[Federal Register Volume 65, Number 52 (Thursday, March 16, 2000)]
[Proposed Rules]
[Pages 14230-14236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6605]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 26, and 27

[WT Docket No. 00-32; FCC 00-63]


Transfer of 4.9 GHz Band From Federal Government Use

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document proposes to allocate and establish licensing and 
service rules for the 4940-4990 MHz band that has recently been 
transferred from Federal Government to private sector use as substitute 
spectrum for the 4635-4685 MHz band reclaimed for Federal Government 
use. This document also grants in part a Petition for Rulemaking filed 
by Global Frontiers, Inc. (Global) to revise, among other requests, the 
Commission's rules relating to this band. The action taken in this 
document is necessary to comply with Congressional mandate to transfer 
spectrum from the Federal government to the private sector, to permit 
and encourage the introduction of new services and the enhancement of 
existing services.

DATES: Submit comments on or before April 26, 2000; submit reply 
comments on or before May 17, 2000. Written comments by the public on 
the proposed information collections are due April 26, 2000. Written 
comments must be submitted by the Office Management and Budget (OMB) on 
the proposed information collections on or before May 15, 2000.

ADDRESSES: Send comments and reply comments to the Office of the 
Secretary, Federal Communications Commission, Washington, DC 20554. In 
addition to filing comments with the Secretary, a copy of any comments 
on the information collections contained herein should be submitted to 
Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th 
Street, SW, Washington, DC 20554, or via the Internet to 
[email protected], and to Ed Springer, OMB Desk Officer, 10236 NEOB, 725 
17th Street, NW, Washington, DC 20503 or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Elias Johnson, 202-418-1310. For 
additional information concerning the information collections contained 
in this document, contact Judy Boley at 202-418-0214, or via the 
Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rule Making (NPRM) in WT Docket No. 00-32, FCC 00-63, 
adopted February 23, 2000, and released February 29, 2000. The complete 
text of the NPRM and Initial Regulatory Flexibility Analysis is 
available on the Commission's Internet site, at www.fcc.gov. It is also 
available for inspection and copying during normal business hours in 
the FCC Reference Information Center, Courtyard Level,

[[Page 14231]]

445 12th Street, SW, Washington, DC, and may be purchased from the 
Commission's copy contractor, International Transcription Services, 
Inc., CY-B400, 445 12th Street SW, Washington, DC Comments may be sent 
as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html, or by e-mail to [email protected].

