[Federal Register Volume 63, Number 27 (Tuesday, February 10, 1998)]
[Rules and Regulations]
[Pages 6669-6675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2757]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 2

[ET Docket No. 97-157; FCC 97-421]


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

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: By this Report and Order (``R&O''), the Commission reallocates 
the 746-806 MHz band, currently television (TV) channels 60-69, as 
proposed in the Notice of Proposed Rule Making (``Notice'') in this 
proceeding. In consultation with the Secretary of Commerce and the 
Attorney General, we allocate 24 megahertz of this band, at 764-776 MHz 
and 794-806 MHz, on a primary basis to the fixed and mobile services, 
and designate this spectrum for public safety use. We allocate the 
remaining 36 megahertz of the band on a primary basis to the fixed, 
mobile, and new broadcasting services for commercial use, to be 
assigned by auction. During the digital television (``DTV'') transition 
period, TV channels 60-69 will continue to be used for analog and 
digital TV broadcasting. We are establishing policies for the 
protection of such stations during the DTV transition. We are also 
providing for continued use of TV channels 60-69 on a secondary basis 
for low power TV and translator stations until the end of the DTV 
transition period.

EFFECTIVE DATE: April 13, 1998.

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

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, ET Docket 97-157, FCC 97-421, adopted December 31, 1997, and 
released January 6, 1998. 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, 1231 
20th Street, N.W. Washington, D.C. 20036.

Summary of the Report and Order

    1. This Report and Order reallocates the 746-806 MHz band, 
currently comprising television (TV) channels 60-69, as proposed in the 
Notice of Proposed Rule Making in this proceeding, 62 FR 41012, July 
31, 1997. The Balanced Budget Act of 1997 (Budget Act) requires the 
allocation of 24 megahertz of spectrum for public safety from TV 
channels 60-69, in consultation with the Secretary of Commerce and the 
Attorney General, not later than January 1, 1998.1 There is 
inadequate spectrum to meet the needs of many public safety 
organizations, particularly in major metropolitan regions. Public 
safety requires spectrum to facilitate interoperability and for new 
types of communications capabilities that will strengthen and enhance 
public safety. Therefore, as required by the Budget Act, after 
consulting with and considering the views of the Secretary of Commerce 
and the Attorney General, we are allocating 24 MHz of spectrum (TV 
Channels 63, 64, 68, and 69, or, in other words, the 764-776 MHz and 
794-806 MHz bands) to the fixed and mobile services on a primary basis 
for public

[[Page 6670]]

safety services.2 We have initiated a separate proceeding to 
establish the rules that will govern how this spectrum will be used by 
public safety agencies. Also in accordance with the Budget Act, we are 
allocating the remaining 36 megahertz of channels 60-69 to the fixed 
and mobile services on a primary basis, and retaining the primary 
allocation of this spectrum to the broadcasting service. Licenses in 
this 36 megahertz of spectrum will be assigned to commercial licensees 
through competitive bidding in accordance with procedures that will be 
determined in a later proceeding. This 36 megahertz of commercial 
spectrum can be used to make new technologies and services available to 
the American public. These proposals are an outgrowth of our digital 
television (DTV) transition plan. During the DTV transition, channels 
60-69 will continue to be used for analog and digital TV broadcasting. 
We are establishing policies for the protection of such stations during 
the DTV transition. We are also providing for continued use of TV 
channels 60-69 on a secondary basis for low power TV and translator 
stations until the end of the DTV transition period.
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    \1\ See Budget Act, section 3004 (adding new section 337 of the 
Communications Act).
    \2\ The Budget Act provides that this spectrum is to be 
allocated ``for public safety services according to the terms and 
conditions established by the Commission, in consultation with the 
Secretary of Commerce and the Attorney General.'' Budget Act section 
3004(a)(1). Section 3004 of the Budget Act defines public safety 
services as
    Services--
    (A) The sole or principal purpose of which is to protect the 
safety of life, health, or property;
    (B) That are provided--
    (i) By State or local government entities; or
    (ii) By nongovernmental organizations that are authorized by a 
governmental entity whose primary mission is the provision of such 
services; and
    (C) That are not made commercially available to the public by 
the provider.

