[Federal Register Volume 68, Number 235 (Monday, December 8, 2003)]
[Rules and Regulations]
[Pages 68241-68254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30310]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 2, 74, 78 and 101

[ET Docket No. 95-18, ET Docket No. 00-258, IB Docket No. 01-185; FCC 
03-280]


Allocation of Spectrum at 2 GHz for Use by the Mobile-Satellite 
Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document modifies the rules that new 2 GHz Mobile-
Satellite Service (MSS) licensees are to follow when relocating 
incumbent Broadcast Auxiliary Service (BAS) licensees in the 1990-2025 
MHz band and Fixed Service (FS) microwave licensees in the 2180-2200 
MHz band. These actions are taken in light of our recent decision to 
reallocate 30 megahertz of 2 GHz MSS spectrum to new Fixed and Mobile 
services as part of our Advanced Wireless Services (AWS) proceeding, 
and to allow MSS licensees to provide an Ancillary Terrestrial 
Component (ATC) in conjunction with their MSS networks. We have also 
considered a number of outstanding petitions for reconsideration filed 
in response to our initial decision to reallocate these bands to MSS. 
Together, these decisions will resolve outstanding issues relating to 
the introduction of MSS at 2 GHz and the consequential relocation of 
BAS and FS licensees in these bands, which in turn will set the stage 
for the introduction of a variety of new and highly anticipated 
advanced services into these bands.

DATES: Effective January 7, 2004.

FOR FURTHER INFORMATION CONTACT: Jamison Prime, Office of Engineering 
and Technology, (202) 418-7474.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Report and Order and Memorandum Opinion and Order, ET Docket No. 95-18, 
ET Docket No. 00-258, and IB Docket No. 01-185, FCC 03-280, adopted 
November 5, 2003, and released November 10, 2003. The full text of this 
Commission decision is available on the Commission's Internet site at 
http://www.fcc.gov. It is available for inspection and copying during 
normal business hours in the FCC Reference Information Center, Room CY-
A257, 445 12th Street, SW., Washington, DC, and also may be purchased 
from the Commission's duplication contractor, Qualex International, 445 
12th Street, SW., Room, CY-B402, Washington, DC 20554; (202) 863-2893; 
fax (202) 863-2898; e-mail [email protected].

Summary of the Third Report and Order and Third Memorandum Opinion and 
Order

    1. In the Third Report and Order and Third Memorandum Opinion and 
Order the Commission retains in substantial part the BAS and FS 
relocation procedures that new MSS entrants in the 2 GHz band will 
follow and that were originally adopted in the Commission's MSS Second 
Report and Order, 65 FR 48174, August 7, 2000. The modifications we 
make herein respond to comments filed in response to the Further Notice 
of Proposed Rulemaking, 66 FR 47518, September 13, 2001, in the AWS 
proceeding and the Notice of Proposed Rulemaking, 66 FR 47621, 
September 13, 2001, in the MSS-ATC proceeding. In both of those 
actions, the Commission sought comment on how the introduction of new 
services into the 2 GHz MSS band would affect the existing BAS and FS 
relocation procedures. We also address petitions for reconsideration 
filed in response to the MSS Second Report and Order. Specifically, we 
make the following decisions herein:
    For relocation of BAS in the 1990-2025 MHz band by new MSS 
entrants, we:
    [sbull] Require the relocation of BAS incumbents in all television 
markets to the final (Phase II) plan at 2025-2110 MHz. This will 
eliminate the necessity of relocating BAS licensees to an interim 
(Phase I) channel plan as part of the previously adopted two-phase 
approach to relocation.
    [sbull] Retain the requirement that all BAS operations in markets 
1-30 must be relocated prior to the initiation of new MSS in the band.
    [sbull] Amend the rules to specify that the time period for 
calculating a one-year mandatory BAS negotiation period for markets 1-
30 and the ten-year sunset period commence upon publication of this 
Report and Order in the Federal Register.
    [sbull] Require the relocation of all fixed BAS stations on 
channels 1 and 2 nationwide prior to the initiation of new MSS in the 
band.
    [sbull] Decline to require the reimbursement of relocation expenses 
for BAS facilities for which initial

[[Page 68242]]

applications were filed at the Commission after adoption of the MSS 
Second Report and Order.
    [sbull] Modify our final (Phase II) BAS channel plan to provide for 
seven channels of 12 megahertz each, and a 500 kilohertz data return 
link (DRL) band at both ends of the seven channels.
    [sbull] Permit BAS licensees to operate indefinitely on their 
existing 17-megahertz wide channels in the 2025-2110 MHz band on a 
secondary basis, if they so choose.
    [sbull] Clarify that an assignment or transfer of control does not 
disqualify a BAS incumbent from relocation eligibility.
    For FS microwave relocation by MSS/ATC licensees in the 2180-2200 
MHz band, we:
    [sbull] Clarify that TIA TSB 10-F, or its successor, is an 
appropriate interference standard that may be used for determining 
interference from MSS ATC stations to incumbent FS operations in the 2 
GHz band.
    [sbull] Clarify that FS incumbents relocated through the 
negotiation process are eligible for reimbursement for relocation to 
leased facilities or alternative media, but decline to extend 
reimbursement eligibility to FS incumbents that voluntarily self-
relocate.
    [sbull] Decline to establish separate ``rolling'' negotiation 
periods for each FS incumbent as they are approached by MSS licensees 
for relocation negotiation.
    [sbull] Amend the rules to specify that the time period for 
calculating the mandatory FS negotiation periods and the ten-year 
sunset period commence upon publication of the Report and Order in the 
Federal Register.
    [sbull] Clarify that an assignment or transfer of control does not 
disqualify a FS incumbent from relocation eligibility.
    [sbull] Decline to require MSS licensees to relocate FS incumbents 
from which the MSS operation would only receive, but not cause, 
interference prior to the ten-year sunset date.
    2. The Third Report and Order and Third Memorandum Opinion and 
Order also address BAS and FS relocation issues as they pertain to 2 
GHz MSS licensees as part of an overall effort to promote the rapid 
introduction of MSS into the 2 GHz bands. As such, we combine a Report 
and Order addressing the relevant comments that discuss BAS and Fixed 
Service relocation issues in two proceedings, ET Docket 00-258 and IB 
Docket No. 01-185, with a Memorandum Opinion and Order addressing 
petitions that seek reconsideration or clarification of relocation 
decisions made in the MSS Second Report and Order. The issues we 
consider generally relate to relocation timing, reimbursement 
eligibility, negotiation commencement, and technical/interference 
matters. Our decisions are designed to account for the actions the 
Commission has taken in the subsequent proceedings, described above, 
regarding the reallocation of a portion of the MSS band and the 
introduction of ATC services by MSS licensees.
    3. As an initial matter, we are not altering the fundamental 
workings of the relocation process that was adopted in the MSS Second 
Report and Order. For example, throughout the AWS proceeding, 
commenters representing incumbent licensees' interests have urged us to 
maintain the general relocation principles of the Emerging Technologies 
proceeding even if we expand the nature and scope of services in the 
band. We agree.
    4. In order to provide for MSS entry into the band in accordance 
with construction milestones, MSS licensees generally will have to 
relocate BAS and FS incumbents. We note that, due to the reallocation 
of the 1990-2000 MHz and 2020-2025 MHz bands in the AWS proceeding, 
non-MSS licensees that may begin service later will benefit from the 
band clearing paid for by MSS licensees. For this reason, we will 
provide an equitable mechanism by which MSS licensees can recover some 
of the relocation costs incurred from other licensees who will benefit 
from the band clearing in the 1990-2000 MHz and 2020-2025 MHz segments 
of the 1990-2025 MHz band. Thus, licensees benefiting from MSS 
licensees' efforts to clear incumbent BAS from the 1990-2025 MHz band 
will be expected to share the costs of this relocation.
    5. However, because the nature and scope of new Fixed and Mobile 
service licensees that will operate in the 1990-2000 MHz and 2020-2025 
MHz bands has not yet been determined, we do not set forth herein a 
comprehensive set of procedures that new Fixed and Mobile service 
providers (including AWS entrants) in these bands must follow to 
relocate incumbent BAS licensees and/or to reimburse MSS licensees that 
will have incurred relocation costs. We will instead consider such 
matters in a separate, future proceeding. This is because the decisions 
we make with respect to these bands may affect the manner by which we 
apply the general cost-sharing principles embodied in the Emerging 
Technologies procedures. For example, it is not clear how we would 
apply our traditional cost-sharing principles were we to use portion of 
the bands to provide relocation spectrum for Nextel's operations in the 
800 MHz band or for MDS licensees in the 2150-2160/62 MHz band, to 
relocate federal government operations, or to provide interference 
separation between new AWS licensees and existing users in adjacent 
spectrum bands. We expect, however, that licensees that ultimately 
benefit from spectrum cleared by MSS shall bear the cost of reimbursing 
MSS licensees for the accrual of that benefit.
    6. Some petitioners also note the complexity that introducing 
different services with potentially different geographic licensing 
schemes will have on cost-sharing in the band. For example, PCIA has 
suggested, inter alia, that we authorize a third-party clearinghouse to 
administer relocation matters. We likewise defer consideration of this 
issue because we have not yet adopted service rules for the Fixed and 
Mobile allocation in the band and, therefore, do not know the 
characteristics of new licensees that will share the 2 GHz band with 
the existing MSS licensees. We will be able to make more meaningful 
decisions with respect to these and other cost-sharing procedures at a 
future time.
    7. Finally, since the actions taken herein include the relocation 
of existing services and the addition of new services within the 
subject frequency bands, there may be some impact on international 
coordination arrangements currently in effect. Therefore, operation in 
the border areas may be constrained pending the completion of 
consultations with foreign administrations, as necessary, and until 
existing agreements are revised and new agreements are developed, as 
appropriate.

