[Federal Register Volume 70, Number 46 (Thursday, March 10, 2005)]
[Proposed Rules]
[Pages 11916-11922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4725]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 22

[WT Docket No. 04-435; FCC 04-288]


Facilitating the Use of Cellular Telephones and Other Wireless 
Devices Aboard Airborne Aircraft

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission proposes to replace or relax 
the ban on the airborne usage of 800 MHz cellular handsets as well as 
proposes other steps to facilitate the use of wireless handsets and 
devices, including those used for broadband applications, on airborne 
aircraft in appropriate circumstances. These actions should benefit 
consumers by adding to future and existing air-ground communications 
options that will provide greater access for mobile voice and broadband 
services while airborne.

DATES: Comments are due on or before April 11, 2005, and reply comments 
are due May 9, 2005.

FOR FURTHER INFORMATION CONTACT: Guy Benson, Mobility Division, 
Wireless Telecommunications Bureau, at 202-418-2946 or via e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Notice of Proposed Rulemaking (NPRM), FCC 
04-288, in WT Docket No. 04-435, adopted December 15, 2004, and 
released February 15, 2005. The full text of this document is available 
for public inspection and copying during regular business hours at the 
FCC Reference Information Center, 445 12th St., SW., Room CY-A257, 
Washington, DC 20554. The complete text may be purchased from the 
Commission's duplicating contractor: Best Copy & Printing, Inc., 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]. 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].

I. Synopsis of the Notice of Proposed Rulemaking

    1. In this Notice of Proposed Rulemaking, we propose to replace or 
relax our ban on airborne usage of 800 MHz cellular handsets as well as 
propose other steps to facilitate the use of wireless handsets and 
devices, including those used for broadband applications, on airborne 
aircraft in appropriate circumstances.
    2. In 1991, the Commission adopted its prohibition on using 800 MHz 
cellular phones while airborne. The rule prevents the airborne use of 
cellular phones carried onboard by passengers or crew members, as well 
as use of cellular equipment that might be installed permanently, on 
both private and commercial aircraft. The ban was adopted in order to 
guard against the threat of harmful interference from airborne use of 
cellular phones to terrestrial cellular networks. While Personal 
Communications Services (PCS) under part 24 and Wireless Communications 
Services (WCS) under part 27 are not subject to an airborne use 
prohibition by Commission rules, regulations promulgated by the Federal 
Aviation Administration (FAA) prohibit the use of all types of mobile 
telephones, as well as other portable electronic devices (PEDs), on 
aircraft, unless the aircraft operator has determined that the use of 
the PED (including mobile/cellular telephones) will not interfere with 
the aircraft's aviation navigation and communication systems. Thus, 
while our objective is to relax or remove the Commission's prohibition 
on the airborne use of cellular telephones, any steps we ultimately 
take will leave the use of personal electronic devices (including 
cellular and other wireless handsets) aboard aircraft subject to the 
rules and policies of the FAA and aircraft operators.
    3. We believe that allowing the use of wireless handsets during 
flight has the potential to benefit homeland security, business, and 
consumers by adding to future and existing air-ground communications 
options, including broadband applications. We thus believe that the 
removal or modification of the Commission's cellular airborne 
prohibition will benefit public safety and homeland security personnel 
in need of an air-to-ground communications link in case of an emergency 
situation. It should also provide enhanced flexibility for service 
providers to meet the increasing demand for access to mobile telephone 
and mobile data services and encourage the deployment of innovative and 
efficient communications technologies and applications. Because of 
these potential benefits, we tentatively conclude that our current 
blanket prohibition on airborne cellular use should be modified, and we 
seek comment on ways to ensure that this can be accomplished without 
creating the potential for harmful interference to terrestrial cellular 
networks. We believe that taking action that will lead to more 
opportunities for service and less regulation for cellular licensees, 
yet which guards against harmful interference to terrestrial wireless 
communications, serves the public interest.
    4. Accordingly, we believe that section 22.925 of our rules should 
be replaced with a more flexible policy, and we seek comment on whether 
the proposals detailed below are appropriate substitutes for the 
current ban on airborne cellular use.

