[Federal Register Volume 65, Number 152 (Monday, August 7, 2000)]
[Rules and Regulations]
[Pages 48174-48183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19478]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 74, 78, and 101

[ET Docket No. 95-18; FCC 00-233]


Allocation of Spectrum at 2 GHz for Use by the Mobile-Satellite 
Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document confirms the Commission's decision to require 
new Mobile-Satellite Service (MSS) licensees in the reallocated 1990-
2025 MHz and 2165-2200 MHz bands to bear the cost of relocating 
Broadcast Auxiliary Service (BAS, including the Cable Television Relay 
Service and the Local Television Transmission Service) licensees in the 
1990-2110 MHz band, and Fixed Service (FS) microwave licensees from the 
2165-2200 MHz bands in cases where sharing between MSS and FS is not 
possible. The Commission also declines a request for mandatory 
submission of information by incumbent BAS and FS licensees, and 
dismisses a petition requesting a freeze on new BAS licenses.

[[Page 48175]]


DATES: Effective September 6, 2000.

FOR FURTHER INFORMATION CONTACT: Sean White, Office of Engineering and 
Technology, 202/418-2453, [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order and Second Memorandum Opinion and Order, adopted June 
27, 2000, and released July 3, 2000. The full text of this Commission 
decision is available for inspection and copying during normal business 
hours in the FCC Reference Information Center, Room CY-A257, 445 12th 
Street, S.W., Washington, D.C., and also may be purchased from the 
Commission's duplication contractor, International Transcription 
Service, (202) 857-3800, 1231 20th Street, N.W. Washington, D.C. 20036.

Summary of the Second Report and Order and Second Memorandum 
Opinion and Order

    1. In this Second Report and Order and Second Memorandum Opinion 
and Order, the Commission confirms its decision to require new Mobile-
Satellite Service (MSS) licensees in the 1990-2025 MHz and 2165-2200 
MHz bands to relocate incumbent BAS and FS licensees with which they 
are unable to share spectrum. In the March 1997 First Report and Order 
and Further Notice of Proposed Rule Making in ETN Docket No. 95-18, 62 
FR 19509, April 22, 1997, we allocated the 1990-2025 MHz and 2165-2200 
MHz bands to the Mobile-Satellite Service (MSS).
    2. In response to a Petition for Further Limited Consideration 
filed by ICO, Ltd., we reaffirm our decision in the First Report and 
Order and Further Notice of Proposed Rule Making, that new MSS 
licensees in the 1990-2025 MHz and 2165-2200 MHz band will be required 
to relocate incumbent licensees in those bands, at the expense of the 
MSS licensees. This decision is consistent with the policy we 
established in the First Report and Order and Further Notice of 
Proposed Rule Making, ET Docket No. 92-9, 58 FR 46457, September 2, 
1993; and proposed throughout that proceeding. ICO presented no new 
arguments justifying a change to this policy.
    3. In response to a Petition for Expedited Reconsideration filed by 
the ICO U.S.A. Service Group (IUSG), we decline to change our decision, 
made in the Third Notice of Proposed Rule Making and Memorandum Opinion 
and Order and Order in this proceeding, ET Docket No. 95-18, 63 FR 
69606, December 17, 1998, to deny a request filed by IUSG to require 
incumbent BAS and FS licensees to submit extensive information to 
facilitate the relocation process. We note that much of the information 
requested by IUSG is already available in our data bases, and that the 
remainder would be made available by incumbent BAS and FS licensees in 
the relocation negotiation process.
    4. In response to an Emergency Petition for Further Limited 
Consideration filed by IUSG, we decline as moot a request to impose a 
``freeze'' on the licensing of new BAS facilities. We reject this 
petition because we made no prior decision on the issue of freezing BAS 
licenses, and therefore the issue was not ripe for reconsideration. 
Further, we address the freezing of BAS licenses in the Second Report 
and Order.
    5. This allocation will require that the candidate bands be cleared 
of BAS incumbents in the 1990-2025 MHz band. In order to accommodate 
these incumbents, we confirm our decision to require MSS licensees to 
bear the costs of moving BAS licensees to their new band, at 2025-2110 
MHz. The relocation of BAS licensees will occur in two phases. In Phase 
I, the BAS band, which currently consists of seven channels of 17 or 18 
megahertz, will be narrowed by reducing the channels to 14.5 or 15 
megahertz each, freeing 18 megahertz of spectrum at 1990-2008 MHz for 
initiation of MSS operations. When this 18 megahertz is fully occupied, 
and MSS licensees require the remaining 17 megahertz of spectrum, at 
2008-2025, Phase II of the BAS relocation will begin, and the BAS band 
will be reduced to its final form of seven channels of 12.1 or 12.4 
megahertz width, at 2025-2110 MHz. BAS licensees and MSS licensees will 
negotiate the terms of relocation, but generally, the costs of 
relocation will be borne by MSS.
    6. The MSS allocation will also require relocation of FS microwave 
incumbents. We addressed this issue in the First Report and Order and 
Further Notice of Proposed Rule Making in ET Docket No. 92-9, 58 FR 
46457, September 2, 1993, and will follow the same procedures, 
requiring that MSS licensees negotiate relocation with FS licensees and 
bear the cost of relocating them from the 2165-2200 MHz band.

