[Federal Register Volume 62, Number 147 (Thursday, July 31, 1997)]
[Proposed Rules]
[Pages 41012-41015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20078]


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

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 2

[ET Docket No. 97-157; FCC 97-245]


Reallocation of TV Channels 60-69, the 746-806 MHz Band

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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

SUMMARY: By this Notice of Proposed Rule Making (NPRM), the Commission 
proposes to reallocate the 746-806 MHz band, currently comprising 
television (TV) channels 60-69. The Commission proposes to allocate 24 
megahertz, at 764-776 MHz and 794-806 MHz, to the fixed and mobile 
services, and to designate this spectrum for public safety use. The 
Commission proposes to allocate the remaining 36 megahertz at 746-764 
MHz and 776-794 MHz to the fixed, mobile, and broadcasting services; 
and anticipates that licenses in this portion of the band may be 
assigned through competitive bidding. These allocations would help to 
meet the needs of public safety for additional spectrum, make new 
technologies and services available to the American public, and allow 
more efficient use of spectrum in the 746-806 MHz band. The Commission 
also considers issues related to protecting existing and proposed TV 
stations on channels 60-69 from interference until the transition to 
digital TV (DTV) is complete, but defer specific interference 
protection standards to a separate proceeding on service rules in the 
746-806 MHz band.

DATES: Comments must be filed on or before September 15, 1997, and 
reply comments must be filed on or before October 14, 1997.

ADDRESSES: Comments and reply comments should be sent to the Office of 
Secretary, Federal Communications Commission, Washington, DC 20554. If 
participants want each Commissioner to receive a personal copy of their 
comments, an original plus nine copies must be filed.

FOR FURTHER INFORMATION CONTACT: Sean White, Office of Engineering and 
Technology, (202) 418-2453, [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rule Making, ET Docket 97-157, FCC 97-245, adopted July 9, 
1997, and released July 10, 1997. The full text of this Commission 
decision is available for inspection and copying during regular 
business hours in the FCC Reference Center (Room 239), 1919 M Street, 
NW., Washington, DC. The complete text of this decision also may be 
purchased from the Commission's duplication contractor, International 
Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., 
Washington, DC 20036.

Summary of Notice of Proposed Rule Making

    1. In this NPRM, the Commission proposes to reallocate 24 megahertz 
of spectrum at 764-776 MHz and 794-806 MHz to the fixed and mobile 
services, and reserve this spectrum for the exclusive use of public 
safety services. The Commission also proposes to reallocate the 746-764 
MHz and 776-794 MHz bands to the fixed, mobile, and broadcasting 
services, and anticipates that licenses in this spectrum will be 
assigned by competitive bidding.
    2. TV channels 60-69 (746-806 MHz) are relatively lightly used for 
full service television operations. There are currently only 95 full 
service analog stations, either operating or with approved construction 
permits on these channels. In the Sixth Report and Order in MM Docket 
No. 87-268 (DTV Proceeding), 62 FR 26684, May 14, 1997, the Commission 
adopted a Table of Allotments for digital television. This Table 
provides all eligible broadcasters with a second 6 MHz channel to be 
used for DTV service during the transition from analog to digital 
television service. The DTV Table also, inter alia, facilitates the 
early recovery of a portion of the existing broadcast spectrum, 
specifically, channels 60-69, by minimizing the use of these channels 
for DTV purposes. The DTV Table provides only 15 allotments for DTV 
stations on channels 60-69 in the continental United States.
    3. In providing for early recovery of spectrum, the Commission also 
observed that there is an urgent need for additional spectrum to meet 
important public safety needs, including voice and data communications, 
and to provide for improved interoperability between public safety 
agencies. We indicated that spectrum in the region of the 746-806 MHz 
band may be appropriate to meet some of these needs. The Commission 
stated that we would initiate a separate proceeding to reallocate the 
spectrum at channels 60-69 in the very near future, and that we would 
give serious consideration to allocating 24 megahertz of this spectrum 
for public safety use and consider allocating the remaining 36 
megahertz in the 746-806 MHz band for assignment by auction.
    4. In 1995, the Commission, along with the National 
Telecommunications and Information Administration, established the 
Public Safety Wireless Advisory Committee (PSWAC) to study public 
safety telecommunications requirements. The PSWAC was chartered, inter 
alia, to advise the Commission on total spectrum requirements for the 
operational needs of public safety entities in the United States 
through the year 2010. On September 11, 1996, the PSWAC issued its 
Final Report. The PSWAC found that the currently allocated public 
safety spectrum is insufficient to support current voice and data needs 
of the public safety community, does not provide adequate capacity for 
interoperability channels, and is inadequate to meet future needs, 
based on projected population growth and demographic changes. In the 
Final Report, the PSWAC stated that data communication needs are also 
expected to grow rapidly in the next few years, and wireless video 
needs are expected to expand quickly. In addition, new spectrum is 
required to support new capabilities and technologies, including high 
speed data and video. The PSWAC found that, in the short term, 24 or 25 
megahertz of new public safety spectrum is needed, and concluded that 
public safety users should be granted access to portions of the unused 
spectrum in the 746-806 MHz band.
    5. The Commission tentatively proposes to allocate the spectrum at 
TV channels 63, 64, 68, and 69 (the 764-776 MHz and 794-806 MHz bands) 
for public safety. There are several reasons why the Commission 
believes these channels would best serve the needs of public safety. 
These channels are relatively lightly used by full service television 
broadcasting, so this spectrum would offer the fewest restrictions on 
public safety operations. Further, since the 794-806 MHz band is 
subjacent to existing public safety operations in the 806-824 MHz band, 
it holds the best potential for expansion of

