[Federal Register Volume 70, Number 248 (Wednesday, December 28, 2005)]
[Rules and Regulations]
[Pages 76704-76712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24373]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 22 and 90

[WT Docket No. 02-55; ET Docket No. 00-258; ET Docket No. 95-18; RM-
9498; RM-10024; FCC 05-174]


Private Land Mobile Services; 800 MHz Public Safety Interference 
Proceeding

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission amends the definition of an 
Enhanced Specialized Mobile Radio (ESMR) system; further delineates the 
relocation rights of 800 MHz incumbent licensees; narrows the Expansion 
Band in the Atlanta, Georgia region; reaffirms the Commission's 
authority to grant Nextel Communications, Inc. (Nextel) spectrum rights 
to ten megahertz of spectrum in the 1.9 GHz band; permits the 
Transition Administrator (TA) to follow a calendar year for reporting 
schedule purposes; permits Nextel to receive credit in the 800 MHz 
`true-up' process for the relocation of certain additional BAS 
incumbent licensees whose licenses were issued prior to November 12, 
2004; and clarifies the definitions of ``unacceptable interference'' 
and ``Critical Infrastructure Industries'' (CII).

DATES: Effective January 27, 2006.

FOR FURTHER INFORMATION CONTACT: Technical Information: Brian Marenco, 
[email protected], Public Safety

[[Page 76705]]

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

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Memorandum Opinion and Order, FCC 05-174, 
adopted October 3, 2005 and released on October 5, 2005.

I. Procedural Matters

A. Paperwork Reduction Act Analysis

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

B. Report to Congress

    3. The Commission will send a copy of this Memorandum Opinion and 
Order in a report to be sent to Congress and the General Accounting 
Office pursuant to the Congressional Review Act, see 5 U.S.C. 
801(a)(1)(A).

C. Supplemental Final Regulatory Flexibility Analysis

    4. The Regulatory Flexibility Act (RFA) requires that an agency 
prepare a regulatory flexibility analysis for notice-and-comment 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' As required by the RFA an 
Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in 
the Notice of Proposed Rulemaking (``800 MHz NPRM'') in this 
proceeding. The Commission sought written public comment on the 
proposals in the 800 MHz NPRM, including comment on the IRFA. Based 
upon the comments in response to the 800 MHz NPRM and the IRFA, the 
Commission included a Final Regulatory Flexibility Analysis (``FRFA'') 
in the Report and Order (800 MHz R&O) in this proceeding. The 
Commission subsequently sought comment on ex parte presentations filed 
in this proceeding. In the Supplemental Order and Order on 
Reconsideration (Supplemental Order), the Commission, on its own 
motion, amended the rules in a manner that did not significantly affect 
small entities beyond the terms set forth in the FRFA. Accordingly, the 
Commission included a Supplemental Regulatory Flexibility Analysis 
(``Supplemental FRFA'') addressing those amendments consistent with the 
RFA.
    5. This Memorandum Opinion and Order clarifies portions of the 800 
MHz R&O and companion Supplemental Order and addresses petitions for 
reconsideration of the Commission's decisions in the 800 MHz R&O and 
the Supplemental Order. Interested parties were afforded notice and 
opportunity to comment on the petitions for reconsideration of the 800 
MHz R&O and Supplemental Order. See 70 FR 17327. Several parties filed 
oppositions to the petitions for reconsideration and replies to the 
oppositions. The clarifications we make in this MO&O are in response to 
the various petitions for reconsideration, oppositions and replies that 
have been filed thus far. Accordingly, this Supplemental Regulatory 
Flexibility Analysis (``Supplemental FRFA'') addresses those 
clarifications and conforms to the RFA.

Need for, and Objectives of, the Order on Reconsideration

    6. By way of background the 800 MHz R&O adopted a plan comprised of 
both long-term and short-term components that the Commission concluded 
represented the most effective solution to the problem of interference 
to public safety licensees in the 800 MHz band. The Commission 
addressed the ongoing interference problem over the short-term by 
adopting technical standards defining unacceptable interference in the 
800 MHz band and detailing responsibility for interference abatement. 
The long-term component augmented the short-term component by 
reconfiguring the 800 MHz band to separate generally incompatible 
technologies whose current proximity to each other is the identified 
root cause of unacceptable interference.
    7. Enhanced Specialized Mobile Radio Systems. In this proceeding 
the Commission divided the 800 MHz band into a cellular portion and 
non-cellular portion to create spectral separation between incompatible 
technologies. Section 90.614 provides that the cellular portion would 
be reserved for licensees that operate cellular high-density systems. 
Several parties sought reconsideration of the eligibility and operating 
requirements applicable to the cellular band arguing that these 
requirements are overly restrictive.
    8. On our own motion we clarify the definition of ESMR system in 
order to resolve an ambiguity between the text of the 800 MHz R&O and 
Sec.  90.7 of the accompanying rules. This clarification is significant 
to the extent that it defines those licensees that may elect to be 
relocated into the cellular portion of the band. When the Commission 
first established the eligibility criteria for relocation into the 
cellular portion of the band, it spoke to existing ``ESMR'' systems. 
The 800 MHz R&O inadvertently defined ESMR systems as those that employ 
``high density'' cellular architecture. However the 800 MHz R&O had 
also referred to an ``ESMR system,'' more generally, as a term to 
describe systems that use multiple, interconnected, multi-channel 
transmit/receive cells and employ frequency reuse to serve a larger 
number of subscribers than is possible using non-cellular technology. 
We resolve this contradiction by amending rule Sec.  90.7 to eliminate 
the ``high density'' qualification for ESMR status. The practical 
effect of this clarification is to ensure licensees operating in the 
ESMR band have a fair amount of flexibility in the management of their 
systems. The purpose of this clarification is to distinguish between 
high-density systems that may not be operated in the non-ESMR portion 
of the band not to require EA licensees that relocate to the ESMR band 
to operate high-density systems should they elect to operate in the 
ESMR band. To this end we also adopt a definition of ``800 MHz high-
density cellular system'' and ``800 MHz cellular system'' and revise 
several part 22 and 90 rules to incorporate the distinction between 800 
MHz cellular systems and high-density cellular systems in order to more 
efficiently implement our band reconfiguration plan.

