[Federal Register Volume 62, Number 77 (Tuesday, April 22, 1997)]
[Proposed Rules]
[Pages 19538-19541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9828]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 74, and 78

[ET Docket No. 95-18; FCC 97-93]


2 GHz for Use by the Mobile Satellite Service

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In the Further Notice of Proposed Rule Making (Further NPRM), 
we propose specific details of relocation of affected Broadcast 
Auxiliary Service (BAS), Cable Television Relay Service (CARS), Local 
Television Transmission Service (LTTS), and Fixed Satellite (FS) 
licensees, and request comment on our proposals. We propose to 
channelize the new BAS band into seven channels of 15 megahertz 
bandwidth, with the new channelization plan to become primary on 
January 1, 2000, or the day after the last Fixed Service (FS) licensee 
in the 2110-2130 MHz band has been relocated in accordance with 
Sections 101.69-101.81 of the Commission's rules, whichever date is 
later. We further propose to allow MSS operators to negotiate with BAS 
licensees for relocation. The new and enhanced services and uses 
permitted by this action will create new jobs, foster economic growth, 
and improve access to communications by industry and the American 
public.

DATES: Comments must be submitted on or before June 23, 1997 and reply 
comments must be submitted on or before July 21, 1997.

ADDRESSES: Office of the Secretary, Federal Communications Commission, 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Sean White, Office of Engineering and 
Technology, 202-418-2453.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rule Making, (Further NPRM), ET Docket 95-
18, FCC 97-93, adopted March 13, 1997, and released March 14, 1997. The 
full text of this Commission decision 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 duplication contractor, International 
Transcription Service, (202) 857-3800, 2100 M Street, N.W., Suite 140, 
Washington, D.C. 20037.

Summary of the Further NPRM of Proposed Rule Making

    1. In the Further NPRM of Proposed Rule Making (``Further NPRM''), 
the Commission proposes to rechannelize the new Broadcast Auxiliary 
Service (BAS) spectrum from the current seven channels (within the 
1990-2110 MHz band), each of 17 or 18 megahertz bandwidth, to seven 
channels (at 2025-2130 MHz band), each of 15 megahertz bandwidth. The 
Further NPRM also proposes to provide for the relocation and 
rechannelization of incumbent BAS, Cable Television Relay Service 
(CARS), and Local Television Transmission Service (LTTS) licensees in 
accordance with the Commission's Emerging Technologies policies, 
providing for voluntary and mandatory negotiations between incumbent 
licensees and new MSS operators, and involuntary relocation of 
incumbents if agreements cannot be reached. The Further NPRM proposes 
that, in the case of involuntary relocation, all costs of relocation 
will be borne by the MSS licensee. The Further NPRM also proposes that 
the Emerging Technologies policies for the relocation of incumbent FS 
licensees (in the 2110-2130 and 2165-2200 MHz bands) be followed, 
including voluntary and mandatory negotiation periods, provision for 
involuntary relocation with all costs borne by the MSS operator, and a 
``sunset'' date of ten years after the beginning of the voluntary 
negotiation period, after which FS licensees will be required to 
relocate at their own expense if MSS needs the frequencies within which 
FS licensees operate.
    2. The Commission carefully considered the balance of interests 
between new technology providers and incumbent service licensees, in 
the Emerging Technologies proceeding, ET Docket 92-9. Considering that 
the emerging technology service provider receives the benefits of 
operating in the band, including anticipated substantial profits, the 
Commission concluded that it is fair to require the new technology 
service to pay for the relocation of the displaced incumbents. Though 
the 1990-2110 MHz BAS band was not part of the Emerging Technologies 
proceeding, the logic of the Emerging Technologies proceeding applies 
equally well to BAS, CARS, and LTTS. MSS commenters advocate requiring 
BAS band licensees to finance their own relocation as their equipment 
depreciates and they purchase new equipment, claiming that the total 
costs of relocation, added to the high cost of launching satellites, 
would cripple the nascent MSS industry. This assertion, however, 
contradicts the position of MSS commenters that there is a huge, 
underserved demand for MSS. We believe that MSS licensees will build 
the cost of relocating BAS band licensees into their financial plans, 
and still will be able to provide service at a profit. We propose to 
rechannelize the BAS band to seven channels of 15 megahertz width each, 
as opposed to the current 17- and 18-megahertz channel widths, in order 
to maintain seven channels in the 2 GHz BAS band, but we also request 
comment on whether allowing flexibility in channelization would better 
serve the needs of the BAS, CARS, and LTTS industries. Because the 
current and new BAS bands overlap, BAS, CARS, and LTTS licensees are 
likely to interfere with each other if both the current and proposed 
new channel plans are used simultaneously. To address this problem, we 
propose to make the new channel plan primary on January 1, 2000, or 
after the 2110-2130 MHz band is cleared of incumbent FS licensees, 
whichever is later. We also inquire whether a later date would be more 
appropriate, and whether we should allow switchover on a market-by-
market basis, rather than a nationwide basis. We inquire whether we 
should allow BAS, CARS, and LTTS licensees to negotiate with MSS 
individually, or whether we should impose marketwide or nationwide 
negotiators whose agreements would be binding on all licensees. We also

