[Federal Register Volume 65, Number 134 (Wednesday, July 12, 2000)]
[Rules and Regulations]
[Pages 42879-42883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17648]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[CC Docket No. 94-102, CS Docket No. 98-120; FCC 00-224]


Service Rules for the 746 Through 764 and 776 Through 794 MHz 
Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule; petitions for reconsideration.

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SUMMARY: This document responds to petitions for reconsideration 
seeking changes in service rules adopted previously in this proceeding 
regarding commercial use of the 747-762 MHz and 777-792 MHz bands. The 
Commission generally affirms these service rules and provides 
additional guidance on the factors it will consider when reviewing 
applications that would accelerate the departure of incumbent analog 
television licensees. A separate document seeks comment on additional 
measures to facilitate the use of these bands for new commercial 
services.

DATES: Effective July 12, 2000.

FOR FURTHER INFORMATION CONTACT:
  Legal Information: Stanley Wiggins or Jane Phillips, 202-418-1310.
    Technical Information: Marty Liebman, 202-418-1310.

SUPPLEMENTARY INFORMATION: This is a summary of the Memorandum Opinion 
and Order (MO&O) portion of the Commission's Memorandum Opinion and 
Order and Further Notice of Proposed Rulemaking in WT Docket No. 99-168 
and CS Docket No. 98-120, FCC 00-00-224, adopted June 22,2000, and 
released June 30, 2000. The Notice of Proposed Rulemaking portion of 
this decision is summarized elsewhere in this Federal Register. The 
complete text of this MO&O is available for inspection and copying 
during normal business hours at the FCC Reference Information Center, 
Courtyard Level, 445 12th Street, SW, Washington, DC, and also may be 
purchased from the Commission's copy contractor, International 
Transcription Services (ITS, Inc.), CY-B400, 445 12th Street, SW, 
Washington, DC.

Synopsis of the Memorandum Opinion and Order

    1. In this Memorandum Opinion and Order (MO&O), the Commission 
responds to petitions for reconsideration of the First Report and Order 
(First R&O), 65 FR 3139, January 20, 2000, in this proceeding. The 
First R&O adopted service rules for the commercial use of the 747 
through 762 MHz and 777 through 792 MHz bands that enable the broadest 
possible use of this spectrum, consistent with sound spectrum 
management. The MO&O generally affirms the service rules adopted in the 
First R&O, and provides additional guidance on the factors the 
Commission will consider when reviewing regulatory requests necessary 
to implement voluntary agreements that would accelerate the departure 
of incumbent analog television licensees and open these bands for new 
700 MHz licensee use.
    2. Specifically, the Commission removes the restrictions on the

[[Page 42880]]

