[Federal Register Volume 63, Number 161 (Thursday, August 20, 1998)]
[Rules and Regulations]
[Pages 44585-44587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22401]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 96-199; FCC 98-182]


Finder's Preference Rule

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This action amends the rules to eliminate the finder's 
preference program in the 220-222 MHz band and in the 470-512 Mhz, 800 
MHz and 900 MHz Private Land Mobile Radio (PLMR) bands. This action is 
taken to facilitate geographic licensing in the 220-222 MHz band and to 
permit Commission resources presently devoted to the finder's 
preference program to be redirected to other, more efficient channel 
recovery methods. No further finder's preference requests will be 
accepted after the adoption date of the Report and Order, July 29, 
1998, an action which is procedural in nature and which is taken for 
good cause stated. Finder's preference requests pending as of the 
adoption date will be processed.

EFFECTIVE DATE: September 21, 1998.

FOR FURTHER INFORMATION CONTACT: Michael J. Wilhelm of the Public 
Safety and Private Wireless Division, Wireless Telecommunications 
Bureau at 202-418-0680 or via e-mail at [email protected].

SUPPLEMENTARY INFORMATION:
    1. This is a summary of the Commission's Report and Order (Report 
and Order) discontinuing the finder's preference program.
    2. Previously, the Commission adopted a Report and Order, 56 FR 
65857, December 19, 1991, wherein it established a finder's preference 
program that gave a dispositive licensing preference to persons who 
identified licensees who were not in compliance with the Commission's 
construction and operation rules.
    3. In the Second Memorandum Opinion and Order and Third Notice of 
Proposed Rulemaking in PR Docket No. 89-552, 60 FR 46564 (September 7, 
1995), the Commission proposed a new licensing plan for the 220-222 MHz 
service. That licensing plan provided for geographical, rather than 
site-specific licensing in the 220-222 MHz band.
    4. In the Notice of Proposed Rule Making in WT Docket No. 96-199 
(NPRM), 61 FR 51877 (October 4, 1996) the Commission proposed 
elimination of the finder's preference program in the 220-222 MHz band 
because it appeared inconsistent with the geographical licensing plan 
for that band. The NPRM also solicited comment on whether or not the 
finder's preference program should be maintained in the 470-512 Mhz, 
800 MHz and 900 MHz bands.
    5. Based on review of the record developed in response to the NPRM, 
the Commission concluded that the finder's preference program should be 
discontinued for the 220-222 MHz band and the 470-512 Mhz, 800 MHz and 
900 MHz bands. With respect to the 220-222 MHz band, the Commission 
found its decision to discontinue the finder's preference program was 
consistent with earlier actions it had taken in discontinuing the 
program in other bands. See First Report and Order, Eighth Report and 
Order and Second Notice of Proposed Rule Making in PR Docket No. 93-
144, PP Docket No. 93-253, 61 FR 6138 (February 16, 1996); Second Order 
on Reconsideration and Seventh Report and Order in PR Docket No. 89-
553, PP Docket No. 93-252, GN Docket No. 93-252, 60 FR 48913 (September 
21, 1995). Moreover, no commenting party opposed retention of the 
finder's preference program for the 220-222 MHz band. With respect to 
the 470-512 Mhz, 800 MHz and 900 MHz bands, after review of the record 
and internal Commission data regarding the finder's preference program, 
the Commission decided the program should be eliminated. The Commission 
did not find persuasive, comments filed by parties urging retention of 
the program notwithstanding its conceded problems, among them several 
protracted adversarial contests for ``found'' spectrum. The Commission 
determined that its own compliance review efforts had been more 
effective than the finder's preference program in yielding spectrum 
recovery. Finally, the Commission declined to assign the processing of 
finder's preference requests to frequency coordinators because the 
processing of such requests was outside the frequency coordinators' 
expertise and, in any event, appeals from frequency coordinators' 
decisions would require resolution by the Commission.
    6. Several commenting parties urged the Commission to process 
pending finder's preference requests rather than dismissing them, as 
the Commission had reserved the discretion to do in the NPRM. In light 
of the relatively few finder's preference requests still pending, the 
Commission determined that processing of those requests would not 
impose an undue burden on Commission resources and therefore agreed to 
process pending requests. However, to forestall an influx of 
speculative finder's preference requests before the rule eliminating 
the finder's preference program became effective, the Commission 
decided not to accept new finder's preference requests after the 
adoption date of the Order. The Commission determined that the 
avoidance of such an influx of new requests constituted good cause for 
not accepting further finder's preference requests and that, in any 
event, its action in declining to accept new requests was procedural in 
nature.

