[Federal Register Volume 64, Number 129 (Wednesday, July 7, 1999)]
[Proposed Rules]
[Pages 36642-36657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17143]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 27 and 73
[WT Docket No. 99-168; FCC 99-97]
Service Rules for the 746-764 and 776-794 MHz Bands and Revisions
to the Commission's Rules Regarding Wireless Communications Service
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document proposes new service rules for commercial
licensing in the 746-764 and 776-794 MHz bands
[[Page 36643]]
that have been reallocated from use solely for the Broadcasting
service. These proposed service rules include provisions for
application licensing, technical and operating rules and competitive
bidding. This action is another step in the Commission's program to
implement sections of the Balanced Budget Act of 1997 which direct the
Commission to complete reallocation of this spectrum by December 31,
1997, and commence competitive bidding for the commercial licenses of
the reallocated spectrum after January 1, 2001. This document contains
proposed or modified information collections subject to the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13. The general public and
other Federal agencies are invited to comment on the proposed or
modified information collections contained in this proceeding.
DATES: Comments are due on or before July 19, 1999 and reply comments
are due on or before August 13, 1999. Written comments by the public
and by other Government agencies on the proposed information
collections are due September 7, 1999.
ADDRESSES: Federal Communications Commission, Office of the Secretary,
445 12th Street, S.W., Washington, D.C. 20554. In addition to filing
comments with the Secretary, a copy of any comments on the information
collections contained in the NPRM should be submitted to Les Smith,
Federal Communications Commission, Room 1-A804, 445 12th Street, S.W.,
Washington, D.C. 20554, or via the Internet to [email protected].
FOR FURTHER INFORMATION CONTACT: Legal Information: Stan Wiggins, 202-
418-1310. Technical Information: Ed Jacobs, 202-418-1310. For
additional information concerning the information collections contained
in the NPRM, contact Les Smith at 202-418-0217, or via the Internet at
[email protected].
SUPPLEMENTARY INFORMATION: This is a synopsis of the NPRM in WT Docket
No. 99-168, FCC 99-97, adopted May 13, 1999, and released June 3, 1999.
The complete text of the NPRM is available for inspection and copying
during normal business hours in the FCC Reference Information Center,
Courtyard Level, 445 12th Street, S.W., Washington, D.C., and also may
be purchased from the Commission's copy contractor, International
Transcription Services (ITS, Inc.), (202) 857-3800, CY-B400, 445 12th
Street, S.W., Washington, D.C. 20054.
Introduction; Background
1. This Notice of Proposed Rulemaking (NPRM) proposes new service
rules for commercial licensing in the 746-764 MHz and 776-794 MHz bands
that have been reallocated from use solely for the Broadcasting
service. These proposed service rules include provisions for
application licensing, technical and operating rules, and competitive
bidding. The revised spectrum allocation in the Reallocation Report and
Order 1 provided for the potential provision of Fixed,
Mobile, and Broadcasting services on these bands. This NPRM seeks
comment on the degree of flexibility that should be afforded new
licensees using this spectrum, and the technical and other service
rules that should govern the range of services enabled. This NPRM also
seeks comment on methods to assure continued protection of existing
full service television stations that will continue to operate on these
bands during the transition to digital television (DTV).2
This NPRM is a further step in the Commission's proceeding to comply
with section 337 of the Communications Act.3 That section
directs the Commission to complete the reallocation of this spectrum by
December 31, 1997, and authorizes competitive bidding for commercial
licenses on the reallocated spectrum after January 1, 2001. The
Balanced Budget Act also expanded the Commission's competitive bidding
authority to comprise mutually exclusive broadcast licenses, and the
Commission recently implemented that authority in the Competitive
Bidding (Broadcast) Order.4
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\1\ See 63 FR 0669, February 10, 1998.
\2\ See Memorandum Opinion and Order, 63 FR 63798, November 17,
1998.
\3\ section 3004 of the Balanced Budget Act of 1997, which added
47 U.S.C. 337(a) and 337(b).
\4\ See First Report and Order, 63 FR 48615, September 11, 1998,
recon., 64 FR 24523, May 7, 1999.
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Service Rules
A. In General
1. Permitted Services.
2. The NPRM first seeks comment on whether our service rules should
permit a licensee to use the 746-764 MHz and 776-794 MHz spectrum bands
for any use permitted within the United States Table of Frequency
Allocations contained in part 2 of the Commission's Rules (i.e., Fixed,
Mobile, and Broadcasting services),5 subject to
international requirements and coordination.6
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\5\ The United States Table of Frequency Allocations is at 47
CFR 2.106. See generally 47 CFR part 2, Frequency Allocations and
Ratio Treaty Matters; General Rules and Regulations. 00
\6\ Section 303(y)(1) of the Communications Act, 47 U.S.C.
303(y)(1), limits the Commission's authority to allocate spectrum so
as to provide flexibility of use to situations in which ``such use
is consistent with international agreements to which the United
States is a party.''
The NPRM uses the term ``sharing'' to refer to the use of
spectrum bands by a variety of services, under licensing rules that
accord each licensee exclusive use of specific spectrum blocks. The
NPRM does not consider in this context the sharing of specific
spectrum blocks.
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3. The Commission's allocation and designation decisions retained
Broadcast services in the Table of Allocations, and so preserved the
potential for service rules that would enable the full range of
commercial broadcast services to the public. The extent to which the
potential flexibility established for these bands by revisions to the
Table of Allocations will ultimately be implemented by the service
rules will respect the requirements stated in section 303(y) of the
Communications Act, that such flexibility must not establish harmful
interference, or discourage investment and development of new
technologies. In accord with past Commission practice, inclusion of
specific services in the Table of Allocations does not necessarily
entail that service rules will be drafted to accommodate each such
service, or that even flexible service rules will enable provision of
the full range of allocated services.
4. The NPRM also states the Commission's continued interest in
broader aspects of spectrum management. While the allocations involved
here were specifically mandated by the Balanced Budget Act, commenters
are encouraged to consider how innovative service rules developed for
such a flexible use allocation might maximize the uses made of this
spectrum. There is clear potential in this context for new technologies
to affect the extent to which service rules effectively provide for
flexible use. Thus, the NPRM seeks comment on how the Commission's
rules might provide for such developments. Commenters who consider this
issue should address what impact their suggested approaches would have
on broadcasters also using the band, both during the transition to DTV
and to the extent the service rules may provide for new broadcast
services.
5. Whether the service rules developed will provide for sharing
between broadcast and fixed and mobile wireless services, including the
prospect of audio, video, or data services that may not closely
resemble existing broadcasting configurations, depends in part on the
resolution of several issues
[[Page 36644]]
that are not raised by flexible use allocations of narrower scope.
These issues include the managing of interference between technically
dissimilar services (at least in the familiar configurations of
broadcast and wireless service), and the development and application of
regulatory mechanisms suited to the range of services on these bands.
To the extent that commenters suggest that the technical service rules
enable services that closely resemble existing broadcast services, we
start from the presumption that such services would be fully subject to
part 73 of our Rules. The Commission asks that commenters consider
whether there are any reasons that particular elements of part 73
should not similarly be applied to such services when provided on these
spectrum blocks. Other prospective licensees might offer services that
more closely resemble the existing fixed and mobile wireless services
provided on other spectrum bands. As an initial matter the Commission
would expect such services are more appropriately regulated by the
framework of part 27.
6. Another respect in which broadcast and non-broadcast services
operate in different regulatory contexts are the distinctive approaches
to accessibility. The NPRM asks whether and how these differing
accessibility requirements should affect the development of service
rules for these spectrum bands. Additionally, the NPRM seeks comment on
the implications of the Commission's service rule proposals, including
technical and regulatory aspects, for the implementation of third
generation wireless technology in this spectrum.
7. The full flexibility of use being considered for these bands may
also require the Commission to develop auction procedures that
recognize and reconcile the characteristic regulatory elements of
broadcast and wireless licenses, and perhaps consider distinctive
approaches.7 In developing service rules for the commercial
spectrum involved here, and determining the extent to which they can or
should accommodate both familiar broadcast services and innovative
services that would be licensed under parts 73 and 27 of the
Commission's Rules, we are required by section 303(y) of the
Communications Act to find that such a flexible approach: (1) would not
result in harmful interference among users, (2) would not deter
investment in communications services and systems, or technology
development, and that (3) the allocation would be in the public
interest. The Commission recognizes that proposals involving such a
range of services make it especially important that our consideration
of proposed ``flexible use'' allocations, mandated by section 303(y) of
the Act, examine the elements of that statutory review in light of the
specific factual considerations raised by the scope of these proposals.
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\7\ The procedures for broadcast auctions are set forth by
public notice prior to the individual auction, 47 CFR 73.5001.
General procedures for wireless auctions are specified in part 1 of
the Commission's Rules, 47 CFR part 1.
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8. In broad terms, the NPRM initially proposes to permit licensees
to determine the services they will provide within their assigned
spectrum and geographic areas, subject to the service rules, and to
subject these licensees generally to part 27 of the Commission's Rules,
which governs Wireless Communications Service.8 Exceptions
to this approach, if any, would arise from modifications the Commission
may adopt to reflect: (1) the particular circumstances of this
spectrum; and (2) statutory and other public interest requirements,
gathered in part 73 of our Rules, that govern broadcasting. Thus, the
NPRM asks whether broadcast services on these bands, to whatever extent
they are subject to part 73 in other respects, can or should be subject
to the part 27 licensing framework to facilitate the administrative
coordination of these varied uses. Commenters are also invited to
address whether broadcast services, if provided in the context of
spectrum blocks governed generally by part 27, should be subject to
different rules than now apply under part 73 to broadcast
licensees.9 Broadcast use of this spectrum in any case would
necessarily be subject to broadcast-specific statutory provisions. The
NPRM requests comment on the type of services that could be offered in
this commercial spectrum, and on our proposal generally to subject the
spectrum to part 27 and, when applicable, to other parts of the rules,
including part 73. The Commission also seeks comment on alternative
provisions that may minimize the economic impact of the proposals, if
any, on small entities.
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\8\ For wireless services, a part 27 licensee could also be
subject to part 22 if providing public mobile services, to part 90
if providing private land mobile services, and to part 101 if
providing fixed microwave services. For broadcasting services, a
part 27 licensee could be subject to part 73.
\9\ See 47 CFR 73.1001 through 73.4280.
