[Federal Register Volume 70, Number 206 (Wednesday, October 26, 2005)]
[Proposed Rules]
[Pages 61752-61762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21407]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 2

[ET Docket No. 00-258; FCC 05-172]


Advanced Wireless Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document seek comment on the specific relocation 
procedures applicable to Broadband Radio Service (BRS) operations in 
the 2150-2160/62 MHz band, which the Commission recently decided will 
be relocated to the newly restructured 2495-2690 MHz band. We also seek 
comment on the specific relocation procedures applicable to Fixed 
Microwave Service (FS) operations in the 2160-2175 MHz band. We propose 
to generally follow our relocation policies delineated in our Emerging 
Technologies proceeding and as modified by subsequent decisions.

DATES: Comments must be filed on or before November 25, 2005, and reply 
comments must be filed on or before December 12, 2005.

ADDRESSES: You may submit comments, identified by [ET Docket No. 00-
258], by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     E-mail: [Optional: Include the E-mail address only if you 
plan to accept comments from the general public]. Include the docket 
number(s) in the subject line of the message.
     Mail: [Optional: Include the mailing address for paper, 
disk or CD-ROM submissions needed/requested by your Bureau or Office. 
Do not include the Office of the Secretary's mailing address here.]
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Priya Shrinivasan, Office of 
Engineering and Technology, (202) 418-7005.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's NPRM 
of Proposed Rule Making, ET Docket No. 00-258, FCC 05-172, adopted 
September 23, 2005, and released September 29, 2005. The full text of 
this document is available on the Commission's Internet site at http://www.fcc.gov. It is also available for inspection and copying during 
regular business hours in the FCC Reference Center (Room CY-A257), 445 
12th Street, SW., Washington, DC 20554. The full text of this document 
also may be purchased from the Commission's duplication contractor, 
Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-
B402, Washington, DC 20554; telephone (202) 488-5300; fax (202) 488-
5563; e-mail [email protected].
    Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking 
Portal, or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
     For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. 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, 
filers should send an e-mail to [email protected], and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
     Paper Filers: 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, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or

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overnight U.S. Postal Service mail (although we continue to experience 
delays in receiving U.S. Postal Service mail). All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street, SW., Washington DC 20554.

People with Disabilities: To request materials in accessible formats 
for people with disabilities (braille, large print, electronic files, 
audio format), send an e-mail to [email protected] or call the Consumer & 
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 
(tty).

Summary of NPRM of Proposed Rulemaking

    1. In the Fifth NPRM of Proposed Rulemaking (Fifth NPRM), the 
Commission seeks to establish a new record, specifically with respect 
to relocation issues for the 2150-2160 MHz and 2160-2175 MHz bands as 
proposed in the NPRM. The Commission notes that it has previously 
sought comment on the use of Emerging Technologies policies in this 
proceeding (ET Docket No. 00-258) in different contexts and asks that 
parties file new comments on the issues in this Fifth NPRM, rather than 
incorporate by reference previously filed comments in this proceeding.
    2. The Commission continues to believe that its relocation policy, 
with minor modifications to accommodate the type of incumbent 
operations that are the subject of relocation and to maintain 
consistency within the entire band at issue, is the best approach to 
meet its goal of providing an opportunity for early entry to the 2150-
2160 MHz and 2160-2175 MHz bands for new Advanced Wireless Service 
(AWS) licensees, while minimizing the disruption to incumbent Broadband 
Radio Service (BRS) and Fixed Microwave Service (FS) operations during 
the transition. The NPRM therefore proposes to generally apply the 
Commission's relocation policy, as delineated in its Emerging 
Technologies proceeding and subsequent decisions, to the spectrum 
designated for AWS in this proceeding.

A. Relocation of BRS in the 2150-2160/62 MHz Band

    3. This portion of the NPRM seeks comment on the relocation 
procedures new AWS entrants should follow when relocating BRS incumbent 
licensees from the 2150-2160/62 MHz band.
    4. Background. In the AWS Second R&O in ET Docket No. 00-258, 68 FR 
3455, January 24, 2003, the Commission reallocated and designated a 5 
megahertz portion of the BRS band at 2150-2155 MHz for AWS use. 
Subsequently, in the AWS Third NPRM, also in ET Docket No. 00-258, 68 
FR 12015, March 13, 2003, the Commission further explored the 
relocation needs for the BRS licensees in the 2150-2160/62 MHz band. On 
July 29, 2004, the Commission released the BRS R&O and FNPRM in WT 
Docket No. 03-66, 69 FR 72020 and 69 FR 72048, December 10, 2004, 
respectively, that initiated a fundamental restructuring of the 2495-
2690 MHz band. This decision, which was intended to provide existing 
and new licensees with enhanced flexibility to provide high-value 
services, also included provisions by which existing BRS licensees in 
the 2150-2160/62 MHz band would be included in the newly established 
band plan, allowing these licensees to be integrated with similar 
operations. Specifically, the Commission adopted a band plan in which 
existing BRS channel 1 (2150-2156 MHz) would transition to the new BRS 
channel 1 at 2496-2502 MHz and existing BRS channel 2/2A (2156-2162 
MHz) to the new BRS channel 2 at 2618-2624 MHz. The Commission notes 
that new entrants for spectrum now occupied by part of BRS channel 1 
will be licensed in an upcoming AWS auction of the 2110-2155 MHz band. 
With respect to the 2155-2160/62 MHz band, which consists of BRS 
channels 2 and 2A and the upper one megahertz of BRS channel 1, the 
Commission has not yet established new service rules for this band. In 
the accompanying Eighth R&O in ET Docket No. 00-258, the Commission 
reallocated and designated the entire 2150-2160 MHz band for AWS use.
    5. BRS operations in the 2150-2160/62 MHz band consist of two 
channels--channel 1 (2150-2156 MHz) and channel 2A (2156-2160 MHz). 
Licensees may also use channel 2 (2156-2162 MHz) on a limited basis in 
50 cities. BRS operations in the band are now regulated under part 27 
of the Commission's rules. In 1992, when the 2160-2165 MHz band was 
reallocated to emerging technologies, the Commission implemented a 
policy by which incumbent BRS licensees that were using the 2160-2162 
MHz band would continue such use on a primary basis. However, any BRS 
station that applied for use of this band after January 16, 1992, would 
be granted a license only on a secondary basis to emerging technology 
use. In 1996, the Commission auctioned licenses for BRS channels on a 
Basic Trading Area (BTA) basis but noted that BRS channel 2 licenses 
using the 2160-2162 MHz band were secondary to emerging technology 
licenses. BRS operators are providing four categories of service 
offerings today: (1) Downstream analog video; (2) downstream digital 
video; (3) downstream digital data; and (4) downstream/upstream digital 
data. Licensees and lessees have deployed or sought to deploy these 
services via three types of system configuration: high-power video 
stations, high-power fixed two-way systems, and low-power, cellularized 
two-way systems. Traditionally, BRS licensees were authorized to 
operate within a 35-mile-radius protected service area (PSA) and 
winners of the 1996 MDS auction were authorized to serve Basic Trading 
Areas (BTAs) consisting of aggregations of counties. In the proceeding 
that restructured the BRS band at 2495-2690 MHz, the Commission adopted 
a geographic service area (GSA) licensing scheme for existing BRS 
incumbents. Therefore, BRS relocation procedures must take into account 
the unique circumstances faced by the various incumbent operations and 
the new AWS licensees.
1. Relocation Process
    6. Transition Plan. The NPRM proposes to require the AWS entrant to 
relocate BRS operations on a link-by-link basis, based on interference 
potential as discussed below. The NPRM further proposes to allow the 
AWS entrant to determine its own schedule for relocating incumbent BRS 
operations so long as it relocates incumbent BRS licensees before 
beginning operation in a particular geographic area and subject to any 
other build-out requirements that may be imposed by the Commission on 
the AWS entrant. The Commission recognizes that this build-out period 
may take time because of the large service areas to be built out for 
new AWS networks but expects that the AWS licensees and the incumbent 
BRS