Synopsis of the NPRM

    1. In this NPRM, the Commission proposes to allocate and establish 
licensing and service rules for the 4940-4990 MHz (4.9GHz) band that 
has recently been transferred from Federal Government to private sector 
use as a substitute spectrum for the 4635-4685 MHz band reclaimed for 
Federal Government use. The Commission proposes to allocate the 4.9 GHz 
band for fixed and mobile services, except aeronautical mobile service, 
on a primary basis and seeks comment on the geographic area and 
spectrum blocks that should be used to license this spectrum. In 
addition, the Commission also proposes to license the 4.9 GHz band 
under part 27 of the Commission's Rules, except to the extent the 
Commission, in this NPRM, proposes to modify those rules to reflect the 
particular characteristics of this spectrum and the services that will 
be permitted to operate in this band. The Commission proposes to delete 
part 26 of the Rules (regarding General Wireless Communications 
Service) because it applies only to the 4660-4685 MHz band. The 
Commission also proposes that initial licenses for the 4.9 GHz band be 
acquired through competitive bidding under part I of the Commission's 
Rules. Furthermore, in a few instances, the Commission proposes to 
codify and conform certain rules for the 2.3 GHz band to provide for 
consistent regulation of part 27 services. Finally, the Commission 
grants in part a Petition for Rulemaking filed by Global Frontiers, 
Inc. (Global) to revise, among other requests, the Commission's rules 
relating to this band.
    2. Briefly, the Omnibus Budget Reconciliation Act of 1993 (OBRA, 
Public Law 103-66 107 Stat. 312) required that the Secretary of 
Commerce identify at least 200 megahertz of spectrum then allocated for 
use by Federal Government agencies to be transferred to private sector 
use. The Commission, in the GWCS First Report and Order (60 FR 13071, 
March 10, 1995) among other things allocated the 4660-4685 MHz band on 
a primary basis to fixed and mobile services and proposed to designate 
this band for the new GWCS service. The subsequent Second GWCS Report 
and Order (60 FR 40712, August 9, 1995) established GWCS and adopted 
Part 26 of the Commission's Rules setting out licensing and operating 
rules for the service in the 4660-4685 MHz band. However, due to an 
evident lack of interest in this spectrum and certain concerns 
expressed by the United States Navy regarding the effect that 
transferring this spectrum to commercial use could have on its 
Cooperative Engagement Capability (CEC) system, the Department of 
Commerce, on March 30, 1999, notified the Commission that the Federal 
Government was reclaiming the 4635-4685 MHz band and identifying, as 
substitute spectrum, the 4.9 GHz band.
    3. Global, in its Petition for Rulemaking (filed on November 24, 
1999) requested that the Commission: (1) Designate the 4.9 GHz band for 
GWCS in lieu of the reclaimed 4660-4685 MHz band; (2) make the service 
more attractive to applicants that require broadband capability in 
order to serve the public; (3) speed the process of licensing 
applicants that are not mutually exclusive; and (4) allow mutually 
exclusive applicants to consult and negotiate solutions to their mutual 
exclusivity. Global asked that the Commission make available for GWCS 
the entire 4.9 GHz band, that the band be broken down into five 10 
megahertz wide bands, and apparently that the band be licensed using 
Economic Areas (EAs). Global also requested that the 15 MHz aggregation 
limit contained in Sec. 26.101(a) be increased, and that GWCS licensees 
be able to partition their service territories to entities other than 
just rural telephone companies. In addition, Global asked that the 
Commission clarify how applications are to be filed and that the 
Commission promptly process GWCS applications. Finally, Global 
requested that the Commission encourage the avoidance of mutual 
exclusivity through negotiated engineering solutions.
    4. The NPRM proposes that licensees in the 4.9 GHz band be 
authorized to provide any fixed, mobile, or maritime mobile service, 
but not aeronautical mobile service. The NPRM seeks comment on this 
proposal. Further, the NPRM tentatively concludes that allocating the 
4940-4990 MHz band to fixed and mobile services, except aeronautical 
mobile service, is consistent with section 303(y)(2) of the 
Communications Act (Act), 47 U.S.C. 303(y)(2), as amended by the 
Balanced Budget Act 1997, Public Law 105-33, 111 Stat. 251. The NPRM 
also invites comment on whether allocating the 4940-4990 MHz band to 
fixed and mobile services is in the public interest, and on whether a 
flexible spectrum allocation in this band would deter investment in 
communications and systems, or technology development. Further, the 
NPRM seeks comment regarding the extent to which significant 
flexibility in service rules may encourage such investments. Finally, 
the NPRM solicits comment on its tentative finding that the technical 
rules proposed in the NPRM satisfy the requirements of section 
303(y)(2)(C).
    5. The NPRM seeks comment on its tentative conclusion that the 
action taken in the Public Safety Reallocation Order, 63 FR 06669, 
February 10, 2000, allocating the 764 MHz band on a primary basis to 
fixed and mobile services, and designating this spectrum solely for 
public safety use, and in the First Report and Order WT Docket No. 96-
86, 63 FR 58645, November 2, 1998, which adopted rules for licensing 
and operation for public safety in those bands, there is no need to set 
aside spectrum in the 4.9 GHz band for public safety use.
    6. The NPRM next seeks comment on the Commission's proposals that 
the 4.9 GHz band be governed, in general, by part 27 of the 
Commission's Rules and that part 26 no longer serves a function and 
should be deleted from the Commission's Rules.
    7. The NPRM does not propose to restrict the types of fixed and 
mobile services that can be provided in the 4.9 GHz band (other than 
aeronautical mobile). Consistent with this approach, the Commission 
notes that licensees may be required to comply with rules contained in 
other parts of the Commission's Rules. The Commission seeks comment 
generally on any provisions in existing, service-specific rules that 
may require specific recognition or adjustment to comport with the 
supervening application of part 27, as well as any provisions that may 
be necessary in part 27 to fully describe the scope of covered services 
and technologies.
    8. The NPRM notes that the 4.9 GHz service will be subject to the 
Universal Licensing System (ULS). All 4.9 GHz licensees filing 
applications and other filings using FCC forms 601 through 605 or 
associated schedules must make these filings electronically in 
accordance with the electronic filing instructions provided by ULS, 47 
CFR 1.913(b).
    9. The NPRM next proposes that, similar to licensees in other 
Commission services, applicants in the 4.9 GHz band be allowed to 
request common carrier and non-common carrier status for authorization 
in a single license rather than require the