Ordering Clauses

    7. In view of the foregoing and pursuant to the authority contained 
in sections 4, 303, and 307 of the Communications Act of 1934, as 
amended, 47 U.S.C. Secs. 154, 303 and 307 it is ordered that part 90 of 
the Commission's Rules is amended and becomes effective September 21, 
1998. It is further ordered that effective upon adoption of this Report 
and Order, no additional finder's preference requests for the 220-222 
MHz band or the 470-512 MHz, 800 MHz, and 900 MHz PLMR bands will be 
accepted for filing.

Procedural Matters

    8. The Final Regulatory Flexibility Analysis pursuant to the 
Regulatory Flexibility Act, 5 U.S.C. Sec. 604, is contained in the 
attachment at the end of this document.

List of Subjects in 47 CFR Part 90

    Communications equipment, Radio.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    Part 90 of Chapter I of Title 47 of the Code of Federal 
Regulations, is amended as follows:

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

    1. The authority citation for part 90 continues to read as follows:

    Authority: Secs. 4, 251-2, 303, 309, and 332, 48 Stat. 1066, 
1082, as amended: 47 U.S.C. Secs. 154, 251-2, 303, 309, and 332, 
unless otherwise noted.

    2. Revise paragraph (k) of Sec. 90.173 to read as follows:


Sec. 90.173  Policies governing the assignment of frequencies.

* * * * *
    (k) This paragraph is only applicable to entities with Finder's 
Preference requests pending before the Commission as of July 29, 1998. 
Notwithstanding any other provisions of this part, any eligible person 
shall be given a dispositive

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preference for a channel assignment on an exclusive basis in the 220-
222 MHz, 470-512 MHz, and 800/900 MHz (except on frequencies designated 
exclusively for SMR service) bands by submitting information that leads 
to the recovery of channels in these bands. Recovery of such channels 
must result from information provided regarding the failure of existing 
licensees to comply with the provisions of Secs. 90.155, 90.157, 
90.629, 90.631 (e) or (f), or 90.633 (c) or (d).
* * * * *


Sec. 90.175  [Amended]

    3. Remove paragraph (i)(15) of Sec. 90.175.

Attachment--Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act, 5 U.S.C. Sec. 603 
(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rule Making in WT Docket No. 
96-199.1 The Commission sought written public comments on 
the proposals in the NPRM, including comments on the IRFA. The 
Commission's Final Regulatory Flexibility Analysis (FRFA) in this 
Report and Order conforms to the RFA, as amended by the Contract 
With America Advancement Act of 1996.2
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    \1\ Amendment of Part 90 Concerning the Commission's Finder's 
Preference Rules, Notice of Proposed Rule Making, WT Docket No. 96-
199, 11 FCC Rcd 13016 (1996) (NPRM).
    \2\ Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II 
of the CWAAA is ``The Small Business Regulatory Enforcement Fairness 
Act of 1996'' (SBREFA), codified at 5 U.S.C. Sec. 601 et seq.
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I. Need For and Objective of the Proposed Rule

    In the NPRM, as our objectives, we proposed to amend Part 90 of 
our Rules to eliminate the finder's preference program in the 220-
222 MHz band because we had proposed competitive bidding and 
geographic licensing for this band. The NPRM also sought comment on 
(1) whether the finder's preference program should be continued for 
Private Land Mobile Radio (PLMR) services in the 470-512 MHz, 800 
MHz, and 900 MHz bands because these bands had few, if any, finder's 
preference requests, (2) whether the Commission should delay 
processing finder's preference requests in the 220-222 MHz band, (3) 
whether the Commission should retain the discretion to dismiss 
pending finder's preference requests in any frequency band in which 
the finder's preference is eliminated, and (4) whether ongoing 
oversight and compliance review programs are adequate enforcement 
mechanisms so as to justify the elimination of the finder's 
preference program.
    In this Report and Order, we find that elimination of the 
finder's preference program in the 220-222 MHz, 470-512 MHz, 800 
MHz, and 900 MHz bands is appropriate. Pending finder's preference 
requests will be processed in accordance with Commission's rules.