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9. The NPRM seeks specific comment on whether this approach is
consistent with the elements of section 303(y)(2) of the Communications
Act. For example, section 303(y)(2)(B) of the Act addresses the
possibility that too broad an approach to flexibility in spectrum use
may have the undesired effect of deterring investments needed to
provide communications services and develop new technologies on the
newly allocated spectrum. The NPRM solicits comments from interested
parties concerning what restrictions, if any, should be placed on
licensee flexibility in order to ensure that the needed investments are
made. Where commenters suggest that the Commission restrict how
spectrum may be used by a licensee, the Commission is particularly
interested in detailed quantitative analyses of the anticipated
economic trade-offs between flexibility and investment that led to the
proposed constraints. The NPRM also seeks specific comment on ways to
ensure that the technical rules for the 746-764 MHz and 776-794 MHz
bands satisfy the requirement of section 303(y)(2)(C), that flexible
use allocations not result in harmful interference among users.
10. Finally, the NPRM seeks comment on the extent to which,
consistent with the statute, the spectrum bands involved here can and
should be available for private mobile and private fixed radio
services. Commenters in this proceeding who are interested in bidding
on these bands in order to provide private mobile or private fixed
services, functioning as a Band Manager or through some other
mechanism, should address the range of issues raised by the Balanced
Budget Notice (64 FR 23571, May 3, 1999) in this regard.
11. The NPRM tentatively finds that making the spectrum available
for flexible commercial use under part 27 of the rules is in the public
interest because it will contribute to technological and service
innovation, the creation of new jobs for the American workforce, the
fostering of national economic growth, and the enhancement of
opportunities for all Americans to utilize, and realize the benefits
of, the national telecommunications infrastructure. The NPRM seeks
comment on this tentative finding.
12. The Commission seeks to develop service rules that are not
based on a Commission prediction of how these bands will ultimately be
used, but instead reflect a record that enables the Commission to
establish maximum practicable flexibility. The Commission will
determine whether implementing the full range of allocated services is
practicable on the basis of the record developed with regard to both
technical rules, and to the application of policies and rules that are
governed by the classification of the service in legal and
administrative terms.
[[Page 36645]]
2. Spectrum for Each License
13. The NPRM requests comment on the appropriate amount of spectrum
to be provided for each licensee in the two 18 megahertz spectrum
blocks, and on the viability of licensees competing with existing fixed
and mobile service providers. The NPRM further seeks comment on whether
the spectrum should be licensed as one large block, or broken down into
two or more bandwidths, and whether there should be a mixture of
spectrum blocks.
14. The NPRM also seeks comment on the minimum spectrum blocks
needed to enable competitive commercial services. Spectrum blocks of 1
or 2 megahertz may be sufficient to provide for paging and other
messaging services, and the higher bound of our estimates of licensees
affected is based on the pairs of 1 megahertz blocks as the minimum.
Blocks of 6 or 9 megahertz may enable mobile voice service, analog or
digital video services, or point-to-point microwave service. Existing
analog and digital television broadcasters use 6 megahertz spectrum
blocks, and the lower bound of our estimate of affected licensees is
based on the use of 6 megahertz blocks as a minimum. Commenters should
also consider the relationship between the amount of spectrum per
license and the ability to coordinate operations with other licensees
in this spectrum, including the protection of existing broadcast
operations in this band during the transition to DTV.10
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\10\ Commission records indicate that as of November 1998, there
were 105 full power TV licensees and 1232 low power and translator
TV licensees operating on these bands.
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15. The Commission tentatively concludes that this spectrum should
be licensed on a paired basis. While broadcasting would not require
paired spectrum, it is essential that the spectrum be paired to enable
a viable commercial mobile service. The separation of the 746-764 MHz
and 776-794 MHz bands by 30 megahertz of spectrum is optimal for
paired, two-way operations. The NPRM requests comment on whether the
amount of spectrum for each license would affect the decision to
license paired spectrum, and specifically whether a decision to license
blocks large enough for conventional broadcast service should affect
the decision to license paired spectrum. The NPRM particularly asks
commenters to address how spectrum block issues relate to the specific
findings required by review of flexible use allocations pursuant to
section 303(y) of the Act. The NPRM thus requests comment on how the
number of licensees and spectrum blocks established could affect the
investment in and deployment of new services and technologies using
these frequencies, and the extent to which new services offered in this
spectrum would compete with other services. Whatever initial licensing
approach is chosen, the Commission proposes to permit parties to bid
for multiple licenses.
3. Size of Service Areas for Geographic-Area Licensing
16. Part 27 spectrum is licensed based on one of two kinds of
service areas. Spectrum in the C and D frequency blocks is licensed
using the 12 Regional Economic Area Groupings (REAGs). Spectrum in the
A and B frequency blocks is licensed using the 52 Major Economic Areas
(MEAs). REAGs and MEAs are based on the 172 Economic Areas (EAs)
defined by the U.S. Department of Commerce, as modified by the
Commission. The Commission has, however, licensed other wireless
services occupying spectrum near the newly allocated commercial
spectrum using other service areas. The NPRM requests comment on the
type of service area or areas that should be used to license the 746-
764 MHz and 776-794 MHz bands. (The Commission has used the Economic
Areas in this summary to develop estimates of affected licensees, but
has not specifically proposed any service area approach in the NPRM.)
17. The NPRM also seeks comment on how the possible use of this
spectrum for broadcasting might affect our decision on service areas
generally, and specifically on how the Commission could apply the
concept of a broadcast station's serving the needs and interests of its
community of license to a part 27 service area, depending on our
geographic area and spectrum block choices. The relation between the
geographic service area and the size of spectrum blocks is especially
germane to the sharing of these bands between Commercial Mobile Radio
Service (CMRS) and conventional broadcast services, which operate using
significantly different power levels. The NPRM seeks comment on how
such sharing would affect the overall relation between service areas,
spectrum channelization, and power levels, compared to service rules
that would constrain or preclude broadcast use.
18. The NPRM also seeks comment on procedures that would allow
prospective bidders to bid on combinations or groups of licenses in a
single bid, and to enter multiple alternative bids within a single
bidding round, as well as alternatives that would rely on licensing by
geographic area, by community of license, or by some combination of
these approaches.
B. Licensing Rules
1. Regulatory Status
19. As noted, the NPRM seeks comment on whether to apply the
existing licensing framework for part 27 services to the 746-764 MHz
and 776-794 MHz bands. The Communications Act applies requirements to
broadcasters or common carriers that are not applied to other
licensees. The licensing framework for part 27 permits applicants to
request common carrier status as well as non-common carrier status for
authorization in a single license, rather than require the applicant to
choose between common carrier and non-common services, and the
Commission proposes that licensees in these redesignated spectrum bands
similarly be authorized to provide a variety or combination of fixed
and mobile, common carrier and non-common carrier, and broadcast
services. The Commission tentatively concludes that this approach, as
applied to the range of fixed and mobile wireless services, is likely
to achieve efficiencies in the licensing and administrative process.
The possible further inclusion of broadcasting service appears more
problematic in this regard, and the NPRM seeks comment on the effect
that enabling such services would have on the licensing and
administrative process. In order to fulfill our enforcement obligations
and ensure compliance with the statutory requirements of Titles II and
III of the Communications Act, the Commission proposes to require
applicants to identify whether they seek to provide common carrier
services, broadcast service, or other service as permitted by the final
Rules in this proceeding. The NPRM additionally seeks comment on the
need to modify any appropriate form(s) for an applicant seeking to
provide broadcast service, either solely or in conjunction with other
services under a single license.
20. Under the existing part 27 framework, the Commission does not
require applicants to describe the services they seek to provide beyond
designating their regulatory status. The NPRM proposes that applicants
and licensees in this 36 megahertz of commercial spectrum similarly be
required only to indicate the regulatory status of any services they
choose to provide. The NPRM also proposes that licensees must notify
the Commission within 30 days of service changes that alter the
regulatory status of their services. When the change results in the
[[Page 36646]]
discontinuance, reduction, or impairment of the existing service, a
different approach may apply. The NPRM also seeks comment regarding
whether the inclusion of broadcast services may sometimes require the
Commission to modify this approach. Conventional broadcast licensees
are subject to different ownership rules and attribution standards than
wireless licensees.
2. Eligibility; Spectrum Aggregation
21. Sections 27.12 and 27.302 of the Commission's Rules impose no
restrictions on eligibility, other than the foreign ownership
restrictions set forth in section 310 of the Communications Act. Thus,
the NPRM proposes that there be no restrictions on eligibility for a
license in the 746-764 MHz and 776-794 MHz bands. The NPRM seeks
comment on whether opening this spectrum to as wide a range of
applicants as possible will encourage entrepreneurial efforts to
develop new technologies and services, while helping to ensure the most
efficient use of this spectrum. Commenters also should address whether
the Commission's proposed policy of universal eligibility should apply
to broadcasting on these spectrum bands.11 The NPRM also
asks whether there are any reasons not to apply part 73 multiple
ownership rules to part 27 licensees providing conventional
broadcasting services.
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\11\ See, e.g., 47 CFR 73.3555. The Commission has underway a
review of its broadcast ownership rules. See 1998 Biennial
Regulatory Review--Review of the Commission's Broadcast Ownership
Rules and Other Rules Adopted Pursuant to Section 202 of the
Telecommunications Act of 1996, MM Docket No. 98-35, Notice of
Inquiry, 63 FR 15353, March 31, 1998.
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22. Another example of broadcast-specific eligibility issues
involves character qualifications. While the character qualification
standards applied to broadcasters have provided guidance in common
carrier proceedings, they are not directly applicable to that context.
The NPRM seeks comment on whether there is any reason that conventional
broadcasters who share spectrum with Part 27 wireless services,
including wireless common carrier offerings, should not be governed by
the existing standards applied to part 73 licensees. The Commission
also seeks comment on whether there is any reason the Commission cannot
apply our current rules to decide whether an entity that has been
disqualified from holding a conventional part 73 broadcasting license
pursuant to the character qualification rules should be eligible to
provide non-broadcasting services pursuant to a part 27 license.
23. Currently, part 27 services do not count against the spectrum
cap on CMRS spectrum licensees. The 746-764 MHz and 776-794 MHz bands
may be used for mobile services that are comparable to the cellular,
broadband Personal Communications Service (PCS), and Specialized Mobile
Radio (SMR) spectrum for which the CMRS cap was devised. While the
Commission does not propose a spectrum cap for part 27 services
generally, the NPRM seeks comment on whether these commercial spectrum
bands, if used to provide CMRS, should count against the 45 megahertz
spectrum cap that applies to certain CMRS licensees. If the CMRS
spectrum cap is applied to this spectrum, the NPRM seeks comment on
whether the spectrum cap should be adjusted in any way. The NPRM also
seeks comment on whether there should be any restriction on the amount
of spectrum that any one licensee may obtain in the 746-764 MHz and
776-794 MHz bands in the same licensed geographic service area.
Commenters addressing this aggregation issue should consider the
varying bandwidth requirements of the different types of services that
could use the 36 megahertz of commercial spectrum.