[[Page 41013]]

and interoperability with existing systems. The close proximity to 
existing spectrum used for public safety could also reduce the 
difficulty and cost of designing equipment. The Commission is aware 
that public safety systems typically employ systems that for technical 
reasons require some minimum separation between the receive and 
transmit frequencies, and believes the proposed allocation would permit 
systems to be deployed with adequate separation between transmit and 
receive frequencies.
    6. The Commission proposes to reallocate the remaining 36 MHz of 
spectrum in the 746-806 MHz band to the fixed and mobile services, and 
retain the existing broadcast allocation. This would allow the maximum 
diversity in service offerings and the broadest licensee discretion, 
consistent with international allocations. Internationally, the band is 
allocated on a primary basis to the broadcasting service and on a 
secondary basis to the fixed and mobile services in Region 2. A 
footnote to the International Table of Frequency Allocations elevates 
the allocation to the fixed and mobile services to primary status in 
the United States, Mexico, and several other Region 2 countries. This 
spectrum is located near spectrum now used for cellular telephone and 
other land mobile services, and it could be used to expand the 
capacities of these services. Other possible applications for this 
spectrum include wireless local loop telephone service, video and 
multimedia applications, wireless cable services, and industrial 
communications services. Additionally, under the proposal, parties 
would be able to obtain licenses in this spectrum to offer 
broadcasting.
    7. The Commission solicits public comment on the proposed 
allocation, and defers consideration of protection of TV transmission 
in the bands, licensing, and service rules to a separate proceeding.

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act,1 the 
Commission has prepared an Initial Regulatory Flexibility Analysis of 
the expected significant economic impact on small entities by the 
policies and rules proposed in this Notice of Proposed Rule Making 
(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 NPRM provided above. The Secretary shall 
send a copy of this NPRM, including the IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration.2
---------------------------------------------------------------------------

    \1\ 5 U.S.C. 603.
    \2\ See id. Sec. 603(a).
---------------------------------------------------------------------------

A. Need for and Objectives of the Proposed Rules

    This NPRM proposes to reallocate the 746-806 MHz band, television 
(TV) Channels 60-69, to other services. We propose to allocate 24 
megahertz at 764-776 MHz and 794-806 MHz for public safety use. We 
propose to allocate the remaining 36 megahertz at 746-764 MHz and 776-
794 MHz to the fixed and mobile services, and to retain the allocation 
to the broadcasting service in these bands. We further propose to 
protect full-power TV stations in the band until the transition to 
digital television (DTV) is complete, and to retain the secondary 
status in the band of Low Power TV (LPTV) and TV translator stations. 
These allocations would help alleviate a critical shortage of public 
safety spectrum, make new technologies and services available to the 
American public, and allow more efficient use of spectrum in the 746-
806 MHz band.

B. Legal Basis

    The proposed action is taken pursuant to sections 4(i), 303(c), 
303(f), 303(g), and 303(r) of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 303(c), 303(f), 303(g), and 303(r).