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applicant to choose between common carrier and non-carrier services. 
This would enable 4.9 GHz licensees to provide all allowable services 
anywhere within its licensed area at any time, consistent with its 
regulatory status. In this regard, the NPRM proposes that applicants 
and licensees in the 4.9 GHz band be required to indicate a regulatory 
status based on any service they choose to provide, but not be required 
to describe their proposed services. The NPRM also proposes that if 
licensees change the service or services they offer, such that it would 
change their regulatory status, they must notify the Commission, within 
30 days of the change although such change would not require prior 
Commission authorization. In addition to making these procedures 
applicable to the 4.9 GHz band, the NPRM also proposes to codify these 
procedures for the 2.3 GHz band, and seeks comment on these proposals.
    10. The NPRM proposes that there be no additional restrictions on 
eligibility, other than the foreign ownership restrictions set forth in 
section 310 of the Commission's Act, and as indicated in this decision. 
In addition, consistent with Global's request, the NPRM tentatively 
concludes that licensees in the 4.9 GHz band should be permitted to 
obtain all of the 4.9 GHz licenses in a given geographic area, and that 
a spectrum cap is not necessary to prevent a 4.9 GHz licensee from 
exercising market power. The NPRM seeks comment on these issues.
    11. Applicants in the 4.9 GHz band would be subject to section 
27.12 of the Act, which implements the foreign ownership and 
citizenship requirements that restrict the issuance of licenses to 
certain applicants. An applicant requesting authorization only for non-
common carrier services would be subject to section 310(a) but not to 
the additional prohibitions of section 310(b). An applicant requesting 
authorization for common carrier services (or for both common carrier 
and non-common carrier services) would be subject to both sections 
310(a) and 310(b). Like common carriers, non-common carriers would be 
required to file the information whenever there are changes to their 
foreign ownership information. However, under the Commission's proposed 
rules, applicants requesting authorization exclusively to provide non-
common carrier services would not be disqualified if its citizenship 
information reflects that it would be disqualified from a common 
carrier license or required to file a waiver. The NPRM solicits comment 
on these proposals.
    12. The NPRM seeks comment on the appropriate geographic area to 
use for licensing the 4.9 GHz band. (See paras 41-43 of the full text 
of the NPRM.) Additionally, the NPRM invites comment on the appropriate 
size spectrum block or blocks that should be used to license the 4.9 
GHz band. Global requests that the spectrum be divided into five 10 
megahertz wide spectrum block. Alternatively, the NPRM seeks comment on 
whether this spectrum should be auctioned in two 25 MHz licenses. The 
NPRM requests comment on whether larger or smaller blocks would provide 
more options for services provided by licensees in the band, on whether 
the spectrum should be auctioned in paired spectrum blocks, on whether 
the Commission should license unpaired spectrum in the 4.9 GHz band, 
and on whether the Commission should make changes to its bidding rules 
to promote bidder flexibility
    13. The NPRM seeks comment on whether to provide for license terms 
not to exceed 10 years from the date of original issuance and whether 
to provide a right to a renewal expectancy. (See paras. 48 through 50 
of the full NPRM.) Further, the NPRM invites comments on the 
Commission's tentative conclusion that, in order to claim a renewal 
expectancy, a 4.9 GHz licensee involved in a comparative renewal 
proceeding must include at a minimum a showing including: (1) A 
description of current service in terms of geographic coverage and 
population served or links installed; (2) an explanation of the 
licensee's record of expansion, including a timetable for the 
construction of new base sites or links to meet changes in demand for 
service; (3) a description of the licensee's investments in its system; 
and (4) copies of any Commission Orders finding the licensee to have 
violated the Communications Act or any Commission rule or policy, and a 
list of any pending proceedings that relate to any matter described by 
the requirements for the renewal expectancy.
    14. On December 20, 1996, the Commission released a Further Notice 
of Proposed Rulemaking in WT Docket No. 96-148, 62 FR 696, January 6, 
1997, proposing, among other actions, to revise the partitioning rules 
for the band 4660-4685 MHz and to establish disaggregation rules for 
this band. The proposals contained in that document are superseded by 
the proposals discussed in the NPRM, and that proceeding is terminated 
to the extent that it addressed partitioning and disaggregation rules 
for the band 4660-4685 MHz.
    15. The NPRM tentatively concludes, consistent with Global's 
request, to allow all 4.9 GHz licensees the flexibility to partition 
their service areas without any restriction, and to disaggregate their 
spectrum. Section 27.15 of the Commission's Rules permits licensees 
seeking approval for partitioning and disaggregation arrangements to 
request authorization from the Commission for partial assignment of a 
license, and 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. In the 
Report and Order adopting the rule, 62 FR 653, January 6, 1997, the 
Commission decided to permit geographic partitioning of any service 
area defined by the partitioner and partitionee, to permit spectrum 
disaggregation without restriction on the amount of spectrum to be 
disaggregated, and to permit combined partitioning and disaggregation. 
The NPRM requests comment on the Commission's proposal that licensees 
in the 4.9 GHz band be eligible to the same extent to partition service 
areas and disaggregate spectrum, and also on what limits, if any, 
should be placed on the ability of licensees to partition service areas 
and disaggregate spectrum.
    16. The NPRM also requests comment on its proposal that 4.9 GHz 
applicants and licensees be required to, in the case of partitioning, 
file FCC form 603 and list the partitioned service area on a schedule 
to the application. Further, the NPRM proposes that licensees in the 
4.9 GHZ band follow Sec. 27.15(c) provisions against unjust enrichment 
and the remaining provisions governing partitioning and disaggregation 
in Sec. 27.15 of the Commission's Rules.
    17. The NPRM also seeks comment on the Commission's proposal 
regarding construction requirements for parties to partitioning, 
disaggregation, or combined partitioning and disaggregation agreements. 
The NPRM proposes to allow parties to partitioning agreements to choose 
between two options for satisfying the construction requirements. The 
first option provides that the partitioner and partitionee would each 
certify that it would independently satisfy the substantial service 
requirement for its respective partitioned area. If a licensee fails to 
meet this requirement during the relevant license term, that licensee's 
authorization would be subject to cancellation at the end of the 
license term. Under the second option, the partitioner would certify 
that it has met or will meet the substantial service requirement for 
the entire market. If the