[[Page 19539]]

propose the same negotiation periods as those established in the 
Emerging Technologies proceeding: a two-year voluntary negotiation 
period, followed by a one-year mandatory negotiation period, followed 
by involuntary relocation. In the case of involuntary relocation, we 
propose to apply the requirements of our Emerging Technologies 
policies: (1) payment of all relocation expenses by the MSS operator, 
(2) full comparability of replacement facilities, and (3) the right of 
the incumbents to return to their original spectrum at MSS expense, 
should the replacement facilities prove not to be fully comparable 
within one year after relocation. Finally, we propose to require 
subsequently entering MSS operators to compensate earlier operators for 
a portion of the expenses incurred in clearing the BAS band.
    3. We also propose to follow our Emerging Technologies policies in 
providing for the relocation of FS incumbents from the 2110-2130 MHz 
and 2165-2200 MHz bands, as codified at 47 CFR 101.69-101.81. 
Incumbents will be relocated from the 2110-2130 MHz band to clear that 
band for relocated BAS operations. In our Emerging Technologies 
proceeding, we established two periods for negotiation between new 
emerging technology licensees and incumbent FS licensees. The first 
period is for voluntary negotiations, in which the parties may arrive 
at any mutually agreeable solution. Negotiations during this period are 
strictly voluntary, and we established no parameters for these 
negotiations. The voluntary period begins with our acceptance of 
license applications for the emerging technology service, and lasts for 
two years, or, in the case of public safety FS, three 
years.1 The voluntary period is followed by a mandatory 
negotiation period, which begins at any time after expiration of the 
voluntary period when the emerging technologies licensee informs the FS 
incumbent in writing of the emerging technology licensee's desire to 
negotiate relocation. During the mandatory period, the parties would be 
required to negotiate in good faith, but again the parameters of the 
negotiation are left to the parties. The mandatory period lasts for one 
year, or two years for public safety FS incumbents.2 Should 
the parties fail to reach an agreement during the mandatory negotiation 
period, the emerging technology provider would be able to request 
involuntary relocation of the existing facility. Involuntary relocation 
requires that the emerging technology provider (1) guarantee payment of 
all costs of relocating the incumbent to a comparable facility; (2) 
complete all activities necessary for placing the new facilities into 
operation, including engineering and frequency coordination; and (3) 
build and test the new FS or alternative system. Once comparable 
facilities are made available to the incumbent microwave operator, the 
Commission will amend the 2 GHz license of the incumbent to secondary 
status. After relocation, the FS incumbent is entitled to a one-year 
trial period to determine whether the facilities are indeed comparable, 
and if they are not, the emerging technologies licensee is required to 
remedy the defects or pay to relocate the FS incumbent back to its 
former or an equivalent 2 GHz frequency.3
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    \1\ Public safety FS licensees eligible for the three-year 
voluntary negotiation period are defined in Emerging Technologies, 
ET Docket 92-9, Memorandum Opinion and Order, 9 FCC Rcd 1943 at 
Paras. 36-41, 59 FR 19642, April 25, 1994.
    \2\ See Emerging Technologies, ET Docket 92-9, Third Report and 
Order and Memorandum Opinion and Order, 8 FCC Rcd. 6589 at para. 15, 
58 FR 46547, September 2, 1993.
    \3\ See 47 CFR 21.50, 94.59.
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    4. We propose to provide for FS relocation in this case using the 
same sunset period and good faith guidelines as those established in 
the Microwave Cost-Sharing proceeding, 11 FCC Rcd 8825 (1996), 61 FR 
29679, June 12, 1996. Ten years after the beginning of the voluntary 
negotiation period for the first MSS licensees, MSS operators would no 
longer be required to pay the costs of relocating FS incumbents, and 
would be able to require the incumbents to cease operating or relocate 
at their own expense upon six months written notice. The MSS and FS 
industries are currently developing interference standards under the 
good offices of Telecommunications Industry Association (TIA). We 
propose to adopt these standards, or their successors, in determining 
whether our sunset rules would apply to a given FS incumbent. At the 
end of the six-month notice period, the incumbent FS licensees would be 
required to surrender their 2 GHz licenses to the Commission, unless 
the incumbent FS licensees arrived at an agreement with the MSS 
operators to allow the incumbent FS licensee to continue operations. 
During mandatory negotiations, we propose to adhere to the guidelines 
enumerated in the Microwave Cost-Sharing proceeding. We request comment 
on whether we should apply the sunset rule of 47 CFR 101.81 and the 
good faith guidelines of 47 CFR 101.75 for the 2110-2130 MHz and 2165-
2200 MHz bands. If so, we inquire whether the sunset date should be ten 
years after the beginning of the voluntary negotiation period for 
relocation, as in 47 CFR 101.81, or some other date.
    5. In the Microwave Cost-Sharing proceeding, we also proposed to 
adjust the voluntary and mandatory negotiation periods for FS 
relocation in the case of the D, E, and F spectrum blocks of PCS. 
Specifically, we proposed to reduce the voluntary period to one year, 
or two years in the case of public safety FS incumbents. We proposed to 
increase the mandatory negotiation period to two years, or three years 
in the case of public safety FS. Thus, the total negotiation period 
would remain the same, but the division into voluntary and mandatory 
periods would be altered. We request comment on whether we should 
adjust the negotiation periods for the MSS band. If so, should we 
follow the proposal in our Microwave Cost-Sharing proceeding, or should 
we establish some other negotiation periods? Also, should we begin the 
voluntary negotiation period when we accept applications for MSS 
licensing, or at some later date?
    6. In addition to addressing FS in the 2110-2130 MHz and 2165-2200 
MHz bands, we inquire into procedures for relocation of FS licensees in 
the 2130-2150 MHz band. This band is not directly reallocated by this 
proceeding, but FS links in the 2130-2150 MHz band are paired with 
links in the 2180-2200 MHz band, which is being reallocated to MSS. We 
propose to allow parties to negotiate the relocation of links in the 
2130-2150 MHz band during negotiations for the relocation of FS 
licensees in the 2180-2200 MHz band. We inquire, however, whether we 
should assume that the involuntary relocation of FS links in the 2180-
2200 MHz band necessitates relocation of the paired links in the 2130-
2150 MHz band, or whether we should require relocation only of links in 
the 2180-2200 MHz band, leaving situate the paired links in the 2130-
2150 MHz band, unless the FS licensees involved demonstrate the need to 
have the paired links in the 2130-2150 MHz band included in involuntary 
relocation. Commenters are urged to address the feasibility of paired 
links in widely separated frequency bands, as well as any other aspects 
of this question.
    7. Finally, we propose to require subsequently entering MSS 
operators to compensate earlier MSS operators for the costs of 
relocating incumbent FS licensees. We propose that the subsequently 
entering MSS operators will pay a proportionate share of the costs of 
clearing the spectrum band that