    Budget Act section 3004(f)(1).
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    2. We do not adopt an alternative proposal to allocate channels 66-
69 for public safety instead of channels 63, 64, 68, and 69. It is not 
clear that this alternative proposal would reduce adjacent channel 
interference. In any event, properly crafted technical rules will 
minimize adjacent channel interference. More importantly, this proposal 
would have a severe impact on public safety radio communications 
equipment. We anticipate that much of the public safety communications 
in the 746-806 MHz band will be two-way. Two-way radios require 
filtering to permit simultaneous transmission and reception. Small 
separations between transmit and receive frequencies increase the size, 
weight, power requirements, and cost of these radios. The mobile nature 
of public safety communications requires that these factors be 
minimized to the extent possible. Manufacturers of radio equipment have 
expressed confidence in their ability to design two-way public safety 
radios with transmit/receive separations of 30 megahertz. On the other 
hand, shorter separations, such as the 12 megahertz suggested by the 
alternate proposal, would significantly increase the cost and weight of 
public safety radio equipment. Further, the 30 megahertz separation 
proposed in the Notice will allow the design of public safety equipment 
more compatible with, and more easily integrated into, current public 
safety systems in the 800 MHz band. On balance, we believe that 
channels 63, 64, 68, and 69 are most appropriate for public safety use, 
and therefore, we are reallocating the 764-776 MHz and 794-806 MHz 
bands to the fixed and mobile services for this purpose.
    3. We reject the argument that broadcasting should not retain an 
allocation in the 36 megahertz of commercial spectrum after the DTV 
transition. Commenters generally agreed that including full power 
broadcasting in this spectrum is likely to cause interference problems 
with other commercial applications, especially low-power mobile 
applications. We recognize that technical challenges are involved in 
sharing spectrum between full power broadcasting and land mobile 
services. However, we plan to address sharing issues in our service 
rules proceeding, and are not persuaded that such sharing is not 
feasible. At the same time, we wish to make it clear that analog TV and 
DTV operations not licensed by competitive bidding as provided by the 
Budget Act will be required to vacate this spectrum in accordance with 
the DTV transition plan. Finally, we find that this allocation will not 
deter investment in new communications services or systems, because the 
746-806 MHz band is highly desirable spectrum for fixed, mobile, and 
broadcasting operations, any of which are likely to attract investment 
interest.
    4. We observe that our DTV transition plan is currently under 
review in a separate proceeding, and that additional DTV allotments are 
under consideration for channels 60-69. However, we reject the argument 
that we should avoid reallocating this spectrum in order to provide a 
``safe haven'' for addressing problems that may arise during the DTV 
transition. As an initial matter, we note that the Budget Act directs 
the Commission to allocate 24 megahertz of this spectrum for public 
safety use and 36 megahertz for commercial use by January 1, 1998. Thus 
we do not have the latitude to delay reallocation of this spectrum. 
Moreover, even if we had the discretion to do so, we do not believe it 
would be necessary to retain this spectrum as a ``safe haven''. The DTV 
transition plan is the product of extensive technical study and review. 
If problems should arise, in most cases alternative solutions to use of 
channels 60-69 will be available. The limited potential benefits of 
retaining channels 60-69 as a ``safe haven'' are outweighed by the 
costs of delaying much needed public safety services and opportunities 
for new services. We also find no merit in the argument that we should 
remove immediately all TV broadcasting operations from TV channels 60-
69. The operation of some TV and DTV stations in this spectrum is 
clearly required to facilitate the DTV transition; and the Budget Act 
provides for this, stating ``[a]ny person who holds a television 
broadcast license to operate between 746 and 806 megahertz may not 
operate at that frequency after the date on which the digital 
television service transition period terminates, as determined by the 
Commission.''
    5. We recognize that the DTV transition and the reallocation of TV 
channels 60-69 to other services will have a significant impact on LPTV 
and TV translators. While we are committed to take reasonable steps to 
reduce the impact on such operations, we are obligated to facilitate 
the DTV transition and to reallocate the TV channels 60-69 as directed 
under the Budget Act. Section 3004 of the Budget Act states that anyone 
holding a television broadcast license in the band ``may not operate at 
that frequency after the date on which the digital television 
transition period terminates, as determined by the Commission.'' 
3 This provision of the Budget Act leaves us no latitude in 
clearing LPTV and TV translator stations from the band at the end of 
the DTV transition period. We will permit LPTV and TV translators to 
continue to operate on channels 60-69 until the end of the DTV 
transition period, as long as they do not cause harmful interference to 
primary services. The DTV transition period is currently scheduled to 
end December 31, 2006, but may be extended in some markets for several 
reasons.4 In many rural areas, LPTV and TV translator 
licensees will be able to continue