Economic Area Licensees

    9. We also clarify that Economic Area (EA) licensees that elect to 
relocate to the cellular band may relocate site-based systems so long 
as they deploy a cellular system on their combined facilities by the 
end of their EA license term. We also clarify that those incumbent EA 
licensees that operate non-cellular systems in that portion of the 
cellular band known as the ``Upper 200 band,'' must relocate from the 
cellular band unless they deploy a cellular system. Failure to 
construct a cellular system will result in automatic cancellation of 
the relocated EA license and any site-based facilities relocated to the 
cellular band. The purpose of this clarification is to: (1) Avoid 
replicating in the cellular band the same incompatible mix of 
technologies that resulted in this proceeding; (2) ensure that 
licensees genuinely interested in competing with cellular operators 
have the opportunity to move forward with

[[Page 76706]]

their business plans and (3) inhibit the ability of speculative 
licensees to allow valuable spectrum to lie fallow or under utilized in 
an attempt to maximize resale value. In this connection, EA licensees, 
consistent with their existing construction and operational 
obligations, must notify the Commission whether they have constructed 
in accordance with the operational rules governing the ESMR band. 
Overall, this clarification confers upon EA licensees the benefit of 
added flexibility.

Unacceptable Interference

    10. In the 800 MHz R&O, the Commission adopted an objective 
standard for defining what constitutes ``unacceptable interference'' to 
public safety and other non-cellular systems in the 800 MHz band. The 
purpose of defining unacceptable interference is to determine the 
rights and responsibilities of parties to alleviate interference. One 
petitioner requested that we clarify that the ``unacceptable 
interference'' standard will apply only to interference created by 
licensees employing cellular architecture systems. According to this 
petitioner the heading and text of Sec.  90.672 implies that 
``unacceptable interference'' could be created by any type of licensee 
including non-cellular licensees. We clarify the heading and text of 
Sec.  90.672 to specify that ``unacceptable interference'' to 800 MHz 
non-cellular licensees is that which originates from one or a 
combination of 800 MHz cellular-architecture licensees, regardless of 
whether the cellular-architecture licensee employs a ``high-density'' 
or ``low-density'' cellular system. In this connection we replace the 
reference to harmful interference in Sec.  90.672 with the term 
unacceptable interference.

Critical Infrastructure Industry

    11. One Petitioner pointed out that Sec.  90.7 imprecisely defined 
Critical Infrastructure Industries (CII). Accordingly we clarify the 
definition of CII.

Southeast Region Band Plan

    12. Section 90.617 is updated to reflect the distribution of 
channels between the various pool categories in the SouthernLINC/Nextel 
counties listed in Sec.  90.614(c). In the 800 MHz R&O the Commission 
adopted a band plan for the Southeast Region. Part of this band plan 
included a 1 MHz Expansion band, designed to create spectral separation 
between public safety and ESMR operations. Subsequently we have 
received petitions for reconsideration seeking to eliminate or reduce 
the size of the Expansion band because there is insufficient amount of 
spectrum to accommodate Public Safety and cellular operations in the 
Atlanta market. Accordingly, we reduce the size of the Expansion band 
in the Atlanta market and up to seventy miles outside Atlanta.

Transition Administrator Reports

    13. Sections 90.676(b)(3) and (4) are revised to allow the 
Transition Administrator to choose the date for filing quarterly and 
annual reports regarding band reconfiguration. Previously Sec.  90.676 
required that the TA submit its reports based on the effective date of 
the Report and Order. We have since learned that this requirement would 
be complicated by Nextel Communications, Inc.'s obligations to the 
Securities and Exchange Commission. We therefore modify our rules to 
permit the TA to file its quarterly and annual reports with the 
Commission on the first business day following Nextel's quarterly and 
annual filings with the Securities and Exchange Commission.

Dispute Resolution

    14. One petitioner pointed out an ambiguity and inadvertent 
omission in our 800 MHz band reconfiguration dispute resolution 
procedures. Accordingly we revise Sec.  90.677(d) of our rules to 
clarify that the Transition Administrator must forward unresolved 
disputed issues remaining at the end of the mandatory negotiation 
period within thirty days of the end of the mandatory negotiation 
period. We also will modify Sec.  90.674 of our rules to codify the 
dispute resolution procedures set forth in the text of the 800 MHz R&O.

Frequency Coordination

    15. Section 90.175 is revised to clarify that 800 MHz Economic Area 
licensees and 900 MHz SMR licensees will continue to be exempt from 
frequency coordination requirements. Previously, in the Supplemental 
Order we provided that 800 MHz site-based SMR licensees will be subject 
to frequency coordination in the 800 MHz band but inadvertently omitted 
this requirement from the rules. Accordingly we correct this omission.

