[Federal Register Volume 69, Number 247 (Monday, December 27, 2004)]
[Proposed Rules]
[Pages 77560-77568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27790]



  Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / 
Proposed Rules  

[[Page 77560]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 2, 20, 21, 22, 24, 25, 27, 74, 78, 80, 87, 90, 95, 
97, and 101

[WT Docket No. 00-230; FCC 04-167]


Promoting Efficient Use of Spectrum Through Elimination of 
Barriers to the Development of Secondary Markets

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on additional 
policies that could facilitate the development of advanced 
technologies, such as cognitive radio and ``opportunistic use'' 
devices. In particular, we request comment on whether additional 
revisions should be made to the spectrum leasing and private commons 
regulatory models, or whether other types of arrangements can better 
enable more users to gain spectrum access.

DATES: Comments by the public on the proposals set forth in the Second 
Further Notice of Proposed Rulemaking (Second Further Notice) are due 
January 18, 2005. Reply comments are due February 17, 2005.

FOR FURTHER INFORMATION CONTACT: Paul Murray, Wireless 
Telecommunications Bureau, at (202) 418-7240, or via the Internet at 
[email protected]; for additional information concerning the 
information collections contained in this document, contact Judith-B. 
Herman at (202) 418-0214, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Further Notice portion of the Commission's Second Report and Order, 
Order on Reconsideration, and Second Further Notice of Proposed 
Rulemaking, FCC 04-167, in WT Docket No. 00-230, adopted on July 8, 
2004, and released on September 2, 2004. Contemporaneous with this 
document, the Commission issues a Second Report and Order and Order on 
Reconsideration (published elsewhere in this publication). The full 
text of this document is available for inspection and copying during 
normal business hours in the FCC Reference Information Center, 445 12th 
Street, SW., Washington, DC 20554. The complete text may be purchased 
from the FCC's copy contractor, Qualex International, 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554. The full text may also be 
downloaded at: http://www.fcc.gov. Alternative formats are available to 
persons with disabilities by contacting Brian Millin at (202) 418-7426 
or TTY (202) 418-7365 or at [email protected].

Synopsis of the Second Further Notice

I. Introduction and Background

    1. In the Second Report and Order, which is set forth elsewhere in 
this publication, we provide examples of the ways in which advanced 
technologies, such as opportunistic devices, may be utilized within the 
context of current spectrum leasing policies. We observe that these do 
not comprise an exhaustive list of all permissible ways in which these 
advanced technologies may be utilized, but instead help illustrate the 
relevant regulatory issues before the Commission. We recognize that, 
due to the transaction costs associated with leasing or other market 
factors, licensees and other parties may wish to utilize other types of 
arrangements involving opportunistic use of licensed spectrum. To that 
end, we adopt a ``private commons'' option distinct from either 
spectrum leases or other existing arrangements.

II. Second Further Notice of Proposed Rulemaking

    2. Because there may be many arrangements that would involve 
opportunistic use of spectrum and that would be consistent with 
Commission rules, we seek comment on additional ways in which licensees 
and spectrum lessees may enter into arrangements in which other users 
may employ advanced technologies to opportunistically use licensed 
spectrum. We wish to build on the examples listed in the Second Report 
and Order to provide licensees, spectrum lessees, and other parties 
with greater certainty as to the types of opportunistic use 
arrangements that would be permitted. To that end, we encourage 
commenters to describe additional means to increase spectrum access, 
how they might fit within the framework of the Commission's rules, or 
the extent to which we should consider revising our rules so as to 
accommodate these uses.
    3. With regard to spectrum access through spectrum leasing 
arrangements, we seek comment on additional ways in which licensees and 
spectrum lessees may utilize advanced technologies, such as 
opportunistic devices, within the context of the Commission's spectrum 
leasing policies and rules. What types of uses have not been addressed 
by the Commission but nonetheless merit consideration due, for example, 
to an ability to enhance access? We encourage commenters to be specific 
as to the nature of the relationship between the licensees and spectrum 
lessee(s) in such arrangements, especially with regard to their 
responsibility for compliance with Commission rules.
    4. With regard to spectrum access through private commons, we seek 
comment on the potential for this approach to improve access as well as 
the regulatory distinctions that are necessary to make this an 
effective regulatory model. Does the private commons established in the 
Second Report and Order sufficiently accommodate the wide variety of 
ways in which licensees (and spectrum lessees) and other users may wish 
to enter cooperative arrangements that employ ``smart'' or 
``opportunistic'' devices? Should the private commons be modified or 
expanded so as to better accommodate the variety of arrangements that 
may be desired by the market? For example, should we adopt an approach 
to private commons that would allow intermediaries to facilitate 
transactions with users, design and set up communications networks for 
users or provide value-added services or applications? Are there 
alternative regulatory constructs that might help promote such 
arrangements? If so, how should these arrangements be structured, both 
in terms of licensees' reporting requirements before the Commission and 
the nature of the licensee's relationship with opportunistic users?
    5. In addition, we seek comment on the technical parameters 
necessary to distinguish private commons from spectrum leasing 
arrangements or other arrangements. For example, at what point is a 
licensee with no physical infrastructure to use the spectrum engaged in 
providing a private commons to users, as opposed to a spectrum leasing 
arrangement with spectrum lessees? To what extent should a licensee (or 
spectrum lessee) with a private commons be permitted to grant access to 
another spectrum licensee (or spectrum lessee)? Should a licensee with 
an existing physical network and subscribers (e.g., a CMRS provider) be 
permitted to be a subscriber in another licensee's private commons? If 
so, what would distinguish such use from a spectrum leasing 
arrangement?
    6. We seek comment on the examples of private commons set forth in 
the Second Report and Order as well as other types of private commons 
arrangements. We also stated in the Second Report and Order that the 
licensee or spectrum lessee establishing and managing a private commons 
must retain both de facto control of the use