A. Use of Wireless Handsets Controlled by Onboard Pico Cells

    5. One promising technological approach that could support non-
interfering airborne use of wireless handsets is to control handset 
operation through use of airborne ``pico cells.'' In effect, an 
airborne pico cell is a low power cellular base station installed in 
the aircraft for the purpose of communicating with (and controlling the 
operations of) cellular handsets or other cellular devices brought on 
the aircraft by passengers and crew. Thus, a pico cell is analogous to 
an in-building wireless system (like those used in large buildings, 
malls, etc.) for use in the aircraft. The cellular signal travels from 
the cellular handset to the pico cell,

[[Page 11917]]

which then relays the call to the ground via a separate air-to-ground 
link, e.g., via a satellite band or the 800 MHz Air-Ground band.
    6. The pico cell concept has the potential to address concerns of 
interference from airborne handsets to terrestrial cellular base 
stations because the pico cell would not use the cellular band to 
provide the air-ground link between the pico cell and the public 
switched telephone network or the Internet. Instead, airborne use of 
cellular frequencies would be limited to communication inside the 
aircraft between the cellular handset and the pico cell, while the air-
ground link would be provided on a non-cellular band that would not 
threaten interference to terrestrial-based cellular networks. In 
addition, interference to terrestrial cellular stations would be 
prevented because the airborne pico cell would minimize handset power 
levels by instructing handsets to operate at their lowest power 
setting. In contrast, without a ready pico cell on the aircraft, 
airborne handsets would normally operate at their highest power setting 
in an attempt to reach base stations located far away on the ground, 
potentially causing interference to terrestrial cellular networks. 
Consequently, we also seek comment on whether we would need to mandate 
that the pico cell cover a specific set of technologies so that all 
handsets on board aircraft are controlled by the pico cell.
    7. The ability of pico cells to minimize handset power levels thus 
may enable us to remove or relax section 22.925. Accordingly, we 
propose to permit cellular handsets to be used in airborne aircraft so 
long as they are operating under control of a pico cell (installed in 
accordance with FAA rules) that will instruct the handsets to operate 
at a sufficiently low power setting so as to not interfere with 
airborne or terrestrial systems. We ask commenters whether we should 
adopt technical rules regarding the onboard operation of pico cells 
using 800 MHz cellular spectrum. For example, if an airborne pico cell 
were to fail, how should our regulations address the risk of airborne 
cell phones beginning to search for a terrestrial base station and 
transmitting at maximum power? We seek comment generally on the 
viability of this and other potential technological advancements, and 
we solicit any other ideas or suggestions that commenters believe would 
increase flexibility for cellular licensees, while avoiding 
interference to airborne and terrestrial systems. Although we are 
mainly concerned with potential interference to terrestrial systems, we 
also recognize the aviation safety concerns that form the basis of the 
FAA's prohibition on mobile phone use. Consequently, we ask commenters 
to address whether we should adjust the Commission's permissible out-
of-band and spurious emission limits on cellular handsets in order to 
ensure that aircraft systems are not affected by unwanted emission from 
cell phones.
    8. We also ask that commenters address the issue of who should have 
rights to operate on 800 MHz cellular spectrum in an airborne pico cell 
environment. As a threshold matter, we propose that cellular licensees 
should have the right to operate pico cell systems on their licensed 
frequencies. Because, however, such pico cell operations would be 
airborne and transitory, rather than permanently located in any 
particular licensee's terrestrial service area, and in principle would 
