[Federal Register Volume 67, Number 160 (Monday, August 19, 2002)]
[Rules and Regulations]
[Pages 53754-53756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20185]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 74 and 78

[ET Docket No. 95-18; FCC 02-221]


2 GHz Suspension

AGENCY: Federal Communications Commission.

ACTION: Final rule; suspension order.

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SUMMARY: This document suspends for one year until September 6, 2003, 
the expiration date for the initial two-year mandatory negotiation 
period for Phase I of the 2 GHz band relocation plan between Mobile-
Satellite Service and Broadcast Auxiliary Service. The provisions of 
this initial Phase 1 mandatory negotiation period will remain in effect 
for the duration of this suspension. The suspension period may be 
subsequently lengthened or shortened by the Commission as circumstances 
warrant.

DATES: Effective August 2, 2002.

FOR FURTHER INFORMATION CONTACT: Gary Thayer, Office of Engineering and 
Technology, (202) 418-2290.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order, 
ET Docket No. 95-18, FCC 02-221, adopted July 31, 2002, and released 
August 2, 2002. The full text of this document is available for 
inspection and copying during regular business hours in the FCC 
Reference Center (Room CY-A257), 445 12th Street, SW, Washington, DC 
20554. The complete text of this document also 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

[[Page 53755]]

persons with disabilities by contacting Brian Millin at (202) 418-7426 
or TTY (202) 418-7365.

Summary of the Order

    1. This Order immediately suspends for one year, until September 6, 
2003, the expiration date for the initial two-year mandatory 
negotiation period for Phase 1 of the 2 GHz band relocation plan 
between Mobile-Satellite Service (MSS) and Broadcast Auxiliary Service 
(BAS), adopted in the Second Report and Order and Second Memorandum 
Opinion and Order (Second Report and Order), 65 FR 48174, August 7, 
2000. The provisions of the initial Phase 1 mandatory negotiation 
period will remain in effect for the duration of this suspension. We 
retain the option to shorten or lengthen this suspension as 
circumstances warrant.
    2. In the Memorandum Opinion and Order and Third Notice of Proposed 
Rule Making and Order, 63 FR 69606, December 17, 1998, we allocated 70 
megahertz of spectrum for MSS in the 2 GHz band. In the Second Report 
and Order, we adopted relocation procedures for incumbent BAS 
facilities at 1990-2025 MHz and incumbent Fixed Service (FS) facilities 
at 2165-2200 MHz. This relocation plan was modeled after the 
Commission's earlier Emerging Technologies policies in ET Docket No. 
92-9, and requires MSS entrants to provide comparable facilities to BAS 
and FS incumbents that are relocated prior to the sunset dates 
specified in the Second Report and Order. The BAS relocation plan calls 
for a two-phase relocation, each phase beginning with a two-year 
mandatory negotiation period that will clear the lowest BAS channel 
then in use in the top 30 Nielsen Designated Market Areas. In the event 
that an agreement for relocation is not reached by the end of a 
particular negotiation period, the MSS licensee(s) have the option of 
relocating BAS incumbents involuntarily. The initial, two-year 
mandatory negotiation period for Phase 1 commenced upon Federal 
Register publication of the Second Report and Order on September 6, 
2000, and is due to expire on September 6, 2002. As stated in the 
Second Report and Order, it remains a primary goal to ensure that the 
transition causes the minimum possible disruption to BAS operations.
    3. Subsequent to adoption of the Second Report and Order, we 
initiated several major rule makings that propose, or seek comment on, 
alternative uses and new allocations in portions of the 2 GHz band now 
allocated for MSS. For example, in IB Docket No. 01-185, 66 FR 47621, 
September 13, 2001, we are seeking comment on proposals that would 
allow MSS licensees to provide ancillary terrestrial component 
(``ATC'') operations in the 2 GHz MSS band. In ET Docket No. 00-258, 66 
FR 47618, September 13, 2001, we are seeking comment on proposals to 
support the introduction of new advanced wireless services, including 
Third Generation (``3-G'') wireless systems in spectrum below 3 GHz, 
including some of the MSS spectrum in the 2 GHz band. In WT Docket No. 
02-55, 67 FR 16351, April 5, 2002, we are exploring various options to 
improve public safety communications in the 800 MHz band that could 
include relocating incumbent 800 MHz services to the current MSS 
allocation in the 2 GHz band. In each of these dockets, we have sought 
comment on what changes might be needed to the BAS relocation 
procedures adopted in the Second Report and Order should the proposals 
affecting the 2 GHz MSS bands be adopted.
    4. In the Second Report and Order, we concluded that the adopted 
negotiation period structure would serve our twin goals of maintaining 
the integrity of the BAS system operation while providing for early 
access to the spectrum for MSS providers. We found that the BAS and MSS 
industries had been aware of this proceeding and closely followed its 
progress since 1995. In addition, we noted that the spectrum became 
available for MSS on January 1, 2000, and that ICO had represented that 
it expected to be ready to begin providing service in 2002. Based upon 
these factors, among others, we decided that the initial BAS 
negotiation period should commence immediately upon Federal Register 
publication of the Second Report and Order, and that a two-year 
duration for the initial mandatory negotiation period was appropriate.
    5. As noted above, subsequent to our establishing the 2 GHz MSS 
band relocation plans, we specifically sought comment in the MSS 
Flexibility, Advanced Wireless/3-G, and 800 MHz Public Safety rule 
making notices on whether to revise the Second Report and Order 
relocation plan based on the outcome of the proposals in those 
rulemakings. Because it does not appear that we will be able to act on 
the respective issues prior to the Phase 1 BAS mandatory negotiation 
deadline of September 6, 2002, we find it to be in the public interest 
to continue the negotiating period until we are able to fully address 
these relocation issues based on the extensive record that these other 
proceedings have generated. We further find that it is prudent and in 
the public interest to suspend the expiration of the initial 
negotiation period under the present circumstances, rather than 
prejudice our consideration of the relocation issues presented in the 
pending proceedings. Therefore, we find that the expiration date for 
the initial Phase 1, two-year mandatory BAS negotiation period should 
be suspended, effective immediately upon release of this order, for one 
year until September 6, 2003. We retain the option, however, to shorten 
or lengthen this suspension as circumstances warrant while we consider 
further action on this matter in pending proceedings. We also emphasize 
that the action taken herein is an interim measure and does not 
prejudice further action in other proceedings. For the duration of this 
suspension, all other aspects of the initial mandatory BAS negotiation 
period will continue in force and, as a consequence, BAS incumbents 
will not be subject to involuntary relocation by MSS licensees in the 
interim. We will require MSS and BAS licensees to comply with all 
negotiation requirements and procedures adopted in the Second Report 
and Order that are applicable to the initial BAS mandatory negotiation 
period. Because we are not suspending or modifying any other aspect of 
the BAS or FS relocation plan, MSS and FS licensees in the 2165-2200 
MHz band remain free to enter into relocation negotiations under the 
provisions adopted in the Second Report and Order.
    6. On October 22, 2001, the National Association of Broadcasters 
(NAB) and the Association for Maximum Service Television, Inc. (MSTV) 
filed a pleading styled ``Motion for Stay of Mandatory Negotiation 
Period.'' The Motion was supported in separate pleadings by the Society 
of Broadcast Engineers and by Cox Broadcasting, Inc. (jointly with 
Cosmos Broadcasting Corporation and Media General, Inc.), and was 
opposed by New ICO Global Communications Ltd., and the Boeing Company.
    While NAB's pleading appears to seek a stay of the entire 
negotiation process delineated in the Second Report and Order, a 
subsequent ex parte submission by NAB appears to indicate that NAB is 
not opposed to the requirement for negotiation. Rather, NAB effectively 
requests an indefinite suspension of the timetables in the negotiation/
relocation process. To the extent that NAB's motion would challenge the 
imposition of the negotiation/relocation process delineated in the 
Second Report and Order, it must be dismissed as a late-filed Petition 
for Reconsideration. To the extent that it requests a suspension of the 
timetables in the negotiation/relocation process, we dismiss it as