3. Foreign Ownership Restrictions
24. Sections 310(a) and 310(b) of the Communications Act (47 U.S.C.
310(a) and (b)) impose foreign ownership and citizenship requirements
that restrict the issuance of licenses to certain applicants. Section
27.12 of the Commission's Rules,12 which implements section
310 of the Act, would by its terms apply to applicants for licenses in
the 746-764 MHz and 776-794 MHz bands. An applicant requesting
authorization only for non-common carrier or non-broadcast services
would be subject to section 310(a), but not to the additional
prohibitions of section 310(b). An applicant requesting authorization
for broadcast or common carrier services would be subject to both
sections 310(a) and 310(b).
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\12\ 47 CFR 27.12; see also 47 CFR 27.302.
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25. The statutory foreign ownership restrictions will be applicable
to the extent the restrictions apply to a particular service being
offered in this commercial spectrum. In response to the World Trade
Organization (WTO) Basic Telecommunications Agreement, the Commission
recently liberalized its policy for applying its discretion with
respect to foreign ownership of common carrier radio licensees under
section 310(b)(4).13 The Commission now presumes that
ownership by entities from countries that are WTO members serves the
public interest. Ownership by entities from countries that are not WTO
members continues to be subject to the ``effective competitive
opportunities'' test established by the Commission.
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\13\ The Commission's rules for broadcast licenses, which are
not covered by the WTO Basic Telecommunications Agreement, were not
amended.
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26. In the filing of an application under the Multipoint
Distribution Service (MDS), Satellite, and Local Multipoint
Distribution Service (LMDS) rules, the Commission requires any
applicant electing non-common carrier status to submit the same
information that common carrier applicants submit to address the alien
ownership restrictions under section 310(b) of the Act.14
The NPRM proposes to follow the same approach in the case of applicants
for licenses in the 746-764 MHz and 776-794 MHz spectrum. Broadcasters,
common carriers, and non-common carriers would not be subject to varied
reporting obligations, but would all be required to file changes in
foreign ownership information to the extent required by part 27 of the
Commission's Rules. By establishing parity in reporting obligations,
however, the Commission would not establish a single substantive
standard for compliance. The Commission does not and would not
disqualify an applicant requesting authorization exclusively to provide
non-common carrier and non-broadcast services from obtaining a license
simply because its citizenship information would disqualify it from a
common carrier or broadcast license. The NPRM requests comment on this
proposal.
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\14\ See 47 U.S.C. 310(b).
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4. Performance Requirements
27. Section 27.14(a) of the Commission's Rules requires Wireless
Communications Service (WCS) licensees to provide ``substantial
service'' to their service area within 10 years of being licensed; a
failure to meet this requirement results in forfeiture of the license
and the licensee's ineligibility to regain it. The Commission has
stated that the construction requirement provides licensees with the
flexibility to offer the full range of services under the allocations
table, and to accommodate new and innovative services. The Commission
proposes generally to subject licensees in the 36 megahertz of
commercial spectrum to the same standard, and we propose and seek
comment on the following ``safe
[[Page 36647]]
harbors'' for the 746-764 MHz and 776-794 MHz bands: (1) For a licensee
that chooses to offer fixed services or point-to-point services, the
construction of four permanent links per one million people in its
licensed service area at the 10-year renewal mark would constitute
substantial service; (2) For a licensee that chooses to offer mobile
services or point-to-multipoint services, a demonstration of coverage
to 20 percent of the population of its licensed service area at the 10-
year renewal mark would constitute substantial service. The NPRM also
seeks comment on the distinct issues raised by applying this proposal
to potential broadcast use of the spectrum. Broadcast permittees
operating pursuant to part 73 are required to construct their
facilities within three years. The NPRM requests comment on whether
there are any reasons not to apply the part 27 construction rules to
broadcasters on these bands.
28. The Commission tentatively concludes that the existing part 27
build-out requirements applied to wireless licensees, and the part 73
construction requirements applied to Broadcast permittees, fulfill the
Commission's obligations under section 309(j)(4)(B) of the Act to
establish performance requirements for licenses obtained by competitive
bidding. The Commission also tentatively concludes that the auction
rules that we propose to apply to these services, together with the
service rules that we are proposing and our overall competition and
universal service policies, constitute effective safeguards and
performance requirements for licensing this spectrum. The Commission
would reserve the right to review our construction requirements in the
future if we receive complaints related to section 309(j)(4)(B), or if
a reassessment is warranted because spectrum is being warehoused or
otherwise is not being used despite demand. The Commission also will
reserve the right to impose additional, more stringent construction
requirements on licenses in the future in the event of actual
anticompetitive or universal service problems. The NPRM solicits
comment on these proposals and views regarding performance
requirements.
5. Disaggregation and Partitioning of Licenses
29. The NPRM next proposes to permit licensees in the 746-764 MHz
and 776-794 MHz bands to partition their service areas and to
disaggregate their spectrum. The Commission tentatively concludes that
geographic partitioning and spectrum disaggregation can result in
efficient spectrum use and economic opportunity for a wide variety of
applicants, including small business, rural telephone, minority-owned,
and women-owned applicants, as required by section 309(j)(4)(C) of the
Communications Act. The Commission also tentatively concludes that this
proposed approach will provide a means to overcome entry barriers
through the creation of smaller licenses that require less capital,
thereby facilitating greater participation by rural telephone companies
and other smaller entities, many of which are owned by minorities and
women.
30. Section 27.15 of the Commission's Rules provides that licensees
may apply to partition their licensed geographic service areas or
disaggregate their licensed spectrum at any time following the grant of
their licenses. The part 27 rules permit: (1) geographic partitioning
of any service area defined by the partitioner and partitionee, (2)
spectrum disaggregation without restriction on the amount of spectrum
to be disaggregated, and (3) combined partitioning and disaggregation.
The NPRM requests comment on the Commission's proposal that licensees
in the 746-764 MHz and 776-794 MHz bands be similarly eligible to
partition service areas and disaggregate spectrum.
31. Pursuant to Sec. 27.15, the partitioning licensee must include
with its request a description of the partitioned service area and a
calculation of the population of the licensed geographic service area,
and the partitioned service area. Section 27.15 also contains
provisions against unjust enrichment. The NPRM proposes to adopt these
provisions, as well as the remaining provisions governing partitioning
and disaggregation in Sec. 27.15, for licensees in the 746-764 MHz and
776-794 MHz bands.
32. The NPRM proposes to allow parties to partitioning agreements
to choose between two options for satisfying the construction
requirements. Under the first option, the partitioner and partitionee
would each certify that it will independently satisfy the substantial
service requirement for its respective partitioned area. If a licensee
fails to meet its substantial service requirement during the relevant
license term, the non-performing licensee's authorization would be
subject to cancellation at the end of the license term. Under the
second option, the partitioner certifies that it has met or will meet
the substantial service requirement for the entire market. If the
partitioner fails to meet the substantial service standard during the
relevant license term, however, only its license would be subject to
cancellation at the end of the license term. The partitionee's license
would not be affected by that failure.
33. The NPRM similarly proposes to allow parties to disaggregation
agreements to choose between two options for satisfying the
construction requirements. Under the first option, the disaggregator
and disaggregatee would certify that they each will share
responsibility for meeting the substantial service requirement for the
geographic service area. If parties choose this option, both parties'
performance will be evaluated at the end of the relevant license term
and both licenses could be subject to cancellation. The second option
would allow the parties to agree that either the disaggregator or the
disaggregatee would be responsible for meeting the substantial service
requirement for the geographic service area. If parties choose this
option, and the party responsible for meeting the construction
requirement fails to do so, only the license of the non-performing
party would be subject to cancellation.
6. License Term; Renewal Expectancy
34. Part 27 of the Commission's Rules limits license terms to 10
years from the date of original issuance or renewal. Section 27.14(c)
establishes a right to a renewal expectancy. The Communications Act,
however, states that the license term for a broadcast station shall not
exceed eight years, and specifies renewal criteria for broadcast
stations.15 The NPRM seeks comment on the appropriate
license term for all licensees in the proposed 746-764 MHz and 776-794
MHz bands, including those potentially offering broadcast service. The
NPRM further seeks comment on whether it would be appropriate to have
different license terms, depending on the type of service offered by
the licensee, and on the distinctions between the statutory and part 73
renewal criteria for conventional broadcast stations and our part 27
renewal expectancy criteria for, e.g., datacasting and other wireless
services. The NPRM additionally seeks comment on how the Commission
should administer such an approach, particularly if licensees provide
more than one service in their service area, or decide to change the
type of service they plan to offer.
---------------------------------------------------------------------------
\15\ 47 U.S.C. 307(a).
---------------------------------------------------------------------------
35. The NPRM proposes, in the event that a license is partitioned
or disaggregated, that any partitionee or disaggregatee be authorized
to hold its
[[Page 36648]]
license for the remainder of the original licensee's term, and that the
partitionee or disaggregatee may obtain a renewal expectancy on the
same basis as other part 27 licensees (or, if subject to part 73, on
the same basis as other part 73 licensees). The NPRM further proposes
that all licensees meeting the substantial service requirement will be
deemed to have met this facet of the renewal expectancy requirement
regardless of which of the part 27 construction options the licensees
chose. The Commission tentatively concludes that this approach is
appropriate because a licensee, through partitioning, should not be
able to confer greater rights than it was awarded under the terms of
its license grant. The NPRM also seeks comment on whether a non-
broadcast renewal applicant involved in a comparative renewal
proceeding should include at a minimum the showing in Sec. 27.14(c) of
the Commission's Rules to claim a renewal expectancy, and similarly,
what showing a broadcast renewal applicant should include to claim the
renewal expectancy established by section 309(k) of the Act.
7. Public Notice
36. Sections 309(b) and 309(d) of the Communications Act require
public notice for initial applications and substantial amendments filed
by broadcasters or radio common carriers. These requirements state that
no such application shall be granted earlier than 30 days following the
issuance of public notice by the Commission, and that the Commission
may not require petitions to deny such applications to be filed earlier
than 30 days following the public notice. The same provision also
grants the Commission the authority to impose public notice
requirements for other licenses, even though public notice is not
required by the statute. However, the administrative procedures for
spectrum auctions adopted by section 3008 of the Balanced Budget Act of
1997 permit the Commission to shorten notice periods in the auction
context to a five-day petition to deny period and a seven-day public
notice period, notwithstanding the provisions of section 309(b) of the
Communications Act.16 The Commission tentatively concludes
that services in the 746-764 MHz and 776-794 MHz spectrum will be
auctionable services, so that the seven-day public notice period is
applicable. We note, however, that in the Part 1 Second Further Notice
the Commission has sought comment on whether longer periods should be
generally applicable for some services.17
---------------------------------------------------------------------------
\16\ 47 U.S.C. 309(j) nt 3.
\17\ 63 FR 770, January 7, 1998.