Final Regulatory Flexibility Analysis

    7. As required by the Regulatory Flexibility Act (RFA),\1\ an 
Initial Regulatory Flexibility Analysis (IRFA) was incorporated into 
the First Report and Order and Further Notice of Proposed Rule Making 
\2\ and the Memorandum Opinion and Order and Third Notice of Proposed 
Rule Making and Order (Third Notice) \3\ in this docket, ET Docket No. 
95-18. The Commission sought written comment on the proposals in the 
First R&O/Further Notice and the Third Notice, including comment on the 
IRFAs. The present Final Regulatory Flexibility Analysis (FRFA) in this 
Second Report and Order and Second Memorandum Opinion and Order (Second 
R&O/Second MO&O) conforms to the RFA.\4\
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    \1\ See 5 U.S.C. 601. The RFA, see 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) (CWAAA). Title II of the 
CWAAA is the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA).
    \2\ First R&O/Further Notice, 12 FCC Rcd 7388, 62 FR 19509, 
April 22, 1997.
    \3\ Third Notice, 13 FCC Rcd 23949, 63 FR 69606.
    \4\ See 5 U.S.C. 604.
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A. Need for, and Objectives of, this Second R&O/Second MO&O

    8. This Second R&O/Second MO&O establishes rules to govern the 
relocation of Broadcast Auxiliary Service (BAS), Local Television 
Transmission Service (LTTS), and Cable Television Relay Service (CARS) 
licensees from the 1990-2025 MHz band to the remainder of the BAS band, 
at 2025-2110 MHz. The 1990-2025 MHz band has been reallocated to the 
Mobile-Satellite Service (MSS). This Second R&O/Second MO&O also 
establishes rules to govern the relocation of Fixed Service (FS) 
licensees from the 2165-2200 MHz spectrum, reallocated to the MSS, to 
FS bands above 4 GHz. These rules are designed to ensure an orderly and 
expeditious transition of these licensees from the 2 GHz spectrum so 
that MSS operations may be conducted in a designated segment of the 
spectrum. At the same time, the rules are designed to ensure that 
incumbent BAS, LTTS, CARS, and FS licensees suffer no harm from 
relocation.

B. Summary of Significant Issues Raised in Comments in Response to the 
IRFAs

    9. No comments were filed in response to the IRFAs. Nonetheless, 
the Commission considered the impact of our rules governing the 
relocation of the BAS, LTTS, CARS, and FS licensees, some of whom may 
be small entities, from the 2 GHz spectrum. This 2 GHz spectrum was 
reallocated to the MSS, none of whose licensees will be small entities. 
The Commission considered several different relocation scenarios, some 
of which would have imposed the economic burden of relocation on BAS, 
LTTS, CARS, and FS licensees, including small entities. The

[[Page 48176]]

Commission rejected a variety of scenarios which would have shifted 
some or all of the economic burden of relocation from MSS licensees to 
BAS, LTTS, CARS, and FS licensees. See Section E infra for a discussion 
of the alternatives considered by the Commission.

