[Federal Register Volume 70, Number 25 (Tuesday, February 8, 2005)]
[Rules and Regulations]
[Pages 6758-6761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2420]



[[Page 6757]]

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

Part III





Federal Communications Commission





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



47 CFR Parts 22 and 90



Private Land Mobile Services; 800 MHz Public Safety Interference 
Proceeding; Improving Public Safety Communications in the 800 MHz Band; 
Public Information Collections Approved by Office of Management and 
Budget; Final Rules and Notice

  Federal Register / Vol. 70, No. 25 / Tuesday, February 8, 2005 / 
Rules and Regulations  

[[Page 6758]]


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

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 02-55; ET Docket No. 00-258; ET Docket No. 95-18; RM-
9498; RM-10024; FCC 04-294]


Private Land Mobile Services; 800 MHz Public Safety Interference 
Proceeding

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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

SUMMARY: This document clarifies and revises the technical and 
procedural measures that it adopted in a Report and Order on July 8, 
2004 to address the ongoing and growing problem of interference to 
public safety communications in the 800 MHz band. In the Report and 
Order, the Commission concluded that a plan comprised of both long-term 
and short-term components represented the most effective solution to 
the public safety interference problem in the 800 MHz band. Subsequent 
to the release of the Report and Order, parties made a series of ex 
parte presentations which provided additional information. The 
Commission issued a public notice soliciting comment on certain ex 
parte presentations. Based on this supplementary record and review of 
the document, the Commission believes it appropriate to make the 
following clarifications of, and changes to, the provisions of the 
Report and Order and its accompanying rules. The Commission believe 
these changes will facilitate a more efficient and timely 
reconfiguration of the 800 MHz band.

DATES: Effective March 10, 2005.

FOR FURTHER INFORMATION CONTACT: Technical Information: Brian Marenco, 
[email protected], Public Safety and Critical Infrastructure 
Division, Wireless Telecommunications Bureau, (202) 418-0680, or TTY 
(202) 418-7233. Legal Information: Roberto Mussenden, Esq., 
[email protected], Public Safety and Critical Infrastructure 
Division, Wireless Telecommunications Bureau (202) 418-0680, or TTY 
(202) 418-7233.