Report and Order--BAS

    8. We believe that the core interests that the Commission 
considered when it crafted the MSS Second Report and Order remain 
valid. The band will still host MSS licensees, and the unique, 
integrated nature of BAS has not changed. What has changed is that, in 
light of the decisions the Commission made in the AWS proceeding, we 
can expect additional new licensees to occupy the 1990-2025 MHz band.
    9. Of the 15 megahertz of spectrum that we have reallocated from 
MSS in the 1990-2025 MHz band to support new Fixed and Mobile services, 
two thirds occupies the lower end (1990-2000 MHz) of the band and one 
third is situated at the upper end (2020-2025 MHz). The twenty 
megahertz of spectrum that remains for the four MSS licensees is 
situated in the 2000-2020 MHz portion of the band. Phase I of the 
transition was crafted so that BAS

[[Page 68243]]

licensees would cease use of the frequencies occupied by the existing 
BAS channel 1 (1990-2008 MHz) in order to allow MSS entry into the 
band, but could continue to use channel 2 until there were a 
significant number of MSS entrants so as to require use of the 2008-
2025 MHz band. Now, however, more than half of the Phase I spectrum 
will be used for new Fixed and Mobile applications, such as AWS. 
Because each MSS licensee will be eligible to choose a five megahertz 
Selected Assignment in the revised MSS allocation, only one MSS 
licensee will be able to operate in the portion of the band that 
contains spectrum that will be available under Phase I of the 
relocation plan. In the best case--one in which the first MSS entrant 
selects the lowest portion of the band--the entry of the second MSS 
licensee will trigger Phase II of the relocation plan. If the first MSS 
licensee instead were to choose an assignment at 2005 MHz, 2010 MHz or 
2015 MHz, its entry would immediately trigger Phase II.
    10. We conclude that the practical effect of these changed 
circumstances is that new MSS licensees will begin using Phase II 
spectrum (2008-2025 MHz) sooner than was anticipated in the MSS Second 
Report and Order. Under the revised MSS allocation, no more than one 
MSS licensee may operate in the Phase I spectrum. The second MSS 
licensee seeking to begin operations (assuming the first chooses 2000-
2005 MHz as its Selected Assignment) would initiate the Phase II 
relocation process. In order to meet the milestone requirements for MSS 
licensees--which require, for example, that non-GSO MSS licensees 
construct and launch the first two satellites in their system by 
January 17, 2005--MSS licensees will need to act quickly to deploy 
their systems and it is therefore highly likely that BAS relocation to 
the Phase I channels would not be complete when Phase II starts.
    11. The initiation of the Phase I relocation and quick transition 
to Phase II would undercut one rationale for a two-phase transition--
that the potential to leave substantial amounts of spectrum unused for 
a long period of time would result in inefficient use of valuable 2 GHz 
spectrum. In addition, a two-phase transition was an appropriate means 
of spreading out overall MSS relocation costs when it appeared that MSS 
licensees would begin operations within the Phase I spectrum and would 
not need Phase II spectrum until much later--after their systems had 
grown and matured. Under that scenario, a multi-phase approach would 
reduce initial costs to MSS entrants because a smaller number of BAS 
licensees (those in markets 1-100) would need to be relocated during 
Phase I, and because it is more likely that existing BAS equipment 
could be retuned (versus replaced) in order to operate in 14.5-15 
megahertz-wide channels (versus the final 12.5 megahertz-wide 
channels). This plan also would have minimized the initial costs 
incurred by the Phase I MSS licensees. At that time, MSS system 
proponents were ``at widely differing points in the process of 
preparing to begin service.'' Now, due to impending milestones, the 
difference in time between an ``early'' MSS entrant and a ``later'' MSS 
entrant will necessarily be small.
    12. Were we to retain the two-phase relocation approach, MSS 
licensees would be responsible for the costs of relocating some BAS 
licensees to the Phase I channel plan, plus the costs of relocating all 
BAS licensees to the Phase II channel plan soon after. This situation 
would negate any cost-spreading benefits that were envisioned by a two-
phase approach, and might even increase overall relocation costs over a 
relatively short term. If Phase II of the transition is initiated 
during the time in which Phase I relocations are taking place, BAS 
operations may be on three different band plans, and some BAS licensees 
would face the disruption and down time associated with being twice 
relocated in a short period of time.
    13. The MSS Second Report and Order also adopted a two-phase 
relocation plan because of the ``significant likelihood'' that little 
or no new equipment that would operate in the Phase II channels would 
be manufactured in time for MSS to begin service. Much of the new 
equipment was anticipated to be purchased during Phase II of the 
transition, at which time the Commission predicted that digital BAS 
equipment would ``benefit from more time for design development, 
becoming higher capacity, smaller, less expensive, and less power-
intensive.'' Such developments have taken place. BAS manufacturers now 
offer extensive lines of digital equipment that are designed to operate 
in a variety of channel widths, including the narrow channels 
associated with Phase II. Moreover, digital equipment has been 
available for a sufficient time, in such quantity, and such cost that 
broadcast stations buying new equipment have begun purchasing digital 
ENG equipment. At the time the Commission developed its relocation 
plan, digital equipment for one BAS link was estimated to cost $93,000. 
Recent filings in the docket reflect lower cost projections. SBE now 
estimates relocation costs for a BAS link to be between $20,000 and 
$25,000 (for a receive site) and between $40,000 and $55,000 (for a 
typical ENG vehicle). ICO has derived similar cost estimates, based on 
its separate informal discussions with manufactures of 2 GHz capable 
digital BAS equipment. A survey of the broadcast industry conducted by 
the Ad Hoc 2 GHz Reallocation Committee in September 2003 estimated the 
total population of 2 GHz transmitters and receivers in use at 
television stations in the United States and projected an overall cost 
of $397 million to convert 2 GHz ENG services to digital operation and 
as much as $115 million to convert 2 GHz fixed links to digital 
operation. We note that the BAS relocation cost estimates based on the 
Ad Hoc Survey compare favorably to overall 2 GHz MSS relocation costs 
of up to $3 billion that had been estimated when the MSS allocation was 
initially proposed and support our overall conclusion that BAS 
equipment that can operate in the Phase II frequencies is now both 
readily available and available at a cost that is less than that which 
was anticipated at the time the relocation plan was adopted.
    14. Collectively, all of these factors make the Phase I relocation 
plan no longer practical. We will initiate Phase II of the transition 
by way of this Report and Order. Our decision to initiate Phase II 
immediately is consistent with suggestions made by several commenters, 
including SBE. As a practical matter, because the rapid introduction of 
Phase II that would likely occur were we to retain the existing rules 
would eviscerate the benefits associated with Phase I of the 
transition, this decision simplifies what would otherwise become a 
complex relocation procedure with minimal attendant benefits. For the 
reasons described above, we can no longer conclude maintaining the 
existing two-phase relocation procedures strikes the appropriate 
balance that is ``not unreasonably burdensome upon MSS, while also fair 
to the incumbents.'' Given the subsequent developments in the 1990-2025 
MHz band, our decision to initiate Phase II more effectively meets this 
goal.
    15. The initiation of Phase II will allow us to supersede the 
remaining mandatory negotiation period for Phase I, which was due to 
end on November 13, 2003. Because the rules we adopt herein may not 
take effect before November 13, we will, effective immediately, extend 
the stay of the Phase I mandatory negotiation period that was adopted 
in the Third Suspension Order until such time that the rules become 
effective.

[[Page 68244]]

    16. We will also retain the existing market-segmented approach 
whereby MSS licensees relocate BAS facilities in markets 1-30 before 
they begin operations, markets 31-100 within three years after MSS 
begins operations, and markets 101 and above within five years after 
MSS begins operations. Those parties that asked us to require that all 
BAS markets be relocated at once base their arguments, in large part, 
on the difficulties that will be faced by BAS licensees operating on 
different channel plans. The Commission previously considered these 
arguments in the MSS Second Report and Order, and ultimately concluded 
that a market-segmented approach was best suited to balance the needs 
of the current and future users of the band, notwithstanding the added 
challenges to BAS operations. Nevertheless, we also recognize that by 
initiating Phase II, BAS licensees in markets 31-100 will have to 
operate on five, as opposed to six, channels for up to three years. 
This situation would occur under our current rules if Phase II is 
initiated before Phase I is complete. Although licensees will benefit 
by being certain that they will be relocated to a final band plan in a 
set time period and in a single step, we also recognize that operation 
of five channels will create short-term burdens for some BAS licensees.
    17. There are several factors can serve to mitigate any 
difficulties that may occur in coordinating BAS use in nearby markets 
that operate on different channel plans during the short duration of 
the transition. Although the final channel plan calls for the operation 
of seven channels in a smaller amount of spectrum, the bands of three 
of the new channels will be fully within the bands of three of the 
existing BAS channels, as is illustrated in Table 1 on page 10 of this 
3rd R&O and 3 MO&O. In addition, at least some new BAS equipment is 
expected to be designed so that it can readily be programmed to operate 
on both new and old BAS channels. We also note that use of BAS channels 
8 and 9 is unaffected by the transition. Our decision to initiate Phase 
II relocation procedures will, in some ways, actually serve to reduce 
the difficulties associated with BAS licensees operating on different 
channel plans in different markets at the same time. Because there are 
now only two channel plans for the BAS band, licensees will not have to 
account for the possibility of concurrent BAS use of three separate 
channel plans.
    18. MSS licensees--for whom cost deferral continues to be a 
concern--will continue to occupy former BAS frequencies. We see no 
reason to change our decision to require relocation on a market-
segmented basis because other types of new licensees will also occupy 
the band. As SBE notes, it is unclear whether MSS or new terrestrial 
licensees will be the first to deploy service. Because MSS licensees 
have significant up-front costs and cannot engage in a gradual buildout 
because of the large geographic reach of an MSS signal, a MSS licensee 
that is the first entrant in the band will still be required to pay 
substantial up-front BAS relocation costs and seek pro-rata 
reimbursement from subsequent licensees, without the benefit of having 
had a revenue stream as it builds out its system. A market-
differentiated approach allows for important cost-spreading benefits, 
particularly because the cost deferrals that were anticipated with a 
delay between Phase I and Phase II are no longer available. For 
example, although the Ad Hoc Survey shows that the greatest projected 
relocation costs will occur in markets 1-30, these costs are 
approximately 40 percent of the estimated cost to relocate all markets. 
Those commenters that assert that the market-segmented approach is 
unnecessary incorrectly assume that non-MSS licensees will be the first 
to initiate service in the 1990-2025 MHz band and, as a result, do not 
account for the unique needs of MSS licensees. In addition, the 
introduction of ATC does not alter our conclusion: because MSS 
licensees are obligated to begin satellite service before offering 
terrestrial services, our decision to permit ATC operations will not 
reduce up-front costs or provide an earlier revenue stream to defray 
such costs.
    19. Finally, we find that the other factors that led to the 
adoption of a market-segmented approach are still valid. Because new 
equipment is readily available, one concern that drove the original 
two-phase relocation plan--that additional time would be needed for 
equipment manufactures to develop and build equipment that operated in 
the Phase II channels--is no longer at issue. Nevertheless, we 
recognize that it will still take time to retune or replace existing 
BAS equipment. For example, SBE estimates that it takes one month to 
transition one electronic news gathering transmit and receive system at 
an average television station. To require the relocation of all BAS 
facilities before MSS or other new licensees begin service in the band 
would result in intolerable delays in a process that has already been 
marked by longer-than-anticipated entry of new services into the band. 
Such a course would severely undermine the ability of MSS licensees to 
secure entry into the band. Accordingly, our decision to retain a 
market-segmented approach allows us to maintain a relocation plan that 
is not overly burdensome to MSS entrants but that is still fair to 
incumbents in the band.
    20. The elimination of Phase I requires the slight modification of 
several procedures. First, the restriction on the use of the 2023-2025 
MHz band until all BAS incumbents have been relocated to the final band 
plan is no longer appropriate. This restriction was designed to allow 
BAS licensees to use channel 2 under a channel plan that we will no 
longer be using. Moreover, we have subsequently reallocated the 2023-
2025 MHz band to fixed and mobile services. Next, we re-establish the 
mandatory negotiation period between new licensees and BAS licensees in 
the top 30 markets. As discussed previously, this negotiation period 
was scheduled to end on November 13, 2002, for Phase I, under the terms 
of the Third Suspension Order. Now that we have resolved the issues 
that prompted us to suspend expiration of the mandatory negotiation 
period, we anticipate that MSS licensees will move quickly to resume 
the negotiation process to relocate BAS incumbents in the 1990-2025 MHz 
band. As such, we establish a new mandatory negotiation period between 
MSS licensees and BAS incumbents in markets 1-30 (and for all fixed BAS 
facilities regardless of market, as described in the Memorandum Opinion 
and Order, infra) that ends one year from publication of this Report 
and Order in the Federal Register. This time period is appropriate to 
maintain the balance of equities between MSS licensees and BAS 
incumbents given the amount of time that has already passed since 
adoption of the MSS Second Report and Order, and the upcoming MSS 
milestone requirements. We also modify our rules to make explicit that 
a one-year mandatory negotiation period for BAS markets 31 and above 
starts when the first MSS licensee begins operations. Finally, we 
specify that the relocation procedures will apply to the BAS markets as 
they existed upon adoption of the MSS Second Report and Order--June 27, 
2000. Because these rules are based on a ranking of DMAs, and because 
DMAs and their rank are subject to modification, it is important for us 
to specify a fixed point in time in order to prevent potential 
confusion or frustrate negotiations between parties.
    21. Under our existing rules, BAS licensees in markets 31 and above 
would have had to stop using BAS channel 2 after the Phase II 
negotiations