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

    10. 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.\5\ The RFA defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small business concern'' 
under section 3 of the Small Business Act.\6\ 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 SBA.\7\ The term ``small entity'' also has 
the same meaning as ``small governmental jurisdiction,'' which means 
``governments of cities, counties, towns, townships, villages, school 
districts, or special districts, with a population of less than 
50,000.'' \8\
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    \5\ 5 U.S.C.. 603(b)(3).
    \6\ Id. 601(3).
    \7\ Id. At 632.
    \8\ Id. At 601(5).
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    (a) BAS, LTTS, and CARS Licensees: This service involves a variety 
of transmitters, generally used to relay broadcast programming to the 
public (through translator and booster stations) or within the program 
distribution chain (from a remote news gathering unit to the studio). 
CARS includes transmitters generally used to relay cable programming 
within cable television system distribution systems. BAS and LTTS 
licensees are entities classified by the SBA as Category 4833 
(Television Broadcasting Stations), which are small businesses if they 
have annual revenues below 10.5 million dollars.\9\ CARS licensees are 
classified as Category 4841 (Cable and Other Pay Television Services), 
which are small businesses if they have annual revenues below 11 
million dollars.\10\
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    \9\ 13 CFR 121.210, Standard Industrial Classification (SIC) 
Code 4833.
    \10\ Id. SEC Code 4812.
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    (1) The Commission estimates that there are a total of 
approximately 2200 BAS, LTTS, and CARS licensees in the United States. 
Neither the Commission nor the Department of Commerce collect financial 
information on any broadcast facility, including these auxiliary 
facilities. We believe, however, that few, if any, of these licensees 
could be classified as small businesses. Most auxiliary transmitters 
are owned by parent stations that would likely have annual revenues 
that exceed the SBA maximum to be designated as a small business ($10.5 
million for a TV station and $11 million for a cable system). 
Furthermore, they do not meet the Small Business Act's definition of a 
``small business concern'' because they are not independently owned and 
operated.
    (b) MSS Licensees: The Commission has not developed a definition of 
small entities applicable to MSS licensees. Therefore, the applicable 
definition of small entity is the definition under the SBA rules 
applicable to Category 4899 (Communications Services ``Not Elsewhere 
Classified'' (NEC)). This definition provides that a small entity is 
one with $11.0 million or less in annual receipts.\11\ Eight potential 
MSS licensees will be affected by this rule making proceeding. Given 
the extremely high start-up costs for MSS companies, none will be small 
entities.
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    \11\ Id. SIC Code 4899.
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    (c) FS Licensees: The Commission has not developed a definition of 
small entities applicable to FS microwave licensees. Licensees in this 
service are State and local governments and SBA Categories 4813 
(Telephone Communications, Except Radiotelephone),\12\ 4619 (Pipelines, 
N.E.C.),\13\ 4911 (Electric Services) and other utility companies,\14\ 
and Major Group 47 (Transportation Services, i.e., railroads).\15\ 
Therefore, the applicable definitions of small entity are the 
definition under the SBA rules applicable to these activities. This 
definition provides that small entities are Telephone Communications 
companies employing fewer than 1500 employees, Pipeline companies with 
annual receipts of less than $25 million, Electric Services companies 
generating less than 4 million megawatt hours annually, and 
Transportation Services, including railroads, with annual receipts of 
less than $5 million annually. Licensees in the FS also include State 
and local governments with populations of less than 50,000.
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    \12\ Id. SIC Code 4813.
    \13\ Id. SIC Code 4619.
    \14\ Id. SIC Code 4911.
    \15\ Id. SIC Major Group 47.
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    (1) Some FS licensees are likely to be small entities. Using Census 
Bureau data we estimate that 81,600 of the State and local Governments 
are small entities.\16\ There are approximately 4200 FS microwave links 
licensed to Telephone Communications companies. The Commission has no 
data on how many of these links belong to each licensee. Therefore, the 
total number of telephone licensees must be 4200 or less, of whom a 
minority may be small entities. Approximately 4000 FS microwave links 
are licensed to Pipeline companies, Electric Services companies, 
Transportation Services including railroads, and local and State 
governments. The Commission has no data on how many of these links 
belong to each licensee. Therefore, the total number of Pipeline 
companies, Electric Services companies, Transportation Services 
including railroads, and local and State government licensees must be 
4000 or less, of whom a minority may be small entities.
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    \16\ See 5 U.S.C. 601(5).
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    (d) Using the best data available, the Commission estimates that a 
large majority of BAS, LTTS, CARS, and FS licensees are not small 
entities. Because of the high costs attendant to the start-up of MSS 
operations, none of the eight MSS licensees affected by this rule 
making will be small entities.

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

    11. The adopted rules would require affected BAS, LTTS, CARS, and 
FS licensees, some of whom may be small entities, to negotiate with MSS 
licensees for relocation (including replacement or retuning of 
equipment) or rechannelization or both. These negotiations would 
include negotiating timetables for relocation and costs. These 
negotiations are likely to require the skills of accountants and 
engineers to evaluate the economic and technical requirements of 
relocation, and of attorneys or other negotiators to conduct 
negotiations. The estimated cost per incumbent BAS, LTTS, CARS, or FS 
licensee of relocation negotiations is $2000 to $8000. The Commission 
has permitted BAS, LTTS, CARS, and FS licensees to negotiate 
collectively for relocation. Collective negotiations, if employed by 
these licensees, will reduce the costs of negotiation for each 
licensee.

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

    12. The Commission decided that new MSS licensees, none of whom 
will be small entities, will be required to relocate or rechannelize 
incumbent BAS, LTTS, CARS, and FS licensees in the 2 GHz band, some of 
whom are likely to be small entities, at the expense of the new MSS 
licensees. The

[[Page 48177]]