Summary of Significant Issues Raised in Response to the FRFA

    16. No parties have addressed the FRFA in any subsequent filings.

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

    17. The RFA generally defines ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction.'' [FN352] In addition, the term 
``small business'' has the same meaning as the term ``small business 
concern'' under the Small Business Act. A ``small business concern'' is 
one which: (1) Is independently owned and operated; (2) is not dominant 
in its field of operation; and (3) satisfies any additional criteria 
established by the Small Business Administration (SBA).
    18. In this MO&O, the Commission is amending the final rules 
adopted in the 800 MHz R&O and Supplemental Order. In this Further 
FRFA, we incorporate by reference the description and estimate of the 
number of small entities from the FRFA in the 800 MHz R&O, which 
identifies as potentially affected entities Governmental Licensees, 
Public Safety Radio Licensees, Wireless Telecommunications, Business, 
Industrial and Land Transportation Licensees, and Specialized Mobile 
Radio Licensees.
    19. A small organization is generally ``any not-for-profit 
enterprise which is independently owned and operates and is not 
dominant in its field.'' Nationwide as of 2002, there were 
approximately 1.6 million small organizations. The term ``small 
governmental jurisdiction'' is defined as ``governments of cities, 
towns, townships, villages, school districts, or special districts, 
with a population of less than fifty thousand.'' As of 1997, there were 
approximately 87,453 governmental jurisdictions in the United States. 
This number includes 39,044 county governments, municipalities and 
townships, of which 37,546 (approximately 96.2%) have populations of 
fewer than 50,000, and of which 1,498 have populations of 50,000 or 
more. Thus, we estimate the number of small governmental jurisdictions 
overall to be 84,098 or fewer. Nationwide, there are a total of 
approximately 22.4 million small businesses, according to SBA data.

Description of Projected Reporting, Recordkeeping and other Compliance 
Requirements

    20. We do not adopt new reporting, recordkeeping or other 
compliance requirements in this MO&O.

Steps Taken to Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered

    21. 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

[[Page 76707]]

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.
    22. As noted above, we reduce the size of the Expansion band in 
Atlanta, rather than eliminating the Expansion band in the Atlanta 
area. Although we reduce the Expansion band in Atlanta by .5 MHz, we 
maintain spectral separation between public safety and ESMR band 
operations. The purpose of maintaining spectral separation between 
public safety licensees operating in the non-cellular band and ESMR 
licensees operating in the cellular band is to reduce the incidence of 
interference to public safety. In contrast, if we had eliminated the 
Expansion band, we would have eliminated any spectral separation 
between public safety and ESMR systems operating in the cellular 
portion of the band. Further, public safety will continue to be 
entitled to interference protection from unacceptable interference. As 
a concession, however, some Atlanta-based B/ILT incumbents who would 
otherwise not be required to change frequencies will be required to 
relocate to the Expansion Band in order to accommodate public safety 
licensees relocating below the Expansion Band.
    23. The Commission will send a copy of this Memorandum Opinion and 
Order, including this Supplemental Final Regulatory Flexibility 
Certification, in a report to be sent to Congress and the General 
Accounting Office pursuant to the Congressional Review Act. See 5 
U.S.C. 801(a)(1)(A). In addition the Commission will send a copy of the 
Order including a copy of this Memorandum Opinion and Order Final 
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy 
of the SBA. See 5 U.S.C. 605(b).
    A summary of this Memorandum Opinion and Order and this 
certification will also be published in the Federal Register.

List of Subjects in 47 CFR Parts 22 and 90

    Communications, Communications common carriers, Communications 
equipment, Radio, Reporting and recordkeeping requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 22 and 90 as follows:

PART 22--PUBLIC MOBILE SERVICES

0
1. The authority citation for part 22 continues to read as follows:

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

0
2. In Sec.  22.970, the section heading and paragraph (a) introductory 
text are revised to read as follows:


Sec.  22.970  Unacceptable interference to part 90 non-cellular 800 MHz 
licensees from cellular radiotelephone or part 90-800 MHz cellular 
systems.

    (a) Definition. Except as provided in 47 CFR 90.617(k), 
unacceptable interference to non-cellular part 90 licensees in the 800 
MHz band from cellular radiotelephone or part 90-800 MHz cellular 
systems will be deemed to occur when the below conditions are met:
* * * * *

0
3. In Sec.  22.971 paragraph (a) is revised to read as follows:


Sec.  22.971  Obligation to abate unacceptable interference.

    (a) Strict Responsibility. Any licensee who, knowingly or 
unknowingly, directly or indirectly, causes or contributes to causing 
unacceptable interference to a non-cellular part 90 of this chapter 
licensee in the 800 MHz band, as defined in Sec.  22.970, shall be 
strictly accountable to abate the interference, with full cooperation 
and utmost diligence, in the shortest time practicable. Interfering 
licensees shall consider all feasible interference abatement measures, 
including, but not limited to, the remedies specified in the 
interference resolution procedures set forth in Sec.  22.972(c). This 
strict responsibility obligation applies to all forms of interference, 
including out-of-band emissions and intermodulation.
* * * * *

0
4. In Sec.  22.972, paragraph (c)(1) introductory text is revised to 
read as follows:


Sec.  22.972  Interference resolution procedures.

* * * * *
    (c) * * *
    (1) All Cellular Radiotelephone and part 90 of this chapter--800 
MHz cellular system licensees who are responsible for causing 
unacceptable interference shall take all affirmative measures to 
resolve such interference. Cellular Radiotelephone licensees found to 
contribute to unacceptable interference, as defined in Sec.  22.970, 
shall resolve such interference in the shortest time practicable. 
Cellular Radiotelephone licensees and part 90 of this chapter--800 MHz 
cellular system licensees must provide all necessary test apparatus and 
technical personnel skilled in the operation of such equipment as may 
be necessary to determine the most appropriate means of timely 
eliminating the interference. However, the means whereby interference 
is abated or the cell parameters that may need to be adjusted is left 
to the discretion of the Cellular Radiotelephone and/or part 90 of this 
chapter--800 MHz cellular system licensees, whose affirmative measures 
may include, but not be limited to, the following techniques:
* * * * *

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

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

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

0
6. In Sec.  90.7, the definition for ``Cellular System (800 MHZ)'' is 
removed, the definition for ``800 MHz Cellular System'' is added in its 
place, the definition for ``800 MHz High Density Cellular System'' is 
added following the definition for ``800 MHz Cellular System'', and the 
definition for ``Critical Infrastructure Industry (CII)'' is revised to 
read as follows:


Sec.  90.7  Definitions.

