[Federal Register Volume 68, Number 10 (Wednesday, January 15, 2003)]
[Proposed Rules]
[Pages 1999-2002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-812]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2 and 90

[WT Docket No. 01-90; ET Docket No. 98-95; RM-9096; FCC 02-302]


Regarding Dedicated Short-Range Communication Services in the 
5.850-5.925 GHz Band (5.9 GHz Band)

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, a notice of proposed rulemaking, the Federal 
Communications Commission (FCC) proposes service rules for the 
Dedicated Short-Range Communications Systems in the 5.850-5.925 GHz 
band (5.9 GHz band) to govern the licensing and use of this band. The 
NPRM seeks public comment on numerous issues concerning the service 
rules.

DATES: Comments are due on or before March 17, 2003, and reply comments 
are due on or before April 15, 2003.

ADDRESSES: Federal Communications Commission 445 12th Street, SW., TW-
A325, Washington, DC 20554. See SUPPLEMENTARY INFORMATION for filing 
instructions.

FOR FURTHER INFORMATION CONTACT: Nancy M. Zaczek at (202) 418-7590, 
Gerardo Mejia at (202) 418-2895 or via e-mail at [email protected] or 
gmejia @fcc.gov, or via TTY (202) 418-7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Notice of Proposed Rulemaking, FCC 02-302, 
adopted on November 7, 2002, and released on November 15, 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 FCC'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 or at [email protected].
    1. In this Notice of Proposed Rulemaking and Order (NPRM and 
Order), the FCC propose service rules to govern the licensing and use 
of the 5.850-5.925 GHz band (5.9 GHz band) for Dedicated Short-Range 
Communications (DSRC) services in the Intelligent Transportation System 
(ITS) radio service. Specifically in this NPRM and Order:
    [sbull] The FCC proposes to permit entities providing public safety 
DSRC operations to use the 5.9 GHz band;
    [sbull] For public safety entities, the FCC proposes to apply the 
application, licensing and processing rules under part 90 of the FCC's 
rules;
    2. The FCC generally seeks comment on the following issues:
    [sbull] Whether to license Roadside Units (RSUs) by site or 
geographic area;
    [sbull] Whether to permit non-public safety radio DSRC operations 
in the 5.9 GHz band:
    [sbull] In the event that the FCC allows non-public safety radio 
applications in the 5.9 GHz band and in the event that the licensing 
scheme the FCC selects for those ITS applications results in mutually 
exclusive licenses, the FCC proposes to apply competitive bidding 
procedures under the FCC's part 1 competitive bidding rules;
    [sbull] The definition of public safety in the context of ITS;
    [sbull] The definition of Dedicated Short-Range Communication 
Service (DSRCS);
    [sbull] The interoperability necessary for DSRC operations and how 
this interoperability should be achieved;
    [sbull] Whether to license On Board Units (OBUs) associated with 
fixed systems under the associated RSU license;
    [sbull] Whether the OBUs not associated with a fixed system should 
be licensed by rule or unlicensed under part 15;
    [sbull] The appropriate licensing scheme or schemes for this band;
    [sbull] Various channelization plans;
    [sbull] Various technical matters; and
    [sbull] Use of this band in Mexican and Canadian border areas.
    3. Dismissal of Petitions for Reconsideration. Further, the FCC 
also seeks comment on issues raised by two Petitions for 
Reconsideration or Clarification of the Allocation Report and Order. 
PanAmSat sought reconsideration of the FCC's decision that prior 
coordination between DSRC operations applications and Fixed Satellite 
Service (FSS) uplinks is unnecessary. Mark IV Industries sought 
reconsideration or clarification of the power levels and emission mask 
requirements established in the Allocation Report and Order. The FCC 
dismisses these two petitions for reconsideration as moot because the 
FCC is seeking comment on the issues raised through this NPRM, and, 
with the benefit of a fuller record, will address those issues in this 
proceeding, i.e., WT Docket 01-90.

I. Procedural Matters

A. Initial Regulatory Flexibility Analysis

    4. The FCC has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities of 
the policies and rules proposed in the Notice of Proposed Rulemaking; 
it is contained further. The FCC requests written public comment on the 
analysis. Comments must be filed in accordance with the same filing 
deadlines as comments filed in response to the notice of proposed 
rulemaking, and must have a separate and distinct heading designating 
them as responses to the IRFA. The FCC's Consumer and Governmental 
Affairs Bureau, Reference Information Center, will send a copy of this 
notice of proposed rulemaking, including the IRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration.