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

1. Definition of a ``Small Business''
    Under the RFA, small entities may include small organizations, 
small businesses, and small governmental jurisdictions. 5 U.S.C. 
601(6). The RFA, 5 U.S.C. 601(3), generally defines the term ``small 
business'' as having the same meaning as the term ``small business 
concern'' under the Small Business Act, 15 U.S.C. 632. A small business 
concern is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(``SBA''). According to the SBA's regulations, entities engaged in 
television broadcasting Standard Industrial Classification (``SIC'') 
Code 4833--Television Broadcasting Stations, may have a maximum of 
$10.5 million in annual receipts in order to qualify as a small 
business concern. This standard also applies in determining whether an 
entity is a small business for purposes of the RFA.
2. Issues in Applying the Definition of a ``Small Business''
    As discussed below, we could not precisely apply the foregoing 
definition of ``small business'' in developing our estimates of the 
number of small entities to which the rules will apply. Our estimates 
reflect our best judgments based on the data available to us.
    An element of the definition of ``small business'' is that the 
entity not be dominant in its field of operation. We were unable at 
this time to define or quantify the criteria that would establish 
whether a specific television station is dominant in its field of 
operation. Accordingly, the following estimates of small businesses to 
which the new rules will apply do not exclude any television station 
from the definition of a small business on this basis and are therefore 
overinclusive to that extent. An additional element of the definition 
of ``small business'' is that the entity must be independently owned 
and operated. As discussed further below, we could not fully apply this 
criterion, and our estimates of small businesses to which the rules may 
apply may be overinclusive to this extent. The SBA's general size 
standards are developed taking into account these two statutory 
criteria. This does not preclude us from taking these factors into 
account in making our estimates of the numbers of small entities.
3. Television Station Estimates Based on Census Data
    The NPRM will affect full service television stations, TV 
translator facilities, and LPTV stations. The Small Business 
Administration defines a television broadcasting station that has no 
more than $10.5 million in annual receipts as a small 
business.3 Television broadcasting stations consist of 
establishments primarily engaged in broadcasting visual programs by 
television to the public, except cable and other pay television 
services.4 Included in this industry are commercial, 
religious, educational, and other television stations.5 Also 
included

[[Page 41014]]

are establishments primarily engaged in television broadcasting and 
which produce taped television program materials.6 Separate 
establishments primarily engaged in producing taped television program 
materials are classified under another SIC number.7
---------------------------------------------------------------------------

    \3\ 13 CFR Sec. 121.201, Standard Industrial Code (SIC) 4833 
(1996).
    \4\ Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, 1992 Census of Transportation, 
Communications and Utilities, Establishment and Firm Size, Series 
UC92-S-1, Appendix A-9 (1995).
    \5\ Id. See Executive Office of the President, Office of 
Management and Budget, Standard Industrial Classification Manual 
(1987), at 283, which describes ``Television Broadcasting Stations 
(SIC Code 4833) as:
    Establishments primarily engaged in broadcasting visual programs 
by television to the public, except cable and other pay television 
services. Included in this industry are commercial, religious, 
educational and other television stations. Also included here are 
establishments primarily engaged in television broadcasting and 
which produce taped television program materials.
    \6\ Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, supra note 7, Appendix A-9.
    \7\ Id.; SIC 7812 (Motion Picture and Video Tape Production); 
SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services 
(producers of live radio and television programs).
---------------------------------------------------------------------------

    There were 1,509 television stations operating in the nation in 
1992.8 That number has remained fairly constant as indicated 
by the approximately 1,551 operating television broadcasting stations 
in the nation as of February 28, 1997.9 For 1992 
10 the number of television stations that produced less than 
$10.0 million in revenue was 1,155 establishments, or approximately 77 
percent of the 1,509 establishments.11 Thus, the rules will 
affect approximately 1,551 television stations; approximately 1,194 of 
those stations are considered small businesses.12 These 
estimates may overstate the number of small entities since the revenue 
figures on which they are based do not include or aggregate revenues 
from non-television affiliated companies. We recognize that the rules 
may also impact minority and women owned stations, some of which may be 
small entities. In 1995, minorities owned and controlled 37 (3.0%) of 
1,221 commercial television stations in the United States.13 
According to the U.S. Bureau of the Census, in 1987 women owned and 
controlled 27 (1.9%) of 1,342 commercial and non-commercial television 
stations in the United States.14
---------------------------------------------------------------------------