* * * * *
    800 MHz Cellular System. In the 806-824 MHz/ 851-869 MHz band, a 
system that uses multiple, interconnected, multi-channel transmit/
receive cells capable of frequency reuse and automatic handoff between 
cell sites to serve a larger number of subscribers than is possible 
using non-cellular technology.
    800 MHz High Density Cellular System. In the 806-824 MHz/ 851-869 
MHz band, a high density cellular system is defined as a cellular 
system which:
    (1) Has more than five overlapping interactive sites featuring 
hand-off capability; and
    (2) Any one of such sites has an antenna height of less than 30.4 
meters (100 feet) above ground level with an

[[Page 76708]]

antenna height above average terrain (HAAT) of less than 152.4 meters 
(500 feet) and twenty or more paired frequencies.
* * * * *
    Critical Infrastructure Industry (CII). State, local government and 
non-government entities, including utilities, railroads, metropolitan 
transit systems, pipelines, private ambulances, volunteer fire 
departments, and not-for-profit organizations that offer emergency road 
services, providing private internal radio services provided these 
private internal radio services are used to protect safety of life, 
health, or property; and are not made commercially available to the 
public.
* * * * *
0
7. In Sec.  90.175, paragraph (j)(8) is revised to read as follows:


Sec.  90.175  Frequency coordination requirements.

* * * * *
    (j) * * *
    (8) Applications for SMR frequencies contained in Sec. Sec.  
90.617(d) Table 4A, 90.617(e), 90.617(f) and 90.619(b)(2).
* * * * *
0
8. In Sec.  90.614, the section heading, the introductory text, and 
paragraphs (a), (b) and (c) introductory text are revised to read as 
follows:


Sec.  90.614  Segments of the 806-824/851-869 MHz band for non-border 
areas.

    The 806-824/851-869 MHz band (``800 MHz band'') will be divided as 
follows at locations farther then 110 km (68.4 miles) from the U.S./
Mexico border and 140 km (87 miles) from the U.S./Canadian border 
(``non-border areas'')
    (a) 800 MHz high density cellular systems--as defined in Sec.  
90.7--are prohibited from operating on channels 1-550 in non-border 
areas.
    (b) 800 MHz high density cellular systems--as defined in Sec.  
90.7--are permitted to operate on channels 551-830 in non-border areas.
    (c) In the following counties and parishes, 800 MHz high density 
cellular systems--as defined in Sec.  90.7--are permitted to operate on 
channels 411-830:
* * * * *
0
9. In Sec.  90.615, paragraph (a) introductory text is revised to read 
as follows:


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

* * * * *
    (a) In a given 800 MHz NPSPAC region, any channel in the 231-260 
range which is vacated by a licensee relocating to channels 551-830 and 
which remains vacant after band reconfiguration will be available as 
follows:
* * * * *
0
10. In Sec.  90.617, revise paragraphs (a), (b), (d), (e), (g) 
introductory text, (h) introductory text, (i) introductory text, (j) 
introductory text, and (k) introductory text to read as follows:


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

* * * * *
    (a) Unless otherwise specified, the channels listed in Table 1 and 
paragraph (a)(1) of this section are available for to eligible 
applicants in the Public Safety Category which consists of licensees 
eligible in the Public Safety Pool of subpart B of this part. 800 MHz 
high density cellular systems as defined in Sec.  90.7 are prohibited 
on these channels. These frequencies are available in non-border areas. 
Specialized Mobile Radio Systems will not be authorized in this 
category. These channels are available for intercategory sharing as 
indicated in Sec.  90.621(e).

     Table 1.--Public Safety Pool 806-816/851-861 MHz Band Channels
                              [70 Channels]
------------------------------------------------------------------------
                 Group No.                          Channel Nos.
------------------------------------------------------------------------
269.......................................  269-289-311-399-439
270.......................................  270-290-312-400-440
279.......................................  279-299-319-339-359
280.......................................  280-300-320-340-360
309.......................................  309-329-349-369-389
310.......................................  310-330-350-370-390
313.......................................  313-353-393-441-461
314.......................................  314-354-394-448-468
321.......................................  321-341-361-381-419
328.......................................  328-348-368-388-420
351.......................................  351-379-409-429-449
332.......................................  352-380-410-430-450
Single Channels...........................  391, 392, 401, 408, 421,
                                             428, 459, 460, 469, 470
------------------------------------------------------------------------

    (1) Channels numbers 1-230 are also available to eligible 
applicants in the Public Safety Category in non-border areas. The 
assignment of these channels will be done in accordance with the 
policies defined in the Report and Order of Gen. Docket No. 87-112 (See 
Sec.  90.16). The following channels are available only for mutual aid 
purposes as defined in Gen. Docket No. 87-112: channels 1, 39, 77, 115, 
153.
    (2) Except as provided in paragraph (a)(3) of this section, the 
channels listed in Table 1A are available in the counties listed in 
Sec.  90.614(c) to eligible applicants in the Public Safety Category. 
800 MHz high density cellular systems as defined in Sec.  90.7 are 
prohibited on these channels. These channels are available for 
intercategory sharing as indicated in Sec.  90.621(e).