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licensees will work cooperatively to ensure a smooth transition for 
incumbent operations.
    7. In some instances relocation of BRS operations on a link-by-link 
basis may be infeasible (e.g., where a transmitter serves numerous 
receive sites, only some of which may pose an interference issue), and 
thus in order to meet the comparable facility requirement for 
relocating BRS operations, it may be necessary for the AWS licensee to 
relocate more BRS facilities than an interference analysis conducted on 
a link-by-link basis might indicate as technically necessary. The 
Commission also recognizes that the AWS licensee is likely to deploy 
its service in some locations in a manner that does not correspond to 
the geography of the BRS service areas. For example, a BRS licensee's 
operations may extend beyond the AWS licensee's service area (e.g., 
discrete transmit/receive combinations), and thus in order to meet the 
comparable facility requirement for relocating BRS operations, the AWS 
licensee may need to relocate BRS operations in the adjacent service 
area even though an AWS licensee does not have license coverage in that 
area. The NPRM therefore proposes to require that the AWS licensee 
relocate all incumbent BRS operations that would be affected by the new 
AWS operations, in order to provide BRS operators with comparable 
facilities. The Commission seeks comment on these transition plan 
proposals.
    8. Comparable Facilities. In the AWS Third NPRM, the Commission 
proposed that if relocation were deemed necessary, BRS incumbents would 
be entitled to comparable facilities. In the Emerging Technologies 
proceeding, the Commission allowed new entrants to provide incumbents 
with comparable facilities using any acceptable technology. Under this 
policy, incumbents must be provided with replacement facilities that 
allow them to maintain the same service in terms of: (1) Throughput--
the amount of information transferred within the system in a given 
amount of time; (2) reliability--the degree to which information is 
transferred accurately and dependably within the system; and (3) 
operating costs--the cost to operate and maintain the system. Thus, the 
comparable facilities requirement does not guarantee incumbents 
superior systems at the expense of new entrants. The Commission 
continues to believe that, to minimize disruption to existing services 
and to minimize the economic impact on licensees of those services, a 
similar approach is warranted for BRS. We note that our relocation 
policies do not dictate that systems be relocated to spectrum-based 
facilities or even to the same amount of spectrum as they currently 
use, only that comparable facilities be provided. Comparable facilities 
can be provided by upgrading equipment to digital technology and making 
use of efficient modulation and coding techniques that use less 
spectrum to provide the same communications capabilities. Given 
advances in technology, e.g., changing from analog to digital 
modulation and the flexibility provided by our existing relocation 
procedures to make incumbents whole, we believe that these differences 
should be taken into account when providing comparable facilities. The 
NPRM therefore proposes to require that new AWS entrants provide 
comparable facilities to incumbents that are relocated, and seeks 
comment on this proposal.
    9. The Commission further notes that under its relocation policies 
only stations with primary status are entitled to relocation. Because 
secondary operations, by definition, cannot cause harmful interference 
to primary operations nor claim protection from harmful interference 
from primary operations at frequencies already assigned or assigned at 
a later date, new entrants are not required to relocate secondary 
operations. As stated above, BRS stations licensed after 1992 to use 
the 2160-2162 MHz band are on a secondary basis. Thus, in some cases, a 
portion of BRS channel 2 has secondary status, and this portion would 
not be entitled to relocation under existing Emerging Technologies 
policies. Stations licensed prior to 1992 for BRS channel 2 (2156-2162 
MHz) operate on a primary basis over the entire channel and thus, would 
be entitled to relocation. The NPRM proposes to apply the current 
relocation policies regarding stations with primary and secondary 
status to the BRS and seeks comment on this proposal.
    10. The NPRM also seeks comment on how to apply the comparable 
facilities requirement to unique situations faced by BRS licensees. For 
example, the Commission recognizes that the incumbent BRS licensee may 
change the type of services it offers as it transitions to the new BRS 
band plan (e.g., from 1-way to 2-way service or from fixed to mobile 
service), and seeks comment on how the comparable facilities policy 
would be satisfied in such a situation. The NPRM also seeks comment on 
how the relocation obligation of comparable facilities should be 
applied to post-1992 licensees operating on a combination of BRS 
channels 1 and 2/2A (e.g., integrated for downstream 2-way broadband 
operations), considering these channels will likely transition to new 
channels in the restructured band at different times. For example, the 
Commission seeks comment on what the respective relocation obligations 
should be for AWS licensees in the five megahertz block of BRS channel 
1 (2150-2155 MHz) who will be licensed as part of the upcoming AWS 
auction of the 2110-2155 MHz band and AWS licensees in the remaining 
one megahertz block (2155-2156 MHz) who will be licensed at a later 
date. In addition, we seek comment on whether replacement of customer 
premises equipment (CPE) in use at the time of relocation (e.g., 
customer equipment that is used and will continue to be used in the 
provision of 2-way broadband operations) should be part of the 
comparable facilities requirement.
    11. Because the Commission has already identified relocation 
spectrum in the 2495-2690 MHz band (2.5 GHz band) for BRS licensees 
currently in the 2150-2160/62 MHz band (2.1 GHz band), we also seek 
comment on a proposal whereby the Commission would reassign 2.1 GHz BRS 
licensees, whose facilities have not been constructed or are not in use 
per Sec.  101.75 of the Commission's rules, to their corresponding 
frequency assignments in the 2.5 GHz band as part of the overall BRS 
transition. Specifically, the NPRM proposes to modify the licenses of 
these 2.1 GHz BRS licensees to assign them 2.5 GHz spectrum in the same 
geographic areas covered by their licenses upon the effective date of 
the Report and Order in this proceeding. Under this proposal, no 
subscribers would be harmed by immediately reassigning these licensees 
to the 2.5 GHz band, consistent with our policy. Further, these BRS 
licensees could become proponents in the transition of the 2.5 GHz band 
and avoid delay in initiating new service (they would be limited in 
initiating or expanding service in the 2.1 GHz band under other 
proposals put forth in this Fifth NPRM), and new AWS entrants in the 
2.1 GHz band could focus their efforts on relocating the remaining BRS 
operations and their subscribers, facilitating their ability to clear 
the band quickly and provide new service. The NPRM proposes to 
undertake these license modifications pursuant to our authority under 
Section 316 of the Communications Act. Specifically, Section 316(a)(1), 
provides that ``[a]ny station license * * * may be modified by the 
Commission * * * if in the judgment of the Commission such