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partitioner fails to meet this 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.
    18. The NPRM additionally 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 would 
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.
    19. The NPRM proposes construction standards and safe harbor 
provisions for 4.9 GHz licensees. As mandated by Sec. 27.14(a) of the 
Commission's Rules, licensees would be required to provide 
``substantial service'' in their service areas within 10 years of being 
licensed. A failure to meet this requirement would result in forfeiture 
of the license and the licensee's ineligibility to regain it. As 
proposed, licensees would be required to submit an acceptable showing 
to the Commission at the end of the license period demonstrating that 
they have provided substantial service during the license term or are 
providing substantial service at the end of the term. In addition, the 
NPRM proposes the safe harbors that would be applicable to 2.3 GHz 
licensee, as well as to 4.9 GHz licensees. The first safe harbor 
proposal states that for a licensee who chooses to offer fixed, point-
to-point service, the construction of four permanent links per one 
million people in its licensed service area during its license term or 
the license-renewal mark would constitute substantial service. The 
second safe harbor proposal provides that, for a licensee who chooses 
to offer mobile services or point-to-point multipoint services, a 
demonstration of coverage to 20 percent of the population of its 
licensed service area during its licensed term or at the license-
renewal mark would constitute substantial service.
    20. Under the proposed approach, the Commission intends to reserve 
the right to review these construction requirements in the future if 
complaints are received related to section 309(j)(4)(B) of the Act, or 
if a reassessment is warranted because spectrum is being warehoused or 
is otherwise not being used despite demand. The Commission will also 
reserve the right to impose additional, more stringent construction 
requirements on licenses in the future in the event that actual 
anticompetitive or universal service problems develop. The NPRM seeks 
comment on these proposals.
    21. The NPRM seeks comment on its tentative proposal that, for 
applicants in the 4.9 GHz band, providing common carrier or non-common 
carrier service, the Commission provide for a five-day period for 
filing petitions to deny applications, and a seven-day notice period 
for all auctionable services, as mandated for auctionable services in 
Secs. 1.2108(b) and 1.2108(c) of the Commission's Rules.
    22. The NPRM considers general common carrier obligations. The NPRM 
first invites comment on its proposal that the Commission exercise its 
authority to forbear from enforcing the same Title II of the Act 
requirements that the Commission has determined not to apply to CMRS 
licensees, for 4.9 GHz and 2.3 GHz licensees that provide common 
carrier fixed services. Title II of the Act imposes a variety of 
obligations on the operations of common carriers that are not otherwise 
imposed on wireless communications services. These operational 
requirements include the filing of tariffs, maintaining of records, 
liabilities, and discontinuance of service. The 1996 Act provides the 
Commission with the authority to forbear from Title II requirements. 
(See 47 U.S.C. 160, as added by the 1996 Act.) The statute requires 
that, before forbearing from applying any section of Title II, the 
Commission must find that each of the following applies:
    (a) Enforcement of such regulation or provision is not necessary to 
ensure that the charges, practices, classifications, or regulations by, 
for, or in connection with that telecommunications carrier or 
telecommunications service are just and reasonable and are not unjustly 
or unreasonably discriminatory.
    (b) Enforcement of such regulation or provision is not necessary 
for the protection of consumer; and
    (c) Forbearance from applying such provision or regulation is 
consistent with the public interest.