[[Page 6671]]

broadcasting because demand for spectrum for both public safety and 
commercial applications is likely to be less in rural areas than in 
urban areas.
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    \3\ See Budget Act section 3004 (adding new section 337(e)(1) of 
the Communications Act).
    \4\ Budget Act section 3003 (adding new section 309(j)(14) of 
the Communications Act) establishes the conditions under which the 
Commission shall extend the end of the DTV transition period beyond 
December 31, 2006.
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    6. LPTV operators also can be accommodated in other ways. We will 
consider whether there are any other steps that may be of benefit to 
LPTV and TV translator operations as we develop service rules for the 
commercial spectrum. We emphasize that all the provisions we made in 
the DTV Proceeding Sixth Report and Order to accommodate LPTV and TV 
translator stations also apply to LPTV and TV translator stations in 
channels 60-69.
    7. We believe that most holders of TV station construction permits 
in channels 60-69 are sufficiently advanced in the licensing process 
that it would be inequitable to rescind their permits. At the same 
time, as we pointed out in the Notice, there are outstanding 
construction permits that were issued years ago, on which there has 
been little progress. In order to ensure that holders of construction 
permits, both for new facilities and modification of existing 
facilities, progress in construction, we are establishing a deadline by 
which construction must be completed. We believe that three years is 
sufficient time for current construction permits to build or improve 
their facilities, and also provides a date certain for planning 
purposes for public safety agencies and commercial entities. Therefore, 
we will cancel any construction permit issued before the release date 
of this Report and Order for which no license application has been 
filed as of January 2, 2001.
    8. We decline to indefinitely protected analog TV stations up to 
their maximum possible coverage. Such a measure would deny areas of the 
country to public safety and commercial licensees, even though the 
current licensees may never increase their coverage to the maximum. 
Accordingly, we will protect analog TV licensees up to their actual 
coverage until the end of the DTV transition period. In this regard, we 
will process requests for minor modifications to existing analog TV 
stations and construction permits. However, the planning and 
development of new services would be impeded if we were to permit 
modifications that increase service area on an indefinite basis. We 
believe that licensees have been aware of the DTV transition plan and 
have had the opportunity to plan necessary modifications. Accordingly, 
as of six months after the release date of this Report and Order we 
will no longer accept requests for modifications to increase the 
service areas of stations operating on TV channels 60-69. With regard 
to DTV, we will protect the full coverage area until the end of the DTV 
transition period.5 We recognize that stations may not be 
able to provide full coverage initially and we do not wish to impede 
growth and development of DTV.
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    \5\ DTV coverage areas are established in the DTV Sixth Report 
and Order, Paras. 29-33.
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    9. In the DTV Sixth Further Notice of Proposed Rule Making, we 
provided a final opportunity for the filing of new applications for 
analog stations for vacant allotments and rule making petitions to add 
channels to the TV Table of Allotments, thereby accommodating parties 
who were in the process of preparing application and rule making 
submissions. We are aware of the investment in planning, effort, and 
money that have been put into these and other pending applications and 
petitions to amend the TV allotment table. However, we continue to 
believe that it is important to maximize the utility of the 746-806 MHz 
band for public safety and new commercial services. For these reasons, 
we will not authorize additional new analog full-service television 
stations on channels 60-69. However, we will at a later date provide 
applicants and petitioners an opportunity to amend their applications 
and petitions, if possible, to seek a channel below channel 60. We will 
thereafter dismiss any applications or allotment petitions that are not 
satisfactorily amended. We direct the Mass Media Bureau to announce the 
details of this amendment opportunity by Public Notice, at a date after 
we complete action on our broadcast auction proceeding and the 
petitions for reconsideration in the DTV proceeding. To encourage 
settlements among mutually exclusive applicants, we authorize the Mass 
Media Bureau to waive for this special amendment opportunity the rule 
which limits reimbursements of applicants to legitimate and prudent 
expenses (47 CFR 73.3525(a)(3)). Finally, we note that all conditions 
pertaining to the applications and rule making petitions will continue 
to apply.

