites comment as to 
the exact mechanisms for apportioning the remaining government 
obligation between the parties and whether there are any unique 
circumstances that would make devising such a scheme for the Phase II 
220 MHz service more difficult than for broadband PCS. Since Phase II 
220 MHz service areas are allotted on a geographic basis, in a manner 
similar to broadband PCS, the Commission proposes using population as 
the objective measure to calculate the relative value of the 
partitioned area and amount of spectrum disaggregated as the objective 
measure for disaggregation, and seeks comment on this proposal.
    15. The Commission invites comment on whether to apply unjust 
enrichment rules to small or very small business Phase II 220 MHz 
licensees that partition or disaggregate to non-small businesses. 
Commenters should address how to calculate unjust enrichment payments 
for designated entity Phase II 220 MHz service licensees paying through 
installment payments and those that were awarded bidding credits that 
partition or disaggregate to non-small businesses. The Commission asks 
that commenters also address how it should calculate unjust enrichment 
payments in situations where a very small business partitions or 
disaggregates to a small business that qualifies for a lower bidding 
credit. Commenters should also address whether the unjust enrichment 
payments should be calculated on a proportional basis, using population 
of the partitioned area and amount of spectrum disaggregated as the 
objective measures. The Commission proposes using methods similar to 
those adopted for broadband PCS for calculating the amount of the 
unjust enrichment payments that must be paid in such circumstances, and 
seeks comment on this proposal.
    16. Section 90.709(d) of the Commission's rules currently forbids 
partial assignment of Phase I 220 MHz licenses. However, since there 
are existing partial assignment rules for commercial mobile radio 
stations in part 90, the Commission proposes utilizing partial 
assignment procedures, similar to those adopted for broadband PCS, to 
review 220 MHz partitioning and disaggregation transactions. Partial 
assignment applications would be placed on public notice and subject to 
petitions to deny. The parties would be required to submit an FCC Form 
490, an FCC Form 600 and, if necessary, an FCC Form 430, together as 
one package under cover of the FCC Form 490. The Commission invites 
comment on whether any additional procedures are necessary for 
reviewing these applications. We also seek comment on how licensing 
issues should be addressed for non-commercial mobile radio stations in 
the 220 MHz service with respect to partial assignments.

Administrative Matters

    17. Pursuant to applicable procedures set forth in Secs. 1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested 
parties may file comments on or before April 15, 1997, and reply 
comments on or before April 30, 1997. To file formally in this 
proceeding, you must file an original plus four copies of all comments, 
reply comments, and supporting comments. If you want each Commissioner 
to receive a personal copy of your comments, you must file an original 
plus nine copies. You should send comments and reply comments to Office 
of the Secretary, Federal Communications Commission, Washington, DC 
20554. Comments and reply comments will be available for public 
inspection during regular business hours in the FCC Reference Center 
(Room 239), 1919 M Street, NW., Washington, DC 20554.
    18. This is a non-restricted notice and comment rulemaking 
proceeding. Ex parte presentations are permitted, except during the 
Sunshine Agenda period, provided they are disclosed as provided in the 
Commission rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).

Initial Regulatory Flexibility Act Statement

    19. As required by section 603 of the Regulatory Flexibility Act, 
the Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the expected impact on small entities of the proposals 
suggested in this document. Written public comments are requested on 
the IRFA. These comments must be filed in accordance with the same 
filing deadlines as comments on the rest of this Fifth Notice of 
Proposed Rulemaking, but they must have a separate and distinct heading

[[Page 16007]]

designating them as responses to the Initial Regulatory Flexibility 
Analysis. The Secretary shall send a copy of this Fifth Notice of 
Proposed Rulemaking, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration in accordance with paragraph 603(a) of the Regulatory 
Flexibility Act. Public Law 96-354, 94 Stat. 1164, 5 U.S.C. 601 et seq. 
(1981).

List of Subjects in 47 CFR Part 90

    Business and industry, Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-8013 Filed 4-2-97; 8:45 am]
BILLING CODE 6712-01-P