---------------------------------------------------------------------------
37. In light of the potential for sharing of this spectrum between
broadcast and wireless services, and the differences between their
regulatory requirements, the NPRM seeks comment on whether the
Commisison should exercise our statutory discretion to require a
minimum period of 15 days for public notice of applications of wireless
common carriers and broadcast stations, in instances where the
Commission's Rules establish a notice requirement, and a minimum period
of 10 days for the filing of petitions to deny the applications of
wireless common carriers and broadcast stations. Commenters should
address whether imposing a 15-day notice requirement would be an undue
burden on such applicants, and whether it would be administratively
useful by enabling the Commisison to ensure that any applicant filing
for both common carrier and non-common carrier authorizations in a
single license is in compliance with (1) the licensing requirements for
common carriers and broadcasters established in Title III of the
Communications Act; and (2) any related requirements the Commission may
adopt. Commenters also should address whether the Commission should
allow all licensees to make subsequent status changes under reduced
notification requirements.
C. Operating Rules
38. The NPRM proposes to subject licensees in the 746-764 MHz and
776-794 MHz bands to the part 27 rules that govern operations, except
for modifications that the Commission may adopt for this spectrum as a
result of this proceeding. The NPRM seeks comment generally on the
applicability of these rules to this spectrum. Additionally, the NPRM
seeks comment on whether any operating rules contained in other parts
of the Commission's Rules should be adopted for the 746-764 MHz and
776-794 MHz bands. The NPRM further asks commenters to suggest any
alternatives to such regulations governing a licensee's operations in
order to minimize the potential significant economic impact, if any,
from such rules on small entities.
1. Applicability of General Common Carrier Obligations
39. Title II of the Communications Act imposes a variety of
obligations on the operations of common carriers that are not otherwise
imposed on wireless communications services. There are a number of
statutory operational requirements that apply generally to common
carriers concerning the filing of tariffs, maintaining of records,
liabilities, and discontinuance of service, among others. The
Commission has previously forborne from applying many of those
requirements in certain situations, and section 10 of the
Communications Act (47 U.S.C. 160) directs the Commission to forbear
from additional provisions of the Communications Act when specific
criteria are satisfied.
40. The NPRM thus seeks comment in this context on whether the
Commission should exercise our authority under section 10 of the Act to
forbear from applying to non-CMRS licensees of this spectrum the
specific Title II requirements that the Commission previously has
determined to forbear from applying to CMRS licensees. Specifically,
the NPRM seeks comment on application of each of the three elements of
the forbearance standards specified by section 10 of the Act, in the
context of services in the 746-764 MHz and 776-794 MHz bands. Under the
first two parts of the test, the NPRM requests comment on the
definition of ``consumer,'' what information the Commission should
consider when performing these evaluations, and examples of applying
these tests in order to evaluate whether forbearance would be
appropriate. With respect to the third condition, the NPRM seeks
comment on the appropriate market that would apply to fixed, common
carrier licensees in the 746-764 MHz and 776-794 MHz bands. The NPRM
notes that the Commission has not forborne from regulation of fixed
wireless services in service rule proceedings for the 24, 28, and 39
GHz bands. The NPRM therefore also asks commenters to address how, if
at all, that should affect the Commission's forbearance decisions in
this proceeding.
41. Because it may take longer for the Commission to conduct this
forbearance analysis than to adopt service rules for the 746-764 MHz
and 776-794 MHz bands, the NPRM proposes during the interim: (1) to
adopt a discontinuance provision that is consistent with the common
carrier obligations set forth in subpart E of part 1 and in part 61
through part 64 of the Commission's Rules; and (2) to apply other parts
of the Commission's Rules to ensure compliance of fixed common carriers
with Title II of the Communications Act.
42. Section 214(a) of the Communications Act requires that no
common carrier may discontinue, reduce, or impair service without
[[Page 36649]]
Commission approval. The NPRM proposes that if a fixed, common carrier
part 27 licensee voluntarily discontinues, reduces, or impairs service
to a community or part of a community, it must obtain prior
authorization as provided under Sec. 63.71 of the Commission's Rules,
but an application would be granted within 30 days after filing if no
objections were received. The NPRM additionally proposes that if a non-
common carrier part 27 licensee voluntarily discontinues, reduces, or
impairs service to a community or part of a community, it must give
written notice to the Commission within seven days. The NPRM also
proposes, however, that neither a fixed common carrier, nor non-common
carrier part 27 licensee, need surrender its license for cancellation
if discontinuance is a result of a change in status from common carrier
to non-common carrier or the reverse.
43. The NPRM further proposes that if the service provided by a
fixed common carrier part 27 licensee is involuntarily discontinued,
reduced, or impaired for a period exceeding 48 hours, the licensee must
promptly notify the Commission, in writing, as to the reasons for the
discontinuance, reduction, or impairment of service, including a
statement indicating when normal service is to be resumed. The NPRM
proposes that when normal service is resumed, the licensee must
promptly notify the Commission. The NPRM seeks comment on these
proposals.
44. Section 312(g) of the Communications Act provides that the
license of any broadcasting station that fails to transmit broadcast
signals for any consecutive 12-month period expires as a matter of law
at the end of that period. In addition, Sec. 3.1750 of the Commission's
Rules states that a licensee of a broadcast station shall notify the
Commission of permanent discontinuance of operation at least two days
before operation is discontinued. The NPRM asks whether any
considerations may suggest that the Commission should adopt different
provisions for broadcast services provided over this spectrum under
part 27.
2. Equal Employment Opportunity
45. Part 27 does not include an explicit Equal Employment
Opportunity (EEO) provision. Nor do parts 24 (PCS) or 26 (General
Wireless Communications Service). The NPRM notes that there are
specific EEO provisions for fixed service providers in parts 21 and
101, including both common carrier and non-common carrier LMDS
licensees; 18 and for common carrier mobile service
providers in parts 22 and 90, though these latter provisions do not
apply to PMRS providers because they are not common carriers. In
addition, part 25 contains EEO rules for entities that use an owned or
leased fixed satellite service facility to provide more than one
channel of video programming directly to the public,19 and
part 73 contains rules for broadcasters.20
---------------------------------------------------------------------------
\18\ See, e.g., 47 CFR 101.311.
\19\ 47 CFR 25.601.
\20\ Section 73.2080 of the Commission's Rules was struck down
as unconstitutional as respects the outreach portions of the
Commission's EEO program requirements for broadcast stations, and
remanded to the Commission for a determination whether the non-
discrimination rule is within its statutory authority. See Lutheran
Church-Missouri Synod v. FCC, Case No. 97-1116, 141 F3rd 344, reh'g
denied, 154 F.3d 487 (D.C. Cir 1998).
---------------------------------------------------------------------------
46. The Commission has initiated a rulemaking on our part 73 EEO
rules,21 and in the present proceeding, seeks comment on
whether there are any reasons not to apply part 73 EEO rules to
conventional broadcasters operating in these spectrum bands and
licensed under part 27. As to non-broadcast services on these bands,
the NPRM seeks comment on whether the Commission should include a
separate EEO provision in part 27 and, if so, which of the Commission's
EEO rules we should adopt. Commenters should address the advisability
of having different EEO requirements depending on the service a
licensee provides. Commenters who support the adoption of EEO
requirements should comment on what statutory authority should be
invoked to support these requirements and how these rules should be
tailored.
---------------------------------------------------------------------------
\21\ Review of the Commission's Broadcast and Cable Equal
Employment Opportunity Rules and Policies, MM Docket No. 98-204, and
Termination of the EEO Stream-lining Proceeding, MM Docket No. 96-
16, Notice of Proposed Rulemaking, 63 FR 66104, December 1, 1998.
---------------------------------------------------------------------------
D. Technical Rules
47. The general provisions of part 27 include rules related to
equipment authorization, frequency stability, antenna structures and
air navigation, international coordination, environmental requirements,
quiet zones, and disturbance of AM broadcast antenna patterns. The NPRM
seeks comment on applying these rules to the spectrum that is the
subject of this NPRM, and specifically on any rules that would be
affected by the Commission's proposal to apply elements of the part 27
framework, whether separately or in conjunction with part 73
requirements, to conventional broadcast services. The NPRM also seeks
comment on proposals to adopt the rules concerning in-band interference
control, out-of-band and spurious emission limits, special
considerations for use of channels 66 and 67, and Radiofrequency (RF)
safety requirements. The NPRM proposes that all of these technical
rules would apply to all licensees in the 746-764 MHz and 776-794 MHz
bands, including licensees who acquire their licenses through
partitioning or disaggregation.
1. In-Band Interference Control
48. The Commission does not have reliable information at this time
on the technical parameters for services that will be provided in the
746-764 MHz and 776-794 MHz bands. Our allocation and designation
decision permits the range of uses in the Allocation Table, and we also
cannot be certain what wireless services will be operating in adjacent
spectrum. A broad range of technologies may share this spectrum, and
the nature of the services and technologies can affect the potential
for interference between licensees using the same spectrum in adjacent
service areas. The Commission is particularly interested in potential
interference issues should the range of uses extend to full power
broadcast service.
49. While the Commission has considered a range of approaches to
managing interference in other service rule proceedings, these spectrum
bands present an additional consideration. Section 337(d)(1) requires
the Commission to establish ``interference limits at the boundaries of
the spectrum block and service area.'' One possible interpretation of
this provision is that the Commission is directed to adopt field
strength limits, or some similarly generic requirement, even if it
considers that a coordination approach establishes sufficient, and more
flexible, protection against interference.
50. The Commission tentatively concludes that either a coordination
or field strength method, when properly applied, can provide a
satisfactory means of controlling harmful interference or determining
the interaction between systems, although there may be reasons to
prefer one method over the other in the 746-764 MHz and 776-794 MHz
bands. Even with a boundary limit, some degree of coordination and
joint planning between bordering licensees appears likely to be needed
to ensure efficient use across the boundary.
51. Parties are therefore asked to provide their analysis of the
advantages and disadvantages of both approaches, or approaches that
combine a boundary limit and a coordination procedure.
[[Page 36650]]
Comments should address the advantages of different approaches in
managing the electromagnetic environment at geographic boundaries in
the 746-764 MHz and 776-794 MHz bands, the kinds of incentives each may
create for undesirable strategic or anti-competitive behavior, and the
effects on licensee costs.
52. The NPRM also seeks comment regarding whether to permit
licensees in adjacent service areas to coordinate their operations and
agree to an alternative field strength along their shared border. The
NPRM invites comment on this approach to control of interference in the
context of the 746-764 MHz and 776-794 MHz bands, both generally and if
used in conjunction with power flux density or field strength
standards. If commenters suggest that power flux densities or field
strength standards should be established as interference limits, in
conjunction with a coordination process, they should propose specific
values for such limits. Commenters should also address any special
considerations that might be appropriate in an environment where
disparate services might be using the same spectrum in adjacent service
areas.
