[Federal Register Volume 65, Number 134 (Wednesday, July 12, 2000)]
[Proposed Rules]
[Pages 42960-42962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17649]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 27

[WT Docket No. 99-168, CS Docket No. 98-120, FCC 00-224]


Service Rules for the 746 Through 764 and 776 Through 794 MHz 
Bands, Carriage of the Transmission of Digital Television Broadcast 
Stations

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document solicits comment on various aspects of the 
spectrum clearance process for the 746-764 and 776-794 MHz (700 MHz) 
band. First, the document seeks comment on cost-sharing rules. Second, 
the document requests comment on the Commission's review of possible 
three-way voluntary relocation agreements to expedite clearing of the 
700 MHz band. Third, the document invites comment on ``secondary 
auctions.'' Finally, the document invites comment whether incumbent 
broadcasters and new 700 MHz licensees should be permitted to share 
spectrum, and on whether the standards the Commission adopts for the 
channel 59-69 band should apply to incumbents on channels 58 and lower. 
The action is intended as a method of creating a comprehensive record, 
representing as many varying viewpoints as possible, upon which to base 
decisions in this proceeding.

DATES: Submit comments on or before August 16, 2000; submit reply 
comments on or before September 15, 2000.

ADDRESSES: Send comments and reply comments to the Office of the 
Secretary, Federal Communications Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Joel Rabinovitz, 202-418-0689.

SUPPLEMENTARY INFORMATION: This is a summary of the Further Notice of 
Proposed Rule Making (FNPRM) 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 00-224, adopted June 
22, 2000, and released June 30, 2000. The Memorandum Opinion and Order 
(MO&O) portion of the decision is summarized elsewhere in this edition 
of the Federal Register. The complete text of the MO&O/FNPRM 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, 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 FNPRM

    1. The Commission, through the FNPRM, solicits comment on four 
aspects of the spectrum clearance process initiated in the First Report 
and Order (First R&O) in this proceeding (65 FR 3139, January 20, 
2000). The First R&O adopted a band plan and associated service rules 
for the assignment of licenses in 30 megahertz of the 700 MHz band 
(747-762 and 777-792 MHz). In the First R&O, the Commission concluded 
that it would consider specific regulatory requests needed to implement 
voluntary agreements reached between incumbent licensees and new 
licensees that would compensate incumbents for clearing the band or 
otherwise accommodating the new licensees. In the FNPRM, the Commission 
seeks comment on other potential mechanisms to further the goals of 
transitioning the 700 MHz band to wireless services and accelerating 
the transition to digital television.
    2. The FNPRM first invites comment on whether to adopt cost-sharing 
rules that would spread the cost of clearing the 700 MHz band for use 
by the new licensees among 700 MHz licensees that benefit from the 
process. Specifically, the Commission invites comment on the following 
issues: (1) Would cost-sharing rules would expedite clearing the 700 
MHz band for use by the new licensees and the transition to DTV by 
incumbent broadcasters, or should, as the Commission tentatively 
concludes, cost-sharing arrangements should be left to negotiations 
among successful auction bidders? and (2) If the Commission adopts 
cost-sharing rules, how should the Commission calculate the costs that 
benefiting 700 MHz licensees would be required to pay. The Commission 
also tentatively concludes that if it were to adopt cost-sharing rules, 
licensees of the public safety spectrum would not be required to pay a 
share of the clearing costs, and invites comment on this tentative 
conclusion.
    3. The FNPRM solicits comment on whether there are mechanisms other 
than cost-sharing rules that the Commission could implement to 
facilitate voluntary band clearing. In particular, the Commission seeks 
comment on whether there are market-oriented mechanisms that might be 
more efficient to facilitate voluntary band clearing than the 
negotiation of individual band clear agreements by each 700 MHz 
licensee and each incumbent.
    4. One alternative on which the FNPRM solicits comment is three-way 
voluntary transition agreements that would provide for TV incumbents on 
television channels 59-69 to relocate to lower band TV channels that, 
in turn would be voluntarily cleared by the lower band TV incumbents. 
The Commission seeks comment on whether and under what conditions such 
agreements should be approved. The Commission, in the FNPRM seeks 
comment on how the Commission should evaluate possible loss of service 
in reviewing specific requests for voluntary relocations, and on 
whether the Commission should consider steps other than the review and 
approval or disapproval of voluntary agreements.
    5. The FNPRM also invites comment on the use of ``secondary 
auctions'' in conjunction with this or future auctions in the band as 
another tool for facilitating band clearing agreements. In a secondary 
auction, competitive bidding would be used to determine the price that 
would be paid by 700 MHz licensees to TV incumbents who agree to clear 
their channels in the 700 MHz band. The FNPRM seeks comment on this 
alternative, on whether such an auction should be conducted on a 
private basis, whether the Commission has legal authority to conduct a 
secondary auction, and, if a secondary auction were to be conducted by 
the Commission, how it should be organized.
    6. Finally, the Commission, through the FNPRM solicits comment on 
whether additional proposals should be considered to accelerate the 
digital television transition. For example, should the Commission allow 
incumbent broadcasters on television