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action will promote the public interest, convenience and necessity.'' 
In addition, under the Commission's proposal, these reassigned BRS 
licensees would not be entitled to ``comparable facilities'' under the 
relocation policy since no facilities have been constructed or are in 
use. Accordingly, the Commission seeks comment on this proposal. We ask 
that commenters consider the impact of this proposal on the 2.5 GHz 
transition set forth in the BRS R&O and FNPRM, as well as the impact on 
the availability of the 2.1 GHz band for new AWS entrants.
    12. Leasing. Some BRS licensees of channels 1 and 2 currently lease 
their spectrum capacity to other commercial operators, and the 
Commission has determined that future leasing of BRS and EBS spectrum 
will be allowed under the Secondary Markets policy. Because leasing is 
prevalent in the BRS bands, the ``comparable facilities'' policy needs 
to address these arrangements. We recognize that leasing arrangements 
vary--some BRS licensees may continue to lease their spectrum to third 
parties when they relocate to the 2.5 GHz band, but others BRS 
licensees may discontinue leasing arrangements prior to relocation. In 
all cases, the BRS licensee retains de jure control of the license and 
is the party entitled to negotiate for ``comparable facilities'' in the 
relocation band. The NPRM proposes to allow incumbent BRS licensees to 
rely on the throughput, reliability and operating costs of facilities 
operated by a lessee in negotiating ``comparable facilities.'' In cases 
where the BRS licensees continue to lease their spectrum to third 
parties when they relocate to the 2.5 GHz band, the NPRM proposes that 
the licensee may include the lessee in negotiations but that lessees 
would not have a separate right of recovery--i.e., the new entrant 
would not have to reimburse both the licensee and lessee for 
``comparable facilities.'' Further, in cases where the BRS licensee 
discontinues leasing arrangements prior to relocation, the NPRM 
proposes that the lessee is not entitled to recover lost investments 
from the new entrant. We believe that this approach is consistent with 
the purpose of the ``comparable facilities'' policy to provide new 
facilities in the relocation band so that the public continues to 
receive service. The Commission seeks comment on these leasing 
proposals.
    13. Licensee Eligibility. Consistent with the Commission's findings 
in earlier proceedings, the Commission proposes to apply the relocation 
policies discussed in this NPRM to BRS incumbent primary licensees who 
seek comparable facilities at the time of relocation. Any incumbent 
licensee, whose license is to be renewed before relocation, would have 
the right to relocation only if its license is renewed. The Commission 
further proposes that an assignment or transfer of control would not 
disqualify a BRS incumbent in the 2150-2160 MHz band from relocation 
eligibility so long as the facility is not rendered, as a result, more 
expensive to relocate. In addition, the Commission proposes that if a 
grandfathered BRS license (i.e., authorized facilities operating with a 
35-mile-radius PSA) is cancelled or forfeited, and the right to operate 
in that area has not automatically reverted to the BRS licensee that 
holds the corresponding BTA license, no new licenses would be issued 
for BTA service in the 2150-2160/62 MHz band. The Commission seeks 
comment on these eligibility proposals.
    14. Future Licensing in the 2150-2160 MHz Band. In the Emerging 
Technologies proceeding, the Commission recognized two divergent 
objectives when considering the types of modifications and expansions 
existing licensees could make without affecting their status with 
respect to emerging technology licensees--on one hand, existing 
licensees must be allowed a certain amount of flexibility to operate 
without devaluing the usefulness of their facilities; on the other 
hand, the new entrants must be provided with a stable environment in 
which to plan and implement new services. The Commission decided that 
the best way to balance these divergent objectives was to establish 
procedures whereby existing licensees who chose to modify or expand 
their facilities after a particular date set by the Commission, would 
do so on a secondary basis to emerging technology licensees. Consistent 
with this current relocation policy and in order to provide some 
certainty to new AWS licensees on the scope of their relocation 
obligation, the NPRM proposes that major modifications to authorized 
facilities, as discussed in the next paragraph, made by BRS licensees 
after the effective date of a Report and Order in this proceeding will 
not be eligible for relocation. The NPRM further proposes that major 
modifications and extensions to existing BRS systems will be authorized 
on a secondary basis to emerging technology systems in the 2150-2160 
MHz band after the effective date of the Report and Order in this 
proceeding. Moreover, all major modifications will render the modified 
BRS licensee secondary to emerging technology operations, unless the 
incumbent affirmatively justifies primary status and establishes that 
the modification would not add to the relocation costs of the emerging 
technology licensees. In addition, the NPRM proposes that BRS 
facilities newly authorized in the 2150-2160 MHz band after the 
effective date of a Report and Order in this proceeding would not be 
eligible for relocation. The Commission seeks comment on these 
proposals.
    15. For purposes of relocation, the NPRM proposes to adopt criteria 
that would be the basis for determining what qualifies as a major 
modification for BRS licensees. Adopting major modification criteria 
for the purposes of relocation is necessary because BRS licensees are 
now licensed on a geographic area basis, and thus are allowed to place 
transmitters anywhere within their defined service area without prior 
authorization so long as the licensee's operations comply with the 
applicable service rules, do not affect radio-frequency zones, or 
require environmental review or international coordination. 
Specifically, the NPRM proposes to adopt criteria that, for example, 
would classify the additions of new transmit sites or base stations and 
changes to existing facilities that would increase the size or coverage 
of the service area or interference potential as types of modifications 
that are major, and thus not eligible for relocation. Traditionally, 
these limits have been expressed by identifying the distance by which 
existing transmit sites can be relocated, limiting increases in 
emissions, and various other means. Accordingly, the Commission seeks 
comment on what the criteria should be for major modifications and, in 
particular, the criteria in the former major modification rule for BRS 
licensees, codified at 47 CFR 21.23; the former rule for EBS licensees 
codified at 47 CFR 74.911(a)(2); or the current rule for wireless 
telecommunications services in Sec.  1.929(d).
2. Negotiation Periods/Relocation Schedule
    16. The NPRM generally proposes to require that negotiations for 
relocation of BRS operations be conducted in accordance with the 
Commission's Emerging Technologies policies, except that we propose to 
forego a voluntary negotiation period and instead require only a 
mandatory negotiation period that must expire before an emerging 
technology licensee could proceed to request involuntary relocation. 
The BRS transition plan for the new band at 2495-2690 MHz has five 
stages: (1) The initiation of the transition process--