operation of base stations in the lower band, and on mobile, portable 
and control stations in the upper band, and revises its power limits 
for fixed and base stations to better enable Time Division Duplex (TDD) 
technologies to operate on these bands. In light of these changes, the 
Commission sees no need to revise the original, mandatory pairing of 
lower-band and upper-band spectrum blocks. Additionally, the Commission 
affirms its decision in the First R&O that this band's service rules 
should be oriented to intensive and efficient commercial wireless use, 
and also enable broadcast-type services that can satisfy the technical 
rules necessary for efficient overall use of spectrum.
    3. First, as discussed in paragraphs 6 through 10 of the full text 
of the MO&O, the Commission allows base, fixed, portable, mobile, and 
control stations on both the upper and lower bands, subject to the 
consistent application of the power limits already adopted for the 
various types of stations. Specifically, the Commission revises Section 
27.50 of its Rules to allow 1000 watt Effective Radiated Power (ERP) 
base and fixed stations in both the lower and upper bands, and to allow 
30 watt ERP mobile and control stations, as well as 3 watt ERP 
portables, in both the upper and lower 700 MHz bands. The Commission 
indicates that these revisions will enable TDD-based technologies to 
use either the upper or lower bands, or both, as circumstances warrant. 
The Commission also decides not to alter its determination to establish 
spectrum blocks and assign licenses consisting of paired bands, in 
part, because the Commission finds that modifying the power limits is a 
better means for enabling TDD operations than eliminating frequency 
pairing. The Commission notes that the pairing of these bands has been 
favored by the majority of commenters in this proceeding.
    4. The Commission further affirms the internal out-of-band emission 
(OOBE) limits established in the First R&O, finding that a modification 
of the internal, 43+10 log P out-of-band emission limit adopted in the 
First R&O to protect commercial service operators from one another is 
not demonstrated to be necessary to protect TDD-based technologies. 
However, the Commission believes that users of TDD technology are 
entitled to protection from interference from adjoining bands, and thus 
indicates that, in the event that sufficient, valid evidence is 
presented supporting instances of interference, it would take action to 
minimize such interference. This discussion may be found at paragraphs 
14 through 17 of the full text of MO&O.
    5. As discussed in paragraphs 21 through 27 in the full text of the 
MO&O, the Commission also declines to alter the OOBE standards adopted 
to protect public safety operations. Instead, the Commission finds that 
the existing OOBE standards reflect a carefully considered effort to 
protect public safety, while enabling the viability of the commercial 
700 MHz band, which Congress also directed the Commission to establish. 
The Commission, as discussed in paragraphs 21 through 29 in the full 
text of the MO&O, reiterates its concern that operations in the 700 MHz 
bands not adversely affect Global Positioning System (GPS) operations, 
but finds that the OOBE limits adopted in the First R&O to protect such 
operations are sufficient. Further, at paragraph 31 of the full text of 
the MO&O, the Commission affirms the technical criteria adopted in the 
First R&O for the protection of digital television (DTV) stations from 
commercial stations that will operate in the 700 MHz band. However, the 
MO&O, at paragraph 32, clarifies a statement made in the First R&O to 
the effect that licenses issued for the 700 MHz bands within 120 km of 
the borders of Canada and Mexico would be subject to whatever future 