[[Page 19540]]

the subsequently entering MSS operator is authorized to use. Further, 
in any case where the earlier MSS operator was able to share spectrum 
with FS incumbents, but the entry of another MSS operator necessitates 
relocation, we propose to require the earlier MSS operator to 
compensate the subsequently entering MSS operator in the same manner. 
We also inquire, whether we should consider the age and value of FS 
equipment in determining costs issues in the case of involuntary 
relocation.
    8. We request comment on all these proposals. Commenters are 
encouraged to present possible alternatives to any of the proposals 
presented in the Further NPRM. We also specifically inquire whether 
there are sound reasons to establish different relocation procedures 
for the BAS band than those we establish for FS relocation.
    9. This action would make more spectrum available to MSS providers 
from the year 2000 forward. The staff has concluded that there is a 
need for more MSS spectrum, and the spectrum at issue will allow both 
domestic and global MSS systems to be established. The reduction of the 
BAS band would encourage more efficient use of the spectrum, and would 
increase the amount of remaining spectrum available for emerging 
technologies. The spectrum allocation would require relocation of BAS 
and FS licensees, in accordance with our Emerging Technologies rules. 
Finally, the new and enhanced services and uses permitted by this 
action will create new jobs, foster economic growth, and improve access 
to communications by industry and the American public.

