[Federal Register Volume 64, Number 213 (Thursday, November 4, 1999)]
[Rules and Regulations]
[Pages 60123-60126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28549]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 90

[FCC 99-85; WT Docket No. 96-86]


Requirements for Meeting Federal, State and Local Public Safety 
Agency Communication Requirements Through the Year 2010

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition for reconsideration.

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SUMMARY: This document modifies the provisions governing the newly 
reallocated public safety spectrum at 764-776 MHz band and 794-806 MHz. 
The action was taken in response to petitions for reconsideration of a 
previous Commission order. These modifications are intended to provide 
the National Coordination Committee (NCC) the flexibility to proceed 
more efficiently without constraints that may have unnecessarily 
delayed the completion of its work to address and advise the Commission 
on certain public safety communication matters. The document also 
provides new procedures that will promote competition in the market for 
public safety communications equipment.

DATES: Effective January 3, 2000.

ADDRESSES: Federal Communications Commission, 445 12th Street, S.W., 
Room 4-C207, Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT: Michael Pollak, Wireless 
Telecommunications Bureau, Public Safety and Private Wireless Division, 
at (202) 418-0680.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Memorandum Opinion and Order on Reconsideration in WT Docket No. 96-86, 
FCC 99-85, adopted April 26, 1999, and released May 4, 1999. The full 
text of the Memorandum Opinion and Order on Reconsideration is 
available for inspection and copying during normal business hours in 
the FCC Reference Center, 445 12th Street, S.W., Room CY-A257, 
Washington, D.C. 20554. The full text of the Memorandum Opinion and 
Order on Reconsideration may also be purchased from the Commission's 
copy contractor, International Transcription Services, 1231 20th 
Street, N.W., Washington, D.C. 20036, telephone (202) 857-3800, 
facsimile (202) 857-3805. The full text of the Memorandum Opinion and 
Order on Reconsideration may also be downloaded at: <http://
www.fcc.gov/Bureaus/Wireless/Orders/1999/fcc99085.wp>. Alternative 
formats (computer diskette, large print, audiocassette, and Braille) 
are available to persons with disabilities by contacting Martha Contee 
at (202) 418-2555, or at [email protected].

Synopsis of the Memorandum Opinion and Order on Reconsideration

    This Memorandum Opinion and Order (MO&O) modifies a First Report 
and Order and Third Notice of Proposed Rulemaking, 63 FR 58645 
(November 2, 1998) (First Report and Order), which established a band 
plan and adopted service rules in the newly reallocated public safety 
spectrum at 764-776 MHz and 794-806 MHz, in three respects. First, the 
Commission is expanding the standards development options available to 
the National Coordination Committee (NCC) by providing that the NCC 
may, but is not required to, become accredited by the American National 
Standards Institute (ANSI). In this regard, we also clarify that the 
NCC is allowed to make use of and base its recommendations on the 
standards development work of other existing ANSI-accredited Standards 
Developers (ASDs). This expands the options available to the NCC for 
developing the standards it is required to recommend under the 
provisions of the First Report and Order. ANSI states, from its 
experience, that development and approval of an individual standard as 
an American National Standard can take from six months to three years 
and the NCC is required to complete its work within four years. These 
new options could potentially save time by allowing the NCC to build on 
standards work already accomplished or by allowing other technical 
standards development work to begin immediately, under ANSI procedures, 
without the necessity of waiting for the potentially lengthy process of 
accreditation of the NCC itself.
    Second, the Commission is rescinding the requirement that the fees 
and terms of license agreements involving proprietary technologies 
contained in NCC-recommended standards be approved by ANSI. ANSI is not 
an appropriate entity to approve proprietary technology license terms 
and fees involved with standards recommended by the NCC because such a 
role for ANSI would not meet with the approval of the voluntary 
standards community.
    Third, the Commission is implementing a self-policing policy 
similar to the ANSI patent policy that is structured to adequately 
protect the rights of both intellectual property right holders and 
consensus standard users while at the same time encouraging 
competition. Proprietary technology may be incorporated, however the 
Commission will require the owner or holder of the rights to 
proprietary technologies to file a statement with the NCC indicating 
that they will make such rights available to applicants either without 
cost or without unfair discrimination.
    The changes provided in the MO&O will allow the work of the NCC to 
proceed in a timely fashion, with the flexibility to operate more 
efficiently,

