[Federal Register Volume 62, Number 193 (Monday, October 6, 1997)]
[Proposed Rules]
[Pages 52078-52081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26414]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[PR Docket No. 93-61, FCC 97-305]
Automatic Vehicle Monitoring Systems
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In the Further Notice of Proposed Rule Making (``FNPRM''), the
Commission proposes rules and procedures governing competitive bidding
for multilateration Location and Monitoring Service (``LMS'')
frequencies.
DATES: 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 November 5, 1997, and reply
comments on or before November 20, 1997.
ADDRESSES: To file formally in this proceeding, interested parties must
file an original and four copies of all comments, reply comments, and
supporting comments. If parties want each Commissioner to receive a
personal copy of comments, an original plus nine copies must be filed.
Comments and reply comments must be sent to the Office of the
Secretary, Federal Communications Commission, Washington, D.C. 20554.
FOR FURTHER INFORMATION CONTACT: David Furth or Linda Chang at (202)
418-0620.
SUPPLEMENTARY INFORMATION: This summarizes the Commission's Further
Notice of Proposed Rule Making in FCC 97-305, PR Docket No. 93-61,
adopted August 28, 1997, and released September 16, 1997. The complete
text of this FNPRM is available for public inspection and copying
during normal business hours in the FCC Dockets Branch, Room 239, 1919
M Street N.W., Washington, D.C. 20036. The complete text may be
purchased from the Commission's copy contractor, International
Transcription Service, Inc., 1231 20th Street, N.W., Washington, D.C.
20036 (telephone number: (202) 857-3800). Comments and reply comments
will be available for public inspection during regular business hours
in the FCC Reference Center of the Federal Communications Commission,
Room 239, 1919 M Street, N.W., Washington, D.C. 20554.
[[Page 52079]]
Synopsis of Further Notice of Proposed Rule Making
I. Competitive Bidding for Multilateration LMS Licensees
1. In the LMS Report and Order, PR Docket No. 93-61, 60 FR 15248
(March 23, 1995), the Commission decided to use competitive bidding to
select from mutually exclusive applications for multilateration LMS
licenses. The Commission reached this decision based on its conclusion
that the statutory criteria for auctioning licenses, which are set
forth in section 309(j) of the Communications Act, 47 U.S.C. 309(j),
are satisfied. More specifically, the Commission found (1) that its
decision to offer multilateration LMS licenses on an exclusive basis
makes it likely that mutually exclusive applications for such licenses
will be filed; (2) that multilateration LMS licenses will be used
principally to offer for-profit, subscriber-based services; and, (3)
that the use of competitive bidding for these licenses will promote the
public interest objectives set forth in section 309(j)(3).
2. Under the spectrum plan the Commission adopted in the LMS Report
and Order, and reaffirms in the Memorandum Opinion & Order, PR Docket
No. 93-61, FCC 97-305 three blocks of spectrum are allocated to
multilateration LMS systems: (1) 904.000-909.750 MHz and 927.750-
928.000 MHz; (2) 919.750-921.750 MHz and 927.500-927.750 MHz; and, (3)
921.750-927.250 MHz and 927.250-927.500 MHz. One license will be
awarded for each of these spectrum blocks in each of 176 EAs and EA-
like areas. Thus, there are a total of 528 multilateration LMS licenses
to be auctioned.
3. The Commission anticipates conducting the auction for
multilateration LMS frequencies in conformity with the general
competitive bidding rules proposed to be included in part 1, subpart Q
of the Commission's Rules, and substantially consistent with the
auctions that have been employed in other wireless services. Amendment
of part 1 of the Commission's Rules--Competitive Bidding, Order,
Memorandum Opinion and Order and Notice of Proposed Rule Making, WT
Docket No. 97-82, 62 FR 13540 (March 21, 1997). The Commission proposes
to adopt for the LMS auction the simultaneous multiple round
competitive bidding design used in the PCS auctions. Multiple round
bidding should provide more information to bidders than single round
bidding during the auction about the values of the licenses. The
Commission seeks comment on this proposal. The Commission also
tentatively concludes that the LMS auction will follow the general
competitive bidding procedures of part 1, subpart Q. The Commission
seeks comment on this tentative conclusion.
4. Small Businesses. The Commission's auction rules for other
services generally include special provisions--such as bidding credits
and installment payments--designed to fulfill its statutory mandate to
ensure that small businesses have the opportunity to participate in the
provision of spectrum-based services. In the Second Memorandum Opinion
and Order in the competitive bidding docket, the Commission indicated
that it would establish definitions for ``small business'' on a
service-by-service basis. Second Memorandum Opinion and Order, PP
Docket No. 93-253, 59 FR 44272 (August 26, 1994). The Commission
therefore seeks comment regarding the establishment of a small business
definition for multilateration LMS. Commenters should discuss the level
of capital commitment that is likely to be required to purchase a
multilateration LMS license at auction and create a viable business.