The NPRM seek comment on the application of these criteria to the 4.9 
and 2.3 GHz band.
    23. The NPRM seeks comment regarding whether to include an Equal 
Employment Opportunity (EEO) provision in the Commission's rules 
applicable to services in the 4.9 GHz band, and if so, which of the 
Commission's EEO rules should be adopted. The NPRM also seek comment on 
whether the Commission's EEO rules should be applied to licensees at 
2.3 GHz.
    24. The NPRM next proposes to apply the technical standards of part 
27, including power limits, equipment authorization, radiofrequency 
safety standards, emission limits, frequency stability, antenna 
structures and air navigation safety, international coordination and 
disturbance of AM station antenna patterns, as well as technical 
standards contained in other sections of the Commission's Rules, to 4.9 
GHz licensees.
    25. The NPRM offers two approaches to in-band interference control. 
Parties are asked to provide their analysis of both a general 
coordination requirement, in which the Commission would rely 
principally upon the use of coordination procedures to avoid harmful 
interference between the operation of licensees in adjacent service 
areas, and establishment of a field strength limit. Comments are 
particularly sought on issues such as coordination procedures and 
criteria, and on what the boundary limit should be. Comment is also 
sought on whether to modify Sec. 27.64 of the Commission's Rules, which 
states 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 to require modification to eliminate 
significant interference. The NPRM further invites comment on whether 
power limits and coordination procedures should be imposed to 
adequately protect radio astronomy operation.
    26. The NPRM notes that the U.S. Navy's CEC system operates on 
multiple frequencies in the bands below the 4.9 GHz, and invites 
comment on what measures should be taken to protect the 4.9 GHz 
licensees from interference from Federal Government use of the adjacent 
band. For example, should certain technical standards be imposed on 4.9 
GHz licensees?
    27. The NPRM proposes to use the part 1 auction rules to initially 
license the 4.9 GHz band, and to move the remaining part 26 auction 
rules for the