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when a proponent files an initiation plan for a geographic area with 
the Commission; (2) the transition planning period--where parties can 
file counterproposals and any disputes would go to arbitration; (3) the 
reimbursement of costs; (4) the termination of incumbent operations; 
and (5) the filing of post-transition notification of completion with 
the Commission. The approximate time needed for the BRS re-banding 
process at 2495-2690 MHz includes 3-3\1/2\ years for the initiation and 
planning stages and 1\1/2\ years for the actual relocation, for a total 
of approximately five years. Thus, the Commission recognizes that the 
new band where the BRS incumbents are to be relocated is undergoing its 
own transition process that may not be completed until at least 2008. 
In light of these considerations, the NPRM proposes to forego a 
voluntary negotiation period and institute ``rolling'' mandatory 
negotiation periods (i.e., separate, individually triggered negotiation 
periods for each BRS licensee) of three years followed by the 
involuntary relocation of BRS incumbents. The NPRM proposes that the 
mandatory negotiation period would be triggered for each BRS licensee 
when an AWS licensee informs the BRS licensee in writing of its desire 
to negotiate. Relocation of BRS operations by AWS licensees is more 
likely to take place in a relatively piecemeal fashion and over an 
extended period of time. Consequently, it is possible that a uniform 
mandatory negotiation period applicable to all BRS licensees would 
expire by the time that many BRS licensees were approached for 
relocation by an AWS entrant. The Commission seeks comment on this 
proposal.
    17. Under Emerging Technologies policies, the mandatory negotiation 
period is intended as a period of negotiation between the parties on 
relocation terms resulting in a contractual relocation agreement. The 
mandatory negotiation period ensures that an incumbent licensee will 
not be faced with a sudden or unexpected demand for involuntary 
relocation if an emerging technology provider initiates its relocation 
request, and provides adequate time to prepare for relocation. During 
mandatory negotiations, the parties are afforded flexibility in the 
process except that an incumbent licensee may not refuse to negotiate 
and all parties are required to negotiate in good faith. If no 
agreement is reached during negotiations, an AWS licensee may proceed 
to involuntary relocation of the incumbent. In such a case, the new AWS 
licensee must guarantee payment of all relocation expenses, and must 
construct, test, and deliver to the incumbent comparable replacement 
facilities consistent with Emerging Technologies procedures. The 
Commission notes that under Emerging Technologies principles, an AWS 
licensee would not be required to pay incumbents for internal resources 
devoted to the relocation process or for fees that cannot be 
legitimately tied to the provision of comparable facilities, because 
such expenses are difficult to determine and verify. The NPRM proposes 
to apply these negotiation/relocation principles to BRS licensees, and 
seeks comment on doing so. The NPRM also seeks comment on whether to 
apply a ``right of return'' policy to AWS/BRS relocation negotiations 
similar to rule 47 CFR 101.75(d) (i.e., if after a 12 month trial 
period, the new facilities prove not to be comparable to the old 
facilities, the BRS licensee could return to the old frequency band or 
otherwise be relocated or reimbursed). The Commission asks parties to 
take into account the time periods for the transition occurring in the 
restructured 2495-2690 MHz band when providing comments on this issue.
    18. Sunset Date. The NPRM proposes to apply the sunset rule of 47 
CFR 101.79 to BRS relocation negotiations. This rule provides that new 
licensees are not required to pay relocation expenses after ten years 
following the start of the negotiation period for relocation. 
Consistent with the Commission's proposal to establish rolling 
mandatory negotiation periods, the NPRM proposes that the ten year 
sunset date commence from the date the first AWS license is issued in 
the 2150-2160 MHz band. However, because we anticipate that portions of 
the spectrum in the 2150-2160 MHz band will be made available for AWS 
auction at different times, the first AWS license could be issued in 
one portion of the band earlier than the first AWS license is issued in 
another portion of the band. We therefore seek comment on whether we 
should establish different sunset dates that are based on when the 
first AWS license is issued for each portion of the spectrum. In this 
case, the commencement dates and subsequent sunset dates are likely to 
be different for BRS channels 1 and 2/2A. Alternately, should we 
establish a single sunset date for the entire band? If so, we seek 
comment as to whether that sunset date should be ten years from the 
date the first AWS license is issued in whatever portion of the 2150-
2160 MHz band is the last to be licensed. Further, we seek comment on 
when the ten year sunset date should commence if we do not adopt our 
proposal for rolling mandatory negotiation periods. Finally, commenters 
should consider that the sunset date proposal we ultimately adopt would 
apply apart from the restructuring of the 2495-2690 MHz band.
    19. Good Faith Requirement. Finally, the Commission expects the 
parties involved in the replacement or retuning of BRS equipment to 
negotiate in good faith, that is, each party would be required to 
provide information to the other that is reasonably necessary to 
facilitate the relocation process. The NPRM therefore proposes to apply 
the good faith guidelines of 47 CFR 101.73 to BRS negotiations, and 
seeks comment on this proposal.
3. Interference Issues/Technical Standards
    20. The Commission currently provides for the protection of fixed 
microwave services operating in the 1.9 GHz and 2.1 GHz bands through 
the provisions of 24.237 of our rules. Under 24.237, PCS licensees 
operating in the 1850-1990 MHz band and AWS licensees operating in the 
2110-2155 MHz band must, prior to commencing operations, perform 
certain engineering analyses to ensure that their proposed operations 
do not cause interference to incumbent fixed microwave services. Part 
of that analyses calls for the use of TIA Telecommunications Systems 
Bulletin (TSB) 10-F, or its successor standard, to determine when 
proposed PCS or AWS operations might cause interference to existing 
fixed microwave stations.
    21. The Commission seeks to develop rules that will enable AWS 
licensees to determine when their proposed operations would cause 
interference to incumbent BRS systems operating in the 2150-2160 MHz 
band, such that the relocation of those systems would be necessary 
before AWS operations could begin. The NPRM therefore seeks comment on 
whether a rule comparable to Sec.  24.237 should be developed for this 
purpose. If so, we seek comment as to what procedures and mechanisms 
should be contained in such a rule (e.g., a ``distance'' table, such as 
Table 2 in Sec.  24.237, which identifies the distance from an AWS 
station within which a BRS station must be protected; the use of TIA 
TSB 10-F, or some comparable document, to determine when interference 
is expected to occur to BRS stations, etc.). Commenters favoring this 
approach should provide information that would lead to the development 
of

[[Page 61757]]

a distance table applicable to BRS operations; and commenters should 
also indicate whether and how TIA TSB 10-F could be used to determine 
the potential for interference to BRS systems. Commenters not favoring 
the use of a Sec.  24.237 type rule should indicate what procedures the 
Commission should adopt to enable AWS licensees to determine when their 
operations will cause interference to incumbent BRS systems.

B. Relocation of FS in the 2160-2175 MHz Band

    22. In the Emerging Technologies proceeding, the Commission 
established procedures for the relocation of incumbent operations by 
new technology licensees in several frequency bands, including the 
paired bands at 2110-2150 MHz and 2160-2200 MHz. Later, in the 
Microwave Cost Sharing proceeding, the Commission further addressed 
incumbent relocations by new technology licensees. Together, these 
proceedings provided for, among other matters, relocation procedures 
that included both voluntary and mandatory negotiations, as well as 
relocation sunset periods, as delineated in 47 CFR part 101.
    23. In 2000, in the MSS Second R&O in ET Docket No. 95-18, the 
Commission adopted ``modified'' Emerging Technologies relocation 
procedures for FS incumbents in the 2165-2200 MHz band that would be 
relocated by new MSS licensees in that band. Under these ``modified'' 
procedures, the Commission eliminated the voluntary negotiation period 
for relocation of FS incumbents by MSS in the 2165-2200 MHz band and 
provided instead a single mandatory negotiation period applying to all 
FS incumbents. This single mandatory negotiation period would be 
triggered when the first MSS licensee informs, in writing, the first FS 
incumbent of its desire to negotiate. Furthermore, consistent with its 
findings in the earlier Microwave Cost Sharing proceeding, the 
Commission established that the FS relocation rules would sunset ten 
years after the negotiations begin for the first FS licensee.
    24. In the AWS Second R&O in ET Docket No. 00-258, the Commission 
addressed the relocation procedures that would apply to the relocation 
of incumbent FS licensees by new AWS entrants in the paired 2110-2150 
MHz band. The Commission concluded that ``the modified [MSS] relocation 
procedures [for the 2165-2200 MHz band] * * * represent[ed] the best 
course.'' The Commission reasoned, ``[a] unified approach to our rules 
and procedures serves the public interest, and can promote the rapid 
development of AWS, which many commenters support.''
    25. In the AWS Third R&O, also in ET Docket No. 00-258, the 
Commission reallocated the 1990-2000/2020-2025 MHz and 2165-2180 MHz 
bands for Fixed and Mobile services to support AWS. Subsequently in the 
AWS Sixth R&O in ET Docket No. 00-258, the Commission concluded that, 
given its earlier decision in the AWS Second R&O to apply the 
``modified'' relocation procedures to AWS relocation of FS in the 2110-
2150 MHz band, it would be appropriate to apply the same procedures to 
the relocation of FS by AWS licensees in the 2175-2180 MHz paired band.
    26. In proposing relocation procedures for incumbent FS operations 
in the 2160-2175 MHz band, the Commission continues to believe that it 
is desirable to harmonize the FS relocation procedures among the 
various AWS designated bands to the greatest extent feasible. As the 
Commission observed in the AWS Sixth R&O, 69 FR 62615, October 27, 
2004, relocation procedures that are consistent can be expected to 
foster a more efficient rollout of AWS and minimize confusion among the 
parties, and thereby serve the public interest.
    27. Under the existing ``modified'' Emerging Technologies 
relocation procedures described, there is a single mandatory 
negotiation period that commences when the first new technology entrant 
informs the first FS licensee, in writing, of its desire to negotiate. 
A ten-year sunset period is triggered when the mandatory negotiation 
period begins. The NPRM seeks comment on whether the Commission should 
apply these same procedures to FS relocation by AWS in the 2160-2175 
MHz band. As noted, this would be consistent with the procedures 
adopted in the AWS Second R&O, 68 FR 3455, January 24, 2003, and AWS 
Sixth R&O, 69 FR 62615, October 27, 2004, for the paired bands 2110-
2150 MHz and 2175-2180 MHz, respectively.
    28. The NPRM also proposes to clarify that under the single 
mandatory negotiation periods approach the ten-year sunset would 
supersede, and thereby terminate, any remaining mandatory negotiation 
period that had not yet run its course. The NPRM proposes that this 
ten-year sunset period for the 2160-2175 MHz band should commence with 
the date the first AWS license is issued in that band. We seek comment 
on this proposal, particularly whether this trigger event represents 
the most appropriate date for starting the ten-year sunset period. 
Because we have not yet determined how we will make this spectrum 
available for assignment, it is possible that different portions of the 
band may be licensed at different times. We therefore seek comment as 
to whether we should establish different sunset periods for FS 
incumbents in different frequency blocks within the band, based on the 
date the first AWS license is issued for each subset of the band. We 
recognize that, in this case, the commencement date and subsequent 
sunset date may not be uniform across the whole band. We also seek 
comment on whether we should instead set a uniform sunset date for the 
entire band and, if so, what trigger date we would use to determine 
that sunset date.
    29. The Commission also seeks comment on an alternative approach. 
Relocation of FS operations by AWS licensees is more likely to take 
place in a relatively piecemeal fashion and over an extended period of 
time. Consequently, it is possible that a single mandatory negotiation 
period afforded under the existing relocation procedures would expire 
before the time that many FS licensees were approached for relocation 
by an AWS entrant. Therefore, we also seek comment on whether each FS 
incumbent in the 2160-2175 MHz band should be afforded a separate, 
individually triggered, negotiation period--as contrasted with the 
across-the-board uniform period for all incumbents under the existing 
relocation rules. Under this alternative proposal, a mandatory 
negotiation period would be triggered by an event specific to each FS 
licensee, which we propose would be when an AWS licensee informs the FS 
licensee in writing of its desire to negotiate. This would result in a 
series of independent, or ``rolling,'' negotiation periods, each having 
its own time frame. One potential benefit of the rolling negotiation 
period approach is that it could afford a greater opportunity for FS 
incumbents and AWS licensees to engage in relocation negotiations and 
could foster a more equitable and expeditious transition to AWS in the 
band. On the other hand, this approach could result in more complex 
negotiation timetables. We seek comment on this alternative proposal.
    30. Other Bands. If we were to adopt the alternative rolling 
negotiation period approach described for the 2160-2175 MHz band, the 
Commission seeks comment on whether the same approach should be adopted 
for corresponding paired segments of the 2110-2150 MHz band. In a 
similar fashion, if we were to adopt the rolling negotiation approach