[[Page 60124]]

and without constraints that may have unnecessarily delayed the 
completion of that work. In addition, this MO&O provides new procedures 
that will promote competition in the market for public safety 
communications equipment by protecting users of standards recommended 
by the NCC from unfair discrimination in the licensing of proprietary 
technology.

Supplemental Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act, 5 U.S.C. 603 (RFA), 
a Final Regulatory Flexibility Analysis (FRFA) was incorporated in 
Appendix A of the First Report and Order issued in this proceeding.\1\ 
The Commission's Supplemental Final Regulatory Flexibility Analysis 
(SFRFA) in this Memorandum Opinion and Order on Reconsideration (Order 
on Reconsideration) contains information additional to that contained 
in the FRFA and is thus limited to matters raised on reconsideration 
with regard to the First Report and Order and addressed in this Order 
on Reconsideration. This SFRFA conforms to the RFA, as amended by the 
Contract with America Advancement Act of 1996.\2\
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    \1\ See Development of Operational, Technical and Spectrum 
Requirements For Meeting Federal, State and Local Public Safety 
Agency Communications Requirements Through the Year 2010, WT Docket 
No. 96/86, First Report and Order and Third Notice of Proposed 
Rulemaking (herein First Report and Order). As required by Section 
603 of the RFA, an Initial Regulatory Flexibility Analysis (IRFA) 
was incorporated in the initial Notice of Proposed Rulemaking in WT 
Docket No. 96-86. See Development of Operational, Technical and 
Spectrum Requirements For Meeting Federal, State and Local Public 
Safety Agency Communications Requirements Through the Year 2010, WT 
Docket No. 96-86, Notice of Proposed Rulemaking, 61 FR 25185 (May 
20, 1996) (First Notice). The proposals in the First Notice were 
refined and modified in a Second Notice of Proposed Rulemaking, 62 
FR 60199 (November 7, 1997) in this docket, into which a second IFRA 
was incorporated. See Development of Operational, Technical and 
Spectrum Requirements For Meeting Federal, State and Local Public 
Safety Agency Communications Requirements Through the Year 2010, WT 
Docket No. 96-86, Second Notice of Proposed Rulemaking, (Second 
Notice). The Commission sought written comment on the proposals in 
the Second Notice including the IRFA. The FRFA in the First Report 
and Order addressed issued raised by commenters that might affect 
small entities.
    \2\ Public Law 104-121, 110 Stat. 846 (1996) (CWAAA). Title II 
of the Contract with America Act is entitled ``The Small Regulatory 
Enforcement Fairness Act of 1996'' (SBREFA), and is codified at 5 
U.S.C. 601-611.
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I. Need for and Purpose of This Action

    In the Order on Reconsideration, the Commission responds to the 
Petition for Reconsideration filed in connection with the First Report 
and Order in this docket by the American National Standards Institute 
(ANSI and ANSI Petition). The Commission clarifies certain aspects of 
the First Report and Order relating to the operation of the National 
Coordination Committee (NCC). The NCC was established as provided in 
the First Report and Order pursuant to the provisions of the Federal 
Advisory Committee Act (FACA) to develop and recommend to the 
Commission technical standards to be used in public safety 
interoperability spectrum across the country.
    In response to the ANSI Petition, the Commission modifies its 
initial decision in three respects. First, in order to allow the NCC to 
make more efficient use of ANSI standards processes, the Commission 
expands the standards development options available to the NCC by 
providing that the NCC may, but is not required to, become ANSI-
accredited. The Commission also clarifies that the NCC is allowed to 
make use of and base its recommendations on the standards development 
work of existing ANSI-Accredited Standards Developers (ASDs). Second, 
the Commission rescinds the requirement from the First Report and Order 
that the fees and terms of license agreements involving proprietary 
technologies contained in NCC-recommended standards be approved by 
ANSI. And third, the Commission revises the process for allowing the 
incorporation of proprietary technologies into standards recommended by 
the NCC by requiring the owner or holder of the rights to such 
technologies to file with the NCC a statement that they will make such 
rights available to applicants either without cost or without unfair 
discrimination.
    As a result of the Commission's action in the Order on 
Reconsideration, it has addressed the fundamental concerns raised by 
ANSI in its petition, thus allowing the work of the NCC to proceed in a 
timely fashion, with the flexibility to operate with increased 
efficiency, and without the constraints that may have unnecessarily 
delayed the completion of that work. In addition, the Order on 
Reconsideration provides new procedures for the NCC that will promote 
competition in the market for public safety communications equipment by 
protecting users of standards recommended by the NCC from unfair 
discrimination in the licensing of proprietary technology contained in 
such standards.