[[Page 77561]]

of the spectrum within the private commons and direct responsibility 
for the users' compliance with the Commission's rules. Are there any 
additional policies or requirements that are necessary to clarify the 
nature of this control or that could help ensure compliance? What is an 
efficient way to enforce users' compliance with the rules? For 
instance, would it be appropriate to require users to employ smart 
devices that include certain technologies (e.g., a microchip set) that 
would enable private commons managers to shut down any devices found to 
be causing harmful interference?
    7. Finally, we seek comment on the appropriate notification process 
for licensees or de facto transfer lessees that choose to offer a 
private commons. In the Second Report and Order above, we stated that a 
licensee or spectrum lessee managing the private commons must notify 
the Commission prior to permitting users to begin operating within the 
private commons. We propose here to give the licensee or spectrum 
lessee the option of notifying the Commission directly or, in the 
alternative, providing a URL that posts the terms and conditions. In 
the event these terms and conditions change, the licensee would have to 
make this information available on its website or, if this is not 
possible, by providing this information directly to the Commission. Is 
this an efficient notification procedure, and are there alternative 
means by which the Commission could collect this information in a less 
burdensome manner?

III. Procedural Matters

A. Initial Regulatory Flexibility Analysis Regarding the Second Further 
Notice

    8. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), see 5 U.S.C. 603, the Commission has prepared this 
present Initial Regulatory Flexibility Analysis (IRFA) of the possible 
significant economic impact on a substantial number of small entities 
by the policies and rules proposed in this Second Further Notice of 
Proposed Rulemaking (Second Further Notice). Written public comments 
are requested on this IRFA. Comments must be identified as responses to 
the IRFA and must be filed by the deadlines for comments on the Second 
Further Notice. The Commission will send a copy of the Second Further 
Notice, including this IRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration (SBA). In addition, the Second Further 
Notice and IRFA (or summaries thereof) will be published in the Federal 
Register.
1. Need for, and Objectives of, the Proposed Rules
    9. In the Second Report and Order, we adopt changes that further 
facilitate the leasing of spectrum usage rights and enhancing the 
functioning of the secondary spectrum marketplace generally. However, 
we believe that there may be additional measures that we might take to 
improve efficiency and promote access to a secondary spectrum market in 
order to ensure the greatest benefit to spectrum users and consumers. 
Thus, in the Second Further Notice, we seek comment on evaluating 
additional policies that could facilitate the development of advanced 
technologies through secondary market arrangements, such as spectrum 
leasing and private commons, and obtaining further clarification 
regarding the private commons options. We discuss the potential impact 
of these on small entities in the paragraphs that follow.
2. Legal Basis
    10. The potential actions on which comment is sought in this Second 
Further Notice would be authorized under sections 1, 4(i), and 303(r) 
of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 
and 303(r).
3. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply
    11. 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. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (SBA).
    12. In the following paragraphs, we further describe and estimate 
the number of small entity licensees that may be affected by the rules 
we adopt in the Second Further Notice. Since this rulemaking proceeding 
applies to multiple services, we will analyze the number of small 
entities affected on a service-by-service basis.
    13. As adopted, the Second Report and Order will create new 
opportunities and obligations for Wireless Radio Service's licensees 
and other entities that may lease spectrum usage rights from these 
licensees. When identifying small entities that could be affected by 
our new rules, we provide information describing auctions results, 
including the number of small entities that were winning bidders. We 
note, however, that the number of winning bidders that qualify as small 
businesses at the close of an auction does not necessarily reflect the 
total number of small entities currently in a particular service. The 
Commission does not generally require that applicants provide business 
size information, except in the context of an assignment or transfer of 
control application where unjust enrichment issues are implicated. 
Consequently, to assist the Commission in analyzing the total number of 
potentially affected small entities, we requested commenters to 
estimate the number of small entities that may be affected by any rule 
changes resulting from this Second Further Notice.
    14. In the Second Further Notice, we seek comment on possible 
further refinements to our existing policies and rules for spectrum 
leasing arrangements and for private commons arrangements. If any 
revisions were adopted, such revisions potentially could affect small 
entity licensees holding licenses in the Wireless Radio Services 
identified below.
    15. Cellular Licensees. The SBA has developed a small business size 
standard for small businesses in the category ``Cellular and Other 
Wireless Telecommunications.'' Under that SBA category, a business is 
small if it has 1,500 or fewer employees. According to the Bureau of 
the Census, only twelve firms out of a total of 977 cellular and other 
wireless telecommunications firms that operated for the entire year in 
1997 had 1,000 or more employees. Therefore, even if all twelve of 
these firms were cellular telephone companies, nearly all cellular 
carriers are small businesses under the SBA's definition.
    16. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service 
has both Phase I and Phase II licenses. Phase I licensing was conducted 
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized 
to operate in the 220 MHz band. The Commission has not developed a 
definition of small entities specifically applicable to such incumbent 
220 MHz Phase I licensees. To estimate the number of such