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band 4660-4685 MHz to the 4.9 GHz band. The NPRM also tentatively 
concludes that mutually exclusive initial applications for the 4.9 GHz 
band must be resolved through competitive bidding and that the 
Commission's previous determinations of auctionability is dispositive 
with regard to the substituted 4.9 GHz spectrum. (See para. 94 of the 
NPRM). The NPRM solicits comment on these tentative conclusions.
    28. The NPRM proposes to conduct the auction for initial licenses 
in the 4.9 GHz band in conformity with the general competitive bidding 
rules set forth in part 1, subpart Q of the Commission's Rules, and 
consistent with the bidding procedures that have been employed in 
previous Commission auctions. The NPRM invites comment on this proposal 
and on whether any of the Commission's part 1 rules would be 
inappropriate in an auction for this service.
    29. The NPRM considers the definition of small business in the 
context of the 4.9 GHz band. Specifically, the NPRM proposes to define 
a small business as any firm with annual average gross revenues for the 
three preceding years not in excess of $40 million. For entities that 
qualify as small businesses, the NPRM proposes to provide a bidding 
credit of 15 percent. The NPRM also proposes to define a very small 
business as one with average annual gross revenues for the three 
preceding years not in excess of $15 million. For entities that qualify 
as very small businesses, the NPRM proposes a bidding credit of 25 
percent. The NPRM invites comment on the appropriateness of these 
standards and on related issues. (See paragraphs 101 through 103.) In 
calculating gross revenues for purposes of small business eligibility 
in 4.9 GHz auction, the NPRM proposes to attribute the gross revenues 
of the applicant, its controlling interests, and its affiliates.

Initial Regulatory Flexibility Analysis

    30. As required by the Regulatory Flexibility Act of 1980 (RFA), 5 
U.S.C. 603, the Commission has prepared an Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities of the policies and rules proposed in the NPRM. The 
Commission requests written public comment on the analysis. In order to 
fulfill the mandate of the Contract with America Advancement Act of 
1996 regarding the Final Regulatory Flexibility Analysis, the 
Commission asks a number of questions in the IRFA regarding the 
prevalence of small businesses in the affected industries.
    31. Comments must be filed in accordance with the same filing 
deadlines as comments filed in this rulemaking proceeding, but they 
must have a separate and distinct heading designating them as responses 
to the IRFA. The Commission's Consumer Information Bureau, Reference 
Information Center, will send a copy of this NPRM, including the IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration.

Ex Parte Presentations

    32. 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).)

Pleading Dates

    33. Pursuant to applicable procedures set forth in Secs. 1.415 and 
1.419 of the Commission's Rules, interested parties may file comments 
on or before April 26, 2000, and reply comments on or before May 17, 
2000. Comments and reply comments should be filed in WT Docket No. 00-
32. All relevant and timely comments will be considered by the 
Commission before final action is taken in this proceeding. To file 
formally in this proceeding, 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, Room 
TW-A325, 445 Twelfth Street, SW, Washington, DC 20554, with a copy to 
Eli Johnson, Policy Division, Wireless Telecommunications Bureau, 445 
Twelfth Street, SW, Washington, DC 20554.
    34. 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 the 
applicable docket or rulemaking number. 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 your E-Mail address>.'' A sample form and directions will be 
sent in reply.
    35. Comments and reply comments will be available for public 
inspection during regular business hours at the FCC Reference Center, 
Room CY-A257, at the Federal Communications Commission, 445 Twelfth 
Street, SW, Washington, DC 20554. Copies of comments and reply comments 
are available through the Commission's duplicating contractor: 
International Transcription Service, Inc. (ITS, Inc.), CY-B400, 445 
12th Street, SW, Washington, DC 20054, (202) 857-3800.