Final Regulatory Flexibility Analysis

    10. As required by the Regulatory Flexibility Act 
(RFA),6 the Commission incorporated an Initial Regulatory 
Flexibility Analysis (IRFA) of the expected significant economic impact 
on small entities in the Notice of Proposed Rule Making (Notice) in 
this proceeding. The Commission sought written public comments on the 
proposals in the Notice, including the IRFA. This Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA, as amended by the 
Contract With America Advancement Act of 1996 (CWAAA), Public Law 104-
121, 110 Stat. 847.7
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    \6\ 5 U.S.C. 603.
    \7\ Public Law 104-121, 110 Stat. 847 (1996)(CWAAA, Subtitle II 
of the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), codified at 5 U.S.C. 601 et seq.).
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A. Need for and Purpose of This Action

    11. In this Report and Order, the Commission reallocates the 746-
806 MHz band, television (TV) Channels 60-69, to other services. We 
allocate 24 megahertz at 764-776 MHz and 794-806 MHz for public safety 
use. We 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 assure the 
protection of full-power TV stations in the band until the transition 
to digital television (DTV) is complete, and retain the secondary 
status in the band of Low Power TV (LPTV) and TV translator stations 
until the end of the DTV transition period. These allocations will 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

    12. This action is taken pursuant to Sections 4(i), 303(c), 303(f), 
303(g), 303(r), and 337(a) of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 303(c), 303(f), 303(g), 303(r), and 337(a); 
and section 3004 of the Balanced Budget Act of 1997, Public Law 105-33, 
111 Stat. 251 section 3004 (1997).

C. Summary of Issues Raised by the Public Comments in Response to the 
IRFA

    13. One commenter responded to the IRFA. The Mountain Broadcasting 
Corporation (Mountain) states that individual small businesses in the 
televsion broadcasting industry will be harmed by interference and loss 
of service resulting from our attempts to clear channels 60-69, while 
providing interference protection for DTV service during the DTV 
transition. Mountain contends that existing analog UHF stations must be 
protected from interference from new DTV stations.8
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    \8\ See Mountain Comments at 5-6.