The Commission also seeks comment on what small business provisions
should be offered to multilateration LMS small business entities. Its
goal, should the Commission adopt a special provision(s) for one or
more categories of small businesses, will be to remove entry barriers
so as to ensure the participation of small businesses in the auction
and in the provision of service. If the Commission adopts special
provisions for small businesses, the Commission proposes that its
unjust enrichment rules apply as set forth in part 1, subpart Q. 47 CFR
1.2111.
5. In other services the Commission also adopted attribution rules
for purposes of determining small business status. The Commission
tentatively concluded that for LMS the Commission should attribute the
gross revenues of all controlling principals in the small business
applicant as well as its affiliates. The Commission seeks comment on
this tentative conclusion. The Commission also seeks comment on whether
small business provisions are sufficient to promote participation by
businesses owned by minorities, women, or rural telephone companies. To
the extent that commenters propose additional provisions to ensure
participation by minority-owned or women-owned businesses, the
Commission asks them to address how such provisions should be crafted
to meet the relevant standards of judicial review.
6. Partitioning and Disaggregation. The Commission proposes to
allow multilateration LMS licensees to partition their geographic
license area and disaggregate portions of their spectrum. The
Commission anticipates that this will, among other things, help to
remove entry barriers for small businesses. The Commission seeks
comment on this proposal.
7. If the Commission determines that special provisions for small
business are appropriate for LMS auctions, the Commission tentatively
concludes that a qualified small business that applies to partition or
disaggregate its license to a non-small business entity should be
required to repay any benefits it received from special small business
provisions. The Commission seeks comment on the type of unjust
enrichment requirements that should be placed as a condition for
approval of an application to partition or disaggregate a license owned
by a qualified small business licensee to a non-small business entity.
This could include, for example, repayment of any bidding credit that
the Commission may adopt for small businesses, and would be applied on
a proportional basis. Similarly, if a small business licensee
partitions or disaggregates to another qualified small business that
would not qualify for the same level of bidding credit, the
transferring licensee should be required to repay a portion of the
benefit it received. The Commission seeks comment on these tentative
conclusions. Alternatively, the Commission seek comment on whether the
Commission should restrict the partitioning or disaggregation of such
licenses when the partitionee or disaggregatee is not within the
definition of an entity eligible for such special provisions, or
whether, at some point (e.g., a term of years), such restriction on
partitioning and disaggregation be removed and the unjust enrichment
provisions would apply. The Commission also seeks comment on how such
unjust enrichment amounts should be calculated, especially in light of
the difficulty of devising a methodology or formula that will
differentiate the relative market value of the opportunities to provide
service to various partitioned areas or to use the amount of spectrum
disaggregated.
II. Procedural Matters and Ordering Clauses
8. Ex Parte Rules--Non-Restricted Proceeding. This is a non-
restricted notice and comment rulemaking proceeding. Ex parte
presentations are permitted, except during the Sunshine
[[Page 52080]]
Agenda period, provided they are disclosed as provided in Commission
Rules. See generally 47 CFR 1.1202, 1.1203, 1.1206.
9. Initial Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act, 3 U.S.C. Sec. 603, the Commission has
prepared an Initial Regulatory Flexibility Analysis of the expected
impact on small entities of the policies and rules proposed and adopted
in the Further Notice section of the Memorandum Opinion and Order and
Further Notice of Proposed Rulemaking. Written public comments are
requested on the IRFA and must be filed by the deadlines for comments
on the Memorandum Opinion and Order and Further Notice of Proposed
Rulemaking.
10. Reason for Action: This FNPRM was initiated to secure comment
on proposals for revising rules for the auction of multilateration
Location and Monitoring Service frequencies. Such changes to the rules
for multilateration LMS would promote efficient licensing and enhance
the service's competitive potential in the Commercial Mobile Radio
Service marketplace. The adopted and proposed rules are based on the
competitive bidding authority of section 309(j) of the Communications
Act of 1934, as amended, 47 U.S.C. Sec. 309(j), which authorized the
Commission to use auctions to select among mutually exclusive initial
applications in certain services, including multilateration LMS.
11. Objectives of this Action: The Omnibus Budget Reconciliation
Act of 1993 (Budget Act), Public Law 103-66, Title VI, Sec. 6002, and
the subsequent Commission actions to implement it are intended to
establish a system of competitive bidding for choosing among certain
applications for initial licenses, and to carry out statutory mandates
that certain designated entities, including small businesses, are
afforded an opportunity to participate in the competitive bidding
process and in the provision of multilateration LMS services.
12. Legal Basis: The proposed action is authorized under the Budget
Act and in sections 4(i), 303(r), and 309(j) of the Communications Act
of 1934, as amended, 47 U.S.C. Secs. 154(i), 303(r) and 309(j).
13. Reporting, Recordkeeping, and Other Compliance Requirements:
The Commission does not anticipate any additional reporting or
recordkeeping requirements resulting from this FNPRM.