[[Page 42961]]

channels 59-69 and 700 MHz new service providers to share spectrum in 
time and/or bits? Lastly, the FNPRM seeks comment on whether any of the 
enhanced band clearing proposals discussed in the FNPRM for incumbents 
on channels 59-69 should also apply to incumbents on channels 58 and 
lower.

Initial Regulatory Flexibility Analysis

    7. This is a synopsis of the Initial Regulatory Flexibility Act 
Statement in the Further Notice of Proposed Rulemaking (FNPRM). The 
full text of Initial Regulatory Flexibility Act Statement may be found 
in Appendix C of the full Memorandum Opinion and Order and NPRM.
    8. As required by the Regulatory Flexibility Act (RFA)(see 5 U.S.C. 
603. The RFA has been amended by the Contract With America Advancement 
Act of 1996, Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II 
of the CWAAA is the Small Business Regulatory Enforcement Fairness Act 
of 1996 (SBREFA)) the Commission has prepared the Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities by certain policies and rules proposed in the FNPRM. 
Pursuant to the Consolidated Appropriations Act, 2000, the requirements 
of the RFA do not apply to the rules and competitive bidding procedures 
governing assignments to commercial entities of frequencies in the 746 
MHz to 806 MHz band. Accordingly, the IRFA does not include an analysis 
of the possible economic impacts that might result from such rules and 
procedures. Written public comments are requested on the IRFA. Comments 
must be identified as responses to the IRFA and must be filed by the 
deadlines for comments on the FNPRM. The Commission will send a copy of 
the Memorandum Opinion and Order and FNPRM, including the IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration.

A. Need for and Objectives of the Proposed Rules

    9. The Congressional plan set forth in Sections 336 and 337 of the 
Act and in the 1997 Budget Act is to transition the 700 MHz band from 
its current use for broadcast services to commercial use and public 
safety services as expeditiously as possible. In the FNPRM, the 
Commission moves towards this goal by seeking comment on whether 
mechanisms other than those adopted in the First R&O might further 
facilitate the voluntary clearing of TV incumbents from the band. 
Further discussion of the need for and objectives of the proposed rules 
can be found at paragraph 2 of the full text of the IRFA.

B. Legal Basis

    10. This action is authorized under Sections 1, 4(i), 7, 10, 301, 
303, 307, 308, 309(j), 309(k), 316, 331, 332, 336, 337 and 614 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157, 
160, 301, 303, 307, 308, 309(j), 309(k), 316, 331, 332, 336, 337, and 
534, and the Consolidated Appropriations Act, 2000, Public Law 106-113, 
113 Stat. 1501, Section 213.