[[Page 61758]]

for these two bands, we seek comment on whether the relocation 
procedures adopted for the 2175-2180 MHz band in the AWS Sixth R&O 
should also be changed to afford rolling FS negotiation periods, 
resulting in a unified rolling negotiation period approach across these 
bands. We also seek comment on whether the modified sunset rules 
discussed above should apply in these other bands as well. Finally, we 
seek comment on whether the relocation/sunset procedures described here 
would harmonize well with the procedures for other Emerging 
Technologies bands that have been addressed elsewhere in this and other 
proceedings.
    31. Incumbent Part 22 Services. The Commission also seeks comment 
on whether and how to harmonize the Emerging Technologies relocation 
rules for part 22 point-to-point microwave links and part 101 fixed 
services. When the Emerging Technologies relocation rules were first 
adopted, fixed microwave services in the spectrum were regulated under 
parts 21, 22, and 94, dealing with Common Carrier fixed point-to-point, 
fixed services supporting Paging and Radiotelephone, and Private 
Operational point-to-point, respectively. To address relocation of all 
of these fixed services, the Commission established separate but 
identical relocation rules in each Part. In 1996, the Commission merged 
the rules regulating Common Carrier and Private Operational services in 
part 101 but left fixed services supporting Paging and Radiotelephone, 
along with the rules for relocating these links, in part 22.
    32. Although initially identical, the Emerging Technologies 
relocation rules in part 22 and in part 101 subsequently diverged. When 
the Commission determined that FS incumbents in the 2.1 GHz band would 
be subject to modified relocation procedures, these modifications were 
reflected in the part 101 relocation rules but inadvertently not 
included in the part 22 rules, although part 22 point-to-point services 
also operated in the 2.1 GHz spectrum. Thus, at that point, AWS 
entrants in the 2.1 GHz band would be required to follow the original 
Emerging Technologies rules to relocate part 22 links, but would use 
the modified rules to relocate part 101 links.
    33. The rules applicable to part 22 and part 101 links further 
diverged recently, when the Commission determined that it would not 
renew the part 22 point-to-point licenses in the 2110-2130 and 2160-
2180 MHz bands, but instead allow all current part 22 fixed service 
licenses in these bands to expire at the end of their current term. 
Commission records indicate that there are 53 active part 22 fixed 
licenses in these two bands, and that all will have expired by January 
3, 2010. Thus, all part 22 fixed services will cease operations in the 
2.1 GHz band by 2010. In contrast, part 101 FS licensees in the 
Emerging Technologies spectrum are not currently prohibited from 
renewing their licenses.
    34. The NPRM does not propose to permit renewal of part 22 fixed 
service licenses in the 2.1 GHz band. The NPRM does seek comment, 
however, on whether the relocation rules that apply to AWS relocation 
of part 101 fixed services should otherwise apply to AWS relocation of 
part 22 services as well.

C. Cost Sharing

    35. The Commission's Emerging Technologies relocation policies 
require new licensees who benefit from the clearing of the spectrum of 
incumbent operations by an earlier entrant to reimburse that entrant 
for reasonable costs incurred in clearing the spectrum. The Commission 
has found that adopting cost sharing rules in these circumstances 
serves the public interest because it (1) distributes relocation costs 
more equitably among the beneficiaries of the relocation; (2) 
encourages the simultaneous relocation of multi-link communications 
systems; and (3) accelerates the relocation process, promoting more 
rapid deployment of new services. In this section, we discuss cost 
sharing among new licensees when they relocate incumbent FS operations 
in the 2110-2150 and 2160-2200 MHz bands and when they relocate BRS 
operations in the 2150-2160/62 MHz band.
    36. Relocation of Incumbent FS Licensees. The part 101 relocation 
rules address, inter alia, the cost sharing obligation imposed on new 
licensees when they relocate FS incumbents in the 2110-2150 MHz and 
2160-2200 MHz bands, which currently are used by FS licensees mostly as 
paired links in the lower and upper bands. Section 101.82 provides that 
when a new licensee in either of these bands relocates an incumbent 
paired FS link with one path in one band and the paired path in the 
other band, the new licensee is entitled to reimbursement of fifty 
percent of its relocation costs from any subsequently entering new 
licensee which would have been required to relocate the same FS link, 
subject to a monetary ``cap.'' We also note that this rule applies to 
both new AWS licensees in the 2110-2150 MHz and 2160-2180 MHz bands as 
well as to MSS licensees in the 2180-2200 MHz band, which are discussed 
separately below.
    37. In the AWS-2 Service Rules NPRM, the Commission recognized that 
a single FS path in these bands could cross multiple AWS license areas, 
and thus multiple AWS licensees could benefit by the relocation of a 
single FS link. The Commission thus sought comment on whether it should 
adopt formal procedures for apportioning relocation costs among 
multiple AWS licensees in the 2110-2150 MHz and 2175-2180 MHz bands, 
and in particular, whether it should apply the cost sharing rules in 
part 24 that were used by new PCS licensees when they relocated 
incumbent FS links in the 1850-1990 MHz band. In this NPRM, the 
Commission seeks comment on whether we should adopt formal procedures 
for apportioning relocation costs among multiple AWS licensees in the 
2160-2175 MHz band and in particular, whether we should apply the cost 
sharing rules in part 24. We also seek comment on whether AWS licensees 
in the 2160-2175 MHz band should be subject to the same cost sharing 
regime that we adopt for relocation of FS incumbents in the 2110-2150 
MHz and 2175-2180 MHz bands.
    38. Under the part 24 cost sharing plan, new licensees that incur 
costs relocating an FS link are eligible to receive reimbursement from 
subsequent new entrants that also benefited from that relocation. 
Reimbursement claims are submitted to one of the private non-profit 
clearinghouses designated by the Wireless Telecommunications Bureau to 
administer the plan. All new entrants are required to file a prior 
coordination NPRM with these clearinghouses before beginning 
operations. Upon receiving such a NPRM, a clearinghouse with a 
reimbursement claim on file identifies whether the new entrant has 
benefited from the relevant relocation using a Proximity Threshold 
Test. This test limits the beneficiaries to those entrants turning on a 
base station that both operates in the same spectrum that the incumbent 
link did prior to relocation and is within a specified geographic 
distance of the link. Having identified a new entrant as a beneficiary, 
the clearinghouse then determines the amount of the beneficiary's 
repayment obligation using a rule-specified cost sharing formula. This 
amount is subject to a cap of $250,000 per relocated link, plus 
$150,000 if a new or modified tower is required. Once the beneficiary 
is notified of the amount, it is then responsible for paying 
reimbursement within 30 days, with an equal share of the total going to 
each entrant that has previously contributed to the relocation.