14. Federal Rules Which Overlap, Duplicate or Conflict With These
Rules: None.
15. Description, Potential Impact, and Number of Small Entities
Involved: The FNPRM would establish certain multilateration LMS
spectrum blocks for bidding by smaller entities as well as larger
entities, and would grant special provisions to certain eligible
entities bidding within those blocks. The Commission is required to
estimate in its Final Regulatory Flexibility Analysis the number of
small entities to which a rule will apply, provide a description of
such entities, and assess the impact of the rule on such entities. To
assist the Commission in this analysis, commenters are requested to
provide information regarding how many total entities, existing and
potential, would be affected by the proposed rules in the FNPRM. In
particular, the Commission seeks estimates of how many such entities
will be considered small businesses.
16. Geographic Partitioning and Spectrum Disaggregation. The
partitioning and disaggregation rule changes proposed in this
proceeding will affect all small businesses which avail themselves of
these rule changes, including small businesses currently holding
multilateration LMS licenses who choose to partition and/or
disaggregate and small businesses who may acquire licenses through
partitioning and/or disaggregation.
17. The Commission is required to estimate in its Final Regulatory
Flexibility Analysis the number of small entities to which a rule will
apply, provide a description of such entities, and assess the impact of
the rule on such entities. To assist the Commission in this analysis,
commenters are requested to provide information regarding how many
total entities, existing and potential, would be affected by the
proposed rules in the FNPRM. In particular, the Commission seeks
estimates of how many such entities will be considered small
businesses. As explained in the Final Regulatory Flexibility Analysis
for the Memorandum Opinion and Order, the Commission is utilizing the
SBA definition applicable to radiotelephone companies, i.e., an entity
employing less than 1,500 persons.1 The Commission seeks
comment on whether this definition is appropriate for multilateration
LMS licensees in this context. Additionally, the Commission requests
each commenter to identify whether it is a small business under this
definition. If a commenter is a subsidiary of another entity, this
information should be provided for both the subsidiary and the parent
corporation or entity.
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\1\ 13 CFR 121.201, Standard Industrial Classification Code
4812.
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18. The number of small entities that will be affected is unknown.
New entrants could obtain multilateration LMS licenses through the
competitive bidding procedure, and take the opportunity to partition
and/or disaggregate a license or obtain an additional license through
partitioning or disaggregation. Additionally, entities that are neither
incumbent licensees nor geographic area licensees could enter the
market by obtaining a multilateration LMS license through partitioning
or disaggregation. The Commission cannot estimate how many licensees or
potential licensees could take the opportunity to partition and/or
disaggregate a license or obtain a license through partitioning and/or
disaggregation, because it has not yet determined the size or number of
multilateration LMS licenses that will be granted in the future. Given
the fact that nearly all wireless communications companies have fewer
than 1,000 employees, and that no reliable estimate of the number of
future multilateration LMS licensees can be made, the Commission
assumes for purposes of the IRFA that all of the licenses will be
awarded to small businesses. It is possible that a significant number
of the potential licensees who could take the opportunity to partition
and/or disaggregate a license or who could obtain a license through
partitioning and/or disaggregation will be small businesses.
19. Any Significant Alternatives Minimizing the Impact on Small
Entities Consistent with the Stated Objectives: With respect to
partitioning and disaggregation, the Commission tentatively concludes
that unjust enrichment provisions should apply when a licensee has
benefitted from the small business provisions in the auction rules and
applies to partition or disaggregate a portion of the geographic
license area to another entity that would not qualify for such
benefits. The alternative to applying the unjust enrichment provisions
would be to allow an entity who had benefitted from the special bidding
provisions for small businesses to become unjustly enriched by
partitioning or disaggregating a portion of their license area to
parties that do not qualify for such benefits.
20. The FNPRM proposes certain provisions for smaller entities
designed to ensure that such entities have the opportunity to
participate in the competitive bidding process and in the provision of
multilateration LMS services. Any significant alternatives
[[Page 52081]]
presented in the comments will be considered.
21. IRFA Comments. The Commission requests written public comment
on the foregoing Initial Regulatory Flexibility Analysis. Comments must
have a separate and distinct heading designating them as responses to
the IRFA and must be filed by the deadlines provided in the Memorandum
and Order/Further Notice of Proposed Rulemaking.
22. Paperwork Reduction. The FNPRM has been analyzed with respect
to the Paperwork Reduction Act of 1995 and was found to impose no new
or modified information collection requirement on the public.
Implementation of any new or modified requirement will be subject to
approval by the Office of Management and Budget, as prescribed by the
Act.
23. Authority. This action is taken pursuant to sections 4(i),
5(b), 5(c)(1), 303(r), and 309(j) of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 155(b), 156(c)(1), 303(r), and 309(j).
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-26414 Filed 10-3-97; 8:45 am]
BILLING CODE 6712-01-P