    \8\ FCC News Release No. 31327, January 13, 1993; Economics and 
Statistics Administration, Bureau of Census, U.S. Department of 
Commerce, supra note 7, Appendix A-9.
    \9\ FCC News Release No. 7033, March 6, 1997.
    \10\ Census for Communications' establishments are performed 
every five years ending with a ``2'' or ``7''. See Economics and 
Statistics Administration, Bureau of Census, U.S. Department of 
Commerce, supra note 7, at III.
    \11\ The amount of $10 million was used to estimate the number 
of small business establishments because the relevant Census 
categories stopped at $9,999,999 and began at $10,000,000. No 
category for $10.5 million existed. Thus, the number is as accurate 
as it is possible to calculate with the available information.
    \12\ We use the 77 percent figure of TV stations operating at 
less than $10 million for 1992 and apply it to the 1997 total of 
1551 TV stations to arrive at 1,194 stations categorized as small 
businesses.
    \13\ Minority Commercial Broadcast Ownership in the United 
States, U.S. Dep't of Commerce, National Telecommunications and 
Information Administration, The Minority Telecommunications 
Development Program (``MTDP'') (April 1996). MTDP considers minority 
ownership as ownership of more than 50% of a broadcast corporation's 
stock, voting control in a broadcast partnership, or ownership of a 
broadcasting property as an individual proprietor. Id. The minority 
groups included in this report are Black, Hispanic, Asian, and 
Native American.
    \14\ See Comments of American Women in Radio and Television, 
Inc. in MM Docket No. 94-149 and MM Docket No. 91-140, at 4 n.4 
(filed May 17, 1995), citing 1987 Economic Censuses, Women-Owned 
Business, WB87-1, U.S. Dep't of Commerce, Bureau of the Census, 
August 1990 (based on 1987 Census). After the 1987 Census report, 
the Census Bureau did not provide data by particular communications 
services (four-digit Standard Industrial Classification (SIC) Code), 
but rather by the general two-digit SIC Code for communications 
(#48). Consequently, since 1987, the U.S. Census Bureau has not 
updated data on ownership of broadcast facilities by women, nor does 
the FCC collect such data. However, we sought comment on whether the 
Annual Ownership Report Form 323 should be amended to include 
information on the gender and race of broadcast license owners. 
Policies and Rules Regarding Minority and Female Ownership of Mass 
Media Facilities, Notice of Proposed Rule Making, 10 FCC Rcd 2788, 
2797 (1995), 60 FR 06068, February 1, 1995.
---------------------------------------------------------------------------

    There are currently 4,977 TV translator stations and 1,952 LPTV 
stations which would be affected by the allocation policy and other 
policies in this proceeding.15 The Commission does not 
collect financial information of any broadcast facility and the 
Department of Commerce does not collect financial information on these 
broadcast facilities. We will assume for present purposes, however, 
that most of these broadcast facilities, including LPTV stations, could 
be classified as small businesses. As indicated earlier, approximately 
77 percent of television stations are designated under this analysis as 
potentially small business. Given this, LPTV and TV translator stations 
would not likely have revenues that exceed the SBA maximum to be 
designated as small businesses.
---------------------------------------------------------------------------

    \15\ FCC News Release No. 7033, March 6, 1997.
---------------------------------------------------------------------------

4. Alternative Classification of Small Television Stations
    An alternative way to classify small television stations is by the 
number of employees. The Commission currently applies a standard based 
on the number of employees in administering its Equal Employment 
Opportunity (``EEO'') rule for broadcasting.16 Thus, radio 
or television stations with fewer than five full-time employees are 
exempted from certain EEO reporting and recordkeeping 
requirements.17 We estimate that the total number of 
commercial television stations with 4 or fewer employees is 132 and 
that the total number of noncommercial educational television stations 
with 4 or fewer employees is 136.18
---------------------------------------------------------------------------

