[Federal Register Volume 67, Number 240 (Friday, December 13, 2002)]
[Rules and Regulations]
[Pages 76697-76701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31383]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 96-86; FCC 02-216]


The Development of Operational, Technical and Spectrum 
Requirements for Meeting Federal, State and Local Public Safety Agency 
Communication Requirements Through the Year 2010

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In view of the Federal Communications Commission's commitment 
to ultimately require equipment operating in the 764-776 MHz and 794-
806 MHz band (``700 MHz public safety band'') General Use and State 
License channels to meet a spectrum efficiency requirement of one voice 
channel per 6.25 kHz, the Commission in this item adopted a phased-in 
implementation of (i.e., a ``single migration path'' to) this spectrum 
efficiency requirement. The rules adopted are based on the record 
developed in response to the Fifth Notice of Proposed Rule Making in 
the above-captioned proceeding. These rules are intended to promote the 
efficient, effective, and maximum use of 700 MHz public safety band 
General Use and State License channels without hindering development 
and deployment of public safety equipment. In addition, in order to 
comport with current international agreements, a Commission rule was 
revised, which had incorrectly implied that Canadian television signals 
are entitled to interference protection within the United States.

DATES: Effective January 13, 2003.

FOR FURTHER INFORMATION CONTACT: Roberto Mussenden, Esq., 202/418-0680, 
[email protected], Wireless Telecommunications Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Report and Order, FCC 02-216, adopted on 
July 16, 2002, and released on August 2, 2002. The full text of this 
document is available for inspection and copying during normal business 
hours in the FCC Reference Center, 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: http://www.fcc.gov. Alternative formats are available to persons with 
disabilities by contacting

[[Page 76698]]

Brian Millin at (202) 418-7426 or TTY (202) 418-7365 or at 
[email protected].
    1. In this Fifth Report and Order, we adopt a migration path to a 
6.25 kHz voice efficiency requirement for the 764-776 MHz and 794-806 
MHz band General Use and State License channels. The actions we take 
today are based on the record developed in response to the Fifth Notice 
of Proposed Rule Making in the above-captioned proceeding. In addition 
to the adoption of a specific migration path for the General Use and 
State License channels, we clarify the rule relating to cross-border 
interference with Canada to comport with current international 
agreements.
    2. In keeping with the Commission's safe harbor guidelines to 
facilitate use of the 764-776 MHz and 794-806 MHz band, we are mindful 
that the migration path we adopt today must not hinder the development 
and deployment of public safety equipment nor delay the planning and 
construction of pubic safety systems in this band. Specifically, we 
adopt the following measures to ensure efficient, effective and 
maximized use of the narrowband General Use and State License channels 
of the 700 MHz public safety band:
    [sbull] Allow the marketing, manufacture and importation of 12.5 
kHz equipment until December 31, 2006.
    [sbull] Accept applications for filing to use 12.5 kHz equipment 
that are filed on or before December 31, 2006.
    [sbull] Accept applications for filing for new systems to use 6.25 
kHz equipment that are filed after December 31, 2006.
    [sbull] Permit legacy licensees to continue using 12.5 kHz based 
systems until December 31, 2016.
    [sbull] Permit legacy licensees to purchase dual mode equipment 
(operates in 12.5 or 6.25 kHz mode) for system expansion or maintenance 
and operate it in the 12.5 kHz mode until December 31, 2016.
    [sbull] Ban the marketing, manufacture and importation of equipment 
that is exclusively 12.5 kHz effective after December 31, 2006.
    [sbull] Cease type certifying equipment that is exclusively 12.5 
kHz after December 31, 2006.
    [sbull] Require use of 6.25 kHz equipment exclusively effective 
after December 31, 2016.