agreements the United States develops with those countries. The MO&O 
clarifies that all 700 MHz licensees will be subject to any future 
agreements the United States develops with Canada and Mexico.
    6. Finally, as discussed in paragraph 34 of the full text of the 
MO&O, the Commission declines to adopt various proposals for technical 
modifications of the Commission's Rules that deal with emission limits 
(i.e., Section 27.53 of the Commission's Rules).
    7. The MO&O next considers conventional television broadcast 
issues. First, regarding inter-service flexibility, the Commission 
affirms its decision in the First R&O to preclude conventional 
broadcast service in the 700 MHz band. As discussed in more detail in 
paragraph 38 in the full text of the MO&O, the Commission decided to 
adopt technical and service rules that effectively preclude 
conventional television broadcast service on the 700 MHz band, based on 
Congressional intent that this spectrum be recovered from conventional 
broadcast use for the provision of commercial wireless services; the 
high potential for interference to lower-power services caused by the 
disparity in the two services' characteristic power levels and 
transmitter tower heights and the characteristic limits of receivers' 
ability to distinguish between desired and extraneous signals; and the 
predominant interest in the record in developing this spectrum for 
fixed and mobile wireless use. No material has been presented to change 
this finding.
    8. The MO&O, at starting at paragraph 44, addresses issues relating 
to the transition to digital television (DTV) and the voluntary 
relocation of incumbent broadcast licensees currently operating in the 
700 MHz band. In that regard, the Commission considers challenges to 
two aspects of the rules for the 700 MHz band, both keyed to the 
Commission's treatment of the transition to DTV. In response to these 
challenges, at paragraphs 44 and 45 of the full text of the MO&O, the 
Commission dismisses objections to its use of the statutory target date 
for the completion of the DTV transition--December 31, 2006--as the 
basis for setting certain regulatory dates for the new commercial 
licenses, and denies the request that it revise the text of the First 
R&O and the accompanying rules to identify ``completion of DTV 
transition'' as the triggering event for commencement of the eight-year 
license term for broadcast service, and the substantial performance 
period.
    9. The Commission also affirms the decision in the First R&O that 
this band's service rules should be oriented to intensive and efficient 
commercial wireless use, and also enable broadcast-type services that 
can satisfy the technical rules necessary for efficient overall use of 
spectrum. The Commission thus declines to reconsider its willingness to 
consider voluntarily negotiated agreements that would expedite the 
departure of incumbent analog television licensees from these 
frequencies. The Commission finds that voluntary clearing agreements 
between 700 MHz licensees and TV incumbents would generally advance the 
public interest and further the statutory scheme. The MO&O therefore 
provides additional guidance regarding the Commission's treatment of 
such voluntary arrangements, in an effort to provide greater certainty 
to potential bidders and incumbent broadcasters and facilitate the 
early clearance of incumbent broadcast stations on channels 59-69. 
These agreements should facilitate both the provision of next 
generation and Internet wireless services, and the transition to DTV by 
these incumbent broadcast stations. This additional guidance 
establishes certain presumptions regarding the Commission's treatment 
of these voluntary arrangements, and recognizes the must-carry 
obligation of cable systems with regard to broadcasts of