Commission considered the alternative of requiring current BAS, LTTS, 
CARS, and FS licensees in the 2 GHz band to relocate or rechannelize at 
their own expense. The Commission rejected this alternative as 
excessively burdensome on these incumbent licensees, including small 
entities, and not in the public interest.
    13. MSS commenters advocated requiring BAS, LTTS, and CARS 
licensees to finance their own relocation as their equipment 
depreciated and they purchased new equipment, claiming that the total 
costs of relocation, added to the high cost of launching satellites, 
would cripple the nascent MSS industry. MSS commenters also asserted, 
however, that there is a huge, underserved demand for MSS. We believe 
that MSS licensees will build the cost of relocating BAS, LTTS, and 
CARS licensees into their financial plans, and still will be able to 
provide service at a profit. In the alternative, MSS may choose to 
defer expeditious access to the spectrum currently heavily used by BAS, 
LTTS, and CARS licensees and defer deployment of MSS systems for ten 
years, in which case no relocation or rechannelization would be 
required.
    14. MSS commenters advocated requiring MSS licensees to pay only 
the depreciated value of the equipment of incumbent FS licensees, some 
of which may be small entities. The Commission rejected this position, 
adhering to our requirement that MSS licensees must provide relocated 
incumbent FS licensees with comparable facilities in the bands to which 
the FS licensees are relocated.
    15. In the case of involuntary relocation of BAS, LTTS, CARS, and 
FS licensees, the Commission applied the requirements of our Emerging 
Technologies policies: (1) payment of all relocation expenses by the 
MSS operator, (2) full comparability of replacement facilities, and (3) 
the right of the incumbents to demand that MSS licensees cure any 
defects, should the replacement facilities prove not to be fully 
comparable after relocation. The relocation requirements adopted by the 
Commission will guarantee that BAS, LTTS, CARS, and FS licensees, some 
of whom are likely to be small entities, will suffer no, or minimal, 
economic impact as a result of relocation.
    Report to Congress: The Commission will send a copy of the Second 
R&O/Second MO&O, including this FRFA, in a report to be sent to 
Congress pursuant to the SBREFA, see 5 U.S.C. 801(a)(1)(A). In 
addition, the Commission will send a copy of the Second R&O/Second 
MO&O, including the FRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration.

List of Subjects

47 CFR Part 2

    Frequency allocations and radio treaty matters, Radio.

47 CFR Parts 74 and 101

    Radio.

47 CFR Part 78

    Cable television, Radio.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, parts 2, 74, 78, and 101 
of title 47 of the Code of Federal Regulations are amended as follows:

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

    1. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302(a), 303, and 336, unless otherwise 
noted.


    2. In Sec. 2.106, the Table of Frequency Allocations is amended to 
read as follows:
    a. Revise pages 48 and 49 of the Table.
    b. In the list of United States footnotes, revise footnote US90, 
remove footnotes US111 and US219, and add footnotes US346 and US347.
    c. In the list of non-Federal Government footnotes, revise 
footnotes NG23, NG118 and NG153, and add footnotes NG156 and NG168.
    The revisions and additions read as follows:


Sec. 2.106  Table of Frequency Allocations.

* * * * *

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[GRAPHIC] [TIFF OMITTED] TR07AU00.000


[[Page 48179]]


[GRAPHIC] [TIFF OMITTED] TR07AU00.001

BILLING CODE 6712-01-C

[[Page 48180]]

* * * * *

United States (US) Footnotes

* * * * *
    US90  In the band 2025-2110 MHz, the power flux-density at the 
Earth's surface produced by emissions from a space station in the 
space operation, Earth exploration-satellite, or space research 
services that is transmitting in the space-to-space direction, for 
all conditions and all methods of modulation, shall not exceed the 
following values in any 4 kHz sub-band:
    (a) -154 dBW/m\2\ for angles of arrival above the horizontal 
plane () of 0 deg. to 5 deg.,
    (b) -154 + 0.5(-5) dBW/m\2\ for  of 5 deg. to 
25 deg., and
    (c) -144 dBW/m\2\ for  of 25 deg. to 90 deg..
* * * * *
    US346  Except as provided by footnote US222, the use of the band 
2025-2110 MHz by the Government space operation service (Earth-to-
space), Earth exploration-satellite service (Earth-to-space), and 
space research service (Earth-to-space) shall not constrain the 
deployment of the Television Broadcast Auxiliary Service, the Cable 
Television Relay Service, or the Local Television Transmission 
Service. To facilitate compatible operations between non-Government 
terrestrial receiving stations at fixed sites and Government earth 
station transmitters, coordination is required. To facilitate 
compatible operations between non-government terrestrial 
transmitting stations and Government spacecraft receivers, the 
terrestrial transmitters shall not be high-density systems (see 
Recommendations ITU-R SA.1154 and ITU-R F.1247).
    US347  In the band 2025-2110 MHz, non-Government Earth-to-space 
and space-to-space transmissions may be authorized in the space 
research and Earth exploration-satellite services subject to such 
conditions as may be applied on a case-by-case basis. Such 
transmissions shall not cause harmful interference to Government and 
non-Government stations operating in accordance with the Table of 
Frequency Allocations.
* * * * *