Ordering Clauses

    36. These actions are taken pursuant to sections 1, 4(i), 7, 10, 
201, 202, 208, 214, 301, 303, 308, 309(j), and 310 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157, 
160, 201, 202, 208, 214, 301, 303, 308, 309(j), 310.
    37. Notice is hereby given of the proposed regulatory changes 
described in the NPRM, and that comment is sought on these proposals.
    38. The Petition for Rulemaking of Global Frontiers, Inc. To Revise 
Title 47, CFR, parts 2 and 26 in Order To Reallocate Frequencies to 
GWCS and Make Related Changes, is granted to the extent indicated.
    39. Pursuant to sections 1, 4(i) and 332 of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 154(i) and 332, the rulemaking 
proceeding captioned Geographic Partitioning and Spectrum 
Disaggregation by Commercial Mobile Radio Services Licensees, WT Docket 
No. 96-148, is terminated to the extent indicated.
    40. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of the Notice of Proposed 
Rulemaking, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration

Initial Regulatory Flexibility Analysis

    41. This is a synopsis of the Initial Regulatory Flexibility Act 
Statement in this Notice of Proposed Rulemaking (NPRM). The full text 
of Initial Regulatory Flexibility Act Statement may be found in 
Appendix A of the full NPRM.
    42. As required by the Regulatory Flexibility Act (RFA) the 
Commission has prepared this Initial Regulatory

[[Page 14235]]

Flexibility Analysis (IRFA) \1\ of the possible significant economic 
impact on small entities by the policies and rules proposed in this 
Notice of Proposed Rulemaking (NPRM), WT Docket No. 00-32. Written 
public comments are requested on this IRFA. Comments must be identified 
as responses to the IRFA and must be filed by the deadlines for 
comments on the NPRM. The Commission will send a copy of the NPRM, 
including the IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration.
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    \1\ 5 U.S.C. 603, The RFA, 5 U.S.C. 601 et. seq., has been 
amended by the Contract with America Advancement Act of 1996, Public 
Law 104-121, 110 Stat. 847 (1996) (CWAA). Title II of the CWAA is 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA).
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Need for, and Objectives of, the Proposed Rules

    43. The Commission's objectives in the NPRM are to: (1) Accommodate 
the introduction of new uses of spectrum and the enhancement of 
existing uses; (2) encourage commercial development of equipment that 
can operate in the 4.9 GHz band; (3) facilitate the awarding of 
licenses to entities who value them the most; and (4) create new jobs, 
foster economic growth and improve access to communications by industry 
and the American public. The Commission also seeks to ensure a 
regulatory plan for the 4.9 GHz band that will allow for the efficient 
licensing and 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.

Legal Basis for Proposed Rules

    44. The proposed action is authorized under sections 1, 4(i), 7, 
10, 201, 202, 208, 214, 301, 303, 308, 309(j), and 310 of the 
Communications Act of 1934, 47 U.S.C. 151, 154(i), 157, 160, 201, 202, 
208, 214, 301, 303, 308, 309(j), 310.

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

    45. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under Section 3 of the 
Small Business Act, unless the Commission has developed one or more 
definitions that are appropriate for its activities. 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) satisfies any additional criteria established by the 
Small Business Administration (SBA). A small organization is generally 
``any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.'' Nationwide, as of 1992, 
there were approximately 275,801 small organizations.
    46. The definition of ``small governmental entity'' is one with 
populations of fewer than 50,000. There are 85,006 governmental 
entities in the nation. This number includes such entities as states, 
counties, cities, utility districts and school districts. There are no 
figures available on what portion of this number has populations of 
fewer than 50,000. However, this number includes 38,978 counties, 
cities and towns, and of those, 37,556, or ninety-six percent, have 
populations of fewer than 50,000. The Census Bureau estimates that this 
ratio is approximately accurate for all government entities. Thus, of 
the 85,006 governmental entities, the Commission estimates that ninety-
six percent, or about 81,600, are small entities that may be affected 
by our rules.
    47. The proposals in the NPRM affect applicants who wish to provide 
services in the 4.9 GHz band. The Commission notes that we have 
previously defined ``small entity'' for Blocks C and F broadband PCS 
licensees as firms that had average gross revenues of less that $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. We also note that the Commission has adopted this 
same definition for 2.3 GHz and 39 GHz applicants, as well as for the 
band 4660-4685 MHz. With respect to prospective 4.9 GHz license 
applicants, the Commission proposes to use the small entity definition 
adopted in the Broadband PCS proceeding.
    48. In addition, the Commission notes that if the proposed special 
small business definition were not to be used, the applicable 
definition of small entity is the definition under the SBA rules 
applicable to radiotelephone (wireless) companies. This provides that a 
small entity is a radiotelephone company employing no more than 1,500 
persons. According to the Bureau of the Census, only twelve 
radiotelephone firms from a total of 1,178 such firms which operated 
during 1992 had 1,000 or more employees.
    49. The NPRM observes that the capital costs of operational 
facilities in the 4.9 GHz band are likely to vary widely. Accordingly, 
the NPRM seeks to adopt small business size standards that afford 
licensees substantial flexibility. Thus, in addition to its proposal to 
adopt the general small business standard the Commission used in the 
case of broadband PCS, 2.3 GHz, 39 GHz, and 4660-4685 MHz licenses, the 
NPRM also proposes to adopt the definition for very small businesses, 
businesses with average annual gross revenues for the three preceding 
years not in excess of $15 million.
    50. While the NPRM proposes to use these definitions, the 
Commission 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, if required, is held. In addition, at this point in 
the proceeding, the Commission does not know how many licensees will 
partition their license areas or disaggregate their spectrum blocks, if 
partitioning and disaggregation are allowed. The Commission assumes 
that, for purposes of our evaluations and conclusions in the IRFA, all 
of the prospective licensees are small entities, as that term is 
defined by the SBA or our proposed definitions for the 4.9 GHz band. We 
invite comment on this analysis.

Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    51. Entities interested in acquiring spectrum in the 4.9 GHz band 
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 licensees 
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. The Commission 
requests comment on how these requirements can be modified to reduce 
the burden on small entities and still meet the objectives of the 
proceeding.

Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    52. The NPRM seeks data demonstrating build-out and other capital 
requirements for services in the 4.9 GHz band, as well as the 
anticipated start-up costs for providing service, and how these costs 
compare with costs for

[[Page 14236]]

other services. Commenters are invited to use comparisons with other 
services for which the Commission has already established auction 
procedures as a basis for their comments regarding the appropriate 
definitions for small and very small businesses. Commenters are asked 
to address to what extent the proposed size standards will impact the 
ability of small businesses to acquire financing. In addition, the 
Commission seeks comment on whether the proposed designated entity 
provisions would be sufficient to promote participation by businesses 
owned by minorities and by women, and participation by rural telephone 
companies.
    53. The Commission has reduced burdens wherever possible. To 
minimize any negative impact, however, the NPRM proposes certain 
incentives for small entities which will redound to their benefit. The 
Commission will continue to examine alternatives in the future with the 
objectives of eliminating unnecessary regulations and minimizing any 
significant economic impact on small entities. The Commission seeks 
comment on significant alternatives commenters believe should be 
adopted.

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

    54. None

Paperwork Reduction Analysis

    55. This NPRM contains proposed and modified information 
collections. As part of our continuing effort to reduce paperwork 
burdens, the Commission invites the general public and the Office of 
Management and Budget (OMB) to take this opportunity to comment on the 
information collections contained in this NPRM, as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency 
comments are due at the same time as other comments on this NPRM. OMB 
comments are due 60 days from the date of publication of this NPRM in 
the Federal Register. 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: None.
    Title: The Transfer of the 4.9 GHz Band from Federal Government 
Use: Notice of Proposed Rulemaking.
    Form No.: FCC Forms 601, 602, 603, 604, 605.
    Type of Review: New information collection.
    Respondents: Business or other for profit.
    Number of Respondents: 100.
    Estimated Time Per Response: 113 hours.
    Total Annual Cost Burden: 0.
    Total Annual Burden: 11,300 hours.
    Needs and Uses: The various information reporting and verification 
requirements, and the prospective coordination requirement will be used 
by the Commission to verify licensee compliance with Commission rules 
and regulations, and to ensure that licensees continue to fulfill their 
statutory responsibilities in accordance with the Communications Act of 
1934. Such information has been used in the past and will continue to 
be used to minimize interference, verify that applicants are legally 
and technically qualified to hold licenses, and to determine compliance 
with Commission Rules.

List of Subjects

47 CFR Part 2

    Radio.

47 CFR Parts 26 and 27

    Communications common carriers, Radio.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 00-6605 Filed 3-14-00; 12:08 pm]
BILLING CODE 6712-01-P