[Federal Register Volume 67, Number 68 (Tuesday, April 9, 2002)]
[Proposed Rules]
[Pages 17038-17041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8483]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 2

[WT Docket No. 00-32; FCC 02-47]


The 4.9 GHz Band Transferred from Federal Government Use

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on the 
establishment of licensing and service rules for the 4.9 GHz band. The 
comments will aid the Commission in defining eligibility to use the 
band and devising innovative licensing approaches to serve public 
safety. Furthermore, the Commission seeks comments that will help it to 
devise

[[Page 17039]]

methods to minimize the impact of interference on the 4.9 GHz band from 
adjacent band U.S Navy operations, as well as ensuring that the band is 
utilized in a manner that will not interfere with adjacent band radio 
astronomy operations. Finally, comments will aid the Commission with 
the implementation of technical standards for both fixed and mobile 
operations on the band. Our goal is to establish rules that will result 
in the most efficient and innovative use of the 4.9GHz band.

DATES: Written comments are due on or before July 8, 2002 and reply 
comments are due on or before August 7, 2002.

ADDRESSES: Commission's Acting Secretary, William F. Caton, Office of 
the Secretary, Federal Communications Commission, 445 12th St., SW., 
Washington, DC 20554. Filings can be sent first class by the U.S. 
Postal Service, by an overnight courier or hand and messenger-
delivered. Hand and message-delivered paper filings must be delivered 
to 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. 
Overnight courier (other than U.S. Postal Service Express Mail and 
Priority Mail) must be sent to 9300 East Hampton Drive, Capitol 
Heights, MD 20743.

FOR FURTHER INFORMATION CONTACT: Genevieve Augustin, Esq., 
[email protected], or Roberto Mussenden, Esq., [email protected], Policy 
and Rules Branch, Public Safety and Private Wireless Division, Wireless 
Telecommunications Bureau, (202) 418-0680, or TTY (202) 418-7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Further Notice of Proposed Rule Making, FCC 
02-47, adopted on February 14, 2002, and released on February 27, 2002. 
The full text of this document is available for inspection and copying 
during normal business hours in the FCC Reference Center, Room CY-A257, 
445 12th Street, SW., Washington, DC 20554. The complete text may be 
purchased from the Commission's copy contractor, Qualex International, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text 
may also be downloaded at: www.fcc.gov. Alternative formats are 
available to persons with disabilities by contacting Brian Millin at 
(202) 418-7426 or TTY (202) 418-7365.
    1. In our Further Notice of Proposed Rulemaking (FNPRM), we seek 
comment on the establishment of licensing and service rules for the 4.9 
GHz band. Further, we solicit comment on defining eligibility to use 
the band. We seek to develop a record on specific segmentation or 
channeling plans for use of the band. We also request comment on ways 
to minimize the impact of interference from adjacent band U.S. Navy 
operations on the 4.9 GHz band. Finally, we solicit suggestions on how 
to utilize the band in a manner that will not interfere with adjacent 
band radio astronomy operations.

A. Eligibility to Use the 4.9 GHz Band

    2. The Commission seeks comment on the criteria to use to determine 
eligibility to operate equipment within the 4.9 GHz band. Specifically, 
the Commission seeks comment on whether to define eligibility to use 
the 4.9 GHz band pursuant to the definition of public safety contained 
in Section 337 of the Communications Act (Act), or pursuant to the 
definition of public safety contained in Section 309(j)(2) of the Act, 
or both. Further, the Commission seeks comment on allowing commercial 
use in support of public safety in this band, and whether commercial 
uses should be permitted on a secondary basis. Moreover, the Commission 
seeks comment on its tentative conclusion to allow Federal use of the 
spectrum, as well as whether it should require sharing agreements 
between public safety entities and Federal users as a prerequisite to 
Federal use.

B. Fixed and Mobile Use of the 4.9 GHz Band

    3. We seek comment on the circumstances under which we should 
permit fixed operations in the 4.9 GHz band. We seek information on 
whether fixed applications on the band would consist of the traditional 
point-to-point microwave operations, more advanced point-to-multipoint 
services, or temporary fixed links. Furthermore, we specifically seek 
comment on whether any proposed fixed operations would interfere with 
the use of the emerging mobile technologies discussed herein. We 
solicit suggestions on a name for this new service, as well as comment 
on which section of our Rules is most appropriate for regulation of 
this new service.

C. Channel Plan

    4. The Commission seeks comment on band plans for the 4.9 GHz 
spectrum. The Commission also seeks comment on whether it should 
require coordination of fixed and mobile services.

D. Licensing

    5. The Commission seeks comment on the appropriate means of 
licensing the 4.9 GHz spectrum. The FNPRM explores a number of 
licensing options for mobile use, such as state licensing, blanket 
licensing or unlicensed operations, the use of regional planning 
committees or band managers.