I. Procedural Matters

A. Regulatory Flexibility Act

    3. Appendix B contains a Final Regulatory Flexibility Analysis 
(FRFA) with respect to the Fifth Report and Order. As required by the 
Regulatory Flexibility Act, the Commission has prepared the analysis of 
the possible impact on small entities of the rules and proposed rules 
set forth in this document. The Commission's Consumer Information 
Bureau, Reference Information Center, will send a copy of this Fifth 
Report and Order, including the FRFA, to the Chief Counsel for Advocacy 
of the Small Business Administration in accordance with the Regulatory 
Flexibility Act.

II. Final Regulatory Flexibility Analysis

    4. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), An Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated into the Fourth Report and Order and Fifth Notice of 
Proposed Rule Making (Fifth NPRM), 66 FR 10,632, February 16, 2001, of 
this proceeding. The Commission sought written public comment on the 
proposals in the Fifth NPRM, including comment on the IRFA. The present 
Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Fifth Report and Order

    5. The need is to resolve outstanding migration issues regarding a 
migration path for the General Use and State License channels located 
within the 700 MHz public safety band. Resolution entails requiring a 
6.25 kHz requirement for the General Use and State License channels. 
Our objective is to promote the efficient, effective, and maximum use 
of 700 MHz public safety band and not hinder development and deployment 
of public safety equipment. Specifically, the rules adopted herein 
will: Require licensees in the narrowband General Use and State License 
channels, whose applications are filed after December 31, 2006, to 
operate only in voice mode using a voice efficiency standard of at 
least one voice path per 6.25 kHz of spectrum bandwidth; allow 
licensees in the narrowband General Use and State License channels, 
whose applications are filed on or before December 31, 2006 (``legacy 
licensees''), to operate in voice mode using a voice efficiency 
standard of at least one voice path per 12.5 kHz of spectrum bandwidth 
until December 31, 2016; allow legacy licensees to buy dual mode 
equipment (i.e., equipment that operates in 12.5 kHz or 6.25 kHz mode) 
for system expansion or maintenance; ban the manufacture, importation, 
and marketing of equipment that only operates on a voice efficiency 
standard of at least one voice channel per 12.5 kHz of spectrum 
bandwidth after December 31, 2006; and prevent acceptance of 
applications for certification of equipment that operates exclusively 
on a voice efficiency standard of at least one voice channel per 12.5 
kHz of spectrum bandwidth or that lacks the ability to operate on a 
voice efficiency standard of one voice channel per 6.25 kHz of spectrum 
bandwidth after December 31, 2006.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    6. No comments were submitted in response to the IRFA. Comments 
were submitted in response to the Fifth NPRM regarding whether 
different migration paths would be appropriate for public safety 
entities in rural urban areas based on their different needs.

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

    7. 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 
``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 ``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 operations; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (SBA).
    8. 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. ``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 85,006 governmental entities, 
we estimate that 81,600 (ninety-one percent) are small entities.
    9. Public Safety Radio Pool Licensees. As a general matter, Public 
Safety Radio Pool licensees include police, fire, local government, 
forestry conservation, highway maintenance, and emergency medical 
services that draw from a

[[Page 76699]]