[[Page 42881]]

digital television programming. Paragraphs 46 through 50 in the full 
text of the MO&O provide more detailed discussion of these issues which 
are summarized in this Federal Register document.
    10. Paragraphs 51 through 54 of the full text of the MO&O discuss 
and affirm the Commission's authority to review the voluntary 
agreements between incumbent broadcast licensees and new 700 MHz 
licensees. The Commission finds that such agreements, if properly 
structured, will further the broad public interest in intensive and new 
wireless services to all Americans, should help make available to the 
public safety community needed new spectrum that Congress has mandated 
be allocated for public safety use, and should help expedite a 
transition to DTV for broadcasters who might need assistance to 
implement such a transition.
    11. The MO&O, at paragraphs 55 and 56, analyzes matters related to 
the possible loss of broadcast services resulting from voluntary 
agreements. The Commission affirms its finding in the First R&O that, 
in reviewing voluntary agreements, it must weigh the benefits 
associated with recovery of the spectrum for new wireless uses against 
any loss of service to the broadcast community of license. The 
fundamental importance of over-the-air broadcast service is recognized 
by legislative and judicial determinations, and the Commission's own 
practice in reviewing specific instances of loss of service. In the 
past, the Commission has required that stations withdrawing or 
downgrading existing service justify that action by establishing 
offsetting considerations that demonstrate the public generally will 
benefit.
    12. The Commission carefully considers the weight to be accorded 
such losses, both from a broad policy view and in the review of 
specific regulatory requests. From the broader policy perspective, the 
Commission determines that several statutory purposes involved here are 
best served by enabling voluntary agreements that result in the 
expeditious and efficient recovery of these frequencies for the 
legislatively specified commercial and public safety purposes. The 
Commission also notes that the over-the-air service involved here is 
scheduled to terminate as part of the DTV transition, and that Congress 
has directed the Commission to auction and license these frequencies on 
an expedited schedule well in advance of December 31, 2006. Thus the 
Commission finds that temporary loss-of-service issues here do not 
raise concerns that generally prevent regulatory requests in connection 
with voluntary agreements.
    13. The Commission implements these policy judgements by providing 
guidance on the review of regulatory requests arising from band 
clearance agreements between new licensees of this spectrum and 
incumbent broadcast licensees on channels 59-69, discussed in 
paragraphs 57 through 59 of the full text of the MO&O. First, the 
Commission believes that private parties generally are the best 
evaluators of their own economic circumstances and alternatives and the 
Commission will not look to second guess their business decisions. The 
Commission's underlying policy premise is that voluntary agreements can 
provide supplemental resources to broadcasters that will both expedite 
their transition to DTV and strengthen their economic viability, but 
the private parties should determine for themselves when the economic 
case is made. When the private parties are satisfied, therefore, the 
Commission will be inclined to grant regulatory requests arising from 
such commercial arrangements, provided the requests do not, on balance, 
have adverse public policy consequences. Second, the Commission notes 
that its role will be limited to weighing the effect on the public 
interest of regulatory requests in connection with such agreements. The 
Commission will not be reviewing the wisdom of the underlying private 
agreements, or the negotiation process leading to them, in the normal 
course.
    14. The Commission also establishes a process and specific guidance 
for parties potentially interested in negotiating voluntary agreements. 
To ensure that all public interest issues are readily identified, the 
Commission will require broadcasters entering into voluntary agreements 
to provide the public in the principal area served by the licensee with 
the notice required by the Commission's Rules for filing of 
applications. (47 CFR 73.3580(d).) In addition, the Commission will 
issue public notice of the filing of all voluntary agreements requiring 
its approval. The Commission clarifies that its review of such requests 
generally will fall within Section 316 of the Act, and notes that it 
will consider showings of actual loss of service, rather than 
theoretical loss, resulting from a voluntary agreement.
    15. The Commission, in paragraphs 60 through 62 of the MO&O, 
establishes a rebuttable presumption that, in certain circumstances, 
substantial overall public interest benefits will arise from a 
voluntary agreement between a 700 MHz licensee and an incumbent 
broadcast licensee that clears the 700 MHz band of incumbent television 
licensees. Specifically, the Commission will initially presume that the 
public interest is substantially furthered, so that routine approval is 
justified, when an applicant demonstrates that the request will both 
result in certain specific benefits and avoid specific detriments. The 
Commission will recognize such a presumption favoring the grant of any 
requests that: (1) Would result in new wireless services to consumers, 
in particular ``next generation'' or ``3G'' wireless services; (2) 
would clear commercial frequencies that enable provision of new public 
safety service; or (3) would result in the provision of new wireless 
service to rural or other underserved communities. The applicant would 
also need to show that a grant of the request would not: (1) Result in 
the loss of any of the four stations in the designated market area with 
the largest audience share; or (2) occasion the loss of the sole 
service licensed to the local community; or (3) result in the loss of a 
community's sole service on channels reserved for noncommercial 
educational broadcast stations.
    16. This presumption is not conclusive or dispositive, however. In 
specific cases where the presumption applies, for instance, the 
Commission would consider whether special or unique factors raised by 
the resulting loss of broadcast service would be sufficient to rebut 
the presumption. The MO&O also finds, in paragraphs 63 through 66 that, 
where the presumption does not apply, the Commission will review 
regulatory requests by weighing the loss of broadcast service, 
acceleration of the DTV transition, and the advent of new wireless 
service on a case-by-case basis. In reviewing requests not subject to 
the presumption, the Commission also will consider as a relevant factor 
in its public interest determination the extent to which the station's 
programming will remain available, after implementation of the 
agreement, to a significant number of its viewers in the licensee's 
service area.
    17. The MO&O points to the important role that cable carriage can 
play during the transition period by providing continued service to 
viewers that would otherwise be deprived of broadcast service, and 
addresses two cable issues in the context of voluntary relocation 
agreements. First, the MO&O clarifies that cable systems are ultimately 
subject to the must carry obligation with regard to broadcasters' 
digital signals. Second, to facilitate the continuing availability 
during the transition of the analog signal of a