E. Interference

    6. The Commission seeks comment on its tentative conclusion that 
the low power operations contemplated for the band will not interfere 
with the Navy's Cooperative Engagement Capability (CEC) system, which 
operates on the band immediately below the 4.9 GHz band. The Commission 
also seeks comment on the Navy's plans for the CEC system in the band 
below the 4.9 GHz band and the impact that the CEC operations will have 
on provision of service in the 4.9 GHz band. Additionally the 
Commission seeks comment on the effect CEC operations would have on any 
segmentation or channelization plans adopted for this band, and what 
steps public safety licensees in the 4.9 GHz band could take to 
minimize the impact of CEC operations on their services.

F. Technical Standards for Mobile Equipment

    7. The Commission seeks comment on whether to establish technical 
standards for mobile equipment operating in the 4.9 GHz band, and if 
so, what standards should be included in our Rules. The Commission also 
seeks comment on other means by which we can craft our Rules to permit 
operational flexibility while ensuring interoperability between 
different agencies. Further the Commission seeks comment on whether the 
setting of performance standards will delay the production of equipment 
that will be operated on this band, and if so, what we can do to 
prevent any such delays. The Commission also seeks comment on its 
analysis of the technologies envisioned by the current record.

G. Technical Rules for Fixed Operations in the 4.9 GHz Band

    8. The Commission seeks comment on possible technical requirements 
for fixed operation on the band. The Commission also seeks comment on 
whether to make the emission mask requirements for fixed microwave 
services in the 4.9 GHz band consistent with the emission mask 
requirements for fixed microwave services.

II. Procedural Matters

A. Ex Parte Rules--Permit-But-Disclose Proceeding

    9. This is a permit-but-disclose notice and comment rule making 
proceeding.

[[Page 17040]]

Ex parte presentations are permitted, except during the Sunshine Agenda 
period, provided they are disclosed as provided in our Rules.

B. Regulatory Flexibility Act

    10. The Regulatory Flexibility Act (RFA) requires that an agency 
prepare a regulatory flexibility analysis for notice and comment 
rulemakings, unless the agency certifies that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. Accordingly, we have prepared an Initial Regulatory 
Flexibility Certification concerning the impact on small entities of 
the policies and rules proposed by this FNPRM. The Initial Regulatory 
Flexibility Certification is set forth below in Section III.

C. Paperwork Reduction Act

    11. This Notice does not contain either a proposed or modified 
information collection.

D. Comment Dates

    12. Pursuant to Secs. 1.415 and 1.419 of our Rules, interested 
parties may file comments on or before July 8, 2002 and reply comments 
on or before August 7, 2002. Comments may be filed using the 
Commission's Electronic Filing System (ECFS) or by filing paper copies.
    13. 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. 
However, if multiple docket or rulemaking numbers appear in the caption 
of this proceeding, 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.
    14. Parties who choose to file by paper must file an original and 
four copies of each filing. If more than one docket or rulemaking 
number appears in the caption of this proceeding, commenters must 
submit two additional copies for each additional docket or rulemaking 
number. All filings must be sent to the Commission's Acting Secretary, 
William F. Caton, Office of the Secretary, Federal Communications 
Commission, 445 12th St., SW., Room TW-A325, Washington, DC 20554.
    15. Parties who choose to file by paper should also submit their 
comments on diskette. These diskettes should be submitted to: Genevieve 
Augustin, Esq., Public Safety and Private Wireless Division, Wireless 
Telecommunications Bureau, 445 12th St., SW., Room 3-A431, Washington, 
DC 20554. Such a submission should be on a 3.5-inch diskette formatted 
in an IBM compatible format using Microsoft Word 97 or compatible 
software. The diskette should be accompanied by a cover letter and 
should be submitted in ``read only'' mode. The diskette should be 
clearly labeled with the commenter's name, proceeding (including the 
lead docket number in this case, WT Docket No. 00-32), type of pleading 
(comment or reply comment), date of submission, and the name of the 
electronic file on the diskette. The label should also include the 
following phrase ``Disk Copy--Not an Original.'' Each diskette should 
contain only one party's pleadings, preferably in a single electronic 
file. In addition, commenters should send diskette copies to the 
Commission's copy contractor, Qualex International, Inc., 445 12th St., 
SW., Room CY-B402, Washington, DC 20554.

III. Initial Regulatory Flexibility Analysis for Notice of Proposed 
Rule Making

    16. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of 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 the FNPRM provided in paragraph 
72 of the item. The Commission will send a copy of the FNPRM, including 
this IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA). In addition, the FNPRM and IRFA (or summaries 
thereof) will be published in the Federal Register.

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

    17. In this FNPRM, we solicit comment on: the establishment of 
licensing and service rules for the 4.9 GHz band; defining eligibility 
to use the band; segmentation or channeling plans for use of the band; 
ways to mitigate interference on the 4.9 GHz band from adjacent band 
U.S. Navy operations; and ways to utilize the band in a manner that 
will not interfere with adjacent band radio astronomy operations.
    18. Our objectives for the Notice are to: (1) Set the framework for 
the establishment of a new public safety radio service in the 4.9 GHz 
band; (2) encourage flexible and efficient use of the 4.9 GHz spectrum; 
(3) encourage innovative applications in support of public safety; and 
(4) improve access to communications and state of the art first 
responder tools for entities engaged in public safety operations. The 
Commission also seeks to ensure a regulatory plan for the 4.9 GHz band 
that will allow for the efficient licensing and use of the band, and 
eliminate unnecessary regulatory burdens.