SUPPLEMENTARY INFORMATION: This document summarizes the Federal 
Communications Commission's Supplemental Order and Order on 
Reconsideration (Order), FCC 04-294, adopted and released on December 
22, 2004. The full text of this document is available for inspection 
and copying during normal business hours in the FCC Reference Center, 
445 12th Street, SW., Washington, DC 20554. The complete text may be 
purchased from the Commission's copy contractor, Best Copy and 
Printing, Inc., 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].
    1. The Order clarifies and revises portions of the Report and 
Order, 69 FR 67823 November 22, 2004, to create an environment 
conducive to the efficient implementation of the 800 MHz band 
reconfiguration and operations of 800 MHz band licensees. Specifically, 
the Commission:
    a. Explicitly requires Nextel to submit its 700 MHz Guard Band 
licenses to the Commission for cancellation.
    b. Modifies provisions relating to the letter of credit to provide 
that the letter of credit will serve as a security against default, and 
will not constitute the corpus of band reconfiguration funds absent a 
default. We also provide that up to ten financial institutions may 
issue the letter or letters of credit under certain conditions and 
provide that we will consider waiver of the conflict of interest 
provisions governing the Trustee.
    c. Clarifies the scope of the acknowledgment that Nextel must file 
with the Commission as part of its acceptance of the terms and 
provisions of the Report and Order.
    d. Clarifies the entities from which Nextel must obtain a Letter of 
Cooperation, committing such entities to make changes necessary to 
implement 800 MHz band reconfiguration.
    e. Analyzes more recent and comprehensive data on the spectrum 
holdings of Nextel and revises, accordingly, the credit Nextel receives 
for spectrum it must surrender as part of the band reconfiguration 
process.
    f. Sets interim received power level thresholds that non-cellular 
systems must maintain in order to claim protection against unacceptable 
interference during band reconfiguration. These interim threshold 
levels will remain in effect until band reconfiguration in a particular 
800 MHz National Public Safety Planning Advisory Committee (NPSPAC) 
region is complete at which time the threshold levels adopted in the 
Report and Order go into effect.
    g. Sets out provisions for abating interference to public safety 
systems that do not meet the interim received power level thresholds 
during the period in which said interim received power level thresholds 
are in effect.
    h. Clarifies and amplifies certain actions falling within the 
Report and Order requirement that parties conduct their relocation 
negotiations in good faith.
    i. Modifies the eighteen-month benchmark so that, by that time, 
Nextel shall have relocated all non-Nextel and non-SouthernLINC 
incumbents from the former General Category channels 1-120 in at least 
twenty NPSPAC regions, and shall have initiated relocation negotiations 
with all NPSPAC licensees in said regions.
    j. Clarifies that mobile-only systems operating on a secondary 
basis on former General Category Channels 1-120 may continue to operate 
on said channels on a secondary basis.
    k. Clarifies when public safety and Critical Infrastructure 
Industry (CII) licensees gain exclusive access to channels vacated by 
``Enhanced Specialized Mobile Radio'' (ESMR) licensees as a part of 
band reconfiguration.
    l. Specifies that non-public safety and non-CII incumbents 
operating on Channels 231-260 may continue to operate on these 
channels.
    m. Clarifies that a Commission-certified coordinator must 
coordinate channels vacated by ESMR licensees and applied for after 
completion of band reconfiguration of a given NPSPAC region.
    n. Declines to impose a two percent limit on administrative costs 
associated with incumbent relocation.
    o. Elaborates on the duties and authority of the Transition 
Administrator.
    p. Clarifies which Economic Area (EA) licensees are eligible for 
relocation to channels above 817 MHz/862 MHz.
    q. Declines to afford relocating licensees their choice of 
channels, provided that they are relocated to comparable facilities.
    r. Declines to require that relocating licensees be assigned 
channels in any particular sequence, leaving such determinations to the 
Transition Administrator.
    s. Defines the parameters governing the voluntary relocation of 
CMRS licensees to the Guard Band.
    t. Clarifies the extent to which Nextel may be involved in the 
physical process of retuning incumbent systems.
    u. Prohibits ``high site'' systems above 817 MHz/862 MHz.
    v. Clarifies that relocation of EA licensees does not constitute 
issuance of ``new'' licenses.
    w. Clarifies that license modifications necessary to implement band

[[Page 6759]]

reconfiguration do not implicate the Commission's ``unjust enrichment'' 
rule.
    x. Modifies the rules affecting the ``freeze'' on 800 MHz license 
modification applications during reconfiguration of a given NPSPAC 
region.
    y. Clarifies the applicability of Section 22.917 of the Rules to 
cellular systems causing interference to 900 MHz systems.

I. Procedural Matters

A. Paperwork Reduction Act Analysis

    2. The action contained herein has been analyzed with respect to 
the Paperwork Reduction Act of 1995 (PRA) and found to impose no new or 
modified reporting or recordkeeping requirements or burdens to the 
public, including businesses with fewer than 25 employees.

B. Supplemental Final Regulatory Flexibility Certification

    3. The Regulatory Flexibility Act (RFA) requires that an agency 
prepare a regulatory flexibility analysis for notice-and-comment 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' The RFA generally defines 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as 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).
    4. In the Order the Commission clarifies and revises portions of 
the Report and Order to further create a spectrum climate that is 
conducive to the efficient implementation of the 800 MHz band 
reconfiguration and operations of 800 MHz band licensees. With regard 
to the substantive rule changes, the revision to Section 90.175 is 
deregulatory as applications filed to implement band reconfiguration 
will not be subject to frequency coordination. The revision to Section 
90.676 applies only to the Transition Administrator. Changes to 
Sections 90.613, 90.614, 90.615, 90.617, 90.621, 90.685, and 90.693 are 
designed to more accurately reflect the Commission's 800 MHz band plan. 
The Commission certifies, pursuant to the RFA, that the clarifications 
and rule changes contained in this Order will not have a significant 
economic impact on a substantial number of small entities, including 
businesses with fewer than 25 employees.
    5. The Commission will send a copy of this Order, including this 
Supplemental Final Regulatory Flexibility Certification, in a report to 
be sent to Congress and the General Accounting Office pursuant to the 
Congressional Review Act. See 5 U.S.C. 801(a)(1)(A). In addition the 
Commission will send a copy of the Order including a copy of this 
Supplemental Final Regulatory Flexibility Certification, to the Chief 
Counsel for Advocacy of the SBA. See 5 U.S.C. 605(b). A summary of this 
Order and this certification will also be published in the Federal 
Register.