Initial Regulatory Flexibility Analysis

    10. As required by Section 603 of the Regulatory Flexibility 
Act,4 the Commission has prepared an IRFA of the expected 
significant economic impact on small entities by the policies and rules 
proposed in this Further Notice of Proposed Rule Making (Further NPRM). 
Written public comments are requested on the IRFA. Comments must be 
identified as responses to the IRFA and must be filed by the deadlines 
for comments on the Further NPRM provided above in paragraph 83. The 
Secretary shall send a copy of this NPRM, including the IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration in 
accordance with paragraph 603(a) of the Regulatory Flexibility Act.
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    \4\ 5 U.S.C. 603.
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A. Need for and Objectives of the Proposed Rules

    11. The Further NPRM proposes rules to govern the relocation of 
Broadcast Auxiliary Service (BAS), Local Television Transmission 
Service (LTTS), Cable Television Relay Service (CARS), and Fixed 
Service (FS) licensees from the 2 GHz spectrum reallocated to the MSS. 
These rules are designed to ensure an orderly transition of these 
licensees from the spectrum so that MSS operations may be conducted in 
the spectrum. At the same time, the rules are designed to ensure that 
incumbent BAS, LTTS, CARS, and FS licensees suffer no harm from 
relocation.

B. Legal Basis

    12. The Communications Act of 1934, as amended, gives the 
Commission authority to ``make such regulations as it may deem 
necessary to prevent interference between stations and to carry out the 
provisions of [the Communications Act].'' 47 U.S.C. 303(f).

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

13. BAS, LTTS, and CARS Licensees
    This service involves a variety of transmitters, generally used to 
relay broadcast programming to the public (through translator and 
booster stations) or within the program distribution chain (from a 
remote news gathering unit back to the station). It also includes 
Instructional Television Fixed Service stations, which are used to 
relay programming to the home or office, similar to that provided by 
the cable television systems. The Commission has not developed a 
definition of small entities applicable to Broadcast Auxiliary Service, 
Local Television Transmission Service or Cable Television Relay 
Service. Therefore, the applicable definition of small entity is the 
definition under the Small Business Administration (SBA) rules 
applicable to radiotelephone companies. SBA has defined a small 
business for Standard Industrial Classification (SIC) category 4812 
(Radiotelephone Communications) to be small entities when they have 
fewer than 1500 employees.5
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    \5\ 13 CFR 121.201 Standard Industrial Classification (SIC) Code 
4812.
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    (a) There are currently 2,663 FM translators and boosters, 4, 926 
TV translators, and 1,921 Low Power TV stations which will be affected 
by the new requirements. The FCC does not collect financial information 
on any broadcast facility and the Department of Commerce does not 
collect financial information on these auxiliary broadcast facilities. 
We believe that most, if not all, of these auxiliary facilities could 
be classified as small businesses by themselves. We recognize that most 
translators and boosters are owned by a parent station which, in some 
cases, would be covered by the revenue definition of small business 
entity discussed above. These stations would likely have annual 
revenues that exceed the SBA maximum to be designated as a small 
business (either $5 million for a radio station or $10.5 million for a 
TV station). As we indicated earlier, 96% of radio stations and 78% of 
TV stations are designated as small businesses.
    (b) There are currently 2,000 licensed cable television relay 
stations, which will probably be affected by the new requirement. The 
Commission receives approximately 1,000 CARS applications on an annual 
basis. The FCC is not required to collect financial information on 
these facilities.
14. Fixed Service Licensees
    The Further NPRM pertains to fixed service microwave licensees. The 
Commission has not developed a definition of small entities applicable 
to Fixed Service microwave licensees. Therefore, the applicable 
definition of small entity is the definition under the Small Business 
Administration (SBA) rules applicable to radiotelephone companies. This 
definition provides that a small entity is a radiotelephone company 
employing fewer than 1,500 persons. Census Bureau data indicates that 
there are 1,164 radiotelephone companies with fewer than 1500 
employees, that might qualify as small entities if they are 
independently owned and operated. Since the Regulatory Flexibility Act 
amendments were not in effect until the record in this proceeding was 
closed, the Commission was unable to request information regarding the 
number of small businesses that would be affected by this action.
15. Satellite Communications Services
    The Commission has not developed a definition of small entities 
applicable to satellite communications licensees. Therefore, the 
applicable definition of small entity is the definition under the Small 
Business Administration (SBA) rules applicable to Communications 
Services ``Not Elsewhere Classified.'' This definition provides that a 
small entity is one with $11.0 million or less in annual 
receipts.6 According to Census Bureau data, there are 848 
firms