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[[Page 6672]]

D. Changes Made to the Proposed Rules

    14. In the Notice in this proceeding, released July 10, 1997, we 
proposed to reallocate the 746-806 MHz band, currently comprising TV 
channels 60-69. We proposed to allocate 24 megahertz, at 764-776 MHz 
and 794-806 MHz (channels 63, 64, 68, and 69) to the fixed and mobile 
services, for the exclusive use of public safety services. We proposed 
to allocate the remaining 36 megahertz, at 746-764 MHz and 776-794 MHz 
(channels 60-62 and 65-67) to the fixed, mobile, and broadcasting 
services. We stated in the Notice that we anticipated that licenses in 
this 36 megahertz of spectrum would be assigned through competitive 
bidding. We also inquired into protection of TV stations on channels 
60-69 from interference by new licensees during the DTV transition 
period, but deferred specific interference protection standards to a 
separate proceeding on service rules for the 746-806 MHz band. We 
reaffirmed the secondary status of LPTV and TV translators in the 
entire 746-806 MHz band until the end of the DTV transition period, and 
inquired whether we should take any other measures to accommodate LPTV 
in the band.
    15. This Report and Order contains no substantial changes to the 
Notice. The only commenter who addressed the IRFA in the Notice 
addressed potential DTV-to-analog TV interference problems. This was 
not an issue in this proceeding; it was therefore impossible to address 
the comment in this Report and Order.

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

    16. 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.
    17. 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 
over inclusive 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 over inclusive 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.
    18. Television station estimates based on census data. The Notice 
of Proposed Rule Making 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.9 Television broadcasting stations consist of 
establishments primarily engaged in broadcasting visual programs by 
television to the public, except cable and other pay television 
services.10 Included in this industry are commercial, 
religious, educational, and other television stations.11 
Also included are establishments primarily engaged in television 
broadcasting and which produce taped television program 
materials.12 Separate establishments primarily engaged in 
producing taped television program materials are classified under 
another SIC number. 13
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    \9\ 13 CFR 121.201, Standard Industrial Code (SIC) 4833 (1996).
    \10\ 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).
    \11\ 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.
    \12\ Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, supra note 7, Appendix A-9.
    \13\ Id.; SIC 7812 (Motion Picture and Video Tape Production); 
SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services 
(producers of live radio and television programs).
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    19. There were 1,509 television stations operating in the nation in 
1992.14 That number has remained fairly constant as 
indicated by the approximately 1,551 operating television broadcasting 
stations in the nation as of February 28, 1997.15 For 
199216 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.17 
Thus, the rules will affect approximately 1,551 television stations; 
approximately 1,194 of those stations are considered small 
businesses.18 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.19 According to the

[[Page 6673]]

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.20
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    \14\ FCC News Release No. 31327, Jan. 13, 1993; Economics and 
Statistics Administration, Bureau of Census, U.S. Department of 
Commerce, supra note 7, Appendix A-9.
    \15\ FCC News Release No. 7033, March 6, 1997.
    \16\ 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.
    \17\ 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.
    \18\ 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.
    \19\ 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.
    \20\ 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.
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    20. 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.21 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.
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    \21\ FCC News Release No. 7033, March 6, 1997.
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    21. 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.22 Thus, radio or television 
stations with fewer than five full-time employees are exempted from 
certain EEO reporting and record keeping requirements.23 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 
136.24
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    \22\ 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. 
632(a), as amended by section 222 of the Small Business Credit and 
Business Opportunity Enhancement Act of 1992, Public Law 102-366, 
section 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, section 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).
    \23\ See, e.g., 47 CFR 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). 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 9964, 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.
    \24\ 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.
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    22. 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 110 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.
    23. The RFA also includes small governmental entities as a part of 
the regulatory flexibility analysis.25 The definition of a 
small governmental entity is one with a population of fewer than 
50,000.26 There are approximately 85,006 governmental 
entities in the nation.27 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 50,000.28 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.
---------------------------------------------------------------------------

    \25\ 5 U.S.C. 601(5).
    \26\ Id.
    \27\ 1992 Census of Governments, U.S. Bureau of the Census, U.S. 
Department of Commerce.
    \28\ Id.
---------------------------------------------------------------------------

F. Description of Projected Reporting, Record Keeping and Other 
Compliance Requirements

    24. None.

G. Significant Alternatives Considered and Rejected

    25. We do not 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 made public safety and commercial services 
primary in the band. We affirm measures which will allow as many LPTV 
and TV translator stations as possible to remain in operation until the 
end of the DTV transition period. We 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.