[[Page 53756]]

moot in light of our action. We note that opponents' substantive 
arguments in opposing NAB's Motion are considered and disposed of in 
our determination.

Ordering Clauses

    7. Authority for issuance of this Order is contained in sections 
4(i), 303(f), and 303(r) of the Communications Act of 1934, as amended, 
47 U.S.C. 154(i), 303(f), and 303(r), and section 553(d) of the 
Administrative Procedure Act, 5 U.S.C. 553(d).
    8. Pursuant to sections 4(i), 303(f), and 303(r) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), and 
303(r), and section 553(d) of the Administrative Procedure Act, 5 
U.S.C. 553(d), the expiration date of September 6, 2002, for the 
initial two-year mandatory BAS negotiation period for Phase 1 set forth 
in the Second Report and Order in ET Docket No. 95-18 is hereby 
suspended, effective August 2, 2002, for one year until September 6, 
2003.
    9. Pursuant to sections 4(i), 303(f), and 303(r) of the 
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), and 
303(r), the Motion for Stay of Mandatory Negotiation Period filed by 
the National Association of Broadcasters (NAB) and the Association for 
Maximum Service Television, Inc. (MSTV), is hereby dismissed.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

List of Subjects in 47 CFR Parts 74 and 78

    Communications equipment, Radio.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 74 and 78 to read as 
follows:

PART 74--[AMENDED]

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

    Authority: 47 U.S.C. 154, 303, 307, and 554.
    2. Section 74.690 is amended by adding the following note to 
paragraph (e):


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

* * * * *
    (e) * * *

    Note to paragraph (e): FCC suspends for one year, until 
September 6, 2003, the expiration date for the initial two-year 
mandatory negotiation period in paragraph (e)(1) and the beginning 
of the involuntary relocation period in paragraph (e)(4).

PART 78--[AMENDED]

    3. 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, 1065, 1066, 1081, 1082, 1083, 1084, 1085, 47 U.S.C. 
152, 153, 154, 301, 303, 307, 308, 309.

    4. Section 78.40 is amended by adding the following note to 
paragraph (f):


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

* * * * *
    (f) * * *

    Note to paragraph (f): FCC suspends for one year, until 
September 6, 2003, the expiration date for the initial two-year 
mandatory negotiation period in paragraph (e)(1) and the beginning 
of the involuntary relocation period in paragraph (f)(4).


[FR Doc. 02-20185 Filed 8-16-02; 8:45 am]
BILLING CODE 6712-01-P