[[Page 42882]]

broadcaster who is party to a voluntary relocation agreement with new 
700 MHz licensees, the MO&O states that such a broadcaster could, in 
this context and at its own expense, provide its broadcast digital 
signal in an analog format for carriage on cable systems, but only for 
a limited period. Until the transition to digital television is 
completed in a given market, nothing prohibits the cable system from 
providing such signals in analog format to subscribers.
    18. Another factor the Commission will consider, when the favorable 
presumption does not apply, is whether the station's signal will remain 
available, after implementation of the agreement, to a significant 
number of its viewers in the licensee's service area. If that signal is 
effectively available to a significant number of current viewers 
through various distribution channels, and implementation of the 
voluntary agreement would not create additional TV white or gray area, 
the Commission would generally be inclined to approve the voluntary 
agreement.
    19. The MO&O next denies a proposal that the Commission adopt an 
``equivalent regulatory regime'' for new services on these bands that 
is similar to that for broadcast television. The MO&O also denies the 
request that, to the extent the Commission applies a less regulated 
structure to new broadcast-type services on these channels, it should 
accord similarly relaxed treatment to stations operating on channels 2-
59. The Commission recognizes that specific statutory provisions govern 
broadcast services, but it will not, at this juncture, attempt to 
anticipate the form or forms that the next generation of ``broadcast-
type'' services on these bands may take, or to configure a regulatory 
structure on the basis of speculation, but will determine the 
applicable regulatory framework in the context of the offering of 
specific, actual services. This issue is discussed in paragraph 68 of 
the full text of the MO&O.
    20. The MO&O, in paragraph 70 of the full text, denies a request 
that the Commission review its decision in the First R&O establishing 
Guard Bands to protect the immediately adjoining public safety 
licensees on channels 63, 64, 68, and 69 from harmful interference from 
operations on the 30 megahertz segment, and consider instead enforcing 
emission limits.
    21. The MO&O, in paragraph 73 of the full text, considers issues 
pertaining to licensing rules. Regarding the Commission's decision in 
the First R&O that licenses in the 747 through 762 MHz and 777 through 
792 MHz bands should not count against the 45/55 MHz spectrum cap if 
used to provide CMRS, the Commission dismisses a proposal to extend the 
CMRS spectrum cap to include 700 MHz spectrum.
    22. Finally, the MO&O, in paragraphs 76 through 77 of the full 
text, considers competitive bidding issues. The Commission affirms its 
decision to limit its nationwide bid withdrawal procedure to those 
bidders seeking a 30 megahertz nationwide license. The MO&O also 
declines to modify the service rules adopted in the First R&O by 
redrawing the geographic territories, reducing the size of the spectrum 
blocks, and/or setting aside a portion of the 700 MHz spectrum for 
exclusive bidding by smaller business.

Administrative Matters

    23. The actions contained in this MO&O are exempt from the 
provisions of the Paperwork Reduction Act of 1995, under the 
Consolidated Appropriations statute, See Consolidated Appropriations, 
Appendix E, Sec. 213. See also 145 Cong. Rec. at H12493-94 (November 1, 
1999). Implementation of the revisions to part 27 required to assign 
licenses in these commercial spectrum bands, including revisions to 
information collections, are therefore not subject to approval by the 
Office of Management and Budget, and became effective upon adoption. 
Similarly, the Consolidated Appropriations statute exempts this 
decision from the Regulatory Flexibility Act provisions and from the 
Contract With America Advancement Act provisions.

    24. Authority. This action is taken pursuant to Sections 1, 4(i), 
7, 10, 201, 202, 208, 214, 301, 303, 307, 308, 309(j), 309(k), 310, 
311, 315, 316, 317, 324, 331, 332, 336, 337, and 614 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157, 
160, 201, 202, 208, 214, 301, 303, 307, 308, 309(j), 309(k), 310, 311, 
315, 316, 317, 324, 331, 332, 336, 337, and 534, and the Consolidated 
Appropriations Act, 2000, Public Law 106-113, 113 Stat. 1501, Section 
213.

Ordering Clauses

    25. Part 27 of the Commission's Rules is revised on reconsideration 
to modify service rules for the 747 through 762 MHz and 777 through 792 
MHz bands, as set forth in this synopsis, and, in accordance with 
Section 213 of the Consolidated Appropriations Act, 2000, Public Law 
106 through 113, 113 Stat. 1501 (1999), these rules shall be effective 
July 12, 2000.
    26. The Petitions for Reconsideration filed by ArrayComm, Inc., the 
Association of Local Television Stations, Inc., the Association for 
Maximum Service Television, Inc., the Association of Public-Safety 
Communications Officials-International, Inc., the Federal Law 
Enforcement Wireless Users Group, the National Association of 
Broadcasters, Nelson Repeater Services, Inc., Northcoast 
Communications, LLC, and the U.S. GPS Industry Council are denied; the 
Petitions for Reconsideration filed by Adaptive Broadband Corporation, 
TRW, Inc., and US WEST Wireless, LLC are granted, to the extent 
indicated in the MO&O, and are otherwise denied; the request by Rand 
McNally & Company to withdraw its Petition for Reconsideration is 
granted.

List of Subjects in 47 CFR Part 27

    Telecommunications.

Federal Communications Commission.
Shirley Suggs,
Chief, Publications Group.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 27 to read as follows:

PART 27--WIRELESS COMMUNICATIONS SERVICE

    1. The authority citation for part 27 continues to read:

    Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309 and 332.