B. Paperwork Reduction Analysis

    5. This NPRM contains a proposed information collection. As part of 
its continuing effort to reduce paperwork burdens, the FCC invites the 
general public and the Office of Management and Budget (OMB) to take 
this opportunity to comment on the information collections contained in 
this NPRM, as required by the Paperwork Reduction Act of 1995, Public 
Law 104-13. Public and agency comments are due at the same time as 
other comments on this NPRM; OMB comments are due March 17, 2003. 
Comments should address: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the FCC, including whether the information shall have practical 
utility; (b) the accuracy of the FCC's burden estimates; (c) ways to

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enhance the quality, utility, and clarity of the information collected; 
and (d) ways to minimize the burden of the collection of information on 
the respondents, including the use of automated collection techniques 
or other forms of information technology.
    6. Written comments by the public on the proposed information 
collections are due March 17, 2003. Written comments must be submitted 
by the Office of Management and Budget (OMB) on the proposed 
information collections on or before March 17, 2003. In addition to 
filing comments with the Secretary, a copy of any comments on the 
information collection(s) contained herein should be submitted to Judy 
Boley Herman, Federal Communications Commission, Room 1-C804, 445 12th 
Street, SW., Washington, DC 20554, or via the Internet to 
[email protected] and to Jeanette Thornton, OMB Desk Officer, Room 10236 
NEOB, 725 17th Street, NW., Washington, DC 20503 or via the Internet to 
[email protected].

C. 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 FCC's rules.

D. Comment Dates

    8. Pursuant to Sec. Sec.  1.415 and 1.419 of the FCC's rules, 47 
CFR 1.415, 1.419, interested parties may file comments on or before 
March 17, 2003, and reply to comments on or before April 15, 2003. 
Comments may be filed using the FCC's Electronic Comment Filing System 
(ECFS) or by filing paper copies. See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121(1998).
    9. 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, i.e. WT Docket 01-90, 
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, U.S. Postal Service mailing address, and the applicable docket or 
rulemaking number. Parties may also submit an electronic comment by 
Internet e-mail. To get 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 .'' A sample form and directions will be sent in 
reply. 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. Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although the FCC continues to experience delays in 
receiving U.S. Postal Service mail). The FCC's contractor, Vistronix, 
Inc., will receive hand-delivered or messenger-delivered paper filings 
for the FCC's Secretary at 236 Massachusetts Avenue, NE., Suite 110, 
Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 
p.m. All hand deliveries must be held together with rubber bands or 
fasteners. Any envelopes must be disposed of before entering the 
building. Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, 
Express Mail, and Priority Mail should be addressed to 445 12th Street, 
SW., Washington, DC 20554. All filings must be addressed to the FCC's 
Secretary, Office of the Secretary, Federal Communications Commission.

II. Initial Regulatory Flexibility Analysis

    10. As required by the Regulatory Flexibility Act (``RFA''), the 
FCC 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 the notice of proposed 
rulemaking (NPRM), WT Docket No. 01-90. 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 NPRM as 
provided above. The FCC will send a copy of the NPRM, including the 
IRFA, to the Chief Counsel for Advocacy of the U.S. Small Business 
Administration. In addition, the NPRM and IRFA (or summaries thereof) 
will be published in the Federal Register.

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

    11. In this NPRM, the FCC proposes licensing, service, and 
operating rules for the 5.850-5.925 GHz band for use by Dedicated Short 
Range Communications (DSRC) Services in the provision of Intelligent 
Transportation Systems (ITS) services. DSRC communications are used for 
the non-voice wireless transfer of data over short distances between 
roadside and mobile units, between mobile units, and between portable 
and mobile units to perform operations related to the improvement of 
traffic flow, traffic safety, and other intelligent transportation 
service applications in a variety of environments. This action is taken 
as a follow-up to the Allocation Report and Order, in which the FCC 
stated that it would defer licensing and service rules to a later 
proceeding.

B. Legal Basis for Proposed Rules

    12. The proposed action is authorized under sections 1, 4(i), 302, 
303(f) and (r), and 332 of the Communications Act of 1934, as amended, 
47 U.S.C. 1, 154(i), 302, 303(f) and (r), and 332.

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

    13. 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 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). 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 governmental entities in the United States. This 
number includes 38,978 counties, cities, and towns; of these, 37,566, 
or 96%, 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 
FCC