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

    26. None.

List of Subjects in 47 CFR Part 2

    Frequency allocations and radio treaty matters, Radio.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Rules Changes

    For the reasons discussed in the preamble part 2 of title 47 of the 
Code of Federal Regulations, is amended as follows:

[[Page 6674]]

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

    1. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302, 303, 307, and 336, unless 
otherwise noted.

    2. Section 2.106, the Table of Frequency Allocations, is amended as 
follows:
    a. Remove the existing entries for 614-790 MHz and 790-806 MHz.
    b. Add entries in numerical order for 614-746 MHz through 794-
806MHz.
    c. In the International Footnotes under heading I., add footnotes 
S5.293, S5.296, S5.300, S5.309, S5.310, S5.311, S5.312, S5.313, S5.314, 
S5.315, and S5.316 in numerical order.
    d. In the Non-Government (NG) Footnotes, remove footnotes NG30 and 
NG43, revise footnote NG149, and add in numerical order footnotes NG158 
and NG159.
    The revisions and additions read as follows:


Sec. 2.106  Table of Frequency Allocations.

* * * * *

                                                                                                                
                 International table                        United States table          FCC use designators    
----------------------------------------------------------------------------------------------------------------
                                                         Government        Non-                                 
                      Region 2--        Region 3--    ---------------   Government                              
    Region 1--      allocation MHz    allocation MHz                 ---------------     Rule       Special-use 
  allocation MHz                                         Allocation     Allocation     part(s)      frequencies 
                                                            MHz            MHz                                  
(1)                (2)               (3)               (4)            (5)            (6)          (7)           
----------------------------------------------------------------------------------------------------------------
        *                  *                 *               *              *             *              *      
614-746            614-746           614-746           614-746        614-746        RADIO                      
BROADCASTING       BROADCASTING      FIXED                            BROADCASTING    BROADCAST                 
                   Fixed             MOBILE                                           (TV) (73)                 
                   Mobile            BROADCASTING                                    Auxiliary                  
                                                                                      Broadcasti                
                                                                                      ng (74)                   
S5.296 S5.300      S5.293 S5.309                                                                                
 S5.311             S5.310                                                                                      
S5.312             S5.311            S5.311                           NG128 NG149                               
746-764            746-764           746-764           746-764        746-764        PRIVATE                    
BROADCASTING       BROADCASTING      FIXED                            FIXED           LAND                      
                   Fixed             MOBILE                           MOBILE          MOBILE                    
                   Mobile            BROADCASTING                     BROADCASTING    (90)                      
                                                                                     RADIO                      
                                                                                      BROADCAST                 
                                                                                      (TV) (73)                 
                                                                                     WIRELESS                   
                                                                                      COMMUNICAT                
                                                                                      IONS (27)                 
                                                                                     Auxiliary                  
                                                                                      Broadcasti                
                                                                                      ng (74)                   
S5.296 S5.300      S5.293 S5.309                                                                                
 S5.311             S5.310           S5.311                           NG128 NG159                               
S5.312             S5.311                                                                                       
764-776            764-776           764-776           764-776        764-776                                   
BROADCASTING       BROADCASTING      FIXED                            FIXED          PRIVATE                    
                   Fixed             MOBILE                           MOBILE          LAND                      
                   Mobile            BROADCASTING                                     MOBILE                    
                                                                                      (90)                      
                                                                                     Auxiliary                  
                                                                                      Broadcasti                
                                                                                      ng (74)                   
S5.312 S5.313                                                                                                   
 S5.314                                                                                                         
S5.315 S5.316      S5.293 S5.309     S5.311                           NG128 NG159                               
                    S5.310                                                                                      
776-790            776-790           776-790           776-790        776-790                                   
BROADCASTING       BROADCASTING      FIXED                            FIXED          PRIVATE                    
                   Fixed             MOBILE                           MOBILE          LAND                      
                   Mobile            BROADCASTING                     BROADCASTING    MOBILE                    
                                                                                      (90)                      
                                                                                     RADIO                      
                                                                                      BROADCAST                 
                                                                                      (TV) (73)                 
                                                                                     WIRELESS                   
                                                                                      COMMUNICAT                
                                                                                      IONS (27)                 
                                                                                     Auxiliary                  
                                                                                      Broadcasti                
                                                                                      ng (74)                   
S5.312 S5.313                                                                                                   
 S5.314                                                                                                         
S5.315 S5.316                                                                                                   
                   S5.293 S5.309     S5.311                           NG128 NG158                               
                    S5.310                                             NG159                                    
790-794            790-794           790-794           790-794        790-794                                   
FIXED              BROADCASTING      FIXED                            FIXED          PRIVATE                    
BROADCASTING       Fixed             MOBILE                           MOBILE          LAND                      
                   Mobile            BROADCASTING                     BROADCASTING    MOBILE                    
                                                                                      (90)                      
                                                                                     RADIO                      
                                                                                      BROADCAST                 
                                                                                      (TV) (73)                 
                                                                                     WIRELESS                   
                                                                                      COMMUNICAT                
                                                                                      IONS (27)                 
                                                                                     Auxiliary                  
                                                                                      Broadcasti                
                                                                                      ng (74)                   