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licensees that are small businesses, we apply the small business size 
standard under the SBA rules applicable to ``Cellular and Other 
Wireless Telecommunications'' companies. This category provides that a 
small business is a wireless company employing no more than 1,500 
persons. According to the Census Bureau data for 1997, only twelve 
firms out of a total of 977 such firms that operated for the entire 
year in 1997, had 1,000 or more employees. If this general ratio 
continues in the context of Phase I 220 MHz licensees, the Commission 
estimates that nearly all such licensees are small businesses under the 
SBA's small business standard.
    17. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service 
has both Phase I and Phase II licenses. The Phase II 220 MHz service is 
subject to spectrum auctions. We adopted a small business size standard 
for defining ``small'' and ``very small'' businesses for purposes of 
determining their eligibility for special provisions such as bidding 
credits and installment payments. This small business standard 
indicates that a ``small business'' is an entity that, together with 
its affiliates and controlling principals, has average gross revenues 
not exceeding $15 million for the preceding three years. A ``very small 
business'' is defined as an entity that, together with its affiliates 
and controlling principals, has average gross revenues that do not 
exceed $3 million for the preceding three years. The SBA has approved 
these small size standards. Auctions of Phase II licenses commenced on 
September 15, 1998, and closed on October 22, 1998. In the first 
auction, 908 licenses were auctioned in three different-sized 
geographic areas: Three nationwide licenses, 30 Regional Economic Area 
Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908 
licenses auctioned, 693 were sold. Thirty-nine small businesses won 373 
licenses in the first 220 MHz auction. A second auction included 225 
licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies 
claiming small business status won 158 licenses. A third auction 
included four licenses: 2 BEA licenses and 2 EAG licenses in the 220 
MHz Service. No small or very small business won any of these licenses.
    18. Lower 700 MHz Band Licenses. We adopted criteria for defining 
three groups of small businesses for purposes of determining their 
eligibility for special provisions such as bidding credits. We have 
defined a small business as an entity that, together with its 
affiliates and controlling principals, has average gross revenues not 
exceeding $40 million for the preceding three years. A very small 
business is defined as an entity that, together with its affiliates and 
controlling principals, has average gross revenues that are not more 
than $15 million for the preceding three years. Additionally, the lower 
700 MHz Service has a third category of small business status that may 
be claimed for Metropolitan/Rural Service Area (MSA/RSA) licenses. The 
third category is entrepreneur, which is defined as an entity that, 
together with its affiliates and controlling principals, has average 
gross revenues that are not more than $3 million for the preceding 
three years. The SBA has approved these small size standards. An 
auction of 740 licenses (one license in each of the 734 MSAs/RSAs and 
one license in each of the six Economic Area Groupings (EAGs)) 
commenced on August 27, 2002, and closed on September 18, 2002. Of the 
740 licenses available for auction, 484 licenses were sold to 102 
winning bidders. Seventy-two of the winning bidders claimed small 
business, very small business or entrepreneur status and won a total of 
329 licenses. A second auction commenced on May 28, 2003, and closed on 
June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 CMA 
licenses. Seventeen winning bidders claimed small or very small 
business status and won sixty licenses, and nine winning bidders 
claimed entrepreneur status and won 154 licenses.
    19. Upper 700 MHz Band Licenses. The Commission released a Report 
and Order, authorizing service in the upper 700 MHz band. This auction, 
previously scheduled for January 13, 2003, has been postponed.
    20. Paging. We adopted a size standard for ``small businesses'' for 
purposes of determining their eligibility for special provisions such 
as bidding credits and installment payments. A small business is an 
entity that, together with its affiliates and controlling principals, 
has average gross revenues not exceeding $15 million for the preceding 
three years. The SBA has approved this definition. An auction of 
Metropolitan Economic Area (MEA) licenses commenced on February 24, 
2000, and closed on March 2, 2000. Of the 2,499 licenses auctioned, 985 
were sold. Fifty-seven companies claiming small business status won 440 
licenses. An auction of Metropolitan Economic Area (MEA) and Economic 
Area (EA) licenses commenced on October 30, 2001, and closed on 
December 5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold. 
132 companies claiming small business status purchased 3,724 licenses. 
A third auction, consisting of 8,874 licenses in each of 175 EAs and 
1,328 licenses in all but three of the 51 MEAs commenced on May 13, 
2003, and closed on May 28, 2003. Seventy-seven bidders claiming small 
or very small business status won 2,093 licenses. Currently, there are 
approximately 24,000 Private Paging site-specific licenses and 74,000 
Common Carrier Paging licenses. According to one 2002 study, 608 
private and common carriers reported that they were engaged in the 
provision of either paging or ``other mobile'' services. Of these, we 
estimate that 589 are small, under the SBA-approved small business size 
standard. We estimate that the majority of private and common carrier 
paging providers would qualify as small entities under the SBA 
definition.
    21. Broadband Personal Communications Service (PCS). The broadband 
PCS spectrum is divided into six frequency blocks designated A through 
F, and the Commission has held auctions for each block. The Commission 
has created a small business size standard for Blocks C and F as an 
entity that has average gross revenues of less than $40 million in the 
three previous calendar years. For Block F, an additional small 
business size standard for ``very small business'' was added and is 
defined as an entity that, together with its affiliates, has average 
gross revenues of not more than $15 million for the preceding three 
calendar years. These small business size standards, in the context of 
broadband PCS auctions, have been approved by the SBA. No small 
businesses within the SBA-approved small business size standards bid 
successfully for licenses in Blocks A and B. There were 90 winning 
bidders that qualified as small entities in the Block C auctions. A 
total of 93 ``small'' and ``very small'' business bidders won 
approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. 
On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block 
licenses; there were 113 small business winning bidders.
    22. Narrowband PCS. The Commission held an auction for Narrowband 
PCS licenses that commenced on July 25, 1994, and closed on July 29, 
1994. A second commenced on October 26, 1994 and closed on November 8, 
1994. For purposes of the first two Narrowband PCS auctions, ``small 
businesses'' were entities with average gross revenues for the prior 
three calendar years of $40 million or less. Through these auctions, 
the Commission awarded a total of forty-one licenses, 11 of which were