[[Page 19541]]

that fall under the category of Communications Services, Not Elsewhere 
Classified. Of those, approximately 775 reported annual receipts of $11 
million or less and qualify as small entities.7
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    \6\ 13 CFR 121.201, Standard Industrial Classification (SIC) 
Code 4899.
    \7\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992 
Census of Transportation, Communications, and Utilities, UC92-S-1, 
Subject Series, Establishment and Firm Size, Table 2D, Employment 
Size of Firms: 1992, SIC Code 4899 (issued May 1995).
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    16. Satellite systems authorized by the Commission can be divided 
into the following categories: Mobile-Satellite Service (MSS) non-
geostationary satellite orbit (LEO) (low or medium orbit satellites); 
MSS geostationary; MSS stations; and Fixed-Satellite Service.

D. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements

    17. The proposed rules would require all BAS, LTTS, CARS, and FS 
licensees, as well as MSS operators, to negotiate for relocation or 
rechannelization or both, including negotiating timetables and costs. 
These negotiations are likely to require the skills of accountants and 
engineers to evaluate the economic and technical requirements of 
relocation.

E. Significant Alternatives to Proposed Rules Which Minimize 
Significant Economic Impact on Small Entities and Accomplish Stated 
Objectives

    18. The Commission considered the alternative of requiring current 
BAS, LTTS, CARS, and FS licensees in the 2 GHz band to relocate or 
rechannelize or both at their own expense. The Commission rejected this 
alternative as excessively burdensome on these incumbent licensees, and 
not in the public interest.
    19. MSS commenters advocate requiring BAS band licensees to finance 
their own relocation as their equipment depreciates and they purchase 
new equipment, claiming that the total costs of relocation, added to 
the high cost of launching satellites, would cripple the nascent MSS 
industry. This assertion, however, contradicts the position of MSS 
commenters that there is a huge, underserved demand for MSS. We believe 
that MSS licensees will build the cost of relocating BAS band licensees 
into their financial plans, and still will be able to provide service 
at a profit. We propose to rechannelize the BAS band to seven channels 
of 15 megahertz width each, as opposed to the current 17- and 18-
megahertz channel widths, in order to maintain seven channels in the 2 
GHz BAS band, but we also request comment on whether allowing 
flexibility in channelization would better serve the needs of the BAS, 
CARS, and LTTS industries. Because the current and new BAS bands 
overlap, BAS, CARS, and LTTS licensees are likely to interfere with 
each other if both the current and proposed new channel plans are used 
simultaneously. To address this problem, we would propose to make the 
new channel plan primary on January 1, 2000, or after the 2110-2130 MHz 
band is cleared of incumbent FS licensees, whichever is later. We would 
also inquire whether a later date would be more appropriate, and 
whether we may allow switchover on a market-by-market basis, rather 
than a nationwide basis. We inquire whether we should allow BAS, CARS, 
and LTTS licensees to negotiate with MSS individually, or whether we 
should impose marketwide or nationwide negotiators whose agreements 
would be binding on all licensees. We propose the same negotiation 
periods as those established in the Emerging Technologies proceeding: a 
two-year voluntary negotiation period, followed by a one-year mandatory 
negotiation period, followed by involuntary relocation. In the case of 
involuntary relocation, we propose to apply the requirements of our 
Emerging Technologies policies: (1) payment of all relocation expenses 
by the MSS operator, (2) full comparability of replacement facilities, 
and (3) the right of the incumbents to return to their original 
spectrum at MSS expense, should the replacement facilities prove not to 
be fully comparable within one year after relocation. Finally, we would 
propose to require subsequently entering MSS operators to compensate 
earlier operators for a portion of the expenses incurred in clearing 
the BAS band.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    20. None.

List of Subjects

47 CFR Part 2

    Communications equipment, Radio.

47 CFR Part 74

    Television broadcasting.

47 CFR Part 78

    Cable television, Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-9828 Filed 4-21-97; 8:45 am]
BILLING CODE 6712-01-P