[Federal Register Volume 68, Number 198 (Tuesday, October 14, 2003)]
[Rules and Regulations]
[Pages 59131-59132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25870]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 74 and 78

[ET Docket No. 95-18; DA 03-2838]


2 GHz Suspension

AGENCY: Federal Communications Commission.

ACTION: Final rule; suspension order.

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SUMMARY: This document suspends for 60 days, until November 4, 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). The 
mandatory negotiation period will continue to remain in effect for the 
duration of this suspension or until otherwise modified by Commission 
action. The Commission retains the option to shorten or lengthen this 
suspension as circumstances warrant.

DATES: Effective September 6, 2003.

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, DA 03-2838, adopted September 4, 2003, and 
released September 5, 2003. 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 
persons with disabilities by contacting Brian Millin at (202) 418-7426 
or TTY (202) 418-7365.

Summary of the Order

    1. The Order effectively immediately suspends, for 60 days, until 
November 4, 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). This mandatory negotiation period was originally adopted 
in the Second Report and Order and Second Memorandum Opinion and Order 
(Second Report and Order), 65 FR 48174, August 7, 2000, in this 
proceeding, and later extended until September 6, 2003, in a subsequent 
Order (Suspension Order), 67 FR 53755, August 19, 2002. The mandatory 
negotiation period will continue to remain in effect for the duration 
of this suspension or until otherwise modified by Commission action. We 
retain the option to shorten or lengthen this suspension as 
circumstances warrant.
    2. This action only relates to 35 megahertz of spectrum, currently 
used by BAS licensees, in the 1990-2025 MHz band. In 1997, the 
Commission reallocated this spectrum, paired with 35 megahertz in the 
2165-2200 MHz band used by Fixed Service (FS) licensees, for MSS, 
effective January 1, 2000. In the Second Report and Order, it adopted 
relocation procedures for incumbent licensees in these bands. The 
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 specified sunset dates. The BAS relocation plan 
calls for a two-phase relocation, each phase beginning with a two-year 
mandatory negotiation period. 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 was due to expire on 
September 6, 2002. The Suspension Order extended this date by one year, 
to September 6, 2003.
    3. Recently, the Commission adopted decisions that will permit 
alternative uses and new allocations in portions of the 2 GHz band that 
had been allocated for MSS. In a Third Report and Order, Third Notice 
of Proposed Rulemaking, and Second Memorandum Opinion and Order, 68 FR 
11987, March 13, 2003, in ET Docket No. 00-258, it reallocated a 
portion of this spectrum in order to provide for new Fixed and Mobile 
services, including Advanced Wireless Services (AWS). In a Report and 
Order and Notice of Proposed Rulemaking in IB Docket No. 01-185, it 
permitted MSS licensees to provide ancillary terrestrial component 
(ATC) operations in the 2 GHz MSS band. The Commission has not yet 
adopted any modifications to the existing BAS and FS relocation rules 
as may be necessary in light of these decisions.
    4. In the Suspension Order, the Commission noted the outstanding 
issues in the MSS Flexibility Notice and AWS Notice proceedings 
relating to use of the 2 GHz MSS band and concluded that it did not 
appear that it would be able to act on the respective issues prior to 
the Phase 1 BAS mandatory negotiation deadline of September 6, 2002. It 
concluded that it was in the public interest to continue the 
negotiating period until we were able to address these relocation 
issues. It also found that it was prudent and in the public interest to 
suspend the expiration of the initial negotiation period for one year 
under those circumstances, rather than prejudice consideration of the 
relocation issues presented in the pending proceedings. The Commission 
further stated that it retained the option to shorten or lengthen this 
suspension as circumstances warranted.
    5. In February of this year, the Commission decided to reallocate 
portions of the 2 GHz MSS band (in ET Docket No. 00-258) and modify the 
nature of permissible MSS use of the band (in IB Docket No. 01-185). 
However, it has not yet addressed the modifications to the BAS and FS 
relocation plan that may be necessary

[[Page 59132]]

because of these decisions and several outstanding Petitions for 
Reconsideration and Clarification. Accordingly, the considerations that 
led the Commission to adopt the Suspension Order continue to apply with 
respect to the scheduled September 6, 2003, expiration date for the 
initial Phase 1 mandatory BAS negotiation period. Specifically, we find 
that it is in the public interest to continue the negotiating period 
until we address outstanding relocation issues in the band. Also, by 
suspending the expiration of the initial negotiation period, we will 
not prejudice consideration of the relocation issues still pending. For 
these reasons, we suspend, effective immediately upon release of this 
order, expiration of the initial Phase 1, two-year mandatory BAS 
negotiation period for 60 days, until November 4, 2003.
    6. As in the Suspension Order, we retain the option to shorten or 
lengthen this suspension as circumstances warrant. We also emphasize 
that the action taken herein is interim in nature 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. For the 
duration of the suspension, we likewise 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.

Ordering Clauses

    7. Authority for issuance of this Order is contained in sections 
4(i), 5(c), 303(f), and 303(r) of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 155(c), 303(f), and 303(r), and Section 
553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d). This 
action is taken under delegated authority, pursuant to sections 0.31(m) 
and 0.241(a) of the Commission's Rules, 47 CFR 0.31(m) and 0.241(a).
    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), Section 553(d) of the Administrative Procedure Act, 5 U.S.C. 
553(d), and sections 0.31(m) and 0.241(a) of the Commission's Rules, 47 
CFR 0.31(m) and 0.241(a), 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 immediately upon release of this order, for 60 
days until November 4, 2003.

List of Subjects in 47 CFR Parts 74 and 78

    Communications equipment, Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 74 and 78 to read as follows:

0
1. The authority citation for part 74 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 307, and 554.


0
2. Section 74.690 is amended by revising the note following paragraph 
(e) to read as follows:


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 60 days, until November 
4, 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).



0
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.


0
4. Section 78.40 is amended by revising the note following paragraph 
(f) to read as follows:


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 60 days, until November 
4, 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. 03-25870 Filed 10-10-03; 8:45 am]
BILLING CODE 6712-01-U