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obtained by four small businesses. To ensure meaningful participation 
by small business entities in future auctions, the Commission adopted a 
two-tiered small business size standard. A ``small business'' is an 
entity that, together with affiliates and controlling interests, has 
average gross revenues for the three preceding years of not more than 
$40 million. A ``very small business'' is an entity that, together with 
affiliates and controlling interests, has average gross revenues for 
the three preceding years of not more than $15 million. The SBA has 
approved these small business size standards. A third auction commenced 
on October 3, 2001 and closed on October 16, 2001. Here, five bidders 
won 317 (MTA and nationwide) licenses. Three of these claimed status as 
a small or very small entity and won 311 licenses.
    23. Specialized Mobile Radio (SMR). The Commission awards ``small 
entity'' bidding credits in auctions for Specialized Mobile Radio (SMR) 
geographic area licenses in the 800 MHz and 900 MHz bands to firms that 
had revenues of no more than $15 million in each of the three previous 
calendar years. The Commission awards ``very small entity'' bidding 
credits to firms that had revenues of no more than $3 million in each 
of the three previous calendar years. The SBA has approved these small 
business size standards for the 900 MHz Service. The Commission has 
held auctions for geographic area licenses in the 800 MHz and 900 MHz 
bands. The 900 MHz SMR auction began on December 5, 1995, and closed on 
April 15, 1996. Sixty bidders claiming that they qualified as small 
businesses under the $15 million size standard won 263 geographic area 
licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 
200 channels began on October 28, 1997, and was completed on December 
8, 1997. Ten bidders claiming that they qualified as small businesses 
under the $15 million size standard won 38 geographic area licenses for 
the upper 200 channels in the 800 MHz SMR band. A second auction for 
the 800 MHz band was held on January 10, 2002 and closed on January 17, 
2002 and included 23 BEA licenses. One bidder claiming small business 
status won five licenses.
    24. The auction of the 1,050 800 MHz SMR geographic area licenses 
for the General Category channels began on August 16, 2000, and was 
completed on September 1, 2000. Eleven bidders won 108 geographic area 
licenses for the General Category channels in the 800 MHz SMR band 
qualified as small businesses under the $15 million size standard. In 
an auction completed on December 5, 2000, a total of 2,800 Economic 
Area licenses in the lower 80 channels of the 800 MHz SMR service were 
sold. Of the 22 winning bidders, 19 claimed ``small business'' status 
and won 129 licenses. Thus, combining all three auctions, 40 winning 
bidders for geographic licenses in the 800 MHz SMR band claimed status 
as small business. In addition, there are numerous incumbent site-by-
site SMR licensees and licensees with extended implementation 
authorizations in the 800 and 900 MHz bands. We do not know how many 
firms provide 800 MHz or 900 MHz geographic area SMR pursuant to 
extended implementation authorizations, nor how many of these providers 
have annual revenues of no more than $15 million. One firm has over $15 
million in revenues. We assume, for purposes of this analysis, that all 
of the remaining existing extended implementation authorizations are 
held by small entities, as that small business size standard is 
established by the SBA.
    25. Private Land Mobile Radio (PLMR). PLMR systems serve an 
essential role in a range of industrial, business, land transportation, 
and public safety activities. These radios are used by companies of all 
sizes operating in all U.S. business categories, and are often used in 
support of the licensee's primary (non-telecommunications) business 
operations. For the purpose of determining whether a licensee of a PLMR 
system is a small business as defined by the SBA, we could use the 
definition for ``Cellular and Other Wireless Telecommunications.'' This 
definition provides that a small entity is any such entity employing no 
more than 1,500 persons. The commission does not require PLMR licensees 
to disclose information about number of employees, so the Commission 
does not have information that could be used to determine how many PLMR 
licensees constitute small entities under this definition. Moreover, 
because PMLR licensees generally are not in the business of providing 
cellular or other wireless telecommunications services but instead use 
the licensed facilities in support of other business activities, we are 
not certain that the Cellular and Other Wireless Telecommunications 
category is appropriate for determining how many PLMR licensees are 
small entities for this analysis. Rather, it may be more appropriate to 
assess PLMR licensees under the standards applied to the particular 
industry subsector to which the licensee belongs.
    26. Fixed Microwave Services. Fixed microwave services include 
common carrier, private-operational fixed, and broadcast auxiliary 
radio services. Currently, there are approximately 22,015 common 
carrier fixed licensees and 61,670 private operational-fixed licensees 
and broadcast auxiliary radio licensees in the microwave services. The 
Commission has not yet defined a small business with respect to 
microwave services. For purposes of this FRFA, we will use the SBA's 
definition applicable to ``Cellular and Other Wireless 
Telecommunications'' companies--that is, an entity with no more than 
1,500 persons. The Commission does not have data specifying the number 
of these licensees that have more than 1,500 employees, and thus is 
unable at this time to estimate with greater precision the number of 
fixed microwave service licensees that would qualify as small business 
concerns under the SBA's small business size standard. Consequently, 
the Commission estimates that there are 22,015 or fewer small common 
carrier fixed licensees and 61,670 or fewer small private operational-
fixed licensees and small broadcast auxiliary radio licensees in the 
microwave services that may be affected by the rules and policies 
adopted herein. The Commission notes, however, that the common carrier 
microwave fixed licensee category includes some large entities.
    27. Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses. The Commission defined ``small business'' for the wireless 
communications services (WCS) auction as an entity with average gross 
revenues of $40 million for each of the three preceding years, and a 
``very small business'' as an entity with average gross revenues of $15 
million for each of the three preceding years. The SBA has approved 
these definitions. The FCC auctioned geographic area licenses in the 
WCS service. In the auction, which commenced on April 15, 1997 and 
closed on April 25, 1997, there were seven bidders that won 31 licenses 
that qualified as very small business entities, and one bidder that won 
one license that qualified as a small business entity. An auction for 
one license in the 1670-1674 MHz band commenced on April 30, 2003 and 
closed the same day. One license was awarded. The winning bidder was 
not a small entity.
    28. 39 GHz Service. The Commission defines ``small entity'' for 39 
GHz licenses as an entity that has average gross revenues of less than 
$40 million in the three previous calendar years. ``Very small 
business'' is defined as an entity that, together with its affiliates,

