[Federal Register Volume 70, Number 114 (Wednesday, June 15, 2005)]
[Proposed Rules]
[Pages 34726-34729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11476]


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

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 90

[WT Docket No. 99-87; RM-9332; FCC 04-292]


Promotion of Spectrum Efficient Technologies on Certain 
Frequencies

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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

SUMMARY: In this document, the Commission seeks comments on whether to 
defer or eliminate the requirement in the rules that certain 
applications for equipment authorization received on or after January 
1, 2005, specify 6.24 kHz capability.

DATES: Submit comments on or before August 15, 2005, and reply comments 
are due on or before September 13, 2005.

FOR FURTHER INFORMATION CONTACT: Rodney Conway, [email protected], 
Public Safety and Critical Infrastructure Division, Wireless 
Telecommunications Bureau, (202) 418-0680, TTY (202) 418-7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Third Further Notice of Proposed Rule 
Making (3rd Further NPRM), FCC 04-292, adopted on December 20, 2004, 
and released on December 23, 2004. The full

[[Page 34727]]

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 
FCC'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. In the Second Further Notice of Proposed Rule Making (2nd 
Further NPRM) in this proceeding (68 FR 42337, July 17, 2003), the 
Commission sought comment on whether it should adopt measures to 
facilitate the migration to 6.25 kHz operations. In comments to the 
(2nd Further NPRM) and in separate pleadings, parties argued that the 
Commission should eliminate or, in the alternative, defer, the 
requirement in 47 CFR 90.203(j)(5) that equipment approval applications 
received on or after January 1, 2005 for equipment operating in the 
150-174 MHz and/or 421-512 MHz bands must either be capable of 
operating on 6.25 kHz channels or meet a narrowband efficiency standard 
of one channel per 6.25 kHz (voice) or 4800 bits per second per 6.25 
kHz (data).
    2. Because these pleadings raise an issue beyond but connected to 
the Commission's inquiry in the 2nd Further NPRM, the 3rd Further NPRM 
seeks comment on this proposal. Specifically, it seeks comment on the 
petitioners' assumption that the current rule would place onerous 
burdens on manufacturers and jeopardize the promotion of 
interoperability between users in the absence of a 6.25 kHz equivalent 
efficiency standard. It also seeks comment on whether the question 
hinges on a distinction between equipment-based technologies that are 
specifically manufactured to utilize 6.25 kHz channel bandwidth as 
opposed to reconfigured 12.5 kHz equipment or software-defined 12.5 kHz 
equipment made capable of operating on channel bandwidths with an 
equivalent efficiency of 6.25 kHz. In the absence of a single, 
equipment-based 6.25 kHz technology standard, would the deployment of 
non-standardized equipment capable of utilizing 6.25 kHz efficiency 
channel bandwidths significantly hamper interoperability? The 
Commission seeks comment on these and any other related issues, but 
emphasizes that it is not reopening the record for comments regarding 
the broader issues raised in the 2nd Further NPRM regarding migration 
to 6.25 kHz technology.
    3. For Commission licensees operating in the Federal Government 
bands 150.05-150.8 MHz, 162.0125-173.2 MHz, and 173.4-174 MHz, we 
recognize that a separate ongoing proceeding--ET Docket No. 04-243--is 
addressing whether different narrowbanding requirements are needed to 
account for the Federal Government's own narrowbanding plans in those 
bands. Accordingly, we defer decisions with respect to those bands to 
that proceeding.

I. Procedural Matters

A. Ex Parte Rules--Permit-But-Disclose Proceeding

    4. This is a permit-but-disclose notice and comment rulemaking 
proceeding. Ex parte presentations are permitted, except during the 
Sunshine Agenda period, provided they are disclosed as provided in the 
Commission's rules.

