[Federal Register Volume 66, Number 178 (Thursday, September 13, 2001)]
[Proposed Rules]
[Pages 47618-47621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23047]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 2

[ET Docket Nos. 00-258 and 95-18 and IB Docket No. 99-81; FCC 01-224]


Introduction of New Advanced Mobile and Fixed Terrestrial 
Wireless Services; Use of Frequencies Below 3 GHz

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission seeks comment on additional options and issues 
in its continuing study of the possible use of frequency bands below 3 
GHz to support the introduction of new advanced mobile and fixed 
terrestrial wireless services, including third generation and future 
generations of wireless systems.

DATES: Comments are due on or before October 11, 2001, and reply 
comments are due on or before October 25, 2001.

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

FOR FURTHER INFORMATION CONTACT: John Spencer, 202-418-1310.

SUPPLEMENTARY INFORMATION: This is a summary of the Further Notice of 
Proposed Rulemaking (FNPRM) portion of the Commission's Memorandum 
Opinion and Order (MO&O) and FNPRM in ET Docket Nos. 00-258 and 95-18, 
and IB Docket No. 99-81, FCC 01-224, adopted August 9, 2001, and 
released August 20, 2001. The complete text of this FNPRM is available 
for inspection and copying during normal business hours in the FCC 
Reference Information Center, Courtyard Level, 445 12th Street, SW, 
Washington, DC, and also may be purchased from the Commission's copy 
contractor, Qualex International, Portals II, 445 12th Street, SW, Room 
CY-B402, Washington, DC 20554.

[[Page 47619]]

Synopsis of the FNPRM

    1. This FNPRM continues our exploration of the possible use of 
frequency bands below 3 GHz to support the introduction of new advanced 
mobile and fixed terrestrial wireless services (advanced wireless 
services), including third generation (3G) and future generations of 
wireless systems. The Commission initiated this proceeding by Notice of 
Proposed Rulemaking in ET No. 00-258, which can be found at 66 FR 
18740, April 11, 2001. The FNPRM also resolves a petition for 
rulemaking filed by the Cellular Telecommunications & Internet 
Association (CTIA). The MO&O portion of this decision is published 
elsewhere in this edition of the Federal Register.
    2. The Commission, in the FNPRM, explores the possibility of 
introducing new advanced wireless services in frequency bands not 
identified in the NPRM, including bands currently designated for the 
Mobile Satellite Service (MSS), the Unlicensed Personal Communications 
Service (UPCS), the Amateur Radio Service (ARS), and the Multipoint 
Distribution Service (MDS). Specifically, the Commission seeks comment 
on reallocating spectrum in the 1910-1930 MHz, 1990-2025 MHz, 2150-2160 
MHz, 2165-2200 MHz, and 2390-2400 MHz bands for new advanced wireless 
services.
    3. The purpose of this FNPRM is to supplement the record by 
providing new allocation options that were not addressed in the NPRM, 
and by seeking comment on the benefits and costs of each new allocation 
option. These spectrum options complement rather than substitute for 
options identified previously in the NPRM. The FNPRM solicits comment 
on the potential for commercial use of these additional spectrum bands 
directly for new advanced wireless services, both paired and unpaired. 
The FNPRM also invites comment on the use of these or other bands for 
the relocation of incumbent licensees or operators who could be 
displaced by the final allocation established in this proceeding. The 
FNPRM seeks comment on the advantages and disadvantages of these 
options, including the potential for new advanced wireless services in 
these bands. Further, the FNPRM seeks comment on the potential effect 
of the allocation proposals described in the full text of the FNPRM on 
existing and prospective users of these bands and the services they 
provide (e.g., MSS, UPCS, ARS, and MDS). Finally, the FNPRM seeks 
comment on the costs and benefits to the United States of regional or 
global spectrum harmonization for advanced wireless services.
    4. In its petition for rulemaking, CTIA asked that the 2 GHz MSS 
bands be reallocated for other uses and that the Commission withhold 
grant of 2 MHz licenses while it considers CTIA's petition. The FNPRM 
grants CTIA's petition in part, but denies the petition insofar as it 
requests reallocation of the entire 2 GHz MSS band and a delay in 
authorizing 2 GHz MSS systems.