53. Regarding whether a general coordination approach should be
used, comments are invited on specific aspects of procedures. While
Sec. 101.103 of the Commission's Rules can serve as a useful framework
for coordination in the 746-764 MHz and 776-794 MHz bands, our
objective is to ensure that licensees receive protection from harmful
interference with the minimum regulation necessary. If a general
coordination approach is adopted, the Commission tentatively concludes
that the coordination concepts of Sec. 101.103 generally should be
applied to licensees in the 746-764 MHz and 776-794 MHz bands and
should be incorporated into part 27 of the Rules for these bands. The
NPRM seeks comment on the best way to effect this incorporation,
including comment on which provisions of Sec. 101.103 may be
appropriate for incorporation into part 27. For purposes of the
Commission's considering a coordination approach for the 746-764 MHz
and 776-794 MHz bands, the NPRM seeks comment on what the appropriate
distance should be to trigger this coordination, and whether there
should be any other criteria, in addition to distance to the service
area boundary, that would trigger a need to coordinate.
54. The NPRM seeks comment on what, if any, limits for equivalent
isotopically radiated power (EIRP) are necessary or appropriate under
either a coordination or field strength limit approach. Transmitters
used in the private land mobile service, cellular radio service, and
fixed microwave services typically employ substantially different
output powers. The substantial differences between these services,
however, are minor in comparison to the output powers of full power
broadcast services. Accordingly, if commenters believe that power
limits are necessary, they should comment as to what those limits
should be and the basis for the suggested limits. The NPRM also
solicits views as to whether the Commission should establish limits on
output power for all transmitters, or just mobile equipment.
55. Finally, Sec. 27.64 of the Commission's Rules states generally
that part 27 stations operating in full accordance with applicable
Commission rules and the terms and conditions of their authorizations
are normally considered to be non-interfering, and provides for
Commission action, after notice and hearing, to require modifications
to eliminate significant interference. In view of the variety of
services that might be provided by part 27 licensees on these bands,
the NPRM solicits comment on whether the Commission should apply this
rule to these spectrum bands. The NPRM also seeks comment regarding
whether interference protection can be guaranteed and whether
Sec. 27.64 of the Rules, if retained, should be changed to direct
adjacent service area licensees to cooperate to eliminate or ameliorate
interference. The Commission also seeks comment on whether the
Commission should apply any changes with respect to Sec. 27.64 to the
2.3 GHz band.
2. Out-of-Band and Spurious Emission Limits
56. Generally, different types of technical parameters would be
used to limit out-of-band and spurious emissions to ensure interference
protection of services outside the licensee's assigned spectrum,
depending on whether the system involves fixed, mobile, or other
communications. Because the Commission may permit licensees in the 746-
764 MHz and 776-794 MHz bands to use the spectrum for the various
services in the Table of Allocations, it would appear we should develop
technical operating parameters that can accommodate the several types
of communications.
57. In addition to the characteristics of different technical
approaches, section 337(d)(4) of the Act emphasizes the importance of
avoiding harmful interference from television broadcasters to public
safety licensees in adjacent bands. Section 337(d)(4) refers explicitly
to the spectrum bands reallocated and reserved for public safety
services, and we have already adopted service rules for the public
safety bands. The potential for new broadcasting services on the
commercial 746-764 MHz and 776-794 MHz bands, however, raises the
further issue of whether a more stringent approach to interference may
be required on the commercial bands, to ensure that public safety
licensees in adjacent bands do not experience harmful interference. The
NPRM therefore seeks comment on the relation of section 337(d)(4) to
protection of public safety licensees from interference caused by
broadcast services that may be permitted to operate on the 36 megahertz
of commercial spectrum.
58. The NPRM proposes to require licensees in the proposed
commercial spectrum to attenuate the power below the transmitter power
(P) by at least 43 + 10 log10(P) watts or 80 decibels,
whichever is less, for any emission on all frequencies outside the
licensee's authorized spectrum. To implement sharing between
conventional broadcast and other commercial services, different
interference limits may be indicated. The NPRM requests comment on this
proposal and any other emission limits that commenters believe are
appropriate.
3. RF Safety
59. Section 27.52 of the Commission's Rules subjects licensees and
manufacturers to the RF radiation exposure requirements specified in
Secs. 1.1307(b), 2.1091, and 2.1093 of the Commission's Rules, which
list the services and devices for which an environmental evaluation
must be performed. Routine environmental evaluations for RF exposure
are required by applicants desiring to use the following types of
transmitters: (1) fixed operations, including base stations and
radiolocation transmitters, when the effective radiated power (ERP) is
greater than 1,000 watts; (2) all portable devices; and (3) mobile
devices, if the ERP of the station, in its normal configuration, will
be 1.5 watts or greater.
60. With regard to RF safety requirements, the NPRM proposes to
treat services and devices in the 746-764 MHz and 776-794 MHz bands in
a comparable manner to other services and devices that have similar
operating characteristics. The Commission tentatively concludes that
the requirements in Sec. 27.52, adopted for licensees in the 2.3 GHz
band, will apply to the same extent to licensees in the 746-764 MHz and
776-794 MHz bands. Guidance on acceptable methods
[[Page 36651]]
of evaluating compliance with the Commission's exposure limits is
contained in OET Bulletin No. 65.22
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\22\ OET Bulletin No. 65 (Edition 97-01) was issued on August
25, 1997. It is available for downloading at the FCC Web Site:
www.fcc.gov/oet/rfsafety. Copies of OET Bulletin No. 65 also may be
obtained by calling the FCC RF Safety Line at (202) 418-2464.
---------------------------------------------------------------------------
61. The NPRM proposed to adopt the 1,000 watts ERP threshold for
operation in the 746-764 MHz and 776-794 MHz bands to recognize the
flexibility with respect to use, power, location, and other factors
that will presumably be accorded licensees operating in these bands.
The NPRM also proposed to modify Secs. 1.1307(b), 2.1091, and 2.1093 of
the Commission's Rules to include services and devices applicable to
the 746-764 MHz and 776-794 MHz bands. The NPRM invites comment on
these proposals and any alternatives.
4. Special Considerations for Use of Channels 65, 66 and 67
62. In the Public Safety Spectrum Second Notice on the use of
channels 63, 64, 68, and 69 by Public Safety Services,23 the
Commission sought comment on the potential for interference to GLONASS
24 and GPS 25 satellites from public safety
systems operating in the 794-806 MHz band (TV channels 68-69). In the
present context, as with public safety systems, the second harmonic
transmissions of commercial services operating on TV channels 65-67
fall within the bandwidth identified by NTIA as being used by the GPS
(1563.42-1587.42 MHz). Therefore, the use of the 776-794 MHz band by
commercial services raises many of the same concerns. NTIA recommends
that stringent standards be adopted to ensure that equipment operating
in these bands does not cause radio frequency interference to the
Global Navigation Satellite System (GNSS) when used for precision
approach and landing. The Commission recognizes that this issue will be
of critical importance to both navigation and commercial interests, and
therefore we desire to obtain as complete a record as possible before
making a decision. The Commission believes that additional information
is needed before we arrive at a final decision with respect to this
matter.
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\23\ Second Notice of Proposed Rulemaking, in WT Docket No. 96-
86, 62 FR 60199, November 7, 1997 (Public Safety Spectrum Second
Notice).
\24\ GLONASS is the Russian Federation Global Orbiting
Navigation Satellite System which will use the 1598-1605 MHz portion
of the Radionavigation-Satellite Service (space-to-Earth) allocation
at 1559-1610 MHz, when the GLONASS system reaches its final
frequency configuration after 2005.
\25\ GPS (Global Positioning System) is also in operation, and
it will be the United States component of the Global Navigation
Satellite System (GNSS). GPS utilizes the lower portion of the
Radionavigation-Satellite Service (space-to-Earth) allocation from
1559-1610 MHz on a primary basis, and is maintained by the United
States Department of Defense.
---------------------------------------------------------------------------
63. Of particular concern is the impact of imposing the standards
recommended by NTIA on the design of commercial equipment. NTIA
specifically advocates that out-of-band emissions be limited to -70
dBW/MHz equivalent isotropically radiated power (EIRP) for wideband
emissions, and -80 dBW/700 Hz EIRP for narrowband emissions, and that
these limits be applied to all spurious emissions, including second
harmonics in the 1559-1610 MHz range. These limits are based on
international recommendations by RTCA and ETSI specifically for mobile
earth terminals in the Mobile Satellite Service (MSS). Full power
broadcast use of this spectrum could pose additional difficulties for
the GNSS system. Because conventional full power broadcast stations
would operate at power levels several orders of magnitude larger than
those used by commercial fixed and mobile stations, additional
attenuation of out-of-band emissions may be required to protect the
GNSS systems. NTIA has recommended, in this case, that an emission
limit of -110 dB below the average transmitter power should be included
as the proposed unwanted emission limit, including harmonics, for DTV
transmitters operating in the 746-764 MHz and 776-794 MHz bands. NTIA
notes that the current DTV mask requires that emissions, including
harmonics that are more than 6 MHz from the channel edge, must be
attenuated by this amount. It believes that this value is consistent
with the current harmonic suppression levels that can be achieved by
television transmitters, and will protect GNSS precision approach
landing operations.
64. The Commission is committed to ensuring that the GNSS is
protected adequately against interference. We note that the standard
recommended by NTIA is necessary only to protect the GNSS band at 1559-
1605 MHz. Based on the information before us at this time, we
tentatively propose to adopt the NTIA recommended emissions limits, but
to apply them only to emissions that fall within the GNSS band. Outside
the 1559-1605 MHz GNSS band, we propose that the standard addressed
earlier in the section on out-of-band spurious emissions (i.e., 43 + 10
log P) would apply. The Commission believes that it is imperative that
all parties fully understand the need for and ramifications of the NTIA
proposed standard on use of the 700 MHz band for commercial wireless
services. Therefore, the NPRM requests comment on the standard
recommended by NTIA to protect GNSS operations. The NPRM also invites
comment as to whether extenuating conditions such as low antenna
height, propagation losses, body suppression of signals, and wall
attenuation should be taken into account in calculating the out-of-band
emission requirements. In addition, the Commission is interested in
obtaining a better understanding of the levels of radio energy that
currently exist in the GNSS spectrum as a result of spurious emissions
from other communications systems and electronic equipment.