access a wide range of cellular frequencies, we seek comment on how 
these rights should be apportioned or shared among such licensees. We 
also seek comment as to how interference protection would be provided 
to terrestrial operations. As one example of how this might work, any 
800 MHz cellular licensee, regardless of the location of their service 
area and the flight path of the aircraft, would be authorized to 
install a pico cell that operates on these frequencies within the 
aircraft. Under this approach, the cellular licensee would be 
responsible for the proper operation of the pico cell and would be in a 
position to remedy any interference to ground systems. Similarly, a 
group of licensees might operate the pico cell.
    9. We also seek comment on whether any parties besides, or in 
addition to, cellular licensees should have rights to airborne use of 
this spectrum--either under a secondary market arrangement (e.g., a 
spectrum lease)--or under a separate authorization. For example, should 
the owner of a particular aircraft be able to install and operate a 
pico cell without leasing spectrum usage rights or partnering with a 
cellular carrier? Should a third party, other than the aircraft 
operator, be authorized to install and operate the pico cell? If we 
adopted a third party approach, what should the parameters or extent of 
such third party rights be, and what interference protection 
obligations would such third parties have to terrestrial cellular 
licensees? Should such rights be granted solely on a secondary basis to 
that of terrestrial cellular systems in order to ensure that 
terrestrial cellular systems are protected from interference?
    10. We also ask that commenters address whether pico cells should 
be individually licensed or subject to some form of ``blanket'' license 
or individual registration. Under any of these pico cell scenarios, we 
stress that protecting terrestrial cellular systems from harmful 
interference remains a paramount concern. We also believe that to 
ensure that terrestrial cellular systems can obtain prompt relief in 
the event of harmful interference from airborne operations, our rules 
should provide for clear identification of the particular entity or 
entities responsible for airborne pico cell operations, as well as for 
complying with other Commission rules and policies relating to airborne 
use of cellular frequencies.
    11. In addition, we seek comment on whether the pico cell proposal 
outlined above should apply to part 90 operations, or some subset of 
part 90 consumer equipment (such as consumer handsets operated by SMR 
licensees), which is subject to a separate airborne limitation for part 
90 land mobile (including SMR) handsets that impacts operation of many 
consumer devices such as those operated by Nextel. Although the current 
part 90 technical and operational limitations are more permissive than 
the current 800 MHz cellular ban, our proposal would represent 
additional flexibility for airborne part 90 operation.
    12. Similarly, we seek comment whether, and the extent to which, 
our pico cell proposal should apply to part 24 and part 27 services. In 
this connection, we note that many telephones today are dual band 
phones, capable of operating in both cellular and PCS frequencies. We 
ask that commenters address whether this should affect our decision 
here. Although there is currently no Commission limitation on operation 
of part 24 PCS or part 27 WCS devices in airborne aircraft, they are 
subject to FAA restrictions on PEDs, and as a result, the airborne use 
of part 24 and part 27 devices, as well as the effect of such use on 
terrestrial systems, have generally not been at issue. We seek comment, 
however, on whether it would be beneficial to adopt rules for pico cell 
operations in part 24 and part 27 bands in the event that the FAA 
modifies its policies. Keeping in mind our goals of increased 
flexibility and interference-free operations, would adopting such rules 
unnecessarily reduce the flexibility afforded to licensees in these 
bands, or would it provide a useful framework for the development of 
airborne applications in these bands to the extent technical and 
business considerations dictate?

[[Page 11918]]