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

    No comments were filed in direct response to the FRFA. In the ANSI 
Petition, and in certain other pleadings, issues were raised that might 
affect small entities. Specifically, ANSI argued that it had no 
authority to approve the license terms and fees offered by owners or 
holders of rights to proprietary technology and that better protection 
of licensees of this technology could be offered by adoption of the 
ANSI patent policy. ANSI also asserted that the NCC should not be 
required to become an ASD to develop its own standards but instead 
should be able to make use of American National Standards, or 
preliminary or in-process standards developed by other ASDs. In its 
comments to the Second Notice, FLEWUG supported the concept of 
requiring that the NCC choose an open standard created by an ANSI-
accredited entity.

III. Changes Made to the Proposed and Final Rules

    In the Second NPRM the Commission proposed to set technical 
standards for public safety interoperability spectrum. In the First 
Report and Order, the Commission determined instead, to seek to create 
the NCC to advise the Commission on the standards to be used in such 
spectrum. The First Report and Order required the NCC to become an ASD 
in order to develop itself the standards that it would recommend to the 
Commission. This Order on Reconsideration rescinds that requirement and 
allows the NCC to make use of, and base its recommendations on, the 
work of other ASDs.
    In addition, the Order on Reconsideration eliminates the 
requirement that fees and license terms for proprietary technology 
contained in any NCC-recommended standard be approved by ANSI. Instead, 
the Commission requires that before the NCC recommends any standard 
containing proprietary technology, where the technology is the subject 
of an actual or proposed license agreement, the owner or holder of such 
proprietary right must file with the NCC a statement that they will 
make such rights available to applicants either without cost or without 
unfair discrimination.

IV. Description and Number of Small Entities Affected by Rule Amendment

    The changes in the operations of the NCC provided in this Order on 
Reconsideration would principally affect the NCC, ANSI, the public 
safety and commercial entities who contribute members and/or resources 
to the NCC, and the persons or entities that hold the rights to 
proprietary technology that

[[Page 60125]]