65. The Commission observes that stringent out-of-band emissions
limits are generally more difficult to meet for mobile and hand-held
transmitters than for base and control stations or for fixed service
stations. The standard recommended by NTIA would require approximately
85-90 dB suppression for typical full-power mobile equipment, and
approximately 75-80 dB for handhelds and portables.26 The
NPRM expresses concern about whether the proposed emissions standard
would severely curtail the availability of the 36 MHz of spectrum
designated by Congress for commercial use, and requests factual data
and technical information as to the impact this proposal may have on
the use of the 700 MHz band for commercial wireless services. The NPRM
also seeks information on how the proposed emmissions standard may
affect the equipment cost, size, weight and battery life of handheld or
portable equipment. Global Mobile Personal Communications via Satellite
(GMPCS) terminals have been proposed to meet the same standard proposed
in the NPRM. The NPRM invites comment as to whether it is feasible for
commercial fixed and mobile equipment to meet the same standards as
these commercial mobile satellite systems. The NPRM solicits
suggestions as to any and all alternative approaches or measures that
the Commission can take to alleviate the impact of the proposed
standard.
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\26\ For the purposes of the GLONASS standard, the Commission
has assumed the narrowband limit of -80 dBW/700 Hz would be
sufficient for commercial services bandwidths of up to 150 kHz.
---------------------------------------------------------------------------
E. Competitive Bidding
1. Statutory Requirements
66. Section 337 of the Communications Act requires that the
licenses for this proposed commercial spectrum be granted through
[[Page 36652]]
competitive bidding. Section 337(a)(2) directs how the commercial
segment of the spectrum between 746 megahertz and 806 megahertz is to
be assigned: ``6 megahertz of that spectrum for commercial use [is] to
be assigned by competitive bidding pursuant to section 309(j).''
Section 337(b)(2) further directs the Commission to ``commence
competitive bidding for the commercial licenses created pursuant to
subsection (a) after January 1, 2001.'' The proposed commercial
spectrum therefore is not to be licensed for public safety radio
services, which are excluded from spectrum auction authority by section
3002 of the Communications Act.
67. Although this spectrum is dedicated by statute for commercial
rather than public safety licenses, the issue arises whether public
safety entities might successfully bid for and be licensed to use the
spectrum. The Commission is concerned that the exclusion from our
statutory auction authority might: (1) preclude us from licensing a
public safety entity that participated in an auction of commercial
spectrum; or (2) nullify or otherwise adversely affect our authority to
license the spectrum involved through competitive bidding, if public
safety entities participate in such an auction.
68. The Commission has not previously addressed the issue whether
public safety entities are prohibited from participation as bidders in
an auction process. The Commission believes that such participation,
subject to the same bidding and service rules applicable to commercial
applicants, cannot compromise the Commission's auction authority where,
as here, that authority has been directly conferred by statute. We are
considering in a separate proceeding the broader issue of exemption
from our general auction authority of some public safety services. In
light of the importance attached by the Congress to ensuring the
availability of reallocated spectrum to public safety uses, however,
the Commission believes these commercial bands should be open to
application by any public safety entities that are qualified and
prepared to bid under the same rules applied to commercial applicants.
The NPRM therefore requests comment on what effect the changes in
Commission auction authority, made by section 3002 of the
Communications Act have on: (a) the possible participation of public
safety entities in an auction of commercial spectrum, and on (b) their
eligibility to obtain a license through the subsequent acquisition of
spectrum initially assigned by auction.
69. The Communications Act (at 47 U.S.C. 309(j)(3)) also directs
the Commission to provide for the ``design and conduct (for purposes of
testing) of competitive bidding using a contingent combinatorial
bidding system that permits prospective bidders to bid on combinations
or groups of licenses in a single bid and to enter multiple alternative
bids within a single bidding round.'' The Commission has contracted for
the development of such procedures. The NPRM seeks comment on whether
the auction of these spectrum bands, especially if our service rules
provide for broadcast services, may present a suitable context for
combinatorial procedures. Commenters should consider: (a) whether,
absent the application of combinatorial rules, the existing
standardized auction rules in Part 1 are adequate for the juxtaposition
of broadcast and wireless bidding entities; or (b) whether
modifications of standardized Part 1 auction rules, to facilitate
participation by entities interested in providing broadcast service,
are desirable. The Commission is especially interested in comment on
how, absent combinatorial rules, our auction methodology should
recognize the divergence between geographic licensing applied to
wireless spectrum bands, and the focus on communities of license in the
assignment of broadcast spectrum.
2. Incorporation by Reference of Part 1 Standardized Auction Rules
70. The NPRM proposes to conduct the auction for initial licenses
in the 746-764 MHz and 776-794 MHz bands in conformity with the general
competitive bidding rules set forth in part 1, subpart Q of the
Commission's Rules, which are substantially consistent with the bidding
procedures that have been employed in previous Commission auctions.
Specifically, the NPRM proposes to employ the part 1 rules governing
designated entities, application issues, payment issues, competitive
bidding design, procedure and timing issues, and anti-collusion,
subject to possible modification. The NPRM seeks comment on this
proposal, and on whether any of the part 1 rules would be inappropriate
in an auction for these spectrum blocks, especially with regard to
possible inclusion of broadcast services in our auction methodology.
3. Provisions for Designated Entities
71. The Communications Act provides that, in developing competitive
bidding procedures, the Commission shall consider various statutory
objectives and consider several alternative methods for achieving
them.27
---------------------------------------------------------------------------
\27\ See 47 U.S.C. 309(j)(3), 309(j)(4).
---------------------------------------------------------------------------
a. Small Business Definitions. 72. In the Competitive Bidding
Second Memorandum Opinion and Order, the Commission stated that it
would define eligibility requirements for small businesses on a
service-specific basis, taking into account the capital requirements
and other characteristics of each particular service in establishing
the appropriate threshold.28 The Part 1 Third Report and
Order,29 while it standardizes many auction rules, continues
a service-by-service approach to defining small businesses. For the 36
megahertz of commercial spectrum, the NPRM proposes to define a small
business as any firm with average annual gross revenues for the three
preceding years not in excess of $40 million.
---------------------------------------------------------------------------
\28\ Implementation of Section 309(j) of the Communications
Act--Competitive Bidding, PP Docket No. 93-253, Second Memorandum
Opinion and Order, 59 FR 44272, August 26, 1994.
\29\ See 63 FR 2315, January 15, 1999.
---------------------------------------------------------------------------
73. The Commission observes that the capital costs of operational
facilities in the 746-764 MHz and 776-794 MHz bands are likely to vary
widely based on the services provided. Accordingly, the NPRM proposes
to adopt small business size standards that afford licensees the
greatest flexibility. Thus, in addition to our proposal to adopt the
general small business standard used in broadband PCS, 2.3 GHz, and 39
GHz service rules, the NPRM also proposes to adopt the definition for
very small businesses used for 39 GHz licenses and for the PCS F Block
licenses, namely, businesses with average annual gross revenues for the
three preceding years not in excess of $15 million.
74. The NPRM seeks comment on the use of these standards, with
particular focus on the appropriate definitions of small and very small
businesses as they relate to the size of the geographic area to be
covered, and the spectrum allocated to each license. For the proposed
definitions of small business and very small business, the NPRM
proposes to include the entity's affiliates and controlling interests
when determining eligibility by gross revenue criteria. In discussing
these issues, commenters are requested to address the expected capital
requirements for services in the 746-764 MHz and 776-794 MHz bands.
Commenters also are invited to compare these proposals with other
services for which the Commission has established auction procedures,
as a basis for their comments regarding the appropriate definitions for
small and very small
[[Page 36653]]
businesses. The NPRM also seeks comment on whether the proposed
designated entity provisions, if adopted and applied to the services in
these bands, would be sufficient to promote participation by businesses
owned by minorities and by women, and participation by rural telephone
companies. To the extent that commenters propose additional provisions
to ensure participation by minority-owned and women-owned businesses,
they are also invited to address how such provisions should be crafted
to meet the relevant standards of judicial review.30 In all
other respects, the Commission proposes to apply the competitive
bidding procedures that the Commission adopted in the Part 1 Third
Report and Order, subject to (1) any modifications the Commission may
adopt in response to the Second Further Notice and (2) pending
petitions for reconsideration of the Part 1 Third Report and Order.
---------------------------------------------------------------------------
\30\ See Adarand Constructors v. Pena, 515 U.S. 200 (1995);
United States v. Virginia, 518 U.S. 515 (1996).
---------------------------------------------------------------------------
III. Protection of Television Services
A. Background
75. The NPRM discusses technical requirements for protecting
incumbent broadcast licensees and planned DTV allotments against
interference. The Commission tentatively concludes that the factors and
considerations examined in the Public Safety Spectrum Report and Order
31 are equally relevant with respect to the use of the 746-
764 MHz and 776-794 MHz bands for commercial mobile
services.32 Thus, the NPRM proposes to adopt the same
criteria to protect TV and DTV operations from commercial mobile
operations that were adopted in the Public Safety Spectrum Report and
Order.33 The Commission tentatively concludes that the
sharing criteria applicable to mobile service base stations would be
sufficient to protect TV and DTV operations from fixed service
operations also, but seeks comment on this tentative conclusion. With
respect to protection of TV and DTV operations from new broadcast
operations on these frequencies, however, the Public Safety Spectrum
Report and Order provides no guidance, since broadcasting stations and
services are not permitted on the public safety frequencies. A
different approach or criteria may therefore be appropriate, depending
on the types of broadcasting services permitted.
---------------------------------------------------------------------------
\31\ 63 FR 58685, November 2, 1998.
\32\ This would include consideration of TV stations outside
this spectrum, i.e., on Channel 59. The adjacent channel protection
criteria proposed to be established herein would apply equally to
Channel 59 stations, and new licensees in the Channel 60 spectrum
block will need to recognize the existence of such adjacent channel
use in designing their systems and services. Moreover, use of
Channel 59 may change as DTV service is relocated to the core
digital channels. Any interference or protection criteria involvng
different uses of Channel 59 would necessarily be established in a
later proceeding.
\33\ To the extent that our pending reconsideration of that
Order results in subsequent changes to the rules adopted in that
proceeding, those changes may need to be reflected as they apply or
are relevant here.
---------------------------------------------------------------------------
B. Protection of TV Stations
76. The Commission concluded in the Public Safety Spectrum Report
and Order that the use of a 40 dB D/U signal ratio for co-channel
operations and a 0 dB D/U signal ratio for adjacent channel operations
was supported by our experience using this standard to protect TV
service from interference from land mobile operations in the New York
metropolitan area without serious adverse consequences, and that the
Commission would, therefore, adopt such standards for calculating
geographic separation requirements. The Commission concluded that the
40 dB D/U signal ratio is a reasonable value that will provide
sufficient TV protection, as required by the Balanced Budget Act of
1997.34 Co-channel land mobile base station transmitters
would be limited to producing a maximum signal strength at the
hypothetical TV Grade B contour 40 dB below 64 dBu, or 24 dBu. The
Commission also adopted a 0 dB D/U signal ratio for adjacent channel
operations. Adjacent channel land mobile transmitters would be limited
to a maximum signal that can equal the TV Grade B signal of 64 dBu at
the TV station Grade B contour, defined here as 87.7 km (55
miles).35 The Commission tentatively concludes in this NPRM
that the same criteria should be applied to commercial mobile and fixed
operations in the 746-764 MHz and 776-794 MHz bands. The NPRM thus
proposes to adopt rules similar to those reflected in Sec. 90.545 of
the Commission's Rules,36 with the following proposed
modification. Because the Commission is not proposing any specific
antenna height or transmitter power limitations for part 27 licensees,
part 27 licensees who propose to operate stations with antenna heights
or transmitter powers that exceed those specified in Sec. 90.545(b)
must provide to the Commission for approval a detailed technical
analysis demonstrating that the required interference protection
criteria are met prior to placing such stations into operation. The
NPRM invites comment as to the appropriate criteria that should be used
to protect TV broadcasting against interference from fixed operations.