List of Subjects in 47 CFR Part 90

    Communications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 90 as follows:

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

0
1. The authority citation for part 90 continues to read as follows:

    Authority: Sections 4(i), 11, 303(g), 303(r), and 302(c)(7) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 
303(g), 303(r), 332(c)(7).


0
2. Section 90.175 is amended by adding paragraph (j)(7) to read as 
follows:


Sec.  90.175  Frequency coordinator requirements.

* * * * *
    (j) * * *
    (7) Applications filed exclusively to modify channels in accordance 
with band reconfiguration in the 806-824/851-869 MHz band.
* * * * *

0
3. Section 90.613 is amended by revising the introductory text to read 
as follows:


Sec.  90.613  Frequencies available.

    The following tables indicate the channel designations of 
frequencies available for assignment to eligible applicants under this 
subpart. Frequencies shall be assigned in pairs, with mobile and 
control station transmitting frequencies taken from the 806-824 MHz 
band with corresponding base station frequencies being 45 MHz higher 
and taken from the 851-869 MHz band, or with mobile and control station 
frequencies taken from the 896-901 MHz band with corresponding base 
station frequencies being 39 MHz higher and taken from the 935-940 MHz 
band. Only the base station transmitting frequency of each pair is 
listed in the following tables. Applicants filing for channels prior to 
the announcement of an application freeze within an 800 MHz NPSPAC 
region, however, should specify channels based on the table listed in 
Sec.  90.613 (2003).
* * * * *

0
4. Amend Sec.  90.614 by revising the introductory text, and paragraphs 
(a), (b), and (c) introductory text to read as follows:


Sec.  90.614  Cellular and non-cellular portions of 806-824/851-869 MHz 
band for non-border areas.

    The 806-824/851-869 MHz band (``800 MHz band'') will be divided as 
follows at locations farther then 110 km (68.4 miles) from the U.S./
Mexico border and 140 km (87 miles) from the U.S./Canadian border 
(``non-border areas''):
    (a) 800 MHz cellular systems--as defined in Sec.  90.7--are 
prohibited from operating on channels 1-550 in non-border areas.
    (b) Only ESMR systems--as defined in Sec.  90.7--are permitted to 
operate on channels 551-830 in non-border areas.
    (c) In the following counties and parishes, only ESMR systems--as 
defined in Sec.  90.7--are permitted to operate on channels 411-830.
* * * * *

0
5. Section 90.615 is revised to read as follows:


Sec.  90.615  Individual channels available in the General Category in 
806-824/851-869 MHz band.

    The General Category will consist of channels 231-260 and 511-550 
at locations farther then 110 km (68.4 miles) from the U.S./Mexico 
border and 140 km (87 miles) from the U.S./Canadian border. All 
entities will be eligible for licensing on these channels except as 
described in paragraphs (a) and (b) of this section.
    (a) In a given 800 MHz NPSPAC region, any channel in the 231-260 
range which is vacated by an ESMR licensee and remains vacant after 
band reconfiguration will be available as follows:
    (1) Only to eligible applicants in the Public Safety Category until 
three years after the release of a public notice

[[Page 6760]]

announcing the completion of band reconfiguration in that region;
    (2) Only to eligible applicants in the Public Safety or Critical 
Infrastructure Industry Categories from three to five years after the 
release of a public notice announcing the completion of band 
reconfiguration in that region;
    (3) To all entities five years after release of a public notice 
announcing the completion of band reconfiguration in that region.
    (b) In a given 800 MHz NPSPAC region, any channel in the 231-260 
range which is vacated by a licensee relocating to channels 511-550 and 
remains vacant after band reconfiguration will be available as follows:
    (1) Only to eligible applicants in the Public Safety Category until 
three years after the release of a public notice announcing the 
completion of band reconfiguration in that region;
    (2) Only to eligible applicants in the Public Safety or Critical 
Infrastructure Industry Categories from three to five years after the 
release of a public notice announcing the completion of band 
reconfiguration in that region;
    (3) To all entities five years after release of a public notice 
announcing the completion of band reconfiguration in that region.
    (c) Spectrum Block F1 consists of channels 236-260.