[[Page 77564]]

has average gross revenues of not more than $15 million for the 
preceding three calendar years. The SBA has approved these definitions. 
The auction of the 2,173 39 GHz licenses began on April 12, 2000, and 
closed on May 8, 2000. The 18 bidders who claimed small business status 
won 849 licenses.
    29. Local Multipoint Distribution Service. An auction of the 986 
Local Multipoint Distribution Service (LMDS) licenses began on February 
18, 1998, and closed on March 25, 1998. The Commission defined ``small 
entity'' for LMDS licenses as an entity that has average gross revenues 
of less than $40 million in the three previous calendar years. An 
additional classification for ``very small business'' was added and is 
defined as an entity that, together with its affiliates, has average 
gross revenues of not more than $15 million for the preceding three 
calendar years. These regulations defining ``small entity'' in the 
context of LMDS auctions have been approved by the SBA. There were 93 
winning bidders that qualified as small entities in the LMDS auctions. 
A total of 93 small and very small business bidders won approximately 
277 A Block licenses and 387 B Block licenses. On March 27, 1999, the 
Commission re-auctioned 161 licenses; there were 32 small and very 
small business winning bidders that won 119 licenses.
    30. 218-219 MHz Service. The first auction of 218-219 MHz 
(previously referred to as the Interactive and Video Data Service or 
IVDS) spectrum resulted in 178 entities winning licenses for 594 
Metropolitan Statistical Areas (MSAs). Of the 594 licenses, 567 were 
won by 167 entities qualifying as a small business. For that auction, 
we defined a small business as an entity that, together with its 
affiliates, has no more than a $6 million net worth and, after federal 
income taxes (excluding any carry over losses), has no more than $2 
million in annual profits each year for the previous two years. We 
defined a small business as an entity that, together with its 
affiliates and persons or entities that hold interests in such an 
entity and their affiliates, has average annual gross revenues not 
exceeding $15 million for the preceding three years. A very small 
business is defined as an entity that, together with its affiliates and 
persons or entities that hold interests in such an entity and its 
affiliates, has average annual gross revenues not exceeding $3 million 
for the preceding three years. The SBA has approved of these 
definitions. At this time, we cannot estimate the number of licenses 
that will be won by entities qualifying as small or very small 
businesses under our rules in future auctions of 218-219 MHz spectrum. 
Given the success of small businesses in the previous auction, and the 
prevalence of small businesses in the subscription television services 
and message communications industries, we assume for purposes of this 
FRFA that in future auctions, many, and perhaps all, of the licenses 
may be awarded to small businesses.
    31. Location and Monitoring Service (LMS). Multilateration LMS 
systems use non-voice radio techniques to determine the location and 
status of mobile radio units. For purposes of auctioning LMS licenses, 
the Commission has defined ``small business'' as an entity that, 
together with controlling interests and affiliates, has average annual 
gross revenues for the preceding three years not exceeding $15 million. 
A ``very small business'' is defined as an entity that, together with 
controlling interests and affiliates, has average annual gross revenues 
for the preceding three years not exceeding $3 million. These 
definitions have been approved by the SBA. An auction for LMS licenses 
commenced on February 23, 1999, and closed on March 5, 1999. Of the 528 
licenses auctioned, 289 licenses were sold to four small businesses. We 
cannot accurately predict the number of remaining licenses that could 
be awarded to small entities in future LMS auctions.
    32. Rural Radiotelephone Service. We use the SBA definition 
applicable to cellular and other wireless telecommunication companies, 
i.e., an entity employing no more than 1,500 persons. There are 
approximately 1,000 licensees in the Rural Radiotelephone Service, and 
the Commission estimates that there are 1,000 or fewer small entity 
licensees in the Rural Radiotelephone Service that may be affected by 
the rules and policies adopted herein.
    33. Air-Ground Radiotelephone Service. We use the SBA definition 
applicable to cellular and other wireless telecommunication companies, 
i.e., an entity employing no more than 1,500 persons. There are 
approximately 100 licensees in the Air-Ground Radiotelephone Service, 
and the Commission estimates that almost all of them qualify as small 
entities under the SBA definition.
    34. Offshore Radiotelephone Service. This service operates on 
several ultra high frequency (UHF) TV broadcast channels that are not 
used for TV broadcasting in the coastal area of the states bordering 
the Gulf of Mexico. At present, there are approximately 55 licensees in 
this service. We use the SBA definition applicable to cellular and 
other wireless telecommunication companies, i.e., an entity employing 
no more than 1,500 persons. The Commission is unable at this time to 
estimate the number of licensees that would qualify as small entities 
under the SBA definition. The Commission assumes, for purposes of this 
FRFA, that all of the 55 licensees are small entities, as that term is 
defined by the SBA.
    35. Multiple Address Systems (MAS). Entities using MAS spectrum, in 
general, fall into two categories: (1) those using the spectrum for 
profit-based uses, and (2) those using the spectrum for private 
internal uses. With respect to the first category, the Commission 
defines ``small entity'' for MAS licenses as an entity that has average 
gross revenues of less than $15 million in the three previous calendar 
years. ``Very small business'' is defined as an entity that, together 
with its affiliates, has average gross revenues of not more than $3 
million for the preceding three calendar years. The SBA has approved of 
these definitions. The majority of these entities will most likely be 
licensed in bands where the Commission has implemented a geographic 
area licensing approach that would require the use of competitive 
bidding procedures to resolve mutually exclusive applications. The 
Commission's licensing database indicates that, as of January 20, 1999, 
there were a total of 8,670 MAS station authorizations. Of these, 260 
authorizations were associated with common carrier service. In 
addition, an auction for 5,104 MAS licenses in 176 EAs began November 
14, 2001, and closed on November 27, 2001. Seven winning bidders 
claimed status as small or very small businesses and won 611 licenses.
    36. With respect to the second category, which consists of entities 
that use, or seek to use, MAS spectrum to accommodate their own 
internal communications needs, we note that MAS serves an essential 
role in a range of industrial, safety, business, and land 
transportation activities. MAS radios are used by companies of all 
sizes, operating in virtually all U.S. business categories, and by all 
types of public safety entities. For the majority of private internal 
users, the definitions developed by the SBA would be more appropriate. 
The applicable definition of small entity in this instance appears to 
be the ``Cellular and Other Wireless Telecommunications'' definition 
under the SBA rules. This definition provides that a small entity is 
any entity employing no more than 1,500 persons. The Commission's 
licensing database indicates that, as of January 20, 1999, of the 8,670 
total MAS station authorizations, 8,410 authorizations