common pool of spectrum. Spectrum in the 700 MHz public safety band is 
governed by 47 U.S.C. 337. Non-Federal governmental entities as well as 
private businesses are licensees for these services. All governmental 
entities with populations of less than 50,000 fall within the 
definition of a small entity.
    10. Radio and Television 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. We 
do not have information that indicates how many of the six radio 
equipment manufacturers associated with this proceeding are among these 
778 firms. However, Motorola and Ericsson, two of the six 
manufacturers, are major, nationwide radio equipment manufacturers, 
and, thus, we conclude that these manufacturers would not qualify as 
small businesses because, in all likelihood, they have more than 750 
employees.
    11. Television Stations. This proceeding will affect full service 
TV station licensees (Channels 60-69), TV translator facilities, and 
low power TV (LPTV) stations. The SBA defines a TV broadcasting station 
that has no more than $12 million in annual receipts as a small 
business. TV broadcasting stations consist of establishments primarily 
engaged in broadcasting visual programs by TV to the public, except 
cable and other pay TV services. Included in this industry are 
commercial, religious, educational, and other TV stations. 
Establishments primarily engaged in TV broadcasting and which produce 
taped TV program materials are also included in this industry. Separate 
establishments primarily engaged in producing taped TV program 
materials are classified under another NAICS Code, and are defined as 
small if annual receipts do not exceed $6 million.
    12. There were 1,509 TV stations operating in the nation in 1992. 
That number has remained fairly constant as indicated by the 
approximately 1,551 operating TV broadcasting stations in the nation as 
of February 28, 1997. For 1992 the number of TV stations that produced 
less than $10.0 million in revenue was 1,155 establishments, or 
approximately 77 percent of the 1,509 establishments. There are 
currently 95 full service analog TV stations, either operating or with 
approved construction permits on channels 60-69. In the DTV Proceeding, 
we adopted a DTV Table that provides only 15 allotments for DTV 
stations on channels 60-69 in the continental United States. There are 
seven DTV allotments in channels 60-69 outside the continental United 
States. Thus, the rules will affect approximately 117 TV stations; 
approximately 90 of those stations may be considered small businesses. 
These estimates may overstate the number of small entities since the 
revenue figures on which they are based do not include or aggregate 
revenues from non-TV affiliated companies. We recognize that the rules 
may also impact minority-owned and women-owned stations, some of which 
may be small entities. In 2000, minorities owned and controlled 23 (1.9 
percent) of 1,288 full power commercial TV stations in the United 
States. According to the U.S. Bureau of the Census, in 1987 women owned 
and controlled 27 (1.9 percent) of 1,342 commercial and non-commercial 
TV stations in the United States.
    13. There are currently 4,977 TV translator stations and 1,952 LPTV 
stations. Approximately 1,309 low power TV and TV translator stations 
are on channels 60-69 which could be affected by policies in this 
proceeding. The Commission does not collect financial information of 
any broadcast facility and the Department of Commerce does not collect 
financial information on these broadcast facilities. We will assume for 
present purposes, however, that most of these broadcast facilities, 
including LPTV stations, could be classified as small businesses. As 
indicated earlier, approximately 77 percent of TV stations are 
designated under this analysis as potentially small businesses. Given 
this, LPTV and TV translator stations would not likely have revenues 
that exceed the SBA maximum to be designated as small businesses.

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

    14. The Fifth Report and Order does not adopt rules that entail 
recordkeeping, and/or third-party consultation. However, it does adopt 
rules that entail certain reporting and compliance requirements. The 
rules allow legacy licensees (as described in the Fifth Report and 
Order) to operate their systems at a 12.5 kHz voice efficiency standard 
until December 31, 2016, when these systems must convert to a 6.25 kHz 
voice efficiency standard on the General Use and State License 
channels. These legacy licensees must file, through ULS, no later than 
January 31, 2017, a declaration that they have completed the requisite 
conversion.

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

    15. 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; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    16. The rules adopted in the Fifth Report and Order are essentially 
designed to achieve standardization of technology at points in time in 
the distant future. Therefore, we do not believe that the impact of 
these rules will be different for smaller entities in the long run. In 
formulating the rules in the Fifth Report and Order, we reduced 
economic burdens wherever possible for all entities, large and small. 
The regulatory burdens that we have adopted are necessary to ensure 
that the public receives the public safety benefits of innovative new 
services in a prompt and efficient manner. For example, we have adopted 
technical and operational rules that will promote competition in the 
equipment market. We believe that the rules must be as competitively 
and technologically neutral as possible, in order to allow for 
competing equipment designs and to avoid hindering future innovative 
technological developments.
    17. We note that tighter technical specifications generally allow 
more intense spectrum use, but may result in higher equipment costs. 
Conversely, although wider tolerances may allow manufacturers to use 
less costly component parts in transmitting equipment, they also may 
result in less efficient spectrum use. Because the Commission is 
statutorily required to consider the safety of life and property in its 
consideration of spectrum management issues, we believe that the 
technical regulations we adopt herein provide a reasonably balanced 
approach in meeting the Commission's mandate.