Initial Regulatory Flexibility Analysis

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

Paperwork Reduction Analysis

    6. The Further Notice of Proposed Rulemaking does not contain a 
proposed information collection.

Ex Parte Presentations

    7. For purposes of this permit-but-disclose notice and comment 
rulemaking proceeding, members of the public are advised that ex parte 
presentations are permitted, except during the Sunshine Agenda period, 
provided they are disclosed under the Commission's Rules. (See 
generally 47 CFR 1.1202, 1.1203, 1.1206(a).)

Comment Dates

    8. Pursuant to applicable procedures set forth in 47 CFR 1.415 and 
1.419 of the Commission's rules, interested parties may file comments 
on or before October 11, 2001, and reply comments on or before October 
25, 2001. The Commission asks that comments to the IRFA be submitted to 
all three dockets listed in the caption of the FNPRM, ET Docket No. 00-
258, ET Docket No. 95-18, and IB Docket No. 99-81.
    9. Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS) or by filing paper copies. All relevant and timely 
comments will be considered by the Commission before final action is 
taken in this proceeding. To file formally in this proceeding, 
interested parties must file an original and four copies of all 
comments, reply comments, and supporting comments. If interested 
parties want each Commissioner to receive a personal copy of their 
comments, they must file an original plus nine copies. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
commenters who file by paper must submit two additional copies for each 
additional docket or rulemaking number. Interested parties should send 
comments and reply comments to the Office of the Secretary, Federal 
Communications Commission, Room TW-A325, 445 Twelfth Street, SW, 
Washington, DC 20554, with a copy to John Spencer, Wireless 
Telecommunications Bureau, 445 Twelfth Street, SW, Washington, DC 
20554. Parties are also encouraged to file a copy of all pleadings on a 
3.5-inch diskette in Word 97 format.
    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. 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. Comments and reply comments will be available for public 
inspection during regular business hours at the FCC Reference Center, 
Room CY-A257, at the Federal Communications Commission, 445 Twelfth 
Street, SW, Washington, DC 20554. Copies of comments and reply comments 
are available through the Commission's duplicating contractor: Qualex 
International, Portals II, 445 12th Street, SW, Room CY-B402, 
Washington, DC 20554, 202-863-2893.

Ordering Clauses

    12. Pursuant to the authority contained in sections 1, 4(j), 7(a), 
301,

[[Page 47620]]

303(c), 303(f), 303(g), 303(r), 308, and 309(j) of the Communications 
Act of 1934, as amended, 47 U.S.C. sections 151, 154(j), 157(a), 301, 
303(c), 303(f), 303(g), 303(r), 308, and 309(j), this Further Notice of 
Proposed Rulemaking is adopted.
    13. The Petition for Rulemaking filed by the Cellular 
Telecommunications & Internet Association is granted to the extent 
indicated in the Further Notice of Proposed Rule Making, and is 
otherwise denied.
    14. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of this Further Notice of 
Proposed Rulemaking, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

Initial Regulatory Flexibility Analysis

    15. This is a summary of the Initial Regulatory Flexibility 
Analysis for the FNPRM. The full text of the Initial Regulatory 
Flexibility Analysis may be found in Appendix A of the full FNPRM.
    16. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared this Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities by 
the policies and rules proposed in this FNPRM, ET Docket No. 00-258, ET 
Docket No. 95-18, and IB Docket No. 99-81. Written public comments are 
requested on this IRFA. Comments must be identified as responses to the 
IRFA and must be filed by the deadlines for comments on the FNPRM. The 
Commission further asks that comments to the IRFA be submitted to all 
three dockets listed in the caption of the FNPRM, ET Docket No. 00-258, 
ET Docket No. 95-18, and IB Docket No. 99-81.

A. Need for, and Objectives of, the Proposed Rules

    17. The objective of the proposed actions is to consider 
reallocating spectrum that could be used to provide a wide range of 
voice, data, and broadband services over a variety of mobile and fixed 
networks, thus offering all entities, including small entities, greater 
opportunity to participate in the telecommunications industry and 
greater flexibility.