might be included in an NCC-recommended standard. The public safety 
equipment manufacturers who might enter into agreements to use such 
standards in the construction of public safety communications equipment 
and the government and non-government entities that will purchase such 
equipment are only indirectly affected by the Order on Reconsideration.
    On January 29, 1999, the Commission released a Public Notice 
soliciting nominations for membership. Membership is open to any 
interested member of the public safety communications community, 
including representatives of federal, state and local government entity 
radio users, licensees and organizations, manufacturers, consulting 
firms, frequency coordinators and trade associations. A similar open 
membership structure was adopted for the most recent FCC-appointed 
federal advisory committee for public safety matters. This committee, 
formed in 1996 and called the Public Safety Wireless Advisory Committee 
(PSWAC), attracted approximately 500 members. It is anticipated that 
the NCC will have a similar number of members.
    The RFA generally defines the term ``small entity'' as having the 
same meaning as the terms ``small business,'' ``small organization,'' 
and ``small governmental jurisdiction.'' \3\ In addition, the term 
``small business'' has the same meaning as the term ``small business 
concern'' under the Small Business Act.\4\ A small business concern is 
one which: (1) Is independently owned and operated; (2) is not dominant 
in its field of operation; and (3) satisfies any additional criteria 
established by the Small Business Administration (SBA).\5\ A small 
organization is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
\6\ Nationwide, as of 1992, there were approximately 275,801 small 
organizations.\7\ ANSI has fewer than 300 employees, is independently 
owned and operated and we conclude that it is a small organization. 
``Small governmental jurisdiction'' generally means ``governments of 
cities, counties, towns, townships, villages, school districts, or 
special districts, with a population of less than 50,000.'' \8\ As of 
1992, there were approximately 85,006 such jurisdictions in the United 
States.\9\ This number includes 38,978 counties, cities, and towns; of 
these, 37,566, or 96 percent, have populations of fewer than 
50,000.\10\ The Census Bureau estimates that this ratio is 
approximately accurate for all governmental entities. Thus, of the 
85,006 governmental entities, we estimate that 81,600 (91 percent) are 
small entities. Below, we further describe and estimate the number of 
small entity licensees and regulatees that may be affected by the 
proposed rules, if adopted. As a general matter, Public Safety Radio 
Pool licensees include police, fire, local government, forestry 
conservation, highway maintenance, and emergency medical services.\11\ 
Spectrum in the 700 MHz band for public safety services is governed by 
47 U.S.C. 337. Non-Federal governmental entities as well as private 
businesses are licensees for these services.
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    \3\ See 5 U.S.C. 601(6).
    \4\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to the 
RFA, the statutory definition of a small business applies ``unless 
an agency, after consultation with the Office of Advocacy of the 
Small Business Administration and after opportunity for public 
comment, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \5\ Small Business Act, 15 U.S.C. 632 (1996).
    \6\ 5 U.S.C. 601(4).
    \7\ 1992 Economic Census, U.S. Bureau of the Census, Table 6 
(special tabulation of data under contract to Office of Advocacy of 
the U.S. Small Business Administration).
    \8\ 5 U.S.C. 601(5).
    \9\ U.S. Dept. of Commerce, Bureau of the Census, ``1992 Census 
of Governments.''
    \10\ Id.
    \11\ See Subparts A and B of part 90 of the Commissions's Rules, 
47 CFR 90.1-90.22. Police licensees include 26,608 licensees that 
serve state, county, and municipal enforcement through telephony 
(voice), telegraphy (code) and teletype and facsimile (printed 
material). Fire licensees include 22,677 licensees comprised of 
private volunteer or professional fire companies as well as units 
under governmental control. Public Safety Radio Pool licensees also 
include 40,512 licensees that are state, county, or municipal 
entities that use radio for official purposes. There are also 7,325 
forestry service licensees comprised of licensees from state 
departments of conservation and private forest organizations who set 
up communications networks among fire lookout towers and ground 
crews. The 9,480 state and local governments are highway maintenance 
licensees that provide emergency and routine communications to aid 
other public safety services to keep main roads safe for vehicular 
traffic. Emergency medical licensees (1,460) use these channels for 
emergency medical service communications related to the delivery of 
emergency medical treatment. Another 19,478 licensees include 
medical services, rescue organizations, veterinarians, handicapped 
persons, disaster relief organizations, school buses, beach patrols, 
establishments in isolated areas, communications standby facilities, 
and emergency repair of public communications facilities.
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    We anticipate that at least six radio equipment manufacturers might 
be affected by our decision in this Order on Reconsideration. According 
to the SBA's regulations, a communications equipment manufacturer must 
have 750 or fewer employees in order to qualify as a small business 
concern.\12\ Census Bureau data indicate that there are 858 U.S. firms 
that manufacture radio and television broadcasting and communications 
equipment, and that 778 of these firms have fewer than 750 employees 
and would therefore be classified as small entities.\13\ We do not have 
information that indicates how many of the six radio equipment 
manufacturers associated with this proceeding are among these 778 
firms. However, Motorola and Ericsson, firms that control approximately 
ninety-five percent of the public safety communications equipment 
market, are major, nationwide radio equipment manufacturers, and, thus, 
we conclude that these manufacturers would not qualify as small 
businesses.
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    \12\ 13 CFR 121.201, (SIC) Code 3663.
    \13\ U.S. Dept. of Commerce, 1992 Census of Transportation, 
Communications and Utilities (issued May 1995), SIC category 3663.
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V. Summary of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    The compliance requirements pertaining to the issues addressed in 
the Order on Reconsideration that were adopted in the First Report and 
Order include the provision that the NCC was to become accredited by 
ANSI as an ASD. Further, the First Report and Order required that no 
proprietary data was to be incorporated in any standard ultimately 
recommended by the NCC unless the proprietary data was made available 
on a fair, reasonable, unbiased and non-discriminatory basis, with 
license fees approved by ANSI and on terms and conditions set by that 
standards body. The Order on Reconsideration eliminates the requirement 
that the NCC become NCC accredited and the requirement that license 
fees terms and conditions be approved by ANSI. The Order on 
Reconsideration requires that before any standard may the owner or 
holder of the any rights to proprietary technologies that are 
incorporated into standards recommended by the NCC, where such owner or 
holder has licensed or announced and intention to license such 
proprietary technology, to file with the NCC a statement that they will 
make such rights available to applicants either without cost or without 
unfair discrimination.