    2. Section 27.50(b) is revised, and in paragraph (c) the heading of 
Table 1 is revised to read as follows:


Sec. 27.50  Power and antenna height limits.

* * * * *
    (b) The following power and antenna height limits apply to 
transmitters operating in the 746-764 MHz and 776-794 MHz bands:
    (1) Fixed and base stations transmitting in the 746-764 MHz band 
and the 777-792 MHz band must not exceed an effective radiated power 
(ERP) of 1000 watts and an antenna height of 305 m height above average 
terrain (HAAT), except that antenna heights greater than 305 m HAAT are 
permitted if power levels are reduced below 1000 watts ERP in 
accordance with Table 1 of this section;
    (2) Control stations and mobile stations transmitting in the 747-
762 MHz band and the 776-794 MHz band are limited to 30 watts ERP;
    (3) Portable stations (hand-held devices) transmitting in the 747-
762 MHz band and the 776-794 MHz band are limited to 3 watts ERP;
    (4) Maximum composite transmit power shall be measured over any 
interval of continuous transmission using instrumentation calibrated in 
terms of RMS-equivalent voltage. The

[[Page 42883]]

measurement results shall be properly adjusted for any instrument 
limitations, such as detector response times, limited resolution 
bandwidth capability when compared to the emission bandwidth, etc., so 
as to obtain a true maximum composite measurement for the emission in 
question over the full bandwidth of the channel.
    (c) * * *

Table 1--Permissible Power and Antenna Heights for Base and Fixed 
Stations in the 746-764 MHz and 777-792 MHz Bands

* * * * *

    3. Section 27.53 is amended by revising paragraph (c), by removing 
paragraph (d), and redesignating paragraphs (e), (f), and (g) as 
paragraphs (d), (e), and (f), to read as follows:


Sec. 27.53  Emission limits.

* * * * *
    (c) For operations in the 747 to 762 MHz band and the 777 to 792 
MHz band, the power of any emission outside the licensee's frequency 
band(s) of operation shall be attenuated below the transmitter power 
(P) within the licensed band(s) of operation, measured in watts, in 
accordance with the following:
    (1) On any frequency outside the 747 to 762 MHz band, the power of 
any emission shall be attenuated outside the band below the transmitter 
power (P) by at least 43 + 10 log (P) dB;
    (2) On any frequency outside the 777 to 792 MHz band, the power of 
any emission shall be attenuated outside the band below the transmitter 
power (P) by at least 43 + 10 log (P) dB;
    (3) On all frequencies between 764 to 776 MHz and 794 to 806 MHz, 
by a factor not less than 76 + 10 log (P) dB in a 6.25 kHz band 
segment, for base and fixed stations;
    (4) On all frequencies between 764 to 776 MHz and 794 to 806 MHz, 
by a factor not less than 65 + 10 log (P) dB in a 6.25 kHz band 
segment, for mobile and portable stations;
    (5) Compliance with the provisions of paragraphs (c)(1) and (c)(2) 
of this section is based on the use of measurement instrumentation 
employing a resolution bandwidth of 100 kHz or greater. However, in the 
100 kHz bands immediately outside and adjacent to the frequency block, 
a resolution bandwidth of at least 30 kHz may be employed;
    (6) Compliance with the provisions of paragraphs (c)(3) and (c)(4) 
of this section is based on the use of measurement instrumentation such 
that the reading taken with any resolution bandwidth setting should be 
adjusted to indicate spectral energy in a 6.25 kHz segment.
* * * * *

    4. Section 27.60(b)(2)(i) is amended by removing the word ``746-764 
MHz band'' and adding, in their place, ``746-764 MHz and 777-792 MHz 
bands'' in its place, and paragraph (b)(2)(ii) is amended by removing 
the words ``776-794 MHz band'' and adding, in their place, ``776-777 
MHz and 792-794 MHz bands and control and mobile stations (including 
portables) that operate in the 747-762 MHz and 777-792 MHz bands.''

[FR Doc. 00-17648 Filed 7-11-00; 8:45 am]
BILLING CODE 6712-01-P