   Table 1A.--Public Safety Pool 806-816/851-861 MHz Band Channels for
                      Counties in Southeastern U.S.
                              [70 Channels]
------------------------------------------------------------------------
                 Group No.                          Channel Nos.
------------------------------------------------------------------------
261.......................................  261-313-324-335-353
262.......................................  262-314-325-336-354
265.......................................  265-285-315-333-351
266.......................................  266-286-316-334-352
269.......................................  269-289-311-322-357
270.......................................  270-290-312-323-355
271.......................................  271-328-348-358-368
279.......................................  279-299-317-339-359
280.......................................  280-300-318-340-360
309.......................................  309-319-329-349-369
310.......................................  310-320-330-350-370
321.......................................  321-331-341-361-372
Single Channels...........................  326, 327, 332, 337, 338,
                                             342, 343, 344, 345, 356
------------------------------------------------------------------------

    (3) The channels listed in Table 1B are available within 113 km (70 
mi) of the center city coordinates of Atlanta, GA to eligible 
applicants in the Public Safety Category. The center city coordinates 
of Atlanta, GA--for the purposes of the rule--are defined as 
33[deg]44'55'' NL, 84[deg]23'17'' WL. 800 MHz high density cellular 
systems as defined in Sec.  90.7 are prohibited on these channels. 
These channels are available for intercategory sharing as indicated in 
Sec.  90.621(e).

[[Page 76709]]



   Table 1B.--Public Safety Pool 806-816/851-861 MHz Band Channels for
                               Atlanta, GA
                              [70 Channels]
------------------------------------------------------------------------
                 Group No.                          Channel Nos.
------------------------------------------------------------------------
261.......................................  261-313-324-335-353
262.......................................  262-314-325-336-354
269.......................................  269-289-311-322-357
270.......................................  270-290-312-323-355
279.......................................  279-299-319-339-359
280.......................................  280-300-320-340-360
285.......................................  285-315-333-351-379
286.......................................  286-316-334-352-380
309.......................................  309-329-349-369-389
310.......................................  310-330-350-370-390
321.......................................  321-331-341-361-381
328.......................................  328-348-358-368-388
Single Channels...........................  317, 318, 326, 327, 332,
                                             337, 338, 356, 371, 372
------------------------------------------------------------------------

    (b) Unless otherwise specified, the channels listed in Table 2 are 
available to applicants eligible in the Industrial/Business Pool of 
subpart C of this part but exclude Special Mobilized Radio Systems as 
defined in Sec.  90.603(c). 800 MHz high density cellular systems as 
defined in Sec.  90.7 are prohibited on these channels. These 
frequencies are available in non-border areas. Specialized Mobile Radio 
(SMR) systems will not be authorized on these frequencies. These 
channels are available for inter-category sharing as indicated in Sec.  
90.621(e).

 Table 2.--Business/Industrial/Land Transportation Pool 806-816/851-861
                            MHz Band Channels
                             [100 Channels]
------------------------------------------------------------------------
                 Group No.                          Channel Nos.
------------------------------------------------------------------------
322.......................................  322-362-402-442-482
323.......................................  323-363-403-443-483
324.......................................  324-364-404-444-484
325.......................................  325-365-405-445-485
326.......................................  326-366-406-446-486
327.......................................  327-367-407-447-487
342.......................................  342-382-422-462-502
343.......................................  343-383-423-463-503
344.......................................  344-384-424-464-504
345.......................................  345-385-425-465-505
346.......................................  346-386-426-466-506
347.......................................  347-387-427-467-507
Single Channels...........................  261, 271, 281, 291, 301,
                                             262, 272, 282, 292, 302,
                                             263, 273, 283, 293, 303,
                                             264, 274, 284, 294, 304,
                                             265, 275, 285, 295, 305,
                                             266, 276, 286, 296, 306,
                                             267, 277, 287, 297, 307,
                                             268, 278, 288, 298, 308
------------------------------------------------------------------------

    (1) Except as provided in paragraph (b)(2) of this section, the 
channels listed in Table 2A are available in the counties listed in 
Sec.  90.614(c) to eligible applicants in the Industrial/Business Pool 
of subpart C of this part but exclude Special Mobilized Radio Systems 
as defined in Sec.  90.603(c). 800 MHz high density cellular systems as 
defined in Sec.  90.7 are prohibited on these channels. These channels 
are available for intercategory sharing as indicated in Sec.  
90.621(e).

 Table 2A.--Business/Industrial/Land Transportation Pool 806-816/851-861
               MHz Band for Channels in Southeastern U.S.
                              [69 Channels]
------------------------------------------------------------------------
                                                    Channel Nos.
------------------------------------------------------------------------
Single Channels...........................  263, 264, 267, 268, 272,
                                             273, 274, 275, 276, 277,
                                             278, 281, 282, 283, 284,
                                             287, 288, 291, 292, 293,
                                             294, 295, 296, 297, 298,
                                             301, 302, 303, 304, 305,
                                             306, 307, 308, 346, 347,
                                             362, 363, 364, 365, 366,
                                             367, 379, 380, 381, 382,
                                             383, 384, 385, 386, 387,
                                             388, 389, 390, 391, 392,
                                             393, 394, 399, 400, 401,
                                             402, 403, 404, 405, 406,
                                             407, 408, 409, 410
------------------------------------------------------------------------

    (2) The channels listed in Table 2B are available within 113 km (70 
mi) of the center city coordinates of Atlanta, GA, to eligible 
applicants in the Industrial/Business Pool of subpart C of this part 
but exclude Special Mobilized Radio Systems as defined in Sec.  
90.603(c). The center city coordinates of Atlanta, GA--for the purposes 
of the rule--are defined as 33[deg]44'55'' NL, 84[deg]23'17'' WL. 800 
MHz high density cellular systems as defined in Sec.  90.7 are 
prohibited on these channels. These channels are available for 
intercategory sharing as indicated in Sec.  90.621(e).