[[Page 76700]]

    18. As for radio equipment for use on the 700 MHz public safety 
band, we believe that the rules we adopt today will foster competition 
in the market for radio equipment for use in the 700 MHz public safety 
band, and thereby increase the opportunity for small entities to enter 
this market. As for smaller public safety entities, the rules we adopt 
today are designed to allow them (and all public safety entities) a 
full 10-year life cycle for equipment they may purchase between now and 
December 31, 2006. We do not believe there are feasible alternatives to 
these rules, in that they are the narrowly tailored to allow both early 
access to the 700 MHz public safety band, and give early entrants into 
that spectrum a full life span for the equipment they use. Although we 
considered whether to permit smaller entities, specifically those 
operating in rural areas, to operate indefinitely using a 12.5 kHz 
voice efficiency standard, we rejected this approach because we wanted 
to ensure certainty and consistency of operations by all licensees as 
described in the Fifth Report and Order and to avoid sustaining a 
viable market for spectrally inefficient equipment.
    19. Report to Congress: The Commission will send a copy of the 
Fifth Report and Order, including this FRFA, in a report to be sent to 
Congress pursuant to the Congressional Review Act, see 5 U.S.C. 
801(a)(1)(A). Also, the Commission will send a copy of the Fifth Report 
and Order to the Chief Counsel for Advocacy of the Small Business 
Administration. In addition, the Fifth Report and Order and FRFA (or 
summaries thereof) will be published in the Federal Register. See 5 
U.S.C. 604(b).

III. Ordering Clauses

    20. Authority for the issuance of this Fifth Report and Order is 
contained in Sections 4(i), 4(j), 7(a), 302, 303(b), 303(f), 303(g), 
303(r), 307(e), 332(a), and 332(c) of the Communications Act of 1934, 
as amended, 47 U.S.C. 154(i), 154(j), 157(a), 302, 303(b), 303(f), 
303(g), 303(r), 307(e), 332(a), 332(c).
    21. Part 90 of the Commission's Rules, 47 CFR Part 90 is amended as 
specified in rule changes.
    22. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Fifth Report 
and Order, including the Final Regulatory Flexibility Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 90

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 90 as follows:

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

    1. The authority citation for part 90 continues to read as follows:

    Authority: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), 332(c)(7).


    2. Section 90.201 is revised to read as follows.


Sec.  90.201  Scope.

    This subpart sets forth the general technical requirements for use 
of frequencies and equipment in the radio services governed by this 
part. Such requirements include standards for acceptability of 
equipment, frequency tolerance, modulation, emissions, power, and 
bandwidths. Special additional technical standards applicable to 
certain frequency bands and certain specialized uses are set forth in 
subparts J, K, N, and R.

    3. Section 90.203 is amended by adding paragraphs (m) and (n) to 
read as follows.


Sec.  90.203  Certification required.

* * * * *
    (m) Applications for part 90 certification received after December 
31, 2006 will not be granted to transmitters designed to operate in the 
voice mode on channels designated in Sec. Sec.  90.531(b)(5) or 
90.531(b)(6) that do not provide at least one voice path per 6.25 kHz 
of spectrum bandwidth.
    (n) Transmitters designed to operate in the voice mode on channels 
designated in Sec. Sec.  90.531(b)(5) or 90.531(b)(6) that do not 
provide at least one voice path per 6.25 kHz of spectrum bandwidth 
shall not be manufactured in, or imported into the United States after 
December 31, 2006. Marketing of these transmitters shall not be 
permitted after December 31, 2006.

    4. Section 90.531 is amended by revising paragraphs (b)(5) and (6) 
and paragraph (d)(1) to read as follows.


Sec.  90.531  Band Plan.