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

    11. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that will 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 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 which: (1) Is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) meets 
any additional criteria established by the Small Business 
Administration (SBA). According to SBA reporting data, there were 
approximately 4.44 million small business firms nationwide in 1992. 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. ``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.'' As of 1992, there were approximately 85,006 such 
jurisdictions in the United States. This number includes 38,978 
counties, cities, and towns; of these, 37,566, or 96 percent, have 
populations of fewer than 50,000. 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.
    12. The policies and rules proposed in the FNPRM discussed in the 
IRFA would affect all small entities that seek to acquire licenses in 
wireless services in the 698-746 MHz band (``lower 700 MHz band'') 
currently used for television broadcasts on Channels 52-58, or that are 
incumbent television broadcasters.
    13. The Commission has not yet developed a definition of small 
entities applicable to the lower 700 MHz band. Therefore, the 
applicable definition is the one under the Small Business 
Administration rules applicable to Communications Services, Not 
Elsewhere Classified. This definition provides that a small entity is 
one with $11.0 million or less in annual receipts. However, no 
channelization plan or licensing plan has been proposed or adopted for 
the lower 700 MHz band. Therefore, the number of small entities that 
may apply to acquire licenses in the lower 700 MHz band is unknown.
    14. The SBA defines a television broadcasting station that is 
independently owned and operated, is not dominant in its field of 
operation, and has no more than $10.5 million in annual receipts as a 
small business. Television broadcasting stations consist of 
establishments primarily engaged in broadcasting visual programs by 
television to the public, except cable and other pay television 
services. Included in this industry are commercial, religious, 
educational, and other television stations. Also included are 
establishments primarily engaged in television broadcasting and which 
produce taped television program materials. There were 1,509 television 
stations operating in the nation in 1992. In 1992, there were 1,155 
television station establishments that produced less than $10.0 million 
in revenue (76.5 percent). As of May 31, 1998, official Commission 
records indicate that 1,579 full power television stations, 2089 low 
power television stations, and 4924 television translator stations were 
licensed. We conclude that a similarly high percentage of current 
television broadcasting licensees are small entities (76.5 percent).

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    15. At this time, the Commission does not anticipate the imposition 
of new reporting, recordkeeping, or other compliance requirements as a 
result of the FNPRM. If the Commission later finds a need to impose new 
reporting, recordkeeping or other compliance requirements as a result 
of deciding to adopt any of the proposals contained in the FNPRM, a 
period of public and agency comment will be established at that time.

[[Page 42962]]

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

    16. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives: (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) the use of performance rather than design standards; and 
(4) any exemption from coverage of the rule, or any part thereof, for 
such small entities.
    17. The Commission seeks comment on the economic impact that the 
proposals described in the FNPRM might have on small entities. With the 
exception of the cost-sharing rules, the proposals on which the FNPRM 
seeks comment are based on the voluntary participation of both new 700 
MHz licensees and incumbent television broadcasters. Cost-sharing 
rules, if adopted, would require those new 700 MHz licensees that 
benefit from a clearing agreement with a TV incumbent to share the 
costs of that agreement. Insofar as small entities could not afford to 
enter into clearing agreements without the costs being shared by other 
700 MHz licensees, the cost-sharing rules would provide a positive 
economic benefit to small entities. To the extent that other licensees 
would enter into clearing agreements without the costs being shared by 
small entities, thereby giving the small entities a ``free ride,'' 
cost-sharing rules would produce a significant economic impact on small 
entities. Finally, to the extent that small entities would prefer not 
to enter into clearing agreements but to wait until the incumbent TV 
licensee was required to clear the band by statute, and cost-sharing 
rules would require small entities to share the costs of clearing 
agreements, cost-sharing rules would also produce a significant 
economic impact on small entities. As a general matter, cost-sharing 
rules must apply to all licensees in order for them to operate as 
intended. Moreover, without a channelization plan for the lower 700 MHz 
band, it is not possible at this time to determine whether the 
Commission could exempt some or all small entities from any cost-
sharing rules adopted, or otherwise minimize the impact on small 
entities. One significant alternative the Commission is considering is 
not to adopt any cost-sharing rules.

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

    18. None.

Ordering Clauses

    19. Notice is hereby given of the proposed regulations described in 
the FNPRM , and that comment is sought on these proposals.
    20. The Commission's Office of Public Affairs, Reference Operations 
Division, shall send a copy of the MO&O and FNPRM, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration in accordance with 
section 603(a) of the Regulatory Flexibility Act of 1980, Public Law 
96-354, 94 Stat. 1164, 5 U.S.C. 601-612 (1980).

Federal Communications Commission.
Shirley Suggs,
Chief, Publications Group.
[FR Doc. 00-17649 Filed 7-11-00; 8:45 am]
BILLING CODE 6712-01-P