[[Page 68245]]

began but before MSS operations actually commenced in the 2008-2025 MHz 
band. Because BAS incumbents have not had the benefits of relocation 
under Phase I, we find this requirement is overly burdensome and we 
will ease our rules to allow all BAS licensees to use channels 1 and 2 
(i.e. the 1990-2025 MHz band) while new licensees are negotiating with 
BAS licensees in the top 30 markets. BAS operations on the 1990-2025 
MHz band in these markets must instead end once the first MSS licensee 
begins service.
    22. We decline to consider more comprehensive modifications to our 
relocation procedures. We reject the Joint Commenters' suggestion that 
we explore such revisions as part of a Notice of Proposed Rulemaking as 
unnecessarily burdensome and time consuming. The modified version of 
the existing plan we are adopting serves the goals of our relocation 
policy and also accounts for the special circumstances involved in the 
transition of BAS and introduction of satellite services into the band.

Memorandum Opinion and Order--BAS

    23. Sunset Date. In its Petition for Partial Reconsideration, NAB/
MSTV requests that the sunset date after which new MSS licensees are 
not required to relocate BAS operations be eliminated, or at a minimum, 
revised to take effect ten years after the start of Phase II 
negotiations. We continue to believe that a sunset date is a vital 
component of the Emerging Technologies relocation principles. As stated 
in the MSS Second Report and Order, a sunset date provides a measure of 
certainty for new technology licensees, while giving incumbents time to 
prepare for the eventuality of moving to another frequency band. We 
recognize that the unresolved issues relating to MSS deployment have 
resulted in limited negotiation between BAS and MSS licensees to date. 
Now that we have addressed allocation matters for the 2 GHz MSS band, 
we find that revising a sunset date is appropriate. Further, our 
decision to initiate the Phase II negotiation period by way of this 
Report and Order is similar to our earlier decision to begin the Phase 
I negotiation period after publication of the MSS Second Report and 
Order in the Federal Register, which also began the original sunset 
date. In both cases, the beginning of the negotiation period marks a 
starting point for active negotiations between incumbents and new 
licensees. Accordingly, we are revising the sunset date as follows: a 
new licensee's obligation to relocate an incumbent BAS operator in the 
1990-2025 MHz band will end ten years after the publication of this 
Report and Order in the Federal Register.
    24. Special Considerations for Fixed Facilities. Under the two-
phase relocation policy, BAS licensees would first cease operations on 
the 1990-2008 MHz band once MSS operations begin and, during Phase II, 
would stop using the 2008-2025 MHz band. In their Petition for 
Reconsideration of the MSS Second Report and Order, the Broadcast 
Filers ask that we expand mandatory relocation to those BAS facilities 
operating on channel 1 (1990-2008 MHz) in markets 31 and above that 
cannot be retuned and refiltered to accommodate the Phase I 
channelization. SBE, in a substantially similar request, asks that we 
require the relocation of all non-frequency agile links in both BAS 
channels 1 and 2 (1990-2025 MHz) outside the top 30 markets. This 
situation has the potential to disrupt some BAS operations and uniquely 
burden a limited class of licensees in a manner not considered in the 
MSS Second Report and Order. While the Commission found in the MSS 
Second Report and Order that the number of BAS channels could be 
reduced during the transition, it discussed the aggregate need for 
seven channels in a particular market and not the unique needs of 
incumbent licensees in the 1990-2025 MHz band with facilities that 
cannot operate on the remaining available channels. Many BAS facilities 
that potentially could have been retuned to operate in the interim 
Phase I channels will likely need to be replaced with spectrally 
efficient digital equipment in order to operate in the narrow Phase II 
channels. The elimination of BAS operations in the 1990-2025 MHz band 
can be expected to have a significant effect on fixed BAS facilities, 
such as intercity relays and studio-to-transmitter links. By contrast, 
mobile BAS facilities are generally licensed from band edge to band 
edge (i.e. authorized to operate in any one of the BAS channels) and 
should not suffer such harm. Accordingly, we will expand our relocation 
procedures to require fixed facilities operating on the 1990-2025 MHz 
band in markets 31 and above that are licensed on a primary basis to be 
relocated on the same schedule as other BAS facilities in the top 30 
markets. If a suitable replacement channel cannot be found within a BAS 
market for a BAS channel 1 or 2 facility and the parties are unable to 
agree to an alternative relocation plan as part of the mandatory 
negotiation process, then the MSS licensee will not be obligated to 
replace that facility until such time that it is obligated to relocate 
all BAS facilities in that market. In this situation, the incumbent BAS 
licensee will still be required to cease use of the 1990-2025 MHz band 
once the first new licensee begins operations. The relocation of fixed 
stations on channels 1 and 2 in markets 31 and above will follow the 
same procedures that we established for the relocation of facilities in 
BAS markets 1-30, including a mandatory negotiation period that ends 
one year from publication of this Report and Order in the Federal 
Register.
    25. Subsequently Licensed BAS Stations. In the MSS Second Report 
and Order, the Commission decided that those BAS facilities where the 
receipt date of the initial application was prior to June 27, 2000, the 
adoption date of the MSS Second Report and Order, could continue to 
operate on a primary basis until relocated or the sunset date. Initial 
applications filed after that date have been licensed on a secondary 
basis and, therefore, are not eligible for relocation. We find that the 
relocation eligibility cut-off date remains appropriate and, therefore, 
are denying petitions for reconsideration. None of the subsequent 
decisions to allow new services in the band or pleadings filed in 
response to the MSS Second Report and Order affects the fundamental 
decision to provide for an 85 megahertz BAS allocation. Holders of BAS 
licenses issued after the MSS Second Report and Order have known that 
the Commission proposed to reduce the 2 GHz BAS band to the 85 
megahertz allocation in the 2025-2110 MHz band and have an opportunity 
to consider any additional expenses that may be associated with phased 
relocation as well as the development, availability, and Commission 
approval of digital equipment that can be used in the band.
    26. Phase II BAS Channel Plan. SBE asks us to modify the channel 
plan that was adopted in the MSS Second Report and Order in order to 
provide consistent channel spacing. The use of seven 12 megahertz-wide 
channels will also allow for two 500 kilohertz-wide data return link 
(``DRL'') bands--one at each end of the re-farmed 2025-2110 MHz BAS 
band. These DRL bands would be available for narrowband downstream 
control channels to TVPU transmitters (such as an ENG truck) for 
applications such as transmitter power control. We find merit in this 
proposal. As SBE notes, a prime benefit of this plan is that 
manufacturers will be able to design for uniform bandwidth ratios. 
Moreover, by providing for two 500 kilohertz-wide DRL bands, we can 
promote efficient use of the band by BAS licensees.

[[Page 68246]]