II. Summary of Significant Issues Raised by the Public Comments in 
Response to the Initial Regulatory Flexibility Analysis

    No comments were submitted in direct response to the IRFA. We 
have, however, reviewed general comments that may impact small 
businesses.
    The only impact on small business from this Report and Order is 
the elimination of the finder's preference program and filings 
related thereto in the 220-222 MHz, 470-512 MHz, 800 MHz, and 900 
MHz bands. To date, only one finder's preference request has been 
filed in the 220-222 MHz band. The elimination of the finder's 
preference program in the 220-222 MHz band is predicated on the fact 
that geographic area licensing and competitive bidding have been 
adopted for this band.3 The competitive bidding and 
geographic area licensing framework has been designed to implement 
Congress's goal of giving small business and others the opportunity 
to participate in the provision of spectrum-based services in 
accordance with 47 U.S.C. Sec. 309(j)(4)(D). We eliminated the 
finder's preference program in the 800 MHz and 900 MHz bands when we 
adopted geographic area licensing and competitive bidding in those 
bands.4 Therefore, this Report and Order--which 
eliminates the finder's preference program in the 220-222 MHz band--
is consistent with our objective to promote efficient licensing and 
enhance the competitive potential of the 220-222 MHz band and is in 
accordance with the statutory directives of Section 309(j)(4)(D) of 
the Communications Act. We believe that the Commission's ongoing 
oversight and compliance programs are adequate and that the few 
number of finder's preference requests filed overall justify the 
elimination of the finder's preference program not only in the 220-
222 MHz band, but also in the 470-512 MHz, 800 MHz, and 900 MHz 
bands.
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    \3\ See Amendment of Part 90 of the Commission's Rules to 
Provide for the Use of the 220-222 MHz Band by the Private Land 
Mobile Radio Service, PR Docket No. 89-522, Implementation of 
Sections 3(n) and 332 of the Communications Act--Regulatory 
Treatment of Mobile Services, GN Docket No. 93-252, and 
Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, 220-222 MHz, Second Memorandum Opinion and 
Order and Third Notice of Proposed Rulemaking, PP Docket No. 93-253, 
11 FCC Rcd 188 (1995).
    \4\ Amendment of Parts 2 and 90 of the Commission's Rules to 
Provide for the Use of 200 Channels in the Designated Filing Areas 
in the 896-901 MHz Bands Allotted to the Specialized Mobile Radio 
Pool, Second Order on Reconsideration and Seventh Report and Order, 
11 FCC Rcd 2639 (1995); Amendment of Part 90 of the Commission's 
Rules to Facilitate Future Development of SMR Systems in the 800 MHz 
Frequency Band, Implementation of Sections 3(n) and 322 of the 
Communications Act Regulatory Treatment of Mobile Services, 
Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, First Report and Order, Eighth Report and 
Order, and Second Further Notice of Proposed Rulemaking, 11 FCC Rcd 
1463 (1995).
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III. Description and Estimate of the Number of Small Entities Affected 
by the Subject Rules