[[Page 77565]]

were for private radio service, and of these, 1,433 were for private 
land mobile radio service.
    37. Incumbent 24 GHz Licensees. The rules that we adopt could 
affect incumbent licensees who were relocated to the 24 GHz band from 
the 18 GHz band, and applicants who wish to provide services in the 24 
GHz band. The Commission did not develop a definition of small entities 
applicable to existing licensees in the 24 GHz band. Therefore, the 
applicable definition of small entity is the definition under the SBA 
rules for ``Cellular and Other Wireless Telecommunications.'' This 
definition provides that a small entity is any entity employing no more 
than 1,500 persons. We believe that there are only two licensees in the 
24 GHz band that were relocated from the 18 GHz band, Teligent and TRW, 
Inc. It is our understanding that Teligent and its related companies 
have less than 1,500 employees, though this may change in the future. 
TRW is not a small entity. Thus, only one incumbent licensee in the 24 
GHz band is a small business entity.
    38. Future 24 GHz Licensees. With respect to new applicants in the 
24 GHz band, we have defined ``small business'' as an entity that, 
together with controlling interests and affiliates, has average annual 
gross revenues for the three preceding years not exceeding $15 million. 
``Very small business'' in the 24 GHz band is defined as an entity 
that, together with controlling interests and affiliates, has average 
gross revenues not exceeding $3 million for the preceding three years. 
The SBA has approved these definitions. The Commission will not know 
how many licensees will be small or very small businesses until the 
auction, if required, is held.
    39. 700 MHz Guard Band Licenses. We adopted size standards for 
``small businesses'' and ``very small businesses'' for purposes of 
determining their eligibility for special provisions such as bidding 
credits and installment payments. A small business in this service is 
an entity that, together with its affiliates and controlling 
principals, has average gross revenues not exceeding $40 million for 
the preceding three years. Additionally, a ``very small business'' is 
an entity that, together with its affiliates and controlling 
principals, has average gross revenues that are not more than $15 
million for the preceding three years. SBA approval of these 
definitions is not required. An auction of 52 Major Economic Area (MEA) 
licenses commenced on September 6, 2000, can closed on September 21, 
2000. Of the 104 licenses auctioned, 96 licenses were sold to nine 
bidders. Five of these bidders were small businesses that won a total 
of 26 licenses. A second auction of 700 MHz Guard Band licenses 
commenced on February 13, 2001, and closed on February 21, 2001. All 
eight of the licenses auctioned were sold to three bidders. One of 
these bidders was a small business that won a total of two licenses.
    40. Broadband Radio Service (formerly Multipoint Distribution 
Service) and Educational Broadband Service (formerly Instructional 
Television Fixed Service). Multichannel Multipoint Distribution Service 
(MMDS) systems, often referred to as ``wireless cable,'' transmit video 
programming to subscribers using the microwave frequencies of the 
Multipoint Distribution Service (MDS) and Instructional Television 
Fixed Service (ITFS). In an order issued in July 2004 in WT Docket No. 
03-66, the Commission comprehensively reviewed our policies and rules 
relating to the ITFS and MDS services, and replacing the Multipoint 
Distribution Service (MDS) with the Broadband Radio Service and 
Instructional Television Fixed Service (ITFS) with the Educational 
Broadband Service. In connection with the 1996 MDS auction, the 
Commission defined ``small business'' as an entity that, together with 
its affiliates, has average gross annual revenues that are not more 
than $40 million for the preceding three calendar years. The SBA has 
approved of this standard. The MDS auction resulted in 67 successful 
bidders obtaining licensing opportunities for 493 Basic Trading Areas 
(BTAs). Of the 67 auction winners, 61 claimed status as a small 
business. At this time, we estimate that of the 61 small business MDS 
auction winners, 48 remain small business licensees. In addition to the 
48 small businesses that hold BTA authorizations, there are 
approximately 392 incumbent MDS licensees that have gross revenues that 
are not more than $40 million and are thus considered small entities.
    41. In addition, the SBA has developed a small business size 
standard for Cable and Other Program Distribution, which includes all 
such companies generating $12.5 million or less in annual receipts. 
According to Census Bureau data for 1997, there were a total of 1,311 
firms in this category, total, that had operated for the entire year. 
Of this total, 1,180 firms had annual receipts of under $10 million, 
and an additional 52 firms had receipts of $10 million or more but less 
than $25 million. Consequently, we estimate that the majority of 
providers in this service category are small businesses that may be 
affected by the rules and policies in the Second Report and Order.
    42. Finally, while SBA approval for a Commission-defined small 
business size standard applicable to ITFS is pending, educational 
institutions are included in this analysis as small entities. There are 
currently 2,032 ITFS licensees, and all but 100 of these licenses are 
held by educational institutions. Thus, we tentatively conclude that at 
least 1,932 ITFS licensees are small businesses.
    43. Multichannel Video Distribution and Data Service. MVDDS is a 
terrestrial fixed microwave service operating in the 12.2-12.7 GHz 
band. Licenses in this service were auctioned in January 2004, with 10 
winning bidders for 192 licenses. Eight of these 10 winning bidders 
claimed small businesses status for 144 of these licenses.
    44. Aviation and Marine Services. Small businesses in the aviation 
and marine radio services use a very high frequency (VHF) marine or 
aircraft radio and, as appropriate, an emergency position-indicating 
radio beacon (and/or radar) or an emergency locator transmitter. The 
Commission has not developed a small business size standard 
specifically applicable to these small businesses. For purposes of this 
analysis, the Commission uses the SBA small business size standard for 
the category ``Cellular and Other Telecommunications,'' which is 1,500 
or fewer employees. Most applicants for recreational licenses are 
individuals. Approximately 581,000 ship station licensees and 131,000 
aircraft station licensees operate domestically and are not subject to 
the radio carriage requirements of any statute or treaty. For purposes 
of our evaluations in this analysis, we estimate that there are up to 
approximately 712,000 licensees that are small businesses (or 
individuals) under the SBA standard. In addition, between December 3, 
1998 and December 14, 1998, the Commission held an auction of 42 VHF 
Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 
161.775-162.0125 MHz (coast transmit) bands. For purposes of the 
auction, the Commission defined a ``small'' business as an entity that, 
together with controlling interests and affiliates, has average gross 
revenues for the preceding three years not to exceed $15 million 
dollars. In addition, a ``very small'' business is one that, together 
with controlling interests and affiliates, has average gross revenues 
for the preceding three years not to exceed $3 million dollars. There 
are approximately 10,672 licensees in the Marine Coast Service, and the 
Commission estimates that almost all of them qualify as ``small''