VI. Steps Taken To Minimize the Economic Impact on Small Entities

    The Commission has reduced the impact on small entities of the 
provisions governing the operations of the NCC by eliminating the 
requirement

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that the NCC become ANSI-certified as an ASD and by eliminating the 
requirement that all fees, terms and conditions of licenses for 
proprietary technology contained in any NCC-recommended standard be 
approved by ANSI. In addition, the Commission has adopted on 
reconsideration an alternative procedure to protect users of NCC-
recommended standards from unfair discrimination. The requirement that 
owners or holders of rights to proprietary technology contained in NCC-
recommended standards that seek to license such rights must file 
statements with the NCC will burden a handful of entities that may or 
may not be small entities. In contrast, the requirement will benefit 
thousands of small governmental jurisdictions and their agencies by 
protecting their suppliers from unfair discrimination in the 
acquisition of technologies, and by encouraging greater competition in 
the public safety communications equipment market.

VII. Significant Alternatives Considered and Rejected

    The alternative approaches contained in the First Report and Order 
were considered and rejected as too burdensome, unnecessarily 
restrictive, or inefficient, thus leading the Commission to eliminate 
the above-described compliance requirements on ANSI and the NCC. With 
regard to a mechanism to protect users of NCC-recommended standards 
from unfair discrimination in the licensing of proprietary technology, 
the alternative of providing no protection was considered and deemed 
anti-competitive, unnecessarily expensive and insufficiently responsive 
to the communications needs of the large and small members of public 
safety community that the Commission is bound by law to support. The 
chosen mechanism of requiring owners and holders of rights to 
proprietary technology to agree with their licensees to make the 
technologies available, either without cost or on terms that are free 
from unfair discrimination, and to evidence that agreement by filing a 
statement to that effect with the NCC, was determined to be the least 
expensive and burdensome alternative available. Moreover, given its 
probable effect of encouraging competition in the relevant equipment 
market, this mechanism was determined to generate the most favorable 
ratio of cost to benefit in the overall public safety communications 
community.

Report to Congress

    The Commission shall send a copy of this Supplemental Final 
Regulatory Flexibility Analysis, along with the Order on 
Reconsideration, in a report to be sent to Congress pursuant to the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
801(a)(1)(A). A copy of this Supplemental Final Regulatory Flexibility 
Analysis will also be published in the Federal Register.

List of Subjects

47 CFR Part 2

    Communications equipment, Radio.

47 CFR Part 90

    Administrative practice and procedure, Communications equipment, 
Radio.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 99-28549 Filed 11-3-99; 8:45 am]
BILLING CODE 6712-01-P