 Table 2B.--Business/Industrial/Land Transportation Pool 806-816/851-861
                  MHz Band for Channels in Atlanta, GA
                              [69 Channels]
------------------------------------------------------------------------
                                                    Channel Nos.
------------------------------------------------------------------------
Single Channels...........................  263, 264, 265, 266, 267,
                                             268, 271, 272, 273, 274,
                                             275, 276, 277, 278, 281,
                                             282, 283, 284, 287, 288,
                                             291, 292, 293, 294, 295,
                                             296, 297, 298, 301, 302,
                                             303, 304, 305, 306, 307,
                                             308, 342, 343, 344, 345,
                                             346, 347, 362, 363, 364,
                                             365, 366, 367, 382, 383,
                                             384, 385, 386, 387, 391,
                                             392, 393, 394, 399, 400,
                                             401, 402, 403, 404, 405,
                                             406, 407, 409, 410
------------------------------------------------------------------------

* * * * *
    (d) Unless otherwise specified, the channels listed in Tables 4A 
and 4B are available only to eligibles in the SMR category--which 
consists of Specialized Mobile Radio (SMR) stations and eligible end 
users. 800 MHz high density cellular systems, as defined in Sec.  90.7, 
are prohibited on these channels. These frequencies are available in 
non-border areas. The spectrum blocks listed in Table 4A are available 
for EA-based services (as defined by Sec.  90.681) prior to January 21, 
2005. No new EA-based services will be authorized after January 21, 
2005. EA-based licensees who operate non-high-density cellular systems 
prior to January 21, 2005, may choose to remain on these channels in 
the non-high-density cellular portion of the 800 MHz band (as defined 
in Sec.  90.614). These licensees may continue to operate non-high-
density cellular systems and will be grandfathered indefinitely. The 
channels listed in Table 4B will be available for site-based licensing 
after January 21, 2005, in any

[[Page 76710]]

Economic Area where no EA-based licensee is authorized for these 
channels.

   Table 4A.--EA-Based SMR Category 806-816/851-861 MHz Band Channels,
                   Available Prior to January 21, 2005
                              [80 Channels]
------------------------------------------------------------------------
              Spectrum block                        Channel Nos.
------------------------------------------------------------------------
G.........................................  311-351-391-431-471
H.........................................  312-352-392-432-472
I.........................................  313-353-393-433-473
J.........................................  314-354-394-434-474
K.........................................  315-355-395-435-475
L.........................................  316-356-396-436-476
M.........................................  317-357-397-437-477
N.........................................  318-358-398-438-478
O.........................................  331-371-411-451-491
P.........................................  332-372-412-452-492
Q.........................................  333-373-413-453-493
R.........................................  334-374-414-454-494
S.........................................  335-375-415-455-495
T.........................................  336-376-416-456-496
U.........................................  337-377-417-457-497
V.........................................  338-378-418-458-498
------------------------------------------------------------------------


  Table 4B.--SMR Category 806-816/851-861 MHz Band Channels, Available
            After January 21, 2005, for Site-Based Licensing
                              [80 Channels]
------------------------------------------------------------------------
                 Group No.                          Channel Nos.
------------------------------------------------------------------------
315.......................................  315-355-395-435-475
316.......................................  316-356-396-436-476
317.......................................  317-357-397-437-477
318.......................................  318-358-398-438-478
331.......................................  331-371-411-451-491
332.......................................  332-372-412-452-492
333.......................................  333-373-413-453-493
334.......................................  334-374-414-454-494
335.......................................  335-375-415-455-495
336.......................................  336-376-416-456-496
337.......................................  337-377-417-457-497
338.......................................  338-378-418-458-498
Single Channels...........................  431, 432, 433, 434, 471,
                                             472, 473, 474, 479, 480,
                                             481, 488, 489, 490, 499,
                                             500, 501, 508, 509, 510
------------------------------------------------------------------------

    (1) Except as provided in paragraph (d)(2) of this section, the 
channels listed in Table 4C are available in the counties listed in 
Sec.  90.614(c) for non-high-density cellular operations only to 
eligibles in the SMR category--which consists of Specialized Mobile 
Radio (SMR) stations and eligible end users. 800 MHz high density 
cellular systems as defined in Sec.  90.7 are prohibited on these 
channels. These channels are available for intercategory sharing as 
indicated in Sec.  90.621(e).

 Table 4C.--SMR Category 806-816/851-861 MHz Band Channels Available for
    Site-Based Licensing in Southeastern U.S. After January 21, 2005
                              [11 Channels]
------------------------------------------------------------------------
                                                    Channel Nos.
------------------------------------------------------------------------
Single Channels...........................  371, 373, 374, 375, 376,
                                             377, 378, 395, 396, 397,
                                             398
------------------------------------------------------------------------

    (2) The channels listed in Table 4D are available within 113 km (70 
mi) of the center city coordinates of Atlanta, GA, only to eligibles in 
the SMR category--which consists of Specialized Mobile Radio (SMR) 
stations and eligible end users. The center city coordinates of 
Atlanta, GA--for the purposes of this rule--are defined as 
33[deg]44'55'' NL, 84[deg]23'17'' WL. 800 MHz high density cellular 
systems as defined in Sec.  90.7 are prohibited on these channels. 
These channels are available for intercategory sharing as indicated in 
Sec.  90.621(e). 800 MHz high density cellular systems as defined in 
Sec.  90.7 are prohibited on these channels. These channels are 
available for intercategory sharing as indicated in Sec.  90.621(e).