[[Page 77566]]

businesses under the above special small business size standards.
    45. Public Safety Radio Services. Public Safety radio services 
include police, fire, local government, forestry conservation, highway 
maintenance, and emergency medical services. There are a total of 
approximately 127,540 licensees in these services. Governmental 
entities as well as private businesses comprise the licensees for these 
services. All governmental entities with populations of less than 
50,000 fall within the definition of a small entity.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    46. The policies and proposals set forth in the Second Report and 
Order impact a number of Commission licensees and spectrum lessees in 
various wireless services. The Second Further Notice explores ways in 
which licensees and spectrum lessees may enter into arrangements in 
which advanced technologies are opportunistically employed. The Second 
Further Notice and seeks to provide parties with greater certainty as 
to the types of opportunistic use arrangements that would be permitted 
while fitting into the framework of the Commission's current rules.
    47. Our proposals in the Second Report and Order to implement 
certain advanced technologies necessarily implicates potential 
reporting, recordkeeping and compliance requirements for licensees and 
spectrum lessees, including: (1) Retention of lease agreements; (2) 
reporting of spectrum leasing terms to the Commission; (3) licensee and 
lessee compliance with the Commission's technical and service rules; 
(4) licensee filings with the Commission on behalf of the lessee; (5) 
licensee verification of lessee compliance with Commission rules; (6) 
license supervision of a lessee's adherence to the Commission's rules 
and policies; and (7) the leasing of spectrum by entities designated as 
``small business'' or ``very small business'' under the Commission's 
rules. Licensees and spectrum lessees may retain or hire outside 
professionals (e.g., legal and engineering staff) to draft lease 
arrangements, provide consulting services, maintain records and comply 
with applicable Commission rules. They also may employ existing or new 
employees to be responsible for reporting, recordkeeping, and other 
compliance requirements.
    48. The Second Further Notice also explores what steps the 
Commission should take to further enhance secondary markets and 
increase the efficient use of spectrum and the availability to the 
public of innovative wireless services. The Second Further Notice does 
not propose any specific reporting, recordkeeping or compliance 
requirements in these matters. We are open to comment on what, if any, 
requirements we should impose if we adopt these proposals.
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    49. The RFA requires an agency to describe any significant, 
specifically small business alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities.'' 
See 5 U.S.C. 603(c)(1)-(c)(4).
    50. Regarding our inquiry on ways to facilitate further development 
of advanced technologies, we do not anticipate any adverse impact on 
small entities. In fact, small (and large) entities should benefit from 
the reduction in transaction costs associated with leasing and the 
availability of other types of arrangements involving opportunistic use 
of licensed spectrum. We encourage comments on ways in which others may 
employ advanced technologies to opportunistically use licensed 
spectrum. Specifically, commenters should propose additional means to 
increase spectrum access and how that would fit into the rules and 
policies already established by the Commission. We do not believe that 
a revision of our rules would adversely impact small entities.
    51. With regard to spectrum access through spectrum leasing 
arrangements, we seek comment on additional ways in which licensees and 
spectrum lessees may utilize advanced technologies, such as 
opportunistic devices, within the context of the Commission's spectrum 
leasing policies and rules. We do not anticipate that any rules we 
adopt in this area would adversely impact small entities. We believe 
that small and large entities will benefit from increased access to 
spectrum and the utilization of advanced technologies.
    52. With regard to spectrum access through private commons, we seek 
comment on the potential for this approach to improve access as well as 
the regulatory distinctions that are necessary to make this an 
effective regulatory model. We do not anticipate any adverse impact on 
small entities. We believe that both small and large entities that make 
use of ``smart'' or ``opportunistic'' technologies within their bands 
will benefit from the private commons option because this approach is 
designed to minimize some of the transaction costs associated with 
leasing or other market factors.
    53. In addition, we seek comment on the technical parameters 
necessary to distinguish private commons from spectrum leasing 
arrangements or other arrangements. We do not anticipate any adverse 
impact on small entities as a result of setting these parameters. We 
believe that setting these parameters will benefit both small and large 
entities by reducing regulatory uncertainty and encouraging spectrum 
use.
    54. We also seek comment on the examples of private commons set 
forth in the Second Report and Order, as well as other types of private 
commons arrangements. As stated in the Second Report and Order, 
licensee or spectrum lessees establishing a private commons retains 
direct responsibility for compliance with the Commission's rules. We 
encourage comment on whether there are any additional policies or 
requirements that could help ensure compliance. We do not anticipate 
any adverse impact on small entities as a result of establishing 
further compliance guidelines. We believe that establishing further 
compliance guidelines all entities, including small entities, will 
benefit from the additional control over their spectrum.
    55. Finally, we seek comment on the appropriate notification 
process for licensees or spectrum lessees that choose to offer a 
private commons. In the Second Report and Order, we stated that a 
licensee or spectrum lessee managing the private commons must notify 
the Commission prior to permitting users to begin operating within the 
private commons. In the Second Further Notice, we propose to give the 
licensee or spectrum lessee the option of notifying the Commission 
directly or, in the alternative, providing a URL that posts the terms 
and conditions. We believe that this procedure will benefit all 
entities, including small entities, by taking an additional step toward 
increasing the efficient use of spectrum.

[[Page 77567]]

6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    56. None.
    57. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, will send a copy of this Second Further 
Notice, including the IRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration.