    \16\ The Commission's definition of a small broadcast station 
for purposes of applying its EEO rule was adopted prior to the 
requirement of approval by the Small Business Administration 
pursuant to section 3(a) of the Small Business Act, 15 U.S.C. 
Sec. 632(a), as amended by section 222 of the Small Business Credit 
and Business Opportunity Enhancement Act of 1992, Public Law 102-
366, Sec. 222(b)(1), 106 Stat. 999 (1992), as further amended by the 
Small Business Administration Reauthorization and Amendments Act of 
1994, Public Law 103-403, Sec. 301, 108 Stat. 4187 (1994). However, 
this definition was adopted after public notice and an opportunity 
for comment. See Report and Order in Docket No. 18244, 23 FCC 2d 430 
(1970), 35 FR 8925, June 6, 1970.
    \17\ See, e.g., 47 CFR Sec. 73.3612 (Requirement to file annual 
employment reports on Form 395-B applies to licensees with five or 
more full-time employees); First Report and Order in Docket No. 
21474 (In the Matter of Amendment of Broadcast Equal Employment 
Opportunity Rules and FCC Form 395), 70 FCC 2d 1466 (1979), 44 FR 
6722, February 2, 1979. The Commission is currently considering how 
to decrease the administrative burdens imposed by the EEO rule on 
small stations while maintaining the effectiveness of our broadcast 
EEO enforcement. Order and Notice of Proposed Rule Making in MM 
Docket No. 96-16 (In the Matter of Streamlining Broadcast EEO Rule 
and Policies, Vacating the EEO Forfeiture Policy Statement and 
Amending Section 1.80 of the Commission's Rules to Include EEO 
Forfeiture Guidelines), 11 FCC Rcd 5154 (1996), 61 FR 09964, March 
12, 1996. One option under consideration is whether to define a 
small station for purposes of affording such relief as one with ten 
or fewer full-time employees. Id. at para. 21.
    \18\ We base this estimate on a compilation of 1995 Broadcast 
Station Annual Employment Reports (FCC Form 395-B), performed by 
staff of the Equal Opportunity Employment Branch, Mass Media Bureau, 
FCC.
---------------------------------------------------------------------------

    We have concluded that the 746-806 MHz band can be recovered 
immediately, and that it is in the public interest to reallocate this 
spectrum to uses in addition to TV broadcasting. We believe that such a 
reallocation is possible while continuing to protect TV. There are 95 
full power TV stations, either operating or with approved construction 
permits, in Channel 60-69. There are also nine proposed stations, and 
approximately 15 stations will be added during the DTV transition 
period, for a total of approximately 119 nationwide. There are also 
approximately 1,366 LPTV stations and TV translator stations in the 
band, operating on a secondary basis to full power TV stations. We 
propose to immediately reallocate the 746-806 MHz band in order to 
maximize the public benefit available from its use.
    The RFA also includes small governmental entities as a part of the 
regulatory flexibility analysis.19 The definition of a small 
governmental entity is one with a population of fewer than 
50,000.20 There are approximately 85,006 governmental 
entities in the

[[Page 41015]]

nation.21 This number includes such entities as states, 
counties, cities, utility districts and school districts. There are no 
figures available on what portion of this number have populations of 
fewer than 50,000. However, this number includes 38,978 counties, 
cities and towns, and of those, 37,566, or 96 percent, have populations 
of fewer than 50,000.22 The Census Bureau estimates that 
this ratio is approximately accurate for all governmental entities. 
Thus, of the approximately 85,006 governmental entities, we estimate 
that 96 percent, or 81,600, are small entities that may be affected by 
our rules.
---------------------------------------------------------------------------

    \19\ 5 U.S.C. Sec. 601(5).
    \20\ Id.
    \21\ 1992 Census of Governments, U.S. Bureau of the Census, U.S. 
Department of Commerce.
    \22\ Id.
---------------------------------------------------------------------------

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

    None.

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

    We do not propose to provide LPTV and TV translator stations with 
the same protection afforded to full-power TV stations. Because of the 
large number of such stations, protecting them would significantly 
diminish the utility of the 746-806 MHz band to both public safety and 
commercial users. Also, LPTV and TV translator stations are secondary 
in this band, and we have proposed to make public safety and commercial 
services primary in the band. We remain concerned, however, for the 
interests of LPTV and TV translator stations because they are a 
valuable part of the American telecommunications structure and economy. 
For this reason, we seek measures which will allow as many LPTV and TV 
translator stations as possible to remain in operation. At a minimum, 
we propose to continue the secondary status of these stations, so that 
they will not be required to change or cease their operations until 
they actually interfere with one of the newly-allocated services. We 
also request comment on a number of measures which may alleviate the 
impact of reallocation of the 746-806 MHz band on LPTV and TV 
translator stations. We request comment on these options, with emphasis 
on how we can ensure fairness to all licensees, and how we can best 
balance the interests of current and future licensees to the benefit of 
the public.

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

    None.

List of Subjects in 47 CFR Part 2

    Frequency allocations and radio treaty matters, Radio.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-20078 Filed 7-30-97; 8:45 am]
BILLING CODE 6712-01-P