B. Comment Dates

    5. Pursuant to Sec.  1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments on or before 
August 15, 2005, and reply comments on or before September 13, 2005. 
Comments may be filed using the Commission's Electronic Comment Filing 
System (ECFS) or by filing paper copies.
    6. Comments filed through the ECFS can be sent as an electronic 
file via the Internet to http://www.fcc.gov/e-file/ecfs.html. 
Generally, only one copy of an electronic submission must be filed. If 
multiple docket or rulemaking numbers appear in the caption of this 
proceeding, however, commenters must transmit one electronic copy of 
the comments to each docket or rulemaking number referenced in the 
caption. In completing the transmittal screen, commenters should 
include their full name, Postal Service mailing address, and the 
applicable docket or rulemaking number. Parties may also submit an 
electronic comment by Internet e-mail. To get 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. Parties who choose to file by paper must file an original and 
four copies of each filing. If more than one docket or rulemaking 
number appears in the caption of this proceeding, commenters must 
submit two additional copies for each additional docket or rulemaking 
number. All filings must be addressed to the Commission's Secretary, 
Marlene H. Dortch, Office of the Secretary, Federal Communications 
Commission, 445 12th St., SW., Washington, DC 20554. Filings can be 
sent first class by the U.S. Postal Service, by an overnight courier or 
hand and message-delivered. Hand and message-delivered paper filings 
must be delivered to 236 Massachusetts Avenue, NE, Suite 110, 
Washington, DC 20002. Filings delivered by overnight courier (other 
than U.S. Postal Service Express Mail and Priority Mail) must be sent 
to 9300 East Hampton Drive, Capitol Heights, MD 20743.
    7. Parties who choose to file by paper should also submit their 
comments on diskette. These diskettes should be submitted to: Rodney 
Conway, Wireless Telecommunications Bureau, 445 12th St., SW., Room 3-
C405, Washington, DC 20554. Such a submission should be on a 3.5 inch 
diskette formatted in an IBM compatible format using Microsoft Word or 
compatible software. The diskette should be accompanied by a cover 
letter and should be submitted in ``read only'' mode. The diskette 
should be clearly labeled with the commenter's name, proceeding 
(including the docket number in this case, WT Docket No. 99-87), type 
of pleading (comment or reply comment), date of submission, and the 
name of the electronic file on the diskette. The label should also 
include the following phrase ``Disk Copy--Not an Original.'' Each 
diskette should contain only one party's pleadings, preferably in a 
single electronic file. In addition, commenters should send diskette 
copies to the Commission's copy contractor, Best Copy and Printing, 
Inc., 445 12th St., SW., Room CY-B402, Washington, DC 20554.

C. Paperwork Reduction Act

    8. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified ``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).

II. Regulatory Flexibility Act Analysis

    9. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in this Third Further 
Notice of Proposed Rule Making (3rd Further NPRM). Written public

[[Page 34728]]