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estimates that 81,600 (96%) are small entities.
    14. With respect to the 5.9 GHz band, the FCC has not yet 
determined how many licenses will be awarded. Moreover, the FCC does 
not yet know how many applicants or licensees will be small entities. 
The FCC therefore assume that, for purposes of the FCC's evaluations 
and conclusions in the IRFA, all prospective licensees are small 
entities, as that term is defined by the SBA or by the FCC's proposed 
small business definitions for these bands. The FCC invites comment on 
this analysis.
    15. In addition, the FCC notes that the SBA has developed size 
standards for wireless small businesses within the two separate 
Economic Census categories of Paging and of Cellular and Other Wireless 
Telecommunications. For both of those categories, the SBA considers a 
business to be small if it has 1,500 or fewer employees. 13 CFR 
121.201, NAICS codes 517211, 517212. According to the FCC's most recent 
Telephone Trends Report data, 1,761 companies reported that they were 
engaged in the provision of wireless service. Telephone Trends Report, 
Table 5.3. Of these 1,761 companies, an estimated 1,175 have 1,500 or 
fewer employees and 586 have more than 1,500 employees. Id. 
Consequently, the FCC estimates that most wireless service providers 
are small entities.
    16. The FCC has not developed a definition of small entities 
specifically applicable to Dedicated Short-Range Communications 
Manufacturers (DSRC Manufacturers). However, the SBA has established a 
small business size standard for Radio and Television Broadcasting and 
Wireless Communications Equipment Manufacturing. Under this standard, 
firms are considered small if they have 750 or fewer employees. Census 
data for 1997 indicate that, for that year, there were a total of 1,215 
establishments in this category. Of those, there were 1150 that had 
employment under 500, and an additional 37 that had employment of 500 
to 999. The percentage of wireless equipment manufacturers to total 
manufacturers in this category is approximately 61.35%, so the FCC 
estimates that the number of wireless equipment manufacturers with 
employment under 500 was actually closer to 706, with an additional 23 
establishments having employment of between 500 and 999. Given the 
above, the FCC estimates that the great majority of wireless 
communications equipment manufacturers are small.

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

    17. In the NPRM, the FCC seeks comment on whether to designate a 
portion of the band for public safety and non-public safety radio. 
Should the FCC decide to license a portion of the 5.9 GHz band for 
public safety purposes, those licensees will be required to submit an 
application through the Universal Licensing System using form 601. 
Other possible requirements include complying with part 90 of the FCC's 
rules and part 15 of the agency's rules if unlicensed operations are 
permitted.
    18. Should the FCC adopt a licensing scheme that results in 
mutually exclusive applications, applicants for licenses will be 
required to submit short-form auction applications using FCC form 175. 
In addition, winning bidders must submit long-form license applications 
through the Universal Licensing System using FCC form 601, and other 
appropriate forms. Licensees will also be required to apply for an 
individual station license by filing FCC form 601 for those individual 
stations that (1) require submission of an Environmental Assessment 
under section 1.1307 of the FCC's rules; (2) require international 
coordination; (3) would operate in the quiet zones listed in section 
1.924 of the FCC's rules; or (4) require coordination with the 
Frequency Assignment Subcommittee (FAS) of the Interdepartment Radio 
Advisory Committee (IRAC). Licensees will be required to identify on 
form 601 the type of service or services they intend to provide. The 
FCC seeks comment of how these filing requirements can be modified to 
reduce the burden on small entities.

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

    19. 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: (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.
    20. The FCC has reduced the burdens wherever possible. To minimize 
any negative impact, however, the FCC propose certain incentives for 
small entities that will redound to their benefit. The FCC proposes the 
use of bidding credits for small entities that participate in auctions 
of licenses that are conducted pursuant to the rules proposed in this 
NPRM. The FCC proposes to define a ``small business'' as an entity with 
average annual gross revenues for the preceding three years not to 
exceed $15 million and a ``very small business'' as an entity with 
average gross revenues for the preceding three years not to exceed $3 
million. The FCC believes that these bidding credits will help small 
entities compete in FCC auctions and acquire licenses. The FCC seeks 
comment on its proposed small business definitions and bidding credits, 
including information on factors that may affect the capital 
requirements of the type of services a licensee may seek to provide.
    21. The regulatory burdens the FCC has retained, such as filing 
applications on appropriate forms, are necessary in order to ensure 
that the public receives the benefits of innovative new services in a 
prompt and efficient manner. The FCC will continue to examine 
alternatives in the future with the objectives of eliminating 
unnecessary regulations and minimizing any significant economic impact 
on small entities. The FCC seeks comment on significant alternatives 
commenters believe the FCC should adopt.

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

    22. None.

III. Ordering Clauses

    23. Pursuant to sections 1, 4(i), 302, 303(f) and (r), and 332 of 
the Communications Act of 1934, as amended, 47 U.S.C. 1, 154(i), 302, 
303(f) and (r), and 332, notice is hereby given of the proposed 
regulatory changes described in this notice of proposed rulemaking and 
order, and that comment is sought on these proposals.
    24. The petitions for reconsideration or clarification of the 
allocation report and order, ET Docket No. 98-95, filed by PanAmSat 
Corporation and Mark IV Industries Limited, I.V.H.S. Division are 
dismissed as moot.
    25. The FCC's Consumer and Governmental Affairs Bureau, Reference 
Information Center, shall send a copy of this notice of proposed 
rulemaking and order, including the Initial Regulatory Flexibility 
Analysis, to the Chief

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Counsel for Advocacy of the U.S. Small Business Administration.

List of Subjects in 47 CFR Parts 2 and 90

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-812 Filed 1-14-03; 8:45 am]
BILLING CODE 6712-01-U