* * * * *
    (b) * * *
    (5) Narrowband state channels. The following narrowband channels 
are designated for direct licensing to each state (including U.S. 
territories, districts, and possessions): 25-36, 65-76, 105-116, 145-
156, 185-196, 225-236, 265-276, 305-316, 645-656, 685-696, 725-736, 
765-776, 805-816, 845-856, 885-896, 925-936, 985-996, 1025-1036, 1065-
1076, 1105-1116, 1145-1156, 1185-1196, 1225-1236, 1265-1276, 1605-1616, 
1645-1656, 1685-1696, 1725-1736, 1765-1776, 1805-1816, 1845-1856, 1885-
1896. Voice operations on these channels are subject to compliance with 
the spectrum usage efficiency requirements set forth in Sec.  
90.535(d).
    (6) Narrowband general use channels. All narrowband channels 
established in paragraph (b) of this section, other than those listed 
in paragraphs (b)(1), (b)(2), (b)(4) and (b)(5) of this section are 
designated to public safety eligibles subject to Commission approved 
regional planning committee regional plans. Voice operations on these 
channels are subject to compliance with the spectrum usage efficiency 
requirements set forth in Sec.  90.535(d).
* * * * *
    (d) * * *
    (1) Narrowband. Subject to compliance with the spectrum usage 
efficiency requirements set forth in Sec.  90.535, two or four 
contiguous narrowband (6.25 kHz) channels may be used in combination as 
12.5 kHz or 25 kHz channels, respectively. The lower (in frequency) 
channel for two channel combinations must be an odd (i.e., 1, 3, 5 * * 
*) numbered channel. The lowest (in frequency) channel for four channel 
combinations must be a channel whose number is equal to 1+(4xn), where 
n = any integer between 0 and 479, inclusive (e.g., channel number 1, 
5, * * * 1917). Channel combinations are designated by the lowest and 
highest channel numbers separated by a hyphen, e.g., ``1-2'' for a two 
channel combination and ``1-4'' for a four channel combination.
* * * * *
    5. Section 90.533 is amended by revising paragraph (a) to read as 
follows:


Sec.  90.533  Transmitting sites near the U.S./Canada or U.S./Mexico 
border.

* * * * *
    (a) Public safety transmitters operating in the 764-776 MHz and 
794-806 MHz bands must conform to the limitations on interference to 
Canadian television stations contained in

[[Page 76701]]

agreement(s) between the United States and Canada for use of television 
channels in the border area.
* * * * *

    6. Section 90.535 is amended by revising paragraphs (b) and (c) and 
by adding paragraph (d) to read as follows.


Sec.  90.535  Modulation and spectrum usage efficiency requirements.

* * * * *
    (b) Transmitters designed to operate in the narrowband segment 
using digital modulation must be capable of maintaining a minimum data 
(non-voice) rate of 4.8 kbps per 6.25 kHz of bandwidth.
    (c) Transmitters designed to operate in the wideband segment using 
digital modulation must be capable of maintaining a minimum data (non-
voice) rate of 384 kbps per 150 kHz of bandwidth.
    (d) The following provisions apply to licensees operating in the 
channels designated in Sec. Sec.  90.531(b)(5) or 90.531(b)(6).
    (1) With the exception of licensees designated in paragraph (d) (2) 
of this section, after December 31, 2006, licensees may only operate in 
voice mode in these channels at a voice efficiency of at least one 
voice path per 6.25 kHz of spectrum bandwidth.
    (2) Licensees authorized to operate systems in the voice mode on 
these channels from applications filed on or before December 31, 2006, 
may continue operating in the voice mode on these channels (including 
modification applications of such licensees granted after December 31, 
2006, for expansion or maintenance of such systems) at a voice 
efficiency of at least one voice path per 12.5 kHz of spectrum 
bandwidth until December 31, 2016.
    (3) The licensees designated in paragraph (d)(2) of this section 
must, no later than January 31, 2017, file a declaration through the 
Universal Licensing System that they are operating these channels at a 
voice efficiency of at least one voice path per 6.25 kHz of spectrum 
bandwidth.
[FR Doc. 02-31383 Filed 12-12-02; 8:45 am]
BILLING CODE 6712-01-P