B. Initial Paperwork Reduction Act of 1995 Analysis Regarding the 
Second Further Notice

    58. In the Second Further Notice, this document seeks comment on a 
proposed information collection. As part of the Commission's continuing 
effort to reduce paperwork burdens, we invite the general public and 
the Office of Management and Budget (OMB) to take this opportunity to 
comment on the information collections contained in this document, as 
required by the Paperwork Reduction Act of 1995, Public Law 104-13. 
Public and agency comments are due at the same time as other comments 
on this document and must have a separate heading designating them as 
responses to the Initial Paperwork Reduction Analysis (IPRA). OMB 
comments are due February 25, 2005. Comments should address: (a) 
Whether the proposed collection of information is necessary for the 
proper performance of the functions of the Commission, including 
whether the information shall have practical utility; (b) the accuracy 
of the Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology.

C. Comment Dates Regarding the Second Further Notice

    59. Pursuant to applicable procedures set forth in Sec. Sec.  1.415 
and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested 
parties may file comments on the Second Further Notice on or before 
January 18, 2005, and reply comments on or before February 17, 2005. 
Comments and reply comments should be filed in WT Docket No. 00-230. 
All relevant and timely comments will be considered by the Commission 
before final action is taken in this proceeding.
    60. Comments may be filed either by filing electronically, such as 
by using the Commission's Electronic Comment Filing System (ECFS), or 
by filing paper copies. Parties are strongly urged to file their 
comments using ECFS (given recent changes in the Commission's mail 
delivery system). Comments filed through the ECFS can be sent as an 
electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Only one copy of an electronic submission must be filed. In 
completing the transmittal screen, the electronic filer should include 
its full name, Postal Service mailing address, and the applicable 
docket or rulemaking number, WT Docket No. 00-230. Parties also may 
submit comments electronically by Internet e-mail. To receive filing 
instructions for e-mail comments, commenters should send an e-mail to 
[email protected], and should include the following words in the body of the 
message, ``get form .'' A sample form and 
directions will be sent in reply.
    61. Parties who choose to file by paper may submit such filings by 
hand or messenger delivery, by U.S. Postal Service mail (First Class, 
Priority, or Express Mail), or by commercial overnight courier. Parties 
must file an original and four copies of each filing in WT Docket No. 
00-230. Parties that want each Commissioner to receive a personal copy 
of their comments must file an original plus nine copies. If paper 
filings are hand-delivered or messenger-delivered for the Commission's 
Secretary, they must be delivered to the Commission's contractor at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002-4913. To 
receive an official ``Office of the Secretary'' date stamp, documents 
must be addressed to Marlene H. Dortch, Secretary, Federal 
Communications Commission. (The filing hours at this facility are 8 
a.m. to 7 p.m.) If paper filings are submitted by mail though the U.S. 
Postal Service (First Class mail, Priority Mail, and Express Mail), 
they must be sent to the Commission's Secretary, Marlene H. Dortch, 
Federal Communications Commission, Office of the Secretary, 445 12th 
Street, SW., Washington, DC 20554. If paper filings are submitted by 
commercial overnight courier (i.e., by overnight delivery other than 
through the U.S. Postal Service), such as by Federal Express or United 
Parcel Service, they must be sent to the Commission's Secretary, 
Marlene H. Dortch, Federal Communications Commission, Office of the 
Secretary, 9300 East Hampton Drive, Capitol Heights, MD 20743. (The 
filing hours at this facility are 8 a.m. to 5:30 p.m.)
    62. Parties may also file with the Commission some form of 
electronic media submission (e.g., diskettes, CDs, tapes, etc.) as part 
of their filings. In order to avoid possible adverse affects on such 
media submissions (potentially caused by irradiation techniques used to 
ensure that mail is not contaminated), the Commission advises that they 
should not be sent through the U.S. Postal Service. Hand-delivered or 
messenger-delivered electronic media submissions should be delivered to 
the Commission's contractor, Natek, Inc., at 236 Massachusetts Avenue, 
NE., Suite 110, Washington, DC 20002-4913. Electronic media sent by 
commercial overnight courier should be sent to the Commission's 
Secretary, Marlene H. Dortch, Federal Communications Commission, Office 
of the Secretary, 9300 East Hampton Drive, Capitol Heights, MD 20743.
    63. Regardless of whether parties choose to file electronically or 
by paper, they should also send one copy of any documents filed, either 
by paper or by e-mail, to each of the following: (1) Best Copy & 
Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554, facsimile (202) 488-5563, or e-mail at 
[email protected]; and (2) Paul Murray, Commercial Wireless Division, 
Wireless Telecommunications Bureau, 445 12th Street, SW., Washington, 
DC 20554, or e-mail at [email protected].
    64. Comments, reply comments, and ex parte submissions will be 
available for public inspection during regular business hours in the 
FCC Reference Information Center, Federal Communications Commission, 
445 12th Street, SW., Room CY-A257, Washington, D.C. 20554. These 
documents also will be available electronically at the Commission's 
Disabilities Issues Task Force Web site, http://www.fcc.gov/dtf, and 
from the Commission's Electronic Comment Filing System. Documents are 
available electronically in ASCII text, Word 97, and Adobe Acrobat. 
Copies of filings in this proceeding may be obtained from Best Copy & 
Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554, telephone (800) 378-3160, facsimile (202) 488-
5563, or via e-mail at [email protected]. This document is also available 
in alternative formats (computer diskette, large print, audio cassette, 
and Braille). Persons who need documents in such formats may contact 
Brian Millin at (202) 418-7426, TTY (202) 418-7365, 
[email protected], or send an e-mail to [email protected].

D. Ex Parte Rules Regarding the Second Further Notice--Permit-But-
Disclose Proceeding

    65. With regard to the Second Further Notice, this is a permit-but-
disclose

[[Page 77568]]

notice and comment rule making proceeding. Ex parte presentations are 
permitted, except during the Sunshine Agenda period, provided they are 
disclosed as provided in Commission rules. See generally 47 CFR 1.1202, 
1.1203, and 1.1206.

IV. Ordering Clauses

    66. Pursuant to the authority contained in sections 1, 4(i), and 
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
154(i), and 303(r), the Second Further Notice is adopted.
    67. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of the Second Report and Order, 
Order on Reconsideration, and Second Further NPRM of Proposed 
Rulemaking, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-27790 Filed 12-23-04; 8:45 am]
BILLING CODE 6712-01-P