[Federal Register Volume 66, Number 1 (Tuesday, January 2, 2001)]
[Proposed Rules]
[Pages 86-90]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-41]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 90

[WT Docket No. 99-87; RM-9332; RM-9405; RM-9705; FCC 00-403]


Revised Competitive Bidding Authority

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document seeks comment on whether certain rule changes 
would be in the public interest. Specifically, the Commission seeks 
comment on whether it should modify the equipment rules for non-Public 
Safety licensees operating in the private land mobile radio bands 
between 222 MHz and 896 MHz by prohibiting the manufacture or 
importation of equipment that does not meet certain efficiency 
standards by certain dates. The Commission also seeks comment as to 
whether Business and Industrial/Land Transportation category (BI/LT) 
licensees in the 896-901/935-940 MHz (900 MHz) band should be allowed 
to assign or transfer their spectrum to CMRS licensees for use in CMRS 
operations, or to modify the licenses to CMRS use in their own systems.

[[Page 87]]


DATES: Interested parties may file comments on or before March 5, 2001 
and reply comments on or before April 2, 2001.

ADDRESSES: An original and four copies of all comments should be filed 
with the Commission's Secretary, Magalie Roman Salas, Office of the 
Secretary, Federal Communications Commission, 445 12th Street, SW., TW-
A325, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Guy Benson (regarding equipment 
efficiency rules) or Karen Franklin (regarding the 900 MHz band), (202) 
418-0680, TTY (202) 418-7233, or via e-mail at [email protected] or 
[email protected], Wireless Telecommunications Bureau, Public Safety and 
Private Wireless Division.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking (FNPRM) in FCC 00-403; WT Docket 
No. 99-87, adopted on November 9, 2000 and released on November 20, 
2000. The full text of this FNPRM is available for inspection and 
copying during normal business hours in the FCC Reference Center, Room 
CY-A257, 445 12th Street, SW., Washington, DC. The complete text may be 
purchased from the Commission's copy contractor, International 
Transcription Service, Inc., 1231 20th Street, NW. Washington, DC 
20037. The full text may also be downloaded at: www.fcc.gov. 
Alternative formats are available to persons with disabilities by 
contacting Martha Contee at (202) 418-0260 or TTY (202) 418-2555.

Summary of the Notice

    1. Equipment efficiency rules. On June 19, 1998, the American 
Mobile Telecommunications Association (AMTA) filed a petition for rule 
making proposing that certain Part 90 licensees be required to employ 
new spectrum-efficient technologies. Specifically, AMTA urges that non-
Public Safety licensees in the bands between 222 MHz and 896 MHz be 
required to deploy technology that achieves the equivalent of two times 
the capacity of most current operations. The gain in efficiency would 
result in one voice path per 12.5 kilohertz of spectrum, using a 25 
kilohertz frequency. AMTA proposes that the requirement be phased in 
from 2003 to 2020, beginning with the most congested areas. Licensees 
not deploying this new equipment would be required to accept secondary 
status.
    2. AMTA contends that such requirements are needed because, under 
the current rules, it is financially imprudent for a licensee to invest 
in new, more efficient technology, since doing so results in additional 
costs without additional benefits. The current rules, which were 
adopted in the Refarming proceeding, provide that, in order to effect a 
transition to a narrowband channel plan, we will type certify only 
increasingly efficient equipment. Specifically, since February 14, 
1997, we have certified equipment for 25 kilohertz channels only if it 
is also capable of operating on 12.5 kilohertz and/or narrower 
channels. After January 1, 2005, only new equipment that operates on 
6.25 kilohertz channel bandwidths will be certified. New equipment that 
operates on 25 and/or 12.5 kilohertz channels will be certified only if 
it is also capable of operating on 6.25 kilohertz or narrower channels. 
The rules do not require users to replace existing systems.
    3. When the Commission adopted the current rules in 1995, it 
specifically declined to implement a comprehensive set of dates 
mandating strict manufacturing and licensing requirements. The 
Commission concluded that the type certification process itself could 
provide the catalyst for transition from one technology to another by 
promoting a natural migration to new technologies. The Commission 
concluded that this approach was preferable to requiring manufacturing 
or licensing of narrowband equipment by certain dates, because it would 
provide users immediate flexibility in equipment decisions, provide a 
period for the development of new technologies, and avoid creating an 
unreasonable burden for licensees.
    4. AMTA and other commenters argue that a new approach is needed, 
because the migration to narrowband technology is not occurring as 
rapidly as the Commission intended. Other commenters believe that the 
Refarming rules should be retained at least for the time being, because 
not enough time has elapsed in order to reap the benefits of the well-
considered compromises the Commission adopted in that proceeding. After 
considering the record and comments in this proceeding, we are inclined 
to agree with AMTA that the current pace of migration to more 
spectrally efficient technology is not rapid enough. We seek comment on 
this tentative conclusion, as well as whether enough time has elapsed 
to allow us to evaluate the effectiveness of our current rules.
    5. Commenters believing that the rules need to be revised should 
also discuss what action the Commission should take. We tentatively 
conclude that that we should encourage the migration to narrowband 
technology by prohibiting the manufacture or importation of equipment 
that does not meet certain efficiency standards by certain dates. We 
continue to be concerned that requiring the employment of new spectrum-
efficient technologies by certain dates, as proposed by AMTA, would 
impose unreasonable burdens on licensees, and we acknowledge the 
concerns raised by opponents of AMTA's proposal that it would be unfair 
to require users to replace systems in which they have recently 
invested substantial amounts. On the other hand, a user that continues 
to employ spectrally inefficient equipment, when more efficient 
alternatives are available, is harming other users with whom it is 
sharing the frequencies in these bands. Therefore, we are also 
concerned with a system that permits users to remain on spectrally 
inefficient systems indefinitely. We request comment on these issues 
and on the comparative merits of alternative approaches to addressing 
these concerns. We also request comment on what timetable would be 
appropriate for implementing any new requirement. One alternative would 
be to prohibit the manufacture or importation of equipment that does 
not meet certain efficiency standards by January 1, 2005, which, is the 
date after which, under our current rules, only new equipment that 
operates on 6.25 kilohertz channel bandwidths will be certified. We 
seek comment on this proposal and alternative dates for this proposal 
to become effective. Commenters are encouraged to suggest specific 
dates and specific efficiency requirements, and to explain their 
recommendations.
    6. 900 MHz band. In the Report and Order portion of this item, we 
amended our rules to allow 800 MHz BI/LT licensees to assign or 
transfer their spectrum to CMRS licensees for use in CMRS operations, 
or to modify the licenses to CMRS use in their own systems. We also 
adopted rules to safeguard against trafficking in 800 MHz BI/LT 
licenses, and notification procedures to avoid interference to 800 MHz 
public safety operations. We did not ask commenters to address whether 
we should also extend this flexibility to any other frequency bands, 
and therefore did not consider any such rule amendments.
    7. We now seek comment on whether this flexibility in use of PLMR 
channels should be extended to the 900 MHz band. We believe that such 
an action would promote the statutory objective of regulatory symmetry 
among CMRS