Non-Federal Government (NG) Footnotes

* * * * *
    NG23  Frequencies in the band 2100-2200 MHz may also be assigned 
to stations in the International Fixed Public Radiocommunication 
Services located south of 25 deg. 30' North Latitude in the State of 
Florida and in U.S. insular areas in the Caribbean, except that no 
new assignments in the band 2150-2162 MHz will be made to such 
stations after February 25, 1974 and no new assignments in the band 
2165-2200 MHz will be made to such stations after June 27, 2000.
* * * * *
    NG118  In the band 2025-2110 MHz, television translator relay 
stations may be authorized to use frequencies on a secondary basis 
to other stations in the Television Broadcast Auxiliary Service that 
are operating in accordance with the Table of Frequency Allocations.
* * * * *
    NG153  The bands 2110-2150 MHz and 2160-2165 MHz are reserved 
for future emerging technologies on a co-primary basis with the 
fixed and mobile services. Allocations to specific services will be 
made in future proceedings.
* * * * *
    NG156  The band 1990-2025 MHz is also allocated to the fixed and 
mobile services on a primary basis for facilities where the receipt 
date of the initial application was prior to June 27, 2000, and on a 
secondary basis for all other initial applications. Not later than 
September 6, 2010, the band 1990-2025 MHz is allocated to the fixed 
and mobile services on a secondary basis.
* * * * *
    NG168  The band 2165-2200 MHz is also allocated to the fixed and 
mobile services on a primary basis for facilities where the receipt 
date of the initial application was prior to January 16, 1992, and 
on a secondary basis for all other initial applications. Not later 
than September 6, 2010, the band 2165-2200 MHz is allocated to the 
fixed and mobile services on a secondary basis.
* * * * *

PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER 
PROGRAM DISTRIBUTION SERVICES

    3. The authority citation for part 74 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 307, 336(f) and 554.


    4. Section 74.602 is amended by adding paragraphs (a)(3) and (a)(4) 
to read as follows:


Sec. 74.602  Frequency assignment.

    (a) * * *
    (3)(i) After January 1, 2000, stations may adhere to the channel 
plan specified in paragraph (a) of this section, or to the following 
channel plan in Band A:

Channel A01--2008-2023 MHz
Channel A02--2023-2037.5 MHz
Channel A03--2037.5-2052 MHz
Channel A04--2052-2066.5 MHz
Channel A05--2066.5-2081 MHz
Channel A06--2081-2095.5 MHz
Channel A07--2095.5-2110 MHz

    (ii) Broadcast Auxiliary Service, Cable Television Remote Pickup 
Service, and Local Television Transmission Service licensees in Nielsen 
Designated Market Areas 1-30 will be required to use the Band A channel 
plan in paragraph (a)(3)(i) of this section after completion of 
relocation by an Emerging Technologies licensee in accordance with 
Sec. 74.690. Licensees declining relocation and licensees in Nielsen 
Designated Market Areas 31 and higher will be required to discontinue 
use of the 1990-2008 MHz band when informed by a Mobile-Satellite 
Service licensee that it intends to begin operations in the 1990-2008 
MHz band.
    (4)(i) When Mobile-Satellite Service licensees begin operations in 
the 2008-2025 MHz band, stations may adhere to the channel plan 
specified, but are forbidden to use Channel A01, or may adhere to the 
following channel plan in Band A:

Channel A01--2025-2037.4 MHz
Channel A02--2037.4-2049.5 MHz
Channel A03--2049.5-2061.6 MHz
Channel A04--2061.6-2073.7 MHz
Channel A05--2073.7-2085.8 MHz
Channel A06--2085.8-2097.9 MHz
Channel A07--2097.9-2110 MHz

    (ii) Broadcast Auxiliary Service, Cable Television Remote Pickup 
Service, and Local Television Transmission Service licensees in Nielsen 
Designated Market Areas 1-30 will be required to use the Band A channel 
plan in paragraph (a)(4)(i) of this section after completion of 
relocation by an Emerging Technologies licensee in accordance with 
Sec. 74.690. Licensees declining relocation and licensees in Nielsen 
Designated Market Areas 31 and higher will be required to discontinue 
use of the 2008-2025 MHz band when informed by a Mobile-Satellite 
Service licensee that it intends to begin operations in the 2008-2025 
MHz band.

    5. Section 74.690 is added to Subpart F to read as follows:


Sec. 74.690  Transition of the 1990-2025 MHz band from the Broadcast 
Auxiliary Service to emerging technologies.

    (a) Licensees proposing to implement Mobile-Satellite Services 
using emerging technologies (MSS Licensees) may negotiate with 
Broadcast Auxiliary Service licensees (Existing Licensees) in the 1990-
2110 MHz band for the purpose of agreeing to terms under which the 
Existing Licensees would relocate their operations to the 2025-2110 MHz 
band, to other authorized bands, or to other media; or alternatively, 
would discontinue use of the 2008-2025 MHz band when informed by a 
Mobile-Satellite Service licensee that it intends to begin operations 
in the 2008-2025 MHz band.
    (b) Existing Licensees in the 1990-2025 MHz band allocated for 
licensed emerging technology services will maintain primary status in 
these bands until an MSS Licensee completes relocation of the Existing 
Licensee's operations.
    (c) The Commission will amend the operating license of the Existing 
Licensee to secondary status only if the following requirements are 
met:
    (1) The service applicant, provider, licensee, or representative 
using an emerging technology guarantees payment of all relocation 
costs, including all engineering, equipment,