[[Page 6675]]

                                                                                                                
S5.312 S5.313                                                                                                   
 S5.314                                                                                                         
S5.315 S5.316      S5.293 S5.309     S5.311                           NG128 NG159                               
                    S5.310                                                                                      
794-806            794-806           794-806           794-806        794-806                                   
FIXED              BROADCASTING      FIXED                            FIXED          PRIVATE                    
BROADCASTING       Fixed             MOBILE                           MOBILE          LAND                      
                   Mobile            BROADCASTING                                     MOBILE                    
                                                                                      (90)                      
                                                                                     Auxiliary                  
                                                                                      Broadcasti                
                                                                                      ng (74)                   
S5.312 S5.313                                                                                                   
 S5.314                                                                                                         
S5.315 S5.316      S5.293 S5.309                                      NG128 NG158                               
                    S5.310                                             NG159                                    
        *                  *                 *               *              *             *              *      
----------------------------------------------------------------------------------------------------------------

International Footnotes

* * * * *

I. New ``S'' Numbering Scheme

* * * * *
    S5.293  Different category of service: in Chile, Colombia, Cuba, 
the United States, Guyana, Honduras, Jamaica, Mexico and Panama, the 
allocation of the bands 470-512 MHz and 614-806 MHz to the fixed and 
mobile services is on a primary basis, (see No. S5.33), subject to 
agreement obtained under Article 14/No. S9.21.
    S5.296  Additional allocation: in Germany, Austria, Belgium, 
Cyprus, Denmark, Spain, Finland, France, Ireland, Israel, Italy, 
Libya, Malta, Morocco, Monaco, Norway, the Netherlands, Portugal, 
the United Kingdom, Sweden, Switzerland, Swaziland, Syria, Tunisia 
and Turkey, the band 470-790 MHz is also allocated on a secondary 
basis to the land mobile service, intended for applications 
ancillary to broadcasting. Stations of the land mobile service in 
the countries mentioned in this footnote, shall not cause harmful 
interference to existing or planned stations operating in accordance 
with the Table of Frequency Allocations in countries other than 
those listed in this footnote.
    S5.300  Additional allocation: in Israel, Libya, Syria and 
Sudan, the band 582-790 MHz is also allocated to the fixed and 
mobile, except aeronautical mobile, services on a secondary basis.
    S5.309  Different category of service: in Costa Rica, El 
Salvador and Honduras, the allocation of the band 614-806 MHz to the 
fixed service is on a primary basis (see No. S5.33), subject to 
agreement obtained under Article 14/No. S9.21.