[[Page 88]]

providers. We intend, if we introduce such flexibility for licensees in 
the 900 MHz band, to impose an appropriate holding period requirement 
on all licenses the application for which is filed on or after the date 
we adopt this item. We would take such an action in order to ensure 
that our request for comment on this issue does not motivate 
prospective licensees to apply for vacant PLMR spectrum with the sole 
intent of using it for CMRS operations. Given the unique 
characteristics of the 800 MHz PLMR bands, however, we also seek 
comment as to whether there are any reasons we should continue to treat 
the 800 MHz and 900 MHz bands differently.

Regulatory Flexibility Analysis

    8. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the possible impact on small entities of the proposals and 
tentative conclusions set forth in the FNPRM in WT Docket No. 99-87. 
Written public comments are requested on the IRFA. Comments on the IRFA 
must have a separate and distinct heading designating them as responses 
to the IRFA and must be filed by the deadlines for comments on the 
FNPRM. In accordance with the RFA, the Commission will send a copy of 
this FNPRM, including the IRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration.

Filing Procedures

    9. Pursuant to Secs. 1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments on or before 
March 5, 2001, and reply comments on or before April 2, 2001. Comments 
may be filed using the Commission's Electronic Comment Filing System 
(``ECFS'') or by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).
    10. 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. If 
multiple docket or rulemaking numbers appear in the caption of this 
proceeding, however, commenters must transmit one electronic copy of 
the comments to each docket or rulemaking number referenced in the 
caption. 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.
    11. Parties choosing to file by paper must file an original and 
four copies of each filing. If participants want each Commissioner to 
receive a personal copy of their comments, an original plus nine copies 
must be filed. All filings must be sent to the Commission's Secretary, 
Magalie Roman Salas, Office of the Secretary, Federal Communications 
Commission, The Portals, 445 12th Street, SW., Room TW-A325, 
Washington, DC 20554. In addition, courtesy copies should be delivered 
to Leora Hochstein, Auctions and Industry Analysis Division, Wireless 
Telecommunications Bureau, Federal Communications Commission, 445 12th 
Street, SW., Room #4-A633, Washington, DC 20554 and Scot Stone, Public 
Safety and Private Wireless Division, Federal Communications 
Commission, 445 12th Street, SW., Room #4-B408, Washington, DC 20554.
    12. All relevant and timely comments will be considered by the 
Commission before final action is taken in this proceeding. Comments 
and reply comments will be available for public inspection and 
duplication during regular business hours in the FCC Reference 
Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 
20554. Copies also may be obtained from International Transcription 
Services, Inc., 445 12th Street, SW., Room CY-B400, Washington, DC 
20554, (202) 314-3070.