B. Other Airborne Uses of 800 MHz Cellular Spectrum

    13. We also seek comment on ways that the 800 MHz cellular spectrum 
might be used as a communications pipe between airborne aircraft and 
the ground. We believe that it is possible to achieve the goal of 
increasing flexibility for cellular licensees without exposing 
terrestrial-based cellular networks to harmful interference. In this 
connection, we note that cellular infrastructure has changed greatly 
since 1991 when the airborne cellular use ban was first adopted and 
that promising technical innovations have occurred in the areas of 
power control, filter design, and antenna design that may assist the 
industry in resolving potential interference without a Commission-
mandated ban on airborne use. Therefore, we seek comment on the 
possibility of relying on a long-term, industry-initiated solution to 
govern airborne use.
    14. More particularly, we seek comment on whether the prohibition 
on airborne cellular use could be replaced by an industry-developed 
standard that would allow 800 MHz cellular licensees to offer airborne 
cellular service in accordance with a set of technical and operational 
limitations widely agreed to by the affected licensees. We believe that 
licensees have a strong incentive to develop such standards because of 
the flexibility in deployment and service offerings that airborne 
services could bring. We also note that organizations such as the 
Telecommunications Industry Association and the Electronic Industries 
Alliance have led, and continue to lead, successful efforts to develop 
technical and operational standards for introduction of new and 
additional technologies and services into already occupied spectrum by 
industry consensus, as opposed to government mandate. Should such 
consensus be reached with respect to airborne cellular operations, we 
would independently evaluate the standard and modify our rules and 
policies regarding airborne cellular use accordingly. Commenters should 
discuss the difficulties, as well as any solutions, to this approach. 
Commenters should also offer any other suggestions as to how the 
industry, rather than the Commission, can develop a regime that enables 
interference-free airborne cellular use.
    15. In addition to the foregoing, we request comment on whether we 
should allow any cellular licensee to provide cellular service to 
airborne units on a secondary basis, subject to a set of conservative 
technical limitations. We believe that the potential for harmful 
interference to terrestrial networks can be successfully managed by a 
combination of technical limitations, including low power operation, 
use of directional or ``smart'' antennas, and diversity in antenna 
polarization. In this connection, we believe the record demonstrates 
that airborne transmissions at or below 0 dBm (1 milliWatt) power to 
the airborne antenna input are generally undetectable by ordinary 
cellular terrestrial base stations under all circumstances. We thus 
believe that the cellular service proposed here should be subject to 
specific, conservative technical criteria so that the transmitter power 
at the input to the airborne antenna is limited to 0 dBm (1 milliWatt). 
Although such a conservative power limit is sure to prevent harmful 
interference to terrestrial base stations, it may not be sufficient to 
facilitate real-world air-to-ground communications. Therefore, we 
propose that if directional or smart antennas, or diversity in antenna 
polarization is used, the 0 dBm limit may be increased by the amount of 
isolation provided by such methods.
    16. We seek comment on how to quantify the effect of different 
types of isolation. For example, if cross-polarization isolation is 
employed, how much greater than 0 dBm should be allowed? Are there 
quantifiable factors already being employed in the industry? Or, do 
commenters believe that any isolation factor should be determined on a 
case-by-case basis? If so, commenters are requested to suggest any 
guiding principles that would aid our analysis and expedite 
consideration and agreement upon such isolation factors. In seeking to 
optimize the secondary use contemplated under this proposal, we also 
ask that commenters address whether we should limit the amount of 
cellular spectrum that may be used for secondary air-to-ground 
operations, as well as whether the number of secondary users should be 
limited. We note that this proposal is currently limited to 800 MHz 
cellular spectrum because the record in this proceeding has focused on 
the 800 MHz band. If commenters believe that it is appropriate to 
include other spectrum bands and services, they should provide 
technical data in support.
    17. We believe that this approach may increase the opportunities 
for carriers to offer, and the general public to receive, airborne 
cellular services and thereby result in concomitant benefits for both 
licensees and consumers. We seek comment on this proposal and ask 
whether there are any other technical or operational rules that we 
might adopt that will further the goal of enabling airborne cellular 
service on a secondary basis, as described here, that will not cause 
harmful interference to cellular terrestrial stations and/or users.