---------------------------------------------------------------------------
\34\ See 47 U.S.C. 337(d).
\35\ See 47 CFR 73.610.
\36\ 47 CFR 90.545.
---------------------------------------------------------------------------
C. Protection of DTV Stations
77. In the Public Safety Spectrum Second Notice, the Commission
noted that its proposals were based on protecting analog TV, and asked
for comments on the appropriate D/U signal ratios that should be
applied to protect DTV. After examining the record, the Commission
decided to apply similar criteria, adopted in the Public Safety
Spectrum Report and Order for protecting reception of analog TV
stations, to protecting DTV reception.37 Since the
Commission allocated DTV channels to replicate existing TV station
service areas, it allowed public safety stations to provide the same
field strength at the equivalent Grade B contour of the DTV station as
they do for an analog TV station, and adjust the D/U ratio accordingly.
The Commission therefore provided for a TV station to have protection
ratios of 40 dB for co-channel and 0 dB for adjacent channel at its 64
dB field strength contour. The equivalent ratios for a DTV
station that has a Grade B signal strength contour of 41 dB
are 17 dB and -23 dB, respectively.
---------------------------------------------------------------------------
\37\ A TV station's hypothetical Grade B contour is plotted
based on a 64 dB signal strength using the F(50,50) curve.
See 47 CFR 73.699. A DTV station's equivalent contour is based on a
41 dB signal strength using the F(50,90) curve. See 47 CFR
73.625.
---------------------------------------------------------------------------
78. In making this determination, the Commission noted that in the
DTV Sixth Report and Order it had specified a minimum geographic
separation of 250 kilometers (155 miles) between: (1) DTV stations and
(2) the city-center in areas where there are existing land mobile co-
channel operations. Section 90.305(a) of the Commission's Rules
provides that maximum facility land mobile base stations can be located
up to 80.5 km (50 mi) from the city-center of one of the specified
cities. Consequently, under the geographic separation adopted in the
DTV Sixth Report and Order, a maximum facility land mobile base station
could choose to locate its station as close as 169.5 km (250 km-80.5
km), or 105 mi. At this distance, the land mobile base station would
provide a co-channel signal at the DTV station's 88.5 km (55 mi)
equivalent Grade B contour that would provide less than a 40 dB D/U
protection ratio to a DTV receiver. Thus, the Commission's decision to
require 700 MHz land mobile systems to
[[Page 36654]]
provide signal ratios for DTV stations that will allow approximately
the same separation distance as we did for analog TV stations
represented a reasonable balance between the needs of both DTV stations
and public safety entities.
79. The Commission tentatively concludes that the same criteria
should be applied to commercial mobile and fixed operations in the 746-
764 MHz and 776-794 MHz bands. The NPRM thus proposes to adopt rules
similar to those reflected in Sec. 90.545 of the Commission's Rules,
with the following proposed modification. Part 27 licensees who propose
to operate stations with antenna heights or transmitter powers that
exceed those specified in Sec. 90.545(b) must provide to the Commission
for approval a detailed technical analysis demonstrating that the
required interference protection criteria are met, prior to placing
such stations into operation.
D. TV Protected Service Contour Alternatives
80. In the Public Safety Spectrum Report and Order the Commission
found that a geographic separation distance table based on a standard
88.5 km Grade B service contour (equivalent Grade B for DTV) would be
the most convenient form. Limiting TV/land mobile separation to
distances specified in a table, however, may prevent public safety
entities from fully utilizing the spectrum in a number of major
metropolitan areas until after the transition period. Thus, the
Commission allowed public safety applicants to select one of three ways
to meet the TV/DTV protection requirements: (1) utilize the geographic
separation specified in the Table; (2) submit an engineering study to
justify other separations, which is subject to Commission approval; or
(3) obtain concurrence from any applicable TV/DTV station. The NPRM
proposes that these same alternatives be available to Part 27 licensees
and seeks comment on this approach.
81. Also, in the Public Safety Spectrum Second Notice the
Commission requested comment on whether the size of the reference TV
contour should be increased because some TV stations have facilities
exceeding those upon which the 88.5 km (55 mi) contour was based. The
Commission stated that a TV station with parameters of 5 megawatts with
an antenna height above average terrain (HAAT) of 610 meters could have
a Grade B contour distance of 107 km (66.5 mi). In order to protect
certain TV/DTV stations, which have extremely large contours due to
unusual height situations, the Commission incorporated an additional
factor that must be used by all public safety base, control, and mobile
stations to protect these few TV/DTV stations and afford the land
mobile stations the necessary protection from the TV/DTV stations. The
NPRM proposes that this additional factor also be applicable to all
Part 27 licensees operating in these bands. The NPRM thus proposes to
adopt a rule similar to that reflected in Sec. 90.545(c)(2)(iii) of the
Commission's Rules 38 to address this situation.
---------------------------------------------------------------------------
\38\ See 47 CFR 90.545(c)(2)(iii).
---------------------------------------------------------------------------
E. Other Issues
82. In the DTV Sixth Report and Order,39 the Commission
raised the possibility that, in negotiating among themselves for
changes in allotments and assignments, TV licensees could include
agreements for compensation. The NPRM proposes to permit new licensees
in this spectrum similarly to reach agreements with licensees of
protected TV stations, including holders of construction permits,
compensating them for converting to solely DTV transmission before the
end of the DTV transition period, accepting higher levels of
interference than those allowed by the protection standards, or
otherwise accommodating new licensees in these bands.
---------------------------------------------------------------------------
\39\ 62 FR 26684, May 14, 1997.
---------------------------------------------------------------------------
83. Finally, because the NPRM proposes to license this spectrum for
broadcasting, as well as for the fixed and mobile uses, comment is also
requested on interference protection standards for any new broadcast
operations that may be licensed in this spectrum.40 The NPRM
further requests comment on whether the Commission should establish
standards for geographic separations between any TV broadcasting in
this spectrum, authorized pursuant to this or a successor rulemaking
proceeding, and from current analog TV or new DTV stations authorized
before this proceeding; whether the Commission should treat any
broadcast licenses on a case-by-case basis; or whether there are other
approaches we should use to consider interference to and from broadcast
operations.
---------------------------------------------------------------------------
\40\ Stations transmitting broadcast signals are likely to
produce interference effects to analog TV and DTV stations that
differ from those of land mobile or fixed stations.
---------------------------------------------------------------------------
V. Administrative Matters
A. Ex Parte Presentations
84. For purposes of this permit-but-disclose notice and comment
rulemaking proceeding, members of the public are advised that ex parte
presentations are permitted, except during the ``Sunshine Agenda''
period, provided they are disclosed under the Commission's Rules. See
generally 47 CFR 1.1202, 1.1203, 1.1206(a).
D. Pleading Dates
85. Pursuant to Sections 1.415 and 1.419 of the Commission's Rules
(47 CFR 1.415, 1.419) interested parties may file comments on or before
July 19, 1999, and reply comments on or before August 13, 1999.
Comments and reply comments should be filed in WT Docket No. 99-168.
All relevant and timely comments will be considered by the Commission
before final action is taken in this proceeding. To file formally,
interested parties must file an original and four copies of all
comments, reply comments, and supporting comments. If interested
parties want each Commissioner to receive a personal copy of their
comments, they must file an original plus nine copies. Interested
parties should send comments and reply comments to the Office of the
Secretary, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554, with a copy to Stan Wiggins, Policy Division,
Wireless Telecommunications Bureau, 445 12th Street, S.W., Washington,
D.C. 20554.
86. Comments may also be filed using the Commission's Electronic
Comment Filing System (ECFS). Comments filed through the ECFS can be
sent as an electronic file via the Internet to <http://www.fcc.gov/e-
file/ecfs.html>. Generally, only one copy of an electronic submission
must be filed. In completing the transmittal screen, commenters should
include their full name, Postal Service mailing address, and a
reference to WT Docket No. 99-168. Parties may also submit an
electronic comment by Internet E-Mail. To obtain filing instructions
for E-Mail comments, commenters should send an e-mail to [email protected],
and should include the following words in the body of the message,
``get form .''
87. Comments and reply comments will be available for public
inspection during regular business hours at the FCC Reference
Information Center, 445 12th Street, S.W., Washington, D.C. 20554.
Copies of comments and reply comments are available through the
Commission's duplicating contractor: International Transcription
Services, Inc., (202) 857-3800, CY-B400, 445 12th Street, S.W.,
Washington, D.C. 20054.
B. Initial Regulatory Flexibility Analysis
88. As required by section 603 of the Regulatory Flexibility Act,
the
[[Page 36655]]
Commission has prepared the following Initial Regulatory Flexibility
Analysis (IRFA) of the expected impact on small entities of the
proposals suggested in this document. Written public comments are
requested on the IRFA. These comments must be filed in accordance with
the same filing deadlines as comments on the rest of the NPRM but they
must have a separate and distinct heading designating them as responses
to the IRFA. The Commission's Office of Public Affairs, Reference
Operations Division, shall send a copy of the NPRM, including the IRFA,
to the Chief Counsel for Advocacy of the Small Business Administration
in accordance with paragraph 603(a) of the Regulatory Flexibility Act.
Public Law 96-354, 94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).
Initial Regulatory Flexibility Analysis Statement
A. Need for, and Objectives of, the Proposed Rules
89. This rulemaking is being initiated to adopt certain service,
licensing, and competitive bidding rules for the 746-764 and 776-794
MHz segments of the 746-806 MHz band. The Congress directed the
Commission, in the Balanced Budget Act of 1997, to allocate 36
megahertz of this band for commercial use, and to license that spectrum
by competitive bidding. In the Reallocation Report and Order, the
Commission reallocated 36 megahertz of this band to commercial use and
determined that the potential range of commercial services would
include all services permitted under the U.S. Table of Allocations--
Fixed, Mobile, and Broadcasting services. In this NPRM, we propose to
license the 746-764 MHz and 776-794 MHz commercial bands under a
flexible framework established in part 27 of the Commission's Rules. We
expect that provisions of part 27 will be modified to reflect the
particular characteristics and circumstances of services offered
through the use of spectrum on these bands. These modifications may
also reference or incorporate rules in other parts of the Commission's
Rules, such as part 73 governing broadcast services. We believe that
this flexible approach will encourage new and innovative services and
technologies in this band without significantly limiting the range of
potential uses for this spectrum.