[[Page 48181]]

site and FCC fees, as well as any reasonable additional costs that the 
relocated Existing Licensee might incur as a result of operation in 
another authorized band or migration to another medium;
    (2) The MSS Licensee completes all activities necessary for 
implementing the replacement facilities, including engineering and cost 
analysis of the relocation procedure and, if radio facilities are used, 
identifying and obtaining, on the incumbents' behalf, new microwave or 
Local Television Transmission frequencies and frequency coordination; 
and
    (3) The MSS Licensee builds the replacement system and tests it for 
comparability with the existing system.
    (d) The Existing Licensee is not required to relocate until the 
alternative facilities are available to it for a reasonable time to 
make adjustments, determine comparability, and ensure a seamless 
handoff. If within one year after the relocation to new facilities the 
Existing Licensee demonstrates that the new facilities are not 
comparable to the former facilities, the MSS Licensee must remedy the 
defects.
    (e) Subject to the terms of this paragraph (e), Phase I of the 
relocation of Existing Licensees will be carried out in the following 
manner:
    (1) Beginning September 6, 2010, Existing Licensees and MSS 
Licensees may negotiate individually or collectively for relocation of 
Existing Licensees to one of the channel plans specified in 
Sec. 74.602(a)(3). Parties may not decline to negotiate, though 
Existing Licensees may decline to be relocated. MSS Licensees must 
relocate all Existing Licensees in Nielsen Designated Market Areas 1-30 
prior to beginning operations, except those Existing Licensees that 
decline relocation. If the parties are unable to reach a negotiated 
agreement, MSS Licensees may involuntarily relocate Existing Licensees 
after two years. As of the date that any MSS Licensee announces the 
beginning of operations in the 1990-2008 MHz band, licensees who are 
not on the new channel plan specified in Sec. 74.602(a)(3) must 
discontinue use of Channel A01 (1990-2008 MHz).
    (2) Before negotiating with MSS Licensees, Existing Licensees in 
Nielsen Designated Market Areas where there is a BAS frequency 
coordinator must coordinate and select a band plan for the market area. 
Thereafter, all negotiations must produce solutions that adhere to the 
market area's band plan.
    (3) After the date the first MSS Licensee begins operations, MSS 
Licensees must relocate Existing Licensees in Nielsen Designated Market 
Areas 31-100 within three years, unless any Existing Licensee declines 
relocation.
    (4) Beginning on the date any MSS Licensee announces in writing to 
Existing Licensees its intention to begin operations in the 2008-2025 
MHz band, Existing Licensees and MSS Licensees may negotiate 
individually or collectively for relocation of Existing Licensees to 
one of the channel plans specified in Sec. 74.602(a)(4). MSS Licensees 
must relocate all Existing Licensees in Nielsen Designated Market Areas 
1-30 prior to beginning operations, except those Existing Licensees 
that decline relocation. If the parties are unable to reach a 
negotiated agreement, MSS Licensees may involuntarily relocate Existing 
Licensees after two years. As of the date that any MSS Licensee 
announces its intention to begin operations in the 2008-2025 MHz band, 
licensees who are not on the new channel plan specified in 
Sec. 74.602(a)(4) must discontinue use of Channel A01 (2008-2023 MHz).
    (5) After the date the first MSS Licensee begins operations in the 
2008-2025 MHz band, MSS Licensees must relocate Existing Licensees in 
Nielsen Designated Market Areas 31-100 within three years, and in the 
remaining Nielsen Designated Market Areas within five years.
    (6) Ten years after the date specified in paragraph (e)(1) of this 
section, all Existing Licensees will become secondary in the 1990-2025 
MHz band. Upon written demand by any MSS Licensee, Existing Licensees 
must cease all operations in the 1990-2025 MHz band within six months.

PART 78--CABLE TELEVISION RELAY SERVICE

    6. The authority citation for part 78 continues to read as follows:

    Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as 
amended, 1064, 1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C. 152, 
153, 154, 301, 303, 307, 308, 309.


Sec. 78.11  [Amended]

    7. Section 78.11(f) is amended by removing the term ``1990-2110 
MHz'' and adding in its place ``2025-2110 MHz''.

    8. Section 78.18 is amended by designating the text following the 
heading of paragraph (a)(6) as paragraph (a)(6)(i) and adding paragraph 
(a)(6)(ii) to read as follows:


Sec. 78.18  Frequency assignments.

    (a) * * *
    (6) * * *
    (i) * * *
    (ii) After a licensee has been relocated in accordance with the 
provisions of Sec. 78.40, operations will be in the band 2025-2110 MHz. 
The following channel plan will apply, subject to the provisions of 
Sec. 74.604 of this chapter:

Frequency Band (MHz)

2025-2037.4
2037.4-2049.5
2049.5-2061.6
2061.6-2073.7
2073.7-2085.8
2085.8-2097.9
2097.9-2110
* * * * *

    9. Section 78.40 is added to Subpart B to read as follows:


Sec. 78.40  Transition of the 1990-2025 MHz band from the Cable 
Television Relay Service to Emerging Technologies.