Replacement of the current Phase II channel plan with the revised band 
plan could reduce MSS and other licensees' overall costs to relocate 
BAS. We revise our Phase II channel plan to specify seven 12 megahertz-
wide channels and two 500 kilohertz-wide DRL bands. We will continue to 
permit split channel operation by BAS licensees operating on the Phase 
II channel plan. Although we did not prohibit such operation, and did 
not intend to suggest such a prohibition, we find it beneficial to 
clarify this issue. We also believe that BAS licensees should have the 
ability to continue to operate on channels 3-7 under the ``old'' 
channel plan, if they so elect. We will not prohibit BAS licensees from 
continuing to use the existing channel plan, so long as they restrict 
their use to the 2025-2110 MHz band when they are no longer permitted 
to use the 1990-2025 MHz band segment. Because the continued use of the 
existing channel plan could disrupt BAS licensees that have relocated 
to the Phase II channel plan and lead to the difficulties in 
coordination that SBE describes, we will permit continued use of the 
``old'' channel plan only if all BAS licensees in a market will agree 
to such operation. Moreover, BAS licensees in such markets must operate 
on a secondary basis to other BAS licensees using the Phase II channel 
plan and must be prepared for the potential disruption associated with 
secondary operation, such as the interference likely to be caused by a 
BAS licensee operating on the Phase II channels that enters the market 
to cover a sporting event or breaking news story.
    27. Additional Issues. Because the BAS relocation is segmented by 
market, BAS licensees in one market could be operating on a different 
channel plan than BAS licensees in adjacent markets for part of the 
relocation period. Several parties have asked for clarification of the 
procedures by which BAS operations will be protected from harmful 
interference during and after the transition. SBE describes situations 
in which large market BAS facilities cause interference in adjacent 
smaller markets even while operating within the bounds of the larger 
market, and predicts that BAS licensees operating in the smaller market 
may need to reconfigure their systems in order to eliminate or avoid 
interference. To the extent that such interference is similar to 
interference that small market stations have previously received from 
their large market neighbors, we expect the parties to use the same 
coordination procedures that they have previously employed to resolve 
these issues. Moreover, the Commission previously considered comments 
by SBE and NAB/MSTV regarding the complexities associated with the 
operation of BAS equipment on different channels in different markets, 
and found a simultaneous cut-over to be impractical. While these 
mitigation options may not be available in all cases, we find the 
cooperative procedures of BAS entities will minimize any negative 
effects. We also clarify that an assignment or transfer of control will 
not disqualify an incumbent in the 2 GHz BAS band from relocation 
eligibility so long as the facility is not rendered more expensive to 
relocate as a result.
Report and Order--FS
    28. ATC Inteference to FS. We affirm that TIA TSB 10-F, or its 
successor standard, is an appropriate standard for purposes of 
triggering relocation obligations by new terrestrial (ATC or AWS) 
entrants in the 2 GHz band. Due to the technical similarity of MSS 
terrestrial operations to PCS which operates in nearby bands and for 
which TSB 10-F is well-suited, we conclude that the criteria specified 
in TSB 10-F should be equally suitable to determine where sharing would 
be possible between FS and MSS terrestrial operations in the 2180-2200 
MHz band.
    29. Furthermore, consistent with the approach we adopted for MSS 
satellite operations in the MSS Second Report and Order, where an 
initial MSS licensee of terrestrial ATC operations relocates both links 
of a paired FS microwave link, any subsequent licensee(s) that benefit 
from the relocation will be required to participate in the 
reimbursement of the initial licensee. We decline, however, to adopt 
API's suggestion that we require the initial MSS licensee of ATC to 
relocate both paired FS links and, instead, leave that decision to be 
resolved in the first instance through the relocation negotiation 
process. As a practical matter, we again note that when one path of a 
paired FS link is relocated, it is often necessary due to technical 
considerations to relocate both path links. Consequently, even without 
a mandatory requirement, we believe that both links will, in practice, 
be relocated in most instances. In particular, since the FS transmit/
receive electronics, antenna and tower are often highly integrated, it 
would likely be more expensive and complex to relocate just one link 
due to the additional retuning and retrofitting--above and beyond that 
normally involved with paired links--that would be required to ensure 
seamless operation with the legacy link under the comparable facility 
requirement. The general result is that there should be a clear 
financial and technical incentive for MSS/ATC licensees to relocate 
both paired links as at the same time.
    30. On the other hand, there can be individual situations where it 
is both economically and technically feasible within reason to relocate 
just one of the paired links. To the extent such a situation occurs, we 
do not believe that MSS/ATC licensees should be per se deprived of this 
option by regulation. In any event, FS licensees are ensured of 
comparable facilities under the relocation rules and they have a year 
under these rules to determine if a satisfactory result has been 
achieved. Therefore, we continue to believe that leaving the decision 
of whether to relocate both paired links to the negotiation process is 
the better and more flexible approach.
    31. Self-relocation to leased facilities or alternative media. As 
an initial matter, we affirm that FS incumbents that are relocated 
through the negotiation process are eligible for reimbursement for 
relocation to leased facilities or alternative media. This is 
consistent with the approach we have previously taken in the Emerging 
Technologies and Microwave Cost-Sharing proceedings. We decline, 
however, to extend reimbursement eligibility or automatic reimbursement 
credits as requested by Blooston to FS incumbents that voluntarily 
self-relocate to leased facilities or alternative media. In addition to 
the reasons discussed in the MO&O section with regard to Joint 
Petitioners' and SBC's related requests, we find that a reimbursement 
scheme for voluntary self-relocation was not envisioned by the MSS/FS 
relocation plan and would likely require a clearinghouse to administer 
reimbursement claims. We believe that initiating a plan for reimbursing 
those who voluntarily relocate is not warranted and that a further 
rulemaking at this stage to consider such a plan would only serve to 
delay MSS entry in the 2 GHz band.
    32. Negotiation periods. In response to the AWS Further Notice, API 
and the Association of Public-Safety Communications Officials-
International (APCO) urge that we clarify that each FS incumbent 
approached by an MSS licensee for relocation negotiations would receive 
the benefit of a full two year (or three year for Public Safety) 
negotiation period. We decline to establish such ``rolling'' 
negotiation periods during which each FS incumbent would be allowed a 
full two or three year mandatory negotiation period that would be 
triggered when

[[Page 68247]]

notified by an MSS licensee of its desire to negotiate. Such a scheme 
would result in a large number of unrelated mandatory negotiation 
periods that would tend to further delay the overall relocation process 
in the band. We believe that such discontinuity would be likely to 
create considerable confusion and lack of finality as compared with a 
single uniform negotiation period for all FS incumbents.
Memorandum Opinion and Order--FS
    33. Ten-year sunset period. We do not believe it would be in the 
public interest to delay further the start of the mandatory negotiation 
period for a further uncertain period of time (i.e., until whenever the 
first MSS licensee seeks to negotiate relocation of an FS incumbent). 
Therefore, we are specifying that the date of publication of this 
Report and Order and Memorandum Opinion and Order in the Federal 
Register will be the starting date of the mandatory negotiation period 
between MSS licensees and FS incumbents, as well as the starting date 
of the related ten-year sunset period for relocation of FS licensees by 
MSS licensees in the 2180-2200 MHz band. Similarly, we believe that the 
duration of the mandatory negotiation period should be modified--from 
two years for non-public safety and three years for public safety--to 
one year and two years, respectively. Given the amount of time that has 
already passed since adoption of the MSS Second Report and Order and 
the upcoming MSS milestone requirements, we believe that this 
modification is appropriate to maintain the balance of equities between 
MSS licensees and FS incumbents.
    34. We decline to adopt the Joint Petitioner's request that MSS 
licensees be required to notify FS incumbents of their intention to 
relocate incumbents within 90 days of the start of the mandatory 
negotiation period. Under the relocation plan adopted in MSS Second 
Report and Order, we have placed substantial relocation burdens on MSS 
licensees with respect to FS--in addition to BAS--incumbents in the 2 
GHz band. In order to help balance these substantial burdens, we 
believe that MSS licensees should be afforded maximum flexibility in 
choosing the timing of negotiations during the mandatory negotiation 
period. At the same time, we find that the negotiation starting date 
that we have adopted herein will provide sufficient notice for all FS 
incumbents to factor such relocation into their business plans. 
Therefore, we affirm that MSS licensees may elect to notify FS 
incumbents of their desire to enter into relocation negotiations at any 
time during the mandatory negotiation period and will not be required 
to provide anticipatory notice prior to doing so. Taken together, we 
believe that these actions balance the public interests in providing 
the opportunity for early entry of new MSS operations while maintaining 
the integrity of incumbent FS services in the 2 GHz band.
    35. Assignment or transfer of control. We agree with the Joint 
Petitioners' analysis that our policy on assignment or transfer of 
control of incumbent FS licensees needs to be clarified. Therefore, 
consistent with our finding in the 18 GHz Relocation Proceeding, we 
clarify that an assignment or transfer of control will not disqualify 
an FS incumbent in the 2180-2200 MHz band from relocation eligibility 
so long as the facility is not rendered, as a result, more expensive to 
relocate. On the other hand, FS stations newly authorized after the 
date of publication of the MSS Second Report and Order (i.e., September 
6, 2000) will not be eligible for relocation. In addition, FS stations 
making changes that are otherwise classified as major modifications 
under Sec.  1.929(a) will not be eligible for relocation.
    36. Interference to MSS Operations. Joint Petitioners and Enron 
urge that MSS licensees be obligated to relocate incumbents prior to 
the ten-year sunset whenever the MSS licensee would receive 
interference from incumbent FS operations in addition to whenever 
interference is caused to FS incumbents. Enron further asserts that the 
current provisions ignore half of the interference picture prior to the 
sunset and would allow MSS licensees to engage in ``cherry picking'' 
where they commence operations in order to minimize initial relocation 
expenses during their start-up phase. Petitioners correctly observe 
that, prior to the ten-year sunset for FS relocation in the 2 GHz band, 
we require MSS licensees to relocate FS incumbent licensees after 
coordination and a determination according to TIA TSB-86 that 
interference would be caused to an FS incumbent. Subsequent to the 
sunset, FS microwave licensees will be required to relocate at their 
own expense within six months of presentation of a written demand by a 
MSS licensee that determines it ``will receive harmful interference 
according to TIA TSB-86, or that has received actual harmful 
interference from the FS licensee.''
    37. We decline to require MSS licensees to relocate FS incumbents 
from which they receive--but do not cause--interference prior to the 
end of the sunset period. As a practical matter, we believe that MSS 
licensees will act in their own best interests to maximize the 
marketability of their service when dealing with any interference that 
might be received from FS incumbents. In that regard, nothing in the 
MSS Second Report and Order or our finding herein prohibits an MSS 
licensee from making an individual business decision to resolve 
instances of interference received from an FS incumbent prior to the 
sunset date through a voluntary arrangement with the FS licensee. Such 
an arrangement could include terms for relocating the incumbent FS 
operation. Consequently, rather than making such relocation mandatory, 
we believe that it is better for each MSS licensee to make its own 
business case decision whether to relocate FS incumbents from which it 
may receive interference in light of the quality of service the MSS 
licensee seeks to provide.
    38. Furthermore, as the Commission stated in the MSS Second Report 
and Order with regard to balancing the relocation burdens on each 
service, MSS licensees in the 2 GHz band will face unusually high costs 
in gaining early access to spectrum because of the nationwide nature of 
their service. Requiring MSS licensees to relocate only those FS 
incumbents to which interference is caused prior to the sunset period 
is but one step the Commission has taken to minimize the relocation 
expense for MSS licensees and, thereby, provide their early access to 
the 2 GHz band. Indeed, the Commission found in the MSS Second Report 
and Order that many of the adopted measures will work hardships upon 
the incumbents in order to minimize relocation costs to MSS licensees. 
At the same time, requiring MSS licensees to relocate FS incumbents who 
are caused interference by MSS operations prior to the sunset will 
ensure the integrity and continuity of the services provided to the 
public by incumbent FS licensees during the ten-year sunset period. 
Furthermore, the sunset date for FS relocation serves the public 
interest by providing certainty to the relocation process, prevents MSS 
licensees from being obliged to pay relocation expenses indefinitely, 
and provides incumbents with ample time to either negotiate relocation 
or plan for relocation themselves. Therefore, we affirm that MSS 
licensees are not required to relocate FS incumbents from which they 
receive, but do not cause, interference prior to the sunset date. After 
the sunset date, FS incumbents will be required to relocate at their 
own expense upon demand by a MSS licensee that determines it will 
receive