[[Page 61759]]

FS incumbents that self-relocate are also permitted to obtain 
reimbursement from benefiting AWS entrants under the plan, subject to 
the same cap described above. Any disputes over cost sharing 
obligations under the rules are addressed in the first instance by a 
clearinghouse, and if still unresolved, by alternatives such as binding 
arbitration. All of these payment obligations are imposed as a default, 
and new licensees are permitted to enter into private cost sharing 
arrangements with each other that supercede the cost sharing plan as it 
applies to reimbursement between those licensees.
    39. The Commission believes that adopting the part 24 cost sharing 
plan for new AWS licensees that relocate FS incumbents would have many 
benefits. First, the part 24 plan was devised to accommodate new 
cellular type systems licensed by geographic areas and incumbent FS 
point-to-point operations, which are essentially the same circumstances 
at issue here, and the part 24 plan has a proven record of success. In 
2000, the Commission reviewed the operation of the part 24 cost sharing 
rules and concluded that ``[t]hey generally have served to promote an 
efficient and equitable relocation process * * *.'' In addition, since 
the plan went into operation in 1996, the Commission has resolved 
numerous questions regarding the details of the plan's operation and 
application. We therefore expect that there will be less need for 
clarification if we adopt this regime for AWS. For these reasons, we 
anticipate that adopting these rules will expedite the relocation of FS 
incumbents and the introduction of new services. The NPRM therefore 
proposes to adopt a cost sharing plan for relocation of FS incumbents 
in the 2160-2175 MHz band based on the part 24 plan and seek comment on 
this proposal.
    40. While the part 24 rules could be applied to the relocation of 
FS incumbents in the 2160-2175 MHz band without substantial changes, 
the Commission seeks comment on whether some modifications are 
nevertheless appropriate. For example, PCIA has suggested in response 
to the AWS-2 Service Rules NPRM that, in establishing a cost sharing 
plan for AWS relocation of FS, we should modify the part 24 plan by (1) 
establishing a rule requiring licensing data to be filed by all 
entities; (2) mandating that parties are required to act in good faith 
in connection with their responsibilities under the cost sharing plan; 
(3) providing that reasonable interest charges can be applied to cost 
sharing obligations; (4) creating an explicit mechanism for expedited 
appeal to the Commission from a disputed clearinghouse determination; 
and (5) giving weight to the determinations of the clearinghouse in 
such an appeal. We seek comment on these suggested changes to the part 
24 plan.
    41. The part 24 plan delegates authority to the Wireless 
Telecommunications Bureau to assign the administration of the cost 
sharing rules to one or more private non-profit clearinghouses. 
Management of the part 24 cost sharing rules by third-party 
clearinghouses has been highly successful, and two entities have 
already expressed interest in accepting this responsibility for AWS 
relocation of FS in the 2110-2150 MHz and 2175-2180 MHz bands. We seek 
comment on the rules that should govern such a clearinghouse and the 
procedures and quality criteria we should use to select a clearinghouse 
administrator.
    42. As noted, MSS is allocated to the 2180-2200 MHz band. FS links 
in this band are paired with FS links in the 2130-2150 MHz band which 
is designated for AWS. Cost sharing between MSS and AWS licensees in 
these paired bands is governed by Sec.  101.82, which provides that 
when a new licensee in either of these bands relocates an incumbent 
paired FS link with one path in one band and the paired path in the 
other band, the new licensee is entitled to reimbursement of fifty 
percent of its relocation costs (i.e., the total cost of relocating 
both paths) from any subsequently entering new licensee which would 
have been required to relocate the same FS link, subject to a monetary 
``cap.'' The Commission adopted relocation rules for MSS that recognize 
the unique characteristics of a satellite service. For example, unlike 
a new terrestrial entrant such as AWS that can clear the band on a 
link-by-link basis, MSS must clear all incumbent FS operations in the 
2180-2200 MHz band within the satellite service area if interference 
will occur. Thus, the relocation obligations and cost sharing among MSS 
new entrants in the 2180-2200 MHz is relatively straightforward and can 
function without a clearinghouse or formal cost sharing procedures. 
Section 101.82 establishes a sharing obligation between MSS and AWS 
that is reasonable and relatively easy to implement, and because it 
does not depreciate cost sharing obligations, it provides MSS licensees 
with additional assurance of cost recovery. In addition to this 
consideration, we also do not wish to change the relocation and cost 
sharing rules applicable to MSS, because MSS licensees are currently in 
the midst of the implementation and relocation process. Subsequently, 
the AWS-2 Service Rules NPRM has sought comment on how the AWS sharing 
obligation (i.e., fifty percent for relocating the link) should be 
apportioned among multiple AWS licensees. In this NPRM, the Commission 
seeks comment on whether MSS entrants entitled to reimbursement under 
Sec.  101.82 should submit their reimbursement claims to an AWS 
clearinghouse, including any procedures we may adopt for filing such 
claims. The Commission believes that this approach would relieve MSS 
licensees of the burden of identifying the AWS licensees who would be 
obligated to pay relocation costs. We seek comment on this proposal.
    43. Relocation of Incumbent BRS Licensees. The NPRM proposes to 
require AWS entrants to relocate BRS operations in the 2150-2160/62 MHz 
band on a link-by-link basis, based on interference potential. We also 
note certain instances where it may be necessary for the AWS licensee 
to relocate more BRS facilities than an interference analysis conducted 
on a link-by-link basis might indicate as technically necessary, in 
order to provide relocating incumbents with comparable facilities--
e.g., where an AWS licensee may be required to relocate BRS operations 
outside its own service area or where BRS incumbents operate on 
combinations of BRS channels 1 and 2/2A. Thus, a subsequent AWS 
licensee who operates co-channel in an adjacent geographic area or who 
operates on a different frequency than the relocator would benefit from 
the relocation of certain BRS operations. The relocation of a single 
BRS link could also have more than one AWS beneficiary if the BRS link 
uses spectrum that overlaps more than one AWS license block. 
Consequently, the Commission seeks comment on whether we should 
establish cost sharing obligations for AWS licensees who benefit from 
an earlier AWS licensee's relocation of BRS incumbents in the 2150-
2160/62 MHz band. For example, we seek comment on whether cost sharing 
obligations should be imposed on new licensees that receive 
interference but do not cause it, as is done with the PCS rules, or 
only on those licensees that cause interference, as is the case for 
both the current Emerging Technologies and MSS rules in part 101.
    44. The Commission also seeks comment on what, if any, specific 
cost sharing obligations are necessary or appropriate, including how 
costs should be apportioned among AWS licensees.