    S5.310  Additional allocation: in Cuba, the band 614-890 MHz is 
also allocated to the radionavigation service on a primary basis, 
subject to agreement obtained under Article 14/No. S9.21.
    S5.311  Within the frequency band 620-790 MHz, assignments may 
be made to television stations using frequency modulation in the 
broadcasting-satellite service subject to agreement between the 
administrations concerned and those having services, operating in 
accordance with the Table, which may be affected (see Resolutions 33 
and 507). Such stations shall not produce a power flux-density in 
excess of the value-129 dB(W/m2) for angles of arrival 
less than 20 deg. (see Recommendation 705) within the territories of 
other countries without the consent of the administrations of those 
countries.
    S5.312  Additional allocation: in Armenia, Azerbaijan, Belarus, 
Bulgaria, Georgia, Hungary, Kazakhstan, Latvia, Lithuania, Moldova, 
Mongolia, Uzbekistan, Poland, Kyrgyzstan, Slovakia, the Czech 
Republic, Romania, Russia, Tajikistan, Turkmenistan and Ukraine, the 
band 645-862 MHz is also allocated to the aeronautical 
radionavigation service on a primary basis.
    S5.313  Alternative allocation: in Spain and France, the band 
790-830 MHz is allocated to the broadcasting service on a primary 
basis.
    S5.314  Additional allocation: in Austria, Italy, the United 
Kingdom and Swaziland, the band 790-862 MHz is also allocated to the 
land mobile service on a secondary basis.
    S5.315  Alternative allocation: in Greece, Italy, Morocco and 
Tunisia, the band 790-838 MHz is allocated to the broadcasting 
service on a primary basis.
    S5.316  Additional allocation: in Germany, Bosnia and 
Herzegovina, Burkina Faso, Cameroon, Cote d'Ivoire, Croatia, 
Denmark, Egypt, Finland, Israel, Kenya, The Former Yugoslav Republic 
of Macedonia, Libya, Liechtenstein, Monaco, Norway, the Netherlands, 
Portugal, Sweden, Switzerland and Yugoslavia, the band 790-830 MHz, 
and in these same countries and in Spain, France, Gabon, Malta and 
Syria, the band 830-862 MHz, are also allocated to the mobile, 
except aeronautical mobile, service on a primary basis. However, 
stations of the mobile service in the countries mentioned in 
connection with each band referred to in this footnote shall not 
cause harmful interference to, or claim protection from, stations of 
services operating in accordance with the Table in countries other 
than those mentioned in connection with the band.
* * * * *

Non-Government (NG) Footnotes

* * * * *
    NG149  The frequency bands 54-72 MHz, 76-88 MHz, 174-216 MHz, 
470-512 MHz, 512-608 MHz, and 614-746 MHz are also allocated to the 
fixed service to permit subscription television operations in 
accordance with Part 73 of the rules.
* * * * *
    NG158  The frequency bands 764-776 MHz and 794-806 MHz are 
available for assignment exclusively to the public safety services, 
to be defined in Docket No. WT 96-86.
    NG159  Full power analog television stations licensed pursuant 
to applications filed before January 2, 2001, and new digital 
television (DTV) broadcasting operations in the 746-806 MHz band 
will be entitled to protection from harmful interference until the 
end of the DTV transition period. After the end of the DTV 
transition period, the Commission may assign licenses in the 746-806 
MHz band without regard to existing television and DTV operations.
    Low power television and television translators in the 746-806 
MHz band must cease operations in the band at the end of the DTV 
transition period.
* * * * *
[FR Doc. 98-2757 Filed 2-9-98; 8:45 am]
BILLING CODE 6712-01-P