[[Page 68248]]

harmful interference according to TIA TSB-86 (or TSB-10F in the case of 
ATC operations by MSS licensees), or that has received actual harmful 
interference from the FS licensee. We do not find these provisions to 
be inconsistent as suggested by petitioners. Instead, we find that they 
are complementary toward achieving our underlying goal of crafting a 
relocation process that strikes a fair balance for all parties.
    39. Voluntary self-relocation. Joint petitioners and SBC request 
that we clarify that incumbents in the 2110-2150 MHz or 2165-2200 MHz 
bands that voluntarily self-relocate may participate in 2 GHz band 
relocation cost sharing in similar fashion to the relocation plan we 
adopted for Personal Communications Services (PCS) in a separate 
proceeding. ICO responds that such an approach is inappropriate in this 
proceeding because, unlike the situation in the PCS cost-sharing 
proceeding cited by Joint Petitioners, MSS may not identify their 
selected 2 GHz frequencies until they have placed their first satellite 
in its intended orbit.
    40. We decline to extend cost-sharing eligibility to self-
relocating FS incumbents. Under the plan adopted in the MSS Second 
Report and Order, relocation of incumbent FS microwave links need occur 
only if there is harmful interference. We find that allowing self-
relocating FS incumbents to share in relocation costs would circumvent 
our intention of limiting relocation to those FS incumbents receiving 
interference which cannot be resolved through the coordination process 
and a TSB-86 (or TSB 10-F for terrestrial ATC to FS) interference 
determination. Furthermore, we find that requiring relocation under 
those circumstances would inordinately increase the relocation cost 
burden on MSS licensees.

Final Regulatory Flexibility Analysis

    41. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\1\ an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in each of the following documents: the Further Notice of 
Proposed Rulemaking component of the First Report and Order and Further 
Notice of Proposed Rulemaking \2\ and the Third Notice of Proposed 
Rulemaking component of the Memorandum Opinion and Order and Third 
Notice of Proposed Rulemaking and Order \3\ in ET Docket No 95-18, the 
Notice of Proposed Rulemaking \4\ in IB Docket No. 01-185, and the 
Further Notice of Proposed Rulemaking component of the Memorandum 
Opinion and Order and Further Notice of Proposed Rulemaking \5\ in ET 
Docket No. 00-258. The Commission sought written public comments on the 
proposals in the Further Notice of Proposed Rulemaking, the Third 
Notice of Proposed Rulemaking, the Notice of Proposed Rulemaking and 
the Further Notice of Proposed Rulemaking, including comment on each 
IRFA. This present Final Regulatory Flexibility Analysis (FRFA) 
conforms to the RFA.\6\
---------------------------------------------------------------------------

    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \2\ Amendment of Section 2.106 of the Commission's Rules to 
Allocate Spectrum at 2 GHz for Use by the Mobile-Satellite Service, 
ET Docket No. 95-18, First Report and Order and Further Notice of 
Proposed Rule Making, 12 FCC Rcd 7388 (1997), 62 FR 19509 and 62 FR 
19538, April 22, 1997, respectively.
    \3\ Amendment of Section 2.106 of the Commission's Rules to 
Allocate Spectrum at 2 GHz for Use by the Mobile-Satellite Service, 
ET Docket No. 95-18, Memorandum Opinion and Order and Third Notice 
of Proposed Rulemaking and Order, 13 FCC Rcd 23949 (1998) 63 FR 
69606 and 63 FR 69562, December 17, 1998.
    \4\ Flexibility for Delivery of Communications by Mobile 
Satellite Service Providers in the 2 GHz Band, the L-Band and the 
1.6/2.4 GHz Band, IB Docket No. 01-185, Notice of Proposed 
Rulemaking, 16 FCC Rcd 15532 (2001), 66 FR 47621, September 13, 
2001.
    \5\ Amendment of Part 2 of the Commission's Rules to Allocate 
Spectrum Below 3 GHz for Mobile and Fixed Services to Support the 
Introduction of New Advanced Wireless Services, Including Third 
Generation Wireless Systems, ET Docket No. 00-258, Memorandum 
Opinion and Order and Further Notice of Proposed Rulemaking, 16 FCC 
Rcd 16043 (2001), 66 FR 47591, September 13, 2001.
    \6\ See 5 U.S.C. 604.
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A. Need for, and Objectives of, the Third R&O and Third MO&O

    42. The goal of the Third Report and Order and Third Memorandum 
Opinion and Order is twofold. First, in the Third Report and Order, we 
modify the rules that new 2 GHz Mobile-Satellite Service (MSS) 
licensees are to follow when relocating incumbent Broadcast Auxiliary 
Service (BAS) licensees that currently operate within the 1990-2025 MHz 
band and when relocating Fixed Service (FS) microwave licensees that 
currently operate within the 2180-2200 MHz band. For the 1990-2025 MHz 
band, we immediately initiate Phase II of a planned two-phase 
relocation plan. In conjunction with the beginning of Phase II, we 
restart negotiation periods between MSS licensees and BAS incumbents to 
run for the publication of the Third Report and Order and Third 
Memorandum Opinion and Order in the Federal Register. These actions are 
necessary because the Third Report and Order \7\ in ET Docket No. 00-
285 reallocated the 1990-2025 MHz band to allow for both MSS licensees 
and new fixed and mobile service licensees to occupy the band. The 
allocation of a portion of the 1990-2025 MHz band to new fixed and 
mobile services means that MSS licensees will no longer be the only 
parties involved in the relocation of BAS incumbents that currently 
occupy the band. MSS licensees will operate in a reduced amount of 
spectrum from 2000-2020 MHz, and will now need to relocate BAS 
incumbents from spectrum that was designated as part of Phase II of the 
BAS relocation plan. Accordingly, incumbent BAS licensees must be 
relocated of this Phase II spectrum much more quickly that was 
anticipated when MSS was to occupy the entire 1990-2025 MHz band. It is 
also necessary to reset the negotiation periods to recognize the 
initiation of Phase II, the entry of new licensees into the band, and 
the lack of negotiation that was expected to have taken place between 
MSS and BAS licensees by this time. For the 2180-2200 MHz band, we 
affirm that the TIA TSB 10-F interference standard may be used for 
determining interference from MSS ATC stations to incumbent FS 
operations in the 2 GHz band. This modification was necessary because 
the Order \8\ in IB Docket No. 01-185 allowed MSS licensees to 
incorporate Ancillary Terrestrial Components into their systems. The 
10-F standard is appropriate for the interference analysis of such non-
satellite system components.
---------------------------------------------------------------------------

    \7\ Amendment of Part 2 of the Commission's Rules to Allocate 
Spectrum Below 3 GHz for Mobile and Fixed Services to Support the 
Introduction of New Advanced Wireless Services, Including Third 
Generation Wireless Systems, ET Docket No. 00-258, Third Report and 
Order, Third Notice of Proposed Rulemaking, and Second Memorandum 
Opinion and Order, 18 FCC Rcd 2223 (2003), 68 FR 12015 and 68 FR 
11986, March 13, 2003, respectively.
    \8\ Flexibility for Delivery of Communications by Mobile 
Satellite Service Providers in the 2 GHz Band, the L-Band, and the 
1.6/2.4 GHz Bands, IB Docket No. 01-185, Report and Order and Notice 
of Proposed Rulemaking, 18 FCC Rcd 1962 (2003), 68 FR 33640, June 5, 
2003, Errata (rel. March 7, 2003), appeal pending, AT&T Wireless 
Services, Inc. and Cellco Partnership d/b/a Verizon Wireless v. FCC, 
No. 03-1191 (D.C. Cir. filed July 8, 2003).
---------------------------------------------------------------------------

    43. In the Third Memorandum Opinion and Order, we both grant and 
deny petitions for reconsideration and clarification of the above-
referenced First Report and Order and Further Notice of Proposed 
Rulemaking. With respect to the 1990-2025 MHz band, we grant petitions 
and revise the sunset date (i.e. the date by which new licensees are no 
longer obligated to relocate incumbents in the band);

[[Page 68249]]

require that fixed facilities operating in BAS channels 1 and 2 (1990-
2008 MHz and 2008-2025 MHz, respectively) be relocated prior to the 
initiation of MSS service; and modify the channel plan for the 
frequency band to which BAS operations will be relocated. We otherwise 
deny the petitions relating to the 1990-2025 MHz band and retain our 
previously adopted relocation rules. The changes we adopt are necessary 
to recognize the entry of new fixed and mobile service licensees in the 
1990-2025 MHz band and the lack of negotiations to date between MSS and 
BAS licensees; to provide relief to fixed BAS facilities that would 
otherwise have to cease operation for three years or more; and to 
provide a new BAS channel plan that promotes efficiencies in equipment 
manufacture and operation by incorporating uniform channel sizes. For 
the 2180-2200 MHz band, we adopt a date certain from which FS-MSS 
negotiations and the sunset date run, and clarify that a transfer or 
assignment will not affect a FS licensee's relocation rights. We 
otherwise deny the petitions relating to the 2180-2200 MHz band and 
retain our previously adopted relocation rules. The changes we adopt 
are necessary to provide clarity to the relocation process, and serve 
to reduce the notification requirements for MSS licensees regarding 
initiation of the negotiation period that were required under the 
previous relocation rules.
    44. Collectively, the rules we adopt in the Third Report and Order 
and Third Memorandum Opinion and Order are designed to allow for the 
rapid provision of MSS in the 2 GHz band by resolving outstanding 
issues relating to the relocation of incumbent users in the 1990-2025 
MHz and 2180-2200 MHz bands. These actions are based on our response to 
petitions for reconsideration and clarification filed in the docket, in 
conjunction with the proposals we set forth in the Notice of Proposed 
Rulemaking in IB Docket No. 01-185 and the Further Notice of Proposed 
Rulemaking component of the Memorandum Opinion and Order and Further 
Notice of Proposed Rulemaking in ET Docket No. 00-258.