B. Legal Basis

    19. The proposed action is authorized under sections 1, 4(i), 7, 
10, 201, 202, 208, 214, 301, 303, 308, 309(j), and 310 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157, 
160, 201, 202, 208, 214, 301, 303, 308, 309(j), 310.

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

    20. 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.'' In addition, the term ``small business'' has 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 Small Business 
Administration (SBA).
    21. Nationwide, as of 1992, there were approximately 275,801 small 
organizations. ``Small governmental jurisdiction'' generally means 
``governments of cities, counties, towns, townships, villages, school 
districts, or special districts, with a population of less than 
50,000.'' As of 1992, there were approximately 85,006 such 
jurisdictions in the United States. This number includes 38,978 
counties, cities, and towns; of these, 37,566, or ninety-six 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

[[Page 17041]]

85,006 governmental entities, we estimate that 81,600 (ninety-one 
percent) are small entities.
    22. The proposed radio service may affect users of public safety 
radio services, the extent of which is not defined in this proceeding. 
This service may also affect manufacturers of radio communications 
equipment. An analysis of the number of small businesses that may be 
affected follows. We also note that according to SBA data, there are 
approximately 4.44 million small businesses nationwide.
    23. Public Safety Radio Services and Governmental entities. As a 
general matter, Public Safety Radio Services include police, fire, 
local government, forestry conservation, highway maintenance, and 
emergency medical services. Non-Federal governmental entities, as well 
as private businesses, are potential licensees for these services in 
this proceeding. Neither the Commission nor the SBA has developed a 
definition of small businesses directed specifically toward public 
service licensees. Therefore, the applicable definition of small 
business is the definition under the SBA rules applicable to Cellular 
and other Wireless Telecommunications. This provides that a small 
business is a radiotelephone company employing no more than 1,500 
persons. According to the Bureau of the Census, only twelve 
radiotelephone firms from a total of 1,178 such firms which operated 
during 1992 had 1,000 or more employees. Therefore, even if all twelve 
of these firms were public safety licensees, nearly all would be small 
businesses under the SBA's definition, if independently owned and 
operated.
    24. Equipment Manufacturers. We anticipate that at least six radio 
equipment manufacturers will be affected by our decisions in this 
proceeding. According to the Small Business Administration's 
regulations, a Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing businesses 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. We do not have information 
that indicates how many of the six radio equipment manufacturers 
associated with this proceeding are among these 778 firms. Motorola and 
Ericsson, however, are major, nationwide radio equipment manufacturers, 
and thus, we conclude that they would not qualify as small businesses.
    25. We invite comment on this analysis.

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

    26. We note that in this FNPRM, we propose a variety of licensing 
approaches we could employ on this band, but formulate no tentative 
conclusions on this matter. Possible requirements under consideration 
in this Further Notice include: recordkeeping and reporting 
requirements, and/or third-party consultation, if state licensing is 
ultimately utilized; compliance with part 101 of our Rules, in the 
event that fixed operations are licensed on the 4.9 GHz band; 
compliance with part 90 of our Rules, if mobile operations are licensed 
individually; compliance with part 27 of our Rules, if 4.9 GHz band 
operations are licensed pursuant thereto; and compliance with part 15 
of our Rules, in the event that mobile operations on the 4.9 GHz band 
are unlicensed. Applicants and licensees would possibly be required to 
follow current service rules for such approaches, if ultimately chosen.

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

    27. The RFA requires an agency to describe any significant, 
specifically small business, 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 and 
reporting requirements under the rule for such small entities; (3) the 
use of performance rather than design standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.''
    28. The possible regulatory burdens we have described above, such 
as recordkeeping, recording, and filing requirements, if implemented, 
are necessary in order to ensure that the public safety operations 
benefit from the innovative new services described herein, in a prompt 
and efficient manner. We will continue to examine alternatives in the 
future with the objectives of eliminating unnecessary regulations and 
minimizing any significant economic impact on small entities. We seek 
comment on significant alternatives commenters believe should be 
adopted in this proceeding.

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

    None.

IV. Ordering Clauses

    29. Pursuant to sections 4(i), 303(r), and 403 of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 403, 
this Further Notice of Proposed Rule Making is hereby adopted.
    30. The Commission's Consumer and Government Affairs Bureau, 
Reference Information Center, shall send a copy of this Notice of 
Proposed Rule Making, including the Regulatory Flexibility 
Certification, to the Chief Counsel for Advocacy of the Small Business 
Administration.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 02-8483 Filed 4-8-02; 8:45 am]
BILLING CODE 6712-01-P