B. Legal Basis for Proposed Rules

    18. The proposed action is authorized under sections 1, 4(j), 7(a), 
301, 303(c), 303(f), 303(g), 303(r), 308, and 309(j) of the 
Communications Act of 1934, 47 U.S.C. 151, 154(j), 157(a), 301, 303(c), 
303(f), 303(g), 303(r), 308, and 309(j).

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

    19. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.''
    20. The term ``small business'' has the same meaning as the term 
``small business concern'' under Section 3 of the Small Business Act, 
unless the Commission has developed one or more definitions that are 
appropriate for its activities. Under the Small Business Act, a ``small 
business concern'' is one that: (1) Is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA. Nationwide, 
as of 1992 there were approximately 4.44 million small business firms, 
according to SBA reporting data.
    21. 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.
    22. The definition of ``small governmental jurisdiction'' is one 
with populations of fewer than 50,000. As of 1992, there were 
approximately 85,006 governmental entities in the nation. This number 
includes such entities as states, counties, cities, utility districts 
and school districts. There are no figures available on what portion of 
this number have populations of fewer than 50,000. However, this number 
includes 38,978 counties, cities and towns, and of those, 37,556, or 
ninety-six percent, have populations of fewer than 50,000. The Census 
Bureau estimates that this ratio is approximately accurate for all 
government entities. Thus, of the 85,006 governmental entities, we 
estimate that ninety-six percent, or about 81,600, are small entities 
that may be affected by our proposed rules.
    23. Geostationary, Non-Geostationary Orbit, Fixed Satellite, or 
Mobile Satellite Service Operators. The Commission has not developed a 
definition of small entities applicable to geostationary or non-
geostationary orbit, fixed-satellite or mobile-satellite service 
operators. Therefore, the applicable definition of small entity is the 
definition under the SBA rules applicable to Communications Services, 
Not Elsewhere Classified, which provides that a small entity is one 
with $11.0 million or less in annual receipts. According to Census 
Bureau data, there are 848 firms that fall under this category. Of 
those, approximately 775 reported annual receipts of $11 million or 
less and qualify as small entities. Small businesses may not have the 
financial ability to become geostationary or non-geostationary, fixed-
satellite or mobile-satellite service system operators because of the 
high implementation costs associated with satellite systems and 
services. At this time, at least one of the 2 GHz MSS applicants may be 
considered a small business. The Commission expects, however, that by 
the time of implementation it will no longer be considered a small 
business due to the capital requirements for launching and operating 
its proposed system. Because there are limited spectrum and orbital 
resources available for assignment, the Commission estimates that no 
more than nine entities will be approved by the Commission as operators 
providing these services.
    24. Multipoint Distribution Service (MDS). In connection with the 
1996 MDS auction, the Commission defined small businesses as entities 
that had annual average gross revenues for the three preceding years 
not in excess of $40 million. The SBA has approved this definition of a 
small entity in the context of MDS auctions. The MDS auctions resulted 
in 67 successful bidders obtaining licensing opportunities. Of the 67 
auction winners, 61 meet the definition of a small business.
    25. MDS is also heavily encumbered with licensees of stations 
authorized prior to the MDS auction. SBA has developed a definition of 
small entities for pay television services, which includes all such 
companies generating $11 million or less in annual receipts. This 
definition includes MDS systems, and thus applies to incumbent MDS 
licensees and wireless cable operators which may not have participated 
or been successful in the MDS auction. For purposes of this analysis, 
we find there are approximately 892 small MDS providers as defined by 
the SBA and the Commission's auction rules, all of which could be 
affected by the Commission's proposed action.
    26. Amateur Radio Service (ARS). Incumbent licensees in the ARS 
could be affected by actions taken in this proceeding. However, because 
the ARS is comprised of individuals, no small entities will be 
affected.
    27. Unlicensed Personal Communications Service (UPCS). As its