90. Our objectives for the NPRM are: (1) to auction licenses for
these commercial spectrum blocks as directed by the Balanced Budget
Act; (2) to accommodate the introduction of new uses of spectrum and
the enhancement of existing uses; (3) to implement the section 303(y)
requirement that flexible use allocations not create harmful
interference or discourage investment; (4) to facilitate the awarding
of licenses to entities that value them the most. The Commission seeks
to develop a regulatory plan for these commercial spectrum blocks that
will allow for efficient licensing and intensive use of the band,
eliminate unnecessary regulatory burdens, enhance the competitive
potential of the band, and provide a wide variety of radio services to
the public.
B. Legal Basis for Proposed Rules
91. The proposed action is authorized under sections 1, 4(i), 7,
10, 201, 202, 208, 214, 301, 303, 307, 308, 309(j), 309(k), 310, 311,
315, 317, 324, 331, 332 and 336 of the Communications Act of 1934, 47
U.S.C. 151, 154(i), 157, 160, 201, 202, 208, 214, 301, 303, 307, 308,
309(j), 309(k), 310, 311, 315, 317, 324, 331, 332, 336.
C. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply
92. For the purposes of this NPRM, the RFA defines a ``small
business'' to be the same as a ``small business concern'' under the
Small Business Act,41 unless the Commission has developed
one or more definitions that are appropriate to its
activities.42 Under the Small Business Act, a ``small
business concern'' is one that: (1) is independently owned and
operated; (2) is not dominant in its field of operation; and (3) meets
any additional criteria established by the Small Business
Administration (SBA).43
---------------------------------------------------------------------------
\41\ 15 U.S.C. 632.
\42\ See 5 U.S.C. 601(3) (incorporating by reference the
definition of ``small business concern'' in 5 U.S.C. 632).
\43\ 15 U.S.C. 632.
---------------------------------------------------------------------------
93. The proposals in this NPRM affect applicants who wish to
provide services in the 746-764 and 776-794 MHz bands. Pursuant to 47
CFR 24.720(b), the Commission has defined ``small entity'' for Blocks C
and F broadband PCS licensees as firms that had average gross revenues
of less than $40 million in the three previous calendar years. This
regulation defining ``small entity'' in the context of broadband PCS
auctions has been approved by the SBA. With respect to applicants for
licenses in the 746-764 and 776-794 MHz bands, we propose to use the
small entity definition adopted in the Broadband PCS proceeding.
94. The Commission, however, has not yet determined or proposed how
many licenses will be awarded, nor will it know how many licensees will
be small businesses until the auction is held. Even after that, the
Commission will not know how many licensees will partition their
license areas or disaggregate their spectrum blocks, if partitioning
and disaggregation are allowed. In view of this uncertainty regarding
the number of entities that will be granted licenses in the 746-764 and
776-794 MHz bands, we have assumed, for purposes of our evaluations and
conclusions in the IRFA, that all of the prospective licenses are small
entities, as that term is defined by the SBA or our proposed
definitions for these bands. We invite comment on this analysis.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
95. Entities interested in acquiring spectrum in the 746-764 and
776-794 MHz bands will be required to submit license applications, and
high bidders will be required to apply for their individual licenses.
The proposals under consideration in this item also include requiring
commercial licenses to make showings that they are in compliance with
construction requirements, file applications for license renewals, and
make certain other filings as required by the Communications Act and
Commission regulations. In addition to the general licensing
requirements of parts 27 and 73 of the Commission's Rules, other parts
may be applicable to commercial licensees, depending on the nature of
service provided. We request comment on how these requirements can be
modified to reduce the burden on small entities and still meet the
objectives of the proceeding.
E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
96. We have reduced burdens wherever possible. With specific regard
to the potential for use of these bands by dissimilar services such as
broadcast and commercial fixed and mobile, we have sought comment on
different approaches to minimizing the burdens of interference
management, consistent with the statutory mandate to protect both
public safety uses and television service. To minimize any negative
impact, we have also proposed certain incentives for the benefit of
small entities. These provisions include partitioning and spectrum
disaggregation. We have also sought comment on combinatorial auction
procedures, which may enable small entities to participate in the
licensing
[[Page 36656]]
process with more flexibility. The regulatory burdens we have retained,
such as filing applications on appropriate forms, are necessary in
order to ensure that the public receives the benefits of innovative new
services, or enhanced existing services, in a prompt and efficient
manner, and generally apply existing regulatory procedures to the new
licensees expected to occupy these bands. We will continue to examine
alternatives in the future with the objectives of eliminating
unnecessary regulations and minimizing any significant economic impact
on small entities. We seek comment on significant alternatives
commenters believe we should adopt.
F. Federal Rules that May Duplicate, Overlap, or Conflict with the
Proposed Rules
97. None.
VI. Ordering Clauses
98. Accordingly, it is ordered that these actions are taken
pursuant to sections 1, 4(i), 7, 10, 201, 202, 208, 214, 301, 303, 307,
308, 309(j), 309(k), 310, 311, 315, 317, 324, 331, 332 and 336 of the
Communications Act of 1934, 47 U.S.C. 151, 154(i), 157, 160, 201, 202,
208, 214, 301, 303, 307, 308, 309(j), 309(k), 310, 311, 315, 317, 324,
331, 332, 336.
99. It is further ordered that notice is hereby given of the
proposed regulatory changes described in this NPRM, and that comment is
sought on these proposals.
100. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this NPRM,
including the Initial Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration in accordance
with Section 603(a) of the Regulatory Flexibility Act of 1980, Public
Law 96-354, 94 Stat. 1164, 5 U.S.C. 601-612 (1980).
Paperwork Reduction Act
101. This NPRM contains a proposed or modified information
collection. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public and the Office of
Management and Budget to comment on the possible information
collections contained in this NPRM, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Written comments must be
submitted by the public and by other Agencies on the proposed
information collections on or before September 7, 1999. Comments should
address: (1) whether the proposed collection of information is
necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (2) the accuracy of the Commission's burden estimates; (3)
ways to enhance the quality, utility, and clarity of the information
collected; and (4) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number:
Title: Service Rules for the 746-764 and 764-794 MHZ Bands and
Revisions to Part 27.
Form No.: FCC Forms 175, 301, 302, 346, 347, 601, and 603 will
almost surely be affected either by revision to the form or revision of
the number of respondents subject to the requirement. Other FCC Forms
may also be modified or the number of respondents increased, depending
on the final rules adopted in this proceeding.
Type of Review: New Collection.
Respondents: Business and other for-profit and non-profit
institutions.
Number of Respondents: The Commission expects a range of between
1,056 and 3,168 respondents.
Estimated Time Per Response: Between 4 hours and thirty minutes
(cumulative figure based on the time to fill out several of the
wireless universal service forms rather than any one form) and 115
hours and 12 minutes. (based on the time to fill out several broadcast
forms rather than any one form). Note these estimates are not based on
the time needed to complete any individual form, but are cumulative
figures.
Needs and Uses: This Notice of Proposed Rulemaking seeks comment on
the service rules and auction procedures to be developed for the
licensing of spectrum bands recently allocated to fixed and mobile
wireless use, as well as broadcasting. The service rules will encompass
a variety of technical and interference provisions, as well as
substantive policy deriving from both statutory and regulatory
requirements. In the latter regard, the rules will need to consider the
requirements applicable to common carrier and non-common carrier
services, and the broadcast-specific requirements established in the
Communications Act and by Commission regulations. In recognizing the
potential convergence of the wireless and broadcast regulatory
contexts, the service rules will address a wide range of requirements,
such as license eligibility and attribution of ownership interests. The
primary effect of these rules will be to enable licensing of these
spectrum bands, and thus to expand the number of licensees affected by
existing regulatory requirements, including both service rules and
auction procedures. The initial burden estimate that follows is
developed from that premise, and relies on the straightforward
extension of paperwork burdens associated with existing Commission
licensing requirements to entities that will bid in the auction and, if
successful, obtain licenses on these spectrum bands. Assumptions about
the number of entities that will be licensed on this spectrum to
provide particular categories of service are necessarily speculative,
because the proposed service rules would not determine the extent to
which these bands may be used for specific service applications, or the
method of spectrum use adopted by licensees. The burden estimate was
instead developed to specify in terms that describe the potential range
of paperwork burdens associated with different uses of the spectrum.
Depending on the record developed, especially with regard to new
services and technologies on these bands, the Commission may, for
example, develop and implement auction procedures that vary from
existing broadcast or wireless procedures. Other existing requirements
may be altered, depending on the record developed and the types of
service expected to be licensed. Disclosure of ownership interests
germane to eligibility determinations, compliance with existing
Commission reporting requirements for EEO obligations, and statutory
accessibility and political broadcast requirements suggest, but do not
exhaust, the range of requirements potentially affected. A more
thorough listing of those requirements is contained in the synopsis of
the full text of the NPRM, as well as in the NPRM itself. The NPRM
seeks comment on means by which to minimize the effect of any paperwork
burdens arising from the accommodation of divergent technical and
regulatory requirements for these different services. The Commission
generally expects that such burdens will, overall, not exceed existing
burdens for established services, excepting the proposed requirement
that licensees apprise the Commission of changes in service offerings
that entail changes in their regulatory status. In developing an
initial burden estimate, the Commission has assumed that the bands will
initially be licensed to 176 geographic areas, based on Department of
Commerce Economic Areas (EAs), following Commission
practice.44 The Commission has assumed, solely for the
[[Page 36657]]
purpose of preparing its estimate of affected entities, that licensing
in each geographic area will be exclusively based on either a broadcast
or non-broadcast structure. Under the conventional broadcast structure,
each geographic area would include six spectrum blocks, each occupying
six megahertz. That assumed emphasis on broadcast services generates
the following burden estimate. Assuming 176 licensed areas, and 6
licensees per area, broadcast licensing burdens would be extended to
approximately 1056 licensees. For a nonbroadcast structure, again using
the EA figure of 176 licensed areas but assuming 18 licensees per area,
based on each licensee implementing a paired wireless service using 1
MHz in each direction, the expected number of licensees affected would
be about 3,168.
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\44\ See 47 CFR 26.102 and 27.6.
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List of Subjects
47 CFR Part 27
Communications common carriers, Communications equipment, Reporting
and recordkeeping requirements.
47 CFR Part 73
Communications equipment, Equal employment opportunity, Reporting
and recordkeeping requirements, Television.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 99-17143 Filed 7-6-99; 8:45 am]
BILLING CODE 6712-01-U