II. Procedural Matters

A. Initial Regulatory Flexibility Analysis

    18. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), 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 Notice of Proposed Rulemaking. 
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 Notice of Proposed Rulemaking provided in paragraph 
27 of the item. The Commission will send a copy of the Notice of 
Proposed Rulemaking, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). In addition, the 
Notice of Proposed Rulemaking and IRFA (or summaries thereof) will be 
published in the Federal Register.
1. Need for, and Objectives of, the Proposed Rules
    19. In this Notice of Proposed Rulemaking, we propose to replace or 
relax the ban on airborne usage of 800 MHz cellular handsets as well as 
propose other steps to facilitate the use of wireless handsets and 
devices, including those used for broadband applications, on airborne 
aircraft in appropriate circumstances. Section 22.925 of the 
Commission's rules currently prohibits the airborne use of 800 MHz 
cellular telephones, including the use of such phones on commercial and 
private aircraft. We believe that allowing controlled use of cellular 
handsets and other wireless devices in airborne aircraft will promote 
homeland security and will benefit consumers by adding to future and 
existing air-ground communications options that will provide greater 
access for mobile voice and broadband services during flight.
    20. In particular, this Notice of Proposed Rulemaking proposes to 
permit the airborne operation of standard, ``off the shelf'' wireless 
handsets so long as the handsets are operating at their lowest power 
setting under control of a ``pico cell'' located on the aircraft. It 
also seeks comment on ways that the 800 MHz cellular spectrum could be 
used to provide a

[[Page 11919]]

communications ``pipe'' between airborne aircraft and the ground. In 
this connection, we seek comment on whether the prohibition on airborne 
cellular use could be replaced by an industry-developed standard that 
would guard against harmful interference to airborne and terrestrial 
systems through appropriate technical and operational limitations. 
Finally, this Notice of Proposed Rulemaking seeks comment on whether to 
amend our rules to allow cellular licensees to provide service on a 
secondary basis to airborne units subject to technical limitations 
aimed at preventing harmful interference to airborne and terrestrial 
cellular systems.
2. Legal Basis
    21. This action is taken under sections 1, 4(i), 11, and 303(r) and 
(y), 308, 309, and 332 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154(i), 161, 303(r), (y), 308, 309, and 332.
3. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply
    22. 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).
    23. In this section, we further describe and estimate the number of 
small entity licensees and regulatees that may be affected by our 
action. The most reliable source of information regarding the total 
numbers of certain common carrier and related providers nationwide, as 
well as the number of commercial wireless entities, appears to be the 
data that the Commission publishes in its Trends in Telephone Service 
report. The SBA has developed small business size standards for 
wireline and wireless small businesses within the three commercial 
census categories of Wired Telecommunications Carriers, Paging, and 
Cellular and Other Wireless Telecommunications. Under these categories, 
a business is small if it has 1,500 or fewer employees. Below, using 
the above size standards and others, we discuss the total estimated 
numbers of small businesses that might be affected by our actions.
    24. Cellular Licensees. The SBA has developed a small business size 
standard for wireless firms within the broad economic census category 
``Cellular and Other Wireless Telecommunications.'' Under this SBA 
category, a wireless business is small if it has 1,500 or fewer 
employees. For the census category Cellular and Other Wireless 
Telecommunications firms, Census Bureau data for 1997 show that there 
were 977 firms in this category, total, that operated for the entire 
year. Of this total, 965 firms had employment of 999 or fewer 
employees, and an additional 12 firms had employment of 1,000 employees 
or more. Thus, under this category and size standard, the great 
majority of firms can be considered small. According to the most recent 
Trends in Telephone Service data, 719 carriers reported that they were 
engaged in the provision of cellular service, personal communications 
service, or specialized mobile radio telephony services, which are 
placed together in the data. We have estimated that 294 of these are 
small, under the SBA small business size standard.
    25. 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 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.
    26. 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.
    27. 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 
defined ``small entity'' for Blocks C and F as an entity that has 
average gross revenues of $40 million or less in the three previous 
calendar years. For Block F, 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 standards 
defining ``small entity'' 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 re-auctioned 347 C, D, 
E, and F Block licenses. There were 48 small business winning bidders. 
On January 26, 2001, the Commission completed the auction of 422 C and 
F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders 
in this auction, 29 qualified as ``small'' or ``very small'' 
businesses. Subsequent events, concerning Auction 305, including 
judicial and agency determinations, resulted in a total of 163 C and F 
Block licenses being available for grant. In addition, we note that, as 
a general matter, the number of winning bidders that qualify as small 
businesses at the close of an auction does not necessarily represent 
the number of small businesses currently in service. In addition, the 
Commission does not generally track subsequent business size unless, in 
the context of assignments or transfers, unjust enrichment issues are 
implicated.