[[Page 47621]]

name indicates, UPCS is not a licensed service. There is no accurate 
source for the number of operators in the UPCS. Manufacturers could be 
affected if UPCS frequencies are transferred for other uses, however, 
because need for their product could be minimized or eliminated, 
depending on the final action taken. This hardship could be offset if 
UPCS operators are moved to other frequencies or if manufacturers can 
sell equipment to new services occupying the UPCS frequencies. The 
Commission has not developed a definition of small entities applicable 
to UPCS equipment manufacturers. Therefore, the applicable definition 
of small entity is the definition under the SBA rules applicable to 
Communications Services, Not Elsewhere Classified, which provides that 
a small entity is one with $11.0 million or less in annual receipts. 
According to Census Bureau data, there are 848 firms that fall under 
this category. Of those, approximately 775 reported annual receipts of 
$11 million or less and qualify as small entities. There are currently 
15 manufacturers that have 45 equipment authorizations for devices that 
operate in the 1910-1930 MHz band. No equipment authorizations have 
been issued for devices operating in the 2390-2400 MHz band.

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

    28. This FNPRM deals only with the possible reallocation of 
frequency bands below 3 GHz to support the introduction of new wireless 
services, and does not propose assignment or service rules. Thus, the 
item proposes no new reporting, recordkeeping, or other compliance 
requirements. Once it has been decided whether to reallocate this 
spectrum, the Commission will consider adoption of implementing rules, 
some of which might entail compliance requirements.

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

    29. 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: (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 or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design standards; (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    30. Providing spectrum to support the introduction of new advanced 
mobile and fixed terrestrial wireless services is critical to the 
continuation of technological advancement. First and foremost, the 
Commission believes that our proposal to explore the possible use of 
several frequency bands that could offer a wide range of voice, data, 
and broadband services over a variety of mobile and fixed networks may 
provide substantial new opportunities for small entities.
    31. However, depending on the final action taken in this 
proceeding, small incumbent entities could be affected in a negative 
way as well, because some entities must be displaced to clear spectrum 
for new uses. The Commission endeavored to avoid this effect by 
identifying unencumbered spectrum, but spectrum in the suitable 
frequency range is heavily used already and sufficient unencumbered 
spectrum simply does not exist. The Commission has therefore sought to 
minimize an adverse impact by proposing to reallocate frequency bands 
for those incumbents, including small entities, which might be 
accommodated in other spectrum and could be relocated more easily. The 
Commission is also considering compensation of displaced incumbents, 
including any small entity, which is displaced. At this nascent stage 
of the proceeding, the Commission is soliciting comment on a variety of 
issues relevant to these possibilities.
    32. Paragraph 40 of the full text of the FNPRM further suggests the 
alternative of grandfathering incumbent licensees who qualify as small 
entities, until they are ready to move to new frequencies, thus easing 
their transition to new spectrum. Another alternative that the 
Commission believes has worked in the past, would be to encourage small 
entities to participate by offering them bidding credits if the 
reallocation is adopted and the spectrum is auctioned.
    33. The FNPRM more specifically considers a variety of alternatives 
that could make frequencies available to incumbents, including small 
entities, who could be subject to relocation. For example, one 
alternative discussed in paragraphs 11-13 of the FNPRM would be to use 
spectrum in the 1910-1930 MHz or 2390-2400 MHz bands for relocation. A 
second alternative, discussed in paragraphs 27-28 of the FNPRM, would 
be to use some of the 2 GHz MSS spectrum for relocation. Paragraph 38 
of the full FNPRM seeks comment on using the 2150-2160 MHz MDS band for 
relocation purposes. Any of these alternatives would facilitate the 
relocation of displaced incumbents, including small entities.
    34. Finally, the Commission has already received extensive comments 
on issues related to the possible reallocation of the 2150-2160 MHz 
(2.1 GHz) spectrum for advanced wireless purposes. Comments filed by 
the multipoint distribution/instructional television fixed services 
industry and several equipment manufacturers argue that the 2.1 GHz 
band is necessary for the continued roll-out of fixed wireless services 
across the country. Other commenters support the use of 2.1 GHz for 
advanced wireless services.
    We are considering both alternatives, and are attempting to 
minimize any negative impact on licensees, including small entities, in 
the 2150-2160 band. These alternatives are discussed in paragraphs 37-
41of the FNPRM, and include the possibility of providing displaced 
incumbents with relocation spectrum or compensating such licensees.

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

    35. None.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 01-23047 Filed 9-12-01; 8:45 am]
BILLING CODE 6712-02-P