[[Page 61760]]

Although we noted that the part 24 plan could be applied to FS 
relocation without substantial changes, we believe that this is not the 
case for BRS operations which are significantly different than point-
to-point FS operations. BRS operations are primarily point-to-
multipoint, based either on a contour around a fixed transmitter with 
protected receive sites within the contour or on a wide geographic area 
with multiple base and receive sites located anywhere within the 
licensed area. We thus seek comment on what criteria could be used to 
identify whether a subsequent AWS licensee has an obligation to share 
the cost of relocating a BRS incumbent and how the reimbursement 
obligation should be apportioned among AWS licensees. Commenters should 
consider, for example, whether we should require each AWS licensee to 
bear this financial responsibility in proportion to the amount of 
spectrum in the 2150-2160/62 MHz band for which it is licensed, or in 
proportion to the amount of geographic area cleared within its licensed 
market, or some other metric, such as MHz/pops. We also seek comment on 
whether we should apply a ``cap'' or some other limit on the amount a 
relocator is entitled to receive as reimbursement in order to protect 
later entrants who did not participate in negotiations; we also seek 
comment on what the amount of the ``cap'' should be. Moreover, we seek 
comment on whether formal cost sharing procedures, such as those in the 
part 24 plan, are necessary or appropriate to implement any cost 
sharing obligations we may ultimately adopt, and if so, what procedures 
we should adopt. Finally, we seek comment on whether we should 
designate a clearinghouse party to administer any cost sharing rules we 
may adopt, the rules that should govern a clearinghouse and the 
procedure and quality criteria we should use to select a clearinghouse 
administrator.

Initial Regulatory Flexibility Analysis

    45. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\1\ 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 Fifth NPRM of Proposed Rule Making 
(Fifth NPRM). 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 Fifth NPRM. The Commission will 
send a copy of this Fifth NPRM, including this IRFA, to the Chief 
Counsel for Advocacy of the Small Business Administration (SBA).\2\ In 
addition, the Fifth NPRM and IRFA (or summaries thereof) will be 
published in the Federal Register.\3\
---------------------------------------------------------------------------

    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).
    \2\ See 5 U.S.C. 603(a).
    \3\ Id.
---------------------------------------------------------------------------

A. Need for, and Objectives of, the Proposed Rules

    46. The Fifth NPRM proposes relocation procedures to govern the 
relocation of: (1) Broadband Radio Service (BRS) \4\ licensees in the 
2150-2160/62 MHz band; and (2) Fixed Microwave Service (FS) licensees 
in the 2160-2175 MHz band. The proposed relocation procedures generally 
follow the Commission's relocation policies delineated in the Emerging 
Technologies proceeding, and as modified by subsequent decisions.\5\ 
These relocation policies are designed to allow early entry for new 
technology providers by allowing providers of new services to negotiate 
financial arrangements for reaccommodation of incumbent licensees, and 
have been tailored to set forth specific relocation schemes appropriate 
for a variety of different new entrants, including Personal 
Communications Service (PCS) licensees, Mobile Satellite Service (MSS) 
licensees, 18 GHz Fixed Satellite Service (FSS) licensees, and Nextel. 
While these new entrants occupy different frequency bands, each entrant 
has had to relocate incumbent operations. The relocation procedures we 
propose in the Fifth NPRM are designed to ensure an orderly and 
expeditious transition of, with minimal disruption to, incumbent BRS 
and FS operations from the 2150-2160/62 MHz and 2160-2175 MHz bands, 
respectively, in order to allow early entry for new AWS licensees into 
these bands.
---------------------------------------------------------------------------

    \4\ The Multipoint Distribution Service (MDS) was renamed the 
Broadband Radio Service (BRS). See Amendment of parts 1, 21, 73, 74 
and 101 of the Commission's Rules to Facilitate the Provision of 
Fixed and Mobile Broadband Access, Educational and Other Advanced 
Services in the 2150-2162 MHz Band, WT Docket No. 03-66, Report and 
Order and Further NPRM of Proposed Rulemaking, 19 FCC Rcd 14165 
(2004), 69 FR 72020 and 69 FR 72048, December 10, 2004.
    \5\ See Redevelopment of Spectrum to Encourage Innovation in the 
Use of New Telecommunications Technologies, ET Docket No. 92-9, 
First Report and Order and Third NPRM of Proposed Rule Making, 7 FCC 
Rcd 6886 (1992); Second Report and Order, 8 FCC Rcd 6495 (1993); 
Third Report and Order and Memorandum Opinion and Order, 8 FCC Rcd 
6589 (1993); Memorandum Opinion and Order, 9 FCC Rcd 1943 (1994); 
Second Memorandum Opinion and Order, 9 FCC Rcd 7797 (1994); aff'd 
Association of Public Safety Communications Officials-International, 
Inc. v. FCC, 76 F.3d 395 (D.C. Cir. 1996) (collectively, ``Emerging 
Technologies proceeding''). See also Teledesic, LLC v. FCC, 275 F.3d 
75 (D.C. Cir. 2001) (affirming modified relocation scheme for new 
satellite entrants to the 17.7-19.7 GHz band). See also Amendment to 
the Commission's Rules Regarding a Plan for Sharing the Costs of 
Microwave Relocation, WT Docket No. 95-157, First Report and Order 
and Further NPRM of Proposed Rule Making, 11 FCC Rcd 8825 (1996); 
Second Report and Order, 12 FCC Rcd 2705 (1997) (collectively, 
Microwave Cost Sharing proceeding).
---------------------------------------------------------------------------

    47. The Fifth NPRM seeks comment on what specific relocation 
procedures are best suited for the incumbent BRS operators in the 2150-
2160/62 MHz band. For example, we propose a mandatory negotiation 
period that must expire before an emerging technology licensee could 
proceed to request involuntary relocation and, due to the nature of 
BRS, ask whether we should establish separate, individually triggered 
negotiation periods for each BRS licensee. We also seek to develop 
rules that will enable AWS licensees to determine when their proposed 
operations would cause interference to incumbent BRS systems operating 
in the 2150-2160 MHz band, such that the relocation of those systems 
would be necessary before AWS operations could begin. We identified a 
number of options for setting forth these technical requirements, 
including implementation of a ``distance'' table that identifies the 
distance from an AWS station within which a BRS station must be 
protected, and the use of the TIA TSB 10-F standard to determine when 
interference is expected to occur to BRS stations. The Fifth NPRM 
similarly seeks comment on specific relocation procedures for incumbent 
FS operations in the 2160-2175 MHz band, including options for 
modifying sunset periods to accommodate new AWS entrants in the band. 
The Fifth NPRM recognizes that we have traditionally provided for cost 
sharing among multiple new entrants that benefit from the relocation of 
incumbent licensees, and seeks comment on what cost sharing 
responsibilities should be implemented between the first AWS entrant 
and other subsequent AWS entrants in the 2150-2160/62 MHz and the 2160-
2175 MHz bands. We note that in the Emerging Technologies and Microwave 
Cost Sharing proceedings, the Commission established procedures for 
relocating incumbent operations by new technology licensees in the 
2160-2200 MHz band whereby the new licensees that relocate a paired 
microwave link with one path in the 2110-2150 MHz portion of the band 
and the other paired path in the 2160-2200 MHz portion of

[[Page 61761]]

the band are entitled to reimbursement for a portion of their 
relocation expenses. Because these procedures encompass the 2160-2175 
MHz band discussed in the Fifth NPRM, we seek comment on the 
appropriate application of cost sharing requirements. One option is to 
establish new cost sharing procedures for the band that are based on 
our existing part 24 cost sharing rules that were used for PCS 
relocation, while at the same time retaining and integrating the 
existing cost sharing requirement in part 101.
    48. After evaluating comments filed in response to the Fifth NPRM, 
the Commission will examine further the impact of all rule changes on 
small entities and set forth its findings in the Final Regulatory 
Flexibility Analysis.

B. Legal Basis

    49. The proposed action is authorized under sections 1, 4(i), 7(a), 
301, 303(f), 303(g), 303(r), 307, 316, and 332 of the Communications 
Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157(a), 301, 303(f), 
303(g), 303(r), 307, 316, and 332.