0
6. Section 90.617 is amended by revising paragraphs (g) and (h) to read 
as follows:


Sec.  90.617  Frequencies in the 809.750-824/854.750-869 MHz, and 896-
901/935-940 MHz bands available for trunked, conventional or cellular 
system use in non-border areas.

* * * * *
    (g) In a given 800 MHz NPSPAC region, channels below 470 listed in 
Tables 2 and 4B which are vacated by an ESMR licensee and remain vacant 
after band reconfiguration will be available as follows:
    (1) Only to eligible applicants in the Public Safety Category until 
three years after the release of a public notice announcing the 
completion of band reconfiguration in that region;
    (2) Only to eligible applicants in the Public Safety or Critical 
Infrastructure Industry Categories from three to five years after the 
release of a public notice announcing the completion of band 
reconfiguration in that region;
    (3) Five years after the release of a public notice announcing the 
completion of band reconfiguration in that region, these channels 
revert back to their original pool categories.
    (h) In a given 800 MHz NPSPAC region, channels below 470 listed in 
Tables 2 and 4B which are vacated by a licensee relocating to channels 
511-550 and remain vacant after band reconfiguration will be available 
as follows:
    (1) Only to eligible applicants in the Public Safety Category until 
three years after the release of a public notice announcing the 
completion of band reconfiguration in that region;
    (2) Only to eligible applicants in the Public Safety or Critical 
Infrastructure Industry Categories from three to five years after the 
release of a public notice announcing the completion of band 
reconfiguration in that region;
    (3) Five years after the release of a public notice announcing the 
completion of band reconfiguration in that region, these channels 
revert back to their original pool categories.
* * * * *

0
7. Section 90.621 is amended by revising paragraphs (b) introductory 
text, (b)(1) and the text of (b)(3) before the table to read as 
follows. The note before the table in (b)(3) remains unchanged.


Sec.  90.621  Selection and assignment of frequencies.

* * * * *
    (b) Stations authorized on frequencies listed in this subpart, 
except for those stations authorized pursuant to paragraph (g) of this 
section and EA-based and MTA-based SMR systems, will be assigned 
frequencies solely on the basis of fixed distance separation criteria. 
The separation between co-channel systems will be a minimum of 113 km 
(70 mi) with one exception. For incumbent licensees in Channel Blocks 
F1 through V, that have received the consent of all affected parties or 
a certified frequency coordinator to utilize an 18 dB[mu]V/m signal 
strength interference contour (see Sec.  90.693), the separation 
between co-channel systems will be a minimum of 173 km (107 mi). The 
following exceptions to these separations shall apply:
    (1) Except as indicated in paragraph (b)(4) of this section, no 
station in Channel Blocks A through V shall be less than 169 km (105 
mi) distant from a co-channel station that has been granted channel 
exclusivity and authorized 1 kW ERP on any of the following mountaintop 
sites: Santiago Peak, Sierra Peak, Mount Lukens, Mount Wilson 
(California). Except as indicated in paragraph (b)(4) of this section, 
no incumbent licensee in Channel Blocks F1 through V that has received 
the consent of all affected parties or a certified frequency 
coordinator to utilize an 18 dB[mu]V/m signal strength interference 
contour shall be less than 229 km (142 mi) distant from a co-channel 
station that has been granted channel exclusivity and authorized 1 kW 
ERP on any of the following mountaintop sites: Santiago Peak, Sierra 
Peak, Mount Lukens, Mount Wilson (California).
* * * * *
    (3) Except as indicated in paragraph (b)(4) of this section, 
stations in Channel Blocks A through V that have been granted channel 
exclusivity and are located in the State of Washington at the locations 
listed in the table below shall be separated from co-channel stations 
by a minimum of 169 km (105 mi). Except as indicated in paragraph 
(b)(4) of this section, incumbent licensees in Channel Blocks F1 
through V that have received the consent of all affected parties or a 
certified frequency coordinator to utilize an 18 dB[mu]V/m signal 
strength interference contour, have been granted channel exclusivity 
and are located in the State of Washington at the locations listed in 
the table below shall be separated from co-channel stations by a 
minimum of 229 km (142 mi). Locations within one mile of the 
geographical coordinates listed in the table below will be considered 
to be at that site.
* * * * *

0
8. Section 90.676 is amended by adding a new paragraph (b)(6) to read 
as follows:


Sec.  90.676  Transition administrator for reconfiguration of the 806-
824/851-869 MHz band in order to separate cellular systems from non-
cellular systems.