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

    45. There were no comments filed that specifically addressed the 
rules and policies proposed in the IRFA.

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

    46. 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 rules adopted herein.\9\ The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' \10\ In addition, the term ``small business'' has the 
same meaning as the term ``small business concern'' under the Small 
Business Act.\11\ 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).\12\
---------------------------------------------------------------------------

    \9\ 5 U.S.C. 604(a)(3).
    \10\ 5 U.S.C. 601(6).
    \11\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency, after consultation with 
the Office of Advocacy of the Small Business Administration and 
after opportunity for public comment, establishes one or more 
definitions of such term which are appropriate to the activities of 
the agency and publishes such definition(s) in the Federal 
Register.''
    \12\ 15 U.S.C. 632.
---------------------------------------------------------------------------

    47. Fixed Microwave Services. Microwave services include both 
common carrier \13\ and private-operational fixed \14\ services. The 
SBA has developed a small business size standard for Cellular and Other 
Wireless Telecommunication, of which these fixed microwave services are 
a part, and which consists of all such firms having 1,500 or fewer 
employees.\15\ According to Census Bureau data for 1997, in this 
category there was a total of 977 firms that operated for the entire 
year.\16\ Of this total, 965 firms had employment of 999 or fewer 
employees, and an additional twelve firms had employment of 1,000 
employees or more.\17\ Thus, under this size standard, the majority of 
firms can be considered small.
---------------------------------------------------------------------------

    \13\ 47 CFR 101 et seq. (formerly, part 21 of the Commission's 
Rules).
    \14\ Persons eligible under parts 80 and 90 of the Commission's 
rules can use Private Operational-Fixed Microwave services. See 47 
CFR parts 80 and 90. Stations in this service are called 
operational-fixed to distinguish them from common carrier and public 
fixed stations. Only the licensee may use the operational-fixed 
station, and only for communications related to the licensee's 
commercial, industrial, or safety operations.
    \15\ 13 CFR 121.201, NAICS code 517212 (changed from 513322 in 
October 2002).
    \16\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 5, NAICS code 513322 (issued October 2000).
    \17\ Id. The census data do not provide a more precise estimate 
of the number of firms that have 1,500 or fewer employees; the 
largest category provided is ``Firms with 1,000 employees or more.''
---------------------------------------------------------------------------

    48. Broadcast Auxiliary Service (BAS). BAS involves a variety of 
transmitters, generally used to relay broadcast programming to the 
public (through translator and booster stations) or within the program 
distribution chain (from a remote news gathering unit back to the 
stations). The Commission has not developed a definition of small 
entities specific to broadcast auxiliary licensees. The U.S. Small 
Business Administration (SBA) has developed small business size 
standards, as follows: (1) For TV BAS, we will use the size standard 
for Television Broadcasting, which consists of all such companies 
having annual receipts of no more than $12.0 million;\18\ (2) For Aural 
BAS, we will use the size standard for Radio Stations, which consists 
of all such companies having annual receipts of no more than $6 
million;\19\ (3) For Remote Pickup BAS we will use the small business 
size standard for Television Broadcasting when used by a TV station and 
that for Radio Stations when used by such a station.
---------------------------------------------------------------------------

    \18\ 13 CFR 121.201, NAICS code 515120.
    \19\ Id. NAICS code 515112.
---------------------------------------------------------------------------

    49. According to Commission staff review of BIA Publications, Inc. 
Master Access Television Analyzer Database as of May 16, 2003, about 
814 of the 1,220 commercial television stations in the United States 
had revenues of $12 million or less. We note, however, that, in 
assessing whether a business concern qualifies as small under the above 
definition, business (control) affiliations \20\ must be included.\21\ 
Our estimate, therefore, likely overstates the number of small entities 
that might be affected by our action, because the revenue figure on 
which it is based does not include or aggregate revenues from 
affiliated companies. There are also 2,127 low power television 
stations (LPTV).\22\ Given the nature of this service, we will presume 
that all LPTV licensees qualify as small entities under the SBA size 
standard. According to Commission staff review of BIA Publications, 
Inc., Master Access Radio Analyzer Database, as of May 16, 2003, about 
10,427 of the 10,945 commercial radio stations in the United States had 
revenue of $6 million or less. We note,

[[Page 68250]]

however, that many radio stations are affiliated with much larger 
corporations with much higher revenue, and, that in assessing whether a 
business concern qualifies as small under the above definition, such 
business (control) affiliations \23\ are included.\24\ Our estimate, 
therefore, likely overstates the number of small businesses that might 
be affected by our action.
---------------------------------------------------------------------------

    \20\ ``Concerns are affiliates of each other when one concern 
controls or has the power to control the other or a third party or 
parties controls or has to power to control both.'' 13 CFR 
121.103(a)(1).
    \21\ ``SBA counts the receipts or employees of the concern whose 
size is at issue and those of all its domestic concern's size.'' 13 
CFR 121.103(a)(4).
    \22\ FCC News Release, ``Broadcast Station Totals as of 
September 30, 2002'' (Nov. 6, 2002).
    \23\ ``Concerns are affiliates of each other when one concern 
controls or has the power to control the other, or a third party or 
parties controls or has the power to control both.'' 13 CFR 
121.103(a)(1).
    \24\ ``SBA counts the receipts or employees of the concern whose 
size is at issue and those of all its domestic and foreign 
affiliates, regardless of whether the affiliates are organized for 
profit, in determining the concern's size.'' 13 CFR 121.103(a)(4).
---------------------------------------------------------------------------

    50. Cable Antenna Relay Service (CARS). CARS includes transmitters 
generally used to relay cable programming within cable television 
system distribution systems. The SBA has developed a small business 
size standard for Cable and other Program Distribution, which consists 
of all such companies having annual receipts of no more than $12.5 
million. According to Census Bureau data for 1997, there were 1,311 
firms within the industry category Cable and Other Program 
Distribution, total, that operated for the entire year.\25\ Of this 
total, 1,180 firms had annual receipts of under $10 million, and an 
additional 52 firms had receipts of $10 million to $24,999,999.00.\26\ 
Thus, under this standard, the majority of firms can be considered 
small.
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    \25\ 13 CFR 121.201, NAICS code 517510 (changed from 513220 in 
October 2002).
    \26\ Id.
---------------------------------------------------------------------------

    51. Geostationary, Non-Geostationary Orbit, Fixed Satellite, or 
Mobile Satellite Service Operators (including 2 GHz MSS systems). The 
Commission has not developed a definition of small entities applicable 
to geostationary or non-geostationary orbit, fixed-satellite or mobile-
satellite service operators. The SBA has developed a small business 
size standard for Satellite Telecommunications Carriers, which consists 
of all such companies having $12.5 million or less in annual 
receipts.\27\ According to Census Bureau data for 1997, there were 324 
firms that operated for the entire year.\28\ Of this total, 273 firms 
had annual receipts under $10 million, and an additional twenty-four 
firms had annual receipts of $10 million to $24,999,990.\29\ Thus, 
under this size standard, the majority of firms can be considered 
small.
---------------------------------------------------------------------------

    \27\ 13 CFR 121.201, NAICS code 517410 (changed from 513340 in 
October 2002).
    \28\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Receipt Size of Firms Subject to Federal Income Tax: 
1997,'' Table 4, NAICS code 513340 (issued October 2000).
    \29\ Id.
---------------------------------------------------------------------------

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

    52. The Third Report and Order and Third Memorandum Opinion and 
Order modifies relocation rules that were originally adopted in the 
Second Report and Order and Second Memorandum Opinion and Order in this 
docket. To a large degree, the item contains no new reporting, 
recordkeeping, or other compliance requirements. For example, we retain 
the requirement that all BAS operations in markets 1-30 be relocated 
prior to the initiation of MSS in the band; decline to change the 
qualifications by which a BAS licensee is eligible for relocation; 
continue to permit BAS licensees to operate on a 17-megahertz wide 
channel plan within the reduced BAS spectrum band if all licensees 
within a market so choose; and do not alter the relocation process for 
FS licensees (such as adding provisions to permit self-relocation or 
adopting ``rolling'' negotiation periods). Because we previously 
addressed the reporting, recordkeeping, and other compliance 
requirements associated with these matters as part of the FRFA adopted 
in the Second Report and Order and Second Memorandum Opinion and Order, 
we incorporate by reference those aspects of the reporting and other 
compliance requirements that remain unchanged.
    53. Our decision, however, modifies several dates associated with 
the relocation of BAS and FS incumbents. Specifically, the duration of 
the mandatory negotiation period for BAS markets 1-30, FS stations, and 
the sunset date are all based on the publication date of the item in 
the Federal Register. We previously froze the mandatory negotiation 
period for BAS relocation--originally scheduled to end on September 6, 
2003--because unresolved issues relating to MSS deployment had limited 
the negotiations between MSS and BAS licensees.\30\ Because the Third 
Report and Order and Third Memorandum Opinion and Order adopts rules 
and procedures that will allow the relocation of BAS and FS licensees 
to continue, we establish new dates associated with relocation of BAS 
and FS incumbents. Because the new dates are designed to afford parties 
that are involved in the relocation with time frames that are 
substantially similar to those that were previously adopted, the change 
in dates will have no adverse impact on all parties involved in the 
relocation, including smaller entities.
---------------------------------------------------------------------------

    \30\ Amendment of Section 2.106 of the Commission's Rules to 
Allocate Spectrum at 2 GHz for use by the Mobile-Satellite Service, 
ET Docket No. 95-18, Order, 17 FCC Rcd 15141 (2002).
---------------------------------------------------------------------------

    54. The initiation of Phase II of the BAS relocation and the 
requirement that all fixed BAS stations operating on channels 1 and 2 
be relocated prior to the initiation of MSS operations both have the 
potential to affect the compliance burdens associated with relocation. 
The initiation of Phase II of the relocation process will reduce the 
overall relocation burdens for MSS by eliminating the expense and 
reporting requirements that are associated with Phase I. There will be 
no disruption and no uncertainty for BAS licensees because the rules 
adopted herein provide sufficient time for fixed facilities to relocate 
without losing their ability to operate on their existing primary 
status.

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

    55. The RFA requires an agency to describe any significant 
alternatives that it has considered in developing its 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.''\31\
---------------------------------------------------------------------------

    \31\ 5 U.S.C. 603(c)(1)-(c)(4).
---------------------------------------------------------------------------

    56. In response to Petitions for Reconsideration of the Second 
Report and Order and Second Memorandum Opinion and Order, we concluded 
that the temporary loss of BAS channels 1 and 2 during relocation would 
have the potential to disrupt fixed BAS operations and uniquely burden 
licensees. For example, loss of the studio-to-transmitter links would 
likely necessitate television broadcast stations to obtain alternate 
facilities to transport their signal to their transmitter for 
broadcast. Otherwise, these licensees would have to wait for as many as 
five years before their facilities would be relocated. Because we are 
reluctant to impose such a delay which would unacceptably jeopardize 
television operations that rely on fixed BAS facilities on channels 1 
and 2, we decline to exempt smaller entities from

[[Page 68251]]

the rule requiring the rapid relocation of these facilities.
    57. We retained the general rule that staggers the relocation of 
BAS facilities based on a market-size approach. Under this rule, the 
burden of MSS entrants to relocate BAS facilities is staggered over 
time, based on the size of a particular BAS market. Unlike mobile BAS 
operations, which can typically be tuned to operate on different 
channels, fixed BAS facilities are tuned to a single channel. Because 
of the importance of these fixed channels and because the temporary 
loss of channels 1 and 2 could uniquely impair operations for BAS 
licensees with fixed facilities tuned to these channels, we concluded 
that such facilities should be relocated without delay. We also 
rejected proposals that would have MSS relocate all BAS facilities, 
regardless of their fixed or mobile status or the size of market in 
which they operate. Although this action would have provided the same 
relief for fixed BAS facilities operating on channels 1 and 2, a 
wholesale front-loaded relocation of all BAS facilities would have 
imposed significant burdens on MSS licensees, including those MSS 
licensees that are small entities.