    (a) Licensees proposing to implement Mobile-Satellite Services 
using emerging technologies (MSS Licensees) may negotiate with Cable 
Television Relay Service licensees (Existing Licensees) in the 1990-
2110 MHz band for the purpose of agreeing to terms under which the 
Existing Licensees would relocate their operations to the 2025-2110 MHz 
band, to other authorized bands, or to other media; or alternatively, 
would accept a sharing arrangement with the MSS Licensee that may 
result in an otherwise impermissible level of interference to the 
Existing Licensee's operations.
    (b) Existing Licensees in the 1990-2025 MHz band allocated for 
licensed emerging technology services will maintain primary status in 
these bands until an MSS Licensee completes relocation of the Existing 
Licensee's operations.
    (c) The Commission will amend the operating license of the Existing 
Licensee to secondary status only if the following requirements are 
met:
    (1) The service applicant, provider, licensee, or representative 
using an emerging technology guarantees payment of all relocation 
costs, including all engineering, equipment, site and FCC fees, as well 
as any reasonable additional costs that the relocated Existing Licensee 
might incur as a result of operation in another authorized band or 
migration to another medium;
    (2) The MSS Licensee completes all activities necessary for 
implementing the replacement facilities, including engineering and cost 
analysis of the relocation procedure and, if radio facilities are used, 
identifying and obtaining, on the incumbents' behalf, new microwave or 
Local Television

[[Page 48182]]

Transmission frequencies and frequency coordination; and
    (3) The MSS Licensee builds the replacement system and tests it for 
comparability with the existing system.
    (d) The Existing Licensee is not required to relocate until the 
alternative facilities are available to it for a reasonable time to 
make adjustments, determine comparability, and ensure a seamless 
handoff.
    (e) If within one year after the relocation to new facilities the 
Existing Licensee demonstrates that the new facilities are not 
comparable to the former facilities, the MSS Licensee must remedy the 
defect.
    (f) Subject to the terms of this paragraph (f), Phase I of the 
relocation of Existing Licensees will be carried out in the following 
manner:
    (1) Beginning September 6, 2000, Existing Licensees and MSS 
Licensees may negotiate individually or collectively for relocation of 
Existing Licensees to one of the channel plans specified in 
Sec. 74.602(a)(3) of this chapter. Parties may not decline to 
negotiate, though Existing Licensees may decline to be relocated. MSS 
Licensees must relocate all Existing Licensees in Nielsen Designated 
Market Areas 1-30 prior to beginning operations, except those Existing 
Licensees that decline relocation. If the parties are unable to reach a 
negotiated agreement, MSS Licensees may involuntarily relocate Existing 
Licensees after two years. As of the date that any MSS Licensee 
announces the beginning of operations in the 1990-2008 MHz band, 
licensees who are not on the new channel plan specified in 
Sec. 74.602(a)(3) of this chapter must discontinue use of Channel A01 
(1990-2008 MHz).
    (2) Before negotiating with MSS Licensees, Existing Licensees in 
Nielsen Designated Market Areas where there is a BAS frequency 
coordinator must coordinate and select a band plan for the market area. 
Thereafter, all negotiations must produce solutions that adhere to the 
market area's band plan.
    (3) After the date the first MSS Licensee begins operations, MSS 
Licensees must relocate Existing Licensees in Nielsen Designated Market 
Areas 31-100 within three years, unless any Existing Licensee declines 
relocation.
    (4) Beginning on the date any MSS Licensee announces in writing to 
Existing Licensees its intention to begin operations in the 2008-2025 
MHz band, Existing Licensees and MSS Licensees may negotiate 
individually or collectively for relocation of Existing Licensees to 
one of the channel plans specified in Sec. 74.602(a)(4) of this 
chapter. MSS Licensees must relocate all Existing Licensees in Nielsen 
Designated Market Areas 1-30 prior to beginning operations, except 
those Existing Licensees that decline relocation. If the parties are 
unable to reach a negotiated agreement, MSS Licensees may involuntarily 
relocate Existing Licensees after two years. As of the date that any 
MSS Licensee announces its intention to begin operations in the 2008-
2025 MHz band, licensees who are not on the new channel plan specified 
in Sec. 74.602(a)(4) of this chapter must discontinue use of Channel 
A01 (2008-2023 MHz).
    (5) After the date the first MSS Licensee begins operations in the 
2008-2025 MHz band, MSS Licensees must relocate Existing Licensees in 
the remaining Nielsen Designated Market Areas within three years.
    (6) Ten years after the date specified in paragraph (f)(1) of this 
section, all Existing Licensees will become secondary in the 1990-2025 
MHz band. Upon written demand by any MSS Licensee, Existing Licensees 
must cease all operations in the 1990-2025 MHz band within six months.


Sec. 78.101  [Amended]

    10. In Sec. 78.101(a), the table is amended by removing the term 
``1,990 to 2,110'' in the first column and adding in its place ``2,025 
to 2,110''.

    11. In Sec. 78.103(e) the table is revised to read as follows:


Sec. 78.103  Emissions and emission limitations.