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

    50. 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.\6\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' \7\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\8\ 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.\9\
---------------------------------------------------------------------------

    \6\ 5 U.S.C. 603(b)(3).
    \7\ 5 U.S.C. 601(6).
    \8\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small business concern'' in 15 U.S.C. 632). Pursuant to the 
RFA, the statutory definition of a small business applies ``unless 
an agency, after consultation with the Office of Advocacy of the 
Small Business Administration and after opportunity for public 
comment, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \9\ Small Business Act, 15 U.S.C. 632 (1996).
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    51. Broadband Radio Service. The Broadband Radio Service (BRS) 
consists of Multichannel Multipoint Distribution Service (MMDS) 
systems, which were originally licensed to transmit video programming 
to subscribers using the microwave frequencies of Multipoint 
Distribution Service (MDS) and Instructional Television Fixed Service 
(ITFS).\10\ 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.\11\ The MDS auction resulted in 67 
successful bidders obtaining licensing opportunities for 493 Basic 
Trading Areas (BTAs).\12\ 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.\13\
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    \10\ Amendment of Parts 21 and 74 of the Commission's Rules with 
Regard to Filing Procedures in the Multipoint Distribution Service 
and in the Instructional Television Fixed Service and Implementation 
of Section 309(j) of the Communications Act--Competitive Bidding, 
Report and Order, 10 FCC Rcd 9589, 9593, paragraph 7 (1995) (``MDS 
Auction R&O'').
    \11\ See Letter to Margaret Wiener, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, FCC, from 
Gary Jackson, Assistant Administrator for Size Standards, Small 
Business Administration (dated Mar. 20, 2003) (noting approval of 
$40 million size standard for MDS auction).
    \12\ Basic Trading Areas (BTAs) were designed by Rand McNally 
and are the geographic areas by which MDS was auctioned and 
authorized. See MDS Auction R&O, 10 FCC Rcd at 9608, paragraph 34.
    \13\ 47 U.S.C. 309(j). Hundreds of stations were licensed to 
incumbent MDS licensees prior to implementation of section 309(j) of 
the Communications Act of 1934, 47 U.S.C. 309(j). For these pre-
auction licenses, the applicable standard is SBA's small business 
size standard for ``other telecommunications'' (annual receipts of 
$12.5 million or less). See 13 CFR 121.201, NAICS code 517910.
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    52. In addition, the SBA has developed a small business size 
standard for Cable and Other Program Distribution,\14\ which includes 
all such companies generating $12.5 million or less in annual 
receipts.\15\ According to Census Bureau data for 1997, there were a 
total of 1,311 firms in this category that had operated for the entire 
year.\16\ 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.\17\ Consequently, we estimate that the 
majority of providers in this service category are small businesses 
that may be affected by the proposed rules and policies. Because the 
Commission's proposals only affect BRS operations in the 2155-2160/62 
MHz band, the actual number of BRS providers who will be affected by 
the proposed relocation procedures will only represent a small fraction 
of these small businesses.
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    \14\ 13 CFR 121.201, NAICS code 517510.
    \15\ Id.
    \16\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Establishment and Firm Size (Including Legal Form of 
Organization),'' Table 4 (issued October 2000).
    \17\ Id.
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    53. Fixed Microwave Services. Microwave services include common 
carrier,\18\ private-operational fixed,\19\ and broadcast auxiliary 
radio services.\20\ At present, there are approximately 36,708 common 
carrier fixed licensees and 59,291 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 the FRFA, we will use the SBA's 
definition applicable to Cellular and other Wireless Telecommunications 
companies--i.e., an entity with no more than 1,500 persons.\21\ 
According to Census Bureau data for 1997, there were 977 firms in this 
category, total, that operated for the entire year.\22\ Of this total, 
965 firms had employment of 999 or fewer employees, and an additional 
twelve firms had employment of 1,000 employees or more.\23\ Thus, under 
this size standard, majority of firms can be considered small. We note 
that the number of firms does not necessarily track the number of 
licensees. We

[[Page 61762]]

estimate that all of the Fixed Microwave licensees (excluding broadcast 
auxiliary licensees) would qualify as small entities under the SBA 
definition.
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    \18\ 47 CFR part 101 et seq. (formerly, part 21 of the 
Commission's Rules) for common carrier fixed microwave services 
(except MDS).
    \19\ Persons eligible under Parts 80 and 90 of the Commission's 
rules can use Private-Operational Fixed Microwave services. See 47 
CFR parts 80 and 90. Stations in this service are called 
operational-fixed to distinguish them from common carrier and public 
fixed stations. Only the licensee may use the operational-fixed 
station, and only for communications related to the licensee's 
commercial, industrial, or safety operations.
    \20\ Auxiliary Microwave Service is governed by Part 74 of Title 
47 of the Commission's Rules. See 47 CFR Part 74 et seq. Available 
to licensees of broadcast stations and to broadcast and cable 
network entities, broadcast auxiliary microwave stations are used 
for relaying broadcast television signals from the studio to the 
transmitter, or between two points such as a main studio and an 
auxiliary studio. The service also includes mobile TV pickups, which 
relay signals from a remote location back to the studio.
    \21\ 13 CFR 121.201, NAICS code 517212.
    \22\ U.S. Census Bureau, 1997 Economic Census, Subject Series: 
Information, ``Employment Size of Firms Subject to Federal Income 
Tax: 1997,'' Table 5 (issued Oct. 2000).
    \23\ Id. The census data do not provide a more precise estimate 
of the number of firms that have employment of 1,500 or fewer 
employees; the largest category provided is ``Firms with 1,000 
employees or more.''
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D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    54. The Fifth NPRM seeks comment on proposals for relocation 
procedures applicable to BRS licensees in the 2150-2160/62 MHz band FS 
licensees in the 2160-2175 MHz band, but does not propose service 
rules. Thus, the item contains no new reporting, recordkeeping, or 
other compliance requirements.

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

    55. The RFA requires an agency to describe any significant 
alternatives that it has considered in 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.\24\
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    \24\ See 5 U.S.C. 603(c).
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    56. The proposals contained in the Fifth NPRM are designed to 
provide spectrum to support the introduction of new advanced mobile and 
fixed terrestrial wireless services. This action is critical to the 
continuation of technological advancement, furthers the goals of the 
Telecommunications Act of 1996, and serves the public interest. We are 
likewise committed to ensuring that the disruption to incumbent 
operations and the economic impact of this proceeding on incumbent 
licensees is minimal. As discussed in Section A, supra, we have 
proposed to establish rules based on our existing Emerging Technologies 
relocation procedures to govern the entry of new licensees into the 
2150-2160/62 MHz and 2160-2175 MHz bands. An alternative option would 
be to offer no relocation process, and instead require incumbent 
licensees to cease use of the band by a date certain and prohibit new 
licensees from entering the band until that date. We believe that an 
Emerging Technologies-based relocation procedure is preferable, as it 
draws on established and well known principles (such as time-based 
negotiation periods and the requirement of negotiating in good faith), 
benefits small BRS and FS licensees because the proposals would require 
new AWS licensees to pay for the costs to relocate their incumbent 
operations to comparable facilities, and--for small AWS licensees--
offers a process by which new services can be brought to the market 
expeditiously. Moreover, we believe that the provision of additional 
spectrum that can be used to support AWS will directly benefit small 
business entities by providing new opportunities for the provision of 
innovative new fixed and mobile wireless services.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    57. None.

Ordering Clauses

    58. Pursuant to Sections 1, 4(i), 7(a), 301, 303(f), 303(g), 
303(r), 307, 316, and 332 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r), 
307, 316, and 332, this Fifth NPRM of proposed rule making is adopted.
    59. Notice is hereby given of the proposed regulatory changes 
described in this Fifth NPRM of proposed rule making, and that comment 
is sought on these proposals.
    60. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this Eighth Report 
and Order and Fifth NPRM of proposed rule making, including the Final 
Regulatory Flexibility Analysis and 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. 05-21407 Filed 10-25-05; 8:45 am]
BILLING CODE 6712-01-P