    The rules adopted in this Report and Order will require small 
businesses that desire spectrum in the 220-222 MHz band to 
participate in the geographic area licensing and competitive bidding 
process, with the exception of certain channels allocated to Public 
Safety and Special Emergency Radio Services (SERS) that are not 
subject to geographic area licensing. The process has been designed 
to enable small businesses to compete for spectrum. In the 470-512 
MHz, 800 MHz, and 900 MHz PLMR band services, as well as on those 
220-222 MHz channels allocated to Public Safety and SERS, small 
businesses may obtain channels in accordance with the Commission's 
licensing rules for those bands.
    The PLMR service plays an essential role in a vast range of 
industrial, business, land transportation, and public safety 
activities. PLMR systems are used by companies of all sizes 
operating in all U.S. business categories. Because of the vast array 
of PLMR users, the Commission has not developed nor would it be 
possible to develop a definition of small entities specifically 
applicable to PLMR users. For the purpose of determining whether a 
licensee is a small business as defined by the Small Business 
Administration (SBA), each licensee would need to be evaluated 
within its own business area.
    The NPRM requested comment on the number of small entities that 
use PLMR for their internal communications needs in the 220-222 MHz, 
470-512 MHz, 800 MHz, and 900 MHz bands and on the number of small 
entities that are likely to file finder's preference requests to 
obtain spectrum for their own internal communications needs. No 
comments were received. Therefore, the Commission is unable at this 
time to determine the number of small businesses which could be 
impacted by the amended rules. However, the Commission's fiscal year 
1994 annual report indicates that at the end of fiscal year 1994, 
there were 1,101,711 licensees operating 12,882,623 transmitters in 
the PLMR bands below 512 MHz. There are also significant numbers of 
licensees in PLMR above 512 MHz.
    The RFA also includes small governmental entities as part of the 
regulatory flexibility analysis.5 The definition of small 
governmental entity is one with a population of less than 
50,000.6 There are over 85,006 governmental entities in 
the nation.7 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 has 
populations fewer than 50,000. This number, however, includes 38,978 
counties, cities, and towns, and of those 37,566, or 96 percent, 
have populations fewer than 50,000.8 The Census Bureau 
estimates that this ratio is approximately accurate for all 
governmental entities.9 Thus, of the 85,006 governmental 
entities, we estimate that 96 percent, or

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81,600 are small entities that may be affected by our rules.
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    \5\ See 5 U.S.C. Sec. 601(5) (including cities, counties, towns, 
townships, villages, school districts, or special districts).
    \6\ Id.
    \7\ 1992 Census of Governments, U.S. Bureau of the Census, U.S. 
Department of Commerce.
    \8\ Id.
    \9\ Id.
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IV. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rules

    This Report and Order eliminates the finder's preference program 
in the 220-222 MHz, 470-512 MHz, 800 MHz, and 900 MHz PLMR bands. 
The administrative requirements and related costs for filing such 
finder's preference requests are eliminated. Therefore, no new 
requirements are imposed by this action.

V. Steps Taken by Agency To Minimize Significant Economic Impact on 
Small Entities Consistent With Stated Objectives

    This Report and Order eliminates the finder's preference program 
in the 220-222 MHz band because we have adopted geographic area 
licensing and competitive bidding in this band. The competitive 
bidding and geographic area licensing framework has been designed to 
implement Congress' goal of providing small businesses and others 
the opportunity to participate in the provision of spectrum-based 
services in accordance with 47 U.S.C. 309(j)(4)(D). We eliminated 
the finder's preference program in the 800 MHz and 900 MHz SMR bands 
when we adopted geographic area licensing and competitive bidding. 
Therefore, the Report and Order is consistent with our objective to 
promote efficient licensing and enhancement of the competitive 
potential of the 220-222 MHz band and is in accordance with the 
statutory directives of Section 309(j)(4)(D) of the Communications 
Act. The elimination of the finder's preference program in the 470-
512 MHz, 800 MHz, and 900 MHz PLMR bands should not affect small 
businesses because the Commission's ongoing oversight and compliance 
programs are adequate to ensure that unused spectrum is returned and 
re-assigned efficiently. Additionally, any returned channels in 
these bands may be applied for by PLMR providers, which are 
primarily small businesses.

VI. Report to Congress

    The Commission will send a copy of this Final Regulatory 
Flexibility Analysis along with the Report and Order, in a report to 
Congress pursuant to the SBREFA.\10\

    \10\ See 5 U.S.C. Sec. 801(a)(1)(A).
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    Note: This attachment will not appear in the Code of Federal 
Regulations.
[FR Doc. 98-22401 Filed 8-19-98; 8:45 am]
BILLING CODE 6712-01-P