Ordering Clauses

    13. Authority for issuance of this FNPRM is contained in sections 
4(I), 309(r), and 309(j) of the Communications Act of 1934, as amended, 
47 U.S.C. 154(i), 303(r), and 309(j).

Initial Regulatory Flexibility Analysis

    14. As required by the Regulatory Flexibility Act (``RFA''), the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (``IRFA'') of the possible significant economic impact on 
small entities by the policies and rules proposed in this FNPRM. 
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 this FNPRM. The Commission will send a copy of the 
FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration (``SBA'').

Need for, and Objectives of, the Proposed Rules

    15. The purpose of this FNPRM is to determine whether it would be 
in the public interest, convenience, and necessity to amend our rules 
governing non-public safety private land mobile radio (``PLMR'') 
licensees in the bands between 222 MHz and 896 MHz in order to expedite 
the transition to narrowband technology. As is described in the FNPRM, 
AMTA urges that non-Public Safety licensees in the bands between 222 
MHz and 896 MHz be required to deploy technology that achieves the 
equivalent of two times the capacity of most current operations. AMTA 
asserts that the gain in efficiency would result in one voice path per 
12.5 kilohertz of spectrum, using a 25 kilokertz frequency. AMTA 
proposes that the requirement be phased in from 2003 to 2020, beginning 
with the most congested areas. Other commenters believe that the 
Refarming rules should be retained at least for the time being, because 
not enough time has elapsed in order to reap the benefits of the well-
considered compromises the Commission adopted in that proceeding. The 
Report and Order tentatively concludes that we should encourage the 
migration to narrowband technology by prohibiting the manufacture or 
importation of equipment that does not meet certain efficiency 
standards by certain dates and requests comment on these issues and the 
comparative merits of alternative approaches to addressing the concerns 
that have been raised, including what timetable would be appropriate 
for implementing any new requirement.
    16. The FNPRM also seeks comment on whether to permit 900 MHz 
Business and Industrial/Land Transportation (``BI/LT'') licensees to 
modify their licenses to permit CMRS use. The Commission believes that 
extending this flexibility to 900 MHz BI/LT licensees would promote the 
statutory objective of regulatory symmetry among CMRS providers.

Legal Basis

    17. Authority for issuance of this FNPRM is contained in Sections 
4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as 
amended.

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

    18. 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

[[Page 89]]

the proposed rules, if adopted. Under the RFA, small entities may 
include small organizations, small businesses, and small governmental 
jurisdictions. The RFA generally defines the term ``small business'' as 
having the same meaning as the term ``small business concern'' 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) satisfies any additional criteria established by the 
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.
    19. The proposed rule amendments may affect users of public safety 
radio services and private radio licensees that are regulated under 
Part 90 of the Commission's rules, and may also affect manufacturers of 
radio equipment. An analysis of the number of small entities affected 
follows.
    20. Public Safety radio services and Governmental entities. Public 
Safety radio services include police, fire, local governments, forestry 
conservation, highway maintenance, and emergency medical services. The 
SBA rules contain a definition for small radiotelephone (wireless) 
companies, which encompasses business entities engaged in 
radiotelephone communications employing no more that 1,500 persons. 
There are a total of approximately 127,540 licensees within these 
services. Governmental entities as well as private businesses comprise 
the licensees for these services. The RFA also includes small 
governmental entities as a part of the regulatory flexibility analysis. 
``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, the Commission estimates that 81,600 (91 percent) are small 
entities.
    21. Specialized Mobile Radio (``SMR''). The Commission awards 
bidding credits in auctions for geographic area 800 MHz and 900 MHz SMR 
licenses to two tiers of firms: (1) ``small entities,'' those with 
revenues of no more than $15 million in each of the three previous 
calendar years; and (2) ``very small entities,'' those with revenues of 
no more than $3 million in each of the three previous calendar years. 
The regulations defining ``small entity'' and ``very small entity'' in 
the context of 800 MHz SMR (upper 10 MHz and lower 230 channels) and 
900 MHz SMR have been approved by the SBA. The Commission does not know 
how many firms provide 800 MHz or 900 MHz geographic area SMR service 
pursuant to extended implementation authorizations, nor how many of 
these providers have annual revenues of no more than $15 million. One 
firm has over $15 million in revenues. We assume, for our purposes 
here, that all of the remaining existing extended implementation 
authorizations are held by small entities, as that term is defined by 
the SBA. The Commission has held auctions for geographic area licenses 
in the 800 MHz (upper 10 MHz) and 900 MHz SMR bands. There were 60 
winning bidders that qualified as small and very small entities in the 
900 MHz auction. Of the 1,020 licenses won in the 900 MHz auction, 263 
licenses were won by bidders qualifying as small and very small 
entities. In the 800 MHz SMR auction, 38 of the 524 licenses awarded 
were won by small and very small entities.
    22. Estimates for PLMR Licensees. Private land mobile radio systems 
serve an essential role in a vast range of industrial, business, land 
transportation, and public safety activities. These radios are used by 
companies of all sizes operating in all U.S. business categories. 
Because of the vast array of PLMR users, the Commission has not 
developed a definition of small entities specifically applicable to 
PLMR users, nor has the SBA developed any such definition. The SBA 
rules do, however, contain a definition for small radiotelephone 
(wireless) companies. Included in this definition are business entities 
engaged in radiotelephone communications employing no more that 1,500 
persons. Entities engaged in telegraph and other message communications 
with no more than $5 million in annual receipts also qualify as small 
business concerns. According to the Bureau of the Census, only twelve 
radiotelephone firms of a total of 1,178 such firms which operated 
during 1992 had 1,000 or more employees. For the purpose of determining 
whether a licensee is a small business as defined by the SBA, each 
licensee would need to be evaluated within its own business area. The 
Commission's fiscal year 1994 annual report indicates that, at the end 
of fiscal year 1994, there were 1,101,711 licensees operating 
12,882,623 transmitters in the PLMR bands below 512 MHz.
    23. Equipment Manufacturers. We anticipate that at least six radio 
equipment manufacturers will be affected by our decisions in this 
proceeding. According to the SBA's regulations, a radio and television 
broadcasting and communications equipment manufacturer must have 750 or 
fewer employees in order to qualify as a small business concern. Census 
Bureau data indicate that there are 858 U.S. firms that manufacture 
radio and television broadcasting and communications equipment, and 
that 778 of these firms have fewer than 750 employees and would 
therefore be classified as small entities.

Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements

    24. Possible requirements under consideration in this FNPRM would 
impose new compliance requirements for certain 900 MHz PLMR licensees 
regulated under Part 90 of the Commission's rules that seek to modify 
their licenses to for use in CMRS systems. Assuming the rules adopted 
in the Report and Order are a good model for 900 MHz PLMR (which 
assumption has yet to be established), the Commission might require 
applicants, upon submitting a modification application, to: (a) Certify 
that the coor adjacent channel 800 MHz public safety licensees in the 
same geographic area have been notified of the application; and (b) 
commit that they will take affirmative steps to avoid harmful 
interference to such public safety licensees. These steps may be 
necessary to reduce risks of increased interference.

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

    25. 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 (among others): (i) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (ii) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(iii) the use of performance, rather than design, standards; and (iv) 
an exemption from coverage of the rule or any part thereof for small 
entities.
    26. The Commission believes that migration to narrowband 
technologies,

[[Page 90]]

should benefit all entities, as it will result in more efficient use of 
the spectrum by allowing a greater number of entities to share existing 
spectrum. However, requiring the use of narrowband equipment by a date 
certain, or prohibiting the manufacture or import of non-compliant 
equipment, could impact some small entities requiring them to upgrade 
their communications systems before they would otherwise do so. An 
alternative would be to maintain the current rules, which are intended 
to foster migration to narrowband technology by way of progressively 
more stringent type certification requirements. We issue this FNPRM in 
order to consider whether a change in the Rules would benefit small 
entities and other PLMR licensees.
    27. In the Report and Order portion of this item, we amended our 
rules to allow 800 MHz BI/LT licensees to assign or transfer their 
spectrum to CMRS licensees for use in CMRS operations, or to modify the 
licenses to CMRS use in their own systems. We also adopted rules to 
safeguard against trafficking in 800 MHz Business and I/LT licenses, 
and notification procedures to avoid interference to 800 MHz public 
safety operations. This FNPRM now seeks comment on whether this 
flexibility in use of PLMR channels should be extended to the 900 MHz 
band.
    28. In the context of 800 MHz PLMR, we have found that allowing 
licensees to convert their frequencies to CMRS use or assign or 
transfer these frequencies to CMRS entities will not affect the supply 
of available PLMR spectrum for licensing from the PLMR pool, and thus 
should not further exacerbate the current shortage of private spectrum 
available to small business entities and other PLMR eligibles. An 
alternative approach might permit such modifications without 
restriction; however, this might affect the supply of available PLMR 
spectrum which might, in turn, have possible adverse effects on small 
businesses.

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

    29. None.

List of Subjects in 47 CFR Parts 1 and 90

    Radio, Reporting and recordkeeping requirements.

    Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 01-41 Filed 12-29-00; 8:45 am]
BILLING CODE 6712-01-P