F. Report to Congress

    58. The Commission will send a copy of the Third Report and Order 
and Third Memorandum Opinion and Order including this FRFA, in a report 
to be sent to Congress pursuant to the Congressional Review Act.\32\ In 
addition, the Commission will send a copy of the Second Report and 
Order, including this FRFA, to the Chief Counsel for Advocacy of the 
SBA. A copy of this Third Report and Order and Third Memorandum Opinion 
and Order and FRFA (or summaries thereof) will also be published in the 
Federal Register.\33\
---------------------------------------------------------------------------

    \32\ See 5 U.S.C. 801(a)(1)(A).
    \33\ See 5 U.S.C. 604(b).
---------------------------------------------------------------------------

Ordering Clauses
    59. Pursuant to sections 4(i), 7, 302, 303(c), 303(e), 303(f), 
303(g) and 303(r) of the Communications Act of 1934, as amended, 47 
U.S.C. sections 154(i), 157, 302, 303(c), 303(e), 303(f), 303(g) and 
303(r), this Third Report and Order and Third Memorandum Opinion and 
Order IS ADOPTED and that parts 2, 74, 78, and 101 of the Commission's 
Rules ARE AMENDED as specified in rule changes, effective January 7, 
2004.
    60. 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 553(d) of the Administrative Procedure Act, 5 U.S.C. 
553(d), the expiration date of the initial two-year mandatory BAS 
negotiation period for Phase I set forth in the Second Report and Order 
in ET Docket No. 95-18 IS HEREBY SUSPENDED until the effective date of 
the rules adopted in this Third Report and Order and Third Memorandum 
Opinion and Order, effective immediately upon release of this order, 
consistent with the terms discussed in the order.
    61. Pursuant to sections 4(i), 302, 303(e), 303(f), 303(g), 303(r) 
and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 302, 303(e), 303(f), 303(g) and 405, that the petitions for 
reconsideration in ET Docket No. 95-18 filed by Joint Petitioners 
(CICC, FWCC, et al), Broadcast Filers (Cosmos Broadcasting Corp., Cox 
Broadcasting, et al), Society of Broadcast Engineers, Inc., and 
National Association of Broadcasters and the Association for Maximum 
Service Television, Inc., ARE GRANTED to the extent discussed in the 
Third Report and Order and Third Memorandum Opinion and Order.
    62. The petitions for reconsideration in ET Docket No. 95-18 filed 
by Joint Petitioners (CICC, FWCC, et al) and Celsat America, Inc. ARE 
DISMISSED AS MOOT.
    63. The petitions for reconsideration in ET Docket No. 95-18 filed 
by Joint Petitioners (CICC, FWCC, et al), Enron North America Corp., 
SBC Communications, Inc., Broadcast Filers (Cosmos Broadcasting Corp., 
Cox Broadcasting, et al), Society of Broadcast Engineers, Inc., and 
National Association of Broadcasters and the Association for Maximum 
Service Television, Inc., ARE DENIED in all other respects.
    64. The Consumer and Governmental Affairs Bureau, Reference 
Information Center, SHALL SEND a copy of this Third Report and Order 
and Third Memorandum Opinion and Order, including the Final Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
Small Business Administration.
    65. The proceeding in ET Docket No. 95-18 IS TERMINATED.

List of Subjects

47 CFR Part 2

    Communications equipment, Radio.

47 CFR Part 74 and 101

    Radio.

47 CFR Part 78

    Cable television, 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 2, 74, 78 and 101 as follows:

PART 2--FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL 
RULES AND REGULATIONS

0
1. The authority citation for part 2 continues to read as follows:

    Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise 
noted.


0
2. Section 2.106, the Table of Frequency Allocations, is amended by 
revising footnotes NG156, NG168, NG177 and NG178 in the list of non-
Federal Government (NG) Footnotes to read as follows:


Sec.  2.106  Table of Frequency Allocations.

* * * * *
Non-Federal Government (NG) Footnotes
* * * * *
    NG156 The band 2000-2020 MHz is also allocated to the fixed and 
mobile services on a primary basis for facilities where the receipt 
date of the initial application was prior to June 27, 2000, and on a 
secondary basis for all other initial applications. Not later than 
December 9, 2013, the band 2000-2020 MHz is allocated to the fixed and 
mobile services on a secondary basis.
* * * * *
    NG168 The band 2180-2200 MHz is also allocated to the fixed and 
mobile services on a primary basis for facilities where the receipt 
date of the initial application was prior to January 16, 1992, and on a 
secondary basis for all other initial applications. Not later than 
December 9, 2013, the band 2180-2200 MHz is allocated to the fixed and 
mobile services on a secondary basis.
* * * * *
    NG177 In the bands 1990-2000 MHz and 2020-2025 MHz, where the 
receipt date of the initial application for facilities in the fixed and 
mobile services was prior to June 27, 2000, said facilities shall 
operate on a primary basis and all later-applied-for facilities shall 
operate on a secondary basis to any service licensed pursuant to the 
allocation adopted in FCC 03-16, 68 FR 11986, March 13, 2003 
(``Advanced Wireless Services''). Not later than December 9, 2013, all 
such facilities in the bands 1990-2000 MHz and 2020-

[[Page 68252]]

2025 MHz shall operate on a secondary basis to Advanced Wireless 
Services.
    NG178 In the band 2165-2180 MHz, where the receipt date of the 
initial application for facilities in the fixed and mobile services was 
prior to January 16, 1992, said facilities shall operate on a primary 
basis and all later-applied-for facilities shall operate on a secondary 
basis to any service licensed pursuant to the allocation adopted in FCC 
03-16, 68 FR 11986, March 13, 2003 (``Advanced Wireless Services''). 
Not later than December 9, 2013, all such facilities in the band 2165-
2180 MHz shall operate on a secondary basis to Advanced Wireless 
Services.
* * * * *

PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER 
PROGRAM DISTRIBUTIONAL SERVICES

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

    Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.


0
4. Section 74.602 is amended by revising paragraph (a)(3)(i), and by 
revising and redesignating paragraph (a)(3)(ii) as (a)(3)(iii) and by 
adding a new paragraph (a)(3)(ii) and by removing and reserving 
paragraph (a)(4) to read as follows:


Sec.  74.602  Frequency assignment.

    (a) * * *
    (3)(i) After January 7, 2004, stations may adhere to the channel 
plan specified in paragraph (a) of this section, or the following 
channel plan in Band A:

Channel A1r--2025.5-2037.5 MHz
Channel A2r--2037.5-2049.5 MHz
Channel A3r--2049.5-2061.5 MHz
Channel A4--2061.5-2073.5 MHz
Channel A5r--2073.5-2085.5 MHz
Channel A6r--2085.5-2097.5 MHz
Channel A7r--2097.5-2109.5 MHz

    (ii) Stations adhering to the channel plan specified in paragraph 
(a)(3)(i) of this section may also use the following 40 data return 
link (DRL) channels to facilitate their operations in the 2025.5-2109.5 
MHz band:

Lower band DRL channels

2025.000-2025.025 MHz
2025.025-2025.050 MHz
2025.050-2025.075 MHz
2025.075-2025.100 MHz
2025.100-2025.125 MHz
2025.125-2025.150 MHz
2025.150-2025.175 MHz
2025.175-2025.200 MHz
2025.200-2025.225 MHz
2025.225-2025.250 MHz
2025.250-2025.275 MHz
2025.275-2025.300 MHz
2025.300-2025.325 MHz
2025.325-2025.350 MHz
2025.350-2025.375 MHz
2025.375-2025.400 MHz
2025.400-2025.425 MHz
2025.425-2025.450 MHz
2025.450-2025.475 MHz
2025.475-2025.500 MHz

Upper band DRL channels

2109.500-2109.525 MHz
2109.525-2109.550 MHz
2109.550-2109.575 MHz
2109.575-2109.600 MHz
2109.600-2109.625 MHz
2109.625-2109.650 MHz
2109.650-2109.675 MHz
2109.675-2109.700 MHz
2109.700-2109.725 MHz
2109.725-2109.750 MHz
2109.750-2109.775 MHz
2109.775-2109.800 MHz
2109.800-2109.825 MHz
2109.825-2109.850 MHz
2109.850-2109.875 MHz
2109.875-2109.900 MHz
2109.900-2109.925 MHz
2109.925-2109.950 MHz
2109.950-2109.975 MHz
2109.975-2110.000 MHz

    (iii) Broadcast Auxiliary Service, Cable Television Remote Pickup 
Service, and Local Television Transmission Service licensees in Nielsen 
Designated Market Areas (DMAs) 1-30, as such DMAs existed on September 
6, 2000, will be required to use the Band A channel plan in paragraph 
(a)(3)(i) of this section after completion of relocation by an Emerging 
Technologies licensee in accorance with Sec.  74.690 of this chapter. 
Licensees declining relocation and licensees in Nielsen DMAs 31-210, as 
such DMAs existed on September 6, 2000, will be required to discontinue 
use of the 1990-2025 MHz on the date that the first Mobile-Satellite 
Service licensee begins operations in the 2000-2020 MHz band.
    (4) [reserved]
* * * * *

0
5. Section 74.690 is amended by revising paragraphs (a), (b), and (e) 
to read as follows:


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

    (a) Licensees proposing to implement Mobile-Satellite Services 
using emerging technologies (MSS Licensees) may negotiate with 
Broadcast Auxiliary Service licensees operating on a primary basis and 
fixed service licensees operating on a primary basis in the 1990-2025 
MHz band (Existing Licensees) for the purpose of agreeing to terms 
under which the Existing Licensees would relocate their operations to 
the 2025-2110 MHz band, to other authorized bands, or to other media; 
or, alternatively, would discontinue the use of the 1990-2025 MHz band 
when MSS operations commence in the 2000-2020 MHz band.
    (b) An Existing Licensee in the 1990-2025 MHz band allocated for 
licensed emerging technology services will maintain primary status in 
the band until the Existing Licensee's operations are relocated by a 
MSS Licensee or are discontinued under the terms of paragraph (a) of 
this section.
* * * * *
    (e) Subject to the terms of this paragraph (e), the relocation of 
Existing Licensees will be carried out in the following manner:
    (1) Existing Licensees and MSS licensees may negotiate individually 
or collectively for relocation of Existing Licensees to one of the 
channel plans specified in Sec.  74.602(a)(3) of this chapter. Parties 
may not decline to negotiate, though Existing Licensees may decline to 
be relocated.
    (i) MSS licensees must relocate all Existing Licensees in Nielsen 
Designated Market Areas (DMAs) 1-30, as such DMAs existed on September 
6, 2000, and all fixed stations operating in the 1990-2025 MHz band on 
a primary basis, prior to beginning operations, except those Existing 
Licensees that decline relocation. Such relocation negotiations shall 
be conducted as ``mandatory negotiations,'' as that term is used in 
Sec.  101.73 of this chapter. If these parties are unable to reach a 
negotiated agreement, MSS Licensees may involuntarily relocate such 
Existing Licensees and fixed stations after December 8, 2004.
    (ii) On the date that the first MSS licensee begins operations in 
the 2000-2020 MHz band, Broadcast Auxiliary Service licensees and fixed 
service licensees that are not operating on the new channel plan 
specified in Sec.  74.602(a)(3) of this part must discontinue use of 
all operations in the 1990-2025 MHz band.
    (iii) On the date that the first MSS licensee begins operations in 
the 2000-2020 MHz band, a one-year mandatory negotiation period begins 
between MSS licensees and Existing Licensees in Nielsen DMAs 31-210, as 
such DMAs existed on September 6, 2000. After the end of the mandatory 
negotiation period, MSS licensees may involuntary relocate any Existing 
Licensees with which they have been unable to reach a negotiated 
agreement. As described elsewhere in this paragraph (e), MSS Licensees 
are obligated to relocate these Existing Licensees within the specified 
three- and five-year time periods.
    (2) Before negotiating with MSS licensees, Existing Licensees in 
Nielsen

[[Page 68253]]

Designated Market Areas where there is a BAS frequency coordinator must 
coordinate and select a band plan for the market area. If an Existing 
Licensee wishes to operate in the 2025-2110 MHz band using the channels 
A03-A07 as specified in the Table in Sec.  74.602(a) of this part, then 
all licensees within that Existing Licensee's market must agree to such 
operation and all must operate on a secondary basis to any licensee 
operating on the channel plan specified in Sec.  74.602(a)(3) of this 
part. All negotiations must produce solutions that adhere to the market 
area's band plan.
    (3) [reserved]
    (4) [reserved]
    (5) As of the date the first MSS licensee begins operations in the 
1990-2025 MHz band, MSS Licensees must relocate Existing Licensees in 
DMAs 31-100, as they existed as of September 6, 2000, within three 
years, and in the remaining DMAs, as they existed as of September 6, 
2000, within five years.
    (6) On December 9, 2013, all Existing Licensees will become 
secondary in the 1990-2025 MHz band. Upon written demand by any MSS 
licensee, Existing Licensees must cease operations in the 1990-2025 MHz 
band within six months.

PART 78--CABLE TELEVISION RELAY SERVICE

0
6. 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
7. Section 78.18 is amended by revising paragraph (a)(6)(ii) to read as 
follows:


Sec.  78.18  Frequency assignments.

    (a) * * *
    (6) * * *
    (ii) After a licensee has been relocated in accordance with the 
provisions of Sec.  78.40, operations will be in the band 2025-2110 
MHz. The following channel plan will apply, subject to the provisions 
of Sec.  74.604 of this part:

Frequency Band (MHz)

2025.5-2037.5
2037.5-2049.5
2049.5-2061.5
2061.5-2073.5
2073.5-2085.5
2085.5-2097.5
2097.5-2109.5
* * * * *

0
8. Section 78.40 is amended by revising 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) Subject to the terms of this paragraph (f), the relocation of 
Existing Licensees will be carried out in the following manner:
    (1) Existing Licensees and MSS licensees may negotiate individually 
or collectively for relocation of Existing Licensees to one of the 
channel plans specified in Sec.  74.602(a)(3) of this part. Parties may 
not decline to negotiate, though Existing Licensees may decline to be 
relocated.
    (i) MSS licensees must relocate all Existing Licensees in Nielsen 
Designated Market Areas (DMAs) 1-30, as such DMAs existed on September 
6, 2000, prior to beginning operations, except those Existing Licensees 
that decline relocation. Such relocation negotiations shall be 
conducted as ``mandatory negotiations,'' as that term is used in Sec.  
101.73 of this chapter. If these parties are unable to reach a 
negotiated agreement, MSS Licensees may involuntarily relocate such 
Existing Licensees after December 8, 2004.
    (ii) On the date that the first MSS licensee begins operations in 
the 2000-2020 MHz band, Broadcast Auxiliary Service licensees and fixed 
service licensees that are not operating on the new channel plan 
specified Sec.  78.18(a)(6)(ii) must discontinue use of all operations 
in the 1990-2025 MHz band.
    (iii) On the date that the first MSS licensee begins operations in 
the 2000-2020 MHz band, a one-year mandatory negotiation period begins 
between MSS licensees and Existing Licensees in DMAs 31-210, as such 
DMAs existed on September 6, 2000. After the end of the mandatory 
negotiation period, MSS licensees may involuntary relocate any Existing 
Licensees with which they have been unable to reach a negotiated 
agreement. As described elsewhere in this paragraph (f), MSS Licensees 
are obligated to relocate these Existing Licensees within the specified 
three- and five-year time periods.
    (2) Before negotiating with MSS licensees, Existing Licensees in 
Nielsen Designated Market Areas where there is a BAS frequency 
coordinator must coordinate and select a band plan for the market area. 
If an Existing Licensee wishes to operate in the 2025-2110 MHz band 
using the channel plan specified in Sec.  78.18(a)(6)(i) of this part, 
then all licensees within that Existing Licensee's market must agree to 
such operation and all must operate on a secondary basis to any 
licensee operating on the channel plan specified in Sec.  
78.18(a)(6)(ii). All negotiations must produce solutions that adhere to 
the market area's band plan.
    (3) [reserved]
    (4) [reserved]
    (5) As of the date the first MSS Licensee begins operations in the 
1990-2025 MHz band, MSS Licensees must relocate Existing Licensees in 
DMAs 31-100, as they existed as of September 6, 2000, within three 
years, and in the remaining DMAs, as they existed as of September 6, 
2000, within five years.
    (6) On December 9, 2013, all Existing Licensees will become 
secondary in the 1990-2025 MHz band. Upon written demand by any MSS 
Licensee, Existing Licensees must cease operations in the 1990-2025 MHz 
band within six months.

0
9. Section 78.103(e), the table is amended by revising footnote 1 to 
read as follows:


Sec.  78.103  Emissions and emission limitations.

* * * * *
    \1\ After a licensee has been relocated in accordance with Sec.  
78.40, the maximum authorized bandwidth in the frequency band 2025 
to 2010 MHz will be 12 megahertz.

PART 101--FIXED MICROWAVE SERVICES

0
The authority citation for part 101 continues to read as follows:

    Authority: 47 U.S.C. 154, 303.


0
10. Section 101.69 is amended by revising paragraph (d) to read as 
follows:


Sec.  101.69  Transition of the 1850-1990 MHz, 2110-2150 MHz, and 2160-
2200 MHz bands from the fixed microwave services to personal 
communications services and emerging technologies.

* * * * *
    (d) Relocation of FMS licensees in the 2180-2200 MHz band by 
Mobile-Satellite Service (MSS) licensees, including MSS licensees 
providing Ancillary Terrestrial Component (ATC) service, will be 
subject to mandatory negotiations only. Mandatory negotiation periods 
are defined as follows:
    (1) The mandatory negotiation period for non-public safety 
incumbents will end December 8, 2004.
    (2) The mandatory negotiation period for public safety incumbents 
will end December 8, 2005.

0
11. Section 101.73 is amended by revising paragraph (d) introductory 
text to read as follows:


Sec.  101.73  Mandatory negotiations.

* * * * *
    (d) Provisions for Relocation of Fixed Microwave Licensees in the 
2180-2200

[[Page 68254]]

MHz band. Notwithstanding references to voluntary negotiation periods 
elsewhere in this section, relocation of FMS licensees in the 2180-2200 
MHz band by Mobile-Satellite Service (MSS) licensees (including MSS 
licensees providing Ancillary Terrestrial Component ``ATC'' service) 
will be subject to mandatory negotiations only. Mandatory negotiations 
will commence on January 7, 2004. Mandatory negotiations will be 
conducted with the goal of providing the fixed microwave licensee with 
comparable facilities, defined as facilities possessing the following 
characteristics:
* * * * *

0
12. Section 101.79 is amended by revising the section heading and 
paragraph (a) to read as follows:


Sec.  101.79  Sunset provisions for licensees in the 1850-1990 MHz, 
2110-2150 MHz, and 2160-2200 MHz bands.

    (a) FMS licensees will maintain primary status in the 1850-1990 
MHz, 2110-2150 MHz, and 2160-2200 MHz bands unless and until an ET 
(including MSS/ATC) licensee requires use of the spectrum. ET licensees 
are not required to pay relocation costs after the relocation rules 
sunset (i.e. ten years after the voluntary period begins for the first 
ET licensees in the service; or, in the case of the 2180-2200 MHz band, 
ten years after the mandatory negotiation period begins for MSS/ATC 
licensees in the service). Once the relocation rules sunset, an ET 
licensee may require the incumbent to cease operations, provided that 
the ET licensee intends to turn on a system within interference range 
of the incumbent, as determined by TIA Bulletin 10-F (for terrestrial-
to-terrestrial situations) or TIA Bulletin TSB-86 (for MSS satellite-
to-terrestrial situations) or any standard successor. ET licensee 
notification to the affected FMS licensee must be in writing and must 
provide the incumbent with no less than six months to vacate the 
spectrum. After the six-month notice period has expired, the FMS 
licensee must turn its license back into the Commission, unless the 
parties have entered into an agreement which allows the FMS licensee to 
continue to operate on a mutually agreed upon basis.
* * * * *

0
13. Section 101.99 is redesignated as Sec.  101.82.

[FR Doc. 03-30310 Filed 12-5-03; 8:45 am]
BILLING CODE 6712-01-P