* * * * *
    (b) * * *
    (6) Notify the Commission when band reconfiguration is complete in 
each 800 MHz NPSPAC Region and identify which vacant channels are 
exclusively available to eligible applicants in the Public Safety or 
Critical Infrastructure Industry Categories as set forth in Sec.  
90.615(a), (b) and Sec.  90.617(g), (h).
* * * * *

0
9. Section 90.685 is amended by revising paragraph (b) to read as 
follows:


Sec.  90.685  Authorization, construction and implementation of EA 
licenses.

* * * * *
    (b) EA licensees in the 809-824/854-869 MHz band must, within three 
years of the grant of their initial license, construct and place into 
operation a sufficient number of base stations to provide coverage to 
at least one-third of the population of its EA-based service area. 
Further, each EA licensee must provide coverage to at least two-thirds 
of the population of the EA-based service area within five years of the

[[Page 6761]]

grant of their initial license. EA-based licensees may, in the 
alternative, provide substantial service to their markets within five 
years of the grant of their initial license. Substantial service shall 
be defined as: ``Service which is sound, favorable, and substantially 
above a level of mediocre service.''
* * * * *

0
10. Section 90.693 is amended by revising paragraphs (c), and (d)(2) to 
read as follows:


Sec.  90.693  Grandfathering provisions for incumbent licensees.

* * * * *
    (c) Special provisions for Spectrum Blocks F1 through V. Incumbent 
licensees that have received the consent of all affected parties or a 
certified frequency coordinator to utilize an 18 dB[mu]V/m signal 
strength interference contour shall have their service area defined by 
their originally-licensed 36 dB[mu]V/m field strength contour and their 
interference contour shall be defined as their originally-licensed 18 
dB[mu]V/m field strength contour. The ``originally-licensed'' contour 
shall be calculated using the maximum ERP and the actual HAAT along 
each radial. Incumbent licensees seeking to utilize an 18 dB[mu]V/m 
signal strength interference contour shall first seek to obtain the 
consent of affected co-channel incumbents. When the consent of a co-
channel licensee is withheld, an incumbent licensee may submit to any 
certified frequency coordinator an engineering study showing that 
interference will not occur, together with proof that the incumbent 
licensee has sought consent. Incumbent licensees are permitted to add, 
remove or modify transmitter sites within their original 18 dB[mu]V/m 
field strength contour without prior notification to the Commission so 
long as their original 18 dB[mu]V/m field strength contour is not 
expanded and the station complies with the Commission's short-spacing 
criteria in Sec. Sec.  90.621(b)(4) through 90.621(b)(6). Incumbent 
licensee protection extends only to its 36 dB[mu]V/m signal strength 
contour. Pursuant to the minor modification notification procedure set 
forth in Sec.  1.947(b) of this chapter the incumbent licensee must 
notify the Commission within 30 days of any changes in technical 
parameters or additional stations constructed that fall within the 
short-spacing criteria. See 47 CFR 90.621(b).
    (d) * * *
    (2) Special Provisions for Spectrum Blocks F1 through V. Incumbent 
licensees that have received the consent of all affected parties or a 
certified frequency coordinator to utilize an 18 dB[mu]V/m signal 
strength interference contour operating at multiple sites may, after 
grant of EA licenses has been completed, exchange multiple site 
licenses for a single license. This single site license will authorize 
operations throughout the contiguous and overlapping 36 dB[mu]V/m field 
strength contours of the multiple sites. Incumbents exercising this 
license exchange option must submit specific information on Form 601 
for each of their external base sites after the close of the 800 SMR 
auction. The incumbent's geographic license area is defined by the 
contiguous and overlapping 18 dB[mu]V/m contours of its constructed and 
operational external base stations and interior sites that are 
constructed within the construction period applicable to the incumbent. 
Once the geographic license is issued, facilities that are added within 
an incumbent's existing footprint and that are not subject to prior 
approval by the Commission will not be subject to construction 
requirements.

[FR Doc. 05-2420 Filed 2-7-05; 8:45 am]
BILLING CODE 6712-01-P