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 this Further NPRM provided above in para. 5, supra. The Commission 
will send a copy of the 3rd Further NPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (SBA). 
In addition, the 3rd Further NPRM and IRFA (or summaries thereof) will 
be published in the Federal Register.
Need for, and Objectives of, the Proposed Rules
    10. The purpose of this 3rd Further NPRM is to determine whether it 
would be in the public interest, convenience, and necessity to amend 
our rules governing private land mobile radio licensees in the 150-174 
MHz and 421-512 MHz bands to modify or eliminate the requirement in 
Sec.  90.203(j)(5) of the Commission's rules that require applications 
for certification of equipment received on or after January 1, 2005 
operating with a 25 kHz bandwidth only to the extent that the equipment 
meets the spectrum efficiency standard of one channel per 6.25 kHz of 
channel bandwidth (voice) or 4800 bits per second per 6.25 kHz (data).
Legal Basis
    11. Authority for issuance of this 3rd Further NPRM is contained in 
sections 4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, 
as amended.
Description and Estimate of the Number of Small Entities to Which the 
Proposed Rules Will Apply
    12. 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 proposed rules, if adopted. Under the RFA, small 
entities may include small organizations, small businesses, and small 
governmental jurisdictions. The RFA generally defines the term ``small 
business'' as having 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 SBA. A small organization is generally ``any not-
for-profit enterprise which is independently owned and operated and is 
not dominant in its field.'' Nationwide, as of 1992, there were 
approximately 275,801 small organizations.
    13. The proposed rule amendments may affect users of Public Safety 
Radio Pool services and private radio licensees that are regulated 
under part 90 of the Commission's rules, and may also affect 
manufacturers of radio equipment. An analysis of the number of small 
entities affected follows.
    14. Public safety services and Governmental entities. Public safety 
radio services include police, fire, local governments, forestry 
conservation, highway maintenance, and emergency medical services. The 
SBA rules contain a definition for small radiotelephone (wireless) 
companies that encompass business entities engaged in radiotelephone 
communications employing no more that 1,500 persons. There are a total 
of approximately 127,540 licensees within these services. Governmental 
entities as well as private businesses comprise the licensees for these 
services. The RFA also includes small governmental entities as a part 
of the regulatory flexibility analysis. ``Small governmental 
jurisdiction'' generally means ``governments of cities, counties, 
towns, townships, villages, school districts, or special districts, 
with a population of less than 50,000.'' As of 1992, there were 
approximately 85,006 such jurisdictions in the United States. This 
number includes 38,978 counties, cities and towns; of these, 37,566, or 
96 percent, have populations of fewer than 50,000. The Census Bureau 
estimates that this ratio is approximately accurate for all 
governmental entities. Thus, of the 85,006 governmental entities, the 
Commission estimates that 81,600 (96 percent) are small entities.
    15. Estimates for PLMR Licensees. Private land mobile radio systems 
serve an essential role in a vast 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. 
Because of the vast array of PLMR users, the Commission has not 
developed a definition of small entities specifically applicable to 
PLMR users, nor has the SBA developed any such definition. The SBA 
rules do, however, contain a definition for small radiotelephone 
(wireless) companies. Included in this definition are business entities 
engaged in radiotelephone communications employing no more that 1,500 
persons. Entities engaged in telegraph and other message communications 
with no more than $5 million in annual receipts also qualify as small 
business concerns. According to the Bureau of the Census, only twelve 
radiotelephone firms of a total of 1,178 such firms which operated 
during 1992 had 1,000 or more employees. For the purpose of determining 
whether a licensee is a small business as defined by the SBA, each 
licensee would need to be evaluated within its own business area. The 
Commission's fiscal year 1994 annual report indicates that, at the end 
of fiscal year 1994, there were 1,101,711 licensees operating 
12,882,623 transmitters in the PLMR bands below 512 MHz.
    16. Equipment Manufacturers. We anticipate that at least six radio 
equipment manufacturers will be affected by our decisions in this 
proceeding. According to the SBA's regulations, a radio and television 
broadcasting and communications equipment manufacturer must have 750 or 
fewer employees in order to qualify as a small business concern. Census 
Bureau data indicate that there are 858 U.S. firms that manufacture 
radio and television broadcasting and communications equipment, and 
that 778 of these firms have fewer than 750 employees and would 
therefore be classified as small entities.
Description of Projected Reporting, Recordkeeping and Other Compliance 
Requirements
    17. This 3rd Further NPRM stays the January 1, 2005 date in Sec.  
90.203(j)(5) of the Commission's rules pending resolution of the issues 
presented in the 2nd Further NPRM and the Petition to Defer. Therefore, 
the 3rd Further NPRM removes any administrative or recordkeeping 
burdens associated with the requirement that applications for 
certification of equipment received on or after January 1, 2005 
operating with a 25 kHz bandwidth will be permitted only to the extent 
that the equipment meets the spectrum efficiency standard of one 
channel per 6.25 kHz of channel bandwidth (voice) or 4800 bits per 
second per 6.25 kHz (data) pursuant to Sec.  90.203 (j)(5) of the 
Commission's rules.
Steps Taken To Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered
    18. The RFA requires an agency to describe any significant 
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

[[Page 34729]]

coverage of the rule or any part thereof for small entities.
    19. The objective in the Refarming proceeding was to provide a 
means to transition licensees to 6.25 kHz technology. Migration to 12.5 
kHz technology was viewed as a stepping stone to operation at 6.25 kHz 
technology. However, requiring the use of 6.25 kHz technology by a date 
certain could impact some small entities requiring them to upgrade 
their communications systems before they would otherwise do so. An 
alternative would be to maintain the current rules, which are intended 
to foster migration to narrowband technology by way of progressively 
more stringent type certification requirements. We issue this 3rd 
Further NPRM to stay the effectiveness of Sec.  90.203(j)(5) of the 
Commission's rules and thereby ensure that a January 1, 2005 deadline 
would not injure any party while we consider whether a change in the 
Commission's rules would benefit small entities and other PLMR 
licensees.
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    None.

III. Ordering Clauses

    20. Pursuant to sections 1, 2, 4(i), 301, 302, and 303 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 
301, 302, and 303, and Sec. Sec.  1.421 and 1.425 of the Commission's 
rules, 47 CFR 1.421 and 1.425, it is ordered that the Third Further 
Notice of Proposed Rule Making is hereby adopted.
    21. It is further ordered that the Commission's Consumer 
Information Bureau, Reference Information Center, shall send a copy of 
this Third Memorandum Opinion and Order, Third Further Notice of 
Proposed Rule Making including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the U.S. Small Business 
Administration.

List of Subjects in 47 CFR Part 90

    Communications equipment, Radio, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary .
[FR Doc. 05-11476 Filed 6-14-05; 8:45 am]
BILLING CODE 6712-01-P