[[Page 11920]]

    28. 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 41 licenses, 11 of which were 
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 in the Narrowband PCS Second 
Report and Order. 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. A fourth auction commenced on September 24, 2003 
and closed on September 29, 2003. Here, four bidders 48 licenses. Four 
of these claimed status as a very small entity and won 48 licenses. 
Finally, a fifth auction commenced on September 24, 2003 and closed on 
September 25, 2003. Here, one bidder won five licenses. That bidder 
claimed status as a very small entity.
    29. Specialized Mobile Radio (SMR). The Commission awards ``small 
entity'' bidding credits in auctions for 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.
    30. 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.
    31. 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.
    32. 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.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    33. The Notice of Proposed Rulemaking does not propose any 
reporting, recordkeeping or compliance requirements. However, we seek 
comment on what, if any, requirements may arise as a result of our 
discussion in the Notice of Proposed Rulemaking.
5. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    34.The RFA requires an agency to describe any significant, 
specifically small business, 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 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.
    35. Regarding our proposal to allow pico cells to control 800 MHz 
cellular telephones while airborne, we anticipate no adverse impact on 
small businesses. Currently, cellular telephone use is prohibited by 
section 22.925 of our rules. Relaxing or removing this restriction will 
generally result in increased opportunities for all sorts of 
businesses, including small businesses.
    36. More specifically, we propose to grant cellular licensees 
authority to operate pico cell systems on their licensed frequencies. 
In the event that we ultimately determine that eligibility should be 
limited solely to cellular licensees, we recognize that other entities, 
including small business entities, would not be able to take advantage 
of the increased market opportunities for air-to-ground voice service. 
Cellular small business licensees, however, would benefit from 
increased flexibility and increased

[[Page 11921]]

ability to offer services. As an alternative approach, we seek comment 
in this NPRM as to whether the rights to operate such systems should be 
available to other (non-cellular) entities. Should we determine that 
the public interest would be served by opening up eligibility, small 
businesses that are not cellular licensees could benefit from increased 
market opportunities.
    37. Similarly, we seek comment on whether our pico cell proposal 
should apply to non-cellular operations under parts 24 (PCS), 27 (WCS), 
and 90 (SMR and other land mobile radio) of our rules. Regarding 
licensees regulated under parts 24 and 27, there is currently no 
Commission rule restricting airborne use of wireless handsets. 
Consequently, on one hand, if we were to include these services in our 
proposal, it could be construed that the flexibility of all licensees, 
including small businesses, would be reduced. On the other hand, mobile 
units covered under these licenses are currently prohibited by the FAA 
to be used in aircraft while airborne. We also note that such devices 
may not be able to connect with ground stations above certain altitudes 
due to the great distances. Accordingly, to the extent that this 
proceeding leads to the permissible and viable airborne operation of 
wireless devices using part 24 and part 27 spectrum, we believe all 
entities could benefit. Regarding land mobile licensees under part 90, 
our rules limit the airborne use of mobile units. Our proposal to relax 
these limitations will, therefore, result in increased opportunities 
for both large and small businesses.
    38. We also seek comment on the practicality of an industry-
initiated agreement that sets forth technical and operational standards 
that would allow cellular carriers to provide air-to-ground services 
while ensuring no harmful interference to terrestrial cellular systems. 
We believe that no adverse impact on small entities would result from 
such an industry consensus. To the contrary, small businesses will be 
able to participate in the industry-initiated process and take 
advantage of increased opportunities to offer service to aircraft.
    39. Finally, regarding our decision to seek comment on whether 
cellular licensees should be able to offer service to airborne wireless 
units on a secondary basis, subject to conservative technical and 
operational rules, we anticipate no adverse impact on small entities. 
In fact, were we to ultimately adopt rules contemplated by this policy, 
small businesses would benefit from increased opportunities and 
flexibility to serve their clients.
6. Federal Rules That May Duplicate, Overlap or Conflict With the 
Proposed Rules
    40. 14 CFR 91.21, 121.306, 125.204, and 135.144.