 Table 4D.--SMR Category 806-816/851-861 MHz Band Channels Available for
       Site-Based Licensing in Atlanta, GA after January 21, 2005
                              [11 Channels]
------------------------------------------------------------------------
                                                    Channel Nos.
------------------------------------------------------------------------
Single Channels...........................  373, 374, 375, 376, 377,
                                             378, 395, 396, 397, 398,
                                             408
------------------------------------------------------------------------

    (e) The Channels listed in Sec.  90.614(b) and (c) are available to 
eligibles in the SMR category--which consists of Specialized Mobile 
Radio (SMR) stations and eligible end users. ESMR licensees which 
employ an 800 MHz high density cellular system, as defined in Sec.  
90.7, are permitted to operate on these channels in non-border areas. 
ESMR licensees authorized prior to January 21, 2005, may continue to 
operate, if they so choose, on the channels listed in Table 5. These 
licensees will be grandfathered indefinitely.

     Table 5.--ESMR Category 816-821 MHz Band Channels for Cellular
   Operations in Non-Border Areas Available Prior to January 21, 2005
                             [200 Channels]
------------------------------------------------------------------------
              Spectrum block                        Channel Nos.
------------------------------------------------------------------------
A.........................................  511 through 530.
B.........................................  531 through 590.
C.........................................  591 through 710.
------------------------------------------------------------------------

* * * * *
    (g) In a given 800 MHz NPSPAC region, channels below 471 listed in 
Tables 2 and 4B which are vacated by licensees relocating to channels 
551-830 and which remain vacant after band reconfiguration will be 
available as follows:
* * * * *
    (h) In a given 800 MHz NPSPAC region, channels below 471 listed in 
Tables 2 and 4B which are vacated by a licensee relocating to channels 
511-550 and remain vacant after band reconfiguration will be available 
as follows:
* * * * *
    (i) Special Mobilized Radio Systems licensees who operate systems, 
other than 800 MHz high density cellular systems, on any of the public 
safety channels listed in Table 1 prior to January 21, 2005, are 
grandfathered and may continue to operate on these channels 
indefinitely. These grandfathered licensees will be

[[Page 76711]]

prohibited from operating 800 MHz high density cellular systems as 
defined in Sec.  90.7. Site-based licensees who are grandfathered on 
any of the public safety channels listed in Table 1 may modify their 
license only if they obtain concurrence from a certified public safety 
coordinator in accordance with Sec.  90.175(c). Grandfathered EA-based 
licensees, however, are exempt from any of the frequency coordination 
requirements of Sec.  90.175 as long as their operations remain within 
the Economic Area defined by their license in accordance with the 
requirements of Sec.  90.683(a).
    (j) Licensees operating 800 MHz high density cellular systems on 
the channels listed in Sec.  90.614(a), prior to January 21, 2005, may 
elect to continue operating on these channels and will be permitted to 
continue operating 800 MHz high density cellular systems (as defined in 
Sec.  90.7) in this portion of the band. These licensees will be 
grandfathered indefinitely subject to the provisions of Sec. Sec.  
90.673, 90.674 and 90.675.
    (k) Licensees may operate systems other than 800 MHz high density 
cellular systems (as defined in Sec.  90.7) on Channels 511-550 at any 
location vacated by an EA-based SMR licensee. For operations on these 
channels, unacceptable interference (as defined in Sec.  22.970 of this 
chapter and Sec.  90.672) will be deemed to occur only at sites where 
the following median desired signals are received (rather than those 
specified in Sec.  22.970(a)(1)(i) of this chapter and Sec.  
90.672(a)(1(i). The minimum required median desired signal, as measured 
at the R.F. input of the receiver, will be as follows:
* * * * *

0
11. In Sec.  90.619 paragraph (d)(2) is revised to read as follows:


Sec.  90.619  Frequencies available for use in the U.S./Mexico and 
U.S./Canada border areas.

* * * * *
    (d) * * *
    (2) All frequency assignments made pursuant to paragraph (d)(1) of 
this section shall comply with the requirements of Sec.  90.619(b).
* * * * *

0
12. In Sec.  90.672, the section heading and the introductory text of 
paragraph (a) are revised to read as follows:


Sec.  90.672  Unacceptable interference to non-cellular 800 MHz 
licensees from 800 MHz cellular systems or Part 22 Cellular 
Radiotelephone systems.

    (a) Definition. Except as provided in 47 CFR 90.617(k), 
unacceptable interference to non-cellular licensees in the 800 MHz band 
from 800 MHz cellular systems or part 22 of this chapter, Cellular 
Radiotelephone systems will be deemed to occur when the below 
conditions are met:
* * * * *

0
13. In Sec.  90.674, paragraphs (a) introductory text and (c)(1) 
introductory text are revised to read as follows:


Sec.  90.674  Interference resolution procedures before, during and 
after band reconfiguration.

    (a) Initial Notification. Any non-cellular licensee operating in 
the 806-824/851-869 MHz band who reasonably believes it is receiving 
unacceptable interference, as described in Sec.  90.672, shall provide 
an initial notification of the interference incident. This initial 
notification of an interference incident shall be sent to all part 22 
of this chapter Cellular Radiotelephone licensees and ESMR licensees 
who operate cellular base stations (``cell sites'') within 1,524 meters 
(5,000 feet) of the interference incident.
* * * * *
    (c) * * *
    (1) All 800 MHz cellular system licensees and part 22 of this 
chapter Cellular Radiotelephone licensees who are responsible for 
causing unacceptable interference shall take all affirmative measures 
to resolve such interference. 800 MHz cellular system licensees found 
to contribute to harmful interference, as defined in Sec.  90.672, 
shall resolve such interference in the shortest time practicable. 800 
MHz cellular system licensees and part 22 of this chapter Cellular 
Radiotelephone licensees must provide all necessary test apparatus and 
technical personnel skilled in the operation of such equipment as may 
be necessary to determine the most appropriate means of timely 
eliminating the interference. However, the means whereby interference 
is abated or the cell parameters that may need to be adjusted is left 
to the discretion of involved 800 MHz cellular system licensees and/or 
part 22 of this chapter Cellular Radiotelephone licensees, whose 
affirmative measures may include, but not be limited to, the following 
techniques:
* * * * *