* * * * *
    (e) * * *

------------------------------------------------------------------------
                                          Maximum authorized band-width
          Frequency band (MHz)                        (MHz)
------------------------------------------------------------------------
1,990 to 2,110.........................  17 or 18.\1\
6,425 to 6,525.........................  8 or 25.
6,875 to 7,125.........................  25.
12,700 to 13,250.......................  25.
17,700 to 19,700.......................  80.
31,000 to 31,300.......................  25 or 50.
------------------------------------------------------------------------
\1\ After a licensee has been relocated in accordance with Sec.  78.40,
  the maximum authorized bandwidth in the frequency band 2,025 to 2,110
  MHz will be 12.1/12.4 MHz.

PART 101--FIXED MICROWAVE SERVICES

    12. The authority citation for part 101 continues to read as 
follows:

    Authority: 47 U.S.C. 154, 303.


    13. Section 101.69 is amended by adding paragraph (d) to read as 
follows:


Sec. 101.69  Transition of the 1850-1990 MHz, 2110-2150 MHz, and 2160-
2200 MHz bands from the fixed microwave services to personal 
communications services and emerging technologies.

* * * * *
    (d) Relocation of FMS licensees in the 2165-2200 MHz band by 
Mobile-Satellite Service (MSS) licensees will be subject to mandatory 
negotiations only. Mandatory negotiation periods are defined as 
follows:
    (1) Non-public safety incumbents will have a two-year mandatory 
negotiation period; and
    (2) Public safety incumbents will have a three-year mandatory 
negotiation period.

    14. Section 101.73 is amended by adding paragraph (d) to read as 
follows:


Sec. 101.73  Mandatory negotiations.

* * * * *
    (d) Provisions for Relocation of Fixed Microwave Licensees in the 
2165-2200 MHz band. Mandatory negotiations will commence when the 
Mobile-Satellite Service (MSS) licensee informs the fixed microwave 
licensee in writing of its desire to negotiate. Mandatory negotiations 
will be conducted with the goal of providing the fixed microwave 
licensee with comparable facilities, defined as facilities possessing 
the following characteristics:
    (1) Throughput. Communications throughput is the amount of 
information transferred within a system in a given amount of time. If 
analog facilities are being replaced with analog, comparable facilities 
provide an equivalent number of 4 kHz voice channels. If digital 
facilities are being replaced with digital, comparable facilities 
provide equivalent data loading bits per second (bps).
    (2) Reliability. System reliability is the degree to which 
information is transferred accurately within a system. Comparable 
facilities provide reliability equal to the overall reliability of the 
FMS system. For digital systems, reliability is measured by the percent 
of time the bit error rate (BER) exceeds a desired value, and for 
analog or digital voice transmission, it is measured by the percent of 
time that audio signal quality meets an established threshold. If an 
analog system is replaced with a digital system, only the resulting 
frequency response, harmonic distortion, signal-to-noise and its 
reliability will be considered in determining comparable reliability.
    (3) Operating Costs. Operating costs are the cost to operate and 
maintain the FMS system. MSS licensees would compensate FMS licensees 
for any increased recurring costs associated with the replacement 
facilities (e.g.,

[[Page 48183]]

additional rental payments, and increased utility fees) for five years 
after relocation. MSS licensees could satisfy this obligation by making 
a lump-sum payment based on present value using current interest rates. 
Additionally, the maintenance costs to the FMS licensee would be 
equivalent to the 2 GHz system in order for the replacement system to 
be comparable.

    15. Section 101.75 is amended by adding two sentences at the end of 
paragraph (d), to read as follows:


Sec. 101.75  Involuntary relocation procedures.

* * * * *
    (d) * * * FMS licensees relocated from the 2165-2200 MHz band may 
not be returned to their former 2 GHz channels. All other remedies 
specified in this paragraph (d) are available to FMS licensees 
relocated from the 2165-2200 MHz band, and may be invoked whenever the 
FMS licensee demonstrates that its replacement facility is not 
comparable, subject to no time limit.

    16. Section 101.83 is added to Subpart B to read as follows:


Sec. 101.83  Reimbursement of relocation expenses in the 2115-2150 MHz 
and 2165-2200 MHz bands.

    (a) Whenever an ET licensee (including Mobile-Satellite Service 
licensees) in the 2115-2150 MHz or 2165-2200 MHz bands relocates an 
incumbent paired microwave link with one path in the 2115-2150 MHz 
band, and the paired path in the 2165-2200 MHz band, the ET licensee is 
entitled to reimbursement of 50% of its relocation costs from any 
subsequently entering ET licensee which would have been required to 
relocate the same fixed microwave link.
    (b) The subsequently entering ET licensee must reimburse the 
relocating ET licensee before the subsequently entering licensee may 
begin operations in these bands, unless the subsequently entering ET 
licensee can demonstrate that, according to established interference 
criteria, it would not have interfered with the microwave link in 
question.
    (c) The total costs of which 50% is to be reimbursed will not 
exceed $250,000 per paired fixed microwave link relocated, nor $150,000 
if a new or modified tower is required.

[FR Doc. 00-19478 Filed 8-4-00; 8:45 am]
BILLING CODE 6712-01-P