B. Initial Paperwork Reduction Act of 1995 Analysis

    41. This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, therefore, it does not contain any proposed 
information collection burden ``for small business concerns with fewer 
than 25 employees,'' pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
    42. 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 or before April 11, 2005, and reply 
comments are due May 9, 2005. Comments and reply comments should be 
filed in WT Docket No. 04-435. All relevant and timely comments will be 
considered by the Commission before final action is taken in this 
proceeding.
    43. 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. 04-435. 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.
    44. 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. 
04-435. 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.)
    45. 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 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.
    46. 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 http:[email protected]">//www.[email protected]; and (2) Guy Benson, Mobility Division, Wireless 
Telecommunications Bureau, 445 12th

[[Page 11922]]

Street, SW., Washington, DC 20554, or e-mail at [email protected].
    47. 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, DC 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 http:[email protected]">//www.[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].

C. Ex Parte Rules Regarding the NRPM--Permit-But-Disclose Comment 
Proceeding

    48. With regard to the NRPM, this is a permit-but-disclose 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.

III. Ordering Clauses

    49. Pursuant to the authority contained in sections 1, 4(i), 11, 
and 303(r) and (y), 308, 309, and 332 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 154(i), 161, 303(r), (y), 308, 309, 
and 332, this Notice of Proposed Rulemaking is hereby adopted.
    50. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, will send a copy of this Notice of 
Proposed Rulemaking, including the IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 22

    Communications common carriers, Radio.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 22 as follows:

PART 22--PUBLIC MOBILE SERVICES

    1. The authority citation for part 22 continues to read as follows:

    Authority: 47 U.S.C. 154, 222, 303, 309, and 332.

    2. Section 22.925 is revised to read as follows:


Sec.  22.925  Prohibition on airborne operation of cellular telephones.

    (a) Cellular devices installed in or carried aboard airplanes, 
balloons or any other type of aircraft must not be operated and must be 
turned off while such aircraft are airborne (not touching the ground) 
unless as specified in paragraph (b) of this section. Unless measures 
are implemented aboard aircraft in accordance with paragraph (b), the 
following notice must be posted on or near each cellular device 
installed in any aircraft:


``The use of cellular telephones while this aircraft is airborne is 
prohibited by FCC rules, and the violation of this rule could result in 
suspension of service and/or a fine. The use of cellular telephones on 
this aircraft is also subject to FAA regulations.''
    (b) Devices using 800 MHz cellular frequencies may be operated on 
airborne aircraft only if such devices are operated in a manner that 
will not cause interference to terrestrial cellular systems. Airborne 
operation of cellular devices is permissible only if operation of these 
devices is under the control of onboard equipment specifically designed 
to mitigate such interference.

    Note to Sec.  22.925: The FAA independently prohibits the use of 
personal electronic devices, including cellular devices, unless an 
aircraft operator has determined that use of those devices does not 
cause interference to an aircraft's aviation navigation and 
communications systems.

[FR Doc. 05-4725 Filed 3-9-05; 8:45 am]
BILLING CODE 6712-01-P