0
14. In Sec.  90.676 paragraphs (b)(3), (b)(4), and (b)(5) are revised 
to read as follows:


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

* * * * *
    (b) * * *
    (3) Provide quarterly progress reports to the Commission in such 
detail as the Commission may require and include, with such reports, 
certifications by Nextel and the relevant licensees that relocation has 
been completed and that both parties agree on the amount received from 
the letter of credit proceeds in connection with relocation of the 
licensees' facilities. The report shall include description of any 
disputes that have arisen and the manner in which they were resolved. 
These quarterly reports need not be audited. The Transition 
Administrator may select the dates for filing the quarterly progress 
reports;
    (4) Provide to the Public Safety and Critical Infrastructure 
Division with an annual audited statement of relocation funds expended 
to date, including salaries and expenses of Transition Administrator. 
The Transition Administrator may select the date for filing the annual 
audited statement;
    (5) Facilitate resolution of disputes by mediation; or referral of 
the parties to alternative dispute resolution services as described in 
Sec.  90.677(d).
* * * * *
0
15. In Sec.  90.677, the introductory paragraph and paragraph (d) are 
revised to read as follows:


Sec.  90.677  Reconfiguration of the 806-824/851-869 MHz band in order 
to separate high-density cellular systems from non-cellular systems.

    In order to facilitate reconfiguration of the 806-824/851-869 MHz 
band (``800 MHz band'') to separate high-density cellular systems from 
non-cellular systems, Nextel Communications, Inc. (Nextel) may relocate 
incumbents within the 800 MHz band by providing ``comparable 
facilities.'' For the limited purpose of band reconfiguration, the 
provisions of Sec.  90.157 shall not apply and inter-category sharing 
will be permitted under all circumstances. Such relocation is subject 
to the following provisions:
* * * * *
    (d) Transition Administrator. (1) The Transition Administrator, or 
other mediator, shall attempt to resolve disputes referred to it before 
the conclusion of the mandatory negotiation period as described in 
Sec.  90.677(c) within thirty working days after the Transition 
Administrator has received a submission by one party and a response 
from the other party. Any party thereafter may seek expedited non-
binding arbitration which must be completed within thirty days of the 
Transition Administrator's, or other mediator's recommended decision or 
advice. Should issues still remain

[[Page 76712]]

unresolved they may be referred to the Chief of the Public Safety and 
Critical Infrastructure Division of the Wireless Telecommunications 
Bureau within thirty days of the Transition Administrator's, or other 
mediator's recommended decision or advice. When referring an unresolved 
matter to the Chief of the Public Safety and Critical Infrastructure 
Division, the Transition Administrator shall forward the entire record 
on any disputed issues, including such dispositions thereof that the 
Transition Administrator has considered. Upon receipt of such record 
and advice, the Commission will decide the disputed issues based on the 
record submitted. The authority to make such decisions is delegated to 
the Chief of the Public Safety and Critical Infrastructure Division of 
the Wireless Telecommunications Bureau who may decide the disputed 
issue or designate it for an evidentiary hearing before an 
Administrative Law Judge. If the Chief of the Public Safety and 
Critical Infrastructure Division of the Wireless Telecommunications 
Bureau decides an issue, any party to the dispute wishing to appeal the 
decision may do so by filing with the Commission, within ten days of 
the effective date of the initial decision, a Petition for de novo 
review; whereupon the matter will be set for an evidentiary hearing 
before an Administrative Law Judge. Any disputes submitted to the 
Transition Administrator after the conclusion of the mandatory 
negotiation period as described in Sec.  90.677(c) shall be resolved as 
described in Sec.  90.677(d)(2).
    (2) If no agreement is reached during either the voluntary or 
mandatory negotiating periods, all disputed issues shall be referred to 
the Transition Administrator who shall attempt to resolve them. If 
disputed issues remain thirty working days after the end of the 
mandatory negotiation period, the Transition Administrator shall 
forward the record to the Chief of the Public Safety and Critical 
Infrastructure Division, together with advice on how the matter(s) may 
be resolved. The Chief of the Public Safety and Critical Infrastructure 
Division is hereby delegated the authority to rule on disputed issues, 
de novo. If the Chief of the Public Safety and Critical Infrastructure 
Division of the Wireless Telecommunications Bureau decides an issue, 
any party to the dispute wishing to appeal the decision may do so by 
filing with the Commission, within ten days of the effective date of 
the initial decision, a Petition for de novo review; whereupon the 
matter will be set for an evidentiary hearing before an Administrative 
Law Judge.
* * * * *
0
16. In Sec.  90.685 paragraph (e) is added to read as follows:


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

* * * * *
    (e) EA licensees operating on channels listed in Sec.  90.614(b) 
and (c) must implement an Enhanced Specialized Mobile Radio (ESMR) 
system--as defined in Sec.  90.7--on their EA license and any 
associated site-based licenses prior to the expiration date of the EA 
license. EA licensees operating on these channels shall follow the 
construction notification procedures set forth in Sec.  1.946(d) of 
this chapter. Failure to implement an ESMR system on their EA and site-
based licenses before the expiration date of the EA license will result 
in termination of the EA license and any associated site-based licenses 
pursuant to Sec.  1.946(c) of this chapter.

[FR Doc. 05-24373 Filed 12-27-05; 8:45 am]
BILLING CODE 6712-01-P